Court of Appeal for Ontario

Date: 2019-07-12 Docket: C63429 Judges: Tulloch, Benotto and Huscroft JJ.A.

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

In the Matter of: Jason Murray, a patient at the St. Joseph's Healthcare Hamilton – West 5th Campus, Hamilton, Ontario

Between

Jason Murray Respondent (Appellant)

and

Dr. Yuri Alatishe Applicant (Respondent)

Counsel

Jason Murray, acting in person

Suzan E. Fraser, appearing as amicus curiae

Janice E. Blackburn, for the respondent

Heard: May 21, 2019

On Appeal

From the order of Justice Patrick J. Flynn of the Superior Court of Justice, dated February 6, 2017, dismissing the appellant's appeal from the decision of the Consent and Capacity Board, dated September 17, 2016, with reasons reported at.

Reasons for Decision

(1) Introduction

[1] The appellant, Mr. Jason Murray, appeals against an order of the Superior Court of Justice dated February 6, 2017, which dismissed his appeal from a decision of the Consent and Capacity Board, dated September 17, 2016, that found him incapable to consent to treatment.

[2] The appellant is a 36 year old man. He has a college diploma, was gainfully employed for many years in a position of significant responsibility, and had a long-term girlfriend with whom he was very close. He has diverse interests in fishing, guiding, music, and filmmaking, and is passionate about sharing his views about contemporary political issues. As the Superior Court appeal judge found, he presents as "articulate" and "engaging."

[3] However, the appellant fell on hard times. He was first diagnosed with psychotic delusional disorder in 2013 and had been admitted to hospital on many occasions since 2013 as a result of his mental condition. Since 2015, the appellant has been the subject of inpatient court-ordered assessment concerning various criminal charges. He was found not criminally responsible on July 8, 2016. He was detained in the forensic assessment unit of St. Joseph's Healthcare Hamilton – West 5 Campus, until his first Review Board hearing.

[4] On September 12, 2016, the respondent psychiatrist, Dr. Yuri Alatishe, found the appellant incapable of making treatment decisions with respect to antipsychotic medications, mood stabilizers, benzodiazepines and anticholinergic medications, among others. These medications are the proposed treatment prescribed to address the appellant's psychotic delusional disorders, persecutory type, and potential side effects.

[5] The appellant applied to the Board for a hearing. The hearing took place on September 16, 2016. The appellant insisted on self-representing at the hearing and the Board permitted the appellant to do so.

[6] On September 17, 2016, the Board issued a decision that confirmed the respondent's finding that the appellant was incapable of consenting to treatment with respect to medications pursuant to s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A ("HCCA"). The Board accepted that the appellant was able to understand the information that is relevant to making a decision about the treatment. However, it found that the appellant was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the proposed treatment. As the appellant failed to acknowledge that he suffered from a mental condition, he was unable to evaluate the potential benefits and risks of the proposed treatment.

[7] Following the Board's decision, the appellant retained counsel. Counsel filed a notice of appeal to the Superior Court and submitted a factum on the appellant's behalf. The appellant then terminated the retainer and acted in person on the Superior Court appeal. The Superior Court dismissed the appeal, ruling that the hearing was procedurally fair and that the Board's decision was reasonable.

[8] The appellant's grounds of appeal can be summarized as follows:

1. The Consent and Capacity Board hearing was procedurally unfair;
2. The Consent and Capacity Board decision was unreasonable; and
3. Counsel who represented the appellant during his appeal to the Superior Court was ineffective.

[9] The appellant has also sought to adduce fresh evidence. This evidence falls into four categories. The first category tends to show that the appellant understood the basic chemicals that the medications contain. The second category contains the appellant's arguments about his three grounds of appeal. The third category pertains to the ineffective assistance of counsel claim. The fourth category tends to show that the appellant does not presently suffer from a mental condition.

[10] In addition, the court has appointed amicus curiae to assist the court on the appellant's behalf. Amicus has made submissions to the court on the first two grounds of appeal raised by the appellant, namely:

1. The Consent and Capacity Board hearing was procedurally unfair; and,
2. The Consent and Capacity Board decision was unreasonable.

[11] The respondent psychiatrist, Dr. Yuri Alatishe, submits that the Superior Court correctly applied the law and reasonably dismissed the appellant's appeal. He further submits that the Board made no errors in interpreting the legal test for capacity, properly applied that legal test to the evidence before it, and did not misapprehend the evidence.

(2) Procedural Fairness

[12] Section 4(1) of the HCCA outlines a two-step test for capacity to consent to treatment: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 78. First, a person must be able to understand the information that is relevant to making a treatment decision. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision. This second element requires a person to be able to apply the relevant information to her own circumstances and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof: Starson, at para. 78.

[13] Amicus submits that the hearing was procedurally unfair because the Board itself did not explain this two-step test for capacity to the appellant. Neither amicus nor the appellant challenges the correctness of the Board's decision to permit the appellant to self-represent. However, amicus submits that the fact that the appellant was unassisted by counsel made it incumbent on the Board to ensure the appellant understood the two-part test. Amicus argues that while the Board repeatedly told the appellant that the issue was about capacity, the Board never defined the test for capacity to the appellant, nor did the notice of hearing adequately inform the appellant of the applicable test. Amicus also submits that the Board did not comply with s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and that Board members' interruptions of the appellant occasioned procedural unfairness.

[14] We disagree. The Board's failure to explain the two-part test to the appellant did not undermine the appellant's ability to know the case he had to meet. The Board's summary that the respondent completed was provided to the appellant, and this document clearly outlined the two-part test and how the respondent's evidence applied to it. In the appellant's fresh evidence, he states that he received the Board's summary document only five minutes before the hearing and did not have enough time to review it. It is clear from the evidence, however, that the appellant was able to adequately review the document. The appellant stated at the hearing that "everyone's had a chance to go over [the document]." He also quoted from the last page of the summary when asking the respondent a question in cross-examination. In addition, the respondent outlined the two-part test in his opening submissions and he restated and explained the two-part test when the appellant cross-examined him. In these circumstances, the Board was not required to take additional steps to ensure the appellant understood the legal test.

[15] Our finding that the appellant was able to adequately review the Board's summary document that the respondent completed leads us to reject the argument by amicus that the Board did not comply with s. 8 of the Statutory Powers Procedure Act. Section 8 provides as follows: "[w]here the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto." It is unnecessary to decide whether the issue of incapacity put the good character, propriety of conduct or competence of the appellant at issue. Even assuming that it did, our finding that the appellant was able to adequately review the document prior to the hearing demonstrates that the Board complied with s. 8 because the appellant received reasonable information of the respondent's allegations before the hearing commenced.

[16] Finally, the Board members' interruptions of the appellant did not occasion procedural unfairness. The Board members interrupted the appellant with questions that attempted to help him focus on the issue of capacity. The appellant's comments in response to questions indicate that he understood the questions were an attempt to assist him. The interventions are consistent with the Board's duty to assist the appellant to focus on the relevant issues.

(3) Reasonableness of the Board's Decision

[17] The standard of review is reasonableness: Starson, at para. 88. Absent a legal error, the Board's decision is owed considerable deference on appeal.

[18] The Board made no legal errors and reasonably concluded that the appellant was incapable with respect to treatment. The Board correctly stated the two-part test for capacity from s. 4(1) of the HCCA. The Board then applied that test to find that the appellant did not meet the second step, since he was not able to apply the relevant information to his circumstances to weigh the foreseeable risks and benefits of a decision.

[19] We realize that this conclusion may be difficult for the appellant to accept. The appellant is very intelligent. It was uncontested before the Board that he was able to understand the information relevant to making a decision about the treatment. The appellant also did show an appreciation of the risks of the proposed medication.

[20] However, a patient who does not recognize he is affected by a mental condition may not be able to recognize the potential benefits of treatment even if he does have a rational concern about side effects: Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 53. The appellant made clear in his evidence that he did not recognize that he could be affected by the manifestations of a mental condition. He stated that he was "completely fine." Accordingly, it was reasonable for the Board to accept the respondent's evidence that the appellant was unable to appreciate the consequences of his decision because he was unable to appreciate the potential benefits of the treatment.

(4) Ineffective Assistance Claim

[21] The appellant submitted considerable fresh evidence on the ineffective assistance of counsel claim. The court has admitted this evidence to evaluate the claim.

[22] With respect to the appellant's third ground of appeal, that the appellant received ineffective assistance of counsel, amicus submits that the appellant was adequately assisted by counsel. Furthermore, amicus points out that counsel who assisted the appellant was retained for a very limited purpose after the Board's decision was delivered and prior to the hearing of the Superior Court appeal. We are not persuaded that counsel's conduct was ineffective. In any case, there was no prejudice to the appellant. He was able to present his own arguments to the Superior Court. While he claims that his counsel did not advise him that he could present fresh evidence to the Superior Court, he has presented ample fresh evidence to this court. We agree with both amicus and the respondent's submissions and would not give any effect to the appellant's ineffective assistance of counsel argument.

(5) Fresh Evidence

[23] We agree with the proposed treatment of the appellant's fresh evidence by amicus and the respondent. The first category evidence would not affect the result because the Board accepted that the appellant understood the information relevant to making a treatment decision. The second category evidence is properly argument and we have considered it as such. We have considered the third category evidence under the appellant's ineffective assistance claim. The fourth category evidence tends to show that the appellant does not presently suffer from a mental condition. However, this evidence would not affect the result. As the Supreme Court held in Starson, at para. 119, a court reviewing a decision of the Consent and Capacity Board is not concerned with the patient's present mental capacity. Instead, the focus of the appeal is the reasonableness of the Board's finding in relation to the patient's capacity at the time of the hearing.

(6) Disposition

[24] In all the circumstances, we are not satisfied that the appellant has met his onus of demonstrating that the Board hearing was unfair, that the decision of the Board confirming the appellant's incapacity was unreasonable, or that the appellant received ineffective assistance of counsel. Accordingly, the appeal will be dismissed without costs.

"M. Tulloch J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."