ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-15-529797

DATE: 20151113

BETWEEN:

ANTE MIHALJEVICH
Appellant

– and –

DR. KIRAN PATEL
Respondent

Joanna Weiss, for the Appellant

Kendra A. Naidoo, for the Respondent

HEARD: October 20, 2015

s.a.Q. akhtar j.

FACTUAL BACKGROUND

[1] The appellant is 40 years of age and was found not criminally responsible with respect to criminal charges in 2003. Consequently, he was detained first at the Mental Health Centre in Penetanguishene and subsequently at the Centre for Addiction and Mental Health (“CAMH”). In 2003, the appellant was found to be incapable of consenting to treatment. As an inpatient at CAMH from 2004 to 2008, he was treated with antipsychotic and anxiolytic medications. This treatment proved to be of some success and his mental health improved, although he denied suffering from any mental illness.

[2] From May 2010 to April 2015, the appellant was maintained in the community on a treatment plan which continued to include antipsychotic and anxiolytic medication. In 2010-11 the dosage of antipsychotic medication was reduced by 15% in response to the appellant’s requests. Within weeks, the appellant was observed to be demonstrating an increased level of psychotic symptoms. In order to stabilise his condition, the dosage of antipsychotic medication was increased. In the summer of 2014, the appellant’s condition began to deteriorate through increased substance use, stresses and the emergence of a resistance to his antipsychotic medication. On 14 April 2015, he was arrested on various charges and subsequently re-admitted to CAMH on 17 April 2015.

[3] Once there he was placed in the respondent’s care. The appellant denied suffering from schizophrenia and was observed to be delusional, making statements about satellite and mind control. The appellant was noted as denying any symptoms of mental illness. On 20 April 2015, his outpatient psychiatrist concluded that the appellant was delusional and had limited insight with respect to his condition.

[4] The respondent met with the appellant on 23 April 2015 to explain the treatment plan that would be administered thereafter. After his conversation with the appellant, the respondent formed the view that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack thereof and found him incapable of consenting to treatment. Throughout the meeting, the appellant denied suffering from a mental illness.

[5] On 4 May 2015, the appellant filed an application to review the respondent’s finding with the Consent and Capacity Board (“the Board”) which convened for hearing on 29 May 2015.

The Board’s Decision

[6] The Board rendered its decision the next day, providing full written reasons on 4 June 2015.

[7] The Board accepted the respondent’s view that the appellant was able to understand the information relevant to making treatment decisions. Consequently, the first branch of the Starson test, discussed later in this judgment, was not a matter of dispute.

[8] With respect to the second limb of the Starson test, the Board felt that the evidence presented at the hearing demonstrated that the treatment had a beneficial effect when taken and there would be a deterioration in the appellant’s mental condition if the treatment was refused or stopped. The Board also found that the respondent had discussed and explained the benefits of taking the medication he had proposed. The respondent had also advised of the risks and potential consequences if the appellant did not take the proposed treatment. The appellant, however, had maintained that he did not believe that he was suffering from any of the symptoms of schizophrenia and only took the medication because he “liked the effects of it”.

[9] The Board’s conclusion after reviewing the evidence provided at the hearing was that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment.

[10] The appellant appeals this decision.

THE LEGAL PRINCIPLES

The Statutory Test

[11] The Health Care Consent Act, S.O. 1996, c. 2, Sched. A (“HCCA”) governs the Board’s determination of incapacity through two separate sub-sections. Section 10(1) of the HCCA provides:

10. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or,

b) he or she is of the opinion that the person is 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.

[12] Section 4 of the HCCA defines capacity in the following way:

4. (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

The Standard of Review

[13] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, both the majority and the dissent of the Supreme Court agreed, at paras. 5 and 84, that the standard of review for Board decisions was that of correctness in the interpretation of the law, and reasonableness with respect to its application of the law to the facts before it. Chief Justice McLachlin, dissenting but not on this point, held, at para. 5, that “the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence.” The Chief Justice added, “The fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board's conclusion.” See also Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33.

[14] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 55, Bastarache and Lebel JJ., writing for the majority of the court, made clear that deference is owed to the decision makers at the tribunal level, particularly those that make up a tribunal of specialized experts. See also Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748. At para. 47, Bastarache and Lebel JJ. reviewed the concept of reasonableness and defined it as a “deferential standard” which allowed administrative tribunal to have “a margin of appreciation within the range of acceptable and rational solutions.” They further noted that the inquiry is into whether “the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” If so, the decision is reasonable.

The Test for Capacity

[15] In Starson, the Supreme Court observed that the HCCA presumes a person is capable to decide to accept or reject medical treatment and noted that that presumption is displaced only by the requisites of s. 4 and its two criteria.

[16] In Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, the court emphasized the need for corroboration of the respondent’s opinion when determining capacity under the HCCA. Corroboration is necessary pursuant to s. 14 of the Evidence Act, R.S.O. 1990, c. E. 23, which provides that any finding of incapacity shall not be obtained “unless the evidence is corroborated by some other material evidence.”

[17] In Starson, at para. 80, Major J. described the inquiry into capacity as including an examination of 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.” In Anten, at para. 23, Rosenberg J.A. held that the inquiry requires as a starting point some evidence of the benefits and risks of the treatment and the consequences of not having the treatment.

ISSUES

[18] The appellant raises a number of issues with respect to his appeal of the Board’s decision. It must be remembered that, in applying the Starson test, the ultimate question is, whether on the entirety of the evidence, the Board’s decision was reasonable. For the sake of completeness, however, I will deal with some of the questions raised by the appellant.

1. Did the Board Misapprehend the Evidence?

[19] The appellant submits that the Board’s reasons reveal that it misapprehended the evidence with respect to his use of the prescribed medication. This, he argues, revealed his knowledge of its beneficial effects and accordingly demonstrated his appreciation of the consequences of a decision regarding treatment. He makes the same argument with respect to the evidence of his desire to “taper down” the dosage. He contends that this misapprehension led to the Board misapplying the test for capacity by requiring the appellant to agree that (a) he was suffering from a mental disorder and (b) he would benefit from the introduction of Clozapine. The correct approach, the appellant submits, was to determine whether the appellant had failed to recognise that he was experiencing the manifestations of a mental condition that could be treated by the prescribed medication.

[20] At the outset, I acknowledge that the Board’s findings of fact are entitled to deference on review. The sufficiency of reasons alone does not constitute grounds for determining the reasonableness of the Board’s decision when deciding whether its decision was reasonable: see Dunsmuir, at paras. 47-49; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 14-17.

[21] Upon review, I find no error in the Board’s reasons. The appellant’s argument that his use of the medication demonstrated an appreciation of the consequences is belied by his own evidence: the appellant testified that he was taking his prescribed treatment simply to co-operate and “play ball”. Significantly, he did not acknowledge its beneficial effects and, in contrast, stated his belief that he did not need the medication as it served no purpose. His motivation in reducing the dosage of medication was to explore the consequences of doing so. He believed that eliminating the medication would not result in any deleterious effects because it was providing no real benefit and, further, that cancelling the medication would actually make him feel better as he would no longer feel as lethargic. There was no error in the way in which the Board characterised this evidence, and its reasons illustrate the appellant’s inability to appreciate the manifestations of his illness.

2. Was There Evidence of Benefit?

[22] I also disagree with the appellant’s argument that there was no evidence of benefit from the prescribed medication. The respondent’s testimony and clinical records confirmed a clear improvement of his condition through the treatment. It is also evident that when the appellant’s dose of medication decreased, his condition worsened, and that when the dosage was increased, the appellant’s condition improved. Finally, the respondent gave evidence that withdrawal of the treatment plan would result in a deterioration of the appellant’s condition which could lead to a risk of violence.

3. Was the Appellant’s Concern Regarding Side Effects Relevant?

[23] The appellant argues that his concern over the medication’s side effects indicates that he was aware of the manifestations of his medical condition. I reject this argument. The respondent testified that the appellant’s concerns were unrealistic and far-fetched. At the same time as raising concerns about his health, the appellant refused investigations resulting from other physical concerns raised by his medical team.

[24] More importantly, the appellant’s disquiet on the side effects of the medications was based on a false premise. The side effects complained of - Parkinson disease style symptoms - would be more likely to subside if the appellant actually took the prescribed medication, Clozapine. Critically, the respondent took the view that even if the medication was changed to accommodate the appellant’s fears with respect to side effects, he would still not appreciate the benefits of treatment.

[25] Once again, the appellant’s beliefs regarding the benefits and side effects of the proposed treatment originated from his refusal to accept that he suffered from a mental illness rather than any desire to find appropriate medication. Rather than demonstrate the appellant’s ability to foresee the consequences of making a decision, the appellant’s resistance to the treatment actually demonstrates the opposite.

4. Did the Board Adequately Discuss the Benefits of the Treatment with the Appellant?

[26] The appellant argues that the Board fell short in its obligations under the second limb of the Starson test by failing to properly discuss the benefits and risks of the treatment. The appellant relies upon Masih v. Siekierski, 2015 ONSC 2877, at paras. 39 and 41, for the proposition that evidence of the substance of the discussions must be before the Board to properly permit a finding of incapacity. I am not convinced that the paragraphs relied upon stand for that proposition. In Masih, Matheson J. found the evidence of benefits to be lacking in the following way, at para. 39:

The appellant’s position is founded on the dearth of evidence before the Board about benzodiazepines in particular. And there is a dearth of evidence. The respondent testified that he attempted to discuss this drug with the appellant, and, in response to a question from the Board, the respondent confirmed that he discussed the risks and benefits of the drug with the appellant. That was the extent of the evidence. There was no evidence put forward about the substance of those discussions. There was no evidence put forward about the actual benefits and risks and expected consequences of that particular treatment. Some evidence of the benefits and risks and expected consequences is required: Anten v. Bhalerao, 2013 ONCA 499 at para. 23. [Emphasis added].

[27] The lack of any evidence of discussion was merely incidental to Matheson J.’s observation that, under Anten, it had to be shown that there would be some benefit to the treatment. In this case, of course, as noted above, the respondent’s testimony was evidence of the overall benefits of the treatment plan. Masih, in my view, is not authority that evidence of the substance of discussion of the risk and benefits of the treatment is mandatory.

[28] Alternatively, if I am wrong on this point, I find that there was more than sufficient evidence of the discussions that took place between the appellant and the respondent. The respondent testified that he had discussed the medications with the appellant but those discussions were halted by the appellant’s refusal to accept the need for any medication. A review of the transcript of proceedings reveals that this evidence was not challenged at the Board hearing. The respondent’s Progress Notes and Clinical Summary, produced to the Board, demonstrate that the treatment plan had been discussed in its entirety with the appellant.

5. Was the Board’s Decision Reasonable?

[29] Ultimately, however, the question for this court is whether the Board’s decision was reasonable based on the evidence and the findings that it made. In my view, the Board’s conclusion that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision was amply supported by the evidence.

[30] The respondent testified that the appellant was being treated with Clonazepam, an anxiolytic medication, in concert with his antipsychotic medication. This had been the case for several years with the Clonazepam used primarily to calm the appellant’s agitation. The appellant, however, had a history of requesting the medication for inappropriate purposes not connected to agitation or anxiety thereby demonstrating an inability to appreciate the consequences of a decision or lack thereof.

[31] The appellant also felt that he did not need a “major tranquilliser” indicating that he did not appreciate the symptoms stemming from his mental condition. His reasoning for taking Clonazepam was not because it treated his symptoms but because it made him relaxed when other people made loud noises or screamed. Once again this demonstrated a lack of appreciation of the purpose of the treatment and therefore an inability to appreciate the consequences of making a decision.

[32] Despite the appellant displaying the manifestations of schizophrenia such as paranoia, delusional beliefs and psychomotor agitation, the appellant repeatedly denied his condition or symptoms. The appellant’s failure to understand his condition led to a failure to appreciate the purpose of the medication and the potential benefits. The appellant informed the Board that he was only taking the antipsychotic medication because he was “playing ball” and that in his opinion “[i]t doesn’t do nothing.” As noted, his view was that the treatment should be tapered down and eventually discontinued. As he was unable to accept that he suffered from any condition, the respondent’s view was that the appellant’s ability to appreciate the consequences of a decision was foreclosed. The Board was entitled to rely upon this evidence to determine incapacity: see D'Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250. The appellant’s own account provided corroboration of the respondent’s view of incapacity.

[33] In conclusion, I find that the Board’s decision was reasonable and without error.

[34] The appeal is accordingly dismissed.

S.A.Q. Akhtar J.

Released: 13 November 2015

COURT FILE NO.: CV-15-529797

DATE: 20151113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANTE MIHALJEVICH
Appellant

– and –

DR. KIRAN PATEL
Respondent

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.