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

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 early 1980s and late 1990s, (1) but little progress has been made since. (2) In fact, number of impairment-related traffic deaths and injuries has increased in recent years, leaving 2008 totals comparable to those of 2000. (3) Evidence indicates that a small number of drivers account for a disproportionate percentage of 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 (9) While alcohol dependence is a condition that adversely affects driving ability, Canadian health professionals rarely report these drivers to provincial (10) or territorial licensing authorities, even though 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 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 five years prior to their crashes, and 85% had seen a physician within a year of (13) Nevertheless, only 7 of 429 drivers (2%) with a history of alcohol abuse had been reported to 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 physicians to prosecution and civil liability, and forestalls early identification and possible treatment of unfit drivers. These factors, coupled with criminal justice system's limited impact on impaired driving, highlight need to critically examine provincial legislation governing reporting of unfit drivers. This paper reviews current patchwork of legislation and recommends that reporting obligations be made more comprehensive. This would include making reporting obligations mandatory, extending obligations to more categories of health professionals, and broadening grounds for reporting. The legislation should also better protect health professionals from liability for reporting, and more narrowly limit subsequent use of reports. As will be discussed, all of these elements of a comprehensive reporting system can be found scattered across current provincial legislation. Section I: General Features of Reporting Obligations Is 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, legislation permits health professionals to report if they so choose. (15) In Alberta, there is no reporting provision, but 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 optometrist Saskatchewan Auto Fund YK Mandatory Medical practitioner or Registrar of Motor optometrist Vehicles * Figure 1 is based on statutes referred to in Appendix A. …

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