ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 03-120/12

DATE: 20130308

BETWEEN:

Jaroslaw Gradek

Appellant

– and –

Ariel Shafro

Respondent

Ken Berger, for the Appellant

Mark Handleman, for the Respondent

HEARD: March 5, 2013

Allen J.

REASONS FOR JUDGMENT

PROCEDURE AND APPLICABLE LEGISLATION

[1] This is an appeal of a decision by the Consent and Capacity Board (“the Board”) issued on December 5, 2012. A hearing was conducted on November 27, 2012 into Mr. Gradek’s involuntary status under s. 20(5) Mental Health Act, R.S.O, RSO 1990, c M.8 (“the MHA”) and his capacity to consent to treatment under s. 4(1) of the Health Care Consent Act, 1986 , 1996, S.O. 1996, c. 2, Sch. A, (“the HCCA”).

[2] Mr. Gradek is a patient at the Trillium Health Care Center (“Trillium) and has been diagnosed as suffering from a schizoaffective disorder, bipolar subtype. Dr. Shafro, his attending physician, found he did not satisfy the conditions for voluntary status under s. 20(5) of the MHA and determined he was incapable to consent to treatment under s. 4(1) of the HCCA.

[3] Section 20(5) of the MHA provides:

20. (5)The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[4] Dr. Shafro alleged that Mr. Gradek was suffering from a mental disorder of a nature or quality that, if not treated, would likely result in: (i) serious bodily harm to another person; and/or (ii) serious physical impairment of Mr. Gradek.

[5] Section 4(1) of the HCCA provides:

4. (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[6] Under s. 4(2) of the HCCA a person is presumed capable of consenting to treatment.

[7] Dr. Shafro found that Mr. Gradek was incapable of consenting to or refusing treatment with anti-psychotic and mood stabilizing medications.

EVIDENTIARY BACKGROUND

[8] Mr. Gradek is age 34 years. He has had some troubles in the past. In July 2010 he had been acting bizarrely and was involved in a fight in a parking lot where he sustained an injury to his lip that required stitches. He was afraid people were out to get him. He had been assaulted by three men in the parking lot for no reason. Police were called. They believed he was in need of psychiatric evaluation and he was transported to Trillium from which he was discharged after three days.

[9] There is no evidence of any other problems between that incident and the incidents in 2012.

[10] On October 14, 2012 Mr. Gradek was charged with possession of a weapon and was scheduled to appear in court on November 20, 2012. The charge involved an alleged careless use of a BB gun in the home he resided in with his mother. The following day, his mother reported that on the previous day, Mr. Gradek had threatened to cut off her hand and kill her.

[11] Mr. Gradek was admitted as a patient at Trillium on two occasions close in time in 2012.

[12] On October 30, the police brought Mr. Gradek to the hospital following a street fight in which he was involved. He had multiple bruises and minor injuries on his hands and face but was medically cleared. Mr. Gradek’s alcohol level was 60 mmol per litre, which is consistent with acute intoxication. Mr. Gradek admits to an alcohol problem and to using marijuana.

[13] Mr. Gradek was placed on a Form 1 (Application for Psychiatric Assessment) and later on a Form 3 (Certificate of Involuntary Admission). The consultation report dated October 30 describes Mr. Gradek’s thought process as “tangential and disorganized” and contains an observation of paranoid delusions. A consultation report dated November 5 indicates Mr. Gradek presented with symptoms of mania and was found to lack insight.

[14] Pending an application for review by the Board, Mr. Gradek was not treated with medication. Dr. Shafro released him on December 6 for reason that he had insufficient evidence to put before the Board. Mr. Gradek refused to take the medication prescribed to him.

[15] Mr. Gradek was returned home to his mother on December 6. The record shows the mother reported Mr. Gradek did not take his prescribed medication and that he had become threatening, aggressive and hostile towards her. She began to fear for her safety. On December 10, the mother called the police to the home. They had to break the door down because Mr. Gradek refused them entry. They used a taser to subdue him and returned him to Trillium. On December 12, Mr. Gradek was placed on a Form 3. Dr. Shafro signed a Form 33 (Notice to Patient of Finding of Incapacity) pertaining to his finding that Mr. Gradek was incapable of making treatment decisions for his medical treatment.

[16] Mr. Gradek challenged both the involuntary admission and the finding of incapacity.

THE ISSUES

[17] The following issues are before the court on this appeal:

(a) Whether or not the Board was correct in law and reasonable in result confirming the finding of involuntary status; and

(b) Whether or not the Board was correct in law and reasonable in result when it confirmed the finding that Mr. Gradek was incapable of making his own

STANDARD OF REVIEW

[18] The onus of proof in a review of a patient’s voluntary status and capacity to consent to treatment rests with the attending physician. The Board must make its decision on clear, cogent and compelling evidence and be satisfied the attending physician has met the onus. The patient is not required to prove anything. He does not have to testify or call witnesses. Hearsay evidence may be accepted and considered but must be carefully weighed.

[19] The standard of review is reasonableness. Courts have set down some principles to guide the review courts in deciding appeals of Board decisions.

• Board members are recognized as likely enjoying some measure of institutional expertise which they have acquired over years of dealing with assessments of capacity.

• The Board is uniquely positioned to hear the viva voce evidence of the patient and physicians.

• Thus, determinations of capacity should generally be entrusted to the expertise of the Board [Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at paras. 85–88, (S.C.C.)].

• The standard of reasonableness involves respectful attention, though not submission, to the Board’s reasons. [Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at para. 20, (S.C.C.)]

• The reasonableness inquiry dictates respect for the expertise and advantaged position of the Board.

• The inquiry demands a somewhat probing examination of the reasons offered by the Board for its conclusion.

• The examination must ensure that the reasons taken as a whole provide a line of analysis supported by the evidence that can reasonably justify the Board’s conclusion [Giecewicz v. Hastings, 2007 CarswellOnt 8247, 2007 ONCA 890, para. 13, (Ont. C.A.)].

THE BOARD DECISION AND THE PARTIES’ ARGUMENTS

Involuntary Status

[20] The evidence before the Board was the oral testimony of Dr. Shafro and various medical documents from Trillium medical records. Dr. Shafro also filed a consultation summary.

[21] To establish involuntary status, the physician is required to meet the criteria set out under s. 20(5) of the MHA as follows:

1. That the patient is suffering from a mental disorder of the nature or quality that likely will result in:

(a) serious bodily harm to the patient;

(b) serious bodily harm to another person; or

(c) serious physical impairment of the patient

unless the patient remains in the custody of a psychiatric facility.

[22] The physician must be of the opinion that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[23] Dr. Shafro concedes the criterion in s. 20(5)(b) − that Mr. Gradek’s mental disorder is not likely to result in serious bodily harm to another person.

[24] “Mental disorder” under the MHA means any disease or disability of the mind. Dr. Shafro’s opinion was that Mr. Gradek suffered from schizoaffective disorder, bipolar subtype.

[25] The Board accepted Dr. Shafro’s opinion and found as a fact that Mr. Gradek was suffering from a mental disorder. Dr. Shafro’s opinion was based on an assessment of Mr. Gradek over several appointments on two days, October 30 and December 5. The October 30 consultation report indicates mania was quite prominent but that it was difficult because of the patient’s denial to establish whether Mr. Gradek was delusional which led Dr. Shafro to infer psychotic symptoms. The November 5 consultation report by Dr. Shafro notes extreme thought disorder, pressured speech grandiosity, flight of ideas and paranoia.

[26] The medical record contains multiple entries describing strange and unusual behavior and comments by Mr. Gradek. When he was taken to the hospital from a parking lot by the police in July 2010, he was wearing a bullet proof vest saying he had to wear it because he was working as a “processor” and his mother as a “paralegal.” After being taken to the hospital on October 30, Mr. Gradek told the physician he invented a “floating bicycle” and spoke about Einstein missing his wife’s anniversary. During that hospitalization he spoke of killing himself and his mother and cutting off her hand. On November 6, the day he was discharged, he is described as being fairly manic, having pressured speech, racing thoughts and thought disorder. Even with these strange behaviours and comments during that hospitalization, Dr. Shafro found Mr. Gradek did not show evidence of increased risk to himself and others and released him.

[27] Mr. Gradek does not agree with the diagnosis or that he has a mental disorder. He argues his behaviour is a reflection of his life style, eccentricity, and the effects of the consumption of alcohol and marijuana, not a mental disorder.

[28] I do not accept that submission. He was intoxicated on October 30 when the police took him from the parking lot to the hospital but it is not evident that he was under the influence of alcohol and/or marijuana in other circumstances when he displayed aggressive or bizarre behaviour. There is no evidence that in July 2010, when he had been in a fight in a parking lot or on November 10, 2012 when the police had to break down the door to remove him from the house that he was under the influence of marijuana or alcohol.

[29] I also do not accept Dr. Shafro’s submission that the reference to the opinions, contained in the documents review report dated December 16, 2012, of two other psychiatrists should have been considered by the Board in determining whether Mr. Gradek had a mental disorder. Two psychiatrists saw Mr. Gradek and indicated they did not observe a psychotic disorder. It appears that one psychiatrist might have made that observation on the 2010 admission and it is not clear when the second physician saw Mr. Gradek. Further, it cannot be ascertained from that report whether the two psychiatrists were the actual authors of the opinion and to what extent they might have assessed Mr. Gradek. I find this is not evidence capable of displacing Dr. Shafro’s opinion.

[30] The Board appropriately looked at the mental disorder at the time of the hearing. Dr. Shafro noted on November 10 that Mr. Gradek displayed intrusive and provocative behaviour. At that time his mother reported threatening and aggressive behaviour and that she feared him. Again, Dr. Shafro observed the manic symptoms rather than the delusional. Dr. Shafro noted that Mr. Gradek’s comment that his mother was dangerous to him and no longer wanted the best for him is an indication of paranoia.

[31] I find there is an ample evidentiary basis in the medical records for the Board’s conclusion that Mr. Gradek suffered from a schizoaffective disorder, a bipolar subtype with features of mania.

[32] The question then becomes whether the Board was reasonable in its finding that Mr. Gradek’s mental disorder would likely result in serious bodily harm to him or serious impairment to him.

[33] Dr. Shafro withdrew the involuntary status related to the October 30 to December 6 period of hospitalization for reason that he had insufficient evidence to maintain that status. However, with the second admission on November 10, Dr. Shafro found, and the Board accepted, there was sufficient evidence to find Mr. Gradek’s mental disorder would likely result in serious bodily harm or serious impairment to him.

[34] Mr. Gradek argues the evidence after the December 6 discharge to the December 10 re-admission and following is not sufficient for a finding that the mental disorder was such that it was likely to result in serious bodily injury or serious impairment to him.

[35] Mr. Gradek makes a point I find valid − that the Board found it could not rely on the mother’s hearsay evidence in considering the likelihood the mental disorder would result in serious injury to another person. And yet the Board relied on the mother’s hearsay evidence in finding that Mr. Gradek’s mental disorder would likely result in serious injury or serious impairment to him. One aspect of the evidence from the post-December 6 period − that Dr. Shafro relied on and the Board accepted to establish the likelihood of serious injury or serious impairment to Mr. Gradek − was the mother’s hearsay evidence about the escalation of his aggressive and provocative behavior after his December 6 discharge.

[36] I agree with Mr. Gradek it was not reasonable for the Board not to explain its basis for the acceptance of the mother’s hearsay in one situation and not in the other.

[37] There is a further shortcoming in the evidence Dr. Shafro relied on and the Board accepted as satisfying the s. 20(5)(b) and (c) criteria. Dr. Shafro did not have sufficient evidence before the December 6 discharge to impose involuntary status. In addition to questions about the hearsay nature of the mother’s evidence about the escalation of aggression, there is also a concern about the sufficiency and reliability of the other evidence purporting to show other conduct by Mr. Gradek following the December 6 discharge alleged to likely lead to serious injury or impairment: the incident at the home on December 10 when the police broke down the door and tasered Mr. Gradek and three altercations on the ward.

[38] According to Dr. Shafro, the hospital incidents arose as a result of Mr. Gradek’s provocative and intrusive behavior which behaviour Dr. Shafro asserted would likely result in Mr. Gradek being injured by others. Dr. Shafro notes these incidents in a progress note dated November 20. However, the progress note and Dr. Shafro’s oral evidence is imprecise and unsupported by other evidence.

[39] The first incident involves an allegation that Mr. Gradek harassed someone in the shower. Dr. Shafro was not certain of the date of this occurrence nor could he recall whether Mr. Gradek was injured or whether the staff intervened. Dr. Shafro also spoke of two other incidents where the staff had to separate Mr. Gradek from two other patients who had allegedly threatened Mr. Gradek. Again, there were no details as to the date or time of the incidents or as to any consequences. But more significantly, there are no nurses’ notes or contemporaneous hospital records that evidence any such occurrences. Trillium is a secured psychiatric facility and one would certainly expect that occurrences involving aggression and violence among patients would be regarded as significant and duly recorded.

[40] For those reasons, I do not find it was reasonable for the Board to have relied on the alleged hospital incidents as a basis for its finding that Mr. Gradek`s mental disorder would likely result in him being seriously injured.

[41] Regarding the evidence pertaining to the mother, she did not testify so the evidence on the record could not be tested for reliability and truthfulness. The hearsay evidence about the mother seems to cut both ways however, both pointing to Mr. Gradek as a source of abuse and to her as a source of abuse.

[42] Several places in the medical record note that the mother is said to have reported her son becoming increasingly verbally threatening and aggressive. In a crisis intervention team report dated October 31, 2012, prepared by a social worker, the mother is reported as saying Mr. Gradek does not hit her but she hits him. As well, the summary of hospitalization dated November 6 states there have been issues of physical abuse by his mother in the past and concludes that it is therefore difficult to prove his increased risk of harm to others is directly due to his mental illness. This evidence might be seen as shedding a different light on Mr. Gradek`s evidence that his mother was dangerous to him and no longer wanted the best for him.

[43] I find it was not reasonable for the Board to rely on the mothers hearsay. It is simply not reliable support for a finding that Mr. Gradeks mental disorder is likely to lead to conduct that would likely result in serious injury to him.

[44] As for the serious impairment criterion, a similar conclusion can be drawn. The evidence on the record only refers to minor injuries, some which Mr. Gradek sustained in fights such as: stitches on his lip, a scar on his arm (the latter of undetermined cause) observed in relation to the 2010 incident; a prominent black eye (of undetermined cause) observed in relation to the October 30 incident; several bruises along his hands and left eye which was significantly red, observed on November 10. Even assuming all the injuries on record were caused by conduct related to Mr. Gradek`s mental disorder, which is in fact not apparent, there is no injury on record that could reasonably be regarded as a serious impairment and the basis for projecting serious injury in the future.

[45] Dr. Shafro advanced the view that Mr. Gradeks mental illness led him to refuse to open the door for the police which resulted in the police tasering him. From that perspective Dr. Shafro raised the likelihood of Mr. Gradek being seriously impaired by possible future encounters with the police. However, it is not clear that Mr. Gradeks mental illness caused him to deny the police entry. The November 10 consultation report indicates Mr. Gradek stated he did not open the door for the police because he was scared, which I find is a reasonable possibility. Further, there is no evidence that Mr. Gradek was injured by the taser. I find it is mere speculation to project the likelihood of serious impairment by taser without a proper evidentiary basis to do so.

[46] The denial of a person’s liberty rights as protected by s. 7 of the Charter of Rights and Freedoms is a serious encroachment on individual freedom. This right cannot be denied lightly or taken away on scant evidence. The Board must make its decision on clear, cogent and compelling evidence. The evidence must establish the attending physician has met the onus to prove on a balance of probabilities that the patient meets the requirements of 20(5) of the MHA. A mental disorder involving strange behaviour and comments are not sufficient alone to warrant involuntary status. The evidence must satisfy the harm tests set out in s. 20(5). A probing of the evidence the Board relied on discloses that the Board arrived at its determination on insufficient evidence.

[47] I therefore grant the appeal with respect to s. 20(5) of the MHA.

CAPACITY TO CONSENT TO TREATMENT

[48] With respect to treatment, the definition of “capacity” at s. 4 of the HCCA provides a person is capable with respect to a treatment if the person is able to understand the information that is relevant to making a decision about treatment and able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. Dr. Shafro’s opinion is that Mr. Gradek meets that definition as he is incapable of making his own treatment decisions.

[49] Mr. Gradek does not accept Dr. Shafro opinion that he has schizoaffective disorder, bipolar subtype. He does not believe he is has any mental or medical disorder and denies he needs psychiatric treatment and has refused medications. He denies anxiety, depression, psychotic symptoms and paranoia. This view is repeatedly stated throughout the medical records. Mr. Gradek asserts that he will not take medication if he is discharged from hospital.

[50] Starson v. Swayze held that a person for whom treatment of a mental disorder is proposed need not agree with the diagnosis but must be able to acknowledge the symptoms:

As a result, a patient is not required to describe his mental condition as an “illness”, or otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to appreciate the consequences of his decision.

Starson v. Swayze, supra, at para. [79]

[51] Dr. Shafro’s testimony confirmed the evidence in the medical record about Mr. Gradek’s denial of his disorder. Dr. Shafro provided Mr. Gradek with an information insert about his medications. Mr. Gradek said he was aware of the possible adverse side effects of some of the prescribed medications. But because he denied any illness he would not be capable to appreciate the benefits of the prescribed medicine. The Board accepted, as I do, Dr. Shafro’s opinion that Mr. Gradek’s incapacity was caused by his mental condition. I find there is clear, cogent and compelling evidence that Mr. Gradek was unable to appreciate the reasonably foreseeable consequences of a decision about the prescribed treatments and was therefore incapable to make his own treatment decisions.

[52] I therefore deny the appeal with respect to s. 4(1) of the HCCA.

CONCLUSION

[53] As it stands, Mr. Gradek suffers from a mental disorder and by this Order is allowed to voluntarily release himself from the hospital in circumstances in which he is not capable to consent to treatment. Mr. Gradek has indicated if released from the hospital, he will not take the prescribed medication and insists he does not need psychiatric treatment.

[54] Dr. Shafro makes the submission that Mr. Gradek was not suitable to be a voluntary patient because he stated he would leave the hospital if anyone tried to treat him. I do not think that alone is an appropriate basis to impose involuntary status. If a patient does not satisfy any of the harm tests under s. 20(5) of the MHA, he is at liberty to leave the institution. The capacity requirement under s. 4(1) is set up under a different legislative scheme and involves different criteria and considerations. Put another way, there is no requirement under s. 20(5) that a patient with a mental disorder be given involuntary status because he is incapable to consent to treatment and incapable to appreciate the reasonably foreseeable consequences of accepting or rejecting treatment.

[55] The record indicates Mr. Gradek’s mother is his substitute decision maker. There is also evidence of friction and discord between the mother and the son, with Mr. Gradek holding the view that his mother is abusing this authority. The mother seems from the record to lack a willingness to continue this role. This is an unfortunate and sad circumstance for both Mr. Gradek and the mother if he releases himself from the hospital and refuses treatment and has an unwilling substitute decision maker. An option is perhaps to arrange for the appointment of a new substitute decision maker.

Allen J.

Released: March 8, 2013

COURT FILE NO.: 03-120/12

DATE: 20130308

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jaroslaw Gradek

Appellant

– and –

Ariel Shafro

Respondent

REASONS FOR JUDGMENT

Allen J.

Released: March 8, 2013