Giecewicz v. Hastings, 2007 ONCA 890

SCJJan 22, 2024

The court dismissed the appeal, upholding the Consent and Capacity Board's finding that the appellant was incapable of managing property due to delusional beliefs.

F.L. appealed a Consent and Capacity Board decision that upheld a Certificate of Incapacity, finding him incapable of managing his property.

The appeal raised issues of procedural fairness due to the joinder of the Public Guardian and Trustee (PGT) and alleged errors in law regarding the onus of proof and the application of the incapacity test.

The court dismissed the appeal, distinguishing the procedural fairness arguments from a prior case (P.P. v. Oliver) and affirming that the Board correctly applied the legal tests for incapacity, including the appreciation component, and did not improperly shift the burden of proof.

F.L. v. Oliver, 2024 ONSC 478

SCJSep 22, 2023

Appeal from Consent and Capacity Board dismissed; patient lacked capacity to consent to antipsychotic medication.

The appellant, an involuntary psychiatric patient diagnosed with a schizophrenic disorder, appealed a decision of the Consent and Capacity Board confirming he lacked capacity to consent to treatment with antipsychotic medication.

The appellant argued he was not provided adequate information about the treatment and that the Board failed to recognize his capacity fluctuated.

The Superior Court of Justice dismissed the appeal, finding the Board made no palpable and overriding error.

The evidence supported the Board's conclusion that the appellant's inability to recognize his illness prevented him from appreciating the reasonably foreseeable consequences of the proposed treatment.

A.N v. Dr. Dominic Dimanno, 2023 ONSC 5704

SCJSep 21, 2023

The court dismissed the appeal, upholding the Consent and Capacity Board's finding that the appellant lacked capacity to consent to treatment.

A.K. appealed a decision of the Consent and Capacity Board (CCB) that found him incapable of consenting to treatment for schizophrenia.

The appeal focused on whether A.K. could appreciate the reasonably foreseeable consequences of taking or refusing treatment, as per the second prong of the capacity test under the Health Care Consent Act.

The court reviewed the CCB's findings for palpable and overriding error, considering A.K.'s denial of symptoms and his understanding of medication benefits.

The court dismissed the appeal, finding no palpable and overriding error in the CCB's conclusion that A.K. was unable to appreciate the manifestations of his illness and the consequences of treatment.

A.K v. Dr. Justin Weissglas, 2023 ONSC 5703

SCJAug 16, 2023

The court upheld the finding that the appellant lacked capacity to refuse antipsychotic medication.

This is a partial appeal from a decision of the Consent and Capacity Board, which confirmed the Appellant's incapacity regarding treatment with antipsychotic medications, while revoking his involuntary detention certificate.

The Appellant, representing himself, appealed the incapacity finding, alleging violations of his rights and attributing his issues to his ex-wife and a conspiracy.

The court applied the appellate standard of review, finding no palpable and overriding error in the Board's decision.

The court affirmed that the Appellant's delusional beliefs prevented him from appreciating the reasonably foreseeable consequences of treatment or no treatment, as per the Health Care Consent Act, 1996, and relevant case law.

The appeal was dismissed.

Marcano v. Tugg, 2023 ONSC 4687

SCJMay 12, 2023

The court dismissed an appeal from the Consent and Capacity Board as moot after admitting fresh evidence that the appellant had regained capacity.

This appeal concerned a decision by the Consent and Capacity Board (the "Board") confirming the appellant's incapacity to consent to treatment.

Subsequent to the Board's decision, the appellant regained capacity, leading both parties to seek to admit new evidence.

The court admitted the new evidence but ultimately dismissed the appeal, finding it moot as the live controversy regarding the appellant's capacity had disappeared.

In the alternative, the court found no palpable and overriding error in the Board's original decision, which had correctly applied the legal test for capacity under the Health Care Consent Act, 1996.

Adsett v Labelle, 2023 ONSC 2842

SCJJun 6, 2022

Referral alone did not satisfy statutory consultation for a community treatment order.

On an appeal from a Consent and Capacity Board decision, the court upheld the Board’s finding that the appellant was incapable of consenting to a community treatment plan under s. 4(1) of the Health Care Consent Act, 1996.

The court also upheld the Board’s conclusion that certain plan terms were not impermissibly vague or overbroad and that the statutory deterioration criterion under the Mental Health Act was met.

However, the court held that the Board erred in law in finding that the physician had complied with the consultation requirement in s. 33.1(4)(d) of the Mental Health Act, because a written referral to a community agency without any response or agreement before issuance of the order did not amount to consultation.

The appeal was therefore allowed in part and the community treatment order was set aside, with no costs.

R.J. v. Dr. Regina Liu, 2022 ONSC 3386

SCJAug 26, 2021

Appeal from Consent and Capacity Board dismissed; capacity to consent to a Community Treatment Plan includes appreciating its therapeutic aspects.

The appellant appealed a decision of the Consent and Capacity Board upholding a finding that he was incapable of consenting to a Community Treatment Plan and confirming a Community Treatment Order.

The appellant argued that his capacity to consent to the plan should be assessed based only on his understanding of its administrative consequences, separate from his incapacity to consent to antipsychotic medication.

He also argued that the likelihood of substantial mental deterioration required for an order must occur within its six-month lifespan.

The Superior Court dismissed the appeal, holding that the therapeutic aspects of a plan cannot be ignored in the capacity test, and that the legislation does not require a precise temporality of within six months for the likelihood of mental deterioration.

KM v. Agrawal, 2021 ONSC 5748

SCJAug 16, 2021

Appeal from Consent and Capacity Board dismissed; finding of incapacity to consent to treatment upheld.

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

The appellant, supported by amicus curiae, argued the initial capacity assessment was inadequate and that she was denied procedural fairness.

The Superior Court of Justice found no palpable and overriding error in the Board's conclusion that the appellant could not recognize she was affected by manifestations of a mental condition and was therefore unable to appreciate the consequences of treatment decisions.

The appeal was dismissed.

S.W. v. Weissglas, 2021 ONSC 5560

OCAFeb 3, 2021

Immigration Appeal dismissed

This is an appeal to the Court of Appeal for Ontario concerning a patient's capacity to consent to psychiatric treatment.

The appellant, diagnosed with schizophrenia, was found incapable by the Consent and Capacity Board of consenting or refusing antipsychotic medication, a decision upheld by the Superior Court.

The core issue was whether the appellant could appreciate the reasonably foreseeable consequences of his treatment decision, particularly in light of his delusional beliefs about environmental factors affecting his health.

The Court of Appeal affirmed that the Board correctly applied the two-branch capacity test under the Health Care Consent Act, 1996, as interpreted by the Supreme Court in Starson v. Swayze, which requires a patient to recognize how their mental condition's manifestations affect them.

The Court found no error in the Board's factual findings or its application of the legal standard, concluding that the appellant's decision was dictated by his delusions, preventing a rational appreciation of treatment benefits.

The appeal was dismissed.

B.L. v. Pytyck, 2021 ONCA 67

SCJJun 16, 2020

The court dismissed the appeal, affirming the appellant lacked capacity to consent to medication.

The Appellant appealed a decision of the Consent and Capacity Board which found him incapable of consenting or refusing to consent to antipsychotic medication.

The central issue was the second branch of the capacity test under the Health Care Consent Act, specifically whether the Appellant could "appreciate the reasonably foreseeable consequences" of his decision, given his delusional beliefs about environmental afflictions and the effects of medication.

The court dismissed the appeal, affirming that capacity requires an objectively reasonable appreciation of risks and benefits, not one rooted in delusions, even for an intellectually capable individual.

B.L. v. Pytyck, 2020 ONSC 3766

SCJJul 18, 2018

The court allowed the appeal, finding the patient capable of refusing psychiatric treatment despite disagreeing with his diagnosis.

The appellant, Timothy Keizer, appealed a decision by the Consent and Capacity Board (CCB) that found him incapable of consenting to psychiatric treatment.

The CCB had upheld Dr. Nagari's finding that Mr. Keizer suffered from delusional disorder and was incapable of applying treatment information to his circumstances due to his failure to recognize his illness.

The Superior Court of Justice allowed the appeal, finding that the Board's conclusion that Mr. Keizer suffered from a delusional disorder at the time of the hearing was unreasonable and unsupported by evidence.

The court emphasized that a patient's disagreement with a diagnosis does not automatically equate to incapacity, especially when the patient recognizes the manifestations of their condition and their refusal of treatment is based on past experience and a differing medical opinion, rather than a delusion.

The court also determined the appeal was not moot, given the potential impact on future substitute decision-maker decisions.

Keizer v. Nagari, 2018 ONSC 4424

distinguished

SCJMar 9, 2018

Appeal from Consent and Capacity Board dismissed; finding of incapacity to consent to treatment upheld.

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.

D.P. v. Pittman, 2018 ONSC 1577

SCJMar 5, 2018

Appeal from Consent and Capacity Board dismissed; finding of incapacity to consent to treatment upheld.

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.

Snell v. Head, 2018 ONSC 1516

SCJSep 29, 2017

Appeal from Consent and Capacity Board dismissed; community treatment order procedurally valid and substantively reasonable.

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.

J.S. v. Dr. Suzanne Legault, 2017 ONSC 5809

SCJFeb 9, 2017

Finding of incapacity set aside where physician failed to prove treatment consequences were explained to patient.

The appellant appealed a decision of the Consent and Capacity Board confirming his attending physician's finding that he lacked capacity to consent to psychiatric treatment.

The appellant argued procedural unfairness and that the finding of incapacity was unreasonable.

The Superior Court of Justice found no procedural unfairness but concluded the Board's decision on capacity was unreasonable.

The court noted a lack of evidence that the physician had actually explained the proposed treatment, its consequences, or alternatives to the appellant, which is a prerequisite to finding an inability to appreciate reasonably foreseeable consequences.

The appeal was allowed and a new hearing ordered.

Bufalino v. Shukla, 2017 ONSC 987

SCJJan 16, 2017

The court upheld the Consent and Capacity Board's finding that the appellant lacked capacity to refuse antipsychotic medication due to his inability to appreciate the consequences of his decision.

The appellant appealed a decision of the Consent and Capacity Board that confirmed his incapacity to consent to treatment with antipsychotic medications.

The Board found that while the appellant understood relevant information, he was unable to appreciate the reasonably foreseeable consequences of his decision or lack thereof, primarily due to his denial of his psychiatric illness.

The Superior Court of Justice dismissed the appeal, finding no procedural unfairness in the Board's electronic hearing, no misconstruction of the statutory test for capacity under the Health Care Consent Act, 1996, and that the Board's decision was reasonable and supported by evidence.

T.C. v Hastings, 2017 ONSC 374

SCJApr 7, 2016

Appeal from Consent and Capacity Board dismissed; involuntary admission and incapacity to consent to treatment upheld.

The appellant, an involuntary psychiatric patient diagnosed with schizophrenia, appealed decisions of the Consent and Capacity Board confirming her involuntary admission and finding her incapable of consenting to treatment with antipsychotic medications.

The Superior Court of Justice reviewed the Board's decisions on a standard of reasonableness.

The court found that the Board reasonably concluded the appellant met the criteria for involuntary admission under the Mental Health Act due to the risk of serious bodily harm to her mother.

The court also upheld the Board's finding that the appellant lacked the capacity to consent to treatment under the Health Care Consent Act, as her delusions prevented her from appreciating the reasonably foreseeable consequences of her treatment decisions.

The appeal was dismissed.

RJ v. Zalan, 2016 ONSC 2337

OCAFeb 25, 2016

Appeal dismissed; Board's finding of incapacity to consent to psychiatric treatment was reasonable.

The appellant, diagnosed with paranoid schizophrenia, appealed a decision confirming her incapacity to consent to treatment and her involuntary status.

The Consent and Capacity Board found she lacked insight into her condition and could not appreciate the reasonably foreseeable consequences of refusing antipsychotic medication.

The Superior Court upheld the Board's decision.

On further appeal, the Court of Appeal found the Board's decision was reasonable and supported by the evidence, dismissing the appeal.

M.M. v. de Souza, 2016 ONCA 155

SCJNov 20, 2015

Appeal dismissed; Board reasonably confirmed community treatment order and incapacity finding.

The appellant appealed a decision of the Consent and Capacity Board confirming a Community Treatment Order and a finding that the appellant lacked capacity to consent to treatment.

The appellant argued that the Board erred by failing to ensure the risks and benefits of treatment were explained, relying on uncorroborated medical opinion, improperly obtaining substitute consent before a capacity assessment, and failing to establish the feasibility of the community treatment plan.

The court applied correctness review for legal issues and reasonableness for factual and mixed findings.

It held that the Board reasonably concluded the appellant lacked capacity given evidence that he did not recognize his mental disorder and could not apply relevant information to his circumstances.

The court also found adequate corroborative evidence and rejected procedural objections regarding the sequence of capacity assessment and substitute consent.

The appeal was dismissed.

P.R. v. Dr. Suzanne Legault, 2015 ONSC 7716

SCJOct 23, 2015

Capacity finding upheld; Board reasonably concluded patient could not appreciate consequences.

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.

Brown v. Moser, 2015 ONSC 6405

ODCAug 18, 2015

Appeal from Consent and Capacity Board dismissed; finding of incapacity to consent to treatment upheld.

The appellant appealed a decision of the Consent and Capacity Board finding him incapable of consenting to treatment with antipsychotic medications and mood stabilizers.

The appellant argued there was insufficient evidence to uphold the finding and that his procedural fairness rights were infringed when he represented himself at the hearing.

The Divisional Court dismissed the appeal, finding that the appellant's own testimony corroborated the treating physician's evidence that he did not believe he had a mental illness, rendering him incapable of consenting to treatment.

The Court also found that the Board properly followed its policy guidelines for unrepresented litigants and safeguarded the appellant's procedural fairness rights.

Stephen Parsons v. Dr. B. Komer, 2015 ONSC 5202

SCJMar 10, 2015

Board incapacity finding upheld on appeal.

On an appeal from the Consent and Capacity Board, the appellant challenged findings that he was incapable of consenting to psychiatric treatment and that his involuntary status should be confirmed.

Applying the reasonableness standard to factual and mixed fact-law issues and correctness to pure questions of law, the court held the Board properly applied the capacity test under s. 4 of the Health Care Consent Act, 1996 as explained in Starson.

The Board reasonably concluded that, although the appellant understood treatment information, his psychotic illness prevented him from appreciating the consequences of refusal.

The court also upheld the finding that the substitute decision maker provided informed consent and that the appellant was likely to deteriorate without treatment.

Duarte v. Legault et al., 2015 ONSC 1179

SCJFeb 26, 2015

Capacity appeal dismissed; Board’s finding of incapacity was reasonable.

The appellant appealed a Consent and Capacity Board decision confirming incapacity to consent to treatment for schizophrenia under a community treatment plan.

The court refused to admit proposed fresh evidence, holding that the pregnancy-related testing and competing psychiatric letter failed the Palmer criteria for relevance, credibility, due diligence, and likely effect on the result.

Applying a reasonableness standard to the Board’s application of the statutory capacity test, the court held that the Board properly relied on corroborated evidence, including hearsay, and reasonably found that the appellant could understand treatment information but could not appreciate the reasonably foreseeable consequences of refusing treatment.

The court also held that revocation of the community treatment order did not extinguish the community treatment plan.

Christoforou v. Liu, 2015 ONSC 1278

OCADec 16, 2014

Appeal dismissed; finding that NCR patient lacked capacity to refuse antipsychotic medication was reasonable.

The appellant, who was found not criminally responsible for assault and attempted kidnapping, was detained at a mental health facility.

His treating physician found him incapable of consenting to antipsychotic medication for his delusional disorder, a finding confirmed by the Consent and Capacity Board and upheld by the Superior Court.

On appeal, the appellant argued the physician's evidence was uncorroborated and the incapacity finding was unreasonable.

The Court of Appeal dismissed the appeal, finding the physician's evidence was corroborated by the appellant's own testimony and documentary evidence, and the board's conclusion that the appellant could not appreciate the reasonably foreseeable consequences of refusing medication was reasonable.

Gajewski v. Wilkie, 2014 ONCA 897

SCJApr 3, 2013

Appeal allowed; Board's finding of a prior capable wish to withdraw life support was unreasonable.

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.

Friedberg et al. v. Korn et al., 2013 ONSC 960

SCJMar 8, 2013

Appeal partly allowed; involuntary status set aside but incapacity to consent upheld.

The appellant appealed a decision of the Consent and Capacity Board confirming his involuntary admission under s. 20(5) of the Mental Health Act and a finding that he was incapable of consenting to treatment under s. 4(1) of the Health Care Consent Act, 1996.

The court held that the Board’s finding of involuntary status was unreasonable because it relied on unreliable hearsay evidence and insufficient medical evidence to establish a likelihood of serious bodily harm or serious physical impairment.

However, the court upheld the Board’s determination that the appellant lacked capacity to consent to treatment, finding clear, cogent, and compelling evidence that he was unable to appreciate the reasonably foreseeable consequences of refusing treatment due to his mental condition.

The appeal was therefore allowed in part.

The involuntary status finding was set aside, but the incapacity determination was confirmed.

Gradek v. Shafro, 2013 ONSC 1464

OCAFeb 21, 2012

Ineffective assistance of counsel claim is available on appeal from Consent and Capacity Board decisions.

The appellant, a native Serbian speaker diagnosed with schizophrenia, was found incapable of consenting to treatment.

At his Consent and Capacity Board hearing, he requested an adjournment to allow his Serbian-speaking lawyer to attend.

The Board granted a brief adjournment and directed the Public Guardian and Trustee to appoint counsel.

The appointed counsel did not speak Serbian and the appellant explicitly rejected her services.

However, appointed counsel failed to inform the Board of this rejection, and the hearing proceeded with the Board mistakenly believing the appellant was represented.

The Board confirmed the incapacity finding, and the Superior Court dismissed the appeal.

The Court of Appeal allowed the appeal, holding for the first time that an ineffective assistance of counsel claim is available on appeal from a Board capacity decision.

The Court found that appointed counsel's failure to disclose her lack of authority to act caused a miscarriage of justice by depriving the appellant of adjudicative fairness.

A new hearing was ordered.

Gligorevic v. McMaster, 2012 ONCA 115