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, S.O. 1996 c.2, Schedule A, as amended

AND IN THE MATTER OF KAMESHA BURNETT, a patient at CENTRE FOR ADDITION AND MENTAL HEALTH – QUEEN STREET DIVISION, Toronto, Ontario

RE: Kamesha Burnett, Appellant and Dr. Scott Woodside Respondent

COURT FILE NO.: 03-27/13
DATE: 20130626

BEFORE: Frank J.

COUNSEL:
Alistair M. Campbell, for the Appellant
Kendra Ali Naidoo, for the Respondent

ENDORSEMENT

[1] The appellant, Kamesha Burnett, appeals the decision of the Consent and Capacity Board (“the Board”) dated March 14, 2013, pursuant to section 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 and section 48 of the Mental Health Act, RSO 1990, c. M7.

[2] Ms. Burnett has been a patient at the Centre for Addiction and Mental Health (“CAMH”) since August 2008. In January 2013, she stopped taking prescribed mood stabilizing and anti-psychotic medication (“the Medication”). On March 6, 2003, Dr. Scott Woodside found Ms. Burnett to be incapable of consenting to treatment. Ms. Burnett applied to the Board for a review of Dr. Woodside’s finding. The Board confirmed that Ms. Burnett was incapable of consenting to treatment. It is that decision from which Ms. Burnett appeals.

[3] The grounds of appeal are that the Board failed to properly interpret or apply the statutory provisions defining capacity to make one’s own treatment decisions and that there was insufficient evidence to support the Board’s decision.

[4] There is no dispute as to the standard of review applicable to Board decisions. For questions of law it is correctness and for questions of mixed fact and law or questions of fact alone, it is reasonableness: Starson v. Swayze, [2003] S.C.R. 722, at paras 5, 83-84 and 110.

[5] The test for capacity to consent to treatment is set out in s. 4(1) of the Health Care and Consent Act:

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 a decision.

[6] Pursuant to s.4(2) of the Health Care Consent Act, the appellant is presumed to have capacity. The respondent has the burden of proving that the appellant lacks capacity.

[7] Ms. Burnett accepts that the Board proceeded on the basis of the proper test and recognized the presumption.

[8] The Board found that Ms. Burnett met the first part of the test for capacity in that she was able to understand the information provided to her regarding treatment with the medications in issue. However, it found that she did not meet the second half of the test. It concluded that Ms. Burnett “was not able to appreciate that the Medications could help her to control her behaviours and decrease her aggressiveness and thought disorganization. She was therefore not able to apply information relating to the Medication to herself or to appreciate the consequences of a decision respecting the Medications.”

[9] For the following reasons, I find that the Board made no error in law and that its decision was reasonable.

[10] In reaching its decision, the Board considered the oral evidence of Ms. Burnett and Dr. Woodside, along with the Consent and Capacity Board Summary prepared by Dr. Woodside for the purpose of the hearing and a collection of CAMH progress notes excerpted from Ms. Burnett’s clinical record. This evidence provided ample basis for its findings.

[11] Ms. Burnett has been diagnosed with crack cocaine dependence disorder, personality disorder and a psychotic illness, the precise nature of which is uncertain but has been variously diagnosed as schizoaffective disorder, schizophrenia, bipolarity and substance-induced disorder.

[12] Following her discontinuance of the Medication, Ms. Burnett’s condition deteriorated to the point that it was necessary to place her in continual locked seclusion. Due to the ongoing risk she posed to others, she remained in locked seclusion as of the time of the hearing before the Board.

[13] The progress notes of the various physicians who met with Ms. Burnett from February 26, 2013 through March 12, 2013, are consistent with the evidence of Dr. Woodside, in recording that Ms. Burnett would not acknowledge any connection between the change in her behaviour and her discontinuing of the medication. The notes state that she rejected the possibility that resuming medication might be of assistance to her in controlling her mood and aggression and that she refused to accept that her continued lack of treatment with the Medication could in any way result in further deterioration of her mental state. The conduct and views expressed by Ms. Burnett as noted by these physicians is consistent with a finding of lack of capacity.

[14] Ms. Burnett submits that the Board erred in law by placing too great a reliance on these progress notes. She argues that as the purpose of the consultation with respect to which the notes were created was not that of assessing Ms. Burnett’s capacity little weight should have been given them. Further, the conclusions in the notes are connected to the consequences of Ms. Burnett being in locked seclusion.

[15] In submissions before me, counsel for Ms. Burnett acknowledged that the notes were admissible.

[16] It was open to the Board to assign to this evidence whatever weight it deemed appropriate. The relevant evidence in the notes is not diminished in its value by the direct purpose of the consultation which they record not being an assessment of Ms. Burnett’s capacity to accept or refuse medication. The notes served to provide corroboration of Dr. Woodside’s evidence. The Board did not err in its reliance on them.

[17] At the core of Ms. Burnett’s submissions is that her view that she is not psychotic is reasonable and that therefore her decision to not take anti-psychotic medication is also reasonable and reflects the insight necessary in order to meet the test for capacity.

[18] There are a number of problems with this submission. First, it places too great a significance on the issue of Ms. Burnett’s diagnosis. Dr. Woodside testified, and the Board accepted, that the Medication that was being proposed was for the purpose of improving Ms. Burnett’s mood, level of aggression, irritability and thought form, thus making academic the question of whether Ms. Burnett was psychotic. The Board accepted that the treatment was to be used to “treat her mental disorder, in any case, just as they had to some effect during the five year period prior to January 2013.”

[19] Second, Ms. Burnett’s belief that she does not suffer from a psychosis does not demonstrate that she is able to appreciate the reasonably foreseeable consequences of her decision not to take the anti-psychotic medication. The evidence of her refusal to accept that her deterioration is in any way connected to her having stopped taking the Medication, demonstrates a lack of understanding of the consequences of not taking the Medication.

[20] Finally, the Board’s reasons demonstrate that its decision is not based on Ms. Burnett’s refusal to accept the psychotic diagnosis.

[21] Ms. Burnett, relying on the decision in Re Koch, 33 O.R. (3d), submits that there is a distinction between failing to understand and appreciate risks and consequences and being unable to understand risks and consequences and that the Board failed to appreciate this difference. But, the evidence is consistent with Ms. Burnett being unable to understand the risks and consequences of her decision. Ms. Burnett cannot be said to voluntarily assume the risk of not taking the Medication when she disputes that discontinuing it has had any effect on her and that taking them again has any potential to benefit her.

[22] Ms. Burnett argues that the fact that she was capable of making her own treatment decisions over her entire stay at CAMH until the March 6, 2013 decision finding her to lack capacity demonstrates that she has the requisite capacity. But, this disregards the critical change – the discontinuance of the Medication - that lead to the March 6, 2013 decision and demonstrates that Ms. Burnett does not appreciate the consequences of her decision to stop taking the medication.

[23] Neither the fact that Ms. Burnett has been willing to resume taking a mood stabilizing medication nor her recognition of the fact that she has a history of substance induced psychosis demonstrate, in the context of the evidence as a whole, that the Board misapprehended the evidence in finding that she lacked the requisite degree of appreciation of the reasonably foreseeable consequences of stopping medication. Nor does the fact that Ms. Burnett recognizes the need to pursue treatment demonstrate a misapprehension of the evidence by the Board. The therapies she refers to as providing alternatives to the use of the Medication are not available to her in her current condition and are therapies which she was receiving before she stopped taking the Medication and the resulting deterioration in her condition.

[24] Ms. Burnett’s submits that her appreciation that she suffers from a mental condition involving anger and irritability is inconsistent with her lacking the capacity to make the decision to discontinue the medication in issue. But Ms. Burnett’s characterization of her condition dramatically understates the reality of her condition. Her understanding of her condition as involving anger and irritability supports the Board’s findings that Ms. Burnett does not have insight into the full scope or complexity of her conditions.

[25] Unlike the circumstances in Starson on which Ms. Burnett relies, there is no basis here for concluding that the Board improperly allowed its own conception of Ms. Burnett’s best interests to influence its finding of capacity. This case is also distinguishable from Starson on its facts. The patient in Starson accepted that if he did not take the proposed treatment, his condition might continue to deteriorate and his reasons for not accepting the proposed medication was a determination not to experience the dulling of his intellectual functioning that was the result of his previous drug therapy. Ms. Burnett’s reason for not accepting the proposed treatment, in contrast, is based solely on her belief that she does not require the anti-psychotic medication because she is not psychotic.

[26] There is ample evidence on which the Board could conclude that Ms. Burnett was not capable with respect to the proposed treatment. The Board made no error of law or fact in confirming Dr. Woodside’s finding that Ms. Burnett was not capable of consenting to treatment with the Medication.

[27] The appeal is dismissed.

[28] If it is necessary, the parties may make brief written submissions with respect to costs by forwarding them to Judges’ Administration. The respondent’s submissions are to be received within 20 days of this endorsement, to be followed by the appellant’s within 10 days thereafter.

Frank J.

DATE: June 26, 2013