COURT OF APPEAL FOR ONTARIO

CITATION: M.M. v. de Souza, 2016 ONCA 155

DATE: 20160225

DOCKET: C60350

Simmons, LaForme and Huscroft 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.

BETWEEN

M.M.

Appellant

and

Dr. Darina de Souza

Respondent

M.M., acting in person

Mercedes Perez, appearing as amicus curiae

Paul J. Davis, for the respondent

Heard: December 7, 2015

On appeal from the order of Justice David G. Stinson of the Superior Court of Justice, dated April 10, 2015, with reasons reported at 2015 ONSC 2362, dismissing an appeal from a decision of the Consent and Capacity Board, dated October 21, 2014, with reasons reported at 2014 CarswellOnt 17250.

Huscroft J.A.:

[1] The Consent and Capacity Board confirmed Dr. Darina de Souza’s finding that the appellant was incapable of consenting to treatment for a mental disorder and confirmed her involuntary status. The appellant appealed the Board’s finding of incapacity, but not her involuntary status. The Board’s decision was upheld by the appeal judge and the appellant now appeals to this court.

[2] I have concluded that the Board’s decision concerning the capacity of the appellant to make treatment decisions is reasonable, as the appeal judge concluded.

[3] Accordingly, I would dismiss the appeal for the reasons that follow.

Background

[4] The appellant has been diagnosed with paranoid schizophrenia. She has been hospitalized several times as a result of her mental disorder prior to the admission at issue and has taken antipsychotic medication previously. She presented at the emergency room of her local hospital five times in the two months preceding the admission that triggered this proceeding.

[5] On October 8, 2014, staff at the appellant’s dental office called police in response to her loud, profane, and aggressive behaviour. The police took the appellant to the hospital. Her treating psychiatrist, Dr. de Souza, found that she was incapable of consenting to treatment and incapable of managing her property and completed a Certificate of Involuntary Admission.

[6] The appellant asked the Board to review Dr. de Souza’s findings of incapacity as well as her committal to involuntary status.

Decision of the Board

[7] The Board found that the appellant suffers from a mental disorder, paranoid schizophrenia. The Board found, further, that although she understands information concerning her diagnosis and treatment, the appellant is unable to apply this information to her circumstances. She lacks insight into her condition as a result of her disorder. The appellant considers she does not have a mental disorder and does not acknowledge that her behaviours are symptoms of a disorder that have affected her various relationships.

[8] The Board rejected the appellant’s testimony about how she weighs a decision to accept or reject treatment and found that she is unable to weigh the benefits against the risks. Accordingly, the Board concluded that the appellant was incapable of consenting to treatment of a mental disorder.

[9] The Board concluded that it was not established that the appellant was unable to understand the information relevant to, or to appreciate the consequences of, a decision or lack of decision concerning the management of her property. Accordingly, the Board found that the appellant was capable of managing her property.

[10] Finally, the Board found that the appellant’s condition improved when she took medication and that the criteria for involuntary status in s. 20(1.1) of the Mental Health Act,R.S.O. 1990, c. M.7, were satisfied. As a result, the Board confirmed the appellant’s involuntary status.

Decision of the Appeal Judge

[11] The appeal judge held that the Board properly considered the appellant’s ability to appreciate, weigh, and apply information to her circumstances and that the Board correctly understood and applied the statutory test for incapacity. He held, further, that the evidence supported the Board’s conclusion that the appellant lacks insight into her disorder; does not recognize that her behaviours are a symptom of that disorder; and is unable to appreciate that treatment will improve her behaviours. The appeal judge upheld the Board’s decision that the appellant was incapable of consenting to treatment.

Analysis

The standard of review

[12] The decision of the Board applying the law to the evidence is subject to review on a standard of reasonableness: Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587, at para. 13, leave to appeal refused [2008] S.C.C.A. No. 97.

[13] The respondent invited the court to revisit the standard of review for decisions of the Board on questions of law involving its home statute and related statutes, given developments since Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, including Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. It is not necessary to do so for purposes of this appeal.

Is the Board’s decision concerning the appellant’s capacity to make treatment decisions about antipsychotic medication reasonable?

[14] The test for capacity to make treatment-related decisions is set out in s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A:

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.

[15] In her testimony before the Board, Dr. de Souza conceded that the first part of the test was satisfied: the appellant is able to understand the information relevant to making decisions about her treatment. The question before the Board concerned the second part of the test – the appellant’s ability to appreciate the reasonably foreseeable consequences of a decision about being treated with antipsychotic and side effects medications.

[16] Amicus submits that there is a complete absence of factual foundation to establish the benefits to the appellant of taking antipsychotic medication. Further, the evidence before the Board demonstrated that the appellant had the ability to appreciate the reasonably foreseeable consequences of treatment with antipsychotic medication and that she refused to take antipsychotic medication because of its side effects.

[17] I do not accept this submission.

[18] First, it was not necessary for the Board to have testimony concerning the benefits or side effects of proposed treatment. The Board is tasked with making decisions on the question of capacity, not on the advisability of a proposed treatment regime from a medical perspective: Giecewicz, at para. 43.

[19] Second, although the appellant apprehended negative side effects from treatment with antipsychotic medication, it does not follow that she has the capacity to make the treatment decision concerning that medication. Dr. de Souza testified that the appellant’s insight into her disorder is impaired and that the appellant does not believe that she is suffering from a mental disorder. It is foreseeable that a decision to refuse antipsychotic treatment would result in intensification of delusions, thought disorder, and disorganized behaviour.

[20] Dr. de Souza’s evidence was corroborated by the appellant’s evidence in addition to consultation reports from the appellant’s five visits to the ER. Although the authors of these reports did not testify, the Board is permitted to rely on hearsay evidence in determining whether or not Dr. de Souza’s evidence was corroborated: Starson, at para. 115; Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, at para. 32; Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15. The Board also had evidence from additional sources, including letters from the appellant’s father and sister.

[21] In these circumstances, the question is not whether there was any evidence supporting the Board’s decision but, instead, whether the Board reached a reasonable decision given that evidence.

[22] The Board found that the appellant lacks insight into her condition as a result of her disorder and is unable to weigh the benefits against the risks of antipsychotic medication because she does not recognize the past benefits or the anticipated benefits of the treatment. As Justice Major explained in Starson, at para. 79: “[I]f the patient’s condition results in [her] being unable to recognize that [s]he is affected by its manifestations, [s]he will be unable to apply the relevant information to [her] circumstances, and unable to appreciate the consequences of [her] decision.” The appellant’s testimony before the Board demonstrated the problem. She both acknowledged and denied that she suffers from a mental disorder. She refused to accept the views of family and treatment providers and blamed others for her difficulties.

[23] In short, the Board’s conclusion that the appellant is not able to appreciate the consequences of her decision to accept or reject treatment is supported by the record and is reasonable. There is no basis for this court to interfere with it.

Is the Board’s decision concerning the appellant’s capacity to make treatment decisions about side effects medications reasonable?

[24] Amicus submitted that the Board’s decision does not support the conclusion that the appellant is incapable of consenting to treatment with side effects medications as well as antipsychotic medications, and is unreasonable on that account. This argument was not raised before the Board or before the appeal judge.

[25] In general, this court will not entertain new issues on appeal save in exceptional circumstances: Sawdon Estate v. Sawdon, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 75. Amicus failed to demonstrate any such circumstances and, as a result, I would not entertain this argument.

Disposition

[26] Accordingly, I would dismiss the appeal. I would make no order as to costs.

Released: February 25, 2016 “GH”

“Grant Huscroft J.A.”

“I agree Janet Simmons J.A.”

“I agree H.S. LaForme J.A.”