Rosarion v. Huntington, 2015 ONSC 1181

COURT FILE NO.: CV-15-63185

DATE: 20150224

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CARLINE ROSARION

Appellant/Responding Party

– and –

DR. KATRINA HUNTINGTON

Respondent/Moving Party

Paul Lewandowski, for the Appellant/Responding Party

Michelle O’Bonsawin, for the Respondent/Moving Party

HEARD: February 20, 2015

beaudoin j.

1The Appellant, Carline Rosarion, appeals an Order of the Consent and Capacity Board (“CCB”) dated January 22, 2015, with Reasons for Decision dated January 26, 2015, upholding Dr. Yoland Charbonneau’s finding of incapacity to consent to treatment, pursuant to section 4(2) of the Health Care Consent Act, 1996, S. O. 1996, c 2 Sched A (“HCCA”).

2The Notice of Appeal was filed on January 27, 2015. It has the effect of suspending treatment pending the outcome of her appeal. As such, the Appellant has not been treated with any antipsychotic medication since that date, a period of nearly four weeks.

3The Moving Party Respondent seeks an order authorizing treatment of the Appellant with antipsychotic medication pending the determination of her appeal which is now scheduled to take place on April 16, 2015. I granted that relief by oral reasons and indicated that these written Reasons would follow.

Background

4The Appellant is a 50-year-old woman with a history of mental illness spanning 20 years. She is currently an involuntary patient at the Royal Ottawa Mental Health Center (“the Royal”), hospitalized on a Form 4 under the Mental Health Act, R. S. O. 1990, chapter M.7 amended 2010, c.1 Sched. 17 (“MHA”).

5Ms. Rosarion was diagnosed with paranoid schizophrenia in 1995. She has been an outpatient of Dr. Ripley at the Royal throughout the course of her illness. Ms. Rosarion has been under the care of the Respondent, Dr. Katrina Huntington, a clinical psychiatrist with the crisis unit at the Royal from the date of her admission until February 6, 2015. Her care was then transferred to Dr. Tabitha Rogers, clinical psychiatrist, with the schizophrenia unit at the Royal where she remains today.

6Ms. Rosarion’s mental condition had been relatively stable for the past 15 years. The records indicate that she was well while treated with both Olanzapine and later, with Risperidone. When compliant with treatment, Ms. Rosarion was able to lead a full and productive life. She was steadily employed as a case manager for an insurance firm for many years and she raised two children as a single parent.

7This period of stability was interrupted by a recent exacerbation in Ms. Rosarion’s psychiatric condition. She required emergency admission to the hospital from September 3 to 15, 2014. According to the affidavit of Dr. Katrina Huntington, she was admitted to the Royal largely as a result of medication non-compliance. After discharge, Ms. Rosarion, again, discontinued her medication and experienced delusions, auditory and visual hallucinations, and paranoia.

8As a result, Ms. Rosarion was hospitalized involuntarily on December 24, 2014. She was admitted to the Ottawa Hospital - Civic Campus on a Form 1 under the MHA, and subsequently continued as a Form 3 (certificate of involuntary admission).

9While she was at the Civic Hospital, the Appellant was under the care of Dr. Charbonneau. On December 29, 2014, Dr. Charbonneau formally assessed her and found her incapable of consenting to treatment of her mental disorder. This is the finding that was upheld by the CCB and that is currently under appeal. Ms. Rosarion was transferred to the Royal on January 9, 2015, where she is currently held involuntarily under a Form 4 (Certificate of Renewal).

The Issue on this Motion

10As noted, the only issue on this motion is whether Dr. Huntington should be permitted to treat Ms. Rosarion with antipsychotic medications pending her appeal. While section 18 of the HCCA suspends any treatment where the CCB has upheld a finding of incapacity and that decision is under appeal; ss. 19(1) and (2) give the court authority to make an interim order permitting treatment if certain criteria are met.

11Subsections 19(1)-(2) of the HCCA read:

Order authorizing treatment pending appeal

19. (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given.

Criteria for order

(2) The court may make the order if it is satisfied,

(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 the 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.

12The Moving Party relies on s. 19(2)(a)(i) and maintains that treatment with antipsychotics will both substantially improve Ms. Rosarion’s condition and slow the rate at which her physical and mental health are deteriorating.

13On behalf of the Appellant, Mr. Lewandowski does not dispute that the first three criteria are met; he argues that it is the fourth criteria, namely s. 19(2)(d) that is in issue. He argues that the evidence is insufficient to establish that it is necessary to administer the treatment before the final position of the appeal. At the outset motion, I was advised that the appeal was to be heard in May 2015. It was conceded that if an earlier date could be obtained, this could have some bearing on my decision and the matter was stood down for Counsel to investigate the possibility of an earlier date. An earlier date of April 16, 2015 was obtained; this is still approximately two months away and this means that the Appellant will be without treatment for three months if I do not grant the relief sought.

14Appellant’s counsel argues that Ms. Rosarion is currently hospitalized at the Royal and is under supervision and is therefore at little risk of harm to herself or to anyone else. He notes that in the written reasons of the CCB, it was noted that Ms. Rosarion had enjoyed relative stability while in the hospital which could be explained by both the milieu of the facility and the lack of pressure on Ms. Rosarion. The CCB also noted, however, that Ms. Rosarion did have two weeks of medication before she challenged the finding of incapacity.

15The Moving Party argues that Ms. Rosarion’s deteriorating mental state requires immediate attention; to delay treatment could have serious negative implications for her psychological and physical well-being. This was the finding of the CCB where it concluded at page 12:

The longer she goes without adequate and appropriate treatment, the larger the risk of deterioration. Each stopping of the medication decreases the likelihood she will return to her old baseline and increases the likelihood she will have more serious exacerbations of the illness. The fact that she is out of her apartment will further upset her and had to her decompensation.

16Research shows that patients with mental illnesses suffer a great deal while untreated. That same literature notes that it is well-established that periods of prolonged untreated psychosis have a negative impact on the patient’s future response to treatment. That evidence suggests that a lengthy period without treatment has the effect of worsening the long-term prognosis of psychotic disorders, such as paranoid schizophrenia.¹

17In a comprehensive study on the relationship between the duration of untreated psychosis and outcomes in schizophrenia, a shorter duration of untreated psychosis is found to be associated with greater response to antipsychotic treatment. Treatment was characterized by an improvement in global psychopathology (five studies), positive symptom severity (13 studies), and negative symptoms severity (14 studies). This same research highlighted that a prolonged period of psychosis before the start of antipsychotic treatment is associated with lower levels of symptomatic and functional recovery.²

18Dr. Huntington refers to this at paragraph 30 of her affidavit:

In terms of her mental illness, it is well-established that periods of prolonged untreated psychosis have a negative impact on future response to treatment. Ms. Rosarion is at greater risk of treatment refractory illness, functional decline, prolonged emotional distress the longer psychosis remains untreated.

19Later, she adds at paragraphs 33, 39 and 41:

I am of the opinion that Ms. Rosarion’s untreated mental illness is causing her extreme psychological stress and significant psychosocial dysfunction. Due to the necessity of involuntary hospitalization, she is also suffering from restricted independence and liberty.

Most importantly, prolonged periods without medication can lead to the revocable worsening of her illness, contributing to her loss of liberty, and possibly preventing discharge from hospital.

Given the risks associated with delaying treatment of Ms. Rosarion’s mental condition, any further deferment pending Appeal would constitute a severe threat to her mental health.

20Postponing treatment until the appeal can be heard is a significant factor in this case. As long as treatment is postponed, Ms. Rosarion needs to remain in hospital; in this case, for a further two months. In Burnett v. Woodside, facilitating a greater measure of freedom for the appellant in that case was a significant factor that persuaded Justice S. E. Greer to order treatment pending the appeal.

21Delaying a treatment will also negatively affect Ms. Rosarion’s medical illnesses. She suffers from diabetes, gastro-esophageal reflux and cystic lung disease. As recently as September 2014, Ms. Rosarion’s surgeon delayed a lung biopsy pending stabilization of her mental health condition.

22The evidence before me discloses that Ms. Rosarion’s mental condition has severely deteriorated without medication. That same evidence has persuaded me that immediate treatment with antipsychotic medications is necessary to prevent further deterioration of her condition and may stabilize it to the extent that she may be able to enjoy greater freedoms and an even earlier discharge from hospital.

Mr. Justice Robert N. Beaudoin

Released: February 24, 2015

CITATION: Rosarion v. Huntington, 2015 ONSC 1181

COURT FILE NO.: CV-15-63185

DATE: 20150224

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CARLINE ROSARION

Appellant/Responding Party

– and –

DR. KATRINA HUNTINGTON

Respondent/Moving Party

REASONS FOR Decision

Beaudoin J.

Footnotes

1. 1Richard L. O’Reilly and John Gray, “Can we Justify Delays in Initiating Treatment for Involuntary Patients?” Research Insights of the Regional Mental Health Care, London-St. Thomas Vol. 2 No 3 [2003]
2. 2Diana O. Perkins et al “relationship between Duration of Untreated Psychosis and Outcome in Rist Episode Schizophrenia: ( Am J Psychiatry 2005; 162: 1785-1804 at 1792, 1798
3. 32013 ONSC 4041; [2013] O.J. No. 2879, at para 6