Court File and Parties

Court of Appeal for Ontario Date: 2021-06-30 Docket: C68652

Judges: Doherty, Benotto and Brown JJ.A.

In the Matter of Appeal from a decision of the Consent and Capacity Board, Pursuant to the Mental Health Act, R.S.O. 1990, chapter M.7, As amended,

In the Matter of Appeal from a decision of the Consent and Capacity Board, Pursuant to the Health Care Consent Act, S.O. 1996, chapter 2, Schedule A, As amended,

Between:

K.M. Appellant (Appellant)

and

Dr. Tapan Banik Respondent (Respondent)

Counsel: Eyitayo F. Dada, for the appellant Jennifer L. Hunter and Ashley Boyes, for the respondent

Heard: June 25, 2021 by video conference

On appeal from the order of Justice Andrew A. Sanfilippo of the Superior Court of Justice, dated August 11, 2020, with reasons reported at 2020 ONSC 4829, affirming a decision of the Consent and Capacity Board, dated April 14, 2020, with reasons dated April 21, 2020.

Reasons for Decision

[1] The appellant appeals the decision of the Superior Court which dismissed his appeal from the Consent and Capacity Board decision affirming his Community Treatment Order.

Facts

[2] The appellant K.M. was diagnosed with schizophrenia. The respondent Dr. Tapan Banik is his treating psychiatrist. On January 31, 2020, the appellant’s mother called the police because his behaviour gave her concern for his well-being. The appellant had – six times before – been admitted to Brampton Civic Hospital as a psychiatric patient and discharged on a Community Treatment Order. Once his Community Treatment Order was revoked, the appellant had refused to see his doctor or take injections of the prescribed anti-psychotic medicine and had decompensated as a result. The police brought the appellant to Brampton Civic Hospital where he was admitted as an involuntary psychiatric patient.

[3] The respondent examined the appellant on February 3 and 4, 2020 and determined that the appellant was unable to appreciate the reasonably foreseeable consequences of treatment or lack of treatment and was not capable of consenting to treatment of his mental disorder with anti-psychotic medications. On February 4, the respondent informed the appellant of his determination and prepared a Community Treatment Plan for the appellant based on his determination that the appellant was incapable of giving or refusing consent to the Plan. Under the Plan, the appellant would be given community support by the Peel Assertive Community Treatment Team (“ACT team”).

[4] The Plan required the appellant to present himself to the ACT team one to three times every week for medication compliance and to receive monthly injections of anti-psychotic medication. The appellant’s mother agreed to act as his substitute decision maker and consented to the appellant resuming treatment with antipsychotic medication. The respondent issued the Community Treatment Order on March 5, 2020. The appellant was discharged on March 20, 2020. The appellant applied to the Consent and Capacity Board to review the respondent’s finding of incapacity and the issuance of the Community Treatment Order.

Decision of the Consent and Capacity Board

[5] The Consent and Capacity Board recognized that the onus is on the physician who issued the Community Treatment Order to establish on a balance of probabilities that the appellant lacked the capacity to consent to treatment. The Board followed the test in s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, which provides:

Capacity

4 (1) A person is capable with respect to a treatment, admission to or confining in 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, confining or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[6] The Board was satisfied that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his treatment. The Board relied on the evidence with respect to his readmissions to hospital due to non-compliance, his refusal of injections, his aggressive conduct when not being medicated, his inability to appreciate the severity of his mental condition and his inability to recognize incontrovertible facts.

[7] The Board affirmed the Community Treatment Order.

Decision of the Superior Court

[8] On appeal to the Superior Court, the appellant argued that:

(1) the Board had erred in finding that he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the recommended treatments; and

(2) the Board erred in confirming the validity of the Community Treatment Plan.

[9] The court rejected the appellant’s argument that, in applying the test for finding the appellant capable to consent, the Board incorrectly required the appellant to accept, acknowledge or appreciate that he suffered from a mental illness. The court found that the Board correctly identified and interpreted the two-part test for capacity to consent to treatment under s. 4(1) of the Health Care Consent Act as explained in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722.

[10] On the first part of the test, the Board had found the appellant was able to understand the information relevant to making a treatment decision. On the second part of the test, the Board had found the appellant unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the recommended treatments based on the two criteria laid down in Starson, at para. 79. The Board accepted the respondent’s evidence that the appellant had a mental condition and that the condition deteriorated when untreated. The Board also found the appellant believed he did not have a mental health condition at all. It was not merely that he disagreed with the respondent’s diagnosis of the condition, he disputed that he had any mental health issues. He was also unable to appreciate that his condition improved with treatment and deteriorated when he discontinued treatment.

[11] The court was satisfied that the evidence of the respondent as well as the appellant supported the Board’s findings. The court found that it was open to the Board to reject the appellant’s submission that the respondent did not provide him with the necessary information to make a treatment decision.

[12] On the second issue, the appellant submitted that the Board erred in finding the Community Treatment Plan compliant with the statutory requirements in ss. 33.1(4) of the Mental Health Act, R.S.O. 1990, c. M.7, which sets out the criteria for a Community Treatment order as follows:

33.1 (4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community.

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

[13] The court examined each criterion and concluded each had been complied with. In addition, the court rejected the appellant’s submission that the Board erred in finding the appellant likely to suffer substantial mental deterioration if he did not receive treatment while living in the community. The court held that the fact that the appellant could cope in the community for some time before deteriorating did not mean his deterioration was not “substantial”. The court also held that the Board did not err in concluding that the appellant was able to comply with the Community Treatment Plan, including the requirement to meet with the ACT team up to three times a week, despite the COVID-19 pandemic. This argument was not raised before the Board, and the court found no evidence to support the appellant’s argument that he was unable to attend treatment during the pandemic.

[14] The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Board’s decision.

Issues on this appeal

[15] The appellant raises the same issues on appeal to this court and relies on the same submissions made to the Superior Court. In oral submissions, the appellant focused on the second part of the Starson test and the evidence that the appellant was able to appreciate the benefits of treatment.

Analysis

[16] The second part of the Starson test is that “the patient must be able to recognize the possibility that he is affected” by the condition: at para 79 (emphasis added). The appellant submits that his testimony discloses that he admitted the manifestations of his situation and consequently this provision is satisfied.

[17] We do not accept this submission. The evidence before the Board was the appellant denied he had a mental health condition at all and explained his conduct in barricading himself in his room because he “didn’t really want to talk to [any] one”, “didn’t really want to eat” and “just wanted to lay in [his] stuff”. He explained his prior admissions as related to “domestic” issues. The Board considered the whole of the appellant’s evidence. It was open to the Board to accept the respondent’s evidence that the appellant had been “floridly psychotic” with symptoms including “delusions or persecutions, withdrawal and isolation, lack of self-care, auditory hallucinations, paranoid delusions and disorganization of thought”. There was evidence for the Board to conclude that he does not recognize the possibility that he is affected by his illness.

[18] The appellant also submits that he was able to appreciate the benefits of treatment as demonstrated by his history of taking antipsychotic medication and following previous Community Treatment Plans. However, this ignores that evidence that the appellant discontinued treatment, decompensated as a result and was re-admitted to hospital. Upon resuming treatment, he improved and was able to be discharged. This has been the pattern since 2012. There was evidence before the Board to conclude that he did not appreciate the benefits of his treatment.

[19] Nor did the Board misapply the test by requiring the appellant to agree with the respondent’s diagnosis or characterize his condition in negative terms. The Board recognized that he did not have to agree with the diagnosis.

[20] Contrary to the appellant’s argument, the evidence showed the respondent explained the benefits and potential side effects of antipsychotic medication to the appellant and it was open to the Board to reject the appellant’s evidence in this regard.

[21] Finally, the court did not refuse to consider the COVID-19 issue but found no evidence that the pandemic had impaired the appellant’s ability to attend treatment or the health professionals’ ability to treat the appellant.

[22] We see no reason to interfere with the decision of the Superior Court which upheld the decision of the Consent and Capacity Board.

Conclusion

[23] Despite the able submissions of counsel for the appellant, the appeal is dismissed. No costs were requested, and none are ordered.

Doherty J.A. M.L. Benotto J.A. David Brown J.A.