FACTUAL BACKGROUND

[1] The appellant appeals the Consent and Capacity Board (“CCB”) finding, made on December 22, 2014, that he was incapable of consenting to treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (“the HCCA”). Following counsel’s submissions, I delivered a brief oral judgment dismissing the appeal. These are my reasons for so doing.

[2] The appellant, a 49 year old male, has been detained at Ontario Shores since 2007 when he was found Not Criminally Responsible on account of Mental Disorder (“NCR”) on the charge of First Degree Murder.

[3] The appellant was diagnosed with paranoid schizophrenia and was treated with antipsychotic medication. He was determined to be incapable of consenting to treatment on February 1, 2007. Whilst taking the antipsychotic medication, his symptoms and behaviour significantly improved. In the year leading up to the CCB hearing, the appellant’s medication was modified as a result of side effects caused by his original medication. The new medication was seen to be largely successful.

[4] In December 2014, the appellant stopped taking his medication and his mental health worsened. He began to sleep less, suffered from increased persecutory and grandiose delusions, and became obsessed with his body weight. He requested a CCB hearing to reverse the finding of incapacity. On December 22, 2014, the Board rejected his arguments and upheld the finding of incapacity. Consequently, the appellant appealed to this court.

[5] The appellant was self-represented but was assisted by counsel, Ms. Joanna Weiss, in making submissions to the Court. Very helpfully, Ms. Weiss also prepared and filed a factum and motion record in advance of this hearing.

[6] The main grounds of appeal put forward are that:

(a) the Board made an error in law when applying the test for incapacity by requiring that the appellant agree that he suffered from a mental illness at the time of the hearing;

(b) the Board misapprehended evidence relating to the appellant’s condition and, as a result, there was insufficient evidence for him to be found incapable of consenting to treatment; and,

THE LEGAL PRINCIPLES

The Statutory Provisions

[7] The HCCA governs the CCB’s determination of incapacity through two separate sub-sections. Section 10(1) of the HCCA 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.

[8] Section 4 of the HCCA defines capacity in the following way:

(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 of Review

[9] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, the Supreme Court both the majority and dissent agreed, 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. Chief Justice McLachlin, dissenting, but not on this point, held at para. 5 that “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.” See also Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481 at para. 33.

[10] In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 at para. 55, [2008] 1 S.C.R. 190, Bastarache and Lebel JJ., writing for the majority of the Court, made clear that deference is owed to the decision makers at the tribunal level, particularly those that make up a tribunal of specialized experts. See also: Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748. At para. 47, Bastarache and Lebel JJ. 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 further noted 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.

The Test for Capacity

[11] In Starson, the Supreme Court observed that the HCCA presumes a person is capable to decide to accept or reject medical treatment and noted that that presumption is displaced only by the requisites of s. 4 and its two criteria.

[12] 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 when determining capacity under the HCCA. Corroboration is necessary pursuant to 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.”

DID THE BOARD MISAPPLY THE TEST FOR INCAPACITY?

[13] The first limb of the HCCA test was never in dispute at the hearing. The appellant was clearly able to understand the information relevant to making a decision about treatment. The central issue facing the Board therefore was on the second limb: whether the appellant could appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment.

[14] The argument put forward by Ms. Weiss is that the Board misapprehended, dismissed, and ignored evidence that was relevant that question. Additionally, Ms. Weiss argues that the CCB misapplied the Starson test by requiring the appellant to agree that he had a mental illness.

[15] I reject these submissions. The CCB identified that it was not enough for the appellant to simply disagree with the respondent’s diagnosis. The CCB’s decision is clear that the finding of incapacity was based not only the appellant’s denial of his condition but on a denial of the symptoms or manifestations caused by that condition. This finding was fully supported by the evidence.

[16] The following list of documents describe examples of the appellant’s denial of his illness and its symptoms, his refusal to take medication, and the negative impact that resulted from that refusal.

(i) In a progress report made by the respondent [date], it was noted that when the appellant was encouraged to take the prescribed medication, clozapine, he denied that he had a mental illness and retorted that “he won’t take it”. Upon further encouragement, he responded: “what are you going to do hold me down?”

(ii) In the same progress report the appellant was noted as being “increasingly irritable” since stopping clozapine.”

(iii) The progress note dated December 9, 2014 records the appellant as refusing to start clozapine since December 3, 2014 and refusing to meet with the respondent.

(iv) The progress note dated December 9, 2014 describes the appellant as exhibiting “a notable deterioration in mental state with prominent thought blocking, expansive and elevated affect, inappropriate smiling and laughter not congruent with content of thought, which included persecutory delusions and thoughts of him mother having dementia and being in hospital.” The appellant is further noted as continuing “to have no insight into illness and need for treatment”. On that date, it was also noted the appellant was refusing to take clozapine

(v) In a psychiatric note dated December 17 [year], the appellant is observed to be further deteriorating whilst off clozapine and noted as being “overtly psychotic” with “increasing delusional expression”. On the very same day he refuses to restart clozapine and informs the respondent that, if he was found incapable of consenting, he would not take the medication and further, that “you’ll have to pin me down, because I won’t take it”.

(vi) On December 19 [year], the appellant was recorded as believing that Jennifer Grundy, a registered nurse and the author of a psychosocial report, could be “commanded” into helping him “get outta here”.

[17] In addition to the appellant’s documented history, the Board also had the benefit of the respondent’s viva voce testimony. The respondent testified that:

(i) She noticed that when the appellant stopped taking his medication, there was “a rapid deterioration in his presentation”.

(ii) The appellant had begun to write a volume of text that he described as “his story regarding his persecutory delusions”. This was a “marker” of a deterioration in his mental health.

(iii) When the appellant was on treatment, he was able to engage in vocational activities and focus on things other than his delusions.

(iv) The appellant denied his illness and felt that his story regarding his symptoms would prove to be correct.

(v) The appellant had continuously refused to take his medication.

(vi) The appellant had the ability to understand the information relevant to making a decision but did not have the capacity to appreciate the reasonably foreseeable consequences of a decision to refuse or accept treatment because he had no insight into his illness and therefore did not believe he would benefit from treatment.

(vii) The appellant did not “feel he’s going to deteriorate” due to the cessation of treatment because “he doesn’t feel he has ever said or acted in any way suggestive of psychosis”.

[18] These observations, amongst others, formed the basis for her conclusion that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack thereof with respect to treatment. In combination with the aforementioned documentary evidence, this evidence constituted compelling proof of the appellant’s incapacity.

[19] If the appellant was found to be incapable of foreseeing the consequences of a decision regarding the proposed antipsychotic medication, it was implicit in that decision that the appellant could not be capable of appreciating the consequences of a decision or lack of decision regarding the side effects of a medication he did not feel that he required.

[20] For the reasons set out above, I find the CCB’s decision to be reasonable.

DID THE BOARD PROVIDE SUFFICIENT REASONS?

[21] The appellant also submits that the Board’s reasons were insufficient in law. An administrative tribunal is under an obligation explain its decision to the parties and provide reasons that enable meaningful appellate review: Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3d) 210. The law obliges the decision maker to demonstrate “why” it came to the decision that it did, rather than simply set out “what” the decision was: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.

[22] In Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Supreme Court of Canada analysed a tribunal’s obligations when giving reasons. The tribunal is not under an obligation to explain each and every part of its decision. Nor does it need to point to each individual piece of evidence that formed the basis for its conclusion. Even if the reasons do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. Importantly, at para. 18, the Court approved the principle that reasons “are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties submissions and the process.”

[23] Although the reasons given in this case are far from perfect, when looked at in the context of the evidence, the parties’ submissions, and the process, they provide sufficient explanation to demonstrate to the parties why the CCB concluded that the appellant was incapable and facilitate meaningful appellate review.

[24] For the above reasons, the appeal is dismissed.

S.A.Q. Akhtar J.

Released: April 28, 2015

CITATION: Wright v. Coleman, 2015 ONSC 2744

COURT FILE NO.: CV-14-518920

DATE: 20150428

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRIS WRIGHT

Appellant

– and –

DR. ELIZABETH COLEMAN

Respondent

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

Wright v. Coleman, 2015 ONSC 2744

Case Summary

FACTUAL BACKGROUND

THE LEGAL PRINCIPLES

The Statutory Provisions

The Standard of Review

The Test for Capacity

DID THE BOARD MISAPPLY THE TEST FOR INCAPACITY?

DID THE BOARD PROVIDE SUFFICIENT REASONS?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2