CITATION: Giecewicz v. Hastings, 2007 ONCA 890
DATE: 20071220
DOCKET: C46831
COURT OF APPEAL FOR ONTARIO
WINKLER C.J.O., DOHERTY and SHARPE JJ.A.
IN THE MATTER OF an application under subsection 32(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, as amended
AND IN THE MATTER OF an application under subsection 60(1) of the Mental Health Act, R.S.O. 1990, c. M.7, as amended
BETWEEN:
DANIELA GIECEWICZ
Applicant (Appellant)
and
DR. THOMAS HASTINGS
Respondent (Respondent)
Marshall A. Swadron and Mercedes Perez for the appellant
Dara M. Lambe for the respondent
Heard: October 22, 2007
On appeal from the judgment of Justice M.H. Tulloch of the Superior Court of Justice dated January 17, 2007 with reasons reported at [2007] Carswell Ont 594, dismissing appeals from orders of the Consent and Capacity Board dated March 2, 2006.
DOHERTY J.A.:
I
Overview
[1] After a hearing in March 2006, the Consent and Capacity Board (the “Board”) made three orders against the appellant, Daniela Giecewicz:
(i) the Board confirmed her status as an involuntary patient under the Mental Health Act, R.S.O. 1990, c. M.7;
(ii) the Board found, pursuant to s. 32(1) of the Health Care Consent Act, S.O. 1996, c. 2, Sch. A, that the appellant was incapable with respect to treatment with “anti-psychotic and side effects medications”; and
(iii) the Board found, pursuant to s. 60(1) of the Mental Health Act, that the appellant was not capable of managing her property.
[2] The appellant appealed all three orders to the Superior Court of Justice. The appeal was heard in July 2006, dismissed in January 2007 with reasons provided in February 2007.
[3] The appellant further appeals to this court from the orders declaring her incapable with respect to treatment and the management of her property. The appellant does not challenge the order confirming her status as an involuntary patient. She remains an involuntary patient.
[4] I would dismiss the appeal.
II
[5] The Board found, based on the evidence of Dr. Hastings, that the appellant suffered from a mental disorder he described as “chronic persecutory delusions”. The Board further held that because of this disorder, the appellant could not either leave or fix her dilapidated home. Consequently, the Board found that it was likely she would suffer serious physical impairment by continuing to live in a squalid and unsafe environment.
[6] The Board further found that while the appellant could understand the information given to her by Dr. Hastings that was relevant to her treatment decisions, she could not apply that information to her own situation because of the delusional disorder that she denied and that rendered her incapable of appreciating the benefits of taking the recommended medication or the risks of refusing to take that medication.
[7] The Board also held that the appellant’s delusional system made her incapable of managing her property. The Board specifically noted that it was not concerned with the wisdom of the appellant’s decisions, but with her capacity to make those decisions.
[8] The Superior Court Justice dismissed the appeal from the Board’s orders. He found that the Board had applied the proper legal test in determining the appellant’s capacity to consent to treatment and manage her affairs. He applied a standard of reasonableness to the Board’s application of the legal tests to the facts and concluded that on the evidence before the Board, its decision was reasonable.
III
[9] In argument, there was some reference to alleged errors made on the appeal to the Superior Court. The focus was, however, on the Board’s decision. The Board’s orders raise two issues:
(i) did the Board apply the correct legal tests in arriving at its conclusions?
(ii) are the Board’s decisions with respect to incapacity as it relates to treatment and management of financial affairs reasonable?
(a) Did the Board apply the correct legal tests?
[10] In Starson v. Swaze, 2003 SCC 32, [2003] 1 S.C.R. 722 at para. 78, Major J., writing for the majority, explained the test for capacity found in s. 4(1) of the Health Care Consent Act:
Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. … Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. [Emphasis added.]
[11] My review of the Board’s reasons satisfies me that that the Board applied the proper tests in concluding that the appellant was not capable to make decisions about treatment with “anti-psychotic and side effects medication” and was incapable of managing her own property.
[12] After reviewing the evidence, the position of the parties and properly describing the onus of proof, the Board accurately summarized the relevant statutory provisions. The Board then concluded:
The doctor said that the Applicant can understand the information that is relevant to making a decision about treatment. However, she does not seem to apply it to herself. She has a delusional disorder which she denies. She said she does not need treatment. She does not appreciate the benefits of taking medication or the risks of not taking it. Therefore she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment. Hence she is not capable regarding treatment.
Her underlying delusional system makes the Applicant not capable of managing her property. Her persecutory delusions have meant her spending a great deal of money in legal fees over the years with respect to her land and her neighbours. The Board is not commenting on the wisdom or lack of wisdom of those expenses. The Board is concerned with capacity not wisdom. [Emphasis added.]
(b) Were the Board’s decisions reasonable?
(i) The standard of review
[13] The Board’s application of the proper legal standard to the evidence before the Board is reviewable on a reasonableness standard: Starson v. Swaze, supra, at para. 84. The reasonableness inquiry dictates respect for the expertise and advantaged position of the Board. It also, however, demands a somewhat probing examination of the reasons offered by the Board for its conclusion. That examination must ensure that the reasons taken as a whole provide a line of analysis, supported by the evidence, that can reasonably justify the Board’s conclusion: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at paras. 48-56.
(ii) The statutory provisions
[14] The reasonableness inquiry begins with the applicable legal standards for capacity to consent to treatment and manage one’s own affairs. The relevant statutory provisions are set out below:
(1) Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A
Capacity
- (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
(2) Substitute Decisions Act, 1992, S.O. 1992, c. 30
Incapacity to manage property
- A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[15] The capacity inquiries described in the two statutes are similar. Both contain two criteria. A person is incapable of making treatment decisions or managing his or her own property if that person cannot understand the information relevant to the making of the decision, or if that person is unable to appreciate the reasonably foreseeable consequences of making the decision.
[16] It was not suggested before the Board that the appellant was incapable of understanding the information relevant to treatment decisions or decisions pertaining to the management of her property. To the contrary, Dr. Hastings described the appellant as an intelligent person who was fully capable of understanding the information she received from him.
[17] The Board did conclude, however, based on Dr. Hastings’ report and his evidence, that the appellant, because of her particular mental disorder, was incapable of appreciating the reasonably foreseeable consequences of decisions she was making with respect to her treatment and her financial affairs.
[18] The meaning of the ability to appreciate the reasonably foreseeable consequences of a decision was considered in relation to s. 4 of the Health Care Consent Act by both the majority and the dissent in Starson v. Swaze, supra. I see no difference of opinion between the two judgments on this issue.
[19] Major J., for the majority, said at paras. 79, 81:
… While a patient need not agree with a particular diagnosis, if it is demonstrated he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. …
As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision. …
However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences [reference omitted]. Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision. [Emphasis added.]
[20] Chief Justice McLachlin, in dissent, observed at para. 17 that the ability to appreciate involved more than a mere understanding of the relevant information. Appreciation required some ability to evaluate the information. She then quoted with approval from the reasons of Arbour J.A. in Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (C.A.) at 314:
[T]here are situations where a person may understand in an intellectual sense the subject-matter in respect of which consent is requested and further understand the nature of the illness for which treatment is proposed and understand the treatment proposed, but his or her ability to appreciate the same as it relates to themselves may be impaired by mental disorder.
[21] The Chief Justice went on to state at para. 18:
Commentators have identified three “common clinical indicators” of a person’s ability to appreciate the consequences of accepting or declining treatment: “whether the person is able to acknowledge the fact that the condition for which the treatment is recommended may affect him or her; whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life; [whether] the person’s choice is not substantially based on a delusional belief. … These indicators provide a useful framework for identifying what “ability to appreciate” means in concrete terms. [Emphasis added.]
[22] The language used by both Major J. and by McLachlin C.J.C. can be applied to the appreciation component of the capacity inquiry required by s. 6 of the Substitute Decisions Act, S.O. 1992, c. 30.
(iii) The evidence
[23] The appellant was brought to Oakville Trafalgar Memorial Hospital after her lawyer alerted the police to his concerns about her living conditions. The appellant was 77 years old, living alone in a large home that she and her husband had purchased many years earlier. Her husband was deceased. Although the home was very large and was located on a valuable piece of property, it was in an extremely dilapidated state. The basement was flooded, there was no hydro, and part of the ceiling in the bedroom had collapsed. The appellant had been living without heat for some three years, and she was using a pot as a urinal.
[24] The police took the appellant to the emergency room at Oakville Trafalgar Memorial Hospital. She was placed under a 72-hour detention order so that a psychiatric assessment could be made. Dr. Hastings performed that assessment.
[25] Dr. Hastings learned that the appellant had been involved for many years in legal proceedings against her neighbours and the city. The appellant had spent a great deal of money on these proceedings and had been singularly unsuccessful.
[26] Dr. Hastings concluded that the appellant suffered from a disorder of persecutory delusions. These problems stemmed from her longstanding legal disputes concerning access to her home by way of an easement over her neighbour’s land. The legal dispute had developed into an obsession that affected all aspects of the appellant’s life. She was convinced that she was being persecuted by her neighbours and various public authorities. She believed that her lawyers and family physician may be involved in the persecution and that her closest living relative, a brother in England, could not be forthcoming regarding these problems because of a “gag order” that prevented him from telling the truth. The appellant was convinced that all of her problems stemmed from these legal difficulties and that none could be properly addressed until she received justice in respect of these legal problems.
[27] Dr. Hastings described the appellant as intelligent and physically healthy. She did not suffer from any form of dementia. Dr. Hastings went on to describe the appellant’s delusional belief system:
The conviction to which she holds that is very, very strong, and this is the – the foundation of the delusional belief. She feels that were she to back out of this [the legal controversy] this tyranny of this oppression would be spreading. She feels that she can’t escape it, and were she to leave and go to England for instance, to live with her family, that it would just follow her there. She’s indicated that it has followed her there before in the ‘80s when she went to England, and some baggage was lost, she felt that that was again, more evidence that this problem is everywhere.
The reason for that was that in my repeated discussions with her, she couldn’t focus on the matter at hand. She repeatedly would go to these past legal issues. She felt that they predated the Mental Health Act issues, and Health Care Consent Act issues, and therefore needed to be resolved first, because everything flowed from that. [Emphasis added.]
[28] Dr. Hastings also explained why, in his opinion, the appellant was unable to appreciate the reasonably foreseeable consequences of her decision to refuse the recommended medication:
… Her judgment and her thinking is affected by this delusional system, and that’s the foundation for which many of my findings of incapacity rely.
She’s really trapped in a situation by her thoughts. She believes that she should keep giving people in a just and democratic society a chance to undo their problems. She’s very giving in that way, she wants to let these people that have made mistakes undo their wrongs, and make it right. And she can’t see that that won’t happen, she can’t see that her behaviour is preventing that from happening, and that these judgments really are – are done, there’re finished, and she can’t come to terms with that. She feels they need to be given more time and more chances.
[29] In describing the effect of the appellant’s disorder on her ability to make treatment decisions, Dr. Hastings made the following additional comments:
This same delusional system is the one that I believe also makes her incapable of consenting to treatment. She does not believe that this is a mental disorder. While she is able to understand the information about what delusional disorder is, the kinds of medications that might be used for this disorder, the potential side effects of this medication, that’s not at issue. The issue is her ability to appreciate the reasonably forseeable consequences of treatment or non-treatment.
She fundamentally does not believe that she is ill, delusional. She fundamentally does not believe that these medications as a consequence, could be a benefit to her. And she does not recognize the significant consequences that will come pass, should she not be treated for this condition.
[30] In respect of her ability to make decisions concerning property, Dr. Hastings said the following:
I believe she also currently continues to be incapable of managing property. …
… she’s a smart woman, the issue again is the intrusion of this delusional system on her ability to make overall judgment about her financial situation. She says she wants to repair her house, but she has not done it. She says that she would like to go and be with her family, she has not sold her house. She can’t, her system prevents her from entertaining that possibility.
… I think she would continue to run into problems as a result of this delusional system about having her electricity and hydro and Visa bills and interest on all of these things run up, because she doesn’t see them as legitimate.
And because it again all goes back to the beginning problems, everything that flows from that is not really perceived as being important. What needs to be dealt with is this property problem, this dispute over a piece of land, the involvement of the City in terms of persecuting her, being in a democratic society that can spread this kind of tyranny and injustice, and this ongoing belief that she needs to put her foot down and stop it from occurring.
[31] Dr. Hastings stressed that the appellant’s inability to appreciate the reasonably foreseeable consequences of her decisions stemmed in part from her denial that she had any mental illness, but also from the impact of that illness on her ability to recognize the reasonable consequences of her behaviour.
[32] Counsel for the appellant did not challenge Dr. Hastings’ opinion in his brief cross-examination of the doctor.
[33] The appellant testified before the Board. She was asked whether she had any physical or mental problems that needed to be treated with medication:
Well definitely not, and I did say to Dr. Hastings that he grows on me, when I found out he gave me permission to go to my house everyday, provided that I go with somebody. I thought it was only for one day. But I think I would like to take it back.
Because what I see, I see that Dr. Hastings has built a facility, and obviously there are not enough mental patients to fill it, and then it is us if it is necessary to catch people to fill the facility, because empty beds do not bring money. [Emphasis added.]
[34] Later in her testimony she added:
And actually they – but – but I do not appreciate the potential benefit and merits of the treatment. So obviously I don’t know whether it’s cognitive science or whatever science it is, but actually obviously Dr. Hastings is looking for patients to stick needles into them, to check his medication. [Emphasis added.]
[35] The appellant described her legal difficulties:
… And the whole problem is that there was no explanation for what has happened, and therefore, we wanted to comply we couldn’t. We wanted to sell the house, we needed to wait to resolve the matter. Yes indeed I was afraid that if – if we sell the house, that this practice is – of driving people away from their homes will spread. [Emphasis added.]
So we were entitled to some kind of resolution or some kind of explanation, without explanation, we couldn’t do anything. As I said again, to reiterate, we couldn’t comply, we couldn’t sell, we couldn’t run away, we didn’t know what we would be selling. Whether we would be any – putting future – future owners in the same problem as we had. So I think it was in everybody’s interest to resolve the matter. …
… We bought a home, and we were delivered a trap, and nothing was resolved for decades. …
So it isn’t that I am delusional, because as I say again – to reiterate, my truth speaks for itself. … [Emphasis added.]
[36] The appellant acknowledged that her home was in a dilapidated condition and presented a danger to her. She stressed, however, that the problem could not be resolved until the underlying legal questions were addressed:
… I am being put in a dangerous situation that grows progressively worse, and that’s why I have been asked and asked again and again, resolve the matter, let us live like other people.
[37] The appellant concluded her testimony as follows:
Sir I have finished about those issues, now I want to be in charge of my own decisions. I don’t want to stay in hospital and have needles stuck into me, because Dr. Hastings needs some guinea pigs for his drugs. Excuse me if I am speaking so plainly. …
I don’t want – I don’t – I repeat that I do not think I need any treatment because the problem is elsewhere that has to be resolved. [p. 72] [Emphasis added.]
[38] I have set out the evidence in some detail because, in my view, that evidence speaks to the very situation described by both Major J. and McLachlin C.J.C. in the passages from their reasons in Starson v. Swaze quoted above. According to Dr. Hastings, the appellant suffers from a mental disorder that in the words of Major J., quoted above at para. 17 makes her unable to apply the relevant information given to her to her own circumstances and unable to appreciate the consequence of her decisions. Dr. Hastings testified that the appellant’s inability to acknowledge the existence of the condition for which he had recommended medication thoroughly undermined her ability to evaluate that information and his advice.
[39] Dr. Hastings’ evidence also reveals two of the three indicators of incapacity based on an inability to appreciate consequences referred to by McLachlin C.J.C. in the passage quoted above at para. 19. Dr. Hastings opined that the appellant was unable to acknowledge the fact that the condition for which he recommended treatment may affect her (the first criterion described by McLachlin C.J.C.), and that her choice to refuse treatment was substantially based on her delusional belief system (the third criterion described by McLachlin C.J.C.).
[40] The Board accepted Dr. Hastings’ opinion which was virtually unchallenged. Parts of the appellant’s own testimony tended to confirm that assessment. The Board did not act unreasonably in accepting his opinion.
[41] The appellant also submits that the Board’s decisions were unreasonable because there was no evidence that Dr. Hastings explained to the appellant the risks and benefits of the proposed treatment and no evidence as to the effectiveness of the proposed treatment or the potential adverse side effects flowing from that treatment.
[42] I cannot agree with the first submission outlined above. Dr. Hastings did testify that he spoke to the appellant about possible adverse side effects. According to him, she understood the information, but could not apply it to her situation because of her mental disorder. This was not a case where it could be suggested that the appellant’s lack of appreciation of the risks and benefits reflected the “physician’s failure to adequately inform the patient of the decision’s consequences”: Starson v. Swaze, supra, at para. 81.
[43] I do agree with the appellant’s submission that Dr. Hastings did not in his testimony describe the nature of the benefits of the proposed treatment or the specific potential adverse side effects. However, I do not think it was necessary for the Board to have this information to make the decisions it was required to make. It is not the Board’s task to weigh the risks and benefits of the proposed treatment or to make any determination as to the advisability of the treatment from a medical standpoint. The issue before the Board was the appellant’s capacity to make the relevant decisions.
IV
[44] A review of the Board’s decision in the context of the evidence it heard satisfies me that the Board’s analysis was based in the evidence and reflects an application of the proper legal principles to that evidence. The Board’ conclusions with respect to the appellant’s capacity to consent to treatment and her capacity to manage property were not unreasonable.
[45] I would dismiss the appeal without costs.
“Doherty J.A.”
“Winkler C.J.O.”
“Robert J. Sharpe J.A.”
RELEASED: “W” “DEC 20 2007”