Court File and Parties
Court File No.: CV-20-00637176 Date: 2020-04-09 Superior Court of Justice - Ontario
Re: Stanley Almeida, Appellant/Responding Party And: Dr. Andrew Morgan, Respondent/Moving Party
Before: Davies J.
Counsel: Jessica Szabo, for the Moving Party Stanley Almeida, in person Russell Browne, amicus curiae
Heard: April 6, 2020
Endorsement
1Mr. Almeida is currently a patient on a secure forensic unit at Ontario Shores Centre for Mental Health Sciences. On November 12, 2019, Dr. Morgan, a psychiatrist at Ontario Shores, found Mr. Almeida to be incapable of consenting to or refusing treatment. At that time, Dr. Morgan recommended antipsychotic medication to treat Mr. Almeida’s delusional disorder.
2Mr. Almeida applied to the Consent and Capacity Board (“CCB”) for a review of Dr. Morgan’s finding. He does not think he has a mental disorder and does not want to take antipsychotic medication.
3On February 25, 2020, the CCB confirmed Dr. Morgan’s finding and Mr. Almeida has appealed that decision to this Court.
4Dr. Morgan now brings a motion under s. 19(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, for an Order authorizing him to give Mr. Almeida intravenous antipsychotic medication pending the final resolution of his appeal.
5On March 25, 2020, Justice Myers ordered that this motion should proceed despite the suspension of regular operations of the Superior Court of Justice because of the COVID-19 public health emergency. He found that this motion is urgent as defined in the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, issued by Chief Justice Morawetz on March 15, 2020.
6At the commencement of the hearing of the motion, Mr. Almeida sought an adjournment. I denied Mr. Almeida’s request and will provide reasons for that decision here.
7The motion proceeded and Mr. Almeida strongly opposed Dr. Morgan’s motion. He argued that his appeal has significant merit and a treatment order would effectively render his appeal moot. He also argued that he does not need treatment because he is not mentally ill. For the reasons that follow, I find that the criteria for making an interim treatment order have been met and Dr. Morgan’s request for authority to treat Mr. Almeida is granted on the conditions set out in paragraph 73 below.
A. Adjournment Request
8To understand my decision to deny Mr. Almeida’s adjournment request, it is necessary to set out the chronology of events in some detail.
9Mr. Almeida filed his Notice of Appeal in relation to the CCB’s decision on March 3, 2020. He appeared before Justice Archibald in Civil Practice Court with counsel for Dr. Morgan on March 9, 2020. The appeal was scheduled for May 14, 2020 and a timetable for the filing of materials was set.
10During the appearance on March 9, 2020, counsel for Dr. Morgan advised the Court that they were going to bring this motion. Justice Archibald scheduled the motion to be heard on March 26, 2020. At that time, Mr. Almeida said he did not want counsel for the motion or the appeal. Mr. Almeida was given until March 20, 2020 to file any materials he wanted the Court to consider on the motion.
11Justice Archibald recommended that amicus curiae be appointed. A copy of Mr. Almeida’s Notice of Appeal and Justice Archibald’s endorsement were sent to Legal Aid Ontario.
12The Superior Court suspended operations for all but urgent matters on March 17, 2020, which created obvious complications in this case. It made it difficult for Mr. Almeida to file materials by March 20, 2020 as directed by Justice Archibald.
13At some point after the Practice Court appearance, Mr. Almeida decided he did want counsel for his appeal. He retained a lawyer to prepare an opinion on the merit of an appeal for Legal Aid Ontario.
14A case management hearing was held by telephone on March 26, 2020, following Justice Myers’s decision that this motion would proceed on an urgent basis. Only scheduling matters were discussed that day. The motion was adjourned to March 30, 2020 so that Mr. Almeida could file materials and continue in his efforts to retain counsel.
15A second case management call was held on March 30, 2020. Mr. Almeida asked that the motion be adjourned indefinitely or for at least a month. I denied that request and ordered that the hearing would proceed on April 6, 2020.
16Counsel who prepared the opinion letter for Legal Aid Ontario participated in the March 30, 2020 call. He told the Court and Mr. Almeida that he likely would not be willing to act for Mr. Almeida even if a certificate was issued. I, therefore, asked amicus to give Mr. Almeida the names of lawyers with expertise in this area and help him contact those lawyers.
17A legal aid certificate was issued for Mr. Almeida to retain counsel for the appeal and for this motion on or shortly after March 30, 2020.
18A third case management call was held on April 2, 2020. During that call, I was told that the lawyer who wrote the opinion letter to Legal Aid Ontario on Mr. Almeida’s behalf was not willing to act for him on the appeal or the motion. Mr. Almeida said he was prepared to represent himself on this motion if he was not able to find a lawyer.
19At the start of the motion on April 6, 2020, Mr. Nima Hojjati appeared and made submissions as potential counsel for Mr. Almeida. While his firm was theoretically prepared to act for Mr. Almeida on the motion and the appeal, they were not prepared to go on the record because, in their view, the funding authorized by Legal Aid Ontario was insufficient. Legal Aid Ontario authorized only 25 hours for both the motion and the appeal. Mr. Hojjati said that his firm is prepared to bring a motion to challenge the funding authorized or request additional funding from the Court, but they would require time to do so. He said his firm needed two weeks to prepare the funding application.
20Counsel for Dr. Morgan opposed the adjournment. Counsel noted that the motion had been scheduled since March 9, 2020. Counsel argued that Mr. Almeida has a pattern of seeking to delay proceedings. He also has a pattern of retaining and discharging counsel, which is why amicus was appointed. Counsel noted that Mr. Almeida’s CCB hearing was adjourned twice. Mr. Almeida fired his lawyer during his CCB hearing and proceeded to represent himself.
21I denied Mr. Almeida’s adjournment request for three reasons.
22First, Mr. Almeida has known about this motion since March 9, 2020. He has had time to put materials before the Court and arrange for counsel. He was given additional time when the normal court operations were disrupted. With the assistance of amicus, Mr. Almeida was able to file materials on this motion.
23Second, the motion raises serious issues about Mr. Almeida’s health. Mr. Almeida stopped eating on March 24, 2020, 17 days ago now and 14 days before the hearing. Dr. Morgan is of the opinion that Mr. Almeida’s untreated mental illness is at least part of the reason why he is refusing to eat. Mr. Almeida refused to eat for an extended period of time in October and November 2019 and required emergency medical treatment on four occasions. Mr. Almeida also required emergency medical treatment more recently on March 23, 2020. Dr. Morgan is of the opinion that Mr. Almeida’s physical and mental health will deteriorate significantly if he remains untreated. If I accept Dr. Morgan’s evidence, delaying this motion would create significant risks to Mr. Almeida’s mental and physical health. In light of those risks and Justice Myers’s finding that this matter was to be heard on an urgent basis, it is not in the interests of justice to adjourn the motion.
24Finally, there is no prospect that counsel would be available quickly to assist Mr. Almeida. It would, of course, have been preferable for Mr. Almeida to have counsel. This motion engages very serious issues in relation to Mr. Almeida’s right to liberty and security of the person. If Mr. Almeida had counsel who was prepared to assist on short notice, my decision on the adjournment may well have been different. However, counsel who appeared took the position that the funding authorized by Legal Aid Ontario was inadequate and was seeking a lengthy adjournment to address the funding issue only. I am deeply concerned about the adequacy of the current Legal Aid Ontario funding for CCB appeals. I understand and accept Mr. Hojjati’s position that it will take much more than the 25 hours authorized to effectively represent Mr. Almeida. However, because the funding issues will take a significant amount of time to address, I was not prepared to grant an adjournment on this basis, particularly in light of the severity of the health risks identified by Dr. Morgan.
25To the extent that Mr. Hojjati or his firm wants to pursue a motion to address the inadequacy of the funding authorized by Legal Aid Ontario in this matter for the purpose of representing Mr. Almeida on the appeal, that motion can be brought back before me or through the ordinary process.
B. Treatment Order
26Mr. Almeida was found not criminally responsible as a result of a mental disorder in 1998 and has remained under the jurisdiction of the Ontario Review Board since that time. He was a forensic inpatient at Ontario Shores until 2006, when he was discharged to live in the community.
27Mr. Almeida has been diagnosed with a delusional disorder (grandiose type) and a narcissistic personality disorder. For many years, Mr. Almeida has believed that he is the true King of Canada. He also believes that he is a merman who can survive on salt water alone.
28According to Dr. Morgan’s affidavit, Mr. Almeida stopped taking antipsychotic medication in 2010. [1] Mr. Almeida’s condition gradually deteriorated over time but became acute in 2019 after his long-time psychiatrist retired and his care was transferred. Mr. Almeida became increasingly convinced that his new psychiatrist was surreptitiously administering poisonous antipsychotic medication in gaseous form to him in his condominium. He believes that his psychiatrist was trying to kill him. He also believes that his father, who died in October 2018, was killed by poison gas that was administered by Ontario Shores. Mr. Almeida also believes that his food was being poisoned.
29In September 2019, Mr. Almeida threatened to kill his psychiatrist, his outpatient caseworker and hospital staff. His delusions and threats became more intense in October and early November 2019. At that time, Mr. Almeida was brought back into hospital and Dr. Morgan found him to be incapable of consenting to or refusing to consent to the proposed treatment of antipsychotic medication.
30Mr. Almeida sought a review of that decision by the Consent and Capacity Board. The CCB upheld Dr. Morgan’s decision on February 25, 2020 and Mr. Almeida filed a Notice of Appeal in respect of that decision on March 3, 2020.
31As soon as Mr. Almeida told Dr. Morgan that he intended to appeal the decision of the CCB, the Health Care Consent Act prohibited Dr. Morgan from starting the proposed treatment until Mr. Almeida’s appeal is finally resolved. [2]
32The Health Care Consent Act does, however, permit a physician to seek an order from the Court to administer the proposed treatment before the final disposition of the appeal. [3] The Court has the discretion to grant such an order if all the following criteria are met:
(i) the treatment is likely to substantially improve the person’s condition and the condition is not likely to improve without the treatment, or the person’s condition will deteriorate without the treatment and the treatment will likely prevent the deterioration; (ii) the benefit of the treatment outweighs the risk of harm to the patient; (iii) the proposed treatment is the least restrictive and least intrusive treatment possible that will substantially improve the patient’s condition such that the benefit outweighs the risk; and (iv) the person’s condition makes it necessary to administer the treatment before the resolution of the appeal. [4]
33Any order that allows a physician to forcibly treat a patient is a profound infringement of the patient’s right to liberty, self-determination, security of the person and physical integrity. [5] It is a particularly serious matter to grant an order permitting forced treatment while the patient is challenging a finding that he is incapable of consenting to or refusing treatment. If Mr. Almeida wins his appeal and is found to be capable, he will have every right to refuse the treatment that is being proposed now, notwithstanding the potentially serious consequences of that decision. Given that a treatment order will have a very significant impact on Mr. Almeida’s rights, this Court should only exercise its discretion to make such an order if it is truly necessary. [6]
34The burden is on Dr. Morgan to establish, on a balance of probabilities, that the statutory test in s. 19 of the Health Care Consent Act has been met. Dr. Morgan must show the treatment is necessary but does not have to establish that Mr. Almeida’s current condition constitutes a medical emergency. The Health Care Consent Act contains a separate provision that allows a physician to treat a patient without their consent in an emergency. The issue on this motion, therefore, is not whether Mr. Almeida’s current condition amounts to an emergency. The issues are whether Mr. Almeida’s condition is likely to improve substantially with the proposed treatment, whether the benefits of the proposed treatment outweigh the risks, whether the treatment is the least restrictive and least intrusive, and whether it is necessary to treat Mr. Almeida before his appeal is finally resolved.
(a) Will the treatment substantially improve Mr. Almeida’s condition or prevent a deterioration of his condition?
35Mr. Almeida’s beliefs that he is being poisoned by gaseous antipsychotic medication and that his food is being poisoned have persisted since his re-admission to the hospital in November 2019. He also continues to believe he is the King of Canada and a merman. Dr. Morgan is of the opinion that these beliefs are delusions.
36According to Dr. Morgan, Mr. Almeida’s mental status has deteriorated to the point that he is at risk of serious physical impairment.
37In November 2019, Mr. Almeida stopped eating solid food. Mr. Almeida gave a number of reasons for not eating. In part, his fast was a protest against the attempts by his psychiatrist to poison him with antipsychotic gas. His fast was also motivated, in part, by the belief that his physicians were poisoning his food. It was also motivated, in part, by his belief that he is a merman and can subsist on salt and water alone. Finally, it appears to have been an attempt to break the world record for the longest fast.
38Mr. Almeida developed serious medical problems and was taken to Lakeridge Hospital for emergency medical treatment on November 21, 2019. At first, Mr. Almeida agreed to drink fluids but he refused again a few days later, believing that the Gatorade he had been drinking was poisoned with an antipsychotic medication. He again expressed the belief that a hunger strike was necessary to prevent the hospital from further poisoning him.
39In late November and early December 2019, Mr. Almeida required further emergency medical treatment on three separate occasions. He lost consciousness and fell several times, twice hitting his head. Each time he lost consciousness, he required re-hydration. Sometimes he voluntarily consumed fluids. Other times, he was rehydrated intravenously. In early December, Mr. Almeida developed an infection, which required intravenous antibiotics.
40Mr. Almeida has fasted in the past without any apparent adverse consequences. Nonetheless, Dr. Morgan is of the opinion that the physical symptoms Mr. Almeida experienced in November and December 2019 that required emergency care were caused by his refusal to eat.
41Mr. Almeida broke his fast on December 9, 2019 after not consuming solid food for 30 days. Mr. Almeida was discharged back into the community on December 17, 2020. On January 21, 2020, the Ontario Review Board convened an early hearing to decide whether Mr. Almeida’s threat to the public could continue to be managed while he is living in the community. The ORB found that a conditional discharge was no longer adequate and issued a Detention Order. Mr. Almeida was re-admitted to the hospital on January 30, 2020 and has been detained at Ontario Shores since then.
42Since the end of January, Mr. Almeida has again refused to eat for periods of time, but he continues to consume fluids. Again, his reasons for fasting have varied; in part, he is protesting the threat that he will be treated against his will. In part, he thinks he and his food are being poisoned. In part, he is trying to beat the world record. And in part, he believes he is immortal and will not die from a lack of food so long as he consumes salt. During his period of fasting, Mr. Almeida’s vital signs were not within normal ranges and he developed high blood pressure.
43Mr. Almeida was found unresponsive in his washroom at Ontario Shores on March 23, 2020 and he was transferred to Lakeridge Health Centre's emergency room. Mr. Almeida had a fever and was lethargic. He refused to eat in the emergency department, believing the food was poisoned. Mr. Almeida tested negative for COVID-19 and was diagnosed with the flu. Nonetheless, blood tests done in the emergency room show that there has been a deterioration in Mr. Almeida’s kidney functioning.
44Since his return to Ontario Shores on March 24, 2020, Mr. Almeida has again refused to eat, but has consumed some liquids. Mr. Almeida continues to be preoccupied with the belief that his food and his room are being poisoned with antipsychotic medication. He reiterated that position during his submissions on the motion. Mr. Almeida believes that it is the poison gas that is causing him to faint, not his fasting. Mr. Almeida is also of the view that the hospital is suppressing medical results that could corroborate his belief that he is being poisoned with antipsychotic medication.
45According to the hospital records, Mr. Almeida continues to be aggressive and agitated, yelling and swearing at the nursing staff. On one occasion, Mr. Almeida was so upset that he punched the window of the nursing station. He has repeatedly threatened to kill anyone who tried to treat him or feed him.
46I accept Dr. Morgan’s evidence that Mr. Almeida has a delusional disorder. I also accept that Mr. Almeida’s food and room are not being poisoned with antipsychotic medication. I accept that Mr. Almeida’s delusions have intensified since August 2019, including an increase in intensity over the last four weeks. Finally, I accept Dr. Morgan’s evidence that Mr. Almeida’s aggression and agitation is a manifestation of distress related to these delusions. Dr. Morgan is of the opinion that Mr. Almeida’s mental health status will not improve without antipsychotic medication. I accept his evidence on this point.
47I also accept that Mr. Almeida’s physical health has deteriorated over the last several months. Mr. Almeida’s delusional beliefs about being poisoned puts him at risk of further serious physical health complications. It is Dr. Morgan’s opinion, which I accept, that there is a real risk of serious complications, such as kidney or organ failure or even death, if Mr. Almeida’s delusions continue to cause him to refuse to eat.
48Finally, Dr. Morgan is of the opinion that treating Mr. Almeida with antipsychotic medication will likely improve his condition. Dr. Morgan expects that Mr. Almeida’s symptoms will start to improve within a few weeks. Dr. Morgan expects that Mr. Almeida will become less preoccupied with his delusion that his food and room are being poisoned. He will also become less agitated, threatening and aggressive with staff. Ultimately, Dr. Morgan is of the view that if Mr. Almeida is treated with antipsychotic medication, he will be able to move to a less secure unit in the hospital within a few months and will be ultimately discharged to live in the community again. I accept Dr. Morgan’s evidence about the likely effects of antipsychotic medication on Mr. Almeida.
49Dr. Morgan is proposing to treat Mr. Almeida with Invega Sustenna, a long-acting injectable antipsychotic medication. Mr. Almeida’s first injection would be followed by a second injection seven days later. After the first two doses, Mr. Almeida will receive follow-up injections every 28 days until he is stable, at which point the frequency could be reduced to once every three months.
50Evidence that the patient has responded positively to the proposed treatment in the past is an important factor when deciding if the patient will benefit substantially from proposed treatment. Mr. Almeida has been treated in the past with Risperidone, which is a variant of Invega Sustenna. When Risperidone is broken down in the liver, Invega molecules are released so Mr. Almeida has had the proposed medication in his system before. Mr. Almeida experienced no major side effects and responded positively to Risperidone. While his delusion that he is the King of Canada never fully resolved, he was more closely connected to reality, more pleasant to deal with, less agitated, more agreeable and more willing to work with his treatment team when he was taking Risperidone.
51I am satisfied that the proposed treatment with Invega Sustenna will substantially improve Mr. Almeida’s condition. I am also satisfied that Mr. Almeida’s condition is not likely to improve without the treatment. In fact, I accept Dr. Morgan’s evidence that Mr. Almeida’s physical and mental health are likely to deteriorate without treatment.
(b) Will the benefits of the treatment outweigh the risk of harm to Mr. Almeida?
52Treatment with any antipsychotic medication poses a risk of side effects. The common side effects of Invega Sustenna include fatigue, muscle stiffness, weight gain and other metabolic side effects. There is also a small risk of serious side effects from the proposed medication, including seizures, cardiac dysrhythmias and neuroleptic malignant syndrome.
53Mr. Almeida is currently detained in hospital under the ORB’s most recent disposition. He would, therefore, be under medical supervision when the proposed medication is administered. Any side effects can be monitored. The dose can be altered or the medication discontinued if serious side effects materialize.
54As I set out above, I am satisfied that antipsychotic medication is likely to reduce the intensity of Mr. Almeida’s delusions and paranoia about being poisoned. This will likely reduce Mr. Almeida’s agitation and distress, which will likely make him less threatening towards the staff. Given that any side effects can be closely monitored, I am satisfied that the benefits of the proposed treatment to Mr. Almeida’s health significantly outweigh the risk of harm to him.
(c) Is the proposed treatment the least restrictive and least intrusive treatment that will substantially improve Mr. Almeida’s condition?
55Dr. Morgan is proposing Invega Sustenna because it is a long-acting antipsychotic medication and will, therefore, require administration relatively infrequently. [7] Using an injectable medication will also allow the hospital to ensure Mr. Almeida’s compliance.
56The frequency of the injections is a factor in deciding whether the treatment is the least restrictive and the least intrusive. It is not, however, the only factor. I also have to consider how the injection will likely be administered. Mr. Almeida has made it clear that he does not want to take medication. He has threatened to kill anyone who tries to medicate him without his consent. In the circumstances, it is unlikely that Mr. Almeida will cooperate with the medical staff administering the injections. In those circumstances, force will have to be used to administer the medication.
57In other words, if I grant Dr. Morgan’s motion, I am implicitly authorizing the medical staff at the hospital to physically restrain Mr. Almeida in order to administer the injections. I accept that the hospital will use the least physical force necessary to restrain Mr. Almeida. That does not, however, take away from the reality that being physically restrained in any way is an enormous violation of Mr. Almeida’s physical and psychological integrity and will likely be a traumatic experience for him. The prospect of Mr. Almeida being physically restrained to carry out an Order of this Court is troubling and should factor significantly into any exercise of discretion under s. 19 of the Health Care Consent Act.
58Notwithstanding the highly intrusive and violent manner in which the antipsychotic medication will likely be administered to Mr. Almeida, I am satisfied that long-acting injectable antipsychotic medication is the least restrictive and least intrusive way to substantially improve Mr. Almeida’s condition. I accept that antipsychotic medication is the recommended treatment for a delusional disorder and that other less invasive treatments, likely psychotherapy, will not be effective given how entrenched and persistent Mr. Almeida’s delusions are.
(d) Is it necessary to treat Mr. Almeida before his appeal is finally resolved?
59The focus of this part of the test under s. 19 of the Health Care Consent Act is not whether treatment will be in Mr. Almeida’s long-term interest. The issue is whether treatment is likely to substantially improve Mr. Almeida’s condition in the short-term and is necessary before the appeal is resolved. [8]
60The first issue to consider is when Mr. Almeida’s appeal will be heard. Before the Court suspended normal operations as a result of the COVID-19 pandemic, Mr. Almeida’s appeal was scheduled for May 14, 2020. Counsel for Dr. Morgan argued that the appeal is likely to be delayed beyond May 14, 2020, which makes an interim treatment order even more necessary.
61In my view, the potential delay in Mr. Almeida’s appeal cuts both ways. On the one hand, if his appeal is not heard until after normal court operations resume, he will remain untreated for a long time if I do not make a treatment order. That creates a risk that his physical and mental health will deteriorate significantly.
62On the other hand, if his appeal is not heard and the motion is granted, his rights will be infringed by the forced medication for an extended period of time. This is a very significant concern for me. If an interim treatment order is made, it should remain in effect for the shortest time possible and priority must be given to Mr. Almeida’s appeal so his rights are infringed as little as possible.
63To that end, I am of the view that Mr. Almeida’s appeal is also an urgent civil matter as defined in the Notice to the Profession dated March 15, 2020. There will be major repercussions for Mr. Almeida if his appeal does not proceed as scheduled, particularly if a treatment order is in place. I am, therefore, directing that Mr. Almeida’s appeal proceed by videoconference on May 14, 2020 or as soon as possible thereafter.
64This motion was heard by videoconference. Mr. Almeida was able to participate by video from Ontario Shores. He cross-examined Dr. Morgan, who also appeared by video, on his affidavits and made extensive submissions. Counsel for Dr. Morgan also participated by video. Only amicus participated by phone because of technical limitations with his home office. This process was very effective and should be replicated for Mr. Almeida’s appeal.
65The question then becomes whether Mr. Almeida’s conditions makes it necessary for him to be forcibly treated between now and May 14, 2020.
66I accept Dr. Morgan’s evidence that Mr. Almeida’s symptoms are likely to improve within a few weeks of the initial treatment. I am, therefore, satisfied that the benefits of a treatment order will be tangible before the appeal is heard. This fact distinguishes Mr. Almeida’s situation from Gunn, where the appeal was three weeks away and the treatment would have taken four to eight weeks to result in any substantial improvement to Mr. Gunn’s condition. [9]
67Amicus raised a concern that this case is really about Mr. Almeida’s refusal to eat, not his delusional disorder. Amicus argued that the real risks arise from the consequences of Mr. Almeida’s fast. The CCB order, which is under appeal, relates only to Mr. Almeida’s capacity to consent to or refuse antipsychotic medication, not his capacity in relation to feeding. Amicus argued that if the real concern is the risks arising from Mr. Almeida’s fasting, the Court has no jurisdiction to make the treatment order requested.
68Amicus is right that I only have jurisdiction to make an order that relates to the treatment proposed by Dr. Morgan in November 2019, which was the subject matter of the CCB hearing, namely antipsychotic medication. If the only concerns were related to Mr. Almeida’s physical condition as a result of his lack of food, I would tend to agree with amicus. However, counsel for Dr. Morgan pointed to concerns beyond the physical consequences of fasting that will likely be substantially addressed by antipsychotic medication.
69Mr. Almeida’s delusions are a significant contributing factor to his refusal to eat, which is having a profound negative affect on his physical health. Mr. Almeida has already been hospitalized several times because of the adverse physical consequences of not eating. I accept that Mr. Almeida is at risk of serious medical complications, including kidney or other organ failure, if his fast persists. I accept Dr. Morgan’s evidence that if Mr. Almeida is treated, his delusions about being poisoned will likely subside and he will likely be more willing to eat and to work with his treatment team.
70Mr. Almeida’s intense delusions and paranoia about his food and his room being poisoned are also making him increasingly irritable, aggressive and threatening. His aggressive and threatening behavior puts the medical staff at risk. It also puts him at risk of further involvement in the criminal justice system if he continues to act out violently. Thankfully, nobody has been injured by Mr. Almeida’s aggressive behavior yet. However, if his agitation and aggression worsens as Dr. Morgan predicts, he will pose a significant risk of harm to himself and others.
71Mr. Almeida is currently on a secure unit at Ontario Shores and will stay there until his risk can be managed at a less restrictive unit. Counsel for Dr. Morgan also argued that treatment is necessary now because Mr. Almeida is unlikely to be moved to a less secure unit or discharged into the community unless he is treated. Dr. Morgan said that if Mr. Almeida is treated, he will likely be able to move to a less secure unit in the hospital within a few months. Based on this evidence, Mr. Almeida is not likely to be moved before his appeal even if he is treated. This argument, therefore, focuses on Mr. Almeida’s long-term interests and is not persuasive on this motion.
72Amicus raised the issue of whether the authority given to Dr. Morgan under s. 18 of the Health Care Consent Act to treat Mr. Almeida without his consent in an emergency is sufficient to address the risks that have been identified. This was a factor the Court considered in refusing to make an interim treatment order in Gunn. [10] The emergency treatment power is much more limited than an interim treatment order. It only allows a physician to treat a patient until the emergency is resolved. It does not permit treatment to address the underlying causes of or to prevent a recurrence of an emergency medical issue. In this case, the emergency powers could be used, as they have been in the past, if Mr. Almeida has some acute medical emergency caused by his refusal to eat. It would not, however, allow Dr. Morgan to treat him with long-lasting antipsychotic medication to address the underlying delusions and improve his current mental and physical health.
73On balance, I am satisfied that Mr. Almeida’s current condition and the risk that he will continue to deteriorate if untreated make it necessary to permit Dr. Morgan to administer Invega Sustenna from between now and his appeal, which is to proceed on May 14, 2020. The motion is, therefore, granted and Dr. Morgan can administer Invega Sustenna by injection to Mr. Almeida until such time as his appeal is resolved. If Dr. Morgan wants to change the treatment regime for Mr. Almeida pending his appeal, he is required to bring a motion to amend this Order.
74Pursuant to r. 3.02, the timetable established by Justice Archibald on March 9, 2020 will be amended and the time for filing material for the appeal will be abridged. Mr. Almeida’s materials on the appeal are now due on April 24, 2020. Dr. Morgan’s responding materials will be due on May 8, 2020.
75I appreciate that there may be some difficulties preparing and filing the record for the appeal in the current circumstances. I encourage counsel for Dr. Morgan and amicus to work together on this. If they run into any difficulty, they can bring the matter back before me for further direction.
76Notwithstanding r. 59.05, in the extraordinary circumstances of the COVID-19 public health emergency and the related restrictions on Court operations, this endorsement is effective from the date signed and is enforceable without any need for a formal signed or entered order. In accordance with rr. 77.07(6) and 1.04, a formal order does not need to be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this order can submit a formal order to be signed, entered and filed when the Court returns to regular operations.
Davies J. Date: April 9, 2020
[1] Mr. Almeida insists that he only took antipsychotic medication for a very short time in 2005. For the purpose of this motion, I do not need to resolve that factual dispute. [2] Health Care Consent Act, s. 18(3)(d)(ii) [3] Health Care Consent Act, s. 19(1) [4] Health Care Consent Act, s. 19(2) [5] Gunn v. Koczerginski, [2001] O.J. No. 4479 at para. 8 [6] N.J. v. Corriveau, 2018 ONSC 6261 at para. 8, Gunn, supra at para. 8 [7] In the Notice of Motion and Dr. Morgan’s affidavit affirmed on March 12, 2020, Dr. Morgan was simply proposing that Mr. Almeida be treated with antipsychotic medication. However, in his supplementary affidavit affirmed on April 6, 2020, Dr. Morgan says that he is proposing that Mr. Almeida be treated with Invega Sustenna. The Office of Public Guardian and Trustee has agreed to act as Mr. Almeida’s substitute decision maker if the finding of incapacity is upheld. The Public Guardian and Trustee has consented to the initiation of Invega Sustenna for Mr. Almeida. [8] Gunn, supra at para. 10 [9] Gunn, supra at para. 10 [10] Gunn, supra at para. 13