Armstrong v. Coleman, 2015 ONSC 2919

COURT FILE NO.: CV-14-515305

DATE: 20150512

SUPERIOR COURT OF JUSTICE – ONTARIO

AND IN THE MATTER OF an appeal from a decision of the

Consent and Capacity Board

Pursuant to the Health Care Consent Act, 1996

S.O. 1996, chapter 2, schedule A,

as amended

AND IN THE MATTER OF

LUKE ARMSTRONG

A patient at the

ONTARIO SHORES CENTRE FOR MENTAL HEALTH SCIENCES

WHITBY, ONTARIO

B E T W E E N: Luke Armstrong, Appellant

AND:

Dr. Elizabeth Coleman, Respondent

BEFORE: Mr. Justice Glustein

COUNSEL: Anita Szigeti, for the Appellant

Melanie De Wit, for the Respondent

HEARD: May 4, 2015

Endorsement

Nature of appeal and overview

[1] The appellant, Luke Armstrong (“Armstrong”), appeals from the decision of the Consent and Capacity Board (the “Board”), dated October 27, 2014, with reasons, dated November 12, 2014 (the “Reasons”), that Armstrong was incapable of consenting to treatment with respect to antipsychotic medication (oral and intramuscular) under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the “Act”).

[2] The respondent, Dr. Elizabeth Coleman (“Dr. Coleman”), has been Armstrong’s attending psychiatrist since his admission to Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”). On September 3, 2014, Dr. Coleman found Armstrong incapable of consenting to treatment with antipsychotic medication. Armstrong requested a Board hearing to review Dr. Coleman’s decision.

[3] For the reasons that follow, I dismiss the appeal. The Board’s decision was among the range of conclusions that could reasonably have been reached on the law and evidence.

Facts

a) Background

[4] In November 2010, Armstrong was found not criminally responsible of a second degree murder charge relating to the stabbing death of his mother in April 2010 (the “index offence”). He has been detained on a secure forensic unit at Ontario Shores since January 2013 after he was transferred from Waypoint Centre for Mental Health (“Waypoint”). Armstrong will remain under the jurisdiction of the Ontario Review Board (“ORB”) until such time as he no longer poses a significant risk to the safety of the public and receives an absolute discharge from the ORB.

b) Evidence before the Board

[5] I summarize the evidence before the Board.

i) Review of evidence from index offence until admission at Ontario Shores

[6] After the index offence, and prior to his arrival at Ontario Shores in January 2013, Armstrong was assessed by several psychiatrists. His initial diagnosis was “Psychosis Not Otherwise Specified” and was later changed to drug-induced (also referred to as “substance-induced” or “cannabis-induced”) psychosis.

[7] During his initial assessment period at Waypoint (formerly known as Oak Ridge), Armstrong received a series of ten intramuscular injections of antipsychotic medication for “detain and restrain” purposes.

[8] Before his discharge to Maplehurst Detention Centre on July 20, 2010 (where he stayed until December 2010), Armstrong was not receiving antipsychotic medication. He received a very low dose of antipsychotic medication (which Armstrong’s counsel describes as “akin to a sleeping aid”) at the detention centre, but the order was discontinued in November 2010 as it was most often refused.

[9] No psychiatric medications were prescribed for Armstrong at Waypoint after his return from jail, during his two years following his return from jail, nor upon discharge to Ontario Shores. On discharge from Waypoint, his diagnosis was that “his presentation seemed most consistent with a drug-induced psychosis, as opposed to a primary psychotic disorder”.

ii) Dr. Coleman’s evidence before the Board about Armstrong’s mental condition at Ontario Shores

[10] Upon admission to Ontario Shores, Armstrong was not receiving any medication since the transfer information was that he was capable of consenting to treatment.

[11] Dr. Coleman has treated Armstrong since his admission to Ontario Shores in January 2013.

[12] Dr. Coleman gave the following evidence that Armstrong still exhibits psychotic symptoms. Dr. Coleman’s evidence was that:

(i) Morgan “does have a lot of beliefs regarding conspiracy theories and unusual connections which means businesses controlling monetary value of the public, but whenever we try to explore these in depth, he just refers me to research the knowledge that he knows rather than having a discussion about it, and tells me, ‘We can’t have a discussion until you do the research that I’ve done’ [and] it’s very difficult for me to explore that to the point of understanding if they’re fixed delusions, because he won’t allow me to go down that road”;

(ii) “He’s concealed a number of things on the unit which could be considered dangerous such as lighters”;

(iii) Armstrong believes that “there was a document that he saw that triggered his psychosis and that that was the cause [of the index offence], and he doesn’t accept that he was likely psychotic in the lead up to that experience and the interpretation of what he saw”;

(iv) Armstrong “suggested that if he doesn’t see that document again, he wouldn’t become ill again”;

(v) Armstrong has been “aggressive to staff when they … check on him, and verbally abusive at those times”;

(vi) While his continuing illness was not evident at times, at times it was more evident to caregivers;

(vii) In prior group therapy, Armstrong was “disruptive or argumentative or disregards or just doesn’t go”;

(viii) Armstrong “twice concealed an internet stick on the unit which he knows is against policy”;

(ix) “Sometimes he has quite a fatuous affect and he will … behave in a way that appears disinhibited, have a bit of an elated affect at those times. His thought form is not as coherent as it is at other times”;

(x) He is “extremely guarded and refuses to allow myself or any other member of the team to really explore his mental state to any extent”;

(xi) Armstrong continues to have psychotic symptoms, but when Dr. Coleman seeks to explore those issues with Armstrong, “he will answer a question with a question, he will defer the subject, he will suggest I go and research the topic, but he won’t answer my questions directly”;

(xii) “Similarly, when we try to explore the index offence and the symptoms at depth, he is guarded, he will defer from answering questions, he’ll change the topic or say he has nothing else to say on the matter. So it’s incredibly difficult to explore what I suspect are ongoing psychotic symptoms”;

(xiii) Armstrong was guarded before being told of Dr. Coleman’s decision that he was incapable of consenting to his treatment;

(xiv) “[T]here’s guardedness about issues around conspiracy theories and some odd ideas that the teams are unable to explore in depth”;

(xv) “There are concerns he may have ongoing or fluctuant psychotic symptoms at times, that he’s able to keep under the obvious radar because of his ability to recognize that when we’re asking about those, we’re looking to explore the degree of those beliefs and whether they’re delusional or not. He often shuts down and will not let us explore that”;

(xvi) Armstrong has beliefs about conspiracies;

(xvii) The discussions of conspiracy theories predate Dr. Coleman’s decision of incapacity for consent to treatment with antipsychotic medication;

(xviii) He has “delusional ideas that he believes are true rather than delusions”; and,

(xix) Armstrong has been “reviewing sites about conspiracy theories that would, to me, suggest that there have been relations to [those] themes and his preoccupation with those themes”.

iii) Dr. Coleman’s evidence before the Board about her decision that Armstrong did not have capacity to consent to treatment with antipsychotic medication

[13] Upon his admission to Ontario Shores and up to the June 2014 ORB hearing, Dr. Coleman’s diagnosis was that Armstrong had substance-induced psychosis.

[14] During the course of her treatment, Dr. Coleman questioned Armstrong’s “capacity with regards to consenting to treatment and an understanding of his illness and the possible consequences of a decision to take treatment and not to take treatment”.

[15] Dr. Coleman’s evidence was that she had considered whether that diagnosis was accurate before the ORB hearing, given that the conduct described at paragraph 12 above continued to exist without any substance-induced cause.

[16] Dr. Coleman’s evidence was that “sometimes these diagnoses change with time and with physician and with treatment team on the review of the information”. Her evidence was that:

As we got to know Mr. Armstrong better and slowly with time, it’s been a fluctuating issue that’s come up on a regular basis as to whether Mr. Armstrong has capacity with regards to consenting to treatment and an understanding of his illness and the possible consequences of a decision to take treatment and not to take treatment.

[17] Dr. Coleman stated that her decision was:

…also based on the fact that he has ongoing subtle symptoms that I think are also psychotic in nature and they have been through the record, over time. He’s also shown lability of mood, some unusual thoughts. He’s also had some thought disorder symptoms that have waxed and waned. He’s described odd comments and unusual ideas that haven’t been able to be fully explored, and that’s been a flavour throughout time, subsequent to that period when he was floridly psychotic, and I think that adds to the diagnosis. I don’t think that it’s only, solely based on the short period of time after the index offence.

[18] At the ORB hearing, the panel questioned Dr. Coleman about why her diagnosis remained substance-induced psychosis. Dr. Coleman’s evidence was that:

Following his most recent Ontario Review Board this summer, discussion was raised reviewing his diagnosis. Often diagnoses change with time in individuals who have mental health difficulties, because only in retrospect can you apply certain criteria for diagnoses.

During that hearing, it became clear that Mr. Armstrong actually met the criteria for a diagnosis of schizophrenia rather than drug-induced psychosis. That was some of the discussion held at the Ontario Review Board. As well, the discussion of capacity was raised. It was clearly documented that over time, he didn’t recognize that he suffered from a primary psychotic illness that is recurrent.

So following this Review Board, we again endeavoured on the short period of education with Mr. Armstrong, to no avail, and eventually I … had a meeting with him on the 3rd of September, which I went through the criteria very clearly and at length, and found him incapable of consenting to treatment.

[19] After the ORB hearing, Dr. Coleman decided that Armstrong was incapable of consenting to treatment. Her evidence was that she was concerned that if Armstrong had “less structure” outside Ontario Shores then “he may become more openly and floridly psychotic to the point where his risk would increase so that he would engage in violence again”.

[20] At Dr. Coleman’s meeting with Armstrong on September 3, 2014, she “went through with him … the reasons for the diagnosis, the clinical documents that suggest the support for that diagnosis, the nature of the diagnosis and why we felt that was the most appropriate diagnosis and why there was more evidence. The reasons why we didn’t agree with the initial diagnosis of a drug-induced psychosis, I also explained to Mr. Armstrong”.

[21] Dr. Coleman’s proposed treatment (as she stated to the Board) was “antipsychotic medication in either an oral or injection form”.

[22] Dr. Coleman met with Armstrong to review the decision and “talked about a number of benefits I thought Mr. Armstrong would have with the treatment” since “he would become more open, and then as a result his insight would improve because he would recognize that change. We’d then be able to work towards a relapse prevention plan and he would be more engaged with the treatment team” and “the [reduction of] risk of relapse or significant worsening in symptoms is … of huge benefit to Mr. Armstrong and his progress forward”.

[23] Dr. Coleman added that with treatment:

(i) I think there would be a lessening of his guardedness in response to his engagement with the treatment team;

(ii) he would become less fixed in his views about conspiracy theories and I think that would show an improvement in his delusional ideas [which would] hopefully show him some insight into the nature of his psychotic symptoms;

(iii) I think he would then engage more meaningfully with the team and his rehabilitation, which he’s not engaged in thus far; and,

(iv) very importantly, it would reduce the risk of relapse of his psychotic illness, which is associated with a reduction in his risk of harm to others … his risk will only be managed in a competent way with treatment with antipsychotic medication and only in this way can we manage the risk he poses to the community and safely progress him through the system.

[24] At the September 3rd meeting in which Dr. Coleman advised Armstrong of her decision and the proposed treatment, Dr. Coleman’s evidence was that the benefits and risks of treatment were fully discussed. She said that Armstrong understood the information about the treatment but was not capable of applying that information to himself:

We then went through, at length, the various benefits of treatment and risks, further to support that. He met with the unit pharmacist, who also engaged with him on a one-to-one basis to discuss the risks and benefits of treatment and we further provided him with written material to supplement that information and education. Despite all of this, he still remained incapable to consent to treatment.

So Mr. Armstrong is able to understand the information provided to him. He can recognize that another individual who he believes might suffer from schizophrenia would benefit from treatment with antipsychotic medication, but he does not apply that information to himself. He doesn’t accept the diagnosis. So he’s able to understand the benefits, but he doesn’t apply them to himself.

[25] Dr. Coleman gave further evidence of the necessity for treatment, and her decision that Armstrong could not apply the information he understands about the treatment to himself. Dr. Coleman’s evidence was that:

And therefore it’s my view that only with treatment can we manage that risk. I’ve had a lot of discussions with Mr. Armstrong over his time here and I’ve tried to increase Mr. Armstrong’s capacity to … understand his illness and the … implications on decisions to treat or not to treat.

And I feel that although he … is able to understand the information as it stands, he is able to talk about other people with schizophrenia, but the main struggle is applying it to himself and appreciating the nature of the benefits and consequences if he were to take treatment or not take treatment.

… [Armstrong] doesn’t recognize that he, himself, is at risk of becoming psychotic based on his history and his diagnosis.

[26] Dr. Coleman’s evidence is that Armstrong is “unable to accept the risk associated with his illness” as “he doesn’t accept that he is at risk of becoming floridly psychotic again without treatment” and “he doesn’t accept that he is at risk to others if he is to become floridly psychotic again”.

[27] When asked “what is it that gets in the way of his ability to apply the information to himself”, Dr. Coleman’s evidence was that:

Mr. Armstrong has no insight into the nature of his illness. … He refutes the possibility that he suffers from a primary psychotic illness. He only thinks … [t]he only reason [he] became ill was because he used cannabis, in his view, and he doesn’t feel he’s ever at risk of suffering a relapse.

iv) Armstrong’s evidence at the hearing

[28] Armstrong was frequently asked on cross-examination and by the Board whether he accepted that he suffered from any symptoms of mental illness. He repeatedly denied having any such symptoms.

[29] On the first occasion, when asked “do you suffer from any symptoms of mental illness today?”, Armstrong said, “I don’t believe so”, and answered, “yes”, when asked, “So you disagree with Dr. Coleman in that regard?”

[30] On the second occasion on cross-examination, Armstrong did not agree that he has symptoms of paranoia when asked “[Dr. Coleman] said that you continue to have symptoms of paranoia. Do you disagree with that?” Armstrong answered, “I wouldn’t say paranoia. It’s nothing like what I had when I was first psychotic. I mean, that was something … completely different” and “I experienced nothing within this hospital that I first experienced when I was originally psychotic”.

[31] On the third occasion in cross-examination, Armstrong said “no” when asked directly “But you have no symptoms of mental illness today?”

[32] On the fourth occasion, Armstrong had responded “sure” in response to the re-examination question of “Is it possible that you’re wrong and the doctor’s right, and you’re experiencing some symptoms of some mental health condition that’s affecting your behaviour? Is it possible?”

[33] On a follow-up question to that re-examination question, the Chair asked “Mr. Armstrong, help me understand. It’s possible. Do you believe that that is the case?” Armstrong responded “No”.

[34] Armstrong acknowledged that he had symptoms of psychosis when he reacted to sodium iodine as part of a CT scan in July 2014. He said that the first thing he did was “I talked to my … dad’s girlfriend and you know, she just told me to … relax. And it was about one a.m., so I passed right out and then I woke up and I had no more symptoms of … psychosis after that”.

[35] Armstrong said that his reaction to the CT scan was a concern to him that “this psychosis might be on the way back”. He was upset when the treatment team said that they would monitor him more closely and he saw it as a “punishment”.

[36] Armstrong’s evidence was that when he took olanzapine earlier, it might have been beneficial “because I … was psychotic at that time”.

The Decision

[37] The Board found that Armstrong did not have capacity to consent to treatment with antipsychotic medication. The Board found that while Armstrong was able to understand the information relevant to make a decision about the treatment, he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment.

[38] The Board found (Reasons, at pp. 11-13):

On a review of all the evidence the panel found that LA suffers from a mental disorder or condition as that term is used in Starson. The panel accepted the evidence of Dr. Coleman that LA suffers from schizophrenia. The symptoms that treatment providers have observed convinced the panel that LA suffers from a mental condition. We found that LA has been in a structured environment, has not tested positive for illicit drugs during the past four hears [sic] of hospitalization but continues to manifest psychotic symptoms and delusional beliefs. Although LA firmly believes that illicit drugs, and a document, with the words ‘Federal Reserve’ in its title, triggered his violent psychotic behavior, he has ignored paranoid thoughts that have emerged since he has been drug free. His guarded behaviour, labile mood, paranoid fears and delusional response to sodium iodine are symptoms of a chronic mental condition which was managed, previously, with antipsychotic medications, primarily olanzapine.

This evidence clearly demonstrated that LA lacks insight into his condition. First, he refused to acknowledge that his behaviours were symptoms of a mental illness or condition. …

His insistence that he once suffered drug induced psychosis but is no longer at risk because he is drug free, ignores the fact that despite being drug free for several years, he still harbours delusionary beliefs, paranoid fears, and labile mood. These are symptoms of a mental disorder that he refuses to acknowledge as a mental illness, or ‘condition’ as that term is used in Starson. His answers to questions indicate that he does not understand the foreseeable risks of a relapse and the violent behaviour that could result. He stated that if his delusions returned he would run to the doctor for help. However, when his delusions returned in July 2014, his first actions did not involve running to the doctor and consulting his treatment team. When he consulted them and they informed him that they would monitor him, he understood their response (to monitor the situation) to be a form of punishment.

LA remains firm in his belief that his behaviours are not symptoms of any mental disorder or condition that requires treatment. The delusional content to his beliefs have not been explored because he won’t discuss them. We found that because he denies the symptoms of a mental disorder, is unable to recognize the possibility that he is affected by that condition, he cannot apply the information he has gathered to his own situation. While he freely acknowledged the benefits of treatment to others, he thought it silly to consider it in relation to his own situation because he believed that he did not suffer any symptoms of a mental disorder. He stated that any benefits of treatment would be for the treatment team. He saw nothing in it for him.

We conclude that LA is unable to apply the relevant information about his disorder and the treatment to his circumstances. He lacks both an appreciation of the benefits and an appreciation of the risks. We found that his inability to appreciate the risks and benefits are the result of his disorder. Since he is unable to weigh the foreseeable risks and benefits of a decision to accept or reject treatment, we found that LA is incapable of consenting to treatment of a mental disorder. Accordingly, we confirmed Dr. Coleman’s finding that he is incapable of consenting to treatment.

For the foregoing reasons, the panel unanimously found that at the time of the hearing LA was incapable of consenting to treatment with anti-psychotic medications.

[Emphasis in original]

Analysis

a) The applicable law

i) The relevant legislation

[39] Section 10(1) of the Act 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.

[40] Section 4 of the Act defines 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.

ii) The standard of review

[41] The standard of review for questions of law is correctness. For questions of mixed fact and law (i.e., the application of the law to the facts before it), or questions of fact alone, the standard of review is reasonableness (Masih v. Siekierski, 2015 ONSC 2877 (SCJ) (“Masih”), at para. 20, citing Starson v. Swayze, [2003] SCC 32 (“Starson”), at para. 5).

[42] The test for reasonableness does not require the reviewing court to agree with the decision of the administrative board. In Starson, 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”, and “the fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board's conclusion” (see Starson, at para. 5; and, Wright v. Coleman, 2015 ONSC 2744 (SCJ) (“Wright”), at para. 9).

[43] McLachlin C.J. also adopted the language of Binnie J., in R. v. Owen, 2003 SCC 33, at para. 33, that “If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene” (Starson, at para. 5).

[44] The concept of reasonableness is a “deferential standard” which allows an administrative tribunal to have “a margin of appreciation within the range of acceptable and rational solutions.” 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 (Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”), at para. 55, as summarized in Wright, at para. 10).

[45] Deference is owed to the decision-makers at the tribunal level, particularly those that make up a tribunal of specialized experts (Dunsmuir, at para. 47).

[46] A decision is unreasonable only if there is no tenable line of analysis within the reasons that could reasonably lead the tribunal to a decision based on the evidence before it. The reasons are to be taken as a whole. A reviewing court may not focus on one mistake or element of the decision that does not impact upon the decision as a whole, but rather, through a somewhat probing examination, look to see whether any reasons support the decision (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 SCR 247 (“Ryan”), at paras. 47-48, 55-56).

[47] The Board is a specialized expert tribunal, which is entitled to deference on matters within its expertise, including determinations of capacity issues. The Board has heard the evidence and is in a better position to assess the credibility of witnesses and make a finding on a question of fact (I.T. v. L.L. (1999), 1999 CanLII 19918 (ON CA), 46 OR (3d) 284 (CA), at paras. 19-21).

iii) The test for capacity

[48] Section 4 of the Act sets out a two-part test for capacity to consent to treatment. A person must both be able to (i) understand the information that is relevant to making a decision, and (ii) appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[49] A person is presumed capable with respect to treatment. Capacity can fluctuate over time, but the relevant time is the time of the hearing (Masih, at para. 23, citing Starson, at para. 118).

[50] The second branch of the test for capacity – the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of treatment – is not met if the person cannot apply the information about the proposed treatment to his or her own situation (Masih, at para. 23, citing Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 OR (3d) 303 (CA), at 314-15).

[51] The patient is not required to accept the diagnosis, but must be able to acknowledge that he is affected by a mental condition. Consequently, it is appropriate for a Board to consider whether the patient appreciates that he or she is affected by the manifestations of a mental condition (Masih, at para. 24, citing Starson, at para. 79).

[52] 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 (Starson, at para. 79).

[53] A focus on “condition” refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The patient must be able to understand the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations (Starson, at para. 79).

b) Application of the law to the present appeal

[54] In the present case, there was no dispute before the Board that the first branch of the test for capacity for treatment is met. Armstrong understands the information that is relevant to him making a treatment decision.

[55] The issue before the Board was the second branch of the test for capacity for treatment – was Armstrong able to appreciate the reasonably foreseeable consequences of a decision or lack of decision?

[56] Armstrong raises several grounds of appeal. Armstrong submits:

(i) the Board required Armstrong to agree with Dr. Coleman’s “specific and newly revised diagnosis of schizophrenia”;

(ii) the Board required Armstrong to agree that he “was necessarily psychotic at the time of the hearing”;

(iii) the Board required Armstrong to agree “that anti-psychotic medication would benefit him more than it may harm him”;

(iv) the Board failed to find that the incapacity decision of Dr. Coleman was improperly influenced by the ORB as it constituted a major change in diagnosis from the index offence;

(v) the Board had no evidence before it about antipsychotic medication to be administered by injection (also referred to as “intramuscular”), so it erred by finding incapacity for such treatment or alternatively, the matter should be returned to the Board with respect to administration of antipsychotic medication by injection; and

(vi) The Reasons “are insufficient to meet [the Board’s] legal obligation to provide written reasons as to why and how it arrived at its decision to confirm the finding of incapacity”.

[57] I address each of these issues below.

i) Ground 1: Did the Board misapply the legal test for capacity?

[58] The first ground (set out at subparagraphs 56 (i) and (ii) above) is based on the submissions of Armstrong that the Board misapplied the legal test for capacity by requiring Armstrong to agree (i) with Dr. Coleman’s “specific and newly revised diagnosis of schizophrenia”, and (ii) that Armstrong “was necessarily psychotic at the time of the hearing”. I do not agree that the Board misapplied the legal test for capacity.

[59] As in Masih, “the Board asked the right question and articulated the correct legal test”. “The Board focused on ability, and accepted the respondent’s evidence that the appellant could not appreciate the consequences of a decision about treatment” (Masih, at para. 35).

[60] Finally, as in Masih, “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” (Masih, at para. 37).

[61] The Board only required that Armstrong agree that he was affected by the manifestations of a mental condition at the time of the hearing. Consequently, the Board applied the proper test.

[62] The Board applied the Starson test and held that Armstrong did not recognize that he was affected by the manifestations of a mental condition. The Board held (Reasons, at pp. 12-13:

His insistence that he once suffered drug induced psychosis but is no longer at risk because he is drug free, ignores the fact that despite being drug free for several years, he still harbours delusionary beliefs, paranoid fears, and labile mood. These are symptoms of a mental disorder that he refuses to acknowledge as a mental illness, or ‘condition’ as that term is used in Starson. His answers to questions indicate that he does not understand the foreseeable risks of a relapse and the violent behaviour that could result. …

LA remains firm in his belief that his behaviours are not symptoms of any mental disorder or condition that requires treatment. The delusional content to his beliefs have not been explored because he won’t discuss them. We found that because he denies the symptoms of a mental disorder, is unable to recognize the possibility that he is affected by that condition, he cannot apply the information he has gathered to his own situation. While he freely acknowledged the benefits of treatment to others, he thought it silly to consider it in relation to his own situation because he believed that he did not suffer any symptoms of a mental disorder. He stated that any benefits of treatment would be for the treatment team. He saw nothing in it for him.

We conclude that LA is unable to apply the relevant information about his disorder and the treatment to his circumstances. He lacks both an appreciation of the benefits and an appreciation of the risks. We found that his inability to appreciate the risks and benefits are the result of his disorder. Since he is unable to weigh the foreseeable risks and benefits of a decision to accept or reject treatment, we found that LA is incapable of consenting to treatment of a mental disorder. Accordingly, we confirmed Dr. Coleman’s finding that he is incapable of consenting to treatment.

[Emphasis added.]

[63] Armstrong’s counsel sought to rely on Armstrong’s “sure” response on re-examination when Armstrong was asked if it was possible he was “experiencing some symptoms of some mental health condition that’s affecting your behaviour”. However, the Board was entitled to consider Armstrong’s response to the re-examination question in light of all the evidence on cross-examination (and on examination by the Board) that Armstrong denied having any such symptoms.

[64] The proper legal test is whether a person can recognize that he or she is affected by the manifestations of his or her condition. There was evidence on which a reasonable Board, having heard the evidence and assessed credibility, could decide that Armstrong was not able to recognize that he was affected by the manifestations. The Board was not required to accept a “sure” answer to a general question about a “possibility” when Armstrong had on several occasions denied having any such symptoms.

[65] Further, Armstrong’s counsel points to numerous answers to her questions at the hearing as evidence that the Board’s factual findings were unreasonable. The list of evidence upon which counsel seeks to rely is extensive. However, the issue is not whether a different board may have reached a different conclusion, or that a particular factual finding of the Board cannot be supported or would not justify a finding of incapacity.

[66] A decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal to a decision based on the evidence before it. A reviewing court may not focus on one mistake or element of the decision that does not impact upon the decision as a whole, but rather, through a somewhat probing examination, look to see whether any reasons support the decision. The reasons are to be taken as a whole (Ryan, at paras. 47-48, 55-56).

[67] In the present appeal, the reasons taken as a whole demonstrate a “line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” (Ryan, at para. 55). Armstrong’s evidence, considered with Dr. Coleman’s evidence, permitted the Board to reasonably conclude that Armstrong was incapable of consenting to treatment with antipsychotic medication because he could not apply the foreseeable consequences to himself.

[68] The Board was not requiring Armstrong to accept his diagnosis of schizophrenia or to accept that he was necessarily psychotic at the time of the hearing. The Board was determining whether Armstrong understood the objectively discernible manifestations of his condition rather than the interpretation (Starson, at para. 79), and there was evidence for the Board to conclude that Armstrong did not have such an understanding.

[69] Dr. Coleman addressed the issue of whether Armstrong could “apply the benefits to himself” since he recognizes the benefits for others “but does not apply that information to himself”. The Board had evidence from Dr. Coleman that “the main struggle is applying it to himself and appreciating the nature of the benefits and consequences if he were to take treatment or not take treatment”, and that Armstrong was “unable to accept the risk associated with his illness” as “he doesn’t accept that he is at risk of becoming floridly psychotic again without treatment” and “he doesn’t accept that he is at risk to others if he is to become floridly psychotic again”. The Board was able to accept that evidence particularly in light of Armstrong’s repeated statements that he did not have any symptoms.

[70] Dr. Coleman fairly stated that Armstrong did not agree with her diagnosis, but she was not leading evidence to have the Board require that Armstrong accept her diagnosis or accept that he was necessarily psychotic at the time of the hearing. The Board considered the proper legal test, i.e., whether Armstrong could understand the objective manifestations of his symptoms. The Board found that he could not do so, based on evidence from Dr. Coleman and Armstrong. Consequently, there was evidence upon which a reasonable Board could arrive at that decision.

ii) Ground 2: The Board did not require Armstrong to accept that antipsychotic drugs would benefit him more than hurt him

[71] This analysis addresses the ground raised at subparagraph 56 (iii) above.

[72] There was evidence before the Board that Dr. Coleman discussed the risks and benefits of the treatment decision with Armstrong. Such a process is consistent with the Starson approach that “in practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made” (Starson, at para. 80).

[73] However, the Board did not require Armstrong to accept that antipsychotic medication would benefit him more than hurt him. The Board does not make treatment decisions. It only decides the issue of capacity for treatment, which is a process that starts with an explanation of the treatment but does not require a decision by the Board as to the best method of implementing the treatment.

[74] I accept the following argument as stated in the respondent’s factum:

[T]he Board does not make treatment decisions. Ultimately, it is the capable patient or the substitute decision-maker of an incapable patient who weighs the risks and benefits of a specific medication, and consents to, or refuses to consent to treatment. The side effect profile of a specific proposed medication is a relevant and often important consideration for the patient or substitute decision-maker in making a treatment decision. The Board is not called upon to weigh the side effect profile of a proposed treatment against the benefits of that treatment. … The Board’s statutory role was limited to reviewing Dr. Coleman’s finding of incapacity to consent to antipsychotic treatment, and it was Mr. Armstrong’s father, the substitute decision-maker, who would be called upon to make specific treatment decisions if Mr. Armstrong was incapable.

[75] It is a capable patient or substitute decision-maker who must make the decision as to whether antipsychotic medication would cause more benefit than harm. That decision requires the capacity of the patient or, if incapable, the substitute decision-maker. The Board in the present appeal did not impose any treatment, nor did it require Armstrong (or any substitute decision-maker if he is not capable) to accept any particular treatment after considering the benefits and risks.

iii) Ground 3: Undue influence by the ORB

[76] This analysis addresses the ground raised at subparagraph 56 (iv) above.

[77] The issue on appeal is whether there was evidence upon which a reasonable Board could find that Dr. Coleman was not improperly influenced by the questions of the ORB who reviewed Dr. Coleman’s diagnosis at the June 2014 hearing.

[78] There was such evidence and, as such, there was a tenable line of analysis that could lead the Board to find that there was no improper influence by the ORB.

[79] Dr. Coleman testified that she considered revising her diagnosis and reassessing Armstrong’s capacity based on his ongoing symptoms of paranoia, guardedness and labile mood, but that the clinical team had first attempted to educate and engage Armstrong to permit a collaborative approach to treatment. Dr. Coleman’s evidence was that during the course of that treatment, she questioned Armstrong’s capacity with regards to consenting and understanding his illness and the possible consequences of a decision to take treatment and not to take treatment. It was “a fluctuating issue that’s come up on a regular basis”.

[80] Dr. Coleman fairly acknowledged that she again considered the issue after the ORB hearing, when the panel members questioned her as to why her diagnosis remained as substance-induced psychosis when Armstrong continued to demonstrate features of a primary psychotic illness. I agree with Dr. Coleman’s submission in her factum that:

This was entirely appropriate. The ORB’s statutory mandate requires it to form an independent opinion about the accused’s treatment plan and progress. Where there is a treatment impasse, the [ORB] must impose conditions to deal with the lack of progress and seek out more effective remedies and explore alternatives as necessary.

(See also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7.)

[81] The Board referred to Armstrong’s submission before it that “LA expressed the belief that Dr. Coleman was pressured to change her diagnosis as a result of the ORB hearing and cited the interval between the hearing and of the diagnosis of schizophrenia”. The Board found Dr. Coleman’s evidence to be credible.

[82] Consequently, there was evidence upon which a reasonable Board could have made its decision.

iv) Ground 4: Consent to capacity for treatment by intramuscular antipsychotic medication

[83] This analysis addresses the ground raised at subparagraph 56(v) above.

[84] Armstrong submitted that this court should either set aside the finding of incapacity for consent to treatment by intramuscular (injection) antipsychotic medication or, at a minimum, adopt the approach in Masih and send the matter back to the Board for determination on capacity to consent to treatment by intramuscular antipsychotic medication. Armstrong submits the Board “gratuitously add[ed] injectable medications to the category of anti-psychotics to be administered”. I do not agree.

[85] At the hearing, Armstrong sought to rely on Masih, in which Matheson J. found that the Board had properly applied the Starson test to the second requirement for capacity, and that “[t]he Board’s decision was amply supported by the evidence, with one exception regarding benzodiazepines” (Masih, at para. 37).

[86] In Masih, Matheson J. returned the matter of treatment with benzodiazepines to the Board, since there was a “dearth of evidence” as to any discussion about that treatment, which Matheson J. described as a “primary treatment” (Masih, at paras. 39-41 and 51(2)).

[87] However, in Masih, Matheson J. considered the capacity for treatment of various classes of “primary treatments” reviewed by the Board, not the proposed manner of administering those primary treatments. Those “primary treatments” were: antipsychotic medication, mood stabilizing medication, benzodiazepines and related side effect medication and lab tests. These were all “primary treatments” which were the subject of the Board’s decision of the patient’s capacity to consent to treatment (Masih, at paras. 38-40).

[88] Matheson J. held that there was a “dearth of evidence” about the “primary treatment” of benzodiazepines since there was no evidence as to the substance of the discussions about the risks and benefits and no evidence about the actual benefits and risks and expected consequences of that particular primary treatment (Masih, at paras. 39-40). Matheson J. held that “[s]ome evidence of the benefits and risks and expected consequences is required” (Masih, at para. 39, citing Anten v. Bhalerao, 2013 ONCA 499 (“Anten”), at para. 23).

[89] However, the distinction between Masih is that in the present case, the “primary treatment” for which capacity is at issue is antipsychotic medication (also considered as a “primary treatment” category by Matheson J., in Masih, at para. 38). There was evidence in the present case that the risks and benefits of the use of antipsychotic medication, as a proposed treatment, were discussed. There was no evidence of such a discussion in Masih with respect to the “primary treatment” of benzodiazepenes.

[90] If accepted, Armstrong’s position would require the treating physician to discuss the various modalities of administering a proposed treatment as a prerequisite to a finding of capacity to consent to treatment. Such a position conflates the issue of informed consent with treatment. It is clear from Starson and Masih that an analysis of capacity to consent begins with a discussion of the foreseeable risks and benefits of a proposed treatment, but that does not require (nor was ordered under Masih) a description of the various modalities in which a proposed “primary treatment” can be administered (Masih, at para. 38).

[91] Once the issue of capacity to consent to the proposed treatment is determined, the patient (if capable) or the substitute decision-maker (if the patient is incapable) can provide informed consent based on a full discussion of the modalities of the proposed treatment.

[92] Consequently, I do not find that a review of all of the benefits and consequences of the various modalities of administering a primary treatment (i.e., in the present case, differences in the risks and benefits of administering antipsychotic medications orally as compared to injection) is required under Starson or Anten (or under Masih). In the present appeal, it was not necessary for Dr. Coleman to review with Armstrong the benefits and risks of the various means of administering the “primary treatment” of antipsychotic medication, as a prerequisite to determining capacity to consent to treatment. It is the benefits and risks of the proposed primary treatment of antipsychotic medication that must be discussed.

[93] In the present case, the Board had evidence that Dr. Coleman’s proposed treatment was “antipsychotic medication in either an oral or injection form”. Consequently, the Board did not “gratuitously add injectable medications to the category of anti-psychotics to be administered”. The Board had evidence that the benefits and risks of the primary treatment of antipsychotic medication were reviewed by Dr. Coleman with Armstrong and as such the Board’s decision on Armstrong’s capacity for treatment with antipsychotic medication was reasonable.

v) Ground 5: The sufficiency of the Reasons

[94] This analysis addresses the ground raised at subparagraph 56(vi) above.

[95] On this issue, I adopt the law as set out in Wright, at paras. 21-22:

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.

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.’

[96] In the present case, as in Wright (at para. 22), the Reasons, “when looked at in the context of the evidence, the parties’ submissions, and the process … provide sufficient explanation to demonstrate to the parties why the [Board] concluded that the appellant was incapable and facilitate meaningful appellate review.”

Order and costs

[97] For the above reasons, I dismiss the appeal. No costs were sought by either party and, as such, I make no order as to costs.

GLUSTEIN J.

Date: 20150512