Silence may not be golden: a review of health professionals' statutory obligations to report unfit drivers.

AuthorSolomon, Robert


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. There are several advantages to mandatory reporting. First, mandatory provisions are likely to generate more reports than discretionary provisions. Second, mandatory provisions better reflect the respective expertise of health professionals and the licensing authorities. The primary focus of health professionals is the diagnosis and treatment of their patients. Once a health professional decides that a patient meets the reporting criteria, the responsibility to conduct further investigation and take any necessary licensing action should fall to the licensing authority (which, in most jurisdictions, is the Registrar of Motor Vehicles). (17) They have access to information that is not available to health professionals, including the driver's crash history, record of provincial and federal driving convictions, and conditions on his or her licence. Moreover, the Registrar, not the health professional, has the statutory power to demand further assessments and, where appropriate, to restrict, suspend or cancel the driver's licence. (18)

Third, leaving discretion about the processing of suspected unfit drivers in the hands of the Registrar -a single authority - makes it more likely that decisions will be made fairly and consistently, in accordance with established criteria. (19) Fourth, mandatory reporting systems protect health professionals who report as required from civil liability. Individuals cannot be held civilly liable for doing what the law requires them to do. In contrast, discretionary reporting provisions can make health professionals the legal target of both a disgruntled patient whom they have chosen to report, and any person injured by a patient whom they have chosen not to report.

Fifth, mandatory reporting provisions clarify health professionals' legal responsibilities in complying with their complex, overlapping sets of confidentiality obligations. For example, an Ontario physician treating a psychiatric patient in a public hospital would be subject to the confidentiality provisions of the Public Hospitals Act, (20) the Mental Health Act, (21) the Personal Health Information Protection Act, 2004 (PHIPA), (22) and the Regulated Health Professions Act, 1991 (RHPA) and its disciplinary regulations. (23) While a breach of the obligations in any of the first three statutes is a provincial offence, a breach of the RHPA's confidentiality provisions is grounds for a finding of professional misconduct. Finally, all of these are in addition to the physician's confidentiality obligations under the Canadian Medical Association's Code of Ethics, (24) the common law, Equity, (25) and the privacy legislation that exists in several provinces. (26)

These confidentiality provisions and obligations uniformly recognize an exception for disclosures that are required by law, but only some provisions exempt disclosures that are permitted by law. For example, an Ontario physician disclosing patient information under a discretionary reporting provision would not violate PHIPA's confidentiality provisions, because they exempt disclosures that are either "permitted or required by law." However, the RHPA only permits disclosures without patient consent if they are "required by law." Thus, a physician reporting under a discretionary power could be subject to disciplinary action. Similar problems may arise regarding some of a physician's other statutory, ethical, common law, and Equitable obligations of confidentiality.

Given these potential legal problems, it is not surprising that the Canadian Medical Protective Association (CMPA), the body that advises physicians on medicolegal issues and risk management, expressly warns against making any discretionary disclosure of confidential patient information:

While physicians may have a desire to collaborate with police to foster public safety and injury prevention, physicians are bound by a duty of confidentiality to their patients. As such, physicians should not provide any patient information to the police unless the patient has consented to this disclosure or where it is required by law. (29) While the CMPA statement concerns discretionary disclosures to the police, it is equally applicable to discretionary disclosures to a Registrar of Motor Vehicles.

Who May or Must Report?

As Figure 1 illustrates, all the jurisdictions, except Alberta, (30) permit or require...

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