Academic journal article Health Law Review

Silence May Not Be Golden: A Review of Health Professionals' Statutory Obligations to Report Unfit Drivers

Academic journal article Health Law Review

Silence May Not Be Golden: A Review of Health Professionals' Statutory Obligations to Report Unfit Drivers

Article excerpt

INTRODUCTION

Although criminal justice approaches have long dominated Canada's response to impaired driving, they have had a limited impact. Considerable progress was made between the early 1980s and the late 1990s, (1) but little progress has been made since. (2) In fact, the number of impairment-related traffic deaths and injuries has increased in recent years, leaving the 2008 totals comparable to those of 2000. (3)

Evidence indicates that a small number of drivers account for a disproportionate percentage of the impaired driving trips, (4) convictions (5) and deaths. (6) This category of drinking drivers has been subject to detailed scrutiny in Canada and abroad (7) under various labels, including habitual, persistent, high-risk, repeat, and hard-core drinking drivers. (8) Among other common characteristics, members of this group often have a history of alcohol dependence and are resistant to change. Many continue to drink and drive, despite having been convicted of an impaired driving offence or having seriously injured themselves or others in an impaired driving crash. (9)

While alcohol dependence is a condition that adversely affects driving ability, Canadian health professionals rarely report these drivers to the provincial (10) or territorial licensing authorities, even though the failure to do so constitutes an offence in nine jurisdictions." For example, a recent Ontario study of drivers admitted to Canada's largest trauma centre following a life-threatening crash found that the medical records of 26.7% (429) disclosed a history of alcohol abuse, and another 10% (167) disclosed other reportable medical conditions. (12) The 596 patients with reportable conditions had made 20,505 visits to physicians in the five years prior to their crashes, and 85% had seen a physician within a year of the crash. (13) Nevertheless, only 7 of the 429 drivers (2%) with a history of alcohol abuse had been reported to the licensing authority. This was a lower rate than any other reportable condition, even though alcohol abuse was "the most frequent reportable condition contributing to a serious crash." (14)

The fact that most physicians routinely breach their statutory reporting obligations should be of concern, as it endangers their patients and others, exposes the physicians to prosecution and civil liability, and forestalls early identification and possible treatment of unfit drivers. These factors, coupled with the criminal justice system's limited impact on impaired driving, highlight the need to critically examine the provincial legislation governing the reporting of unfit drivers. This paper reviews the current patchwork of legislation and recommends that the reporting obligations be made more comprehensive. This would include making the reporting obligations mandatory, extending the obligations to more categories of health professionals, and broadening the grounds for reporting. The legislation should also better protect health professionals from liability for reporting, and more narrowly limit the subsequent use of the reports. As will be discussed, all of these elements of a comprehensive reporting system can be found scattered across the current provincial legislation.

Section I: General Features of the Reporting Obligations

Is the Reporting Obligation Discretionary or Mandatory?

As Figure 1 illustrates, reporting is mandatory in all jurisdictions except Nova Scotia, Quebec, and Alberta. In Nova Scotia and Quebec, the legislation permits health professionals to report if they so choose. (15) In Alberta, there is no reporting provision, but the Act expressly protects professionals who report a patient with a medical condition that may impair his or her ability to drive safely. (16)

Figure 1: Overview of Reporting Obligations *

Prov./     Type of     Who May or Must Report   Person to Whom Report
Terr.     Reporting                                    is Made
          Provision

  AB    No obligation  Physician, optometrist   Registrar of Motor
                       or health care           Vehicles
                       provider

  BC    Mandatory      Medical practitioner,    Superintendent of Motor
                       psychologist or          Vehicles
                       optometrist

  MB    Mandatory      Medical practitioner or  Registrar of Motor
                       optometrist              Vehicles

  NB    Mandatory      Medical practitioner,    Registrar of Motor
                       nurse practitioner or    Vehicles
                       optometrist

  NL    Mandatory      Medical practitioner,    Registrar of Motor
                       nurse practitioner or    Vehicles
                       optometrist

  NT    Mandatory      Medical professional     Registrar of Motor
                                                Vehicles

  NS    Discretionary  Medical practitioner or  Registrar of Motor
                       psychologist             Vehicles

  NU    Mandatory      Medical practitioner     Registrar of Motor
                                                Vehicles

  ON    Mandatory      Medical practitioner or  Registrar of Motor
                       optometrist              Vehicles

  PE    Mandatory      Medical practitioner or  Registrar of Motor
                       optometrist              Vehicles

  GC    Discretionary  Health professional      Societe de I'assurance
                                                automobile du Quebec

  SK    Mandatory      Medical practitioner or  Administrator of the
                       optometrist              Saskatchewan Auto Fund

  YK    Mandatory      Medical practitioner or  Registrar of Motor
                       optometrist              Vehicles

* Figure 1 is based on the statutes referred to in Appendix A. … 
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