ONTARIO

SUPERIOR COURT OF JUSTICE

ESTATES LIST

COURT FILE NO.: 03-139/12

DATE: 20130424

IN THE MATTER OF an Appeal from a decision of the

Consent and Capacity Board

Pursuant to Health Care Consent Act, 1996 S.O. 1996 c.2.

as amended

AND IN THE MATTER OF

L.H., a patient of

OAKVILLE TRAFALGAR MEMORIAL HOSPITAL

Oakville, Ontario

BETWEEN:

L.H.

Responding Party/Appellant

– and –

DR. THOMAS HASTINGS

Moving Party/Respondent

Unrepresented, acting in person

Dara M. Lambe, Counsel for the Respondent

Theodore Nemetz, Amicus Curiae

HEARD: APRIL 15, 2013

ENDORSEMENT: GREER J.

[1] The Appellant, L.H. (“the Appellant”), is an involuntary patient at Oakville Trafalgar Memorial Hospital and has been there since November 13, 2012. She is being treated by the Respondent, Dr. Thomas Hastings (“the Respondent”), a psychiatrist. On December 17, 2012, there was a hearing before the Consent and Capacity Board. It confirmed the Appellant’s involuntary status and held that she was not capable of consenting to treatment with anti-psychotic medication, oral and intra-muscular, mood stabilizers, benzodiazepines, anticholinergic medications and laboratory investigations to monitor safety and compliance. The written reasons in support of the Board’s decision were released by it on December 27, 2013.

[2] On December 21, 2012, the Appellant filed a Notice of Appeal with this Court with respect to the Board’s decision, even before the written decision was released. Although the Appellant had counsel act on her behalf before the Board, she is now no longer represented by counsel.

[3] The Appellant has not perfected her Appeal and has filed nothing but the Notice of Appeal. When the parties and the Amicus Curiae appeared before me, no Appeal date had been set. By Order of Mr. Justice Whitaker, he said that the Appeal should be heard before the end of June 2013. He also appointed an Amicus Curiae to assist the Court. Theodore Nemetz was appointed to so act. He appears on the Motion brought on by the Respondent.

[4] The Respondent moves for the following relief and asks the Court to make the following Orders:

(a) An Order authorizing treatment of the Appellant, pending appeal of the decision of the Ontario Consent and Capacity Board as per s.19(2) of the Health Care Consent Act, 1996, S.O. 1996, c.2. Sched. A.

(b) In the alternative, an Order dispensing with the requirement that the Appellant file a factum on the Appeal and that the hearing of the Appeal be expedited.

[5] At the outset of the Motion, the Amicus Curiae said he probably could have his materials ready by the end of the week or the beginning of the next week. The Appellant gave no information as to when she might be ready to proceed. The Estates Office was contacted to provide current dates for the Appeal to be heard and we were informed that the earliest date was July 7, 2013 and any other date that week. Counsel agreed that the date was acceptable to both of them. I fixed the date of the Appeal as July 7, 2013. The full day as been set aside, although counsel think it may take only ½ day to be heard.

Interim Treatment Order

[6] The Respondent is asking the Court for leave to allow treatment to be administered to the Appellant, under Section 19 of the Health Care Consent Act, 1996, S.O 1996, c.2, Sched. A. (“the Act”) pending the hearing of the Appeal. Subsection 19(1) of that Act reads:

If an appeal is taken from the Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal despite section 18, if the court to which the appeal is taken so orders and the consent is given.

[7] Subsection 19(2) states that the Court may make the Order if it is satisfied that the following provisions of the Act have been met:

(a) That,

(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered and the person’s condition will not or is not likely to improve without the treatment, or

(ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate.

(b) That the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

(d) That the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal.

[8] The Appellant has done nothing to move the Appeal forward. By the time the Appeal is heard, if no adjournments are requested or none granted, the Appeal will be heard at the beginning of July 2013, seven months after the Notice of Appeal was filed by the Appellant. While the Appellant was admitted to the Oakville Trafalgar Memorial Hospital and was being treated there by the Respondent, she has now been transferred to the ICU Unit in the hospital, given concerns which the medical staff has about her condition.

The medical evidence

[9] The Appellant has a long history of requiring psychiatric treatment involving multiple hospitalizations due to episodes of “depression, mania and psychosis”, starting in 1999. She has been hospitalized at CAMH in Toronto and at the McMaster University Medical Centre in Hamilton. In 2003, she was placed on an anti-psychotic medication, called Risperidone. The medical evidence is that the Appellant demonstrated significant clinical improvement. During the period 2003 to 2009, the Appellant continued to take the treatment and had no further episodes. Both the Appellant’s sister, and the Appellant’s father, verified this to be the case.

[10] The Appellant, during those years, continued with her education, receiving a degree in science, obtained her teaching qualifications, taught school, participated in the writing of several educational papers, married her husband, and lived a very fulfilling life.

[11] While the evidence is not clear as to the exact date the Appellant ceased taking her medications, the Respondent says it was likely sometime in 2009. This led to her gradual mental decline, leading up to another hospitalization in December 2010, the Appellant was treated by the Respondent. He says his diagnosis, of the Appellant, upon her discharge in January 2011, was that she suffered from a schizoaffective disorder, bipolar type. He said that at that time, the Appellant had a “history of treatment non-compliance and demonstrated poor insight into her illness.”

[12] Upon discharge, the Appellant’s husband and father agreed to monitor her medication compliance and she agreed to see Dr. Seli, a psychiatrist in the community. She took the medication for six months, when she switched to another medication, Amblify, because of what she said were side effects from the original medication. The Appellant then moved to a different psychiatrist, Dr. Gilbert, who tapered off her medication. The Appellant, herself, has now said that she stopped taking her medication altogether “a long time before that.”

[13] The Appellant was brought to the Hospital on November 13, 2012, and was admitted to the Psychiatric Intensive Care Unit, where she was seen by the Respondent. She denied any need for medication and denied that she had ever exhibited any signs of paranoia. The Respondent says that she was “argumentative” and refused treatment.

[14] The Respondent obtained information about the Appellant’s condition from her husband and father. They said that there had been significant mental deterioration and increased agitation since the discontinuance of her medication.

Recent deterioration of the Appellant’s condition

[15] The Respondent has brought on this Motion given his concern about what he sees is the Appellant’s significant deterioration of her condition, where he says she has remained actively psychotic. He also says that the Appellant’s “persecutory delusional system” has expanded. There is evidence that the Appellant became quite disruptive on January 3, 2013 on the therapeutic ward in the hospital. He noticed that she had more auditory hallucinations, and thought her room was “bugged”. He says she was argumentative in her behaviour.

[16] The Respondent says that these conditions worsened as the weeks went on through January 2013. By January 20, 2013, the Appellant’s behaviour had escalated until she packed her belongings and threatened to leave the hospital. The Respondent says that the Appellant was finally transferred to the Psychiatric Intensive Care Unit, as she was becoming more violent and aggressive. These delusions and auditory hallucinations continue.

[17] For this proceeding and Motion, the Respondent prepared a Supplementary Affidavit sworn April 4, 2013, in which he outlines his concerns about the Appellant’s deteriorating condition. He spoke to her family members who, he says, all agree that she should receive treatment now, given the state of her health. There are weight loss issues, and issues about her unwillingness to eat the hospital food but she eat if she attends at her parents’ home.

[18] A further assessment was done of the Appellant on February 26, 2013, when the she finally admitted that she was hearing multiple male and female voices and that they varied in intensity. She said these were as a result of an electronic device having been transplanted into her body without her knowledge during a prior hospitalization.

[19] The Respondent says that the Appellant, by March 8, 2012, had lost approximately 30 pounds. The family members confirmed the Respondent’s findings through their own observations of the Appellant’s behaviour and weight loss. She became even more argumentative and told the Respondent and staff that she had physical sensations and problems caused by others.

[20] In paragraph 20 of his Supplementary Affidavit, the Respondent indicated to them that she had recently talked to staff about “rather being dead” than in the hospital. She says that she is being “harassed”. The Respondent says in para. 21 that the Appellant’s sister, who is a doctor, spoke to him and said that the Appellant stated that she wished the staff would give her a lethal injection.

[21] The Respondent has attached to his Supplementary Affidavit over 50 pages of “List Patient Notes” made by him and nurses and other persons having contact with the Appellant. In my view, these clearly set out a pattern of the Appellant’s escalating and deteriorating condition since she stopped taking her medications in November 2012. Some of these observations are as follows:

(a) Feb. 2/13 – heard patient responding verbally to stimuli

(b) Feb. 14/13 - (by 3 separate persons) patient became hostile, raising voice at writer…refuses to listen…became argumentative…increasingly agitated at any attempt to assess mental status or interact anything more than superficially…

(c) Feb. 17/13 – presentation remains quite guarded, confrontational, and dismissive…accusatory during interaction

(d) Feb. 18/13 – emphasized disagreement with her present psychiatric diagnosis which she describes as “the most awful, worse one possible.”

(e) Feb. 19/13 – allowed to go out on a pass…upon return responded defensively and said she is being “emotionally abused”…(later by the Respondent) …feeling there is a “feedback loop” going on which results in her having “therapy done on me when I don’t even know it.”….insistent that she does not have schizophrenia and is not hearing voices….continues to evidence increasing instability in mood due to progressive and substantial mental deterioration absent treatment.

(f) Feb. 21/13 - (by the Respondent)…delusional, thought disordered, deteriorating mental state. Remains treatment incapable.

(g) Feb. 22/13 - (by the Respondent) …with the family (husband, father, mother), and patient present. Patient consistently disruptive to the interview process, suspicious and thought disordered as a result of repeated requests to allow the meeting to continue…shown substantial mental deterioration during her hospital stay…expansion in her delusional ideas…talking and muttering to herself…lacking in insight and experiencing continued decline in her mental state with worsened psychotic symptoms, thought disorder and impaired functioning.

(h) Mar. 4/13 – admitted to auditory hallucinations…believes she has a microchip implanted in her head close to her ears…believes the unit has “bugging” equipment

(i) Mar. 12/13 –…disruptive and yelling at Tim Horton’s staff…changing her mind as each order is prepared

(j) Mar. 13/13 – losing weight, paranoid about her food, possibly thinking that staff are trying to drug her with meds…family expressing that she is decompensating

(k) Mar. 16/13 - accompanied by mother who states the pass did not go well…was tangential and speech was rapid. Presented as angry and hostile and unco-operative…continually cut mother off…mother became tearful…asking her to stop. Mother requested pt. not be allowed passes on her own…while in shower she was yelling, swearing and talking, asking questions

(l) Mar. 19/13 - pt “does not trust the food tray on the floor” (not eating)

(m) Mar. 21/13 – (brain MRI ordered by Respondent) – refused to sign consent to release of information form, became angry and ripped the rooms apart…hypertalkative

(n) Mar. 25/13 – dismissive, refusing all care including weekly weights, boost, meals and vitamins- appears to be losing weight, paranoid about the food…expressing that she is decompensating…continues to hallucinate

(o) Mar. 28/13 - (told nurse) “doctors and staff at Halton are trying to kill her family”…also to kill her…she “has a hidden list of evidence.” (Respondent also reports same comments)

(p) Mar. 31/13 – increasingly disruptive and combative with staff

(q) Apr. 1/13 – Respondent reports she said she wished the staff would give her a lethal injection today…tactile hallucinations…“wanting to be dead”

Appellant’s position

[22] The Appellant asks to have the Motion dismissed. At the outset, she did not want me to hear the Motion. She said that if the Respondent was so concerned about her, he would have appeared before the Court today. She says it is not in her best interests to have the Court hear the Motion. She claims that the hospital has “held me back” and will not allow her to have free access to her computer. She says that the hospital people will not listen to her, despite her qualifications. I assured her that I had read her curriculum vitae and am aware of her achievements.

[23] Having read all of the Motion materials and after hearing the Appellant’s objections, I allowed the Motion to be heard.

[24] While the Motion proceeded, the Respondent asked the Court for leave to file additional clinical notes of the Respondent and hospital staff from April 9, 2013 to the most recent note. The Amicus Curiae, after reading the notes, had no objection to having them introduced. The Appellant, on the other hand, did object. Since the notes did not form part of an Affidavit by the Respondent, I refused to allow them to be entered in evidence.

[25] The Appellant says the Motion should be dismissed because the Respondent’s evidence was “fragmented and did not document what had occurred.” She accused the Respondent of not giving “the big picture”, which caused the information given to be out of context. Further, the Appellant thinks that the Respondent’s diagnosis of her condition, is wrong. She says that some of the evidence about what she said and did, do not reflect the true her. She does not accept the description in the clinical notes about her verbal behaviour. She feels negatively affected by all of this. She says that making her take her medications is not in her best interests.

Position of the Amicus Curiae

[26] Mr. Nemetz says he is concerned about some of the Affidavit evidence as being hearsay, and that it is hyperbole and “over the top.” He does not see how the Tim Horton’s staff (the coffee shop being in the Hospital lobby) could have been threatened by the Appellant’s behaviour. He says some of the evidence should be taken “with a grain of salt.” He does not see that the evidence is sufficient to make a case that treatment should be given now, before the Appeal is heard. He says there is no evidence that the Appellant has behaved violently.

Analysis

[27] In my view, it is imperative that the Appellant receive treatment now, before the Appeal is heard. The relief requested by the Respondent in his Notice of Motion is granted for the reasons, which follow. I have read all of the clinical notes and records set out in Schedule A of the Respondent’s Supplementary Affidavit. I see no exaggeration in any of the evidence set out there by the Respondent and the various hospital personnel, whose job was to oversee the Appellant’s treatment and who wrote first-hand accounts of her behaviour, on a daily basis.

[28] I have set out in detail, parts of those clinical notes, which I see as evidence of the Appellant’s rapid deterioration of both her mental health and physical health. The hallucinations and the delusions have become more severe over the past two months. It is uncontradicted evidence that the Appellant has lost 30 pounds since her admission. She has had to be placed in the ICU unit of the psychiatric ward, given her confrontations with other patients and her failure to listen to the staff recommendations.

[29] The Appellant’s husband can no longer deal with the Appellant’s condition, and he, himself, has had to seek psychiatric care over his own depression. He cannot act as the Appellant’s guardian for personal care. The Appellant’s father has had to assume that role and he and his wife are very anxious about her condition. The mother can longer have the Appellant unaccompanied to their home, given her disruptive behaviour. The Appellant’s sister, a doctor, confirms that the Appellant’s condition has worsened rapidly.

[30] The medical evidence is that the medication treatment recommended by the Respondent will or is likely to improve the Appellant’s condition and that the evidence shows that her condition will not improve without it. The medication is said to work within a few weeks so that the improvement will be visible long before the Appeal is heard. Therefore, I find that the test in subsection 19(2)(a) of the Act has been met.

[31] The benefit of taking the medication far outweighs the risk of harm to the Appellant. Although the Appellant says that the medication has caused her to put on weight, the medical evidence is that this is not one of the side effects of the proposed drug medications recommended by the Respondent. He says that the pattern of the Appellant’s behaviour, while taking the drug, has been exemplary. She was able to obtain a degree, obtain her teaching certification and taught successfully and co-authored educational papers, while taking the medication. All of this has ceased and her marriage has failed because of her refusal to take the medication. Therefore, in my view, the test in subsection 19(2)(b) of the Act has been met.

[32] Oral medication is the least intrusive treatment for the Appellant’s condition. At the beginning, the Appellant may have to receive intramuscular injections, given her refusal to co-operate, but that may cease after a few weeks, as the medication starts modifying the Appellant’s condition. Therefore subsection 19(2)(c) of the Act has been met.

[33] I have outlined in these Reasons why I see the Appellant’s condition, such that it is necessary to administer the treatment before the final disposition of the Appeal. She is now starting to make statements about death that concern her family and her psychiatrist and treating staff. She thinks her food has been poisoned and refuses to eat the hospital food, yet will eat at her parents’ home. Even though the Appeal has been set down to be heard on July 7, 2013, the Appeal could be adjourned under a variety of circumstances. If that occurred, the Appellant’s mental and physical conditions would deteriorate even further, perhaps putting her life at risk under the circumstances of this case. Therefore subsection 19(2)(d) has been met. All aspects of the statutory test have been met.

[34] In Gunn v, Koczerginski, [2001] O.J. No. 4479 (S.C.J.), at para. 8 the Court says that such treatment should be undertaken “if truly necessary and, even when, only with proper consideration and respect for these important personal rights”.

[35] In my view, the case before me can be distinguished from Gunn, supra. In that case, there was evidence that the medication to be given to the patient would not take effect for six to eight weeks, with the Appeal to be heard shortly thereafter. There the Judge found that the medical evidence in that case was not strong enough for her to make the interim treatment Order. I have found that the medical evidence before me is so strong, respecting the Appellant’s deteriorating mental and physical conditions, that the relief requested in the Motion is granted.

[36] I am mindful of the fact that forcible treatment against a patient’s will is a serious infringement of that patient’s rights to “…self-determination, physical integrity, liberty and security of the person”, as noted also in Gunn, supra. In my view, however, in the case before me, the need for the Appellant to receive treatment to arrest her deteriorating conditions outweighs these rights.

[37] In the recent decision, J.L. v. Howell, 2012 ONSC 3415 (S.C.J.), Madam Justice Warkentin, in a similar case to the one before me, granted the doctor’s Motion to allow interim treatment to a patient. In that case, the Appeal had been launched by the Appellant and 6 months had passed without further steps being taken in the Appeal. There the patient had a long-standing history noncompliance with treating, including antipsychotic medication. That patient, too, had been admitted to hospital on a number of occasions and that he had become violent, on occasion, and believed that he was being persecuted. The fact situation is similar to the case before me. I adopt the reasoning of Madam Justice Warkentin.

Order

[38] An Order shall go and the relief is granted in the terms of paragraph 1(a) of the Notice of Motion. The medical treatment recommended by the Respondent shall now be administered to the Appellant as prescribed by the Respondent, before the Appeal is heard. On behalf of the Appellant, I consent to the treatment pursuant to Subsection 19(1) of the Act. It shall be as least intrusive as possible in the circumstances of this case.

[39] In the circumstances of this case, there shall be no Order for Costs. The Amicus Curiae, however, is entitled to have his Costs paid in the usual manner.

Greer J.

Released: April 24, 2013