ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 03-84/11
DATE: 20120309
IN THE MATTER OF
an appeal from a decision of the Consent and Capacity Board, pursuant to the Health Care Consent Act, 1996, SO 1996, c 2, Schedule A, as amended
AND IN THE MATTER OF Isabelle Duroche a patient at CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET DIVISION Toronto, Ontario
BETWEEN:
ISABELLE DUROCHE
Appellant
– and –
DR. KIRAN SOMAL
Respondent
In Person, Self-represented
Nyranne Martin, for the Respondent
Allen Welman, Amicus Curiae
HEARD: March 6, 2012
T. McEwen J.
REASONS FOR DECISION
[ 1 ] The Appellant, Isabelle Duroche (“Duroche”) appeals from the decision of the Consent and Capacity Board (“the Board”), dated July 27, 2011, which found her incapable with respect to treatment with antipsychotic and thyroid medication.
[ 2 ] Duroche requests that the decision of the Board be quashed and in its place this Court find that she is capable with respect to the proposed treatment or, alternatively, the Court should remit the matter back to the Board for a new hearing.
Overview
[ 3 ] In July 2011, Duroche was brought to the Centre for Addiction and Mental Health (“CAMH”) and subsequently admitted as an involuntary psychiatric patient.
[ 4 ] On July 21, 2011, Dr. Kiran Somal (“Somal”) concluded that Duroche was incapable of consenting to treatment with antipsychotic and thyroid medication. At that time, Somal renewed Duroche’s Certificate of Involuntary Status and found that she was also incapable of consenting to the collection, use or disclosure of personal health information. Duroche applied to the Board for review of these findings.
[ 5 ] The hearing took place on July 27, 2011. After a full hearing, where viva voce evidence was heard and where Duroche was represented by counsel, the Board upheld Somal’s findings. It confirmed Duroche’s involuntary status. It found that she was incapable of consenting to treatment with antipsychotic and thyroid medication and of consenting to disclosure of her personal health information.
[ 6 ] Duroche did not appeal the Board’s decisions regarding her incapacity to consent to disclosure of her personal health information and her involuntary status.
[ 7 ] The single issue in this appeal relates to the Board’s finding that she is incapable of consenting to treatment of antipsychotic and thyroid medication.
The Law
[ 8 ] The law with respect to the issue of capacity is aptly set out in the decision of the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, in which it is stated:
77 The law presumes a person is capable to decide to accept or reject medical treatment: s. 4(2) of the Act. At a capacity hearing, the onus is on the attending physician to prove that the patient is capable. I agree with the Court of Appeal that proof is the civil standard of a balance of probabilities. As a result, patients with mental disorders are presumptively entitled to make their own treatment decisions. Professor D. N. Weisstub, in his Enquiry on Mental Competency: Final Report (1990), at p. 116 (“Weisstub Report”), notes the historical failure to respect this presumption:
The tendency to conflate mental illness with lack of capacity, which occurs to an even greater extent when involuntary commitment is involved, has deep historical roots, and even though changes have occurred in the law over the past twenty years, attitudes and beliefs have been slow to change. For this reason it is particularly important that autonomy and self determination be given priority when assessing individuals in this group.
The Board must avoid the error of equating the presence of a mental disorder with incapacity. Here, the respondent did not forfeit his right to self-determination upon admission to the psychiatric facility: see Fleming v. Reid, supra, at p. 86. The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act.
78 Section 4(1) of the Act describes these elements as follows:
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.
[ 9 ] In Starson, the Court further held that the determination of capacity is a question of mixed fact and law. In such a case, the standard of review is that of reasonableness. Furthermore, the Court in Starson accepted that the standard of reasonableness is a differential standard and that absent demonstrated unreasonableness, there is no basis for judicial interference with finding of facts or the inference drawn from the facts.
Analysis
[ 10 ] Duroche is 60 years of age and is of no fixed address. She states that she is originally from France and has no family or close supports in Toronto. She has been living on the streets since 1991. She has a long standing diagnosis of schizophrenia and for several years has been followed by the Multidisciplinary Outreach Team (“MDOT”) and Dr. Doan (“Doan”). It is unclear as to how she supports herself and manages on a day-to-day basis. The Office of the Public Guardian and Trustee has appointed a substitute decision-maker for her, Bonnie Benedict (“Benedict”). She is also followed by Stephanie Samoila (“Samoila”), a Social Worker.
[ 11 ] Her most recent admission to CAMH followed concerns of Doan and Samoila. Duroche was not meeting with MDOT regularly and was non-compliant with her medication. Furthermore, she exhibited some assaultive behaviour towards Doan when they met in early July 2011.
[ 12 ] Mr. Allen Welman appeared on behalf of Duroche at the hearing of the appeal as amicus curiae. Mr. Welman argued, and he described this as “the heart and soul” of his argument, that the Board erred in ignoring or overlooking a significant piece of evidence at the Board hearing. That evidence, found at p. 15 of the transcript of the hearing, involved a note prepared by Dr. Sims (“Sims”), a doctor at CAMH, regarding the treatment of Duroche’s thyroidism. Sims’ note disclosed that he met with Duroche the day before the hearing. The note that he prepared disclosed that Duroche was agreeable to treatment at that time.
[ 13 ] Mr. Welman argued that there was no evidence adduced subsequent to Sims’ note to indicate that Duroche was not taking her treatment. Therefore, he submits, there was evidence before the Court to deem her capable, at least with respect to the thyroid medication.
[ 14 ] Ms. Nyranne Martin, on behalf of the Respondent, Somal, submits that this one piece of evidence, taken on its own, pales in comparison to the totality of all of the evidence that illustrates that Duroche can neither understand the information that is relevant to making a treatment decision, nor can she appreciate the reasonably foreseeable consequences of the decision, or lack of the decision. Ms. Martin further argues that taken at its highest, the comment that Duroche made to Sims can only demonstrate that she will or may take medication; it does not speak to her capacity to consent.
[ 15 ] I agree with Ms. Martin. After carefully reviewing the transcript of evidence and the record of appeal, I find that the totality of the evidence overwhelmingly supports the conclusion of the Board. The evidence clearly discloses that Duroche has longstanding problems with schizophrenia that have resulted in her inability to understand, retain and use information that would be relevant to the treatment in question in this appeal. The Board had before it the evidence of Duroche, Somal, Samoila and Dr. Burhan, the supervising physician to Somal and a geriatric neuropsychiatrist. Their evidence clearly demonstrated that Duroche is uncooperative with her treatment and has fixed delusional and paranoid beliefs. Somal, in particular, testified that he could not sustain a conversation with Duroche with respect to the reason for treatment and the risks and benefits of not receiving the treatment. He testified that throughout his conversation she would talk about her delusional beliefs and it would distract her from the conversation. Somal also reported that if the hypothyroidism went untreated, Duroche could face a life-threatening crisis. His evidence was buttressed by both Burhan and Samoila.
[ 16 ] Duroche, in response, testified at the hearing that she did not believe that she had a mental condition or a thyroid problem and felt that the thyroid medication was dangerous to her health. She believed that both her hospitalization and the treatment plan for medication was a case of false arrest and mistaken identity.
[ 17 ] In the circumstances, I find that the Board’s conclusion of incapacity with respect to the issue of treatment with antipsychotic medication and thyroid medication was reasonable.
Disposition
[ 18 ] Based on the above, the appeal is dismissed. As per the agreement of the parties, there shall be no order as to costs.
T. McEwen J.
Released: March 9, 2012
COURT FILE NO.: 03-84/11
DATE: 20120309
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ISABELLE DUROCHE Appellant – and – DR. KIRAN SOMAL Respondent
REASONS FOR DECISION
T. McEwen J.
Released: March 9, 2012