COURT OF APPEAL FOR ONTARIO

CITATION: Coburn v. Wilkie, 2016 ONCA 876

DATE: 20161121

DOCKET: C61086

MacPherson, Blair and Watt 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.

AND IN THE MATTER OF Lillian Coburn, a patient at Centre for Addiction and Mental Health, Toronto, Ontario

BETWEEN

Lillian Coburn

Applicant

(Appellant)

and

Dr. Treena Wilkie

Respondent

(Respondent in Appeal)

Anita Szigeti and Joanna Weiss, for the appellant

Kendra Naidoo, for the respondent

Heard: November 15, 2016

On appeal from the order of Justice Edward Belobaba of the Superior Court of Justice, dated September 1, 2015.

BY THE COURT:

[1] Ms. Coburn appeals from the order of Justice Belobaba dismissing her appeal from an order of the Consent and Capacity Board. The Board had affirmed the finding of Dr. Wilkie that Ms. Coburn was incapable of consenting to treatment involving the administration of anti-psychotic and mood stabilizing medication for a diagnosed psychiatric ailment.

[2] On her behalf, Ms. Szigeti argues that the appeal judge erred:

(a) in finding that the Board had applied the correct test for capacity; and,

(b) in failing to find that the Board’s decision was unreasonable, both generally and because there had been a breakdown in the doctor-patient relationship between Ms. Coburn and Dr. Wilkie and her resident psychiatrist Dr. Cyr.

[3] We would not give effect to these submissions.

The Legal Test for Capacity

[4] There are two elements of the test for determining whether a person is capable with respect to treatment under s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c.2 (“the HCCA”). A person is capable if the person is able (i) to understand the information that is relevant to making a decision about the treatment; and, (ii) to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[5] This proceeding and the appeal turn on the second element of the test. It is not contested that Ms. Coburn is able to understand the information with which she has been provided concerning the treatment proposed by her team of psychiatrists at CAMH, Dr. Wilkie and Dr. Cyr. The issue is whether she is able to appreciate the reasonably foreseeable consequences of a decision to reject that treatment.

[6] Doctors Wilkie and Cyr propose to treat Ms. Coburn with anti-psychotic medications and mood stabilizing medications for a mental condition they have diagnosed as schizoaffective disorder (bipolar type), manifesting itself – amongst other ways – in periods of delusion and paranoia. Ms. Coburn does not wish to undergo that treatment. She says that she has taken such medication before without benefit (the medical evidence is to the contrary), that she does not like the side effects, and that any symptoms she is displaying are the result of her various physical ailments (fibromyalgia and obstructive sleep apnea) and are not the result of a mental condition, as her physicians assert.

[7] In its decision dated May12, 2015, the Board held that Ms. Coburn was not able to appreciate the consequences of her decision to reject the proposed treatment. Belobaba J. (the appeal judge) upheld the Board’s decision.

The Test Applied

[8] In support of her submission that the appeal judge erred in holding that the Board applied the proper test for capacity, Ms. Szigeti fastens upon a remark made by him to the effect that “several sentences” in the Board’s reasons did not align with what was said by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. Quoting from Starson, at para. 79, the appeal judge stated that “while a patient ‘must be able to recognize the possibility that he is affected’ by a mental condition, he does not have to “agree with the attending physician’s opinion regarding the cause of the condition”. He then observed that the sentence in the Board’s decision stating that “LC is not able to appreciate there was any possibility she was suffering from any delusional or paranoid thinking” misstated the legal requirement.

[9] In Ms. Szigeti’s submission, having found this misstatement of the legal requirement, the appeal judge was required to hold that the Board had erred in law and therefore to set aside its decision.

[10] We are not persuaded by this submission, for several reasons.

[11] First, it is not clear to us that the isolated sentence referred to above misstates the proposition articulated in Starson. Indeed, it appears to track the first part of the Starson proposition cited by the appeal judge quite closely.

[12] Secondly, although the isolated sentence makes no reference to Ms. Coburn’s right to disagree with the physicians, the comment by the Board was not made in that context. It was made in support of the inference that Ms. Coburn had no trust in the health practitioners at CAMH because she could not make the connection between her health issues and her mental health issues. Nonetheless, the Board was clearly alive to the patient’s right to disagree because it based its distinction between this case and Starson on that very point (Professor Starson could appreciate the consequences of his decisions and was entitled to disagree and decline treatment, even if it may not have wise to do so; Ms. Coburn did not have the necessary appreciation to enable her to do so).

[13] Finally, the appeal judge did not base his decision on the “several sentences” he referred to. He based his decision on a review of the Board’s reasons as a whole and was satisfied, having done so, that the Board had applied the proper test for capacity under s. 4(1) of the HCCA, in spite of the isolated misstatements that were identified. We agree.

[14] In a further submission, advanced during oral argument, Ms. Szigeti appeared to argue that the Board erred by applying the test in a more stringent fashion than that called for in Starson. The Board focussed too closely on the label “mental condition”, she contended, and too little on the fact that the symptoms Ms. Coburn was experiencing from her fibromyalgia and sleep apnea problems – fearfulness, anxiety, stress, irritability, loss of concentration, lack of sleep – can affect mood and behavioural patterns in the same way as a mental disorder diagnosed in the form of a particular label. “Labelling” should not determine the test.

[15] Starson sets a low threshold and makes clear that a patient’s refusal to acknowledge a mental illness is insufficient, on its own, to prove incapacity. Here, Ms. Coburn was mindful of the fact that she was struggling with a number of symptoms that manifest themselves as mood or behavioural issues. Because she declined to accept their characterization under a “mental condition” label does not detract from the fact that she recognized them and their impact on her. The Board was wrong, therefore, to hold that Ms. Coburn was unable to appreciate that she was suffering from a mental condition and to deprive her of her right to disagree with the doctors’ diagnosis and proposed treatment.

[16] Ms. Szigeti worries that if the Board begins to parse each and every symptom exhibited by a patient to determine whether that symptom amounts to a “mental condition”, the Board will be returning to a pre-Starson environment where an uncooperative patient is required to show that he or she is on board with everything the doctors are saying.

[17] We do not read the Board’s decision as simply an exercise in “labelling” or as pointing towards any such result, however. As noted above, the Board found that Ms. Coburn was suffering from a delusional disorder and a mood disorder caused at least in part by a mental condition. Ms. Coburn did acknowledge that she was suffering from symptoms such as fearfulness, anxiety, stress, lack of sleep and irritability; but she denied that she was experiencing periods of delusion and paranoia.

[18] While it is true that a patient need not agree with or accept a proposed treatment, Starson does not eliminate the distinction between physical and mental conditions and the appreciation of their consequences. The Court made it clear that a patient must be able to recognize the possibility that he or she is affected by a mental condition and to appreciate the consequences of the decision not to agree with a treatment proposal. As Major J. said on behalf of the majority, at para. 79:

While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. …

As a result, 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.

[Emphasis added.]

[19] Here, the Board arrived at its decision by following that very path. The Board specifically examined the evidence by asking itself “Did the evidence establish that LC was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question?” – the second branch of the s. 4(1) test. This was the proper approach.

[20] The Board accepted that Ms. Coburn’s symptoms could be attributable, in part, to her pain, sleep deprivation and her unhappiness at being in hospital. After reviewing the record and the testimony of Dr. Wilkie, Dr. Cyr and Ms. Coburn, however, the Board determined that her symptoms were caused, at least in part as well, by her mental condition and that she was not able to appreciate that she was suffering from any delusional or paranoid thinking or that there was the possibility of any link between her symptoms, as manifested, and a mental condition. The Board found that Ms. Coburn was “suffering from a delusional disorder and … a mood disorder that at least in part is caused by a mental condition although complicated by her sleep and pain issues.” It concluded that:

Without being able to make the connection between the manifestations of mental disorder, and its effect on her, [Ms. Coburn] is unable to make a risk/benefit analysis of taking or not taking the medications designed to deal with these symptoms, a fact which renders her incapable of making decisions regarding treatment of her condition.

[21] These findings were open to the Board on the record. Viewing its reasons as a whole, we are satisfied – as was the appeal judge – that the Board applied the proper test for capacity.

The Board’s Decision was not Unreasonable

[22] Ms. Szigeti also argues that the Board’s decision was unreasonable because the evidence did not support a finding that Ms. Coburn was suffering from a mental condition. This argument overlaps with the former submissions, because it goes to the underpinnings of those submissions, and we reject it for similar reasons.

[23] There is ample support in the record for the finding. Ms. Coburn’s denial that she is suffering from a mental condition is hardly dispositive. Indeed, as mentioned above, it is reflective of the problem. Nor does the fact that the treating physicians recognized that some of Ms. Coburn’s symptoms could flow from her various physical ailments preclude a diagnosis that she was also suffering from a mental condition manifesting itself in delusions and paranoia.

[24] Dr. Cyr, one of Ms. Coburn’s attending psychiatrists, testified that Ms. Coburn was suffering from a mental condition known as schizoaffective disorder, characterized by both psychotic and manic symptoms and manifesting itself in persecutory delusions, difficulty sleeping and wide mood shifts. This schizoaffective disorder impaired her cognitive functioning. Dr. Cyr also testified that Ms. Coburn’s physical complaints could not explain all of her symptoms and that the burden of her symptoms was attributable to her mental condition and went beyond what would be expected of someone who was experiencing a normal reaction to stress. In her opinion, Ms. Coburn was unable to appreciate the reasonably foreseeable consequences of a decision regarding the proposed treatment. The Board was entitled to accept this evidence, as it did.

[25] In the end, the Board determined that, unlike Professor Starson, Ms. Coburn was unable to appreciate the consequences of her decision to reject treatment. She was unable to evaluate the information provided to her by medical personnel. She was unable to appreciate that she was exhibiting continuous manifestations of paranoia and was at times delusional as distinct from simply experiencing pain as a result of her physical ailments such as fibromyalgia and sleep apnea, as she claimed. These findings were open to the Board on the record and were not unreasonable.

[26] The Board’s decision is entitled to deference.

The Doctor-Patient Relationship

[27] Like the appeal judge, we do not think the record supports the ground of appeal that there had been a clear breakdown in the doctor-patient relationship.

[28] As noted, the Board found that because of her inability to appreciate that there was any possibility she was suffering from any delusional or paranoid thinking, Ms. Coburn has absolutely no trust in the health practitioners at CAMH or in any doctors paid by OHIP. This undoubtedly explains the tension between her and her physician care-givers, but must not be uncommon in similar patient-doctor situations and cannot by itself establish a breakdown in relations.

[29] Despite this state of affairs, it appears that there were extensive discussions between the doctors and Ms. Coburn, albeit sometimes tinged with an element of hostility on her part. There is nothing to indicate that Ms. Coburn failed to receive any necessary information regarding her proposed treatment as a result of these issues or that they in any way interfered with her ability to understand the information she received. She was simply unable to evaluate the impact of that information and to appreciate the consequences of refusing that treatment.

[30] We would not give effect to this ground of appeal.

Disposition

[31] For the foregoing reasons, the appeal is dismissed.

Released: November 21, 2016

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”