Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230831 DOCKET: C69768

Judges: Lauwers, Zarnett and Thorburn 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 M.F., a patient at the Centre for Addiction and Mental Health in Toronto, Ontario

BETWEEN:

M.F. Appellant (Appellant)

and

Dr. Tamara Milovic Respondent (Respondent)

Counsel: M.F., acting in person Jessica Szabo and Nicole Fielding, for the respondent Mercedes Perez, appearing as amicus curiae

Heard: August 25, 2023

On appeal from the order of Justice Andrew A. Sanfilippo of the Superior Court of Justice, dated July 26, 2021, affirming a decision of the Consent and Capacity Board, dated February 8, 2020, with reasons dated February 25, 2020.

Reasons for Decision

[1] The Consent and Capacity Board confirmed the finding by Dr. Tamara Milovic, that the appellant, M.F., was incapable of making treatment decisions respecting antipsychotic medication. The appeal judge dismissed M.F.’s appeal. M.F. appeals under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, with the assistance of amicus curiae.

Facts

[2] M.F. was hospitalized and discharged in Spring 2019 on a community treatment order despite his parents asking for a longer hospital admission. He was re-hospitalized in Fall 2019 and again discharged.

[3] In January 2020, police brought M.F. to the hospital to be assessed. He was found to be incapable on January 27, 2020, by Dr. Milovic. On February 8, 2020, the Board issued its decision confirming the finding of treatment incapacity with respect to antipsychotic medication. The appeal to the Superior Court of Justice was heard and dismissed in Summer 2021. He remains hospitalized for treatment.

Decision Below

[4] The appeal judge found that the Board applied the correct legal principles and dismissed all grounds of appeal raised by M.F. with the support of amicus curiae. Specifically, he held that the Board had considered and weighed evidence as to whether M.F.’s diagnosis was “drug induced psychosis” and whether, in the absence of cannabis use, M.F.’s psychosis was likely to improve without the need for antipsychotic treatment. The appeal judge noted: “In my view, the Board considered this evidence, weighed it and rejected it, as it was entitled to do.” (at para. 44.)

Issue

[5] Did the Court err in upholding the Board’s finding of treatment incapacity?

Analysis

[6] Over time, many assessing psychiatrists have diagnosed M.F. with a psychotic illness, specifically schizophrenia.

[7] On the day of the Board hearing, M.F. had been an involuntary patient for three weeks. Dr. Milovic explained that M.F.’s symptoms of psychosis continued even though he had not been using cannabis since his admission. In her opinion, this was due to his schizophrenia. Amicus submitted that M.F. was never found to be both psychotic and abstinent from cannabis, suggesting a link. Dr. Milovic rejected that possibility.

[8] In cross-examination, M.F.’s counsel suggested that he remained psychotic during the admission because cannabis could stay in a person’s system for longer than three weeks. Dr. Milovic testified:

A. No. That’s because he has schizophrenia. Q. Well, how do you know? When I just told you my suggestion to you, you’re telling me I’m wrong about that? A. Yes. Q. That it stays in your system for longer than three weeks – chronic marijuana use. You’re telling me that the drugs have cleared out of his system and you know that for a fact? A. I’m telling you that no matter how much marijuana he used, he would not be this psychotic three weeks into his admission.

[9] Although M.F.’s counsel at the Board hearing advanced this alternative interpretation of his presentation, no additional evidence was called to corroborate that interpretation. The Board considered counsel’s position, but ultimately found the balance of the evidence supported Dr. Milovic’s medical opinion. This opinion was supported by M.F.’s history, the opinion of numerous psychiatrists who had concurred with the diagnosis, and the evidence of M.F.’s presentation at the time of the hearing. As the appeal judge properly noted, the Board was entitled to prefer Dr. Milovic’s evidence, which was corroborated, and made no error in doing so.

[10] The appeal is dismissed.

“P. Lauwers J.A.” “B. Zarnett J.A.” “Thorburn J.A.”