REASONS FOR JUDGMENT

INTRODUCTION

[1] S.S. appeals a decision of the Consent and Capacity Board that confirmed the Respondent Dr. David Kantor’s finding that:

(a) the Appellant was incapable with respect to all forms of anti-psychotic medication and a Community Treatment Plan (“CTP”);

(b) the Community Treatment Order (“CTO”) issued by Dr. Richard Gorman on April 23, 2015 was appropriate.

[2] The Board’s decision, dated July 8, 2015, provides the following background:

S.S. [is] a 63 year old woman with a long standing diagnosis of paranoid schizophrenia. She had a history of repeated psychiatric hospitalizations documented from 2007, visits to hospital emergency rooms, and problematic behavior and evictions from shelters in the community. S.S.’s psychiatric history was characterized as one with ongoing paranoia, hospitalization, treatment in hospital, discharge and non-compliance with treatment in the community. Since late 2014 S.S. has been a client of Reconnect Mental Health Services where Dr. Kantor was the consulting psychiatrist.

More recently S.S. was hospitalized at the Centre for Addiction and Mental Health (CAMH) from December 30, 2014 – January 13, 2015 and at Toronto East General Hospital from April 07 to April 23, 2015.

During her last admission to hospital, S.S.’s current CTO was initiated and she was found incapable with respect to psychiatric treatment with anti-psychotic medication and a CTP. She has challenged the CTO and the finding of treatment incapacity.

[3] The Board determined that S.S. was incapable of consenting to treatment by way of CTP as well as all forms of anti-psychotic medication. The Board also confirmed S.S.’s CTO.

[4] S.S. raises numerous grounds of appeal. For the reasons described below, I dismiss the appeal in respect of the finding that the Appellant is incapable with respect to all forms of anti-psychotic medication and a CTP. However, I grant the appeal in respect of the Board’s decision to confirm the CTO.

ANALYSIS

[5] Reasonableness is the appropriate standard of review for a decision of the Board. However, no deference is owed to the Board’s decision on a question of law. In Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33, the Ontario Court of Appeal stated:

Determining whether the appellant was capable of making his own decision regarding treatment with antipsychotic medication required the Board to apply, and the appeal judge to review, the evidence before it to the statutory test for capacity set out in s. 4(1) of the Act. In Starson, at paras. 23 and 84, the Supreme Court was unanimous that this is question of mixed fact and law that is reviewable on a standard of reasonableness. But, a reviewing court should not defer to the Board’s findings if the Board has misunderstood the statutory test.

[6] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, the Supreme Court of Canada explained that:

...reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

IS.S.UE #1: DID THE BOARD ERR IN FINDING THAT THE APPELLANT IS INCAPABLE WITH RESPECT TO ALL FORMS OF ANTI-PSYCHOTIC MEDICATION AND A COMMUNITY TREATMENT PLAN?

[7] The Health Care Consent Act, S.O. 1996, c. 2 (the “HCCA”) provides that a health care practitioner who proposes a treatment for a person shall not administer the treatment unless she is of the opinion that the person is: (1) capable with respect to the treatment, and the person has given consent; or (2) 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.

[8] Under section 4 of the HCCA, a person who is “capable with respect to a treatment” must be able to:

understand the information that is relevant to making a decision about the treatment. This criterion requires a person to “…have the cognitive ability to process, retain and understand the relevant information.”; and,

appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment. This criterion requires a person “…to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.” A person need not agree with the diagnosis of the attending physician however he should be able to recognize the possibility that he is affected by that condition. A finding of incapacity is justified only if the reasons for a person’s failure to appreciate the consequences of a treatment decision demonstrate that the person’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of his decision.

[9] Dr. Richard Gorman issued a Form 49 (Notice of Intention to Issue or Renew CTO) on April 16, 2015. It states that he examined the Appellant on April 16, 2015 and determined that she was incapable to give or refuse consent to a proposed treatment plan. Amongst other things, the CTP, signed by Dr. Gorman on April 16, 2015, requires the Appellant to take injectable anti-psychotic, mood-stabilizing medication as monitored by Dr. Kantor. Dr. Gorman subsequently issued a CTO on April 23, 2015 that gave the following reasons for its issuance:

Agitated behavior in her group home, neglect of her physical self, non-compliance with medication that would significantly improve functionality homelessness with no plan to resolve it. Paranoid disregard of help.

[10] There is no dispute that the Appellant is able to understand information provided to her regarding available treatment. The sole issue on this appeal is whether the Board erred in finding that the Appellant is unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment in question.

[11] The Appellant submits that the Board was deprived of Dr. Gorman’s evidence at the hearing. However, the Board heard the oral evidence of S.S. and the Respondent.

[12] The Board found that the evidence supported the conclusion that the Appellant was incapable with respect to the treatments proposed for her. The Board stated, at pages 15-17:

The evidence to support findings of both mental disorder and incapacity was clear, cogent and compelling. S.S. had no comprehension about her need for treatment, which by statutory definition included a community treatment plan because she did not truly believe there was even the possibility she suffered from a mental condition or any possible benefits for her from treatment. S.S.’s lack of insight into her condition and her paranoia rendered her incapable to appreciate the consequences of a decision or a lack of a decision. …

From the evidence S.S. was unable to appreciate the consequences for her of either consenting or not consenting to the treatment. She was unable as a result of her mental condition and her lack of insght to recognize her improved organization in thinking and staying out of hospital, that she wasn’t as slow, she was eating well, not agitated, less paranoid, and aggressive and that these were attributed to the anti-psychotic medication, and the care and supervision provided in the Community Treatment Plan.

She was unable to see that she was in fact suffering from serious manifestations of a mental condition. She continued to believe she was not ill and that stopping her treatment compliance would not affect her in any way. She was unable to evaluate the information concerning the proposed types of medications and the community treatment plan as they related to her own circumstances, a fact which rendered her incapable to make a decision concerning them.

[13] In my view, the Board correctly applied the HCCA and Starson. I dismiss the appeal in respect of the capacity issue.

IS.S.UE #2: DID THE BOARD ERR IN HOLDING THAT THE RESPONDENT COMPLIED WITH THE REQUIREMENTS OF THE MENTAL HEALTH ACT IN ISSUING THE COMMUNITY TREATMENT ORDER?

[14] A CTO was issued on April 23, 2015 by Dr. Richard Gorman. The Order is based on an examination of the Appellant undertaken by Dr. Gorman on April 16, 2015 at the Toronto East General Hospital. The Order attaches a CTP as follows:

Community Treatment Plan

Dr. Richard Gorman…will issue [the Appellant] Community Treatment Order;

Dr. Kantor…of Reconnect Mental Health Services will monitor [the Appellant];

Public Guardian and Trustee will acts as Substitute Decision Maker (SDM) for [the Appellant]’s Consent Treatment Order. A representative from the Public Guardian and Trustee’s office will be available to discuss treatment and CTO related matters throughout the duration of this CTO;

[The Appellant] will attend psychiatric appointments with Dr. Kantor…at least once a month. The frequency of these appointments may increase or decrease over time depending on [the Appellant’s] clinical status.

[The Appellant] will take injectable and/or oral anti-psychotic, mood-stabilizing, anxiolytic, and/or side-effect as prescribed and monitored by Dr. Kantor. Medications may be altered as clinically indicated and/or in the presence of medication side effects. Current medications include: 15-40 mg intramuscular injection of Fluanxol every 2 weeks;

The Reconnect ACTT will meet with [the Appellant] at least once a week at a mutually agreed upon time and place for ongoing support and psychosocial rehabilitation …;

The Community Mental Health Services Coordinator (CMHSC) of the Centre for Addiction and Mental Health (CMAH) will be available to all members named in the plan as necessary. The CMHSC will follow-up with appropriate parties to assist with implementation of this CTO;

Throughout the duration of this CTO, all named parties in this plan will communicate as necessary to facilitate the ongoing provision of psychiatric outpatient treatment and support to [the Appellant]. Parties will notify Dr. Kantor of any clinical concerns with respect to [the Appellant];

An order for psychiatric examination may be issued as per the Act, if [the Appellant] fails to adhere to psychiatric medications or appointments with her support/treatment team.

We, the undersigned, agree with the conditions of this CTP.

Issuing Physician:

Signature: “Dr. Richard Gorman” Date: April 16, 2015

Monitoring Physician:

Signature: “Dr. Kantor” Date: April 20, 2015

Substitute Decision Maker

Signature “Public Guardian and Trustee” Date: April 21, 2015

Reconnect Mental Health Services

Signature: Illegible Date: April 22, 2015

Community Mental Health Services Coordinator

Signature: “Kimberly Martin” Date: April 16, 2015

[15] One of the requirements for the issuance of a CTO by a physician under the Mental Health Act, R.S.O. 1990, Chapter M.7, (the “Act”) is that “…within the 72-hour period before entering into the CTP, the physician has examined the person…” and has come to certain conclusions following that examination regarding the necessity for a CTP.[^1]

[16] The Board considered this requirement and stated, at page 19, that:

Dr. Kantor’s evidence was that within the seventy-two hour period before entering into the CTP on April 16, 2015, in fact the same day as Dr. Gorman entered into the Plan, he examined S.S. and concluded that she suffered from mental disorder requiring continuing treatment and continuing supervision while living in the community.

[17] Given that the signatures on the CTP were dated more than three days after Dr. Gorman’s examination on April 16, 2015, the Appellant submits that the CTO does not satisfy the above requirement because the CTP was not “entered” within 72 hours following the examination.

[18] Dr. Kantor states that this specific issue was not challenged at the hearing. However, that submission is incorrect. Ms. Manafa, on behalf of the Appellant, did raise this issue.[^2] Dr. Kantor took the position that the date on which any person other than the physician signed the CTP was irrelevant.[^3] Even if the issue had not been raised, the onus is on the Respondent to establish that the requirements had been met given that s. 33.1(4) states that a CTO may be issued “if” the criteria in that subsection are met. Further, subsections 39.1(6) and (7) of the Act requires the Board to review the CTO to determine if the criteria found in s. 33.1(4) are met. If the criteria are not met, the Board shall revoke the CTO.

[19] Dr. Kantor also submits that the proposed parties to the CTP need not provide their consent to the CTP. His position is that consultation under s. 33(1)(4)(d) is sufficient. I now turn to determine whether a CTP is entered into for the purposes of s. 33.1(4)(c) when the proposed parties have agreed to the terms of the CTP or if consultation with the parties regarding the proposed terms of the CTP is sufficient.

Principles of Statutory Interpretation

[20] In Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada), 2012 ONCA 592, [2012] O.J. No. 4196, at para. 32, the Ontario Court of Appeal stated that a purposive approach is to be applied when interpreting legislation. It stated, at paras. 33-35:

The Supreme Court of Canada has consistently endorsed Elmer Driedger's purposive approach to statutory interpretation…As Driedger explains, at p. 87 of his Construction of Statutes, 2d ed., (Toronto: Butterworths, 1983):

[T]he words of an Act are to read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The purposive approach to statutory interpretation requires the court to take the following three steps: (1) it must examine the words of the provision in their ordinary and grammatical sense; (2) it must consider the entire context that the provision is located within; and (3) it must consider whether the proposed interpretation produces a just and reasonable result.

The factors comprising the "entire context" include the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and the legislature's intent in enacting the Act as a whole and the particular provision at issue…A just and reasonable result promotes applications of the Act that advance its purpose and avoids applications that are foolish and pointless.

[Citation references omitted]

Ordinary and Grammatical Meaning

[21] “Enter into” is defined in the Concise Oxford Dictionary, 12th Edition, to mean “undertake to bind oneself by (an agreement). The most apt definition of “enter” found in the Black’s Law Dictionary, Tenth Edition, is “to become a party to ”. Thus, the ordinary and grammatical meaning of the word “enter” contemplates that a person enters a CTP when he or she has legally bound him/herself to the CTP.

Entire Context

[22] The Act was amended in 2000. It broadened the criteria for the involuntary admission of mentally ill persons and it also introduced CTOs.[^4] These amendments have a dual purpose: 1) to better protect the public from mentally ill persons who are prone to violence; and 2) to provide an improved approach for the treatment of any person suffering from serious mental illness.[^5]

[23] The community treatment provisions of the Act respond to a so-called “revolving door syndrome” in the treatment of the mentally ill.[^6] The Act states:

The purpose of a community treatment order 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. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

[24] Given this purpose, the scheme of the legislation in respect of community treatment[^7] is as follows:

a physician may issue or renew a community treatment order, in a prescribed form, with respect to a person for the above purpose if the criteria described in s. 33.1(4) are met;[^8]
a community treatment order must contain certain information, including a description of the CTP for a person that has been developed by: 1) the person, or his or her substitute decision-maker; 2) the physician who is considering issuing or renewing the community treatment order; and 3) any other health practitioner or person involved in the person’s treatment or care and supervision;[^9]
a person who agrees to provide treatment or care and supervision under a CTP shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan.[^10] All persons named in a CTP are responsible for implementing thte plan to the extent indicated in it;[^11]
a community treatment order shall only be issued if the issuing physician is satisfied that the person subject to the order and his substitute decision-maker, if any, have been advised of their legal rights and that such person(s) consent to the CTP;[^12]
a community treatment order shall only be issued or renewed, the physician must be satisfied that the person who is being considered for a community treatment order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights unless: (1) the rights adviser has been unable to locate the person despite best efforts; (2) the person subject to the order refuses to consult with the rights adviser, or (3) for the renewal of a community treatment order, the Public Guardian and Trustee is the substitute decision-maker;[^13]
the person who is being considered for a community treatment order, or who is subject to such an order, and his or her substitute decision-maker, have a right to retain and instruct counsel and to be informed of that right;[^14]
a copy of the community treatment order in respect of a person, including the CTP, shall be given to: 1) the person, along with notice that he or she has a right to a hearing before the Board under section 39.1; 2) the person’s substitute decision-maker, if any; (3) the officer in charge, if any; (4) any other health practitioner or other person named in the CTP;[^15]
a community treatment order expires in six months after the day it is made unless it is renewed or is terminated earlier.[^16] A community treatment order may be renewed for a period of six months before its expiry. Upon the expiry or termination of a community treatment order, the parties may enter into a subsequent CTP.[^17]
if a person, or his or her substitute decision-maker consents to a CTP, then the person shall: (1) attend appointments with any person referred to in the CTP at the times and places scheduled from time to time; (2) comply with the CTP described in the community treatment order.[^18] If a person fails to comply with these obligations, withdraws his or her consent to the CTP or requests a review of the person’s condition to determine if the person is able to live in the community without being subject to the order, then a physician may examine that person to determine whether the person should be released without being subject to a CTP.[^19]

Analysis

[25] Clause 33.1(4)(c) of the Act requires that the CTP be entered into within 72 hours of the physician’s examination of the person who is the subject of the plan. The purpose of the 72-hour limitation is to ensure that “…the medical findings are fresh and that the treatment plan is relevant to the condition of the patient”.[^20]

[26] Given the ordinary meaning of the phrase “enters into” and the language of the Act, it is my view that a physician does not “enter into” a CTP unless the other persons named in that plan have agreed to that plan. Consultation between the physician and the person that is the subject of the plan or their substitute decision-maker, as well as other service providers, does not satisfy the requirement for agreement.

[27] There are numerous provisions of the Act that expressly state that the persons named in a plan have to agree to its terms.

s. 33.1(4)(f) states that the persons who is the subject of the plan or his or her substitute decision-maker must consent to the plan;
clause 6 of s. 33.7 states that the plan shall contain the names of all persons or organizations who have agreed to provide treatment or care and supervision under the CTP and their obligations under the plan;
s. 33.5(3) states that a “person who agrees to provide treatment or care and supervision under a CTP shall indicate his or her agreement in the plan …” [Emphasis added]

[28] Further, the Act contemplates that the agreement of those parties to the CTP who provide treatment or care and supervision under the plan must be “indicated” in the plan. Accordingly, the Act contemplates that the “entering into” of a CTP be in writing. Although there is no form prescribed under the Act, it is my view that this provision requires that the plan be in writing and signed.

[29] I adopt Justice Low’s statement in Singh v. de Souza [2009] O.J. No. 3490, at para. 25:

The term "entering into" is not defined in the statute. The CTP, the only instrument to which the phrase refers, is, in very significant respects an agreement among the physician, the patient, and other parties. While merely quasi-contractual, the CTP is nevertheless an agreement, a consensual statement of the roles and obligations of the parties in relation to the management of the patient's illness. In that light, I would construe the term "entering into", by reference to contract principles, as denoting execution of the document by the parties. [Emphasis added]

[30] Clause 33.1(4)(f) makes it clear that the consent of the person who is the subject of the plan is required. Subsection 33.5(3) makes it clear that the agreement of any person who agrees to provide treatment or care and supervision under the plan is also required. Accordingly, the requirement in s. 33.1(4)(c) that “…within the 72-hour period before entering the CTP, the physician examined the person…” requires that the examination be held within 72 hours of the time that all persons named in the plan (including the physician, the person that is the subject of the plan or their substituted decision-maker, and all persons who are required to provide treatment or care and supervision under the proposed terms of a CTP) signed the plan to reflect their agreement to its terms.

[31] On the face of the CTP in this case, and given the evidence provided by the Respondent, it is clear that the Public Guardian and Trustee (PGT), as substituted decision-maker for the Appellant, did not agree to the CTP until April 21, 2015 at the earliest (which is the date shown on the signature page of the CTP) given that the terms of such consent were clarified by a letter from the PGT dated April 24, 2015. Since the consent and agreement must be in writing, the signature page of the CTP and subsequent letter indicate that the PGT agreed to the plan more than three days after Dr. Gorman’s examination of the Appellant on April 16, 2015.

[32] Similarly, the signature page shows that the other service providers also agreed to the plan more than three days after the examination on April 16, 2015. Specifically, the Respondent’s agreement is dated April 20, 2015 and the agreement of Reconnect Mental Health Services is dated April 22, 2015.

[33] Accordingly, the CTO does not meet the requirement found in s. 33.1(4)(f) of the Act: the plan was not entered into until April 22, 2015, that is, more than three days after the examination of the Appellant was held on April 16, 2015.

CONCLUSION

[34] In supplementary written submissions that followed the hearing of this appeal, the Respondent sought leave “…to adduce further evidence, in the form of an affidavit from Dr. Gorman in accordance with section 80(9) of the HCCA”. I dismiss this request for leave as the Respondent gave no explanation why leave should be granted.

[35] For the reasons given above, I grant the Appeal and set aside the CTO.

[36] I encourage the parties to settle the issue of costs of this appeal failing which the Appellant shall file its costs submissions and an outline of costs within fourteen days of today’s date. The Respondent shall file its costs submissions within twenty-one days of today’s date. Both costs submissions shall be no more than three pages in length.

Mr. Justice M. D. Faieta

Released: March 4, 2016

CITATION: S.S. v. Kantor, 2016 ONSC 1444

COURT FILE NO.: CV-15-532477

DATE: 20160304

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.S.

Appellant

– and –

DR. DAVID KANTOR

Respondent

REASONS FOR JUDGMENT

Mr. Justice M. D. Faieta

Released: March 4, 2016

APPENDIX “1”

Mental Health Act, R.S.O. 1990, Chapter M.7, as amended.

Definitions

(1) In this Act, …

“Board” means the Consent and Capacity Board continued under the HCCA, 1996;

“CTP” means a plan described in section 33.7 that is a required part of a community treatment order; …

“physician” means a legally qualified medical practitioner and, when referring to a community treatment order, means a legally qualified medical practitioner who meets the qualifications prescribed in the regulations for the issuing or renewing of a community treatment order;

“plan of treatment” has the same meaning as in the HCCA, 1996; …

“psychiatric facility” means a facility for the observation, care and treatment of persons suffering from mental disorder, and designated as such by the Minister;

“psychiatrist” means a physician who holds a specialist’s certificate in psychiatry issued by The Royal College of Physicians and Surgeons of Canada or equivalent qualification acceptable to the Minister; …

“rights adviser” means a person, or a member of a category of persons, qualified to perform the functions of a rights adviser under this Act and designated by a psychiatric facility, the Minister or by the regulations to perform those functions, but does not include,

(a) a person involved in the direct clinical care of the person to whom the rights advice is to be given, or

(b) a person providing treatment or care and supervision under a CTP; …

“substitute decision-maker”, in relation to a patient, means the person who would be authorized under the HCCA, 1996 to give or refuse consent to a treatment on behalf of the patient, if the patient were incapable with respect to the treatment under that Act, unless the context requires otherwise; …

Community treatment order

33.1 (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met. 2000, c. 9, s. 15.

Same

(2) The community treatment order must be in the prescribed form. 2000, c. 9, s. 15.

Purposes

(3) The purpose of a community treatment order 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. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility. 2000, c. 9, s. 15.

Criteria for order

(4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a CTP for the person;

(c) within the 72-hour period before entering into the CTP, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the CTP contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the CTP;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the CTP in accordance with the rules for consent under the HCCA, 1996. 2000, c. 9, s. 15.

Exception

(5) Clause (4) (e) does not apply in any of the following circumstances:

If a rights adviser has made best efforts to locate the person subject to the order, the person could not be located and the rights adviser so informs the physician.
If the person subject to the order refuses to consult with a rights adviser and the rights adviser so informs the physician.
If, for the renewal of the order, the Public Guardian and Trustee is the substitute decision-maker for the person subject to the order. 2010, c. 1, Sched. 17, s. 1.

Content of order

(6) A community treatment order shall indicate,

(a) the date of the examination referred to in clause (4) (c);

(b) the facts on which the physician formed the opinion referred to in clause (4) (c);

(d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations. 2000, c. 9, s. 15.

Protection from liability, substitute decision-maker

(7) The substitute decision-maker who, in good faith, uses his or her best efforts to ensure the person’s compliance and believes, on reasonable grounds, that the person is in compliance is not liable for any default or neglect of the person in complying. 2000, c. 9, s. 15.

Legal advice

(8) The person who is being considered for a community treatment order, or who is subject to such an order, and that person’s substitute decision-maker, if any, have a right to retain and instruct counsel and to be informed of that right. 2000, c. 9, s. 15.

Obligations of person

(9) If a person or his or her substitute decision-maker consents to a CTP under this section, the person shall,

(a) attend appointments with the physician who issued or renewed the community treatment order, or with any other health practitioner or other person referred to in the CTP, at the times and places scheduled from time to time; and

(b) comply with the CTP described in the community treatment order. 2000, c. 9, s. 15.

To whom copies of order and plan to be given

(10) The physician who issues or renews a community treatment order under this section shall ensure that a copy of the order, including the CTP, is given to,

(a) the person, along with a notice that he or she has a right to a hearing before the Board under section 39.1;

(b) the person’s substitute decision-maker, where applicable;

(d) any other health practitioner or other person named in the CTP. 2000, c. 9, s. 15.

Expiry of order

(11) A community treatment order expires six months after the day it is made unless,

(a) it is renewed in accordance with subsection (12); or

(b) it is terminated earlier in accordance with section 33.2, 33.3 or 33.4. 2000, c. 9, s. 15.

Renewals

(12) A community treatment order may be renewed for a period of six months at any time before its expiry and within one month after its expiry. 2000, c. 9, s. 15.

Subsequent plans

(13) Upon the expiry or termination of a community treatment order, the parties may enter into a subsequent CTP if the criteria set out in subsection (4) are met. 2000, c. 9, s. 15.

Early termination of order for failure to comply

33.3 (1) If a physician who issued or renewed a community treatment order has reasonable cause to believe that the person subject to the order has failed to comply with his or her obligations under subsection 33.1 (9), the physician may, subject to subsection (2), issue an order for examination of the person in the prescribed form. 2000, c. 9, s. 15.

Community treatment order not terminated

(1.1) A community treatment order is not terminated by the issuance of an order for examination under this section. 2010, c. 1, Sched. 17, s. 2.

Conditions for issuing order for examination

(2) The physician shall not issue an order for examination under subsection (1) unless,

(a) he or she has reasonable cause to believe that the criteria set out in subclauses 33.1 (4) (c) (i), (ii) and (iii) continue to be met; and

(b) reasonable efforts have been made to,

(i) locate the person,

(ii) inform the person of the failure to comply or, if the person is incapable within the meaning of the HCCA, 1996, inform the person’s substitute decision-maker of the failure,

(iii) inform the person or the substitute decision-maker of the possibility that the physician may issue an order for examination and of the possible consequences, and

(iv) provide assistance to the person to comply with the terms of the order. 2000, c. 9, s. 15.

Return to physician

(3) An order for examination issued under subsection (1) is sufficient authority, for 30 days after it is issued, for a police officer to take the person named in it into custody and then promptly to the physician who issued the order. 2000, c. 9, s. 15.

Assessment on return

(4) The physician shall promptly examine the person to determine whether,

(a) the physician should make an application for a psychiatric assessment of the person under section 15;

(b) the physician should issue another community treatment order where the person, or his or her substitute decision-maker, consents to the CTP; or

Early termination of order on withdrawal of consent

33.4 (1) A person who is subject to a community treatment order, or his or her substitute decision-maker, may withdraw his or her consent to the CTP by giving the physician who issued or renewed the order a notice of intention to withdraw consent. 2000, c. 9, s. 15.

Duty of physician

(2) Within 72 hours after receipt of the notice, the physician shall review the person’s condition to determine if the person is able to continue to live in the community without being subject to the order. 2000, c. 9, s. 15.

Order for examination

(3) If the person subject to the community treatment order fails to permit the physician to review his or her condition, the physician may, within the 72-hour period, issue in the prescribed form an order for examination of the person if he or she has reasonable cause to believe that the criteria set out in subclauses 33.1 (4) (c) (i), (ii) and (iii) continue to be met. 2000, c. 9, s. 15.

Return to physician

(4) An order for examination issued under subsection (3) is sufficient authority, for 30 days after it is issued, for a police officer to take the person named in it into custody and then promptly to the physician who issued the order. 2000, c. 9, s. 15.

Assessment on return

(5) The physician shall promptly examine the person to determine whether,

(a) the physician should make an application for a psychiatric assessment of the person under section 15;

(b) the physician should issue another community treatment order where the person, or his or her substitute decision-maker, consents to the CTP; or

Accountability

33.5 (1) A physician who issues or renews a community treatment order, or a physician who is appointed under subsection (2), is responsible for the general supervision and management of the order. 2000, c. 9, s. 15.

Appointment of other physician

(2) If the physician who issues or renews a community treatment order is absent or, for any other reason, is unable to carry out his or her responsibilities under subsection (1) or under section 33.2, 33.3 or 33.4, the physician may appoint another physician to act in his or her place, with the consent of that physician. 2000, c. 9, s. 15.

Responsibility, named providers

(3) A person who agrees to provide treatment or care and supervision under a CTP shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan. 2000, c. 9, s. 15.

Responsibility of other persons

(4) All persons named in a CTP, including the person subject to the plan and the person’s substitute decision-maker, if any, are responsible for implementing the plan to the extent indicated in it. 2000, c. 9, s. 15. …

Community treatment plans

33.7 A CTP shall contain at least the following:

A plan of treatment for the person subject to the community treatment order.
Any conditions relating to the treatment or care and supervision of the person.
The obligations of the person subject to the community treatment order.
The obligations of the substitute decision-maker, if any.
The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).
The names of all persons or organizations who have agreed to provide treatment or care and supervision under the CTP and their obligations under the plan. 2000, c. 9, s. 15.

Application for review by person subject to community treatment order

39.1 (1) A person who is subject to a community treatment order, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the criteria for issuing or renewing a community treatment order set out in subsection 33.1 (4) are met. 2000, c. 9, s. 22.

When application may be made

(2) An application under subsection (1) may be made each time a community treatment order is issued or renewed under section 33.1. 2000, c. 9, s. 22.

Deemed application

(3) When a community treatment order is renewed for the second time and on the occasion of every second renewal thereafter, the person shall be deemed to have applied to the Board in the approved form under subsection (1) unless an application has already been made under that subsection. 2000, c. 9, s. 22.

Notice to Board

(4) When a physician renews a community treatment order for the second time and on the occasion of every second renewal thereafter, he or she shall give notice of the renewal to the Board in the approved form. 2000, c. 9, s. 22.

Waiver

(5) A waiver by the person who is subject to the community treatment order of an application or of the right to an application mentioned in subsection (3) is a nullity. 2000, c. 9, s. 22.

Review of community treatment order

(6) On the hearing of an application, the Board shall promptly review whether or not the criteria for issuing or renewing the community treatment order set out in subsection 33.1 (4) are met at the time of the hearing of the application. 2000, c. 9, s. 22.

Confirm or revoke order

(7) The Board may, by order, confirm the issuance or renewal of the community treatment order if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the Board determines that those criteria are not met, it shall revoke the community treatment order. 2000, c. 9, s. 22.

Application of order

(8) An order of the Board under subsection (7) applies to the community treatment order in force immediately before the making of the Board’s order. 2000, c. 9, s. 22.

Parties

(9) The physician who issues or renews the community treatment order, the person subject to it or any other person who has required the hearing and such other persons as the Board may specify are parties to the hearing before the Board. 2000, c. 9, s. 22.

Procedure

(10) Subsections 39 (13), (14) and (15) apply to an application under this section with necessary modifications. 2000, c. 9, s. 22; 2015, c. 36, s. 7.

[^1]: Section 33.1(4)(c) of the Act. See Appendix 1 for section 33.1 of the Act which governs the requirements for requirements for the issuance of a community treatment order. [^2]: See pages 73 and 74 of the Transcript of Proceedings dated July 7, 2015. [^3]: See page 80 of the Transcript of Proceedings dated July 7, 2015. [^4]: Brian's Law (Mental Health Legislative Reform), 2000, S.O. 2000, c. 9. [^5]: See Thompson v. Ontario (Attorney General), 2013 ONSC 5392, [2013] O.J. No. 4106 , at paras. 6, 7, 8, 9 and 127. [^6]: A Guide to Consent and Capacity Law in Ontario, 2016 Edition, LexisNexis Canada Inc., 2015, at p. 315. [^7]: Excerpts of these provisions from the Mental Health Act are shown in Appendix 1. [^8]: Subsections 33.1(1), (2). [^9]: Subsection 33.1(6) [^10]: Subsection 33.5(2). [^11]: Subsection 33.5(3). [^12]: Clauses 33.1(4)(e),(f). [^13]: Clause 33.1(4)(e), 33.1(5). [^14]: Subsection 33.1(8). [^15]: S. 33.1(10) [^16]: Subsections 33.1(11). [^17]: Subsections 33.1(12). [^18]: Subsection 33.1(9). [^19]: Sections 33.2, 33.3, 33.4. [^20]: Singh v. de Souza [2009] O.J. No. 3490, at para. 26.

S.S. v. Kantor, 2016 ONSC 1444

Case Summary

REASONS FOR JUDGMENT

INTRODUCTION

ANALYSIS

IS.S.UE #1: DID THE BOARD ERR IN FINDING THAT THE APPELLANT IS INCAPABLE WITH RESPECT TO ALL FORMS OF ANTI-PSYCHOTIC MEDICATION AND A COMMUNITY TREATMENT PLAN?

IS.S.UE #2: DID THE BOARD ERR IN HOLDING THAT THE RESPONDENT COMPLIED WITH THE REQUIREMENTS OF THE MENTAL HEALTH ACT IN ISSUING THE COMMUNITY TREATMENT ORDER?

Principles of Statutory Interpretation

Ordinary and Grammatical Meaning

Entire Context

Analysis

CONCLUSION

APPENDIX “1”

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 3