COURT FILE NO.: CV-16-546758 DATE: 20161014 ONTARIO SUPERIOR COURT OF JUSTICE
In the Matter of Appeals from decisions of the Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A as amended, and the Mental Health Act, R.S.O. 1990, c. M.7
Z. (Z.) Appellant – and – Dr. Ariel Shafro Respondent
Counsel: Anita Szigeti and Joanna Weiss for the Appellant Mark Handelman for the Respondent
HEARD: August 30, 2016
REASONS FOR DECISION
KRISTJANSON J.
[1] Z. (Z.) appeals from a decision of a panel of the Consent and Capacity Board (“Board”) dated February 9, 2016 which confirmed a finding of treatment incapacity made by the respondent, Dr. Shafro. The Board found that Z. (Z.) was not capable to consent to treatment with anti-psychotic medications or side-effect medications. Z. (Z.) also appeals from a decision of the Board on a preliminary motion, where the appellant sought to have the finding of incapacity under the Health Care Consent Act, S.O. 1996, c. 2, Sched. A, set aside on the grounds that it was made when Z. (Z.) was unlawfully detained at the facility, due to a failure to comply with statutory requirements for admission to a psychiatric facility established under the Mental Health Act, R.S.O. 1990, c. M.7.
[2] The Appellant’s argument is that a finding of incapacity made when a patient is unlawfully detained is the “fruit of a poisonous tree”, and is void on that basis as a matter of law. I reject this argument. The Board was dealing with two distinct issues under two different statutes, involuntary admission under the Mental Health Act, or MHA, and capacity to consent to treatment under the Health Care Consent Act, or HCCA. Although the same panel of the Board dealt with both issues, the statutory powers and remedies differ. The rights and remedies set out in the HCCA do not include voiding a physician’s capacity findings because the person was being held in breach of the MHA. The rights and remedies set out in the Mental Health Act do not include voiding a finding of incapacity made under the HCCA.
[3] I find that I find that the Board’s decision dismissing the preliminary motion was correct as a matter of law.
[4] I find that the decision of the Board that Z. (Z.) was incapable with respect to treatment with anti-psychotic medications was reasonable, but the finding that Z. (Z.) was incapable with respect to treatment with side-effect medication was not reasonable. The decision of the Board on side-effect medications is set aside.
Factual background
[5] At the time of the Board hearing, Z. (Z.) was a 29-year-old mother of two. She had been diagnosed with Bipolar 1 disorder, and had received outpatient psychiatric care on an intermittent basis from 2011 – 2015.
[6] She had a number of psychiatric admissions between April 2011 and January 2016, during which time she received treatment with a variety of anti-psychotic medications. Dealing with her most recent history, in January 2015, Z. (Z.) was admitted to the Trillium Health Partners - Mississauga Hospital, and discharged on a Community Treatment Order requiring injections of an anti-psychotic medication, Risperdone, and follow-up in the community. In September 2015 she was admitted to Credit Valley Hospital for a few days. She was admitted to Trillium Health Partners - Mississauga Hospital in October 2015. At this time Dr. Shafro made a finding she was incapable of consenting to treatment but the Board determined Z. (Z.) was presumptively capable of consenting to the proposed treatment, found the criteria for involuntary admission were not met, and she was discharged from the hospital.
[7] The finding of incapacity at issue in this appeal relates to Z. (Z.)’s admission in early January 2016, following a Form 2, Order for Examination issued by a justice of the peace under section 16 of the Mental Health Act. Pursuant to a lawful Form 2, Z. (Z.) was taken to Trillium Health Partners - Mississauga Hospital for an examination. A Form 1, Application for Psychiatric Assessment, was signed at the Hospital, allowing Z. (Z.) to be detained for a period of up to 72 hours for assessment and observation.
[8] On January 14, 2016 the Respondent in the appeal, Dr. Shafro, made a determination that Z. (Z.) was incapable of consenting to psychiatric treatment. He provided a Form 33 Notice to Patient under subsection 59(1) of the Mental Health Act and Regulation 741, and provided it to Z. (Z.). This was a notification that Dr. Shafro found Z. (Z.) was not mentally capable to consent to treatment of a mental disorder. This notice also informed Z. (Z.) of her right to have a hearing before the Board. On issuing a Form 33 Notice, the physician is required to promptly notify a rights advisor, and the rights advisor is required under the act to meet with Z. (Z.) her of her rights and help her in applying for a hearing. The Form 33 Notice appears to have been properly issued in this case.
[9] On January 14, 2016, Dr. Shafro also completed a Form 3 Certificate of Involuntary Admission. It is not clear on the evidence whether the January 14 Form 3 Certificate of Involuntary Admission was completed before or after the determination that Z. (Z.) was found incapable of consenting to treatment.
[10] The Board hearing in this matter was initially convened at the hospital on January 22, 2016 with respect to both Z. (Z.)’s capacity to consent to the proposed treatment, and her involuntary status. The hearing on both issues was adjourned to January 26, 2016 at the request of Dr. Shafro’s counsel, so that he could ascertain whether the Form 3 requirements under section 20(8) of the Mental Health Act had been complied with. However, the evidence is that the statutory requirements with respect to the January 14 Form 3 Certificate of Involuntary Admission were not met. While the Form 3 was presumptively valid when it was signed by Dr. Shafro, the Form 3 was not filed with nor reviewed by the officer in charge, as required by section 20(8) of the Mental Health Act. As a result, the Form 3 became invalid.
[11] As a result, a new Form 1 - Application for Psychiatric Assessment was completed, resulting in a new Form 3 dated January 23, 2016.
[12] On January 26, 2016, a Board hearing was again convened at the Hospital, at which time Dr. Shafro’s counsel informed the panel that the original January 14 Form 3 had not been filed with or reviewed by the officer in charge. The panel adjourned the matter to February 3, 2016. At that time, the Board dismissed the preliminary motion which had sought a finding that the finding of treatment incapacity made by Dr. Shafro was void as it was made when Z. (Z.) was unlawfully detained as a patient.
[13] The Board confirmed Z. (Z.’s) involuntary status under the Mental Health Act. No appeal was taken from this decision.
[14] The Board found Z. (Z.) incapable with respect to the proposed treatment by way of all forms of anti-psychotic medication and side-effect medication.
Issues
[15] There are four issues on this appeal:
(1) What is the standard of review of the Board’s decision on the preliminary motion and on the incapacity findings? (2) Did the Board make a reviewable error in dismissing the preliminary motion with respect to the validity of the finding of incapacity? (3) Did the Board make a reviewable error in interpreting and applying the test for capacity in section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A? (4) Did the Board make a reviewable error in confirming the finding of incapacity respect to side effect medications?
Issue #1: Standard of review
[16] Both the appellant and the respondent submitted that the standard of review of the Board’s decisions on questions of fact or mixed fact and law are reasonableness, but the standard of review on a question of law is correctness. In so doing, they relied on the Supreme Court of Canada’s decision in Starson v. Swayze, 2003 SCC 32, 1 S.C.R. 722 [“Starson”]. Starson was decided before the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [“Dunsmuir”], which significantly changed the jurisprudence on review of decisions of administrative tribunals. As a result, in oral argument counsel agreed that the definition of reasonableness that should be used is that set out by in Dunsmuir. The Court held at para. 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[17] Following Dunsmuir, it is clear that questions of fact, mixed fact and law, discretion and policy are entitled to deference, and are thus reviewed on a reasonableness standard. It is also clear in the post-Dunsmuir universe that many questions of law are now to be reviewed on a reasonableness standard. However, as that issue was not argued before me, for the purposes of this appeal, I will review any extricable questions of law on a correctness standard.
Issue #2: The Preliminary Motion Regarding the Finding of Incapacity
[18] In order to understand the questions to be answered on this appeal, it is necessary to understand how the Mental Health Act (or “MHA”) operates with respect to detention of individuals as involuntary patients at a psychiatric facility. It is also important to understand the interaction between the Mental Health Act and the Health Care Consent Act (or “HCCA”) as they apply in this case.
The Statutory Scheme
[19] Under the Mental Health Act, a “patient” is defined as a person who is under observation, care and treatment in a psychiatric facility (s. 1(1)). While there are five ways that a person may be admitted as an involuntary patient to a psychiatric facility, two are relevant in this case. As described by Perell, J. in RJ v Zalan, 2016 ONSC 2337 [“Zalan”], at paras. 11-12:
[11] A second way that a person is admitted as an involuntary patient, which is pertinent to this appeal, is pursuant to s. 16 of the Mental Health Act. Pursuant to s. 16 (1), a person may bring an information upon oath before a justice of the peace that another person within the limits of the jurisdiction of the justice of the peace: (a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself; (b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or (c) has shown or is showing a lack of competence to care for himself or herself, and if the justice of the peace has reasonable cause to believe that the person is apparently suffering from mental disorder of a nature or quality that likely will result in: (i) serious bodily harm to the person; (ii) serious bodily harm to another person; or (iii) serious physical impairment of the person, the justice of the peace may issue an order for the examination of the person by a physician (Form 2). Pursuant to the Form 2 Order, a police officer may take the person into custody to be detained for examination by a physician, who shall conduct the examination, where practicable, at a psychiatric facility or other health facility.
[12] A third way that a person is admitted as an involuntary patient, which is also pertinent to this appeal, is pursuant to s. 15 of the Mental Health Act. Pursuant to s. 15, where a physician examines a person and has reasonable cause to believe that, among other criteria, the person is apparently suffering from a mental disorder of a nature or quality that likely will result in: serious bodily harm to the person; serious bodily harm to another person; or serious physical impairment of the person, then the physician may make an application for a psychiatric assessment of the person. The criteria under s. 15 are similar to the criteria of s. 16 described above.
[20] In this case, Z. (Z.) was initially brought to the Hospital, which is a psychiatric facility under the MHA, pursuant to a Form 2 Order issued by a justice of the peace under section 16 of the Mental Health Act. This Order directed an examination of Z. (Z.) by a physician. Section 18 of the Mental Health Act provides that such an examination “shall be conducted by a physician forth with after receipt of the person at the place of examination and where practicable the place shall be a psychiatric facility or other health facility.”
[21] Pursuant to section 15 of the Mental Health Act, a physician may apply to have a psychiatric assessment of the person completed if the physician determines that certain statutory criteria are met. In order to refer the person for a psychiatric assessment, the physician must apply pursuant to Form 1 under the MHA, which attests in part that the physician personally examined the subject of the application and make careful inquiry into facts necessary to form an opinion as to the nature and quality of the mental disorder of the person (s. 15(2), MHA).
[22] In Zalan, Perell, J. set out the relevant aspects of the Mental Health Act when an attending physician examines a person like Z. (Z.) who is the subject of an application for assessment under section 15 of the Mental Health Act:
[15] Pursuant to s. 20 (1) of the Mental Health Act, the attending physician, after observing and examining a person who is the subject of an application for assessment has three choices. The first choice is to release the person if they are of the opinion that the person is not in need of the treatment provided in a psychiatric facility. The second choice is to admit the person as an informal or voluntary patient if they are of the opinion that the person is suffering from mental disorder of such a nature or quality that the person is in need of the treatment provided in a psychiatric facility and is suitable for admission as an informal or voluntary patient. The third choice of the attending physician is to admit the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in s. 20 (1.1) or s. 20 (5) of the Mental Health Act are met.
[23] In this case, the physician completed Form 3, certificate of involuntary admission, for admission of Z. (Z.) as an involuntary patient under the Mental Health Act. The Mental Health Act requires that the form be filed and reviewed by the officer in charge of the psychiatric facility, which is a defined term under the MHA meaning “the officer who is responsible for the administration and management of the psychiatric facility.”
[24] Section 20(8) of the Mental Health Act, which is important in this appeal, provides:
Forthwith following completion and filing of a certificate of involuntary admission, a certificate of renewal or a certificate of continuation, the officer in charge or his or her delegate shall review the certification documents to ascertain whether or not they have been completed in compliance with the criteria outlined in this Act and where, in his or her opinion, the documents are not properly completed, the officer in charge shall so inform the attending physician and, unless the person is re-examined and released or admitted in accordance with this section, the officer in charge shall release the person.
[25] An involuntary patient has significant rights under the Mental Health Act. Under section 39(1) of the Mental Health Act, an involuntary patient such as Z. (Z.) may apply to the Board to determine whether the requirement set out in the MHA for admission as an involuntary patient are met. Pursuant to section 41 of the Mental Health Act, the “Board shall promptly review the patient’s status to determine whether or not the prerequisites set out in this Act for admission as an involuntary patient continue to be met at the time of the hearing of the application.” The Board may confirm the patient’s status as an involuntary patient, or “shall rescind the certificate if the Board determines that the prerequisites set out in this act for admission as an involuntary patient were not met at the time of the hearing of the application.” (s. 41(3), MHA).
[26] In addition to the provisions of the Mental Health Act discussed above, this appeal also raises questions regarding the consent to treatment provisions of the Health Care Consent Act and the interaction of the HCCA and the MHA. The HCCA applies to consent to treatment by health practitioners throughout Ontario, and is not restricted to physicians or psychiatric facilities. The purposes of the HCCA are set out in section 1, which provides in part:
- The purposes of this Act are,
(a) to provide rules with respect to consent to treatment that apply consistently in all settings;
(b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters;
(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by,
(i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding,
(ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and
(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to;
(d) to promote communication and understanding between health practitioners and their patients or clients…
[27] In contrast to the Mental Health Act, the Health Care Consent Act does not define the term “patient.” It refers to “persons”. There is a presumption that persons have capacity to consent to treatment (HCCA, s. 4(2)). The Act defines capacity and consent.
[28] Section 10(1) of the Health Care Consent Act provides that a health practitioner who proposes a treatment for a person shall not administer the treatment unless the practitioner is of the opinion “that the person is capable with respect to the treatment, and the person has given consent”, or “the person is incapable with respect to the treatment and the person’s substitute decision – maker has given consent on the person’s behalf.” (s. 10(1), HCCA). A finding of incapacity deals with who may consent to a particular treatment: either a capable person, or a substitute decision-maker for a person found to be incapable.
Analysis
[29] Counsel for the appellant brought a preliminary motion in which she argued that Dr. Ariel Shafro’s “finding of incapacity was void” because it was made “during a period of time when her client was unlawfully detained as a patient, and not a voluntary or informal patient”. This submission was based on the fact that the January 14 Form 3, Certificate of Involuntary Admission, had not been filed and reviewed by the officer in charge, contrary to the requirements of section 20(8) of the MHA.
[30] Counsel argued that the finding of incapacity made on January 14, 2016 was “the fruit of the poisonous tree and not lawful,” and should be set aside on that basis, relying on three cases of the Board which adopted this approach. Counsel also argued that the Mental Health Act defines a “patient” as a person under observation, care and treatment in a psychiatric facility. A person who is the subject of a Form 1 assessment does not become a patient until she is assessed and a decision is made to admit her either on a voluntary or involuntary basis. Counsel submitted that Z. (Z.) was not a patient of Dr. Shafro when assessed as to her treatment capacity, based on the definition of “patient” in the MHA, was not a patient for any other purposes, and so there was no basis on which Dr. Shafro could or should have assessed her capacity for treatment.
[31] The Board dismissed this preliminary motion, holding that the finding of treatment incapacity was not void. The Board held that whether or not Z. (Z.) was an involuntary psychiatric patient within the meaning of the Mental Health Act, “she was still Dr. Shafro’s patient for other purposes,” and Dr. Shafro had obligations to Z. (Z.), in addition to those set out in the Mental Health Act.
[32] The Board held:
Once Dr. Shafro took on a physician’s treatment obligations and made observations of ZZ that called the presumption of her capacity into question, he had to assess ZZ’s capacity regardless of her status as a psychiatric patient. Indeed the HCCA permitted health practitioners to make assessments of treatment incapacity in any setting, there being no statutory requirement confining it to a hospital or psychiatric facility. The …“fruit of the poisonous tree” argument ignored this obligation. The issues of whether a person has the capacity to make treatment decisions and whether a patient has been detained unlawfully, were two separate matters, requiring separate consideration.
[33] The Appellant argues that the Board erred as a matter of law in failing to adopt the “fruit of the poisonous tree” analysis. There are two distinct streams of decisions at the Board with respect to whether a valid capacity assessment can be made where the involuntary admission of a patient to a psychiatric facility does not comply with the statutory requirements of the Mental Health Act. One stream, relied on by the Appellant, follows the “fruit of the poisonous tree” theory, and one stream, accepted by the Board, views capacity assessments as part of the patient-physician relationship under the Health Care Consent Act, separate and apart from the issue of the validity of the involuntary admission under the Mental Health Act. The Board appears to move back and forth between these two positions frequently. For this reason, the Appellant argued that this court should clarify the law.
[34] It is only a question of law which is subject to correctness review. The distinction between questions of law and questions of mixed fact and law was described by Iacobucci, J. for the Court in Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35 as follows:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what" negligence" means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.
[35] I reject the Appellant’s argument as a matter of law. The position put forward by the Appellant conflates rights and responsibilities under two different pieces of legislation, the Mental Health Act and the Health Care Consent Act. The Appellant relies on a breach of the MHA to set aside a finding of incapacity under the HCCA, analogizing to the exclusion of evidence following a violation of constitutionally protected rights known as the “fruit of the poisonous tree” doctrine in the United States. First, I note that the fruit of the poisonous tree doctrine has never been part of Canadian criminal law, and it is an error to rely on it in the administrative law context of the Board’s decision-making process. The remedy of finding that a capacity assessment is void ab initio, whenever a MHA provision regarding involuntary admissions is not complied with, is not the appropriate remedy under the Mental Health Act, nor is it consistent with the statutory scheme under the HCCA. Finally, the Board’s approach to the separate analysis of a physician’s obligations under the HCCA is the correct approach as a matter of law.
Remedies Under the Mental Health Act for Breach
[36] There are two remedies provided in the Mental Health Act for breach of a provision regarding involuntary admission, sections 20(8) and 20(3). The curative provision in Section 20(8) provides that where the officer in charge is of the view that the “documents are not properly completed”, the officer in charge shall inform the attending physician and, “unless the person is re-examined and released or admitted in accordance with this section”, the officer in charge shall release the person. This implies a legislative preference for re-examination in accordance with the MHA provision in the case of procedural deficiencies, in circumstances where it is available.
[37] However, section 20(3) of the MHA requires that the officer in charge release a person who is the subject of a s. 15 examination (such as Z. (Z.)) after 72 hours in detention, unless the attending physician has admitted the person as an involuntary patient by completing and filing with the officer in charge a certificate of voluntary admission. Here, the valid Form 3 was not filed and reviewed by the officer in charge for an additional 9 days, until January 23. As a result, it would appear that Z. (Z.) was unlawfully detained, in breach of the mandatory requirement for release under section 20(3) of the MHA.
[38] This breach may give rise to a remedy, such as a remedy in tort for false imprisonment, or a Charter section 24(1) remedy for breach of Charter section 7 given the liberty interests in issue. Either a tort or Charter claim may be pursued in this court. It is also possible that a Charter section 24(1) remedy could be pursued before the Board. However, there is no remedy under the MHA that relates to setting aside or voiding a finding of incapacity under the HCCA in these circumstances.
No Fruit of the Poisonous Tree Doctrine in Canadian Criminal Law
[39] The remedy urged by the Appellant does not make sense in the context of Canadian administrative law and criminal and Charter jurisprudence. Canada has not followed American criminal law “fruit of the poisonous tree” doctrine, pursuant to which derivative evidence is excluded where it is obtained as a result of violating constitutionally protected rights. Indeed, as stated by L’Heureux-Dubé J. in R. v. S. (R.J.), [1995] 1 S.C.R. 451, 21 O.R. (3d) 797 at para. 297: “I note that s. 24 of our Charter is said to exist partly in order to purge the judicial system of the "fruit of the poisoned tree". Instead of the “fruit of the poisonous tree” doctrine of automatic exclusion of evidence, in Canada criminal law questions of exclusion of evidence for violations of constitutionally-protected rights are dealt with as a Charter section 24(2) remedy, which requires a balancing of interests.
[40] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, determined that a court under section 24(2) of the Charter must assess whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. The court must consider the question under three avenues of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the seriousness of the impact of the Charter violation on the Charter-protected interests of the accused; and (3) society’s interest in an adjudication on the merits (Grant, para. 71). The court’s role is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Lastly, the Court must address the question of whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence. There is no “overarching rule” and none of these three factors can trump any other factor” (Grant, para 86).
[41] This type of nuanced approach to the exclusion of evidence prevails in the Canadian criminal context. This makes the analogy to the “fruit of the poisoned tree” doctrine even less persuasive in the case of Board decisions. A similar nuanced approach is better suited to the administrative law determinations made by the Board, which in the case at hand was exercising powers under two different statutes, and in neither case was dealing with the exclusion of evidence.
Different Statutes, Different Remedies
[42] Under the HCCA, the Board was considering an application for review of finding of incapacity pursuant to s. 32(1). The powers of the Board under s. 32(4) of the HCCA are to confirm the health practitioner’s finding, or to determine that the person is capable with respect to the treatment, applying the provisions of the HCCA and in accordance with the purposes of that Act as set out in section 1 of the HCCA. Absent a request for a Charter remedy, the Board under the HCCA does not have the statutory authority determine that a health practitioner’s capacity finding is void ab initio on the grounds that it was made while the a person was the subject of an unlawful detention under the MHA. The rights and remedies set out in the HCCA do not include voiding a physician’s capacity findings for breach of the MHA.
[43] Under the Mental Health Act, the Board was hearing an application pursuant to section 39(1) of the Act, where the Board’s mandate is “to inquire into whether or not the prerequisites set out in this Act for admission or continuation as an involuntary patient are met.” The rights and remedies set out in the Mental Health Act do not include voiding a finding of incapacity made under the HCCA.
[44] As a result, I dismiss the Appellant’s argument that as a matter of law, the Board is required to hold that a finding of incapacity made under the HCCA during a period of unlawful detention under the MHA is void ab initio as the fruit of a poisonous tree.
#3: Did the Board make a reviewable error in concluding that Z. (Z.) was incapable of consenting to anti-psychotic medication treatment?
[45] The test for capacity with respect to treatment is found in section 4 of the Health Care Consent Act. It is a two part-test. A person is capable with respect to a treatment if the person is able to: (1) understand the information that is relevant to making a decision about the treatment (Branch 1), and (2) to appreciate the reasonably foreseeable consequences of a decision or lack of decision (Branch 2). There is a presumption of capacity under the Act.
[46] The onus of presuming incapacity is on the person alleging incapacity – here, the burden was on Dr. Shafro to establish that Z. (Z.) failed to meet either branch one or branch two of the test set out in section 4 of the HCCA.
[47] A person may be capable with respect to some treatments and incapable with respect to others (HCCA, s. 15(1)). Capacity can fluctuate over time: a person may be incapable with respect to treatment at one time and capable at another. The relevant time is the time of the hearing (Starson, at para. 118).
[48] The role of the Board is set out in section 32(4) of the HCCA, which provides that: “The Board 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.”
Branch 1: Able to Understand Information Relevant to Treatment Decision
[49] On the first branch of the HCCA section 4 test, the Board accepted the evidence of Dr. Shafro that Z. (Z.) appeared to understand and retain relevant information provided to her about the proposed treatment, and there was no evidence to the contrary. The Board held that Z. (Z.) remained capable with respect to Branch 1 of the test for capacity.
Branch 2: Unable to Appreciate Reasonably Foreseeable Consequences
[50] In determining whether the Board’s decision on Branch 2 was reasonable, I must consider the existence of justification, transparency and intelligibility within the decision-making process, and also whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[51] On this appeal, Z. (Z.) asserted that the Board misapprehended the evidence, and incorrectly interpreted and applied the test for capacity in section 4 of the HCCA, as interpreted by the Supreme Court of Canada in Starson. Counsel for Z. (Z.) submitted that the Board erred in law in misinterpreting the test for capacity by requiring that at the time of the hearing, Z. (Z.) “agree that she suffered from a mental condition, believe that she was unwell, endorse that the proposed treatment had been and would be beneficial, and that she would want to comply with the anti-psychotic medication.” Z. (Z.)’s counsel also argued that the Board “required” that Z. (Z.) “agree that she was suffering from specific manifestations of bipolar disorder… which is not the legal test.” Z. (Z.) alleged that the Board misapprehended evidence as to symptoms and efficacy of proposed treatment, and that the evidence of risks and benefits of various anti-psychotic medications was inconsistent and contradictory.
[52] As set out in the Board’s reasons for decision, the Board asked the right question and articulated the correct legal test. In doing so, the Board quoted from Starson and other relevant cases, and applied the correct principles to the evidence before it.
[53] The Board specifically set out the analysis of capacity from the Starson decision including the following points in paras. 78-79:
(1) A patient “need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to her own circumstances.”
(2) “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.”
(3) 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 the condition.”
(4) “[I]f the patient’s condition results in him being unable to recognize that he is affected by its manifestations, be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.”
(5) 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.”
(6) The Board should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made; the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment.
(7) If the patient shows an appreciation of the parameters, then regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation he has the ability to appreciate the decision he makes.
(8) The Board must inquire into the reasons for the patient’s failure to appreciate consequences, as a finding of capacity is only justified “if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability appreciate the foreseeable consequences of the decision.”
[54] The Board also relied on the decision in Neto v. Klukach, 12 Admin. L.R. (4th) 101, at paras. 10-13, which holds that:
Three common indicators of a person’s ability to meet the second branch of the test are: (1) whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her; (ii) whether the person is able to assess how the proposed treatment and alternatives, including no treatment could affect his or her quality of life, and (iii) whether the person’s choice is substantially based on a delusional belief.
Capable individuals have the right to take risks, and are presumed free to make decisions that are considered unreasonable, and
The Board must avoid the error of equating the presence of a mental disorder with incapacity; people with mental disorders are most at risk of having their personal autonomy overridden by value judgments.
[55] The Board accepted the explanation of the Branch 2 of the test for capacity as set out in Neto v. Klukach: “The second branch assesses the ability to evaluate, not just understand, information. The patient must have an ability to appreciate the relevant information as it relates to him or her.” The Board clearly set out the legal test it was applying, which test is both correct and defensible in law.
[56] There was ample cogent, compelling and credible evidence, based on Dr. Shafro’s testimony, Z. (Z.)’s testimony, the discharge summary prepared by another physician and clinical notes filed, that Z. (Z.) was unable to appreciate the consequences of her treatment decision. The Board reviewed key elements of the testimony and exhibits filed before it. The Board found that:
According to the doctor’s evidence and Z. (Z.)’s opinion there was no possibility she had manifestations of a mental condition that required any treatment. The clear, cogent and compelling evidence supported findings of both mental disorder and incapacity. Clearly there was a direct connection between Z. (Z.)’s mental condition and her lack of capacity. Z. (Z.)’s lack of insight into her condition and her manifestations of same in hospital rendered her unable to appreciate the information relevant to making a decision and appreciate the consequences for her both of being treated and not being treated. As a result, Z. (Z.) was unable to appreciate the reasonably foreseeable consequences for her, despite clear, cogent and compelling evidence to the contrary.
The Board found Z. (Z.) was unable to see that her mental condition, manifesting through symptoms of mania and psychosis as noted earlier including lack of insight and irritability, were signs of her mental disorder which prevented her from being able to evaluate information concerning the proposed treatment as it related to her own circumstances. Those facts rendered Z. (Z.) in capable to make a decision concerning the proposed psychiatric treatment. In Z. (Z.)’s view as disclosed by Dr. Shafro’s and Z. (Z.)’s evidence she was well and did not require treatment because she was fine. We disagreed with Z. (Z.)
The Board concluded that the presence of Z. (Z.)’s manic and psychotic symptoms, including impaired judgment rendered her incapable with respect to the proposed psychiatric treatment. The Board noted that Z. (Z.) was not able to acknowledge any of the manifestations of her mental condition…
[57] Z. (Z.) denied she had any kind of a mental condition that would benefit from any kind of treatment, and did not believe she previously benefited from treatment nor was she able to appreciate the ways in which her mental illness had actually interfered with her life. As the Supreme Court stated in Starson, at para. 79: “[I]f 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.”
[58] The Board focused on ability to appreciate, and accepted the doctor’s evidence that Z. (Z.) could not appreciate the consequences of a decision about treatment. The Board’s decision with respect to Branch 2 was amply supported by the evidence, except with respect to side effect medication as noted below. It was within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Issue #4: Did the Board make a reviewable error in concluding that Z. (Z.) was incapable of consenting to treatment with side effect medications?
[59] The standard of review is reasonableness with respect to the issue of side effect medications. I must consider whether the Board’s decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[60] The Board upheld the finding that Z. (Z.) incapable of consenting to treatment by way of all forms of “side-effect medication.” I find that this finding is not reasonable on the record before the Board. Capacity is treatment specific, and incapacity findings relate to specific types of proposed treatment. In order for the Board to confirm finding of incapacity, the treatment in question must be proposed for the person, and her capacity to consent to it must be assessed.
[61] The proposed treatment involved Risperdone as well as paliperidone sustenna, although Dr. Shafro testified that he did discuss other types of antipsychotic medication during the course of the assessment process. In his evidence, Dr. Shafro did not state that side effect medications had been discussed with Z. (Z.), nor did he testify that they were being proposed as part of Z. (Z.)’s treatment. Dr. Shafro repeatedly testified that the only treatment being proposed at the time of the hearing was anti-psychotic medication. In addition, the documentary evidence also establishes that the capacity assessments only focused on specific anti-psychotic medications.
[62] The January 14, 2016 Consent to Treatment discussed with the substitute decision-maker was also limited to the antipsychotic medications. Dr. Shafro did not testify that he discussed side effect medications with Z. (Z.), and Z. (Z.) did not testify that there was a discussion of side effect medications.
[63] Section 23 of the HCCA deals with ancillary treatment, and provides that authority to consent to a treatment on an incapable person’s behalf includes authority to consent to another treatment that is “necessary and ancillary to the treatment”. Even if the side effect medication referred to in the Board’s decision was an “ancillary treatment” in the Board’s view, the Board should have made a specific finding to that effect.
[64] Given the lack of any evidence as to any discussion of side-effect medications, the Board’s decision with respect to side-effect medications was unreasonable and the decision of the Board dated February 9, 2016 with respect to side-effect medications is set aside.
[65] In the result, the appeal is allowed with respect to the finding of incapacity regarding side-effect medications.
[66] Neither party asked for costs of the appeal, so there is no order as to costs.
Kristjanson J. Date: October 14, 2016
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Z. (Z.) Appellant – and – DR. ARIEL SHAFRO Respondent
REASONS FOR DECISION Kristjanson J.