Court File and Parties

Court File No.: 03-108/01 and 03-109/10
Date: 20120130
Superior Court of Justice – Ontario

In the matter of an Application under s.39.1 of the Mental Health Act

In the matter of an appeal from the decision of the

Consent and Capacity Board Pursuant to the

HEALTH AND CONSENT ACT, S.O. 1996 C.2

Schedule A as amended

AND IN THE MATTER OF AMY NESS

RE: AMY NESS

Appellant

AND:

DR. JUSTIN GEAGEA

Respondent

BEFORE: KRUZICK J.

COUNSEL:
Amy Ness , in person
Allen Welman , amicus curiae
Nyranne Martin , for the Respondent

HEARD: JANUARY 19, 2012

Endorsement

[ 1 ] This is an appeal from an order made by the Consent and Capacity Board (Board) on November 3, 2010.

[ 2 ] The Board found the appellant as incapable of consenting to treatment and renewed the existing Community Treatment Order (CTO).

[ 3 ] The issues raised on this appeal are mixed questions of fact and law as to the capacity of the appellant.

[ 4 ] The applicable statues are the Mental Health Act R.S.O. 1990, c.M.7 and Health Care Consent Act , 1996 S.O. 1996, c.2.

issues

[ 5 ] The issues as raised by the appeal are:

(i) Did the Board apply the proper statutory test for capacity; and

(ii) Did the Board misconstrue the evidence such that its decision was unreasonable.

position of the appellant

[ 6 ] The Appellant takes the position that the Board unreasonably found that the Appellant was not able to accept that her mental health condition may be a contributing factor to her beliefs and behaviour. The Appellant argues that the Board erred in finding that she was not able to evaluate the potential benefits of treatment, and that she considered her best interest rather than focussing on her capacity. The Appellant also argues that the test for capacity was not properly applied.

[ 7 ] Furthermore, the Appellant argues that Board’s decision does not meet the review standard of reasonableness.

position of the respondent

[ 8 ] It is the position of the Respondent that the decision was reasonable based on findings of fact and the law as properly applied.

[ 9 ] The Respondent argues that the Board properly determined that the Appellant did not have the ability to understand her condition and applied the proper test in arriving at its conclusions. The Respondent argues that a high degree of deference should be granted to the decision of the Board given its expertise and its ability to apply a statute with which it has familiarity.

analysis

[ 10 ] Although represented by Amicus the Appellant made submissions on her own behalf. She submitted that the appeal should be dismissed on the ground that the Board failed to properly consider the facts and evidence. Her position was that the Board failed to consider her evidence at the hearing that her health and life were now stabilized and that she has taken charge of her life. Her position is that the order now in place is not warranted and that the Board erred in its findings and conclusions.

[ 11 ] Counsel, as Amicus Curiae , repeated the position of the Appellant and argued that even the doctor in his testimony sees the Appellant as a “success story”. Counsel further argued that the Appellant has admitted to her mental health condition but is now at the stage of her health where she does not require the medication prescribed.

[ 12 ] The Appellant submitted that her personal issues and strange behaviours, as referred to and admitted, were related to stress, anxiety and misdirected anger which is now under control by the Appellant. The Appellant argued that the Board failed to consider her new life style and her spiritual regime which gives her greater insight into her problems.

[ 13 ] Both counsel referred me to the leading case of Starson v. Swayze , [2003] S.C.C. 722. In this case the central issue was the capacity of the Appellant. In Starson the test for capacity was set out in paragraph 78:

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[ 14 ] Counsel for the parties agreed on the state of the law but disagreed on how it was applied by the Board, given the evidence it heard. The evidence, which gives rise to their disagreement, is that of Dr. Geagea.

[ 15 ] At page 36 of the transcript, Dr. Geagea in his evidence deals with the two stage test that he applied. Dr. Geagea testified that Ms. Ness was achieving her goals through a combination of hard work, adherence to the anti-psychotic medication and the community treatment plan. (pp.38 and 40).

[ 16 ] Ms. Ness attributes her difficulties to stress. Dr. Geagea acknowledged that the amount of stress a person has in life can lead to increase of psychosis, but managing stress can only go so far. For a schizophrenic, medications are the cornerstone of treatment. That was his diagnosis of the Appellant (p.48). The Appellant does not accept the diagnosis.

[ 17 ] Ms. Ness stated she was unfairly diagnosed as psychotic in 2003. She says doctors tried to force her to say that she was paranoid and hearing voices. She testified that she was a victim of psychiatric abuse and assault. According to her, her anger was in self-defence. (p.53). Her evidence is that she is now mentally healthy.

[ 18 ] Ms. Luke, Ms. Ness’s mother, testified that in the summer of 2010 the Appellant stopped her medications and it led to her mental deterioration. Ms. Ness recovered once she returned to taking her medication. It is Ms. Ness’s evidence on this point that in 2010 she fabricated the fact that she was off medication during this period for fear that her condition could have ramifications on the housing available to her.

[ 19 ] Dr. Geagea testified, and appreciated, that Ms. Ness wanted to go off the medication and stop being a client. In his opinion, it would lead to mental deterioration. (p.39).

[ 20 ] The test for capacity is set out in Starson . Dr. Geagea confirmed that the Appellant passed the first branch of the capacity test, i.e. she is able to understand the information provided. He opined however, that she was unable to appreciate the foreseeable consequences of deciding not to take medication as a result of her mental condition; this being the second aspect of the test. (pp.35-36).

[ 21 ] Dr. Geagea acknowledged that Ms. Ness attributed her mental deterioration to stress and coffee addiction and she did not appreciate that her symptomology would return if she was not on anti-psychotic medication. (p.36-37).

[ 22 ] At the hearing and in her submissions before me the Appellant acknowledged having mental health issues. She attributes her behaviour to anger and stress issues and also to post traumatic stress syndrome that she suffered due to her treatment at CAMH. (pp.54, 57 and 61).

[ 23 ] Both counsel agreed on the finding with respect to the first step and agreed with the Board’s findings that Ms. Ness possesses the cognitive ability to understand the information relevant to making a decision about the treatment in question. Where they disagree is on the second aspect of the test in Starson . Dr. Geagea could not accept the Appellant’s position. The Amicus Curiae submitted that the Board erred in relying on his evidence and ignoring the evidence of the Appellant. The position of counsel for the Respondent is that the opinion of the doctor was sound and that the Board correctly found that all the statutory criteria for issuance or renewal of a CTO were met here.

[ 24 ] In my review of the decision I find that the Board’s finding of incapacity was based on the second part of the test and the evidence of Dr. Geagea which the Board accepted. In my review of the evidence, it supports the Board’s decision.

the standard of review

[ 25 ] The standard of review in a case such as the one before me was confirmed in Starson . On a case such as this, mixed with fact and law, the standard is reasonableness.

[ 26 ] This Board is a specialized expert tribunal. I also agree with counsel for the Respondent that as such, it is entitled to deference on matters within its expertise including the central issue here, capacity of the Appellant.

[ 27 ] While I had the benefit of the transcripts, the materials as filed and the submissions of the Appellant and counsel, the Board heard the evidence directly. As such the Board was in a better position to weigh the evidence and make findings on questions of fact.

conclusion

[ 28 ] In my review of all of the material put before me, I find that the Board arrived at its findings and conclusions after carefully considering all the evidence and the law which was correctly applied.

[ 29 ] I am therefore of the view that I should not interfere with this decision on its finding of fact.

[ 30 ] In my review of the reasons of the Board I find them to be fulsome in their consideration of the evidence. Based on the evidence before it, the Board determined correctly that each of the criteria in s.33.1(4) of the Mental Health Act , were satisfied.

[ 31 ] For these reasons, the Appeal is dismissed.

KRUZICK J.

DATE: January 30, 2012