Court of Appeal for Ontario

Date: 2023-06-27 Docket: C70619

Judges: Doherty, Hourigan and Favreau JJ.A.

In the matter of an appeal from a decision of the Consent and Capacity Board Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A, As amended

And in the matter of S.H. Formerly a patient at Southwest Centre for Forensic Mental Health Care St. Thomas, Ontario

BETWEEN

S.H. Appellant (Applicant)

and

Dr. Ajay Prakash Respondent (Respondent)

Counsel: Kelley Bryan, for the appellant James P. Thomson, for the respondent

Heard: June 19, 2023

On appeal from the judgment of Justice Tracey J. Nieckarz of the Superior Court of Justice, dated March 31, 2022, with reasons dated June 3, 2022, affirming a decision of the Consent and Capacity Board, dated September 9, 2021, with reasons dated September 16, 2021.

Reasons for Decision

I

[1] The appellant has been found not criminally responsible on account of mental disorder (“NCRMD”) on two occasions. He has been detained under the authority of the Ontario Review Board (“ORB”) since 2021.

[2] The appellant was first found incapable of consenting to treatment with anti-psychotic medication in January 2021, and again when Dr. Aulak assessed him in August 2021. The January assessment was confirmed by the Consent and Capacity Board (“CCB”) in February 2021 and the August assessment was confirmed in September 2021. An appeal from the September 2021 CCB decision to a Superior Court Judge (“the appeal judge”) under s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996 c. 2, Sched. A (“the Act”) was dismissed in March 2022, with reasons provided by the appeal judge in June 2022. The appellant brings this appeal from the decision of the appeal judge pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under s. 18 of the Act, the appellant cannot be treated while this matter works its way through the court process.

[3] We dismiss the appeal. We are in substantial agreement with the appeal judge’s reasons and will not rehearse the evidence. These reasons should be read with those of the appeal judge.

II

[4] Section 4(1) of the Act defines capacity with respect to treatment. A person is capable of consenting to treatment if that person is both able to understand the relevant information, and appreciate the reasonably foreseeable consequences of taking or refusing the proposed treatment. It is accepted that the appellant is able to understand the relevant information. The dispute is over whether he is able to appreciate the reasonably foreseeable consequences of a decision to take, or refuse to take, the medication. The appellant says he is capable of appreciating those consequences, but chooses for what he views as religious reasons, not to take the medication. The respondent contends that the appellant is not capable within the meaning of s. 4(1) of the Act.

[5] Section 4(2) of the Act presumes a person is capable of making treatment-related decisions. Before the CCB, the onus was on the respondent to demonstrate that the appellant was incapable of consenting to treatment.

[6] The CCB recognized Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, as the leading authority on the meaning of s. 4(1) of the Act. The CCB accepted the medical evidence before it and concluded that the appellant suffered from a delusional disorder. The CCB further found as a fact that the appellant “could not recognize his condition”. Applying the principles in Starson to the facts as found, the CCB held:

[The appellant] was not able to recognize he displayed the manifestations of a mental condition, one consequence of which was his inability to apply information about treatment decisions to himself. As a result, he was not able to appreciate the consequences of giving or refusing consent to treatment of the delusional disorder from which he suffered.

[7] In essence, the CCB concluded that, because the appellant was incapable of acknowledging a possible connection between his delusions and disorganized thought processes and his mental condition, the appellant could not apply the information provided to him concerning treatment to his circumstances and, therefore, could not appreciate the reasonably foreseeable consequences of accepting or rejecting treatment.

[8] The appeal judge accepted that there was a basis in the evidence for the CCB’s findings and, in particular, the finding that the appellant suffered from a delusional disorder which manifested itself in “religious delusions, persecutory delusions, delusions of reference, and tangential and disorganized thoughts leading to a flight of ideas”: at para. 46.

[9] The appeal judge, at para. 49, went on to conclude that:

[A] sufficient evidentiary basis [existed] for the Board to conclude that he [the appellant] is unable to recognize that he is affected by manifestations of a mental condition. The condition afflicting the appellant does not prevent him from understanding that others attribute his delusions to a mental health condition, but it prevents him from being able to appreciate the possibility that this may be true.

[10] The appeal judge further determined, at para. 52, that the CCB had properly applied the principles in Starson to the facts as found, holding:

The Appellant’s inability to appreciate the possibility he was affected by the manifestations of the mental condition for which treatment was being proposed left the Board with no alternative but to conclude that he was incapable of making a reasoned decision to decline the recommended treatment.

[11] Counsel submits that the appeal judge misapplied Starson by requiring, as a precondition to a finding of capacity, that the appellant appreciate that he suffered from delusions. We disagree. As quoted above, the appeal judge clearly understood the distinction between the ability to appreciate the possibility that certain conduct or beliefs were the manifestation of a medical condition and an acceptance of that diagnosis. The appeal judge, like the CCB, considered capacity by reference to the appellant’s ability to appreciate the possibility that his beliefs and conduct in issue were the product of a mental condition.

III

[12] Counsel for the appellant makes a second argument. She contends that the CCB and the appeal judge failed to take into account Charter values, in particular, the right to freedom of religion, when applying the test for capacity laid down in s. 4(1) of the Act: see Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 55-56.

[13] There is no question that many, but not all, of the beliefs manifested by the appellant could properly be described as religious in nature. The sincerity of those beliefs is not questioned. The CCB concluded that the beliefs described by the appellant were a product of his mental condition. The medical evidence supported that finding. The appeal judge found no basis upon which to interfere with that finding. Nor do we.

[14] Neither the CCB, nor the appeal judge, expressly considered the argument that the court should factor the Charter values reflected in the right to freedom of religion into its application of the capacity test in s. 4(1) of the Act. It does not appear that this argument was expressly made in either venue.

[15] Both the CCB and the appeal judge appreciated, as is clear from their review of the evidence, that a significant component of the appellant’s belief system generating his resistance to treatment had a strong religious tone. However, both the CCB and the appeal judge were satisfied that the belief system and other conduct engaged in by the appellant was the product of a mental condition. That condition produced persecutory and religious delusions, grandiose delusions, poor insight, and tangential and disorganized thinking. The evidence of the appellant’s professed religious beliefs was a part of the broader picture of the appellant’s mental state developed in the clinical assessments of the appellant.

[16] The CCB found, and the appeal judge affirmed, that the appellant:

• Suffered from a mental delusional disorder;
• The appellant’s beliefs and thought process were a manifestation of his mental condition;
• The appellant was unable to recognize that his thought process and beliefs were potentially a manifestation of his mental condition; and
• Because the appellant could not see that possibility, he could not engage in the cost/benefit considerations necessary to an appreciation of the reasonably foreseeable consequences of either taking or refusing the medication.

[17] On the findings, the religious nature of some of the appellant’s beliefs and explanations for his conduct had no impact on the question of incapacity as defined in s. 4(1) of the Act. The appellant’s inability to appreciate that his beliefs and actions may be the product of a mental condition rendered him unable to appreciate the reasonably foreseeable consequences of taking or refusing the treatment. Characterizing the beliefs manifested as a consequence of his mental condition as religious could not affect the ultimate finding of incapacity once the court concluded the appellant was incapable, on account of his mental condition, of appreciating that his beliefs and conduct may be a manifestation of that mental condition.

[18] Counsel for the appellant correctly points out that Charter values can play a role in capacity determinations. The high value Canadian society places on the fundamental right to freedom of religion dictates that the CCB and the courts must proceed cautiously before characterizing a professed religious belief as a manifestation of a mental condition. The evidence must offer clear and cogent support for both the conclusion that the beliefs are a manifestation of a mental condition and the conclusion that the condition has rendered the individual incapable of recognizing that his beliefs may be the product of a mental condition. Decisions of the CCB demonstrate that it has regularly undertaken this analysis in the past: C.R. (Re); G.S. (Re); and E.P. (Re). We are satisfied that that onus was met on this record.

[19] The respondent brought a fresh evidence motion. In light of our decision dismissing the appeal, it is unnecessary to deal with the respondent’s motion.

[20] The appeal is dismissed and the motion to adduce fresh evidence is dismissed. The parties agree there should be no costs.

“Doherty J.A.”

“C.W. Hourigan J.A.”

“L. Favreau J.A.”