Ness v. Geagea, 2015 ONSC 623

COURT FILE NO.: CV-14-509155

CV-14-509159

DATE: 20150202

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF appeals from decisions of the Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended, and the Mental Health Act, R.S.O. 1990, c. M.7.

RE: Amy Ness, Appellant

AND: Dr. Justin Geagea, Respondent

BEFORE: Justice Matheson

COUNSEL: Joanna Weiss, for the Appellant

Kendra A. Naidoo, for the Respondent

HEARD: January 19, 2015

ENDORSEMENT

[1] Amy Ness appeals from two decisions of the Consent and Capacity Board dated July 19, 2014, which confirmed a finding of incapacity made by the respondent Dr. Geagea and confirmed a Community Treatment Order (“CTO”). The two appeals were heard together.

[2] At the time of the hearing before the Board in July 2014, the appellant was a 43-year-old educated woman supported by ODSP. She had been diagnosed with schizophrenia in 2004 and, since 2009, has been the subject of a CTO.

History prior to CTO

[3] When the CTO was first put in place, the appellant had a history of multiple hospital admissions. She was first admitted to the Centre for Addiction and Mental Health (“CAMH”) in June 2002. She presented with signs of psychosis and was found to be incapable of consenting to treatment. Her mother, Lorna Luke, provided substitute consent. The appellant remained an inpatient for approximately one month.

[4] The appellant was again admitted to CAMH in February 2003. She was admitted voluntarily, upon urging from her mother. She had been living in a shelter, and presented with deteriorating mental status. While admitted, she was observed responding to internal stimuli and was unwilling to take her prescribed doses of medication. She discharged herself one month later.

[5] In April 2004, the appellant was admitted to CAMH for six weeks and was diagnosed with schizophrenia. She had been living in a shelter, where she believed others were trying to poison her food and medication. She experienced referential and persecutory ideas and illusions. Prior to admission, she attacked a nurse at St. Joseph’s Hospital, where she had also been admitted. At CAMH, she was treated with antipsychotic medication and her symptoms subsided. However, she did not recognize that the medications may have played a role in her clinical improvement.

[6] In December 2007/January 2008, the appellant was a patient at St. Michael’s Hospital for about two months. Over the course of that hospital admission, the diagnosis of schizophrenia was confirmed.

[7] The appellant’s most recent admission was to CAMH in February 2009. She was admitted after she threatened her mother with a large knife upon discovering literature related to schizophrenia in her mother’s home. When she arrived at CAMH, the appellant was disorganized in her thinking and responding to internal stimuli. She was angry and aggressive, kicking and punching a physician in the emergency room. She was found to be incapable of consenting to treatment, and her mother provided substitute consent to treatment with antipsychotic medication. Once treated, the appellant’s condition improved such that upon discharge she was no longer irritable, hostile, or angry, and was no longer responding to internal stimuli.

[8] In April 2009, the appellant was discharged from CAMH on a CTO issued by the respondent. The CTO required her to take antipsychotic medication in a relatively low dose, to attend appointments with the respondent and an occupational therapist and to submit to blood work or urine testing. The primary purpose of the appointments and testing was to monitor the appellant’s compliance with her antipsychotic medication.

Post-CTO

[9] While under the CTO, the appellant has become an active and engaged community member with a variety of interests, especially in the arts. She has developed a supportive network of friends and other community supports. She has been living independently in stable housing. She has not had a psychiatric admission to hospital since 2009.

[10] Over the years, the appellant has generally adhered to her Community Treatment Plan and complied with her obligations under the CTO. However, there was one point in time in 2013 when the appellant briefly stopped her medication and began to respond more to internal stimuli.

[11] The CTO has been renewed many times since 2009, unchanged.

Orders in question

[12] On May 23, 2014, the respondent assessed the appellant and was of the opinion that she remained incapable of consenting to treatment. Specifically, he found that she was incapable with regard to antipsychotic medication and the Community Treatment Plan (“CTP”). The respondent noted that the appellant was “unable to appreciate the foreseeable risks of taking or not taking [antipsychotic] meds, and being on a CTP ([antipsychotic] meds cornerstone of treatment).” The respondent discussed with the appellant the side effect profile of the medication and the reasonably foreseeable consequences of taking antipsychotic medication and being on a CTO versus not doing so.

[13] The respondent was of the opinion that the criteria for renewing the CTO were met. The CTP was entered into on May 26, 2014, by the respondent, and consent was obtained from the appellant’s substitute decision-maker, her mother. A Notice of Intention to Issue or Renew the CTO was filled out on May 26, 2014, and the appellant and Ms. Luke then received Rights Advice. The CTO was signed by the respondent and Ms. Luke as substitute decision-maker.

[14] On May 30, 2014, the appellant applied to the Board for a review of her capacity with respect to treatment, and a review of whether or not the criteria for renewing the CTO were met. The Board convened a hearing on July 18, 2014. It received documentary evidence and heard oral evidence from the appellant, the respondent and Ms. Luke.

[15] The Board confirmed the respondent’s finding that the appellant was incapable with respect to treatment. It further found that all the statutory criteria for the renewal of the CTO were met. It therefore confirmed the CTO. The appellant then brought these appeals.

Discussion

[16] There is no dispute between the parties about the legal principles applicable to the two appeals, including both the legal principles that apply to the Board’s decisions and those that determine the standard of review.

[17] The standard of review for questions of law is correctness. For questions of mixed fact and law, or questions of fact alone, the standard of review is reasonableness: Starson v. Swayze [2003] 1 S.C.R. 722, 2003 SCC 32 at para. 5.

[18] The issues on these appeals are largely factual, or questions of mixed fact and law. The standard of review is reasonableness. The question is therefore whether the Board’s decisions were among the range of conclusions that could reasonably have been reached on the law and the evidence before it: Starson, above.

[19] Bearing the standard of review in mind, I will now address the two appeals: first, with respect to incapacity, and second, with respect to the CTO.

Capacity

[20] The test for capacity with respect to treatment is found in section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, which provides as follows:

4(1) 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.

[21] A person is presumed capable with respect to treatment. The onus of proving incapacity is on the person alleging it. Further, capacity can fluctuate over time – the relevant time is the time of the hearing: Starson at para. 118.

[22] In considering capacity, it is appropriate for a Board to consider whether or not the patient appreciates that he or she is affected by the manifestations of a mental condition. As set out in Starson at para. 79, per Major J.:

[I]f the patient’s condition results in [the patient] being unable to recognize that [the patient] is affected by its manifestations, [the patient] will be unable to apply the relevant information to [the patient’s] circumstances, and unable to appreciate the consequences of [his or her] decision.

[23] The second branch of the test for capacity – the ability to appreciate the reasonably foreseeable consequences of the decision or lack thereof – is not met where the person is unable to apply the information about the proposed treatment to his or her own situation: Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (C.A.) at p. 314-15.

Decision appealed from

[24] The Board articulated the correct legal test for capacity in its Reasons for Decision, and applied both branches of that test to the facts before it. It found that the first of the two required elements of section 4(1) was met. The Board concluded that the appellant was able to understand the information relevant to making a decision about treatment. However, the Board concluded that the appellant was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment.

[25] The Board found that the “evidence, taken as a whole, including [the appellant’s] own testimony, amply supported the doctor’s conclusions concerning [the appellant’s] capacity.” The Board found that even after years of treatment, the appellant was still unable to see that she was in fact suffering from serious manifestations of mental illness. It observed that even with the remarkable success she had achieved in the community over the prior five years, she was adamant on the day of the hearing that “half of Toronto” was against her. She blamed others for her past aggression. She was not able to evaluate information concerning proposed types of treatment as they related to her own circumstances and was incapable of making a decision regarding treatment. The Board concluded that the appellant was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment.

Issues on appeal

[26] On appeal, appellant’s counsel submitted that the Board erred in two ways. First, she submitted that the Board based its decision on only two facts: that the appellant suffered from a major mental illness and that the appellant could deteriorate if off her antipsychotic medication. On the contrary, it is apparent from the Board’s reasons for decision that it did not limit its consideration or decision-making in this way.

[27] Second, appellant’s counsel submitted that the Board inadequately considered or mischaracterized her evidence regarding her acknowledgment of her mental illness, the effects of the antipsychotic medication on her, and alternative forms of treatment, and did not fully consider the evidence of Ms. Luke.

[28] Appellant’s counsel submitted that the appellant’s preference not to use the label “schizophrenic” did not mean she lacked insight into her mental illness. I agree. However, the Board did not reach its decision for that reason.

[29] Appellant’s counsel also relied upon the evidence of Ms. Luke, who said in her testimony that she believed that “deep down” the appellant knew she had a disease because she would say, “I know I am schizophrenic, but...” However, the Board had considerable other evidence before it, including the appellant’s own evidence. The Board was not required to take that one statement by Ms. Luke in isolation in considering to what extent the appellant acknowledged her mental illness. It was open to the Board to weigh all of the evidence before it.

[30] With respect to the appellant’s own testimony regarding her acknowledgment of mental illness, while she did not deny that she had mental health issues, she defined those issues as anger management problems, food and alcohol addictions, and “perceived” psychosis. Thus, her acknowledgment of mental illness was not consistent with an ability to appreciate or recognize the past and current manifestations of her mental condition. She testified that what she meant by “perceived psychosis” was that during past events she was going through “deep spiritual changes” and was agitated, angry, and over-reactive, and other people perceived that as psychosis. She testified that to her, psychosis meant losing touch with reality and not having insight into her healing, and went on to say that she was in touch with reality and had insight. She attributed her past psychosis to external factors. The appellant testified that “the reason why I am in this mess is because I was challenged by people in the community who intentionally aggravated me and provoked me and tried to undermine my mental health with the intention to arrest me and have me medicated.”

[31] With respect to antipsychotic medication, the appellant testified that she had not found the medication to be positive or beneficial, that she experienced no difference regardless of whether she was on or off the medication and that any progress she made was not due to the antipsychotic medication. She reiterated her desire to stop the medication throughout her testimony before the Board. She preferred alternative forms of treatment. and testified about the alternative forms of treatment that she would pursue, such as an online “hearing voices” group, yoga, mindfulness studies, a healthy diet, friendship and community support. There was an isolated statement by the appellant that she “would consider” taking a “mild antipsychotic” if she was not on the CTO. Again, the Board was not required to take that one statement in isolation in reaching its decision. It was entitled to weigh all the evidence before it.

[32] Based on the whole of the evidence, including the appellant’s own testimony and that of Ms. Luke, I conclude that the Board’s decision confirming the respondent’s finding of incapacity was reasonable.

CTO

[33] The criteria for renewing a CTO are set out in section 33.1(4) of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). As well as challenging compliance with that section, the appellant challenged the Board’s finding of compliance with section 33.1(10), regarding the provision of certain forms.

[34] Beginning with section 33.1(10), that section requires that the physician who issues or renews a CTO ensure that a copy of the CTO, including the CTP, is given to the person, along with a notice that the person has a right to a hearing before the Board. In this case, the appellant testified that she did not receive the CTO (also called a Form 45), CTP, or notice (also called a Form 46).

[35] The documents in question were signed in late May 2014. The evidence before the Board included the respondent’s testimony that he signed the Form 45 in the presence of the appellant and that in accordance with CAMH’s standard practice the Form 45, CTP and Form 46 were mailed to the appellant, as is specifically recorded in the hospital’s records. Further, the evidence was that the appellant never indicated to the respondent that she did not receive the documents and the mailing was not returned as undeliverable. The appellant testified that she recalled receiving some materials by mail in May, which she “recycled” without reviewing the contents.

[36] The Board found as a fact that the respondent had met the burden of proving the documents had been given to the appellant in accordance with the above section. It accepted the testimony of the respondent and the documentary evidence that the documents had been mailed to the appellant. It found that the appellant had an honest but mistaken belief that she did not receive the documents, and it was clear that she did not read all her mail before recycling it. The Board’s finding was supported by evidence and was reasonable.

[37] There is then the question of compliance with the criteria for the renewal of a CTO under section 33.1 of the MHA.

[38] Several issues were raised on appeal. To begin with, appellant’s counsel submitted that the Board had failed to adequately consider the purpose of CTOs, as set out in s. 33.1(3). That subsection provides as follows:

(3) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility. [Emphasis added.]

[39] There is no question that in 2009, when the CTO was first put in place, the appellant had a “revolving door” history of stabilization in hospital, discharge, noncompliance, decompensation and readmission to hospital. That pattern fit with the specific purpose set out in the latter part of section 33.1(3). On this appeal, appellant’s counsel submitted that that “revolving door” pattern had successfully been broken and the CTO was therefore no longer needed. She suggested that the Board relied too heavily on the history of hospital admissions prior to 2009.

[40] This argument oversimplifies the purpose of section 33.1. Section 33.1(4)(a) expressly recognizes that a current “revolving door” pattern is not a necessary prerequisite to the renewal of a CTO. It allows for the possibility that the CTO could be the reason for breaking the pattern, and still be needed to continue to maintain that outcome. The criteria set out in section 33.1(4) provide the basis upon which to decide whether or not the CTO should be renewed. The Board needed to be satisfied that each and every one of those criteria was met.

[41] Further, the Board had before it considerable evidence relating not only to the appellant’s past history but also to her likely continuing pattern of noncompliance and readmission. It accepted evidence that without the CTO, due to her mental disorder, the appellant likely would not take antipsychotic medication, would suffer substantial mental deterioration as a result, and would likely require re-hospitalization. Its decision to confirm the renewal of the CTO was based not only on the appellant’s psychiatric history, but also on the respondent’s most recent assessment as well as the other current evidence before it including the appellant’s own testimony. The Board proceeded to consider each and every element of section 33.1(4), and took into account the substantial progress made by the appellant.

[42] Appellant’s counsel further submitted that the CTO may have been renewed “out of habit” or out of a desire to continue the status quo rather than by sufficient re-examination of the necessary criteria for a CTO as of the date of the hearing.

[43] It would, indeed, be inappropriate to renew a CTO “out of habit.” The legislative regime reflects the intention that the continuation of a CTO should not be an automatic course of action. Section 33.1(11) expressly provides that a CTO expires six months after the date made unless it is renewed or has already terminated. Further, a renewal may only be for a period of six months, as set out in section 33.1(12). And there are no shortcuts with respect to the criteria for CTO upon renewal, except that under section 33.1(4)(a), as discussed above, repeated psychiatric hospital admissions in the prior three-year period are not required.

[44] It was therefore incumbent upon the Board to be satisfied that all the applicable criteria under section 33.1(4) were met as of the date of the hearing. Section 33.1(4) provides as follows:

(4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

[45] Appellant’s counsel submitted that the criteria in subsections 33.1(4)(b) and (d) were not met, emphasizing that the CTP was unchanged despite significant change of circumstances.

[46] These subsections were specifically considered by the Board and the subject of evidence before it. The respondent testified that he had consulted with the appellant, Ms. Luke, the CTO coordinator and her assigned caseworker. He testified about why the CTP had not changed despite the appellant’s improved circumstances, indicating that it was already at its “bare-bones.”

[47] Appellant’s counsel focused on Ms. Luke, who testified generally about the discussions she had with the respondent from time to time, and whose memory was not as good as that of the respondent. However, it was open to the Board to consider her general evidence together with the respondent’s clear recollection of their discussion in concluding that the criteria were met.

[48] Appellant’s counsel also raised the fact that her medication is at a low dose, in support of the argument that the CTO is unnecessary. However, the Board had the respondent’s testimony in support of that being the dose that was therapeutic and worked for the appellant. He testified that he believed that antipsychotic medication was absolutely necessary to maintain the appellant’s stability and success in the community and the CTO was necessary to ensure compliance with the antipsychotic medication.

[49] The appellant also indirectly challenged compliance with subsection (4)(c)(iii). Section 33.1(4)(c) imposes a requirement for a timely physician’s opinion on a number of matters. There is no question that the opinion was provided by the respondent and addressed all the matters listed in section 33.1(4)(c). However, appellant’s counsel suggested that there was insufficient evidence that the appellant would suffer substantial mental deterioration without the CTO and that there was undue reliance on the pre-2009 events. There was, however, considerable evidence before the Board that the respondent did a timely assessment and did consider the appellant’s progress in reaching his opinion.

[50] Lastly, the appellant challenged compliance with subsection (4)(f), which requires consent of the patient or the substitute decision-maker. This ground of appeal overlaps with the challenge to the Board’s decision on capacity. The appellant’s position was that her consent was required, since she had capacity to consent to treatment. However, in that I have upheld the Board’s decision on capacity, it was Ms. Luke’s consent that was required. Ms. Luke did consent, as substitute decision-maker, as required by subsection (4)(f).

[51] Based on the whole of the record before the Board, including the appellant’s testimony, I conclude that the Board’s confirmation of the renewal of the CTO was reasonable.

Decision

[52] These appeals are therefore dismissed. No costs were sought and none are awarded. I thank both counsel for their able written and oral submissions.

Justice Matheson

Date: February 2, 2015