CITATION: Carty v. Levy, 2015 ONSC 2200

COURT FILE NO.: CV-14-503930

COURT FILE NO.: CV-14-503931

DATE: 20150408

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board from a hearing of an application under s. 39.1(1) of the

Mental Health Act, R.S.O. 1990, c. M.7, as amended

AND IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board from a hearing of an application under section 32(1) of the

Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended

AND IN THE MATTER OF DAWN CARTY, a resident of Toronto, Ontario

BETWEEN:

DAWN CARTY

Appellant

– and –

DR. MATTHEW LEVY

Respondent

Joanna Weiss for the Appellant

Alexandra V. Mayeski for the Respondent

HEARD: March 11, 2015

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] The Appellant Dawn Carty appeals two decisions of the Consent and Capacity Board dated May 1, 2014. One Board decision confirmed the renewal of a Community Treatment Order. Ms. Carty submits that the Board misapprehended the evidence in concluding that ss. 33.1(4)(c)(ii) and (iii) and 33.1(4)(f) of the Mental Health Act, R.S.O. 1990, c. M.7 had been satisfied. The second decision confirmed Ms. Carty’s incapacity to consent to treatment with injectable antipsychotic medication as a part of her Community Treatment Plan. Ms. Carty submits that the Board incorrectly concluded that the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A did not require it to consider her capacity and mental status as of the date of the subject hearing and erred in fact and in law in confirming the health practitioner’s finding of incapacity.

[2] Ms. Carty’s Community Treatment Order that is the subject of her appeal expired on September 30, 2014 and was not subsequently renewed. The Respondent, Dr. Matthew Levy, moves to have the appeals quashed on the grounds that they are moot.

[3] I heard the parties on the mootness issue and reserved judgment.

[4] For the reasons set out below, I now conclude that the appeals should be quashed as moot.

B. FACTUAL AND PROCEDURAL BACKGROUND

[5] Ms. Carty is a 43 year old woman living independently in an apartment in downtown Toronto.

[6] Ms. Carty’s first psychiatric admission to a hospital occurred in 2001, when she was admitted for three days to Humber Hospital. At that time, the diagnosis was noted “psychosis not yet diagnosed.”

[7] In 2003, while an outpatient at Sunnybrook Hospital, Ms. Carty was diagnosed with schizophrenia.

[8] Ms. Carty’s second psychiatric admission occurred when she was admitted as an involuntary patient to Humber River Regional Hospital from April 19 to June 7, 2005. At that time, it was determined that that she was incapable of making psychiatric treatment decisions. During this admission, she received treatment for schizophrenia. More specifically, she received an antipsychotic injection once every three weeks of Fluanxol Depot, 40 mg. While on this medication, she suffered from noticeable negative side effects, including a mild tremor.

[9] After her discharge, Ms. Carty continued to receive injections of Fluanxol Depot but by the summer of 2007, she stopped using the drug, and she stopped following up with her family doctor.

[10] In April of 2008, after she had been visited by her outpatient psychiatrist and Community Connections worker at her home, Ms. Carty was admitted as an involuntary patient to St. Michael’s Hospital from April 3 to May 8, 2008. The psychiatrist found her in a “catatonic, mute, and mostly unresponsive state.”

[11] During her admission, a determination was made that Ms. Carty was incapable of making treatment decisions, both in regards to antipsychotic medication, and also with respect to a Community Treatment Plan. Her mother, Ms. Janelle Whittaker, acted as her Substitute Decision Maker. Given the negative side effects that Ms. Carty had experienced while on Fluanxol a different injectable antipsychotic medication, Clopixol, was initiated.

[12] A Community Treatment Plan was developed for Ms. Carty and she was discharged subject to a Community Treatment Order, with which she initially complied.

[13] In July of 2008, a hearing was held before the Consent and Capacity Board to review the Community Treatment Order. The Board revoked the Order.

[14] Ms. Carty continued to comply with the psychiatric treatment without order on her own volition for a few months. However, by September of 2008, she discontinued her outpatient mental health care, and was no longer receiving Clopixol injections.

[15] In January of 2009, Ms. Carty was discharged from the Community Connections team at St. Michael’s Hospital. For the next three years, until January 2012, she lived in the community without receiving any psychiatric medication, outpatient mental health care, or follow-up. She was not subject to a Community Treatment Order. There were no psychiatric admissions during this period.

[16] On January 6, 2012, Ms. Carty was admitted as an involuntary patient at St. Michael’s Hospital. The admission lasted until February 10, 2012.

[17] Ms. Carty was admitted as a patient after she had been found in her apartment in an emaciated catatonic state. She was brought to the hospital emergency room in a catatonic state. She was admitted, and a determination was made that she was incapable of making treatment decisions.

[18] Ms. Whittaker, as Substitute Decision Maker, consented to the injectable antipsychotic medication Clopixol Depot which was titrated up to 150 mg every two weeks. Ms. Carty experienced some extrapyramidal side effects including tremor and psychomotor slowing.

[19] On February 10, 2012, Ms. Carty was discharged from the hospital on a Community Treatment Order to which her mother consented.

[20] After her release in 2012, and up until the time of the hearing under appeal, Ms. Carty has remained subject to the Community Treatment Order. Her mother, as Substitute Decision Maker, consented to the Community Treatment Plan and to the use of injectable antipsychotic medication.

[21] The February 2012 Community Treatment Order was renewed three times. During the renewals, Ms. Carty complied with the Community Treatment Plan. Over time, the dosage of Clopixol Depot was decreased to 75 mg every four weeks.

[22] On February 26, 2014, Dr. Matthew Levy met with and assessed Ms. Carty. Dr. Levy noted that her affect was good, and that she did not demonstrate any psychotic symptoms. She appeared to be doing well on her medication. However, Ms. Carty said that she did not believe that she had any mental health problems and, therefore, did not see the benefit to being on any medication. She did not believe she would become unwell mentally if she stopped the antipsychotic medication. Ms. Carty believed that her mother was to blame for her psychiatric hospitalizations and did not think she had any significant mental health problems when hospitalized in the past. She did not think that there would be any negative consequences to her stopping her antipsychotic medication.

[23] Dr. Levy found that Ms. Carty continued to have poor insight into her mental illness and was unable to appreciate the risks and benefits of medication and potential consequences of stopping medication. He planned to speak with Ms. Carty’s mother to determine whether she, as Substitute Decision Maker, would consent to continue with antipsychotic medication and with the Community Treatment Plan.

[24] Dr. Levy was not able to complete the form for a Community Treatment Plan in February 2014, and therefore, he assessed Ms. Carty again on March 5, 2014.

[25] On March 5, 2014, Dr. Levy’s Clinical Progress Note indicated that Ms. Carty believed that she did not have any “mental health problems and no psychotic illness,” and that she had never benefited from taking psychotropic medications. He noted that Ms. Carty believed that her prior psychiatric hospital admissions were not due to her having any mental health problems, but rather were all caused by the actions of her mother.

[26] Dr. Levy’s opinion was that even though Ms. Carty had improved while being on medication she was “unable to appreciate the likely consequences of stopping antipsychotic medication.” His opinion was that she was unable to appreciate the benefits of the Community Treatment Plan because she did not believe that she was ill or that she required any mental health care or follow-up. He found that she was unable to appreciate the likely consequences of stopping the antipsychotic medication such as when she previously suffered substantial mental deterioration which led her to be hospitalized. Dr. Levy’s view was that she remained incapable of consenting to antipsychotic medication and to the proposed renewal of the Community Treatment Plan. Further, his opinion was that the criteria for renewing her Community Treatment Plan were met.

[27] On March 5, 2014, Dr. Levy prepared a Community Treatment Plan that included the use of injectable antipsychotic medication and regular monthly follow-up appointments with Dr. Levy (or his designate). Shannon Partridge, Case Manager at the Hospital, and Ms. Carty’s mother orally consented. Dr. Levy signed a Notice of Intention to Renew Community Treatment Order (Form 49).

[28] On March 8, 2014, Ms. Carty received rights advice in relation to the Community Treatment Order. On March 10, 2014, Ms. Whittaker received rights advice.

[29] On March 31, 2014, the February 2012 Community Treatment Order was renewed for a fourth time. The Community Treatment Order (Form 45) was signed by both Dr. Levy and Ms. Whittaker. Dr. Levy signed the Notice to Person of Issuance or Renewal of Treatment Order (Form 46). There is a mandatory review of a Community Treatment Order and Dr. Levy filed an Application to Review a Community Treatment Order (Form 48) with the Board.

[30] On April 23, 2014, an Application to Review a Finding of Incapacity was filed with the Board on behalf of Ms. Carty.

[31] On May 1, 2014, the Consent and Capacity Board held a hearing to review whether the criteria for Ms. Carty’s Community Treatment Order had been satisfied and to review the finding of incapacity to consent with respect to the antipsychotic medication treatment and the Community Treatment Order. Dr. Levy was the only witness.

[32] With Dr. Levy’s consent and the consent of Ms. Carty’s lawyer, the hearing took place beyond the seven-day requirement under the Health Care Consent Act, 1996. The Board received documentary evidence and heard oral evidence and submissions from Dr. Levy who was not represented by counsel at the hearing. Ms. Carty did not attend the hearing. However, she was represented by legal counsel who had the opportunity to question Dr. Levy and provide submissions.

[33] Dr. Levy had not assessed Ms. Carty again after his meeting with her on March 5, 2014 and at the hearing before the Board, he testified that the information in his clinical progress note remained true and relevant.

[34] For present purposes, it is not necessary to review the substance of Dr. Levy’s evidence before the Board.

[35] On May 6, 2014, the Board released its Reasons for Decision. The Board confirmed the Community Treatment Order and confirmed Dr. Levy’s finding of incapacity to consent with respect to the antipsychotic medication treatment and the Community Treatment Order.

[36] For present purposes, it is not necessary to review the details of the Board’s decision, apart from saying that the Board found that the criteria in ss. 33.1(4)(c)(ii) and (iii) and 33.1(4)(f) of the Mental Health Act were satisfied.

[37] For the present purposes of the motion to quash, the relevant portions of s. 33.1 of the Mental Health Act are set out below:

Community treatment order

33.1 (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

Purposes

(3) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

Criteria for order

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

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(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;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(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.

Exception

(5) Clause (4)(e) does not apply in any of the following circumstances:

1. If a rights adviser has made best efforts to locate the person subject to the order, the person could not be located and the rights adviser so informs the physician.

2. If the person subject to the order refuses to consult with a rights adviser and the rights adviser so informs the physician.

3. If, for the renewal of the order, the Public Guardian and Trustee is the substitute decision-maker for the person subject to the order.

Content of order

(6) A community treatment order shall indicate,

(a) the date of the examination referred to in clause (4) (c);

(b) the facts on which the physician formed the opinion referred to in clause (4) (c);

(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.

Legal advice

(8) The person who is being considered for a community treatment order, or who is subject to such an order, and that person’s substitute decision-maker, if any, have a right to retain and instruct counsel and to be informed of that right.

Obligations of person

(9) 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; and

(b) comply with the community treatment plan described in the community treatment order.

Expiry of order

(11) A community treatment order expires six months after the day it is made unless,

(a) it is renewed in accordance with subsection (12); or

(b) it is terminated earlier in accordance with section 33.2, 33.3 or 33.4.

Renewals

(12) A community treatment order may be renewed for a period of six months at any time before its expiry and within one month after its expiry.

Subsequent plans

(13) Upon the expiry or termination of a community treatment order, the parties may enter into a subsequent community treatment plan if the criteria set out in subsection (4) are met.

[38] The Board concluded that the test for capacity as set out in s. 4 of the Health Care Consent Act had been properly applied and that the oral consent for the Community Treatment Plan, which was obtained by Dr. Levy on March 5, 2014, and the confirmation of Substitute Decision Maker consent on March 31, 2014, were in accordance with the Act and thus a valid consent was obtained for the Community Treatment Plan.

[39] Section 4 of the Act states:

Capacity

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.

[40] On May 9, 2014, Ms. Carty appealed the Board’s decisions with respect to capacity and the Community Treatment Order. She claims that the Board erred in fact and in law in finding that she was not capable of consenting to treatment with injectable antipsychotic medication and to the Community Treatment Plan. She submits that the Board erred in fact and in law in finding that the criteria for renewing the Community Treatment Order were met on the date of the hearing.

[41] The Community Treatment Order that is the subject of her appeals expired at midnight on September 30, 2014 and has not been renewed.

[42] By way of a preliminary motion, Dr. Levy submits that the appeals should be quashed as moot.

C. DISCUSSION AND ANALYSIS

[43] The Supreme Court of Canada described the doctrine of mootness in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, where Justice Sopinka stated at para. 15:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. …. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice…

[44] In the case at bar, the Community Treatment Order that is the subject of Ms. Carty’s appeals expired approximately six months ago. I agree with Dr. Levy’s argument that there no longer is a live controversy and that any appellate decision will have no practical effect.

[45] I was not referred to any case law about mootness and Community Treatment Orders, but Dr. Levy did rely on health law cases where courts have applied the doctrine of mootness to refuse to hear appeals.

[46] In S.(R.M.) v. Wainberg, [1997] O.J. No. 4933 (Gen. Div.), a patient appealed the Board’s decision, which held that he was likely to be a threat to harm himself and others if released from the hospital. The patient’s certificate of involuntary admission was not renewed and expired before the matter was before the Court. The Court held that the appeal was, therefore, moot and refused to exercise its discretion to hear the appeal.

[47] Similarly, in Retief v. Ganjavi, 2013 ONSC 2654, the Court held that because the patient was no longer a patient at the hospital and the certificate of involuntary admission had expired, treatment incapacity was no longer a live issue and the Court held that the matter was moot.

[48] In Nasr v. Wong, [2007] O.J. No. 5579 (S.C.J.), the Court held that an appeal from a decision of the Board made while the appellant was an inpatient was rendered moot when the appellant was discharged. The Court held that any further review of the Board’s decision would be academic and refused to exercise its discretion to hear the case.

[49] In M.(K.) v. Shammi, 2012 ONSC 1102, the Court held that upon the patient’s discharge from hospital, the finding of incapacity by the doctor became moot.

[50] Ms. Carty submits, however, that a successful appeal that would revoke the Community Treatment Order would have the practical effect of diminishing by six months her vulnerability to the issuance of another Community Treatment Order under s. 33.1(4)(a) of the Mental Health Act, which provides that a physician may issue a Community Treatment order if, during the previous three-year period, the person has been the subject of a previous Community Treatment Order.

[51] In my opinion, Ms. Carty’s argument does not change the dynamic that the Court’s decision will have no practical effect or no meaningful practical effect.

[52] I say this because it is certain that a court order revoking the already expired Community Treatment Order (which revocation is far from certain) would have no immediate effect, and in the future, should it occur that a physician would make a Community Treatment Order in the six- month period between March 31, 2017 and September 30, 2017, it still is open for Ms. Carty to submit that there was no lawful renewal on March 31, 2014 for the same reasons that she advances now to have the Community Treatment Order revoked. If all this should occur, there would be a live controversy.

[53] In my opinion, the circumstances are not such as to justify the Court exercising its discretion to hear an appeal notwithstanding its mootness.

D. CONCLUSION

[54] For the above reasons, I quash the two appeals without a decision on the merits.

[55] This is not a case for costs.

Perell, J.

Released: April 8, 2015

CITATION: Carty v. Levy, 2015 ONSC 2200

COURT FILE NO.: CV-14-503930

COURT FILE NO.: CV-14-503931

DATE: 20150408

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board from a hearing of an application under s. 39.1(1) of the Mental Health Act, R.S.O. 1990, c. M.7, as amended

AND IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board from a hearing of an application under section 32(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended

AND IN THE MATTER OF DAWN CARTY, a resident of Toronto, Ontario

BETWEEN:

DAWN CARTY

Appellant

– and –

DR. MATTHEW LEVY

Respondent

REASONS FOR DECISION

PERELL J.

Released: April 8, 2015