CITATION: King v. Lebreton, 2011 ONSC 6820

DIVISIONAL COURT FILE NO.: 10-DV-1695

DATE: 2011/11/17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BEAUDOIN J.

In THE MATTER OF an appeal from a decision of the

Consent and Capacity Board,

Pursuant to the Health Care Consent Act, S.O. 1996 c. 2, Schedule A

As amended

AND IN THE MATTER OF

BERNICE KING

A patient at

THE OTTAWA HOSPITAL - GENERAL CAMPUS

Ottawa, Ontario

BETWEEN:

BERNICE KING

Appellant

– and –

MARIE-ANDRE LEBRETON

Respondent

– and –

CHANTAL GAGNON

Respondent

Michael Davies, Amicus Curiae, for the Appellant

Kirsten T. Crain, for the Respondent, Marie-André Lebreton

Unrepresented

HEARD: October 28, 2011 (Ottawa)

REASONS FOR JUDGMENT

[1] The Appellant, Bernice King, appeals to this Court from the decision of the Consent and Capacity Board (the “Board”) dated December 3, 2010, (with Reasons dated December 10, 2010) wherein the Board confirmed the Appellant’s incapacity with respect to admission to a care facility. The Appellant asks that the matter be sent back for a new hearing before a fresh panel of the Board.

[2] The grounds for the appeal are as follows:

(1) The Board misapprehended relevant evidence;

(2) The Board failed to consider relevant evidence; and

(3) The Board misapplied the test for capacity.

Background

[3] Ms. Bernice King (“Ms. King” or “BK”) is a 75‑year‑old divorced mother of two children. She worked for many years as a registered nurse. At the time of the Capacity Board’s decision, she had lived independently for five years in a subsidized housing apartment.

[4] Ms. King has a longstanding diagnosis of bipolar illness that was stable until 2010, when she suffered an acute attack of pancreatitis complicated by a Clostridium difficile (C. difficile) infection that necessitated a surgical resection of the large intestine and ileostomy. A heart attack followed shortly thereafter. Ms. King is also reported to suffer from hypertension, osteoarthritis and Ogilvie Syndrome.

[5] Ms. King was a psychiatric in‑patient at the Ottawa Hospital - General Campus (the “hospital”) from August 4 to September 17, 2010, under the care of Dr. Bazile. She was discharged with a Community Treatment Order in place for both medications and necessary services including home visits from nurses and other services. On October 15, 2010, the police brought Ms. King to the hospital subsequent to the issuance of a Form 47 Order (under the Mental Health Act) signed by Dr. Bazile. The Form 47 Order was issued because the Appellant had failed to comply with the terms and conditions of her community treatment plan, including failing to attend for psychiatric appointments and failing to let the various access providers have access to her apartment.

[6] Ms. Marie-André Lebreton was the evaluator who was tasked with assessing Ms. King’s capacity with regard to admission to a care facility. Ms. Lebreton attempted to do this on November 4, 2010. Ms. King refused to cooperate with the capacity evaluation. Ms. Lebreton tried several times thereafter to assess Ms. King but was rebuffed at each attempt. After a week of trying, the evaluator gave up on her efforts to assess Ms. King. She did meet with Ms. King’s son and daughter; she reviewed her charts, spoke to staff as well as the community support worker, Mandy Fisher, as well as geriatric psychiatry nurse, Lauren Stollery and others.

[7] In her report, Ms. Lebreton concluded that it was unsafe for Ms. King to return to her home given that a trial placement had proven unsuccessful and that Ms. King had not complied with the Community Treatment Order in place. She determined that Ms. King was incapable of making discharge planning decisions. She concluded at para. 3 of her report:

Mrs. King lacks the insight into the risks of returning home as she denies the existence of any of the above problems. It is my opinion that the patient is unable to understand her medical issues, denies any memory or cognitive difficulties, denies needed help to do ADL’s or IADL’s, as well as take medications. It is also my opinion that the patient does not appreciate the foreseeable consequences of her admission or not into a LTC facility as she has said that is fine, that she is able to cook, clean, maintain the apartment, and does not need any help to do these things.

[8] Ms. King then brought an application to the Consent and Capacity Board to review Ms. Lebreton’s findings of incapacity under the Health Care Consent Act. On December 3, 2010, Philippe Capelle, the presiding member, heard Ms. King’s application for the review of her capacity with respect to the admission to a care facility. On December 10, 2010, he concluded that Ms. King was incapable. Ms. King filed this Notice of Appeal the same day. I am advised that this appeal languished for some time until counsel for the Respondent sought to have amicus curiae (“amicus”) appointed for Ms. King. It was subsequent to that date Mr. Davies was appointed.

Evidence before the Consent and Capacity Board

[9] Ms. Lebreton had filed a clinical summary with the Board wherein she concluded with her remarks which are outlined above. While she acknowledged that Ms. King understood the concept of a nursing home or what a long‑term care facility could offer, she testified that in her opinion, “Bernice King is not able to understand and appreciate the foreseeable consequences of making the decision to go or not into a nursing home and lacks the insight and judgment into the ability to understand why she needs these medical treatments and medical follow‑up for services.”

[10] Upon her readmission, Dr. Bazile testified that he tried to work with Ms. King to help her understand what happened. “She denied everything that was said to her, that she was not cooperating with them (the home visit nurses) and her blood level was already down to 183 and then she was hypomanic. When she is hypomanic the judgment is not there at all, whatsoever.” When asked about the nature of the risk if Ms. King went home and did not take her medications properly, he responded: “She will become manic, more confused and when somebody is confused at home living alone she would not accept more help anyway, so she would be at risk of harming herself.” He confirmed that, in his view, Ms. King did not have any insight with regard to her condition or her needs.

[11] Dr. Sarazin, the consulting neuropsychologist, prepared a Consultation Note that was put in evidence before the Board. He was not able to conduct a full capacity assessment given Ms. King’s lack of cooperation, yet he concluded:

Based on my limited interactions with Mrs. King and review of her behaviour prior to admission as detailed in her medical chart, I am of the opinion that she does not truly understand and appreciate the issues of non‑adherence with the CTO and her difficulty coping at home. Although her cognitive deficits were judged to have been of mild‑to‑moderate severity by Dr. Carswell, the executive nature of the deficits and Mrs. King’s psychiatric condition together contribute to her lack of insight and awareness. Mrs. King’s non‑compliance with psychotropic medication has been longstanding and is now exacerbated by the presence of cognitive impairment. In conclusion, I would agree that she no longer has the ability to understand and appreciate issues pertaining to her self care, need for assistance, and need for a supervised setting. …

[12] Her son Patrick testified that he visited his mother two to three time per week and he described colostomy bags and feces strewn all over the apartment and bird excrement everywhere. He testified that he agreed that his mother probably did not have insight as to what might be of benefit to her with regard to being in a long‑term care facility. He concluded that “she doesn’t understand that she needs supervision and 24‑hour care.” He also testified that although his mother did not want to go into a long‑term care facility, she could not explain why. He received many calls from caregivers including the nurse who was to monitor the management of the colostomy who were not able to provide their services because of a lack of cooperation from the Appellant. He also had concerns that his mother was not taking her medication properly as she could not, when asked, provide the correct information about her medication.

[13] In addition to the clinical summary prepared by Ms. Lebreton, the Board also had before it correspondence from Mandy Fisher from Aging in Place to Dr. Bazile. Aging in Place was the agency providing community support workers that were to assist Ms. King during the period of her Community Treatment Order. In her letter, she says the agency “… never expected to see this amount of refusal and non-compliance”… This report disclosed that Ms. King missed nine appointments with personal support workers; she would either not be at home at the pre-arranged time or would refuse care when she was. Nursing services had difficulty seeing her as did an occupational therapist. Cleaners had difficulty getting access to her apartment and Meals on Wheels was sometimes unable to deliver her pre-arranged meals. She refused access to the psychiatric nurse from Geriatric Psychiatry Services who was supposed to come in and ensure she was taking her Epival and to assess her mental health.

[14] There were also indications of unusual behaviour. For example, Ms. King changed the lock on her apartment despite being told not to do so by Ottawa Housing. She also gave notice on October 13th that she would leave the apartment on December 31st despite no clear plan as to where she would go. On one occasion, she answered the door inappropriately dressed. On another occasion it was noted that she had put glue around the front entry door from her apartment.

[15] Ms. King did give evidence before the Board. She testified that she did not want to go into a long‑term care facility because “I can take care of myself.” She denied that she needed any support people in the community to check up on her while at home. She also denied that she had failed to comply with the Community Treatment Order and said that she took her medication and always opened the door to service people. She also testified that her Epival levels were lower than the recommended levels because the medication was making her sick to her stomach and she could have been vomiting a part of the medication.

Issues and the Law

[16] The law as it applies to the ability and the court capacity to make decisions about an admission to care facility is governed by the Ontario Health Care Consent Act, S.O. 1996, c. 2, Schedule A, as amended. Pursuant to s. 4(2) of that Statute, everyone is presumed to be capable of making decisions about their own admission to care facilities. Where a person has been found incapable of making decisions about admission to a care facility by an evaluator, that person has the right to apply to the Consent and Capacity Board to have the Board review the evaluator’s decision, pursuant to s. 50 of the Statute.

[17] In reviewing the matter, the Board is to determine whether, at the time of the hearing, the person is capable or incapable in accordance with the following test as set out in s. 4(1):

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

[18] Pursuant to s.80, a party to a proceeding before the Consent and Capacity Board has an appeal as of right to the Superior Court of Justice on a question of law or fact or both.

The Standard of Review

[19] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, the Supreme Court of Canada decided that the standard of review on questions of mixed fact and law such as the Consent and Capacity Board’s determination of capacity is one of reasonableness. An unreasonable decision is one that is not supported by any reasons that stand up to a somewhat probing examination. After consideration of some of its earlier decisions, in particular, Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, Justice Major, speaking for the majority, concluded at paragraphs 84 and 88:

84 The question under review is the Board’s determination of capacity. This is a question of mixed fact and law: the Board must apply the evidence before it to the statutory test for capacity. In the absence of any error in law, this question is relatively fact-intensive: see Southam, supra, at paras. 35-37. Applying the pragmatic and functional approach to this question, it is clear that reasonableness is the appropriate standard of review.

88 These countervailing factors call for review of the Board's determination of capacity on a reasonableness standard. The standard of reasonableness ‘involves respectful attention, though not submission’ to the Board's reasons: see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at para. 49. An unreasonable decision is one that ‘is not supported by any reasons that can stand up to a somewhat probing examination’: see Southam, supra, at para. 56.

Issues Raised on this Appeal

[20] As noted above, the amicus curiae raises three issues:

• Issue 1 – The Board misapprehended relevant evidence;

• Issue 2 – The Board failed to consider relevant evidence that was helpful to the Appellant; and

• Issue 3– The Board misapplied the test for capacity.

Issue 1 – The Board misapprehended relevant evidence

[21] Mr. Davies notes that the Board found, as a fact, that on her October 15, 2010 admission, the Appellant’s blood level of Epival was 35. This is not in accordance with the evidence. Dr. Bazile testified that the level of Epival, at that time, was 183. It is submitted by the amicus that this misapprehension of the evidence is central to the Board’s analysis. Based on the misapprehended view that the Epival levels were 35, the Board concluded that Ms. King’s testimony that she was taking the medication was not believable and that Ms. King would not receive the proper dosage of the medication unless she was placed in long‑term care. The amicus says there is no answer to this misapprehension that the misperceived value of 35 and the actual value of 183 are both below the therapeutic range of 350 to 500. He argues, firstly, that the Appellant is entitled to a decision based on the actual evidence and not a misapprehended version of it and that, secondly, the Board may have found that the 183 value was closer in accordance to Ms. King’s own evidence that she would occasionally vomit after taking the Epival. In his view, had the Board not misapprehended the evidence, it would not have necessarily taken the view it did of Ms. King’s credibility.

[22] He cites a further decision of the Supreme Court in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R 732 where Justice Binnie notes that an error in the appreciation of the evidence is one that would have affected the outcome. The amicus also relies on the Ontario Court of Appeal’s earlier decision in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, in particular, this conclusion at paragraph 93:

93 When will an apprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. When a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and it not a ‘true’ verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depended on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[23] In response to this issue, the Respondent argues that nothing turns on the fact that the Board made a wrong factual finding that Ms. King’s blood level was 35 at the time of her October 15, 2010, admission. Those were her levels from her August admission. The evidence before the Board was that Ms. King’s levels were at 183 on October 15, 2010. Dr. Bazile testified that the appropriate levels are between 350 and 500 and at the time of the October admission, Ms. King was hypomanic and, as a result, had no judgment. Ms. Lebreton testified that the conclusion made at the time of Ms. King’s admission in October was that she could not have been taking her medications at home given her low levels on that admission. The Board heard and noted Ms. King’s evidence that she was taking the medication but that it was causing her nausea and that her vomiting could have resulted in the lower readings of Epival. The Respondent says the error to cite the correct level of Epival would not have affected the outcome since her true reading was at approximately 50% or less than it should have been. Dr. Bazile’s observation that Ms. King was hypomanic upon her readmission supports the Board’s conclusion that she was not taking her medication as required. Moreover, Ms. King’s credibility was seriously undermined by her denials that she had refused the assistance of the various service providers.

Issue 2 – The Board failed to consider relevant evidence that was helpful to the Appellant

[24] The amicus submits the following facts were set out in clinical notes made when the Appellant was admitted to the hospital on October 15, 2010. These notes made by hospital emergency room staff were potentially helpful to Ms. King’s case yet no reference was made to them by the Board. Those notes showed that Ms. King’s ileostomy was “intact and clean” and that Ms. King was in “good hygiene”. They noted that Ms. King was “co-operative and appropriate during the interviews.” Those notes also made reference to the fact that Ms. King states that she had been taking Epival but “she’ll only take 500 ml of Epival because it makes her vomit”. Similarly, the amicus notes that the Board did not cover appropriate consideration to Ms. Lebreton’s evidence that Ms. King was quite capable of understanding the concept of a nursing home and what it had to offer. In the same vein, Dr. Bazile testified that the Appellant was capable of understanding the nature of a long‑term care facility. The amicus submits that the Board’s failure to consider this evidence was an error.

[25] The Respondent notes that the Board has no obligation to mention all of the evidence in its reasons. More importantly, this evidence is not in and of itself determinative of the issue before the Board; one can be clean, co-operative and one can understand what a nursing home is yet still be incapable within the meaning of s. 4 of the Act and this is what the Board determined.

Issue 3– The Board misapplied the test for capacity

[26] The amicus cites the Starson decision where the Supreme Court of Canada made it clear that the Board’s legislative mandate is “to adjudicate solely on the patient’s capacity.” The Board is not to concern itself with the patient’s so‑called “best interests.” The amicus submits that the Board departed from its assigned task and strayed into concerns over Ms. King’s best interests. Specifically, the amicus cites the Board’s concerns that unless Ms. King was placed in a long‑term care facility she would not receive proper medication. The amicus submits that the Board went beyond its mandate which was solely to address Ms. King’s capacity to make decisions.

[27] The Respondent agrees that the only question for the Board was to determine whether or not Ms. King: 1) was able to understand the information that is relevant to making a decision about the admission to a long‑term care facility and 2) was able to appreciate the reasonable foreseeable consequences of a decision or a lack of decision.

[28] The Respondent notes that while all of the witnesses agreed that it was in Ms. King’s best interests to be admitted to a care facility, the Board’s reasons demonstrate that it well understood that the issue before it was not what was in her best interests, but, rather, her mental capacity to make the decision about admission to a long-term care facility. The Respondent notes the following paragraphs of the Board’s decision which read as follows:

Ms. BK does not want to go to a long‑term care facility but cannot verbalize the reasons why. She no longer has the ability to understand and appreciate concerns regarding her self‑care, her need for ongoing assistance and her need for a supervised setting. Ms. BK cannot understand that it is no longer safe for her to remain without medication and necessary support in her apartment. The Board is satisfied Ms. BK will not receive the proper dosage and delivery of antipsychotic medication required to treat her mental disorder unless she is placed in a long‑term care facility. Her evidence that she was adhering to the requirements of the Community Treatment Order by taking the medications prescribed and accepting the necessary services is not believable in light of the contradictory evidence provided by her son and by Dr. Bazile.

As a result, the evaluator’s evidence was sufficiently cogent and compelling to overcome the presumption that on December 3, 2010 Ms. BK had the capacity for making decisions with regard to her admission to a care facility.

Analysis and Decision

[29] Having regard to the standard review, I conclude that the Board’s decision was a reasonable one. In Starson, the Supreme Court interpreted the statutory test at p. 761:

… First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. ... Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. …

[30] Since both counsel have made extensive reference to the Starson decision, it is useful to consider the facts of that case. Professor Starson was described as an exceptionally intelligent man and a leading physicist who suffered from a bi-polar disorder. His erratic behaviour and tendency to utter death threats brought him into conflict with the criminal law. He refused to take medication that would have stabilized his condition because it produced undesirable side effects. He refused all treatment except psychoanalysis. The majority in Supreme Court of Canada concluded in the end that he had the capacity to make that decision because he knew and understood that his mental functioning was not normal and was aware of the consequences of his failure to take medication. In the end, it was his decision to make whether or not it was in his “best interests” to take the medication.

[31] I agree with the Respondent that this is a critical distinction in this Appeal. Ms. King does not acknowledge the problems that were documented and reported by the community support workers and the other professionals who were attending upon her. She simply denies these problems exist. She denies that she has refused access to her home. In the face of clear evidence to the contrary, she steadfastly maintained her position that there were no problems complying with the community treatment order. She claims that she is able to look after herself and refuses to go into a long‑term care facility although she cannot articulate why.

[32] The Consent and Capacity Board properly focused on the issue of medication since Ms. King’s compliance with her medication regime is what allows her to cope adequately with her condition. While the Board may have cited the wrong Epival level in its decision, this error did not play an essential part in the Board’s reasoning process. There was other evidence to support the Board’s finding that Ms. King was non-compliant with her medication. It was clear that the correct reported level of 183 was still much less than the recommended level. Dr. Bazile observed that she was hypomanic at the time of her re-admission. Ms. King acknowledged that she was only taking 500 of Epival and that it made her vomit. While she offered this as an explanation for her low reading on re-admission, she did not acknowledge that these low levels might have impacted her judgment.

[33] Her son testified that his mother had no idea about the procedure or timing of her prescribed medications and that this confirmed to him that she was not taking them properly, if at all. Dr. Sarazin concluded that Ms. King’s longstanding non-compliance with psychotropic medication was exacerbated by the presence of cognitive impairment and that she no longer had the ability to understand and appreciate issues pertaining to her self-care, need for assistance, and need for a supervised setting. Dr. Bazile testified that Ms. King lacked insight into her condition.

[34] I do not consider the Board’s failure to cite the items of beneficial evidence as fatal. The Broad had all of the nursing notes before it and had the benefit of Ms. King’s own evidence.

[35] The Board well understood that the issue before it was not what was in Ms. King’s best interests, but, rather, her mental capacity to make a decision about her admission to a care facility. The Board concluded that “she no longer has the ability to understand and appreciate concerns regarding her self-care, her need for ongoing assistance and her need for a supervised setting.”

[36] In its reasons, the Board noted Ms. King’s history of bipolar illness and that recent neurological testing determined that her degree of cognitive impairment further impaired her capacity. The Board found that the evidence established, on a balance of probabilities, that Ms. King failed both aspects of the two-part capacity test. She could not understand the information relevant to making a decision about an admission to care facility and was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision as at the date of the hearing.

[37] The evidence disclosed that Ms. King could not understand the importance of maintaining the appropriate level of psychotropic medication and the additional need to have her use of it supervised. Without these levels being maintained at an adequate level she became hypomanic and disconnected from the support services that may have allowed her to live independently surroundings. She refused access to service providers and then denied that any such refusals took place. She lacked any insight as to what was happening around her. While she could say that she did not want to be admitted to care facility, she could not specify why. By denying that there had been any consequences from her short-lived attempt to live on her own, she demonstrated that she did not appreciate the foreseeable consequences of not being admitted to long-term care facility.

[38] In conclusion, I find the Board’s decision to be reasonable and dismiss this appeal.

Mr. Justice Robert N. Beaudoin

Released: November 17, 2011

CITATION: King v. Lebreton, 2011 ONSC 6820

DIVISIONAL COURT FILE NO.: 10-DV-1695

DATE: 2011/11/17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BEAUDOIN J.

BETWEEN:

In THE MATTER OF an appeal from a decision of the

Consent and Capacity Board,

Pursuant to the Health Care Consent Act, S.O. 1996 c. 2, Schedule A

As amended

AND IN THE MATTER OF

BERNICE KING

A patient at

THE OTTAWA HOSPITAL - GENERAL CAMPUS

Ottawa, Ontario

BETWEEN:

BERNICE KING

Appellant

– and –

MARIE-ANDRE LEBRETON

Respondent

– and –

CHANTAL GAGNON

Respondent

REASONS FOR JUDGMENT

Beaudoin J.

Released: November 17, 2011