COURT OF APPEAL FOR ONTARIO DATE: 20231206 DOCKET: C67146
van Rensburg, Nordheimer and George JJ.A.
BETWEEN
Rees Kozoubenko Appellant
and
Dr. Milena Gosk Respondent
Counsel: Rees Kozoubenko, acting in person Lisa Leinveer, appearing as amicus curiae John McIntyre and Nicole Fielding, for the respondent
Heard: August 29, 2023
On appeal from the order of Justice Andrew A. Sanfilippo of the Superior Court of Justice, dated June 6, 2019, with reasons reported at 2019 ONSC 3529.
van Rensburg J.A.:
A. Overview
[1] The appellant, Rees Kozoubenko, was found incapable of consenting or refusing consent to treatment with anti-psychotic medications while he was an involuntary patient at the Centre for Addiction and Mental Health (“CAMH”) during a two-month period in 2018. The finding of incapacity was upheld on review by the Consent and Capacity Board (the “Board”) while Mr. Kozoubenko was a patient at CAMH, and Mr. Kozoubenko’s appeal to the Superior Court of Justice (the “SCJ”) was dismissed in 2019. His further appeal to this court, initiated in 2019, only came before us in August 2023, together with a motion by the respondent, Dr. Milena Gosk, to introduce fresh evidence and to dismiss the appeal as moot. On the day of the hearing, Mr. Kozoubenko asked for an adjournment so he could gather more documents for his appeal. We proceeded to hear argument on the respondent’s motion to dismiss, reserved our decision on the motion and then adjourned the appeal. For the reasons that follow, I would grant the respondent’s motion, and dismiss the appeal as moot.
B. Facts
[2] Mr. Kozoubenko was diagnosed with “psychosis not otherwise specified” and “bipolar disorder with psychotic features” after he began to experience mental health problems as a student in London, Ontario. He was treated for about a year in an out-patient program at a local hospital. In April 2016, having experienced a mental health crisis, he was brought by police to the hospital, where he was prescribed olanzapine, an anti-psychotic medication. He refused to take the medication because of concerns about its side effects, and he was discharged from hospital the next day. From May 2016 to September 2018 Mr. Kozoubenko was followed as an out-patient by a psychiatrist at the hospital, during which time he was prescribed and took olanzapine, initially at a dose of 2.5 mg, increasing to 5 mg in May 2018.
[3] In August 2018, Mr. Kozoubenko moved to Toronto to live with his mother. His last clinical interaction with the out-patient psychiatrist in London was in September 2018.
[4] On October 26, 2018, Mr. Kozoubenko’s mother called the police because she found her son’s behaviour threatening. He was taken to Mount Sinai Hospital, after which he was sent by cab to CAMH and left shortly after arriving. He was returned to CAMH by police in the early morning of October 27, 2018, and was then admitted to the CAMH Early Psychosis Unit. He advised that he had stopped taking olanzapine about a month earlier.
[5] Dr. Gosk, who is a psychiatrist at CAMH, and a psychiatric resident attempted to discuss with Mr. Kozoubenko their diagnosis of schizophrenia and the rationale for proposing that he take a different anti-psychotic medication, paliperidone. Mr. Kozoubenko refused to participate or to acknowledge the presence of the doctors; he also denied the presence of psychosis and that he had a psychiatric condition.
[6] On October 29, 2018, Dr. Gosk determined that Mr. Kozoubenko was incapable of consenting or refusing consent to treatment with anti-psychotic medications, both oral and injectable. She concluded that Mr. Kozoubenko satisfied the first part of the two-part test set out in s. 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”): he had the ability to understand the information that was relevant to making a decision about the proposed treatment. However, she determined he did not satisfy the second part as he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
[7] Mr. Kozoubenko applied to the Board under s. 32(1) of the HCCA for a review of the finding of incapacity. On November 16, 2018 (while Mr. Kozoubenko was still an involuntary in-patient at CAMH), the Board confirmed Dr. Gosk’s finding. Briefly, the Board concluded that Dr. Gosk’s opinion was supported by the evidence as a whole, including Mr. Kozoubenko’s own testimony. The Board considered Mr. Kozoubenko’s evidence at the hearing that he had said he was prepared to take 2.5 mg of olanzapine, noting that his out-patient psychiatrist had increased the dosage to 5.0 mg in May 2018, only after numerous attempts to do so. While Mr. Kozoubenko had told a social worker and another psychiatrist at CAMH he was willing to take 2.5 mg of olanzapine, later he said he wanted fish oil and vitamins instead of olanzapine. According to the Board, Mr. Kozoubenko absolutely refused to take anti-psychotics at a level that would reduce his symptoms, and most of the time he refused to even take 2.5 mg of olanzapine.
[8] Mr. Kozoubenko appealed the Board’s decision to the SCJ pursuant to s. 80 of the HCCA. The appeal was initiated while he was still an in-patient at CAMH, was heard in March 2019, and was dismissed on June 6, 2019. Sanfilippo J. (the “Appeal Judge”) concluded that the Board had ample evidence to make its determination of incapacity as to treatment. The Appeal Judge found that the Board correctly interpreted the applicable capacity test under s. 4 of the HCCA. He also found that the Board had a reasonable basis to find that the appellant’s inability to appreciate the reasonably foreseeable consequences of a decision – the second branch of the capacity test – was not affected by the nature of his relationship with the treating physicians but rather by symptoms of his psychosis. He further found, in coming to its conclusions, that the Board appropriately weighed the appellant’s evidence against the record. The Board had corroborative evidence confirming the evidence and diagnosis of Dr. Gosk, including detailed records from Mr. Kozoubenko’s time in London. Ultimately, the Appeal Judge found the decision of the Board was reasonable and entitled to deference. [^1]
[9] Mr. Kozoubenko filed a notice of appeal and certificate respecting evidence in this court on July 5, 2019. No further steps were taken by or on behalf of Mr. Kozoubenko to advance the appeal. On September 22, 2022, at the request of the respondent, amicus curiae was appointed to assist the court with respect to the appeal.
[10] Amicus filed a factum asking that the SCJ order be reversed, that the decision of the Board be quashed, and that this court make an order that Mr. Kozoubenko was capable at the time of his assessment and the Board review in October and November 2018 in respect of the specified psychiatric treatment, or alternatively that the matter be referred back to the Board for a new hearing.
[11] Dr. Gosk’s factum contends that there was no reversible error that would warrant allowing the appeal. Dr. Gosk also brought a motion for the admission of fresh evidence and for an order dismissing the appeal as moot.
C. The Fresh Evidence
[12] The fresh evidence consists of an affidavit from Dr. Gosk dated May 17, 2023. The affidavit states that, as of that date, Mr. Kozoubenko was no longer receiving in-patient treatment at CAMH, that no physician from CAMH is proposing any treatment at this time, and that, because Mr. Kozoubenko has not been treated since 2018, a new capacity assessment would be required if new treatment were proposed.
[13] The affidavit indicates that, while Mr. Kozoubenko was an in-patient at CAMH, on December 21, 2018, the SCJ made an order, agreed to by Mr. Kozoubenko, that he be administered 2.5 mg of olanzapine pending the final disposition of the appeal. He was discharged from CAMH on December 27, 2018. The discharge note states that he was discharged after his involuntary status was terminated because he was highly disruptive on the unit and was blocking treatment due to his appeal. He was referred to a CAMH out-patient service, but cancelled his first appointment and did not access the service. Mr. Kozoubenko subsequently attended at the CAMH emergency department on two occasions: first, in May 2020 when he was administered 2.5 mg of olanzapine on the basis of the earlier SCJ order and he was discharged with follow-up to the CAMH Bridging Clinic (which he did not access); and second, in November 2022, when no treatment was proposed, and he was discharged.
[14] The introduction of the fresh evidence for the purpose of the mootness motion was not opposed by amicus. We admitted the fresh evidence under both the Palmer v. The Queen, [1980] 1 S.C.R. 759 test and under s. 80(9) of the HCCA, which authorizes the court to receive new or additional evidence on an appeal that it considers just. The evidence is both relevant and necessary for the purpose of determining whether Mr. Kozoubenko’s further appeal to this court is moot, and, if so, whether this court should exercise its discretion to permit the appeal to proceed.
D. Discussion
[15] An appeal is moot where the “tangible and concrete dispute has disappeared”, that is, when there is no live controversy that requires resolution between the parties: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353. The court may nevertheless exercise its discretion to hear a moot appeal. One factor to consider is whether the court’s decision on the appeal will have a practical effect on the rights of the parties: Borowski, at p. 360.
[16] The determination of Mr. Kozoubenko’s capacity in 2018 was in respect of his consent to the specific treatment Dr. Gosk was recommending. Mr. Kozoubenko was discharged from CAMH in December 2018, and there is no ongoing treatment, nor any proposed treatment of Mr. Kozoubenko by Dr. Gosk or CAMH.
[17] Dr. Gosk contends that the appeal is moot because there is no live dispute between the parties: the decision sought to be appealed is the determination of Mr. Kozoubenko’s capacity in respect of a particular treatment that was proposed while he was an in-patient at CAMH. Now, five years later, Mr. Kozoubenko is not being treated at CAMH, nor is any treatment proposed. Dr. Gosk submits that, even if this court were to allow the appeal, it would be speculative in the circumstances of this case to conclude that Mr. Kozoubenko’s capacity to refuse anti-psychotic medication in 2018 would have any practical effect on any future treatment decision.
[18] Mr. Kozoubenko and amicus submit that the appeal should be heard because the appeal might have a practical effect on Mr. Kozoubenko’s rights. Amicus points to s. 21(1) of the HCCA, which requires a person’s substitute decision-maker (“SDM”) to give or refuse consent to treatment in accordance with a prior capable wish made by the person in similar circumstances. Amicus submits that, if this court were to allow the appeal and find that Mr. Kozoubenko was in fact capable in respect of his decision respecting treatment in the fall of 2018, this would constitute a prior capable wish that his SDM would be required to follow if he were found incapable with respect to future treatment.
[19] I accept that the appeal is moot because there is no longer a “live controversy” between Mr. Kozoubenko and Dr. Gosk. The question is whether the court should exercise its discretion to hear the appeal on the basis that a decision will have an effect on Mr. Kozoubenko’s rights.
[20] The mootness issue has been addressed in several cases in the context of appeals to the SCJ of Board orders respecting capacity to consent to treatment, where the argument was advanced that the appeal should be heard because it would have a practical effect on a former patient’s right to rely on a prior capable wish if they were found incapable in the future. In some cases, the appeal was dismissed as moot: see, e.g., Adsett v. Labelle, 2023 ONSC 2842; A.N. v. Guimond, 2020 ONSC 6751 and Giannoylis v. McIntyre, 2018 ONSC 547. In other cases, the appeal was permitted to proceed: see e.g., M.L. v. Meng, 2023 ONSC 4775; M.N. v. Klukach, 2004 ONSC 6325, 12 Admin L.R. (4th) 101 and Doherty v. Horowitz, 2016 ONSC 4457. The determination of whether an appeal of a Board decision respecting capacity, while moot, should be heard, requires a fact-specific evaluation of the circumstances to determine whether a decision on appeal will have a practical effect on the former patient’s rights.
[21] In Dickey v. Alexander, 2016 ONCA 961, this court dismissed as moot an appeal by a health practitioner from an SCJ order that had overturned an incapacity finding. The appellant argued that if the SCJ order were allowed to stand, it might be used in support of a “prior capable wish” and preclude the administration of drugs without the respondent’s consent. In declining to exercise its discretion to hear the appeal, the court noted that, while the determination that the respondent had capacity three years earlier might be evidence relevant to determining his capacity in a future instance, it was not clear it would be determinative. The court also noted that there are statutory mechanisms available to the parties in the event of a future incapacity finding: at paras. 11-12.
[22] The point of departure is the recognition that a person’s capacity to consent to treatment is time and treatment specific. The HCCA provides for a presumption of capacity and recognizes that capacity is assessed with respect to a particular treatment and may fluctuate over time: ss. 4(2) and 15. The Board’s decision is specific to the person’s capacity at the time of the hearing: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 118. This means that in respect of any future treatment, Mr. Kozoubenko will be presumed capable, and whether he has or lacks capacity to consent to any proposed treatment will have to be assessed at the time the treatment is recommended.
[23] The HCCA provides a detailed framework for addressing a person’s capacity to consent to treatment, including the standard for determining a person capable or incapable in respect of a particular treatment (s. 4), the procedure to review a finding of incapacity (s. 32), and how decisions are to be made by a person’s SDM and/or the health practitioner in the event of a finding of incapacity (ss. 20, 21 and 35), including recourse to the Board in the event that a person’s prior capable wish is unclear (s. 35), and the procedure to depart from a prior capable wish (s. 36).
[24] I have considered the circumstances of the present case. For the reasons that follow I am not persuaded that the determination of the appeal some five years after the 2018 incapacity finding would have a practical effect on Mr. Kozoubenko’s rights such that the appeal should be heard notwithstanding that it is moot.
[25] First, there is no information in the record before the court about Mr. Kozoubenko’s current mental health status and condition, other than that he has no ongoing therapeutic relationship with CAMH. While the court was advised by amicus that Mr. Kozoubenko is living in difficult conditions and that no treatment is being “held up” as a result of the appeal, there is unfortunately no information about any interactions he may have had with any health practitioner other than the two brief contacts with the CAMH emergency department, and whether he has been offered and accepted or refused any form of treatment. The absence of information about Mr. Kozoubenko’s current circumstances makes it difficult to assess whether hearing the appeal would have any practical effect on his rights.
[26] Second, capacity to consent to treatment must be determined afresh each time a new treatment is proposed. Whether or not the appeal is successful, any future treatment that is proposed would require the health practitioner to consider whether Mr. Kozoubenko is capable of consenting to that treatment at that time. In each case a new capacity assessment would have to be performed. Any subsequent opinion with respect to Mr. Kozoubenko’s capacity to consent to a particular treatment would also be subject to the review and appeal procedures provided under the HCCA.
[27] Third, if this court were to determine that the Board erred and that Mr. Kozoubenko was in fact capable in October 2018, it may be difficult to discern a “prior capable wish” from the circumstances that existed at that time: was it Mr. Kozoubenko’s wish in October and November 2018 not to be treated at all with anti-psychotic medication, or was it, as he later agreed, to take olanzapine, but at a suboptimal dose of 2.5 mg? At a minimum, the record suggests that Mr. Kozoubenko’s wishes were inconsistent over the course of the two-month period of his assessment by Dr. Gosk and the Board hearing.
[28] Fourth, even if the expression of a prior capable wish could be ascertained from what transpired in October and November 2018, Mr. Kozoubenko’s SDM could depart from that wish with the approval of the Board. According to the record before us, Mr. Kozoubenko’s mother indicated, while he was an in-patient at CAMH, that she would refuse 2.5 mg of olanzapine because it was a subtherapeutic dose, he was non-compliant when taking it before and because he had substantial weight gain when he took it. The availability of a statutory procedure for determining and departing from a prior capable wish expressed by a person found incapable of consenting to treatment is a relevant factor: see Dickey, at para. 11.
[29] Finally, I note the significant period of time between the finding of incapacity, and its review and the SCJ appeal, and the proposed hearing of a further appeal in this court. The HCCA anticipates that decisions about a person’s capacity to consent to a specific treatment are to be made in real time – that is, when they will have practical effect. The appeal mechanisms under the Act anticipate that appeals will proceed expeditiously: s. 80. While an appeal is pending and until it has been finally determined, the ability to administer the proposed treatment is suspended: s. 18(3). Hearing a second appeal at this late stage, when there is no ongoing treatment relationship between Mr. Kozoubenko and CAMH, and no practical context for the operation of a prior capable wish, is inconsistent with the underlying approach of the legislation. In L.(L.) v. T.(I.) (1999), 46 O.R. (3d) 284 (C.A.), this court emphasized the importance of expeditious decision-making under the HCCA: at para. 21.
E. Disposition
[30] For these reasons I would dismiss the appeal to this court, without determining its merits, on the basis that it is moot.
Released: December 6, 2023 “K.M.v.R.” “K. van Rensburg J.A.” “I agree I.V.B. Nordheimer J.A.” “I agree J. George J.A.”
[^1]: The SCJ Appeal predated the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, in which the court confirmed that, when (as here) the legislation provides for an appeal to a court from a decision of an administrative tribunal, the typical appellate standard of review (correctness on questions of law and palpable and overriding error on questions of fact or mixed fact and law) applies.