January 30, 2012

Paluska v. Lustig, 2012 ONSC 732

Case Summary

The appellant appealed a decision of the Consent and Capacity Board under the Health Care Consent Act confirming that he was incapable of consenting to antipsychotic medication and maintaining his status as an involuntary patient. The court applied the reasonableness standard of review, emphasizing the Board’s expertise in assessing capacity and mixed questions of fact and law. The court found the Board provided procedural fairness, appropriately considered the evidence including hearsay, and reasonably relied on the psychiatrist’s testimony. The Board correctly applied the two‑part statutory test for capacity, finding the patient unable to understand relevant treatment information or apply it to his circumstances. The appeal was dismissed.

Court File No. 03-32/11
Date: 20120130

AND IN THE MATTER OF JOSEPH PALUSKA , a patient at the Centre for Addiction and Mental Health – Queen Street Division, Toronto, Ontario

BETWEEN:
JOSEPH PALUSKA
Appellant

and -

DR. ANDREW LUSTIG
Respondent

Appellant appearing in person
Nyranne Martin for the Respondent

Heard : January 27, 2012

K. WHITAKER J. :

REASONS FOR DECISION

1This is an appeal of a decision by the Consent and Capacity Board.

2The Board upheld an assessment by the Respondent psychiatrist Dr. A. Lustig that the appellant Mr. Paluska was not capable with respect to anti-psychotic medications and further, confirmed his status as an involuntary patient.

3Mr. Paluska participated in the appeal. His request for an adjournment in order to obtain further evidence was denied on the basis that the additional proposed evidence was of no relevance to the appeal.

4I have reviewed the record generated by the Board, the reasons for decision of March 15, 2011 and the submissions of counsel, including amicus appointed to assist the court.

5The standard of review in this appeal is one of reasonableness. The Board is an expert tribunal and is entitled to some degree of deference on issues of mixed fact and law that engage this expertise.

6There is no suggestion that the Board failed to extend the appropriate procedural entitlements in accordance with natural justice.

7The Board carefully considered and weighed the evidence before it. While Mr. Paluska did not provide oral evidence under oath, he participated fully in the hearing on his own behalf and was given every opportunity to express his views on the issues and evidence before the Board.

8The Board dealt fairly with hearsay evidence provided.

9The Board quite properly accorded significant weight to the evidence of Dr. Lustig and further that Mr. Paluska’s presentation was consistent with and supportive of that evidence.

10The Board applied the correct two-part test for capacity: that Mr. Paluska was unable to understand the information relevant to making decisions about proposed treatment and also that he could not apply this information to himself in any event - as he could not accept that he had a psychiatric disability.

11For these reasons the appeal is dismissed.

12Costs were not sought and none ordered.

K. WHITAKER J.

Released: January 30, 2012

Court File No. 03-32/11
Date: 20120130

SUPERIOR COURT OF JUSTICE
ONTARIO

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board pursuant to the Health Care Consent Act 1996, S.O. 1996, c. 2, Schedule A, as amended AND IN THE MATTER OF JOSEPH PALUSKA , a patient at the Centre for Addiction and Mental Health – Queen Street Division, Toronto, Ontario BETWEEN: JOSEPH PALUSKA Appellant - and - DR. ANDREW LUSTIG Respondent

REASONS FOR DECISION

K. WHITAKER J.

Released: January 30, 2012

January 30, 2012

Paluska v. Lustig, 2012 ONSC 732

Case Summary

The appellant appealed a decision of the Consent and Capacity Board under the Health Care Consent Act confirming that he was incapable of consenting to antipsychotic medication and maintaining his status as an involuntary patient. The court applied the reasonableness standard of review, emphasizing the Board’s expertise in assessing capacity and mixed questions of fact and law. The court found the Board provided procedural fairness, appropriately considered the evidence including hearsay, and reasonably relied on the psychiatrist’s testimony. The Board correctly applied the two‑part statutory test for capacity, finding the patient unable to understand relevant treatment information or apply it to his circumstances. The appeal was dismissed.

Court File No. 03-32/11
Date: 20120130

AND IN THE MATTER OF JOSEPH PALUSKA , a patient at the Centre for Addiction and Mental Health – Queen Street Division, Toronto, Ontario

BETWEEN:
JOSEPH PALUSKA
Appellant

and -

DR. ANDREW LUSTIG
Respondent

Appellant appearing in person
Nyranne Martin for the Respondent

Heard : January 27, 2012

K. WHITAKER J. :

REASONS FOR DECISION

1This is an appeal of a decision by the Consent and Capacity Board.

2The Board upheld an assessment by the Respondent psychiatrist Dr. A. Lustig that the appellant Mr. Paluska was not capable with respect to anti-psychotic medications and further, confirmed his status as an involuntary patient.

3Mr. Paluska participated in the appeal. His request for an adjournment in order to obtain further evidence was denied on the basis that the additional proposed evidence was of no relevance to the appeal.

4I have reviewed the record generated by the Board, the reasons for decision of March 15, 2011 and the submissions of counsel, including amicus appointed to assist the court.

5The standard of review in this appeal is one of reasonableness. The Board is an expert tribunal and is entitled to some degree of deference on issues of mixed fact and law that engage this expertise.

6There is no suggestion that the Board failed to extend the appropriate procedural entitlements in accordance with natural justice.

7The Board carefully considered and weighed the evidence before it. While Mr. Paluska did not provide oral evidence under oath, he participated fully in the hearing on his own behalf and was given every opportunity to express his views on the issues and evidence before the Board.

8The Board dealt fairly with hearsay evidence provided.

9The Board quite properly accorded significant weight to the evidence of Dr. Lustig and further that Mr. Paluska’s presentation was consistent with and supportive of that evidence.

10The Board applied the correct two-part test for capacity: that Mr. Paluska was unable to understand the information relevant to making decisions about proposed treatment and also that he could not apply this information to himself in any event - as he could not accept that he had a psychiatric disability.

11For these reasons the appeal is dismissed.

12Costs were not sought and none ordered.

K. WHITAKER J.

Released: January 30, 2012

Court File No. 03-32/11
Date: 20120130

SUPERIOR COURT OF JUSTICE
ONTARIO

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board pursuant to the Health Care Consent Act 1996, S.O. 1996, c. 2, Schedule A, as amended AND IN THE MATTER OF JOSEPH PALUSKA , a patient at the Centre for Addiction and Mental Health – Queen Street Division, Toronto, Ontario BETWEEN: JOSEPH PALUSKA Appellant - and - DR. ANDREW LUSTIG Respondent

REASONS FOR DECISION

K. WHITAKER J.

Released: January 30, 2012