Court of Appeal for Ontario

Date: November 30, 2017 Docket: C62846

Justices: Sharpe, Epstein and van Rensburg JJ.A.

Between

Kevin Fleischhaker Appellant

and

Dr. David Attwood Respondent

Counsel

Michael Davies, for the appellant

Jacquie Dagher, for the respondent

Heard and released orally: November 24, 2017

On appeal from the judgment of Justice Marc R. Labrosse of the Superior Court of Justice, dated September 30, 2016.

Reasons for Decision

[1] The Consent and Capacity Board found that the appellant was incapable with respect to treatment within the meaning of s. 4 of the Health Care Consent Act. The Board's order provided that the appellant was incapable with respect to treatment with "psychotropic medication".

[2] The evidence supported a finding that due to mental illness the appellant was incapable of appreciating the reasonably foreseeable consequences of a decision or lack of a decision respecting treatment.

[3] The issue raised by the appellant at the hearing related to his concern regarding the side-effects of the drug Clozapine. The respondent's evidence was that he considered that Clozapine might improve the appellant's condition but that he did not propose to administer that drug. He was clear that he sought only to treat the appellant with the drug "Abilify" (or the generic "Aripiprazole"), and not Clozapine.

[4] During the hearing, the Board limited the appellant's proposed cross-examination of the respondent and introduction of material through cross-examination as to the side effects of Clozapine. The Board ruled that the proposed cross-examination and the material were irrelevant given the respondent's proposed treatment of the appellant.

[5] The appellant seeks a new hearing on grounds of denial of procedural fairness or, in the alternative, a narrowing of the order to provide for treatment by administration of Abilify.

[6] During the hearing of this appeal, counsel for the respondent conceded that, given the position taken by the respondent before the Board, it would be open to this court to narrow the order to refer to Abilify.

[7] While the appellant maintains his position that a new hearing should be ordered on grounds of procedural fairness, it is our view that if the order is narrowed, the mischief of the limitation imposed by the Board on the cross-examination and material regarding the side-effects of Clozapine is cured and a new hearing is not required.

[8] In fairness to the Superior Court appeal judge, we note that it does not appear that the option of narrowing the order was argued before him.

[9] Accordingly, the appeal is allowed in part and pursuant to s. 80 of the Health Care Consent Act, the order of the Consent and Capacity Board is amended by deleting "psychotropic medication" and substituting "Aripiprazole".

"Robert J. Sharpe J.A."

"Gloria Epstein J.A."

"K. van Rensburg J.A."