DATE: 20050509

DOCKET: C43042

COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF an application under subsection 32(1) of the Health Care Consent Act, 1996, S.O. 1966, c. 2, Schedule A, as amended,

RE:

KARLENE THOMPSON (Applicant/Appellant) – and – PETER W. GRANT (Respondent)

BEFORE:

CRONK, GILLESE and MACFARLAND JJ.A.

COUNSEL:

Karlene Thompson

appellant in-person

Cynthia Clarke and Gregory Barclay

for the respondent

HEARD & RELEASED ORALLY:

May 5, 2005

On appeal from the judgment of Justice Susan E. Greer of the Superior Court of Justice dated January 10, 2005, dismissing the appeal from the decision of the Consent and Capacity Board dated August 27, 2004.

E N D O R S E M E N T

[1] Ms. Thompson appeals from the order of Greer J. dated January 10, 2005, in which Greer J. dismissed Ms. Thompson’s appeal and confirmed the decision of the Consent and Capacity Board dated August 27, 2004. The Board found Ms. Thompson incapable of consenting to treatment for paranoid schizophrenia.

[2] We wish to draw to the appellant’s attention the fact that this proceeding does not relate to the Community Treatment Order. It relates only to the order of incapacity.

[3] We share the view held by the Board and the appeal judge below that the appellant is intelligent and articulate. However, the task of this court is a limited one. That task is to review the decision of the appeal judge on a standard of reasonableness.

[4] The parties agree that the test for determining capacity is set out in s. 4(1) of the Health Care Consent Act, 1996. That test provides that a person is capable with respect to treatment if the person: (1) is able to understand the information that is relevant to making a decision about the treatment and, (2) is “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.

[5] There is no question but that the appellant meets the first part of the test, as the Board and the Appeal Judge found.

[6] In relation to the second part of the test, we agree with Ms. Thompson’s submission that a person cannot be found to lack capacity with respect to treatment based solely on the fact that he or she denies being ill, refuses treatment or disagrees with a formal medical diagnosis: see Starson v. Swayze [2003] 1 S.C.R. 723.

[7] Nonetheless, we see no basis upon which to interfere with the decision of the appeal judge. The Board found, on the basis of cogent medical evidence, including that of her long-time treating psychiatrist and detailed medical records, and the evidence of the appellant’s father and that of a team leader of the community treatment order team, that the appellant was incapable of weighing the reasonably foreseeable risks and benefits of a decision to take medication or to refuse to take such medication.

[8] In coming to its conclusion, the Board considered the appellant’s concerns about the side‑effects that she suffered when taking anti-psychotic drugs and her desire not to take medication.

[9] In these circumstances, the appeal judge did not err in concluding that the Board’s finding that the appellant lacked capacity with regard to treatment was reasonable.

[10] Accordingly, the appeal is dismissed.

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”

“J. MacFarland J.A.”