Health Care, et al, 2015 ONSC 8137

Court File No. CV-15-041

ONTARIO SUPERIOR COURT OF JUSTICE

CIVIL COURT

B E T W E E N:

MARLENE CARTER

Appellant

v.

ROYAL OTTAWA HOSPITAL HEALTH CARE, and

DR. A.G. AHMED

Respondents

MOTION HEARING

ENDORSEMENT ONLY

HEARD BEFORE THE HONOURABLE JUSTICE B. ABRAMS,

on Monday, February 2, 2015, at BROCKVILLE, Ontario.

APPEARANCES:

M. O’Shaughnessey

Counsel for the Appellant

M. O’Bonsawin

Counsel for the Respondents

Monday, February 5, 2015

U P O N R E S U M I N G:

... PREVIOUS PROCEEDINGS NOT TRANSCRIBED

THE COURT: Thank you to counsel for bearing with me much longer than I thought. I’ve made the following endorsement, and counsel will just have to follow along here. I suppose when the court makes a copy they’ll see where I have gone; ran out of room to write.

Mr. O’Shaughnessey for the Appellant, Marlene Carter, Ms. O’Bonsawin for the Respondent, Royal Ottawa Health Care Group and Dr. Ahmed, the moving parties in this motion. Ms. Carter appeals against the decision made by the Consent and Capacity Board, dated January 5, 2015, confirming the health practitioner’s findings with respect to treatment, specifically: anti-psychotic medications, mood stabilisers and electro-convulsive therapy.

While Notice of Appeal and Notice of Appeal, Amended, have been filed, counsel advised that no date has yet been set for the hearing of the appeal. In the circumstances, the respondents move for interim relief, pursuant to s.19, ss.1 and ss.2 of the Health Care and Consent Act, S.O. 1996, c2, (Schedule A), “H.C.C.A.”. Thus, the principal issue on this motion is whether Dr. Ahmed should be permitted to commence electro-convulsive therapy (E.C.T. treatment) pending appeal.

Mr. O’Shaughnessey asserts that Ms. Carter is presumed to have capacity for the purposes of instructing him, pursuant to s.81, ss.1(b) of the Act. Put simply, she objects to the finding of the Board, and she objects to the interim relief sought today, on the basis that if she is not allowed to “bow her head” (bang her head against different surfaces), four times to the right and four times to the left, she will be unable to prevent harm from befalling her children. That said, Mr. O’Shaughnessey agrees with the law as articulated by the Respondent’s counsel, and offers no materials or submissions in response to the relief requested.

Held: The court accepts the uncontroverted medical evidence that Ms. Carter’s health would improve with E.C.T. treatments, which has historically been the case, going back to 2009, when a 60 to 70 percent benefit was achieved. Moreover, the court accepts the same medical evidence that, absent E.C.T. treatments, Ms. Carter’s health will continue to decline, and as a result will pose a risk to continue harming herself, exacerbating a wound to her head, and pose a risk to those who are treating her, which the evidence clearly shows, with a nurse having suffered two stab wounds to her neck.

In reaching this decision the court has had the benefit of reviewing certain authorities, particularly the decision of Warkentin, J., in J.L. v. Howell. This court is equally mindful that forcible treatment against Ms. Carter’s will is a serious infringement of Ms. Carter’s rights to “self-determination, physical integrity, liberty and security of the person”, and that “it should only be undertaken if truly necessary, and even then only with proper consideration and respect for these important personal rights.”

Thus, findings made under s.19,(2),(a), (i) and (ii), as well as (b), (c), and (d), interim order to go as requested. My thanks to counsel for help with this most difficult and tragic case.

... EXCERPT ENDS

CERTIFICATE OF TRANSCRIPT

EVIDENCE ACT, subsection 5(2)

I, Elizabeth Logan, certify that this document is a true and accurate transcription produced to the best of my skills and ability of the recording of Marlene Carter v. ROH in the Superior Court of Justice held at 41 Courthouse Square, Brockville, Ontario, taken from Recording No. 1911-CR05-20150202-091341, which has been certified in Form 1 by Anne Fraser.

Date Elizabeth Logan

PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORISED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE REPORTER.

Ontario Regulation 158/03 - Evidence Act