COURT OF APPEAL FOR ONTARIO

CITATION: Wakeling v. Kolla, 2015 ONCA 881

DATE: 20151211

DOCKET: C60461

Weiler, Pardu and Benotto JJ.A.

In the matter of an appeal from a decision of the Consent and Capacity Board from a hearing of an application under section 32(1) of the Health and Consent Act, 1996 S.O. 1996, c. 2, Sch. A, as amended

BETWEEN

Andrew Wakeling

Appellant

and

Dr. Nathan Kolla

Respondent

D’Arcy J. Hiltz, for the appellant

Kendra Naidoo, for the respondent

Heard and released orally: December 9, 2015

On appeal from the judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated April 30, 2015.

ENDORSEMENT

[1] The appellant appeals the dismissal of his appeal by a Superior Court Appeal Judge from the decision of the Consent and Capacity Board that he is a person who is incapable of consenting to treatment.

[2] In coming to its conclusion that the appellant was incapable of consenting to treatment, the findings of the Board included the following:

• the appellant was suffering from a schizoaffective disorder;
• the appellant’s symptoms included paranoid delusions, auditory hallucinations and manic symptoms;
• the appellant did not believe he had any manifestations of mental illness;
• the appellant’s inability to recognize that he was affected by the manifestations of a mental illness meant he was unable to appreciate the consequences of his decision to refuse medication.

[3] The Board upheld the finding of a medical practitioner that the appellant “was incapable of consenting to treatment with antipsychotics, mood stabilizers, side effects medications and benzodiazepines.”

[4] The Superior Court Appeal Judge dismissed the appellant’s appeal from the Board’s decision.

[5] On the initial appeal and before us, the appellant raises three grounds of appeal. They relate to the sufficiency of the Board’s reasons, whether the Board’s decision was supported by the evidence and was reasonable and whether the Board understood and applied the correct test for capacity to consent.

[6] In relation to the first ground of appeal, the sufficiency of the reasons, the appellant points out several acknowledged clerical or typographical errors. The two errors do not render the reasons unintelligible and had no impact on the result. In assessing the sufficiency of the Board’s reasons, the reviewing judge was entitled to have regard to the entirety of the record as he did. The Board’s chain of analysis was clear and the reviewing judge did not err in dismissing this ground of appeal.

[7] In relation to the second and third grounds of appeal, we see no error in the Superior Court Appeal Judge’s reasons and would dismiss the appeal on these grounds for the reasons he gave.

[8] The appellant further submits that his inability to recognize that he was affected by the manifestations of a mental illness did not relieve the Board from considering whether he should be able to refuse treatment because of the side effects of the medication. He argues that there is no evidence that the appellant was incapable with respect to side effect medication in general such as general medication for mood or benzodiazepine.

[9] In his submissions before the Board the appellant did not ask the Board to separate treatment respecting medications as he is now doing. Nor was this argument made on the initial appeal. The appellant has provided a decision of a Board that appears to indicate that an individual who is incapable of consenting to treatment must nevertheless be given information respecting side effect medication.

[10] That is not the situation here. The appellant was given information with respect to side effect medication but he said the benefits of the medication would not be applicable to him because he does not have an illness. The Board found the appellant was incapable with respect to all of the proposed medication and the record supports this conclusion.

[11] Viewed as a whole the Board’s decision was reasonable and the reviewing judge did not err in dismissing the appellant’s appeal. Accordingly, the appellant’s appeal is dismissed.

“Karen M. Weiler J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”