CITATION: Christoforou v. Liu, 2015 ONSC 1278

COURT FILE NO.: CV/14/504584

DATE: 20150226

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A, as amended

RE: Maria Christoforou, Appellant

AND:

Dr. Regina Liu, Respondent

BEFORE: Mr. Justice S. Akhtar

COUNSEL: Ken Berger, for the Appellant

Alexandra V. Mayeski, for the Respondent

HEARD: February 5, 2015

I - OVERVIEW

[1] This is an appeal from the decision of the Consent and Capacity Board (“the Board”) confirming the appellant’s incapacity to consent to medical treatment for schizophrenia. The appellant seeks to have the Board’s decision quashed or, in the alternative, remitted back to the Board for reconsideration in light of fresh evidence that the appellant asserts will result in a different decision.

II - FACTUAL BACKGROUND

The Appellant’s Psychiatric History

[2] The appellant has been diagnosed with schizophrenia and has had four hospitalizations at the Scarborough Hospital - Birchmount Campus since 2012. The details of the hospitalizations are as follows:

1. September 25 to October 22, 2012. The appellant’s family had reported she was paranoid, irritable, and assaultive. She had called police to investigate gunpowder in her home, had taken apart the fuse box, and put holes in the wall. During the hospitalization, the appellant was angry, abusive, and assaultive to a nurse. She was treated with injectable anti-psychotic medication. The discharge summary detailing the appellant’s admission concluded that she had “showed robust improvement” after being treated. Upon being discharged, the appellant agreed to follow up with an outpatient psychiatrist and take medications. However, she failed to do so.

2. November 1 to November 9, 2012. The appellant’s family reported a failure to follow up with the outpatient psychiatrist as agreed. The appellant continued to be paranoid, angry, irritable, and threatening towards family members. The appellant had not been sleeping. She was paranoid of the police and claimed they were sending her messages of a threatening nature. A Form 2, obtained by the appellant’s family, resulted in the appellant’s hospitalization from November 1 to November 9, 2012. She was treated with an injectable anti-psychotic medication and placed on a Compulsory Treatment Order (“CTO”). Following her discharge, her medication was changed to an oral anti-psychotic medication. According to both her outpatient psychiatrist, Dr. Choy, and her family, the appellant did well on this medication and was “pleasant, engageable, and organized.”

3. July 12 to July 18, 2012. The appellant discontinued her medication. She was paranoid of things in her home, had been driving around at night, and sleeping in her car. She believed that there was a conspiracy involving many people trying to harm her. She claimed that pine cones were giving her messages. She dug up a garbage bag and took it to the police station. She wrote nonsensical things and claimed to be deciphering codes. After being hospitalized once more, the appellant was restarted on her medication and insisted that she would continue those medications on discharge. The appellant signed herself out of hospital against medical advice and visited Dr. Choy only to return her medication and report that she would not be taking any more.

4. January 31 to February 25, 2014. The appellant was re-hospitalized after her brother obtained a Form 2. The appellant’s family reported that the appellant had become paranoid and aggressive towards them, at one point pushing her mother in the face. The appellant was reportedly sleeping in her car, walking around with large sums of cash in her pockets, and sending nonsensical text messages. The appellant had called her brother claiming that a television host was screaming at her, telling her to die, and said that she was going to get a knife. By this time, the appellant had 54 incidents on file with the police since 2010. One of those incidents involved going to the police station with an axe asking for it to be tested for blood as she was convinced it had been used in a murder.

[3] A Community Treatment Plan (“CTP”) was developed prior to the appellant’s discharge from the hospital to assist the appellant with her illness. On February 19, 2014, the respondent, who was the appellant’s attending psychiatrist during her admission into the Hospital from January 31, 2014 to February 15, 2014, determined that the appellant was incapable of giving or refusing consent to the proposed CTP. Accordingly, the appellant’s brother was appointed as substitute decision maker.

[4] On February 26, 2014, the respondent signed a CTO which was sent to the appellant by mail. Subsequently, the appellant applied to the Board complaining that she had never received the CTO and requesting a review of the respondent’s finding of incapacity.

The Board Hearing

[5] At the appellant’s Board hearing, a number of witnesses testified, including the appellant’s brother, the respondent, and the appellant herself.

(a) Evidence of the respondent

[6] The respondent’s testimony was as follows:

1. She had observed many of the symptoms that the appellant’s family had reported including paranoia, fear of conspiracies and a fear of being targeted.

2. The appellant had assaulted a nurse during her first admission to hospital.

3. The appellant was treated with injectable anti-psychotic medication. This had the result of making the appellant much calmer, more pleasant, and organized.

4. The appellant continued to deny having any psychotic illness that required treatment.

5. A CTP was developed for the appellant based on her various hospital admissions and her denial of illness or need for treatment.

6. This CTP which included with injectable medications was discussed with the appellant for several days before being written up.

7. The respondent had found the appellant incapable of consenting to the CTP on February 19, 2014 and continued to monitor the appellant’s capacity to consent up to her discharge from hospital on February 25, 2014.

8. The appellant was able to understand the discussion of the CTP, including the fact that failure to comply with it could result in further hospitalization, but continued to deny having an illness or requiring medication.

9. When untreated, the appellant would deteriorate and suffer symptoms of paranoia, which would lead the appellant to engage in assaultive behaviour and put herself in risky situations.

10. When treated, the appellant would improve. The symptoms of paranoia, aggression, and agitation would recede. She would become more stable and less psychotic.

11. Taking account of the appellant’s history of discontinuing medication and refusing to recognize her illness, there was a high likelihood that the appellant would not follow up with her outpatient appointments or take her medication without a CTO in existence.

12. The appellant’s view of the CTP was that it was a hindrance and not a method of treating her illness. The resistance to treatment was caused by the appellant’s illness.

13. In her last conversation with the appellant, she had continued to deny having an illness or needing medication. The appellant told the respondent that she was only taking the medication to avoid being hospitalized.

(b) Evidence of the Appellant’s Brother

[7] The appellant’s brother, Nick Christoforou (“NC”), testified that the appellant denied being schizophrenic and insisted that she had no need for medication. From his observations and contact with the appellant, the onset of her difficulties began when the appellant endured several traumatic incidents: a break-up with her boyfriend, a job loss, and a broken ankle resulting from a slip and fall. These events occurred sometime in 2010.

[8] Sometime after those incidents, in 2011, the appellant began calling NC regularly. During these calls, she sounded confused and acknowledged that “there’s something not right in [my] thought process.” At a voluntary visit to the Centre of Addiction and Mental Health, she revealed a distrust of doctors and tore up the paperwork given to her.

[9] When the appellant took medication, NC would notice an improvement in her behaviour. He observed that when the appellant discontinued medication, her symptoms resurfaced within weeks and became more intense. Conversely upon restarting her medication, her symptoms would again improve.

[10] NC testified that, although the appellant understood the CTP, she was adamant in her belief that it was unnecessary. NC believed that the appellant would not comply with her treatment without a CTO and that the appellant was not capable of making her own treatment decisions. NC testified that, shortly before the hearing date, the appellant had indicated that she would stop taking any medication because she did not need it. According to NC, the appellant complained to him “I am not sick, I am fine, I feel my only problem is you [NC] interfering in my life.”

(c) The Appellant’s Evidence

[11] The appellant disagreed with the respondent’s diagnosis of schizophrenia stating that her symptoms were the result of post-traumatic stress disorder. According to the appellant, it was libelous that anyone would describe her as having schizophrenia. The appellant also felt that many of the troubling incidents, testified to by her brother and the respondent, were exaggerated and taken out of context. Any acts of aggression had been justified. For example, she claimed that when she assaulted a nurse during her first admission to the hospital, she was merely responding to the nurse’s attack. The appellant sought to explain the “gunpowder incident” and making holes in the wall as her response to alarms, caused by what she thought were electrical faults and a gas leak.

[12] Upon being examined by the Board, the appellant testified that “this started with breaking my ankle.” She explained that following this incident was a “sequence of events that have just spiralled and snowballed.” That sequence included the appellant (1) being fired from her job; (2) being harassed by her employer; (3) having a romantic relationship come to an end; and, (4) having nude pictures taken by her ex-boyfriend without her consent. When asked whether she might be experiencing these events because of a mental condition, the appellant denied that possibility. As noted above, it was NC’s testimony that these events occurred sometime in 2010.

[13] Various explanations were provided by the appellant with respect to sleeping in her car, visiting the police concerning the pine cones that she claimed were giving her messages, the incident concerning death threats from the television host, and walking around with large amounts of cash in her pockets. The explanations she provided were focused on the various conspiracies she suggested were working against her, trying to do her harm.

[14] The appellant testified that, although she understood the respondent’s diagnosis that treatment would help her, she disagreed with it. In the appellant’s view, the respondent was plainly wrong. The appellant felt that she could address her symptoms by speaking to her friends, seeing a psychologist, and seeking advice from a financial adviser. The appellant made clear, on several occasions, her intention not to take any medication because she felt it unnecessary. When asked her views of the consequences of failing to take medication, the appellant replied that she would be less stressed out by “you people” as it was the medication and its side effects that caused her anxiety. The appellant constantly and forcefully re-stated her view that none of the incidents previously described were caused or could have been caused by mental illness.

The Board’s Findings

[15] The Board made the following findings:

1. The Board was not satisfied that the appellant had received the CTO sent to her and, as a result, ordered it revoked.

2. The appellant was capable of understanding the information relevant to making a decision about the treatment.

3. The evidence that the appellant exhibited psychotic and paranoid symptoms was clear and compelling.

4. When the appellant received treatment for her illness there was an improvement in her behaviour and well-being.

5. Although the appellant could explain many of the incidents that concerned her family and the respondent, those explanations actually demonstrated the paranoia and mental illness diagnosed by the respondent.

6. The appellant was in complete denial of the respondent’s diagnosis that she was suffering from schizophrenia.

7. The appellant believed that any reports of her symptoms were fabrications, exaggerations or deliberate lies by people trying to harm her.

8. The appellant did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the proposed treatment. This finding stemmed from her denial of schizophrenia and strenuous assertions that medications to treat the illness were completely unnecessary.

The Position of the Parties

[16] The appellant argues that the Board’s decision should be quashed on the basis that it is unreasonable. The appellant advances the following grounds of appeal:

(1) The Board took no account of the fact that the appellant wanted to have a child;

(2) The Board relied on hearsay and reports from parties that had a motive to fabricate against the appellant; and,

(3) The revocation of the CTO meant that the CTP itself was no longer valid. This argument was raised for the first time at the appeal hearing.

[17] The appellant also seeks to tender evidence in this appeal. The appellant asserts that this evidence, if heard, would have resulted in a different disposition by the Board. The appellant further argues that this evidence should persuade this court to reverse the Board’s decision and declare her capable of consenting to treatment or, in the alternative, set the decision aside and refer the matter back to the Board for a new hearing.

[18] The respondent asks that the appeal be dismissed on the following grounds:

(1) The Board decision was reasonable and should not be interfered with;

(2) The CTP and the CTO are distinct instruments and therefore the CTP survived the revocation of the CTO; and,

(3) The fresh evidence fails the test for admission as it is not credible, does not bear upon a decisive or potentially decisive issue, and could not reasonably be expected to have affected the Board decision.

III - THE FRESH EVIDENCE

[19] The fresh evidence the appellant seeks to have admitted consists of (1) a failed pregnancy test; (2) a medical report detailing a high level of prolactin in the appellant’s body; and, (3) a report from another psychiatrist, Dr. Soulios, which expresses a contrary opinion to that of the respondent.

The Test for Fresh Evidence

[20] The leading case on the admission of fresh evidence on appeal is R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212, where the court laid down the following criteria:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and,

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The Pregnancy Test and the Elevated Levels of Prolactin (“The Two Tests”)

[21] With respect to the first two items of proposed new evidence, I understand the appellant’s argument to be that, had this material been before the Board, its decision would have been significantly different. The appellant asserts that the two tests confirm the impact of the forced treatment on her fertility.

[22] Turning first to the due diligence criterion required by Palmer, I accept the appellant’s representations that, at the time of the hearing, she was unaware of the possibility that the medication might well cause infertility. With that said, as will be discussed below, I conclude that the issue of the appellant’s fertility was not before the Board.

[23] Even if the appellant’s fertility were properly before the Board, however, I fail to see how this evidence satisfies the remaining three limbs of the Palmer test. Far from showing that the medication causes infertility, the pregnancy test simply shows that, at the time of the test, the appellant was not pregnant. The prolactin tests only show an elevated level of prolactin in the appellant’s system. There is no indication that the medication caused the elevated levels or that these levels prevent pregnancy. At appeal hearing, counsel for the appellant handed up a document entitled “Abstract” for the purpose of demonstrating that the medication is indeed the source of the appellant’s inability to conceive a child. I agreed to look at the document with the consent of counsel. However, the document is unsourced and vague. It does not even state the conclusion put forward by the appellant. In short, these two items of fresh evidence are neither credible nor relevant.

[24] With respect to the final Palmer criterion, I cannot see how these two tests could have affected the result of a hearing whose objective was to determine if the appellant had the capacity to consent to treatment. In Giewiski v. Hastings, 2007 ONCA 890 at para. 43, 288 D.L.R. (4th) 587, the court declared that the Board’s task was not to weigh the potential pitfalls of prescribing a certain type of medication, but rather to determine whether the appellant could reasonably foresee the consequences of making a decision regarding treatment.

[25] The two tests therefore fail the Palmer test and should not be received as fresh evidence.

The Soulios Letter

[26] The other item the appellant seeks to have admitted as fresh evidence is a letter from Dr. Christos Soulios, dated June 16, 2014. Dr. Soulios is a psychiatrist who treated the appellant on October 24, 2008 and met with her again in June 2014. Dr. Soulios recounts the appellant’s version of events, her denials of believing that there were conspiracies against her, and that she blamed NC for misinforming the hospital staff.

[27] Dr. Soulios could find no signs of psychosis or a psychotic illness. In his view, the appellant presents as being more anxious and depressed over a number of issues, including her unemployment and being forced into hospital for treatment of schizophrenia. The doctor confirmed that the appellant was reluctant to take medication but advised her to take an antidepressant if her symptoms persisted.

[28] In my view, this letter also fails to pass muster as fresh evidence. There is no explanation as to why Dr. Soulios’s opinion was not procured prior to the Board hearing in March - April 2014. If it had been sought and obtained with due diligence, the evidence would have been before the Board.

[29] More importantly, however, the evidence fails the third and fourth limbs of the Palmer test. In oral submissions, counsel for the appellant argued that Dr. Soulios’s evidence should be given far more weight than the respondent’s opinion as Dr. Soulios knew the appellant for “longer and better.” His evidence, according to counsel for the appellant, is highly credible and could, when considered along with the other evidence at the hearing, have affected the result.

[30] I disagree. Dr. Soulios’s last examination of the appellant was in October 2008, some two years before the event (the broken ankle) that, in the appellant’s own view, led to the deterioration in her mental health. Counsel for the appellant, when questioned by the court, could not identify any other visits by the appellant to Dr. Soulios until the June 2014 visit. By contrast, the respondent had the opportunity to directly observe the appellant for 25 days between January 31 and February 25, 2014. The respondent had access to information regarding the appellant’s three previous hospitalizations and the documented history from the appellant’s family. Dr. Soulios’s conclusions are based on the appellant’s single visit without reference to any of the wide ranging hospital documentation relied upon by the respondent.

[31] For these reasons, I find that none of the items sought to be tendered as fresh evidence satisfy the Palmer test and they will not received on this appeal.

IV - THE LEGAL PRINCIPLES

The Statutory Provisions

[32] The Board’s determination that the appellant was not capable of consenting to treatment is premised upon the interplay between two sections of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“the Act”).

[33] Section 10(1) of the Act provides:

10(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

[34] Section 4 of the Act defines capacity in the following way:

4.(1) 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.

The Standard for Review

(a) Reasonableness

[35] In Starson, the court held that the Act presumes a person is capable to decide to accept or reject medical treatment. That presumption is displaced only by the requisites of s. 4 of the Act and its two criteria.

[36] The court in Starson also made clear, at paras. 5 and 84, that the standard of review for Board decisions was that of correctness in the interpretation of the law, and reasonableness with respect to its application of the law to the facts before it. According to McLachlin C.J., dissenting, but not on this point, at para. 5, “the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence.” The Chief Justice added, “the fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board's conclusion.”

[37] In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190, Bastarache and Lebel JJ., writing for the majority of the court, reviewed the concept of reasonableness and defined it as a “deferential standard” which allowed administrative tribunal to have “a margin of appreciation within the range of acceptable and rational solutions.” They continued, noting that the inquiry is into whether “the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” If so, the decision is reasonable. Deference is to be granted to the decision makers at the tribunal level, particularly those that make up a tribunal of specialized experts: Dunsmuir, at para. 55. See also: Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748.

(b) Corroboration

[38] In Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, the court emphasized the need for corroboration of the respondent’s opinion. That necessity arises by virtue of s. 14 of the Evidence Act, R.S.O. 1990, c. E.23, which provides that any finding of incapacity shall not be obtained “unless the evidence is corroborated by some other material evidence.”

(c) Impact of the Medications

[39] In Starson at para. 80, Major J. described the inquiry into capacity as including an examination of the “nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment.” In Anten, at para. 23, Rosenberg J.A. held that this entailed that the inquiry required as a starting point some evidence of the benefits and risks of the treatment and the consequences of not having the treatment.

V - WAS THE BOARD’S DECISION REASONABLE?

[40] In her factum and, in oral submissions before this court, the appellant took issue with many of the factual findings made by the Board. Many of the appellant’s criticisms of the hearing centred on the evidence given by her brother, NC, and documented descriptions of her symptoms by other family members. As noted above, deference is to be given to factual findings made by the Board. Such findings should not be interfered with lightly, particularly given, in my view, the findings at issue were well within the purview of the Board’s expertise. There are, however, three areas of complaint that require comment: (1) the admission of hearsay evidence; (2) the appellant’s stated desire to have children; and, (3) the revocation of the CTO.

The Hearsay Evidence

[41] The appellant argues that the Board erred by relying on hearsay evidence given by NC at the capacity hearing. NC’s evidence was important as it detailed the appellant’s mental illness history and behaviour. His testimony, along with documented medical incidents, provided the foundation for and corroboration of the respondent’s opinion.

[42] Hearsay evidence is, without question, admissible in hearings of this kind. The Board’s mandate in determining complex questions with respect to a patient’s ability to consent would become extremely cumbersome and, in some cases, impossible to fulfil without such evidence. Justice Major recognized as much in Starson at para. 115 when he said,

Hearings must be conducted in an expeditious manner to ensure that treatment decisions can be made without undue delay. To fulfill that mandate, the Board will often be forced to rely on hearsay evidence to become fully informed of a patient's circumstances. The weight to be accorded to such evidence is normally a matter that is left to the discretion of the Board. Nonetheless, the Board must be careful to avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability, a fact it failed in this case to observe.

[43] Upon reading its reasons, it is clear that the Board carefully considered all of the issues in the case and did not place undue emphasis on any single factor. Significantly, much of the family’s reports regarding the appellant’s behaviour were corroborated in the testimony of the appellant herself. The appellant did not deny the incidents outlined by her family but instead sought to explain them by casting her behaviour in what she saw as a more acceptable light. Many important aspects of the appellant’s illness, such as the television host incident, were witnessed personally by NC.

[44] NC also testified to the critical issue in this case: the appellant’s failure to acknowledge her mental illness. When NC discussed the issue with her, the appellant was adamant that she did not need the CTP as she was not unwell. NC also gave evidence as to his own observations of the beneficial effects of the medication when the appellant took it. In his words, he was able to see “a glimpse of his sister from the past.” Any hearsay, in my view, was more than sufficiently reliable when situated within the totality of the surrounding evidence.

[45] Finally, it is important to note that the respondent’s opinion was not exclusively based on the reports offered by the appellant’s family. The respondent had the benefit of witnessing the appellant’s behaviour and her response to treatment first hand during her hospitalization in the months of January and February, 2014. She testified as to those observations and conclusions at the Board hearing.

[46] I conclude therefore that the hearsay evidence was properly admitted by the Board who accorded the evidence its proper weight.

The Appellant’s Desire to have Children

[47] The appellant claims that Board acted unreasonably in ignoring her desire to have children by forcing her to take anti-psychotic treatment that caused infertility.

[48] Despite the appellant’s claims, there is no reference to her stated wish to have children at the Board hearing. The appellant argues that even though the issue of prospective motherhood was not explicitly raised, certain passages in the appellant’s testimony should have alerted the Board of the appellant’s ambition. The appellant points to the following extracts to demonstrate that she informed the Board of her hopes of motherhood:

(1) When the appellant was questioned about her understanding of what might happen if she did not take the medication prescribed by the respondent, she testified about the harmful effects the medication inflicted on her body. The appellant told the Board that the medication “could have caused me a risk of stroke. They had me — they had — I, had that for over a week. They caused me blooding, spotting, it caused me health issues; bodily are, serious bodily harm.”[^1]

(2) “Spotting” and “bleeding” were mentioned later on in the appellant’s testimony when she complained that she “couldn’t speak, I was lethargic, I, I had, like zero energy, I had a hard time, hard time.”[^2]

(3) Later, when cross-examined about the effects of the medication, the appellant explained that the medication would not make her feel safer “because I have fears of getting old. Is that gonna change by you giving me medication?”[^3]

[49] In my view, these comments do not indicate a desire to have children or concerns about infertility. The comments are simply expressions of concern by the appellant about the impact of the medication on her general physical well-being. I take the same view of the testimony concerning the appellant’s “fears of getting old.” That evidence was proffered to refute the notion that medication would make her feel “safer” when it would do nothing to allay her worries about the aging process. The appellant asks that I read these passages together to decide the merits of this argument. I note, however, that these comments do not occur closely in time in relation to each other and deal with different facets of the treatment prescribed by the respondent.

[50] There also appears to be no explanation of why, if the appellant’s fear of infertility was such a significant factor, the appellant did not make this fear explicit. The appellant’s counsel argues that, at the time of the hearing, the appellant had not fully comprehended, and was not aware of the effects of medication on her ability to bear children. This may be a legitimate argument when seeking the admission of the fresh evidence, an issue I disposed of above, however it has no bearing on whether the Board acted reasonably in making the order that it did. Accordingly, I reject this argument.

Was the CTP Extinguished by the Revocation of the CTO?

[51] This argument was first raised by the appellant at the appeal hearing. She argued that the CTP is dependent on the CTO issued under the Mental Health Act, R.S.O., 1990 c. M.7 (the “MHA”). As such, the revocation of the CTO by the Board automatically extinguished the CTP. The respondent submits that the CTO and CTP are separate and distinct entities, each of which survive the revocation of the other.

[52] The relevant provision of MHA, s. 33.7, reads as follows:

33.7A community treatment plan shall contain at least the following:

1. A plan of treatment for the person subject to the community treatment order.

2. Any conditions relating to the treatment or care and supervision of the person.

3. The obligations of the person subject to the community treatment order.

4. The obligations of the substitute decision-maker, if any.

5. The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).

6. The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan.

[53] According to the appellant, the wording of the section assumes the existence of a CTO that governs the CTP and upon which the CTP depends. This argument, ably advanced by the appellant’s counsel, does not take into account the wording of other sub-sections contained within the MHA that favour an alternative construction.

[54] Section 33.1(4) of the MHA, which specifies the criteria for a CTO, provides:

A physician may issue or renew a community treatment order under this section if,

(b) The person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(f) The person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996. 2000, c. 9, s. 15.

[55] Section 33.1(6), specifying the content of the order, provides:

A community treatment order shall indicate,

(c) a description of the community treatment plan referred to in clause (4) (b); and

(d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations. 2000, c. 9, s. 15.

[56] Finally, section 33.1(9), dealing with the obligations of a person who consents to a CTP, provides that:

If a person or his or her substitute decision-maker consents to a community treatment plan under this section, the person shall,

(a) attend appointments with the physician who issued or renewed the community treatment order, or with any other health practitioner or other person referred to in the community treatment plan, at the times and places scheduled from time to time…

[57] These provisions make clear that Parliament intended the CTO and CTP to be separate entities, which could co-exist within the same order. I am therefore in agreement with the respondent and the view expressed by Low J. in Singh v. de Souza, [2009] O.J. No. 3490, 179 A.C.W.S. (3d) 1197 (S.C.J.) where she stated, at para. 20:

The function of a CTP is to define the roles, obligations and responsibilities of the various parties to the plan. The nature of the CTP is consensual. There is no requirement that an order issue as a precondition of the plan being implemented -- either within in specified period of time or at all. The statute empowers but does not require the physician to issue a CTO, which incorporates the plan (s. 33.1(6)(c)). The function of the order is to permit enforcement under s. 33.3 of the Act by way of compulsory submission to examination. There is no legal impediment, however, to the parties to the plan carrying it out even in the absence of an order.

[58] As a final note, it must be remembered that the question at hand is whether the Board reasonably decided that the appellant did not have the capacity to consent to treatment. That fact that the CTO was revoked does not change that question.

[59] For these reasons, I reject this ground of appeal.

The Central Issue in the Board’s Determination

[60] Although the appellant’s complaints target the Board’s approach to and use of evidence, her arguments fail to address the central issue on this appeal: whether the Board’s determination of the second limb of the test found in s. 4 of the Act was reasonable. As the appellant has rightly pointed out, she was entitled to disagree with the respondent’s diagnosis. However, the Board’s determination did not rest on that fact. The Board concluded that the appellant failed this aspect of the test, not because of disagreement, but because the appellant denied the possibility that she ever suffered from the illness diagnosed by the respondent, i.e. schizophrenia. This denial, and the refusal to even countenance the use of medication to treat it, was the basis for the Board’s decision.

[61] In Starson, at para. 79, Major J., writing for the majority of the court, noted that:

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. [Emphasis added.]

[62] Major J. added, in the same paragraph:

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. [Emphasis added.]

[63] In coming to its conclusion, the Board followed the law set out by the Supreme Court of Canada and subsequent case law. The Board correctly applied the law to determine whether the second limb of the test under the Act had been met. The evidentiary basis for its conclusion is readily apparent. The Board had the benefit of the respondent’s summary and diagnosis, which outlined both the appellant’s behavioural issues and responses to treatment. The respondent’s report and the testimony of the appellant’s brother, NC, were consistent in the view that after taking the treatment prescribed for her, the appellant’s condition noticeably improved. The medication was thereby shown to have a beneficial effect. The evidence also demonstrated that the appellant’s condition worsened considerably when she discontinued her medication. The respondent’s diagnosis and opinion was corroborated by the appellant’s family and, as noted previously, her direct observations of the appellant when she was hospitalized between January 31 and February 25, 2014.

[64] Most significantly, the Board had the opportunity to observe the appellant when she testified at the hearing. That testimony itself was capable of providing corroboration with respect to the respondent’s diagnosis: see Anten at para 30. The Board was in a position to question the appellant against the backdrop of the other evidence, including her historical background, documented health problems, and incidents reported by her family members. The appellant did not deny the incidents outlined by her family but sought to explain them as part of her beliefs that a conspiracy to harm her existed. The appellant’s current complaints regarding the Board’s alleged failure to properly apply the legal principles to the evidence disclosed at the hearing is not borne out by the record. Having found that the appellant satisfied the first limb of the statutory test, the Board’s major concern was the appellant’s failure to reasonably appreciate the consequences of not taking the medication to treat her illness. That concern was well founded.

[65] In my view, the appellant’s situation is no different from that described by Rosenberg J.A. in D’Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250, where he explained the reasonableness of the Board’s decision at paras. 26 and 27 in the following terms:

[The patient] has no appreciation of the positive effects of treatment or the negative effects of the failure to treat. To the contrary, as set out above, he believes that his progress is solely the result of his own efforts and that the treatment has retarded his progress. That is manifestly not the case. Moreover, his failure to appreciate is directly related to his mental condition. Because of his false ideas, he does not appreciate that he is ill and does not appreciate that he needs medication. He attributes his hospitalization, not to his illness, but to the fact that evil forces are conspiring to keep him from assuming his proper role in this country.

The appellant's case is quite different from that of Starson. As explained by Major J. at para. 92 of the Starson case, Professor Starson understood that he suffered from a mental condition and appreciated the purpose of the medication and the possible benefits suggested by the doctors. He preferred his altered state to what he viewed as the boredom of normalcy. This appellant does not understand that he suffers from a mental condition nor does he appreciate the purpose of the medication and the possible benefits.

Conclusion

[66] Based on the whole of the evidence and for the aforementioned reasons, I have determined that it was reasonable for the Board to conclude that the appellant was unable to reasonably appreciate the foreseeable consequences of a decision or lack of decision with respect to treatment pursuant to a CTP.

[67] Accordingly, the appeal against the Board’s decision is dismissed.

Akhtar J.

Date: February 26, 2015

[^1]: Transcript of Hearing, April 8, 2013, at pp. 10 to 11. [^2]: Transcript of Hearing, April 8, 2013 at pp. 72 to 73. [^3]: Transcript of Hearing, April 8, 2013 at p. 95