Court of Appeal for Ontario

Date: 2017-01-13 Docket: C61327

Judges: Strathy C.J.O., MacPherson and Hourigan JJ.A.

Between

D. H. Appellant

and

Dr. Joseph Ferencz Respondent

Mercedes Perez, appearing as amicus curiae Janice Blackburn, for the respondent

Heard: January 11, 2017

On appeal from the order of Parayeski J. of the Superior Court of Justice, dated November 20, 2015.

Endorsement

[1]

The Consent and Capacity Board (the "Board") found the appellant incapable with respect to mood stabilizers (lithium), anti-psychotic, benzodiazepines and anticholinergic medication, in both oral and injectable form. That decision was upheld on appeal at the Superior Court.

[2]

The appellant now appeals to this court. For the reasons that follow, we would dismiss this appeal.

Facts

[3]

The appellant is 49 years old. Starting in 2010, he was repeatedly hospitalized in psychiatric facilities for short periods of time. Following an incident on October 23, 2014, the appellant was charged with assault, breach of probation, and forcible seizure of a child. He was found not criminally responsible on those charges, and has been detained at St. Joseph's Healthcare Hamilton since March 16, 2015.

[4]

The appellant's attending psychiatrist, Dr. Ferencz, diagnosed him with bipolar disorder. On May 21, 2015, Dr. Ferencz found the appellant not mentally capable to consent to treatment for this disorder. The appellant applied to the Board to challenge this incapacity finding. A hearing proceeded on May 28, 2015. The Board found the appellant incapable with respect to the four classes of medication listed above.

[5]

The appellant submits that the hearing at the Board was procedurally unfair, in that the requirements of s. 20 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 were not complied with. He further submits that the evidence as a whole demonstrates that the Board's decision was unreasonable. Finally, he submits that the Board's reasons were inadequate, in particular the finding of incapacity with respect to medications other than lithium.

Analysis

[6]

Prior to the Board hearing, the appellant prepared written materials that were included in his clinical record at his request. He also elected to testify at the hearing. His oral testimony appeared to contradict at least part of the written materials, and the Board chair posed questions to the appellant to pursue the contradictions. The appellant was represented by counsel at the hearing, who did not object to the chair's line of questioning.

[7]

On appeal, amicus submits that the chair's failure to refer the appellant to each and every specific point in the written materials that was contradictory was unfair and a violation of s. 20. We reject this submission.

[8]

A central issue before the Board was whether the appellant is able to admit to the possibility that he is affected by the manifestations of bi-polar disorder. In his oral testimony before the Board there was a suggestion that he is able to admit to that possibility. That testimony was not entirely consistent with the appellant's written statement. The specific written statement was put to the appellant and questions were asked of him exploring the inconsistency. In our view, to the extent that s. 20 may be applicable to a Board hearing, it was complied with in this case.

[9]

Amicus argues that the decision of the Board respecting lithium was unreasonable, when the totality of the evidence is considered. We disagree. The Board is a highly specialized tribunal. It correctly stated the statutory test for capacity found in the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, and carefully analyzed the evidence and relevant case law.

[10]

In Fleming v. Starson, 2003 SCC 32, [2003] 1 S.C.R. 722, the Supreme Court of Canada held, at para. 5, that on questions of treatment incapacity, the Board's conclusion "must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence". We see no basis to interfere with the Board's conclusion. The appellant has not demonstrated that the Board made an error of law or misapprehended the evidence.

[11]

Amicus argues that there was no factual foundation for the Board's finding of incapacity with respect to antipsychotics, benzodiazepines and anticholinergics. He submits that Dr. Ferencz only discussed lithium with the appellant, and that the other medications were only mentioned in a single sentence in the summary submitted to the Board.

[12]

We note that this argument was not raised by the appellant at the first level of appeal. This court will generally not entertain new issues on appeal, save for exceptional circumstances: M.M. v. De Souza, 2016 ONCA 155. We are not satisfied that exceptional circumstances have been established in this case.

[13]

In any event, we agree with the respondent that there was an evidentiary foundation for the Board's decision to find the appellant incapable with respect to those medications. Dr. Ferencz was asked by the Board what the appellant's objections were to "those medications", immediately after Dr. Ferencz had referred to all of the medications in issue. Dr. Ferencz replied that the appellant did not feel that he had an illness that required "those medications", and that the appellant felt there were other equally effective treatments that did not involve medicine. There was, therefore, a factual foundation for the Board's findings with respect to the medications other than lithium.

[14]

The appeal is dismissed.

"G.R. Strathy C.J.O."

"J.C. MacPherson J.A."

"C.W. Hourigan J.A."