COURT FILE AND PARTIES

COURT FILE NO.: 11-31189
DATE: 2102-04-05
SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF an appeal from the decisions of the Consent and Capacity Board,

pursuant to the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A as amended

and pursuant to the Mental Health Act , R.S.O. 1990 c.M.7 as amended

AND IN THE MATTER OF F. I., a resident of Hamilton, Ontario

BETWEEN:

F. I.

Appellant

AND:

Dr. Albina Veltman ,

Respondent

BEFORE: The Honourable Robert B. Reid

COUNSEL:
F. I., self-represented
Janice E. Blackburn, Counsel, for the Respondent

HEARD: April 5, 2012

ENDORSEMENT

[ 1 ] This is an appeal from two decisions of the Consent and Capacity Board dated October 28, 2011. Written reasons for the decisions were dated November 2, 2011.

[ 2 ] The Board determined that the criteria for issuing or renewing the Community Treatment Order set out in the Mental Health Act were met at the time of the review hearing and therefore confirmed the Community Treatment Order (CTO). As well, the Board determined that F. I. was not capable with respect to the Community Treatment Plan (CPT) including the anti-psychotic medications as prescribed by Dr. Veltman or her delegate.

[ 3 ] F. I. has been diagnosed with paranoid schizophrenia. He has been subject to Community Treatment Orders since July 2008. Pursuant to the CTO, F. I. attends several times weekly to take required medication.

[ 4 ] In his submissions to the court, F. I. repeated a variety of concerns that were conveyed to the Consent and Capacity Board. These included his view that being forced to take medication impinges unreasonably on his human rights, his dissatisfaction with the substitute decision-maker appointed for him through the Office of the Public Guardian and Trustee and his concerns about the proper administration of the Community Treatment Plan.

[ 5 ] In addition, he raised matters that could be characterized as due process concerns arising from the Board review hearing. These included a lack of clarity about the identity of the presiding officer and the fact that one of the Board members attended by teleconference. As well, F. I. expressed a concern that Dr. Veltman provided to him copies of documents upon which she intended to rely shortly prior to the hearing which he had not had an opportunity to review in advance.

[ 6 ] The court's role in this appeal is set out in s.80 of the Health Care Consent Act, 1996 [1] . An appeal is available on a question of law or fact or both.

[ 7 ] No submissions were made that an error of law existed in the Board’s decisions.

[ 8 ] I have applied a reasonableness standard in considering the Board’s application of the evidence before it to the statutory test for a person remaining subject to a CTO, as set out in section 33.1(4) of the Mental Health Act [2] and for treatment capacity pursuant to section 4 of the Health Care Consent Act, 1996 . I view that exercise by the Board to be a question of mixed fact and law.

[ 9 ] In doing so, it is not my role to determine whether I agree with the decisions of the Board, or whether I would have come to the same conclusion as the Board at the review hearing.

[ 10 ] The onus is on the appellant to satisfy me that the decisions of the Board were unreasonable. In considering the matter, I have had regard to the parties’ submissions and the written material filed, including the reasons given by the Board for its decisions. I have looked particularly at whether the decisions were made based on a reasonable interpretation of the evidence, taking the reasons as a whole. As set out by the Supreme Court of Canada in Fleming v. Starson [3] , “ the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence”.

[ 11 ] The written reasons for decision of the Board dated November 2, 2011 include a comprehensive review of the applicable law under the Health Care Consent Act 1996 and the Mental Health Act . The Board then carefully analyzed the evidence, applying the relevant legislative provisions.

[ 12 ] In my view, on each point, the Board’s decisions were adequately supported by the evidence and its application of the relevant legislation was appropriate. I have no hesitation in finding that its conclusions were reasonable on both matters presented for review.

[ 13 ] I acknowledge and do not minimize F. I.’s concerns as regards the administration of the CTP and as regards his relationship with his substitute decision-maker. The extent to which his views may be affected by his illness is not clear to me. He wishes to be free of the requirement to take medication as directed by Dr. Veltman pursuant to what he characterizes as his human rights. The conundrum is that in failing to recognize his own mental illness, he feeds the medical view that he is not capable with respect to the community treatment plan.

[ 14 ] As to the process concerns, I am not satisfied that any issues raised by F. I. were sufficiently proven, or even if proven were of sufficient weight to represent a significant flaw in the review process.

[ 15 ] The transcript of the review hearing makes it clear that the presiding member did introduce himself and his fellow members. The transcript also reveals that the member attending by teleconference was able to participate even though no specific questions were asked by that member. There is no requirement for every board member to ask questions. To the extent that written materials entered as exhibits in the hearing were provided to F. I. shortly before the hearing such that he did not have an opportunity to review them, I consider that to be a matter of form rather than substance and there is no evidence that F. I. was prejudiced in the hearing as a result.

[ 16 ] For the foregoing reasons, I am satisfied that the decisions by the Consent and Capacity Board were reasonable, and as a result, the appeal is dismissed.

Reid J.

Date: April 5, 2012

[1] S.O. 1996, c.2, Schedule A as amended

[2] R.S.O. 1990 c.M.7 as amended

[3] 2003 SCC 12 , 2003, S.C.C. 12 at paras. 5 , 88