DATE: 20050404

DOCKET: C42326

COURT OF APPEAL FOR ONTARIO

RE:

JIKAI CHEN (Appellant) – and – DR. JAMES HILLEN (Respondent)

BEFORE:

LASKIN, CRONK and GILLESE JJ.A.

COUNSEL:

Brian A. Callender

for the appellant

James Thomson

for the respondent

HEARD & RELEASED ORALLY:

March 31, 2005

On appeal from the decision of Justice C. Robertson of the Superior Court of Justice dated March 12, 2004.

E N D O R S E M E N T

[1] The appellant appeals the decision of Robertson J. of the Superior Court of Justice dated March 12, 2004 confirming the decision of the Consent and Capacity Board (the “Board”) that the appellant is not capable within the meaning of s. 4(1) of the Health Care Consent Act (the “Act”) with respect to the treatment of a mental disorder, including the use of neuroleptics.

[2] We conclude that the appeal must be dismissed.

[3] On behalf of the appellant, it is argued that the Board misapprehended the evidence concerning the appellant’s ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment. We disagree.

[4] There was direct evidence from the respondent Dr. Hillen, based on his interactions with the appellant, that the appellant does not accept or believe that he suffers from schizophrenia, that he denies this diagnosis and that he has any mental health problems, that he lacks insight into the nature of his illness and, importantly, that he does not understand the impact on his medical condition and mental health of a continued refusal of treatment.

[5] In addition, in our view, the appellant’s own testimony before the Board is confirmatory of Dr. Hillen’s evidence on these issues. On the facts of this case, the Board was entitled to conclude that the appellant’s acknowledgement that he would continue to be hospitalized did not constitute appreciation of the reasonably foreseeable consequences of a denial of treatment.

[6] We also do not agree that the Board erred in its application of s. 4(1) of the Act. The Board expressly recognized the prerequisites to a determination of capacity under that section and the presumption of capacity set out under s. 4(2). We agree with the appeal judge that the Board made no error in this regard.

[7] In these circumstances, the Board did not err in concluding that the appellant lacked capacity with respect to treatment and its decision is not unreasonable. To the contrary, it is amply supported by the evidence in this case.

[8] Accordingly, the appeal is dismissed. This is not an appropriate case for an award of costs.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”