Section 3

Reporting — when and why*

All provinces and territories impose a statutory duty on physicians relating to the reporting of patients deemed unfit to drive. This duty may be mandatory or discretionary, depending on the jurisdiction (Table 1).† The duty to report prevails over a physician’s duty of confidentiality. Section 18 of the CMA Code of Ethics and Professionalism (Canadian Medical Association, 2018) affirms the notion that physician–patient confidentiality may be breached when required or permitted by law:

Fulfill your duty of confidentiality to the patient by keeping identifiable patient information confidential; collecting, using, and disclosing only as much health information as necessary to benefit the patient; and sharing information only to benefit the patient and within the patient’s circle of care. Exceptions include situations where the informed consent of the patient has been obtained for disclosure or as provided for by law.

*This section is meant for educational purposes, as a guide to physicians on reporting of patients assessed to be unfit to drive. It is not meant to replace advice from legal counsel. Unless specified, this section refers to fitness to drive motor vehicles.

†Pilots, air traffic controllers, and certain designated railway workers are governed by federal legislation that requires the reporting of certain individuals in these transportation industries who have a medical condition rendering them unfit to perform their duties. These reporting obligations are discussed in separate sections of this guide (Section 26, Aviation and Section 27, Railway). The marine working environment is challenging, with safety-critical responsibilities and the presence of many hazards, including a strenuous workplace, unique living conditions, unpredictable weather, and potential emergency duties. Seafarers must be able to live and work in close contact with each other for long periods. The difficulties of this environment can be magnified when medical care is not immediately accessible when needed. For this and other reasons, since 2001, the Canada Shipping Act requires physicians and optometrists to report to the federal Minister of Transport without delay when they have reasonable grounds to believe that a seafarer has a medical or optometric condition that is likely to constitute a hazard to maritime safety.

This same law requires certificated seafarers to inform their caregivers of their safety-critical role. Further information can be found in the Transport Canada policy“ Seafarer medical examination – a physician guide” (Transport Canada, 2013), or contact Marine Medicine at 866-577-7702 for assistance.

This approach is further reinforced by Principle 2 of CMA’s “Principles for the Protection of Patient Privacy” (Canadian Medical Association, 2017), which states that:

In practice, respecting privacy and the duty of confidentiality govern the physician’s role as data steward, responsible for controlling the extent to which information about the person is protected, used or disclosed. A central rule to balancing a patient’s right to privacy and the duty of confidentiality is the “minimum necessary” use and disclosure of personal health information, whereby a data steward should use or disclose only the minimum amount of information necessary to fulfil the intended purpose. In some circumstances, de-identifying or aggregating personal health information before use or disclosure can minimize the amount of information disclosed. … The duty to maintain patient confidentiality is not absolute and is subject to exceptions in limited circumstances; i.e., when required or permitted by law to disclose information.

The CMA Code of Ethics and Professionalism is intended to serve as a guidance document for physicians. Hence, physicians should exercise caution in invoking the code as a legal mandate to breach patient confidentiality in situations where they are not legally required to do so.

Despite being legally authorized to breach confidentiality in some circumstances, physicians often find it difficult to report patients who are deemed unfit to drive. Physicians are often concerned about their own liability and, particularly when the patient is a commercial driver, are concerned about the impact of a suspension or restriction of licence on the patient. Physicians also may have difficulty determining the circumstances in which a report should be made. Reference to this guide, to the specific wording of the relevant legislation, and to the Canadian Medical Protective Association (CMPA), including the publications Hit the brakes: Do you need to report your patient’s fitness to drive? (CMPA, 2019) and Medico-legal handbook for physicians in Canada (CMPA, 2021), is helpful in these circumstances.

It is important to emphasize that only motor vehicle licensing authorities can suspend or restrict a person’s licence. Although a physician’s report is an important element in determining the motor vehicle licensing authority’s subsequent action, it is not the physician’s responsibility to determine whether the patient’s driving privileges should be altered.

Physicians should also be aware that, in all jurisdictions, the relevant legislation protects physicians from any legal action brought against them for making a report (Table 1). Some provinces and territories specify that the physician must have acted in good faith in order to benefit from this protection.

Physicians should be aware that there have been cases in which people injured in a motor vehicle crash have brought actions against physicians, alleging that the crash was caused in part by the medical disability of their patient, who should not have been allowed to continue driving. Physicians have been found liable for failing to report, notably in those provinces and territories with mandatory requirements.

It is therefore important for physicians to fulfill their statutory duties and report patients whom they believe to have a medical condition that might reasonably make it dangerous for them to drive. Physicians are encouraged to be familiar with this guide when assessing a patient’s fitness to drive and when deciding whether to report a particular patient.

See Appendix A for a message from the CMPA on issues related to patients’ fitness to drive and associated risk management.

Physicians who have determined that a patient’s fitness to drive may be compromised should inform the patient that

(a) a report will be made to the motor vehicle licensing authority and (b) the motor vehicle licensing authority makes the decision to restrict driving. Such patients should be cautioned not to drive until the licensing authority has made and communicated its final decision. Physicians should document any discussions of this topic (specifying the date, any advice given, and the names of those present) in the patient’s medical chart. In those instances where a patient’s fitness to drive is impaired for a brief period, such as a few days or immediately after the patient has undergone a medical test, physicians might wonder whether a report to the motor vehicle licensing authority is warranted, given the time lag of licence revocation. The legislation in some jurisdictions expressly states that the reporting duty is not triggered when the patient’s condition is distinctly temporary. Physicians must use their clinical judgment in making an assessment of the timeframe for temporary conditions. At a minimum, the physician should caution the patient not to drive for the duration of the temporary impairment and should document these discussions. If the physician is unsure about the proper course of action in such situations, he or she should consult the CMPA.

In general, physicians should err on the side of reporting any potentially medically unfit driver. This is especially important in jurisdictions where there is a mandatory reporting obligation. Physicians should contact the provincial or territorial motor vehicle licensing authority for details on the process for reporting in their respective jurisdictions (Appendix B). Physicians are encouraged to contact the CMPA for assistance in interpreting the jurisdictional standards.

Once the physician has made a report to the licensing authority, he or she has discharged his or her legal responsibility. Subsequently, should the physician become aware that a driver whose privileges are known to have been suspended is continuing to drive, the physician has no legal obligation to report the situation to any authority, such as the motor vehicle licensing authority or the police. However, there are ethical considerations, in that an unsafe driver may pose a hazard to the health and safety of other road users. This is a complex issue, and neither legislation nor existing ethical codes provide specific guidance to negate the legal or regulatory risks. However, when a physician reasonably believes that a patient who continues to drive with a medical condition may pose a risk of serious harm, they may be justified in alerting a third party who can assist in preventing the harm (e.g., police). In such a situation, the physician is advised to contact the CMPA for advice and to document the reasons for deciding whether or not to alert third parties.

Physicians should also contact the CMPA if a patient threatens legal action for making a report to the licensing authority.

The right of patients to access reports about fitness to drive made to the motor vehicle licensing authority and any notes made in the medical chart about such a report is subject to provincial/territorial legislation. While patients have a general right of access to information in their medical report, some jurisdictions extend statutory privilege to prevent the release of these reports. Physicians should contact the CMPA for further information specific to their jurisdiction.