ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 03-95/10
DATE: 20120215

B E T W E E N:

K.M. Appellant

James A. Carlisle , for the Appellant

• and -

DR. SHAMMI Respondent

Barbara Walker-Renshaw , for the Respondent

HEARD: November 10, 2011

GRACE J.

REASONS FOR JUDGMENT

A. Background

[ 1 ] On June 19, 2010, K.M.’s long history of mental illness led her to enter a residence without invitation. The police were called. K.M. was apprehended, brought to Scarborough Hospital and admitted involuntarily.

[ 2 ] The certificate of involuntary admission was renewed twice.

[ 3 ] On August 12, 2010, K.M. was transferred to Whitby, Ontario and admitted to Ontario Shores Centre for Mental Health Sciences (“Shores”). K.M. was placed in the care of Drs. Shammi and Ravindran.

[ 4 ] Agitation and erratic behaviour had been reported and was observed. The treating doctors reached the conclusion K.M. suffered from a schizoaffective disorder. Treatment was recommended but only occasionally accepted.

[ 5 ] K.M.’s symptoms continued. On August 17, 2010, Dr. Shammi made a finding of incapacity under the Health Care Consent Act (the “ HCCA ”). [1] K.M. applied to the Consent and Capacity Board (the “Board”) for a review of that decision as the HCCA permits.

[ 6 ] On October 8, 2010, the Board released reasons for its earlier decision confirming K.M.’s involuntary admission to Shores. The Board also concluded K.M. was incapable of consenting to treatment with antipsychotic, anxiolytic and anticholingeric medication and ancillary procedures but capable of consenting to treatment with antidepressants and mood stabilizers.

[ 7 ] K.M. had delivered a notice of appeal before the release of reasons. [2] Thereafter the matter stalled. On July 28, 2011, Conway J. directed the Attorney General of Ontario to select amicus curiae . Eventually, Mr. Carlisle was appointed and performed his duties admirably.

[ 8 ] As discussed in some detail later in these reasons, on October 18, 2011, amicus and counsel acting for another treating physician attended before me. The appeal was scheduled to be heard on November 10, 2011.

B. The November 10, 2011 Hearing

[ 9 ] The matter came on before me again as scheduled. I accepted the argument of Ms Walker-Renshaw, counsel for Dr. Shammi, that the appeal had become moot. The Court had residual jurisdiction to hear the matter notwithstanding that conclusion. However, I declined to exercise it.

[ 10 ] The relevant portions of the endorsement I wrote that day are set forth below:

The decision of the Consent and Capacity Board (“Board”) dated October 8, 2010 (“decision”) was made while the appellant was an involuntary patient at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”).

The Board determined that K.M. was suffering from a mental disorder, that K.M. would suffer mental deterioration if untreated, that she would leave Ontario Shores if not there on an involuntary basis and that she was incapable of consenting to treatment with antipsychotic, anti-anxiety and other medication designed to address their side effects.

Through no fault of amicus, this appeal has proceeded slowly. In fact, it is only because of the efforts of amicus that this matter has come to a hearing at all.

As a result of the passage of time, the events leading up to the September 30, 2010 hearing before the Board seem dated.

K.M. has not been at Ontario Shores for some time. She is now an involuntary patient at St. Michael’s Hospital. Her involuntary status was confirmed by the Board on November…8, 2011.

Apparently she is to attend in Mental Health Court as I write this endorsement due to an incident last night.

She is no longer being treated by Dr. Shammi. She is now under the care of Dr. Law.

This appeal was not argued on the merits because of my concern this appeal is moot.

It seems clear to me that the focus of the parties and of the Board on September 30, 2010 was on K.M.’s capacity to consent to treatment while an inpatient at Ontario Shores.

There is no longer a “live controversy” between those parties: Borowski v. Canada (Attorney General), 1989 123 (SCC) , [1989] 1 S.C.R. 342 at para. 26 ; A.M. v. Benes (1999), 1999 3807 (ON CA) , 46 O.R. (3d) 271 (C.A.).

While I propose to expand upon my reasons for that conclusion and my decision not to exercise the discretion to hear the appeal on its merits later, it is important to K.M. and others that this appeal be disposed of with dispatch.

For these and further reasons to follow, I conclude:

a) This appeal is moot;

b) I decline to exercise the Court’s discretion to decide the appeal on the merits;

c) While the effect is the dismissal of the appeal, the reality is the final determination of K.M.’s application under s. 32 of the Health Care Consent Act, 1996 was made on October 8, 2010 (sic); [3]

d) In my view, s. 32(5) of that statute would not preclude K.M. from making a new application to review any subsequent finding of incapacity as was apparently made by Dr. Law on November 24, 2010…

e) In light of the fact the Board’s decision was not reviewed on the merits, K.M. and others are at liberty to argue what, if any, precedential value the Board’s October 8, 2010 (sic) decision has going forward. [4]

C. Additional Reasons

[ 11 ] These are the additional reasons I promised to deliver.

[ 12 ] The HCCA requires the Court to “fix for the hearing of the appeal the earliest date that is compatible with its just disposition”. [5] However, such a date cannot be set unless the necessary material is filed with the Court. The appellant either failed or was unable to take the required steps. Conway J. attempted to expedite the proceedings with her endorsement. Unfortunately, several more months passed before amicus was appointed.

[ 13 ] Mr. Carlisle acted quickly to ensure the appeal was ready for argument and scheduled. However, other issues arose.

[ 14 ] Unsurprisingly given the passage of time, K.M.’s circumstances had changed. She had been discharged from Shores shortly after the Board’s decision. [6] Unfortunately, she was involuntarily admitted to St. Michael’s Hospital on November 22, 2010.

[ 15 ] Observations and then a diagnosis were made. Further treatment was recommended and refused. The treating physician made a new finding of incapacity. K.M.’s applied to the Board for a review. K.M.’s application was successful because Dr. Shammi’s earlier finding of incapacity was the subject of an unresolved appeal. [7]

[ 16 ] In February, 2011, K.M. was discharged from St. Michael’s Hospital. She was placed under the care of Dr. Law as an outpatient with the CONTACT mental health team. In light of the pending appeal and the subsequent decision of the Board, recommended treatment could not be administered without K.M.’s cooperation. Consent was not forthcoming.

[ 17 ] Consequences flowed. Dr. Law deposed that K.M. became more delusional, paranoid and unpredictable. Aggressive, even violent, behaviour was reported. Offers of food and shelter were withdrawn.

[ 18 ] On September 27, 2011 an order was made under s. 16 of the Mental Health Act . [8] K.M. was taken into custody a day later and brought to St. Michael’s Hospital for examination by a physician. Once again, K.M. was admitted involuntarily.

[ 19 ] In an effort to stabilize and then improve the situation, Dr. Law sought leave to intervene in the appeal and an order which would result in K.M. receiving antipsychotic medication. That motion was withdrawn on October 18, 2011 when a return date for the appeal was scheduled.

[ 20 ] I reached the conclusion the appeal was moot with that factual background in mind. During proceedings before the Board on September 30, 2010, Dr. Ravindran expressed hope K.M. would be discharged within a few weeks. During cross-examination he confirmed K.M. was “on the cusp of getting better”.

[ 21 ] I noted that the Board confirmed K.M.’s incapacity to consent to certain treatment in conjunction with the Board’s confirmation of her involuntary admission to Shores. I was satisfied that K.M.’s discharge constituted an event which terminated the relationship between K.M. and Dr. Shammi. That chapter of K.M.’s treatment seemed to me to have ceased to have any practical significance.

[ 22 ] Mr. Carlisle brought s. 32 (5) of the HCCA to my attention . It provides:

If a health practitioner’s finding that a person is incapable with respect to treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance. [Emphasis added]

[ 23 ] Mr. Carlisle raised the possibility that the section would prevent K.M. from challenging a health practitioner’s finding of incapacity for six months even if I decided the appeal was moot and declined to hear it.

[ 24 ] For the purpose of this analysis, I am prepared to accept that the words “final disposition” contemplate a decision of the Board that becomes unassailable either because an appeal is not commenced within the time the HCCA requires or because an appeal is decided against the patient on the merits. [9]

[ 25 ] However, I am of the opinion the Court is not the body responsible for the “final disposition” of an application concerning a person’s capacity if the Court declines to hear an appeal because it is moot. In that circumstance, the Board’s decision constitutes its “final disposition” because the Board considered and adjudicated upon the substance of the dispute. If a matter is moot and the Court declines to hear it, the Court does not hear the merits of the arguments, let alone decide them. [10]

[ 26 ] In this case, final disposition of K.M.’s application occurred on September 30, 2010 when the Board released its decision. [11] Because the appeal was moot I did not consider Mr. Carlisle’s contention that the Board relied on inadmissible evidence. Nor did I consider the suggestion the Board unreasonably concluded that K.M. was unable to appreciate the consequences of accepting or refusing treatment.

[ 27 ] Had I heard the appeal on the merits, the reach of s. 32 (5) of the HCCA may have been extended to the date of my decision . Declining to hear the appeal because it was moot eliminated that risk.

[ 28 ] I also considered the second stage to the inquiry. Generally the court will refuse to hear cases which have become moot. However, the Court retains jurisdiction to hear such matters and may do so in special circumstances. Those include cases involving issues which are important to the parties in some collateral proceeding or which advance an issue of significance to the public. [12]

[ 29 ] Those factors were not present here. Dr. Shammi no longer treated K.M. K.M. was no longer a patient of Shores. The issues to be resolved between the parties to the appeal were entirely academic.

[ 30 ] As mentioned, if the appeal had been determined on its merits adversely to K.M., s. 32 (5) of the HCCA would likely have applied. If so, K.M. would have been presumptively prevented from reviewing a health practitioner’s finding of incapacity until well into 2012. The earlier finding of incapacity would be unchallengeable unless K.M. could satisfy the Board “that there had been a material change in circumstances that justifies reconsideration of the person’s capacity.” [13]

[ 31 ] Given the passage of time, it is entirely possible K.M. could meet that test but why should she bear that onus? She was released from Shores in October, 2010. She had been in, out of and back into St. Michael’s Hospital during the next thirteen months.

[ 32 ] Observations made by Drs. Ravindran and Shammi had been superseded. K.M. had been seen by several other psychiatrists with more recent and more relevant information concerning K.M.’s condition, symptoms, treatment and capacity.

[ 33 ] Applicable legislation recognizes that a patient’s circumstances, including capacity, can change. [14] If K.M.’s capacity continues to be in issue, it should be determined with the greatest emphasis on current information.

[ 34 ] Determining the appeal notwithstanding the fact it is moot would not, in my opinion, have assisted anyone. In fact, it may have done K.M. harm. Even if Mr. Carlisle’s arguments had found favour, setting aside the Board’s decision would not insulate K.M. from a subsequent finding of incapacity. Dismissing the appeal would have complicated or even barred K.M.’s efforts to challenge the finding for six months.

[ 35 ] It was in the interests of justice to allow the Board’s decision to move quietly into the past. Sadly, it seems K.M.’s journey continues along a difficult path.

GRACE J.

Released: February 15, 2012