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[1993] R.J.Q. 772 (C.A.). Thus, the state may deny a person the PRIVILEGE to drive.

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.

DRIVING PERMITS:
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 class thereof;
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 a permit.

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.

CONCLUSIONS:
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 needs.

(C) GOLDWAY MANAGEMENT, ALL RIGHTS RESERVED


© 2005 Practitioners’ Press Inc./ TM Practitioners’ Press Inc.