CITATION: Duarte v. Legault et al., 2015 ONSC 1179
COURT FILE NO.: CV-14-506988
DATE: 20150310
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph Duarte
Applicant
– and –
Suzanne Legault and Maria Fatima Carey
Respondents
Ken L. Berger, for the Applicant
Mark Handleman, for the Respondent
Legault
Carey, unrepresented
HEARD: February 24, 2015
REASONS FOR DECISION
CAROLE J. BROWN, J.
[1] The appellant, Joseph Duarte ("Mr. Duarte" or "the Appellant"), appeals the decision of the Consent and Capacity Board ("the Board") dated June 9, 2014 which found him incapable of consenting to treatment. Written reasons were issued June 16, 2014.
[2] It is the position of the appellant that the Board erred in misapprehending the evidence, applying the correct tests at law and exercising its jurisdiction.
The Facts
[3] The appellant is a 55-year-old single man, supported by ODSP. His property is managed by the PGT. He had a long history of paranoid schizophrenia, and had been in and out of mental hospitals from 1999 through the present. In 1999, he was declared incapable of consenting to treatment, as he lacked insight into his illness and was detained in a forensic mental health facility for several years and administered oral antipsychotics. In 2004, he received an absolute discharge from the Ontario Review Board, without psychiatric follow up. He stopped taking his antipsychotics after discharge. From 2004 through May of 2014, there were 12 admissions to hospital for agitation, physical and verbal aggression and delusions of grandeur. A Community Treatment Order was issued in 2009, which was thereafter allowed to lapse in 2010. He was further hospitalized in 2011-2012. He appeared to be doing well in mid-2013. However, it appears that he gradually relapsed into paranoia.
[4] On May 21, 2014, the appellant was admitted to hospital through the emergency department, having been brought there by police officers who had entered his apartment as a result of concerns expressed by his family.
[5] On May 23, 2014, Dr. Legault who had treated him in the past, conducted a psychiatric assessment and determined that he was not mentally capable to consent to treatment of a mental disorder. He was, as a result, admitted as an involuntary patient in the psychiatric facility pursuant to s.20(1.1) of the Mental Health Act.
[6] On June 5, 2014, the appellant applied to the Board for review of his involuntary status. The hearing was held before Board members Eugene Williams, lawyer; Karen Hand, psychiatrist; and Ram Chopra, public member. Based on the evidence, the legislation and jurisprudence, the Board found Mr. Duarte to be incapable on June 9, 2014. Written reasons were issued June 16, 2014.
[7] Mr. Duarte appealed the decision of the Board on June 23, 2014.
[8] The relevant factual history, as found by the Board in their decision, which is under appeal, is as follows:
JD has a long history of paranoid schizophrenia. His initial contact with mental health treatment providers occurred in 1999. At that time, JD assaulted family members and the police who responded to the initial complaint. A psychiatric assessment following his detention revealed that he had grandiose delusional beliefs and was very agitated that no one was taking him seriously. Since he lacked insight into his illness, he was declared incapable of consenting to treatment.
Following his arrest and assessment JD was detained in a forensic mental health facility for several years. During that time he accepted oral antipsychotic medications. Although his behavior improved following treatment his paranoia and delusional ideas persisted. In 2004, JD received an absolute discharge from the Ontario Review Board. However, there was no provision for community based psychiatric follow up. JD stopped taking his antipsychotic medications after he was discharged.
Between 2004 and this May 2014 admission to hospital 12 admissions in Hamilton and at Trillium Healthcare – Mississauga. During those admissions his treatment providers noted that he was agitated, verbally and physically aggressive and displayed delusions of grandeur. In 2009 he was the subject of a Community Treatment Order which was allowed to lapse in 2010. Prior to this admission JD had a 33 day admission to hospital for treatment that ended in mid January 2012.
During the latter months of 2011 and early 2012 JD had an adverse reaction following treatment with intramuscular Modecate. He had severe Parkinson like reactions that continued for approximately 6 months. After he recovered his substitute decision maker refused to consent to further treatment with antipsychotic medication. Although he did not display any overt paranoia at that time, his treatment team began to observe signs of relapse into paranoia in the spring of 2013. He became preoccupied with "people having a plot against him and stealing his money". As a consequence he accused the ACTT of stealing his money and refused further contact with them in the summer of 2013.
As a result of the growing paranoia JD stopped responding to attempts by the housing service and others to visit him. He refused to respond or open the door. ACTT advised his family who in turn asked the police to check on him. The police forcefully entered his apartment when he did not respond to them and brought him to the hospital.
At hospital, staff observed that JD was unkempt and malodorous. He was also agitated and enraged about the intervention of his family, ACTT and society. Although he expressed delusional and paranoid ideas, he insisted that he was not ill and asked to be released from hospital. Staff noted that his thoughts were disordered and his insight and judgment were impaired. Following a psychiatric assessment hospital officials issued a Certificate of Involuntary Admission which was followed by a Certificate of Renewal. On May 23, 2014, Dr. S. Legault made a determination that JD is not mentally capable to consent to treatment of a mental disorder.
The Issues
[9] The issue before this Court is whether the Board erred in law or was unreasonable in result in finding that the applicant was incapable of consenting to treatment and in confirming his involuntary status as a patient in a psychiatric facility.
The Law and Analysis
The Applicable Standard of Review and the Legislative Scheme
The Standard of Review
[10] The standard of review on a question of fact or on a question of application of law respecting the facts is one of reasonableness. The Board’s conclusion must be upheld provided it is among a range of conclusions that could reasonably have been reached on the law and evidence: Starson v. Swayze, 2003 SCC 32; Dunsmuir v. N.B., 2008 SCC 9. The question is not how this Court would decide the case, but whether the Board’s decision was reasonable: Conway v. Jacques, 2002 ON CA 41558, [2002] O.J. No. 2333 (Ont. C.A.), Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12. This analysis must include deference for the experience of the Board: Giecewicz v Hastings, 2007 ONCA 890, 2007 CarswellOnt 8247, 2000 7ONCA 809.
[11] On a question of pure law, the standard is one of correctness: Starson v. Swayze, supra, at para.110.
The Legislative Scheme
[12] Pursuant to s.4 of the Health Care Consent Act, 1996, S.O. 1996, C.2, s.4, (“the HCCA”), a person is capable with respect to treatment if the person is (1) able to understand information relevant to making a decision about the treatment; and (2) able to appreciate the reasonably foreseeable consequences of a decision or lack of one.
[13] The determination involves two criteria. First, while a person need not agree with a particular diagnosis, he must be able to recognize the possibility that he is affected by the condition. This requires the cognitive ability to process, retain and understand the relevant information. Second, the patient must be able to apply the relevant information to his circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof: Starson v. Swayze, supra, at para. 87. If a patient’s condition results in 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, supra, at 79-81.
The Burden of Proof
[14] The applicable burden of proof under the HCCA rests with the health practitioner on a balance of probabilities. There is a presumption of capacity that must be rebutted by the Respondent.
[15] I am satisfied, based on the record before me, my review of the transcripts and the decision of the Board, that the Board made no error in fact or law as regards the decision. The Board carefully and thoughtfully considered the evidence before it, contained in the record before me. There was no misapprehension thereof.
[16] The Board correctly applied the test as set forth in Starson v. Swayze, [2003] SCC 32, 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.
Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of the decision or lack thereof. The Board's finding of incapacity was based on their perception of Professor Starson's failure in this regard. (Paragraph 78)
Before turning to an analysis of the reviewing judge's decision, two important points regarding the statutory test require comment. 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 the patient need not agree with the 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.
[17] The Board found that while the appellant had the ability to understand information relevant to the treatment decision, he was unable to appreciate the likely consequences of giving or refusing consent to treatment of his mental condition. In this regard, the Board held:
Mr. Duarte's current psychotic experiences (i.e. delusions, thought disorder and paranoia) do not allow him to recognize that he suffers from a psychotic illness, namely paranoid schizophrenia. Although Dr. Legault has explained the proposed treatment and its rationale, Mr. Duarte is not able to apply the information relevant to making a decision about the proposed treatment to his particular circumstances. This inability to apply the information is a direct consequence of the psychotic illness rendering him unable to appreciate the consequences of this treatment decision. Because of mental illness, Mr. Duarte has no understanding of the psychotic nature of his symptoms or how these symptoms impair his quality of life. He does not recognize any symptoms/impairments which are the intended target of the proposed medications. Hence he is unable to appreciate the potential benefits of taking the proposed treatment or the potential risks of abstaining from the proposed treatment. Mr. Duarte has been unable to recognize the benefits of previous treatment – in particular, reduction in paranoia and agitation.
[18] Further, while the appellant maintained that the Board erred in confirming the appellant's involuntary status on the grounds that consent of the SDM was not informed and therefore not valid, and that there was no evidence that the defendant's condition would deteriorate without treatment, I am not persuaded by those arguments. Based on all of the evidence before the Board, it found that the respondent fully informed the SDM of the risks of administering the antipsychotic and that, in order to avoid adverse consequences as had previously been experienced during the last treatment, the Modecate which had caused a side effect previously, as documented in the doctor's files would not be used, but rather other medications previously administered from 1999 onward, which had caused no adverse side effects, would be used.
[19] The SDM, in fact amended the consent form and initialed it, based on these discussions. Based on the amendments made by the SDM, which in my view were appropriate to the statements made in the Consent to Treatment Form, and consistent with the discussions had between Dr. Legault and Maria Carey, the SDM, as set forth in Dr. Legault's testimony before the Board. Based on a full reading of the transcripts from the hearing, including the explanation given by the doctor of her conversation with the SDM as regards the condition of the appellant, the proposed treatments and the risks thereof, I find that there is no basis for the appellant's contention that there was no informed consent given. I find that the Board's conclusion that the Consent to Treatment given by the SDM was informed and valid, was correct and reasonable.
[20] I am satisfied, based on my review of the evidence before the Board, and their decision in this regard, particularly at pages 13 and 14 thereof, that they properly and reasonably concluded that the condition of the appellant would deteriorate without the appropriate treatment. In this regard, the Board held that the appellant
… does not recognize any reason to be in hospital nor to receive treatment. In these circumstances, if he were to be released from hospital he would not take the medications that he requires and the positive symptoms of this illness including delusional beliefs, agitation and aggression will return. These symptoms as displayed by JD are manifestations of substantial mental deterioration. Accordingly the panel found that given his history of mental disorder, and his lack of insight into his illness, he is likely to suffer substantial mental deterioration.
[21] Based on all of the foregoing, I find that there was no error nor any unreasonable result as regards the decision of the Board rendered orally on June 9, 2014 and in writing on June 16, 2014. There is no basis on which this Court, sitting on appeal, could or would interfere with the decision of the Board.
[22] I uphold the decision of the Board dated June 16, 2014 and dismiss the appellant's appeal.
Carole J. Browne, J.
Released: March 10, 2015
CITATION: Duarte v. Legaulte et al., 2015 ONSC 1179
COURT FILE NO.: CV-14-506988
DATE: 20150310
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph Duarte
Applicant
– and –
Suzanne Legault and Maria Fatima Carey
Respondents
REASONS FOR DECISION
Carole J. Brown, J.
Released: March 10, 2015