ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
COURT FILE NO.: 03-032/13
DATE: 20131024
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 an appeal from a decision of the
Consent and Capacity Board
Pursuant to the Mental Health Act, R.S.O. 1990, c. M.7,
as amended
BETWEEN:
R. W.,
Appellant
– and –
DR. ANTHONY FEINSTEIN,
Respondent
Ken J. Berger, Counsel for the Appellant
Melissa Atkin and Keary Grace, Co-counsel for the Respondent
HEARD: OCTOBER 18, 2013
reasons on appeal: greer j.:
[1] The Appellant, R.W. (“the Appellant”), is an involuntary patient at the Sunnybrook Health Sciences Centre, Toronto and has been there since March 14, 2013. She is being treated by the Respondent, Dr. Anthony Feinstein, (“the Respondent”) a Psychiatrist. On March 26, 2013, there was a hearing before the Consent and Capacity Board (“the Board”). It confirmed the Appellant’s involuntary status and held that she was not capable of consenting to treatment with anti-psychotic medications, orally or by injection, and side effect medications as needed. The written reasons of the Board’s Decision were released by it on April 4, 2013.
[2] The Appellant’s Notice of Appeal is dated April 3, 2013. The Appellant was represented by counsel before the Board and is represented by the same counsel on this Appeal. The Appellant raised certain constitutional issues on an earlier appearance before Madam Justice Frank. In her Order of August 9, 2013, the Judge removed the Board as a party to the Appeal. She also struck paragraphs 5, 6 and 7 of the Amended Notice of Appeal. The constitutional issue raised by the Appellant, however, remained outstanding. The Judge adjourned the Appeal to today’s date and allowed the Appellant to file an Amended Factum by September 20, 2013, with the Respondent’s to be filed 2 days later. Since no Amended Factum was filed by the Appellant, within that period, the Attorney General for Ontario takes the position that the constitutional issue is abandoned and he moved for an Order based on that fact. I agree with that position and I made such an Order that the issue is abandoned and that the constitutional issue is dismissed. That Endorsement appears on the Record.
The Appeal
[3] The Appellant says that the Decision of the Board should be set aside on the following grounds:
- The Board erred in misapprehending the evidence
- The Board erred in applying the correct test at law (as quoted directly from the Notice of Appeal
- The Board erred in that its decision was unreasonable
There are two other grounds for the Appeal but one relates to the claim that was dismissed by Madam Justice Frank where she held that the Board lost jurisdiction at the hearing. The other relates to the constitutional issue. Neither is relevant in this Appeal.
[4] The Appellant asks that the Appeal be allowed and that the finding of the Board that the Appellant was incapable with respect to treatment and that its finding that she should be involuntarily detained, should also be quashed. On the Appeal, the Appellant relied solely on the Transcript of the Hearing before the Board. The Appellant did not refer in his submissions to the written Decision of the Board. The Appeal was strictly argued on certain facts in the Transcript, which the Appellant says were ignored by the Board or misapprehended by it. The Appellant says the Decision is unreasonable.
The Test
[5] The parties agree that the test on this Appeal is that of reasonableness on questions of mixed fact and law. On questions of law, the test is that of correctness. The Board was required to apply the evidence before it to the statutory tests for capacity and involuntary status, which involved questions of mixed fact and law. See: Gligorevic v. McMaster, 2012 ONCA 115 where, in para. 43, the Court, on Appeal from the Board’s decision (in a criminal matter), the Court applied the evidence before it to the statutory test set out in s.4(1) of the Act. It also referred to the Supreme Court test set out in Starson v. Swaze, 2003 SCC 32.
The Decision
[6] The Board’s Decision was comprehensive and thorough and clear in rendering its reasons that the Appellant had not met the test. It sets out the background of the Appellant, noting that she is 41 years of age, is university educated and had, at one time, been self-employed in the watch business in Winnipeg, where she grew up. Over the past 10 years, the Appellant has never worked and has been financially supported by her mother. The mother gave evidence at the hearing. The Appellant also received support from government benefits at some points during those 10 years.
[7] The Appellant left Toronto in late 2010 or early 2011, and returned to Winnipeg. She spent two years there in 2011-12, before returning to Toronto. For the past year, the Appellant has resided in Toronto, moving from residence to residence.
[8] The mother told the Board that the Appellant’s condition has worsened over the past 10 years. She was hospitalized twice while in Winnipeg with her mother, and had one short hospital stay in Toronto in September 2012. While in Winnipeg, the Appellant’s doctor tried to get her to take anti-psychotic drugs but she refused to do so. Her mother thinks this is why she left Winnipeg to return to Toronto.
[9] The Appellant had established a relationship with Sandra Martin, a case worker with the Community Care Access Centre in Toronto. She left her residence in March 2013 and with no place to live and went to see Sandra Martin. Ms. Martin was very concerned about the Appellant’s health, which she thought had deteriorated, and about a significant amount of weight loss and her physical and mental conditions. She suggested that the Appellant should go to the hospital for treatment.
[10] The Appellant was hospitalized on a Form 1 on March 14, 2013. On March 15, 2013, the Appellant was found not be mentally capable to consent to treatment of a mental disorder. A Form 3 was completed on March 17, 2013.
[11] The Board found that the Appellant was not forthcoming about her past mental history. It had to rely on the evidence of the mother, and evidence of Sandra Martin by telephone. It found that the Appellant had not been properly eating for some time and that she had become increasingly disorganized in thought. The evidence was that her personal grooming had deteriorated, and that she would not bathe or wash her hair unless her mother prompted her to do this.
[12] The mother visited the Appellant a week before the hearing, not having seen her daughter for a year. Her evidence is that she saw a “…tremendous change. This is the worst I’ve seen her.”
[13] The Appellant suffers from neuralgia and takes medication for it. The Board found that there was no real evidence that the Appellant had sought medical help for her deteriorating medical condition. When she was hospitalized in Toronto in November 2012, the Appellant refused all medications. She was diagnosed at that time by Dr. Nynkowski as having a personality disorder of mixed type. Dr. Feinstein later diagnosed her as having schizophrenia. She refused treatment and kept saying that she just wanted to leave the hospital.
[14] The Board found that the Appellant had suffered a significant mental decline in the 5 months following her admission to Sunnybrook. The record shows that she simply forgot to eat, although there is some evidence that she may have an eating disorder. In its Decision, the Board at p.13 found the following:
Her evidence was not cogent, not compelling—and had the ring of telling the panel what she felt the panel needed to hear in so that should leave [sic] hospital. Her behaviour – particularly her constant disorganized preservative speech – during the hearing demonstrated that, while she could comprehend the need to eat for few seconds, she couldn’t carry that thought any longer than that—and could not properly tend to her own nutritional needs outside of hospital.
The Board says that the Panel examined the Appellant’s situation in its entirety.
The Appellant’s position
[15] The Appellant says that the Board misapprehended the evidence in coming to the Decision it did. She says that the Board made “…quite an unfair and unreasonable decision…it completely misapprehended the facts and breached the rules of natural justice.” She says her Appeal is very meritorious. She says she has never been harmful to herself and has never been harmful to others. She says she has friends, boyfriends and travelled to New York on her own. At one point, she says her mother had bought her a car. She also had an abortion not too long ago and worries that she may still be harbouring some after-effects in her abdomen.
[16] The Appellant denies the evidence that she has an eating disorder and that she sticks her fingers down her throat to vomit. She says there is a large number of misstatements on p.60 of the Transcript. She says she has demonstrated that she can seek out help when needed. She says many of the Board’s findings are “implausible” and that she has the capacity to make her own medical decisions.
[17] In her Factum, the Appellant made the following strong but incorrect statements about the Board:
(a) P.2 The Board, “…should know better not to make such flawed paternalistic and erroneous decisions that fail to stand up to any scrutiny based on the evidence, the legal requirements and the onus of proof under the law.
(b) P.2 The Board’s decision is, “…seriously erroneous and unreasonable…it was not up to the task of fairly and reasonably adjudicating this matter…”
(c) P.4 on the results of the Board’s decision – “We do not torture and experiment on persons. We live in a social democratic society…such decisions against the rule of law are outrageous…”
(d) P.18 “where…Ms. R.W. is being arbitrarily and unnecessarily detained offending the principles of fundamental justice, rationality and evidence.”
The Respondent’s position
[18] The Respondent says that the Appeal must be dismissed as the Board’s decision was reasonable. He says the Board had sufficient evidence to make the finding that the Appellant’s involuntary status was correct and in finding her incapable of consenting to treatment. As was noted in Starson v. Swayze, supra, in para. 86, the Board is to be respected in its determinations of capacity, given that it enjoys some measure of institutional expertise in that regard. The Court then said:
The Board is uniquely positioned to hear the viva voce evidence of the patient and physicians. These factors suggest that determination of capacity should generally be entrusted to the relative expertise of the Board.
[19] The Respondent says that the Board’s own observations were consistent with his evidence given at the hearing. He notes that the Board said that the Appellant was unable to listen to others, constantly interrupting them, and that she showed an inability to engage in any meaningful conversation for longer than a few seconds. It also noted that the Appellant avoids discussion and questions about her physical and mental health.
[20] The Respondent points to the mother’s evidence presented to the Board, which it incorporated into its findings. The Board found her evidence to be cogent and compelling.
[21] On the other hand, the Board found that the Appellant’s evidence was neither clear nor compelling on the issue of whether she suffered from mental health issues or on how she intended to care for herself and find housing. The Board said the Appellant’s responses were superficial and disorganized, notwithstanding that she saw herself as “…had been eating fine.”
[22] The Respondent says that on p.64 of the Transcript, that there is no evidence that the Appellant was taking her medication in the form of anti-psychotic drugs or other medications for her mental condition when she was admitted to the hospital on admission. The hospital did a drug screen and it found there was no evidence that she was taking any psychotropic medication at that time.
[23] The Board found on p.19 of its Decision that the Appellant was unable and unwilling to address any suggestion that her significant health decline had anything to do with something other than physical ailments, despite at least three health professionals telling her that she had some sort of mental disorder. It found her unable to comprehend how she was going to pay for an apartment if she was released from the hospital without medication. She had not worked for 10 years and had to rely on her mother for financial support.
[24] The Board also noted that the Appellant showed a significant weight loss and that any further weight loss would have a negatively impact on her health. The Respondent found that the Appellant’s levels of potassium were low on admission, which is often a sign of malnutrition.
Analysis
[25] The Appellant, under s.8 of the Health Care Consent Act, 1996, S.O.1996, c.2, has a statutory right of appeal from the Board’s decision, whether the question is one of fact, law or a combination of both. Under subsection 4(1) capacity is dealt with as follows:
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.
Subsection 4(2) says that a person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.
[26] The attending physician has a duty under s.20.(1)(a) and (b) of the Mental Health Act, R.S.O. 1990, c.M.7, (“the MHC”) after observing and examining a person who is the subject of an application for assessment or subject of an Order, to release that person if the attending physician is of that opinion that the person is not in need of treatment provided in a psychiatric facility.
[27] On the other hand, the physician shall admit that person as an informal or voluntary patient if the physician is of the opinion that the person is suffering from mental disorder of such a nature or quality that the person is in need of treatment in such a facility. The physician then completes a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in the legislation are met.
[28] As noted by Mr. Justice Grace in Tran v. Ginsburg, 2011 ONSC 927, in para. 26, the issue of whether a person is capable with respect to treatment involves factual and legal analysis. In the case before me, the Appellant has relied only on the facts, which she said the Board misapprehended. I cannot see where the Board misapprehended the facts. I have set out parts of what the Board has said in its Decision to show that the Board was alive to the facts before it. It is clear that when the Appellant went to Sunnybrook on March 14, 2013, she did so on the advice of her case worker. The hospital notes on the Form 1 show that the Appellant appeared:
…dishevelled, unwilling to answer questions, repetitive speech, lack of insight into own condition. Case Worker states patient still believes she is pregnant and is seeking further abortions and is smoking a lot “to kill the baby” deteriorating physical condition, feels people have bugged her phone.
On the form, the boxes reading “serious bodily harm to himself or herself” and “serious physical impairment of himself or herself” have been marked as the opinion of the admitting physician that the Appellant if apparently suffering from mental disorder of a nature or quality that will likely result in one of those conditions.
[29] The Form 3 also has marked off that the Appellant is incapable of consenting to treatment and that she meets all of the five criteria set out on the Form. Dr. Kingston in his notes made on March 25, 2013, says that an eating disorder has been suspected. He notes that her “erratic and inappropriate behaviour has been disturbing to neighbours, roommates and landlords and this has resulted in multiple admissions.” He also notes that her judgment was very poor.
[30] The Board, in T.W. (Re), 2004 57257 (ON CCB), at p.p. 5 and 6 of its Decision, sets out the test in subsection 20(5) of the MHC and applies it to a case with similar facts to the case before me. There, the person was found to “likely” suffer serious bodily harm to himself or “serious” physical impairment of himself. In coming to this conclusion, the Board noted at p.6 that the patient failed to eat or sleep properly or otherwise attend adequately to the activities of daily living, refused to comply with drug treatments outside the hospital, lived in inadequate housing, and adopted a confrontational attitude. These characteristics are similar to those shown by the Appellant.
[31] Based on all of the evidence before the Board, it found that all of the requirements set out in S.20(5) of the Mental Health Act were met at the time of the hearing and confirmed the Certificate of Involuntary Admission dated March 17, 2013. The Board points out on p.21 of its Decision that the evidence demonstrates:
…that it is likely that her diminished executive functioning caused by schizophrenia has placed her in a situation where she has such limited problem capacity that she will likely find herself in a situation which will cause her serious physical impairment.
[32] The Decision of the Board was reasonable in the circumstances of this case. I find no error of law, no error of fact and law, and I find that the Board did not misapprehend the facts before it.
Order
[33] An Order shall go dismissing the Appeal by the Appellant, for the reasons set out herein. In the circumstances of this case, the Respondent did not ask for Costs and none are awarded.
Greer J.
Released: October 24, 2013
COURT FILE NO.: 03-032/13
DATE: 20131024
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
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 an appeal from a decision of the
Consent and Capacity Board
Pursuant to the Mental Health Act, R.S.O. 1990, c. M.7,
as amended
BETWEEN:
R. W.,
Appellant
– and –
DR. ANTHONY FEINSTEIN,
Respondent
REASONS ON APPEAL
Greer J.
Released: October 24, 2013