Report to the Minister of Justice Fatality Inquiries Act

and Attorney General

CANADA Public Fatality Inquiry
Province of Alberta

WHEREAS a Public Inquiry was held at the Court House

in the Town of St. Paul , in the Province of Alberta,

(City, Town or Village) (Name of City, Town, Village)

on the 21st to 23rd days of September , 2016 , (and by adjournment

year

on the day of , ),
year

before K. R. Wilberg , a Provincial Court Judge,

into the death of Megan Alyssa Wolitski 11

(Name in Full) (Age)

of St. Paul, Alberta and the following findings were made:

(Residence)

Date and Time of Death: October 26, 2012 at 11:26 a.m.

Place: Stollery Children's Hospital, Edmonton, Alberta

Medical Cause of Death:

Statistical Classification of Diseases, Injuries and Causes of Death as last revised by the International Conference
assembled for that purpose and published by the World Health Organization The Fatality Inquires Act, Section 1(d)).

Multiple Blunt Force Injuries

Manner of Death:
(manner of death means the mode or method of death whether natural, homicidal, suicidal, suicidal, accidental,
unclassifiable or undeterminable The Fatality Inquiries Act, Section 1(h)).

Accidental

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Circumstances under which Death occurred:

Overview
So many extraordinary days have an ordinary beginning. Unforeseen events may be part of an
ordinary day, but long standing institutional failures, deadly in their impact, that lead to avoidable
injury and death should not be ordinary occurrences. Yet they were on October 25, 2012 in St.
Paul, Alberta when a van driven by Mr. Benson crushed and killed Megan Wolitski.
Unfortunately, these failures are still with us today and lives remain at risk.
It is important to keep in mind, as a reference point, that the evidence heard from the inquiry
made it clear that the deaths and injuries in question were avoidable. They took place, not from a
lack of timely and appropriate care provided by the emergency medical system on October 25,
2012, but from a longstanding institutional failure to take action against a known danger.
When considering the account and analysis that follows, please note that the materials referred
to, unless otherwise specified, were made part of the record of proceedings in Exhibits 1 and 2.
Also, in keeping with this Courts order made on November 19, 2014, please note that the inquiry
was to determine circumstances of death in accord with the following criteria:
a. Whether the treatment received by Megan Wolitski was timely and sufficient.

b. Whether the response of the following services was timely, appropriate and
adequate: first responders, the St. Therese St. Paul Healthcare Centre (St.
Therese) in St. Paul, the medi-vac system, and Stollery Childrens Hospital (the
Stollery) in Edmonton and its interaction with the medi-vac system.

Further, regarding the recommendations to be considered, this order provided that the Court
would consider:

c. Whether medical doctors ought to be subject to mandatory reporting, by statute,

to the Registrar of Motor Vehicles, of persons whose ability to drive, in their
opinion, would be affected by their medical condition.

The parties to this matter had adequate notice that these issues would be raised and ample
opportunity to consider them. This is important given the nature of the findings and
recommendations to follow.

Prior events leading to the death: 2002 2012

The immediate cause of death was the minivan occupied by a seizure-stricken Mr. Benson
smashing its way into the basement level classroom of the Racette School. However, this lethal
event had its genesis ten years earlier. In 2002 Mr. Benson sustained a permanent head injury
that caused him to have seizures. He was prescribed Dilantin, and cared for at the Glenrose
Hospital in Edmonton for several months between 2002 and 2004.
During these 10 years Mr. Bensons seizures continued and he had eight documented
interactions between physicians or hospitalsyet he continued to drive. That he continued to
drive is evidenced by his fraudulent concealment of his condition when completing driver

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licencing and vehicle insurance documents. These documents required him to disclose health
problems, yet he did not.
In terms of the relevant legislation, the Traffic Safety Act (TSA), section 91(1) empowers the
Registrar of Motor Vehicles to suspend the licence of a person who is not fit to drive. As Ms.
Sheila Duiker of Alberta Transportation testified, if information is received by the Driver Fitness
and Monitoring Branch it is reviewed by its Medical Review Committee and a recommendation is
made to the Registrar.
However, this process depends on information coming from drivers themselves or third parties.
Typically, this information comes from Doctors, police, drivers or their families. The TSA does not
compel physicians to report patients who are unfit to drive, however its provisions remove any
legal and practical concerns about reporting. Section 60.1 specifies that anyone providing
information is guaranteed anonymity. Also, section 60 specifies that health care providers
relaying information about driver fitness are guaranteed immunity from liability.
Notwithstanding the wide-ranging protections, and in spite of Mr. Bensons repeated contact for
10 years with the health care system, not one report was made by health care providers.
Also during these 10 years, the physicians attending Mr. Benson for his seizures failed to comply
with their duty to report, as set out in section 35 of the Canadian Medical Association (CMA)
Code of Ethics and adopted by the Alberta Medical Association (AMA). Section 35 requires
physicians to disclose patients personal health information to third parties when maintaining
confidentiality will result in a significant risk of harm to others.
This is a mandatory requirement.
There is no question either that the condition of Mr. Benson required reporting. Section 11 of the
CMA Drivers Guide at page 41 states, Any seizure is grounds for immediate cessation of all
driving activities. The Guide highlights that the duty to report, is owed to the public and
supersedes the physicians private duty with regard to confidentiality.
Further, there is a step-by-step protocol specified in the Guide that must be carried out for a
patient to return to driving. This protocol requires diligent taking of medications and six months
seizure free. The evidence is clear that Mr. Benson was not reported and there was no evidence
that he followed the return-to-drive protocol. Quite the contrary; the evidence is that he failed to
take his medications as required to prevent seizures.
What was the evidence concerning the mystifying failures to report Mr. Benson and to ensure he
followed the established protocol?
In part, the fail to report can be explained by professional reluctance to jeopardize the Doctor and
client relationship. Dr. Harmse, the attending physician on Megan, and Dr. Mittelsteadt,
representing the AMA, both referred to the reluctance of physicians reporting patients to the
Registrar. Physicians fear that reporting will harm their relationship with their patients.
There is also a myth that reporting is discretionary. This may have been propagated by official
literature. For example, the Alberta College of Physicians and Surgeons 2011 guideline for
reporting unfit drivers states that, a physician is not required to declare a patient to be unfit to
drive, only to report a failure to meet a published medical standard. This statement, given the
clear ethical obligation set out in s. 35 of the CMA Code, is wrong and can only confuse
physicians looking for guidance.
Further, the Registrar of the College, in a letter to Inquiry Counsel of March 10, 2016, states that
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reporting under the TSA s. 60 is discretionary. This is correct insofar as the TSA is concerned,
but incorrect regarding the obligation to report created by s. 35 of the CMA Code. A correct
statement would be to say, the TSA permits reporting and provides immunity to those who do
so, and physicians are required by their Code of Conduct to report.
The evidence before the inquiry establishes that educational materials are there for physicians.
Also, the AMA, according to Dr. Mittelsteadt, is happy to field calls from inquiring physicians
about their duty. Yet, the facts of this case prove that current measures are ineffective.
There has been some consideration in the medical community over this issue. As Dr. Mittelsteadt
pointed out, the AMA produced a discussion paper in 2004 (and ultimately took no position on
whether reporting should be mandatory). The paper makes it clear that a mandatory reporting
regime will require infrastructure, assessment tools, resources for system needs, the addressing
of liability and privacy issues, knowledge of patient driving status, and an overall driving safety
strategy. Dr. Mittelsteadt stated that Doctors also sought certainty regarding what conditions
would be reportable.
Since then however, the Registrars March 10, 2016 letter confirms that there is no ongoing
communication with the provincial government regarding mandatory reporting. Nor does the
government, according to Ms. Duiker, keep track of the co-relation between medical conditions
and accidents.
Overall, it is obvious that notwithstanding the clear ethical duty imposed by s. 35 of the CMA
Code, there was a lack of accurate information and wide spread confusion over the duties of
physicians in Alberta. This resulted in the failure to report a driver who was a danger to the
public.
The combination of brain injury and seizures renders a driver like Mr. Benson an extraordinary
risk. The evidence of the last witness, Dr. Dobbs, Ph.D. touched on this. (Dr. Dobbs
qualifications will be described in detail in the Recommendations section to follow).
She testified that a person with brain injury, like a person with dementia, will have little insight into
their disability. They think theyre fine, but theyre not. They also have poor judgment. Clearly,
someone with debilitating seizures like Mr. Benson, who will commit fraud to continue driving and
does not take their anti-seizure medication, has poor insight into their condition. The failure to
take steps to avoid endangering others illustrates that persons suffering from brain injuries may
have deeply flawed judgment (In this regard, Mr. Benson was later convicted in criminal court of
three counts of criminal negligence.)
Mr. Benson wasnt going to report that he was unsafe to drive. His physicians and health care
providers didnt report him either. Even Mr. Bensons family was concerned about the risk he
posed by continuing to drive, but they too did nothing.
In total, the evidence was distressingly clear that, in spite of all the obvious warning signs, the
persons who could take action didnt.
And so it was that there was no one left to stop Mr. Benson from driving a minivan on October 25,
2012. The safety of the public was left in the hands of a driver who had frequent seizures and
criminally poor judgment.
Earlier that year the St. Thereses - St. Paul Healthcare Centre had implemented a Code
Orange, a procedure designed to respond to a mass casualty incident.

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Unfortunately, as events would soon prove this earlier practice would be valuable.

October 25, 2012, the incident at the Racette School

Overview of the response and treatment:
Given the events over the preceding ten years a tragedy was nearly inevitable. The only real
question would be this: how much damage would be caused by Mr. Benson and how well would
the community in St. Paul respond?
Concerning the quality of the initial response, the court heard several witnesses. Evidence was
heard from the first responders who extricated and transported Megan, the St. Thereses staff
who provided care in St. Paul while the medi-vac system deployed, and then from the team that
transferred her to the Stollery in Edmonton. A timeline of 47 specific health care events, from the
9:20 a.m. 911 call, to the first record of Megan at St. Thereses at 9:56 a.m., and to her arrival in
Edmonton at 12:25 p.m., is annexed as Appendix A. (My thanks to Ms. Bailey for preparing this
helpful document.)
Overall, the treatment received by Megan and seven other injured children was timely and
sufficient. Also, the first responders, the St. Therese facility, the medi-vac system and the Stollery
Childrens Hospital provided timely, appropriate and adequate response.
In this regard the letter of November 14, 2012, from Cathy Falconer, R.N. and Dr. Ioana Bratu,
MD, of the Stollery Childrens Hospital, is important. This is found at Tab 1 of Exhibit 2. Ms.
Falconer and Dr. Bratu represent the Pediatric Trauma Committee that reviews trauma cases.
They commend the Doctors, Nurses, and medi-vac teams for providing care that was, superb
and of the highest quality. You definitely put into action a plan that followed principles of trauma
care to ensure they were transported to us in a timely fashion and by using an appropriate
method
Also, Alberta Health Cares Ms. Carolyn Dumbeck prepared a report in 2013 on behalf of their
Emergency Disaster Management Team. The report assessed the response of St. Thereses
Healthcare Centre to the disaster. The staff from St. Thereses that testified, Dr. Harmse, Robin
Mudryk, Michael Bespalko, R.N. and Marlene Labrie, R.N. stated that they and the facility were
well prepared and supplied for the incident. The Dumbeck report makes some recommendations
for follow up, but the evidence establishes that the required follow up does not reflect a failure to
provide timely and sufficient treatment, nor does it expose a lack of skill or resources. Aside from
one area referred to by Ms. Sherry Wolitski, the mother of Megan, there is little that could be
improved upon.
In fact, the evidence is clear that the entire systemfirst response, healthcare centre, medi-vac
and Stollery Childrens Hospitalperformed admirably and with great skill and courage.

Specifics:
a. The initial response to the crash at the Racette School
At 9:20 a.m. Mr. Benson, seated behind the wheel of his 2000 kg minivan, had a seizure. The
vehicle accelerated to 80 km/hr, nearly caused two road accidents and crossed five streets
before it crashed through a metal fence and entered the schoolyard. It travelled a short distance

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before flying through ground level windows into the basement Grade 6 classroom occupied by 13
students and one teacher.
The first responders were on scene in one to two minutes. When they arrived they were
confronted with the scene described in photographs as set out in Exhibit 1. When the van came
to rest, it was suspended in midair by mangled desks and chairs. Amidst this wreck and under
one of its wheels was a critically injured Megan Wolitski. Also seriously injured were Maddie
Guitard and Angelina Luce.
There was silence, briefly, and then screaming and cries came from the less critically injured
children.
First on scene was Fire Chief Trevor Kotowich. The Chief was only a block away and he and his
team were dispatched in response to a 911 call from a bystander.
The scene in the schoolroom was nightmarish. After leaping down into the room, the Chief tried
to remove the minivan keys from the ignition. However, Mr. Benson, disoriented and irrational,
fought him. Blows were exchanged. An RCMP member arrived to help, but ultimately a burly
AltaGas employee was able to restrain Mr. Benson.
In spite of nearly everyone in the room being injured, and the possibility that leaking fluids from
the vehicle would ignite, The Chief and his team immediately built a platform to support the
minivan. While the rescue took place an Emergency Medical Technician, Mr. Mark Robinson,
provided immediate life support measuresto the extent possible as Megan was not only pinned
under the minivan but was also entangled in a web of metal chair and table legs. In spite of the
complexity of this scene, Fire Captain Gilles Jean and Mark Robinson testified that Megan was
extricated within approximately 10-20 minutes.
This rescue is remarkable given the technical obstacles at the scene and typifies the high quality
of the response by the professionals and volunteers in the services that participated that day.
They had all practised. They had all prepared.
It must also be noted that Chief Kotowich is the only paid member of the St. Paul Fire
Department. Captain Gilles Jean, and the other members are volunteers. Before the crash
Captain Jean was working, as he usually does, as a service technician at Zarowny motors. He
and his employer, and their willingness to serve at no cost to the community of St. Paul but at risk
to themselves, is just one example of the dedication and commitment to their town that all the
responders demonstrated that day.
b. Transport, treatment and subsequent transfer to Edmonton
In general, and in keeping with the quality of the initial response, the Ambulance staff and the
staff at St. Thereses provided timely and skilled care.
Megans injuries were grievous. She was unconscious, unresponsive to pain and had a
depressed skull fracture. Her blood pressure was low and her Glascow Coma Scale was a three,
or the lowest possible. As a result, eight minutes after the first call and well before Megan was
extracted from the school, medi-vac had already been initiated by the EMS team.
Upon her arrival at St. Thereses, the staff laboured to stabilize Megan in order that she could
survive the transfer to the Stollery where more advanced resources would be brought to bear. Dr.
Harmse remained with her while additional staff assisted the two other critically injured children.
Serious though Megans injuries were, her schoolmate Maddies injuries appeared even more

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threatening. Her heart kept stopping and she required resuscitation.

Unfortunately, it was during the time at St. Thereses that there was a lack of communication with
some of the victims parents. Ms. Sherry Wolitski pointed out that there seemed to be no specific
staff responsible for giving clear direction to parents as to the status of their children. There was
in fact staff detailed to this role, but the Wolitskis were not aware of their presence. Further, there
seemed to be a misunderstanding that parents were in fact free to attend at their childs bedside.
Fortunately, notwithstanding this confusion, Megans parents were able to spend time at her
bedside.
c. The Triage Decision and follow up at the Stollery:

It is a difficult decision in a mass casualty incident to triage patients and determine how to use
limited transportation resources. Dr. Chang, an emergency physician working at Edmontons
Royal Alexandra Hospital, and trauma team leader and medical director for STARS in Edmonton,
gave evidence, viva voce and in an email dated September 26, 2016, on this point (email
provided on September 28, 2016 by inquiry counsel to the Court).

Dr. Chang was part of the decision-making process on October 25th and testified that Maddie was
initially prioritized as third to be airlifted because she was in cardiac arrest. However, she
regained her pulse when the STARS helicopter arrived in St. Paul at 9:50 a.m.. It was decided by
Dr. Chang that her situation required the most immediate transportSTARS. As a result, the
fixed wing transport was assigned to Megan. This decision was made, as Dr. Chang explained,
because Megan was more stable than Maddie.

Regarding the communication and decision-making process surrounding this harrowing decision,
there is no evidence of any shortcoming. The evidence is clear that the communication system
and decision making process in place was appropriate, effective and adequate.

Further, the evidence also establishes that the medi-vac crews, aircraft and related teams were
timely, appropriate and adequate. The same can be said of the staff and resources at the
Stollery.

Finally, the evidence from Dr. Guerra, a pediatric physician at the pediatric ICU at the Stollery,
where Megan was ultimately treated, confirms that Megan was mortally wounded from the outset,
and although she received superior care the odds were against her survival. Her basic
hemodynamic instability and the very severe injury to her brain, combined with massive internal
injuries, proved to be overwhelming.

Dr. Guerra testified that Megans injuries were so severe that no other course of action, including
sending her by STARS, would have saved her. She was one of the sickest patients he had ever
seen. He is also an expert in transport medicine and confirms that the steps taken prior to her
arriving at the Stollery were well carried out and there were no shortcomings with the transfer.
According to Dr. Guerra, the two and one-half hours that passed from her treatment at St.
Thereses to her arrival at the Stollery is about the norm, and in any event, even if she had
arrived an hour earlier, it would have made no difference.

Megans life ended late in the morning of October 26, 2012, when her family, in consultation with
the staff at the Stollery, elected not to continue with treatment. At 11:26 a.m. she passed away
and her suffering came to an end.

However the suffering of her family continues, as it does for the families of Maddie Guitard and
Angelina Luce. Maddie never regained consciousness and survived in a vegetative state until
2016 when she passed away as a result of her injuries. Angelina sustained a serious brain injury
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and has had emotional, speech and vision problemsproblems that will likely remain for the rest
of her life. The torments sustained by the families of these victims are unimaginable.

Recommendations for the prevention of similar deaths:

Firstly, the Order of November 19, 2014 required that the recommendations for prevention of
similar deaths consider, specifically, whether physicians should be obliged by statute to report to
the Registrar of Motor Vehicles of persons who, in their opinion, are unsafe to drive.

Regarding the quality, timeliness, adequacy and appropriateness of the emergency response and
health care system, suffice to say that the initial response was impressive, and aside from some
improvements dealing with communications with victims families, no changes are required to the
emergency response and health care system in order to prevent similar deaths. The area for
improvement relating to communication was identified by Ms. Sherry Wolitski and has been the
subject of some follow up by St. Thereses. The issue of communication was also touched on in
the Dumbeck report.

Although there was staff detailed to act as liaison between staff and patient, as part of the Code
Orange plan, this aspect of the plan needed to be improved. It goes without saying that parents
and family must be advised of a child patients status, and they must be encouraged to be
present, to the extent possible, in order that they can reassure young patients. Even if the patient
is unconscious, the possibility that they are aware of the presence of a parent, cannot be ruled
out. The benefits to patient morale and ultimate wellbeing cannot be questioned. In any event,
the evidence makes clear that the follow-up taken by St. Thereses has addressed this question.

(It should be noted that the nine recommendations in the Dumbeck report do not relate to
shortcomings that caused death in this case, and therefore are relevant to steps St. Thereses
should take, but otherwise fall outside the scope of this inquiry.

Also, Ms. Wolitski stated that a follow-up meeting a few months after the incident, where she and
her husband could meet with those involved in Megans care, would have helped resolve many
questions that were only answered years later at this inquiry. This too is a reasonable request
and should be built into the medical response to these tragedies).

However, the larger question for all Albertans is whether physicians should be obliged by statute
to report to the Registrar of Motor Vehicles persons who may be unsafe to drive.
It must be noted that once a driver has been identified as potentially unfit to drive, the Registrars
response through the Driver Monitoring process described by Ms. Duiker is adequate to prevent
future risk of death. The materials that are available to healthcare decision makers, the Canadian
Council of Motor Transport Administrators (CCMTA) and CMA guidelines, are also adequate.

Rather, the problem that caused the deaths in this case arises from the lack of initial reporting
from the health care community. Health care workers, because they deal with persons suffering
health problems, are also likely to be the first to deal with drivers whose health problems make
them unfit. For the public in Alberta, they are the front lineand in this case they failed to hold.

The defences must be improved in order to prevent future deaths.

The obvious first measure is to recommend mandatory reporting by physicians of unfit drivers.
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Although Dr. Mittelsteadt gave evidence on the issue, the question was more broadly canvassed
in the evidence of Gerontologist Dr. Bonnie Dobbs, Ph. D.

From the outset, the evidence of Dr. Mittelsteadt and Dobbs make clear that consideration of
mandatory reporting necessarily triggers the question of what diagnostic tool will be used to make
the decision of who is, and isnt, fit to drive.

In short, there is no point in enacting a mandatory reporting requirement if physicians cant figure
out who to report.

a. Expert evidence regarding mandatory reporting and screening tools to identify

unfit drivers

The Court was fortunate to have Dr. Dobbs give expert opinion evidence on these questions. Her
curriculum vitae encompasses 86 pages, and is an impressive example of genuine expertise.
However, expertise is not enough to qualify an expert to give opinion evidence. The law requires
a Court to adopt, as mandated by the Supreme Court of Canada in the case of White Burgess
Langille Inman v. Abbott and Haliburton Co., at 2015 SCC 23, [2015] 2 S.C.R. 182, a more
extensive role as gatekeeper of evidence.

Briefly, the court ruled that in addition to the classical factors set out in R. v. Mohan, [1994] 2
S.C.R. 9 (relevance, necessity, absence of an exclusionary rule and a properly qualified expert),
there is an additional requirementthat the evidence is of sufficient value to warrant its
admission. Or, in other words, even if it meets the Mohan tests, does admitting the evidence
meet a cost/benefit analysis?

A Gerontologist makes a study of the process of aging, and Dr. Dobbs has focussed on the
subject of aging and its effect on fitness to drive. An overview of her experience since the late
1990s reveals that her expertise has been gained during appointments as a University Professor,
as a member of expert panels, as an expert witness, a member of traffic safety committees, and
as a conference participant on traffic safety. In addition, she has written books, book chapters,
and has written scores of journal articles. She has also given numerous presentations, all on the
subject relevant to this inquirys mandate.

Also, keeping in mind the ultimate destination for the inquirys report, it is important to note that
Dr. Dobbs has worked for various departments of motor vehicles in North American and related
committees, in developing fitness to drive guidelines and screening tools. She has considerable
familiarity with the effectiveness of mandatory reporting in jurisdictions that require it.

The evidence given by Dr. Dobbs during the voir dire into this issue was overwhelmingly positive.
Her original research, in addition to her many years of study of this specific question, and her
background as a gerontologist, makes her evidence not only beneficial, but essential to this
inquiry. In total, Dr. Dobbs experience permits her to testify directly to the question of driver
fitnessits assessment by health care workersand subsequent reporting to motor vehicle
ministries.

b. Recommendations to reduce future deathsthe SIMARD tool

During the course of her research, she has identified drivers aged 65 or over as a population at
high risk for motor vehicle crashes: With increasing age, impairing medical conditions become
more prominent as causes of crashes. (page 946 of tab 2 of Exhibit 2) The magnitude of this
groups risk is similar to that of drivers aged 16-24.

Of course, many persons over the 65 group are healthy and safe drivers. However, many are not
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and Dr. Dobbs has found that, Drivers with declines in cognitive abilities due to illnesses such as
dementia, diabetes, coronary artery disease, congestive heart failure, and chronic renal failure
are at risk for declines in driving performance. (also at page 946).

Age related conditions are not the only ones that effect driver fitness. Mr. Bensons disastrously
poor judgement and lack of insight into his fitness to drive created a situation similar to the one
posed by age related cognitive impairment. Cognitive impairment describes the lack of insight
and understanding someone has regarding their situation. This typified Mr. Bensons situation
and demonstrates that cognitive impairment may result from many causes.

Therefore, it is important not to demonize any particular health problem or age group, but to look
at driver fitness from the point of view of actual ability. Examining cognitive impairment and
screening tools that assess this are, according to Dr. Dobbs, a particularly useful way of
determining driver fitness.

She maintains that the Screen for the Identification of cognitively impaired Medically At Risk
Drivers (SIMARD) is a such a test. It has been designed to be easy for health care practitioners
to use and is an accurate predictor of driving fitness (Exhibit 2, tabs 2 and 3). These
characteristics make this tool valuable in preventing future deaths because the use of the tool not
only identifies drivers at risk, but its use addresses some of the underlying reasons why
physicians are not reporting when they should.

Firstly, the evidence the inquiry heard made it obvious that physicians are unwilling to report unfit
patients. Two factors are likely at play, and others certainly are. Likely, there is a lack of
awareness of this ethical requirement. Also, its likely that in the midst of a patients health crises
the physician will focus on the patients immediate needs, and may neglect to address the
question of fitness to drive. A statutory requirement and enforcement follow up may address
these shortfalls.

However, it is certain that doctors are reluctant because reporting may jeopardize the
doctor/patient relationship. Also, Dr. Mittelsteadt stated that physicians may find the very question
itselfwho is fit to drive?difficult to assess. The SIMARD test will help in that it is easy to apply
and accurately predicts driving fitness. According to Dr. Dobbs, this will, serve to increase
physician confidence in addressing the driving issue. (Exhibit 2, tab 2, page 951).

In other words, it requires little effort and simplifies what was previously a hard question. Anyone
will agree that its easier to raise a hard question with someone if you are certain youre right, and
that the recipients safety may be at risk if no action is taken.

In total, the use of the SIMARD makes the question of fitness to drive the same as any other
medical issue. To answer health questions, physicians use reliable tests and advise their patients
of the resultsfor better or worse.

In short, if physicians knew of a reliable test that would identify a dangerous condition, and they
were properly compensated for doing the work, why wouldnt they use the test and follow up on
the result?

From a health system perspective, the modest cost of doing the SIMARD ($25 in 2010) is a small
price to pay. It is heartbreaking to consider that $25 invested in a SIMARD assessment for Mr.
Benson could have prevented the enormous loss of life and expenditure of resources in this
case.

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c. Backup reporting measures required

However, the responsibility for reporting should not be borne by physicians alone: that would be
unfair and unrealistic. Physicians and other health care workers have much to do and little time to
do it. Even statutory reporting requirements will not always be followed. Therefore, there should
be backup systems to identify unfit drivers.

Dr. Dobbs confirms that Pharmacists and the Netcare system can be employed to flag drivers
that are unfit. The Netcare system is a health care information sharing system that permits health
care workers in different locations access to a clients medical file. For example, Pharmacists use
Netcare to determine what drugs a patient is taking and thereby avoid prescribing drugs that may
have a dangerous interaction.

However, this far-reaching system can also be used to identify persons who may be unfit to drive.
For example, Netcare could be programmed to send the Registrar reports when prescriptions are
written for dementia treatment and anti-seizure medicines. This type of reporting can be made
automatic and a function of the software used to support Netcare. These reports can be cross-
referenced by the Registrar against motor vehicle records to determine if there is an unreported
driver at risk.

In fact, when presented with this possible use of Netcare, Ms. Duiker confirmed that she had
considered this process in order to identify unfit drivers, but her inquiries were met with intense
bureaucratic opposition.

This resistance is irrational and dangerous.

Drivers in Alberta must, according to provisions of the TSA, disclose to the Registrar any medical
information that affects fitness to drive. Between the Registrar and drivers, there is no right to
privacy of this information.

I repeat: none.

It has been long established by the Supreme Court of Canada that driving is a privilege and not a
right. Any privilege that involves public safety must be regulated in order to ensure that the
privilege is exercised safely: the sharing of relevant medical information is necessary in this
regard.

Furthermore, any belief that privacy legislation makes the sharing of this information illegal is
wrong. The Alberta Health Information Act provides:

37.3(1) A custodian may disclose individually identifying health information

referred to in subsection (2) without the consent of the individual who is the
subject of the information to a police service or the Minister of Justice and
Solicitor General where the custodian reasonably believes

(a) that the information relates to the possible commission of an offence under a
statute or regulation of Alberta or Canada, and

(b) that the disclosure will protect the health and safety of Albertans.

Anyone taking the time to read the provision will not be confused. A patient who is non-compliant
with taking anti-seizure medications, and is insisting on driving, clearly fits within this provision.

However, if there is any doubt then the release of information should be dealt with by specific
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legislation that gives information sharing regarding driver fitness an explicit priority over all
privacy legislation.

d. Additional provisions necessary for effective mandatory reporting

Will a change to the TSA to make reporting mandatory make any difference?

Based on Dr. Dobbs knowledge, reading of the relevant literature, and based on a review of
jurisdictions that require reporting, she is strongly in favour of mandatory reporting. She states
that physicians who report unfit patients in mandatory reporting jurisdictions contribute to a
reduction in harm.

But changing the law, by itself, is not enough.

By example, she relates her analysis of the situation in Ontario where mandatory reporting was
introduced in 1968. At first, there was a low rate of compliance until financial reimbursement was
provided to physicians for completing the assessment and report. Thereafter the rate of
compliance was much increased.

In general, she has found the same patterns, regarding increased reporting and reduced injury, in
other North American jurisdictions.

There is agreement too between Drs. Dobbs and Mittelsteadt that mandatory reporting will also
require a supporting infrastructure. The AMA report lists several necessary features that are set
out in the March 2004 report and reiterated by Dr. Mittelsteadt, and to some extent Dr. Dobbs.
These recommendations should be adopted and used in the creation of the mandatory reporting
regime, and the system designed to support it.

Required will be adequate reporting infrastructure that includes:

1. education for physicians and the public

2. assessment tools like the SIMARD

3. driver assessment centres and road testing facilities

4. support for persons who are delicenced

5. an appeal process.

This court also recommends adopting, as mentioned in the report, the following in order for the
system to operate:

1. clear criteria for reporting and the identification of which diagnoses will trigger a report

2. adequate resourcing of system needs

3. legal liability and privacy protections for health care workers and others who report

4. knowledge of patients driving status

5. a comprehensive road safety strategy.

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Of course, ordinary citizens, family and friends of unfit drivers should be encouraged to report.
Police too should be made aware of the need to. Dr. Dobbs mentioned a program employed by
the state of Virginia in 2007 where police were used to identify medically impaired drivers. In this
program police identified many problem drivers that the Registrar would otherwise never have
seen.

There should be a simple, online available form for physicians to use, and they should be
properly compensated for performing the assessment and report.

Of course, education and remuneration are important factors in improving overall health care
industry and community reporting as well. The awareness campaigns used to increase
awareness for a number of conditions, like breast and prostate cancers, and high blood pressure,
can be adopted to improve the use of tests like the SIMARD.

Also, education for the publicinformation in Doctors offices and onlineshould be available.

In addition, the Ministry responsible for highways should track and identify accidents caused by
cognitive impairment. Post-accident follow up with non-compliant patients and physicians should
involve education and future monitoring.

This policy will have a preventative effect: patients and physicians, who know that a failure to
report will have consequences, are more likely to comply in the first place. Physicians and other
professionals who have a duty to report may also be subject to professional governing body
discipline for failing to report.

The cost of relying on the current system of reporting has been high. Discretionary reporting in
this case amounted to no reporting.

It is impossible, because the Registrar cannot link accidents to medical conditions, to precisely
determine the total costs of the status quo. However, the heart-rending cost paid on October 25,
2012 by several innocent children in St. Paul is cause enough to implement changes that will
create a series of defences against future tragedies.

DATED December 9, 2016 ,

K. R. WIlberg
at Edmonton , Alberta.
K. R. Wilberg
A Judge of the Provincial Court of Alberta

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