Court File and Parties

COURT FILE NO.: CV-15-530544 DATE: 20160715

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, 1996, S.O. 1996, c.2, Schedule A

AND IN THE MATTER OF

STEPHEN DOHERTY a patient at CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET SITE Toronto, Ontario

BETWEEN:

STEPHEN DOHERTY Responding Party (Appellant in the Appeal) – and – DR. GLENDA HOROWITZ Moving Party (Respondent in the Appeal)

COUNSEL: D’Arcy J. Hiltz, for the Responding Party/(Appellant in the Appeal) Kendra A. Naidoo, for the Moving Party/(Respondent on the Appeal)

HEARD: June 9, 2016

LEDERER J. :

INTRODUCTION

[1] This appeal was brought by Stephen Doherty. He seeks to quash a Decision of the Consent and Capacity Board, dated June 3, 2015. The Board upheld a finding that Stephen Doherty was incapable of consenting to treatment; in this case, with antipsychotic medication, stabilizers, side effect medications and sedatives and hypnotics.

BACKGROUND

[2] Stephen Doherty was brought to the Centre for Addiction and Mental Health – Queen Street Site (CAMH) – by the police and the mobile crisis unit. He was admitted as an involuntary patient on May 24, 2015. He was found incapable of consenting to the treatment proposed by Dr. Karina Stone on May 26, 2015. On the same day, but subsequent to that determination, the care of Stephen Doherty was transferred to the respondent to this appeal, Dr. Glenda Horowitz. On May 27, 2015, Stephen Doherty applied to the Consent and Capacity Board seeking a review of the finding of incapacity. On May 28, 2015, Dr. Glenda Horowitz assessed Stephen Doherty. Among other things, she confirmed the finding of incapacity that had been made by Dr. Karina Stone. The Board held a hearing and rendered its decision on June 3, 2015. Its reasons are dated June 29, 2015 and, presumably, were released on that date or very shortly thereafter. The Notice of Appeal bears the date of June 12, 2015, which is to say, the appeal was launched before the reasons were released.

[3] Only one witness was called to give evidence before the Board. Dr. Lovneet Hayer was a medical resident working with Dr. Glenda Horowitz. Dr. Lovneet Hayer testified that Stephen Doherty experienced psychotic and manic symptoms. He explained that the psychotic symptoms included religious preoccupation and paranoid delusions. Stephen Doherty’s manic symptoms included decreased sleep, pressured speech, disinhibition, flight of ideas and irritable and aggressive behaviour. Stephen Doherty had demonstrated a pattern. His symptoms receded while treated in hospital. Stephen Doherty was discharged and discontinued medication. His symptoms returned within a couple of weeks. At the time of the hearing, these manic and psychotic symptoms had returned to nearly baseline. Dr. Lovneet Hayer acknowledged that there was no doubt that Stephen Doherty had improved. [1] He testified that, despite the improvement, Stephen Doherty had not gained insight into his condition. At the time of the hearing, Stephen Doherty did not believe that he had a mental condition or that any changes in his behaviour had been a result of a mental condition. Rather, he attributed the changes in his behaviour to the antipsychotic medication he had received.

[4] In its reasons, the Consent and Capacity Board agreed that Stephen Doherty was able to understand the information relevant to making a decision about the proposed treatment, but found, unanimously, that he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about that treatment.

[5] As a result of this appeal, the proposed treatment could not be initiated. On June 8, 2015, Stephen Doherty was transferred to the care of Dr. Justin Geagea. This doctor recommended that the treatment plan focus on follow-up, monitoring and psycho-education, rather than forcing Stephen Doherty to take medication. Stephen Doherty was discharged from CAMH on July 12, 2015. His outpatient care was to be assumed by Dr. John Klukach, a psychiatrist with Toronto East General Hospital. The discharge plan did not include the classes of medication that had been proposed. Stephen Doherty has not been a patient at CAMH since his discharge, and neither CAMH nor Dr. Glenda Horowitz is currently proposing treatment for him.

IS THE APPEAL MOOT?

[6] Counsel for Dr. Glenda Horowitz submitted that the Court should not consider the merits of this appeal. The decision of the court will have no practical effect on the rights of the parties. Thus, the dispute before the court is moot. In Borowski v. Canada (Attorney General), [2] the Supreme Court of Canada developed the “doctrine of mootness” to determine when a court may exercise its discretion to decide upon an otherwise moot dispute.

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. [3]

[7] This application of the doctrine involves a two-step analysis:

First, whether the required tangible and concrete dispute has disappeared and the issues have become academic; and,

Second, if the response to the first question is affirmative, whether the Court should exercise its discretion to hear the case. [4]

[8] There are a significant number of cases where the patient is no longer under the care of the doctor who made the finding of incapacity, is no longer being treated by the facility with which that doctor is associated and where the treatment at issue is no longer being proposed. In such circumstances, the courts have found that there is no live issue between the parties, invoked the doctrine of mootness and refused to consider the merits. [5]

[9] In this situation, doing nothing other than following such cases, the answer to the first of the two questions posed in Borowski would be “yes”. Stephen Doherty is no longer a patient at CAMH, is no longer under the care of Dr. Glenda Horowitz and there is no treatment currently being proposed. There is no live issue between the parties. This would, subject only to a consideration of the second of the questions from Borowski, lead to the conclusion that this proceeding is moot.

[10] Counsel for Stephen Doherty does not accept this as the appropriate analysis. In his view, the issue is not dead. The decision of the Consent and Capacity Board has a continuing impact. The Health Care Consent Act, 1996 [6] provides a list of “substitute decision makers”. [7] These people, should they come to make a decision with respect to the treatment of another, are required to follow prescribed principles which include the wishes expressed, in applicable circumstances, by the incapable person at a time when he or she was capable. [8]

[11] In the case of Neto v. Klukach [9], the court considered a circumstance similar to the one presently before the court. The appellant, Maria Neto, while a patient at CAMH, refused treatment. The doctor who was responsible determined she lacked capacity to make this decision. Maria Neto refused to acknowledge that she had bipolar disorder or that she was currently manic and appeared to have delusional beliefs about the medication being prescribed. On an appeal to this court, counsel for the doctor submitted the issue of whether Maria Neto lacked capacity was moot and that judgment should not be rendered. It was argued that a “live controversy must be present not only when the action or proceeding is commenced, but also when the court is called upon to reach a decision.” [10] By the time the appeal was heard, Maria Neto had been discharged from the hospital and was no longer under the care of the doctor who was the respondent. She was being treated, as an outpatient, by a different physician. Nonetheless, the court did not apply the mootness doctrine because a finding that Maria Neto had been capable at a time she refused treatment would provide direction to any substitute decision-maker called upon to act on her behalf should a similar circumstance arise in the future:

There is still a live issue that will potentially affect Ms. Neto. If she is ever judged to be incapable in the future, having been found capable at the time of her hearing would result in mandating that her capable expression of her wishes regarding the treatment prescribed by Dr. Klukach would have to be respected by her substitute decision-maker. [11]

[12] The Board went on to consider the merits of the appeal. Counsel for Stephen Doherty submitted that the same logic applies to this case.

[13] The leading case concerned with these questions is said to be Starson v. Swayze [12]. In that case, the Supreme Court of Canada defined the problem:

The HCCA confronts the difficult problem of when a mentally ill person may refuse treatment. The problem is difficult because it sets in opposition fundamental values which we hold dear. The first is the value of autonomy — the ability of each person to control his or her body and consequently, to decide what medical treatment he or she will receive. The second value is effective medical treatment — that people who are ill should receive treatment and that illness itself should not deprive an individual of the ability to live a full and complete life. A third value — societal protection — comes into play in some cases of me[n]tal illness [ sic ]. Where the mentally ill person poses a threat of injury to other people or to him – or herself, it may be justified to impose hospitalization on the basis that this is necessary in the interests of public safety… [13]

[14] There is no suggestion Stephen Doherty posed any threat of injury to himself or others. The question of “societal protection” (the third of the three protections in Starson v. Swayze) did not and does not arise.

[15] The Health Care Consent Act, 1996 makes it clear that capacity is both time-specific and treatment-specific. It says:

15. (1) A person may be incapable with respect to some treatments and capable with respect to others. (2) A person may be incapable with respect to a treatment at one time and capable at another. [14]

[16] When the Consent and Capacity Board “reviews” a determination by a treating doctor that a patient is incapable of making a treatment decision, it may:

…confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner. [15]

[17] When these provisions are considered together, it becomes apparent that the Consent and Capacity Board is free to make a determination of its own, taking into account the circumstances at the time of its hearing (as opposed to the situation when the attending physician concluded the patient was incapable):

A patient’s capacity may fluctuate over time. The Board’s decision is specific to the patient’s capacity at the time of the hearing. [16]

[18] The same is true for the Court. It holds the same authority to make a fresh decision of its own judged by the circumstances made known to it and current at the time of the proceeding before it. [17] This being so, it becomes apparent that the second of the three values referred to in Starson v. Swayze is also no longer a concern. Doherty was discharged from CAMH on June 12, 2015 (nine days after the hearing conducted by the Consent and Capacity Board). The discharge plan did not include the treatment at issue:

At this point in looking at long term recovery and look [sic] at Mr. Doherty’s way of relating, I believe that the optimal path to recovery, at this time, is through outpatient follow-up, rapport building, psychoeducation, family education, sleep monitoring and monitoring of symptoms. Medications should be offered as well for prophylactic value (client is refusing medications on this unit, but the lithium was proposed, vs antipsychotic medication, which were also offered). [18]

[19] This leaves the first of the three values referred to in Starson v. Swayze. This is the value of personal autonomy:

Mentally ill persons are not to be stigmatized because of the nature of their illness or disability; nor should they be treated as persons of lesser status or dignity. Their right to personal autonomy and self-determination is no less significant, and is entitled to no less protection, than that of competent persons suffering from physical ailments. [19]

[20] To apply the doctrine of mootness and to fail to deal with the merits of this appeal would ignore this significant value. It would follow that the answer to the first of the two questions raised in Borowski (see para. [7], above) would be in the negative. As it is, the issues have not become academic. There is a concrete dispute which remains extant. It arises from the observation in Neto v. Klukach that the potential impact on a substitute decision-maker, at some future time, is reason enough to find that an appeal is not moot. This is a confirmation of a statement found in Starson v. Swayze which could be where the idea originates:

…A finding that Professor Starson is capable may have an important effect on future treatment decisions. If he subsequently becomes incapacitated, the attending physician needs consent to treatment from his substitute decision-maker: see s. 10(1)(b) of the Act. If the substitute decision-maker knows of a prior capable wish that is applicable to the circumstances, consent must be given or refused in accordance with that wish: s. 21. Consequently, the Board’s previous determination that Professor Starson was capable may be relevant to whether he had expressed wishes that are applicable to future circumstances. If so, he has the right to have that capacity recognized in law, so that sufficient recognition may be accorded to any wishes expressed at that time. [20]

THE TEST

[21] The test to be applied in determining whether a patient is capable of consenting to treatment is set by the Health Care Consent Act, 1996:

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. [21]

[22] There are two branches to the test: the first reflects on the ability to understand the information that is relevant to making a decision about treatment and the second on the ability of the patient to appreciate the reasonably foreseeable consequences of a decision or lack thereof. [22] The application of the test begins with the presumption that the person is capable with respect to treatment. [23] In this case, it was the evidence of Doctor Lovneet Hayer and the determination of the Consent and Capacity Board that Stephen Doherty had the ability to understand information relevant to making a decision about his treatment. Thus, he satisfied the first branch of the test. It is the second part of the test that was the cause of concern. The doctor testified and the Board concluded that Stephen Doherty was unable to appreciate the reasonably foreseeable consequences of his decision. [24]

[23] How are we to understand this branch of the test? A patient’s refusal to acknowledge a mental illness is insufficient, on its own, to prove incapacity:

…First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and ‘capable but dissident interpretations of information’ are to be expected… [25].

[24] It is not that the patient has to agree with the particular diagnosis. He or she does not. Rather, what is required is that in circumstances where it is demonstrated that the patient has a mental “condition”, he or she must be able to recognize the possibility of being affected by that condition. [26] If the condition results in the patient being unable to recognize that he is affected by its manifestations, he or she will be unable to apply the relevant information to his circumstances and unable to appreciate the consequences of his decision. [27]

[25] What is required is the ability to appreciate consequences, not an actual appreciation of those consequences. It is only the inability to understand and appreciate as a result of a mental illness that may give rise to a finding of incapacity. A person who fails to understand, but is nonetheless able to do so, should not be found to be incapable. [28]

[26] Individuals who are capable have the right to take risks. They are free to make decisions that would generally be considered to be unreasonable [29]:

It is a mental capacity, not wisdom that is at issue here. The appellant… carries with her, like all citizens, the right to be wrong. [30]

STANDARD OF REVIEW

[27] The interpretation of the legal standard for capacity is a question of law and no deference is owed to the Consent and Capacity Board. In Starson v. Swayze, the judgment of the majority noted:

The interpretation of the legal standard for capacity is a question of law: see Southam, supra, at para. 35. No deference is owed to the Board on this issue. As noted above, the broad statutory right of appeal and adjudicative nature of the proceedings militate against deference. Furthermore, courts clearly have relative expertise on general questions of statutory interpretation. One of the stated purposes of the Act is to provide for the consistent application of its rules: s. 1. Consistency requires courts to ensure that individual panels do not diverge in their interpretation of statutory provisions. Finally, this question of law has broad application and need not be resolved anew on each appeal. A correctness standard of review on this issue will not impede the expeditious treatment of patients. [31]

[28] The application of the facts to the legal standard was dealt with as follows:

The question under review is the Board’s determination of capacity. This is a question of mixed fact and law: the Board must apply the evidence before it to the statutory test for capacity. In the absence of any error in law, this question is relatively fact-intensive: see Southam, supra, at paras. 35-37. Applying the pragmatic and functional approach to this question, it is clear that reasonableness [as opposed to patent unreasonableness] is the appropriate standard of review. [32]

[29] The dissenting judgment agreed and, as might be expected, applied a similar deferential standard of review to findings of fact:

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 the 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. [33]

[30] The reference to the “pragmatic and functional approach” notes the analytical approach to assessment of the standard of review in place prior to the seminal case of Dunsmuir v. New Brunswick. [34] That case realigned the examination of this issue as it applies, in particular, to judicial review. Housen v. Nikolaisen [35] decided a little over a year before Starson v. Swayze [36] considered the issue of standard of review as it applies to appeals. Under its approach, questions of mixed fact and law fall on a spectrum, ranging from matters with precedential value, generally matters of legal principle, tending towards the correctness end and those reliant on the particular circumstances, generally questions of fact, falling towards the deferential or palpable and overriding error side. [37] To my mind, this demonstrates no change in this analysis from that found in Starson v. Swayze. The questions asked with respect to decision of the Consent and Capacity Board in respect of Stephen Doherty, insofar as they raise issues of mixed fact and law, should be decided on a deferential scale, that is to say, reasonableness.

ANALYSIS

[31] The position of Stephen Doherty is founded on statements made by Dr. Lovneet Hayer in his testimony before the Consent and Capacity Board. This part of his evidence focused on the changes in the condition of Stephen Doherty from the time he was assessed by the respondent, Dr. Glenda Horowitz, on May 28, 2016 to the finding of the Board made on June 3, 2016. [38]

[32] In his evidence, Dr. Lovneet Hayer agreed that, between those dates, the condition of Stephen Doherty improved. Initially, he demonstrated manic symptoms. He had pressured speech and flight of ideas (meaning he jumped from idea to idea). He was more “disinhibited”, making a lot of inappropriate comments. This had “tempered”. [39] His thought form had become more organized. [40] His symptoms had disappeared. [41]

[33] This change had taken place in circumstances where he had received medication upon his admission to the AC unit, but nothing since. By the time of the hearing, the effect of the medication would have worn off. [42] By then, Stephen Doherty was not on, and did not require, any medication. [43]

[34] Dr. Lovneet Hayer was unable to say whether or not Stephen Doherty was still delusional. [44]

[35] The question is whether this improvement inexorably leads to the conclusion that, at the time of the hearing, Stephen Doherty was capable with respect to the treatment being proposed. In this case, did he satisfy the second branch of the test set out in the Health Care Consent Act, 1996: Was he able to appreciate the reasonably foreseeable consequences of a decision or lack of decision (see: para. [21], above)? Was the decision of the Consent and Capacity Board that he was not able to, unreasonable?

[36] There is nothing to suggest that, to be found incapable, a patient must be experiencing acute symptoms at the time of the assessment. Rather, the test considers whether a person has the ability to appreciate the risks and benefits of accepting or refusing treatment. A person can be incapable with respect to a treatment when that treatment is intended to prevent the re-emergence of symptoms. The admission of Stephen Doherty to CAMH was one of a series. Stephen Doherty began demonstrating paranoia in the spring of 2014. Family members became concerned that he had become preoccupied with his health and with conspiracies. He was experiencing disturbed sleep and making bizarre threatening posts on social media. On November 17, 2014, Stephen Doherty was admitted to Toronto East General Hospital for psychiatric care. He was diagnosed by Dr. Martin Chisvin, who opined that Stephen Doherty had likely been suffering from early symptoms of this illness for some time prior to the emergence or more prominent symptoms in the preceding year. [45] Dr. Martin Chisvin found Stephen Doherty incapable with respect to treatment. This finding was upheld by the Consent and Capacity Board. [46] Stephen Doherty was discharged on December 1, 2014. [47]

[37] Throughout December 2014, Stephen Doherty exhibited pressured speech, high energy and disturbed sleep. He was admitted to CAMH on December 28, 2014. At the time he was admitted, Stephen Doherty expressed grandiose, religious and persecutory delusions. He was treated with antipsychotic medication and demonstrated more organized thoughts and a decrease in focus on delusions. During this admission, Stephen Doherty acknowledged that some of his symptoms were not consistent with his baseline personality. However, he was noted to have little insight into his psychiatric symptoms. He questioned his diagnosis and expressed the view that his recovery had been as a result of improved sleep and not the antipsychotic medication he had received during the admission. Stephen Doherty was discharged on January 9, 2015 with a plan that he would continue to use antipsychotic medication and would be connected with psychiatric services in the community. He stopped medication immediately upon discharge. [48]

[38] On February 1, 2015, Stephen Doherty was admitted to St. Michael’s Hospital. He received antipsychotic medication. He was discharged on February 13, 2015 and immediately discontinued medication. [49]

[39] During the period following his discharge from St. Michael’s Hospital, Stephen Doherty again engaged in bizarre behaviour. He was not sleeping and had incidents of being confused. On May 24, 2015, Stephen Doherty was disorganized and incoherent. Stephen Doherty was behaving bizarrely and had concealed a knife in his pants. It was on this occasion that he was admitted to CAMH, the assessment made by the respondent, Dr. Glenda Horowitz, the appeal taken to the Consent and Capacity Board and this appeal brought to this court.

[40] In the hearing before the Consent and Capacity Board, Dr. Lovneet Hayer testified as to the progression of the illness of Stephen Doherty. Stephen Doherty had demonstrated a pattern whereby his symptoms receded while treated in hospital, he was discharged and discontinued medication, and his symptoms returned within a couple of weeks. Dr. Lovneet Hayer expressed the view that this was reflective of an increase in the burden of the illness of Stephen Doherty. [50] He noted that, during the admission at issue, Stephen Doherty received medication when he was first admitted. This act is to address the acute symptoms Stephen Doherty had been experiencing on admission and allowed him to regulate his sleep. The illness of Stephen Doherty was still in its early stages and his improved sleep was helpful in stabilizing him even after he began to refuse medication. However, sleep regulation on its own would be insufficient to regulate his symptoms going forward. Dr. Lovneet Hayer testified that, without medication, he was certain that Stephen Doherty would have another psychotic or manic episode. [51]

[41] Dr. Lovneet Hayer testified that despite improvements in Stephen Doherty’s symptoms, he had not gained insight into his condition. At the time of the hearing, Stephen Doherty did not believe that he had a mental condition or that any changes in his behaviour had been a result of a mental condition. When the treatment team addressed Stephen Doherty’s symptoms with him, he minimized to provide excuses for his symptoms. He attributed to changes in his behaviour to the antipsychotic medication he had received. Dr. Lovneet Hayer noted that the symptoms Stephen Doherty exhibited were not known side effects of antipsychotic medication and the onset of those symptoms did not coincide with his taking antipsychotic medication. [52]

[42] In summary, this evidence suggests that, over the course of his history of admissions, Stephen Doherty had benefitted from the kind of medication being proposed as treatment. Despite these various admissions, he was unable to recognize the manifestations of his illness and was, thus, unable to apply the available information to his circumstances and unable to appreciate the consequences of his decision. On this understanding, he did not have the requisite ability to appreciate those consequences.

[43] In its decision, the Consent and Capacity Board found:

The evidence taken as a whole amply supported Dr. Hayer’s conclusion concerning SD’s capacity. SD was unable to appreciate that he is suffering from serious manifestations of mental illness. He did not have the ability to evaluate the information concerning treatment as it relates to his own circumstances or to appreciate the reasonably foreseeable consequences of a decision or lack thereof regarding treatment. Due to his lack of insight into his illness, SD was not able to perceive the benefit to be derived from taking the proposed medications. [53]

[44] The decision of the Consent and Capacity Board was reasonable. Taking the evidence as a whole, it was an alternative available to the Board.

[45] I should note that counsel for Stephen Doherty submitted that, in the time since the decision of the Consent and Capacity Board, he has done well. Stephen Doherty has not required further admission or treatment. This is, of course, good news, but it does not change the substance of this appeal. Counsel relied on these assertions to say that Stephen Doherty was right, he did not need the treatment and the doctor was wrong. I say these are assertions because they were statements made during the course of submissions to the court. There is little evidence or information presented as to the cause of the difficulties experienced by Stephen Doherty or the time that may pass between these events. Even if counsel is correct, the question is whether the decision of the Board was reasonable given the information available at the time of the hearing. The Consent and Capacity Board is not asked to peer into the future.

[46] The appeal is dismissed.

[47] No submissions were made as to costs. If the parties are unable to agree, I may be spoken to.

LEDERER J.

Released: 20160715

Judgment

COURT FILE NO.: CV-15-530544 DATE: 20160715

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A

AND IN THE MATTER OF

STEPHEN DOHERTY a patient at CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET SITE Toronto, Ontario

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

STEPHEN DOHERTY Responding Party (Appellant in the Appeal) – and – DR. GLENDA HOROWITZ Moving Party (Respondent in the Appeal)

JUDGMENT

LEDERER J.

Released: 20160715

Footnotes

[1] Consent and Capacity Board: Transcript, at pp. 16-17.

[2] Borowski v. Canada (Attorney General), [1989] S.C.J. No. 14, [1989] 1 S.C.R. 342.

[3] Ibid, at para. 15.

[4] Ibid, at paras. 16.

[5] KM v. Dr. Shammi, 2012 ONSC 1102; Carty v. Levy, 2015 ONSC 2200 (which refers to S. (R.M.) v. Wainberg, [1997] O.J. No. 4933; Nasr v. Wong, [2007] O.J. No. 5579, as well as other cases referred to herein); Retief v. Dr. Ganjavi and Cronje, 2013 ONSC 2654; Pietrangelo v. Balachandra, 2004 ONCA 6664 (which confirms the ruling in Pietrangelo v. Balachandra by Killen J., dated January 2, 2001); and, Conway v. Darby, 2013 ONCA 538.

[6] S.O. 1996 ch. 2, Sch. A.

[7] Ibid, at s. 9 which states:

“substitute decision-maker” means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment.

and s. 20(1), which provides the list:

If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
4. The incapable person’s spouse or partner.
5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
6. A parent of the incapable person who has only a right of access.
7. A brother or sister of the incapable person.
8. Any other relative of the incapable person.

[8] The Health Care Consent Act, 1996, s. 21 (1), states these principles as:

A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles (note in particular paragraph 1):

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.
2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests.

[9] Neto v. Klukach, [2004] O.J. No. 394.

[10] Ibid, at para. 17.

[11] Ibid, at para. 19.

[12] Starson v. Swayze, [2003] 1 S.C.R. 722.

[13] Ibid, at para. 6.

[14] Health Care and Consent Act, 1996, supra, (fn. 6), at s. 15.

[15] Ibid, at s. 32 (4).

[16] Starson v. Swayze, supra, (fn. 13), at para. 118.

[17] Health Care and Consent Act, 1996, supra, (fn. 6), at s. 80(10), which states:

On the appeal, the court may, (a) exercise all the powers of the Board; (b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board; (c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[18] Affidavit of the Moving Party (Respondent in the Appeal), Dr. Glenda Horowitz, sworn April 14, 2016, at Exhibit B (Discharge Data).

[19] Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.), at pp. 86-87.

[20] Starson v. Swayze, supra, (fn. 13), at para. 118, (I say “could be the source” because while Starson v. Swayze is referred to, this observation does not appear to be attributed).

[21] Health Care and Consent Act, 1996, supra, (fn. 7), at s. 4(1).

[22] Neto v. Klukach, supra, (fn. 10), at para. 7.

[23] Health Care and Consent Act, 1996, supra, (fn. 7), at s. 4(2).

[24] Consent and Capacity Board: Reasons for Decision, at p. 8.

[25] Starson v. Swayze, supra, (fn. 13), at para.79, referring to Weisstub, David N. Inquiry on Mental Competency Final Report, Toronto: Queen's Printer for Ontario, 1990, at p. 229.

[26] Ibid, (Starson), at para. 79, referring to Ibid, (Weisstub), this time at p. 250, at note 443.

[27] Ibid, (Starson) at para. 79.

[28] Ibid, (Starson), at paras. 80-81, referring to Ibid, (Weisstub), this time at p. 249, and to L. H. Roth, A. Meisel and C. W. Lidz, Tests of Competency to Consent to Treatment (1977), 134 Am. J. Psychiatry 279, at pp. 281-82.

[29] Ibid, (Starson), at para. 76; Re: Koch (1997), 33 O.R.(3d) 485 (Gen. Div.).

[30] Bartoszek v. Ontario (Consent and Capacity Board), [2002] O.J. No. 3900 (S.C.J.), at para. 20.

[31] Starson v. Swayze, supra, (fn. 13), at para. 110.

[32] Ibid, at para. 84.

[33] Ibid, at para. 5.

[34] Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.

[35] Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[36] The decision in Housen v. Nikolaisen is dated March 28, 2002. The decision in Starson v. Swayze was released on June 6, 2003.

[37] Ibid, at paras. 28 and 36, referring to and quoting from Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 41 and 45, quoting from para. 37, and referring to Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2.

[38] The original assessment was undertaken, not by the respondent, but by Dr. Karina Stone. Stephen Doherty was subsequently transferred to the care of the Respondent, Dr. Glenda Horowitz.

[39] Consent and Capacity Board: Transcript, at pp. 16-17.

[40] Ibid, at p. 15.

[41] Ibid, at p. 17.

[42] Ibid, at p. 15.

[43] Ibid, at pp. 38 and 39.

[44] Ibid, at p. 46.

[45] Record of Proceedings, Final Report, dated November 24, 2014 (Letter to Chairperson Consent and Capacity Board).

[46] Ibid

[47] Record of Proceedings, Final Report, dated December 1, 2014.

[48] Record of Proceedings, Discharge Data, Discharge Note 09/01/2015 and Clinical Summary.

[49] Ibid, (Clinical Summary).

[50] Consent and Capacity Board: Transcript, at pp. 21, 54 and 61.

[51] Ibid, at pp. 20, 25 – 26, 36, 56 – 57, 61.

[52] Ibid, at pp. 23- 25, 27, and 33-55.

[53] Record of Proceedings, Reasons for Decision, p. 12.