COURT OF APPEAL FOR ONTARIO

CITATION: Conway v. Darby, 2013 ONCA 538

DATE: 20130904

DOCKET: C54751

Weiler, Epstein and Lauwers JJ.A.

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended

AND IN THE MATTER OF Paul Conway, a patient at St. Joseph’s Health Care Hamilton

BETWEEN

Paul Conway

Appellant

and

Dr. Padraig L. Darby

Respondent

Paul Conway, in person

Joseph Di Luca and Erin Dann, amicus curiae

Janice E. Blackburn, for the respondent

Heard: August 27, 2013

On appeal from the decision of Justice Kevin Whitaker of the Superior Court of Justice, dated November 14, 2011.

ENDORSEMENT

[1] In 1984, the appellant, Paul Conway, was found not guilty by reason of insanity on a charge of sexual assault. Since then, Mr. Conway has been detained in various psychiatric facilities. He has never been treated with anti-psychotic medication.

[2] In 2005 Mr. Conway was transferred to the Centre for Addiction and Mental Health in Toronto (“CAMH”) where the respondent, Dr. Padraig Darby, became his treating physician.

[3] In June of 2007, Dr. Darby found Mr. Conway incapable of consenting to being treated with anti-psychotic medication pursuant to the provisions of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended. Mr. Conway applied to the Consent and Capacity Board to review that decision under s. 32 of the Act. In July 2007, the Board, comprised solely of Mr. Theodore Nemetz, confirmed Dr. Darby’s decision. Mr. Conway appealed and ultimately the matter was sent back to the same Board for further cross-examination of Dr. Darby.

[4] The resumed hearing took place before Mr. Nemetz in the fall of 2009. The Board, in its decision released November 24, 2009, again affirmed Dr. Darby’s finding that Mr. Conway was incapable with respect to treatment. Mr. Conway’s further appeal from the Board's decision was dismissed by Whitaker J. Mr. Conway appeals that decision.

[5] Before this court Mr. Conway, assisted by Ms. Dann, made submissions on his own behalf. Mr. Conway argues that he has been denied the right to counsel of his choice and that the Board erred in finding that he had been appropriately diagnosed with a psychosis. The relief Mr. Conway seeks is an order that he has capacity to consent to treatment or an order that the matter be re-heard before a differently constituted Board.

[6] At the outset of his submissions, Mr. Di Luca suggested that Mr. Conway’s circumstances have changed such that no live controversy exists that affects the rights of the parties. The matter is therefore moot.

[7] Mr. Conway has been transferred out of CAMH and is currently a patient at St. Joseph’s Health Care in Hamilton under the care of a different treatment team. The medical professionals now assisting Mr. Conway have introduced a new treatment program for him that does not involve pharmacology. Mr. Conway is cooperating with this new program and the evidence is overwhelming that the program is having a positive effect on him. No one is proposing any treatment that involves Mr. Conway’s being medicated. And, given the improvement in Mr. Conway’s condition, it is unlikely that any anti-psychotic medication will be recommended in the near future. It follows that Mr. Conway’s capacity to consent to medication is no longer in issue.

[8] There is no disagreement over the proposition that this case is now moot, nor do the parties argue that we should, in any event, exercise our discretion and hear the matter.

[9] The only debate involves the effect of our disposing of the case as being moot on Mr. Conway’s on-going rights to resist the administration of medication.

[10] We agree with Mr. Di Luca that Mr. Conway would suffer no prejudice if we were to quash the appeal as moot. Although s. 32(5) of the Act prevents Mr. Conway from applying for a review of a finding of incapacity for a period of six months after the final disposition of an application for review, if we were to quash the appeal as moot, Whitaker J.’s decision to uphold the Board’s finding of incapacity would constitute the “final disposition” of an application for review of a finding of incapacity pursuant to s. 32(5) of the Act. see: K.M. v. Shammi, 2012 ONSC 1102. Over six months have gone by since that decision so that, in the event of pharmacological treatment with antipsychotic medication again being prescribed, the door is open to Mr. Conway to apply for a review of any finding of incapacity to consent to any such treatment.

[11] As well, we note that s. 32(5) of the Act also gives the Board jurisdiction to grant leave to Mr. Conway to make a new application even within the six months if there has been a material change in circumstances that would justify reconsideration of Mr. Conway’s capacity. It was agreed by the parties that if there were a change in Mr. Conway’s current treatment circumstances noted above, he would clearly qualify for leave.

[12] The issues Mr. Conway and amicus raise are important but given the change in Mr. Conway’s circumstances relating to his treatment plan, they have become academic.

[13] Accordingly the appeal is quashed as moot.

“K.M. Weiler J.A.”

“G. Epstein J.A.”

“R. Lauwers J.A.”