September 12, 2012

Levey v. Bali, 2012 ONSC 5136

Case Summary

The appellant appealed a decision of the Consent and Capacity Board upholding a Community Treatment Order (CTO) under the Health Care Consent Act and Mental Health Act. He argued that the statutory criteria for the CTO were not satisfied and that the Board’s decision was unreasonable, particularly given medication side effects. The court held that the standard of review for the Board’s decision was reasonableness, except where statutory criteria raised questions of jurisdiction. After reviewing the evidence, including the physician’s testimony and psychiatric history, the court found that the statutory criteria were met and that the Board’s decision was reasonable. The appeal was therefore dismissed.

COURT FILE NO.: CV-12-55102
DATE: 2012/09/12

ONTARIO
SUPERIOR COURT OF JUSTICE

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

Jon Christopher Levey, a patient of

Ottawa, Ontario

BETWEEN:

JON CHRISTOPHER LEVEY Appellant – and – DR. NEENA BALI Respondent

Self-Represented

Michelle O’Bonsawin, for the Respondent

HEARD: September 6, 2012

REASONS on appeal

M. Linhares de Sousa J.

INTRODUCTION AND POSITION OF THE PARTIES

1This matter came before me on September 6, 2012. After hearing the submissions of the parties, I dismissed the appeal for oral reasons given. At the request of counsel for Dr. Bali, I was asked to provide written reasons. What follows are those reasons.

2This matter concerns an appeal brought by the Appellant, Jon Christopher Levey, seeking to set aside the decision of the Consent and Capacity Board (the “Board”), dated July 19, 2012, upholding a Community Treatment Order (“CTO”) to which he was subject since May 28, 2012. Alternatively, Mr. Levey seeks a new hearing before the Board.

3The grounds of the appeal are twofold. Mr. Levey takes the position that all of the criteria for issuing Mr. Levey’s CTO were not met at the time of the hearing. Mr. Levey also submits that the Board’s decision to continue the CTO was unreasonable based on all of the evidence before it. This is particularly, argued Mr. Levey, in view of the physical side effects he suffers as a result of the medication he is required to take under the CTO.

4Dr. Bali contests the appeal and requests that the order of the Board be upheld.

STANDARD OF REVIEW

5There is no question that the standard of review on an appeal from the Board is reasonableness based on the evidence before it. (See Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190).

6With respect to the ground of appeal relating to the legislative criteria required to be found before a CTO can be ordered or continued, if the criteria are found not to be met, that would be a question of mixed fact and law and one touching on the jurisdiction of the Board, to which a standard of review of correctness would apply.

FACTUAL BACKGROUND

7A detailed history of Mr. Levey’s diagnosed mental illness and treatment are found in the material before the Court and need not be repeated here. Suffice it to say that Mr. Levey, who is now 39 years of age, was diagnosed as suffering from paranoid schizophrenia in his mid-twenties. Mr. Levey is single, lives alone in the community supported by the Ontario Disability Support Program. His illness is characterized by bizarre religious, persecutory, paranoid and grandiose delusions. He has undergone proceedings before the Ontario Review Board in 2004.

8Mr. Levey has had a number of hospitalizations. Based on evidence of Dr. Bali, Mr. Levey typically stops taking his medication, falls into an acutely psychotic state and has to be hospitalized. He first became the subject of a CTO in June of 2010 after a hospitalization at the Royal Ottawa Mental Health Centre (“ROMHC”). Subsequently, Mr. Levey became subject to other CTOs.

9Based on the evidence, Mr. Levey’s last discharge from the ROMHC was on December 14, 2011, at which time he was discharged under the current CTO which is the subject of this appeal. Mr. Levey remains without capacity for treatment decisions which is now exercised by the Public Guardian and Trustee, Mr. Levey’s mother being no longer able to exercise this function. The CTO requires that Mr. Levey be subject to medication supervision on a daily basis by a third party, currently in Mr. Levey’s case, by ACTT staff. This team also assists him with improving his independent living skills so that he can stay living in the community.

10The evidence of Dr. Bali, together with the evidence concerning the psychiatric history of Mr. Levey, clearly established as was observed by the Board, that,

Without the CTO, Mr. Levey will end all involvement with ACTT and stop all his medications. This has been demonstrated repeatedly in the past. Without his antipsychotic medication and mood stabilizer, he quickly decompensates, resulting in an increase in his psychotic symptoms and erratic behaviours, and likely pose a risk to himself and possibly others leading to involuntary hospitalizations. A CTO has proven beneficial for his stability in the community due to its external control and structure. (Page 21, Record of Appeal).

DISPOSITION

11Subsection 33.1 (4) of the Mental Health Act , R.S.O. 1990, c. M.7, sets out the criteria for the granting of a Community Treatment Order. There is no question that that section is long and complicated. It reads:

Criteria for order

(4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996 .

12The onus rests on the evaluating doctor, in this case Dr. Bali, to establish, on a balance of probabilities, that the criteria for the CTO have been met and that the order is justified. The Board in examining the matter before it must be satisfied that the physician’s onus has been met.

13Based on the transcript of the evidence before the Board, I am satisfied that the Board did not err in determining that the statutory criteria for issuing the CTO under appeal were met at the time of the hearing. Based on her summary report and on her oral evidence given at the hearing before the Board, Dr. Bali clearly and convincingly met the onus upon her under the legislation.

14Based on that same evidence, I cannot conclude that the decision of the Board to continue Mr. Levey’s CTO was unreasonable. Mr. Levey, in his oral submissions before this Court had difficulty focusing on and being responsive to the issues under appeal. Mr. Levey raised a number of complaints concerning the physical side-effects of the medications which he is required to take under the CTO. However, I am persuaded that the evidence of Dr. Bali at the hearing before the Board adequately responded to the medication side-effect complaints communicated to her by Mr. Levey. In the result that those complained of physical side-effects can be alleviated with Mr. Levey’s cooperation. I am also convinced that they may be a necessary difficulty when compared to the serious alternative of psychosis, decompensation, risk to self and others and hospitalization away from the community, as demonstrated in the evidence about Mr. Levey’s psychiatric history.

15For the above reasons the appeal is dismissed.

M. Linhares de Sousa J.

Released: September 12, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JON CHRISTOPHER LEVEY Appellant – and – DR. NEENA BALI Respondent DECISION ON APPEAL M. Linhares de Sousa J.