COURT FILE AND PARTIES
COURT FILE NO.: CV-15-525443
DATE: 20150924
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the application under section 32(1) of the Health Care Consent Act, 1996 S.O. 1996, c. 2, Sched. A., AND IN THE MATTER OF FIONA SACKS on appeal from the Consent and Capacity Board of Ontario (CCB File 14-5000-02)
BETWEEN:
FIONA SACKS
Appellant
– and –
DR. GAMAL SALAMA
Respondent
Joanna Weiss, for the Appellant
Melanie E. de Wit, for the Respondent
HEARD: September 21, 2015
STEWART, J.
REASONS FOR DECISION
[1] The Appellant appeals from a Decision of the Consent and Capacity Board dated March 28, 2015. In its Decision, the Board confirmed the finding of the Respondent (the Appellant’s treating psychiatrist) that the Appellant was incapable of consenting to, or refusing, treatment with anti-psychotic, mood stabilizing and side effect medications. This Decision was made following a hearing before the Board held on March 23, and 27, 2015.
[2] The appellant suffers from paranoid schizophrenia. Her lengthy psychiatric history is set out in the parties’ facta and is not in dispute.
[3] Similarly, the standard of review to be applied to a Decision of this Board on appeal is not in issue. As confirmed by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] S.C.J. No. 33, the standard of review for questions of mixed fact and law or questions of fact alone in a matter of this nature is one of reasonableness. If the Board’s conclusions were among the range of conclusions that could reasonably have been reached on the law and the evidence, they must be upheld on appeal.
[4] The parties also agree on the statutory requirements of the test for incapacity set out in s. 4(1) of the Health Care Consent Act, S.O. 1996, c. 2, Schedule A, as amended.
[5] In this case, the Board panel was persuaded by the Respondent’s evidence, corroborated by the Appellant’s own testimony, that due to her mental condition the Appellant was unable to understand the information relevant to making a decision about the proposed treatment, and that this branch of the test for incapacity had been satisfied on February 23, 2015.
[6] The Board panel also considered the evidence to be clear, cogent and compelling that due to her mental condition the Appellant was unable to appreciate that she suffered from a chronic condition requiring continuous treatment, that the treatments that had previously controlled her symptoms were no longer effective, and that the reasonably foreseeable consequences of her refusal to try a new medication would be continued mental deterioration.
[7] Accordingly, the Board determined that the statutory test had been met in this case.
[8] In my view, the Board’s Decision with respect to these issues was within the realm of the reasonable and is entitled to deference. There is ample evidence in the transcribed record of the hearing to support these conclusions.
[9] The Board was entitled to accept the Respondent’s evidence despite any expressed concern about the nature or brevity of a written record of his assessment on February 23, 2015. The Respondent gave extensive, detailed evidence of his findings, observations and conclusions at the hearing and explained how the Appellant’s lack of responsiveness to his questions and obsessive focus on the insects and snakes invading her body – part of her delusional thinking caused by her mental illness – made the written record of his assessment on February 23, 2015 briefer than might have otherwise been considered ideal.
[10] The Respondent had been attending upon the Appellant frequently since her arrival in hospital. The Respondent’s evidence at the hearing demonstrates a thorough and detailed understanding of the Appellant’s condition and course while under his care. The Board was entitled to accept his evidence as being both credible and reliable.
[11] The Board was similarly entitled to consider some of the Appellant’s own evidence at the hearing to be corroborative of the Respondent’s findings. Although the Appellant was able to describe herself as having paranoid schizophrenia, thus being formally aware of her diagnosis, she was found to have little insight into what that diagnosis means. She denied having any delusions during her hospital admission and described the snakes she said she saw as “real” and said she had counted them coming out of her body. One day at the hospital she had counted 92 snakes, she testified, and accused one of the other patients on the ward of putting the snakes in her. She felt the snakes were not a delusion, they were a “fact”.
[12] Further, the evidence before the Board supports the reasonableness of the extent of its order which is in accordance with the legislative framework for such treatment plans. I see no basis upon which judicial interference would be justified.
[13] For these reasons, the appeal is dismissed.
[14] If costs are being sought and the subject cannot be agreed upon, written submissions may be delivered within 30 days of the date of this decision.
STEWART J.
Released: September 24, 2015
REASONS FOR JUDGMENT
COURT FILE NO.: CV-15-525443
DATE: 20150924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FIONA SACKS
Appellant
and -
DR. GAMAL SALAMA
Respondent
REASONS FOR JUDGMENT
STEWART J.
Released: September 24, 2015