Court of Appeal for Ontario

Date: November 21, 2018

Docket: C63509 / C64668

Judges: Rouleau, Paciocco and Nordheimer JJ.A.

In the Matter of Applications Under Section 32(1) of the Health Care Consent Act, 1996

First Application

Between

Craig Barker, Applicant (Appellant)

and

Dr. Kiran Patel, Respondent (Respondent)

and

The Empowerment Council, Intervener

Second Application

Between

Justin Mitchell, Applicant (Appellant)

and

Dr. T. K. Banik, Respondent (Respondent)

and

The Empowerment Council, Intervener

Counsel

• Kelly Bryan, appearing as amicus curiae on the appeal of Craig Barker
• Kathryn Hunt, for the respondent, Dr. Kiran Patel
• Joanna Weiss and Sarah Latimer, for the appellant, Justin Mitchell
• David Litwin and Adam Patenaude, for the respondent, Dr. T. K. Banik
• Anita Szigeti and Meaghan McMahon, for the intervener, The Empowerment Council

Heard: October 26, 2018

On appeal from: The order of Justice Peter J. Cavanagh of the Superior Court of Justice dated November 20, 2017, with reasons reported at 2017 ONSC 6931, and the order of Justice Cory A. Gilmore of the Superior Court of Justice dated February 16, 2017, with reasons reported at 2017 ONSC 1123.

Decision

Nordheimer J.A.:

[1] Introduction

[1] These two appeals were argued together as they raise a common issue with respect to the proper approach to "ancillary treatment" under s. 23 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A ("HCCA"). For the reasons that follow, I would dismiss the appeals in part and allow them in part.

A. Background

[2] Both of the appellants were found incapable of consenting to treatment by decisions of the Consent and Capacity Board (the "Board"). They each appealed those findings to the Superior Court of Justice. Both of those appeals were dismissed. While there is a common issue between the two cases because of the issue surrounding s. 23 of the HCCA, there are factual differences between the two cases that I will explain briefly.

Craig Barker

[3] Mr. Barker was 42 years old at the time of the hearing. The respondent, Dr. Kiran Patel, was Mr. Barker's attending physician at the Centre for Addiction and Mental Health in Toronto ("CAMH").

[4] Mr. Barker was arrested for assaulting a security guard at the University of Toronto. He was found unfit to stand trial. Mr. Barker was initially treated at the Waypoint Centre for Mental Health Care but was ultimately transferred to CAMH.

[5] Mr. Barker was determined by Dr. Hartfeil (working under the supervision of Dr. Patel) to be incapable with respect to two classes of medication: (a) antipsychotic medication, orally or in injectable form; and (b) medication to combat antipsychotic medication side effects, orally or in injectable form.

[6] Mr. Barker appealed this determination to the Board. The Board confirmed the determination.

[7] The evidence before the Board showed that Mr. Barker denies that he suffers from a mental illness. He consequently refuses to accept treatment. The attending psychiatrist determined that Mr. Barker does suffer from a mental illness and that his mental illness would be ameliorated, if not resolved, by treatment.

[8] The attending psychiatrist sought to treat Mr. Barker with antipsychotic medications to address the mental illness problem and also sought to treat Mr. Barker with any necessary medications to address side effects to the antipsychotic medication should such side effects materialize.

Justin Mitchell

[9] Mr. Mitchell is 28 years old. He lives with his parents. Mr. Mitchell was diagnosed with schizophrenia and has a long history of treatment and hospital admissions.

[10] On June 8, 2016, Mr. Mitchell was brought to the emergency department of the Brampton Civic Hospital by police after acting in an aggressive and threatening manner at home. He was assessed by a psychiatrist, Dr. El-Kholi, who described him as "poorly kept and quite disheveled", "paranoid with prominent delusional thinking", and with "impaired insight and poor judgment." She questioned his capacity to consent to treatment.

[11] On June 15, 2016, Mr. Mitchell was assessed by the respondent, Dr. T.K. Banik. He noted that Mr. Mitchell had been "easily angered, frustrated, irritable, demanding, confrontational and verbally abusive towards staff." Mr. Mitchell had required anti-anxiety medication to control his behaviour and at times required seclusion.

[12] Unlike Mr. Barker, Mr. Mitchell was aware that he suffered from a mental illness. However, Mr. Mitchell vacillated between accepting that medication would help his illness and denying that it would help. Mr. Mitchell appeared to relate his illness to issues with his parents, and living at home, although it appears that Mr. Mitchell had never sought to live elsewhere.

[13] Dr. Banik determined that Mr. Mitchell was incapable of consenting to treatment because of "his inability to appreciate the reasonably foreseeable consequences of his treatment or lack of treatment." Dr. Banik sought to treat Mr. Mitchell with an injectable antipsychotic medication. Mr. Mitchell had received injectable antipsychotic medications in the past.

[14] The Board confirmed the incapacity determination made by Dr. Banik.

B. Analysis

Preliminary Issues

[15] Mr. Mitchell's capacity to consent to primary treatment is not before us. That issue was resolved subsequent to the judgment under appeal. The sole matter Mr. Mitchell raises before us is the ancillary treatment issue.

[16] Mr. Barker, however, appeals the reasonableness of the finding that he was incapable of consenting. Like Mr. Mitchell, he also raises the ancillary treatment issue. Before addressing the common issue of ancillary treatment, I will begin with Mr. Barker's challenge to the Board's findings, confirmed on appeal, that he was incapable of consenting to the proposed primary treatment.

Incapacity

[17] The test for incapacity under the HCCA is two-fold. As set out in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 78, the test requires, first, that a person must be able to understand the information that is relevant to making a treatment decision and, second, that a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. It was the second of these two requirements that was in issue.

[18] The standard of review of this conclusion is reasonableness: Starson, at para. 88.

[19] Mr. Barker has not established that the Board's decision, that he lacked the capacity to appreciate the foreseeable consequences of his treatment, was unreasonable. The Board had before it uncontradicted psychiatric evidence. The Board concluded that Mr. Barker was unable to appreciate the consequences of refusing treatment because he refused to acknowledge that he had a mental illness. In other words, while Mr. Barker appreciated that people with mental illnesses would benefit from treatment, he refused to apply that reality to himself because, in his mind, he did not have a mental illness.

[20] The Board concluded that Mr. Barker lacked the capacity to consent to treatment. That finding was reasonable on the evidence that was before the Board. The reasonableness of that finding was sustained on appeal, with complete and thorough reasons by the judge on appeal. There is no basis for this court to interfere with that conclusion.

Section 23

[21] The common issue that is raised in these appeals involves the operation of s. 23 of the HCCA. The first question that arises is whether, before necessary and ancillary treatment is administered, there must be, in addition to a finding that a person is incapable of consenting to the primary treatment, a separate finding that the person is also incapable of consenting to necessary and ancillary treatment.

[22] I begin by setting out the wording of s. 23, which reads:

Authority to consent to a treatment on an incapable person's behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.

[23] Section 23 is to be interpreted, first and foremost, based on the plain wording of the section with the words used in their "grammatical and ordinary sense": Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21. What the plain wording of s. 23 provides is that, once a determination is made with respect to the incapacity of an individual to consent to treatment, the resulting authority to administer treatment carries with it the authority to administer "another treatment that is necessary and ancillary" to the primary treatment. No further or separate finding of incapacity is necessary for that authority nor is any separate order required. Indeed, s. 23 expressly provides that the authority results "even if the incapable person is capable with respect to the necessary and ancillary treatment". In my view, the wording of the section could not be clearer.

[24] This interpretation of s. 23 not only accords with the plain wording of the section, it also accords with common sense. Side effects from the primary treatment will often not be known until the treatment is administered. Different individuals may react differently to a given medication. Different individuals may tolerate side effects better than others. If not treated, side effects may undermine the efficacy of the primary treatment. Treating psychiatrists must have the ability to respond to these unknowns. On this point, I agree with Cavanagh J. where he said, at para. 45:

I agree with the respondent that health care professionals would be in a very challenging clinical situation if they are able to administer primary treatment to a patient who is incapable with respect to such treatment without the ability to address potentially harmful side effects through administration of ancillary treatment for side effects. Section 23 of the HCCA addresses this very circumstance.

[25] The appellants acknowledge that s. 23 appears to provide authority to administer necessary and ancillary treatment, even if the person is capable of consenting to such treatment but nonetheless refuses to consent. The appellants urge us to find that, notwithstanding the language of s. 23, an additional assessment of incapacity is required before necessary and ancillary treatment can be authorized. They suggest that this additional assessment could be made at the time that the capacity for primary treatment is determined, if the evidence is available. Alternatively, they suggest that this assessment should be made at a separate hearing when the ancillary treatment issue actually arises. I would resist the appellants' urgings in this regard.

[26] Given the plain wording of s. 23, I do not agree that a separate finding, that the person is also incapable of consenting to necessary and ancillary treatment, is required.

[27] A conclusion that a separate assessment of incapacity for necessary and ancillary treatment is required, carries with it a number of practical difficulties. For one, it will often not be apparent what ancillary treatment is necessary until the primary treatment is undertaken. To require a finding of incapacity in advance would engage the Board in a series of speculative analyses that would complicate and prolong the hearing on the principal issue and which may be entirely pointless. On the other hand, if the requirement for an incapacity determination was left to the time when the necessary and ancillary treatment becomes apparent, it would potentially greatly delay the administration of that treatment. Any such finding would be subject to appeal. I note that both of these cases have now been engaged on the issue of primary treatment for about two years. Indeed, we are told that Mr. Barker has yet to receive any of the treatment that was authorized some 22 months ago.

[28] The intervener takes a different approach by inviting us to establish a very narrow definition of what ancillary treatments would properly be considered "necessary" such that s. 23 could apply. I would decline that invitation. The word "necessary" is a clear one. Treating physicians are in the best position of determining whether an ancillary treatment is necessary in individual cases and they still require the consent of the substitute decision-maker before administering such treatments. Further, this court should avoid setting down strict rules regarding a subject that may arise in a wide variety of situations and which will very much depend on the medical circumstances in existence at the time. Indeed, the various scenarios postulated by the intervener demonstrate this very point.

[29] The bottom line is that, once a person is found to be incapable of consenting to treatment, treatment may be administered with the consent of a substitute decision-maker. The Legislature has determined that, as part of the overall scheme of the HCCA, the authority to consent to administering the primary treatment carries with it authority to consent to administering other treatment, if that other treatment is necessary and ancillary. That is the objective of s. 23. While there may be other avenues open to the incapable person to challenge the administration of any such treatment, that is not an issue that I have to address in these cases.

[30] The second question, which inevitably overlaps with the first, involves the practice adopted in a number of cases whereby a person found incapable of consenting to the primary treatment will then, by virtue of that finding alone, also be found incapable of consenting to ancillary treatment. Indeed, in both of the cases before us, the Board's orders referred to both primary treatment and ancillary treatment.

[31] The appellants contend that the Board erred in making a finding of incapacity with respect to ancillary treatment without engaging in a separate inquiry to determine whether the evidence would justify such a finding. The Board has apparently proceeded in this way in many cases. This practice is reflected, for example, in Mladenovic v. Papatheodorou, 2015 ONSC 754, where Pollak J. said, at para. 14:

The relevant jurisprudence holds that if a person is found incapable with respect to a primary treatment, they are also incapable with respect to its ancillary treatments, which include side-effect medications. The Respondent therefore submits that if the finding that Mr. Mladenovic is incapable with respect to treatment with antipsychotic medication is upheld, then pursuant to s. 23 of the HCCA he is also effectively incapable with respect to treatment with ancillary and side-effect medications. I agree with this analysis.

[32] Unfortunately, Pollak J. does not identify the "relevant jurisprudence" to which she refers but, in any event, as I shall explain, I disagree with the conclusion that, pursuant to s. 23, a finding of incapacity for primary treatment carries with it a finding of incapacity for necessary and ancillary treatment. I do so because, in my view, it conflicts with the plain wording of s. 23. It follows that I disagree with Cavanagh J.'s adoption of this approach in his decision in Mr. Barker's case, particularly his conclusion, on this point, at para. 47.

[33] It follows from my conclusion with respect to the proper interpretation of s. 23 that, absent unusual circumstances, it is unnecessary and inappropriate for the Board to make findings as to the person's capacity to consent to necessary and ancillary treatment. Rather, the Board should allow that issue to be addressed through the application of s. 23. That is not to say, however, that there will never be situations where the Board will need to consider necessary and ancillary treatments.

[34] For example, where the issue of certain necessary and ancillary treatments is closely related to, and interwoven with, the primary treatment, the Board will appropriately consider any implications that the necessary and ancillary treatments might have on its conclusion on the issue of incapacity with respect to the primary treatment. This would not, however, involve a separate finding regarding capacity with respect to necessary and ancillary treatment. Section 23 renders any such finding unnecessary.

[35] In light of that conclusion, it was unnecessary for the Board to make findings about capacity to consent to necessary and ancillary treatments. The inclusions of findings of incapacity to consent to such treatments, in the orders, appear to have been made based solely on the fact that the treating physicians included the necessary and ancillary treatments in their capacity assessments on the primary treatments and without distinguishing between the two. Indeed, I note that in the case of Mr. Barker, the Board said, in its reasons, that it "did not address capacity for the side effects medication". And yet, in both cases, the formal orders of the Board include the necessary and ancillary treatments in the affirmation of the physicians' findings with respect to incapacity for the treatments collectively. This result appears to be based on an erroneous interpretation of s. 23 that finds incapacity on the primary treatment to include incapacity for necessary and ancillary treatments.

[36] The orders should not have gone beyond a finding of incapacity to consent to the primary treatments. To the degree that the orders affirm a finding of incapacity for necessary and ancillary treatments, they are in error. Both appeals must be allowed to that extent.

Mootness

[37] Before concluding, I must address the argument advanced by Dr. Banik that Mr. Mitchell's appeal is moot. Dr. Banik sought leave to file fresh evidence consisting of two subsequent orders of the Board, one of which (July 2017) found Mr. Mitchell to be capable of consenting to treatment and a later one (April 2018) which found him once again incapable of consenting. Mr. Mitchell does not oppose the fresh evidence motion.

[38] While I would grant leave to file the fresh evidence, I reject the argument that the appeal is moot such that this court ought not to entertain it. As I have already mentioned, the Board's original order provided authority both for primary treatment and ancillary treatment. The most recent order of the Board addressed only primary treatment. Consequently, it is not clear what effect the most recent order has on this second aspect of the original order. It is thus not clear that the issue raised by the original order regarding ancillary treatment is moot. Further, and in any event, the central issue is before us in Mr. Barker's appeal, so no judicial resources are conserved by finding the issue to be moot: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at paras. 34-39.

C. Conclusion

[39] The appeals are allowed and the orders finding incapacity regarding necessary and ancillary treatments are set aside. The appeals are otherwise dismissed. There will be no order as to costs.

Released: November 21, 2018

"I.V.B. Nordheimer J.A."

"I agree. Paul Rouleau J.A."

"I agree. David M. Paciocco J.A."

Footnotes

[1] Mr. Barker did not retain counsel for this appeal. Amicus curiae was appointed by order dated January 8, 2018. Amicus curiae also appeared for Mr. Barker on his appeal in the Superior Court of Justice.

[2] I note, on this point, that the Board's order appears to be based on a standard form.