Russell W. Browne

The appellant, who was detained under an Ontario Review Board order following a finding of not criminally responsible for arson, appealed a Consent and Capacity Board decision confirming his incapacity to consent to treatment with antipsychotic medication.

The appellant argued the Board erred in law and made palpable and overriding errors of fact in applying the test for capacity under s. 4(1) of the Health Care Consent Act.

The Superior Court of Justice found no errors in the Board's application of the law or its assessment of the evidence, including its credibility findings, and dismissed the appeal.

The appellant appealed a decision of the Consent and Capacity Board confirming his treating physician's finding that he was incapable of consenting to treatment for schizoaffective disorder.

The appellant argued the Board's decision was unreasonable and raised procedural fairness issues regarding the hearing.

The Superior Court of Justice dismissed the appeal, finding that the Board reasonably concluded the appellant was unable to recognize the manifestations of his illness and could not apply relevant information to his own circumstances to weigh the risks and benefits of treatment.

The appellant physician appealed a Superior Court order that set aside a Consent and Capacity Board decision finding the respondent incapable of consenting to medical treatment.

The Superior Court had ordered a new hearing because the respondent's current attending physician did not testify before the Board.

The Court of Appeal allowed the appeal, holding that the appeal judge erred by deciding the case on a procedural fairness issue raised for the first time on appeal.

The Court of Appeal further found that the Board's original decision was reasonable and supported by the record, and restored the Board's finding of incapacity.