ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-496284
DATE: 20150721
BETWEEN:
D.P.
Appellant
– and –
DR. CERASELA BETLEN
Respondent
Allen Philip Welman, Amicus Curiae for the Appellant
Nada Nicola-Howorth & Jennifer L. Hunter, for Dr. Cerasela Betle
HEARD: July 6, 2015
M. FAIETA, j
REASONS FOR DECISION
INTRODUCTION
[1] The Appellant is a 39 year old woman who has a long history of mental illness. She was first diagnosed with a psychotic illness (schizophrenia, paranoid type) in 2006 while at the Scarborough Centenary Hospital. The Appellant responded well to antipsychotic treatment after her first admission to hospital such that she was able to return to school and work for about one year. However, the Appellant did not continue with such treatment as prescribed and she was subsequently admitted to hospital several more times.
[2] On December 8, 2013 the Appellant was brought by police to the Lakeridge Health Centre for examination by a physician under the authority of a Form 2 issued by a Justice of the Peace at the request of her parents. At that time she was single, unemployed and living in her parents’ unheated garage. The Appellant said that she was preparing for an Arctic expedition with the Canadian Armed Forces. The Respondent recommended that the Appellant commence treatment with antipsychotic medications. The Appellant refused all treatment because she does not believe that she suffers from a mental illness and because she believes that she suffers from a severe allergy to the medications.
[3] In light of her diagnosis and the Appellant’s refusal of treatment, the Respondent issued a Certificate of Involuntary Admission (Form 3) because she believed that the Appellant would suffer serious bodily harm or physical impairment if she did not remain in the hospital. The Respondent also found that the appellant was incapable of consenting to treatment on the basis that she was unable to appreciate the reasonably foreseeable consequences of her decision regarding treatment.
[4] The Consent and Capacity Board heard the Appellant’s appeal of these two decisions on December 19, 2013. On December 20, 2013 the Board rescinded the Certificate of Involuntary Admission on the grounds that the Respondent did not obtain the consent of the Appellant’s parent, being her substitute decision-maker, prior to issuing the Certificate. That decision has not been appealed to this Court. However, the Board upheld the Respondent’s decision regarding her incapacity to consent to treatment. The Appellant asks this Court to quash this aspect of the Board’s decision.
[5] The Appellant did not appear at the hearing of this appeal. Amicus curaie was appointed by Justice Conway by an Order dated September 29, 2014 to, amongst other things, consult with the Appellant and to present the issues raised by her appeal to this Court. Counsel advised the Court that he attempted to contact the Appellant both by letter and in person without success. In her Notice of Appeal, the Appellant asked that there be no publication of the names of her family who share her surname. I have modified the title of proceeding on these Reasons for Decision accordingly and have generally acceded to the Appellant’s request.
[6] The Amicus raises the following issues:
(1) Did the Board err in finding that the Respondent had proved that the Appellant suffered from a mental disorder?
(2) Did the Board err in finding that the Appellant was informed about her mental disorder and choice of treatment?
(3) Did the Board err in equating the presence of a mental disorder with incapacity?
[7] For the reasons described below, I find that the Board’s decision that the Appellant was incapable of consenting to treatment was reasonable. Accordingly, I dismiss the appeal.
ANALYSIS
Regulatory Framework
[8] The Health Care Consent Act, 1996[^1] provides that a health care practitioner who proposes a treatment for a person shall not administer the treatment unless she is of the opinion that the person is: (1) capable with respect to the treatment, and the person has given consent; or (2) 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.[^2] [emphasis added]
[9] Under section 4 of the Act, in order for a person to be “capable with respect to a treatment” that person must be able to:
Understand the information that is relevant to making a decision about the treatment. This criterion requires a person to “…have the cognitive ability to process, retain and understand the relevant information.”[^3]; and,
Appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment. This criterion requires a person “…to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.”[^4] A person need not agree with the diagnosis of the attending physician however he should be able to recognize the possibility that he is affected by that condition.[^5] A finding of incapacity is justified only if the reasons for a person’s failure to appreciate the consequences of a treatment decision demonstrate that the person’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of his decision.[^6]
[emphasis added]
[10] There is no dispute that the Appellant is able to understand information provided regarding available treatment. The sole issue on this appeal is whether the Board erred in finding that the Appellant is unable to appreciate the reasonably foreseeable consequences of refusing treatment.
Standard of Review
[11] Reasonableness is the appropriate standard of review for a decision of the Board. However, no deference is owed to the Board’s decision on a question of law. In Gajewski v. White[^7] the Ontario Court of Appeal stated:
Determining whether the appellant was capable of making his own decision regarding treatment with antipsychotic medication required the Board to apply, and the appeal judge to review, the evidence before it to the statutory test for capacity set out in s. 4(1) of the Act. In Starson, at paras. 23 and 84, the Supreme Court was unanimous that this is question of mixed fact and law that is reviewable on a standard of reasonableness. But, a reviewing court should not defer to the Board’s findings if the Board has misunderstood the statutory test. …
[12] In Dunsmuir v. New Brunswick[^8] the Supreme Court of Canada explained that:
...reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Issue #1: Did the Board err in finding that the Respondent had proved that the Appellant suffered from a mental disorder?
[13] The Board found that:
Dr. Betlen indicated that DP suffers from mental disorder and labelled the disorder as a Schizoaffective Disorder. DP has a history of hospitalizations for what was believed to be a psychotic disorder going back to 2006 when she had an admission to Scarborough Centenary Hospital for approximately 3 months, was treated with anti-psychotic medication, was discharged from hospital and then was well enough to enroll in a post-secondary education program. She has further been hospitalized in 2011 at Rouge Valley, and again at this facility in November of that year. In January of2012, DP was again admitted to this facility, agitated, non-communicative and suffering from hyponatremia. DP acknowledged at least six previous psychiatric hospitalizations.
DP's parents both indicated that they were aware of DP being diagnosed with mental illness, being treated for schizophrenia and paranoid, “sickness”, discharging herself from hospital, being non-compliant with medications and then becoming incapable of making rational decisions.
In the fall of 2013, DP was again admitted to this facility, under the care of Dr. Betlen, and DP left hospital after a Consent and Capacity Board hearing. On this occasion, she was admitted after DP’s parents undertook the process of obtaining a Form 2 from the Justice of the Peace, to have her examined after being concerned about her self-isolating and living in their unheated, wooden garage that does not have plumbing. Dr. Moss completed a Form 1 based on her presentation. At that time she believed she was brought to hospital as part of the bad treatment her parents have given her over the last few years. DP has no source of income except handouts from her parents, and during this hospitalization does not believe she requires psychiatric treatment as she has no mental illness. She has expressed thoughts that she is part of an Armed Forces mission, that she is preparing for a Arctic exercise with the Forces by living in her parents garage.
At the hearing, DP maintained she has dedicated her life to Human Rights, was a social activist, involved in Green Peace and following the beliefs and philosophy of pro-life and the Roman Catholic Church - canon law. She indicated she had reported the treatment by her parents and police, and the denial of her obtaining education for seven years to the United Nations.
She describes her mission as a practical professional move and her proof she is on the mission is that she contacted the Armed Forces and they asked her to send a resume, which she has not done yet. She maintains her living in the garage is preparation for the mission and that she is getting instruction on the survival technique from trainers at the YMCA, and the travel group Europe Bound.
DP relates an earlier hospitalization in January of 2012, when she suffered symptoms of hypronatriema, attributed by the medical physicians at the time as secondary to psychogenic polydipsia, as an error in diagnosis. DP had called Emergency Medical Services asking for water, and had a sodium level of 116, which she attributes to her eating either yogurt or cheese. DP believes the sodium level recorded is wrong and further scientific testing should have been done.
DP further believes she suffers from a severe allergy to all chemicals and therefore is unable to take any chemically based medication. She indicates it will make her both vomit and bleed. No evidence of such allergy has been found on this hospitalization or in any health records obtained by the Doctor, nor was it known to her parents. DP provided no documented evidence of same.
At the hearing although articulate, DP was unable to stay focused in answering questions asked of her, even after being given a chance to give her interpretation of the evidence given by other witnesses. She moved from topic to topic and repeatedly indicated she had proof of each “fact” she presented. She generally was unable to get to any conclusion in her answers. To a simple question such as why do you think you are in a psychiatric hospital, DP responded, with the date of her first admission, its length and the fact medication was forced upon her. When asked if she had ever noticed psychiatric improvement in others, DP responded, that the chemicals in treatment change the biology and then went on repeating information as to her reason for not going to University but rather to College.
The panel found compelling evidence presented, that as of the hearing, DP was grossly thought disordered and disorganized as well as at minimum exhibiting delusions of grandeur relating to her mission for the Armed Forces.
These are all symptoms of mental disorder which appear consistent in theme with the reports of previous hospitalizations such as set out in the descriptions of Dr. Zakaria (exhibit 5), where on a previous admission, DP reported her parents’ house belongs to her, and wanted to prove she was not drinking too much water by showing the Doctor her tongue.
[14] Mr. Wellman submits that the Appellant exercises at the YMCA and volunteers her time with organizations such as Greenpeace. He also indicated that the Appellant testified that she had received correspondence from the Canadian Army requesting her resume. However, he acknowledged that none of this information has been independently verified. In any event, in light of the overwhelming evidence before the Board described above, I find that the Board’s finding that the Appellant suffers from a mental disorder is reasonable.
Issue #2: Did the Board err in finding that the Appellant was informed about her mental disorder and choice of treatment?
[15] Mr. Wellman submits that there is no evidence that the doctor explained the Appellant’s condition or treatment choices to her and, as a result, her inability to appreciate the foreseeable consequences of a treatment decision or lack of it could not have arisen as a result.
[16] The Board’s decision shows the basis for the belief that such information was provided to the Appellant.
[17] At page 14 of its Reasons for Decision the Board stated:
The panel accepts that it has been proven that DP was given information about the proposed treatment. It is the same treatment or similar to that she received in 2006 and which has been proposed for her on other hospitalizations such as her admission to The Rouge Valley Health System in July of 2011 and on her brief admission January 31st, this year when she was given a prescription of Olanzapine on discharge. The panel accepts that further information was given or attempted to be given to her by Dr. Betlen on this and DP's earlier admission to his facility in the fall of 2013. DP does not dispute being given the information about what she agrees others say is mental disorder and acknowledged in her evidence researching the treatment. [emphasis added]
[18] I find that the Board did not err in finding that the Appellant was given information about her mental disorder and the proposed treatment.
Issue #3: Did the Board err in “equating the presence of a mental disorder with incapacity”?
[19] Mr. Wellman, relying on Starson, submits that “…those with mental illnesses are perhaps most vulnerable to having their experiences with reactions to medications and personal views regarding treatment options not taken seriously but instead attributed to the mental illness itself.”
[20] In my view, the Board did not find that the Appellant was incapable to make a treatment decision merely because she is mentally ill. The Board’s reasons, at pages 15-17, were as follows:
DP has two reasons for not taking the medications.
Firstly, she believes and has believed since at least since 2011, that she does not suffer from mental illness or any manifestations of same and that she never did even in 2006 when she was hospitalized for three months, treated with an anti-psychotic and according to others improved. She specifically denied it was due to mental illness that she was unable to find accommodation and confirmed her living in the cold was a testing and training for a mission in the Arctic associated with the Canadian Armed Forces. She stated she was told to, “acclimatize myself”. She did not agree she had an issue with mental illness on her January 31st, 2013 admission, questioning the sodium level of 116 and attributing her physical condition to eating either cheese or yogurt, not drinking excessive amounts of water.
Secondly, DP believes she has a blanket allergy to chemicals and the proposed treatment is with a chemical.
In her evidence, DP repeatedly mentioned how chemicals would cause her to vomit and bleed excessively. She indicates she told the doctor (if she took the medication), she, “would die”. No evidence of this intolerance was noted in any testing of DP, nor were her parents aware of such intolerance. Dr. Betlen indicated she was not aware of such a reaction to the proposed medication. In 2006, she received treatment with an antipsychotic and her parents do not recall her having any medical problem with the medication. The panel did not accept DP’s evidence that she suffered from a chemical intolerance to antipsychotics and found as a fact that she did not suffer from a global allergy to chemicals.
Neto v. Klukach, [2004] O.J. No. 394, was a decision of Day, J. of the Ontario Superior Court of Justice dated February 10, 2004. In that decision, which was an appeal of a decision of the Board, the Court explained the second branch of the test for capacity (i.e. the ability to appreciate consequences) in light of Starson, as follows:
The second branch assesses the ability to evaluate, not just understand, information. The patient must have an ability to appreciate the relevant information as it relates to him or her.
In our view, DP’s situation is very different situation from the one found by the Supreme Court of Canada in Starson. In that case, the Court found, Professor Starson was effectively saying, “I know that the proposed treatment could help me with some symptoms that affect me, but I’d rather have those symptoms than the adverse effect of the treatment on my ability to think and carry out my work in the field of physics”. In other words, the Court found, Professor Starson was able to appreciate the consequences of a decision. The fact that the decision to refuse treatment may have been unwise did not render him incapable. [emphasis added]
DP firstly does not believe she suffers from any manifestations of mental illness and furthermore believes she has a chemical intolerance to medication. Her analysis of the risks and benefits of taking or not taking antipsychotic medication is made in that context.
Her thinking at the hearing was scattered and it was difficult for her to answer the questions asked of her. She did however indicate if she took the Olanzapine, it would destroy her body, gravely jeopardize her physical anatomy, and give others an advantage over her. She stated, “it would deteriorate her body”. When asked if there was a risk of not taking the medications, she replied, “Yes, P & P (her parents) may take personal action against her”.
It has been proven in the panel’s opinion, that with an inability to accept some of her thinking and related actions are delusional and grandiose in nature and believing any and all chemicals will cause her serious harm or death, and with a demonstrated inability currently to organize her thinking, DP is unable to make a risk/benefit analysis of taking or not taking the proposed treatment.
She therefore was unable to evaluate information concerning the proposed treatment with medications as it relates to her own circumstances, a fact which rendered her incapable to make a decision concerning them.
[21] In my view, the Board correctly applied the Act and Starson. The Board did not find that the Appellant was incapable of making a decision regarding the proposed treatment merely because she was mentally ill.
CONCLUSION
[22] For the reasons given above, I dismiss the Appeal.
[23] However, it is with much concern that I learned from counsel for the Respondent that this Court’s decision is effectively moot as the Appellant will not receive the treatment ordered by the Respondent unless: (1) she returns to a hospital which, based on the events described in this decision, will not occur unless the Appellant is involuntary committed to a hospital; and (2) another assessment regarding her mental condition is made at that time and such treatment is ordered once again, subject to whatever appeal(s) might be made. In my view, if counsel for the Respondent is correct, then the scheme of the Act has failed the Appellant.
[24] No costs were sought by the parties.
Mr. Justice M. Faieta
Released: July 21, 2015
COURT FILE NO.: CV-14-496284
DATE: 20150721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.P.
Appellant
– and –
DR. CERASELA BETLEN
Respondent
REASONS FOR DECISION
Mr. Justice M. Faieta
Released: July 21, 2015
[^1]: S.O. 1996, c.2, Sched. A.
[^2]: Section 10.
[^3]: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 72, at para. 78.
[^4]: Starson, at para. 78.
[^5]: Starson, at para. 79.
[^6]: Starson, at para. 81.
[^7]: 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33.
[^8]: 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.