Superior Court of Justice - Ontario

CITATION: Clouthier v. Adams, 2015 ONSC 3887

COURT FILE NO.: CV 15-6142

DATE: 2015/06/16

RE: Diane Clouthier, Appellant

AND:

Dr. Susan Adams, Respondent

BEFORE: Valin J.

COUNSEL: G. Laplante, for the Appellant

P. Trenker, for the Respondent

HEARD: June 11, 2015

ENDORSEMENT

[1] The appellant was arrested in March 2015 on charges of mischief and criminal harassment. A provincial court judge made an order that the appellant be admitted to the North Bay Regional Health Centre for assessment to determine her fitness to stand trial.

[2] On March 18, 2015, following a 45 minute interview, Dr. Susan Adams determined that the appellant had a mental disorder. Dr. Adams attempted to propose treatment and to discuss the risks and benefits of the proposed treatment with the appellant. Dr. Adams determined that the appellant was incapable of consenting to treatment with anti-psychotic medications because she was unable to make a meaningful risk/benefit assessment of the proposed treatment.

[3] At the request of the appellant, the Ontario Consent and Capacity Review Board (the “Board”), conducted a review of Dr. Adams’ finding that the appellant was incapable with respect to the proposed treatment. The Board conducted a hearing on March 31, 2015. The same day, the Board issued a decision confirming Dr. Adams’ finding that the appellant was incapable of consenting to treatment with anti-psychotic medications.

[4] This is an appeal from the Board decision.

[5] Section 4(2) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “Act”) stipulates that a person is presumed to be capable with respect to treatment.

[6] Section 4(1) of the Act provides:

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.

[7] The test for capacity to consent to treatment is therefore a two-part test. To be “capable with respect to a treatment”, a person must first be “able to understand the information that is relevant to making a decision about the treatment” and, second, must be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”: see Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 6. It is not a requirement that failure to meet both parts of the test be proven.

[8] The Board determined that the appellant was an intelligent and educated person, and that she was able to understand the information relevant to making a decision about the proposed treatment.

[9] However, the Board determined that the evidence established that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.

[10] This appeal is restricted to that finding of the Board.

[11] The Board’s decision relates to a question of mixed fact and law that is reviewable on a standard of reasonableness: see Gajewski, at para. 33. Reasonableness is concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[12] At the hearing before the Board, Dr. Adams testified that:

For example, side effects. I think that she would be able to understand that she’s experiencing side effects and make the necessary decision about her treatment. (Transcript of Proceedings, at p. 5, lines 11-14.)

[13] Given that evidence, counsel for the appellant argued that the Board’s decision is not reasonable.

[14] Respectfully, I disagree.

[15] Dr. Adams informed the appellant that she was suffering from delusions. She proposed treatment in the form of antipsychotic medication which would enable the appellant to move ahead with her career and be less distressed by her delusions.

[16] There was uncontested evidence before the Board, including the appellant’s testimony, that the appellant suffers from the manifestation of mental illness in the form of delusions about having been the world’s first test tube baby, a conspiracy by various government agencies to persecute and harass her because of her birth, and a romantic relationship with a university professor who refused to acknowledge his feelings.

[17] The appellant had also been charged with mischief and criminal harassment. She was found not criminally responsible on both charges. Yet, the appellant maintained that the events that resulted in relation to those charges were not delusional.

[18] The appellant denied that she suffered from delusions because of her insistence that there was incontrovertible evidence that her beliefs were true. By reason of her prevailing belief that she did not suffer from delusions, in the appellant’s mind there was no decision to be made with respect to the treatment Dr. Adams proposed.

[19] In those circumstances, Dr. Adams concluded the appellant was unable to make a meaningful risk/benefit assessment of the proposed treatment.

[20] The Board concluded that the evidence established the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the proposed treatment. The appellant denied delusional beliefs because, in her mind, she saw incontrovertible evidence that her beliefs were true. The Board accepted Dr. Adams’ conclusion that the appellant was unable to make a meaningful risk/benefit analysis of the proposed treatment because of her prevailing belief that, since she was not mentally ill and did not need treatment, there was no decision to make.

[21] It is clear from the evidence that the appellant was not able to apply the relevant information to her circumstances and therefore was not able to appreciate the reasonably foreseeable consequences of taking or not taking the proposed medication. The Board’s decision is reasonable. It clearly falls within a range of possible, acceptable outcomes which are defensible in respect to the facts and the law.

[22] The appeal is therefore dismissed.

The Honourable Mr. Justice G. Valin

Date Released: June 17, 2015