Conway v. Jacques et al. [Indexed as: Conway v. Jacques]

59 O.R. (3d) 737

[2002] O.J. No. 2333

Docket No. C36001

Court of Appeal for Ontario

Sharpe, Cronk and Gillese JJ.A.

June 17, 2002

• Application for leave to appeal to the Supreme Court of Canada was dismissed February 6, 2003 (McLachlin C.J., Bastarache and Deschamps JJ.). S.C.C. File No. 29349. S.C.C. Bulletin, 2003, p. 216.

Mental health -- Incapable person -- Consent to treatment -- Patient denying he had mental disorder and refusing treatment with anti-psychotic drugs while competent -- Patient later found incapable of making treatment decisions -- Patient's mother became statutory substitute decision maker -- Mother denying that patient had mental disorder and refusing treatment based on his prior refusal -- Psychiatrist challenging mother's decision on basis that patient's prior position not amounting to wish "applicable in the circumstances" due to worsening of patient's condition and discovery of new medication with fewer side effects than available when patient capable of making treatment decisions -- Consent and Capacity Review Board accepting position of psychiatrist -- In absence of prior "applicable wish" substitute decision maker required to act in best interests of patient regardless of what patient might have chosen if capable -- Appeal judge overturning Board's decision on basis that was unreasonable -- Decision of appeal judge overturned and Board's decision reinstated -- Reasonable for Board to have concluded that mother failed to base her decision on patient's best interests -- Health Care Consent Act, 1996, S.O. 1996, c. 2, s. 21.

In 1984, Conway was found not guilty by reason of insanity of sexual assault with a weapon. Since that time, he had been detained in psychiatric facilities. Numerous psychiatrists over the years concluded that he suffered from severe mental illness. Conway denied that he was mentally ill and refused to accept anti-psychotic medication. In 1996, he was found incapable of giving or refusing consent to psychiatric treatment. His mother, FC, became his statutory substitute decision-maker under the Health Care Consent Act, 1996. FC refused to consent to recommended anti-psychotic medication on behalf of Conway on the basis that he refused to consent to other anti-psychotic medication while capable of giving or refusing consent. Conway's treating psychiatrist brought an application to determine whether FC complied with the statutory principles for substitute decision-making under the Act. Under s. 21(1) of the Act, if a substitute decision-maker knows of a wish "applicable in the circumstances" that the incapable person expressed while capable, he or she must act in accordance with the wish. If the substitute decision-maker does not know of a wish "applicable in the circumstances", he or she must act in the incapable person's best interests. The Consent and Capacity Board found that FC had not complied with s. 21 of the Act. FC had testified before the Board that she did not believe her son to be mentally ill and that she believed that he was fully capable of making his own treatment decisions. The Board found that the wish expressed by Conway while capable was not applicable in the circumstances because his condition had deteriorated and because new medication, which was not available when he was capable of giving or refusing consent, was more effective and had fewer side effects. Conway and FC successfully appealed the Board's decision. The Superior Court found that the decision was unreasonable given Conway's consistent refusal to consent to anti-psychotic medication while capable of giving or refusing consent. His psychiatrist appealed.

Held, the appeal should be allowed.

The appeal judge erred in reversing as unreasonable the Board's decision that Conway's prior capable wish was not "applicable to the circumstances". The [page738] Health Care Consent Act requires close attention to the patient's wishes by those who make treatment decisions on the patient's behalf. The wishes of the patient are to be considered by the substitute decision-maker at two stages under the Act: in acting in accordance with a prior capable wish applicable to the circumstances pursuant to s. 21(1)1; and in determining the incapable person's best interests pursuant to s. 21(2) where there is no prior capable wish applicable to the circumstances. At the first stage, prior capable wishes are not to be applied mechanically or literally without regard to relevant changes in the circumstances. Even wishes expressed in categorical or absolute terms must be interpreted in light of the circumstances prevailing at the time the wish was expressed. At the second stage, the substitute decision-maker must decide whether or not to consent to treatment on the basis of the best interests test under s. 21(2). Under s. 21(2)(b), the substitute decision-maker must take into account "any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under s. 21(1)1", namely any wishes that are not prior capable wishes applicable to the circumstances. It is only at the second stage that the Act allows for consideration of the decision the patient would have made in light of changed circumstances.

The appeal judge held that the Board failed to consider whether Conway would have consented to the new anti-psychotic medication if he was capable of giving or refusing consent. That is not the test mandated by the Act for determining whether a prior capable wish is applicable to the circumstances. To require the substitute decision-maker or the Board to consider what the incapable person would have decided in light of changed circumstances would replace the two-stage test mandated by the Act with a different test that is not supportable under the language of the Act. Conway's prior capable wish was either applicable to the circumstances or not applicable to the circumstances. If a prior capable wish is not applicable to the circumstances, the question for the substitute decision-maker is not what the patient would have decided in light of the change, but rather what is in the best interests of the patient.

It was open to the Board to conclude that Conway's prior capable wish was not applicable to the circumstances and that FC had failed to base her substitute decision refusing treatment on the best interests test under s. 21(2) of the Act. The Board's decision was not unreasonable.

APPEAL from a judgment of Spence J. (2001), 2001 ONSC 28412, 32 Admin. L.R. (3d) 248 (S.C.J.) allowing an appeal from a decision of the Consent and Capacity Review Board.

Cases referred to Fleming v. Reid (1991), 1991 ONCA 2728, 4 O.R. (3d) 74, 48 O.A.C. 46, 82 D.L.R. (4th) 298 (C.A.); L. (L.) v. T. (I.) (1999), 1999 ONCA 19918, 46 O.R. (3d) 284, 181 D.L.R. (4th) 125 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms Health Care Consent Act, S.O. 1996, c. 2, ss. 21, 37, 80(1), (10)

Robert G. Coates, for Paul Martin Conway. Rosalyn Train and Diana Schell, for Dr. I. Jacques. Peter F. Haber, for Frances Conway.

The judgment of the court was delivered by [page739]

[1] SHARPE J.A.: -- This appeal concerns the consent to treatment of a psychiatric patient. In 1984, Paul Conway was found not guilty by reason of insanity of using a weapon while committing a sexual assault. Since that time, he has been detained in psychiatric facilities. He has denied that he is mentally ill and refused to accept anti-psychotic medication. In 1996, Paul Conway was found incapable of giving or refusing consent to psychiatric treatment. His mother, Frances Conway, became his statutory substitute decision-maker under the Health Care Consent Act, 1996, S.O. 1996, c. 2 (the "Act"). Mrs. Conway has refused to consent to recommended anti-psychotic medication on behalf of Paul Conway on the basis that Paul Conway refused to consent to other anti-psychotic medication while capable of giving or refusing consent.

[2] Dr. I.R. Jacques, Paul Conway's treating psychiatrist, brought an application to determine whether Frances Conway complied with the statutory principles for substitute decision-making under the Act. Under s. 21(1) of the Act, if a substitute decision-maker knows of a wish "applicable to the circumstances" that the incapable person expressed while capable, he or she must act in accordance with the wish. If the substitute decision-maker does not know of a wish "applicable to the circumstances", he or she must act in the incapable person's best interests.

[3] The Consent and Capacity Board (the "Board") found that Frances Conway had not complied with s. 21 of the Act. The Board found that the wish expressed by Paul Conway while capable was not applicable to the circumstances because his condition had deteriorated and the medication now available is more effective and has fewer side effects. The Board concluded that in making a decision regarding consent to treatment on Paul Conway's behalf, Frances Conway must act in Paul Conway's best interests. Paul and Frances Conway successfully appealed the Board's decision to the Superior Court. The Superior Court allowed the appeal, finding that the Board's decision was unreasonable given Paul Conway's consistent refusal to consent to anti-psychotic medication while capable of giving or refusing consent. Dr. Jacques appeals to this court.

Legislation

[4] The relevant provisions of the Health Care Consent Act, 1996 are as follows:

21(1) Principles for giving or refusing consent -- A person who gives or refuses consent to a treatment on an incapable person's behalf shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining [page740] 16 years of age, the person shall give or refuse consent in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person's best interests.

(2) Best interests -- In deciding what the incapable person's best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

1. Whether the treatment is likely to,

i. improve the incapable person's condition or well being,

ii. prevent the incapable person's condition or well-being from deteriorating, or

iii. reduce the extent to which, or the rate at which, the incapable person's condition or well-being is likely to deteriorate.

2. Whether the incapable person's condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

37(1) Application to determine compliance with s. 21 -- If consent to a treatment is given or refused on an incapable person's behalf by his or her substitute decision-maker, and if the health practitioner who proposed the treatment is of the opinion that the substitute decision-maker did not comply with section 21, the health practitioner may apply to the Board for a determination as to whether the substitute decision-maker complied with section 21.

(2) Parties -- The parties to the application are:

1. The health practitioner who proposed the treatment.

2. The incapable person.

3. The substitute decision-maker.

4. Any other person whom the Board specifies. [page741]

(3) Power of Board -- In determining whether the substitute decision-maker complied with section 21, the Board may substitute its opinion for that of the substitute decision- maker.

(4) Directions -- If the Board determines that the substitute decision-maker did not comply with section 21, it may give him or her directions and, in doing so, shall apply section 21.

(5) Time for compliance -- The Board shall specify the time within which its directions must be complied with.

80(1) Appeal -- A party to a proceeding before the Board may appeal the Board's decision to the Ontario Court (General Division) [Superior Court of Justice] on a question of law or fact or both.

(10) Powers of court on appeal -- On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision- maker or the Board;

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

Facts

[5] In 1983, Paul Conway was charged with using a weapon while committing a sexual assault. On February 27, 1984, he was found not guilty by reason of insanity. Since that time, he has been detained at psychiatric facilities, first under warrants of the Lieutenant Governor, and then under Disposition Orders of the Criminal Code Review Board. On various occasions, he was detained at medium-security facilities, but on each occasion he was transferred to the Oak Ridge Division of the Penetanguishene Mental Health Centre ("Oak Ridge"), a maximum-security psychiatric facility. He is currently detained at Oak Ridge.

[6] Since his arrest in 1983, numerous psychiatrists have assessed Paul Conway. Although their precise diagnoses have varied, all have concluded that Paul Conway suffers from severe mental illness.

[7] Dr. Jacques is a psychiatrist employed at Oak Ridge and has been Paul Conway's attending physician since July 1995. Dr. Jacques' opinion is that Paul Conway has a severe character pathology and paranoid psychosis and that he appears to have a strong affective component to his psychotic illness. In particular, in Dr. Jacques' opinion, Paul Conway currently suffers from a schizoaffective disorder, mixed personality disorder with borderline narcissistic and paranoid features, probably paraphilia and possibly obsessive-compulsive disorder. [page742]

[8] On March 1, 1996, Dr. Jacques made a formal finding that Paul Conway is incapable of giving or refusing consent to psychiatric treatment. The parties do not take issue with that finding. The parties agree that before March 1, 1996, Paul Conway is presumed to have been capable of giving or refusing consent to psychiatric treatment.

[9] While capable of giving or refusing consent to psychiatric treatment, Paul Conway generally refused to accept anti-psychotic medication. He often expressed his refusal in clear and categorical terms, stating that he would not consent to any anti-psychotic medication. However, medical records show that he consented to treatment with two anti-psychotic medications while at one of the medium-security facilities. He also consented to medication to relieve symptoms of anxiety. In addition, at various times he was given anti-psychotic medication without consent in order to constrain his behaviour.

[10] On September 26, 1996, Dr. Jacques wrote to Frances Conway to initiate discussion regarding Paul Conway's condition and treatment. In his letter, Dr. Jacques described Paul Conway as "one of the most severely psychiatrically disturbed and untreated patients in the only maximum secure psychiatric hospital in Ontario". He urged Frances Conway to contact him to discuss treatment for her son. Mrs. Conway did not respond to Dr. Jacques' letter or to his follow-up letter dated October 31, 1996. On November 19, 1996, a social worker from Oak Ridge contacted Mrs. Conway. Mrs. Conway stated that she did not want her son "to receive any treatment at all". Mrs. Conway has maintained her refusal to consent to the recommended anti-psychotic medication on behalf of her son on the ground that he had refused to consent to other anti-psychotic medication while capable of consenting and that his wishes should be respected now.

Proceedings Below

(a) Application to the Board

[11] On November 21, 1996, Dr. Jacques applied to the Board pursuant to s. 37 of the Act for a determination as to whether Frances Conway had complied with s. 21 of the Act. On February 5, 1997, the Board convened its hearing. At the hearing, Dr. Jacques testified that Paul Conway has consistently denied that he is mentally ill and believes that his symptoms will be completely resolved once he gains his release from psychiatric facilities through litigation. In Dr. Jacques' view, Paul Conway's refusal to consent to treatment is connected with his denial of mental illness: [page743]

I think in his mind to accept medication, implies that he's giving up control to staff about whom he is paranoid, or that by accepting medication that he would be admitting or acknowledging that he has a psychiatric illness and that would be held against him somehow forever, even were he to be returned to the community.

[12] Dr. Jacques further testified that in his view, Paul Conway would benefit from the new generation of anti-psychotic medication that has recently become available. The new medication was not available when Paul Conway was capable of giving or refusing consent and differs from the anti-psychotic medication administered to Paul Conway in the past. In Dr. Jacques' opinion, the new medication is more effective in treating symptoms and has fewer side effects.

[13] Frances Conway testified that she was willing to act as her son's substitute decision-maker, but that she does not believe her son to be mentally ill. She also testified that she believed that Paul Conway is fully capable of making his own treatment decisions.

[14] Paul Conway testified that he does not think he needs anti-psychotic medication. He complained of side effects from past anti-psychotic medication and disputed staff reports that his condition had improved as a result of the medication.

[15] On February 13, 1997, the Board released its reasons for decision. The Board found that Paul Conway had not expressed any known wish, while capable, that was applicable to the circumstances. The Board noted that Paul Conway had accepted minor amounts of medication in the past and found that Paul Conway had not considered the treatment now available at a time when he was capable of giving or refusing consent to treatment. The Board also found that there had been a change in Paul Conway's circumstances as outlined in an addendum to a report of the administrator of the Penetanguishene Mental Health Centre to the Ontario Criminal Code Review Board. The addendum to the report notes that Paul Conway's condition "deteriorated substantially" since April 1996, that his symptoms could no longer be effectively treated with anti-anxiety medication and that effective treatment of his symptoms required anti-psychotic medication.

[16] The Board held that since Paul Conway had not expressed any prior capable wish applicable to the circumstances, Frances Conway must act in Paul Conway's best interests in determining whether to consent to treatment. Further, the Board found that the medication proposed by Dr. Jacques was a necessary part of Paul Conway's treatment. The Board noted that Paul Conway had not experienced the new medication proposed by Dr. Jacques and that Paul Conway's condition had improved when he had been given medication in the past. [page744] The Board ordered Frances Conway to consider the best interests test set out in s. 21(2) of the Act and to "accept that a plan of treatment is necessary and would involve in part chemical treatment as proposed by Dr. I. Jacques".

(b) Appeal to the Superior Court of Justice (Gans J.)

[17] Paul and Frances Conway appealed the Board's decision to the Superior Court of Justice pursuant to s. 80(1) of the Act. On the appeal, they sought to adduce as fresh evidence affidavits from Frances Conway and Paul Conway's former litigation counsel regarding Paul Conway's "prior competent wishes". On September 18, 1998, Gans J. allowed the appeal, admitted the fresh evidence for the purpose of the appeal and referred the matter back to the Board to receive and consider the fresh evidence.

(c) Reconvened hearing of the Board

[18] The same panel of the Board that had considered Dr. Jacques' application reconvened to consider the fresh evidence adduced by Paul and Frances Conway. Frances Conway testified that her son had constantly indicated that he did not want to take any kind of medication or receive any injections. Paul Conway's former litigation counsel, Samuel Marr, testified that Paul Conway had repeatedly indicated that he was opposed to treatment for psychiatric illness and, in particular, to being medicated. Marr had been retained by Paul Conway to litigate a civil claim against hospital employees for administering a restraint injection in 1998.

[19] The Board held that the fresh evidence did not alter the conclusion the Board had reached at its prior hearing. The Board found that the wishes expressed by Paul Conway while capable were not applicable to his current circumstances and directed Frances Conway to consider the best interests test in s. 21(2) of the Act and the new anti-psychotic medication proposed by Dr. Jacques:

Although the Board Members found that there was a wish of the patient expressed while presumed capable and over the age of 16 years, there was nothing in the evidence presented at the resumption of the hearing which would convince the Board Members that the wish was applicable to the patient's current circumstances.

The patient's refusal when it was made while capable had to be based on his perception of the older antipsychotic medications and their apparent benefits and risks. He is now categorically refusing and consequently been [sic] denied the opportunity to try the newer atypical antipsychotic medications which not only have fewer side effects but also are considerably more effective in dealing with certain symptoms in patients. The institution of these medications has in fact gone as far as to have resulted in certain persons improving to the extent that they have been released from this maximum secure facility when before the availability of these medications, these [page745] individuals would not ever be considered for release. They have had a remarkable effect on many many others not in hospital.

The Board Members would not make such a finding if this was just a different medication with similar properties to those earlier refused. This is not the situation. This particular proposed treatment with newer generation antipsychotics could be equated to considering treatment for bacteria infection before and after the invention of penicillin.

Such medications were not available prior to this patient becoming incapable and thereafter, although Dr. Jacques attempted to explain these medications, the patient was no longer capable of providing an informed consent.

This particular Board found that any wish that the patient may have had while presumed capable is not applicable to his current circumstances and that as it originally directed, there being no prior wish applicable to the circumstances, the substitute decision maker should consider the best interest test set out in Section 21(2) of the Act and accept that her son does suffer from a mental disorder as set out in Dr. Jacques' correspondence to her and that he is now not capable of making such decisions, and request all the information she is obligated under the Act to consider in making a treatment decision involving the newer generation anti-psychotics.

(d) Appeal to the Superior Court of Justice (Spence J.)

[20] Once again, Paul and Frances Conway appealed the Board's decision to the Superior Court pursuant to s. 80(1) of the Act. The appeal judge allowed the appeal and set aside the Board's order. He held that reasonableness is the appropriate standard of review for the Board's decision, following L. (L.) v. T. (I.) (1999), 1999 ONCA 19918, 46 O.R. (3d) 284, 181 D.L.R. (4th) 125 (C.A.). He found that the Board's decision was unreasonable.

[21] The appeal judge observed that if taken literally, a prior refusal to consent to treatment would apply despite a radical change in available treatment. However, he found that this literal approach "would seem to fall short of giving to the legislation the kind of remedial interpretation that is generally appropriate in statutory interpretation". He noted that even where a prior wish is not applicable to the circumstances, the wish must be considered in determining the patient's best interests under s. 21(2) of the Act. He concluded that the existence of an expressed wish concerning the type of treatment proposed "does not necessarily determine whether the wish is 'applicable to the circumstances'".

[22] In determining whether Paul Conway had expressed a prior capable wish applicable to the circumstances, the appeal judge found that the appropriate test is whether Paul Conway would have consented to the new anti-psychotic medication while he was capable of giving or refusing consent to psychiatric treatment: [page746]

[T]he question becomes: was his wish, as he expressed it, such that it is reasonable to infer that if, while he was capable, the new generation of such medication had become available, he would have accepted the advice of doctors about the effects of such medication and the advisability of his taking it?

[23] The appeal judge found that the Board had failed to consider whether Paul Conway would have consented to the new anti-psychotic medication while capable

The Board reasonably found that the patient expressed a prior capable wish against receiving antipsychotic medication. The Board reasonably found that that prior capable wish was affected by the patient's view of the effectiveness of such medication and its side effects. The Board, in effect, accepted the expert evidence that the newer generation of antipsychotic medication was radically improved in these respects. However, that finding would make the prior capable wish of the patient inapplicable only if it is reasonable to infer that the patient would have accepted such advice. The Board does not make a finding to that effect. So the question is whether on the evidence, such an inference would be reasonable.

[24] The appeal judge concluded that the evidence suggested that Paul Conway would not have consented to the medication:

The patient distrusted doctors. The patient wanted to decide for himself. The patient wanted to avoid any acknowledgement that he was mentally ill. The Board did not conclude that the advice that would be given to the patient about the new medication was such that these factors would be expected not to continue to operate in the formation of the patient's wish as they had done before. There is no basis established to enable the Court to infer that it would be reasonable to expect the advice that would have been given about the attributes of the new medication would have made a difference to the way the patient formed his wish.

[25] Accordingly, the appeal judge held that it was unreasonable for the Board to conclude that Paul Conway's prior capable wish was not applicable to the circumstances.

Issue

[26] This appeal raises the following issue:

Did the appeal judge err in reversing as unreasonable the Board's decision that Paul Conway's prior capable wish was not applicable to the circumstances?

Analysis

[27] In my respectful view, the appeal judge erred in law in his analysis of the Board's decision. The Board's decision that Paul Conway's prior capable wish was not applicable to the circumstances was reasonable both in fact and law. For the reasons that follow, I would allow the appeal and restore the order of the Board.

[28] Substitute decision-making concerning medical treatment affects fundamental rights long recognized by the common law [page747] and now protected by the Canadian Charter of Rights and Freedoms. The right to decide whether to accept or refuse invasive medical treatment is fundamental to an individual's bodily integrity and personal autonomy.

[29] Legislation providing for substitute decision-making on behalf of those incapable of making their own treatment decisions must take into account prior capable wishes concerning treatment. In Fleming v. Reid (1991), 1991 ONCA 2728, 4 O.R. (3d) 74, 82 D.L.R. (4th) 298 (C.A.), this court struck down legislation allowing a substitute decision-maker to consent to treatment as being in the patient's best interests without regard to the patient's prior wishes and without a right to a hearing. At p. 93 O.R., Robins J.A. held:

A legislative scheme that permits the competent wishes of a psychiatric patient to be overridden, and which allows a patient's right to personal autonomy and self-determination to be defeated, without affording a hearing as to why the substitute consent-giver's decision to refuse consent based on the patient's wishes should not be honoured, in my opinion, violates "the basic tenets of our legal system" and cannot be in accordance with the principles of fundamental justice.

[30] Ontario's Health Care Consent Act, 1996 is the legislature's response to the successful Charter challenge in Fleming. The Act requires close attention to the patient's wishes by those who make treatment decisions on the patient's behalf. The wishes of the patient are to be considered by the substitute decision-maker at two stages under the Act: 1) in acting in accordance with a prior capable wish applicable to the circumstances pursuant to s. 21(1)1; and 2) in determining the incapable person's best interests pursuant to s. 21(2) where there is no prior capable wish applicable to the circumstances.

[31] At the first stage, the substitute decision-maker must act in accordance with a wish expressed while capable that is applicable to the circumstances. However, I agree with the appeal judge that prior capable wishes are not to be applied mechanically or literally without regard to relevant changes in circumstances. Even wishes expressed in categorical or absolute terms must be interpreted in light of the circumstances prevailing at the time the wish was expressed. As Robins J.A. held in Fleming at p. 94 O.R.:

In my view, no objection can be taken to procedural requirements designed to determine more accurately the intended effect or scope of an incompetent patient's prior competent wishes or instructions. As the Act now stands, the substitute consent-giver's decision must be governed by wishes which may range from an isolated or casual statement of refusal to reliable and informed instructions based on the patient's knowledge of the effect of the drug on him or her. Furthermore, there may be questions as to the clarity or currency of the wishes, their applicability to the patient's present circumstances, and whether they have been revoked or revised by subsequent wishes or a subsequently accepted treatment program. [page748]

[32] At the second stage, the substitute decision-maker must decide whether or not to consent to treatment on the basis of the best interests test under s. 21(2). Under s. 21(2)(b), the substitute decision-maker must take into account "any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under s. 21(1)1", namely any wishes that are not prior capable wishes applicable to the circumstances. It is only at the second stage that the Act allows for consideration of the decision the patient would have made in light of changed circumstances.

[33] The appeal judge held that the Board failed to consider whether Paul Conway would have consented to the anti-psychotic medication suggested by Dr. Jacques if he had been capable of giving or refusing consent. In my respectful opinion, that is not the test mandated by the Act for determining whether a prior capable wish is applicable to the circumstances. To require the substitute decision-maker or the Board to consider what the incapable person would have decided in light of changed circumstances would replace the two-stage test mandated by the Act with a different test that is not supportable under the language of the Act. Paul Conway's prior capable wish was either applicable to the circumstances or not applicable to the circumstances. If a prior capable wish is not applicable to the circumstances, the question for the substitute decision-maker is not what the patient would have decided in light of the change, but rather what is in the best interests of the patient. I would therefore reject the analysis of the appeal judge and his conclusion that the Board erred in law and failed to make a crucial factual finding.

[34] The parties agree that given this court's decision in T. (I.), supra, the appropriate standard of review of the Board's decision is reasonableness. Consent to treatment raises a legal issue that requires the consideration of medical evidence concerning the condition of the patient and the nature of the proposed treatment. The legislature has assigned this difficult issue to a specialized tribunal with expertise in the area of substitute decision-making. The panel that heard this matter was composed of a psychiatrist, a community member and a lawyer who served as the chair of the committee. As this court held in T. (I.), the decision of the Board is to be accorded deference on appeal.

[35] In my view, it was open to the Board to conclude that Paul Conway's prior capable wish was not applicable to the circumstances. In reaching its conclusion, the Board considered several relevant factors.

[36] First, the Board considered that Paul Conway did occasionally consent to medication for his symptoms while capable of giving or refusing consent. Despite his frequent categorical refusals of [page749] all forms of chemical treatment, he consented to anti-anxiety medication on some occasions and to anti-psychotic medication on other occasions. When he received anti-psychotic medication against his wishes as a form of chemical restraint, he suffered adverse side effects as a result. From this evidence, the Board was entitled to infer that Paul Conway's refusal to consent to medication was less than absolute and that his perception of the risks and benefits of anti-psychotic medication was at least partly related to his unfortunate experiences with past treatment.

[37] Second, the Board considered that Paul Conway's psychiatric condition deteriorated from the time he expressed his prior capable wish. His symptoms are now more serious and debilitating. His anxiety is now compounded with psychotic symptoms that can no longer be relieved by anti-anxiety medication and that require anti-psychotic medication.

[38] Third, the Board considered that the nature of anti-psychotic medication has radically improved. The medication is much more effective and has considerably fewer side effects. The improvement is so significant that the Board analogized the new anti-psychotic medication to the advent of penicillin for the treatment of infections.

[39] Finally, the Board considered that Paul Conway's refusal to consent to chemical treatment is fuelled by his denial that he suffers from mental illness. Until 1996, Paul Conway was legally entitled to refuse to consent to treatment on the basis of his views regarding his own mental health, whether or not those views conformed to psychiatric assessments of his mental health. However, he is no longer entitled to do so, since he is no longer capable of giving or refusing consent to treatment. Paul Conway's substitute decision-maker is not entitled to make a decision as to treatment on the basis of Paul Conway's views of his own mental health. Accordingly, it was open to the Board to find that Mrs. Conway had failed to base her substitute decision refusing treatment on the best interests test under s. 21(2) of the Act. I would add that a decision to consent to treatment on Paul Conway's behalf would not violate Paul Conway's determined refusal to admit that he suffers from mental illness, since such a decision would not be made by Paul Conway.

[40] The question for this court is not how we would decide the issue, but whether the Board's decision was unreasonable. In light of the foregoing factors, I am not persuaded that it was unreasonable for the Board to conclude that Paul Conway's prior capable wish was not applicable to the circumstances.

[41] Finally, I must express my concern regarding the unacceptable delay flowing from the protracted nature of these proceedings. Over five years have passed since Dr. Jacques first raised the issue [page750] of Paul Conway's psychiatric treatment with Frances Conway. I urge all concerned to do what is required to have the issue of Paul Conway's treatment resolved as soon as possible.

Disposition

[42] For these reasons, I would allow the appeal and restore the order of the Board and amend the final paragraph of that order to require the substitute decision maker to comply with the Board's directions within 60 days of the release of this judgment. In my view, this is not a case for costs.

Appeal allowed.