ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51609
DATE: 2012-03-21

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

M.G.

A RESIDENT OF

Ottawa, Ontario

BETWEEN:

M. G. Appellant – and – DR. CHANTAL WHELAN Respondent

Michael Davies, Foord Davies LLP, for the Appellant

Laura B. Stewart, Gowling Lafleur Henderson LLP, for the Respondent

HEARD: January 27, 2012, at Ottawa, Ontario

REASONS ON APPEAL

Madam Justice B. R. Warkentin

Introduction

[ 1 ] M. G., the Appellant, appeals the decision of the Consent and Capacity Board (“CCB”) dated September 24, 2010 with Reasons dated October 5, 2010.

[ 2 ] M. G. is subject to a Community Treatment Order (“CTO”) under the Mental Health Act [1] . The CTO permits him to live in the community but requires him to attend appointments with his psychiatrist, Dr. Whelan, the Respondent in this proceeding, and other members of the Carlington Assertive Community Treatment Team. The CTO also requires M. G. to take the medication prescribed by his psychiatrist. Failure to follow any of the conditions of the CTO may result in M.G.’s immediate hospitalization.

[ 3 ] Dr. Whelan is a psychiatrist at the Carlington Community Health Services. She is also the psychiatrist for the Assertive Community Treatment Team based at the Carlington Community Health Services.

[ 4 ] Since February 12, 2010, M. G. has been treated pursuant to the current CTO. The CTO was renewed procedurally for the first time, unchallenged by M. G.

[ 5 ] The CTO was renewed for the second time on August 4, 2010 also unchallenged by M. G. However, section 39 of the Mental Health Act, requires a mandatory review of the CTO by the CCB on every second renewal of a CTO. The mandatory review was conducted on September 23, 2010 before a three member panel of the CCB. M. G. was present with his lawyer and gave evidence as did Dr. Whelan. The CCB's decision was released on September 24, 2010, with written reasons delivered on October 5, 2010.

[ 6 ] M.G.’s position on appeal was that although he was incapable at the time the original CTO was entered into, his mental health had improved to such an extent that at the time of the CCB hearing in September 2010, he was then capable of making his own treatment decisions. M. G. claims that if he was indeed capable of making his own treatment decisions in September 2010, the consent previously provided by the substitute decision maker was no longer of any force or effect and therefore the CTO could not be renewed.

[ 7 ] There are two issues on this appeal. The first is whether the CCB, when conducting its mandatory review of a CTO renewal, must determine whether or not the person subject to the CTO is capable or incapable of making treatment decisions at the time of the hearing where the consent for the CTO was previously provided by a substitute decision maker. Did the CCB make that assessment in the review proceeding on September 23, 2010?

[ 8 ] Secondly, if the CCB was required to determine M. G.'s capacity to making treatment decisions did they properly make that assessment in the review proceeding on September 23, 2010 and was their finding of incapacity reasonable and supported by sufficient reasons?

Standard of Review

[ 9 ] The question of whether the CCB was required to determine the issue of capacity at the time of the hearing is a question of law. The standard of review of decisions of the CCB on questions of law is correctness [2] .

[ 10 ] The questions of whether or not the CCB was required to determine if M. G. was incapable of making treatment decisions before rendering a decision and if that decision was supported by sufficient reasons, are questions of mixed fact and law for which the standard of review is reasonableness [3] .

Facts

[ 11 ] M. G.’s known psychiatric history dates back to 2003 when he was first hospitalized following auditory hallucinations and paranoid delusions. Between 2000 and 2003 M. G. had been treated for anxiety, depression, symptoms of attention deficit disorder and social difficulties via a community psychiatrist.

[ 12 ] From 2003 to the time of the review hearing, M. G. has been hospitalized on multiple occasions for lengthy periods. M. G. was diagnosed with paranoid schizophrenia following his first hospitalization. M. G. has been hospitalized on the following occasions:

(a) August 28 to September 17, 2003 at the Ottawa Hospital, General Campus after discontinuing his medication which was prescribed for emerging psychotic symptoms. He was experiencing auditory hallucinations of noises and was convinced a female was being raped or killed. He phoned the police repeatedly. He also harboured paranoid delusions about people in the neighbourhood. He was admitted under a Form 3.

(b) October 17 to December 16, 2003, M.G. was admitted to the Acute Partial Hospitalization Program.

(c) September 21, 2004 to March 4, 2006, M.G. was admitted to the Psychosocial Rehabilitation Program at the Royal Ottawa Mental Health Centre.

(d) April 23 to June 2, 2008, M. G. was admitted to the Ottawa Hospital, General Campus on Forms 1 and 3 after he stopped taking certain medications. M. G. was experiencing delusional beliefs and auditory voices. He was hearing the voice of a screaming woman and was convinced that women and children were sexually victimized. He had ongoing delusional beliefs about organized crime. He told his father that he would commit suicide if he could not save the presumed female victim. He also had delusions about being poisoned with arsenic and heavy metals.

(e) October 5 to December 8, 2008, M. G. was admitted to the Ottawa Hospital General, Campus again on Forms 1 and 3 because he had discontinued his medications in favour of homeopathic remedies. M. G. was experiencing auditory and visual hallucinations and paranoid delusions. Prior to this hospitalization, M. G. had purchased a samurai sword and tried to break down a neighbour’s door in response to his delusional beliefs.

(f) January 17 to February 12, 2010, M. G. was admitted to the Ottawa Hospital Civic Campus in a delusional state. M.G. had delusional beliefs that his roommate was attempting to poison him. That roommate became afraid of M. G. and contacted the police.

[ 13 ] Between October 25 and December 8, 2008, M. G. was found incapable of managing his medical care and his parents acted as his substitute decision makers. M.G. refused medication and contested his incapacity before the CCB. The finding of incapacity was upheld by the CCB.

[ 14 ] M. G. was first placed on a CTO upon his release from the Hospital in December, 2008 with his parents acting as substitute decision makers. He was assessed on December 3, 2009 at which time he was found to be in a poor physical state with disorganized thoughts. M. G. had discontinued taking his medications in October 2009 and was preoccupied with the belief that the pharmaceutical industry concealed toxic effects of medication. M. G. also believed that sex trafficking went on in his neighbourhood. He was preoccupied with themes of surveillance and a connection between the psychiatric system and organized crime. M. G. was not interested in the ACT team if it included a psychiatrist prescribing medications and monitoring a CTO. He was hospitalized on January 17, 2010.

[ 15 ] M. G. was reassessed on January 19, 2010 by Dr. Whelan. Dr. Whelan described M. G. as very angry, agitated and intent on proving the veracity of his delusional beliefs. She noted that M. G. had no insight into the psychotic nature of his belief system and no awareness of the level of his judgment impairment while acutely ill.

[ 16 ] After receiving treatment including antipsychotic medication, M. G. was discharged from this latest hospital stay under the current CTO on February 12, 2010. He was deemed incapable of making treatment decisions and the Office of the Public Guardian and Trustee was named as substitute decision maker and consented to the CTO. Since his release on February 12, 2010, M. G. has been meeting with the ACT team at least weekly.

[ 17 ] The finding that M. G. was incapable of making treatment decisions was reviewed and upheld by the CCB in May 2010. M. G. was eligible to reapply to have his capacity to make treatment decisions reassessed by the CCB in November 2010, six months after the May 2010 finding of incapacity. This is a different process then the mandatory review of the CTO that is the subject of this appeal.

Mandatory Review Hearing of the CTO, September 23, 2010

[ 18 ] At the mandatory review of the CTO by the CCB, both M. G. and Dr. Whelan testified.

[ 19 ] Dr. Whelan testified that M. G. had no awareness of the changes in his behaviour and judgment when acutely ill; he had consistently stated that he does not wish to take psychotropic medication and that it has no beneficial effects and may even cause him harm. Dr. Whelan noted that M. G. had no awareness of the beneficial effects of the medication on his illness nor an appreciation of how taking the medication permitted him to live in the community. It was Dr. Whelan's prognosis that without ongoing treatment M. G.'s illness would worsen and in her opinion M. G. had no appreciation of that fact.

[ 20 ] Dr. Whelan testified that M. G. responded quite well to medication. She stated that he continues to experience delusional beliefs even with medication; however, those beliefs do not override all his functions and do not dominate his daily life.

[ 21 ] M. G. testified that he did not feel confident that the diagnosis of paranoid schizophrenia had been confirmed without a doubt, although he recognized that it was a possible diagnosis, but felt it was incomplete. He appeared to admit that when not on medication he had in the past been delusional. He acknowledged experiencing fear regarding his previous actions.

[ 22 ] M. G. did indicate that even without the CTO he would continue to take the prescribed medications, but would prefer to explore alternative explanations for his symptoms and would like to achieve positive changes in his life without the help of medication.

Analysis

[ 23 ] CTO’s were introduced for the purpose of providing “a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility.” The intention is to eliminate an individual’s pattern of improving on medication while hospitalized and deteriorating due to medication non-compliance following discharge, which is often referred to as the “revolving door syndrome”.

[ 24 ] There are several procedural safeguards built into a CTO as follows:

(a) The order expires six months after the day it is made unless it is renewed or terminated earlier.

(b) The order may be renewed for a period of six months at any time before its expiry and within one month after it expiry.

(c) A CTO is terminated when consent is withdrawn, when an order for examination is issued due to a suspicion of non-compliance with the order and upon the physician’s determination that the subject is able to live in the community without being subject to the order, based on a request of the person for a review of his or her condition.

(d) On every second renewal of a CTO, the Consent and Capacity Board is convened for the purpose of ensuring that the renewal criteria set out in Section 33. 1(4) of the Mental Health Act are met.

[ 25 ] The parties did agree that the requirements for the CTO to be issued in the first instance required the consent of either the patient, M. G., or if the patient was not capable, by the patient’s substitute decision maker, the Public Guardian and Trustee. There was also no dispute that when the original CTO was entered into, M. G. was incapable of making his own treatment decisions and the Public Guardian and Trustee correctly consented to the CTO on M. G.'s behalf.

[ 26 ] The parties' confirmed that a substitute decision maker cannot provide consent on behalf of a patient who is capable. It was M. G.’s position at both the CCB hearing and on this appeal, that he was capable at the time of the hearing; therefore the substitute decision maker’s consent was not valid for the 2 nd renewal of the CTO.

[ 27 ] A determination of capacity involves two criteria, first the ability to understand and second the ability to appreciate. A person must understand the information that is relevant to making a treatment decision which requires the cognitive ability to process, retain and understand the relevant information. Secondly, a person must be able to appreciate the reasonably foreseeable consequences of a decision or lack thereof. The person must be able to apply the relevant information to his/her circumstances and weigh the foreseeable risks and benefits of a decision to accept or reject treatment. [4]

[ 28 ] It was M. G.’s position that he was capable of making treatment decisions at the time of the hearing and that the CCB erred by not considering his capacity in reaching their decision. He based this position on the CCB's statement that “This hearing was not an opportunity for M.G. to demonstrate his competency to consent to treatment and thereby challenge this Board’s May 2010 confirmation of his incapacity in that regard.” [5]

[ 29 ] Counsel for the Respondent submitted that the CCB was simply making an observation that the hearing engaged in was a mandatory CTO review hearing rather than a capacity hearing. The CCB was simply recognizing the difference between this review hearing and that its purpose was not to challenge the CCB's finding of incapacity in May 2010.

[ 30 ] S. 39.1(6) of the Mental Health Act requires the CCB to review whether or not the criteria for issuing or renewing a CTO as set out in s. 33.1(4) of the Mental Health Act were met at the time of the review hearing.

[ 31 ] M. G. claimed that if he was capable to make treatment decisions at the time of the review hearing, the consent of the substitute decision maker was invalid. He argued that he as the patient had the authority to revoke the consent of the substitute decision maker.

[ 32 ] In its decision, the CCB acknowledged its obligations under the legislation when conducting a mandatory review hearing. Because it found that M. G. was incapable of making treatment decisions on the date of the review hearing, it did not need to deal with the issue of the validity of the consent of the substitute decision maker.

[ 33 ] The CCB heard evidence from both Dr. Whelan and M. G. on this issue and considered the submissions of counsel for M. G. The CCB accepted Dr. Whelan's evidence that M. G. remained incapable of making treatment decisions at the time of the hearing and it rejected M. G.’s evidence and submissions of his counsel. The CCB found as a fact that M. G. was not capable within the meaning of the Health Care Consent Act [6] .

[ 34 ] The CCB explained that they accepted Dr. Whelan’s evidence that M.G.:

a) had no awareness of the changes in his behaviour and judgment when acutely ill;

b) had consistently stated that the medication has limited beneficial effects and may even be harmful;

c) had no awareness of the beneficial effects of the medication on his illness;

d) did not appreciate how taking the medication permitted him to live in the community;

e) had no appreciation that his prognosis would worsen should he discontinue treatment; and

f) was resolved to discontinue taking his medication.

[ 35 ] The CCB found that M. G. demonstrated no insight into his condition. He did not want treatment for a delusional disorder because in his mind he does not have a delusional disorder. The CCB concluded that M. G. had neither an awareness that he suffers from a mental illness nor an appreciation of the consequences of a decision to accept or refuse treatment. It was on this basis that the CCB concluded that M. G. lacked capacity at the time of the hearing.

Conclusion

[ 36 ] Having reviewed the evidence before the CCB and its written reasons, I am satisfied that the CCB did consider the issue of M. G.'s capacity on the day of the hearing. Based on the reasons provided by the CCB, I find that it did undertake the appropriate analysis and therefore it did not err in law regarding this requirement.

[ 37 ] I also find that the CCB’s decision that M. G. lacked capacity to make treatment decisions was reasonable and adequately explained in its written reasons. M.G. attended the hearing and provided evidence. He was represented by counsel.

[ 38 ] The CCB rendered its decision orally the day after the hearing and then provided written reasons a short time later. The written reasons adequately explained the decision by setting out both parties' positions and why the CCB preferred the evidence of Dr. Whelan over the evidence of M. G. on the issue of his capacity. The CCB is a specialized expert tribunal and therefore is entitled to deference in determining issues of capacity, a matter which is clearly within their expertise.

[ 39 ] The appellant’s application is therefore dismissed.

[ 40 ] I find that this is a case where costs are not appropriate and therefore I make no finding as to costs.

Madam Justice B. R. Warkentin

Released: March 21, 2012

COURT FILE NO.: 11-51609
DATE: 2012-03-21

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: M. G. Appellant – and – DR. CHANTAL WHELAN Respondent REASONS ON APPEAL Warkentin J.

Released: March 21, 2012

[^1]: Mental Health Act, R.S.O. 1990, c. O.26
[^2]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R 190 at para. 51
[^3]: Dunsmuir v. New Brunswick, supra, at para. 51
[^4]: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 at para 78
[^5]: Reasons of the Consent and Capacity Board, October 5, 2010 at pages 14 and 15
[^6]: Health Care Consent Act, R.S.O. 1990, c.2, Schedule A