ONTARIO
SUPERIOR COURT OF JUSTICE
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
AND IN THE MATTER OF
JAMIE FARQUHAR-LOCKETT a patient at WAYPOINT CENTRE FOR MENTAL HEALTH CARE Penetanguishene, Ontario
BETWEEN:
JAMIE FARQUHAR-LOCKETT Appellant
– and –
DR. ANN JONES Respondent
COUNSEL:
Thomas Whillier, for the Appellant
Janice Blackburn, for the Respondent
HEARD: January 6, 2016
REASONS FOR DECISION
DiTOMASO J.
THE APPEAL
1The appellant, Jamie Farquhar-Lockett (“Farquhar-Lockett”) appeals from a decision of the Consent and Capacity Board (the “Board”) dated September 21, 2015 confirming his treatment incapacity with respect to anti-psychotic medication and related side-effects medication pursuant to s. 4 of the Health Care Consent Act, 1996.
2The original finding of incapacity with respect to treatment was schizophrenia with anti-psychotic medication and related side-effects medication made on November 14, 2013 by the respondent Dr. Ann Jones (“Dr. Jones”). Dr. Jones had been Mr. Farquhar-Lockett’s psychiatrist since his admission to Waypoint Centre of Mental Health Care (“Waypoint”) on June 3, 2013.
3Mr. Farquhar-Lockett applied to the Board for a review of this finding of incapacity. The Review was held by the Board on September 21, 2015. The Board released its decision the following day. Written reasons were provided on September 28, 2015. The Board confirmed Dr. Jones’ finding that Mr. Farquhar-Lockett was incapable of consenting to treatment with anti-psychotic medications and related side-effects medication.
4Mr. Farquhar-Lockett appeals this decision pursuant to s. 80 of the Health Care Consent Act, S.O. 1996.
5The essence of Mr. Farquhar-Lockett’s appeal is that the Board misapprehended or failed to consider all of the evidence before it and as a result, rendered a decision which was unreasonable. In particular, it is submitted the Board erred in finding the evidence established that Mr. Farquhar-Lockett was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question. Mr. Farquhar-Lockett further submits that Board heard evidence relevant to his mental health history. However, none of the evidence expressly or impliedly corroborated that Mr. Farquhar-Lockett lacked capacity for treatment decisions.
6Dr. Jones submits the Board conducted a full hearing and rendered a decision which considered the evidence of Dr. Jones, Mr. Farquhar-Lockett and the exhibits filed. The Board made reference to the two-part legal test in the Health Care Consent Act in reaching a decision confirming Dr. Jones’ opinion that Mr. Farquhar-Lockett was incapable of consenting to treatment with anti-psychotic medications and related side-effects medication. Further, it is submitted that the Board, on the evidence before it, was entitled to come to the conclusion that it did and that the evidence before the Board was corroborated. Ultimately, the decision of the Board under the circumstances was reasonable and the appeal ought to be dismissed.
BACKGROUND
7Mr. Farquhar-Lockett was 39 years old when he appeared before the Board on September 21, 2015. He was diagnosed with schizophrenia and was the subject of a significant history of prior psychiatric admissions to different hospitals as far back as 2003.
8He had been admitted to Waypoint on June 3, 2013. He had been found not criminally responsible on a count of mental disorder (“NCR”) by the court on November 14, 2013 regarding charges of assault and breach of probation from an incident that occurred on May 28, 2013.
9The original finding of incapacity regarding treatment of schizophrenia with anti-psychotic medication and related side-effects medication had been made on November 14, 2013 by Dr. Jones. Mr. Farquhar-Lockett appealed the finding of treatment and capacity to the Board. A hearing was held on Waypoint on September 21, 2015. The decision of the Board of that date is appealed by Mr. Farquhar-Lockett to this court.
10Mr. Farquhar-Lockett has an extensive psychiatric history which is disclosed in the Consent and Capacity Board Summary prepared by Dr. Jones, filed as an exhibit on the hearing before the Board and can be found in the record of proceedings (“Record”) commencing at page 16 of the Record. The clinical records from Providence Care – Mental Health Services and Hotel Dieu Hospital in Kingston disclose numerous hospital attendances by Mr. Farquhar-Lockett commencing on December 17, 2003. He had been diagnosed as early as December 17, 2003 with schizophrenia and had been treated with his anti-psychotic medications while hospitalized. His hospital records also indicate that he had been admitted for suicidal thoughts and increasing paranoia. He had tested positive for drug use. Further hospital records indicate that he attended Hotel Dieu Hospital in Kingston in 2009 and 2010. He appeared to be “paranoid” and hallucinating. He was transferred to Brockville Psychiatric Hospital with a diagnosis of schizophrenia and poly-substance abuse.
11The Providence Care – Mental Health Services records reflect Mr. Farquhar-Lockett’s admission from May 27 to June 25, 2010. Again, he was treated with anti-psychotic medication and on discharge, his diagnoses were schizophrenia (disorganized subtype), amphetamine use and cannabis use.
12There was a further admission to Providence Care – Mental Health Services from July 13 to July 29, 2010. On discharge, his diagnoses were schizophrenia and amphetamine dependence. He was treated with anti-psychotic medication during this admission. He had been off medication for approximately six months prior to the admission.
13From 2011 to September, 2012, Mr. Farquhar-Lockett had been assigned a probation officer in Kingston. According to that officer, he had been followed by Frontenac Community Mental Health Service for treatment of schizophrenia. He had discontinued psychiatric medication in August 2012 and moved to Sudbury.
14According to the clinical files from the West Parry Sound Health Centre, Mr. Farquhar-Lockett was admitted there on May 29, 2013 following the index offences committed on May 28, 2013. He was brought to hospital on a Form 1 (application for psychiatric assessment under the Mental Health Act). The clinical files disclose the following:
“brought to ER by OPP. Was on a bus on way to Manitoulin and without warning, assaulted a woman on the bus. He is religious, a Seventh Day Adventist and trying to deliver books to Manitoulin Island. Also promoting native return to the land. He reads the Bible – talks of the great controversy; persecution; rise of white power; the need to keep the fourth day hold/fourth commandment. That he is a pipe carrier which is a symbol of his gift from God. Says God directed him to approach the bus driver to warn him. Says the woman was unclean, in a suicidal state and that God directed him to attack her/rebuke her/make a spectacle of her. He says that she was suffering, alarming the entire bus, with squawking and demonic voices. That the driver ignored his warning”.
Mr. Farquhar-Lockett diagnosis was “acute psychosis – probably schizophrenia” (also see Record, Summary, page 17).
15On June 3, 2013, Mr. Farquhar-Lockett was admitted to Waypoint. At that time, he was charged with assault and breach of probation for the incidents occurring on May 28, 2013 at a bus station in Parry Sound. He was found NCR on account of mental disorder on December 13, 2013 by the court. At the time of the Board hearing on September 21, 2015, Mr. Farquhar-Lockett was detained on order of the Ontario Review Board (under Part XX.I of Criminal Code).
16Dr. Jones had been Mr. Farquhar-Lockett’s psychiatrist since his admission to Waypoint. On November 14, 2013, she made the original finding of incapacity with respect to treatment of his schizophrenia with anti-psychotic medication and related side-effects medication. Dr. Jones’ decision was reviewed by the Board on September 21, 2015 after which Mr. Farquhar-Lockett appealed the Board’s decision to this court.
THE BOARD HEARING
17The Board hearing was conducted on September 21, 2015. The Board’s decision is dated the same day. The Board’s written reasons were released on September 28, 2015 and are contained in the Record.
(a) Evidence of Dr. Ann Jones
18Dr. Jones prepared a Summary for the Board hearing which Summary was marked as Exhibit 1. Also, marked as Exhibit 2 was Form 33 prepared by Dr. Jones and dated November 14, 2013. This notice to Mr. Farquhar-Lockett informed him of Dr. Jones’ decision that he was found not mentally capable of consent to treatment of a mental disorder (schizophrenia).
19Dr. Jones testified that since November 14, 2013, Mr. Farquhar-Lockett had remained incapable to consent to his treatment. Until that date, he had not been treated with anti-psychotic medication. After that date under the substitute consent of his father, Mr. Farquhar-Lockett was treated initially with a number of anti-psychotic medications and later with Clozapine alone. In August 2015, Mr. Farquhar-Lockett discontinued taking Clozapine. While Mr. Farquhar-Lockett presently assented to the use of a different drug, Abilify, Dr. Jones was still of the opinion that he remained incapable to consent to Abilify.
20In her Summary prepared for the court hearing, Dr. Jones stated the following:
- Mr. Farquhar-Lockett has limited insight into his mental disorder, the previous benefit from taking antipsychotic medication and the resultant relapse of symptoms upon medication discontinuation. He can state that he has been diagnosed with schizophrenia and that psychiatric medications have been advised. He does not recognize key symptoms of schizophrenia as being manifestations of a mental condition or that medication can play a role in diminishing the symptoms. Some of his delusional beliefs influence his refusal to take medications at times.1
21The Summary prepared by Dr. Jones sets out examples of Mr. Farquhar-Lockett’s limited insight following a chronology of interaction commencing June 3, 2013 through to November 14, 2013.
22Dr. Jones testified at the hearing that although Mr. Farquhar-Lockett was able to state that he had schizophrenia and that he ought to take psychiatric medication, he was incapable to consent to treatment. He consistently indicated that Clozapine had not helped him, despite evidence to the contrary. He indicated that he had been no better taking anti-psychotic medications in the past. She testified that he suffered from auditory hallucinations. He heard Satanic voices and voices from God. Mr. Farquhar-Lockett was not in agreement that this was a manifestation of his mental condition and he repeatedly expressed to Dr. Jones that the medications could not reduce this difficulty. He was of the belief that these were supernatural experiences which could only be reduced through spiritual means and not through psychiatric medications. He repeatedly indicated that in his view anti-psychotic medications and the taking of anti-psychotic medications was contrary to his religious beliefs. He was of the view that Clozapine was harming him and said on occasion that Clozapine was killing him. The record also demonstrates that he suffered from symptoms of paranoia and persecution.2
23The evidence disclosed he was guarded and had a mistrust of science.
24It continued to be Dr. Jones’ opinion that Mr. Farquhar-Lockett was unable to appreciate the potential benefit of anti-psychotic medications. He was unable to appreciate the reasonable foreseeable consequences of stopping medications, that these difficulties were worsen and that, he was incapable to consent to treatment. Notwithstanding Mr. Farquhar-Lockett’s willingness to try Abilify, this did not alter Dr. Jones’ opinion about his incapacity to consent to treatment.
25It was also the evidence of Dr. Jones that Mr. Farquhar-Lockett did not consider these symptoms to be a manifestation of his mental condition.3 He attributed the lessening of his symptoms to the intervention by God and to his faith.4 The Summary indicated that on July 10, 2015, Mr. Farquhar-Lockett did not believe that the medication resulted in lessening of the voices: he attributed this to prayer.
26She continued to have clinical discussions with Mr. Farquhar-Lockett throughout July, August and September 2015. In July, he was planning to refuse Clozapine because “it’s killing me”; the voices are “spiritual”; and “no snake oil can stop Satan”. He denied the voices were part of a mental disorder. When he was advised that his symptoms had been more effectively reduced on Clozapine than on previous medications and when assured that Clozapine was not killing him, Mr. Farquhar-Lockett stated to Dr. Jones that he had “515 reasons not to trust you” and referred to “515 years of tears and broken promises”. He spoke of her being a “sorcerer”. Throughout August, he continued to describe Clozapine was a “deadly poison for me” and that “the Bible tells us not to take these medications”. He declined to accept an additional medication, Abilify as at August 3, 2015. He explained that medication could not help with “demons” that were spiritual in nature.
27In mid-August 2015, he started to refuse Clozapine. Dr. Jones testified he repeatedly stated that the auditory hallucinations could not improve with medication. Nevertheless, he had shown real benefit on Clozapine.5
28On September 11, 2015, Mr. Farquhar-Lockett discussed his view of the need to take vitamins to get better. He acknowledged that he heard voices but insisted that they were not due to a mental condition but rather were a “spiritual matter”.6
29On September 16, 2015, less than one week before the hearing, when asked about his views concerning anti-psychotic medication, Mr. Farquhar-Lockett replied that he would like to try vitamin treatment. He denied that the symptoms he suffered were manifestation of his mental condition or illness. He could not remember the benefits of taking anti-psychotic medications. He denied that it was possible for anti-psychotic medication to decrease the voices.7
30Dr. Jones concluded in her Summary:
Mr. Farquhar-Lockett has a long history of schizophrenia and non-compliance with recommended medication. He has been repeatedly urged by health professionals and family to take medication in order to get better. He has some understanding that taking medications is an important factor if he wishes to progress in the forensic system. He is willing to state that he has an illness. However, he does not recognize and appreciate that his distrustfulness and auditory hallucinations are manifestations of his mental condition/illness and that these symptoms can be and have been reduced on antipsychotic medication, most recently clozapine. He has misattributed recent benefits from clozapine and paliperidone to being the result of divine intervention and prayer and not the result of medication. Thus he is unable to appreciate the reasonably foreseeable consequences of consenting to/refusing antipsychotic medication.8
31In her testimony before the Board, Dr. Jones stated that Mr. Farquhar-Lockett was unable to appreciate potential benefits of antipsychotic medication including reduction in his hallucinations, guardedness and mistrust. She also testified that he was unable to appreciate the reasonably foreseeable consequences of ceasing medication, namely that these difficulties will worsen. As of the prior week, Mr. Farquhar-Lockett had indicated some willingness to take a different medication, Abilify, and the substitute decision-maker was agreeable to this. Despite this acquiescence on the part of Mr. Farquhar-Lockett, Dr. Jones maintained that Mr. Farquhar-Lockett actually had no appreciation for the potential benefits of antipsychotic medication but likely had a sense that he needed to take medication to progress through the system and was being urged to consider this option by family and staff.9
32Despite this apparent willingness to take medication, Mr. Farquhar-Lockett repeatedly said that his auditory hallucinations were not a manifestation of a mental disorder despite being, as noted above, a key symptom of schizophrenia. Mr. Farquhar-Lockett had also repeatedly said that his auditory hallucinations could not improve with medication.10
33In questions from the presiding Chair, Dr. Jones testified that Mr. Farquhar-Lockett did not consider his paranoia to be a manifestation of his mental disorder, which in her opinion it was. She described the reduction of Mr. Farquhar-Lockett’s symptoms when treated with Clozapine as “significant” and stated that if he remained off medication, these symptoms were likely to increase again. She reiterated that to Mr. Farquhar-Lockett; the auditory hallucinations were a supernatural or spiritual experiences and that psychiatric medication would not make them better.
(b) Evidence of Mr. Farquhar-Lockett
34The Board also heard the testimony of Mr. Farquhar-Lockett who was represented by counsel before the Board. Although he agreed with the diagnosis now (at the hearing); would consent to some medication; and considered it important to work with professionals such as Dr. Jones, Mr. Farquhar-Lockett also gave contradictory evidence. He stated that he was “compelled” to believe that medication could help him; he remained convinced that the voices were “satanic”. He noted that the Bible stated that sorcery or drugs would be practiced in our times to no avail. He also expressed concern that Dr. Jones was persecuting him for his relationship with God.11
35He also testified that if the Board found him capable, he would be prepared to take anti-psychotic medication, either Risperodol or Abilify. According to him, these medications were beneficial and had the least amount of side effects than did Clozapine.
36Dr. Jones declined the opportunity to cross-examine her own patient. In answer to questions from the Chair, Mr. Farquhar-Lockett gave lengthy responses characterized by counsel for Dr. Jones as somewhat evasive. Mr. Farquhar-Lockett reiterated that the voices were supernatural, intangible and that “science” had a difficult time with this. He spoke of his “auditory relationship with the Creator”. He did not answer directly two key questions, namely, whether the voices were a symptom of mental disorder or whether he would deteriorate if untreated. He gave protracted and not dispositive answers to the Chair’s questions.12
(c) Decision of the Board
37The Board released extensive written reasons on September 28, 2015. The Board considered the evidence at the hearing which consisted of the oral evidence of Dr. Jones, Mr. Farquhar-Lockett and the exhibits. The Board considered the applicable law as to the capacity to consent to treatment and cited s. 4(1) and (2) of the Health Care Consent Act.
38The Board noted that the patient’s “best interests” are not determining factors in coming to a finding. Rather, “the Board must be satisfied upon clear, cogent and compelling evidence that the health practitioner has discharged the onus in order to confirm a patient’s incapacity. The presence of a mental disorder does not in itself, support a finding of incapacity”.
39The Board cited the test of capacity to consent to treatment in s. 4 of the Health Care Consent Act as being a two-part test. The evidence must establish that the patient fails to pass either the first or second part of the test is not requirement that failure to meet both parts of the test be proven.
40The Board was satisfied that the first part of the test was not in issue. The Board found that Mr. Farquhar-Lockett was able to understand the information relevant to making a decision about the treatment in question.
41The Board then addressed the second part of the test by posing the following question “Did the evidence establish that Jamie Farquhar-Lockett was unable to appreciate the reasonably foreseeable consequences of a decision or lack or decision about the treatment in question?”
42The Board ruled as follows:
On November 14, 2013, Dr. Jones made the finding that JFL was incapable to consent to treatment. Dr. Jones wrote in Exhibit 1 that JFL had some appreciation of the benefits of treatment. He said it was important to cooperate with professionals and to “get on with life”. He had been detained in a psychiatric hospital since June, 2013. JFL also said that he suffered from schizophrenia and should take medications. Dr. Jones wrote in Exhibit 1, “However, he does not recognize and appreciate that his distrustfulness and auditory hallucinations are manifestations of his mental condition/illness and that these symptoms can be and have been reduced on anti-psychotic medication, most recently clozapine. He has misattributed the recent benefit from clozapine and paliperidone to being the result of divine intervention and prayer and not the result of medication”.
The evidence of Dr. Jones was that JFL’s most prominent symptoms were his guardedness and auditory hallucinations. He denied any benefits during a recent trial with clozapine and paliperidone. In his interactions with Dr. Jones, as documented in Exhibit 1, he consistently denied any past benefits to treatment with anti-psychotics. JFL did not acknowledge that auditory hallucinations and guardedness were manifestations of a mental disorder. He believed that the voices were Satanic, and that he was being persecuted by God.
As to the risks of treatment/refusing treatment, Dr. Jones said that JFL was aware of side effects, such as drooling and the feeling of a clogged throat at night, but he also mistook some symptoms of his mental disorder as side effects, for example paranoia, confusion and grief. JFL also told Dr. Jones that his Native background made him intolerant to medications, and the Bible warned against taking drugs. JFL cited a writer named Hoffer who espoused mega doses of vitamins to treat mental illness.
JFL gave evidence at the hearing. He said he believed he needed help and drugs had helped him in the past. He spoke of the benefits of anti-psychotics, that they were sedative, helped organize his thoughts and comforted him. He also said that anti-psychotics addressed all the symptoms of schizophrenia, that is, they improved his mood and made him feel better about himself.
JFL spoke of his spiritual growth. He believed that his spiritual beliefs were guiding him to work co-operatively with Dr. Jones. However, he also said that Dr. Jones was persecuting him for his relationship with God.
JFL had embraced the teachings of the Seventh Day Adventists prior to this admission to Waypoint. His faith played a significant role in his appreciation of the consequences of consenting or not consenting to treatment. JFL said that the Church warns us to be careful of science. God had withdrawn from the science community because they did not give him glory.
JFL did not acknowledge that the major symptoms of his mental illness, his auditory hallucinations and feelings of persecution, were manifestations of his illness or that treatment with drugs was of any benefit. He said at the hearing, “I’m forced to believe benefits [of drugs] but I’m convinced that the voices are Satanic.” He continued in his evidence that as a man of faith, he could deal with the auditory hallucinations. The voices could not be cured by science. He had similar views about his feeling of persecution. He said he was forced to believe that they were part of schizophrenia, even though it was persecution from God.
Under questioning from the Chair, JFL did not have direct answers to the important issues of auditory hallucinations and the risks of not taking treatment. In answer to a direct question, were the voices part of a mental illness, he replied that he was a spiritual person and could not speak to it. He replied regarding the risk of not taking medications that he was concerned about toxicity. When further asked whether he might deteriorate, he replied that medications provide stability and that it takes will power to follow the regime.
Based on the evidence of Dr. Jones, the recent history as described in Exhibit 1, and JFL’s own evidence at hearing, it was clear that JFL was not able to make a meaningful risks/benefits assessment of the proposed treatment. He could appreciate some side-effects but did not appreciate the risks of not taking medications. He spoke of the benefits in general terms. He said he had schizophrenia, but did not acknowledge that auditory hallucinations and feelings of persecution were the major manifestations of his mental illness. JFL’s underlying beliefs were that medications were contrary to his religious beliefs, his voices were Satanic and his feelings of persecution was persecution from God and could only be healed spiritually.13
43For the reasons stated, the Board upheld the finding of Dr. Jones that Mr. Farquhar-Lockett was incapable of consenting to treatment with anti-psychotic medications and related side-effects medication.
ANALYSIS
44Both sides agreed as to the applicable standard of review. Pure questions of law are reviewed on a correctness standard. Mixed questions of fact and law are, however, reviewed on the reasonableness standard. Counsel for Mr. Farquhar-Lockett acknowledges that the standard of review on this appeal is reasonableness.14
45When reviewing a decision on the reasonableness standard, the Supreme Court has ruled that this involves “…deferential self-discipline.” A court will often be forced to accept that a decision is reasonable even if it is unlikely that the reviewing Court would have reasoned or decided as the tribunal did at first instance. Reasonableness is mostly concerned with the existence of justification and intelligibility within the decision-making process, and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The guiding principle is deference and the reviewing court may consider both the reasons offered and the reasons which could be offered, by the tribunal.15
46An 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 basically 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. Accordingly, a Court must look to see whether any reasons support the decision.16
47A decision is unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. A decision may satisfy the reasonableness standard if it is supported by a “tenable” explanation, even if the explanation is not one which the reviewing court finds compelling. The reasons are taken as a whole: a reviewing Court is not to seize upon one or more mistakes or elements of the decision which do not affect the decision as a whole.17
48In a decision post-Dunsmuir, the Supreme Court stated that even where the reasons of the tribunal do not seem wholly adequate to support the decision, the Court must first seek to supplement them before it seeks to subvert them. (Emphasis in the original). Reasons for a decision need not be perfect, nor do they need to be comprehensive. They may not include all the arguments, statutory provisions, jurisprudence or other details a reviewing judge would have preferred but that does not impugn either the validity of the reasons or the decision itself. The reviewing court should look to the evidentiary record to support the finding. Consistent with the guiding principle being deference, the decision of the tribunal should be presumed to be correct, even if its reasons are in some respects defective.18
49In Starson v. Swayze, [2003] SCC 32, a case involving Ontario’s Health Care and Consent Act, McLachlin C.J. stated 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 interference with findings of fact or 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 reasonably 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 facts 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.19
50At the heart of the Board’s decision is the two-part test at s. 4(1) of the Health Care Consent Act, S.O. 1996. The Board reviewed that test.
51Section 4(1) of the Act provides:
4.(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
52The Board in its Reasons stated that under the Act each person is presumed to have capacity and the onus of proof of incapacity lies with the attending physician. The Board must be satisfied upon clear, cogent and compelling evidence that the health practitioner has discharged the onus in order to confirm a patient’s incapacity. The presence of a mental disorder does not in itself, support a finding of incapacity. The patient’s “best interests” are not determining factors in coming to a finding.
53Regarding the first branch of a test, the Board found that Mr. Farquhar-Lockett was able to understand the information relevant to making a decision about the treatment in question. Both Mr. Farquhar-Lockett and Dr. Jones take no issue with that finding.
54Regarding the second branch of the test, the Board, for reasons stated in its decision, upheld the finding of Dr. Jones that Mr. Farquhar-Lockett was incapable of consenting to treatment with anti-psychotic medications and related side-effects medication. The Board found that the evidence established that Mr. Farquhar-Lockett was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.
55Mr. Farquhar-Lockett advanced a number of grounds of appeal as set out in his notice of appeal as follows:
(i) The Board erred in not considering evidence that the Appellant is capable with respect to treatment under the Health Care Consent Act.
(ii) The Board erred in not considering evidence that the Appellant understands the hospital diagnosis and the subject matter in respect of which consent is requested and is further able to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to treatment.
(iii) The Board erred in not considering the evidence that the Appellant agreed with the hospital diagnosis, and was aware of the symptoms which lead to the misdiagnosis of being made.
(iv) The Board erred also in not considering the evidence that the Appellant saw medication as essential and that he wanted to take medication to prevent the symptoms he experienced from being beyond his control.
(v) The Board erred in not fully considering evidence that the Appellant understands the nature of the illness for which treatment is proposed and the treatment proposed.
(vi) The Board erred in not fully considering that the Appellant is a very intelligent man and was honestly reporting significant side effects of anti-psychotic medications and therefore wanted control over his own medications so as to reduce these significant side effects.
56Further, Mr. Farquhar-Lockett submitted that while there was evidence relevant to his mental health history, none of the evidence expressly or impliedly corroborated that he lacked capacity for treatment decisions.
57For the following reasons, this court finds that the Board’s decision was reasonable and correct and that the Board did not misapprehend or fail to consider all of the evidence before it. This court gives no effect to the grounds of appeal raised by Mr. Farquhar-Lockett.
58With respect to the second branch of the two-part capacity test, the Board heard the evidence of Dr. Jones, Mr. Farquhar-Lockett and had before it the two exhibits. The Board considered the totality of the evidence and was in a unique position to see and hear both parties before it. The Board specifically adverted to the requirement for a health practitioner to present cogent and compelling evidence to rebut the presumption of capacity. The expert Board was entitled to prefer the evidence of Dr. Jones to that of Mr. Farquhar-Lockett. The Board was entitled to analyze all of Mr. Farquhar-Lockett’s own evidence and explore his underlying beliefs about the possibility that he is affected by manifestations of a mental condition and about treatment. The Board did ask Mr. Farquhar-Lockett questions in this regard.
59The Board reasonably concluded that Mr. Farquhar-Lockett was not able to make a “meaningful” risk/benefits assessment of the proposed treatment. I find the Board’s conclusion that he was unable to pass the second branch of the test for capacity reasonable on all the evidence. I find the decision of the Board is not outside the range of possible acceptable outcomes on the evidence before it.
60Further, I find that Mr. Farquhar-Lockett was not able to appreciate what would likely occur if he remained untreated and without appreciating the benefits of treatment.
61I find there is nothing in the Board’s Reasons to support Mr. Farquhar-Lockett’s argument that the Board misapprehended the evidence. There is nothing to support his allegation that the Board was overly influenced by what would be the patient’s “best interests”. The Board expressly adverted to “best interests” not being a determinative factor.
62The Board heard clear, cogent and compelling evidence that Mr. Farquhar-Lockett’s real underlying belief is that the manifestations of his mental condition – auditory hallucinations, paranoia and feelings of persecution – are the voices of Satan and that he is being persecuted by God. This is his fundamental belief – despite the fact that he also said that he had schizophrenia. His real underlying belief was that he could only be healed spiritually and that the medications were contrary to his beliefs. Even though he testified that he was willing to take Risperodol and Abilify instead of Clozapine, it was open to the Board to consider and weigh this evidence in light of all of the other evidence before it.
63Based on the whole of the evidence, I find the Board came to the reasonable and correct conclusion that Mr. Farquhar-Lockett was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.
64The Reasons of the Board read as a whole support its ultimate findings. The last paragraph of the Board’s Reasons summarizes how and why the Board came to its conclusion:
Based on the evidence of Dr. Jones, the recent history as described in Exhibit 1, and JFL’s own evidence at hearing, it was clear that JFL was not able to make a meaningful risk/benefits assessment of the proposed treatment. He could appreciate some side-effects but did not appreciate the risks of not taking medications. He spoke of the benefits in general terms. He said he had schizophrenia, but did not acknowledge that auditory hallucinations and feelings of persecution were the major manifestations of his mental illness. JFL’s underlying beliefs were that medications were contrary to his religious beliefs, his voices were Satanic and his feelings of persecution was persecution from God and could only be healed spiritually.
65In reviewing the Board’s decision on the totality of the evidence before it, I am satisfied that the Board’s decision was based on evidence upon which the Board could rely and the application of the proper legal principles to that evidence. The Board’s conclusion that Mr. Farquhar-Lockett lacked capacity to consent to treatment was reasonable. The Board correctly and reasonably upheld the decision of Dr. Jones and confirmed the finding that Mr. Farquhar-Lockett was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question and, was incapable of consenting to treatment with anti-psychotic medications and related side-effects medication. The Board has a high level of expertise. It considered and applied its own statute. The Board’s decision fell within the range of reasonable outcomes available for a tribunal considering issues of mixed fact and law.
Corroboration
66Mr. Farquhar-Lockett also submits none of the evidence at the hearing expressly or impliedly corroborated that he lacked capacity for treatment decisions. He argues that the evidence of Dr. Jones was not sufficiently corroborated. In essence, he argues that Dr. Jones’ clinical opinion respecting his current treatment and capacity was not corroborated.
67It is conceded that at the time of the hearing Mr. Farquhar-Lockett was “a patient in a psychiatric facility” within the meaning of s. 14 of the Evidence Act, R.S.O. 1990, c. E. 23, s. 14.
68I find that in order for evidence to be “corroborated” for the purposes of s. 14, there does not have to be evidence of another witness. Corroboration can be based on “circumstances” presented in the case. Not every portion of an individual’s evidence has to be corroborated. The notion of corroboration is that it supports confidence in the word of the health practitioner who bears the onus of proof in a treatment incapacity hearing before the Board. Courts must strive to find corroboration where its absence might otherwise foreclose a meritorious case from succeeding. Corroborative evidence which is weak when viewed in isolation may achieve strength in combination.20
69In Garry v. Sternbauer Estate, [2000] O.J. No. 2704, at paras. 40-42, Gillies, J., then sitting as trial judge, ruled that the vital and essential portions of evidence do not have to be corroborated. This would be an obligation far in excess of what the statute contemplates. The relevant Evidence Act section does not contemplate requiring that a claim be proven by independent evidence.
70Hearsay evidence can be used as corroboration. Hearsay testimony is clearly admissible before the Board as long as it is sufficiently reliable, in the discretion of the Board. All that s. 14 of the Evidence Act requires is “…some other material evidence”: there is no statutory requirement that it be “direct” evidence. Documentary hearsay can be used as corroborative evidence. In the appropriate case, a physician’s evidence can be corroborated by the patient’s own evidence.21
71In find that a second clinical opinion as to an individual’s treatment incapacity is not required to satisfy s. 14 of the Evidence Act. Were this the case, the requirement that a second health care practitioner concur with the opinion of the health care practitioner making the finding of incapacity would have to be set out in the Health Care Consent Act, 1996. This requirement is not set out in the legislation.
72I find that the Board had before it corroborative evidence confirming Dr. Jones’ opinion – including diagnosis; Mr. Farquhar-Lockett’s clinical history, the anti-psychotic medication used to treat him in the past; the manifestations of the mental condition; his past response to treatments; and his history of stopping treatment due to a lack of insight. All of these factors were corroborated by past clinical records carefully reviewed and presented by Dr. Jones and accepted by the Board as it was entitled to do. These factors were sufficiently reliable. In addition, Mr. Farquhar-Lockett’s own testimony tended to corroborate Dr. Jones’ opinions and observations.
73For all of these reasons, none of the grounds of appeal succeed. The Board’s decision is correct and reasonable.
DISPOSITION
74The appeal is dismissed. The decision of the Board respecting Mr. Farquhar-Lockett’s treatment incapacity is confirmed as a reasonable one. Neither party sought costs.
DiTOMASO J.
Released: January 14, 2016
Footnotes
- Record, Summary, pp. 21-22
- Transcript of Evidence of Dr. Jones, pp. 6-7
- Record, Summary, p.24; Transcript, Dr. Jones, pp. 6, 16, 26
- Record, Summary, p. 25
- Record, Summary, p. 25; Transcript, Dr. Jones, pp. 18-20
- Record, Transcript, Dr. Jones, p. 26
- Record, Summary, p. 26; Transcript , Dr. Jones, p. 25
- Record, Summary, p. 26
- Transcript, Dr. Jones, pp. 7-8
- Transcript, Dr. Jones, pp. 16-18
- Transcript, Evidence of Jamie Farquhar-Lockett
- Transcript, Evidence of Jamie Farquhar-Lockett, pp. 5-56
- Record, Reasons, pp. 8-10
- Dunsmuir v. New Brunswick, 2007 SCC 9, 2007 S.C.C. 9
- Law Society of New Brunswick v. Ryan, 2003 SCC 20, 2003 S.C.C. 20, at para. 46; Dunsmuir v. New Brunswick, supra, paras. 47-48; Newfoundland & Labrador Nurses’ Union v. HMQ et al., 2011 SCC 62, [2011] 3 S.C.R. 708, paras. 11, 18
- Law Society of New Brunswick v. Ryan, supra, at paras. 47-48
- Law Society of New Brunswick v. Ryan, supra, at paras. 55-56
- Newfoundland Labrador Nurses’ Union, supra, paras. 11-12, 14-18
- Fleming v. Starson, 2003 SCC 12, 2003 S.C.C. 12, at para. 5
- Shapiro v. Tanabe, [2000] O.J. No. 213, S.C.J., at paras. 45-46
- Starson v. Fleming, supra, at para. 115; Purji v. Papatheodorou, 2013 ONSC 2537, at para. 66; Gajewski v. Wilkie, 2013 ONSC 689, confirmed on appeal, 2014 ONSC 897, at paras. 38, 40; Anten v. Bhalerao, 2013 ONCA 499