ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51979
DATE: 2012-07-27

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

BETWEEN: J.L.

Appellant – and – DR. KATHLEEN E. HOWELL Respondent (Moving Party)

No one appearing for the Appellant
Michelle O’Bonsawin, for the Respondent (Moving Party)

HEARD: February 10, 2012

REASONS FOR JUDGMENT

Madam Justice B. R. Warkentin

[ 1 ] The Appellant, J. L., appealed the June 23, 2011 decision of the Consent and Capacity Board (“CCB”) which found that J.L. was incapable of consenting to treatment by reason of a mental disorder. J.L.’s Notice of Appeal was filed on July 29, 2011 and an Amended Notice of Appeal was filed on August 26, 2011. J.L. has taken no further steps to proceed with the Appeal.

[ 2 ] In February 2012, the Respondent, Dr. Kathleen E. Howell brought a motion for an interim treatment order for J.L. in accordance with section 19 of the Health Care Consent Act. The grounds for the motion were that J.L.’s mental health had severely deteriorated since July 2011.

[ 3 ] The hearing was conducted in Ottawa on February 10, 2012 with a video conference link from the Brockville Mental Health Centre where J.L. was a patient. J.L. was provided the opportunity to attend the hearing but refused to leave his room. J.L. was not represented by counsel in this motion.

[ 4 ] Based upon the evidence from J.L.’s current psychiatrist, Dr. A.G. Ahmed and after hearing submissions from counsel for Dr. Howell, I found that J.L. was incapable of consenting to treatment and that he was in need of treatment pursuant to s. 19 of the Health Care Consent Act. I ordered that treatment be provided to him without his consent. I agreed to provide these written reasons in due course.

BACKGROUND

[ 5 ] On June 23, 2011, J.L. and his then counsel, Mr. Greenberg, appeared before the CCB in order to contest Dr. Howell’s finding that J.L. was incapable with respect to making treatment decisions.

[ 6 ] After considering the evidence of Dr. Howell the CCB found that J.L. was incapable of consenting to treatment. The CCB decision of June 23, 2011 was followed by written Reasons for Decision on August 2, 2011.

[ 7 ] J.L. filed a Notice of Appeal on July 29, 2011 and an Amended Notice of Appeal on August 26, 2011. By filing a Notice of Appeal, the ability of the treating psychiatrist to treat the patient (J.L.) is suspended in accordance with the legislation, until the Appeal is heard. The Notice also triggers a requirement for the CCB to release the transcript of the proceedings to the parties. The transcripts were provided to the parties on or about September 2, 2011.

[ 8 ] J.L. has a longstanding history of Schizoaffective Disorder with an extensive history of noncompliance with treatment, including antipsychotic medication. The result of his failure to comply with treatment has resulted in recurrent decompensation in his mental health that then requires admission to hospital. His prognosis has been described as guarded due to his incomplete response to medications and the nature of his delusions. J.L. presents a high risk of unauthorized leave from hospital or other facilities and aggression directed at other together with harm from self-neglect.

[ 9 ] In 2006, J.L. was charged with a number of criminal offences contrary to the Criminal Code including assault, possession of weapon for a dangerous purpose, carrying a concealed weapon, unauthorized possession of a weapon, failure to comply with probation and failure to comply with recognizance (three counts). On June 21, 2006, he was found not criminally responsible of these offences by reason of a mental disorder.

[ 10 ] Since June 21, 2006, J.L. has been admitted to hospital on numerous occasions. He was admitted to the Royal Ottawa Mental Health Centre from February 11 to April 2, 2009, from July 7 to September 25, 2009, and from October 23, 2009 to April 8, 2010. On July 21, 2010, J.L. was readmitted to the Royal Ottawa Mental Health Centre under the terms of an Ontario Review Board (“ORB”) disposition because he had again decompensated.

[ 11 ] On July 26, 2010, J.L. was formally assessed by Dr. Kathleen E. Howell and found incapable of consenting to treatment of a mental disorder. He was then treated and by February 27, 2011 had been given a brief pass onto the hospital grounds from which he fled to Manitoba where he ended up in the Acute Psychiatry Unit of the Winnipeg Health Sciences Centre. From there he was returned to the Forensic Assessment Unit of the Royal Ottawa Mental Health Centre and on March 9, 2011 the Ontario Review Board issued "a renewed detention order to 'allow the hospital to determine a proper medication regime…'"

[ 12 ] At the CCB hearing, Dr. Howell testified that when J.L. is untreated he relapses, his illness returns and he presents a significant threat to the public and to himself. She also noted that J.L. suffers from selective mutism and has delusional ideas about his body which are of concern when he is untreated.

[ 13 ] It was Dr. Howell's opinion that the consequences of refusing treatment include continued and worsening psychosis, risk of becoming assaultive towards others and continued detention in hospital. She also testified that should J.L. leave the hospital without antipsychotic medication, there would be a risk of psychotically motivated flight and decreased self-care.

[ 14 ] Dr. Howell noted that J.L. is able to understand information about schizoaffective disorder and its treatment, but because of the illness itself, he cannot recognize that he suffers from it. She confirmed that while in the past he acknowledged he suffered from schizoaffective disorder/schizophrenia; at the time of the CCB hearing he did not believe himself to be ill. She stated that J.L. was unable to discern that when he hears voices and when he is suspicious of others that they are manifestations of his illness. She noted that he has high levels of paranoia about the treatment team, medications and his detention and as such is unable to appreciate that the treatment offered could benefit him.

[ 15 ] J.L. testified at the CCB hearing and claimed that he wanted to be treated in a different hospital that he was of the view that simply talking with a doctor was better than antipsychotic medications which he claimed did not help him. He claimed that vitamins would be the preferable treatment and abstinence from drinking beer and smoking "pot".

[ 16 ] The CCB, quoting from the case of Starson v Swayze [1] noted that "While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental "condition", the patient must also be able to recognize the possibility that he or she is affected by that condition…. if the patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision."

[ 17 ] The CCB accepted the evidence of Dr. Howell that though J.L. was able to understand information about schizoaffective disorder and its treatment, because of the illness itself, he was unable to recognize that he suffers from it. As a result the CCP was satisfied that J.L. was incapable of consenting to treatment.

[ 18 ] J.L. filed a Notice of Appeal from the CCB decision in this court. As a result of J.L.’s appeal of the CCB decision, this court suspended treatment pending the outcome of his appeal, as required by the legislation.

[ 19 ] On January 23, 2012, J.L was transferred to the Forensic Treatment Unit at the Brockville Mental Health Centre. Since the transfer, Dr. A.G. Ahmed has been his treating psychiatrist. Dr. Ahmed assessed J.L. regarding his capacity to consent to treatment on February 6, 2012. In his report dated February 6, 2012, Dr. Ahmed confirmed that, as anticipated by Dr. Howell, J.L.’s condition had deteriorated to the point where Dr. Ahmed believed that treatment was required on an urgent basis.

[ 20 ] Dr. Ahmed noted that J.L.’s appeal of the CCB decision has the effect of suspending treatment indefinitely, pending the outcome of his appeal. As such, he had not been treated with any antipsychotic medication since June 23, 2011.

[ 21 ] As a result of being untreated, J.L.’s mental state became progressively worse and there was an increase in his psychotic symptoms. His behaviour became more intimidating and at the time of the motion, more physically aggressive. On January 31, 2012, J.L. physically assaulted a co-patient and fractured this individual’s hand.

[ 22 ] It was Dr. Ahmed's opinion that J.L.’s mental condition had continued to deteriorate to the point where he was in urgent need of treatment and that further delay would constitute a severe risk to his mental health. He explained that J.L. was presenting florid psychotic symptoms. J.L. believed that his ongoing detention and treatment was a conspiracy among the French, Germans, Russians and the treatment team in an attempt to prevent him from contacting the UN, and his embassy. He also believed that his admission to hospital was part of the persecution that included infecting him with flesh-eating parasites and insects. J.L. did not see himself as having a mental illness or that he was in need of treatment.

[ 23 ] Dr. Ahmed reported that J.L. rarely left his bedroom, only showered infrequently and had to be persuaded to come out of his bedroom. He testified that J.L. presented with an angry demeanour and that he claimed to be afraid of the other patients who he sees as part of the persecution. It was Dr. Ahmed's opinion that it was this paranoia that had overwhelmed his self-control which resulted in the assault on a fellow patient. By the time of this motion, J.L. was refusing to leave his room or to respond to questions except by gestures.

[ 24 ] It was Dr. Ahmed's opinion that ongoing delays in treating J.L. with antipsychotic medication put him at risk of irreparable harm. Without treatment, J.L.’s condition was likely to show progressive worsening and his overall health will be further compromised.

[ 25 ] Dr. Ahmed confirmed that J.L. does not appreciated that he suffers from a mental disorder and requires antipsychotic medication. His persistent psychotic symptoms have deprived him of his ability to understand the relevant information to make decisions about his treatment and the foreseeable consequences of accepting or refusing treatment.

[ 26 ] Dr. Ahmed also stated that J.L.’s untreated mental illness was causing him extreme psychological stress, significant psychosocial dysfunction, loss of independence, irrevocable worsening of his illness including cognitive dysfunction, psychotic symptoms and was contributing to his loss of liberty, possibly preventing discharge from hospital.

[ 27 ] Dr. Ahmed reviewed J.L.’s past psychiatric history and noted that it revealed that J.L. had shown improvement in the past when treated with antipsychotic medication. It was his opinion that the benefit of treatment would outweigh the risk associated with antipsychotic medication which may include side effects of the medication.

THE ISSUE

[ 28 ] The issue to be determined on this motion was whether or not the criteria under Section 19 of the Health Care Consent Act had been met in this matter.

THE LAW

Interim Treatment Order:

[ 29 ] Section 19 of the Health Care Consent Act states that:

19(1) If an appeal is taken from the Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given.

19(2) The court may make the order if it is satisfied ,

(a) that,

(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person's condition will not or is not likely to improve without the treatment, or

(ii) the person's condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate;

(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

(d) that the person's condition makes it necessary to administer the treatment before the final disposition of the appeal. 1996, c.2, Sched. A, s. 19(2).

[ 30 ] Counsel for Dr. Howell submitted that the condition of J.L. meets the criteria as specified in s.19 of the Health Care Consent Act , based upon the evidence of his treating psychiatrist, Dr. Ahmed. At the motion, Dr. Howell proposed that an Order for interim treatment be issued for J.L. pending the final disposition of his Appeal.

[ 31 ] In reaching my decision, I accepted the evidence of Dr. Ahmed that J.L. would improve with treatment whereas without treatment he would continue to decline and pose a risk to himself and to others.

[ 32 ] I was mindful of the fact that forcible treatment against his will is a serious infringement of J.L.’s rights to "… self-determination, physical integrity, liberty and security of the person." and that "It should only be undertaken if truly necessary and, even then, only with proper consideration and respect for these important personal rights." [2]

[ 33 ] The fact that J.L. commenced an appeal of the CCB decision resulting in the cessation of treatment but then has done nothing to move the appeal forward was also a relevant factor in my decision to order interim treatment. It is possible that once the treatment results in the improvement to his mental and physical health that is anticipated, J.L. will either be in a position to continue his appeal or withdraw it.

[ 34 ] There is precedent for making interim orders for treatment pending appeal. In both the cases of S.R. v. Hutchinson [3] and Krall v. Ward [4] the court found that the appellant would benefit from treatment with antipsychotic medication pending their appeals.

[ 35 ] I was therefore satisfied that there was substantial evidence in this proceeding to demonstrate that the requirements of s. 19 of the Health Care Consent Act necessary for an interim treatment order were met. I therefore made an order for interim treatment of the Appellant, J. L., pending the final resolution of his Appeal.

Madam Justice Bonnie R. Warkentin

Released: July 27, 2012

COURT FILE NO.: 11-51979
DATE: 2012-07-27

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

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: J.L. Appellant – and – DR. KATHLEEN E. HOWELL Respondent (Moving Party) REASONS FOR JUDGMENT Warkentin J.

Released: July 27, 2012

[1] [2003] 1 S.C.C. 722 at para 79

[2] Gunn v. Koczerginski, [2001] O.J. No. 4479 (S.C.J.) para 8 .

[3] [2009] O.J. No. 516 (Ont. S.C.J.)

[4] 2011, Ont. S.C.J., handwritten endorsement (Ottawa)