Wakeling v. Kolla, 2015 ONSC 2765
COURT FILE NO.: CV-14-516741
DATE: 20150430
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW WAKELING
Appellant
– and –
DR. NATHAN KOLLA
Respondent
Darcy Hiltz, for the Appellant
Kendra Naidoo, for the Respondent
HEARD: April 15, 2015
S.A.Q. akhtar j.
FACTUAL BACKGROUND
Introduction
[1] The appellant is a 31-year-old man of no fixed address. He is currently detained at the Centre for Addiction and Mental Health (“CAMH”) having been found not criminally responsible (“NCR”) on July 3, 2014 of the offences of Criminal Harassment and Assault. He has a criminal record dating back to 2006 and a psychiatric history that includes various diagnoses of paranoid schizophrenia and schizoaffective disorder. The Consent and Capacity Board (“CCB”) has found him incapable of consenting to treatment on prior occasions.
[2] Before being found NCR, the appellant had been exhibiting signs of mental illness such as pressured speech, psychomotor agitation, and illogical thought content. He denied experiencing symptoms of auditory hallucinations and paranoia. After the NCR finding, the appellant was diagnosed with schizoaffective disorder. After admission to CAMH, the appellant continued to display further symptoms indicative of a mental disorder. Examples included irrational thoughts and expressions of belief that his parents had placed a mind-altering substance in his shoes. He also asserted that playing “fake songs” on his guitar and “a deep line on his wedding finger” would affect his sex drive. His previous symptoms of psychomotor agitation and pressured speech also returned. The appellant continued to deny his mental disorder or its symptoms and refused to take medication.
[3] Dr. Scott Woodside, who examined the appellant on August 15, 2014, noted that these symptoms were concerning. In a progress note of the same date, Dr. Woodside raised a query that the appellant might be “incapable re: treatment”. The appellant was consequently placed in the respondent’s care. The respondent examined him to determine whether he had the capacity to consent to treatment. Throughout his interactions with the doctors at CAMH, the appellant continued to deny that he was suffering from a mental illness. The information provided to the CCB at the hearing reveals that although the appellant complied with treatment on previous occasions, he was unaware of what symptoms the prescribed medication was intended to treat. Throughout his dealings with the respondent, the appellant continued to deny his illness and need for treatment. On October 27, 2014, the respondent, working from the patient’s history and progress notes, concluded the appellant was incapable of consenting to treatment. The appellant appealed that finding to the CCB on November 16, 2014.
The Board’s Decision
The CCB made the following findings:
(a) The appellant did not believe that he was suffering from a mental illness and therefore felt he did not require medication.
(b) The appellant’s symptoms included paranoid delusions, auditory hallucinations, and manic symptoms.
(c) The appellant’s failure to accept that he suffered from a schizoaffective disorder or its manifestations meant that he was unable to appreciate the consequences of a decision to refuse medication.
The Appeal Issues
[4] The appellant appeals on three bases:
(1) the CCB misunderstood and/or misapplied the test for capacity to consent;
(2) the CCB’s decision was not supported by the evidence and was unreasonable in the circumstances; and,
(3) the reasons given by the CCB were insufficient.
[5] The third ground of appeal was first raised by counsel for the appellant in oral argument.
THE LEGAL PRINCIPLES
The Statutory Provisions
[6] The Health Care Consent Act 1996, S.O. 1996, c. 2, Sch. A (“HCCA”) governs the CCB’s determination of incapacity through two separate sub-sections.
[7] 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] Capacity is defined in s. 4 of the HCCA as follows:
- (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 Starson Test
[9] The leading case on capacity to consent is the Supreme Court of Canada decision of Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. At para. 79 of that decision, Major J., writing for the majority of the court, explained 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.]
[10] In the same paragraph, Major J. added:
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.]
[11] At para. 77, Major J. made clear that “[t]he Board must avoid the error of equating the presence of a mental disorder with incapacity” and that “[t]he presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act.” As set out in s. 4 of the HCCA above, to be “capable” an individual must be able to both “understand the information that is relevant to making a decision about the treatment” and “appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
[12] In applying the test for capacity, the Ontario Court of Appeal emphasized the need for corroboration of the respondent’s opinion: Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370. The significance of corroboration follows from 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.”
The Standard for Review
[13] In Starson, both the majority and the dissent agreed that the standard of review for CCB 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. At para. 5, McLachlin C.J., dissenting but not on this point, held 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., Starson, para. 84.
[14] 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 afforded administrative tribunals “a margin of appreciation within the range of acceptable and rational solutions.” The inquiry on review is into whether “the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” A decision falling within the aforementioned range is a reasonable decision.
APPLICATION OF THE PRINCIPLES
- Did the CCB apply the Correct Test?
[15] The appellant argues that the CCB erred by requiring the appellant to agree that he suffered from a mental condition. He relies upon para. 79 of Starson, quoted above, to support his position.
[16] I reject this argument. I accept that a patient is not required to agree that he or she is suffering from a particular mental illness. However, although not determinative, the recognition of an illness or disorder remains a relevant consideration. As the passage in Starson quoted by the appellant indicates: “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”. Further, “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” (emphasis added).
[17] At para. 81, Major J. explained that the CCB was under a duty to inquire into the reasons for the patient’s failure to appreciate consequences. That inquiry inevitably leads to questions and conclusions about whether the patient believed he was mentally ill and whether that belief might be the reason that he or she failed to appreciate the consequences of a decision to take medication.
[18] The CCB quite appropriately explored this topic. It did not base its decision on the appellant’s beliefs about his condition, but rather upon his failure to recognize the existence of his condition and its manifestations. In its reasons, at page 6, the CCB commented:
Since AW is unable to see that he suffers from schizoaffective disorder or its manifestations, he cannot appreciate that his behaviour is caused by this disorder and that its manifestations affects his ability to function stably in society. He is unable to appreciate the reasonably foreseeable consequences of a decision to refuse medication. The manifestations of his mental disorder prevent him from gaining sufficient insight into his condition. His denial of his illness and its manifestations in spite of ample evidence to the contrary is not based on rational grounds it is a product of his illness. When the evidence shows that a person continually does not appreciate the consequences of a decision, the only plausible explanation for such lack of appreciation must be that there is a lack of ability to so appreciate.
[19] I therefore conclude the CCB did not err in its application of the test.
- Was the CCB’s Decision Unreasonable?
[20] The appellant submits that the CCB decision was unreasonable and unsupported by the evidence at the hearing. By way of example, he points to the fact that the CCB based its conclusion upon the appellant’s “paranoid delusions, auditory hallucinations and manic symptoms”, notwithstanding that there was insufficient evidence of any of these items.
[21] I disagree. Although the CCB did not identify the particular symptoms and the source for their information in its reasons, there was a wealth of documentary evidence before it to support that conclusion. I list a number of examples below:
• On January 12, 2014, after the appellant’s admission into hospital, he was diagnosed with paranoid schizophrenia. This diagnosis was noted in a number of reports authored by Dr. Srinivasan and Dr. Iosif.
• In a report dated February 10, 2014 and authored by Dr. A Macdonald, the appellant was observed to be “disorganized, vague, contradictory and not infrequently extremely evasive”. Dr. MacDonald concluded that the appellant was suffering from paranoid schizophrenia and was attempting to mask his symptoms. It was agreed that the appellant was not taking any medication at the time of this assessment.
• At the CCB hearing the respondent testified that:
o his observations led him to conclude that the appellant was suffering from the psychotic illness schizoaffective disorder;
o the appellant made utterances denoting his paranoia both with respect to treatment (injection medicine) and his suspicions that his parents were trying to poison him by placing risperidone in his shoes; and
o the appellant questioned both the respondent and a resident about their intentions of harming him.
• The NCR report dated April 14, 2014, authored by Dr. Iosif contained an excerpt of a letter written by the appellant’s mother, Tina Wakeling, dated February 2, 2014. In that letter she outlined a series of disturbing incidents including urinating in bottles and defecating in plates left outside their residence. One of the items that noted on her list of “Behaviours Observed” was that the appellant was “extremely paranoid about everything and everyone….Misinterprets and sees things that are not there”.
[22] There are numerous other references to the appellant’s “paranoid delusions” contained in the reports before the CCB at the time of the appellant’s hearing. It cannot be said that there was insufficient evidence of the appellant’s symptoms.
[23] With respect to the “auditory hallucinations”, two separate witnesses indicated that the appellant had been seen talking to himself. One witness, a nurse working at CAMH, recorded, on October 27, 2014, the appellant as “speaking to himself in the lounge this weekend. Other clients became upset because they couldn’t hear the television.” Counsel for the appellant claims that this was a single uncorroborated incident that should not have been given any weight. I cannot agree. The appellant’s mother, in the “Behaviours Observed” list, referred to previously, also noted that the appellant was “constantly talking and answering himself”. In my view, the CCB was justified in relying upon this circumstance in its decision.
- The Side Effects of the Proposed Medication
[24] The appellant submits the absence of reference to the appellant’s concerns regarding the side effect of the proposed treatment rendered the CCB’s decision unreasonable. I disagree. In the circumstances of this case, the CCB did not have to address this issue as it was clear that the appellant was denying having any illness or manifestations of an illness. In these circumstances, the appellant’s concern regarding the side effect medication was subsumed into the CCB’s overall decision relating to his appreciation of the consequences of a decision regarding treatment.
- Failure to Consider the Capacity of the Appellant Under Dr. Swayze
[25] The appellant submits that the CCB erred by failing to consider Dr. Swayze’s finding of capacity (on July 31, 2014 and September 3, 2014) prior to the assessment conducted by the respondent. Once again I am unable to agree. As the appellant himself concedes, any assessment of incapacity is only relevant to the time at which it is made. Section 15(2) of the HCCA recognizes the fact that a “person may be incapable with respect to a treatment at one time and capable at another.”
[26] The respondent tailored his examination of the appellant to the question that the CCB ultimately had to decide and testified to his views on the date of the CCB hearing. That being the case, it was sufficient for the Board to rely upon the respondent’s considered conclusion that, at the time of his assessment, the appellant was incapable of consenting to treatment.
SUFFICIENCY OF REASONS
[27] During the course of oral argument, a new issue came to the fore: whether the CCB had provided sufficient reasons to support its finding that the appellant was incapable of consenting to treatment. The law relating to a tribunal’s obligations to provide sufficient reasons is well settled. In Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3d) 210, the Court confirmed that an administrative tribunal is under an obligation to explain its decision to the parties and to provide meaningful reasons for appellate review. In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada similarly explained that the reasons of a decision maker must demonstrate “why” it came to its decision, rather than merely stating “what” the decision is.
[28] 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 Court held that a tribunal is not under an obligation to explain each and every part of its decision. Nor is a tribunal required to point to each individual piece of evidence that formed the basis for its conclusion. Even if the reasons do not seem wholly adequate, the reviewing 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.”
[29] Although the reasons provided in this case are far from perfect, when looked at in the context of the evidence outlined in detail above, the parties’ submissions, and the process, I conclude the CCB provided sufficient explanation to demonstrate to the parties why it concluded that the appellant was incapable of consenting to treatment within the meaning of the HCCA.
[30] For the above reasons, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: April 30, 2015
COURT FILE NO.: CV-14-516741
DATE: 20150430
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW WAKELING
Appellant
– and –
DR. NATHAN KOLLA
Respondent
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.