COURT OF APPEAL FOR ONTARIO

CITATION: Anten v. Bhalerao, 2013 ONCA 499

DATE: 20130729

DOCKET: C55186

Laskin, Rosenberg and Tulloch JJ.A.

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

AND THE MATTER OF AMY ANTEN formerly a patient at ST. MICHAEL’S HOSPITAL, Toronto, Ontario

BETWEEN

Amy Anten

Appellant

and

Dr. Shree Bhalerao

Respondent

Anita Szigeti, for the appellant

Kiersten Taylor and Melissa Atkin, for the respondent

Heard: June 12, 2013

On appeal from the order/judgment of Justice Carole J. Brown of the Superior Court of Justice, dated February 14, 2012, dismissing an appeal from the order of the Consent and Capacity Board, dated January 29, 2010.

Rosenberg J.A.:

[1] The appellant, Amy Anten, appeals from the decision of C.J. Brown J. dismissing her appeal from the decision of the Consent and Capacity Board. The Board (Karen Lindsay-Skynner) upheld a finding of incapacity made by the respondent, Dr. Shree Bhalerao. In my view, on this record, the finding of incapacity was unreasonable and must be set aside.

A. THE FACTS

[2] The evidence presented by the parties before the Board was brief and, especially on the part of the respondent, somewhat vague and unfocused. In the result, little is known about the appellant. Sometime before November 6, 2009, the appellant was admitted to St. Michael’s Hospital. It is unclear where the appellant was before this time, although she may have been in a nursing home. It appears that she was admitted because of the effects of a physical illness, lupus. She was diagnosed with this illness when she was 37 years of age. The record does not disclose her age at the time of admission. There is no evidence about the appellant’s family history other than that she has at least two sisters, one of whom became her substitute decision-maker.

[3] On November 6, the medical team that was treating the appellant asked the respondent for a psychiatric consultation. In his evidence, the respondent, rather than testifying about the results of his mental examination of the appellant, launched into a confusing chronology of the treatment that she was given based on the assumption that she was suffering from a psychosis. The respondent’s concern was whether the psychosis and the lupus were linked. He testified that the psychosis predated the lupus and, therefore, the psychosis should be re-categorized from psychosis not otherwise specific to schizophrenia. He then testified to various medications that were given to the appellant. I will return to the question of the medications below. It should be noted that there was no evidence as to when the appellant began to suffer psychosis, when the initial diagnosis was made, or why the respondent decided to change the diagnosis to schizophrenia.

[4] After describing some of the medications that he either prescribed or considered for the appellant, the respondent gave this reason for the regime chosen:

The reason for this regime was that typically Ms. Anten would say that people were entering her room in the evening and literally—and I’m making parts of this up, but it’s mainly punching her, assaulting her, at one point even recently poking her eyes out. So these were common complaints that seemed to occur mainly in the evening and throughout the day I have to admit, they also occurred, especially on the various visits that we had had that she was convinced that there were people that did not belong in the hospital as well as belonged in the hospital who were assaulting her and hurting her. Again, we tried our best to address those issues and tried our best to assure her that they weren’t happening, but again, I mean it’s her word against ours and we tried our best to alleviate that by using that kind of floor [sic] of medications. [Emphasis added.]

[5] The respondent gave some other hearsay evidence about the course of the appellant’s mental state. For example, he testified that “what I do know” is that the appellant was in the community at a home and there were no concerns with her cognitive functioning, “but there has been a decline in her psychotic symptoms”.

[6] When the chairperson attempted to elicit evidence from the respondent about the application of the two-part test for capacity, the respondent explained that the appellant did not believe she had an illness and believed that the persecutory delusions were true. He continued as follows: “There’s a lack of understanding that her delusional system is affecting her ability to receive—to appreciate”.

[7] In response to a leading question, the respondent agreed that the appellant did not have the ability to understand that she was affected by an illness. As to the ability to appreciate the consequences of a decision respecting treatment, the respondent testified that if the appellant understood that her illness existed and that there was a reasonable treatment for it, then “she’d be able to apply it to herself”. He testified that the schizophrenia and delusions were “blurring her full understanding of the illness which in turn blurs her ability to appreciate it and apply it to herself”. That in turn, he testified, affects treatment and her decision whether or not to take it.

[8] The respondent concluded his testimony by stating that he was “just going to throw in” that:

[T]here is a fair amount of collateral evidence from her sister who supports this paranoia and the worry. There is evidence from the previous nursing home before we did get collateral, and there is evidence from the general internal medicine people on this floor. The social workers on this floor as well as there is material in the chart, I guess, from the nursing staff as well, that support that the paranoia is very I guess diverse.

[9] The respondent’s evidence about the medication regime and the effect of that medication on the appellant was confusing. It appeared that the first medication, including the anti-psychotic Risperidone, was at some point given to the appellant in her orange juice, “to improve her compliance”. It was unclear when this medication regime began, when the hospital began to give it to her in her orange juice and whether the appellant knew it was in her orange juice. Then, on December 21, the appellant was given Risperidone in an injectable form. However, the appellant objected because of side effects.

[10] According to the respondent, the appellant was saying that “[the drugs] were causing her to kill her and again, we were doing our best to accept the fact that she was telling us the truth but on our exams we couldn’t elicit anything that suggested that it was harmful”. He testified that there was no reason not to give the medication “from a side effect profile”. At some point, again it is unclear when, the medication was stopped.

[11] The appellant also testified. She testified that in addition to lupus, she was suffering from some dementia but denied that she had a history of schizophrenia. She attributed her concentration symptoms to powerful antibiotics she had taken about a year earlier. These drugs also caused muscle spasms, teeth damage and deterioration in her vision.

[12] The appellant believed some of her symptoms were from the pills that she was forced to take because, when she takes them, she has more trouble concentrating, more vision problems and has trouble walking. She went on:

I feel numb mentally and physically. I feel more angry and more depressed and I do start feeling as if people are harming me. Although I did before, but it appears from what [the respondent] said that I was being given medicine before I even realized it. So it could be as a result of this medicine entirely that I have made such, um, made such admissions that people were harming me but there was a particular patient who was here and she left recently about a half a week ago, and I believe she was harming me while I was sleeping.

[13] The appellant explained how she knew that this patient, Mrs. Moore, was harming her. She heard footsteps outside her bedroom at night and when she woke up in the morning she had bruises on her tailbone, a dent in her nose, pain in her face, ribs, stomach and sternum. She said this patient also stood outside her room saying terrible things. She also described an incident in a donut shop where this same patient attacked her and had to be restrained by her aide. After Mrs. Moore left, nothing else happened. She has not been waking up with any of the pains. She agreed that she was never treated for any physical injuries.

[14] The appellant was asked by the Chairperson as to what she understood about her medication. She responded: “Well I understand that when I take it I’m supposed to stop thinking this way.” She went on to testify that the medication didn’t help anything. “It didn’t change anything about the way I felt because I don’t believe I’m ill.” She further testified that she did not notice any benefits and had “all these side effects”. She believed that if she did not take the medication, she would feel much better. She also believed that it was possible she started to imagine things when she was on the medication.

(1) Reasons of the Board

[15] The Board began its reasons with a short review of the facts. In the course of doing so, it stated that the appellant agreed on December 21, 2009 to try an injectable antipsychotic. I point out that there was no evidence to support the finding that the appellant ever agreed to take the medication. The Board recounted the appellant’s testimony that she experienced some dementia from the drugs, that the drugs were of no benefit to her, and that she was being assaulted by another patient. According to the respondent, these attacks had not occurred; the respondent testified that she had schizophrenia and that the lupus was a separate issue.

[16] The Board found that the appellant was incapable because she was not able to appreciate that “there was a possibility that she was affected by the manifestation of a condition”. The illness had taken away her insight into her condition; she was unable to appreciate the “ongoing symptomatology which was linked directly to her illness”. The Board “preferred the evidence of the doctor with respect to whether attacks by another patient were actually occurring”. The Board concluded with the following:

In the respectful opinion of the Board member, the illness had stolen A’s ability to appreciate that she herself had a condition. As a result, she was unable to appreciate that treatment with antipsychotics might have benefit for her as she did not believe that she was affected by a condition. She was correspondingly unable to appreciate that if she refused treatment, her psychosis would continue unabated and potentially deteriorate. When asked, A did not perceive any potential negative consequences of refusing treatment, only positive benefits.

A stated that she did not want to take antipsychotics as they caused headaches, thirst, numbness.

(2) The Reasons of the Appeal Judge

[17] After reviewing the evidence, the findings of the Board, and the relevant legal principles, the appeal judge considered whether the corroboration requirement in s. 14 of the Evidence Act, R.S.O. 1990, c. E.23, had been met. She found that it had in these terms:

The Board was in the best position to hear the evidence and observe and assess the demeanor and comportment of both witnesses, all of which served to corroborate the Respondent’s testimony.

[18] The appeal judge then held that there was evidence to support the finding of incapacity “not only from Dr. Bhalerao, but also from Ms. Anten herself to satisfy the two-step test” for incapacity. The appeal judge was also satisfied that the Board’s reasons were sufficient when considered with the record.

B. THE ISSUES

[19] The appellant submits that the evidence was not sufficient to support a finding of incapacity, that the appeal judge erred in finding there was corroboration within the meaning of s. 14, and that the reasons of the Board were inadequate.

C. ANALYSIS

(1) Standard of Review

[20] The leading case on the interpretation and application of s. 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (“HCCA”) is Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. Absent an error of law, the standard of review is reasonableness.

(2) The Benefits of Treatment

[21] The statutory test for capacity in s. 4 of the HCCA comprises two criteria. First, that the person be able to understand the information relevant to making a treatment decision, and second, that the person be able to appreciate the reasonably foreseeable consequence of his or her decision: Starson, at para. 78.

[22] In Starson, Major J., speaking for the majority, began his analysis by making two key points about this test. First, the patient must be able to recognize the possibility that he or she is affected by a mental condition. Second, and of particular relevance to this case, the focus of the test is on the ability to appreciate the consequences of the decision, and not on actual appreciation. He described the inquiry in these terms, at para. 80:

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. [Emphasis added.]

[23] In my view, this inquiry must start with some evidence as to the foreseeable benefits and risks of treatment and the expected consequences of not having treatment.

[24] Two key findings by the Board focus on the benefits of treatment. First, the Board found that, as a result of her illness, the appellant was unable to appreciate that treatment with antipsychotics might benefit her. Second, because of her illness, the appellant was unable to “fully perform the risk-benefit analysis”: she was unable to weigh her concerns about side effects against “the fact that without treatment the psychosis would continue unabated”. Both of these findings depended on evidence that treatment with the anti-psychotic drug would indeed provide a benefit to the appellant. There was no evidence to support such a finding. To the contrary, while there was unchallenged evidence from the appellant of the side-effects of treatment, the respondent offered no evidence of any benefit to the appellant.

[25] The error by the Board is almost identical to the error made by the Board in Starson. Speaking for the majority, at paras. 97 to 102, Major J. pointed out that the Board’s finding that the patient in that case failed to appreciate the foreseeable benefits of treatment was not supported in the record. As he said at para. 98: “There was no evidence that the proposed medication was likely to ameliorate Professor Starson’s condition.”

[26] The Board in this case also made another error identified in Starson. At paras. 103-108 of that decision, Major J. considered the Board’s finding that Starson did not appreciate the consequences of his decision to refuse medication. He observed that there had been speculation that Starson’s condition had begun to deteriorate because of a lack of treatment “but little evidentiary basis to gage the validity of that speculation”. In this case, even speculation was missing. I find no evidence in this record to support the Board’s conclusion that “without treatment the [appellant’s] psychosis would continue unabated”.

[27] For these reasons, in my view, the finding of incapacity was unreasonable and cannot stand.

(3) Corroboration

[28] It was common ground that s. 14(1) of the Evidence Act applied in this case, and that, in order for the Board to uphold the respondent’s finding of incapacity, the respondent’s evidence had to be corroborated. Section 14(1) provides as follows:

An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:

1. A person who has been found,

i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act,

ii. incapable of personal care under the Substitute Decisions Act, 1992, or

iii. incapable by a court in Canada or elsewhere.

[29] The Board did not expressly consider the requirements of this provision, but the issue of corroboration was considered by the appeal judge. The appellant submits that the appeal judge erred in finding that the respondent’s evidence was corroborated. The appeal judge’s conclusion on corroboration was simply that the Board “was in the best position to hear the evidence and observe and assess the demeanour and comportment of both witnesses, all of which served to corroborate the Respondent’s testimony”. I have some difficulty with this conclusion.

[30] I accept that in an appropriate case a physician’s evidence can be corroborated, within the meaning of s. 14, by a patient’s own evidence. It would have been preferable if the appeal judge had identified what part of the appellant’s evidence corroborated the respondent’s evidence, since, on my reading of the record, the appellant contradicted the respondent on virtually every substantive issue. The appellant disputed the respondent’s evidence that she had a prior diagnosis of schizophrenia and that she had not been assaulted. She denied that her condition improved with medication or that she obtained any benefit from treatment. Without more, it is not apparent how any of the appellant’s evidence could be said to have corroborated the respondent’s evidence.

[31] The respondent’s evidence of the appellant’s mental illness stood alone, except for a peculiar comment at the conclusion of his testimony when, in his words, he was “just going to throw in” that:

[T]here is a fair amount of collateral evidence from her sister who supports this paranoia and the worry. There is evidence from the previous nursing home before we did get collateral, and there is evidence from the general internal medicine people on this floor. The social workers on this floor as well as there is material in the chart I guess, from the nursing staff as well, that support that the paranoia is very I guess diverse.

[32] While hearsay may well be admissible on this type of hearing, see Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15, there must be some basis for finding that the evidence is sufficiently reliable: see Starson, at para. 115. This testimony from the respondent was so entirely lacking in detail that it provided no basis upon which the Board could make a reasonable decision.

[33] This being said, given my conclusion on the insufficiency of the evidence to support a finding of incapacity, which is determinative, I need not deal further with the issue of corroboration or the adequacy of the Board’s reasons.

D. DISPOSITION

[34] Accordingly, I would allow the appeal and set aside the order of the Board.

[35] At the hearing of this appeal, which came almost three and a half years after the Board’s decision, we were informed that there had been several further decisions concerning the appellant’s capacity. In these circumstances, nothing would be gained by ordering a new hearing.

[36] I wish to conclude by thanking counsel for their submissions. I particularly wish to thank Ms. Szigeti, who originally acted as amicus counsel on this case but agreed to act as counsel for the appellant when the appellant, due to illness, was unable to attend the hearing and asked that Ms. Szigeti act as her counsel.

Released: “JIL” July 29, 2013

“M. Rosenberg J.A.”

“I agree. J.I. Laskin J.A.”

“I agree. M.H. Tulloch J.A.”