M. M. v. De Souza, 2015 ONSC 2362

CITATION: M. M. v. De Souza, 2015 ONSC 2362

COURT FILE NO.: CV-14-514811

DATE: 20150410

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: M. M., Appellant

AND:

DR. DARINA DE SOUZA, Respondent

BEFORE: Stinson J.

COUNSEL: D'Arcy J. Hiltz, for the Appellant

Paul J. Davis, for the Respondent

HEARD at Toronto: March 26, 2015

ENDORSEMENT

[1] This decision concerns an appeal under s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended, from a decision of the Consent and Capacity Board dated October 21, 2014. In that decision, the Board confirmed the finding of the respondent, Dr. Darina De Souza, that the appellant, M. M., is incapable of giving or refusing consent to treatment with antipsychotic and side effect medications. M. M. appeals from that decision and argues that:

1. the Board misunderstood and/or misapplied the statutory test for capacity;

2. the Board’s decision of incapacity was not supported by the evidence and was not within the reasonable range of possibilities; and

3. Dr. De Souza’s evidence concerning M. M.’s incapacity was not corroborated.

For her part, Dr. De Souza submits that the Board’s decision has ample support in the Record and is consistent with the controlling jurisprudence.

Facts

Overview

[2] Dr. De Souza is a psychiatrist with privileges at Oakville Trafalgar Memorial Hospital. She was M. M.’s attending physician at the time of the hearing.

[3] M. M. was born in 1981. At the time of the hearing she was single with no fixed address and receiving ODSP.

[4] On October 8, 2014, M. M. was discharged from the shelter at which she had been living. She had a confrontation with a fellow employee at a job for which she had recently been hired, and was fired. Later that day she became loud, profane and aggressive in her dentist’s office, leading the employees there to call police. The police found M. M. at a yoga studio where she had gone to calm down and took her to the emergency room at the hospital. At the time of her admission there, M. M.’s behavior was “loud, tangential and disorganized” and “hostile, irritable and disinhibited.”

[5] On October 10, 2014, Dr. De Souza found M. M. incapable of giving or refusing consent to antipsychotic and side effect medications. Although Dr. De Souza believed M. M. was able to understand the information relevant to making a treatment decision, her view was that M. M. was unable to appreciate the reasonably foreseeable consequences of a decision to accept or refuse treatment. Dr. De Souza observed that M. M. had no insight into her current condition and accused those who expressed concerns for her of having mental illness.

[6] In addition to finding M. M. incapable of giving consent to treatment, Dr. De Souza also assessed her as not capable of managing property under s. 54 of the Mental Health Act, R.S.O. 1990, c. M.7, as amended. Dr. De Souza also completed a Certificate of Involuntary Admission detaining the appellant for a period of two weeks.

[7] M. M. applied to the Consent and Capacity Board to have the incapacity and involuntary status findings reviewed. The Board confirmed the treatment incapacity and involuntary status findings. M. M. appeals the finding of treatment incapacity to this court.

Background

[8] M. M.’s admission to hospital in October 2014 was her seventh hospitalization relating to mental disorders since 2011. In summary, her admissions between 2011 and 2014 were as follows:

a. M. M. was admitted due to symptoms of mental disorder in 2011, at which time she was treated with antipsychotic medication for 6 to 8 weeks.

b. In September 2012, M. M. was admitted due to symptoms of schizophrenia and was treated with antipsychotic medications.

c. after discharge in late 2012, M. M. was subject to a community treatment order which required her to continue taking medication. She continued treatment with antipsychotic medication until she stopped taking it in January 2013.

d. M. M. was admitted to hospital for several weeks in November 2013 for symptoms relating to schizophrenia. She was not treated with any antipsychotic medication during this admission.

e. M. M. was again admitted to hospital over the new year in December 2013 – January 2014 for symptoms of schizophrenia.

f. On July 7, 2014, M. M. was admitted to hospital following an episode of acute psychosis in which she believed that sniper shooters were placed on the roof of a local skyscraper and she tried to interfere in their activities by providing safety to a television crew interviewing a politician. In the emergency room she continued to escalate and was subdued with chemical restraints. She was not, however, treated with any psychotropic medication and her mental state gradually improved.

g. On August 27, 2014, M. M. was again admitted to hospital following an incident in which she had become belligerent, aggressive and resisting apprehension by a police officer after she had consumed a significant quantity of alcohol. She was released the next day with no prescriptions.

h. M. M.’s next hospital admission was on October 8, 2014. Following that admission Dr. De Souza assessed her as not capable with respect to antipsychotic medications, not capable of managing property and completed a Certificate of Involuntary Admission.

[9] On October 14, 2014, M. M. applied to the Consent and Capacity Board to have the incapacity findings of the respondent reviewed and also to have her involuntary status reviewed. The Board held a hearing on October 21, 2014 and issued three decisions:

1. Confirming the finding that M. M. is not capable of consenting to treatment in the form of antipsychotic medications;

2. Determining that M. M. is capable of managing property; and

3. Confirming M. M.’s involuntary status.

[10] On October 29, 2014, the Board provided written reasons for its decisions.

[11] On November 3, 2014, M. M. served a notice of appeal from the decision of the Board confirming Dr. De Souza’s finding that M. M. was not capable with respect to consenting to treatment in relation to antipsychotic medications. She did not appeal the decision confirming her status as an involuntary patient.

Reasons of the Board

[12] In its Reasons for Decision, the Board made several findings in support of its decision to confirm the finding of incapacity with respect to treatment. First, it found that M. M. suffers from paranoid schizophrenia, but that she does not have insight into her mental disorder and does not accept her diagnosis. Second, although M. M. testified that she makes treatment decisions and weighs the pros and cons of different choices, the Board rejected her evidence in that regard. The Board found that while M. M. understands information regarding her diagnosis and treatment, she cannot apply that information to her circumstances because “she does not recognize the possibility that her behaviors are symptoms of a mental condition that requires treatment.”

[13] The Board further held that though M. M. is aware of the side effects of treatment, because she does not recognize the benefits of treatment, she is unable to weigh benefits against risks. In this connection, the Board found that M. M. was unable to appreciate that when she was treated she became less agitated, had fewer delusional thoughts, and less paranoia. In fact, while treated, M. M. maintained employment and had better interpersonal relationships.

[14] The Board considered and instructed itself in relation to the legal test to apply when determining whether M. M. had capacity to consent to treatment. In particular, the Board referred to Starson v. Swayze, 2003 SCC 32, quoting paras. 78 and 79 of that decision as follows:

[Section 4(1) of the Act describes these elements 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 a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard.

Before turning to an analysis of the reviewing judge’s decision, two important points regarding this 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 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 in the Board’s Reasons]

[15] The Board’s key findings were as follows:

The panel did not accept M. M.’s testimony about how she weighs a decision to accept or reject treatment. Although she understands the information about the diagnosis and the treatment we found that she can not apply that information to her own circumstances. That finding is based on the fact that she does not recognize the possibility that her behaviours are symptoms of a mental condition that requires treatment. Secondly, although M. M. is aware of the side effects of medication, she is unable to recognize the benefits that she obtained when she was treated. Therefore, she is unable to weigh the benefits against the risks because she does not recognize either the past benefits or the anticipated benefits. We found that because of her disorder M. M. is unable to appreciate that when she was treated she was less agitated, had fewer delusional thoughts and had less paranoia. During treatment she found and held employment and her interpersonal relationships with family and friends were on a better footing.

Finally, her testimony that she will only consider medications that do not have any side effects signal [sic] that she is unwilling or unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision to accept treatment. She candidly admitted that she knew of no such medications.

The panel concluded that M. M. is unable to recognize that her behaviors are symptoms of a mental disorder and not the result of other persons’ behaviors. We accepted the testimony of Dr. De Souza and found that M. M.’s condition prevents her from applying the information about treatment to her own condition. She does not see that her behaviours, which lead to conflicts at work and at home, are symptoms of a mental disorder or “condition”. She does not appreciate that treatment will improve those behaviors. Thus she does not appreciate the benefits of treatment and does not appreciate the consequences of her decision to accept or reject treatment. Accordingly we found that M. M. is incapable of consenting to treatment of a mental disorder.

For these reasons, the Board confirmed Dr. De Souza’s finding that M. M. was incapable of consenting to treatment.

Positions of the Parties

[16] M. M. submits that:

1. The Board misunderstood and/or misapplied the statutory test for capacity;

2. The Board’s decision of incapacity was not supported by the evidence and was not within the reasonable range of possibilities; and

3. The respondent’s evidence of the appellant’s incapacity was not corroborated.

[17] Dr. De Souza submits that the Board made no error in relation to the statutory test. Further, the Board’s decision is supported by the Record including evidence that corroborated Dr. De Souza’s evidence of M. M.’s incapacity.

analysis

Standard of review

[18] A party before the Board has a statutory right of appeal to this Court. Dr. De Souza argues that the standard of review of reasonableness applies to all aspects of the Board’s decision. She relies on certain comments of Himel J. in Ackie v. Manocha, 2014 ONSC 669 at para. 32 to support the proposition that a reasonableness standard should be applied to questions of law. In my view, read in context, those comments of Himel J. go no further than confirming the standard of review articulated by the Supreme Court of Canada in Starson.

[19] As set out in Starson, questions of law before the Board are to be reviewed upon a correctness standard: see para. 110. In the application of the law respecting capacity to the facts in a particular case, the Board decision is to be reviewed on a reasonableness standard.

Issue 1: Did the Board misunderstand or misapply the statutory test for capacity?

[20] At the outset of its analysis of M. M.’s capacity to consent to treatment, the Board expressly framed the issue before it as follows:

There are two questions to be addressed in determining whether on the date of the hearing M. M. has the capacity to consent to treatment of a mental disorder. The issue in this hearing was whether M. M. was unable to appreciate the reasonable consequences of a decision about being treated with antipsychotic medications, benzodiazepines and anticholinergics (side effect medications). There was no issue with respect to M. M.’s ability to understand the information relating to treatment of a mental disorder because Dr. De Souza conceded that she was able to understand the information relevant to making a decision about treatment of a mental disorder.

[21] In its Reasons (quoted at para. 14 above) the Board expressly referred to the decision of the Supreme Court in Starson and the discussion by Major J. of the criteria for capacity, quoting paras. 78 and 79 of his decision.

[22] In its subsequent analysis, the Board found that M. M. “has demonstrated an inability to recognize the possibility that she is affected” by a mental condition. The Board found that “[a]lthough she understands the information about the diagnosis and the treatment we found that she cannot apply that information to her own circumstances”, basing that finding on “the fact that she does not recognize the possibility that her behaviours are symptoms of a mental condition that requires treatment”. The Board went on to find that “although M. M. is aware of the side effects of medication, she is unable to recognize the benefits that she obtained when she was treated” reasoning that M. M. “is unable to weigh the benefits against the risks because she does not recognize either the past benefits or the anticipated benefits.” The Board found that “because of her disorder M. M. is unable to appreciate that when she was treated she was less agitated, had fewer delusional thoughts and had less paranoia.” The Board went on to state that “her testimony that she will only consider medications that do not have any side effects signal [sic] that she is unwilling or unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision to accept treatment.”

[23] In the foregoing passages of its Reasons, the Board repeatedly directed itself to the question of M. M.’s ability to appreciate, weigh and apply information to her own circumstances. The Board expressly found that M. M. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision to accept treatment.

[24] M. M. stresses the comments in the Board’s summary of its decision in relation to capacity to consent to treatment at p. 16 of the Record, as follows:

She does not see that her behaviors, which lead to conflicts at work and at home, are symptoms of a mental disorder or “condition”. She does not appreciate that treatment will improve those behaviors. Thus she does not appreciate the benefits of treatment and does not appreciate the consequences of her decision to accept or reject treatment. Accordingly we have found that M. M. is incapable of consenting to treatment of a mental disorder.

[25] Read in isolation, the second and third sentences quoted above might suggest that the Board misdirected itself by asking the question whether M. M. did or did not appreciate the consequences of her decision to accept or reject treatment. M. M. correctly points out that the correct question to ask is not whether the individual appreciates the consequences of her decision to accept or reject treatment but rather whether she has the ability to appreciate the consequences of such a decision.

[26] I do not accept M. M.’s submission. In the previous passages of the Board’s Reasons that I have quoted above, the Board repeatedly focused on the ability of M. M. to appreciate the reasonably foreseeable consequences of a decision or lack of decision. The Board explained why it had reached its conclusions. In my view, the closing words of the Reasons upon which M.M. relies were merely a shorthand reference to the conclusions previously articulated by the Board. They do not, in my view, reflect a misapprehension or error on the part of the Board concerning the test to be applied. Rather, based upon a full reading of the Reasons and the Board’s express reference to Starson, together with the analysis carried out by it in order to reach its conclusions, I am satisfied that the Board correctly understood and applied the statutory test for capacity.

Issue 2: Was the Board’s Decision of Incapacity Supported by the Evidence?

[27] Dr. De Souza submits that there is ample evidence in the Record to support the Board’s finding that M. M. was suffering from a mental illness at the time of the hearing.

[28] The Record reveals that M. M. had a history of admissions to hospital arising from mental health issues and had in the past been diagnosed with schizophrenia. She had, in the past, been treated with antipsychotic medication and, according to Dr. De Souza’s testimony (and consistent with some of the comments contained in the letters submitted to the Board by M. M.’s father and sister) she had benefited from such treatment.

[29] Dr. De Souza also testified about her past and recent involvement with M. M.’s care. She testified about M. M.’s fixation on the idea that she had been misdiagnosed as having a mental disorder and that M. M.’s belief that there was a conspiracy to have her so diagnosed. For her part, M. M. confirmed at various points in her testimony that she does not agree with her diagnosis in any way and that she does not understand why she was placed in the psychiatric unit. Dr. De Souza testified about M. M.’s inability to see the link between lack of treatment for her mental disorder and her repetitive conflict at work, ongoing involvement with police and Form One assessments. She testified that M. M. dismissed any concerns expressed by her family, accusing them of giving erroneous information about her.

[30] M. M.’s own evidence before the Board demonstrated that she did not understand that her medical disorder had any impact on her behaviour. She testified she had no idea why she kept coming back to psychiatric attention. She had no idea why she was being admitted and discharged and admitted and discharged. She completely disagreed that she had any mental deterioration. She testified that she did not think that her mental illness had anything to do with how her life had spiraled downhill.

[31] In my view, the foregoing evidence supports the Board’s conclusion that M. M. lacks insight into her disorder and does not recognize that her behaviours are a symptom of that disorder. As a result, she is unable to appreciate that treatment will improve her behaviours.

[32] Dr. De Souza testified that M. M.’s condition improved from treatment in that she experienced decreased agitation, delusional thoughts and paranoia and had improved interpersonal relationships. For her part, however, M. M. confirmed that she does not believe that the antipsychotic medication had any positive effects and that there was absolutely no clinical improvement. Once again, this evidence from M. M. is at odds with the letters from her father and sister.

[33] M. M. argues that the Board improperly took into account her prior conduct when assessing whether she was capable at the time of the hearing, but failed to consider prior findings that she was capable. I see no error in the Board having done so. M. M.’s mental health history was a relevant consideration in placing her recent behaviours in context. As to the significance of past findings of capacity, this issue is addressed by s. 15(2) of the Act, which expressly provides that capacity depends on time, stating that “[a] person may be incapable with respect to a treatment at one time and capable at another.”

[34] M.M. also argues that the Board improperly considered statements by police officers that they had brought her to hospital “because she needs treatment.” In my view, the mere reference to those comments does not support the conclusion that the Board relied upon them in making its decision. Rather, the balance of the Record contains extensive evidence, independent of those comments, concerning M.M.’s mental status.

[35] I therefore conclude the Record as a whole supports the findings of the Board regarding M. M.’s mental disorder and her inability to appreciate the reasonably foreseeable consequences of her decision or lack of decision to accept treatment. Bearing in mind the deference due to the Board’s findings of fact, I do not accept M. M.’s submissions that those findings were not reasonable.

Issue 3: Was Dr. De Souza’s evidence of M. M.’s incapacity corroborated?

[36] M. M. relies on s. 14 of the Evidence Act, R.S.O. 1990, c. E.23 which provides as follows:

An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:

1. A person who has been found,

i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act,

ii. incapable of personal care under the Substitute Decisions Act, 1992, or

iii. incapable by a court in Canada or elsewhere.

[37] M.M. submits that there was no documentary or material evidence to corroborate Dr. De Souza’s evidence of M. M.’s incapacity at the time of the hearing. M.M. accepts, however, that a physician’s evidence can be corroborated by a patient’s own evidence.

[38] Assuming, without deciding, that s. 14 1. is applicable to a case such as this, in my view there was ample corroboration for the evidence of Dr. De Souza regarding the lack of capacity of M. This includes the following: the lengthy history of M. M.’s mental illness; her repeated hospital admissions; her past treatment; the correspondence from her family members; the information and observations of others involved with interacting with M. M.; and M. M.’s own testimony before the Board. I therefore do not accept this submission.

Conclusion and disposition

[39] For the foregoing reasons, I conclude that the decision of the Board was based on a correct interpretation and application of the law and was amply supported by the Record before it. It follows that the appeal must be dismissed and the decision of the Board upheld.

Stinson J.

Date: April 10, 2015