Court of Appeal for Ontario

DATE: 20210203 DOCKET: C68537

Lauwers, Hourigan and Brown JJ.A.

In the matter of an appeal from a decision of the Consent and Capacity Board Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, As amended

And in the matter of

B.L. A patient at Ontario Shores Centre for Mental Health Sciences Whitby, Ontario

BETWEEN

B.L. Applicant/Appellant (Appellant)

and

Dr. Jennifer Pytyck Respondent (Respondent)

Counsel: Ken J. Berger, for the appellant Jessica R. Szabo, for the respondent

Heard: January 22, 2021 by video conference

On appeal from the order of Justice David L. Corbett of the Superior Court of Justice, dated June 16, 2020, with reasons reported at 2020 ONSC 3766, dismissing an appeal from the decision of the Consent and Capacity Board, dated August 14, 2019.

BROWN J.A.:

I. Overview

1By decision dated August 14, 2019, the Consent and Capacity Board (the “Board”) confirmed the finding of the appellant B.L.’s [1] treating psychiatrist that he was incapable of consenting or refusing consent to treatment, specifically antipsychotic medications, both oral and injectable: . B.L. appealed the Board’s decision to the Superior Court of Justice; the appeal judge dismissed his appeal. B.L. now appeals to this court.

2For the reasons set out below, I would dismiss the appeal.

II. The Appellant’s Condition

3B.L. is 37 years old. He has been diagnosed with schizophrenia. That diagnosis is not in dispute on this appeal.

4In 2013, B.L. was admitted to the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) under the jurisdiction of the Ontario Review Board after being found not criminally responsible for striking his father with a cricket bat. He remained at Ontario Shores until January 2017, when he was discharged to a group home. After a deterioration in his condition following a change in medication, B.L. was re-admitted to Ontario Shores in May 2017, where he remains today.

5Twice in 2013 B.L. was found incapable of consenting to treatment with antipsychotic medication; both times the Board set aside the finding.

6The respondent psychiatrist, Dr. Pytyck, has treated B.L. since 2015. At the August 2019 CCB hearing, Dr. Pytyck testified that B.L. is extremely high functioning when properly treated, but his condition deteriorates quickly without adequate antipsychotic medication.

7From January 2017 to August 2018, B.L. changed the dose and type of his medication multiple times after discussing side effects and other concerns with Dr. Pytyck. B.L. has not taken any antipsychotic medication since August 2018.

8Prior to the August 2019 Board hearing, B.L. had not taken prescribed medication for about one year. According to Dr. Pytyck, during that time B.L.’s condition had deteriorated markedly: he exhibited social withdrawal, odd interpersonal behaviours, extreme sensitivity to light and sound, signs of paranoia, irritability, and disorganization of thought. In the month before the Board hearing, Dr. Pytyck noted a dramatic deterioration in B.L., including the emergence of delusional beliefs. [2] In her opinion, as of the time of the hearing, B.L. was “quite overtly psychotic”.

9The appeal judge, at para. 20 of his reasons, summarized B.L.’s testimony before the Board as follows:

In his testimony, [B.L.] presented as described by [Dr. Pytyck]: intelligent, focused on the legal test of capacity and in particular, with demonstrating that he had gone through the process of weighing risks and benefits of taking antipsychotic medication. He also testified in manner that corroborated [Dr. Pytyck’s] description of him as delusional. He believes that he is suffering because of UV rays, gamma rays, and lack of oxygen, and that his somatic complaints are real. He attributes these complaints to phenomenon such as climate change, and he believes that his antipsychotic medication makes these things worse. At most, in his view, the anti-psychotic medication masks the reality of these afflictions, leading him to fail to take steps to protect himself, thus afflicting him further.

10At the Board hearing, Dr. Pytyck testified that for many years B.L. had conflated his somatic preoccupations with the side effects from his antipsychotic medication. In 2013 and 2014, when he was taking very low doses of antipsychotic medication, B.L. reported very high levels of somatic side effects. When adequately medicated, B.L. did not complain to the same degree.

11On his part, B.L. denies that his somatic complaints are related to his mental illness. He denies that his medication can relieve him from his delusional suffering. Subjectively, he believes that he does suffer from physical complaints, that these complaints are worsened by his antipsychotic medication, but that one effect of the medication is to dull him mentally, so that he “forgets” about his complaints and then fails to protect himself against the negative effects of climate change.

III. The Decision of the Board

12Section 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “Act”), establishes a two-branch test for determining a person’s capacity to consent to treatment. A person is capable with respect to a treatment if the person is able to:

(i) Understand the information that is relevant to making a decision about the treatment; and

(ii) Appreciate the reasonably foreseeable consequences of a decision or lack of decision.

13Before the Board, there was no dispute that B.L. satisfied the first branch of the test. The issue was whether B.L. was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

14The Board acknowledged the proper approach to apply to the issue of B.L.’s capacity to consent to treatment, stating, at pp. 12-13 of its reasons:

In assessing the evidence and submissions of counsel, I was mindful of the court's caution, in Starson v. Swayze, [2003] 1 S.C.C. 722, that it is not the Board's function to interfere with a capable person's rational choices, however foolish. Capable people have the right to take risks and make decisions that may be considered unreasonable. The test is not whether the choice by the patient appears reasonable or wise, but whether the patient is capable of consenting, within the meaning of the statute.

Further, in Starson, the court cautioned that the Board must avoid the error of equating the presence of a mental disorder with incapacity. People suffering from mental disorders are vulnerable to interference with their personal autonomy and are at risk of having their decisions regarding treatment not being taken seriously.

Although a person need not agree with the doctor's diagnosis, nor even agree that he or she suffers from a mental condition, in order to be found capable, if it is demonstrated that he or she has a mental condition, the person must also be able to recognize the possibility that he or she is affected by that condition. In that regard, it was said in Starson that “…if the patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision .” [Emphasis added.]

15In confirming Dr. Pytyck’s finding that B.L. was not capable of consenting to treatment, the Board made several key findings, including:

• At the time of the hearing, B.L. suffered from a mental illness, namely schizophrenia: at pp. 7-8;
• B.L. had been “more than amply educated about his illness and the benefits and risks of medications”: at p. 8;
• Although B.L. was able to acknowledge that he had been diagnosed with schizophrenia, he was unable to appreciate that he was experiencing paranoia and delusions and that his symptoms were likely those of a psychotic illness: at pp. 13-14;
• B.L. lacked the ability to appreciate that he was affected by symptoms of mental illness or, at a minimum, was unable to appreciate the extent to which his symptomatology governed his behaviour: at p. 14;
• B.L.'s paranoid delusions about UV rays, gamma rays, and carbon dioxide levels interfered with his ability to evaluate how the treatments being proposed would likely affect him. B.L. was making his decisions in the context of a belief that his fears about UV rays were warranted and not delusional. It was his view that the medication would not likely address these concerns and it was the very delusions from which he suffered which interfered with his ability to rationally weigh the potential benefits of the proposed treatment: at p. 14;
• Although B.L. held an honest belief about the adverse effects of the medication, the sincerity of B.L.'s beliefs did not overcome the preponderance of evidence pointing to B.L.'s inability to appreciate the consequences of his treatment choices: at p. 14;
• B.L. likely overestimated the side effects of the medications and likely conflated his somatic delusions and the adverse effects of the medication: at p. 15;
• B.L.'s refusal to take the antipsychotic medication was not primarily because of its negative effects, but because of his inability to appreciate the connection between his thoughts and conduct and the return of his psychotic symptoms and the connection between medication adherence and improvement of symptoms: at p. 15;
• B.L. was not able to appreciate that taking therapeutic doses of the medication had improved his condition to the extent that he had been able to leave the hospital and live in a group home for a while: at p. 15;
• B.L.’s decision to decline medication was dictated by the delusions from which he suffered: at p. 15;
• B.L. was unable to consider medication as an option in the future, regardless of what he sometimes said, because, in B.L.'s view, he was not suffering from psychotic symptoms, and the measures he took to protect himself were a rational response to real, not delusional concerns: at p. 15;
• B.L.’s evidence revealed a singular focus on the medication’s negative effects: at p. 16;
• B.L. had not undertaken a cost/benefit analysis regarding the medication because he was unable to appreciate that his behaviour flowed from symptoms of a psychotic illness and that the illness was clouding his ability to recognize the benefits of medication: at p. 16; and
• On the totality of the evidence, although B.L. apprehended the negative effects of treatment with antipsychotic medication, he was unable to appreciate its benefits. His symptomatology, including his paranoia and delusions, prevented him from having the ability to evaluate the relevant information as it applied to his own circumstances: at p. 16.

16The Board concluded, at p. 17, that:

BL was unable to appreciate the correlation between his behaviour and psychotic symptoms, which the antipsychotics served to reduce. Absent an ability to make a connection between a mental disorder and its effects on him and an inability to connect his improvement to medication adherence, he did not have the ability to evaluate the information or to weigh the benefits of the proposed treatments against their risks. Consequently, in my opinion, it had been proven that BL was incapable to consent to treatment with respect to antipsychotics.

IV. The Decision of the Appeal Judge

17In dismissing B.L.’s appeal from the Board’s decision, the appeal judge stated, at para. 33:

In my view the Board was correct in finding that a patient must be able to appreciate the objectively reasonable material risks and benefits of medication before that patient can perform a meaningful costs/benefits analysis. The Board reasonably applied this standard to the facts, as it found them to be, and concluded that [B.L.] does not have capacity to consent to antipsychotic medication.

V. Issues on Appeal

18B.L. submits that the Board misapplied the second branch of the capacity test in s. 4(1) of the Act to the facts of his case. B.L. contends that the evidence demonstrated that he actually appreciates the parameters of his treatment decision because he is cognizant of: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of the treatment; the alternative courses of action; and the expected consequences of refusing treatment. While he may weigh or value the parameters differently than Dr. Pytyck, he has the ability to appreciate the decision he made.

19B.L. further argues that his decision to refuse treatment was based on his understanding of environmental impacts on his own health, an understanding justified by scientific literature. In support of this submission, B.L. included in his book of authorities several publications from the World Health Organization (“WHO”) on various environmental issues. Dr. Pytyck objects to the inclusion of the articles on the grounds that: (i) they were not before the Board or the appeal judge; (ii) they are not relevant to a decisive issue on this appeal; and (iii) B.L. has not brought a proper motion for leave to file fresh evidence.

VI. The Standard of Review

20When reviewing a decision of the Superior Court of Justice regarding the decision of an administrative tribunal, such as the Board, this court must determine the standard of review that applies to the tribunal’s decision, apply that standard to the decision of the tribunal, and determine if the appeal court applied the standard properly. In so doing, this court “steps into the shoes” of the Superior Court of Justice and focuses on the tribunal’s decision under review: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46; Longueépée v. University of Waterloo, 2020 ONCA 830, at paras. 47-48.

21The Act provides a right of appeal from a decision of the Board to the Superior Court of Justice on questions of law or fact, or both: s. 80(1). As the appeal judge correctly observed, at para. 23:

Where there is a statutory right of appeal from an administrative decision, without a privative clause, the court scrutinizes the administrative decision on the basis of “appellate standards of review”. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 37.

22The Board’s identification of the proper statutory test for capacity involves a question of law reviewable on the correctness standard. The Board’s application of the statutory test for capacity to the evidence to determine whether a person is capable is a question of mixed fact and law, reviewable on the deferential standard of palpable and overriding error, absent an extricable question of law in the Board’s analysis: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 84; Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33.

VII. Analysis

23As I understand B.L.’s position on this appeal, he submits that the Board erred in law by applying the wrong legal standard to its assessment of the evidence and, as well, that the Board’s findings were based on a misapprehension of the evidence.

The alleged error of law

24The appeal judge recorded, at para. 5, that B.L. had conceded the Board had applied the correct legal test when assessing his capacity to consent to treatment. However, on this appeal B.L.’s counsel submits that the Board and appeal judge in fact applied the wrong legal test. As I understand the submission, B.L. argues that the Board incorrectly applied an objective standard of reasonableness, or a kind of “best interests” test, when assessing B.L.’s ability to appreciate the reasonably foreseeable consequences of a decision to take or refuse medication, instead of determining the issue based solely on B.L.’s subjective appreciation of the consequences.

25I see no such error by the Board. With respect, B.L.’s submissions overlook an important element of the legal test as articulated by the Supreme Court in Starson. As the Board pointed out in its reasons, at p. 13, in Starson the Supreme Court stated, at para. 79:

While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows…:

Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.

As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision . [Emphasis added.]

26Accordingly, the Starson test for capacity in respect of the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision includes a requirement to consider whether a person’s condition results in an inability to recognize that he or she is affected by its manifestations, thereby rendering the person unable to apply the relevant information and appreciate the consequences of his or her decision. This aspect of the legal test has been repeated and applied by this court in several cases: Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587, at paras. 18-21, leave to appeal refused, [2008] S.C.C.A. No. 97; D’Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250, at paras. 24-26, leave to appeal to S.C.C. refused, (2011) 284 O.A.C. 400; Gajewski, at paras. 47-53; and Murray v. Alatishe, 2019 ONCA 596, at para. 20.

27The Board applied the correct legal test, as is apparent from the portion of its reasons reproduced at para. 14 above.

The alleged misapprehension of the evidence

28B.L. submits, in effect, that the Board misapprehended the evidence because it was not prepared to accept the way he balanced the costs and benefits of taking antipsychotic medication in his circumstances.

29With respect, I cannot accept this submission. The record demonstrates that the Board understood the evidence and made no palpable and overriding error in applying the correct legal standard to that evidence.

30The factual findings made by the Board, enumerated in para. 15 above, are fully supported by the evidentiary record. Its conclusion based on that evidence, reproduced at para. 16 above, displays no misapprehension of the evidence.

31The WHO publications that B.L.’s counsel asks this court to consider do not alter that conclusion. That most people have some concerns about the impact of environmental conditions on their health does not alter the Board’s task, which is to assess B.L.’s ability to appreciate the reasonably foreseeable consequences of a treatment decision in light of his mental illness, his capacity to understand the symptoms and effects of his mental illness, the benefits of medical treatment in B.L.’s specific circumstances, and the risk of medical treatment in those circumstances. The record shows that is what the Board did.

32Accordingly, I see no basis to interfere with the Board’s decision.

VIII. Disposition

33For the reasons set out above, I would dismiss B.L.’s appeal.

Released: “PL” FEB 03 2021 “David Brown J.A.” “I agree. P. Lauwers J.A.” “I agree. C.W. Hourigan J.A.”

Footnotes

1At the appellant’s request, in these reasons his initials are used instead of his full name.

2Details of the evidence can be found at pp. 6-7 of the Board’s reasons: . A description of B.L.’s behaviour at the Board hearing is found at p. 11 of those reasons.