SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-03006/10

DATE: 20120214

RE: Amy Anten, Applicant

AND: Shree Bhalerao, Respondent

BEFORE: Carole J. Brown J.

COUNSEL: Mercedes Perez, for the Applicant
Kiersten E. Taylor, for the Respondent

HEARD: January 4, 2012

REASONS FOR DECISION

[ 1 ] The Appellant, Amy Anten, (“Ms. Anten” or “the Appellant”) brings this appeal from the decision of the Consent and Capacity Board, (“the Board”), dated January 29, 2010, which found her incapable with respect to treatment with antipsychotic medications.

The Facts

[ 2 ] Ms. Anten was admitted to the medical-surgical floor of St. Michael’s Hospital in Toronto in November 2009, for treatment related to lupus which she had from the age of 37.

[ 3 ] During her hospitalization, the Appellant believed that people were entering her room at night and assaulting her. At the Board hearing, she described the incidents as follows:

“…there was a particular patient who was here and she left recently about a half a week ago, and I believe she was harming me while I was sleeping. I heard her, um make footsteps towards my bedroom at night and then walk away ‘cause she knew I wasn’t sleeping. When I fall asleep I don’t wake up right away and I’ve woken up with bruises on my tailbone where she – I believe she kicked me, and a dent in my nose and pain in my face, pain in my ribs, stomach and sternum, where I believe she um, punched me with a pillow…

“I say that there was a patient who was here and she was attacking me and she left half a week ago and the attack stopped. She was hitting me in the face, in the sternum, the ribs and the stomach, and kicking me in the tailbone. She would use a blanket or a pillow to muffle these injuries so that it wouldn’t leave marks but I did see the marks on my tailbone because I happen to look in the mirror. I was getting so much pain, I saw the bruises on my tailbone off and on, and I also have a dent in my nose, so even though she didn’t leave marks, she left dents in my nose and right here beside my left eye.”

[ 4 ] When asked by the Chairperson to clarify her evidence that the patient did not leave marks, but instead left “dents”, the Appellant confirmed that “dents” were in fact left, and that she was never treated for any injuries from these attacks while at the Hospital.

[ 5 ] The Appellant was, in fact, not treated at the Hospital for any injuries from such attacks.

[ 6 ] On November 6, 2009, her treating physician requested the psychiatric consulting team to do a consultation due to reported psychiatric issues. The assessment was done by Dr. Bhalerao, the head of the psychiatric team.

[ 7 ] Ms. Anten was placed on a Form 1. She was taking Quetiapine and Lorazapam.

[ 8 ] Dr. Bhalerao determined that the psychosis, which predated the lupus, was schizophrenia. He further determined that the lupus was not contributing to the psychotic episodes as much as previously thought.

[ 9 ] Respiridone was prescribed, which was given in her orange juice to ensure compliance. Commencing on December 21, 2009, the Respiridone was given by injection. Quetiapine was discontinued.

[ 10 ] After taking the injections, Ms. Anten felt she was experiencing side effects and began to refuse medications. She was declared incapable with respect to decisions regarding treatment of a mental disorder by Dr. Bhalerao on January 18, 2010.

[ 11 ] On January 21, 2010, Ms. Anten applied to the Board for review of the finding of incapacity.

[ 12 ] The hearing was held before Karen Lindsay-Skynner, a lawyer member of the Board on January 29, 2010. Evidence was given by Dr. Bhalerao and Ms. Anten. Based on the evidence, the legislation and jurisprudence, the Board found Ms. Anten to be incapable on January 29, 2010. Written reasons were issued February 6, 2010.

[ 13 ] Ms. Anten appealed the decision of the Board on February 4, 2010.

The Findings of the Board

[ 14 ] On the evidence given at the hearing, the Board found that the Appellant was incapable of making decisions regarding her treatment with antipsychotics.

[ 15 ] The Board found that:

Unfortunately, the illness had taken away A’s insight into her own condition. She was unable to apply the information regarding the psychosis to herself. She explained that what the doctor said were symptoms, were actually real attacks by another patient who did not leave marks, but dents. This evidence most clearly illustrated A’s inability to appreciate the ongoing symptomatology which was linked directly to her illness. She was not experiencing psychosis, rather she was being attacked by another patient. The doctor said that this was not true. He agreed that in the past A had suffered an attack at a previous nursing home. Respectfully, the Board preferred the evidence of the doctor with respect to whether attacks by another patient were actually occurring.

In the respectful opinion of the Board member, the illness had stolen A’s ability to appreciate that she herself had a condition. As a result, she was unable to appreciate that treatment with antipsychotics might have benefit for her as she did not believe that she was affected by a condition. She was correspondingly unable to appreciate that if she refused treatment, her psychosis would continue unabated and potentially deteriorate. When asked, A did not perceive any potential negative consequences of refusing treatment, only positive benefits.

[ 16 ] The Board found that the tests for incapacity had been met.

The Issues

[ 17 ] The Appellant identifies the following seven issues on appeal:

1. The Court’s jurisdiction and powers on appeal and the standard of review applicable to the Board.

2. The statutory test for treatment capacity.

3. The standard of proof applicable at hearings before the Board and Section 14 of the Evidence Act.

4. Did the Board err in failing to require corroboration of the respondent’s evidence?

5. Did the Board err in making findings of fact on the basis of no evidence?

6. Did the Board err in failing to provide reasons for its adverse credibility finding against the Appellant?

7. Was there evidence to support the Board’s finding that the Appellant was incapable of making treatment decisions?

[ 18 ] I have grouped the issues raised by the Appellant into three main areas for purposes of analysis and determination, as follows:

1. The applicable standard of review and the legislative scheme (Appellant’s issues 1-3)

2. The evidentiary issues (Appellant’s issues 4, 7)

(a) Was there corroboration of the Respondent’s evidence;

(b) Was there evidence to support the Board’s finding of incapacity?

3. The adequacy of the Board’s reasons (Appellant’s issues 5-6).

The Law and Analysis

The Applicable Standard of Review and the Legislative Scheme

1. The Standard of Review

[ 19 ] The standard of review on a question of fact or on a question of application of law respecting the facts is one of reasonableness. The Board’s conclusion must be upheld provided it is among a range of conclusions that could reasonably have been reached on the law and evidence: Starson v. Swayze 2003 SCC 32; Dunsmuir v. N.B., 2008 SCC 9. The question is not how this court would decide the case, but whether the Board’s decision was reasonable: Conway v. Jacques, 2002 41558 (ON CA), [2002] O.J. No. 2333 (Ont. C.A.), Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12.

[ 20 ] On a question of pure law, the standard is one of correctness: Starson v. Swayze, supra, at para. 110.

2. The Legislative Scheme

[ 21 ] Pursuant to s.4 of the Health Care Consent Act, 1996, S.O. 1996, Ch 2, s.4, (“ the HCCA ”), a person is capable with respect to treatment if the person is (1) able to understand information relevant to making the decision about the treatment; and (2) able to appreciate the reasonably foreseeable consequences of a decision or lack of one.

[ 22 ] The determination involves two criteria. First, while a person need not agree with a particular diagnosis, she must be able to recognize the possibility that she is affected by the condition. This requires the cognitive ability to process, retain and understand the relevant information. Second, the patient must be able to apply the relevant information to her circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof: Starson v. Swayze, supra, at para. 87. If a patient’s condition results in her being unable to recognize that she is affected by its manifestations, she will be unable to apply the relevant information to her circumstances and unable to appreciate the consequences of her decision: Starson v. Swayze, supra, at 79-81.

3. The Burden of Proof

[ 23 ] The applicable burden of proof under the HCCA rests with the health practitioner on a balance of probabilities. There is a presumption of capacity that must be rebutted by the Respondent.

The Evidentiary Issues: The Quality of the evidence before the Board

1. Was the evidence corroborated?

[ 24 ] The Evidence Act, R.S.O. 1990, C.E23, s.14, requires that, in proceedings involving incapacity, a decision cannot be based on the party’s own evidence, unless corroborated by some other material evidence. While the Evidence Act does not define what constitutes corroboration, Canadian jurisprudence recognizes that, both at common law and under statute, corroborative evidence is evidence from an source extraneous to the witness whose evidence is to be corroborated that is relevant to a material fact in issue, and that tends to show that the witness whose evidence needs corroboration is telling the truth: Repe v. State Farm Automobile Insurance Company, 2011 ONCA 341. Corroboration is not a term of art, but a matter of common sense: R. v. Warkentin et al, [1997] 2 SCR 355.

[ 25 ] In the context of Board hearings, a treating physician’s evidence may be corroborated by the patient’s evidence: T(L), Re, 2004 Carswell Ont. 833 (ON CCB).

[ 26 ] The Board, in its Decision, held:

[The Appellant] explained that what the doctor said were symptoms, were actually real attacks by another patient who did not leave marks, but dents. This evidence most clearly illustrated A’s inability to appreciate the ongoing symptomatology which was linked directly to her illness. She was not experiencing psychosis, rather she was being attacked by another patient. The doctor said that this was not true. He agreed that in the past, A had suffered an attack at a previous nursing home. Respectfully, the Board preferred the evidence of the doctor with respect to whether attacks by another patient were actually occurring.

[ 27 ] Based on the transcript of evidence and the written reasons, I am satisfied that the Board, in determining that the Appellant suffered from a mental disorder and was incapable of making treatment decisions, considered all the evidence, the Appellant’s evidence that the attacks were real and the veracity of the doctor’s evidence. The Board was in the best position to hear the evidence and observe and assess the demeanor and comportment of both witnesses, all of which served to corroborate the Respondent’s testimony.

2. Was there Evidence to Support the Board’s finding of Incapacity?

[ 28 ] The two-part test is set forth at para. [22], above.

[ 29 ] In her evidence at the hearing, the Appellant acknowledged that she was suffering from lupus but denied that she suffered from any other illness or that she had a history of schizophrenea. She attributed her problems with concentration or dementia to antibiotics she had taken the previous year. She attributed her dementia also to the Resperidone. She did insist that she was being attacked by another patient who left dents and marks, but acknowledged that she did not require treatment for said injuries. She stated that she did not want to take any medication for the psychotic symptoms because she was not psychotic and that taking the antipsychotic medications made her worse.

[ 30 ] She acknowledged understanding that “when I take it I am supposed to stop thinking this way”, but that “it didn’t change anything about the way I felt because I don’t believe I am ill”. She also confirmed that if she doesn’t take the proposed medication, she believes that her condition will improve and she will “feel much better”. She testified that she was told that if she didn’t take the medication “the security guards would force it on me”.

[ 31 ] I am satisfied that there was sufficient evidence, not only from Dr. Bhalerao, but also from Ms. Anten herself to satisfy the two-step test as set forth at para. [22] above, as found by the Board. The Board properly assessed the evidence and made findings of fact based on the evidence and applied the law.

3. Were the Boards Reasons Adequate?

[ 32 ] The Appellant submits that the Board’s reasons are glaringly deficient, that it made findings of fact regarding her incapacity and treatment without evidence and, also, that the Board failed to provide reasons for its adverse credibility finding against the Appellant.

[ 33 ] Based on a careful reading of the transcript from the hearing and the written reasons and based on my analysis above, I am satisfied that the Board assessed all of the evidence, from which it made findings of fact, to which it properly applied the law and determined the issue of incapacity. There was evidence on which the Board could and did determine the issues.

[ 34 ] The jurisprudence recognizes that in matters under the HCCA, urgency and the short time frame for hearing applications and rendering decisions, both oral and written, must be considered in assessing the detail required of such decisions. Given the stringent timelines, Courts have recognized that written reasons must be given some leeway and the Board’s decision is to be accorded deference, even in the absence of extensive decisions: L(L) v. T(I), 1999 CarswellOnt 35 28 (ONCA).

[ 35 ] With respect to findings of credibility, the Court of Appeal has recognized that reasons for preference of one witness’ evidence over another while desirable, are not necessarily required and failure to provide reasons does not automatically constitute a reversible error. Circumstances in which reasons are not necessarily required include where evidence may be obviously incredible, where evidence contains the usual indicia of unreliability or where findings of credibility are implicit in the evidence: R. v. Strong, 2001 CarswellOnt 1271 (ONCA); R. v. Maharaj, 2004 39045 (ON CA), 2004 CarswellOnt 1921 (ONCA). I accept the Respondent’s approach that the functional approach articulated in R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869 is applicable here.

[ 36 ] The Board, in its reasons, set forth a summary of each party’s evidence, recognized the fundamental disagreement between them regarding whether the physical assaults reported by the Appellant were real, and preferred the evidence of the Respondent, finding that the illness had stolen the Appellant’s ability to appreciate that she suffered from a condition. The written decision, when reviewed with the transcript evidence as a whole, provide reasonable support for the Board’s preference, and an adequate basis for review on this appeal.

[ 37 ] I am satisfied that the Board carefully considered the evidence, made findings of fact supported by the evidence and properly applied the applicable law. I find that the Board’s decision was supported by the evidence, its determinations were reasonable and that there are no errors of fact or law upon which to overturn its decision. The decision of the Board is upheld.

Costs

[ 38 ] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown J.

Date: February 14, 2012