Court File and Parties

COURT FILE NO.: 2824/16 DATE: 2017-01-16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

T.C. Appellant

– and –

DR. THOMAS HASTINGS Respondent

Counsel: Russell W. Browne, for the Appellant Carolyn Brandow, for the Respondent

HEARD: January 4, 2017

REASONS FOR JUDGMENT

gray J.

[1] The appellant appeals from a decision of the Consent and Capacity Board, dated September 17, 2016, for which written reasons were given on September 30, 2016, by which it confirmed the finding of the respondent, Dr. Hastings, that the appellant was incapable of consenting to treatment with antipsychotic medications.

[2] For the reasons that follow, the appeal is dismissed.

Background

[3] On September 6, 2016, the appellant was brought by the police to the emergency department at Oakville-Trafalgar Memorial Hospital as a result of psychotic symptoms he was exhibiting, and an escalation of conflict in the family home. He was assessed in the emergency department and placed on a “Form 1” under the Mental Health Act. He was admitted to the psychiatry ward where he was seen by the respondent, Dr. Hastings, in psychiatry consultation on September 7, 2016.

[4] The appellant was assessed by Dr. Hastings. Upon completion of the assessment, Dr. Hastings determined that the appellant was incapable of consenting to treatment with antipsychotic medication in any form. Dr. Hastings consulted with the appellant’s brother who, acting as the appellant’s substitute decision-maker, consented to the appellant’s hospitalization under the Mental Health Act.

[5] In his notes in which he recorded the appellant’s history, Dr. Hastings confirmed that after his last discharge from hospital, the appellant stopped following up in taking his medication. The appellant took the position that he did not need the medication and never had, but that he had taken medication in the past to be “cooperative”. He did not feel that any of his multiple delusional ideas were in fact psychotic in nature. His delusions included the belief that he is involved with the FBI, the RCMP and other multiple security organizations. He believed that famous movie stars were communicating with him on a regular basis. He expressed the view that he had been harassed and spiritually attacked, including during the interview, where he felt his face and cheek being attacked spiritually by others. He believed that the medications have never really made any difference to his symptoms, although this was clearly in contrast to evidence of clinical improvement when he took them.

[6] The appellant explained each of his prior psychiatric hospitalizations as being a misunderstanding related to conflict with family, and was unable to appreciate that these conflicts escalate in the context of non-compliance with medication. Dr. Hastings discussed with the appellant the risks, benefits and side-effects of medication and consequences of treatment and non-treatment. The appellant indicated that he would likely leave the hospital if voluntary, and while he would cooperate with treatment in the short term, does not feel that he would likely do so in the long run as he does not need it.

[7] Dr. Hastings noted that the attendance at the hospital on September 7, 2016, was the appellant’s seventh admission psychiatrically to the hospital, starting with an admission in May and June, 2008, and the last being in October and November, 2014. He had had extensive psycho-education with respect to signs and symptoms of psychosis as well as the risks and benefits of antipsychotic medications.

[8] Dr. Hastings consulted the appellant’s brother, who consented to on-going hospitalization of the appellant and indicated a willingness to be prepared to act as a substitute decision-maker.

[9] The appellant appealed the finding of treatment incapacity and his involuntary status to the Consent and Capacity Board. While the Board upheld both findings, it is only the finding of incapacity that is now appealed to this Court.

[10] A three-member panel of the Board held a hearing on September 16, 2016. The panel members consisted of a lawyer, a psychiatrist and a lay member. Counsel appeared for the appellant, and the spouse of counsel appeared, and partway through the hearing she was identified as co-counsel.

[11] The hearing was conducted by video-conference. The panel members were located in a hospital in Hamilton, while the appellant, his counsel and the respondent were located at Oakville-Trafalgar Memorial Hospital in Oakville. The respondent was not represented by counsel.

[12] Notice of the hearing was given on September 14, 2016. It specified that the hearing would occur on September 16, 2016 at 1:00 p.m. “or as soon as possible after that.” As a result of some technical difficulties, the hearing did not commence until 1:44 p.m.

[13] The appellant’s counsel took the position that the hearing should not take place by video-conference. He also took the position that as a result of technical difficulties, the parties and their counsel were not able to see the panel members during the hearing, although the panel members could see the parties and their counsel, and that this was improper. Ultimately, however, counsel for the appellant agreed that the hearing could proceed with the then current arrangements.

[14] The respondent objected to counsel’s spouse being present during the hearing. After she was designated as co-counsel, she was permitted to remain in the hearing, but the Board ruled that only one counsel could participate. Ultimately, counsel’s spouse left the hearing on the basis that she had something else to do.

[15] The evidence at the hearing consisted of oral testimony of the respondent, the appellant, and the filing of two exhibits, namely, Form 3 under the Mental Health Act and a Notice to Patient under the Mental Health Act; and various consultation notes taken from the hospital records, and a letter from the Office of Public Guardian and Trustee dated September 13, 2016.

[16] The respondent’s evidence in chief was, in its entirety, as follows:

I appreciate you have read the documents and as a result I’ll only present briefly orally and that’s based on the evaluation I had with [Mr. C.] today. Today he presents as very thought disordered on an ongoing basis, with continued delusional ideas and is effectively unchanged from the earlier documentation relating to this current admission to hospital and my prior assessments that you already have submitted in the written evidence. My view is that today, as at the day I completed the Forms, he remains both incapable of consenting to treatment with antipsychotic medications of all forms and certifiable under Box B of the Mental Health Act. In my opinion the documents support that those pre-conditions have all been met. I don’t have any other evidence.

[17] On cross-examination, the respondent acknowledged that the appellant could understand the information that is relevant to making a decision about treatment. However, he testified that the appellant was unable to appreciate the consequences of a decision or lack of a decision. The “decision” related to the taking of antipsychotic medications in all forms.

[18] The respondent acknowledged that it would be possible for the appellant to receive medication orally, but his definite recommendation was that it would be required to be a long-acting injection because of the appellant’s history of repeated non-compliance with oral tablets.

[19] The respondent was asked on cross-examination to describe the reasonably foreseeable consequences of the appellant not taking the medication. His answer was as follows:

A deterioration in his mental status, presenting with increased psychotic symptoms including auditory hallucinations and some tactile hallucinations, worsening of his disorganized thinking or thought disorder. As a result of those psychotic symptoms a deterioration in his functioning, including for instance spending protracted periods of time staring at a mirror, which he’s done before, deterioration in his relationship with his family functioning, including increasing aggressivity or agitation, that has proceeded prior hospitalizations in a very similar pattern related to his deteriorated mental status and increasing psychotic symptoms. Deterioration in his ability to participate in activities in the home, for instance chores and other things that he would traditionally do and ultimately as a result of this deterioration hospitalization involuntarily as he has in the past. In addition, the stress of his psychotic symptoms have caused him in the past to engage in self harm behaviour in the form of hitting himself in the face with his hands or hitting himself with a stick.

[20] The respondent was asked on cross-examination why he felt the appellant did not appreciate the concern about reasonably foreseeable consequences of not taking the medication. His response was as follows:

He’s repeatedly indicated to me that he does not experience symptoms of psychosis, he even when I specifically and explicitly discuss the symptoms he’s currently having and has had in the past. He feels that all his prior admissions to hospital have been precipitated by family dysfunction not symptoms of psychosis. And he’s in the past and current admission to hospital, denied that the symptoms I’ve presented directly to him could possibly be psychotic in nature, or that therefore he would be responsive to treatment with an antipsychotic medication. He’s further indicated to me that he doesn’t feel he’s ever benefited from antipsychotic medications in the past at least as it relates to reduction of his psychotic symptoms and doesn’t feel that the medications could therefore benefit him in the future or have they benefited him in the past.

[21] Also on cross-examination the respondent was asked “And your concern is that he doesn’t understand the foreseeable consequences of the positive values of taking medicine? Is that your evidence?” The respondent answered “That’s right.”

[22] The appellant, in his evidence, testified that he was in the hospital in violation of his rights because of his connection with the RCMP. He testified that he was not mentally ill or physically ill or a harm to himself or anyone else. He testified that he understood the potential side-effects of medication and that he would have decreased value function as a result of not taking medication. He understood that staring in the mirror might be eliminated, “because when you look into a mirror you are adjusting yourself you are fixing yourself.”

[23] In its decision, the Board considered two issues: the involuntary status of the appellant; and the appellant’s capacity to consent to treatment. As noted earlier, it is only the latter issue that is the subject of this appeal.

[24] On the capacity to consent issue, the Board stated that it applied the test set out in section 4(1) of the Health Care Consent Act, 1996. There are two criteria to be considered under that subsection. First, does the patient understand the information relevant to making a decision about treatment of mental disorder? Second, is the patient able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question?

[25] The Board noted that the respondent acknowledged that the appellant was able to understand the information relevant to making a decision about treatment of mental disorder. Accordingly, the Board considered only the second criterion, namely, whether the appellant was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about taking medication to treat his mental disorder.

[26] The Board stated at page 21 of its reasons:

It was Dr. Hastings’s further opinion that, while TC was able to understand the information relayed to him, he was unable to appreciate that he had a psychiatric illness and that the proposed treatment would likely improve his symptoms and subsequently decrease the risk that he posed to himself, his family and the general public. Dr. Hastings was of the view that TC was unable to apply his understanding of the relevant information regarding medications to himself and, therefore, could not appreciate the potential benefits that he would derive from treatment with psychotropic medications (Exhibit 3, page 7).

Inasmuch as TC was unable to appreciate the foreseeable consequences of a decision to not treat his mental condition and illness, the second branch of the capacity test, it was Dr. Hastings’s opinion that TC was currently incapable to consent to treatment with psychotropic medication (Exhibit 3, page 7).

[27] After discussing the decision of the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, the Board stated at pages 22 and 23:

The panel found that TC was not able to consider his circumstances in light of his mental condition, nor weigh the benefits and risks of the proposed treatment. Lacking this ability, TC could not evaluate the reasonably foreseeable consequences of a treatment decision.

To be clear, the panel was convinced by Dr. Hastings’s evidence, as supported by the documentary evidence provided, and found that TC was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the proposed treatment. Based on Dr. Hastings’s evidence, the panel found that the proposed treatment likely offered benefit to TC. The panel also found that, absent treatment, TC would likely continue to deteriorate just as he had done in the past. This branch of the test requires one to weigh the potential benefits and risks of the proposed treatment. The panel found that TC lacked the ability to conduct such an evaluation in the context of his own circumstances because of his mental condition. TC both failed to acknowledge that he was suffering from a major mental disorder, as well as, that he was suffering any of its symptoms. TC also indicated that he would not take any prescribed medication. Furthermore, the panel found TC’s testimony and position were both unclear, contradictory, and at times, troubling, if not bizarre, in their content. As an example, TC felt his behaviour should be protected by RCMP rules and military by-laws.

Therefore, relying on the clear, cogent and compelling evidence of Dr. Hastings, the panel found that TC was not able to consider his circumstances in light of his mental condition, nor weigh the benefits and risks of the proposed treatment. Lacking this ability, TC could not evaluate the reasonably foreseeable consequences of a treatment decision.

Submissions

[28] Mr. Browne, counsel for the appellant, makes three principal submissions:

a) there was procedural unfairness which vitiates the proceedings; b) the Board failed to apply the proper legal test for incapacity; c) the Board’s decision was unreasonable.

[29] With respect to the first ground, Mr. Browne submits that while the Board had the statutory right to hold an electronic hearing, it was fundamentally unfair to do so. It was important that the Board be able to understand and appreciate the evidence given in its full context, and it was improper to attempt to do so when it could not be present to see and hear the witnesses in person.

[30] The difficulty was compounded, in Mr. Browne’s submission, by the technical glitches that occurred, that resulted in a delay in the hearing and which meant that the parties and their counsel could not see the Board members during the hearing.

[31] Mr. Browne also submits that it was unfair to rule, at the outset, that co-counsel for the appellant could play no role in the hearing. There is little point in having co-counsel present if that person can play no role. It was unfair of the Board to prohibit co-counsel from having any meaningful role to play.

[32] As to the second point, Mr. Browne submits that the test for incapacity must be narrowly construed. He submits that the right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy. Unwarranted findings of incapacity severely infringe upon a person’s right to self-determination. Pursuant to section 4(2) of the Health Care Consent Act, 1996, it is presumed that a person is capable of deciding to accept or reject medical treatment. Thus, anything that would cut down that presumption must be narrowly construed.

[33] Mr. Browne submits that the leading case in which section 4(1) of the Act has been interpreted is Starson v. Swayze, supra. In that case, the Supreme Court made it clear that a patient need not agree with the diagnosis of a physician in order to be able to apply relevant information to his or her own circumstances. Secondly, and of significance in this case, 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. Accordingly, it is imperative that the Board inquire into the reasons for the patient’s apparent failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him or her from having the ability to appreciate the foreseeable consequences of the decision.

[34] In this case, Mr. Browne submits, the Board failed to appreciate the difference between the ability to appreciate the consequences of a decision from the actual appreciation of those consequences. The onus is on the respondent, Dr. Hastings, to demonstrate that the appellant lacks capacity. At most, Dr. Hastings has purported to show that the appellant does not appreciate the actual consequences of a failure to take medication. It has not been demonstrated that the appellant lacks the ability to appreciate those consequences.

[35] Mr. Browne submits that, as held in Starson, no deference is to be paid to the Board on the interpretation of section 4(1) of the Act. Since the Board misapplied section 4(1), its decision must be set aside.

[36] As to the third point, Mr. Browne submits that the Board’s decision was unreasonable. He submits that the Board failed to take into account the evidence of the appellant himself, particularly his evidence to the effect that he understood the consequences of not taking the medication. Since it is conceded that the first criterion for assessing capacity has been satisfied, namely, that the appellant understands the information relevant to making a decision about treatment, it is unreasonable to conclude that he is not able to appreciate reasonably foreseeable consequences.

[37] Mr. Browne also submits that it was unreasonable of the tribunal to consider and rely on hearsay evidence in the form of reports from the hospital’s records.

[38] For all of these reasons, Mr. Browne submits that the appeal should be allowed, and the appellant should be found to be capable to make decisions as contemplated under s.4(1) of the Act.

[39] Ms. Brandow, counsel for the respondent, submits that the appeal should be dismissed.

[40] Ms. Brandow submits that there was no procedural unfairness. She points out that Rule 16.1 of the Board’s Rules of Practice, made pursuant to the Statutory Powers Procedure Act, provides that the Board may, in its discretion, conduct all or part of the proceedings in person or by way of written or electronic hearing. She submits that there is no entitlement to an in-person hearing. She observes that the Board was created and designed to provide an expeditious and cost-effective resolution of disputes. Pursuant to the statute, hearings are to be conducted quickly and in many different locations throughout the province. The Board must have the flexibility to be able to use the most sensible means of conducting hearings, depending on the circumstances.

[41] The Notice of Hearing does not guarantee that a hearing will start precisely at the time suggested. Indeed, in this case, it was specified to start at 1:00 p.m. “or as soon as possible after that.” There is no rule of law that requires that a hearing start precisely at the time indicated. In this case, a delay was caused by a technical glitch. There was nothing unreasonable about starting 44 minutes after the specified time.

[42] The fact that the parties could not see the tribunal members is of no moment. The tribunal members could see the parties and their counsel. There was no unfairness in the circumstances.

[43] In the final analysis, counsel for the appellant consented to the proceedings being conducted in the manner in which they were conducted. There are simply no grounds for the court to interfere.

[44] As far as the second argument is concerned, Ms. Brandow submits that the Board accurately set out, and applied, the correct legal test for capacity as set out in s.4(1) of the Act. The Board set out the test in its decision, and referred to the Starson case. There is simply nothing in the Board’s decision to suggest that it did not understand or apply the correct legal test.

[45] Ms. Brandow submits that the decision of the Board is reasonable.

[46] Ms. Brandow notes that at the hearing, the respondent acknowledged that the appellant was able to understand the information relevant to making a decision about treatment. The only live issue was whether the appellant had the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[47] Ms. Brandow submits that the evidence before the Board justified a finding that the appellant has never accepted that he has psychosis or schizophrenia. He denies that he has a mental illness. He exhibits psychotic symptoms. He does not appreciate that he is experiencing any symptoms of psychosis, despite it being discussed with him. He does not appreciate that antipsychotic medications have ever helped him in the past. At best, he has taken medication only to be “cooperative.” In his own evidence, the appellant demonstrated the existence of symptoms of delusional beliefs and disordered thinking.

[48] Based on the evidence it heard, the Board reasonably concluded that the appellant did not believe that he suffered from any manifestations of a mental disorder. His choice or lack thereof for treatment was affected by this, and he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment. The Board carefully considered all the evidence put before it in coming to this conclusion. The Board was entitled to rely on hearsay evidence in determining whether or not the respondent’s evidence was corroborated. The Board’s ultimate conclusion was reasonably based on the evidence.

[49] For these reasons, Ms. Brandow submits that the appeal should be dismissed.

[50] Authorities relied on by the parties include Starson v. Swayze, supra; R. v. Owen (2001), 54 O.R. 3d 257 (C.A.); Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Fleming v. Reid (1991), 4 O.R. 3d 74 (C.A.); R. v. Chapple, 2005 BCSC 383; R. v. Petit, 2013 ONSC 2901; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Baker v. Canada (Ministry of Citizenship & Immigration), [1999] 2 S.C.R. 817; Anten v. Bhalerao (2013), 2013 ONCA 499, 366 D.L.R. (4th) 370 (Ont. C.A.); Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 (Div. Ct.); Corcoran v. Workers’ Compensation Appeal Tribunal, 2014 BCSC 1087; Elfarnawani v. International Olympic Committee and Ethics Commission, 2011 ONSC 6784; Gajeweski v. Wilkie (2014), 2014 ONCA 897, 123 O.R. (3d) 481 (C.A.); Giecewicz v. Hastings (2007), 2007 ONCA 890, 288 D.L.R. (4th) 587 (Ont. C.A.); T.(I.) v. L.(L.) (1999), 46 O.R. 3d 284 (C.A.); M.M. v. DeSouza, 2016 ONCA 155; Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396; R. v. Allen, 2007 ONCJ 209; HMTQ v. Gibson, 2003 BCSC 524; R. v. Gustavson, 2005 BCCA 32; R. v. LeBlanc, 2014 NSPC 116; and T.S. v. O’Dea, [2004] O.J. No. 36 (S.C.J.).

Analysis

[51] I will first discuss the relevant statutory provisions and some general principles. I will briefly discuss the standard of review. Finally, I will address the issues raised on this appeal.

[52] The relevant provisions of the Health Care Consent Act, 1996 are attached to these Reasons as an Appendix.

[53] The statutory provisions reflect a delicate balancing of interests.

[54] As a starting point, an individual has an unfettered right to consent, or not consent, to medical treatment. No matter how foolish or unwise the refusal of treatment may be, it is a fundamental principle of personal autonomy that a person have the right to make decisions about his or her health, and any treatment that may be proposed. As stated by Robins J.A. for the Court of Appeal in Fleming v. Reid, supra, at p.85:

The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person’s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment – any treatment – is to be administered.

[55] The general principle articulated by Robins J.A. is subject to one overriding exception – where the person is incapable of making decisions about medical treatment, a decision must be made by others.

[56] The provisions of the Health Care Consent Act 1996, reflect the legislative response to the issue. What is set out there is a delicately nuanced scheme under which the legislature has attempted to balance the right of the individual to make health care decisions against the need to provide treatment where a person is incapable of making those decisions.

[57] The starting point is s.4 of the Act, which sets out the principles to be applied in determining whether a person is capable with respect to treatment. A person is capable if the following two criteria are met:

a) if the person is able to understand the information that is relevant to making a decision about the treatment; and b) the person is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[58] If a health practitioner believes that the person is incapable, he or she may administer treatment if the person’s substitute decision-maker, as defined in s.20 of the Act, has given consent on the person’s behalf. However, the health practitioner may not administer treatment if an appeal to the Board is launched. Where an appeal is launched, the Board may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment. Ultimately, there can be an appeal to this Court from the decision of the Board.

[59] The foundation of this scheme is the definition of capability set out in s.4 of the Act. All decisions made by a health practitioner, the Board, and ultimately this Court, must focus on whether a person is capable within the meaning of s.4(1). It is that determination from which all other determinations flow.

[60] There are five appellate decisions in which the interpretation of s.4(1) is discussed. They are Starson v. Swayze, supra; Anten v. Bhalerao, supra; Gajeweski v. Wilkie, supra; Giecewicz v. Hastings, supra; and M.M. v. DeSouza, supra. The leading case is Starson v. Swayze.

[61] In Starson, the Supreme Court of Canada extensively considered the proper interpretation of s.4(1) of the Act. Ultimately, the court determined that the Board had erroneously interpreted the subsection, and had unreasonably found that the patient was incapable.

[62] The majority and minority primarily disagreed on whether there was evidence to support the Board’s conclusion on capacity, and whether the Board had erroneously applied a “best interests” standard in determining capacity, rather than applying the standards set out in the legislation itself.

[63] The judgment of the majority was delivered by Major J. At para. 78, he commenced his analysis of s.4(1) of the Act. He stated:

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, 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. [Emphasis added]

[64] Major J. expanded upon this analysis in paras. 79, 80 and 81. At paragraph 79, he discussed the first criterion, that is the patient’s ability to understand the information that is relevant to making a treatment decision. Since that issue is not relevant on this appeal, I will not discuss his analysis. However, what he said at paragraphs 80 and 81 regarding the second criterion is important. He stated:

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. The distinction is subtle but important: see L. H. Roth, A. Mesiel and C.W. Lidz, “Tests of Competency to Consent to Treatment” (1977), 134 Am. J. Psychiatry 279, at pp.281-282, and Weisstub Report, supra, at p.249. In practice, the determination of capacity 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 course of action available; and the expected consequences of not having the treatment. If the patient shows an appreciation of these parameters – 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: see Roth, Meisel and Lidz, supra, at p. 281.

However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences: see the Weisstrub Report, supra, at p.249. Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision.

[Emphasis added]

[65] It is important to note that, as emphasised by Major J., the second criterion involves the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences. This flows from the word “able” in s.4(1). As noted by Major J., there may be a number of reasons why a patient does not appreciate consequences of a decision or lack of decision that have nothing to do with the ability to appreciate consequences. It is only where the ability to appreciate consequences is lacking that a person may be found to be incapable.

[66] The Court went on to find that the Board had misapplied the statutory definition of capacity, and that its decision, based on the evidence before it, was unreasonable. In substance, the Court held that instead of deciding whether the respondent was able to appreciate the reasonably foreseeable consequences of a decision, the Board actually decided whether treatment was in the best interests of the respondent. Furthermore, some of the findings of the Board, particularly that the respondent had denied his condition, were not supported by the evidence. At para. 105, Major J. specifically noted that the respondent was never asked at the hearing whether he understood the possibility that his condition could worsen without treatment. He stated “The presumption, of course, is that a patient has the ability to appreciate the consequences of a treatment decision. The onus is not on professor Starson to prove this ability.” Major J. noted that this respondent was alert to the presence of a mental condition and the need to be in hospital to treat that condition. Thus, it was unreasonable for the Board to conclude, without further inquiry, that the respondent failed to appreciate the possibility that his condition could worsen.

[67] The analysis of the Supreme Court of Canada was applied by the Court of Appeal in the other four cases to which I referred.

[68] In Anten, the Court of Appeal overturned a finding of incapacity that had been made by the Board. In substance, the Court concluded that there was insufficient evidence to establish that the patient was unable to appreciate the foreseeable consequences of a lack of treatment.

[69] The Court noted, as was also noted in other cases, that s.14(1) of the Evidence Act requires the health practitioner’s evidence to be corroborated.

[70] In Gajeweski, a decision of the Board that a patient lacked capacity was upheld. At para.49, Epstein J.A. for the Court concluded that it was open to the Board to conclude that the appellant did not truly believe that he suffered from delusions. As a result, “the appellant was not able to apply the relevant information to his circumstances and thus was not able to appreciate the reasonably foreseeable consequences of taking or not taking the proposed medication.”

[71] In Giecewicz, the Court of Appeal also upheld a finding of incapacity. Doherty J.A. for the Court noted that it had been found by Dr. Hastings that the appellant did not believe she was ill or delusional, and did not believe that medications could be a benefit to her. She did not recognize the significant consequences that would come to pass should she not be treated. He held that the appellant was unable to apply the relevant information given to her to her own circumstances and was unable to appreciate the consequence of her decisions.

[72] Finally, in M.M., the Court of Appeal also upheld a finding of incapacity that had been made by the Board. At para. 22, Huscroft J.A. for the Court noted that the Board had found that the appellant lacked insight into her condition as a result of her disorder and was unable to weigh the benefits against the risks of antipsychotic medication because she did not recognize the past benefits or the anticipated benefits of the treatment. At para. 23, he concluded “In short, the Board’s conclusion that the appellant is not able to appreciate the consequences of her decision to accept or reject treatment is supported by the record and is reasonable.”

[73] At para. 20, Huscroft J.A. noted that Dr. DeSouza’s evidence was corroborated by the appellant’s own evidence in addition to consultation reports. He stated “Although the authors of these reports did not testify, the Board is permitted to rely on hearsay evidence in determining whether or not Dr. DeSouza’s evidence was corroborated.”

[74] A brief word about the standard of review is appropriate.

[75] In Starson, the Supreme Court of Canada held that on issues of law, including the proper interpretation of s.4(1) of the Health Care Consent Act 1996, the standard of review is correctness. On other issues, the standard is reasonableness.

[76] It is conceivable that as a result of decisions of the Supreme Court of Canada since Starson, the correctness standard on issues involving the interpretation of the Act, being the Board’s home statute, ought to be reconsidered: see Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, and cases cited therein. The Court of Appeal in M.M. was invited to consider the issue but declined: see M.M., at para. 13.

[77] It is unnecessary for me to consider this issue. Both parties on this appeal agree that the appropriate standard of review is that discussed by the Supreme Court of Canada in Starson. I will proceed on that basis.

[78] I will now turn to the issues raised for my consideration.

a) Was there any procedural unfairness?

[79] I am not persuaded that there was any procedural unfairness that would vitiate the proceedings.

[80] The failure of the Board to commence its hearing precisely at 1:00 p.m. is of no moment. There is no rule of law that requires a tribunal to commence its proceedings precisely on time. In any event, the Notice of Hearing stated that the hearing could commence sometime after 1:00 p.m.

[81] I am not persuaded that the Board erred by holding an electronic hearing. The Statutory Powers Procedure Act expressly authorizes the holding of such hearings. In oral argument, counsel for the appellant acknowledged that his submission really amounted to an argument that the Board should never hold an electronic hearing. A similar argument respecting the Human Rights Tribunal was specifically rejected by the Divisional Court in Davis v. Windsor (City), 2017 ONSC 176. At para. 5, Nordheimer J. stated:

The applicant submits that the Tribunal should never hear a matter by teleconference. I do not accept that submission. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 expressly authorizes Tribunals to conduct hearings electronically, as do the rules of this Tribunal. It can be a useful tool for Tribunals to have to hold hearings fairly and expeditiously, especially given the size of this Province. There is no reason, or jurisdiction in this court, to remove such a tool that the Legislature has expressly authorized.

[82] In any event, counsel for the appellant in that case ultimately agreed to the Board proceeding by way of an electronic hearing. As stated by Nordheimer J., at para. 4, “The applicant does not get to resile from that agreement just because he is now unhappy with the result.” The appellant in this case also agreed to proceed electronically notwithstanding the glitch that resulted in the parties and their counsel being unable to see the Board members. There was no unfairness.

[83] While it was perhaps unwise of the Board to rule that co-counsel for the appellant could play no role in the hearing, I am not persuaded that there was any unfairness in the result. Co-counsel had to leave partway through the hearing. Mr. Browne cross-examined the respondent, examined the appellant as a witness and made submissions. There was no unfairness.

[84] For these reasons, this ground of appeal is rejected.

b) Did the Board misconstrue the statutory test?

[85] I am not persuaded that the Board misunderstood or misconstrued the relevant provisions of s.4(1) of the Act.

[86] There was no dispute as to the first criterion, that is that the appellant was able to understand the information that was relevant to making a decision about treatment. The only live issue was whether the second criterion was met.

[87] It is clear from the Board’s reasons that it well understood what had to be considered under the second criterion. The Board specifically referred to Starson, and it is clear from its analysis of the evidence that the Board knew it had to be satisfied that the appellant lacked the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment. Unlike Starson, the Board did not apply a best interests test. Rather, it applied the test specifically set out in s.4(1). The Board did not misunderstand or misconstrue the statutory test.

[88] For these reasons, this ground of appeal is rejected.

c) Was the Board’s decision unreasonable?

[89] I am not persuaded that the Board’s decision was unreasonable.

[90] The Board carefully analysed the evidence of Dr. Hastings and the evidence of the appellant, together with the written reports it had. In the final analysis, the Board concluded that the appellant had the belief that he did not have a mental illness and thus did not require antipsychotic medication as a form of treatment for his illness. When he had taken medication in the past, it was simply to be cooperative rather than because he knew it should be taken because of his illness. In the result, he was simply unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment.

[91] The result in this case is similar to that reached in Gajeweski and M.M., supra and for reasons similar to those articulated by the Court of Appeal in both cases. Because the appellant is unable to accept that he has a mental illness, he is unable to appreciate the anticipated benefits of antipsychotic medication.

[92] In my view, the Board’s decision is reasonable and is amply supported by the evidence.

[93] It is also apparent that Dr. Hastings’ evidence was corroborated, to a large extent, by the evidence of the appellant himself, and by the records that were in evidence.

[94] For these reasons, this ground of appeal is rejected.

Disposition

[95] For the foregoing reasons, this appeal is dismissed.

[96] Neither party requests costs. None are awarded.

Gray J.

Released: January 16, 2017

APPENDIX

Excerpts from the Health Care Consent Act, 1996

Purposes

1. 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;

Interpretation

2. (1) In this Act,

“capable” means mentally capable, and “capacity” has a corresponding meaning; (“capable”, “capacité”)

“incapable” means mentally incapable, and “incapacity” has a corresponding meaning; (“incapable”, “incapacité”)

“treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include,

(a) the assessment for the purpose of this Act of a person’s capacity with respect to a treatment, admission to a care facility or a personal assistance service, the assessment for the purpose of the Substitute Decisions Act, 1992 of a person’s capacity to manage property or a person’s capacity for personal care, or the assessment of a person’s capacity for any other purpose, (b) the assessment or examination of a person to determine the general nature of the person’s condition, (c) the taking of a person’s health history, (d) the communication of an assessment or diagnosis, (e) the admission of a person to a hospital or other facility, (f) a personal assistance service, (g) a treatment that in the circumstances poses little or no risk of harm to the person, (h) anything prescribed by the regulations as not constituting treatment. (“traitement”)

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.

Personal Capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Wishes

5. (1) A person may, while capable, express wishes with respect to treatment, admission to a care facility or a personal assistance service.

No treatment without consent

10. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).

Opinion of Board or court governs

(2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent.

Capacity depends on treatment

15. (1) A person may be incapable with respect to some treatments and capable with respect to others.

18. (1) This section applies if,

(a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that the person intends to apply, or has applied, to the Board for a review of the finding; and (c) the application to the Board is not prohibited by subsection 32 (2).

Same

(2) This section also applies if,

(a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that, (i) the incapable person intends to apply, or has applied, to the Board for appointment of a representative to give or refuse consent to the treatment on his or her behalf, or (ii) another person intends to apply, or has applied, to the Board to be appointed as the representative of the incapable person to give or refuse consent to the treatment on his or her behalf; and (c) the application to the Board is not prohibited by subsection 33 (3).

Same

(3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun,

(a) until 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made; (b) until the application to the Board has been withdrawn; (c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision; or (d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision, (i) until the period for commencing the appeal has elapsed without an appeal being commenced, or (ii) until the appeal of the Board’s decision has been finally disposed of.

Consent

List of persons who may give or refuse consent

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

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

Principles for giving or refusing consent

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

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

Application for review of finding of incapacity

32. (1) A person who is the subject of a treatment may apply to the Board for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.

Parties

(3) The parties to the application are:

1. The person applying for the review.
2. The health practitioner.
3. Any other person whom the Board specifies.

Powers of Board

(4) 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.

Application to determine compliance with s. 21

37. (1) If consent to a treatment is given or refused on an incapable person’s behalf by his or her substitute decision-maker, and if the health practitioner who proposed the treatment is of the opinion that the substitute decision-maker did not comply with section 21, the health practitioner may apply to the Board for a determination as to whether the substitute decision-maker complied with section 21.

Consent and Capacity Board

70. (1) The board known as the Consent and Capacity Review Board in English and as Commission de révision du consentement et de la capacité in French is continued under the name Consent and Capacity Board in English and Commission du consentement et de la capacité in French.

Application hearings

Board to fix time and place of hearing

75. (1) When the Board receives an application, it shall promptly fix a time and place for a hearing.

Hearing to begin within seven days

(2) The hearing shall begin within seven days after the day the Board receives the application, unless the parties agree to a postponement.

Decision

(3) The Board shall render its decision and provide a copy of the decision to each party or the person who represented the party within one day after the day the hearing ends.

Examination of documents

76. (1) Before the hearing, the parties shall be given an opportunity to examine and copy any documentary evidence that will be produced and any report whose contents will be given in evidence.

Appeal

80. (1) A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

Powers of court on appeal

(10) On the appeal, the court may,

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