CITATION: Mladenovic v. Papatheodorou, 2015 ONSC 754

COURT FILE NO.: CV-14-509893

CV-14-509895

DATE: 20150211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nikola Mladenovic, Appellant

AND:

Dr. George Papatheodorou, Respondent

BEFORE: Pollak J.

COUNSEL: Joanna Weiss, for the Appellant

Kendra Naidoo, for the Respondent

HEARD: January 20, 2015

ENDORSEMENT

[1] This is an appeal by Mr. Mladenovic (the Appellant) of two decisions of the Consent and Capacity Board (the “Board”). The Board found that the Appellant is incapable of consenting to the following treatment: anti-psychotic medication (orally and by injection), benzodiazepines, and benztropine and side-effect medication. The Board also found he was incapable of managing his property.

[2] The Board decided that, although Mr. Mladenovic was likely able to understand the information relevant to making a decision about treatment, he could not appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding his treatment. This inability to appreciate reasonably foreseeable consequences came as a result of his mental condition, which prevented him from perceiving that he was experiencing any manifestations of a mental condition, or that he had any mental condition at all. Similarly, the Board found that, although Mr. Mladenovic was likely able to understand information about his finances, he was nevertheless unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the management of his property.

[3] The Court appointed amicus curiae to represent the Appellant in this Appeal, who made detailed submissions in her factum. The Appellant made his own submissions at this Appeal in addition to those made by the amicus curiae.

[4] The Appellant alleges that the Board made several errors of fact and law in concluding that he had neither the capacity to consent to treatment, nor the capacity to manage his property.

[5] With respect to the Board’s conclusion that the Appellant did not have the capacity to consent to treatment, the Appellant submits that, in arriving at its decision, the Board “erred in its interpretation and application of the statutory test for capacity, and raised the required threshold in the second branch of the test by applying a ‘best interests’ test.” The Appellant suggests, in addition, that the Board “erred in equating the existence of a mental illness with active symptoms and dismissive and uncooperative behaviour with incapacity”.

[6] With respect to the Board’s conclusion that the Appellant did not have the capacity to manage his property, the Appellant submits as a preliminary matter that “the Board erred in fact and in law in concluding that ss. 54(4) and 55 of the Mental Health Act, RSO 1990, c M 7, ss 54(4), 55 [“MHA”] had been met. It is submitted that the Board should have rescinded the Certificate of Incapacity to Manage One’s Property.” The Appellant further argues that the Board failed to consider factors set out in the relevant jurisprudence, misapprehended the evidence given by both Dr. Wilson-Ewing and the Appellant, and “misapprehended or mis-applied the statutory test for capacity to manage property in section 6 of the Substitute Decision Act.”

[7] The standard of review of the Board’s decision is reasonableness with respect to the Board's application of the tests for capacity to consent to treatment, and capacity to manage property on the facts of the case before them.

[8] Concerning the preliminary issue raised by the Appellant—that a Form 21 “Certificate of Incapacity to Manage One’s Property” and a Form 22 “Financial Statement” had not been transmitted to the Public Guardian and Trustee (“PGT”) in accordance with sections 54(4) and 55 of the MHA, the Respondent notes that the Board had before it the evidence of Dr. Papatheodorou regarding the standard practices adopted by both the hospital and the Officer in Charge for the purpose of transmitting these Forms to the PGT. The Board accepted the evidence adduced at the hearing, including the Form 21, Form 22, and a “Notice of Admission for the Office of the Public Guardian and Trustee” as indicative of the fact that the standard practices had been followed and the strictures of ss. 54(4) and 55 of the MHA had been met. The Respondent argues that there was therefore no error as alleged by the Appellant. I agree with this submission. The Board did not err in concluding that the requirements of the MHA had been met.

[9] With respect to the Board’s finding that the Appellant was not capable of consenting to treatment, s. 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”) provides that:

(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.

(2) A person is presumed to be capable with respect to treatment.

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment.

[10] The Appellant submits that the Board incorrectly applied a best interests test, and thereby raised the threshold of the test for capacity, requiring that, to be capable, the Appellant must "want to experience the manifestation of his mental illness, and willingly take on the risk that his personal life and successes may suffer as a result." The Appellant also argues that the Board effectively equated "the mere existence of a mental illness, and the Appellant's alleged dismissive attitude" with incapacity.

[11] The Respondent submits that in the Board's Reasons, it is clear that it applied the proper test and was guided by the appropriate principles set out Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 and Heinekamp v. Livermore, 2010 ONSC 358, [2010] O.J. No. 140 at paras. 74-76. The Respondent submits that, contrary to the Appellant’s contention, the evidence before the Board shows that because of the Appellant’s condition, he was unable to recognize the objective manifestations of a mental illness. He was therefore unable to apply the information about the treatment to his own situation or to weigh the foreseeable consequences of a decision or lack of decision.

[12] The Respondent refers to the following evidence, all mentioned in the Reasons of the Board, which supports the Board’s finding:

• Mr. Mladenovic was suffering from manifestations of a mental disorder, which included disorganized thoughts and grandiose and paranoid delusions;

• Mr. Mladenovic did not agree that he was demonstrating any manifestations of a mental condition, and he did not believe that he had any condition to treat;

• After discharge from his 2013 admission, Mr. Mladenovic believed that he had never been suffering from a mental condition that affected his life;

• This lack of insight was a result of Mr. Mladenovic's mental condition;

• Mr. Mladenovic dismissed concerns expressed about him and said that he could see no possible benefit from treatment;

• Because he did not perceive manifestations of his mental condition, nor appreciate the reasonably foreseeable consequences of those manifestations, he was therefore unable to weigh the risks and benefits of a decision about treatment.

[13] I agree that a review of the Board’s Reasons reveals that the Board considered all of the evidence and submissions presented at the hearing. I similarly agree that the Board's Decision was reasonable and supported by the jurisprudence and the evidence before the Board.

[14] As concerns the issue of ancillary and side-effect medication, the Respondent relies on s. 23 of the HCCA, which addresses the use of such medication when a finding of treatment incapacity is made with respect to a primary treatment. That section provides:

“23. Ancillary Treatment. - Authority to consent to a treatment on an incapable person's behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.”

The relevant jurisprudence holds that if a person is found incapable with respect to a primary treatment, they are also incapable with respect to its ancillary treatments, which include side-effect medications. The Respondent therefore submits that if the finding that Mr. Mladenovic is incapable with respect to treatment with antipsychotic medication is upheld, then pursuant to s. 23 of the HCCA he is also effectively incapable with respect to treatment with ancillary and side-effect medications. I agree with this analysis.

[15] As a result of the foregoing, I have concluded that the Board did not err in finding that the Appellant was incapable with respect to the treatment proposed by the Respondent. I turn now to the Board’s finding that the Appellant was suffering from a mental condition that caused him to be unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to his property.

[16] The test for capacity to manage property is set out in s. 6 of the Substitute Decisions Act, 1992, SO 1992, c 30 [SDA] s 6 (“SDA”), which states:

6. Incapacity to Manage Property. A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[17] The Appellant submits that the Board did not have sufficient evidence before it to establish that the Appellant’s purchases were driven by delusions, and that the Board failed to consider the evidence he himself gave on the matter. I do not agree with this submission. There was, in my view, ample evidence to support the Board's findings. The Reasons show that the Board considered and weighed the evidence and the submissions before it, including the evidence of the Appellant.

[18] The Appellant also submits that the Board erred by applying a “best interests” test, and made inappropriate value judgments with respect to the nature of the Appellant’s purchases. The Respondent submits that there is nothing in the Reasons to support this claim. There is no indication that a “best interests” test was used, nor is there any reason to conclude that the Board’s decision was inappropriately based on personal values. Rather, the Board’s focus throughout was directed at whether the Appellant’s choices were materially affected by his mental condition. I agree with this submission.

[19] The Appellant also argues that the Board erred in failing to refer to two tests (other than those referred to in s. 6 of the SDA), namely, one from the Weisstub Report, and one developed by Dr. F.M. Mai. The Respondent disagrees and suggests that the Reasons show that the Board considered and applied the relevant factors outlined in the aforementioned tests, notwithstanding that the Reasons do not specifically name them. I agree.

[20] As a result, I find that the Board applied the appropriate test for determining incapacity to manage property pursuant to section 6 of the SDA. The Board’s Decision was reasonable and supported by the evidence.

[21] For all of the above-noted reasons, I dismiss the two Appeals before this Court.

Pollak J.

Date: February 11, 2015