D'Almeida v. Barron

103 O.R. (3d) 250

2010 ONCA 564

Court of Appeal for Ontario,

Rosenberg, Goudge and Feldman JJ.A.

August 31, 2010

Charter of Rights and Freedoms -- Fundamental justice -- Vagueness -- Test for capacity to consent to treatment set out in s. 4 of Health Care Consent Act not unconstitutionally vague -- Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 4.

Mental health -- Incapable person -- Applicant suffering from delusion that he was rightful King of Canada -- Applicant's testimony that he would prefer to return to hospital rather than taking medication not demonstrating that applicant capable of appreciating benefits of taking medication -- Evidence before Consent and Capacity Board indicating that applicant did not recognize that he was mentally ill and was unable to appreciate that he would improve with anti-psychotic medication -- Board finding that applicant was incapable of consenting to treatment -- Board's decision reasonable -- Board not falling into error of applying best interests test -- Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 4.

The applicant suffered from a delusional disorder and a narcissistic personality disorder. He believed that he was the rightful King of Canada and did not recognize that he was mentally ill. The applicant believed that his past hospitalization resulted from those in power trying to prevent him from exercising his rightful powers as King. The Consent and Capacity Board found that the applicant was not capable of making treatment decisions with respect to anti-psychotic medication. When the applicant's appeals from that decision were exhausted, his treating psychiatrist started treating him with anti-psychotic drugs. The applicant applied to the Board to review the finding of incapacity. There was evidence before the Board that the applicant was functioning much better on the medication, although his core belief that he was the rightful King of Canada was unaffected. The applicant testified that he would prefer that his condition deteriorate than to take the medication. However, the applicant believed that he would be much better if he stopped taking the medication and that taking the medication did nothing to improve his condition. The Board found that the applicant was not capable of making treatment decisions as he had no insight into his mental illness and no appreciation of the fact that he would improve if he took the anti-psychotic medication. The appeal judge upheld that finding. The applicant appealed.

Held, the appeal should be dismissed.

The test for capacity set out in s. 4 of the Health Care Consent Act, 1996 is not unconstitutionally vague.

The Board's decision was reasonable. The Board did not commit the error of applying a best interests test. As a result of his mental condition, the applicant was unable to recognize that he was mentally ill. While he said that he would rather be in hospital without the medication, that was not the same as appreciating the consequences of the failure to treat as he was unable to appreciate that he improved while taking medication. There was a firm foundation for the Board's conclusion that the medication improved the applicant's condition and allowed him to move into the community and avoid coming into conflict with the law again.

APPEAL from the order of Mesbur J., [2008] O.J. No. 2945, 2008 CanLII 37208 (S.C.J.) affirming a decision of the Consent and Capacity Board that the applicant was incapable of making treatment decisions with respect to anti-psychotic medication.

Cases referred to Starson v. Swayze, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, 2003 SCC 32, 225 D.L.R. (4th) 385, 304 N.R. 326, J.E. 2003-1132, 173 O.A.C. 210, 1 Admin. L.R. (4th) 1, 122 A.C.W.S. (3d) 938, apld [page251] Other cases referred to Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, 2004 SCC 4, 234 D.L.R. (4th) 257, 315 N.R. 201, J.E. 2004-350, 183 O.A.C. 1, 180 C.C.C. (3d) 353, 16 C.R. (6th) 203, 46 R.F.L. (5th) 1, REJB 2004-53164, 60 W.C.B. (2d) 81 Statutes referred to Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 4, 18

Stanley D'Almeida, in person. Mercedes Perez, amicus curiae. Heather MacKay, for respondent Dr. Stanley Barron.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant appeals from the decision of Mesbur J. upholding the decision of the Consent and Capacity Board that the appellant was not capable of making treatment decisions with respect to anti-psychotic and side- effect medication. With the assistance of amicus, the appellant submits that the finding of incapacity was unreasonable and should be set aside. For the following reasons, the appeal is dismissed. The History of the Proceedings

[2] The appellant has a lengthy history of involvement with mental health facilities and the criminal justice system. The consent and capacity issue began in April 1998, when the appellant was remanded by the criminal courts to the Whitby Mental Health Centre for an assessment while he was facing a charge of uttering a threat to a judge of the Superior Court of Justice.

[3] The appellant's then treating psychiatrist, Dr. Julian Gojer, found that the appellant was not capable of consenting to treatment with anti-psychotic and side-effect medication. The Board confirmed that decision in May 1998. The appellant unsuccessfully appealed that decision to the Superior Court of Justice and then to this court. In July 2005, the Supreme Court of Canada refused leave to appeal. While those proceedings worked their way through the judicial system, the appellant did not receive any treatment, in accordance with s. 18 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. [page252]

[4] In the meantime, on May 22, 1998, the appellant was discharged from the Whitby Mental Health Centre back to the criminal courts because the assessment had been completed. On June 19, 1998, the appellant was found not criminally responsible and readmitted to Whitby. Dr. Gojer made another finding in July 1998 that the appellant was not capable of consenting.

[5] By 2005, the appellant, who was still an in-patient at the Whitby Mental Health Centre, was being treated by the respondent, Dr. Stanley Barron. Having learned that the appeal proceedings were at an end, Dr. Barron initiated treatment with anti-psychotic drugs with the substitute consent of the appellant's parents. The appellant immediately commenced another application to the Board, which upheld the decision. An appeal from that decision was dismissed by Ferguson J.

[6] After six months had elapsed, the appellant initiated another application to review the finding of incapacity to consent to treatment. The Board heard that application on February 3, 2006 and dismissed the application on February 6, 2006. It is this last decision that was appealed to Mesbur J. and which is the subject of this appeal.

[7] There were two issues before Mesbur J. The primary focus of the appeal was the reasonableness of the decision holding that the appellant lacked the capacity to consent. But the appellant also argued that the Board erred in holding that it had no jurisdiction under s. 18 of the Act to stop treatment pending disposition of the application. This second issue was not raised in the appellant's notice of appeal to this court and was not addressed in argument. Accordingly, I need not deal with that issue. The Appellant's Mental State

[8] The appellant has had many psychiatric admissions since 1982. While he was at one time diagnosed with schizophrenia, his current diagnosis is a delusional disorder, grandiose type and narcissistic personality disorder. The most obvious indication of mental illness is the appellant's false belief that he is the rightful King of Canada. He believes that there has been a long-standing plot to kill him because of his status. However, that is not the only symptom of his illness. For example, a report prepared in 2004, before treatment began, indicated that although his behaviour had improved somewhat, he was still experiencing significant difficulties and continued to be verbally threatening and physically abusive to staff and other patients.

[9] Dr. Barron testified before the Board in 2006 that the appellant did not believe he was mentally ill and therefore did not require any medication. By the time of the hearing, the [page253] appellant had been on the anti-psychotic medication for six months. The appellant had told Dr. Barron that he wanted to be taken off the medication because of the side effects.

[10] Dr. Barron testified that he and the treatment team were of the view that the appellant had made significant progress since he had been on the medication. Although there was no change in his belief that he was the rightful King of Canada, his behaviour was vastly improved so that it was now possible that the appellant would be able to live in the community. As a result of the treatment, the appellant had moved more quickly through privilege levels within the institution. His family had also noted a great improvement. He was more co-operative, pleasant and helpful. Dr. Barron was of the opinion that the appellant would not have been able to reach the level he was at or progress to community living without medication and that his condition would deteriorate if the medication was stopped.

[11] Dr. Barron told the Board that the appellant did not recognize that his progress and improvement were related to the medication. He believed that he had started to improve before the medication and any change was entirely of his own doing. In fact, he believed that he would be much better if he was not on medication because the medication was causing side effects.

[12] According to Dr. Barron, the appellant is very intelligent and knew that he was in hospital and in a unit where many others suffered from mental illness. However, the appellant thought he was being hospitalized because he is the King of Canada and that those in power had to keep him in hospital to keep him away from power. On an intellectual level, he understood the benefits of medication in some cases for treating mental illness, but that did not apply to him. He had no insight into his illness and therefore no appreciation that he would improve with the medication. Dr. Barron was of the view that the appellant was not capable of making treatment decisions.

[13] The appellant testified at the hearing before the Board. He testified that his progress had been severely curtailed because of the medication and that stopping the medication would increase his privileges and enhance his chances of living in the community. In any event, even if he did deteriorate, he would rather be in hospital because being off medication was much more important to him. For him, it was a question of quality of life. As he put it, "It's not really freedom to be out there all zombied up with medication. I'm a free man. I was born free and I want to be free. It's not acceptable to me."

[14] The appellant also complained about side effects from the medication. A treatment note made two months after treatment [page254] began indicated that the appellant had ceased certain physical activities. However, Dr. Barron testified that aside from some weight gain, the side effects about which the appellant complained, such as anxiety and restlessness, were not observed by the treatment team and could not be confirmed.

[15] There was no dispute that the medication has not affected the appellant's core belief that he is the rightful King of Canada and that belief persists until today. Decision of the Board

[16] The test for capacity to make treatment decisions is set out in s. 4 of the Act. I set out the test below, omitting the inapplicable parts as follows:

4(1) A person is capable with respect to a treatment . . . if the person is able to understand the information that is relevant to making a decision about the treatment . . . and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[17] The Board rested its conclusion on the second part of the test, the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. While the appellant could appreciate certain negative effects of the medication, he could not appreciate any positive benefits. The Board held that the appellant was unable to appreciate the reasonably foreseeable positive benefits of a decision to consent to treatment and was unable to appreciate the reasonably foreseeable negative consequences of a decision to refuse treatment. As the Board said, the appellant's illness "had stolen his ability to process the information that he might be affected by a mental illness or any manifestation of a mental illness. The deficit produced by the illness resulted in an inability to appreciate the consequences of a decision or lack of decision." The inability to recognize his illness is a direct result of the condition. Decision of Mesbur J.

[18] The appeal judge held that the standard of review of the Board's decision was reasonableness. She held that there was ample evidence to support the finding that the appellant suffers from a mental condition. She also held that the Board's decision on capacity was supported by the evidence. The appellant does not appreciate that he suffers from a mental illness and cannot appreciate the consequences of his decision to refuse treatment. The Board's decision was reasonable and accordingly the appeal failed. [page255] Analysis

The constitutional issues

[19] The appellant raised a number of issues concerning the constitutionality of the Act. His principal submission was that the test for capacity as set out in s. 4 of the Act is so vague that its application results in a deprivation of liberty that does not accord with the principles of fundamental justice. I would not give effect to this submission. The test for vagueness is a strict one. As was said in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, at para. 15:

A law is unconstitutionally vague if it "does not provide an adequate basis for legal debate" and "analysis"; "does not sufficiently delineate any area of risk"; or "is not intelligible". The law must offer a "grasp to the judiciary": R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at pp. 639-40. Certainty is not required.

[20] The test set out in s. 4 is not unconstitutionally vague. To the contrary, the test has been defined with reasonable precision by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, at para. 78, per Major J. for the majority:

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. Further, Major J. went on to elaborate on the test, at paras. 79-81:

Before turning to an analysis of the reviewing judge's decision, two important points regarding this statutory test require comment. First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and "capable but dissident interpretations of information" are to be expected: see Weisstub Report, supra, at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental "condition", the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows (at p. 250, note 443):

Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.

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 [page256] 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.

Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences. The distinction is subtle but important: see L. H. Roth, A. Meisel and C. W. Lidz, "Tests of Competency to Consent to Treatment" (1977), 134 Am. J. Psychiatry 279, at pp. 281-82, and Weisstub Report, supra, at p. 249. In practice, the determination of capacity should begin with an inquiry into the patient's actual appreciation of the parameters of the decision being made: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment. If the patient shows an appreciation of these parameters -- regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation -- he has the ability to appreciate the decision he makes: see Roth, Meisel and Lidz, supra, at p. 281.

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: see the Weisstub Report, supra, at p. 249. 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 in original]

[21] The test may be difficult to apply in some cases, but that is not the same as vagueness and does not result in arbitrary or unfair decision-making.

Was the Board's decision reasonable?

[22] The appellant, supported by the very helpful submissions of amicus, Ms. Perez, submits that the Board's decision was unreasonable. They submit that the evidence demonstrates that the appellant appreciates the consequences of the failure to treat. He understands that the result may be that he will remain in hospital, but that is his choice. In effect, the Board applied a best interests test, imposing treatment on him, not because he lacked capacity to consent, but because the respondent and the Board believed that treatment was in his best interests.

[23] The appellant also says that his case is unique. He is being treated on the basis of a decision made more than 12 years ago. Further, after the finding of incapacity was made by Dr. Gojer, the appellant was discharged from the hospital and therefore must have been deemed capable at that time. I would point out, however, [page257] that this is not an entirely accurate picture of events. The appellant was not discharged from Whitby in May 1998 because he no longer suffered from a mental illness or was capable of consenting but because the remand for assessment had expired. Once the appellant was returned to Whitby after the finding that he was not criminally responsible, Dr. Gojer reaffirmed his finding that the appellant lacked capacity to consent in July 1998. Further, the respondent, Dr. Barron, testified before the Board in 2006 that the appellant continued to lack the capacity to consent.

[24] In my view, the Board applied the correct test as set down in Starson and did not make the error attributed to it by the appellant and amicus of applying a best interests test. The Board referred both to the statutory test and the test laid down by Major J. in Starson. The facts as found by the Board fit within Major J.'s explanation of the test, in para. 79: "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".

[25] As a result of his mental condition, which does not simply include his fixed false belief that he is the rightful King of Canada, the appellant is unable to recognize that he is mentally ill. As a result, he cannot apply the information to his circumstances. He cannot appreciate that without the medication his condition will deteriorate. While the appellant verbalizes that he would rather be in hospital without medication, that is not the same as appreciating the consequences of the failure to treat. For his belief is not that lack of medication will cause his return to hospital. Rather, he believes that he will continue to improve without the medication. The respondent's opinion that the appellant's condition will deteriorate is firmly anchored in the evidence, including evidence of the experience both before and after the appellant began treatment.

[26] The appellant recognizes some of the negative effects of treatment, namely, the side effects. But he has no appreciation of the positive effects of treatment or the negative effects of the failure to treat. To the contrary, as set out above, he believes that his progress is solely the result of his own efforts and that the treatment has retarded his progress. That is manifestly not the case. Moreover, his failure to appreciate is directly related to his mental condition. Because of his false ideas, he does not appreciate that he is ill and does not appreciate that he needs medication. He attributes his hospitalization not to his illness, but to the fact that evil forces are conspiring to keep him from assuming his proper role in this country. [page258]

[27] The appellant's case is quite different from that of Starson. As explained by Major J., at para. 92 of the Starson case, Professor Starson understood that he suffered from a mental condition and appreciated the purpose of the medication and the possible benefits suggested by the doctors. He preferred his altered state to what he viewed as the boredom of normalcy. This appellant does not understand that he suffers from a mental condition nor does he appreciate the purpose of the medication and the possible benefits.

[28] It is true that the medication has had no impact on the appellant's core belief about his place in Canada's constitutional framework, but that does not mean that the medication has not had a positive impact on the appellant. He is able to function at a high level in hospital and would soon be able to move into the community; the behaviour that had led him into conflict with the law and admission to psychiatric facilities, and which was a consequence of his mental condition, has abated. There is also no reliable evidence that the serious side-effects that the appellant was so concerned about have manifested themselves.

[29] In my view, the Board's decision was reasonable and the appeal judge properly upheld that decision. Disposition

[30] Accordingly, I would dismiss the appeal.

Appeal dismissed.