Court File and Parties

Court File No.: CV-16-549235 Date: 2016-07-27 Ontario Superior Court of Justice

Between: JOHN PASPALOVSKI, Appellant – and – DR. SACHA AGRAWAL, Respondent

Counsel: Joanna Weiss and Anita Szigeti, for Mr. Paspalovski Kendra Naidoo, for Dr. Agrawal

Heard: July 5, 2016

Before: R.F. Goldstein J.

1This appeal raises the important and difficult question of just how much personal autonomy the state can take from individuals with mental health issues.

2Mr. Paspalovski, the Appellant, has significant mental health problems. Tragically, he developed schizophrenia in his 20’s and over the past ten years he has been in and out of hospital. His sister is his substitute decision maker. He requires anti-psychotic medication.

3A person may be the subject of a community treatment order if he or she is unable to appreciate the consequences of refusing treatment. On December 1 2015 Mr. Paspalovski’s physician, Dr. Agrawal, found him incapable of consenting to treatment under a Community Treatment Plan, or CTP as it is commonly referred to. On January 11 2016 Dr. Agrawal issued a Community Treatment Order (commonly referred to as a CTO) pursuant to s. 33.1 of the Mental Health Act.

4Mr. Paspalovski applied to the Consent and Capacity Board for a review of the CTO. The Board heard the application on March 11 2016. The Board determined that the criteria for issuing the CTO had been met at the time of the hearing. The CTO was confirmed on March 12 2016.

5Mr. Paspalovski appeals the Board’s finding to this Court. His counsel makes three arguments: first, that the Board erred in law in confirming the CTO; second, that the Board misapprehended the evidence; and third, that that the CTO was not valid because the 72-hour timeline in the Mental Health Act for signing a CTP was not met.

6Mr. Paspalovski’s CTO expired just a few days after I heard the appeal. Ms. Naidoo, counsel for Dr. Agrawal, informed me that Dr. Agrawal would not be renewing the CTO. Both parties urged me to decide the appeal, even though it was shortly to become moot. There are issues that are important to the practice in this area, and the disposition of this appeal may be important to Mr. Paspalovski in the future.

7I agree that Mr. Paspalovski – and his family – has a right to know the outcome of the appeal. I therefore informed counsel by e-mail two days after the appeal that I was dismissing it, with reasons to follow. These are my reasons.

Background

8Mr. Paspalovski is 40 years old. He was diagnosed with schizophrenia ten years ago. He has had more than ten hospital admissions. The CTO issued by Dr. Agrawal was his fourth. He has a substitute decision-maker, his sister. He has a close relationship with his sister and her children. He is unable to work and is supported by the Ontario Disability Support Program. Unfortunately, Mr. Paspalovski has also been diagnosed with multiple sclerosis, which has complicated his treatment. Mr. Paplovski does have an employment history, but, unfortunately, it is spotty. He has not worked since he was 28. According to a discharge summary from the Centre for Addiction and Mental Health (which I will refer to as CAMH) in April 2014 his symptoms have included “disorganized speech, behaviour, beliefs around transmitters listening in on him, and persecutory symptoms that he is guarded about.”

(a) The 2014 Admission

9At the beginning of January 2014 Mr. Paspalovski’s sister brought him into the emergency room, alarmed at his symptoms. According to the admission report, Mr. Paspalovski had been living on the streets for the previous three months after living at his brother’s house. According to his sister had had been barred from all shelters due to his disruptive behaviour, aggression, and “being totally non-directional”. He had been sleeping outside and in the lobbies of various buildings. He exhibited other symptoms, including taking to himself in the mirror. He reported that bugs were living inside him.

10Historically, according to his sister, Mr. Paspalovski had been non-compliant with his medications upon discharge. He was involuntarily admitted to CAMH. The Board upheld his involuntary status. During that admission he was found incapable of consenting to treatment.

11CAMH discharged him in late April 2014. The discharge summary noted:

Mr. Paspalovski is a 38-year old male with schizophrenia, disorganized type and concomitant multiple sclerosis. He has a 10-year history of schizophrenia, leading to delusions, disorganized speech, and disorganized behaviour. This has led to a substantial deterioration: no longer able to work, or have any meaningful relationships, homelessness, being bullied and taken advantage of in shelters, as well as assault and sexual assault in 2004 on two women in a garage.

He has shown clinical improvement as a result of treatment during 12 hospitalizations but, unfortunately, has the repeated history of non-adherence to treatment.

The diagnosis of MS was made a few years ago, secondary to demyelination seen on cerebral imaging. He has, unfortunately, not received treatment for this condition, despite offers of treatment.

12The 2014 involuntary admission had two important consequences for Mr. Paspalovski: His sister was named as his substitute decision maker, and another CTO was issued. Mr. Paspalovski was then treated with depot anti-psychotic medication. He showed clinical improvement. Dr. Agrawal became his attending psychiatrist.

(b) The 2016 Admission

13On December 1 2015 Mr. Paspalovski visited CAMH for a renewal and capacity assessment. A CTO (current at that time) was expiring. He indicated to Dr. Agrawal that he was “okay with renewing it, he stated that he is okay with the structure and the team that the CTO provides”. He did have difficulties with the fact that his sister was his substitute decision maker. He also had a difficult time with his diagnosis of schizophrenia and why he was given that diagnosis. According to the notes, he also told Dr. Agrawal:

When assessing his capacity for treatment, John is able to understand that the pallperidone is an anti-psychotic medication that is used to treat symptoms of schizophrenia, however, he is not able to apply this understanding to himself. He states that “I do not feel different with the medication and I do not see what benefit it has for me”. John states that off the medication he would be able to function the same way.

14Dr. Agrawal then found that Mr. Paspalovski was not able to appreciate that the failure to take his anti-psychotic medication usually resulted in hospitalization. He therefore could not appreciate the consequences. Accordingly, Dr. Agrawal found that the second branch of the test under s. 33.1 of the Mental Health Act applied to Mr. Paspalovski and issued the order.

(c) The Board’s Decision

15The Board heard the appeal on March 11 2016 and issued its decision the next day. On March 21 2016 the Board released its reasons for the decision.

16At the hearing, both Mr. Paspalovski and Dr. Agrawal testified. The Board reviewed the diagnosis of schizophrenia including Mr. Paspalovski’s history of mental illness. The Board noted the test set for capacity found in s. 4(1) of the Health Care Consent Act and the criteria for a CTO under s. 33.1(4) of the Mental Health Act. The board then analyzed the evidence in relation to the five criteria set out under s. 33.1(4).

17The Board also found:

Dr. Agrawal’s evidence was that in the absence of continuing treatment or care and continuing supervision in the community, JP [Mr. Paspalovksi] was likely to suffer substantial mental deterioration. There was clear evidence, based on the written and oral evidence which described JP’s history, and Dr. Agrawal’s evidence about JP’s improvement since being on a CTO, that satisfied the criteria. Dr. Agrawal said JP was at high risk of discontinuing his medication if he was not on a CTO.

18Dr. Agrawal had testified quite specifically about the expected deterioration:

Dr. Agrawal responded that very quickly it would be difficult to follow his speech, JP would be homeless, JP’s delusions would reappear, JP would be arrested for his behaviour and he would have trouble handling his MS. If JP felt the relationship with his sister’s famly was no longer important, then there was no doubt that he would become non-compliant.

19The Board also noted that Dr. Agrawal candidly stated that he could not be entirely sure how long the deterioration would take, or exactly what form it would take. The Board further noted that Mr. Paspalovski had testified regarding his illness, and that sometimes he refuted the diagnosis and sometimes he accepted it.

Analysis

20Counsel for Mr. Paspalovski raises three issues on this appeal:

(a) Did the Board err in applying the test for a finding of incapacity? (b) Did the Board misapprehend the evidence? (c) Did the Board err with regard to the application of the 72-hour rule?

(a) Did the Board err in applying the test for a finding of incapacity?

21Counsel for Mr. Paspalovski argues that the Board erred by requiring that Mr. Paspalovski agree with the diagnosis of schizophrenia and understand that the CTP would be better for him. In essence, counsel argues, the Board made the error pointed out by Justice Major in the leading case of Starson v. Swayze, 2003 SCC 32 , [2003] 1 S.C.R. 722 at paras. 80-81 by failing to distinguish between the inability to appreciate the consequences of non-treatment versus the failure to appreciate the consequences of non-treatment.

22I respectfully disagree.

23Section 33.1 of the Mental Health Act sets out a comprehensive scheme for dealing with individuals who suffer from a serious mental disorder, but who do not require detention in a psychiatric facility. Section 33.1(3) of the Mental Health Act describes the pattern of such a person:

33.1 (3) … The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

24Everyone is presumed capable of making decisions with respect to treatment: Health Care Consent Act, s. 4(2). Section 4(1) sets out a two-part test for capacity:

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.

25Thus, the person must be able to understand the relevant information about treatment and appreciate the reasonably foreseeable consequences of a decision or lack of decision. Capacity hinges on the ability to appreciate. The inability to appreciate must be caused by the condition. If a person is able to appreciate the consequences, they are free to reject the treatment and even reject the diagnosis. Justice Major articulated the considerations in Starson v. Swayze at paras.79 and 80 (I set out part of his reasons):

Before turning to an analysis of the reviewing judge's decision, two important points regarding this statutory test require comment. 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: see Weisstub Report, supra, at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental "condition", the patient must be able to recognize the possibility that he is affected by that condition…

As a result, a patient is not required to describe his mental condition as an "illness", or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician's opinion regarding the cause of that condition. Nonetheless, if the patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences…

26The finding of incompetency is critical. Individuals do not lose their right to refuse to consent to treatment simply because they are ill. People refuse to take medication for many reasons, not the least of which are the frequently severe side effects. As Robins J.A. pointed out in Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.), individuals are not to be stigmatized and do not lose their right to personal autonomy and the protection of law due to a mental illness: para. 34. Although Robins J.A. was evaluating the Charter implications of legislation that is not before me, this comment is compelling:

Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects. To deprive involuntary patients of any right to make competent decisions with respect to such treatment when they become incompetent, and force them to submit to such medication, against their competent wishes and without the consent of their legally appointed substitute decision-makers, clearly infringes their Charter right to security of the person. To that extent, I agree with Judge Tobias' conclusion at p. 189 O.R. of his judgment that "there can be no question that the security of (the appellants') person will be affected if an order is made under the provisions of s. 35a that (they) receive specified psychiatric treatment"…

27A person need not listen and rationally weigh the alternatives, including the alternative of non-treatment. That is not what a finding of incapacity requires. That would still go to the failure to appreciate the consequences, of non-treatment, not the inability to appreciate the consequences. Indeed, a person has the right to make foolish decisions and voluntarily assume risk about treatment: Re Koch (1997), 33 O.R. (3d) 485 (Gen.Div.).

28The Board concluded that Mr. Paspalovski was undoubtedly better off on a CTO. When he took his medication, he functioned, he avoided homelessness and arrest, and he maintained an important relationship with his sister and her family:

The evidence taken as a whole, including JP’s own testimony, amply supported all of Dr. Agrawal’s oral and recorded conclusions concerning JP’s capacity. JP was completely unable to see that he was in fact suffering from serious manifestations of mental illness and that he benefited from medication in the past… The Panel found, on a balance of probabilities, that Dr. Agrawal had met the required onus on the second branch of the test for capacity. The Panel found as a fact that JP was incapable of consenting to the CTP and/or treatment with anti-psychotic medication.

29That paragraph, read in isolation, seems to suggest, as Mr. Paspalovski’s counsel does, that the board erred by concluding that a CTO was authorized simply because Mr. Paspalovski would have been better off with it. That, however, is not what the Board found. The Board’s reasons must be read as a whole.

30The Board noted that a person’s best interests are not a consideration in determining “the question of capacity to consent to treatment.” The Board noted that a person must have the ability to evaluate, not just understand information – and “have the ability to appreciate the relevant information as it relates to him.”

31The Board also noted:

The ability to evaluate and apply information relevant to making treatment decisions is critical to the second branch of the test for capacity to consent to treatment. To be able to evaluate such information, a person must be able to consider that her behaviour may arise from a mental condition or may be aided by the proposed treatment.

32The Board set out the test correctly. The Board noted, as Justice Major did in Starson v. Swayze, that persons are free to question their diagnosis when it comes to mental illness. Mr. Paspalovski did that. That, of course, is different from being unable to recognize that that he was affected by its manifestations. The Board found that he did not and was unable to apply the relevant information to his circumstances, thus being unable to appreciate the consequences of non-treatment.

33With respect, therefore, I do not agree that the Board erred in its interpretation of the test for capacity. The Board did not find that the CTO was valid because it was in the best interests of Mr. Paspalovski. The Board understood that would have been an error. The Board understood that the inability to appreciate must be a consequence of the mental illness: Starson v. Swayze at para. 81. The Board was well aware of the lengthy history of Mr. Paspalovski’s mental illness. Mr. Paspalovski himself testified.

34The issue of capacity is a question of mixed fact and law. The interpretation of the statute raises a question of law. Whether the Board applied the right test, therefore, is analyzed on standard of correctness. The application of the law to the facts, however, is analyzed on a standard of reasonableness: Starson v. Swayze at paras. 84,110. Whether the legal and factual issue are intertwined and cannot be easily separated, deference is the usual rule. Due regard must be had for the fact the Board was interpreting its “home” statute and a statute closely connected with its function, as well as for the fact that it has expertise in this area: Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 53.

35As long as the Board correctly interpreted the law, and the ultimate decision was within a range of reasonable outcomes, it is entitled to deference. My conclusion is that the Board correctly interpreted the law. Counsel for Mr. Paspalovski, however, argues that the Board also misapprehended the evidence. I turn next to that question.

(b) Did the Board misapprehend the evidence?

36Counsel for Mr. Paspalovski argues that the Board misapprehended the evidence in certain vital ways:

• At no point did Mr. Paspalovski ever testify that he had no intention of taking his anti-psychotic medication;
• Mr. Paspalovski did testify he felt he needed his anti-psychotic medication to achieve his goal;
• Mr. Paspalovski testified that the CTO was integral to his progress, his treatment team was excellent, and he would continue taking his medication.

37The standard of review for the misapprehension of the evidence is whether the Board made a palpable an over-riding error, and whether that error went to the chain of reasoning.

38It is certainly correct that Mr. Paspalovski said all of those things but I must respectfully disagree that the Board made a palpable and over-riding error with regard to the evidence. Mr. Paspalovski said different things to different people at different times, as shown in his treatment history, Dr. Agrawal’s testimony, and in his own testimony. The Board was entitled to disregard Mr. Paspalovski’s evidence, especially when it was in the position of having heard and seen Mr. Paspalovski testify. The Board also had the background of Mr. Paspalovski’s numerous hospital admissions and diagnoses. As a tribunal with expertise in the field, the Board is entitled to deference when it evaluates the evidence of a doctor, the evidence of a patient, and (in essence) prefers the evidence of the doctor. That does not constitute an error – it constitutes weighing the evidence, which is what a trier of fact does.

39After a review of the record, I find that the Board did not err. What the Board did was disagree with Mr. Paspalovski. That does not constitute palpable and over-riding error. The Board’s decision was, therefore, a reasonable one and open to it on the evidence.

(c) Did the Board err with regard to the application of the 72-hour rule?

40Counsel for Mr. Paspalovski argues that the CTO is invalid on its face because the CTP was not “entered into” within 72 hours. She argues that s. 33.1(4)(c) of the Mental Health Act requires all persons named in the plan must have agreed to the plan, entered into it, and signed it within 72 hours of the capacity assessment. The persons named in the plan include must include service providers as (such as health care practitioners or health service providers) and the physician. There are provisions requiring that the person (and his or her substitute decision maker, if applicable) be given the opportunity to consult with an advisor about the person’s rights.

41In S.S. v. Kantor, 2016 ONSC 1444 my colleague Faieta J. summed up the scheme of the legislation at para. 24 (I only excerpt the parts that are relevant to this case):

Given this purpose, the scheme of the legislation in respect of community treatment is as follows:

• a physician may issue or renew a community treatment order, in a prescribed form, with respect to a person for the above purpose if the criteria described in s. 33.1(4) are met;
• a community treatment order must contain certain information, including a description of the CTP for a person that has been developed by: 1) the person, or his or her substitute decision-maker; 2) the physician who is considering issuing or renewing the community treatment order; and 3) any other health practitioner or person involved in the person’s treatment or care and supervision;
• a person who agrees to provide treatment or care and supervision under a CTP shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan. All persons named in a CTP are responsible for implementing the plan to the extent indicated in it;
• a community treatment order expires in six months after the day it is made unless it is renewed or is terminated earlier. A community treatment order may be renewed for a period of six months before its expiry. Upon the expiry or termination of a community treatment order, the parties may enter into a subsequent CTP;
• if a person, or his or her substitute decision-maker consents to a CTP, then the person shall: (1) attend appointments with any person referred to in the CTP at the times and places scheduled from time to time; (2) comply with the CTP described in the community treatment order. If a person fails to comply with these obligations, withdraws his or her consent to the CTP or requests a review of the person’s condition to determine if the person is able to live in the community without being subject to the order, then a physician may examine that person to determine whether the person should be released without being subject to a CTP.

42A CTP is defined in s. 1(1) of the Mental Health Act as:

“community treatment plan” means a plan described in section 33.7 that is a required part of a community treatment order; (“plan de traitement en milieu communautaire”)

43Section 33.7 of the Mental Health Act sets out the required elements of a CTP. A CTP must include:

1. A plan of treatment for the person subject to the community treatment order.
2. Any conditions relating to the treatment or care and supervision of the person.
3. The obligations of the person subject to the community treatment order.
4. The obligations of the substitute decision-maker, if any.
5. The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).
6. The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan.

44The 72-hour rule is set out in s. 33.1(4) of the Mental Health Act:

33.1 (4) A physician may issue or renew a community treatment order under this section if,

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community.

45Counsel for Mr. Paspalovski argues that s. 33.1(4) means that everyone involved must agree to and actually sign the CTP within 72 hours of the latest capacity assessment. She relies on S.S. v. Kantor. In that case, Faieta J. found that the ordinary language of the Act means that a physician does not “enter into” a CTP unless everyone else has agreed to the plan. Mere consultation is not enough. The use of the term “indicate his or her agreement in the plan” means, when read in conjunction with the term “entered into” that a service provider must actually sign the CTP within 72 hours of the most recent capacity assessment. Otherwise, the CTP, and consequently the CTO, are not valid. Faieta J. adopted the comments of Low J. in Singh v. de Souza. In that case, Low J. described the CTP as a “quasi-contractual” document. She concluded the Mental Health Act required that the parties actually sign it.

46Counsel for Dr. Agrawal argues that S.S. v. Kantor is incorrectly decided on this point. The case has been appealed to the Court of Appeal, but, as far as I am aware, it has not yet been argued.

47Notwithstanding my colleague Faieta J.’s extensive analysis and his helpful explanation of the object and purpose of the sections of the Mental Health Act dealing with CTPs and CTOs, I must respectfully disagree that all parties must sign within 72 hours. I come to the opposite conclusion. Sub-section 33.5(3) sets out the responsibilities of health care providers who are not the lead physician. That section does not require anything other than “an indication” of agreement in the plan, and it does not impose a time limit:

33.5 (3) A person who agrees to provide treatment or care and supervision under a community treatment plan shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan.

48When s. 33.5(3) is read with s. 33.1(4) all that it means is that a physician is required to satisfy him or herself that the criteria contained in s. 33.1(4)(c)(i) to s. 33.1(4)(c)(v) have been met. In essence, that means that the physician need only be satisfied that treatment is available and that the health care providers have agreed to provide care. There is no indication that anyone other than the physician and the patient are required to “enter into” the CTP. Everyone else simply indicates agreement. The 72 hour requirement is there to ensure that the capacity assessment is current when health care providers indicate their agreement in the plan.

49The Legislature could have easily used the words “signed the plan” and applied that requirement to the physician, the person subject to the plan, and to other health care providers. That would have been simple. Instead, the Legislature chose to use the words “indicate agreement in the plan” for health care providers.

50It is useful to contrast the language and requirements used in s. 33.1(4) of the Mental Health Act with the language in s. 15(1) in order to understand the Legislature’s intent. Under s. 15(1), where a physician finds that a patient meets certain criteria (such as a risk of harm to him or herself or to others, or inability to care for him or herself, due to a mental disorder) the physician may apply for a psychiatric assessment. The prescribed form (Form 1) must actually be signed by the physician within seven days of the examination or it is not effective. After the patient has been examined, the psychiatrist shall involuntarily admit him or her to a psychiatric facility if certain other criteria are met. Under s. 20(1) of the Mental Health Act, the psychiatrist must complete a Certificate of Involuntary Admission in Form 3. Form 3 has a specific place for the psychiatrist to sign.

51I am fortified in this conclusion by the fact that there is no prescribed form for a CTP. There is a prescribed form for a CTO (Form 45). Form 45 has a specific place for the psychiatrist and the person concerned (or his or her substitute decision maker) to sign. There is also a prescribed form for an order for examination. A CTP is a required document but there are no formal requirements. It would have been simple for the legislature or the Lieutenant Governor in Council to prescribe a form that required signatures.

52On a practical level, and with great respect to those with the opposing view, the 72-hour time limit may well be unworkable in practice. It may be that many CTPs can be “entered into” within 72 hours of a capacity assessment – but there must be many occasions where a service provider is simply unable to physically sign in time. One can imagine, for example, that capacity assessments can almost never take place on the Friday of a holiday long weekend, or during the Ontario March Break, or between Christmas and New Year’s. The timeliness requirement is meant to ensure that the assessment is current at the time the plan is “entered into”. It is not meant to be a race against the clock to ensure that the formalities are met.

53A court must examine the practical effects of applying the statue: Petersen v. Kupnicki, 1996 ABCA 323. Courts must be mindful to ensure that the rights of those with mental health issues are safeguarded, and should not be quick to rubber-stamp treatment decisions. That said, it seems to me that the courts should also strive to interpret legislation in a way that facilitates the timely and effective provision of care to those who need it. To require otherwise would make the provision of health care more difficult without any extra benefit for patients.

54I therefore find that the CTO in this case is valid on its face.

Disposition

55The appeal is dismissed.

56These cases are always difficult. I appreciate the professional approach shown by counsel.

R.F. Goldstein J.