Court File and Parties

COURT FILE NO.: CV-22-675088 DATE: 20220509 ONTARIO SUPERIOR COURT OF JUSTICE

RE: OMAR KANAMA, Appellant -and- DR. IAN WEINROTH, Respondent

BEFORE: FL Myers J

COUNSEL: Joanna Weiss, for the Appellant Kate Deakon and Laura Thistle, for the Respondent

HEARD: May 3, 2022

Endorsement

[1] Mr. Kanama’s Community Treatment Order expired without being renewed in advance due to a SNAFU in the health care team administration. Then, Mr. Kanama was brought in for assessment without being told in advance that he was being subjected to a capacity assessment. The medical team did not speak to him at all. They spoke to his mother who told Mr. Kanama that he had to attend a doctor’s appointment.

[2] No one from the medical team told Mr. Kanama in advance that he was about to be subjected to a capacity assessment or that since they let his CTO lapse, Mr. Kanama did not have to attend for a capacity assessment if he did not wish to do so.

[3] When Dr. Weinroth conducted the assessment he found that Mr. Kanama lacked capacity. He made a new CTO. But Dr. Weinroth did not give Mr. Kanama the CTO or the forms advising him of his rights as required by the statutory scheme. He gave Mr. Kanama the required documents on the day before his review hearing before the Consent and Capacity Board.

[4] The majority of the Consent and Capacity Board upheld Dr. Weinroth’s findings of incapacity and found that the procedural failures did not prejudice Mr. Kanama on the facts of this case.

[5] The presiding member, who is the senior lawyer for the tribunal, agreed that Mr. Kanama lacks capacity. But he dissented from the outcome. He would have refused to uphold the findings of incapacity due to the surreptitious manner by which the capacity assessment was made.

[6] The struggle here is that all agree that the purpose of the statutory regime, and CTOs in particular, is to protect patients and to try to ensure that if treatment is to be imposed over the patient’s objection, it is done in the least offensive or restrictive manner. If Mr. Kanama is ill and lacks capacity to make treatment decisions, then he needs treatment and doing it in the community is a better result for him than, say, confinement. Even the dissenting board member would have upheld the doctor’s findings of incapacity. Moreover, procedural safeguards are really not relevant to the substantive issues. That is, even if Mr. Kanama was subjected to a horribly unfair process, he still needs treatment. Overruling his CTO may leave him untreated in the community with a risk of untoward results. That does not seem like a good outcome.

[7] On the other hand, fair process matters. The government or well-meaning doctors cannot just sweep people up off the street and start injecting them with antipsychotic drugs against their will. That is an extreme example to make a point and is not nearly the case here. The point is that people are entitled to notice and a fair process to ensure that their rights of autonomy and security of the person are protected from both government actors and doctors whether well-meaning or ill-motivated.

[8] A fair process is necessary to ensure that government power is exercised by government actors and doctors alike in a fair, reasonable, and lawful manner.

[9] Fairness in legal proceedings is especially important when dealing with vulnerable people who are in need of protection. While Mr. Kanama was awaiting his review hearing before the Consent and Capacity Board, the new CTO required him to submit to having a medicine injected into his body that he did not wish to receive. A CTO is not automatically stayed pending the review before the tribunal.

[10] In my view, if this order is allowed to stand, the procedural rights of patients in Mr. Kanama’s circumstances will be diluted or dilutable to meaninglessness. The board treated the question of procedural fairness as one to be considered under its general discretion to decline to make an order. It thereby converted its obligation to ensure doctors provide a fair process into a discretionary decision ostensibly subject to the board’s own weighing of factors and judgment and then deference from this court. This was an error of law.

[11] The proceeding was fair or it wasn’t. There is no other standard of review.

[12] Dr. Weinroth did not obtain an order requiring Mr. Kanama to attend for a capacity assessment. Dr. Weinroth does not assert that he had any grounds to require Mr. Kanama to attend for assessment once the CTO expired. There is no point therefore sending the matter back to the tribunal if I set the CTO aside. Mr. Kanama cannot be forced to attend a further capacity assessment if he does not wish to do so. This may mean that Mr. Kanama’s doctors and family will have to wait for Mr. Kanama’s health to deteriorate before they can get him the treatment that they believe that he needs. Perhaps he will seek treatment voluntarily. Perhaps his health will not deteriorate as expected. But until there are grounds to mandate assessment and treatment as provided in the statutory scheme, Mr. Kanama has the right to decline treatment if he wishes to do so.

[13] The health care system and health care professionals operating within the system, such as it is, need to manage their processes to respect and protect patients’ rights. I do not say that this is the best outcome for Mr. Kanama’s health. But it is necessary to protect all of us and to maintain the rule of law. If we are to respect peoples’ rights to fair treatment before their substantive rights are subject to adjudication and restriction, it is a necessary outcome.

[14] The health care team’s failure:

a. to renew Mr. Kanama’s CTO on a timely basis;

b. followed by the lack of notice to Mr. Kanama about the proposed new capacity assessment;

c. followed by the doctor communicating with Mr. Kanama’s mother and her telling Mr. Kanama that he was required to attend the appointment;

d. followed by the failure of the doctor or any member of the health care team to provide notice of the capacity assessment to Mr. Kanama or even to communicate with Mr. Kanama at all;

e. followed by a failure of the heath care team to provide Mr. Kanama with the CTO and other mandatory forms,

shows a systemic failure to respect procedural obligations in this particular case that must evoke a response. In my view, the specific confluence of multiple failures in this case resulted in an unfair assessment and review process.

The Facts

[15] I am dealing only with the procedural issue in this appeal. Although Mr. Kanama challenges the findings of incapacity, there was evidence before the tribunal to support the findings made. Mr. Kanama may disagree with the board’s assessment of the evidence, but his counsel was not able to show any palpable and overriding error of fact or mixed fact and law in that regard.

[16] I can do no better than reciting the board’s findings on the procedural facts. In the tribunal’s decision, Mr. Kanama is referred to by his initials “OK”:

The following facts were not disputed. As a result of administrative inadvertence, OK's CTO lapsed in September 2021. Neither the treatment team, nor it seemed OK's SDM intended that to occur. But it did. As a result, Dr. Weinroth contacted OK's mother to book an appointment for OK in order to conduct another assessment with a view to re-issuing the CTO. Dr. Weinroth did not discuss this fact with OK directly until OK arrived at the appointment on November 12, 2021. Dr. Weinroth provided no explanation for why he did not contact OK directly to discuss the overall situation.

OK gave evidence at the hearing on this point and told the panel that he was unaware that the CTO had expired. He said he was told by his mother that he had to attend an appointment with Dr. Weinroth and agreed to do so. OK told the panel that he did not believe he had a choice in respect of that appointment and attended only because his mother told him to do so. He made it clear that did not want to remain on the CTO and would not have gone if he knew he need not have. When he arrived at the appointment Dr. Weinroth did not tell OK, that the prior CTO had lapsed and he was no longer bound by its terms. Neither did Dr. Weinroth explain that the purpose of the appointment was, in part, to assess OK's capacity to determine whether to issue another CTO. [Emphasis added.]

[17] The board continued:

Making things more complicated, after the appointment Dr. Weinroth did not provide OK copies of any of the relevant Forms (neither the Form 46, MHA , Notice to Person of Issuance or Renewal of Community Treatment Order, the Form 49, MHA , Notice of Intention to Issue or renew Community Treatment Order, the Form 45, MAIA, Community Treatment Order nor a copy of the community treatment plan) until December 7, 2021 - the day prior to the hearing. Even at that, Dr. Weinroth provided OK copies of those completed forms only after being notified by counsel that OK had not received any of them. To his credit, as soon as he realized that he had not done so, Dr. Weinroth immediately forwarded copies to OK by email. Still, there was a delay of approximately 20 days between when the forms were completed and when copies were provided to OK.

Militating against the clear prejudice of not receiving the required forms in a timely manner, OK and his mother did receive Rights Advice soon after the appointment. OK received rights advice on November 15, 2021 and his mother on November 16, 2021 (Exhibits 7 and S). No issue was raised regarding the promptness or otherwise of that advice.

However, the entire process leading up to the new CTO was clearly and admittedly marked by numerous errors. The panel did not find Dr. Weinroth acted in bad faith and there may well have been a variety of practical reasons for the various mistakes that were made. However, the CTO framework is by nature a serious infringement on a person's freedom to live and do as he or she wishes and that person is entitled to strict adherence to the mandatory time frames. Similarly. persons subject to a CTO are entitled to be treated fairly during the entire process. The legislative regime of the MHA provides no leniency to physicians if they delegate some of the legislative requirements to others. [Emphasis added.]

The Tribunal’s Decision

[18] The tribunal commenced its analysis with a discussion of a similar precedent:

In EY (Re) the Board had revoked a prior CTO after a hearing. Subsequently the physician met with the applicant for the purpose of assessing him for a new CTO. EY attended the scheduled meeting without knowing the reason. The panel concluded at page 7:

"There is no evidence EY was told the planned purpose, which was an assessment for a new CTO. Exhibit 4 outlined that EY believed he was "free" and did not want to be on another CTO. It was therefore likely that had EY been told of the purpose of the meeting he would have declined to attend. The team's omission of telling him the purpose of the meeting was to avoid the risk of him not showing, the risk of him not getting assessed and the risk of not getting him on another CTO. Counsel for EY stated that without being advised of the purpose of the meeting, he did not attend voluntarily which made the assessment invalid. The panel determined the manner of initiating the assessment, which ultimately resulted in a change of his legal status, was unfair and prejudicial to EY. There was little doubt that the team acted in what they considered to in the best interests of EY, by placing him on another CTO, but it was the manner in which it was done that prompted our decision to exercise the discretion not to confirm it."

[19] The tribunal members analyzed the decision before them under s. 39.1 (7) of the Mental Health Act, RSO 1990, c M.7. That section provides a residual discretion to the tribunal to decline to confirm a CTO even if all of the substantive criteria for its issuance have been proven. It is a discretion that case law provides is to be exercised sparingly and cautiously.

[20] The majority of the tribunal members held that the procedural issues were not a sufficient basis to exercise their discretion to refuse to confirm the CTO. The tribunal held:

The majority (Dr. Buckingham and Ms. Neuberger) did not consider the doctor's failure to advise OK in advance of the appointment that OK need not attend - and/or the possible consequences of attending - egregious enough to warrant the exercise of the Board's discretion in the applicant's favour. The majority found that Dr. Weinroth advised OK during that appointment that it was OK's legal right to contest the doctor's finding. In addition, the majority found that Dr. Weinroth explained the reason for the appointment/assessment to OK during the appointment itself and concluded that it was within OK's personal discretion whether to proceed with the assessment or to simply leave. By choosing to remain, the majority concluded, OK impliedly consented/agreed to participate in the assessment. These facts, in the majority's view, mitigated any adverse consequence or prejudice to the applicant in respect of the assessment. Essentially, the majority concluded that even though Dr. Weinroth did not advise OK that he was not compelled to attend or remain during the appointment, by choosing to stay after being told the purpose of the appointment OK relinquished any complaint about the assessment. In respect of the delay in providing the requisite forms, the majority concluded that any prejudice was ameliorated by the fact that OK knew as of November 12, 2021 that a new CTO was issued and both he and his SDM both received rights advice within three days of that appointment. They did not find that the applicant suffered any real actual prejudice as a result and dismissed the remaining motions.

[21] In legal terms, the majority held that Mr. Kanama’s decision to remain at the capacity assessment amounted to a voluntary waiver of his right to due notice of the proceeding. In essence, the majority held that the doctor telling Mr. Kanama that he was conducting a capacity assessment for a CTO during the appointment cured the lack of advance notice to Mr. Kanama that the doctor wanted to conduct a capacity assessment that Mr. Kanama was not obliged to attend. The majority reasoned that once Mr. Kanama was told that the purpose of the appointment was to conduct a capacity assessment for a CTO, he could have left.

[22] The majority also held that any prejudice by the doctors’ failure to provide the required forms to Mr. Kanama after the CTO was signed was mitigated by the rights advice provided. Mr. Kanama did not need multiple mandatory forms telling him the terms of the order made against him or that he had a right to obtain advice and to a tribunal review hearing because he received the advice and had the hearing to which he was entitled.

[23] The dissenting member expressed his view in this way:

The dissenting member found that in these specific circumstances Dr. Weinroth had an overriding obligation to conduct the new assessment fairly and in accordance with Charter values and the principles of natural justice. The dissenting member concluded that the principle of fairness required that Dr. Weinroth explain to OK that the prior CTO was no longer in effect and that OK was under no legal obligation to attend the scheduled appointment. This, in the dissenting member's view, included explaining to OK that the prior CTO had lapsed, in addition to the purpose of the appointment and also the possible consequences of attending. Dr. Weinroth told the panel that no one had told OK that the prior CTO had expired. Although Dr. Weinroth had discussed renewing the CTO with OK's mother (the SDM when OK was bound by a CTO) he did not discuss those details directly with OK, whom Dr. Weinroth was aware did not want to be on a CTO . The dissenting member found the overall approach to the development and issuance of the new CTO indifferent to OK's involvement.

While it has been noted in a variety of CCB decisions that there are no express requirements in the HCCA regarding how an assessment of capacity must be conducted, it has also been noted that the courts have found that certain procedural safeguards must be complied with in accordance with Charter values and the rules of natural justice. For example, the court in Saunders v. Bridgepoint Hospital, 2005 ONSC 47735 (paras 106 and 118) found:

[106] It is submitted by the appellant that in the absence of expressed procedural provisions, procedural fairness must be found to be impliedly required by the HCCA in order to comply with the rules of natural justice and the Charter, which by definition is an objective concept where it can be applied consistently in all cases. I accept as a matter of law an objective test must be applied to the HCCA for determining the existence of specific rules of natural justice and in considering whether or not there was a breach of the rules of justice in the capacity assessment process.

[118] ... I am, however, of the view that as a matter of procedural fairness, a patient must be informed of the fact that a capacity assessment, for the purpose of admission to a care facility, is going to be undertaken, the purpose of that assessment and the significance and effect of a finding of capacity or incapacity. Given what is at stake for the patient, this seems to be a minimal requirement for procedural fairness. Furthermore, this will ensure that the information collected from the patient, which forms the basis of the assessment, is reliable.

In other words, the Board is obliged to consider the procedural fairness of a capacity assessment when reviewing the finding of incapacity. Quoting the following passage from the Ontario Court of Appeal decision in Fleming v. Reid, 1991 ONCA 2728, [1991] O. J. No. 1083, " Few medical procedures are more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects ." In this particular case, the dissenting member concluded that the surreptitious manner in which OK was brought to the appointment did not align with Charter values or the principles of fairness and natural justice. This, in combination with the additional failure to provide any of the MHA Forms in accordance with s 33.1(10) until notified resulted in the dissenting member's decision to invoke the Board's discretionary powers and revoke the CTO. [Emphasis added.]

[24] I agree with the dissenting member. I agree especially with the dissenting member’s assessment that the medical team approached the CTO indifferent to Mr. Kanama’s involvement.

[25] It may be that had the CTO not expired due to the team’s first administrative error, that Mr. Kanama could have been compelled to attend for a renewal assessment while under the prior CTO. But that is not what happened. CTO’s are time limited by statute. The time limit cannot be ignored or treated as if it had no consequence.

[26] I do not need to find and I am not finding that for every capacity assessment, the doctor must tell the patient anything in particular in advance. There are several applicable statutes and each says what it says. Rather, I agree with the dissenting member that in the circumstances here, with a lapsed CTO, discussion between the doctor and the patient’s mother only, and the patient being misled to believe that his was required to attend – ignorant of his right to decline the doctor’s invitation – the assessment took on a surreptitious quality that was not fair to Mr. Kanama.

[27] Before a procedural right can be waived by a patient, he or she must be told his rights so that he can make a knowing decision. Mr. Kanama’s failure to leave after being told that the doctor was conducting a capacity assessment cannot amount to a waiver of Mr. Kanama’s right not to attend. He did not know of that right. He had been told the opposite. Perhaps he should have known on his own the date that his CTO had expired and realized that he was no longer compellable by the doctor as a matter of law. But the circumstance of the doctor speaking only to Mr. Kanama’s mother and then the mother telling Mr. Kanama that he was required to attend the appointment conspired to remove his responsibility to know the underlying law. It is akin to reliance on a misrepresentation. A person cannot escape the results of making a misrepresentation by saying that the victim should have known better. That is doubly the case where the victim is a vulnerable person whose statutory rights have been ignored.

[28] No one on the health care team respected Mr. Kanama’s personal integrity and autonomy as an adult in Canadian society.

[29] Rather, Dr. Weinroth knew that Mr. Kanama did not wish to be subject to a CTO and mandatory treatment. Yet the doctor spoke only to Mr. Kanama’s mother and relied on her to convey his advice to Mr. Kanama. His failure to speak to Mr. Kanama directly or to have someone else under his direction do so, leaves him responsible for whatever Mr. Kanama’s mother said or the impression which she left on Mr. Kanama ostensibly as Dr. Weinroth’s messenger or based on his advice.

[30] I agree with the majority that the failure to provide Mr. Kanama with forms telling him about his right to legal advice after the CTO was issued caused him little prejudice because he spoke to a rights advisor and exercised his right to a hearing before the tribunal on a timely basis. On its own, that may not have made the process unfair. Mind you, there is no real justification offered by Dr. Weinroth as to why the mandatory statutory requirement to provide the CTO and other forms was not followed. He just argues that a 20 day delay is not too long. Had Mr. Kanama not been provided with rights advice in the interim, it may well have been too long.

[31] But the post-hearing failure was not the only procedural failure. This assessment process was studded with procedural failure. Whether the issue here was systemic failure caused by a lack of funding for necessary resources to track and communicate with patients or a simple indifference to this patient’s engagement is not for me to know. But Mr. Kanama has been forced to be injected with a drug that he did not wish to take in circumstances whereby he did not know that he had a right to just say no. His position was brought about by active failures on the health care team from the failure to renew the CTO, to the failure to speak to Mr. Kanama directly, and the failure to ensure that he was not under a misleading impression about the process.

[32] Mr. Kanama attended an appointment without knowing in advance that he was to be subjected to a capacity assessment for a new CTO that he did not have to attend. In conducting the capacity assessment, the doctor was carrying out a form of statutory power of decision. The capacity assessment had serious consequences on Mr. Kanama’s person and rights.

[33] People are entitled to notice so that they can prepare for and seek advice on their rights before attending a hearing or assessment that may have legal consequences. Imagine someone being told they had to go to see a judge and being told on arrival that he or she was being tried for an offence. The unfairness is patent.

[34] The requirement for notice of upcoming legal proceedings is the most basic element of natural justice and procedural fairness. This is not an issue for discretion for the tribunal. The surreptitiousness of the process, whether intentional, circumstantial, or caused by systemic failure, left Mr. Kanama misled and uninformed. It resulted in a decision being made about Mr. Kanama’s person while he was ignorant that he had an absolute right to avoid that outcome. While the majority would not characterize this as egregious, I would.

[35] Regardless, egregiousness is not the test at law. Procedural fairness is not just a discretionary matter under s. 39.1 (7) of the statute. If the assessment process was procedurally unfair, then it cannot stand.

[36] I am not to be taken to say that every possible procedural error leads automatically to a setting aside of an order under the statute. Of course not. The decision to leave a patient who lacks capacity untreated is not one that should be reached readily.

[37] Procedural fairness is contextual. Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699. Here numerous facts taken together produced the unfair outcome (including misrepresentation of the patient’s legal rights by someone empowered by the respondent doctor to pass on his advice). Mr. Kanama was not treated as a person with autonomy and a right to personal and bodily integrity.

[38] Dr. Weinroth was not just treating Mr. Kanama as his doctor. I would not readily invade the doctor-patient relationship. Here, Dr. Weinroth decided under a statute to assert the power of the state to compel Mr. Kanama to be injected with a drug against his will. To do that, he and the medical team had to be scrupulously fair to ensure that Mr. Kanama and all patients know the nature of the decision to be made in advance so that they can understand and assert their rights if so advised.

[39] On the particular and unusual facts of this case, the complete failure of the respondent and the medical team to respect Mr. Kanama’s procedural rights, led to an unfair process in breach of the principles of natural justice. Mr. Kanama was entitled to know the case he had to meet or, in this circumstance, why he was being compelled to attend and on what basis. The misrepresentation caused by the doctor’s decision to speak to Mr. Kanama’s mother instead of speaking to him made the assessment surreptitious and unfair.

[40] The confluence of failures that occurred here cannot be overlooked. There cannot be indifference to patient’s autonomy, bodily integrity, and legal rights. From start to finish the health care team ignored Mr. Kanama’s rights. The mandatory processes of the statute and the constitutional and administrative law requirements of natural justice and procedural fairness cannot be ignored or swept away by a discretionary decision that the result was not egregious. The process for an assessment of a patient’s capacity must be fair. And the process in this case was anything but.

FL Myers J Date: May 9, 2022