SUPERIOR COURT OF JUSTICE – ONTARIO
AND 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, chapter 2, schedule A,
As amended
AND IN THE MATTER OF
KWASI SKEENE
A patient at the
CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET SITE
TORONTO, ONTARIO
RE: KWASI SKEENE
Appellant
AND:
DR. STEVEN COHEN
Respondent
BEFORE: Mr. Justice Lederer
COUNSEL: Anita Szigeti, for the Appellant
Kendra Naidoo, for the Respondent
HEARD: December 16, 2014
ENDORSEMENT
[1] This is an appeal from the Consent and Capacity Board. An appeal from the Board is authorized by the Health Care Consent Act, 1996, S.O. 1996, ch. 2, Sched. A., s. 80(1), which says:
A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.
[2] In this case, the Board upheld a finding that the appellant, Kwasi Skeene was incapable of consenting to treatment, in this case with antipsychotic medication.
[3] I begin by observing that the decision that Kwasi Skeene was incapable of consenting to treatment, first made by the respondent, (the treating physician) Dr. Steven Cohen, on September 9, 2014, and confirmed by the Board in its decision, released on September 27, 2014, is one that confronts a difficult meeting of science and the law. It is important that I make clear that the questions the court is asked to answer are legal questions. The court has neither the competence nor the jurisdiction to enter into the science associated with mental illness in respect of this or any other appellant.
[4] The first question raised is whether, as a result of its composition, the panel of the Consent and Capacity Board, which conducted the hearing, was without jurisdiction. Before the panel and in the factum relied on before the court, counsel on behalf of Kwasi Skeene took the position that, in the absence of a psychiatrist on the panel, the Board was without jurisdiction to consider this matter. At the outset of her submissions, counsel acknowledged that a reading of the applicable legislation made clear that this position was not sustainable (see: Mental Health Act, R.S.O. 1990, c. M. 7, at s. 39(1), (5.1) and (6), in company with Health Care Consent Act, 1996, supra, at s. 70, s. 73(1) and (2)). Nonetheless, counsel went on to submit that the make-up of the panel should cause the court to offer less deference to the decision of the Board than might otherwise be accounted for. The panel was made up of a lawyer and two “lay members of the community”. The lawyer did not have the qualifications necessary to sit alone (see: Health Care Consent Act, 1996, supra, at s. 73(2)). This being so, counsel for Kwasi Skeene submitted that, without a psychiatrist and without a lawyer of appropriate seniority, there was reason to question whether the panel had the expertise that would justify the level of deference typically considered to be appropriate.
[5] I am not prepared to give any credence to this submission. Deference is not applied based upon a consideration of the experience and background of individual members of a tribunal or a panel. It arises from the understanding that the limited mandate and narrower focus to which administrative tribunals are directed leads to a level of specialized expertise the courts cannot be expected to maintain and to which, within the parameters set by the law, they are required to give deference.
[6] The second question considers the legal test to be applied. This is concisely set out in the legislation, 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.
(Health Care Consent Act, 1996, supra, at s. 4(1))
[7] As counsel for Kwasi Skeene pointed out, the meaning and proper application of this statement has been clarified through caselaw.
[8] Patients with mental illness are not to be stigmatized because of the nature of their illness or disability. Their right to personal autonomy and self-determination is no less significant, and is entitled to no less protection, than that of competent persons suffering from physical ailments (Fleming v. Reid (1991), 1991 2728 (ON CA), 4 O.R. (3d) 74 (C.A.), at pp. 86-87).
[9] The refusal of a patient to acknowledge a mental illness is insufficient, on its own, to prove incapacity:
First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and ‘capable but dissident interpretations of information’ are to be expected: see Weisstub Report, supra, at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental ‘condition’, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows (at p. 250, note 443):
Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.
As a result, a patient is not required to describe his mental condition as an ‘illness’, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.
(Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, 225 DLR (4th) 385; 304 NR 326; 1 Admin LR (4th) 1, at para. 79)
[10] The third question raised in this case is the determination of the applicable standard of review. Counsel for Kwasi Skeene submitted that any question concerning the interpretation of the legal standard to be applied is a question of law such that no deference is owed to the Board (see: Starson v. Swayze, supra, at para. 110). The appropriate standard of review would be correctness. It is not clear to me that this remains the case. It is generally accepted that when a tribunal is interpreting “‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ [it] should be presumed to be a question of statutory interpretation subject to deference on judicial review”, which is to say, that reasonableness may be the applicable standard (see: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654, 339 DLR (4th) 428; [2012] 2 WWR 434, at paras. 30, 34, 81 and 83). In any case, as I perceive it, there is no issue as to the understanding of the substance of the test. For its part, the Consent and Capacity Board correctly observed that the test of capacity is found in the Health Care Consent Act, 1996, supra, at s. 4(1) (see: para. [6], above).
[11] In this case, the more important question is the application of the law to the facts. This is a mixed question of fact and law. The same deference should be given as would be shown by an appeal court to a lower court (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, 291 DLR (4th) 577; 372 NR 1; 69 Admin LR (4th) 1, at para. 164 (per Deschamps JJ.)). The standard to be applied in respect of a question of mixed fact and law falls on a spectrum from reasonableness to correctness. Exactly where on the spectrum any particular question may fall depends on the nature of the issue. If it is one of general application with an impact as precedent beyond the specific case, it is akin to a question of law and falls towards the correctness end. If it is particular to the case at hand and, as a result, extends no further, it falls towards the reasonableness side (see: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, 211 DLR (4th) 577; [2002] 7 WWR 1, at para. 28, referring to Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at paras. 41 and 45). It might also be said that the spectrum ranges from “palpable and overriding error” to correctness, but “…[t]he use of different terminology …does not change the substance of the review” (see: Dunsmuir v. New Brunswick, supra, at para. 161). In this case, the application of the law to facts is particular and the standard of review is reasonableness.
[12] This takes me to the final question. In its application of the law (the test of capacity) to the facts, did the decision of the Consent and Capacity Board meet or breach the reasonableness standard, explained as:
… reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
(Dunsmuir v. New Brunswick, supra, at para. 47)
[13] The test outlined by the Health Care Consent Act, 1996, supra, at s. 4(1) (see: para. [6], above) raises two prongs or questions for this appeal:
Did the evidence establish that Kwasi Skeene was unable to understand the information relevant to making a decision about treatment with antipsychotic medication?
Did the evidence establish that Kwasi Skeene was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment with antipsychotic medication?
[14] The Consent and Capacity Board found that Kwasi Skeene satisfied the first part of the test of capacity. He was able to understand that the information relevant to making a decision about treatment with antipsychotic medication.
[15] This was based on the evidence of the respondent, Dr. Stephen Cohen, who testified that Kwasi Skeene was “…marginally capable of understanding the relevant information and has a basic understanding of the information…”. The Board found that the evidence of Kwasi Skeene was clear and “… that he is reasonably intelligent and articulate and has devoted considerable time and effort to researching various medications and the medical use of marijuana. His cognitive ability appeared to be sufficiently intact to allow him to retain and process information on an intellectual level.” The Board concluded that Kwasi Skeene “…likely had the ability to understand the information relevant to making a decision about treatment with antipsychotic medication” (Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 7).
[16] On the appeal, no issue is taken with this finding.
[17] The central proposition in the Consent and Capacity Board’s consideration of the second question is the acceptance that his “perseveration” and “grandiosity” rendered him unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment with antipsychotic medication. In psychology, “perseverate” means to “tend to prolong or repeat a response after the original stimulus has ceased” (The Oxford Concise Dictionary, Ninth Edition, Clarendon Press, Oxford, 1995):
Most people who perseverate suffer from a brain injury, disorder, or illness, and the word is most often used as a medical term. It's almost as if someone who perseverates gets stuck on a word or gesture and can't stop repeating it. Perseverate contains the word ‘persevere,’ to continue determinedly, and perseverare, the Latin root, means ‘to persist.’ When you persist with clear intentions, you persevere, but when those intentions are lost and only the persistence remains, you perseverate.
(www. Vocabulary.com/dictionary/perseverate)
[18] “Grandiosity” refers to an unrealistic sense of superiority. It is the sustained view of oneself as better than others that causes the narcissist to view others with disdain or as inferior (see: Wikipedia, the free encyclopedia).
[19] Counsel for Kwasi Skeene submitted that there was no evidence that the Board pointed to as sustaining the idea that these conditions were present and could affect his appreciation of the consequences of a treatment decision. A review of the reasons of the Board demonstrates that this is not so. The Consent and Capacity Board understood that the continuing return of Kwasi Skeene to a desire to receive medical marijuana, as part of his treatment, was a demonstration of both his grandiosity and his perseveration:
The panel found his lack of insight, grandiosity and perseveration around obtaining marijuana the predominant themes in [Kwasi Skeena’s] testimony. The overall tenor of his testimony was aptly summed up by [Kwasi Skeena’s] statement: ‘I know I’m right’; ‘Most diagnoses in the medical world are wrong’.
(Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 7)
[20] The respondent, Dr. Steven Cohen, testified. His evidence included references to “grandiosity” and “perseveration”:
…[I]t’s my opinion that Mr. Skeene is decompensated -- that he is in the initial phases, but uh, he has shown significant-- clinically significant decompensation, and that is flowing from his mental illness, that he has decreased insight into his illness, his need for medication; the risk of non-compliance, including most notably uh, the increased risk for violence and aggression. There has been an increase in paranoia over the past several months. Some accusatory and aggressive, combative behavior with staff um, with a member of the community who is working in a sleep disorders clinic. Uh, there’s grandiosity, irritability and fixity, a type of uh, perseveration with certain ideas or overvaluing of certain ideas.
There’s a revisiting of interest in substance use, that being marijuana, and, in my opinion uh, a profound inability to process information regarding that substance and how it deleteriously affects him and anybody who has a primary psychotic disorder.
(Transcript Hearing: in the Matter of Kwasi Skeene, at pp. 8-9)
[21] Kwasi Skeene also testified as to his view of the value of what the doctor said:
[Kwasi Skeene] is dismissive of the doctor’s opinions, believes all clinicians lie and that everyone else is wrong, including the Ontario Review Board, and he is right.
(Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 7)
[22] In its decision, the Consent and Capacity Board relied on the evidence and found:
[T]he evidence, as a whole to be ‘cogent and compelling that two clinically significant symptoms flowing from his mental disorder, perseveration and grandiosity, rendered [Kwasi Skeene] unable to appreciate the reasonably foreseeable consequences of a decision or lack thereof about treatment. [Kwasi Skeene’s] fixation on obtaining a prescription for marijuana to cure his insomnia and his disdain for the opinions of the medical community preclude him from applying the relevant information to himself…’
(Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 7)
[23] The Consent and Capacity Board concluded:
The manifestations of his illness are interfering with his ability to appreciate the consequences of allowing his current decompensation to continue but he cannot acknowledge that the symptoms are manifestations of a mental illness.
(Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 7)
[24] Counsel for Kwasi Skeene complained that the reference by the Board to “perseveration” and “grandiosity” as symptoms was a demonstration of the inability of the panel to understand the nature of the evidence placed before it. To her, they are not symptoms. To my mind, they are reasonably called symptoms. They are symptomatic of abnormal behaviour or “mental illness”. In the end, it does not matter. However “grandiosity” and “perseveration” are identified, their presence raises the concern that Kwasi Skeene cannot appreciate the consequences of any treatment decision he may make.
[25] “Grandiosity” and “perseveration” could also be referred to as “conditions”. As noted in Starson v. Swayze, a patient is not required to agree with the opinion of the attending physician and, it is fair to point out, that, in this case, Kwasi Skeene does not (see: para. [21], above). This does not change the fact that the presence of these conditions is accepted by the Board as demonstrating that Kwasi Skeene is unable to appreciate the consequences of treatment decisions he may make.
[26] Counsel for Kwasi Skeene suggested that, in the absence of corroboration, the Consent and Capacity Board is only parroting what has been said by the doctors. Not only did Dr. Cohen give evidence at the hearing, other clinical records were put in evidence. It was open to the Consent and Capacity Board to accept that evidence if it chose to. It did. It also relied on the evidence of Kwasi Skeene as demonstrating his “perseveration” and his “grandiosity”.
[27] There is evidence that corroborates what was said by Dr. Steven Cohen. Kwasi Skeene sought a second opinion. He was seen by Dr. Sandy Simpson. This doctor confirmed the findings of “grandiosity” and “perseveration” by reference to observations that are consistent with them. This doctor noted that, while the conversation started pleasantly, with Kwasi Skeene speaking at a normal rate, as the interview continued, the discussion became more pressured and Kwasi Skeene became harder to interrupt. The doctor reported on his Mental Status Exam:
Talked fixedly and rigidly with regard to THC and related issues, cutting me off repeatedly in response to questions he asked me, and on 2 occasions accusing me of lying because I did not agree with his interpretations. Not open to compromise or alternative considerations, fixedly justifying his position. Had major trouble ‘agreeing to disagree’ and eventually left the interview rather precipitantly after offering himself as an experiment of his being in secure hospital for a year and receiving only cannabis and being subject to daily measurement to prove he was right.
Manner entitled, rigid and expansive, taking a legalistic and oppositional stance in relation to authority.
Insight: does not believe he has an illness, believes cannabis either does not harm as proven by years of surreptitious use. Does not believe he should have antipsychotic medication.
(camh Consultation Note, 04/09/2014)
[28] Dr. Simpson outlined his Assessment/Diagnosis:
Kwasi presents as a man with a greater than 10 year hx of psychotic illness associated with major violence, with long-standing and self-justifying cannabis use. He currently presents as argumentative, frustrated, entitled and rigidly seeking his own answers to his problems. He is dismissive of other opinion and very limited in his ability to understand how his behavior is perceived or experienced by others. He does not accept he has an illness, but attributes his past sx as being due to industrial poisoning or poisoning by staff. He admits to long-standing concealed drug use, and attempts by staff to detect it are attacked by legalistic, technical attacks on the procedural integrity of testing [as lacking forensic standard of accuracy].
It is difficult, cross sectionally, to understand how much of this presentation is due to a relapse of a grandiose and persecutory delusional system, and how much is personally based, but it appears at that at least some of this is due to illness factors, looking back over his hx over the last 10 years. At other times he has been successfully cooperative and engaged, at least superficially, though it also seems that surreptitiously he has been undermining the therapeutic agreement by concealing and lying about his ongoing drug use.
I believe he is markedly insightless and his fixity and unreasonableness about his ideation, as well as his pressured, intrusive style of speech suggest this is illness related.
(camh Consultation Note, 04/09/2014)
[29] This stands as corroboration of the observations and findings of Dr. Steven Cohen. Counsel for Kwasi Skeene suggested that some of these observations and findings were not reasonable. She suggested that Kwasi Skeene was well-aware of how his behaviour was perceived by others. In furtherance of this idea, she pointed to his explanation of why he got up and left some treatment meetings. She said it was because he felt the treatment team “did not respect him”. He told the Consent and Capacity Board that he left because he was “frustrated with the team” (see: Transcript Hearing: in the Matter of Kwasi Skeene, at p. 114). This is a comment on how Kwasi Skeene felt. It does nothing to demonstrate insight as to how his behaviour affected others.
[30] It is worth observing that, in his testimony, Kwasi Skeene denies the proposition that he lacked insight:
I’m high-- high functioning. I’m not decompensating, I have insight into my mental illness, I know what the symptoms are. I have insight into the profession; I have insight into medical marijuana. I have a lot of insight, and I know a lot more than the team is actually letting me convey to them, because they talk over me and I try to convey a message to them and it’s a very difficult in team review.
(Transcript Hearing: in the Matter of Kwasi Skeene, at p. 114)
[31] This was not referred to directly by either counsel in the course of their submissions. I note only that it is as consistent with “grandiosity”, as it is with revealing any true insight.
[32] Counsel for Kwasi Skeene says the Consent and Capacity Board failed to acknowledge concessions made by Kwasi Skeene that, properly understood and considered, would stand to demonstrate he understood the consequences of treatment decisions he wished to make. As counsel sees it, the Board misapprehended or failed to account for a significant piece of evidence. It found that Kwasi Skeene had said he would not increase or change his medication. In making this statement, it relied on the Progress Notes that were exhibited in the hearing. Counsel says this was an error and unreasonable because it failed to consider the testimony of Kwasi Skeene. He said he was prepared to accept an increased dosage of the antipsychotic drug he was receiving. As counsel sees it, this showed his ability to understand and accept the consequences of a treatment decision he was prepared to make, something the determination of the Board denied. To me, this perspective fails to properly understand the “finding” of the Consent and Capacity Board. It is true that the Board noted that Kwasi Skeene said he would not accept an increased dosage, but it was said in a particular context, a context that was recognized by the Board. The statement was made in connection with Kwasi Skeene bringing forward his own treatment plan. “His plan was to consider decreasing his antipsychotic to see what being off medication for about three months would exhibit; he believes strongly that he would not become ill” (Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 6). Accordingly, contrary to the concern of counsel for Kwasi Skeene, there was no finding that he would not allow for an increase in his medication. Just a comment that, in the context of the treatment plan he proposed, he would not do so.
[33] Finally, there is nothing in this that suggests that the Consent and Capacity Board relied on the failure of Kwasi Skeene to acknowledge his mental illness as a basis for determining he was not capable. As noted in Starson v. Swayze, to be capable, the patient must be able to recognize the possibility that he is affected by a condition (see: para. [9], above). Kwasi Skeene’s remonstrating that “I don’t have a mental illness” (see: Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 7) may be a failure to acknowledge his illness; it may be a failure to agree that there is a possibility that he has such an illness. Either way, it may be taken by the Board as a demonstration of “grandiosity”.
[34] Having determined Kwasi Skeene suffered from “perseveration” and “grandiosity”, the Consent and Capacity Board concluded that:
[Kwasi Skeene] is unable to appreciate that he is in fact suffering from serious manifestations of mental illness. He does not have the ability to evaluate the information concerning antipsychotic medication as it relates to his own circumstances or to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment with antipsychotic medication. Due to his current lack of insight into his illness, [Kwasi Skeene] is unable to perceive any benefit to be derived from taking antipsychotic medication in order to control symptoms which he does not believe he is experiencing.
(Decision of the Consent and Capacity Board, dated September 27, 2014, at p. 8)
[35] This conclusion is based on the evidence demonstrating the “perseveration” and “grandiosity” exhibited by Kwasi Skeene. Their presence and their impact justify the determination that the second part of the test demonstrating capability is not satisfied. Moreover, these findings satisfy the test of reasonableness as described in Dunsmuir v. New Brunswick, supra. The decision is justified, transparent and intelligible. It falls within the range of possible, acceptable outcomes. Contrary to the submissions of counsel for Kwasi Skeene, it is not unreasonable.
[36] For the reasons reviewed herein, the appeal is dismissed.
[37] No costs are sought. None are awarded.
LEDERER J.
Date: 20141218