COURT FILE NO.: CV-15-223
DATE: 2015-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Martin Buccholz
David W. Shannon, for the Appellant,
Appellant
- and -
Dr. Suzanne Allain
Kristen Crain, for the Respondent
Respondent
HEARD: August 24, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons On Appeal
Nature of Proceeding
[1] This is an appeal pursuant to section 80 of the Health Care Consent Act, 1996 S.O. 1996 c. 2 from the Consent and Capacity Board's (“CCB”) decision confirming the appellant's status as an involuntary patient at St. Joseph's Care Group – Lakehead Psychiatric Hospital pursuant to subsection 20(5) of the Mental Health Act (“MHA”), R.S.O 1990 c. m. 7.
[2] Subsection 20(5) of the MHA provides:
Conditions for involuntary admission
(5) The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion both,
(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,
(i) serious bodily harm to the patient,
(ii) serious bodily harm to another person, or
(iii) serious physical impairment of the patient,
unless the patient remains in the custody of a psychiatric facility; and
(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.
Background
[3] The appellant, Mr. Buccholz, is 51. He suffers from treatment resistant schizophrenia, pedophilia, poor impulse control and decreasing cognition. He has been an involuntary patient at the hospital since 2001, except for a eight month stay in high support housing.
[4] On May 8, 2015, Mr. Buccholz's treating psychiatrist, Dr. Allain, completed a Certificate of Renewal declaring that Mr. Buccholz continue to be an involuntary patient on the grounds that he was suffering from a mental disorder of a nature or quality that will likely result in serious harm to another person and that it was not suitable that Mr. Buccholz continue as an informal or involuntary patient (20(5) MHA).
[5] As this was the fourth Certificate of Renewal, review by the CCB is mandatory.
[6] The hearing before the CCB was held on May 15, 2015. The decision was delivered on May 19, 2015, and written reasons followed on May 25, 2015.
The Hearing
Evidence
[7] Two witnesses testified: Dr. Allain and Mr. Buccholz.
[8] Dr. Allain testified that Mr. Buccholz had "spent much of the last 14 years in hospital for a chronic and treatment resistant schizophrenia, complicated by declining cognition and pedophilia." She also testified that a trial in a high support group home failed in October 2014 because of Mr. Buccholz's aggression.
[9] In the two months prior to the assessment upon which the Certificate was based, Mr. Buccholz had to be medicated 40 times for "frequent episodes of auditory hallucinations, including command hallucinations to harm others and bizarre paranoid and grandiose delusions about his prowess as a boxer and a fighter, which led him to act out aggressively." In the weeks preceding her assessment, Dr. Allain noted that Mr. Buccholz had punched a client with a closed fist several times on April 14, that he tried to hit someone else on April 21, and that he had threatened and actually struck a co-patient on April 29. She testified that these episodes "tend to be quite impulsive and difficult to predict."
[10] Mr. Buccholz interrupted Dr. Allain's testimony on many occasions. For the most part, the interjections were admissions of his aggressive behavior.
[11] In cross-examination, Dr. Allain testified that Mr. Buccholz was not ready for discharge to a community-based option such as a high support group home because of his recent aggression and inappropriate sexual behavior.
[12] It was Dr. Allain's opinion that Mr. Buccholz was not a suitable candidate for voluntary admission because of his desire to leave the hospital. She testified that, with greater privileges, Mr. Buccholz had left the hospital and entered a convenience store where he was sexually inappropriate with two young girls.
[13] Mr. Buccholz testified that he had to leave the high support group home because "I fought the hag. I did not mean to do that because she was an older lady." He testified that when he starts to feel aggressive he goes to bed or watches TV or eats food. He said that he would like to live in a place similar to the high support group home in the future.
Submissions
[14] Counsel for Mr. Buccholz emphasized that Mr. Buccholz was in long term detention and that there was a systemic failure because there was no alternative for Mr. Buccholz other than the psychiatric hospital. Counsel submitted that a less restrictive facility would be more appropriate for Mr. Buccholz. Counsel asked for comments from the CCB "given the extreme nature of this denial of due process, fairness, and security of the person."
The Decision
[15] The CCB acknowledged that the onus is on the attending physician to prove that Mr. Buccholz should be confirmed as an involuntary patient. The CCB also acknowledged that the standard of proof is on the balance of probabilities.
[16] In applying subsection 20(5), the CCB also acknowledged that there must be a causal connection between the existence of the mental disorder and the likelihood of the feared consequence. The Board stated that in applying subsection 20(5), "likely" means "probably" and that "serious" bodily harm means more than trifling.
[17] The three questions posed by the CCB relevant to this appeal are the following:
At the time of the hearing, was Mr. Buccholz suffering from a mental disorder?
Was Mr. Buccholz's mental disorder of a nature or quality that likely would result in serious bodily harm to another person unless he remained in the custody of the psychiatric facility?
Was Mr. Buccholz suitable for admission or continuation as an informal or voluntary patient at the time of the hearing?
At the time of the hearing, was Mr. Buccholz suffering from a mental disorder?
[18] The CCB concluded that Mr. Buccholz suffered from a mental disorder at the time of the hearing. During the argument of this appeal it was admitted that Mr. Buccholz suffers from a mental disorder.
- Was Mr. Buccholz's mental disorder of a nature or quality that likely would result in serious bodily harm to another person unless he remained in the custody of the psychiatric facility?
[19] In concluding that Mr. Buccholz's mental disorder was of a nature or quality that likely will result in serious bodily harm to another person, the CCB made the following findings:
The panel found as a fact that MB periodically had engaged in physically aggressive behavior during his admission to hospital and that this behavior was likely to cause serious bodily harm to another person, based on the evidence and opinion of Dr. Allain.
The panel noted that MB used a walker and had some medical health issues which perhaps would decrease his ability to cause serious bodily harm to another person. However, the panel noted that MB was likely to come into contact with vulnerable persons, whether in a hospital, supportive housing or in a community mental health program and that such persons were especially likely to suffer serious bodily harm if assaulted by MB. The panel noted that a hit with a closed fist was likely to result in serious bodily harm to the victim, in that the harm would likely be more than trifling.
The panel found that the opinion of Dr. Allain, her evidence regarding MB's symptoms of mental disorder, and his behavior in the high support housing and in the hospital, along with MB's evidence that he fought in the high support housing and that he had a fight with an older woman were cogent and compelling evidence that MB was likely to cause serious bodily harm to another person unless he remained in the custody of a psychiatric facility.
Reasons at p. 10-11.
- Was Mr. Buccholz suitable for admission or continuation as an informal or voluntary patient at the time of the hearing?
[20] The CCB found that Mr. Buccholz was not suitable for admission as a voluntary patient because he was not going to remain in the hospital as a voluntary patient. The CCB relied upon Dr. Allain's evidence that Mr. Buccholz advised that he wanted to go home and live in the community. The panel also accepted her evidence that, in the past, Mr. Buccholz had wandered away from the hospital and was sexually inappropriate with children at a convenience store.
The Board's Position on Comments Requested by Counsel
[21] The CCB noted that it had no mandate to make comments and that its only mandate was to make a factual determination as to whether the criteria set out in subsection 20(5) of the MHA were met at the time of the hearing. The CCB relied upon P.S. v. Ontario, 2014 ONCA. Further, the CCB stated that it had no jurisdiction with respect to privileges and "that it would be inappropriate for us to make suggestions or comments as to the privileges or level given to MB in the hospital."
Reasons at page 18.
Grounds of Appeal
[22] Mr. Buccholz raises the following grounds for appeal:
Did the CCB apply the correct test for involuntary detention pursuant to section 20 of the Mental Health Act?
Did the CCB have jurisdiction to provide comments when reviewing the Appellant's involuntary status?
Positions of the Parties
[23] The appellant argues that the CCB failed to apply a "contextual analysis" when assessing risk under subsection 20(5) of the MHA. He argues that his health, particularly his mobility issues which require the use of a walker, make it unlikely that he would cause bodily harm to anyone else or that he could leave the hospital without assistance.
[24] The appellant also argues that the CCB may, where appropriate, make comments about the detention rather than restrict their function to the appropriateness of involuntary commitment. The appellant argues that legislation empowers the board to conduct a general review which, by its nature, should include comments and recommendations. The appellant argues that the CCB has made comments in the past and that it was an error to rely on P.S. v. Ontario for the proposition that the role of the CCB was restricted because that case was a Charter challenge.
[25] The respondent argues that the CCB applied the correct test appropriately and that there was ample evidence to support the Board's findings of fact and its conclusion.
[26] With respect to comments, the respondent argues that the CCB is not empowered to conduct a general review but is limited in scope of inquiry. The respondent relies upon sections 39(1) and 41:
39.(1) An involuntary patient, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the prerequisites set out in this Act for admission or continuation as an involuntary patient are met. 2000, c. 9, s. 21 (1)
Review of admission or renewal
41.(1) On the hearing of an application, the Board shall promptly review the patient’s status to determine whether or not the prerequisites set out in this Act for admission as an involuntary patient continue to be met at the time of the hearing of the application. R.S.O. 1990, c. M.7, s. 41(1); 1992, c. 32, s. 20(6).
Confirming order
(2) The Board by order may confirm the patient’s status as an involuntary patient if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were met at the time of the hearing of the application. R.S.O. 1990, c. M.7, s. 41(2); 1992, c. 32, s. 20(6).
Rescinding order
(3) The Board by order shall rescind the certificate if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were not met at the time of the hearing of the application. R.S.O. 1990, c. M.7, s. 41(3); 1992, c. 32, s. 20(6). [Emphasis added]
[27] The respondent argues that what the CCB did was exactly as prescribed by the Court of Appeal in P.S..
[28] Further, the respondent argues, unlike P.S., there was no evidentiary basis for comments as there was no evidence that Mr. Buccholz's involuntary detention was a result of lack of resources or waiting lists, for example. The respondent argues that the evidence is clear that Mr. Buccholz's involuntary detention was as a result of his current mental disorder that would likely result in behavior that would cause serious harm to others.
Disposition
Standard of Review
[29] The standard of review when considering the decision of an administrative tribunal applying its home statute is reasonableness. "True questions of jurisdiction are narrow and will be exceptional": Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39.
[30] “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." Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R 190 at para. 47.
Powers on Appeal
[31] Subsection 80(10) of the Health Care Consent Act provides that, on appeal, the court may:
(a) exercise all the powers of the Board;
(b) substitute its opinion for that of the health practitioner, and evaluator, a substitute decision-maker or the Board;
(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.
Analysis
- Did the CCB apply the correct test?
[32] I conclude that the CCB did apply the correct test. The Board's analysis took into consideration Mr. Buccholz's circumstances including his mobility issues. During argument, counsel for Mr. Buccholz candidly admitted that the assault at the high support house in October 2014 and the assaults committed in April 2015 all occurred while Mr. Buccholz required the use of a walker.
[33] I also conclude that Mr. Buccholz's mobility issues are not sufficient to make the involuntary admission unnecessary as argued by Mr. Buccholz. Based on the comments and testimony of Mr. Buccholz at the hearing, I conclude that he does have sufficient cognitive ability to make arrangements to leave the hospital if he wishes to do so such as by arranging for a taxi, for example.
[34] I find that there was sufficient evidence to support the Board's finding that involuntary detention was appropriate. This decision was "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." Dunsmuir at para. 47.
- Did the CCB have jurisdiction to provide comments when reviewing the Appellant's involuntary status?
[35] P.S. v. Ontario was an appeal concerning the constitutional validity of the provisions of the MHA providing for involuntary committal as those provisions apply to long-term detainees. The Court of Appeal concluded that the provisions of the MHA dealing with involuntary committal violate s. 7 of the Charter by allowing for indeterminate detention without adequate procedural protection of the liberty interests of long-term patients.
[36] Subsection 20(4) of the MHA provides:
Authority of certificate
(4) An involuntary patient may be detained, restrained, observed and examined in a psychiatric facility,
(a) for not more than two weeks under a certificate of involuntary admission; and
(b) for not more than,
(i) one additional month under a first certificate of renewal,
(ii) two additional months under a second certificate of renewal, and
(iii) three additional months under a third or subsequent certificate of renewal,
that is completed and filed with the officer in charge by the attending physician. R.S.O. 1990, c. M.7, s. 20(4)
[37] At paragraph 202 of P.S., Sharpe J.A. writing for the five judge panel said:
[202] As a result of the procedurally inadequate powers of the CCB vis-à-vis long-term detainees, the appropriate remedy in the circumstances of this case is to limit the duration of MHA committals to approximately six months by declaring the words “or subsequent” in s. 20(4)(b)(iii) to be inconsistent with s. 7 of the Charter and therefore of no force or effect pursuant to s. 52(1). The effect of removing those words will be to respond to the specific issue that is raised by the facts of this case, namely, the inadequacy of the review procedure and the powers of the CCB in the context of long-term committals, by limiting the duration of involuntary committals to approximately six months.
[38] The Court of Appeal granted the declaration of invalidity but temporarily suspended the declaration of invalidity for 12 months from the date of the reasons, December 23, 2014, "to afford the legislature the opportunity to consider how best to deal with the issue of long-term involuntary committals and the powers of the CCB". P.S. at para. 206. Therefore, the law governing the review of Mr. Buccholz is the law as existed and interpreted in P.S..
[39] In P.S., the Court of Appeal stated that the CCB has limited jurisdiction:
[53] The other consistent themes running through the CCB’s decisions are that the appellant’s therapeutic and rehabilitative needs are not being met, he does not require a maximum security facility and it would be in his interest to be transferred to another facility or even into a community setting. However, the CCB continuously recognized that its jurisdiction was limited to the issue of whether or not the appellant was certifiable, and that accordingly it had no authority to order that the appellant be detained under less restrictive circumstances. [emphasis added]
[115] By failing to confer upon the CCB the necessary authority, the MHA fails to ensure, as required by Winko and Penetanguishene, that “at every step of the process consideration of the liberty interest of the [detained individual is] built into the statutory framework.” Specifically, the CCB lacks the jurisdiction to supervise the security level, privileges, therapy and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests. [emphasis added]
[40] I accept that the CCB has made comments about detention in the past. Indeed, the P.S. decision is based, in part, on the comments made by the CCB. However, as Sharpe J.A. noted, its jurisdiction, at present, is limited. I find that nothing in the Act requires the CCB to make comments and that nothing precludes comments. As argued by the respondent, this was not a situation like P.S. in which insufficient resources were responsible for the mode of detention. In this case, the finding was that the risks posed by the appellant's mental condition required his continued detention.
[41] Accordingly, I confirm the appellant’s status as an involuntary patient at St. Joseph's Care Group – Lakehead Psychiatric Hospital under subsection 20(5) of the Mental Health Act, R.S.O 1990 c. m. 7.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: September 21, 2015
COURT FILE NO.: CV-15-223
DATE: 2015-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Martin Buccholz
Appellant
- and -
Dr. Suzanne Allain
Respondent
DECISION ON MOTION
Newton J.
Released: September 21, 2015
/cs