ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-516742
DATE: 20150813
IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to Health Care Consent Act, 1996 S.O. 1996 c. 2,
as amended
AND IN THE MATTER OF
MAURICE SALEM, a patient of
HALTON HEALTHCARE – OAKVILLE TRAFALGAR MEMORIAL HOSPITAL
Oakville, Ontario
BETWEEN:
MAURICE SALEM
Appellant
– and –
DR. THOMAS HASTINGS
Respondent
Joanna Weiss, for the Appellant
Trevor S. Fisher, for the Respondent
HEARD: August 11, 2015
ENDORSEMENT
DIAMOND J.:
Overview
[1] The appellant Maurice Salem is 29 years of age. For several years, he has unfortunately suffered from schizophrenia with chronic residual symptoms. Since his first involuntary admission to the Oakville-Trafalgar Memorial Hospital (the “Hospital”) in the fall of 2009, the appellant had been under the care of Respondent Dr. Thomas Hastings. Between 2009 and 2014, the appellant was subject to five psychiatric admissions, each one related to psychotic relapses secondary to non-compliance with medication.
[2] During those previous admissions, the respondent treated the appellant with a long acting injectable anti-psychotic medication known as Fluanxol. The appellant’s mother (who was and remains his substitute decision maker) told the respondent that she was very pleased with the positive effects of Fluanxol upon her son.
[3] Unfortunately, the appellant subsequently ceased taking Fluanxol. His mother subsequently commenced proceedings under the Mental Health Act culminating in the issuance of a Form 2 which involuntarily admitted the appellant to the Hospital on November 3, 2014.
[4] On November 5, 2014, the appellant was seen by the respondent, who determined that the appellant was incapable of consenting to treatment as a result of his mental disorder. The respondent then completed a Form 33 which is a Notice to Patient informing the appellant that he was not capable of consenting to various medications.
[5] Following the respondent’s assessment of the appellant’s lack of capacity, the respondent prepared his physician notes the following day (November 6, 2014).
[6] As is his right, the appellant appealed the respondent’s decision to the Consent and Capacity Board (the “Board”). A hearing was held before the Board on November 14, 2014. The Board was comprised of three members: a lawyer, a psychiatrist and a public member.
[7] By decision dated November 15, 2014 (with Reasons released on November 17, 2014), the Board found that the appellant was not capable of consenting to the prescribed treatment.
[8] The appellant appeals the Board’s decision and asks this Court to quash the decision and declare the appellant capable of consenting to treatment, or in the alternative remit the matter back to the Board for a rehearing before a differently constituted panel.
[9] The following issues are raised on this appeal:
Did the Board err in finding that the appellant was incapable of consenting to treatment?
Did the Board err in failing to address and consider what the appellant alleges to be a clear breakdown in the doctor/patient relationship?
Did the Board specifically err in confirming the respondent’s finding of incapacity with respect to all classes of medication and forms of proposed treatment?
The Health Care Consent Act
[10] Pursuant to section 10 of the Health Care Consent Act, 1996 S.O. 1996 c. 2, (the “Act”) a health care practitioner who proposes a treatment for a person shall not administer that treatment unless the practitioner is of the opinion that the person is: (a) capable with respect to the treatment and the person has given consent, or (b) incapable with respect to the treatment and the person’s substitute decision maker has given consent on the person’s behalf in accordance with the Act.
[11] Under the Act, a person is presumed to be capable with respect to giving consent to treatment. The onus of proving that a patient is incapable lies upon the health practitioner.
[12] Pursuant to section 4 of the Act, a person is capable with respect to a treatment where that person is able to (a) understand the information relevant to making a decision about the treatment, and (b) appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
[13] At the hearing, the respondent thus bore the onus of convincing the Board on clear and cogent evidence that the appellant was unable to: (a) understand the information relevant to making a decision about the treatment, or (b) appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment. The test is not cumulative; in the event the Board was convinced of either (a) or (b), then the respondent satisfied his onus.
[14] On the evidentiary record filed at the hearing, the Board found that it did not have sufficient information to be able to make its decision as to whether the appellant was unable to understand the information relevant to making a decision about the treatment. Accordingly, the disposition of Issue #1 is focused upon whether the Board erred in finding that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment.
Standard of Review
[15] The issues on this appeal comprise matters of mixed fact and law. The appropriate standard of review is therefore one of reasonableness.
[16] As the Board is a specialized expert tribunal, absent any demonstrated unreasonableness, deference ought to be afforded to decisions made within the Board’s area(s) of expertise.
[17] As stated by Justice Faieta in D.P. v. Betlen, 2015 ONSC 4442 (S.C.J.), reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
Issue #1: Did the Board err in finding that the appellant was incapable of consenting to treatment?
[18] The key passages from the Board’s decision relating to the appellant ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision are as follows:
“According to Dr. Hastings, MS denied that he suffered from psychosis, paranoid delusions or any symptom of mental disorder. MS believed he was in hospital because he was competitive and nice and Dr. Hastings and others wanted to stop him. These persecutory delusions prevented him from being able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment in question. Dr. Hastings said that MS did not appreciate that he suffered from the manifestations of psychosis.
MS objected to the medication because of its sedating properties. During his testimony MS said taking medication was like “a horse being tranquilized”. MS said he was fine, there was no problem that required treatment, “they only destroy my mind”.
A person’s best interests are not a consideration in determining the question of capacity to consent to treatment. A person must possess the ability to evaluate, not just understand, information and have the ability to appreciate the relevant information as it relates to him or her.
MS clearly did not believe he suffered from any manifestations of mental disorder and his choice (or lack of choice) was affected by his delusional thinking. For these reasons the Panel unanimously held that MS was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment in question.”
[19] To my reading, the Board’s description of “delusional thinking” is rooted in the evidence, both oral and documentary, that the appellant believed he had been involuntarily admitted due to being “competitive and nice”, and health practitioners “wanting to stop him”.
[20] The jurisprudence is clear that to be capable, it is not necessary to find that the appellant possesses an actual appreciation of reasonably foreseeable consequences, but rather that he has the ability to appreciate such consequences. Put another way, a person who fails to understand and appreciate consequences, but is still able to do so, will be found to be capable.
[21] Both parties rely upon the Supreme Court of Canada’s seminal decision in Starson v. Swayze, 2003 SCC 32, [2003] S.C.J. 33. In Starson, the majority stated that while a patient need not agree with any particular diagnosis, if it is demonstrated that the patient has a “mental condition” then the patient must be able to recognize the possibility that he/she is affected by that condition. If the patient’s mental condition results in him/her being unable to recognize that he/she is affected by its manifestations, the patient will be unable to apply the relevant information to his/her circumstances, and thus unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
[22] Based upon my review of the evidentiary record, I conclude that the Board’s finding that the appellant lacked capacity to consent to the proposed treatment was reasonable. While the assessment of capacity is to be made at the time of the hearing, the Board is well within its mandate to review and rely upon historical facts leading up to the hearing. In his notes made the day after his assessment of the appellant, the respondent wrote the following:
“Pt. seen from 12:20-28 in PICU. Pt. sullen and irritable. Answering most questions with “I have nothing to say, talk to my lawyer”. With some probing pt. reports he is “fine”. Reports there is nothing wrong with him. I am the one with the problem because I should be “more open minded” (i.e. about the existence of aliens). Reports that he does not want or need medications. Irritable, unkempt. Guarded re: mental status.
Discussed collateral by Mom of concerns re: odd writings, mental deteriorations related to d/c of Fluanxol. Discussed collateral by nursing notes of Mom concerned re: pt. aggression/her safety.
Pt. dismisses a further interview. Wearing ear pieces in ears. Not answering further questions re: MSE.
He is hostile (though not overtly threatening to me), dismissive, insistent that there nothing wrong/that he has no mental condition and does not want or need medication. Dismissive of my suggestion that he is showing signs of mental deterioration related to d/c of Fluanxol.
Attempted to explore mental status. Pt. sullen but not overtly aggressive. In exploring rationale for admission, pt. maintains “I’m only here because I’m competitive and nice to people”. Continues to maintain he is not psychotic and doesn’t want/need medication.”
[23] In a prior assessment of the appellant set out in a March 7, 2014 discharge summary, the respondent wrote that the appellant “maintained that he did not need or want any anti-psychotic medication or mental health follow up of any kind…he found these intrusive in his life and unnecessary as he was insistent he had no mental health problems including psychosis”.
[24] At the hearing, when asked by the psychiatrist member of the panel whether he believed there was “any chance that taking the medication was a factor in him not needing or not being admitted to hospital”, the appellant answered “I think sedatives will only destroy your mind…just like everything there is an opposite reaction, opposite reaction to sedation is heavy aggression”. This non-responsive answer was consistent with the appellant’s evidence throughout the hearing as he refused to engage in any substantive inquiries made by the panel or the respondent.
[25] The Board found that the appellant’s schizophrenia resulted in him being unable to recognize that he is affected by his mental disorder and unable to appreciate the reasonable consequences of his decision to refuse treatment. When off his medication, the appellant has consistently taken the position that he does not need any medication as there is “nothing wrong with him”. While a refusal to engage with the inquiries of the Board or the respondent does not in and of itself result in a finding of incapacity, it does also not necessarily result in a finding of capacity. The Board based its decision upon the appellant’s inability to appreciate the manifestations of his schizophrenic condition.
[26] The respondent testified before the Board that in the five years he has known him, the appellant has never developed insight into his condition nor regained capacity with respect to treatment decision-making. The appellant took the position that he did not suffer from any manifestations of any mental disorder. In light of the evidence filed before the Board, I find that the Board’s decision that the appellant was unable to appreciate the reasonably unforeseeable consequences of a decision or lack of a decision regarding the treatment was reasonable.
Issue #2: Did the Board err in failing to address and/or consider what the appellant alleges to be a clear breakdown in the doctor/patient relationship?
[27] The appellant submits that by the date of the hearing, and arguably beforehand, there was a “clear breakdown” in his relationship with the respondent, and the Board’s failure to address or consider that breakdown rendered its decision unreasonable.
[28] The appellant relies upon the decision of Justice Quinn in Isber v. Zebrowski, 2009 58980 (ON SC). In that case, Justice Quinn held that a failure to consider a significant enough breakdown between a physician and a patient could “virally infect the entirety” of a Board’s decision.
[29] In my view, the facts in Isber are clearly distinguishable from those on this appeal. For one, Justice Quinn described the breakdown between Ms. Isber and Dr. Zebrowski as “undeniable” and “so fundamental” as to render the Board’s decision unreasonable. Unlike the facts in this case, Ms. Isber was denied the ability to be assessed and treated by a third party doctor for whom she had a high regard. Ms. Isber expressed a desire to choose another psychiatrist for her assessment and treatment, but was denied access to that psychiatrist and forced to deal with Dr. Zebrowski.
[30] In the matter before me, the appellant testified that his distrust of psychiatrists was not limited to the respondent; indeed, he told the Board “never listen to a psychiatrist” on at least one occasion.
[31] I do not find the presence of a clear breakdown of the doctor/patient relationship on this evidentiary record. I conclude that the Board made no error in failing to address what was essentially a non-issue for the determination of the appellant’s capacity.
Issue #3: Did the Board specifically err in confirming the respondent’s finding of incapacity with respect to all classes of medication and forms of proposed treatment?
[32] In the Form 33, the respondent checked off “Box #3” which advised the appellant that, in the respondent’s opinion, the appellant was not mentally capable to consent to treatment of a mental disorder. The respondent then added the following handwritten notations under that box:
“anti-psychotic medication + medications to treat potential side effects (i.e. anti-cholinergic medication and benzodiazepines)”
[33] The Board’s decision describes the treatment as “anti-psychotic medication, side effect medication, benzodiazepines and cholinergic” medication.
[34] Section 15 of the Act states that a person may be incapable with respect to some treatments and capable with respect to others. The appellant submits that the Board erred in confirming the respondent’s finding of incapacity with respect to various classes of different medication and forms of proposed treatment. Specifically, the appellant submits that he could only have been found to be incapable of consenting to treatment if he had actually been assessed in relation to each proposed treatment/medication.
[35] The respondent relies upon the contents of the Form 33 (as described above) and the provisions of section 23 of the Act which state as follows:
“23. Authority to consent to a treatment on an incapable person’s behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.”
[36] I have reviewed the oral and documentary evidence filed at the hearing. There was sufficient evidence before the Board to conclude that the appellant was informed about the risks and consequences of the anti-psychotic medication. In his November 6, 2014 notes, the respondent wrote that the appellant was “very concerned that he needs to be back on Fluanxol injections”.
[37] I am also satisfied that the side effect medication qualifies as ancillary treatment as that term is defined in the Act. Such medication is necessary and ancillary to the anti-psychotic medication, especially given the appellant’s testimony regarding the side effects he experiences when on Fluanxol.
[38] However, I find that there was insufficient evidence before the Board dealing with benzodiazepines and cholinergic medication and thus it was not reasonable for the Board to have concluded that the appellant lacked the necessary capacity with respect to those specific medications.
[39] As stated by the Court of Appeal for Ontario in Anten v. Bhalerao 2013 ONSC 499, there must be an inquiry into the patient’s appreciation of the parameters of the decision being made, including the nature and purpose of the proposed treatment, the foreseeable benefits and risks of treatment, the alternative courses of action available and the expected consequences of not having the treatment.
[40] I come to the identical conclusion reached by Justice Matheson in Masih v. Siekierski, 2015 ONSC 2877 (S.C.J.) where she ordered a re-hearing with respect to a “dearth of evidence” about benzodiazepines on the record before the Board in that case. There must be some evidence of the benefits and risks and expected consequences of benzodiazepines and cholinergic medication. The only evidence in the record before the Board related to the respondent’s discussion with the appellant’s mother in seeking her consent to the proposed treatment. This is clearly not sufficient.
[41] Accordingly, the appeal from the decision of the Board dated November 14, 2014 which confirmed the appellant’s treatment and capacity is granted in part as follows:
a) the appeal with respect the anti-psychotic and side effect mediation is dismissed; and
b) the appeal with respect to the benzodiazepines and cholinergic medication is allowed, and the matter shall be returned to the Board for a re-hearing on those issues before a differently constituted panel.
[42] It does not appear that either party sought costs of this appeal. As such I make no order as to costs.
Diamond J.
Released: August 13, 2015
COURT FILE NO.: CV-14-516742
DATE: 20150813
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to Health Care Consent Act, 1996 S.O. 1996 c. 2,
as amended
AND IN THE MATTER OF
MAURICE SALEM, a patient of
HALTON HEALTHCARE – OAKVILLE TRAFALGAR MEMORIAL HOSPITAL
Oakville, Ontario
BETWEEN:
MAURICE SALEM
Appellant
– and –
DR. THOMAS HASTINGS
Respondent
ENDORSEMENT
Diamond J.
Released: August 13, 2015