CITATION: Parsons v. Komer, 2015 ONSC 5202

BARRIE COURT FILE NO.: DC-15-0366

DATE: 20150818

ONTARIO

SUPERIOR COURT OF JUSTICE

AND 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, chapter 2, Schedule A, as amended

AND IN THE MATTER OF

Stephen Parsons

A patient at the

WAYPOINT CENTRE FOR MENTAL HEALTH CARE – PROVINCIAL

PENETANGUISHENE, ONTARIO

BETWEEN:

STEPHEN PARSONS

Appellant

– and –

DR. B. KOMER

Respondent

Thomas Whillier, for the Appellant

James Thomson, for the Respondent

HEARD: August 6, 2015

VALLEE J.

Nature of the Appeal

[1] On March 12, 2015, the Consent and Capacity Board found that Stephen Parsons was incapable of consenting to treatment with respect to antipsychotic medications and mood stabilizers. The appellant appeals this decision on two grounds:

a. there was insufficient evidence presented to the Board in order for it to uphold Dr. Komer’s finding of treatment incapacity.

b. The Board infringed on the Appellant’s procedural fairness rights;

Issues

(1) Was the evidence of Dr. Komer and Mr. Parsons sufficient for the Board to uphold Dr. Komer’s finding that Mr. Parsons was incapable of consenting to antipsychotic and mood stabilizing treatment.

(2) Did the Board infringe on Mr. Parsons’ procedure fairness rights by holding a hearing on February 18, 2015 with Mr. Parsons acting in person after an adjournment was granted on February 3, 2015 to allow him to obtain counsel.

Standard of Review

[2] Both parties agree that the applicable standard of review is reasonableness. A court should not substitute its own view of the correct answer. It may intervene only if the decision is shown to be unreasonable. (see Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. p. 722).

[3] The question to be asked is, can the reasons given taken as a whole support the decision. (see Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] 1 R.C.S. 247).

[4] The reviewing court should not interfere with a tribunal’s decision when the decision falls within a range of possible acceptable outcomes which are based on the facts and law. (See Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190).

Criteria for Capacity to Consent to Treatment

[5] The Health Care Consent Act, 1996, S.O. 1996, ch.2, Sch. A, s.4(1) provides that:

A person is capable with respect to a treatment … if the person is able to understand the information that is relevant to making a decision about the treatment … and is able to appreciate the reasonably foreseeable consequences of a decision or a lack of decision.

[6] Accordingly, the test has two parts. Specifically with respect to this matter, was Mr. Parsons was able to understand the information that is relevant to making a decision about the treatment and was he able to appreciate the reasonably foreseeable consequences of a decision or lack of decision?

Applicable Law Regarding Evidence Required to Support a Finding of Incapacity Regarding Consent to Treatment

[7] The Board will often have to rely on hearsay evidence to be fully informed of a patient’s circumstances. The weight that is given to hearsay evidence is a matter within the discretion of the Board. “Nonetheless, the Board must be careful to avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability.” (See Starson v. Swayze, 2003 SCC 32, [2003] S.C.J. No 33 para. 115)

[8] In an appropriate case, a physician’s evidence can be corroborated by a patient’s own evidence (See Anten v. Bhalerao, 2013 ONCA 499 at para. 30) because the Board has the opportunity to observe and question the Appellant. (See Gajewski v. Wilkie, 2014 ONCA 897 para. 38).

[9] If a patient’s condition results in his being unable to recognize that he is affected by a mental condition, he will be unable to apply the relevant information to his circumstances and therefore will be unable to appreciate the consequences of his decision. (See Starson para. 79).

[10] It is not necessary for the Board to have evidence as to the nature of the benefits of the proposed treatment or the specific potential adverse side effects in order to make a decision. “It is not the Board’s task to weigh the risks and benefits of the proposed treatment or to make any determination as to the advisability of the treatment from a medical standpoint. The issue before the Board is the Appellant’s capacity to make the relevant decisions.” (See Giecewicz v. Hastings, 2007 ONCA 890 at para. 43).

Was the evidence of Dr. Komer and Mr. Parsons sufficient for the Board to uphold a finding that Mr. Parsons was incapable of consenting to antipsychotic and mood stabilizing treatment?

[11] Mr. Parsons is 46 years old. He has a grade 9 education. He also has a lengthy criminal past. There are several incidents relating to his mental health. Approximately five years ago, Mr. Parsons was first diagnosed with schizophrenia.

[12] As a result of an incident that occurred on November 30, 2013, Mr. Parsons was charged with possession of a weapon for a dangerous purpose. He was determined to be not criminally responsible on a count of mental disorder with respect to that charge. Accordingly, he was detained at Waypoint. While at Waypoint, on January 27, 2015, Dr. William Komer found Mr. Parsonsto be incapable of consenting to treatment. Mr. Parsons appealed this finding to the Board. A hearing was held at Waypoint on February 3, 2015.

[13] On that date, the hearing was adjourned to permit Mr. Parsons to obtain counsel. On February 18, 2015, the Board reconvened and the hearing proceeded. Mr. Parsons indicated that he was prepared to represent himself.

[14] Dr. Komer, Mr. Parsons’ psychiatrist, testified at the hearing that Mr. Parsons suffered from a major mental illness requiring treatment with antipsychotic medications. He stated,

Not only have I diagnosed him with a mental disorder and a mental condition, other physicians who have seen him have, likewise, made that determination. I would like to highlight that there was a finding in court that was contested by Mr. Parsons that he was not criminally responsible on account of mental disorder so a court has made a determination that his mental disorder, his mental condition, had a direct impact on his appreciation of the nature and quality of his acts where knowing it was wrong with regards to a criminal offence. So, it’s clear that Mr. Parsons does have an illness although he is someone that does have capacity in a general sense to understand what treatment can do for some, could understand, in general, that someone might have a condition like himself, might be delusional, but [he] doesn’t have the ability to apply that to himself.

[15] Dr. Komer also testified that Mr. Parsons did not want antipsychotic medications because they caused him dizziness and they had other side effects. Mr. Parsons testified that he did not believe he required them.

[16] Dr. Komer did not testify that the proposed treatment with antipsychotic and mood stabilization medications was for the purpose of improving Mr. Parsons’ quality of life by helping him with his current symptoms.

[17] On February 18, 2015, the Board upheld Dr. Komer’s finding of incapacity regarding consent to treatment for antipsychotic and mood stabilization medications.

[18] The Board determined that Mr. Parsons met the first branch of the test for capacity with respect to treatment for antipsychotic and mood stabilization medications. In its decision, the Board stated,

The evidence of Dr. Komer was that S.P. was able to understand general information about mental illness and its treatment. He said there was some memory loss but this did not affect his ability to understand and retain information. Dr. Komer did not allege that S.P. was unable to understand the information relevant to the treatment. The Board found that S.P. was able to understand the information relevant to making a decision about the treatment in question.

[19] Nevertheless, the Board determined that Mr. Parsons did not meet the second branch of the test for capacity. The Board stated,

Based on the evidence of Dr. Komer, the history as described in Exhibit 2, and S.P.’s own evidence at the hearing, it was clear that S.P. could not entertain the possibility that he suffered from the manifestations of a major mental illness. He was as a result unable to make a meaningful risk/benefits assessment of the proposed treatment. He spoke of some side effects, but he was unable to appreciate the risks of not consenting to the treatment. He saw no benefits to the treatment being proposed. S.P. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.

Appellant’s Position

[20] The Appellant submitted that none of the evidence before the Board expressly or impliedly corroborated that Mr. Parsons was incapable of consenting to treatment. There was no evidence before the Board of the risks and benefits for Mr. Parsons of taking the proposed treatment. In Anten, par 23, the court stated that, “the Board’s inquiry must start with some evidence as to the foreseeable benefits and risks of treatment and the expected consequences of not having treatment.

[21] There was no evidence of what the foreseeable consequences would be to Mr. Parsons if he did not take the proposed treatment. There was no evidence before the Board that Dr. Komer discussed with Mr. Parsons the risks and benefits of taking the treatment or the expected consequences of not taking the treatment.

[22] The Appellant submits that Dr. Komer did not establish that Mr. Parsons was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

[23] In its decision, the Board stated, “as to the expected benefits of the treatment, S.P. was currently not receiving any treatment at Waypoint. According to Dr. Komer, S.P. was more organized due to the structured setting of the hospital. His other symptoms persisted as was seen at the hearing.” This was the only reference made by the Board with respect to the risks or benefits of treatment.

[24] The Appellant further submits that Dr. Komer stated that there were periods when Mr. Parsons’ illness was more active and there had even been some improvement and stabilization of his mental state when he had not been on medication, but his underlying delusional beliefs still remained.

[25] The Appellant contends that Dr. Komer’s evidence was not clear as to whether Mr. Parsons improved while on medication.

Analysis

[26] I do not agree with the Appellant’s position that Dr. Komer’s evidence was not corroborated. Mr. Parsons’ evidence at the hearing did in fact corroborate Dr. Komer’s evidence. When the Chair asked Mr. Parsons whether he had any questions for Dr. Komer, he did not ask Dr. Komer a question. Rather, he made a rambling, incoherent speech which included statements such as, “my sister was a politician that ran for prime minister; I’ve got with me [some unorthodox sketches] one of which was the Gerber’s pliers that ended up becoming part and parcel of the F18; sketches that I made when I was 15 years old; and, some rather unorthodox representation of a piece of ancient history of China.”

[27] The transcript of the hearing shows that when the Chair invited Mr. Parson’s to make his own submissions, Mr. Parsons made a long, rambling, incoherent speech.

[28] When the Chair asked Mr. Parsons whether he thought he was suffering from a mental illness, he stated that he did not think he suffered from a mental illness; rather, he suffered from a persecution. He said he would “rather actually get to unexpurgated.”

[29] When the Chair asked Mr. Parsons whether he thought he was capable of making his own treatment decisions, Mr. Parsons stated that he thought he was capable. He mentioned an earlier career building concrete pumps and hydraulic lines, listening to music on iTunes radio in China, and that if he were put on medication, that would change his wavelength, among other things.

[30] While the Court of Appeal stated in Anten in 2013 that the Board’s inquiry must start with some evidence as to the foreseeable benefits and risks of treatment and the expected consequences of not having treatment, in 2014, the court stated in Giecewicz that this was not necessary because the Board was not to weigh the risks and benefits of proposed treatment. Rather, the issue for the Board was the appellant’s capacity to make the relevant decisions.

[31] While Dr. Komer did not give evidence regarding foreseeable benefits and risks of treatment and the expected consequences of not having treatment, it was not required.

[32] The Board determined that Mr. Parsons’ evidence corroborated Dr. Komer’s evidence in that Mr. Parsons stated that he believed he was not suffering from a mental illness. The Board reasonably concluded that Mr. Parsons was incapable of providing consent to treatment.

Did the Board infringe on the appellant’s procedural fairness rights?

[33] The Consent and Capacity Board’s Policy Guideline 2 dated September 1, 2007 is entitled “Order in Council where the subject of an application does not have legal representation.”

[34] Section 1.1 states:

This Policy Guideline outlines the procedure for determining whether the Board should issue an order to arrange for the legal representation of the subject of an application. The policy guideline also addresses the Board’s duty to inquire and to illicit evidence when dealing with unrepresented subjects of an application.

[32] Section 81(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2 Sched. A states that if a person may be incapable with respect to treatment and is a party before the Board and does not have legal representation, the Board may direct Legal Aid Ontario to arrange for legal representation be provided for the person and the person shall be deemed to have capacity to retain and instruct counsel. [emphasis added]

[35] It should be noted that the Board is not required to arrange legal representation for such a person.

[36] Section 3.1 states that, “parties have a constitutional right to represent themselves if they wish, regardless of whether or not they are likely to represent themselves effectively.”

[37] The Board is not to issue an order if it is notified that the subject of an application wants to represent himself.

[38] The Board is to avoid adjournments as a general principle. When a party appears unrepresented, the Board is to conduct a preliminary mini-inquiry to establish whether the party refuses to obtain legal representation. If he does, the Board is to determine whether the party has made an informed decision, whether the party does not want legal representation because he does not want to pay the related legal fees and whether the subject of the application has already been granted an adjournment to obtain counsel.

[39] With respect to the conduct of the hearing when a party is unrepresented, the Board has a duty to inquire which gives the Board the authority to take a proactive role. According to the Policy Guideline, the Board should act in accordance with the following principles when a party is unrepresented:

(a) Make the unrepresented person aware of the nature of the proceedings to the extent possible.

(b) Explain the format of the hearing, the process of presenting evidence, and the basic principles of cross-examination.

(c) Ask if the unrepresented person requires pen and paper for note taking.

(d) Explain the role of the panel to the unrepresented person.

(e) Instruct and assist the unrepresented person throughout the hearing while ensuring fairness to the other parties.

(f) Accommodate the unrepresented person’s lack of familiarity with the process while respecting the rights of other parties. The panel should err on the side of providing more, rather than less, assistance to the unrepresented person.

(g) Ask the unrepresented person if he has any questions and encourage questions throughout the hearing.

(h) Satisfy itself that the legal requirements (for involuntary detention, incapacity, etc.) were met by the health practitioner (if applicable).

The Appellant’s Position

[40] The Appellant states that at his initial hearing on February 3, 2015, he was unrepresented. Mr. Wade Stevenson, a Patient’s Rights Advisor at Waypoint, advised him to seek an adjournment so that he could retain counsel. This was granted. It should be noted that on February 3, 2015, the Chair asked Mr. Parsons whether he wished the Chair to appoint counsel for him or whether he would prefer to arrange for his own counsel. He chose the latter.

[41] The next hearing date was February 8, 2015. On this day, Mr. Parsons met with Mr. Stevenson again. Mr. Stevenson advised him that he could not obtain counsel of his choice within the short time period and that he would need to seek another adjournment.

[42] The hearing proceeded on February 18, 2015 with respect to whether Mr. Parsons was incapable of consenting to treatment. Mr. Parsons was unrepresented. Mr. Parsons states that the Board carried on with the hearing as the Chair believed that Mr. Parsons was prepared to represent himself. Even though a party has the constitutional right to represent himself if he wishes, regardless of whether or not he is likely to be effective, Mr. Parsons states that he never expressed this wish.

[43] Mr. Parsons states that the Chair did not advise him that he could seek another adjournment in order to retain counsel. The Chair did not conduct the preliminary mini-inquiry as set out in the Policy Guideline. The Chair should have asked him whether he was refusing legal representation and whether he was advised about his options with respect to Legal Aid. The Chair should have determined whether his decision was informed. The Board did not follow its own Policy Guideline with respect to unrepresented persons because it failed to let Mr. Parsons to retain counsel and it failed to appoint counsel.

[44] Mr. Parsons states that the Board did not follow its duty to inquire. It did not explain the process or the procedure to him at the hearing. The Chair did not assist him in his examination and cross-examination of Dr. Komer. He was not encouraged to ask questions. He was unable to ask one question of the doctor before being cut off by the Chair. The Chair did not try to illicit evidence regarding the risks, benefits and consequences of treatment or lack of them.

[45] Mr. Parsons states that the failure of the Board as set out above, constitutes denial of procedural fairness to him. It impacted his ability to know the case against him and to be heard effectively. Accordingly, this results in a loss of jurisdiction.

Analysis

[46] Mr. Parsons’ allegations are clearly contradicted by the record. I find that the Chair did inquire as to whether Mr. Parsons wished legal representation. The Chair offered to make an order for Mr. Parsons in that regard which he declined. The Chair granted an adjournment so that he could seek counsel.

[47] When the hearing re-convened, the Chair noted that Mr. Parsons did not have a lawyer and asked him about his intentions. Mr. Parsons stated that he understood that Mr. Stevenson had not filed his application or contacted a lawyer. The Chair asked Mr. Parsons if he was prepared to represent himself. He stated that he was. The Chair commented that he seemed prepared and he replied, “to a point, yes I am actually prepared to represent myself, whether I’m actually going to succeed or even follow through in my efforts, is unknown at this time.”

[48] The Chair did not specifically ask Mr. Parsons whether he was refusing to obtain legal representation; however, that was not necessary because Mr. Parsons clearly indicated that he was prepared to represent himself. The further line of inquiry set out above would have been required if Mr. Parsons had stated that he refused to obtain representation. Because he was implicitly not refusing to obtain representation, there was no requirement for the Board to continue with that line of inquiry.

[49] I find that the Chair did explain the hearing process clearly to Mr. Parsons. The Chair stated that Dr. Komer would give his evidence first and then Mr. Parsons would have an opportunity to question him. The Chair explained that this would be Mr. Parsons’ opportunity to raise questions that he had about the evidence. The Chair further stated that she would also question Dr. Komer. After that, Mr. Parsons would have an opportunity to give his evidence and tell the Board about his position. The Chair explained that at the end, both Dr. Komer and Mr. Parsons would make final submissions and then the Chair would make her decision. At the end of the explanation, Mr. Parsons stated, “alright” indicating that he understood the procedure that was explained to him. I find that the Board acted in accordance with the applicable principles set out in the Policy Guideline.

[50] When Dr. Komer completed his evidence, the Chair clearly asked Mr. Parsons whether he had any questions for Dr. Komer. Mr. Parsons did not ask Dr. Komer a question. Rather, he made a speech about himself which was rambling and incoherent. He mentioned persecution of Jews, the fact that his sister had run for Prime Minister, and that he had invented “Gerbers pliers” which had ended up becoming part of the F18. After Mr. Parsons finished his speech, the Chair clearly asked him whether he had any more questions for Dr. Komer and Mr. Parsons replied, “no, that’s it, Your Honour.” There was no instance where Mr. Parsons was unable to ask one question of the doctor before being cut off by the Chair, as Mr. Parsons alleges.

[51] The Chair then asked Dr. Komer a number of questions. In response to the Chair’s questions, Dr. Komer stated that Mr. Parsons was unable to apply the diagnosis to himself. He was unable to do a risk benefits assessment. He did not understand the risk, both short term and long term of not taking medications, as it applied to himself. He did not appreciate the consequences of a decision or lack of decision for treatment. He did not acknowledge that he had a mental illness or a need for any type of treatment. I find that the Chair asked appropriate questions of Dr. Komer to determine whether sufficient evidence existed for a finding that Mr. Parsons was incapable of consenting to treatment.

[52] After the Chair asked questions of Dr. Komer, she asked Mr. Parsons whether he had any more questions for Dr. Komer. He stated that he did not but that he had “some statements that he would like to raise.” Mr. Parsons then gave his evidence which was another long, rambling, incoherent statement. It comprises ten pages of the transcript.

[53] When he concluded, the Chair asked if Mr. Parsons if she could ask him a few questions. He agreed. His answers showed that he did not appear understand why he was at a mental health hospital. He denied suffering from a mental illness.

[54] I find that throughout the hearing, the Chair assisted Mr. Parsons with the procedure appropriately and did ensure that his right to procedural fairness was safeguarded.

Conclusion

[55] I conclude that there was ample evidence before the Board to support a finding that Mr. Parsons was incapable of consenting to treatment. Specifically, Mr. Parsons did not acknowledge that he suffered from a mental illness. Therefore, he was incapable of providing consent to treatment. The Board’s conclusion was reasonable. The Chair took all the required steps to safeguard Mr. Parsons’ procedural fairness rights. Accordingly, the Appeal is dismissed.

VALLEE J.

Released: August 18, 2015