SUPERIOR COURT OF JUSTICE – ONTARIO

CITATION: HEINEKAMP v. LIVERMORE, 2010 ONSC 358

COURT FILE NO.: DC-09-1097

DATE: 20100114

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board,

Pursuant to the Health Care Consent Act, S.O. 1996 c.2, Schedule A as amended

AND IN THE MATTER OF

Anthony Heinekamp

A patient at

MENTAL HEALTH CENTRE PENETANGUISHENE – OAK RIDGE SITE

Penetanguishene, Ontario

BETWEEN:

ANTHONY HEINEKAMP Appellant

– and –

DR. CRAIG LIVERMORE Respondent

COUNSEL:

J. Carlisle, for the Appellant

J. Blackburn, for the Respondent

HEARD: January 5, 2010

REASONS FOR DECISION

DiTOMASO J.

THE APPEAL

[1] On July 29, 2009, the respondent, Dr. Craig Livermore determined that the appellant, Anthony Heinekamp, a patient at the Oak Ridge Site of Mental Health Centre Penetanguishene (“Oak Ridge”), was not mentally capable to consent to treatment of a mental disorder within the meaning of the Health Care Consent Act.

[2] Upon being so informed by Dr. Livermore, Mr. Heinekamp applied to the Consent and Capacity Board (“the Board”) for a Review of this finding of incapacitation.

[3] A hearing of the Application for Review was held by the Board on September 12, 2008. The Board determined that Mr. Heinekamp was not capable with respect to treatment with anti-psychotic medication and side effect medication for schizophrenia.

[4] Mr. Heinekamp appeals this ruling pursuant to s.80 of the Health Care Consent Act, S.O. 1996.

[5] In his Notice of Appeal, Mr. Heinekamp requests that the decision of the Board be quashed and replaced with a finding that he is capable with respect to treatment. Further, in the alternative, he requests that the matter be remitted back to the Board for a new hearing, in whole or in part, in accordance with whatever directions this Court deems appropriate.

[6] Mr. Heinekamp relies upon two grounds of appeal as follows:

(i) the Board erred in fact and in law in finding that he was incapable in respect of the specified psychiatric treatment; and

(ii) the decision of the Board respecting treatment capacity was, in all of the circumstances, unreasonable.

[7] Dr. Livermore submits that the appeal should be dismissed because the Board made no errors of law and reached a reasonable decision on the evidence before it.

BACKGROUND FACTS

[8] Mr. Heinekamp is 30 years old. He is a forensic patient at Oak Ridge, Penetanguishene, having been found not criminally responsible on account of mental disorder (“NCR”) for uttering threats, assault with a weapon and possession of a weapon on January 21, 2003.

[9] He was initially detained at the Brockville Psychiatric Hospital (“BPH”) on February 7, 2003, for an assessment of fitness to stand trial, and remained detained there as a result of the rendering of a verdict of NCR to his criminal charges, but was transferred to Oak Ridge on November 4, 2005, on disposition of the Ontario Review Board (“ORB”) after a series of incidents involving outbursts of anger, threats and violence, which culminated in a serious assault upon a co-patient.

[10] Mr. Heinekamp’s psychiatric diagnosis includes paranoid schizophrenia (a psychotic disorder) and anti-social personality disorder. Mr. Heinekamp also suffers from other medical conditions: epilepsy, diabetes and a partial hearing impairment.

[11] Mr. Heinekamp’s mental condition of schizophrenia manifests itself in tactile and auditory hallucinations, paranoias, delusions, and aggressive behaviour, often directed at other persons. It appears that his aggressive behaviour is often in reaction to his hallucinatory experiences, which he believes are real and which cause him pain.

[12] From time to time, Mr. Heinekamp has been variously compliant with his medication and has been previously placed on medication watch to ensure compliance. While he has acquiesced to treatment at times, he has also suddenly decided to interrupt treatment. His inability to follow through with the mutually negotiated treatment plan has been noted.

[13] Following his initial admission to BPH, it was observed that Mr. Heinekamp suffered from “auditory and visual hallucinations”, but that “these symptoms did respond well to treatment with adequate doses of Seroquel to the point where there were not observations of psychiatric symptoms”. His medication was changed between the period of April 2004 and April 2005, and again it was noted that he was responding favourably at BPH. He was described by Dr. Livermore as having a significant period of stability at BPH while treated.

[14] In April 2005, Mr. Heinekamp began to refuse the treatment of the anti-psychotic drug Risperidone, which had been prescribed at that time. Subsequently, Mr. Heinekamp was noted to have exhibited “more angry outbursts”, issuing threats and assaulting co-patients. This increasingly aggressive behaviour culminated in a serious assault upon a co-patient that resulted in surgical repair to the patient’s leg and confinement to a wheelchair. Mr. Heinekamp was convicted of this offence and eventually was transferred to Oak Ridge in November 2005.

[15] In March of 2006 while legally capable, Mr. Heinekamp consented to an increase in the dosage of the anti-psychotic drug Quetiapine, which he was prescribed at Oak Ridge. There was a positive observable change in his demeanor and affect following this increase, including an increase in socialization.

[16] In November 2006, Mr. Heinekamp was declared incapable with respect to treatment, and was subsequently treated with anti-psychotic medication with the consent of his mother. Subsequently, and with increased doses of medication, Mr. Heinekamp’s behaviour improved to the point that he was able to exercise certain privileges. He was transferred to the Independent Living Program (“ILP”) on September 24, 2007, and was found to be capable by the Board in November 2007.

[17] After being considered capable in November 2007, Mr. Heinekamp consented to treatment with Clopixol, which he later stopped despite improvement on the same medication – and continued to a sub-therapeutic dose of Seroquel. He was largely showing symptoms.

[18] Since July 14, 2009, Dr. Livermore has been Mr. Heinekamp’s current treating physician and psychiatrist at Oak Ridge.

[19] Several days before Dr. Livermore first met Mr. Heinekamp, Mr. Heinekamp discontinued taking Seroquel. Mr. Heinekamp agreed to take the anti-psychotic drug Perphenazine at a very low dose, but discontinued this treatment after three to four days.

[20] Dr. Livermore had concerns about Mr. Heinekamp’s capacity from the beginning with respect to treatment for Mr. Heinekamp’s mental illness. Mr. Heinekamp denied having a mental illness and had stopped taking his anti-psychotic medication. Dr. Livermore was concerned about Mr. Heinekamp’s capacity to make treatment decisions. He had a number of discussions with Mr. Heinekamp in this regard, which led to Dr. Livermore being convinced that Mr. Heinekamp’s mental illness was markedly impacting his ability to make decisions respecting treatment.

[21] Ultimately, Dr. Livermore made a finding of incapacity on July 29, 2009.

THE BOARD HEARING

[22] Mr. Heinekamp applied to the Board for a review of Dr. Livermore’s finding of treatment incapacity on July 30, 2009. The Board hearing was held on August 12, 2009.

(a) Evidence of Dr. Livermore

[23] At the hearing, Dr. Livermore testified and relied primarily on the Clinical Summary dated August 11, 2009, which he had prepared. He also submitted an Administrator’s Report to the Ontario Review Board dated July 21, 2008. These documents were filed as exhibits at the hearing. In his oral testimony, Dr. Livermore responded to cross-examination by Mr. Heinekamp’s counsel.

[24] In his testimony, Dr. Livermore cited a number of paranoid delusions disclosed by Mr. Heinekamp, including the existence of various conspiracies, his ability to “burn a hole in the sky”, and to “make it look like Mars” in the Province of Ontario, his ability to psycho-analyze all patients in the ward, and the belief that he was needed by the government to assist in fighting crime.

[25] Dr. Livermore also noted a number of somatic hallucinations that were described by Mr. Heinekamp. In his Summary, Dr. Livermore cited at length from a progress note made by him dated July 20, 2009:

He [Mr. Heinekamp] also described numerous somatic experiences that he believes staff and other patients were exerting on him, though he could not explain how this was being accomplished. Specifically, he noted a feeling of someone “squeezing my spine” which he indicated happened most often in the evenings when he was alone in his room. … Much of his thought content took on a very paranoid tone and he did admit to hearing voices speaking while unidentified individuals were accosting him at night. He made some reference to being on another ward in the past and that staff would rub gas on his head and feces on his feet. He also referred to being poisoned on a regular basis and feels that he had been physically sick on three occasions which was a direct result of this poisoning, likely by staff.

[26] These observations reflect similar concerns set out in the Administrator’s Report in 2008:

Since his admission to Oak Ridge, Mr. Heinekamp has continuously suffered from a plethora of delusions, marked paranoia, auditory hallucinations, and mistrust of the staff, the co-patients and the system at large.

[27] Throughout the Administrator’s Report, these delusions were further described as:

Receiving injections into the spine; being assaulted by co-patients during meals; being stabbed in the spine; having his spine “pulled” or ripped; having his buttocks grabbed; having symptoms of poisoning because hospital staff are poisoning him, including racing pulse, elevated blood pressure, itching and burning in the eyes, and pain in the joints; that he considers his vital signs “different than others”; that his chest tissue had become abnormally enlarged as a result of taking certain medications; inappropriate touching by staff, doctors and co-patients; having his ribs broken or jabbed; digging into his bowels.

[28] In his Summary, Dr. Livermore observed irritability, irascibility and anger in Mr. Heinekamp, primarily linked to his belief that others were assaulting him:

His reactions to the beliefs that others are accosting him consist of anger and indignation and he can display a high degree of intensity and agitation when describing them. My attempts to educate Mr. Heinekamp about his diagnosis and the delusional nature of these beliefs have been met with staunch disagreement.

[29] Dr. Livermore expressed the opinion that, in his current condition, Mr. Heinekamp was incapable of making a decision with respect to consenting to treatment. Dr. Livermore explained a number of factors underpinning this decision. In his testimony, Dr. Livermore stated that while Mr. Heinekamp had no basic cognitive deficits, he was “experiencing a psychotic episode at present which can impact an individual’s ability to appreciate the information” relating to medication.

[30] Dr. Livermore also explained that Mr. Heinekamp had exhibited a steadfast refusal in accepting medication, but that such a refusal was based on fundamental misconceptions about the nature of the medication and of its effects.

[31] In both his clinical summary and testimony, Dr. Livermore noted that Mr. Heinekamp indicated concerns about the “molecular content of anti-psychotic medication” and about the fact that anti-psychotic medications “kill brain cells”. Mr. Heinekamp expressed the belief that a law would be passed in Canada in relation to this medication, and discussed the purported distinction between “clinical” and “experimental” drugs, as well as concerned that the drugs had not been “FDA approved”, despite assurances to the contrary. As stated in his Summary, Dr. Livermore observed that Mr. Heinekamp had expressed concerns regarding various side effects of the medication that also have no basis in reality and/or are potentially linked to his somatic delusions.

[32] Dr. Livermore testified that the effect of severe migraine headaches cited by Mr. Heinekamp do not typically occur as a result of taking anti-psychotic medication and that the effect of blurry vision could also be related to Mr. Heinekamp’s diabetic condition.

[33] Dr. Livermore, in his Summary, found that Mr. Heinekamp had exhibited no recognition of being affected by any symptoms of mental illness or the delusional nature of his beliefs: “Frankly, he does not accept the possibility that they are delusional. Mr. Heinekamp reacted with anger at being confronted with these beliefs.” Mr. Heinekamp was also observed to have auditory and visual hallucinations.

[34] Mr. Heinekamp expressed the belief that his delusions were in fact real, and was very convinced that these things were occurring to him. Dr. Livermore testified that Mr. Heinekamp did not recognize the possibility that medication could benefit him in this respect, but rather, Mr. Heinekamp believed that a treatment with anti-psychotic medication would in some way dismiss his experiences as being fake or fabricated.

[35] Further, Dr. Livermore testified that another reaction of Mr. Heinekamp that these beliefs was to indicate that Mr. Heinekamp does “not care” about these experiences, or that he would find a way to make them end. This was so, despite the clear distress expressed by Mr. Heinekamp about these experiences.

[36] Dr. Livermore also identified a “pattern” in the condition of Mr. Heinekamp: improvement with treatment, confirming his ability to make decisions with respect to treatment; then deterioration upon the decision to discontinue treatment, necessitating a finding of capacity. The identification of this pattern by Dr. Livermore can be found in his Summary, as well as in his testimony.

[37] In his Summary, Dr. Livermore identified two concerns with respect to the failure of Mr. Heinekamp to take treatment. These concerns are:

(i) outbursts of anger and aggressive and violent behaviour directed at co-patients or staff. Dr. Livermore expressed “serious concerns” that others would be “put at unnecessary risk” should Mr. Heinekamp lash out as a result of another delusional episode; and

(ii) the compromise of Mr. Heinekamp’s ability to assess the usefulness of other treatment, for instance related to his diabetes, raising the risk that he would also eventually refuse to take this medication.

[38] In his testimony, Dr. Livermore stated that Mr. Heinekamp sees “no potential adverse outcomes of not accepting anti-psychotic medication”, nor does he recognize that there is a risk that he may behave in a violent way as a result of not taking medication. Ultimately, Mr. Heinekamp refused to acknowledge any potential of medication to assist him, or that there were any concerns regarding his mental state that needed to be addressed.

(b) Evidence of Anthony Heinekamp

[39] When asked about the tactile hallucinations referred to in his records and by Dr. Livermore, Mr. Heinekamp dismissed these experiences as being in the “past” or alternatively, denied having any such experiences. Mr. Heinekamp also denied a history of threats of violence.

[40] He explained his belief that the reason his hallucinations had no longer manifested themselves was that he “quit taking the medication”.

[41] Mr. Heinekamp testified that he did not believe his angry or violent impulses were a concern because “I know exactly what I do, what I’m going to do.” He further testified that his tactile hallucinations are “not a worry to me at all”.

[42] Mr. Heinekamp’s evidence also demonstrated a set of fixed and false beliefs regarding the nature of anti-psychotic medication. He expressed concern about the “number of chemicals” that it takes to “make up the drug they wanted to give me”. He expressed concern that “they’re trying to introduce legislation where they can treat patients with chemicals” and explained that his understanding of a chemical was that it “doesn’t fall under the Food and Drug Act”. On several occasions throughout his testimony, Mr. Heinekamp insisted that the number of chemicals or molecules in the medication prescribed was relevant and his determination as to whether that medication was beneficial or necessary. He testified that he did not want to take any more medications because “they’re trying to give me a chemical drug that’s made of more than one chemical”.

[43] Mr. Heinekamp also expressed concerns regarding the side effects of the medication, but testified it was “not possible” that a medication which had reduced side effects could be found.

[44] When questioned by Dr. Livermore (who was unrepresented at the hearing), Mr. Heinekamp denied that anti-psychotic medication had any positive effect on him in the past, or that the lack of medication could result in a deterioration into violent behaviour. Mr. Heinekamp stated:

You know, I don’t need medication. Nothing’s going to change. Nothing at all. Not my thinking. Not my behaviour. Nothing. I’m going to be this way all my life because this is the way I live my life, the way I grew up, everything else, you know.

[45] Further, Mr. Heinekamp testified that he would not ever be amenable to taking medication because he believed that it was categorically not possible for the medication to have any positive effect on him. In relation to his understanding of the chemical makeup of medication as described above, Mr. Heinekamp stated: “I know about chemicals is they do damage to everything. Chemicals, you know, shouldn’t be used to treat people.”

[46] On being questioned as to why Dr. Livermore nevertheless sought to find a course of treatment for him, Mr. Heinekamp expressed the belief that Dr. Livermore simply wanted to run an experiment on him: “They gave you a job here and it’s a new medication, you want to try it out on somebody.”

(c) The Decision of the Board

[47] On August 12, 2009, the Board issued its decision upholding the finding of incapacity with respect to any psychotic and side effect medication made by Dr. Livermore.

[48] On August 19, 2009, the Board issued Reasons for Decision. In its Reasons for Decision, the Board:

• Quoted the statutory test for treatment capacity set out in s.4 of the Health Care Consent Act, 1996;
• Identified the test for capacity as a two-part test and that the position must satisfy the Board on a balance of probabilities that the person for whom treatment is proposed does not meet one or both parts of the test;
• Stated the interpretation for the test for capacity set out in the Supreme Court of Canada decision in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722;
• Summarized the evidence presented; and
• Identified that the issue was whether Mr. Heinekamp was able to understand the information that was relevant to making a decision about treatment and whether Mr. Heinekamp was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[49] In particular, with respect to the evidence presented, the Board noted that:

(i) The Clinical Summary and Administrator’s Report were part of the record;

(ii) Mr. Heinekamp states that he does not believe that he suffers from a mental illness and does not wish to take medications;

(iii) However, the evidence suggests that Mr. Heinekamp suffers from a mental illness, which manifests itself in tactile hallucinations that cause Mr. Heinekamp tremendous stress and pain;

(iv) Mr. Heinekamp believes that medication does not alleviate any of these symptoms;

(v) Mr. Heinekamp believes that medication may be poisonous to him and that the recommended medications are not FDA approved and are harmful to him;

(vi) Dr. Livermore testified that when compliant with medication Mr. Heinekamp does experience improvement and relief from the symptoms of his illness;

(vii) Mr. Heinekamp has been found incapable in the past, but then found capable again;

(viii) Mr. Heinekamp stopped part of his most recent treatment in 2008, and stopped treatment altogether in the Spring of 2009;

(ix) In Dr. Livermore’s view, Mr. Heinekamp has clinically deteriorated and was no longer capable of consenting to his own treatment.

[50] The Board then ruled as follows:

(i) On the first branch of the test, Mr. Heinekamp cannot understand information that was relevant to making a decision about treatment. In this respect, the Board inter alia based its conclusion on the evidence of Dr. Livermore that Mr. Heinekamp has persistent paranoid delusions regarding medications as poisonous materials; that Dr. Livermore has been unable to speak with Mr. Heinekamp about treatment options because the symptoms of his mental illness preclude Mr. Heinekamp from engaging in dialogue and understanding the information provided for him; and that given he has no mental illness, he does not need medication;

(ii) On the second branch of the test, Mr. Heinekamp is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision;

In this respect, the Board referred to three common indicators of a person’s ability to meet the second branch of the test as set out in the Supreme Court’s Starson v. Swayze judgment namely: (i) whether a person is able to acknowledge that the condition for which the treatment is recommended may affect him or her; (ii) whether a person is able to understand how the proposed treatment or lack of treatment could affect his or her quality of life; (iii) whether a person’s choice is substantially based on delusional belief;

(iii) Mr. Heinekamp denies that he suffers from any “mental condition illness or disorder” and therefore cannot acknowledge that the condition for which treatment is recommended may affect him. Notably, the Board correctly adverted to the legal standard that a patient is not required to acknowledge the illness or diagnosis per se, but rather that he or she may be affected by a condition that requires treatment;

(iv) Mr. Heinekamp was unable to acknowledge any potential benefits of medication, or any improvement in his condition during the period where he was being treated, despite clear evidence of such improvement. Thus, the Board concluded that Mr. Heinekamp could not appreciate how various treatment options would affect his quality of life;

(v) Mr. Heinekamp thought the recommended medications were “poisonous” and not “FDA approved”; and

(vi) Mr. Heinekamp believes that Dr. Livermore was prescribing medication to him out of self-interest, rather than the betterment of Mr. Heinekamp.

[51] The Board concluded that the finding of incapacity to consent to treatment was upheld. The Board confirmed the finding that Mr. Heinekamp is incapable with respect to anti-psychotic and side effect medication for mental illness.

[52] In coming to this conclusion, the Board found that Mr. Heinekamp suffered from a severe mental illness of schizophrenia. At present, he was not able to acknowledge that he suffered from this illness, nor was he able to capably decide to take, or not to take, medication. He was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

ISSUES ON APPEAL

[53] Mr. Heinekamp raises two issues on the appeal:

(a) Did the Board err in law by misinterpreting the test for capacity? In particular, did the Board conflate the two parts of the test for capacity found in s.4(1) of the Health Care Consent Act?

(b) Was the Board’s decision unreasonable because the Board misapprehended the evidence or failed to appreciate, or completely disregard relevant evidence?

ANALYSIS

Standard of Review

[54] Both sides were in agreement as to the applicable standard of review.

[55] The standard of review on a question of law is one of correctness; on issues of mixed fact and law, the standard is reasonableness. The standard of review of a Board decision in the absence of an error of law is reasonableness: see Starson, supra, at paras. 84-88. A court must accept the decision which is reasonable even if it is unlikely that the reviewing court would have decided as the tribunal did at first instance: see Law Society of New Brunswick v. Ryan, [2003] S.C.C. 20 at paras. 46-49. Also see: Dunsmuir v. New Brunswick, [2007] S.C.C. 9 para. 47.

[56] An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. The standard of reasonableness essentially involves asking the following question: “After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?” When the standard of review is reasonableness, a court must not interfere unless the appellant has positively shown that the decision was unreasonable. A court must look to see whether any reasons support the decision. See Starson, supra, at paras. 5, 88; Law Society of New Brunswick v. Ryan, supra, at paras. 47-48; Snoek v. Dr. Darby, unreported decision of Ont. Sup. Ct., May 2008, para. 11; Daniela Giecewicz v. Dr. Thomas Hastings (2007) Ont. C.A. para. 13, leave to appeal to SCC denied; Conway v. Dr. Darby (2008) (Ont. Sup. Ct.) at para. 32, Appeal to Ont. C.A. dismissed May 20, 2009. Therefore, a court must not interfere unless the appellant has shown that the decision was unreasonable. Reasonableness is satisfied if a decision is supported by a tenable explanation. Furthermore, the reasons for decision must be taken as a whole. The Board is uniquely positioned to hear viva voce testimony of the parties. The reasonableness inquiry dictates respect for the expertise and advantaged position of the Board.[^1]

[57] In Starson, Chief Justice McLachlin, wrote that the court was unanimous on the applicable standard of review as follows at para. 5:

I agree with my colleague Major J. that the Board’s interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, I agree that the Board’s decision is subject to review for reasonableness. The Legislature assigned to the Board that task of hearing the witnesses and assessing evidence. Absent demonstrated unreasonableness, there is no basis for judicial inference with findings of fact of the inferences drawn from the facts. This means that the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonable have been reached on the law and evidence. As Binnie J. states in R. v. Owen (2003), S.C.C. 33 (released concurrently), at para. 33:

If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the fact and instructed on the applicable law, the Court should in general decline to intervene.”

The fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board’s conclusion.

[58] The court also noted in Starson that capacity hearings are primarily adjudicative in nature and that a determination is relatively fact-intensive. It also commented that the Board is uniquely positioned to hear the testimony of the patient and the physician, and to assess the evidence while applying its expertise. The determination of capacity with respect to treatment is a question of fact in law and the Board must apply the statutory test for capacity to the evidence. See Markowitz v. Rootenberg, [2008] O.J. No 5029.

[59] The relevant statutory provisions for the test for capacity are set out in s.4 of the Health Care Consent Act (HCCA). Subsection 4(1) of the HCCA provides that a person is capable with respect to a treatment if he or she is able to understand the information relevant to making a decision about the treatment and able to appreciate the reasonable foreseeable consequences of a decision or lack thereof.

[60] Subsection 4(2) of the HCCA provides that a person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. In Starson at para. 78, the Supreme Court summarized the test of incapacity as a two-fold test as follows:

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent has satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[61] In the case at bar, it was Dr. Livermore’s clinical opinion that Mr. Heinekamp did not meet either branch of the capacity test.

Issue #1: Did the Board err in law by misinterpreting the test for capacity?

[62] Regarding the first branch of the test, Mr. Heinekamp argues that the Board erred in law by conflating the two parts of the capacity test. I disagree.

[63] Mr. Heinekamp submitted that he had a grade 12 education and that he acknowledged medication could help others with mental illness. Nevertheless, the test for capacity requires the ability to “process, retain and understand” information as it relates to treatment and not just a general cognitive ability to understand information. See Starson, para. 78.

[64] Beyond the fact of Mr. Heinekamp’s level of education and cognitive functioning, the Board had evidence before it from Dr. Livermore that Mr. Heinekamp’s current state consisted of an episode of psychosis which prevented him from appreciating the relevant information.

[65] The Board correctly referred to this evidence, including the beliefs of Mr. Heinekamp that medications are poisonous and his unwillingness to pursue conversations about the medications are indicative that Mr. Heinekamp was unable to understand the information conveyed with respect to the treatment.

[66] Regarding the second branch of the test, a patient does not have to agree with a specific diagnosis of an attending physician in order to be able to apply relevant information to his or her circumstances, or even that the mental condition is an “illness”. Nevertheless, a patient must be able to acknowledge that he may have some manifestations or symptoms of an illness:

… 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 discreet diagnosable pathology. The word “condition” allows the requirement for understanding to focus on the objectivity discernable 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.[^2]

[67] A review of the Reasons for Decision of the Board clearly demonstrates that the Board was fully aware of the relevant statutory provisions set out in s.4(1) of the HCCA. The Board was aware that the onus was on the attending physician to meet the test of the legislation; see s.4(2). The evidence presented before the Board was both oral and written, which was carefully considered. The Board found that the evidence presented was clear and cogent and did meet the threshold test. The Board accepted that Dr. Livermore had met his onus to rebut the presumption of capacity.

[68] The Board fully understood that the test for capacity to consent to treatment under the HCCA was a two-branch test. Not only did the Board refer to the applicable and relevant statutory provisions in the HCCA, but also referred to the leading decision of the Supreme Court of Canada in Starson v. Swayze. The Board, in its Reasons, correctly and accurately set out the two-branch test.

[69] The Board went on to consider the two-branch test by considering two separate questions:

• Is H. able to understand the information that is relevant to making a decision about treatment?
• Is H. able to appreciate the reasonably foreseeable consequences of a decision or lack of decision?

[70] The Board considered and answered each question separately on all the evidence before it as the Board was obliged to do.

[71] In dealing with the first branch of the test, the Board accepted that Mr. Heinekamp had a grade 12 education and did not suffer organic cognitive deficits. However, the Board accepted Dr. Livermore’s evidence that Mr. Heinekamp failed to meet the criteria established in respect of the first branch of the test because Mr. Heinekamp could not understand information that was relevant to making a decision about the treatment given that he was hampered by persistent paranoid delusions.

[72] These delusions included confused thinking about medications as poisonous material. Dr. Livermore attempted on numerous occasions to speak with Mr. Heinekamp about treatment options and recommended treatment. However, the symptoms of his mental illness precluded Mr. Heinekamp from engaging in such dialogue and from understanding the information provided to him. The Board held:

He is fixed on his false beliefs and that these medications are poisonous and not appropriate for him. H. acknowledges that medications may help other people with mental illness, and further, that if he needed medication, he would take it, but given he does not have mental illness, he does not need medication.

[73] The Board was persuaded that the very nature of Mr. Heinekamp’s fixed false beliefs about medications and treatment inhibited him from engaging in dialogue about treatment and further, understanding the information that was relevant to making a decision about treatment.

[74] The Board correctly proceeded to consider the second branch of the test. The Board cited the Reasons of Chief Justice McLachlin in Starson at para. 18, regarding three common indicators of a person’s ability to meet the second branch of the test:

(i) whether the person is able to acknowledge the fact that the condition for which the treatment is recommended may affect him or her;

(ii) whether the person is able to understand how the proposed treatment and alternatives, including no treatment, could affect his or her quality of life; and

(iii) whether the person’s choice is substantially based on delusional belief.

[75] The court went on to find:

H. [Mr. Heinekamp] denies that he suffers from any mental condition, illness or disorder. He cannot therefore acknowledge that the condition for which the treatment is recommended may affect him.

[76] Reference was made to the evidence of Mr. Heinekamp, who spoke a great deal about the failings of medication with no apparent recognition of any of the benefits. He could not acknowledge any improvement in his condition at all during the periods when he was compliant with medication despite the evidence that while complying with medication he did show improvement. He could not appreciate how the various treatment options would affect his quality of life.

[77] The Board referred to Mr. Heinekamp’s evidence that some of the medications recommended by Dr. Livermore were not “FDA approved” and simply poisonous to his body. Mr. Heinekamp argued that Dr. Livermore was interested in recommending medication for him only for Dr. Livermore’s own self-interest and not for the betterment of Mr. Heinekamp.

[78] The Board had before it an extensive record consisting of the testimony of Dr. Livermore and Mr. Heinekamp, together with the Summary and Administrator’s Report filed as exhibits. The Board concluded:

H. [Mr. Heinekamp] suffers from a severe mental illness of schizophrenia. At present, he is not able to acknowledge that he suffers from this illness, nor is he able to capably decide to take, or not take, medication. H. [Mr. Heinekamp] is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[79] I find that on all of the evidence, the Board did not conflate the two parts of the capacity test. On a question of law, the Board’s decision as it relates to the two-part capacity test is correct.

Issue #2: Was the Board’s decision unreasonable because the Board misapprehended the evidence or failed to appreciate or completely disregard relevant evidence?

[80] Mr. Heinekamp made a number of submissions with respect to the misapprehension of evidence and the failure of the Board to evaluate relevant evidence. Submissions were made that the Board relied upon “unsafe” evidence on which to reach its conclusion.

[81] In addition to finding that the Board did not misapprehend the legal test for capacity, I also find that the Board did not misapprehend the evidence. The result reached by the Board is both reasonable on the evidence and correct in law.

[82] Essentially, Mr. Heinekamp asserted that the Board accepted and upheld the decision of Dr. Livermore which was flawed. In doing so, the Board’s own decision is similarly flawed. Mr. Heinekamp had just started to be treated by Dr. Livermore. Dr. Livermore was not aware of Mr. Heinekamp’s other and underlying medical conditions. Mr. Heinekamp was concerned about taking a new drug and how this would interact with his other medical problems and the medications being administered for those conditions. He was expressing his concerns but was not refusing to take anti-psychotic medications. In light of all the evidence, I do not accept this argument. The record before the Board amply demonstrated Mr. Heinekamp’s schizophrenia with associated delusions and paranoias. Mr. Heinekamp was not able to accept even the possibility that he was affected by the delusions and that they were a manifestation of his mental illness. He denied that he suffered from mental illness. While medications would be helpful to others, anti-psychotic medications would be unnecessary and not appropriate for him.

[83] The Board accepted evidence relating to these delusions and paranoias that would often cause Mr. Heinekamp to lash out in anger and to issue threats of violence. Mr. Heinekamp had a history of violent incidents within hospital, including an incident that resulted in a criminal conviction. Mr. Heinekamp believed that these manifestations of his mental illness to be rooted in reality and that to attempt to treat them was an affront to his lived experience. Mr. Heinekamp also believed that medications were poisonous because they were comprised of chemicals, and chemicals were harmful. Mr. Heinekamp repeatedly expressed concerns about the number of molecules and the number of chemicals in the medication proposed for him. Mr. Heinekamp was unable to appreciate the potential benefit as a result of accepting treatment with anti-psychotic medications, claiming that his condition was simply his lifestyle or the way that he lived. He was unable to appreciate that he had benefited from the treatment in the past.

[84] Based on the whole of the evidence, I find that it was reasonable for the Board to conclude that Mr. Heinekamp was unable to understand information relevant to making a decision about treatment, and unable to appreciate the reasonable foreseeable consequences about making a decision about treatment. I find the Board’s decision was both correct in law and reasonable based upon all of the evidence before it.

[85] I find that there is no basis for judicial interference with the decision of the Board, as the Board’s decision is within the range of conclusions that could reasonably have been reached on the law and on the evidence. I further find that Mr. Heinekamp has failed to discharge his onus to demonstrate that the Board’s decision is incorrect or unreasonable in law. Applying the reasonableness standard, I find that the Board was entitled to reach the conclusion that Mr. Heinekamp, by reason of his condition, was unable to understand the information that was relevant to making a decision about his treatment and was unable to appreciate the reasonably foreseeable consequences of the treatment decision or lack thereof. The Board, on all the evidence, was persuaded that Mr. Heinekamp’s fixed false beliefs about medications and treatment inhibited him from engaging in dialogue about treatment and further, understanding the information that was relevant to making a decision about treatment.

[86] Further, the Board found that Mr. Heinekamp suffered from severe mental illness of schizophrenia. He was not able to acknowledge that he suffered from this illness, nor was he able to capably decide to take, or not take, medication. He was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[87] In reviewing the Board’s decision on the whole of the evidence before it, I am satisfied that the Board’s decision was based on the totality of the evidence and the application of the proper legal principles to that evidence. The Board’s conclusion that Mr. Heinekamp lacked capacity to consent to treatment was reasonable. The Board correctly and reasonably upheld the decision of Dr. Livermore and confirmed the finding that Mr. Heinekamp was incapable with respect to anti-psychotic and side effect medication for mental illness.

[88] For all of these reasons, none of the grounds succeed. Mr. Heinekamp has failed to discharge his onus to demonstrate that the Board’s decision is incorrect or unreasonable in law.

DISPOSITION

[89] The appeal is dismissed. The decision of the Board respecting Mr. Heinekamp’s treatment incapacity is confirmed as a reasonable one. On behalf of Dr. Livermore, the court was advised that he was not seeking costs. Accordingly, there shall be no order as to costs.

DiTOMASO J.

Released: January 14, 2010

[^1]: Giecewicz v. Hastings, supra, at para. 13. [^2]: Fleming v. Starson, supra, at paras. 69 and 78; In the Matter of Mr. L.H., supra, at para. 21; Snoek v. Dr. Darby, supra, at para. 10.