COURT FILE NO.: 14-48968
DATE: 2015-11-24
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to the Mental Health Act
as amended
AND IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board
Pursuant to the Health Care Consent Act
S.O. 1996, chapter 2, schedule A
As Amended
AND IN THE MATTER OF
M.T.
A patient at the
ST. JOSEPH’S HEALTHCARE HAMILTON – CHARLTON CAMPUS
HAMILTON, ONTARIO
BETWEEN:
M.T.
Appellant
– and –
Dr. Henry Bibr
Respondent
Appearing in person
J. Blackburn, Counsel for the Respondent
HEARD: May 11, 2015,
September 28, 29, 2015
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] M.T. appeals from the decision of the Consent and Capacity Board (“Board”) dated August 28, 2014. Following a hearing on August 20, 2014 the Board confirmed M.T.’s involuntary status, pursuant to the Mental Health Act (“MHA”), and that she was incapable of consenting to proposed psychiatric treatment, pursuant to the Health Care Consent Act, 1996 (“HCCA”). For the reasons that follow, the appeal is dismissed.
[2] M.T. was represented by counsel at the Board hearing. She chose to represent herself on this appeal, having discharged counsel retained and being granted several adjournments to retain other counsel. In the circumstances, I allowed her additional time to fully present her submissions even though such resulted in a lengthy hearing. M.T. well understood the process, the issues and the applicable legal principles. She prepared a fifty-nine page factum, as well as a book of authorities, and presented her submissions over almost two days.
Overview
[3] M.T. is 52 years of age. She has an undergraduate degree and was employed as a teacher until 1999. M.T. has resided with her elderly parents in Hamilton since approximately 1990, save for those periods of time when she was admitted as an involuntary patient to St. Joseph’s Healthcare as follows:
(i) October 2003 to January 2004;
(ii) July 17, 2006 to September 25, 2007;
(iii) September 16, 2009 to October 15, 2009;
(iv) July 19, 2010 to July 30, 2010; and
(v) June 30, 2014 to the present.
[4] The hospital records consistently identify aggressive and paranoid behaviour prior to admission. As on June 30, 2014, the admissions to St. Joseph’s on July 17, 2006 and July 19, 2010, resulted from family members contacting the Crisis Outreach and Support Team (“COAST”), a specialized unit of the Hamilton Police Service.
[5] The hospitalization period of July 2006 to September 2007 is of particular interest. M.T. appeal the Board’s decision dated August 11, 2006. On April 11, 2008, Harris J. dismissed the appeal. M.T. sought an extension from the Ontario Court of Appeal to file her notice of appeal. Her motion was dismissed on October 14, 2008.
[6] M.T. is an intelligent person. She well understands the statutory provisions and the legal provisions and the legal principles pertaining to her case. M.T. is well versed in the appeal process, both to the Board and to this court. Simply put, she knows how to manipulate the system and cause delay and prevent treatment.
[7] M.T. was diagnosed with “schizoaffective disorder or bipolar type of a chronic nature”. This disorder is said to be treatable. M.T. refuses to accept the diagnosis, claiming repeatedly she is not ill. M.T. will not consent to any treatment as recommended.
[8] The frustration in dealing with patients such as M.T. is readily ascertainable in the discharge summary of Dr. Adam on the last hospitalization, dated July 30, 2010 when she wrote:
The patient, during her hospitalization, was both made incapable and involuntary. Her history has been that she continues to appeal everything and I was not willing to have M.T. in hospital for another year and a half as with previous admissions I have had with her. I exercised my duty to warn the parents to not let M.T. in their house for their own safety and the parents are agreeable to this and are willing to call the police if M.T. shows up at their door.
[9] Later in the discharge summary, Dr. Adam spoke of the inability to pursue treatment, saying:
M.T. simply refuses medications. The Review Board always makes her incapable for treatment. M.T. then goes through a very long and drawn out process of what she asks for appeals and then stalls and prolongs the appeal process as long as possible, which is what happened in 2006 and 2007. I told the parents that I unfortunately cannot force treatment on her and given her lintiginous nature, I do not see treatment occurring any time soon. I did inform the parents that they need to keep themselves safe in their own home and they need to not let their daughter M.T. back in their home for their own safety. Given that she has been physically assaultive with them in the past. They were all agreeable that they did not want M.T. to come back to the home and I gave them very specific instructions to call the police, if she does show up at their doorstep. Both M.T.’s parents are quite capable of understanding this and they were both in agreement that they would do this if need be. They also said that M.T. would most likely stay in a hotel rather than go to a shelter and that she did have money from her savings from worked as a teacher and the bank. As well, I checked with the family to see if M.T. does have a key to her parent’s home and the parents say she does not. The only risk I found M.T. to be was a potential risk to the safety of her parents. With this plan in place that M.T. is not to return to the home, I am less concerned about the parent’s risks and the parents are understanding that if they are bothered by their daughter to call the Police. On July 30th, I have decertified M.T. M.T. would not believe that I made her a voluntary patient and therefore I read the form out to her and my understanding is that she did eventually even get a photocopy of this. She then wanted to be made capable prior to discharge. I told M.T. that in my opinion she still remains incapable to treatment but that it becomes a moot point upon her discharge from hospital, she just simply does not understand things and she still wants us to go ahead with the Review Board to be booked. (Again M.T. stalls on these procedures to make them as long as possible). I made M.T. aware that now that she is a voluntary patient and that she is being discharged from hospital there would be no Review Board happening regarding incapacity. I think M.T. confuses the Superior Court of Appeal process with Review Board process and they are both two separate procedures. The parents have been made aware that M.T. will be discharged. They would have liked us to keep her in hospital for another week, but I did not see the point being that she simply is not going to be treated even if we have a Review Board and they find her incapable, which I am confident they would have, again because of the appeal process which is continuous with M.T. she would be in hospital again for a period of years and left untreated.
[10] Unfortunately, M.T.’s parents allowed her to return to their residence. The pattern of behaviour repeated. COAST was called on June 30, 2014. A similar diagnosis was presented following assessment. The Public Guardian and Trustee provided consent to specified treatment on July 7, 2014. Treatment was delayed when M.T. requested a review by the Board and then appealed to this court.
[11] As predicted by Dr. Adam in 2010, M.T. has again been an involuntary patient at St. Joseph’s for a year and a half without treatment.
Events
[12] On June 30, 2014, D.T., the 83 year old mother of M.T., called COAST regarding her daughter. At the Board hearing, she testified as to her concerns, including:
(a) M.T. had thrown objects at her, such as a bottle of hand cream that struck her head;
(b) M.T. had grabbed her hands, refusing to release, causing pain due to prior surgery to same;
(c) M.T. had locked her in the bathroom for 2 ½ hours until her 86 year old husband was able to open the door;
(d) M.T. was not bathing;
(e) M.T. generally stayed in her bedroom during the day, emerging at approximately 9:30 p.m.;
(f) M.T. would wake her and her husband up at night to speak to them;
(g) she was concerned her husband might be injured when acting to assist her from M.T. as he was physically unstable;
(h) M.T. prevented her from communicating with neighbours.
[13] V.T., a brother of M.T., confirmed his mother’s description of M.T. He also referred to his mother sleeping downstairs in a chair beside his father (he remained on the ground floor due to health reasons) instead of her upstairs bedroom to avoid M.T. at night. He expressed the concern as to his parents being afraid of M.T.
[14] COAST attended the residence and thereafter transported M.T. to St. Joseph’s on June 30, 2014. The triage time was recorded as 4:16 p.m.
[15] M.T. was examined by Dr. Upadhye in the Emergency Department. He completed a Form 1 Application for Psychiatric Assessment. The form indicates such occurred at 6:50 p.m., that detention commenced at that time and, as well, that he delivered a Form 42 to M.T. also at that time. M.T. would dispute such event as hereafter discussed.
[16] In the Form 1, Dr. Upadhye recorded:
(a) “Box A – Section 15(1) of the MHA
Serious Harm Test
The Past / Present Test
I have reasonable cause to believe that the person:
has attempted or is attempting to cause bodily harm to himself or herself;
has behaved or is behaving violently towards another person,
has caused or is causing another person to fear bodily harm from him or her, or
has shown or is showing a lack of competence to care for himself or herself
My own observations:
Patient agitated, brought by COAST re: poor self-care, aggressive behaviour with elderly parents
The Future Test
I am of the opinion that the person is apparently suffering from mental disorder of a nature or quality that will likely result in:
serious bodily harm to himself or herself,
serious bodily harm to another person,
serious physical impairment of himself or herself.
I base this opinion on the following information:
My own observations: Known schizoaffective disorder, narcisstic personality disorder, not medicated/noncompliant.
Facts communicated by others: COAST corroborates same.
[17] Completion of the Form 1 authorized St. Joseph’s to detain M.T. for a maximum of 72 hours, unless a subsequent assessment was completed before the expiration of the time period as next discussed.
[18] Dr. Spinner first saw M.T. on July 2, 2014. She diagnosed M.T. as suffering from “schizoaffective disorder, bipolar type”. During the examination M.T. denied that she was ill, a position she has taken throughout this case. A further review took place on July 3, 2014 by Dr. Spinner and a diagnosis rendered of a “major chemical imbalance, bipolar or schizoaffective”. At the Board hearing, Dr. Spinner reported the disorder can be treated effectively so that people can go on with their lives.
[19] Dr. Spinner completed a Form 3 Certificate of Involuntary Admission in the afternoon of July 3, 2014 which would bring it within the time period required in Form 1. Dr. Spinner’s opinion was that M.T. was incapable with respect to making decisions respecting treatment because her lack of insight and lack of understanding was related to her mental illness. Dr. Spinner went on to say this had been a historical pattern with M.T., returning to the community after hospitalization but untreated due to her lack of insight. Dr. Spinner completed a Form 30 Notice to Patient on July 3, 2014. She delivered it to M.T. at dinner around 5:00 p.m.
[20] On July 3, 2014, Dr. Spinner also concluded M.T. was not capable of consenting or refusing the proposed treatment plan. She then completed a Form 33 Notice to Patient as to same between 7:00 and 9:00 pm. As Dr. Spinner felt it was too late that evening to deliver the form to M.T., she did so on July 4, 2014 in the morning.
[21] M.T. spoke to a rights advisor thereafter.
[22] Dr. Bibr assumed responsibility for the care of M.T. on July 14, 2014. Following his examination, Dr. Bibr concurred with the opinions of Dr. Spinner. In particular, he opined as to M.T.’s ability to understand information but the inability to appreciate the consequences of her decision-making. Her inability, he concluded, was due to her illness.
[23] Dr. Bibr completed a Form 4 Certificate of Renewal on several occasions due to the adjournment of the Board hearing.
[24] Dr. Spinner and Dr. Bibr have maintained their opinions of M.T. throughout the process. Concerns were expressed as to M.T.’s anger and the risk to her mother. Despite assurances to the previous psychiatrist in 2010, the parents had allowed M.T. to return home. Dr. Spinner also spoke of her own concerns regarding M.T.’s anger and the resultant hospital protocol requiring two staff to interact with M.T. Dr. Bibr felt it was likely M.T. would return home if her admission was made voluntary. He also commented that even in the hospital M.T. was easily agitated and could get angry. This anger, he said, can escalate into verbal or physical violence. Dr. Bibr was of the opinion that M.T.’s abusive treatment of her mother was likely to happen again.
[25] On July 9, 2014 M.T. made application to the Board to review both her involuntary status and the finding of incapacity made by Dr. Spinner.
[26] The Board hearing occurred on August 20, 2014. Dr. Bibr represented himself. M.T. was represented by counsel. Dr. Bibr, Dr. Spinner, D.T. and V.T. testified for the respondent. M.T. testified on her own behalf. The Board rendered a decision that day confirming Dr. Spinner’s findings. At M.T.’s request, the panel released their reasons for decision on August 28, 2014.
[27] M.T. immediately served a notice of appeal the same day.
Issues
[28] The primary issues raised on this appeal are:
(i) whether the Board erred in determining M.T. was properly admitted to St. Joseph’s as an involuntary patient and met the statutory criteria under the MHA as at the date of the hearing; and
(ii) whether the Board erred in confirming that M.T. was incapable of consenting to or refusing the proposed treatments as at the date of the hearing.
[29] M.T. submits there were numerous errors in terms of those issues, both of a substantive and a procedural nature. Most are framed as errors of law. However, the underlying framework of her complaint, for the most part, is that the Board did not accept her evidence regarding relevant events.
[30] M.T. raised an alleged breach of sections 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms in her factum. Such was abandoned at the hearing as M.T. had not given notice of a constitutional question to the Attorney General of Canada and the Attorney General of Ontario.
[31] M.T. also raised an issue regarding the adequacy of the physician’s examination underlying the execution of the Form 1 in her factum, an issue not raised before the Board. M.T. did not pursue this issue in her submissions.
Standard of Review
[32] The standard of review for questions of law is correctness. For questions of fact, or mixed law and fact, the standard is reasonableness. See: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 45
[33] Reasonableness considers the existence of justification and intelligibility within the decision-making process and whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. See: Dunsmuir, at para. 47; Law Society of New Brunswick v. Ryan, 2003 SCC 20, at para. 46; and Newfoundland & Labrador Nurses’ Union v. HMTQ, 2011 SCC 62, at paras. 11 and 18.
Consent and Capacity Board
[34] The Board is considered a specialized tribunal. The Legislature has explicitly assigned the hearing of witnesses and the assessing of evidence to the Board. The Board is uniquely positioned to hear the evidence of the patient and the physician. Typically, as here, the panel is composed of a psychiatrist, a lawyer and a community member. They have become experienced in dealing with legal and medical issues pertaining to capacity and consent to treatment. It is the function of the Board to weigh the evidence. As a general rule, considerable deference is owed to the Board. See: Starson v. Swayze, 2003 SCC 32 at paras. 5 and 86. Also see, for example, Law Society New Brunswick, at paras. 30-46.
[35] The statutory mechanism for a Board review is intended to expedite the process as treatment is considered a principal aim of the legislation. See: Starson, at para. 87. Here, the hearing by the Board occurred on August 20, 2014. Earlier dates were scheduled but adjourned at the request of M.T.
Discussion and Analysis
(i) Delivery of Form 42 to M.T.
[36] On June 30, 2014 Dr. Upadhye conducted an examination of M.T. in the emergency department at St. Joseph’s and thereafter completed a Form 1, Application for Psychiatric Assessment, at 6:50 p.m., pursuant to section 15 MHA, as previously discussed. Sections 38.1 and 38.2 of the Act required Dr. Upadhye to “promptly” give written notice of the application to M.T., stating the reasons for detention and indicate she has the right to retain and instruct counsel without delay. This is accomplished by delivery of a Form 42 to the patient.
[37] There was an evidentiary dispute before the Board as to whether the Form 42 was delivered “promptly” to M.T.
[38] Form 1 was presented in evidence at the Board hearing. It was dated and signed by Dr. Upadhye three times to indicate:
(a) the application itself;
(b) the date and time detention commenced; and
(c) the date and time the Form 42 was delivered.
[39] M.T. acknowledged seeing Dr. Upadhye on June 30, 2014 but denied receiving the Form 42. On July 1, 2014 M.T. complained to the staff in this regard. Dr. Brasch recorded “Original Form 42 found in chart. No documentation as to why it was not given to [M.T.] yesterday by the ER doc”. The original Form 42 was delivered to M.T. later that day. M.T. also acknowledged being informed by Dr. Vrosius at 8:00 p.m. on June 30, 2014 that she had been placed on a Form 1.
[40] The Board reviewed the evidence regarding the timelines of delivery of the Form 42 to M.T. and held that the notations on Form 1 were sufficient to reflect the date and time of delivery. They rejected M.T.’s evidence given her mental condition at the time, being “thought disordered, tangential, hypo manic”.
[41] In my view, the Board’s finding was reasonable. The reasons were supported by the evidence and were consistent with In the matter of KM, 2012 42102 (Ont. C.C.B.). See, also: C.B. v. Sawadsky et. al. (2006), 2006 34259 (ON CA), 82 O.R. (3d) 661 (Ont.C.A.)
(ii) Delivery of Form 33 to M.T.
[42] M.T. also takes issue regarding the timelines of the delivery of Form 33.
[43] On July 3, 2014 Dr. Spinner examined M.T. and concluded she was not able to consent or refuse the proposed treatment. She completed Form 33, under the MHA, between 7:00 p.m. to 9:00 p,m. but chose not to deliver notice to M.T. until the morning of July 4, 2014.
[44] The Board determined delivery of the Form 33 the following morning was “prompt” and that such did not result in any deprivation of M.T.’s rights as she was not treated before or after signing of the Form 33. In doing so, the Board considered the evidence of Dr. Spinner and the hospital records regarding M.T.’s status.
[45] As before, I conclude the Board’s finding was reasonable. Prompt does not mean immediate. The circumstances must be considered. Here, delivery of the Form 33 the following day was appropriate.
(iii) Involuntary Status – Substantive Issue
[46] The focus of this issue is whether the conditions for involuntary admission, as set out in section 20(5) MHA, were established, in particular whether there was sufficient evidence supporting the likelihood of M.T. causing serious bodily harm to another person. “Likely” means “more probable than not”. “Serious” bodily harm means harm more than “trifling”. Actual bodily harm is not the test. See: Daydayv. MacEwan (1987), 1987 4325 (ON SC), 62 O.R. (2d) 588 (Ont.D.C.) at pp. 18-19; McKay v. Doherty, 1989 CarswellOnt 2884 (Ont. D.C.) at para. 26; and Middel v. Adams 1993 CarswellOnt 2788 (Ont. Gen. Div.) at para. 8.
[47] In addition to psychiatric evidence, the Board heard the testimony of D.T. and V.T., mother and brother of M.T., as previously discussed. M.T. discounts their evidence, saying no actual serious bodily harm occurred. With respect, M.T. ignores the test, namely “likelihood” of causing serious bodily harm. M.T. has a long history of escalating aggressive behaviour, particularly concerning her mother. The evidence revealed what can be described as “elder abuse”, including assault.
[48] The Board heard this evidence and, of note, had the opportunity of observing M.T.’s display of anger and frustration as they commented on in their reasons. The Board accepted the psychiatric evidence regarding M.T.’s lack of insight as to her illness and refusal of treatment and concluded “without treatment, M.T. will escalate her aggressive behaviour towards her elderly parents and this will likely result in serious bodily harm to them”.
[49] The Board correctly addressed the criteria and carefully assessed the evidence. There is no error in law. The decision was reasonable. The decision was correct.
(iii) Treatment Capacity – Substantive Issue
[50] Section 4(1) HCCA provides that a person is capable with respect to treatment if he/she 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 thereof.
[51] Section 4(2) HCCA states a person is presumed to be capable with respect to treatment. Hence, the onus of establishing M.T. was not capable was on Dr. Bibr in the Board hearing.
[52] Section 4(1) provides a two part test:
(i) the cognitive ability to process, retain and understand the relevant information; and
(ii) the ability to apply relevant information to his/her circumstances and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
See: Starson, at para. 78-99
[53] Dr. Spinner opined that M.T. passed the first branch of the test, but not the second as she has no insight as to her illness and, hence, refuses to consider treatment. Dr. Bibr agreed.
[54] In accepting the psychiatric evidence, the Board also reviewed the hospital records and, as they mentioned, observed M.T. during the hearing. The Board rejected M.T.’s complaint that the physician’s had not provided her with the necessary information.
[55] The Board correctly identified the two part test, including the specific criteria, and made reference to Starson in their reasons. In my view, the Board correctly addressed this criteria and carefully assessed the evidence. There is no error in law. The decision was correct.
[56] M.T. testified at the hearing regarding her own research, particularly regarding side effects of the proposed medication and natural, or alternative, treatment. In this regard, she says she had the ability to apply the information, being the second part of the test. However, M.T. also denies the psychiatric diagnosis. Lacking any insight to her illness, or manifestations, prevents the ability to weigh foreseeable risks and benefits. In any event, such evidence regarding side effects or natural remedies cannot overcome the preponderance of evidence supporting the reasonableness of the Board’s decision on the second branch. See: Gajewski v. White 2014 ONCA 897, at para. 53.
Summary
[57] For these reasons, M.T.’s appeal is dismissed. In the circumstances, particularly the lack of merit to the appeal and M.T.’s litigation strategy of delay, the respondent is entitled to a cost award. If such is sought, I direct Ms. Blackburn to serve written submissions on M.T. within 30 days, M.T. may respond with written submissions served on Ms. Blackburn within 15 days thereafter, with the right of reply by Ms. Blackburn within 7 days. Ms. Blackburn shall deliver all such submissions to my chambers in Cayuga immediately thereafter.
D.J. Gordon J.
Released: November 24, 2015
COURT FILE NO.: 14-48968
DATE: 2015-11-24
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTEROF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to the Mental Health Act
as amended
AND IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board
Pursuant to the Health Care Consent Act
S.O. 1996, chapter 2, schedule A
As Amended
AND IN THE MATTER OF M.T.
A patient at the
ST. JOSEPH’S HEALTHCARE HAMILTON – CHARLTON CAMPUS
HAMILTON, ONTARIO
BETWEEN:
M.T.
Appellanttellant
– and –
Dr. Henry Bibr
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: November 24, 2015
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