Appendix A

Fitness to drive issues and risk management

Message from the Canadian Medical Protective Association (updated 2022)*

Most Canadians depend on their vehicles and their ability to drive to assist them with the many activities in their lives. Telling patients that their medical condition may make it too dangerous for them to drive is a difficult conversation for physicians to have, and one that is equally difficult for patients to hear.

A report from a physician that results in the loss of the right to operate a vehicle can provoke strong feelings and have serious personal and financial consequences for the individuals involved. Physicians need to carefully consider the variety of issues associated with reporting (or not reporting) a patient with a medical condition to a motor vehicle licensing authority. The final decision can have implications, some of them serious, for both the physician and patient.

In most jurisdictions, legislation requires physicians to report any patient who, in their opinion, has a medical condition that may make it dangerous for the patient to drive.

In a few jurisdictions, reporting is discretionary. The ultimate decision whether to restrict driving privileges is always made by the provincial or territorial motor vehicle licensing authority, not by the physician. Most jurisdictions include statutory protection from liability in civil actions for making a report in good faith. In all jurisdictions, physicians will generally not be faulted for breaching patient confidentiality if a report is made in good faith.

The CMPA regularly reviews its experience in assisting members in matters related to fitness to drive. These reviews have identified three principal themes. The first is allegations in legal actions that a physician failed to report a patient as unfit to drive because of a medical condition. The second is complaints from a patient that a report has been made to a motor vehicle licensing authority. The third relates to patient complaints about the physician’s refusal to support an application to restore driving privileges.

*Used with the permission of the Canadian Medical Protective Association (CMPA).

Failure to report

Following a motor vehicle accident caused by an unfit driver, the allegation may be that the physician failed to advise the patient not to drive, and/or failed to make a necessary report to the motor vehicle licensing authority. In these cases, the injured party may initiate a civil legal action against the patient (driver), the physician, or both. Physicians have sometimes been found liable for damages under these circumstances.

Physicians should be familiar with the legislative criteria and medical regulatory authority (College) policies for reporting in their jurisdiction and assess the patient’s condition in light of those statutory and regulatory parameters.

Clinical guidelines are available to assist physicians in making these determinations. Physicians should talk openly with their patients about any medical conditions that may make it dangerous for them to drive and counsel them appropriately. All assessments and examinations conducted, discussions with the patient, and grounds for the reporting decision should be detailed in the medical record.

Complaints about reporting

Some patients may not believe a report should have been made to the motor vehicle licensing authority about their fitness to drive. Patients tend to be particularly upset if the physician has not in advance alerted them that a report has been made to the motor vehicle licensing authority. Patients may challenge the accuracy of the diagnosis, or its relevance to driving, or claim that the report breaches confidentiality.

To help minimize medico-legal risk, patients should be informed of medical conditions that give rise to a duty
to report. Physicians may also want to explain the nature and intent of any report to the motor vehicle licensing authority, including the fact that any decision to restrict driving privileges is made by the motor vehicle licensing authority. Patients who are deemed unfit to drive should be advised not to drive until the motor vehicle licensing authority has communicated its decision. Physicians should always document in the medical record discussions with patients about their fitness to drive and any actions taken (e.g., report to the motor vehicle licensing authority).

The CMPA has found that, in the vast majority of cases, Colleges have been supportive of the physician’s decision to report.

License reinstatement

In some cases, patients who have had their license suspended may complain that their physician did not assist
in their request to have their license reinstated. Prior to assisting patients with such requests, physicians should carefully evaluate whether there has been significant change in the patient’s clinical condition that led to the original report. Physicians should only support a patient’s application for license reinstatement if they feel able to comment based on the available information and their own expertise. It may be helpful in some cases to consult with a colleague or obtain a functional assessment.

Physicians should document their clinical reassessments in the medical record and, where appropriate, document and explain to the patient why they are unable to support the patient’s request for license reinstatement.

Summary of risk management considerations

Physicians should consider the following suggestions to help reduce the medico-legal risks associated with reporting patients with medical conditions affecting their fitness to drive.

• Familiarize yourself and comply with the relevant legislation and College policies in your jurisdiction.
• The decision whether to report should be made in the circumstances of each case based on the clinical assessment of risk posed by the patient. Consult with colleagues and/or obtain functional assessments, if appropriate.
• In keeping with confidentiality and privacy obligations, limit the report to the information prescribed by the legislation and that is necessary to complete the report.
• It is usually beneficial to discuss your decision to report with the patient, including the rationale for reporting, the nature of the report, and the legal obligation to report. Talk to the patient about your findings and try to help the patient understand the safety reasons for your report.
• Irrespective of the duty to report, physicians should advise the patient not to drive while permanently or temporarily disabled.
• Document your discussions, warnings, and advice to the patient, as well as your decision about whether or not to make a fitness to drive report.
• Prior to supporting a request to help reinstate a patient’s license, carry out careful clinical reassessments, and document your findings and recommendations in the medical record. Physicians should not feel compelled, and should refrain from, providing information they do not feel qualified or able to comment on. Consult with colleagues and/or obtain functional assessments, if appropriate.

The CMPA recommends physicians consult its publications related to reporting on fitness to drive: “Hit the brakes: Do you need to report your patient’s fitness to drive?,” “Good practices: Privacy and confidentiality,” and “Medico-legal handbook for physicians in Canada” (section 4: Important legislation), which are all available on the CMPA website (www.cmpa-acpm.ca). CMPA members are also encouraged to contact the Association for case-specific advice regarding their reporting duties from experienced physician advisors.