Mark Handelman

Mirza Baig appealed a Consent and Capacity Board decision upholding his involuntary patient status and incapacity to consent to antipsychotic treatment.

The court examined whether the Board erred in finding the statutory requirements for involuntary status under the Mental Health Act were met and if there was sufficient evidence for incapacity.

The court affirmed that "serious bodily harm" includes psychological harm and found corroborating evidence for the risk of harm to others.

It also upheld the Board's finding of incapacity, noting that the patient's delusional beliefs prevented him from appreciating treatment consequences, despite arguments regarding substance-induced psychosis.

This application concerned the legal definition of death and the withdrawal of life support for Shalom Ouanounou, a devout Orthodox Jew, who was declared brain dead but whose family believed he was alive under Jewish law.

The applicant sought an injunction to prevent the withdrawal of life support, rescission of the initial death certificate, and a declaration that the Consent and Capacity Board had jurisdiction over such disputes.

Following Ouanounou's natural death, the court considered whether the application was moot.

Citing a recent decision in *McKitty v. Hayani*, which addressed similar issues, the court found the application moot as there was no longer a live controversy and declined to exercise its discretion to hear the academic issues.

The appellant appealed a decision of the Consent and Capacity Board confirming she was incapable of consenting to treatment with antipsychotic medications.

The appellant argued there was insufficient corroboration of the physician's evidence, an insufficient examination, and a failure to inform her of treatment consequences.

The Superior Court of Justice dismissed the appeal, finding the Board reasonably concluded the appellant's own testimony and medical records corroborated the physician's diagnosis.

The court also held that the appellant's refusal to allow the physician to explain the treatment risks did not invalidate the finding of incapacity.

The appellant appealed decisions of the Consent and Capacity Board confirming a physician's finding of incapacity to consent to treatment and confirming the renewal of a community treatment order.

The appellant argued the order was procedurally invalid because not all parties signed the treatment plan within 72 hours of the physician's examination.

The court held that the Mental Health Act does not require other participants to execute the plan within 72 hours of the physician's examination.

The court also found the Board's decisions regarding the appellant's incapacity and the likelihood of substantial mental deterioration were reasonable.

The appeals were dismissed.

In a child protection proceeding involving a medically fragile infant hospitalized with severe cardiac complications, the Society sought authority over medical decision‑making after concerns arose about the mother’s refusal to consent to a potential do‑not‑resuscitate order.

The court held the matter should be determined de novo and that the Society bore the burden of showing why the parent should be deprived of decision‑making authority.

Evidence demonstrated the mother had consistently engaged with medical professionals and appropriately consented to prior treatments.

Applying the principle of least intrusive intervention under the Child and Family Services Act, the court concluded there was no basis to remove the mother’s authority.

The court therefore vested medical decision‑making authority in the mother pursuant to s.62 while the child remained in temporary Society care.

This is a child protection matter under Part III of the Child and Family Services Act concerning a medically fragile 13-month-old child with significant cardiac defects.

The Society sought authority to make medical decisions for the child, including potential do-not-resuscitate orders.

The mother sought to retain authority to consent to medical treatment.

The court found that the mother had consistently demonstrated sound judgment in making medical decisions for the child throughout her hospitalization and post-discharge care.

The court granted the mother authority to consent to and authorize any medical treatment for the child, finding that absent compelling evidence of parental incapacity, the least intrusive intervention consistent with the child's best interests is to preserve parental decision-making authority, particularly regarding critical medical decisions such as do-not-resuscitate orders.

The appellant, Z. (Z.), appealed two decisions of the Consent and Capacity Board: one confirming treatment incapacity for anti-psychotic and side-effect medications, and another dismissing a preliminary motion to void the incapacity finding due to alleged unlawful detention under the Mental Health Act.

The court rejected the "fruit of the poisonous tree" argument, affirming that breaches of the Mental Health Act's detention requirements do not automatically void capacity findings made under the Health Care Consent Act.

The court upheld the Board's finding of incapacity for anti-psychotic medications, finding it reasonable.

However, the court found the Board's decision regarding incapacity for side-effect medications unreasonable due to a lack of evidence that such treatment was proposed or discussed with the patient.

The appeal was allowed in part, setting aside the finding of incapacity for side-effect medications, while upholding the finding for anti-psychotic medications and the dismissal of the preliminary motion.

The appellant, J.S., appealed two decisions of the Consent and Capacity Board: one confirming a Community Treatment Order (CTO) dated November 11, 2015, and another confirming her lack of capacity to consent to treatment prescribed under her Community Treatment Plan.

The Superior Court reviewed the Board's findings on the validity of the CTO, the reasonableness of its confirmation, and the finding of incapacity.

The court dismissed both appeals, upholding the Board's decisions, finding that a technical error on the CTO form was not fatal, the Board reasonably concluded that without the CTO, the appellant was likely to suffer substantial mental deterioration, and the finding of incapacity was reasonable given the appellant's inability to appreciate her mental illness due to the disorder itself.

The appellant appealed a decision of the Consent and Capacity Board finding her incapable of making decisions regarding admission to a care facility.

She argued the Board erred in law and fact, including by allegedly applying a best interests test rather than the statutory capacity test.

The court reviewed the Board’s decision under a reasonableness standard and applied the governing principles from the Supreme Court of Canada regarding capacity to consent.

The court found the Board properly articulated and applied the legal test and that its conclusion that the appellant lacked the ability to appreciate the reasonably foreseeable consequences of leaving the care facility was supported by the evidence.

The appeal was dismissed.

The Attorney General of Ontario brought a motion to clarify the court's previous decision regarding a child with leukemia whose parents sought to pursue traditional Haudenosaunee medicine alongside or instead of chemotherapy.

The court had previously found that the mother's constitutionally protected right under section 35 of the Constitution to pursue traditional medicine meant the child was not in need of protection.

The Attorney General, rather than appealing, engaged in dialogue with all parties, resulting in a joint submission.

The court clarified its decision by adding paragraphs confirming that while the aboriginal right to traditional medicine must be respected, the best interests of the child remain paramount, and that the family could pursue both traditional and Western medicine collaboratively.

An 11-year-old First Nations child from Six Nations of the Grand River was diagnosed with acute lymphoblastic leukemia with a 90-95% cure rate with chemotherapy.

The child's mother withdrew consent for chemotherapy to pursue traditional medicine consistent with their longhouse beliefs.

The hospital applied under section 40(4) of the Child and Family Services Act seeking a protection order.

The court dismissed the application, finding that the mother's decision to pursue traditional medicine constituted an exercise of an aboriginal right protected under section 35(1) of the Constitution Act, 1982.

The court held that the child could not be found in need of protection when the substitute decision-maker exercised a constitutionally protected right.

The appellant appealed the dismissal of an application for interim relief regarding end-of-life decisions for a patient.

The appellant sought to suspend a no-CPR order, arguing that consent was required to withdraw treatment.

The Court of Appeal dismissed the appeal, finding that the existing treatment plan gave the physician discretion regarding CPR components, and the contested order was not a withdrawal of treatment but a refusal to impose treatment that offered no medical benefit and would only inflict harm.

The appellants appealed a decision of the Consent and Capacity Board directing the respondent physician to withdraw life-sustaining treatment from their mother, who was in a persistent vegetative state.

The Board had found that the mother's Power of Attorney for Personal Care contained a clear prior capable wish to refuse artificial or heroic measures.

The Superior Court of Justice allowed the appeal, finding that the Board's decision was unreasonable.

The Court held that compelling extrinsic evidence, including the mother's devout Orthodox Jewish beliefs and the drafting lawyer's general practice, rebutted the presumption that she knew and approved of the end-of-life clause in the document.

The appellant appealed a Superior Court decision upholding two decisions of the Consent and Capacity Board, which found him incapable of refusing psychiatric and nourishment treatment.

The appellant argued the Board applied the wrong legal test or was unreasonable in its conclusion.

The Court of Appeal dismissed the appeal, finding that the Board correctly applied the test from Starson v. Swayze and that there was ample evidence to support the finding that the appellant's delusion rendered him unable to appreciate the consequences of his decision.