Court File and Parties

COURT FILE NO.: CV-16-548403 CV-15-540302 DATE: 20170621 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rocco Capano AND: Dr. Justin Geagea

BEFORE: Stewart J.

COUNSEL: D’Arcy Hiltz, for the Appellant/Responding Party Kendra A. Naidoo, for the Respondent/Moving Party

HEARD: December 16, 2016

Endorsement

[1] The Appellant Rocco Capano appeals the decisions of the Consent and Capacity Board (the “Board”) dated February 11 and March 5, 2016 whereby the Board confirmed the validity of a Community Treatment Order for Capano and also upheld a finding that Capano was incapable with respect to a Community Treatment Plan.

[2] The Respondent in the appeals, Dr. Justin Geagea of the Centre for Addiction and Mental Health (“CAMH”), seeks to uphold the decisions. Dr. Geagea also seeks dismissal of the appeals on the basis that they have been rendered moot as a result of subsequent events.

Facts

[3] Capano is 60 years old. He immigrated to Canada from Italy when he was a child. He worked as a welder and draftsman until approximately 2002. Due to his mental condition, he has had a sporadic employment history since then and has been financially supported by the Ontario Disability Support Program since 2000. Capano has three adult children, but has minimal contact with two of them. His daughter is his substitute decision-maker.

[4] Capano has been diagnosed with schizophrenia of the paranoid type. Historically, Capano's condition has been characterized by delusions, disorganized thinking, and social and occupational dysfunction. These symptoms have led to profound stress, anxiety, agitation, and impaired judgment.

[5] The reported behavioral consequences of Capano’s condition have included not eating, hostility, agitation and aggression. His delusional system has included beliefs that he was entitled to billions of dollars from Katharine Hepburn's estate, he was involved in preventing the nuclear disasters at Fukushima and Chernobyl, and that he has 10 children. He has also expressed the belief that microchips had been implanted into various parts of his body.

[6] Capano has a lengthy history of hospitalizations. He was first diagnosed with schizophrenia during a hospital admission in 1986. Capano's numerous hospitalizations have coincided with repeated noncompliance with treatment. The available records indicate several documented psychiatric admissions to hospitals in 1996, 2001 and 2002.

[7] Capano's lengthiest admission to hospital was from May 13, 2004 to January 15, 2007. This admission was precipitated by a court-ordered assessment of Capano's mental capacity and continued following a finding that he was Not Criminally Responsible ("NCR") on a charge of failing to comply with his probation.

[8] Following his discharge into the community pursuant to an Ontario Review Board detention order in January, 2007, Capano was readmitted to CAMH on three additional occasions in 2007, 2010 and 2011. The 2011 admission was specifically precipitated by Capano's refusal to take his antipsychotic medication.

[9] In August 2014, the earlier finding of NCR was overturned on appeal. As a result, Capano was no longer under the jurisdiction of the Ontario Review Board. Following his appeal, and despite being offered ongoing psychiatric care and support from his outpatient treatment team, Capano declined and discontinued all treatment.

[10] At the time of his appeal, Capano’s attending psychiatrist noted that Capano did not have threatening behaviour and had good self-care, but continued to experience some delusions. However, over the ensuing months Capano's mental condition substantially deteriorated.

[11] Despite a long standing and well-documented history of medication noncompliance, Capano had shown clinical improvement when he actually receives treatment, both historically and at the time of the hearings that are the subject of these appeals. In 2005 and 2006, his attending psychiatrists noted an attenuation of Capano's positive psychotic symptoms in response to treatment with clozapine. Similarly, while being maintained on Haldol in 2009, Capano's attending psychiatrist noted that he had not manifested positive psychotic symptoms for the past year. Capano's mental status was then stable, with well-organized thought and improved self-care. Capano was more engaged and was more able to provide information about topics such as history and current news.

[12] In 2011, a psychiatric assessment by Dr. Benoit Mulsant noted that "with long-term treatment, his delusions have been noted to be less prominent with concurrent improvement in mood, motivation, communication style and self-care."

[13] However, even during periods of medication compliance and clinical improvement Capano's insight into the nature and manifestations of his mental condition remains extremely limited. In 2011, Dr. Mulsant noted that “...even when he was at his best (in 2009), while he acknowledged others believe he had schizophrenia, he did not believe it ·was the case and he reported that he was taking medications ‘because he had to.”

[14] Similarly, in a 2014 Ontario Review Board Report, Capano's attending psychiatrist at the time explained Capano's position with respect to treatment: Capano continues to demonstrate a profound lack of insight regarding his mental illness and need for psychiatric medication. [...] Capano continues to be of the belief that he is innocent of the index offence. Capano has a long history of non-compliance with psychiatric treatment despite past psychiatric admissions and continues to desire a reduction or elimination of medication as seen in April 2011. His goals remain to be viewed as a person who is not suffering from major mental illness and to cease taking medication.

[15] On July 18, 2015, Capano was admitted to CAMH as an involuntary patient. During the admission, Capano demonstrated significant clinical improvement with treatment. He demonstrated fewer threatening behaviours and reduced anger. While he remained delusional, the intensity of his delusions diminished, and he was more settled, more collaborative, less agitated, and not aggressive.

[16] Prior to his discharge from CAMH on January 11, 2016, a Community Treatment Plan (CTP) was developed for Capano by Dr. Geagea, Dr. Ken Harrison (his outpatient psychiatrist), the Downtown West ACT team, Kimberly Batalion (the Community Treatment Order Coordinator), and Capano's substitute decision-maker, all of whom entered into the CTP by January 4, 2016. On that date, Dr. Geagea made a finding that Capano was incapable of consenting to this CTP and obtained consent from the substitute decision-maker for same.

[17] This CTP included a continuation of the prescribed antipsychotic medication and monitoring for side effects that had been ongoing throughout his admission, and follow-up with Dr. Harrison and his team.

[18] On January 4, 2016, Capano was admitted to the care of Dr. Harrison and his team. A Community Treatment Order (“CTO”) was issued by Dr. Geagea on January 20, 2016.

[19] On January 26, 2016. Dr. Geagea reassessed Capano's capacity. Based on this assessment, Dr. Geagea confirmed his opinion that Capano was unable to appreciate that his delusional beliefs were a manifestation of his mental disorder. He found that Capano continued to be unable to appreciate the foreseeable consequences of taking or not taking antipsychotic medication and continued to be incapable of consenting to the CTP.

[20] Capano's capacity with respect to the CTP was assessed for a third time by Dr. Harrison on the day before the Board hearing. Dr. Harrison indicated that Capano's capacity with respect to antipsychotic medication and the CTP had not changed.

[21] Dr. Geagea met with Capano on the day of the hearing. In that assessment, he affirmed that he agreed with Dr. Harrison's opinion that Capano remained incapable of consenting to the CTO and continued to the meet the criteria for issuance of a CTO.

[22] Capano applied for a review of the CTO and the finding of incapacity with respect to the CTP. A panel of the Board convened on February 4, 2016, and then again on February 10, 2016 to consider a preliminary motion brought on Capano’s behalf asking the Board to rescind Capano's CTO dated January 20, 2016 on the ground that its issuance violated section 18 of the Health Care Consent Act (S.O. 1996, c.2, Sched. A) (the “Act”). Section 18 of the Act prohibits a health practitioner from commencing a new treatment for an incapable patient if the patient has made an application to review the finding of incapacity with respect to that treatment.

[23] Capano submitted that the issuance of the CTO on January 20, 2016 had effectively commenced the CTP in violation of section 18, since Capano had appealed the finding of incapacity nine days prior, on January 11, 2016. Counsel for Dr. Geagea submitted that the Board did not have jurisdiction to rescind the CTO on the basis of a violation of section 18 of the Act. Rather, the Board's jurisdiction was limited to determining whether the criteria for issuing a CTO under the Mental Health Act had been satisfied at the time of the CTO Hearing.

[24] In its Order dated February 11, 2016, the Board unanimously denied Capano's motion to revoke the CTO. The Board held (at para. 15) that it did "not have the power to revoke a CTO on the ground that issuing a CTO is a violation of s. 18 of the Act." Furthermore, the Board found that Dr. Geagea's finding of incapacity with respect to the CTP and the subsequent consent obtained from Capano's substitute decision-maker on January 4, 2016 both continued to exist in place after Capano filed his application to review the incapacity finding. As a result, the substitute decision-maker's consent could not be invalidated on this basis alone.

[25] On March 4, 2016, a newly constituted panel convened to determine whether the criteria for the issuance of the CTO had been satisfied and to review the finding of incapacity with respect to the CTP. At the hearing, the Board considered extensive documentary evidence, including the relevant Mental Health Act forms, a clinical summary prepared by Dr. Geagea and documentation from Capano's clinical record. The Board also considered the oral testimony of Dr. Geagea. Capano did not testify.

[26] In his testimony, Dr. Geagea articulated the nature of the CTP that had been proposed for Capano. Treatment with antipsychotic medication, he explained, was the cornerstone of the CTP. Capano was expected to take the medication as prescribed and follow up with his physician and caseworker so that his response to the medication, including any side-effects, could be monitored.

[27] Dr. Geagea stated his opinion that, in the absence of a CTO, Capano would likely stop taking his prescribed medication and suffer substantial mental deterioration as a result. His emotional and cognitive preoccupation with his delusional system would intensify, leading to more maladaptive behaviours including calling the police, isolating himself, and weight loss.

[28] In his clinical summary, Dr. Geagea also noted that worsening delusions and disorganized speech would lead to impaired judgment, resulting in poor self-care, hostility, agitation and aggressive behaviour. This, in turn, would increase the likelihood of repeated hospitalization, family strife, legal involvement and an inability to work. Dr. Geagea’s opinion was supported by Capano's psychiatric history, as documented in his clinical summary.

[29] Dr. Geagea's evidence indicated that Capano had shown clinical improvement in response to treatment with antipsychotic medication. During the most recent admission, there had been an attenuation of Capano's symptoms after being started on Invega Sustenna, including less threatening behaviours and decreased anger. He was more collaborative and a decrease in the intensity of his delusions was noted. In his testimony before the Board, Dr. Geagea indicated that this improvement was significant enough to allow Capano to reside in the community as he posed much less of a threat to others and to himself.

[30] Dr. Geagea's oral and documentary evidence indicated that Capano's failure to appreciate the parameters of the proposed CTP stemmed from an inability to appreciate that he suffered from a mental condition or any of its manifestations, including delusions, disorganization, hostility and aggression. This lack of insight was itself a manifestation of his mental disorder.

[31] Dr. Geagea testified that he had reassessed Capano's capacity on the day of the CTO hearing. While the assessment was admittedly short, he was satisfied that Capano's mental status had not changed. Furthermore, Dr. Harrison had similarly noted that Capano's mental status remained unchanged during an assessment conducted a day earlier.

[32] Dr. Geagea's oral and documentary evidence indicated that the criteria for issuing a CTO were satisfied at the time of the CTO hearing. He testified that Capano met the “Box B criteria” under section 15(1.1) of the Mental Health Act and the criteria for issuing a CTO under section 33.1(4).

[33] Dr. Geagea also indicated that Capano's substitute decision-maker, Dr. Harrison, and all other stakeholders had been actively involved in the development of the CTP. The documentary evidence also indicated that Capano's daughter had consented to the CTP after the finding of incapacity was made on January 4, 2016.

[34] On March 5, 2016, the Board released two decisions, one confirming that the criteria for issuing a CTO had been satisfied and the other confirming Dr. Geagea's finding of incapacity with respect to the CTP.

[35] In reasons dated March 12, 2016, the Board accepted Dr. Geagea's evidence that, while Capano had the ability to understand the information relevant to making a treatment decision, he was unable to see that he was suffering from the manifestations of a mental condition, including his ongoing delusions. The Board found that the evidence, taken as a whole, amply supported this conclusion.

[36] As a result, the Board found that Capano was unable to evaluate information about the CTP in relation to his own circumstances, rendering him unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision concerning the CTP.

[37] The Board unanimously found that Dr. Geagea had established that all criteria required for the issuance of a CTO had been satisfied. Specifically, the Board found that the criterion under section 33.1(4)(f), which is the subject of the present appeal, had been satisfied. Section 33.1(4)(f) requires that an individual who is the subject of a CTP, or his or her substitute decision-maker, must consent to the CTP. In its reasons, the Board found that Capano's daughter had indeed provided consent for both the CTO and CTP.

[38] On July 7, 2016, Capano's CTO was renewed for an additional 6-month period by Dr. Harrison. The CTO was subsequently terminated by Capano's treatment team on October 14, 2016.

[39] On November 14, 2016, Capano was briefly admitted to CAMH in response to his deteriorating mental status due to medication noncompliance. He was subsequently discharged on November 23, 2016, with the intention that he would continue to be followed by a psychiatrist on an ongoing basis.

[40] No subsequent CTO has been initiated or issued and no CTP is currently being proposed.

Are the issues raised in the appeals now moot?

[41] If the decision under appeal will have no practical effect on the rights of the parties at the time the Court is called upon to make its decision, then the dispute before the Court may be considered to be moot.

[42] Whether the Court will exercise its discretion to decide upon an otherwise moot dispute involves a two-step analysis (see: Borowski v. A.G. (Canada) et al., [1989] 1 SCR 342). The Court must determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. If there is no concrete dispute, the Court will determine whether it should exercise its discretion to hear the case in any event.

[43] Dr. Geagea submits that these appeals should not be entertained by the Court as the issues are now moot.

[44] Dr. Geagea argues that since Capano is no longer subject to any CTO or CTP, the tangible and concrete dispute concerning the validity of the CTO and the finding of incapacity with respect to the CTP has disappeared.

[45] The CTO in question was issued on January 20, 2016 and came to an end when it was renewed on July 7, 2016.

[46] There is a possible argument that, if this Court dismisses the appeal as moot, a new CRO could be issued pursuant to subsection 33.1(4)(a)(ii) up until July 6, 2019, three years from the last day the January 20, 2016 CTO was in effect.

[47] Conversely, if this appeal is heard and allowed, the Board’s Decision overturned and the January 20, 2016 CTO is revoked, the ability to issue a CTO for Capano would have to be justified under subsection 33.1(4)(a)(i).

[48] Capano was admitted to CAMH from July 18, 2015 to January 11, 2016 and again from November 14 to November 23, 2016. Accordingly, the latest date on which a CTO could be issued pursuant to subsection 33.1(4)(a)(i) is January 10, 2019, a date that is three years from the first of two separate occasions that Capano was a patient in a psychiatric facility.

[49] At best, therefore, a decision on the merits of Capano’s appeal may conceivably reduce the timeframe within which a further CTO could be issued by approximately 6 months. This possibility, however, is quite speculative and hypothetical. In my view, it does not operate to change the fact that the issues raised in the appeals are largely academic and therefore moot.

[50] It is argued on Capano’s behalf that the practical effect of a decision on the rights of Capano in his favour would be that, in the event he were again assessed to be not capable, his expression of “prior capable wish” regarding the same or similar treatment in applicable circumstances would be binding on his substitute decision-maker and health practitioner.

[51] This argument was considered and rejected, albeit in somewhat different circumstances by the Court of Appeal for Ontario in its decision in Dickey v. Alexancer, 2016 ONCA 961. In its reasons for declining to entertain an appeal as moot, the Court of Appeal noted that s.36 of the Act establishes a procedure pursuant to which a substitute decision maker and health care practitioner can obtain permission for consent to treatment despite a prior capable wish.

[52] Dealing with the second branch of the aforementioned test, I further consider there to be no compelling or significant basis upon which this Court should exercise its discretion to hear this appeal on its merits.

[53] In summary, it is my view that the mere possibility of a 6-month reduction in Capano’s eligibility for a future CTO is neither tangible nor concrete, nor does it offer a compelling basis upon which to find that a live controversy exists between the parties today or to persuade the court that it should exercise its discretion to deal with these appeals.

Conclusion

[54] For these reasons, I consider these appeals to be moot.

[55] The appeals are therefore dismissed.

Costs

[56] If any party is seeking costs in this matter and that subject cannot be agreed upon, written submissions may be delivered within 30 days of the date of release of this decision.

Stewart J. Date: June 21, 2017