Court File and Parties

COURT FILE NO.: CV-16-555509 DATE: 20170216

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of The Consent and Capacity Board Pursuant to s. 80 of the Health Care Consent Act, 1996 S.O. 1996 c. 2, Sched. A , as amended

AND IN THE MATTER OF JUSTIN MITCHELL a patient of BRAMPTON CIVIC HOSPITAL, Brampton, Ontario

BETWEEN:

JUSTIN MITCHELL Applicant/Appellant – and – DR. T. K. BANIK Respondent

Counsel: Joanna Weiss, for the Applicant/Appellant Gillian Hnatiw, for the Respondent

HEARD: February 2, 2017

GILMORE J.

Overview

1Justin Mitchell (“Mr. Mitchell”) appeals the Consent and Capacity Board’s (“the Board”) decision that he is not capable of consenting to treatment with anti-psychotic medications and ancillary medications in oral and intramuscular forms.

2The hearing in this matter was held on June 17, 2016, and the decision released the same day. The Board’s reasons were delivered on June 24, 2016. The appeal relates to the Board’s confirmation of Dr. Banik’s finding of treatment incapacity. Mr. Mitchell asserts that the Board erred in fact and law in confirming the finding of incapacity and the proposed treatment. He submits that the Board’s decision was both unreasonable and incorrect. Mr. Mitchell attacks the Board’s conclusion that he lacked the ability to appreciate the consequences of having or not having treatment and was thereby incapable of consenting to treatment.

3Counsel for Dr. Banik submits that the Board applied the proper legal test to the facts in a reasonable manner and that there was ample evidence to support its conclusions.

Background

4Mr. Mitchell is 28 years old. He lives with his parents and receives income support from the Ontario Disability Support Plan. Mr. Mitchell has been treated for schizophrenia for 12 years. During that time he has had seven psychiatric hospital admissions totaling 187 days. He has also been the subject of several Community Treatment Orders (“CTO”). The last one ended in July 2015, when his Substitute Decision Maker (his father) withdrew his consent.

5Mr. Mitchell was mostly stable during the period of 2005 to 2014 and on medication or a CTO for part or most of that time. He experienced a decline in his mental health commencing in 2014, which lead to involuntary admission to hospital on June 8, 2016, and Dr. Banik’s subsequent finding which was confirmed by the Board and challenged in this case.

6In 2015, Mr. Mitchell had three psychiatric hospital admissions; two of the admissions were as a result of altercations with his family and in particular his father. In March 2015, he remained in hospital for 26 days. He received Modecate and later Invega as antipsychotic medications. At that time he was the subject of a CTO. The CTO ended in July 2015, when Mr. Mitchell’s father withdrew as Substitute Decision Maker. Mr. Mitchell stopped taking medication at that point. He continued outpatient appointments with his psychiatrist, Dr. Acharyya, every few months but was not receiving any specific treatment.

7In January 2016, although Dr. Acharyya did not note that Mr. Mitchell had any acute symptoms, his chronic psychosis was ongoing and he continued his refusal to take medication. When Mr. Mitchell saw Dr. Acharyya in May 2016, he was still not taking medication. She warned him that his condition would deteriorate and his thought disorder would increase if he did not take medication but felt he was competent to make decisions about medication at that time. Further, there had not been problems with his parents and Mr. Mitchell was not suicidal or aggressive.

8On June 8, 2016, Mr. Mitchell was brought to the emergency department of the Brampton Civic Hospital by police after acting in an aggressive and threatening manner at home. He was placed on a Form 1 and assessed by psychiatrist Dr. El-Kholi who described him as “poorly kept and quite disheveled”, “paranoid with prominent delusional thinking”, and with “impaired insight and poor judgment.” She questioned his capacity to consent to treatment.

9On June 15, 2016, Mr. Mitchell was assessed by Dr. Banik. He noted that Mr. Mitchell had been “easily angered, frustrated, irritable, demanding, confrontational and verbally abusive towards staff.” Mr. Mitchell had required anti-anxiety medication to control his behaviour and at times required seclusion. Dr. Banik determined that Mr. Mitchell was incapable of consenting to treatment because of “his inability to appreciate the reasonably foreseeable consequences of his treatment or lack of treatment.”

The Board Hearing on June 17, 2016

10A three person Board composed of a lawyer, Mr. Glenn Stuart; a psychiatrist, Dr. Karen Hand; and a public member, Ms. Sabita Maraj, conducted a review of Dr. Banik’s capacity finding. Dr. Banik and Mr. Mitchell gave evidence and were cross-examined. Each Board Member asked questions, and records from Mr. Mitchell’s recent assessments and admissions were admitted as exhibits. Mr. Mitchell was represented by counsel at the hearing but Dr. Banik was not.

11Dr. Banik testified that prior to the June 2016 admission, Mr. Mitchell had not been on medication since July 2015. He told the Board that Mr. Mitchell is well aware of the benefits and risks of various medications because he has been through the process many times. He was satisfied that Mr. Mitchell knew he suffered from schizophrenia but that he refused to take treatment. He told Dr. Banik that he could manage without treatment but also that the medication gave him emotional distress. [1] The emotional distress included being treated differently by his parents while on medication and feeling excluded by them. [2]

12Dr. Banik testified that he proposed the injection of Invega Sustanna or similar medication as treatment for Mr. Mitchell. He would be placed on a CTO and receive outpatient psychiatric care. However, Mr. Mitchell refused Invega or any type of psychotropic or anti-psychotic treatment. Dr. Banik’s evidence was that he was certain that Mr. Mitchell was aware of the benefits of such treatment because of his lengthy experience with such treatments but that he refused treatment because it was his “human right” to do so. [3] Further, Dr. Banik conceded that Mr. Mitchell frequently told him that he knew he had a mental illness, however, he was uncertain that Mr. Mitchell really understood the implications of his illness because he insisted he was fine and needed no treatment. [4] He was aware that Mr. Mitchell was attending appointments with his psychiatrist on a voluntary basis before his admission, but he questioned whether attending appointments could be equated with being receptive to treatments. [5]

13Dr. Banik was concerned by what he described as a decline in Mr. Mitchell’s behaviour which played out by increased aggression against his family members. This is what led to his admissions in both 2015 and 2016. [6] He was also concerned with Mr. Mitchell’s behaviour while in hospital as he had to be given injections almost daily to control his behaviour and occasionally kept in seclusion and under restraint. His behaviour in hospital continued to decline and Dr. Banik described him as irritable, angry, argumentative, confrontational, verbally threatening, yelling, screaming, making nonsensical conversation, swearing, and failing to follow direction to the point that security had to be called.

14Dr. Banik’s view was that Mr. Mitchell needed medication on a regular basis in order to have better control of his behaviour. [7] He felt that without medication, Mr. Mitchell’s psychotic symptoms would get worse, he would experience delusions and hallucinations and his family would be unable to cope with him. [8] His father told Dr. Banik that the family was very frightened by the behaviour exhibited by his son that prompted him to call the police. He would like his son to go back on medication [9] .

15Dr. Banik did not disagree that at times Mr. Mitchell is coherent and able to cope but on other days he is disorganized in the way he talks and even suspicious and paranoid. [10] It is true that schizophrenia is a fluctuating condition which results in patients having ups and downs. This would explain why Mr. Mitchell has been in the community at times for periods of up to a year without medication or hospitalization. [11]

16Dr. Banik was asked about the nine year period between 2005 and 2014 when Mr. Mitchell had no hospital admissions. His response was that as far as he was aware, Mr. Mitchell was taking medication voluntarily at that time and seeing a psychiatrist regularly. His view was that this was the early stage of Mr. Mitchell’s illness and the symptoms were not as severe. [12]

17Mr. Mitchell told the Board that he knows he suffers from a mental illness and that medication helps to control his chronic episodes. [13] He objected to receiving injections while in the hospital and felt he was not being heard and that he was being given medication for doing nothing but sitting in his room. [14] He felt that if he was no longer living with his parents he would be agreeable to taking medication because there would be no negative feedback. However, his evidence was somewhat confusing on this point as he said (concerning his parents), “And they don’t support myself or but I don’t really need their support. I don’t need my parents’ support too much right, but I do and so I would be open to take it, help me because it’s a better environment me to live in.” [15]

18When questioned by Dr. Banik, Mr. Mitchell was clear that he had a mental illness but he could not describe the nature of the illness other than testifying that he needed help. At one point in his testimony, he explained that he was refusing treatment because he did not think it benefitted him and the side effects made him feel down and gave him a certain reputation. [16] Later, when questioned by the Chairperson of the Board, he testified that he suffered from psychosis and psychotic episodes and that he would need treatment eventually but that he had the right to not take treatment. [17] When questioned by the public Board member, Mr. Mitchell testified that taking medication made him feel more independent and less likely to make excuses for his behaviour. [18]

19Exhibit 8 is a Mental Health Progress Note from his psychiatrist, Dr. Partha Acharyya, dated January 6, 2016. Dr. Acharyya noted that Mr. Mitchell did not want to take medication. Her impression was that he was in a cognitive distorted state but not suicidal and coping. While his chronic psychosis was ongoing, there were no acute symptoms and, as such, no treatment was offered or given at that time. [19]

20Exhibit 7 is a Mental Health Progress Note from his psychiatrist, Dr. Partha Acharyya, dated April 13, 2016. Mr. Mitchell was still not taking medication. Dr. Acharyya explained to Mr. Mitchell that by not taking medication, his condition would deteriorate and his thought disorder would increase. Mr. Mitchell did not believe her and did not believe he had an illness. Dr. Acharyya also noted that Mr. Mitchell was not aggressive or suicidal and that Mr. Mitchell’s parents seemed to have accepted that Mr. Mitchell was competent to decide when to take his medication. [20]

21Exhibit 4 is the Mental Health Progress Note of Dr. El-Kholi dated June 8, 2016. Her impression of Mr. Mitchell, at that time, was that he was presenting with increasing aggression towards his family with exacerbation of his paranoid schizophrenia with suspected prominent delusional thinking. [21]

22After hearing the oral evidence and reviewing the documentary evidence, the Board did not dispute that Mr. Mitchell knew he had a mental illness. However, the matter did not end there. The Board, in relying on the leading case of Starson v. Swayze , [22] determined that Mr. Mitchell “lacked an actual appreciation of the decision being made for three reasons: Mr. Mitchell was unable to recognize the manifestations of his illness; he was unable to understand the benefits to himself of treatment; and he was unable to consider any benefits or risks other than his conflict with his family. [23]

The Health Care Consent Act

23Pursuant to the Health Care Consent Act, 1996 S.O. 1996 c. 2 (the “ Act ”), a person is presumed to be capable with respect to giving consent to treatment. The onus of proving one is not capable, lies with the practitioner; in this case Dr. Banik.

24Pursuant to s.4 of the Act , Dr. Banik therefore bore the onus of proving that Mr. Mitchell was able to (a) understand the information relevant to making a decision about the treatment; or (b) appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment. If the Board was convinced of either (a) or (b), Dr. Banik would have satisfied his onus on a balance of probabilities.

The Standard of Review

25In this case, the Board applied certain facts to a legal standard, namely, the definition of incapacity. The standard of review for a question of mixed fact and law is reasonableness. This is not contested by counsel. Absent any demonstrable unreasonableness, a degree of deference is owed to the Board given that it is a specialized expert tribunal.

26In this case, the court must determine if the Board’s decision was reasonable. In examining reasonableness, the court must look at the Board’s Reasons for Decision and the outcome to determine if the result falls within the range of defensible and acceptable outcomes. [24]

Did the Board err in finding that Mr. Mitchell was incapable of consenting to treatment?

27The leading case in this area is Starson. In that case, the Supreme Court of Canada further defined the criteria for capacity. With respect to the ability to make a treatment decision the court found (at para 78) that “this requires the cognitive ability to process, retain and understand the relevant information.” With respect to the consequences of such a decision, the court found that “…a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.”

28There is no doubt that both Dr. Banik and the Board focused on the second branch of the test with respect to Mr. Mitchell’s ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision to accept treatment.

29There is evidence that Mr. Mitchell understood the relevant information. He knew he had a mental illness, had taken treatment for it in the past (including ongoing outpatient psychiatrist appointments), and had had past hospital admissions. However, the fact that he willingly admitted to these facts is insufficient to deal with the second branch of the Starson test. I therefore disagree with Mr. Mitchell’s counsel that his understanding of his own condition undermines a finding of incapacity.

30Based on my review of the evidentiary record, I conclude that the Board’s finding was reasonable with respect to Mr. Mitchell lacking capacity to consent to the proposed treatment. Mr. Mitchell’s evidence was contradictory with respect to whether treatment would benefit him or not. This was representative of the symptom of disordered thinking as referred to by both Dr. Banik and Dr. Acharyya.

31There was also Mr. Mitchell’s focus on the conflict in his family and particularly with his father. He wavered between blaming his parents for his behaviour and conceding that he needed their support. He insisted that his family thought less of him for taking treatment, notwithstanding information from his father given to Dr. Banik that he supported his son having treatment. He reported that his refusal of treatment was related to the negative way his family treated him while on medication, yet he refused treatment while in the hospital and away from his family. Finally, Mr. Mitchell’s fixation with his family’s negative treatment cannot be reconciled with his continuing to live with them despite conceding that he could afford to live elsewhere.

32I agree with the Board that these inconsistencies in Mr. Mitchell’s behaviour and testimony were indicative of his disorder including “paranoid, disorganized and likely delusional thinking identified by each psychiatrist whose contacts with Mr. Mitchell were in evidence.” [25]

33I find that Mr. Mitchell’s disordered and likely delusional thinking precluded him from being able to weigh the risks and benefits of treatment. This leads to the inevitable conclusion that he could not appreciate the consequences of his decision to take treatment or not.

Did the Board misapprehend the evidence?

34The Board did not misapprehend the evidence. The lengthy and carefully drafted Reasons for Decision of the Board summarized and referred to the evidence of Dr. Banik, Mr. Mitchell, and various Mental Health Progress Notes prepared by Dr. Archyya and Dr. El-Kholi, and Mr. Mitchell’s medical records. Mr. Mitchell’s counsel was afforded ample opportunity to cross-examine Dr. Banik and all Board members asked incisive and informed questions of Dr. Banik and Mr. Mitchell.

35The Board accepted Dr. Banik’s opinion. That opinion was well supported by the documentary evidence and Dr. Banik’s testimony, based on his assessment, observation and discussions with Mr. Mitchell, that Mr. Mitchell was opposed to medication, did not believe he needed treatment and did not believe that treatment benefitted him, or that it did but caused emotional distress because of his parents alleged abusive behaviour towards him when he was on medication.

36I accept that Dr. Banik’s opinion and evidence reasonably lead the Board to conclude that, although Mr. Mitchell knew he had a mental illness and that people with mental illnesses could benefit from treatment, he was unable to apply that information to his personal circumstances.

37As well, the Board’s expertise in these matters cannot be ignored including that of the psychiatrist Board member. Deference is owed to their conclusion, based on all the evidence, that Mr. Mitchell’s diagnosed schizophrenia resulted in his inability to appreciate the foreseeable risks and benefits of treatment.

Did the Board apply the proper legal test?

38The legal test in this case related to whether the evidence established, on a balance of probabilities, that Mr. Mitchell was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.

39The Board was clearly aware of this test and referred specifically to Starson. In quoting Starson it is clear that the Board was cognizant of the fact that having a mental illness does not equate to a lack of capacity nor is the person’s “best interests” to be considered. Rather, capable people have the right to make unwise decisions about their treatment. I am satisfied that the Board understood what was required to displace the fundamental right to make one’s own treatment decisions and that its conclusion was based on the evidence available and its reasonable application of that evidence to the proper legal test.

Was the Board’s decision unreasonable?

40The Board’s decision was within the range of reasonable outcomes in the all the circumstances. The Board carefully considered Mr. Mitchell’s evidence that he knew he had a mental illness and that medication may have been of benefit to him in terms of his capacity. It then reviewed Dr. Banik’s evidence that Mr. Mitchell was simply repeating statements based on what he thought the Board might want to hear as opposed to really meaning what he said.

41The Board reasonably concluded that when Mr. Mitchell said he suffered from psychotic episodes and would need treatment “eventually,” he was not able to understand the benefits of medication nor that his mental condition would continue to deteriorate without it.

42The Board reasonably relied upon Starson with respect to Mr. Mitchell basing his choice not to take treatment on a delusional belief. There was evidence from all three psychiatrists involved with Mr. Mitchell that he suffered from disordered thinking leading to possible or likely delusional beliefs. The Board reviewed examples of Mr. Mitchell’s disordered thinking including the contradictory evidence Mr. Mitchell gave concerning the relationship with his family when he was taking medication.

Did the Board err in confirming the finding of incapacity with respect to ancillary, and/or side-effect and anti-anxiety medications?

43Mr. Mitchell submits that the evidence was not clear and/or insufficient that side-effect or anti-anxiety medications were necessary or ancillary to anti-psychotic medication. The Board required a nexus between the use of ancillary medications and the use of anti-psychotic medications in order for it to conclude that such medications were indeed ancillary. Further, the use of such ancillary medication was prospective and was not actually being proposed for Mr. Mitchell at the time of the hearing.

44Dr. Banik’s counsel relies on s. 24 of the Act which stipulates 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 incapable person is capable with respect to the necessary and ancillary treatment.”

45Ms. Hnatiw also points to the evidence of Dr. Banik at page 4 of the transcript in which he clarifies for the Board that the treatment proposed included anti-psychotic medication, and anti-anxiety and side-effect medication.

46I agree with Ms. Hnatiw on this point. It is impossible to know what the side effects of the proposed treatment will be. S. 24 of the Act anticipates this as does Dr. Banik in his evidence. Mr. Mitchell referred several times to negative side effects of former treatments. Without such consent for ancillary treatment for side effects, Mr. Mitchell is worse off and left to deal with potential negative side effects without the benefit their being lessened by another medication.

Final Order

47The appellant’s appeal is dismissed. The Board’s decision dated June 17, 2016, is confirmed that Mr. Mitchell is not capable to consent to treatment with anti-psychotic medications in oral and muscular forms nor is he capable to consent to treatment with side-effect and anti-anxiety medication in oral and muscular forms.

48Costs are not sought on this appeal.

Gilmore J. Released: February 16, 2017

COURT FILE NO.: CV-16-555509 DATE: 20170216 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF an appeal from a decision of The Consent and Capacity Board Pursuant to s. 80 of the Health Care Consent Act, 1996 S.O. 1996 c. 2, Sched. A , as amended AND IN THE MATTER OF JUSTIN MITCHELL a patient of BRAMPTON CIVIC HOSPITAL, Brampton, Ontario BETWEEN: JUSTIN MITCHELL Applicant/Appellant – and – DR. T. K. BANIK Respondent

REASONS FOR JUDGMENT Gilmore J. Released: February 16, 2017

Footnotes

[1] Transcript of Board hearing, June 17, 2016, pp.15-16. [2] Ibid at p. 29. [3] Ibid at p.27. [4] Ibid at p. 54. [5] Ibid at p. 67. [6] Ibid at p. 31. [7] Ibid at pp. 49-50. [8] Ibid at p. 55. [9] Ibid at p. 57. [10] Ibid at p. 37. [11] Ibid at p. 40. [12] Ibid at p. 51. [13] Ibid at p. 75. [14] Ibid at p. 73. [15] Ibid at p. 77. [16] Ibid at p. 87. [17] Ibid at p. 98. [18] Ibid at p. 99. [19] Record of Proceedings, p. 51. [20] Ibid , p. 49. [21] Ibid, p. 45. [22] 2003 SCC 32 , [2003] S.C.J. No. 33 at para 80 (“ Starson”) . [23] Reasons for Decision, Record of Proceedings, pp. 21-22. [24] Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 at paras. 14 & 16 . [25] Supra at page 23.