COURT OF APPEAL FOR ONTARIO

CITATION: Ferencz v. Vissers, 2016 ONCA 552

DATE: 20160711

DOCKET: C61861

Rouleau, Hourigan and Pardu 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

BETWEEN

Dr. Joseph Ferencz

Appellant

and

Ian Vissers

Respondent

Janice Blackburn, for the appellant

Russell W. Browne, for the respondent

Heard: July 4, 2016

On appeal from the order of Justice Jane A. Milanetti of the Superior Court of Justice, dated February 9, 2016, allowing an appeal from the decision of the Consent and Capacity Board, dated March 20, 2015.

ENDORSEMENT

[1] The appellant, Dr. Joseph Ferencz, appeals from an order setting aside a decision of the Consent and Capacity Board, determining that the respondent, Ian Vissers, was incapable with respect to medical treatment, within the meaning of s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A.

A. Facts

[2] The respondent’s attending physician, Dr. Usha Parthasarathi, determined that the respondent was incapable of consenting to, or refusing, specified medications and blood testing, and served him with a Form 33 under the Mental Health Act, R.S.O. 1990, c. M.7. The respondent applied to the Consent and Capacity Board to review the finding of incapacity.

[3] Under s. 75(2) of the Health Care Consent Act, 1996, a hearing must be convened within seven days after the Board receives a patient’s form requesting that the Board review a finding of incapacity.

[4] At the outset of the hearing before the Board, the appellant advised the Board that Dr. Parthasarathi was on vacation, and that he was covering for her on the psychiatric unit. The appellant had been the attending physician for the respondent years earlier. Neither the respondent nor his counsel objected to the absence of Dr. Parthasarathi. She had made detailed clinical notes, which the appellant submitted at the hearing. He testified that he agreed with her opinion that the respondent was incapable of consenting to treatment.

[5] The three-person panel of the Board unanimously confirmed the finding of the respondent’s treatment incapacity.

[6] The respondent appealed to the Superior Court of Justice and raised the issue of procedural fairness for the first time on appeal. The appeal judge ordered a new hearing on the basis that the Board should have had the respondent’s current attending physician before it to give testimony.

[7] The appellant now appeals that order.

B. Analysis

(1) Did the appeal judge err in holding that fairness required that the respondent’s attending physician give oral evidence at the hearing?

[8] The appeal judge found that fairness required that the attending physician give evidence before the Board:

While I acknowledge that Mr. Vissers’ counsel made neither complaint nor objection to Dr. Ferencz’s role (when asked if there were any preliminary issues), an objection is now being raised on Mr. Vissers’ behalf. This entire process is about him. The decision is one that is of fundamental importance to him. He should thus have the opportunity to hear what the doctor who actually found him incapable currently would say, and be in a position to ask her questions through counsel.

I find that the preliminary concern about the absence of Mr. Vissers’ current treating physician causes me to find that the matter should be sent back to the Board for a hearing de novo at a date and time when Dr. Parthasarathi is available to give testimony.

[9] In our view, the appeal judge erred in setting aside the decision of the Board on a basis raised for the first time on appeal. See M.M. v. De Souza, 2016 ONCA 155, at para. 25. The hearing might well have unfolded in a different fashion or been adjourned for a short time had the objection to the evidence of Dr. Ferencz been raised at that time, but it was not.

[10] Furthermore, before the Board, the burden of proof rests with the health care practitioner to prove incapacity on a balance of probabilities. If the Board is at any time unsatisfied with the evidence of a health care practitioner because he or she is not knowledgeable enough about the patient, it may conclude that the statutory presumption of capacity under the Health Care Consent Act, 1996 has not been displaced. That did not occur in this case. The Board was in the best position to weigh the evidence of Dr. Ferencz, knowing that he was not the physician who signed the Form 33.

(2) Was the Board’s decision reasonable?

[11] Section 4(1) of the Health Care Consent Act, 1996 describes the elements of capacity as follows:

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.

[12] The respondent was detained as a result of a verdict that he was not criminally responsible on account of mental disorder on a charge of uttering threats to cause death. He has a long history of mental illness and has been diagnosed with schizophrenia. The Board reviewed his medical history and condition and concluded, citing the correct test from Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, that the respondent was “unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the treatment proposed.”

[13] As the Board noted, the court held in Starson, at para. 79:

[A] patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

[14] In the present case, there was an ample basis in the record before the Board to enable it to conclude that the respondent was incapable with respect to the proposed treatment. The Board’s decision was reasonable.

[15] Accordingly, the decision of the appeal judge is set aside, and in its place there will be an order confirming the decision of the Board of March 20, 2015, determining that the respondent was incapable with respect to the proposed treatment as of the date of the hearing.

[16] There will be no order as to costs.

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”