Court and Parties

Court: Court of Appeal for Ontario Date: 2024-09-18 Docket: COA-24-CV-0113

Before: Zarnett, Monahan and Pomerance JJ.A.

Between: George Bennett, Appellant and Dr. Wesley Sutton, Respondent

Counsel: Russell Browne, for the appellant [1] Julia Lefebvre, for the respondent

Heard: September 10, 2024

On appeal from the order of Justice Aubrey D. Hilliard of the Superior Court of Justice, dated December 6, 2023, with reasons at 2023 ONSC 6902.

Reasons for Decision

[1] The appellant, George Bennett, appeals a decision of the Superior Court of Justice upholding a finding of incapacity made by the Consent and Capacity Board. On behalf of the appellant, two grounds of appeal are advanced:

1. That the Board erroneously preferred the respondent’s “historic and dated evidence” over the appellant’s “current evidence”; and
2. That the Board erred in its treatment of the appellant’s evidence, specifically in finding that the appellant was unable to appreciate the benefits of antipsychotic medication.

[2] The appellant raised two similar arguments at his appeal before the Superior Court. The appeal judge rejected both arguments.

[3] For purposes of this appeal, we are to step into the shoes of the Superior Court of Justice: see B.V. v. Knox, 2024 ONCA 92, at para. 17. We agree with the decision of the appeal judge and see no error in her approach.

Background

[4] The appellant is an involuntary patient at St. Joseph’s Healthcare in Hamilton, having been found not criminally responsible on account of mental disorder on January 14, 2021, in connection with a charge of arson causing damage to property. He has been diagnosed as suffering from delusional disorder and has a history of persecutory delusions.

[5] On April 13, 2023, the respondent, Dr. Sutton, found the appellant to be incapable of making treatment decisions about whether to take antipsychotic medication. The medication in question is Seroquel Quetiapine, taken orally, at a dose of 500 mg. According to Dr. Sutton, this was a suboptimal dose for treatment purposes and should be increased. The appellant complained of side effects including sedation.

[6] The Board heard testimony from Dr. Sutton and the appellant. Dr. Sutton also submitted a comprehensive summary that included some excerpts from the appellant’s medical history. Dr. Sutton acknowledged that there had been some improvement in the appellant’s condition. However, in his opinion, the appellant’s illness prevented him from appreciating the reasonably foreseeable consequences of a treatment decision. Dr. Sutton testified that that was his view at the time of the hearing.

[7] The Board gave detailed reasons, summarizing the testimony of both Dr. Sutton and the appellant. The Board ultimately concluded that Dr. Sutton’s evidence should be accepted and, on that basis, found the appellant to be incapable with respect to treatment under s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.

[8] The appeal judge found no palpable and overriding error in the Board’s decision. She found that it was open to the Board to consider historical evidence as supporting Dr. Sutton’s opinion about current capacity and that it was open to the Board to find, as a fact, that the appellant was unable to appreciate the benefits of anti-psychotic medication.

No Error in Use of Historical Evidence

[9] The essence of the appellant’s first complaint is that the Board relied upon stale, historical evidence in arriving at its conclusion of incapacity. It is said that the Board should not have considered evidence of the appellant’s prior medical condition, as it was to determine capacity at the time of the hearing.

[10] We agree that the Board was required to consider capacity at the time of the hearing. However, that is precisely what the Board did. The Board was sensitive to the use of historical evidence. It agreed with the appellant that an earlier decision of the Superior Court of Justice, dealing with the appellant, should be removed from the record. As the Board put it: “Capacity can fluctuate. The Board [has] to consider the evidence at the time of the hearing”.

[11] While the Board permitted Dr. Sutton to refer to historical medical notes, this did not give rise to error. The medical history was properly considered by Dr. Sutton in his assessment of current capacity, and it was properly seen as supporting evidence by the Board. Medical history is often relevant when assessing current capacity to consent to treatment. Both Dr. Sutton’s ultimate opinion and the finding of the Board were rooted in the present, not the past. In its concluding words, the Board stressed that it had “considered the evidence as it pertained to the time of the hearing and ultimately determined that the evidence supported the finding of incapacity on a balance of probabilities.”

[12] In rejecting this ground, the appeal judge stated:

Mr. Bennett’s concern about the Board inappropriately using or relying on his past medical history was raised by his counsel at the hearing. The Board agreed and specifically referenced Mr. Bennett’s concern in its reasons for decision. At page 10 of the reasons for decision, Ms. Lakra for the Board writes: “I agree the Form 33 issued by Dr. Shariati was not relevant (sic) GB’s capacity on the hearing date. […] I considered the evidence as it pertained to the time of the hearing and ultimately determined that the evidence supported the finding of incapacity on a balance of probabilities.”

This statement in the Board’s reasons was not platitudes as alleged by Mr. Bennett. The Board made findings of credibility in favour of Dr. Sutton because his evidence was supported by Mr. Bennett’s medical history. That corroboration is required by the Evidence Act and was appropriately considered by the Board. The medical history was not, however, the basis for the Board’s decision that Mr. Bennett is incapable. Rather the Board accepted the evidence of Dr. Sutton, preferring it to the evidence of Mr. Bennett, which the Board was entitled to do.

[13] We agree with this analysis of the Board’s approach on this issue and dismiss this ground of appeal.

[14] Before this court, it was argued on behalf of the appellant that the proceedings were somehow tainted because it was known that the appellant had been found not criminally responsible by reason of mental disorder. It was said that the appellant’s status as a forensic patient, and Dr. Sutton’s status as a forensic psychiatrist, might have affected the Board’s perception. We see no merit to this claim. There is nothing in the record to suggest that the Board was influenced by the forensic backdrop or that it had any impact on the integrity of the proceedings.

No Error in the Assessment of the Appellant’s Evidence

[15] The second ground of appeal alleges that the Board erred in its treatment of the appellant’s evidence, more specifically, in finding that the appellant was unable to appreciate the benefits of anti-psychotic medication.

[16] The appellant testified before the Board and made various assertions about his understanding of the risks and benefits of the medication in issue. The Board set out a detailed summary of the appellant’s evidence but found Dr. Sutton’s evidence to be more persuasive. In rejecting the appellant’s complaint about this finding, the appeal judge stated:

I also reject the argument that the Board failed to consider a material change in Mr. Bennett’s mental health. Far from failing to address the evidence of a change in Mr. Bennett’s mental health, the reasons of the Board specifically discuss Mr. Bennett’s evidence about his mental health status at the time of the hearing. At page 7 of the reasons for decision, the Board notes: “GB stated he appreciated his diagnosis and the consequences if untreated. GB also advised the risk to him decreased the longer he spent in public without any negative events.” It is a finding of fact to be made by the Board as to whether there is evidence to support a finding that there has been a material change in Mr. Bennett’s mental health. The Board was entitled to accept or reject Mr. Bennett’s evidence regarding changes to his mental health. In assessing Mr. Bennett’s evidence, the Board weighed it against Dr. Sutton’s evidence and preferred Dr. Sutton’s evidence, which the Board is entitled to do.

[17] Once again, we agree with this analysis. The Board found that, while the appellant was forthcoming with his answers they were “tangential and inconsistent.” The Board found that the appellant was “preoccupied about side effects without an ability to consider the potential benefits of sustained treatment or the risks of non-treatment.” The Board found that he “minimized the benefit of treatment” and that the appellant’s condition “interfered with his ability to appreciate the reasonably foreseeable consequences of a treatment decision.”

[18] It was clearly open to the Board to make these findings. There is no basis for concluding, as alleged by the appellant, that the finding of incapacity was based on disagreement with treatment or that the Board based its decision on the appellant’s best interests. The Board applied the legal test for incapacity and based its decision on the whole of the evidence, including its careful review of the appellant’s testimony.

Conclusion

[19] For these reasons, the appeal is dismissed. No costs were requested, and none are awarded.

“B. Zarnett J.A.”

“P.J. Monahan J.A.”

“R. Pomerance J.A.”

Footnote:

[1] While Mr. Browne identified himself as amicus curiae, he made the principal submissions on behalf of the appellant. The appellant attended the hearing and made brief submissions in addition to those of Mr. Browne.