DATE: 20001005

DOCKET: C33282

COURT OF APPEAL FOR ONTARIO

CATZMAN, ABELLA and ROSENBERG JJ.A.

BETWEEN: )

) William Moore,

AIME JOSEPH LAVALLIE ) for the appellant

Appellant )

• and - ) Elaine Atkinson,

) for the respondent

KINGSTON PSYCHIATRIC HOSPITAL )

and DR. S. HANNA )

Respondents )

) Heard: September 8, 2000

On appeal from the decision of Mr. Justice Douglas Belch dated November 8, 1999

ROSENBERG J.A.:

[1] Section 54 of the Mental Health Act, R.S.O. 1990, c. M.7 provides that forthwith on a patient’s admission to a psychiatric facility a physician shall examine the patient and determine whether he or she is capable of managing property. If the physician determines that the patient is not capable of managing property, the physician completes a certificate of incapacity [Form 21] and transmits it to the Public Guardian and Trustee. Thereafter, the Public Guardian and Trustee assumes management of the patient’s property. The issue in this case is whether the certificate of incapacity issued in accordance with s. 54 of the Mental Health Act in relation to this appellant became invalid because the hospital failed to follow the correct procedure for placing the appellant on a leave of absence.

[2] In my view, the defect in the leave of absence procedure, especially in the circumstances of this case, did not affect the validity of the certificate.

THE FACTS

[3] The appellant is a 67 year old single man. He has had periodic admissions to psychiatric hospitals, especially the Kingston Psychiatric Hospital, for over forty years. It is unnecessary to set out the nature of his mental illness since, in the proceedings in this court, the appellant did not attack the finding in the earlier proceedings that he was incapable of managing his property within the meaning of s. 54 of the Mental Health Act.

[4] The appellant’s most recent formal admission to the Kingston Psychiatric Hospital was on August 27, 1997. It appears that he was admitted as a voluntary patient, although the record is not entirely clear on that point. On September 4, 1997, the attending physician issued a certificate of incapacity in Form 21. In the result, the Public Guardian and Trustee assumed management of the appellant’s property. Once the appellant’s condition was stabilized, he was placed on a leave of absence. Thereafter, the appellant has frequently been on a leave of absence. At those times, the appellant lives on his own in an apartment near the hospital.

[5] Since his admission in August 1997, the appellant’s life has revolved around the hospital. Even when he is not a resident in the hospital, he attends at the hospital on a daily basis to take his meals, meet with his social worker and receive his medication and his spending money. He remains at the hospital from approximately 7:00 a.m. until 5:30 p.m. when his nurse drives him home.

[6] Section 27(1) of the Mental Health Act provides that the officer in charge of the psychiatric facility may, upon the advice of the attending physician, place a “patient” on leave of absence for a designated period “of not more than three months, if the intention is that the patient shall return thereto”. The hospital did not follow the procedure set out in s. 27(1). The leaves of absence were always granted by the attending physician, not the officer in charge. The respondent hospital and physician agreed that this was improper and that the officer in charge had no power to delegate the s. 27(1) authority in this manner.[^1] In addition, the appellant has frequently been placed on “rotating leaves of absence” in which he is released on a new leave of absence on the same day that his old leave of absence expired. It is at least arguable that this violates the spirit, if not the letter, of s. 27(1). Finally, there is some question whether at least some of these leaves of absence were granted when there was no true intention that the appellant would return as an in-patient.

[7] On February 23, 1999, the appellant brought an application to the Consent and Capacity Review Board under s. 60 of the Mental Health Act to review the finding of incapacity to manage property. The Board heard that application on March 9, 1999. The appellant made two arguments before the Board. He submitted that the certificate of incapacity was invalid because he was no longer a “patient” due to the defective leave of absence procedure. He also submitted that, in any event, he was capable of managing his property. On March 10, 1999, the three-member Board delivered reasons dismissing the application. A majority of the panel held that, while the leave of absence was irregularly granted, the appellant was still a patient within the meaning of s. 54. The Board was also satisfied that the appellant did not have the capacity to manage his affairs.

[8] The appellant’s status at the time of the actual hearing before the Board rests upon the following circumstances: On February 22, 1999, the appellant returned from a leave of absence and was designated as an “active in-patient” for part of the day. He then commenced a new leave of absence. The leave of absence was signed by a physician, but not by his treating physician and not by the officer in charge of the facility. The appellant was on this leave of absence at the time of the hearing.

[9] The appellant appealed the decision of the Board to the Superior Court of Justice. On November 8, 1999, Belch J. released reasons dismissing the appeal. The appellant now appeals from the order of Belch J.

[10] At the opening of the appeal, counsel informed the court that on March 23, 1999, the appellant had been formally discharged from the hospital as a patient and he was registered as an out-patient. On the same date, a physician completed a notice of continuance of certificate of incapacity under s. 57 of the Mental Health Act [Form 24]. It does not appear that Belch J. was made aware of these developments. Counsel brought this information to our attention in case we were of the view that this may have rendered the appeal moot.

THE POSITION OF THE PARTIES

[11] The appellant’s position is that at the time of the hearing before the Board the appellant had effectively been discharged as a patient because he was released on an invalid leave of absence. He was, in effect, an out-patient. The term “out-patient” is defined in s. 1(1) of the Act as a person who is registered in a facility for observation or treatment but who is “not admitted as a patient”. Since the appellant was not a “patient”, the certification of incapacity was a nullity.

[12] The respondents’ position is that despite the invalid leaves of absence, the appellant did not lose his status as a patient. Section 34(1) of the Act provides a specific mechanism for discharge of a patient and that did not occur in this case. Moreover, given the appellant’s conduct throughout the period, it was reasonable for the Board to find that he remained a patient.

ANALYSIS

Mootness

[13] As indicated, counsel informed the court at the opening of the appeal that a physician had issued a notice of continuance and the hospital had formally discharged the appellant following the Board decision. We informed counsel, at the hearing of the appeal, that we did not consider that these developments rendered the appeal moot.

[14] Section 57 of the Mental Health Act provides that within 21 days before the discharge from the psychiatric facility, the attending physician shall examine the patient to determine if he or she is capable of managing property. If the physician determines that “the patient” is not capable, the physician shall issue a “notice of continuance” in the prescribed form. The prescribed form, Form 24, is entitled “Notice of Continuance of Certificate of Incapacity to Manage One’s Property”. Thus, it seemed to us that the physician could not validly issue a notice of continuance unless the appellant was a “patient”, the very issue in the appeal. Further, the Notice of Continuance does not appear to be a free-standing certificate of incapacity. Rather, it continues the earlier Form 21 Certificate of Incapacity. If that earlier certificate was a nullity, the Notice of Continuance would also seem to be a nullity.

Validity of the Certificate of Incapacity

[15] There was no challenge to the certificate of incapacity when it was originally made in September 1997. The appellant was clearly a “patient” within the meaning of s. 54(4) of the Act, which provides as follows:

(4) If the physician determines that the patient is not capable of managing property, he or she shall issue a certificate of incapacity in the prescribed form, and the officer in charge shall transmit the certificate to the Public Guardian and Trustee.

[16] The term “patient” is defined in s. 1(1) as follows:

“patient” means a person who is under observation, care and treatment in a psychiatric facility

[17] I agree with respondents’ counsel that this definition must be approached in a flexible and purposive manner. As she pointed out, it cannot be the case that a person loses status as a patient because he or she is not continually under observation, care and treatment since, for example, legislation entitles a patient to refuse treatment. The Mental Health Act attempts inter alia to balance the needs and rights of often vulnerable people with the community’s interest in ensuring that mentally ill persons receive adequate treatment. It is important that safeguards, such as those surrounding leaves of absence and the making of Certificates of Incapacity, be complied with, but not every defect in hospital procedure has the drastic consequences sought by the appellant.

[18] The certificate of incapacity was valid when originally issued and the appellant was not discharged from the hospital until after the Board hearing, when the certificate of continuance was issued. The irregularities in the granting of the leaves of absence did not fundamentally alter the appellant’s status as a patient nor undermine the original certificate. The hospital, perhaps inadvisably, employed a mechanism to preserve the appellant’s patient status while granting him the widest possible freedom, consistent with the state of his mental health. The invalidity of the leaves of absence did not result in the appellant’s discharge from the hospital in fact or in law.

[19] Most importantly, the evidence is clear that, however the appellant initially entered the hospital, for most of this period, including the time of the Board hearing, the appellant was a voluntary patient. Therefore, whether or not he was on a valid leave of absence, he could not be detained in the hospital. This would seem to follow from s. 14 which provides that, “Nothing in this Act authorizes a psychiatric facility to detain or to restrain an informal or voluntary patient.” The appellant never did attempt to leave or renounce his status as a patient. He returned to the hospital on a daily basis. Assuming that the leaves of absence were invalid, by returning to the hospital for observation and treatment, the appellant retained or at least regained his status as a patient. It follows that the Board and Belch J. were correct in holding that the Certificate of Incapacity was valid.

DISPOSITION

[20] Accordingly, I would dismiss the appeal. The point involved in this case is a novel one and there was no doubt that the procedure followed by the hospital and the physician with respect to leaves of absence was incorrect. In the circumstances, I would make no order as to costs.

(signed) “M. Rosenberg J.A.”

(signed) “I agree M. A. Catzman J.A.”

(signed) “I agree R. S. Abella J.A.”

RELEASED: October 5, 2000

[^1]: The indication is that the procedure set out in s. 27(1) was never followed in Ontario and that the leave of absence was always granted by the attending physician rather than the officer in charge. Counsel for the respondents informed us that she has brought this matter to the attention of officials in the Ministry of Health.