COURT OF APPEAL FOR ONTARIO

CITATION: Othen v. Robertson, 2016 ONCA 268

DATE: 20160413

DOCKET: C60868

Sharpe, Juriansz and Roberts JJ.A.

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

BETWEEN

Lawrence Othen

Applicant (Appellant)

and

Dr. David Robertson

Respondent (Respondent in Appeal)

Lawrence Othen, in person

D’Arcy J. Hiltz, as amicus

Alexandra V. Mayeski, for the respondent

Heard: April 8, 2016

On appeal from the judgment of Justice Stephen E. Firestone of the Superior Court of Justice, dated January 23, 2015.

ENDORSEMENT

[1] In our view, the Superior Court appeal judge did not err in dismissing the appeal from the decision of the Consent and Capacity Board that the appellant was incapable of consenting to treatment with antipsychotic medications.

[2] Amicus argues that the appeal judge erred by considering the subsequent decision of the Board changing the appellant’s status to that of an involuntary patient.

[3] We disagree.

[4] Evidence of the appellant’s post-hearing status was referenced by the appeal judge only as background information. In our view, he properly assessed the issue of capacity to consent to treatment on the basis of the record before the Board when it made that determination and his assessment was not materially influenced or affected by what transpired at the subsequent hearing.

[5] The amicus submits that the Board’s decision that he lacked capacity to consent was unreasonable.

[6] We disagree.

[7] As the Board found, and the Superior Court appeal judge confirmed, there was clear evidence that the appellant suffers from a mental disorder and that he refused to acknowledge that he was affected by that mental disorder. The Board found that the respondent did not prove that the appellant was incapable of understanding the information relevant to making a decision about the treatment. However, the Board found that the respondent had demonstrated that the appellant was not able to appreciate the reasonably foreseeable consequence of a decision or lack of decision.

[8] In our view, there was ample evidence to support that determination. Dr. Hauck testified that repeated attempts had been made to discuss treatment with the appellant but the appellant’s delusions rendered him incapable of understanding the information relevant to the treatment decision. Dr. Hauck explained that, due to his illness, the appellant:

(1) Did not acknowledge any sort of understanding of a mental health diagnosis;

(2) Did not understand the proposed treatment or the consequences of accepting or refusing treatment; and

(3) Any choices the appellant made were on the basis of his delusional beliefs.

[9] Finally, we do not agree that the appellant was denied a fair hearing. Any curtailment in the cross-examination of Dr. Hauck was on matters tangential to the issues before the Board.

[10] For these reasons, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“G.R. Juriansz J.A.”

“L.B. Roberts J.A.”