Miss Daisy should not drive anymore...what to do?
DRIVING IS NOT A RIGHT!
Our starting point is that driving is NOT a fundamental right as protected under
the Charter of Rights And Freedoms. This was the ruling in the case of Lepage
c. R R.J.Q. 772 (C.A.). Thus, the state may deny a person the PRIVILEGE
DRIVING IS VERY REGULATED:
Next, it must be said that driving is an activity that is very much regulated.
The act of driving is potentially hazardous. Consequently, one may not drive
when one is a hazard to others.
There are conditons and formalities, which must be met in order to obtain and/or
renew a permit. Therefore, the holding of a permit is not automatic. Beyond
the costs, one must not only have training, knowledge and skill, but also be
sufficiently well to drive.
Respecting instances where a permit may not be granted, the Société
de l'assurance automobile du Québec (the SOCIETE) considers that in order
to operate a motor vehicle, one must be in good physical and mental health as
well as have sharp vision. The expressions "medical norms" and "incompatible
with driving" denotes a required degree of wellness to qualify as a driver.
In this regard, one must complete the medical declaration, and answer truthfully
under pain of law, when one is applying for one's 1st permit or a change thereof;
or if one is renewing one's permit and the SOCIETE has not been previously advised
of a health condition.
As well, a medical exam is required for the holders of a permit of class 1,
2, 3, 4A, 4B, or 4C and this upon the renewal dates, at the ages of 45, 55,
60, 65 and thereafter every two (2) years. In the case of holders of a permit
of class 5, there is a medical exam upon the renewal dates, at hte ages of 75
and 80, and then every two (2) years.
As regards SENIORS in particular, the SOCIETE may ask the subject driver to
undergo a physical or eye examination upon reaching the age of seventy (70).
The SOCIETE will so ask,
if his/her driving habits or state of health give reason to believe that his/her
ability to operate a motor vehicle should be verified; or
one has not submitted to a physical and/or eye exam for ten (10) years; or
if one holds a permit of class 1, 2, 3, 4A, 4B, or 4C.
In any event, the SOCIETE will send a medical exam/report form to be completed
and a letter explaining the reasons for its request. The subject person or his/her
physician must return the form to the SOCIETE within the next ninety (90) days.
The failure to submit a medical exam/report may result in the suspension of
one's permit or the refusal by the SOCIETE to issue a permit.
Within a delay of ten (10) days from the receipt of this physician's exam/report,
the SOCIETE shall send a drivers' permit possibly with restrictions, and/or
a letter, which shall:
give an explanation regarding the restrictions imposed;
state that no further restriction was added to one's current permit;
explain the reasons for the refusal to issue a driver's permit or a particular
advise of a suspension; or
state that one must submit a further medical report by a specific date.
Remember, that if one has a permit with restrictions, and one wishes to operate
a motor vehicle, one MUST observe such restrictions. Otherwise, it is conceivable
that an argument may be made to the effect that one is then driving without
WHEN A PERMIT HOLDER BECOMES ILL:
Next, let us address the situation where an illness and/or an occurrence renders
a permit holder less able to drive. As per Art.95 of the Code de la Sécurité
Routière, a driving permit holder must inform the SOCIETE of any change
in the documents and/or information which is/was required at the time of the
permit issuance/renewal. Almongst said documents/ information, there is the
health issue and the questions thereto relating. As a result, when a driver
with a permit suffers a decline in health, he/she MUST disclose this to the
SOCIETE within the thirty (30) days from the happining of this change.
Understandedly, this is for his/her own good as well as in the public interest.
However, what happens, when the subject person is so ill that he is unable to
give notification to the SOCIETE, then what?
WHAT SHOULD THE FAMILY DO?
Close family members should act in order to ensure full disclosure and the stoppage
of the unwell driver. Otherwise, it is possible that a direct relative may be
held responsible. Mention is made of the obligation of support in virtue of
Art.585 C.C.Q., which is hereafter written: "Spouses, and relatives in
the direct line, owe each other support." By extension, it may be argued
that support includes the seeing to the welfare of such persons.
More significantly, reference is made to the Quebec Charter of Human Rights
and Freedoms, and in particular to Art.48 thereof, which is reproduced below:
"48. Every aged person and every handicapped person has a right to protection
against any form of exploitation. Such a person also has a right to the protection
and security that must be provided to him by his family or the persons acting
in their stead." This provision is a clear substantiation of the positive
obligation to do something for the protection of the elderly driver.
WHAT SHOULD THE DOCTOR DO?
As already explained, a health professional has a function in the determination
of a driver's capacity to hold a permit and operate a vehicle. It is clear that
when required by the SOCIETE and/or asked by the driver, a physician must report
his/her opinion as to whether the driver is fit to drive. In addition, reference
is made to Art.603 of the Code de la Sécurité Routière.
By this article, on his/her own initiative, a Quebec doctor MAY report a patient
now inapt to drive. He/she is authorized to disclose to the SOCIETE this information,
and accordingly is protected from legal action of the patient as result of this
disclosure. However, it is noteworthy that without being asked, he/she is NOT
OBLIGED to make such a report.
This is different from the Ontario situation, where irregardless of being
asked, the physician IS OBLIGED to notify the permit authorities of a driver
being unfit. (It is the opinion of the undersigned, that Quebec law should be
made to conform to Ontario law, inasmuch as the Ontario provision is stronger
and in the public interest.)
Nevertheless, it is also true that a doctor is professionally intent on looking
to his/her patient's quality of life. It can also be said that the stopping
of an unfit driver is for the betterment and protection of the patient. As a
result, an argument can also be made that a doctor in Quebec still has an obligation
to report even when not asked.
When a driver is suffering from an infirmity, we cannot simply pass it off as
none of our business. In such an instance, one must especially act with heightened
prudence and care. If one is faced with a situation as hereinabove mentioned,
it is one's business and one must do something, and INDEED PLEASE DO IT NOW!!!
CAUTION/DISCLAIMER: The foregoing article is only for informational purposes
and is not meant as legal advice. Seek out legal counsel for your particular
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© 2005 Practitioners’ Press Inc./ TM Practitioners’ Press Inc.