COURT FILE AND PARTIES

COURT FILE NO.: 03—126/13

DATE: 20131205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexandre Higgins, Appellant (Responding party)

– AND –

Dr. George Papatheodorou, Respondent (Moving party)

BEFORE: E.M. Morgan J.

COUNSEL:
Kendra Naidoo, for the Respondent
James Carlisle, as amicus curiae

HEARD: December 5, 2013

ENDORSEMENT

[1] This motion is brought by the Respondent, Dr. George Papatheodorou, a physician who has been treating the Appellant, Alexandre Higgins, a 21 year old patient at the Centre for Addiction and Mental Health (“CAMH”). Dr. Papatheodorou seeks authorization for a course of treatment with antipsychotic, anti-side effect (e.g. anticholinergics) and ancillary (e.g. benzodiazepines) medication, on an interim basis pending the appeal in this matter.

[2] Following a finding on August 23, 2013 by Dr. Anvesh Roy, a resident psychiatrist under Dr. Papatheodorou’s supervision, that Mr. Higgins was incapable of consenting to a proposed course of treatment, the Consent and Capacity Board held a hearing on October 15, 2013 to review that decision. Mr. Higgins was represented by counsel at that hearing. On October 16, 2013, the Board released its decision, and found Mr. Higgins to lack capacity. Mr. Higgins’ mother, Anne Spafford, has been appointed his substitute decision maker.

[3] By Notice of Appeal dated October 17, 2013, Mr. Higgins appealed the Board’s decision with respect to the mood stabilizing and anti-psychotic medication that Dr. Papatheodorou recommends. Mr. Higgins has not perfected that appeal and has not retained counsel for the appeal.

[4] Amicus curiae was appointed on behalf of Mr. Higgins by Order of Whitaker J. three days ago, on December 2, 2013. James Carlisle has taken on that role on short notice, and appeared at the hearing before me today and made helpful submissions. The Order appointing amicus also requires that the appeal be heard within 90 days. Mr. Carlisle has advised me today that a factum will be ready in sufficient time to meet that deadline.

[5] Mr. Carlisle points out that ordering medical intervention pending appeal is a serious imposition on Mr. Higgins’ liberty and that, moreover, it is the very thing at issue on the appeal. Mr. Higgins has gone through the current legal process precisely because he does not consent to taking the medications that Dr. Papatheodorou prescribes.

[6] Kendra Naidoo, for Dr. Papatheodorou, concedes that the order sought here will impinge on Mr. Higgins’ personal autonomy. She submits, however, that in his present situation Mr. Higgins is virtually incarcerated in hospital and has to be sedated and restrained when he turns violent toward other patients and staff. Under these circumstances, Ms. Naidoo contends, authorizing Dr. Papatheodorou to administer the course of medication that he recommends is likely to result in less of a loss of liberty to Mr. Higgins than will a refusal to grant such authorization.

[7] Section 18 of the Health Care Consent Act, 1996, SO 1996, c. 2 provides that where the Board has upheld the finding of a physician that a person is incapable with respect to a proposed medical treatment, that treatment shall not commence until any appeal of the Board’s decision has “been finally disposed of.” However, section 19(2) of that same Act gives the court authority to make an order permitting treatment if certain criteria are satisfied. These include:

(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 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 report and supporting affidavit submitted by Dr. Papatheodorou establishes that the criteria contained in both subsections 19(a)(i) and (ii) have been met – that is, that Mr. Higgins’ condition will likely improve if the proposed course of treatment is administered, and his condition is likely to deteriorate if the proposed medication is not administered. After displaying erratic behaviour for a number of years, including severe withdrawal, weight loss, obsessive concern with temperature control in his home, and what the Board found to be a propensity for violence that resulted in a physical assault on a family member, Mr. Higgins was assessed in April of this year by a physician at CAMH as displaying symptoms of psychosis and of possibly falling within the schizophrenia spectrum. His condition further deteriorated during the course of the summer, until he was taken to the CAMH emergency room on August 22, 2013 and admitted to the Early Psychosis Unit pursuant to a Certificate of Involuntary Admission.

[9] During the first weeks of his hospitalization at CAMH, Mr. Higgins was treated with antipsychotic medication and demonstrated a marked reduction in psychosis and unusual behaviours. Ms. Spafford noticed that he seemed more alert, interested in conversation, willing to participate with his family and others in dinners, and that he showed an increased appetite and attention to personal hygiene. The situation had improved to the point where during the second week in September, his physicians had begun contemplating releasing him from the hospital.

[10] During the week of September 10, 2013, staff at CAMH began to suspect that Mr. Higgins had started not to take his medication on a regular basis, or that he was pretending to take the medication and then later washing it out of his mouth with water. His behaviour began reverting at this point, such that on September 29, 2013, during a visit to his home, Mr. Higgins threatened his mother with violence and threw a shoe and another object at her. Ms. Spafford and Mr. Higgins’ sister reported being very intimidated by his demeanor and conduct.

[11] Since September 27, 2013, Mr. Higgins has apparently ceased taking any medication. Dr. Papatheodorou reports that his symptoms have returned in full and, if anything, his conduct has severely deteriorated. In Dr. Papatheodorou’s opinion, Mr. Higgins is likely to experience a further decrease in his ability to function if the course of medication is not resumed.

[12] This prediction has been borne out by new affidavit evidence filed with the court yesterday. Dr. Papatheodorou has deposed in a supplementary affidavit that during the past several weeks, Mr. Higgins has assaulted a co-patient at CAMH and has had to be physically and chemically restrained (an intervention of last resort used where the patient is an imminent danger to himself or others). As a result of this aggressive conduct, he has now been transferred to a more secure ward in the hospital.

[13] Dr. Papatheodorou concludes his supplementary affidavit with a rather unoptimistic prognosis, in the following terms:

In my clinical opinion, Mr. Higgins’ recent behaviour indicates a further deterioration in his mental status, and this ongoing deterioration is due to a lack of treatment. In my opinion, his condition is likely to continue to deteriorate, resulting in a worsening of his behaviour and symptoms.

[14] Given that Mr. Higgins’ behaviour and symptoms include a propensity for violence and now several incidents of assault on family members and other patients in the hospital, this prognosis by Dr. Papatheodorou must be taken very seriously.

[15] It seems clear that Mr. Higgins’ present condition makes it necessary to administer the medications recommended by Dr. Papatheodorou. His medical history indicates that he is likely to experience a reduction in symptoms within several weeks of re-starting the antipsychotic and other medications. Moreover, it is apparent that the benefit one can expect him to derive from going back onto the prescribed medications outweighs the risks of harm.

[16] In response to a question that I asked during the hearing, Dr. Papatheodorou gave viva voce evidence as to the potential for harm if Mr. Higgins goes back onto the medications on an interim basis but then stops them again in the future. Mr. Carlisle made the point that if the court were to order the course of treatment as a result of this motion, this might effectively undermine Mr. Higgins’ appeal of the Board’s decision since his appeal is premised on his opposition to taking these very medications. Dr. Papatheodorou testified that if Mr. Higgins were to be successful in his appeal, and were to then cease taking the medications that he had been taking for several months pending the appeal, he would suffer no adverse effects beyond the return of the symptoms that he is already exhibiting. The only harm, in Dr. Papatheodorou’s view, would be that he would at that point not be getting the medication that he quite clearly needs in order to cease being a danger and, eventually, to return to sound health.

[17] Given the severity with which his liberty must now be restricted absent any medical intervention, it is apparent that ordering the medically recommended course of treatment is the least restricted approach pending the appeal. Ms. Naidoo submits that this comparison is in line with the existing case law. She points to a similar approach taken by this court in S.R. v Hutchinson, [2009] OJ No 516, at para 26 (SCJ), where the court found:

Dr Hutchinson’s uncontradicted evidence is that Olanzapine is the most appropriate treatment for S.R.’s condition and there is no less restrictive or less intrusive treatment. Without regular treatment with Olanzapine, resort must be had both to chemical restraints, using higher doses of Olanzapine than would be used during regular treatment, and to physical restraints. Neither chemical nor physical restraints provide needed treatment. They are instead used in emergency situations to manage a crisis. I am satisfied that the criteria of s. 19(2)(c) have been met.

[18] This description is equally apt to Mr. Higgins’ situation and to the evidence provided by Dr Papatheodorou.

[19] I am, of course, mindful of the important point that Molloy J. made in Gunn v Koczerginski, [2001] OJ No 4479, at para 8, that “[f]orcible treatment against his will is a serious infringement of his right to self-determination, physical integrity, liberty and security of the person. It should only be undertaken if truly necessary and, even then, only with proper consideration and respect for these important personal rights.” Under the circumstances, I view the medication and treatment proposed by Dr. Papatheodorou to meet this test. While untreated, Mr. Higgins poses a harm to himself and others.

[20] Furthermore, the evidence establishes that Mr. Higgins may suffer an irrevocable worsening of his condition without treatment. As Firestone J. described a similar situation in Woods v Baici, 2013 ONSC 4397, at para 12, “[t]he longer [he] remains untreated the more the risk of negative impact on [his] treatment response increases, as does [his] risk of experiencing cognitive and intellectual impairments.” It would be irresponsible to leave Mr. Higgins untreated until the final disposition of this appeal given that this not only increases the risk of physical harm to himself and others, but increases the potential for his mental illness to become resistant to treatment.

[21] Mr. Higgins’ condition has substantially deteriorated since discontinuing his treatment and the evidence before me establishes that this deterioration is likely to continue. The proposed treatment is the least restrictive and least intrusive means to improve his condition, and there are no alternative treatments available. Dr. Papatheodorou’s evidence demonstrates that the proposed antipsychotic medication, with the accompanying anti-side effect and ancillary medicines, are the recommended treatment for an acute psychotic episode such as Mr. Higgins is experience. The treatment plan has been designed to be as least interventionist as possible, giving Mr. Higgins the option of taking oral medication and using injections only if he refuses the oral medication.

[22] In my view, the criteria set out in section 19(2) (a) through (d) of the Health Care Consent Act, 1996, have been met.

[23] Dr. Papatheodorou and his team at CAMH are hereby authorized to treat Mr. Higgins with antipsychotic, anti-side effect (e.g. anticholinergics) and ancillary (e.g. benzodiazepines) medication pending the final disposition of the appeal of the October 16, 2013 decision of the Consent and Capacity Board.

Morgan J.

Date: December 5, 2013