CITATION: Masih v. Siekierski, 2015 ONSC 2877

COURT FILE NO.: CV-14-515902

CV-14-515903

DATE: 20150501

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF appeals from decisions of the Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended, and the Mental Health Act, R.S.O. 1990, c. M.7.

RE: Philip Masih, Appellant

AND: Dr. Michal Siekierski, Respondent

BEFORE: Justice Matheson

COUNSEL: Joanna Weiss, for the Appellant

Janice Blackburn, for the Respondent

HEARD: April 23, 2015

ENDORSEMENT

[1] Philip Masih appeals from two decisions of the Consent and Capacity Board dated November 4, 2014, which confirmed the appellant’s involuntary status and confirmed a finding of treatment incapacity made by the respondent Dr. Siekierski. The two appeals were heard together.

[2] At the time of the hearing before the Board in November 2014, the appellant was a 50-year-old educated man, who had been diagnosed with a schizoaffective disorder when in his 20s.

[3] Although represented by counsel, at the outset of the hearing of the appeals the appellant asked to make oral submissions. He also asked that his counsel be permitted to make oral submissions, after he was finished. Counsel to the respondent observed that this procedure was more appropriate for amicus curiae, but did not object. I granted the appellant’s request. The appellant also asked to file his notes of his oral submissions with the court. His counsel asked that they be received on the understanding that they are not submitted as fresh evidence, but as his notes. Counsel to the respondent did not object on that basis, and I received the notes on that basis. At the end of the oral hearing, the appellant asked again to make oral submissions, which I permitted.

[4] In considering the issues on these appeals, I have taken into account the appellant’s oral submissions, including on subjects about which he gave evidence at the hearing before the Board. Most significantly, I note the appellant’s submission to the effect that he does not wish to be on drugs and I note the appellant’s submissions about the side effects from his drug treatment.

Brief background

[5] The appellant has had a long history of inpatient psychiatric admissions dating back to 1987. He has had a number of involuntary psychiatric admissions, including in 1993, 1995, 1997, 1999, 2002, 2003, 2008 and 2009. He has also been the subject of a number of Community Treatment Orders, including in 2004, 2009 and 2011.

[6] The events giving rise to these appeals began with problems in 2013, leading up to a hospital admission in early March 2014. Staff at a convenience store called 911 because of the behaviour of the appellant at the store, leading to his admission to St. Joseph’s Healthcare on March 7, 2014. At the time, he was symptomatic, exhibiting psychotic features that were indicative of his illness.

[7] Since that admission, the appellant had been the subject of Certificates of Involuntary Admission, Certificates of Renewal, and also had a period of being a voluntary patient. At the time of the hearing of the Consent and Capacity Board on November 4, 2014, the appellant was the subject of a Form 4, renewing a Certificate of Involuntary Admission.

[8] On March 7, 2014, upon admission to hospital, the appellant was found to be incapable of consenting to treatment of a mental disorder. The respondent came to that same conclusion on the day before the hearing of the Board and on the date of the hearing itself.

[9] The appellant applied to the Board for a review of the finding of incapacity with respect to treatment and for a review of his involuntary status.

[10] The Board convened a hearing on November 4, 2014. It received documentary evidence and heard oral evidence from the appellant and the respondent. The appellant was represented by counsel. The Board confirmed the respondent’s finding that the appellant was incapable with respect to treatment and confirmed the appellant’s involuntary status. The appellant then brought these appeals.

Involuntary admission appeal moot

[11] I was advised during oral argument that on April 9, 2015, the appellant was discharged from hospital under a Community Treatment Order. The respondent therefore asked that the appeal regarding the appellant’s involuntary status in hospital be dismissed as moot. Counsel to the appellant took the position that even if that appeal was moot, I should exercise my discretion to hear the appeal.

[12] While not determinative, in other cases courts have considered appeals respecting involuntary admission/civil committal to be moot when the patient has been released from hospital before the hearing of the appeal: S.(R.M.) v. Wainberg (1997), 54 O.T.C. 79 (S.C.); Edmunds v. McMaster, [2003] O.J. No. 3586 (Div. Ct.); Nasr v. Wong, [2007] O.J. No. 5579 (S.C.); M.(K.) v. Shammi, 2012 ONSC 1102.

[13] The respondent relies on the well-established test in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, in which the Court summarized the doctrine of mootness as follows at page 353:

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. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. 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. … [Emphasis added.]

[14] In accordance with Borowksi, I have first considered whether the required tangible and concrete dispute has disappeared and the issues have become academic. This is the case here, given the appellant’s discharge from hospital. The appellant is no longer the subject of an involuntary admission/civil committal. At present, there is no live controversy in this regard.

[15] I have then considered whether I should exercise my discretion to hear the case, and conclude that I should not.

[16] The appellant’s counsel submitted that the questions are not entirely academic given that the appellant continues to be treated by the respondent and receive the same or similar treatments. However, the issue before me is whether the involuntary admission/civil committal ought to have been confirmed on the date of the hearing. It is a fact-specific inquiry as of that date. The identity of the physician involved and the treatment involved are only two of the many facts potentially relevant to this appeal. And those two facts may change before any future appeal. I do not rule out the possibility that those two facts could, in an appropriate case, provide a starting point for an argument to proceed with a moot appeal. However, I do not find them sufficient in this case.

[17] The appellant’s counsel further submitted that a determination of the appeal could be of assistance in future cases generally. However, I find that the facts of this particular appeal do not provide the foundation for a compelling argument on that basis.

[18] Bearing in mind the underlying rationales for the exercise of discretion, as discussed in Borowski, I conclude that a decision on this appeal will have no practical effect on the rights of the parties and would be particularly focused on the facts of this case. The appeal from the decision of the Board that confirmed the appellant’s involuntary status is therefore dismissed as moot.

Treatment incapacity appeal

[19] There is no dispute between the parties about the legal principles that apply to this appeal, including both the legal principles that apply to the Board’s decision and those that determine the standard of review.

[20] The standard of review for questions of law is correctness. For questions of mixed fact and law, or questions of fact alone, the standard of review is reasonableness: Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 at para. 5.

[21] The issues on this appeal are factual or questions of mixed fact and law. The standard of review is therefore reasonableness. The question is whether the Board’s decision was among the range of conclusions that could reasonably have been reached on the law and the evidence before it: Starson at para. 5.

[22] The test for capacity with respect to treatment is found in section 4 of the HCCA and provides as follows:

4(1) A person is capable with respect to a treatment… if the person is able to understand the information that is relevant to making a decision about the treatment… and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[23] A person is presumed capable with respect to treatment. The onus of proving incapacity is on the person alleging it. Further, capacity can fluctuate over time – the relevant time is the time of the hearing: Starson at para. 118.

[24] In considering capacity, it is appropriate for a Board to consider whether or not the patient appreciates that he or she is affected by the manifestations of a mental condition. As set out in Starson at para. 79, per Major J.:

[I]f the patient’s condition results in [the patient] being unable to recognize that [the patient] is affected by its manifestations, [the patient] will be unable to apply the relevant information to [the patient’s] circumstances, and unable to appreciate the consequences of [his or her] decision.

[25] The second branch of the test for capacity – the ability to appreciate the reasonably foreseeable consequences of the decision or lack thereof – is not met where the person is unable to apply the information about the proposed treatment to his or her own situation: Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (C.A.) at pp. 314-15.

[26] In this case, the Board confirmed a finding that neither branch of the test for capacity had been met. Counsel to the appellant submitted that the Board erred in regard to both branches of the test, erred with respect to the scope of treatments covered by the finding of incapacity and erred in failing to have before it sufficient corroborative evidence.

First branch of s. 4 test

[27] With respect to the first branch of the test, the Board confirmed that the appellant’s condition resulted in him being unable to understand the information that is relevant to making a decision about the treatment as at the date of the hearing. Counsel to the appellant submits that this was, in the words of the respondent, “debatable” on the date of the hearing.

[28] The appellant relies upon the respondent’s own testimony before the Board, where he began his answer to a question from the Board about the appellant’s ability to understand as at the date of the hearing by saying: “I don’t know because…”. The respondent’s full answer, and relevant follow-on evidence, was as follows:

I don’t know because at times [the appellant] is able to receive some information and let’s keep in mind that he is an incredibly intelligent and well informed man. [The appellant] when he is settled knows everything about metabolic risks of medications and tardive dyskinesia and stiffness and tremor and everything else, he’s incredibly well informed but when he’s less well he loses that ability, he loses his ability to communicate, he loses his ability to receive information so I think that part fluctuates so in my opinion he would fail the first part of the test.

[Board member]:

As of today?

[Respondent]:

Yes because my understanding is that one has to be able to relatively consistently maintain that ability over time, I don’t know if I am being clear on this.

[Board member]:

Over what period of time?

[Respondent]:

Right but if he is sometimes able to receive information and sometimes not then I have to conclude at the end of the day that he fails that part of the test. What length of time? Hours to days, we’re not talking weeks. He will have periods of time when he becomes agitated when absolutely nothing gets through to him and he’s not able to receive any information.

[Board member]:

As of today, November 4th, is it your view that in his current condition, [the appellant] is unable to receive information, process information, understand and recall information?

[Respondent]:

In a consistent manner? I would say yes he is unable.

[Board member]:

And that information relates to the treatment of a mental disorder.

[Respondent]:

And relates to him making decisions about his treatment of his mental disorder. The second part of the test I think is where the emphasis really should be. … [Emphasis added.]

[29] In final submissions, the respondent put it this way:

Whether [the appellant] passes the first part of the test we heard is debatable but there is absolutely no doubt about the fact that he fails the second part of the test for capacity as outlined in Starson. [Emphasis added.]

[30] The evidence of the respondent is obviously problematic. An opinion from the respondent that the appellant was incapable with respect to treatment was required under s. 10(b) of the HCCA. The opinion must be confirmed as of the date of the hearing. This must be established on the civil standard of a balance of probabilities, based upon unequivocal evidence: Starson at para. 77, Gligorevic v. McMaster, 2012 ONCA 115 at para. 60. The respondent’s evidence was not unequivocal, and I do not find sufficient other evidence before the Board to address this frailty.

[31] Counsel to the respondent submitted that there must be a recognition that sometimes an individual’s ability to understand may fluctuate rapidly. That may be so, but the respondent’s evidence failed to adequately address the appellant’s ability on the date of the hearing. Instead he spoke generally, beginning with the statement that he did not know, and submitting at the end of the hearing that the matter was debatable. His evidence did not meet the requirement for proof on a balance of probabilities based upon unequivocal evidence. While the Board was entitled to also have regard for the appellant’s evidence, and did so, that evidence did not fully address the uncertainty regarding the first branch of the test.

[32] Based on the record as a whole, I conclude that the Board’s finding regarding the first branch of the test was not reasonable.

Second branch of s. 4 test

[33] With respect to the second branch of the test, counsel to the appellant first relied on the fact that at the hearing the appellant did not deny having a mental condition. However, more specifically, the appellant did not say anything about a mental condition one way or the other. He mentioned only physical conditions.

[34] Appellant’s counsel further argued that the Board set too high a standard for the second branch of the test, requiring that the appellant realize he was ill, realize he would benefit from treatment and accept the proposed treatment in order to satisfy the test. I do not agree that the Board imposed this standard.

[35] As set out in the Board’s reasons for decision, the Board asked the right question and articulated the correct legal test. In doing so, the Board quoted from the leading decision in Starson, and applied the correct principles to the evidence before it. The Board properly distinguished between the appellant’s ability to appreciate the consequences of a decision or lack of decision about treatment, and his actual appreciation of those consequences. The Board focused on ability, and accepted the respondent’s evidence that the appellant could not appreciate the consequences of a decision about treatment.

[36] The Board accepted the evidence that the appellant was unable to appreciate the benefits of treatment though he did appreciate the risks of treatment. However, to meet the second branch of the test, the appellant must be able to weigh not just the foreseeable risks but also the benefits of the treatment: Starson at para. 78.

[37] The Board found that the appellant’s lack of insight prevented him from recognizing his behaviours as being symptoms or manifestations of a mental disorder and from being able to apply information about treatment to his own condition. The Board’s decision was amply supported by the evidence, with one exception regarding benzodiazepines.

Issue regarding benzodiazepines

[38] The Board confirmed incapacity with respect to the following treatments: antipsychotic medication, mood stabilizing medication, benzodiazepines and related side effect medication and lab tests. Counsel to the appellant submitted that the Board erred in confirming benzodiazepines (as well as side effect medication and lab tests relating to benzodiazepines).

[39] The appellant’s position is founded on the dearth of evidence before the Board about benzodiazepines in particular. And there is a dearth of evidence. The respondent testified that he attempted to discuss this drug with the appellant, and, in response to a question from the Board, the respondent confirmed that he discussed the risks and benefits of the drug with the appellant. That was the extent of the evidence. There was no evidence put forward about the substance of those discussions. There was no evidence put forward about the actual benefits and risks and expected consequences of that particular treatment. Some evidence of the benefits and risks and expected consequences is required: Anten v. Bhalerao, 2013 ONCA 499 at para. 23.

[40] The respondent relies upon s. 23 of the HCCA, which addresses the use of ancillary medications when a finding of treatment incapacity is made with respect to a primary treatment. However, the dearth of evidence leaves no foundation for concluding that benzodiazepines would properly be described as ancillary to the other treatments.

[41] I therefore conclude that there was insufficient evidence based upon which the Board could reasonably confirm incapacity in relation to benzodiazepines (and related side effect medication and lab tests relating to benzodiazepines).

Issue regarding corroboration

[42] Counsel to the appellant also argued that the evidence of the respondent regarding treatment incapacity was not sufficiently corroborated. There is no dispute that s. 14 of the Evidence Act, R.S.O. 1990, c. E.23 applies. It requires as follows:

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

2. A patient in a psychiatric facility. [Emphasis added.]

[43] Counsel to the appellant contends that there was insufficient corroboration of the respondent’s testimony at the hearing before the Board. However, in this case, the Board also had the testimony of the appellant and had documentary evidence. The question is whether that further evidence is sufficient to meet the requirements of s. 14.

[44] In an appropriate case, a physician’s evidence can be corroborated by the patient’s evidence: Anten at para. 30. It may also be corroborated by hearsay, which is admissible before the Board, provided that there is some basis for finding that the evidence is sufficiently reliable: Anten at para. 32.

[45] I agree with the respondent’s submission that the need for corroboration does not require a second opinion from another psychiatrist covering the same ground as the respondent’s opinion. To impose such a requirement would be inconsistent with s. 10 of the HCCA, which only requires the opinion of one healthcare practitioner.

[46] In this case, the Board found that the appellant’s own testimony supported certain evidence of the respondent. In addition, and significantly, the Board had before it documentary evidence that provided corroboration. The documentary evidence included clinical progress notes of other medical professionals setting out the circumstances of the appellant’s admission in March of 2014, including the appellant’s presentation. The evidence also included a CCB summary from 2013 that set out, in detail, the appellant’s history including when his psychosis began, his admissions to hospital and his treatment history, prepared by another psychiatrist. The evidence further included a social work assessment and discharge summary from 2009 that further confirmed the appellant’s medical history. The above documents also record the opinion of another psychiatrist regarding incapacity with respect to treatment that is consistent with the opinion of the respondent, though at an earlier time period. I find that this documentary evidence is sufficiently reliable given the authors of the documents and the purposes for which the documents were prepared.

[47] The above documentary evidence presents a consistent history from the initial diagnosis through to the hospital admission relevant to this appeal, and provides the necessary corroboration of the respondent’s evidence. This does not change my conclusion on benzodiazepines, however, since there was insufficient evidence from the respondent regarding that treatment to begin with.

Conclusion regarding s. 4

[48] Capacity is determined through the satisfaction of both parts of the two-part test in s. 4. I have concluded that the Board erred with respect to the first branch of the test; however, that is insufficient to grant this appeal. The appellant must prevail with respect to both branches. He has done so, but only with respect to benzodiazepines and related side effect medication and lab tests.

[49] In that one part of the appeal, the appellant succeeded due to a lack of evidence, not because, on the evidence, the Board ought to have concluded that he was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to that treatment. In the circumstances, I conclude that the appropriate order pursuant to s. 80(10) of the HCCA is to have that part of the Board’s confirmation returned to the Board for a re-hearing.

Disposition

[50] The appeal from the decision of the Consent and Capacity Board dated November 4, 2014 that confirmed the appellant’s involuntary status is dismissed as moot.

[51] The appeal from the decision of the Consent and Capacity Board dated November 4, 2014 that confirmed the appellant’s treatment incapacity is granted in part, as follows:

(1) the appeal with respect to antipsychotic medication and mood stabilizing medication, and related side effect medication and lab tests, is dismissed; and,

(2) the appeal with respect to benzodiazepines and related side effect medication and lab tests is granted ˗ this matter shall be returned to the Board for a re-hearing.

[52] No costs were sought and none are awarded. I thank both counsel for their able written and oral submissions.

Justice Matheson

Date: May 1, 2015