Court of Appeal for Ontario

Date: 2018-12-14

Docket: C65490

Panel: Hoy A.C.J.O., Feldman and Fairburn JJ.A.

In the Matter of: Michael Leger

An Appeal Under Part XX.1 of the Code

Counsel:

• Pierre-Luc Fréchette, for the appellant
• E. Nicole Rivers, for the respondent Attorney General of Ontario
• Marie-Pierre T. Pilon, for the respondent Royal Ottawa Health Care Group

Heard: December 7, 2018

On appeal against: The disposition of the Ontario Review Board, dated February 22, 2018, with reasons reported at [2018] O.R.B.D. No 715.

Reasons for Decision

[1] The appellant appeals from the February 22, 2018 disposition of the Ontario Review Board. The majority of the Board concluded that the necessary and appropriate disposition remained a detention order, with privileges up to and including living in the community in approved accommodation. However, a minority of the Board would have granted the appellant a conditional discharge. In the minority's view, s. 15(1.1) of the Mental Health Act, R.S.O. 1990, c. M. 7 (which the Board referred to as the "Box B criteria") would be available to re-admit the appellant to the Hospital, should he decompensate and not be willing to return to the Hospital voluntarily.

[2] The appellant's position is that the Board's disposition should be set aside and a conditional discharge ordered in its place. In furtherance of this position, he makes two main submissions.

[3] First, he argues that the majority of the Board made a palpable and overriding factual error in finding that he had a "propensity to decompensate within hours or days of missed doses of medication."

[4] We reject this argument. The majority's finding is rooted in – and amply supported by – the evidence of the appellant's attending psychiatrist, Dr. Strike. There is no basis for this court to interfere with it.

[5] Second, the appellant argues that the majority of the Board failed to adequately consider alternative mechanisms to affect his readmission to the Hospital upon decompensation, and that the majority's conclusion that a detention order was the least onerous and least restrictive disposition available in the circumstances was therefore unreasonable. He further argues that the majority improperly substituted a test of "most convenient to the [Hospital]" for the legal test of "least onerous and least restrictive disposition to the accused".

[6] We disagree.

[7] The appellant's current diagnosis is Schizoaffective Disorder, Bipolar Type, multiple episodes, in partial remission with medication. He is incapable of consenting to treatment. The management of the appellant's illness is complicated by his deficits in executive functioning. The appellant self-administers his daily medication, and has a proclivity to miss doses due to his cognitive difficulties.

[8] He also has a history of rapid decompensation. In one instance of decompensation, the appellant threw furniture off his sixth-floor balcony. The appellant continued to experience psychotic symptoms over the course of the review period.

[9] In Dr. Strike's opinion, a detention order continued to be required due to the risk of rapid decompensation. She reported that the appellant is very sensitive to medication changes or missed doses. The appellant can fully decompensate in a matter of two or three weeks, but "psychotic symptoms that put him at an acute risk of violent acts can happen within a shorter period such as hours." Although the appellant's insight into his illness is generally quite good, Dr. Strike testified that this insight "is not there when he's unwell" and, as a result, she was "not so confident" that the appellant would come to the Hospital voluntarily were he to decompensate.

[10] The mechanism under s. 15(1.1) of the Mental Health Act was the subject of discussion at the hearing, and the majority specifically considered whether it was sufficient to manage the appellant's risk to public safety in the event of decompensation. Section 15(1.1) of the Mental Health Act allows a physician to bring an application for a psychiatric assessment of a person if, among other requirements, the application is signed by a physician within seven days after he or she examined the person who is the subject of the examination.

[11] Dr. Strike testified that the appellant is not currently seeing her every seven days. In her view, the mechanism under s. 15(1.1) of the Mental Health Act would be "too onerous" on the appellant, presumably because it would entail requiring the appellant to see her more frequently in order for it to be a viable option.

[12] The majority accepted Dr. Strike's evidence. The majority wrote:

[T]he detention order continues to be required to effect rapid readmission to hospital given the very brittle nature of [the appellant's] illness and his propensity to decompensate within hours or days of missed doses of medication. Though the Mental Health Act Box B criteria might be available to effect involuntary readmission to hospital, the Form 49 under the detention order is the most accessible and immediate means of readmission, at the first sign of decompensation.

[13] The majority's conclusion that a detention order was the least onerous and least restrictive disposition available, given the need to manage the appellant's risk to public safety, was reasonable and amply supported by the evidence before the Board. We see no basis to interfere with that conclusion.

[14] Further, the majority of the Board did not substitute a test of "most convenient to the Hospital", as suggested by the appellant. The majority correctly framed the legal test at several points in its Reasons for Disposition as being the "least onerous and least restrictive" disposition available to the appellant. The portion of the majority's Reasons impugned by the appellant – namely, its reference to Form 49 as being the "most accessible and immediate means of readmission" – was directed towards the need to ensure the appellant's timely re-admission to the Hospital, given his propensity to decompensate rapidly. On the evidence before the Board, this was a legitimate consideration.

[15] Accordingly, the appeal is dismissed.

"Alexandra Hoy A.C.J.O."

"K. Feldman J.A."

"Fairburn J.A."