ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-15-527249

DATE: 20151120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

P.R.
Appellant

– and –

DR. SUZANNE LEGAULT
Respondent

J. Weiss, for the Appellant

M. Handleman, for the Respondent

HEARD: at Toronto: 20 November 2015

mew j. (orally)

[1] The appellant appeals from two decisions of the Consent and Capacity Board (“the Board”) dated 23 April 2015 (with reasons for decision dated 30 April 2015) which confirmed a Community Treatment Order (“CTO”) and a finding of incapacity made by the respondent.

[2] The appellant is 48 years old, unemployed, and at all material times has resided in Nobleton with his mother. Although not diagnosed as suffering from a schizoaffective disorder until 2010, the appellant had by then already been ill for several years.

[3] The respondent is the appellant's attending psychiatrist and the physician who issued the CTO and made the finding that the appellant is incapable of giving or refusing consent on his own behalf to the CTO or the included Community Treatment Plan (“CTP”). The respondent is part of the South Central Etobicoke Assertive Community Treatment Team (“ACTT”).

[4] A.R., the appellant’s mother, is his substitute decision-maker.

[5] Prior to the issuance of the CTO being appealed from, the appellant had been subject to other CTOs, commencing 12 March 2013, 27 August 2014, and 2 March 2015. He had also been a patient in a psychiatric facility on a number of previous occasions including June 2010, April 2011, November 2012, February 2013, July 2014, September 2014, and October 2014. Some of these admissions were for less than a week, however the February 2013 admission was for nineteen days and the July 2014 admission for forty-six days.

[6] As a result of breaching a probation condition that he report to his probation officer monthly by telephone, the appellant was arrested and incarcerated on 15 April 2015, and then transferred to the Mississauga Hospital on 16th of April 2015. The same day, the respondent signed a Form 49 (Notice of Intention to Issue or Renew Community Treatment Order) directed at the appellant and his substitute decision-maker advising that she had determined that the appellant was incapable of giving or refusing consent to a proposed CTP and attaching a copy of that plan.

[7] The CTP proposed that the respondent would issue and provide monitoring of the appellant’s CTO. It noted that A.R. consented to the plan and would use best efforts to support the appellant in complying with the plan. ACTT committed to providing therapeutic support, assessment, monitoring of compliance, psychosocial rehabilitation and linking to appropriate agencies and reporting and in particular that:

(a) an ACTT member or delegate would be available to meet with the appellant for face to face visits at least once every two weeks for the purpose of conducting ongoing assessment of the appellant’s psychiatric condition and compliance with the treatment plan;

(b) ACTT or delegate would arrange delivery of the appellant’s medications as prescribed by the respondent. Oral medications would be dispensed by the pharmacy in compliance packaging and ACTT (or delegate) would be available to inspect and retrieve these packages in conjunction with monitoring visits;

(c) ACTT nursing staff or delegate would be available to administer an intra-muscular injection as ordered by the respondent;

(d) ACTT or delegate would be available to assist the appellant in locating appropriate housing.

[8] The CTP, inter alia, further required that the appellant would attend appointments with the respondent or delegate every two – six weeks for ongoing psychiatric follow-up at the ACTT office or the office of the delegate and that the appellant would meet with an ACTT member or delegate at least once every two weeks at a time and place mutually agreed upon.

[9] The CTP was signed by A.R., the respondent, and by a representative of ACTT confirming that they had participated in developing the CTP and agreed to its conditions.

[10] In the CTO subsequently issued by the respondent, the respondent stated that she was of the opinion that if the appellant did not receive continuing treatment or care and continuing supervision while living in the community, he was likely, because of mental disorder, to suffer substantial mental deterioration. She stated the facts upon which she had formed that opinion in these terms:

[P.R.] suffers from schizoaffective/bipolar disorder. He does not have insight into his symptoms of illness or benefits of treatment. But for the CTO, will not comply with treatment, which will lead to illness relapse with substantial mental deterioration and re-hospitalization.

[11] The appellant sought a review of the CTO, which was heard by a panel of the Board on 23 April 2015. The Board issued its decision the same day followed by reasons for decision on 30 April 2015. The Board found that the evidence established to the requisite degree of proof that the appellant was not capable with respect to the following treatment: community treatment plan, antipsychotic medications, benzodiazepines, mood stabilisers and side-effect medications. In addition, the Board found that the evidence clearly established to the requisite degree of proof at the time of the hearing that the respondent had met all of the criteria under the Mental Health Act to confirm the issuance of the CTO.

[12] A statutory right of appeal from a decision of the Board to this court on questions of law or fact or both is provided by section 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c.2, Sch. A. The standard of review in respect of questions of law is correctness: Starson v Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 110. A Board’s decision relating to questions of fact, or of mixed law and fact, is to be assessed on the standard of reasonableness, which the Ontario Court of Appeal has articulated in Giecewicz v. Hastings, 2007 ONCA 890, at para. 13, in these terms:

The Board's application of the proper legal standard to the evidence before the Board is reviewable on a reasonableness standard: Starson v. Swayze, supra, at para. 84. The reasonableness inquiry dictates respect for the expertise and advantaged position of the Board. It also, however, demands a somewhat probing examination of the reasons offered by the Board for its conclusion. That examination must ensure that the reasons taken as a whole provide a line of analysis, supported by the evidence, that can reasonably justify the Board's conclusion: Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247 (S.C.C.) at paras. 48-56.

Basis for Appeal

[13] While probably not doing credit to the substantial factum prepared by the appellant’s counsel, I understood the following to be the principal grounds upon which the Board’s decision is challenged:

(a) the appellant was not informed of the benefits and risks of the proposed treatment and, consequently, could not have appreciated the reasonably foreseeable consequences of complying or not complying with the CTP;

(b) the Board’s finding that the appellant was unable to appreciate “that his behaviours are symptoms of… schizoaffective disorder” and that he was “unable to acknowledge that he has any mental condition that may benefit from treatment” was unreasonable because it was based solely on the opinion and uncorroborated statements of the respondent that this was the case, contrary to s. 14 of the Evidence Act, R.S.O. 1990, c. E.23;

(c) the respondent sought and obtained consent from the appellant’s substitute decision-maker before she had assessed the appellant’s capacity with respect to the CTP, thereby rendering the consent obtained invalid;

(d) the appellant was able to evaluate and appreciate the relevant information concerning the proposed treatment as it related to himself and, accordingly, he had the capacity to consent to, or refuse, treatment;

(e) there was not clear, cogent or compelling evidence that the appellant was able to comply with the CTP, or that the treatment or care and supervision required under the terms of the CTO were available in the community.

[14] Before turning to each of those points, by way of general observation, the Board’s reasons for decision demonstrate that it, at least, attempted to methodically review the procedural and substantive criteria set out in sections 33.1 (1) subparagraphs (1) to (4) of the Mental Health Act. The Board also identified and purported to follow the leading authority providing guidance on the elements of consent and the evidence that should be considered to determine capacity to consent, namely, Starson v. Swayze, supra, at paras 78-81.

[15] So turning then briefly to the points identified in turn:

Respondent’s Failure to Inform Appellant of Risks and Benefits of Proposed Treatment

[16] According to the appellant, it was an error for the Board to find that the appellant was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision to undergo treatment in accordance with the CTP without an enquiry having been made into the appellant’s appreciation of the parameters of the decision being made, see para. 80 in the Starson decision.

[17] The respondent argues that there was ample evidence to support the Board’s conclusion that the appellant was incapable of giving or refusing his consent to treatment. On multiple occasions the appellant told the respondent that he did not have an illness and he did not need medication. He did not acknowledge that visibly noticeable improvements in his mental condition were related to treatment that he had received. In Gajewski v. Wilkie, 2014 ONCA 897 at para. 49, the Court of Appeal held that in circumstances where there was evidence to support a Board’s findings that an appellant was (1) suffering from the manifestations of a mental disorder; and (2) unable to see that he was suffering from these manifestations at the time of the hearing, it was open to the Board to conclude that the appellant did not truly believe that he suffered from delusions.

[18] I read Gajewski as authority for the proposition that where, in a case such as the one presently before the court, there is clear evidence before the Board that the appellant's inability to recognise that he suffers from a major mental disorder renders him unable to apply the relevant information to his circumstances and to appreciate the consequences of his decision, an enquiry into the appellant’s appreciation of the parameters of the decision being made - that is the nature and purpose of the proposed treatment, the foreseeable benefits and risks of the treatment, the alternative courses of action available, and the expected consequences of not having the treatment – is not mandatory. A consequent failure by a Board to consider the patient’s appreciation of the risks and benefits of the proposed treatment will accordingly not necessarily lead to the Board’s decision being set aside. As the Court of Appeal goes on to note in Gajewski, at para 53:

The only relevance of submissions relating to the benefits and side effects of the proposed medication to the question of capacity is whether the appellant has a rational justification for refusing the treatment.

[19] While counsel for the appellant referred me to a number of authorities where decisions of Boards were set aside because of a lack of evidence that the benefits and risks of antipsychotic medication were discussed with the patient, those cases being Anten v. Bhalerao, 2013 ONCA 499, Masih v. Siekierski, 2015 ONSC 2877, Reinhardt v. Pinhas, unreported endorsement, 14 May 2015, (SCJ) and Salem v. Hastings, 2015 ONSC 5071, none of those cases considered circumstances such as those presented in Gajewski and the instant case, where there is clear evidence before the Board that the patient does not recognise that he or she suffers from a major mental disorder. As Gajewski holds, in such circumstances, a patient is not able to apply the relevant information to his situation and, accordingly, he or she will not be “able to appreciate the reasonably foreseeable consequences of taking or not taking the proposed medication”. That also is at Gajewski, at para 49.

Lack of Corroboration

[20] Turning to the argument that the respondent’s opinion and, hence, the Board’s finding that the appellant was unable to appreciate “that his behaviours are symptoms of… schizoaffective disorder” and that he was “unable to acknowledge that he has any mental condition that may benefit from treatment” was unreasonable because it was based solely on the opinion and uncorroborated statements of the respondent, I would observe that the evidence before the Board, as listed on page 8 of its decision included 17 assessment and progress notes covering the period 13 September 2010 to 17 April 2015 inclusive. While some of those notes were generated by the respondent, others were authored by different health care professionals: Dr. Ariel Shafro in 2011; Sue Stemeroff, asocial worker in 2014; Dr. Sashikala Senthelal in 2014; and Dr. Elena Muila also in 2014.

[21] The appellant did not give evidence before the Board.

[22] The respondent’s evidence was that in the approximately five years that she has been treating the appellant, he has never been capable of giving or refusing consent on his own behalf.

[23] While the Board’s decision makes no express reference to corroboration, the consultation notes of others contained in the record are corroborative of the respondent’s evidence and, thus, the requirements of s. 14 of the Evidence Act are, in my view, met.

Consent Obtained Before Capacity Had Been Assessed

[24] I took the parties to agree that each time a CTO is sought, in order to engage the involvement of a substitute decision-maker in the process, there must be a determination by the physician that a patient is incapable with respect to the giving or refusing consent to a proposed CTP. And they agree that that determination must be a contemporaneous one. The fact that a patient has previously been determined not to have capacity does not relieve the need for a fresh evaluation each time a substitute consent is being sought or obtained.

[25] However, the appellant takes issue with the order in which certain steps relating to the Form 49 process occurred. In particular the appellant argues that because the respondent spoke to A.R. and obtained her consent to the CTP before - albeit on the same day - she assessed the appellant and made the determination of lack of capacity for the purposes of completing Form 49, the legal presumption of capacity to consent contained in s. 4(2) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, was violated.

[26] I find no merit in this rather picayune argument. Neither the Health Care Consent Act, 1996 nor s. 33.1(4) of the Mental Health Act are that prescriptive. Section 33.1(4)(f) makes it a prerequisite of the issuance or renewal of a CTO that “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”. The determination was made and the consent obtained on the same day. To require a busy health care practitioner having a five year history with the appellant to tick the box on the Form 49 before speaking to the mother and to hold that if those two things happen in the other order, the consent is invalid, would undermine the efficacy of a process, the objective of which, to quote section 33.1(3):

… 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.

There Was Evidence that the Appellant Could Evaluate and Appreciate the Relevant Information Concerning the Proposed Treatment

[27] This point is grounded principally on the Board’s failure to make reference to evidence that the appellant had previously attributed adverse effects to the medication taken by him in the form of weight gain, hair loss and feeling “lazier than usual”.

[28] As already noted, the appellant did not give evidence. While it is correct that the Board did not make reference to the appellant’s previous concerns about the side effect of medications he had taken, there was, nevertheless, ample evidence to support the Board’s finding of incapacity and its conclusion that the CTO should stand.

[29] In Gajewski, the appellant had given evidence. Nonetheless, the Court of Appeal concluded, at para. 53:

While I do not doubt that the appellant has a sincere, and perhaps justified, concern about potential adverse effects from the proposed medication, the rational nature of this concern cannot, on its own, overcome the preponderance of evidence that supports the reasonableness of the Board’s finding of incapacity on the second branch.

[30] I adopt that approach, and accordingly would not give effect to this ground of appeal.

The Lack of Evidence that the Appellant was Able to Comply with the CTP, or that the Services Required Under the Terms of the CTO were Available in the Community.

[31] One of the challenges throughout the appellant’s relationship with the respondent and the ACTT has been geographic. The ACTT is based in South Etobicoke. The appellant lives with his mother in Nobleton, which is well outside the ACTT’s catchment area. Efforts have been made to have the appellant housed in the ACTT’s catchment area, but at the date of the hearing before the Board, that had not happened. In the past, under previous CTO’s, the appellant’s mother had brought him to the ACTT every two weeks. In between visits there would be telephone contact.

[32] The appellant’s mother has been very resistant to any suggestions that responsibly for the appellant’s treatment should be transferred to another team. While the circumstances could be better, the respondent’s evidence was that the appellant – with his mother’s help - was able to meet the terms of the CTO.

[33] Imperfect though the CTP may be, the Board found the prerequisites required by the Mental Health Act for the issuance of a CTO had been met: it is that CTO is clearly aimed at fulfilling the Act’s objectives of minimising the need for the appellant to be hospitalised and preventing deterioration of the appellant’s condition. There was ample evidence supporting that conclusion, particularly in the absence of practical alternatives, given the challenges of geography.

Decision

[34] By reason of the foregoing, and looking at the evidence as a whole and the overall reasons for the Board’s decision, I find that the Board’s conclusions were reasonable and I would accordingly dismiss the appeal.

Graeme Mew J.

Released: 20 November 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

P.R.
Appellant

– and –

DR. SUZANNE LEGAULT
Respondent

ORAL REASONS FOR JUDGMENT

Mew J.

Released: 20 November 2015