Court File and Parties

COURT FILE NO.: CV-24-00716583-0000 DATE: 20240808 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.S. AND: Dr. Michael Neszt

BEFORE: J.T. Akbarali J.

COUNSEL: Theodore Nemetz, for the appellant Erin Chesney, for the respondent

HEARD: August 7, 2024

Endorsement

Overview

[1] The appellant, KS, appeals from the determination of the Consent and Capacity Board (“CCB”) dated March 11, 2024, confirming the Community Treatment Order (“CTO”) which came into effect on January 31, 2024 and expires on July 30, 2024, and which includes her treatment with antipsychotic medication. At the same time, the CCB confirmed the respondent’s finding of KS’s incapacity with respect to the Community Treatment Plan (“CTP”).

[2] Although the appellant raised a number of issues before the CCB, on appeal to this court, she raises only one. She argues that the CCB made a palpable and overriding error in finding that the respondent obtained consent to the CTO from KS’s substitute decision-maker (“SDM”), in accordance with the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (“HCCA”). She argues that there is insufficient evidence that the respondent discussed with her SDM (her adult child, DK) the factors set out in s. 11(3) of the HCCA related to informed consent, or the matters set out in s. 21 of the HCCA related to her prior capable wishes.

[3] The respondent argues that the issue raised by the appellant on appeal regarding s. 11(3) of the HCCA: (i) ought not to be considered, because it was not raised before the CCB; (ii) in any event, there was sufficient uncontested evidence before the CCB that the respondent discussed the required information with DK, including in the contemporaneous medical records such that no palpable and overriding error can be made out; and (iii) even if the respondent had not discussed all of the required information under s. 11(3) of the HCCA, he was not required to given that there were no changes to KS’s condition or the CTP.

[4] With respect to s. 21 of the HCCA, the respondent notes that it was unclear in KS’s material that she would be raising this issue on appeal, although it was raised below. In any event, she argues the CCB made no error in determining that this criterion was satisfied on the evidence.

Background

[5] KS has been diagnosed with schizophrenia. She has a lengthy, documented psychiatric history including a lengthy psychiatric hospital admission at St. Joseph Health Centre in Toronto, commencing on July 20, 2022, until September 15, 2022.

[6] On August 31, 2022, a CTO was issued, under which KS accessed mental health care, including injections of antipsychotic medication. It was renewed three times, on February 1, 2023, August 16, 2023, and January 31, 2024. The last of these renewals is the subject of this appeal.

[7] Following the renewal of the CTO on January 31, 2024, the CCB held a hearing to review its renewal and the finding of incapacity with respect to the CTP that had been made by the respondent. Due to KS’s counsel raising legal issues without advance notice, the CCB granted the respondent a brief adjournment to March 11, 2024, to enable him to get legal advice.

[8] In addition to the documentary evidence filed by the respondent, he gave oral evidence at the hearing. No other witnesses testified.

[9] KS’s counsel cross-examined the respondent. On the question of DK’s consent to the CTO, counsel turned to one of the respondent’s notes in the clinical records which reads:

Re renewal: SDM has consented to renewal of CTP/CTO (03/012024 + 06/12/2023 + 31/01/2024). We reviewed the nature of the mental disorder and foreseeable consequences of taking and not taking antipsychotic medication. We reviewed the proposed CTP. Incapable of consenting to antipsychotic medication and CTP as she does not appreciate the reasonably foreseeable consequences of discontinuing antipsychotic medication and the nature of the mental disorder. Certifiable under MHA, Box B, substantial mental deterioration.

[10] The following exchange took place:

Counsel : [Reviewing the respondent’s clinical notes quoted above], re renewal SDM has consented to renewal of CTP/CTO, January 3rd plus December 6 th plus January 31 st . Um, and then it goes through, um, it delineates kind of what you’ve reviewed, the nature of my client’s mental disorder, foreseeable consequences of taking and not taking anti-psychotic medication, review the CTP, um, incapable of anti-psychotic medication and the CTP, etc., etc. Okay, so, um, you had three discussions with my client’s SDM. What did you discuss with him about my client’s prior capable wishes?

Respondent : I don’t think we are aware of any prior capable wishes with respect to antipsychotic medication.

Counsel : Okay, but did you discuss this with him?

Respondent : As I mentioned, we are not aware of any prior capable wishes with respect to antipsychotic medications:

Counsel : Okay, but did you speak to the SDM, … about whether or not my client has ever expressed any prior capable wishes? Did you have that conversation?

Respondent : I have had that conversation with him at some point along the treatment process. I cannot give you a specific date, but as part of my usual clinical practice, when speaking with Substitute Decision Makers, I inform them that part of the role is to try to make decisions respecting previously, previously expressed capable wishes if they are known; and if not known, to try to make decisions that are in the best interests of the person. Um, so I can’t tell you specifically when that conversation happened, but it would have happened at some point along the Community Treatment Order process.

Counsel : And is there any reason why this is not documented in any of the three conversations you had with my client [ sic ] related to the current Community Treatment Plan?

Respondent : Either oversight or we did not specifically discuss it with respect to this specific renewal, given that he has been involved in this process since day one of the CTO, and it is an ongoing understanding of the role of the SDM.

Counsel : Okay.

Respondent : So, I don’t routinely review the SDM role with SDMs, um, unless there’s some sort of change in their understanding or appreciation of what that role entails, or if they have additional questions I would have, I would assume that they would appreciate, uh, and recollect the, the duties of the role, as explained when we were first entering into an SDM role and just assumed that going forward, that they’re still acting in accordance with, with how it’s supposed to go.

[11] As I have noted, the appellant raised a number of issues before the CCB. As the excerpt above reveals, the only factual issue she raised with respect to informed consent was whether the respondent had discussed with the SDM KS’s prior capable wishes, if any.

[12] The CCB’s reasons for decision correctly noted that the physician bore the onus of proof, on a balance of probabilities, to establish that the statutory criteria for the renewal of the CTO was met. The CCB reviewed all the statutory criteria in its reasons for decision.

[13] With respect to whether the appellant’s SDM consented to the CTP in accordance with the consent rules under the HCCA, the CCB determined that the “documented written consent obtained by Dr. Neszt from DK, KS’s SDM, that was noted in the CTP… was evidence of the consent of KS’s SDM to the CTP, and that that consent was provided in accordance with the HCCA.”

[14] With respect to the question of KS’s prior capable wishes, the CCB wrote:

In his oral testimony, while Dr. Neszt acknowledged that there was no specific documented notation concerning such a discussion with DK, nevertheless he recalled having such a detailed “informed consent” verbal discussion with the SDM at some point during their interactions. Dr. Neszt added that DK had been KS’s SDM throughout the entire time Dr. Neszt had been providing psychiatric care to KS, so that SDM was fully aware of his duties and obligations as KS’s SDM, with no changes having arisen in DK carrying out this role. According to Dr. Neszt, only if there had been a change in KS’s capacity to consent to treatment status would it be necessary to conduct a new assessment and have further similar discussions with the SDM.

Accordingly, the panel held that this criterion had been met at the time of the hearing.

[15] The CCB confirmed the proposed CTO which came into effect on January 31, 2024 and expires on July 30, 2024.

Analysis

[16] The parties agree that, as a statutory appeal, the appellate standard of review applies. Findings of fact may only be overturned where there is palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37; Housen v. Nikolaisen, 2002 SCC 33.

[17] In my view, this appeal must be rejected.

[18] First, I accept the respondent’s submission that the nature of the issue raised on this appeal regarding s. 11(3) of the HCCA should not be entertained given that it was not raised before the CCB.

[19] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, at paras. 23-26, the Supreme Court of Canada explained that a reviewing court will generally not exercise its discretion to hear a new argument on an issue that could have been, but was not, raised before the tribunal because:

a. courts should respect the legislative choice of the tribunal as the first instance decision maker by giving the tribunal the opportunity to deal with the issue first and to make its view known;

b. where an issue relates to a tribunal’s specialized functions, the court should not ignore the benefit of having the tribunal’s views on the issue; and

c. there can be prejudice to the opposing party if it has not had the opportunity to present evidence on the issue, and the court does not have an adequate evidentiary record.

[20] While I appreciate that the CCB had the obligation to consider whether all the statutory criteria to issue the CTO were met, and that it considered whether informed consent was given, including with regard to the s. 11 factors, it reasonably did not do a detailed analysis of the evidence about those factors given that no challenge was mounted to them by KS’s counsel.

[21] I am satisfied that the concerns expressed in Alberta Teachers’ are present in this case. The question of the adequacy of the review of information between the respondent and DK, in view of the challenge now mounted, is one that would have benefitted from the expertise of the CCB considering the question in greater detail. Moreover, the respondent may have given more evidence about the discussion with DK, the CCB may have asked questions about it, and DK, who was present at the hearings, may have given evidence about the discussions, if the adequacy of the informed consent was placed in issue in any respect other than a consideration of KS’s prior capable wishes.

[22] If I am wrong, and I ought to consider the issue, I would find that the appellant has not discharged her burden of establishing a palpable and overriding error of fact with respect to the CCB’s consideration of the factors in s. 11(3) of the HCCA.

[23] The CCB correctly identified the statutory requirements relevant to a renewal of a CTO, set out in s. 33.1 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”), including that the person who is the subject of the CTO, or their SDM, consents to the CTP in accordance with the rules for consent under the HCCA.

[24] The relevant elements for consent to treatment are identified in s. 11(1) of the HCCA as:

a. The consent must relate to the treatment.

b. The consent must be informed.

c. The consent must be given voluntarily.

d. The consent must not be obtained through misrepresentation or fraud.

[25] Sections 11(2) and (3) of the HCCA together provide that a consent to treatment is informed if, before giving it: (a) the person received the information about the nature of the treatment, the expected benefits of the treatment, the material risks of the treatment, the material side effects of the treatment, alternative courses of action, and the likely consequences of not having the treatment that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and (b) the person received responses to his or her requests for additional information about those matters.

[26] There was evidence before the CCB, in the form of the respondent’s contemporaneous note in the clinical records, and through the respondent’s oral evidence, that he and DK had discussed the matters required in order to obtain informed consent. I note that the appellant’s counsel before the CCB seemed to think so too, as evidenced by her review of the matters that had been discussed between the respondent and DK, before she turned to ask about the consideration of KS’s prior wishes.

[27] On the record, it was open to the CCB to conclude that DK gave informed consent to the CTO.

[28] Accordingly, I would not give effect to the appellant’s argument regarding s. 11 of the HCCA, because the appellant has not established a palpable and overriding error with respect to the CCB’s conclusion that informed consent had been given in accordance with s. 11.

[29] That leaves the question of whether consent was given in accordance with the MHA having regard to s. 21 of the HCCA. Section 21 requires that a person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with two principles: first, 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; and second, if the person does not know of such a wish, the person shall act in the incapable person’s best interest.

[30] The appellant relies on G.A. v. Kantor, 2022 ONSC 4434. In that case, the CCB confirmed a finding of G.A.’s incapacity with respect to a renewal of a CTP. The evidence before the CCB indicated that Dr. Kantor could not recall if he had provided G.A. with information relevant to making a decision in respect of the CTP and antipsychotic medications on the date he reassessed G.A.’s capacity. Dr. Kantor’s notes made no reference to any such advice. Dr. Kantor gave evidence that, over the five years he had known G.A., they had discussed the benefits and consequences of taking, or not taking, antipsychotic medication many times.

[31] The court found that Dr. Kantor bore the burden of demonstrating he had discussed the benefits and consequences of the proposed treatment with G.A. on the day G.A.’s capacity was reassessed. The court noted that the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made at the time it is being made, including the foreseeable benefits and risks of treatment and expected consequences of not having the treatment. The court was concerned that G.A.’s lack of appreciation of the benefits and risks of treatment may have reflected Dr. Kantor’s failure to adequately inform G.A. of the benefits and consequences of the proposed treatment at the time of the capacity assessment. The concern is heightened because capacity is fluid, and so had to be established anew to renew the CTO.

[32] KS argues that, like in G.A., the respondent’s evidence that he had discussed KS’s prior capable wishes with the SDM on other occasions is not sufficient. To meet the statutory criteria, that is, to obtain consent in accordance with the principles set out in the HCCA, including s. 21, KS argues that the respondent was obligated to discuss KS’s prior consistent wishes with the SDM at the time he consented to the renewal of the CTO.

[33] I disagree. Unlike G.A., with whom the discussion about the risks and benefits of treatments had to be had as part of the reassessment of G.A.’s capacity, there is no question here about DK’s capacity. DK was KS’s SDM throughout, and in the relevant time frame, KS had not been assessed as capable at any point with respect to treatment since the first CTO was entered into. Thus, any prior capable wishes KS could have expressed would have been expressed before DK first became her SDM, a role he has occupied continuously since. Nothing about KS’s prior capable wishes could have changed since the respondent and DK had their last discussion about KS’s prior capable wishes. In my view, G.A. does not address the issue raised on this appeal, and is distinguishable.

[34] It is performative to suggest that, in these circumstances, consent required the respondent to review with DK KS’s prior capable wishes, especially when, as the respondent testified, they were unaware of any prior capable wishes. On the appellant’s argument, the same physician would have to have the same conversation with the same (capable) SDM in connection with an unchanged CTO about a past matter that could not have changed since the last time the conversation took place, because the incapacitated person continued to be incapacitated.

[35] With respect to this issue, for an SDM to give consent to a CTP in accordance with the rules for consent under the HCCA, under s. 21, the SDM must give consent in accordance with the principles I already described, that is, consistent with the incapable person’s prior expressed capable wishes if any are known, or in the person’s best interests if no such wishes are known. In my view, on the facts of this case, it was open to the CCB to find that a discussion at some point about KS’s prior capable wishes in the interactions between the respondent and DK met this requirement.

Conclusion

[36] In conclusion, the appeal is dismissed.

[37] No costs are sought or ordered.

J.T. Akbarali J. Date: August 8, 2024