ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 03-27/13
DATE: 20130611
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
KAMESHA BURNETT
a patient at
CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET DIVISION
Toronto, Ontario
BETWEEN:
KAMESHA BURNETT
Appellant, Responding Party
– and –
DR. SCOTT WOODSIDE
Respondent, Moving Party
Alistair M. Campbell, Counsel for the Appellant, Responding Party on the Motion
Kendra A. Naidoo, Counsel for the Respondent, Moving Party on the Motion
ENDORSEMENT: GREER J.:
[1] Dr. Scott Woodside, the Respondent in this proceeding, moves for an interim Order authorizing the treatment of Kamesha Burnett, the Appellant in this Appeal, pending her Appeal of the decision of the Consent and Capacity Board (“the Board”) dated March 14, 2013.
[2] The Appeal is about to be perfected and the Appeal has now been set down to be heard on June 24, 2013 for a one-half day hearing. That date was given to the parties at the end of this Interim Motion.
[3] The Respondent doctor is the Appellant’s treating psychiatrist. He determined that the Appellant is incapable of consenting to treatment of her mental condition with antipsychotic and mood stabilizing medications on March 11, 2013. On March 14, 2013, the Board upheld those findings and the Appellant delivered her Notice of Appeal on March 20, 2013. The Board released its Decision on March 20, 2013. It found that the Appellant had “several clear diagnoses: crack cocaine dependence disorder; personality disorder (anticosical, narcisstic and borderline in nature), and a psychotic illness. The nature of the psychotic illness has been described differently at different times but is mainly referred to as schizophrenia, schizoaffective discord, bipolarity, and substance-induced psychosis.
[4] The Appellant had been taking two prescribed drugs, namely a stabilizing medication (Divalproex Acid) and anti-psychotic medication (Ziprasidone). It is the evidence of Dr. Woodside, that this treatment had been helping the Appellant, since she has been in CAMH since 2008. She is also subject to a detention order dated May 12, 2008 under the Ontario Review Board since having been found not criminally responsible with respect to charges for failing to comply with recognizance and failing to comply with probation. The Ontario Review Board reviews the Appellant’s situation each year and sets out its findings.
[5] The Appellant was taking her medications at CAMH up to January 2013, when she ceased taking them. She had also been participating in many of the programmes organized at CAMH for its patients including dialectical behavioural therapy, counselling regarding substance abuse and management of interpersonal relationships, as well as receiving mood stabilizing medication and anti-psychotic medication, all of which Dr. Woodside said were helping the Appellant. In his Affidavit sworn May 27, 2013, Dr. Woodside sets out in some detail, how the Appellant’s behaviour has changed to be extremely verbally abusive to staff and doctors, and “to exhibit threatening behaviour.” All of the doctors’ notes and nurses’ notes set out this behaviour. There are periods of calmness, but they are far-outweighed by other behaviour.
[6] The Appellant has stopped participating in all programmes and has become so abusive that on May 11, 2013, she was put in four-point restraints in order to ensure the safety of herself and others. The escalating problems with the Appellant’s behaviour is set out in the clinical notes from March 15, 2013 to May 13, 2013. She was sent to the locked seclusion area where she has remained since March 15, 2013 in her own room. She has no access to other areas of CAMH or her floor, and her meals are brought to her room each day.
[7] It is the opinion of Dr. Woodside, that without CAMH’s Proposed Treatment for her, the Appellant’s condition will not improve. In para. 24 of his Affidavit, Dr. Woodside says:
Moreover, in my clinical opinion, the typical course of a psychotic illness such as Ms. Burnett’s is that the longer it remains untreated, the more likely she is to become refractory to treatment and to experience worsening in terms of the course of her illness.
There are various other doctors’ notes which confirm this opinion. They state comments such as “has very little insight into her difficulties”, and “on-going risk to others”, and “her mental status has clearly decompensated, with marked agitation and intimidating behaviour directed primarily towards nursing staff,” and “remains at risk for aggressive behaviour.”
[8] There have also been problems as to who is the Appellant’s substitute decision maker. Her mother was in that position and others were approached when the mother no longer wished to act. Neither the Appellant’s father (living in the U.S.A.) nor her half-brother would agree to take over the task. They are aware of the Appellant’s increased intimidating behaviour. The mother does not oppose the Appellant taking her medications.
[9] The Appellant opposes taking her medications. She wants to have her Appeal heard, since she thinks she is capable of making her own decisions about her medication. She particularly opposes taking the anti-psychotic medications. She did, however, tell the Board that would try the mood stabilizers again. She believes that there is merit to her Appeal and the Court was able to set it down for June 24, 2013 on consent of the parties.
[10] The test on an interim motion is set out in S. 19 of the Health Care Consent Act, 1996 S.O. 1996, c. 2, Sched, A., which authorizes treatment pending appeal. Subsection 19(2) states that the Court may make the Order if it is satisfied that the test has been met. It reads:
(a) that,
(i) the treatment will or is likely to improve substantially the condition of the person to whom is to be administered, and that 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.
[11] I have concluded that since the hearing of the Appeal has been expedited and will be heard before the end of the month, that I will not deal with the issue of the anti-psychotic drug treatment at this point in time. I do, however make the Order that the Appellant be medicated, at this point in time, with the mood stabilizing drug she says she might agree to take. I make the Order that she take the drug Divalproex Acid, as prescribed by Dr. Woodside. It shall be given to her until the final disposition of the Appeal, and the medical notes shall be up-dated accordingly during the interval between now and the final disposition of the Appeal.
[12] I make this Order since there is more than sufficient evidence to show that the Appellant’s condition has deteriorated to the point that she is now in lockdown quarters and will stay there unless Dr. Woodside is satisfied that the mood stabilizing drug has sufficiently helped her in the interval to again participate in one or more programmes before the Appeal is heard.
[13] I am satisfied that the statutory test has been met for the taking of this one drug at this time. The decision respecting the taking of the anti-psychotic drug will be left to the Court of Appeal to determine on the Appeal. Some of the same case law that counsel referred me to will be before the Judge hearing the Appeal. The interim case decisions, which in my view apply to this case are S.R. v. Hutchinson, [2009] O.J. No. 516 (S.C.J.) and J.L. v. Howell, [2012] O.J. No. 3597 (S.C.J.).
[14] The Order shall go accordingly. There shall be no Order as to Costs.
Greer J.
Released: June 11, 2013
COURT FILE NO.: 03-27/13
DATE: 20130611
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, 1996, S.O. 1996, c.2, Schedule A
as amended
AND IN THE MATTER OF
KAMESHA BURNETT
a patient at
CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET DIVISION
Toronto, Ontario
BETWEEN:
KAMESHA BURNETT
Appellant, Responding Party
– and –
DR. SCOTT WOODSIDE
Respondent, Moving Party
ENDORSEMENT
Greer J.
Released: June 11, 2013