DATE: 20021220

DOCKET: C38466

COURT OF APPEAL FOR ONTARIO

RE: DAVID BARNETT (Appellant) and THE HAMILTON PSYCHIATRIC HOSPITAL AND DR. URSULA WAWER (Respondents)

BEFORE: McMURTRY C.J.O., GOUDGE AND MACPHERSON JJ.A.

COUNSEL: Kikélola Roach For the appellant

Janice E. Blackburn For the respondent

HEARD: December 17, 2002

On appeal from the order of Justice Nick Borkovich of the Superior Court of Justice dated February 7, 2002.

E N D O R S E M E N T

Released Orally December 17, 2002

[1] It is clear that the standard of review of a decision of the Consent and Capacity Board is reasonableness. The Board here correctly set out the two factors in the statutory test for capacity: ability to understand the information relevant to making a decision about treatment, and ability to appreciate the reasonably foreseeable consequences of the decision or a lack of a decision.

[2] The question is whether it was reasonable for the Board to conclude, as it did on the evidence before it, that because of his mental illness the appellant lacked both abilities.

[3] These are findings of fact, and in our view, there was ample medical evidence to sustain the Board’s conclusion. It was not obliged to accept the appellant’s evidence which tended to the opposite conclusion although with some equivocation.

[4] This case is not like Starson v. Swayze. First, here, unlike Starson, the medical evidence made clear that the appellant suffers from a delusional disorder which has profoundly influenced his ability to take in and understand information relevant to the decision to take treatment or to appreciate the consequences of that decision. Second, the court’s role in itself addressing the individual’s capacity arose in Starson only once it found the Board’s decision to be unreasonable. We do not reach that stage in this case.

[5] In our view, the appeal must be dismissed. No order as to costs.

"R.R. McMurtry C.J.O."

"S.T. Goudge J.A."

"J.C. MacPherson J.A."