Court File and Parties

Court File No.: CV-19-625740 Date: 2020-06-16 Ontario Superior Court of Justice

Between: B.L., Appellant Counsel: Cornelia Mazgarean for the Appellant

And: Dr. Jennifer Pytyck, Respondent Counsel: Jessica Szabo for the Respondent

Heard at Toronto: February 10, 2020

Before: D.L. Corbett J.

Endorsement

[1] The Appellant appeals a decision of the Consent and Capacity Board (the “Board”) dated August 14, 2019, finding the Appellant incapable of consenting or refusing to consent to antipsychotic medication.

[2] The Appellant asks that his name be anonymized, given the personal nature of the information disclosed in these reasons. It is so ordered.

Summary and Disposition

[3] The Appellant’s position is that he has learned, through his own reading and reflection, that he is afflicted with environmental phenomenon including UV Rays, gamma rays and oxygen deprivation, as a result of global warming and environmental degradation. These afflictions are subjectively experienced by the Appellant – for example, he feels the pain in his eyes as a somatic response to direct sunlight, part of his perception of the world around him.

[4] The Respondent, the Appellant’s treating psychiatrist, considers the Appellant’s somatic responses to be products of his mental illness. The Appellant is of the view that his experience is a real response to real afflictions, and that antipsychotic medication causes or contributes to his afflictions, both in terms of its effect on him, and by causing him to lose his mental acuity and to forget to protect himself against direct sunlight and other environmental risks.

[5] The Appellant concedes that the Board applied the correct legal test when assessing his capacity to consent to treatment. He notes that the Respondent conceded that the Appellant meets the first branch of the test for capacity to consent to treatment – he is able to understand the information relevant to making a decision about treatment – and that the Board accepted that the first branch of the test was met. He argues that the Board’s decision that he does not meet the second branch of the test – its finding that he does not appreciate the reasonably foreseeable consequences of a decision or lack of a decision to use antipsychotic medication – is unreasonable.

[6] The Board’s decision is reasonable. The Appellant is delusional, and his delusions undercut his ability to assess the risks and benefits of antipsychotic medication. Therefore, for the reasons that follow, the appeal is dismissed.

Background

[7] The Appellant’s psychiatric history dates back to 2006 when he was first hospitalized displaying symptoms of paranoia, hallucinations, and suicidal ideation. He was found incapable of consenting to antipsychotic medication, was treated with risperidone, his condition improved, and he was released from hospital in December 2006.

[8] In January 2013, the Appellant developed persecutory delusions that his father was sexually harassing him, his mother, and others. He struck his father in the head with a cricket bat. He was charged with aggravated assault and was found not criminally responsible by reason of mental disorder (“NCR”). The Appellant has been detained under the jurisdiction of the Ontario Review Board since he was found NCR.

[9] Following the finding of NCR, the Appellant was admitted to the Ontario Shores Centre for Mental Health Sciences (the “Hospital”) in the Secure Forensic Service. Upon admission, the Appellant was noted to be markedly psychotic and paranoid. He was not willing to take antipsychotic medication and denied that he was suffering a psychotic illness. On July 4, 2013, the Appellant was found incapable of consenting to treatment with antipsychotic medication. This decision was reviewed before the Board, which reversed the physician’s decision and found the Appellant capable of consenting to treatment.

[10] In June 2014, the Appellant agreed to take a therapeutic dose of antipsychotic medication. After increasing the dosage, the Appellant’s mental status improved significantly. His delusions and hallucinations abated. He became more reactive and his thought form became more organized. In light of this improvement, the Appellant was moved to the General Forensic Service in the Hospital where he had greater privileges.

[11] Once in the General Forensic Unit, the Appellant was transitioned from an oral to an injected form of his medication. The Appellant raised concerns about the side effects of his medication, prompting a change in his medication. This change proved undesirable, and the Appellant showed mounting signs of mental deterioration. When advised of his doctors’ concerns, the Appellant agreed to switch back to his previous medication. The Appellant’s condition was stabilized over the following months and he was released to a 24-hour supervised group home in January 2017.

[12] Following discharge to the group home, the Appellant had another change in medication. He became “somatically preoccupied”, expressing concerns about chest tightness and shortness of breath to the point that he sought medical attention from his family doctor and a hospital five times within a one week period. He insisted on returning to medication that had not been effective for him in the past and then began reducing his dosage. Staff noted that the Appellant was becoming distant, internally preoccupied, and was having difficulty concentrating. The Appellant’s mother also expressed concerns about his deteriorating condition. The Appellant, himself, denied any deterioration. Eventually his continuing deterioration led to his involuntary readmission to the Hospital in May 2017, where he has remained since.

[13] Since readmission to the Hospital, the Appellant has continued to reduce the dose of his psychotic medication. He took his last dose of this medication on March 12, 2018, but continued to take small, non-therapeutic doses of various antipsychotic medication intermittently thereafter.

[14] The Appellant has continued to have somatic delusions which he attributes to the non-therapeutic doses of antipsychotic medication he has been taking. The Respondent suggested to the Appellant that he stop taking any antipsychotic medication because the small doses he was taking were having no positive impact on the Appellant’s illness but were being relied upon by the Appellant to explain his continuing somatic complaints. The Respondent hoped that once the Appellant stopped taking non-therapeutic doses, and his somatic symptoms continued, he would stop attributing his somatic symptoms to antipsychotic medication.

Evidence at the Hearing

[15] At the Board hearing, the Respondent testified that the Appellant has been diagnosed with schizophrenia. She said that the Appellant is extremely high functioning when properly treated, but that his condition deteriorates quickly without adequate antipsychotic medication. As of the Board hearing, the Appellant had been off his prescribed medication for about one year. During this time, the Appellant’s condition had deteriorated markedly, including social withdrawal, odd interpersonal behaviours, extreme sensitivity to light and sound, signs of paranoia, irritability, and disorganization of thought. In the month before the Board hearing, the Respondent noted dramatic deterioration, including emergence of clearly delusional beliefs. In her opinion, as of the time of the hearing, the Appellant was “quite overtly psychotic”.

[16] In her testimony, the Respondent said that the Appellant is intelligent and capable of understanding information provided to him about treatment. In her opinion, the Appellant satisfies the first branch of the test for capacity.

[17] The Respondent further testified that, in her opinion, the Appellant cannot accurately perceive the benefits of medications, for him, or weigh those benefits against the risks of the medications, to him. The Appellant does not want to take the antipsychotic medication prescribed for him. He understands the legal test for capacity. Because the Appellant is highly intelligent, he is able to present himself in a way that minimizes or conceals his symptoms and is able to present answers that suggest a minimum level of capacity. However, when the substance of his thinking and his behaviour is examined, and this is weighed against his answers, it is clear that the Appellant is not able to accurately perceive the benefits of his prescribed medications or to weigh those benefits against the risks.

[18] The Respondent testified that the Appellant has conflated his somatic preoccupations with side effects from his antipsychotic medication for many years. In 2013-14, when he was taking very low doses of antipsychotic medication, the Appellant reported very high levels of somatic side effects. When adequately medicated, the Appellant did not have the same complaints. The Appellant denies that his somatic complaints are related to his mental illness, and he denies that his medication can relieve him from his delusional suffering. In his own testimony this point was reinforced, but from the Appellant’s perspective. Subjectively, he believes that he does suffer from physical complaints, that these complaints are worsened by his antipsychotic medication, but that one effect of the medication is to dull him mentally, so that he “forgets” about his complaints and then fails to protect himself.

[19] The Respondent testified that she explained to the Appellant that it is her opinion that his current distress about UV light, gamma rays, and oxygen levels, and his somatic concerns, flow directly from his illness. In her opinion these symptoms are delusional and would likely improve with proper doses of antipsychotic medication. In her opinion, without therapeutic doses of antipsychotic medication, the Appellant will experience stress due to worsening symptoms, and he will experience a reduction in the quality of his life, including reduced privileges at the Hospital and delay in his return to the community. The Respondent is of the opinion that the Appellant does not understand or accept the connection between his delusional symptoms, the reduction in his privileges, and his continued involuntary detention at the Hospital:

He has… absolutely no appreciation of these symptoms as being part of his illness. He sees them as being real phenomena… he does not see his behaviours in trying to protect himself as excessive or flowing from his illness, and is not able to perceive the benefits of antipsychotic medication, which he’s admitted he does not think there are any in his current situation; and, in fact, the antipsychotic medication would make things worse. (Transcript Vol. 2, pp. 7-8)

[20] In his testimony, the Appellant presented as described by the Respondent: intelligent, focused on the legal test of capacity and in particular, with demonstrating that he had gone through the process of weighing risks and benefits of taking antipsychotic medication. He also testified in manner that corroborated the Respondent’s description of him as delusional. He believes that he is suffering because of UV rays, gamma rays, and lack of oxygen, and that his somatic complaints are real. He attributes these complaints to phenomenon such as climate change, and he believes that his antipsychotic medication makes these things worse. At most, in his view, the anti-psychotic medication masks the reality of these afflictions, leading him to fail to take steps to protect himself, thus afflicting him further.

[21] Taking all of this evidence into account, the Board concluded:

[The Appellant] was unable to appreciate the correlation between his behaviour and psychotic symptoms, which the antipsychotics served to reduce. Absent an ability to make a connection between a mental disorder and its effects on him and an inability to connect his improvement to medical adherence, he did not have the ability to evaluate the information or to weigh the benefits of the proposed treatments against their risks. (Reasons for Decision, page 21)

Jurisdiction and Standard of Review

[22] A party before the Board has a statutory right of appeal to a Justice of the Superior Court on questions of law or fact or both: Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s.80(1).

[23] Where there is a statutory right of appeal from an administrative decision, without a privative clause, the court scrutinizes the administrative decision on the basis of “appellate standards of review”. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 37.

[24] Both sides agree that the Board correctly cited the test for capacity to consent to treatment, which is set out in the Health Care Consent Act, s.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.

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

[25] The parties agreed and the Board accepted that the Appellant is able to understand the relevant information (the first branch of the test). Thus, the case turns on the second branch of the test, that is, whether the Appellant is “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.

[26] The Respondent characterizes the issue on appeal as a question of mixed fact and law – the application of the correct legal standard to the facts of the case. That is not how I view the issues. In my view this case concerns two questions:

(a) Whether the Board made a palpable and overriding error of fact in its finding that the Appellant, by reason of his mental illness, was unable to understand the risks and benefits of taking antipsychotic medication.

(b) Whether the Board erred in its application of the second branch of the legal test of capacity by assessing it through an objective lens (the actual effects of the mental illness on the Appellant and the actual benefits of antipsychotic medication for him) rather than a subjective lens (the Appellant’s sincerely held views respecting the effects of his mental illness upon him and the benefits of antipsychotic medication for him).

The Respondent argues that the mixed question of fact and law is subject to review in this court on a standard of palpable and overriding error. This is undoubtedly true for the first question raised on this appeal: whether the Board erred in its central findings of fact. In my view the second question on appeal is really a question of law, or very close to a pure question of law, and should be reviewed on appeal on a standard of correctness.

[27] This said, even if I am in error to separate the issues as I have done, or if I am in error in concluding that the second question on appeal is reviewed on appeal on a correctness standard, the result of this appeal is the same. The Board’s findings of fact are reasonable and are rooted in the record, and the Board’s conclusion is correct that the Appellant’s ability to analyze the costs and benefits of antipsychotic medication can only pass the second branch of the test for capacity if it is located in an objectively reasonable version of reality.

The Board’s Impugned Findings of Fact

[28] The Board accepted the Respondent’s opinion, based on the Appellant’s clinical history. The Appellant’s own testimony corroborated the Respondent’s evidence: he presented at the hearing as not understanding the nature of his illness, its effects on him, and the extent to which the illness itself impairs his ability to assess his own situation. This problem has persisted since around 2013, and the record establishes that a goal of his treatment has been to assist him – as an intelligent person capable, intellectually, of grasping these issues, to achieve insight into his illness. If the Appellant accepted his need for therapeutic doses of antipsychotic medication, he could well be relieved of the delusions that plague him, cease to suffer from many of his somatic complaints, and possibly return to the community. The Appellant denies all of these things. In his perception, there is no benefit, or next to no benefit, in taking antipsychotic medication. In his perception, his somatic complaints are real, not delusional, and the proposed treatment is part of the problem, not a solution.

[29] The Board found that the Appellant’s assessment of risks and benefits of antipsychotic medication was a product of his delusions and are not rooted in an objectively reasonable view of reality. This conclusion is driven by the record and there is no basis for this court to interfere with it. There is no palpable and overriding error of fact.

The Board’s Application of the Law

[30] Both sides agree that the second branch of the capacity test concerns the Appellant’s ability to weigh the risks and benefits of his medication. The Appellant has weighed what he believes are the risks and what he believes are the benefits of the medication. His counsel argues that, given the Appellant’s intellectual capacity, the analysis he has given to the issue is sufficient to meet the test for capacity. It may not yield the answer that mental health professionals might prefer, but it is satisfactory: any other conclusion would be inconsistent with the Supreme Court of Canada’s decision in Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, paras. 76, 78 and 80.

[31] There are two problems with this argument. First, as framed, it would render the second branch of the test largely nugatory for any patient with the intellectual capacity to reason through a costs/benefits analysis. The Appellant has a view of the risks and the benefits of his medication. But his view on these points is rooted, not in reality, but in delusions. If the Appellant cannot identify the actual risks and the actual benefits, then he cannot analyze them and perform a costs/benefits analysis. Second, although the test respects a patient’s subjective assessment of where the balance lies, it requires an objectively reasonable appreciation of the risks and benefits. The phrase “reasonably foreseeable consequences” requires that the patient’s understanding of potential risks and benefits be rooted in reality, not delusion.

[32] Starson does not go so far as counsel for the Appellant argues. It is for the patient to decide whether the benefits are worth the risks – but to do that he must have a true understanding of both. A patient who chooses to refuse medication because of its actual side effects, even though he knows that means he will continue to reside in a secure facility involuntarily, may suffer from increasing delusions, and may never improve, may make that choice according to Starson. But where a patient does not truly appreciate the risks and the benefits, he does not meet the second branch of the test by conducting a costs/benefits analysis on a delusional understanding of the costs and a delusional understanding of the benefits: Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, paras. 81, 79; Giecewicz v. Hastings, 2007 ONCA 890, para. 21.

[33] In my view the Board was correct in finding that a patient must be able to appreciate the objectively reasonable material risks and benefits of medication before that patient can perform a meaningful costs/benefits analysis. The Board reasonably applied this standard to the facts, as it found them to be, and concluded that the Appellant does not have capacity to consent to antipsychotic medication. I see no error. Therefore, for these reasons, the appeal is dismissed.

Order

[34] The appeal is dismissed without costs. I am obliged to counsel for their effective assistance. I also note that the Appellant addressed the court himself. He is obviously intelligent. He has obviously thought about these things a great deal: they are very important to him. I heard the Appellant’s argument clearly and I have given the entire record very close scrutiny. I am satisfied, as was the Board, that the Appellant suffers from serious delusions – about his illness, about what his medication does to him, and about what his medication could do for him.

Released: June 16, 2020 D.L. Corbett J.