CITATION: R.D. v. Eayrs, 2016 ONSC 2123

BARRIE COURT FILE NO.: 15-0377

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the

Consent and Capacity Board,

Pursuant to the Health Care Consent Act, 1996

S.O. 1996, Chapter 2, Schedule A

As amended

AND IN THE MATTER OF

R.D.

A patient at

Waypoint Centre for Mental Health Care – Provincial Program

Penetanguishene, Ontario

BETWEEN:

R.D.

Appellant

– and –

DR. BETH EAYRS

Respondent

J. Weiss, for the Appellant

J. Blackburn, for the Respondent

HEARD: February 18, 2016

REASONS FOR DECISION

QUINLAN J.:

The Appeal

[1] The appellant, R.D., appeals from the decision of the Consent and Capacity Board (the Board) dated February 12, 2015, confirming his incapacity with respect to certain psychiatric treatment, namely anti-psychotic medication, pursuant to s. 4 of the Health Care Consent Act, 1996 (the Act). R.D. requests that the Decision of the Board be set aside, or alternatively, remitted to the Board for a re-hearing.

[2] R.D. alleges that the Board erred in fact and in law in finding him to be incapable of consenting to the proposed treatment. He contends that:

(a) the Board’s Decision is incorrect and unreasonable;

(b) the Board erred in its interpretation and application of the statutory test for capacity;

(c) the Board misapprehended the evidence before it;

(d) the Board erred in law by confirming a finding of incapacity absent corroboration of any key aspects of the respondent’s viva voce testimony and in the face of direct evidence from R.D. disputing the respondent’s testimony on certain key points in issue; and

(e) the evidence of the respondent did not meet the enhanced threshold required to meet the burden of proof in matters related to the capacity of individuals where the determination leads to infringement of liberty or autonomy.

[3] The respondent’s position is that:

(a) the Board correctly interpreted the legal test for capacity with respect to treatment and did not misapprehend the evidence before it;

(b) the Board properly applied the evidence to the statutory definition of capacity;

(c) the respondent’s evidence of R.D.’s incapacity was corroborated by R.D.’s viva voce testimony; and

(d) R.D. has not met his onus of demonstrating an error of law or unreasonableness in the Board’s decision.

Background

[4] At the time of the hearing, R.D. was a 40-year-old forensic inpatient at the Waypoint Centre for Mental Health Care (Waypoint). R.D. is the father of twin sons, has a grade 11 education, and was last employed at age 22, when he had worked for three years for a subsidiary of General Motors. He quit his employment around the time signs of his mental illness first began to manifest themselves. On December 3, 2002, R.D. was found Not Criminally Responsible on Account of Mental Disorder (NCR) and came under the continuing jurisdiction of the Ontario Review Board (ORB). He has been diagnosed with schizoaffective disorder and has been found incapable of consenting to psychiatric treatment since 2011. Since that initial finding, R.D.’s incapacity has been reassessed on multiple subsequent occasions. On February 2, 2015, R.D. applied to the Board to review the finding of incapacity made July 12, 2011 by Dr. Ann Jones.

The Board Hearing

(a) Exhibits at the Hearing

Consent and Capacity Board Clinical Summary

[5] The Consent and Capacity Board Clinical Summary (CCB Summary) was prepared by Dr. Eayrs, the respondent, and filed as an exhibit at the hearing. In the CCB Summary, the respondent noted that signs of R.D.’s mental illness first manifested themselves around age 22. It was unclear when R.D. first showed signs of a psychotic illness, but he was showing behavioural disturbance as of the year 2000, when he was first admitted to a psychiatric unit. While serving a sentence in 2001 for assaulting and causing significant bodily harm to a police officer, R.D. clearly manifested signs of a psychotic illness. Upon release, he was sent involuntarily to Lakeridge Health Centre, on account of his mentally deteriorated state. After leaving against medical advice, R.D.’s father returned him to hospital, where R.D. had to be restrained after attempting to assault his father. In July 2002, R.D. committed the offences that led to him being found NCR on December 3, 2002. While under the ORB’s jurisdiction, he has exhibited multiple instances of assaultive behaviour and has attempted to flee from hospital. He has repeatedly questioned the existence of his mental illness and the need for treatment, resulting in a protracted period of time in the hospital setting.

[6] On July 12, 2011, Dr. Ann Jones made the original finding of incapacity, which has been reassessed on multiple subsequent occasions.

[7] The current plan of treatment is a long-acting injectable Haloperidol, an antipsychotic medication, and Aripiprazole, an oral antipsychotic medication to deal with the negative sexual side effects of the Haloperidol. The respondent gave R.D. extensive information about the potential benefits, risks and side effects of treatment. At times, R.D. is capable of understanding the information.

[8] R.D. has repeatedly objected to taking long-acting injectable antipsychotic medication. In this context, his substitute decision-maker (SDM) consented to a trial of an oral antipsychotic. However, despite agreeing to do so, R.D. did not ingest most doses of the medication. R.D. was placed on long-acting Risperidone, at which point the SDM consented to switching to long-acting injectable Haloperidol. Not long before the switch was implemented, R.D. seriously assaulted the ward social worker. Although R.D. initially voiced some acceptance of the Haloperidol injection, in the weeks before the hearing, he complained about it in much the same terms as he had in the past about other antipsychotics. The SDM also consented to low-dose use of the oral antipsychotic Aripiprazole to offset the negative sexual side effects of Haloperidol.

[9] R.D. has steadfastly insisted that he does not have a mental illness and that he does not require antipsychotic medication. He does not see that an improvement in his mental state, brought about by ongoing adherence to antipsychotic medication, will help him move gradually in the direction of a return to community living, as has happened in the past. He fails to see how going without medication will produce an extended period of mental deterioration, in which the risk of aggression will be high, and which will, in all likelihood, prevent him from progressing to a less secure facility.

[10] R.D. suffers from delusions that directly undermine his ability to appreciate the long-term benefits of his treatment. When in a deteriorated state, he is convinced that nursing staff are seeking to violate him sexually when administering his antipsychotic injections. This belief prevents him from perceiving the potential benefits of taking the medication.

[11] When in a relatively improved mental state, R.D. is more cooperative in taking oral antipsychotic medication. However, he eventually refuses it due to his underlying belief that he does not have a mental illness and does not require this medication. He fails to appreciate the importance of steady adherence to oral antipsychotic medication in preventing recurrences of symptoms and behaviour.

[12] The respondent’s opinion, as noted in the CCB Summary, is that the reasonably foreseeable consequences of R.D.’s decision to refuse adequate amounts of antipsychotic medication are that his chronic persecutory ideation will become more intense and he will be more subject to mood disturbances in the form of mania. These consequences make him a high risk for assaultive behaviour towards others and increase the likelihood he will remain in a maximum secure facility.

Form 33

[13] The Form 33 prepared by Dr. Jones, dated July 12, 2011 noted that R.D. was not mentally capable to consent to treatment of his schizoaffective disorder.

(b) Evidence of the Respondent

[14] The respondent, Dr. Beth Eayrs, is R.D.’s attending physician. She testified and was cross-examined by R.D.’s counsel and questioned by the Board.

[15] The respondent was not concerned at the time of the hearing about R.D.’s ability to understand the information relevant to making a treatment decision with respect to the proposed treatment.

[16] She testified that the most prominent and problematic features of R.D.’s illness are his psychosis and the violence stemming therefrom, his persecutory ideation, and his paranoia. Manic symptoms do not precipitate R.D.’s violent behaviour and dysregulation of mood is not a prominent feature of his illness. R.D. does not acknowledge having a psychotic illness or the mental problems that flow from his illness. He still exhibits symptoms: he is very sexually preoccupied and concerned that male staff members are seeking to rape him. A couple of weeks before the hearing, he was very paranoid and hostile toward staff, voicing sexualized persecutory ideation. R.D. has also had delusions of mis-identity.

[17] The respondent testified that R.D. did not agree that in the past he had deteriorated when either on less or no medication and that his deterioration had led to assaultive incidents. After being off his medication for two or three weeks, he seriously assaulted a co-patient. R.D., however, dismisses the possibility of violence if he is off his medication. He disputed that he is more likely to progress through the ORB system with medication. He does not acknowledge that he suffers from psychotic symptoms and has no insight into his extensive delusional ideation. He fails to draw any conclusion that the adequate dose of antipsychotic medication has made an impact on the level of his preoccupation with his delusions. His insight in recognizing the symptoms that have produced violent behaviour is deficient. R.D. sees the benefit of medications only as resulting in an improvement in his mood.

[18] It is very difficult for R.D. to conduct a risks/benefits analysis. The respondent’s opinion was that this was connected to his sexual preoccupation, his sexualized persecutory delusions, and the side effects of medication. He is convinced that one of the antipsychotics, Paliperidone, causes hernias, although there is no evidence of this. R.D. had repeatedly told the respondent that he felt the injections chemically castrated him.

[19] R.D.’s objections to taking long-acting injectable antipsychotic medication were consistently voiced until February 5, when R.D. suddenly stated that he would continue on the Haloperidol injection and that he felt calmer on it and less likely to have mood symptoms. This occurred, in the respondent’s view, just after R.D. requested the hearing. R.D.’s recent statements were inconsistent with what he had reported to her on numerous previous occasions and there was no indication that R.D. realized that his psychosis, still a very significant aspect of his illness, had improved. When asked how he thought he would be if he was not getting medication, R.D. was unable to voice any awareness that his psychotic symptoms would intensify and there would be an increased risk of violent behaviour.

[20] The respondent’s opinion was that R.D. would deteriorate quite precipitously if he was off medication or under-medicated, becoming much more psychotic and preoccupied with his delusions, and putting staff and fellow patients at risk. Because R.D. did not agree that he had deteriorated while on less or no medication and that this led to assaultive behaviour, the respondent was of the opinion that R.D. did not see the reasonably foreseeable consequences of a decision not to take antipsychotic medication.

[21] At the time of the hearing, R.D. was taking a long-acting injection of Haloperidol and oral Aripiprazole and was remarkably free from the common side effects of his prescribed Haloperidol.

[22] In submissions, the respondent noted that the 2 mg. of oral Paliperidone that R.D. suggested he requires is a sub-therapeutic dose for anybody.

(c) Evidence of R.D.

[23] R.D. was questioned by his counsel and by the Board. In responding to a question as to whether he feels he has a mental illness, R.D. testified that all he needs is a mood stabilizer; he does not feel he has a major mental illness. He outlined concerns about plastic pills he was taking and their relationship to a hernia. He believes that he is losing muscle mass due to the injections. Without medication, R.D. does not think that he might decompensate and end up in restraints because he has “learned a big lesson”. R.D. testified that he has been “badly diddled” by staff. When asked what that means, he said that he had been touched without gloves. He feels like he was “turning queer” and “[his] mind felt really gay”. He stated that his “ring in [his] butt hole doesn’t feel tight… because they were giving [him] injections”. R.D. testified that the only reason he hit the social worker is because he wanted to go to jail because he was being kept like a pet, and “the molesting has got to stop”.

[24] R.D. agreed that he had an opportunity to review the proposed treatment and medications with the respondent. He repeatedly stated that his preference was to take oral medications so he could see what the medication actually was; he thought that staff was mixing his antipsychotic medications. R.D. reported that he always complied with oral medication. He sees the benefit to the medication as a mood stabilizer and as being more for one’s sex drive than for one’s mental state. If found to be capable, R.D. stated that he would like to take 2 mg of Paliperidone.

(d) Decision of the Board

[25] After reviewing the law, the Board commenced its analysis. The Board reviewed the evidence of the respondent and the CCB Summary. It determined that the respondent gave evidence that amply supported her conclusions and that R.D.’s evidence corroborated the respondent’s evidence. After finding that R.D. was able to understand the information relevant to making a decision about the treatment in question, the Board stated:

[R.D.] clearly and steadfastly stated that he did not have a major mental illness. He offered that he had his highs and lows, and all he needed was a mood stabilizer. He said if he was capable, he would agree to a low dose of Paliperidone.

R.D. was preoccupied with his sex drive and the effect of medication on it. He said he was badly diddled by staff and as a result, he felt he was turning queer. He said his mind felt gay. He said the molesting had to stop.

R.D. suspected staff of mixing Haloperidol and Paliperidone in his injections… complained that due to the injections, he had no muscle mass left in his abdominal area and he was getting another hernia…

[26] The Board agreed that R.D. knew some risks and acknowledged some benefits of treatment related to mood, but found that the evidence as a whole, including R.D.’s own testimony, amply supported the finding of incapacity. The Board concluded:

R.D. was completely unable to see that he was suffering from the manifestations of a major mental illness. His persecutory delusions overwhelmed him and made it difficult for him to make a meaningful risks/benefits analysis. Under this part of the test of capacity, the Board found that R.D. was incapable.

The Law

(a) Standard of Review

[27] Pure questions of law are reviewed on a correctness standard. Mixed questions of fact and law are reviewed on the reasonableness standard. Correctness and reasonableness are the only two standards of review of a decision by a tribunal: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

[28] The Supreme Court has ruled that the reasonableness standard involves “…deferential self-discipline” by the reviewing court: Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 46. Reasonableness is mostly concerned with justification and intelligibility within the decision-making process, and whether the decision falls within a range of possible, acceptable outcomes, defensible in respect of the facts and law. The guiding principle is deference and the reviewing court may consider both the reasons offered and the reasons which could have been offered by the tribunal: Dunsmuir, at paras. 47-48.

[29] The court must consider the reasons as a whole and must not interfere unless the appellant has positively shown that the decision was unreasonable: Ryan, at paras. 47-48. A decision may satisfy the reasonableness standard if it is supported by a “tenable” explanation: Ryan, at paras. 55-56.

[30] Even where the tribunal’s reasons do not adequately support the decision, the court must first seek to supplement them before it seeks to subvert them. The reviewing court should look to the evidentiary record to support the finding. Consistent with the guiding principle of deference, the decision of the tribunal should be presumed to be correct, even if its reasons are in some respects defective: Newfoundland & Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 11-12, 14-18.

[31] As noted in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at paras. 86-88:

The Board is uniquely positioned to hear the viva voce evidence of the patient and physicians. These factors suggest that determinations of capacity should generally be entrusted to the relative expertise of the Board. … The standard of reasonableness “involves respectful attention, though not submission” to the Board’s reasons. [Citations omitted.]

The function of the Board is to assess the evidence; it is not the function of the reviewing court to re-weigh it.

(b) Treatment Capacity

[32] The test to determine capacity to make treatment decisions is two-fold. To be capable, one must be both able to understand information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Conversely, to be incapable, one need only “fail” one branch of the two-part test. One is incapable at law, for example, if one is able to understand relevant information, but is not able to apply that information to one’s own circumstances and appreciate the reasonably foreseeable consequences of a decision or lack of decision: the Act, s. 4(1); Starson, at para. 78.

[33] While a person is presumed at law to be capable with respect to treatment, this is a rebuttable presumption. The health care practitioner before the Board bears the onus of establishing incapacity. Cogent and compelling evidence is required to discharge this onus. Capacity can fluctuate over time. In making determinations, the relevant consideration is the patient’s capacity at the time of the hearing: the Act, ss. 4(2), 15(2); Starson, at para. 118.

[34] With respect to the second branch of the test, the Supreme Court has stated this requires that the patient be able to apply relevant information to his or her own circumstances and to be able to weigh the reasonably foreseeable risks and benefits of a decision, or lack thereof: Starson, at para. 78. As Major J. stated, writing for the majority of the Supreme Court in Starson, at para. 79:

While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition,” the patient must be able to recognize the possibility that he is affected by that condition. … [I]f the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances and unable to appreciate the consequences of his decision.

[35] The Act requires the ability to appreciate consequences, not an actual appreciation of those consequences. Only the inability to understand and appreciate consequences as the result of a mental illness may give rise to a finding of incapacity: Starson, at paras. 80-81. The side effects of psychiatric medications are an entirely appropriate consideration when an individual is determining whether to consent to treatment with such medications: Fleming v. Reid, 1991 CanLII 2728 (ON CA), 4 O.R. (3d) 74 at p. 84. The Board’s view of the patient’s best interests is irrelevant to a determination of the patient’s capacity: Starson, at para. 76.

(c) Corroboration

[36] In civil and administrative matters, the standard of proof is the civil standard of a balance of probabilities. The quality of evidence required to meet that standard must be “strong and unequivocal… where either the issues, or the consequences for the individual, are very serious”: Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2005 CanLII 24217 (ON CA), 76 O.R. (3d), leave to appeal to S.C.C. refused, 2006 CanLII 4734 (SCC), 219 O.A.C. 400 (note), at para. 79. Determinations respecting capacity impact dignity, liberty, and autonomy in fundamental ways. The onus is on the health practitioner to provide clear, cogent, and compelling evidence to displace the statutory presumption of capacity. In order for a Board to uphold a health practitioner’s finding of incapacity, his or her evidence must be corroborated: Starson, at para. 77; Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321, at para. 60.

[37] Section 14 of the Evidence Act provides:

An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:

1. A person who has been found,

(i) incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act,

(ii) incapable of personal care under the Substitute Decisions Act, 1992, or

(iii) incapable by a court in Canada or elsewhere.

2. A patient in a psychiatric facility.

3. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence.

Evidence Act, R.S.O. 1990, c. E.23, section 14.

The parties agree that the Evidence Act applies because R.D. was “a patient in a psychiatric facility” at the time of the hearing.

[38] Corroboration of evidence for the purposes of s. 14 of the Evidence Act can be based on the “circumstances” presented in the case. Not every portion of an individual’s evidence has to be corroborated. Corroborative evidence that is weak when viewed in isolation may achieve strength in combination: Shapiro v. Tanabe, [2000] O.J. No. 213 (S.C.), at paras. 48-49.

[39] In Garry v. Sternbauer Estate, [2000] O.J. No. 2704 (S.C.), at paras. 40-42, Gillese J., then sitting as a trial judge, ruled that the vital and essential portions of evidence do not have to be corroborated; this would be an obligation far in excess of what the statute contemplates. The relevant section of the Evidence Act does not contemplate requiring that a claim be proven by independent evidence: Farquhar-Lockett v. Jones, 2016 ONSC 346, at para. 69.

[40] Hearsay evidence can be used as corroboration. Hearsay testimony is clearly admissible at the Board’s discretion, as long as it is sufficiently reliable. As noted in Farquhar-Lockett v. Jones, at para. 70:

All that s. 14 of the Evidence Act requires is “…some other material evidence”: there is no statutory requirement that it be “direct” evidence. Documentary hearsay can be used as corroborative evidence. In the appropriate case, a physician’s evidence can be corroborated by the patient’s own evidence. [Citations omitted.]

[41] A second clinical opinion is not required to satisfy s. 14 of the Evidence Act. Were this the case, the requirement that a second health practitioner concur with the opinion of the health practitioner making the finding of incapacity would have to be set out in the Act, which is drafted in the singular.

Analysis

[42] Only the second branch of the two-part test for capacity, R.D.’s ability to appreciate the reasonably foreseeable consequences of his decision-making, is at issue in the appeal.

[43] In its Reasons for Decision, as noted in the respondent’s Factum, the Board:

(i) correctly quoted the legal test for treatment capacity set out in section 4(1) of the Act;

(ii) correctly noted that there is a legal presumption of capacity in the Act;

(iii) correctly stated that the onus of proof at a Board hearing is on the health practitioner to establish that R.D. is not capable;

(iv) specifically noted that the evidence of the health practitioner must be “clear, cogent and compelling” in order to discharge the legal onus;

(v) correctly stated that the presence of a mental disorder does not in and of itself support a finding of incapacity;

(vi) correctly stated that the patient’s “best interests” are not determining factors in coming to a finding about capacity; and

(vii) properly framed its analysis by considering the two correct legal issues in the test for capacity.

[44] R.D. is essentially asking the court to re-weigh the evidence and prefer his evidence to that of the respondent. The expert Board was entitled to prefer the respondent’s testimony to that of R.D. The Board was also entitled to analyze R.D.’s seemingly contradictory evidence and explore his underlying beliefs about the possibility that he is affected by the key manifestation of his mental condition: his psychotic symptoms.

[45] I find that the Board did not err in its interpretation or application of the test for capacity. The Board reasonably concluded that R.D. was completely unable to see that he was suffering from the manifestations of a major mental illness and that his persecutory delusions overwhelmed him, making it difficult for him to conduct a meaningful risks/benefits analysis. This is not an incorrect statement of what the law requires and does not raise the threshold for the second branch of the test for capacity, as R.D. argued.

[46] It was clear from the evidence at the hearing that R.D. suffers from a schizoaffective disorder and that he was unable to recognize the possibility that he was experiencing the manifestations of psychosis. The evidence supported the finding that R.D. was not able to appreciate what will likely occur if he remains untreated or undertreated and cannot appreciate the benefits of treatment.

[47] I find that the Board did not misapprehend or ignore R.D.’s evidence. Rather, the reasons reflect the Board’s careful analysis of the evidence before it. I agree with the respondent’s submission that the Board’s decision reflected a nuanced view of the evidence. It was aware that R.D. acknowledged risks and benefits of treatment related to his mood, but he was unable to do so in relation to the most prominent features of his mental condition: his psychosis and the violence that stems from it, his persecutory ideation, and his paranoia.

[48] The Board did not unreasonably discount the role that R.D.’s concerns about side-effects played in his ability to appreciate the reasonably foreseeable consequences of a decision about the proposed treatment. It is clear from the evidence of both R.D. and the respondent that R.D. was preoccupied with the effect of the medication on his sex drive. The Board reasonably concluded that R.D.’s persecutory delusions overwhelmed him and made it difficult for him to make a meaningful risks/benefits analysis.

[49] A review of the transcript confirms that R.D.’s evidence corroborated the respondent’s evidence. The Board had before it clear, cogent, and compelling evidence to establish that R.D. was suffering from schizoaffective disorder and its manifestations.

[50] The respondent discharged her onus in demonstrating that any inability to appreciate the consequences of treatment decisions was the product of R.D.’s mental disorder.

Conclusion

[51] I find that R.D. has failed to demonstrate that the Decision of the Board was incorrect or unreasonable. The Board rendered a reasonable Decision with respect to the second branch of the two-part test for capacity. It applied the evidence before it to the statutory test for capacity and amply explained its rationale for doing so. The Decision is not outside the range of acceptable outcomes on the evidence before the Board.

[52] Accordingly, the appeal is dismissed.

[53] Neither party sought costs at the hearing and there shall be no order respecting costs.

QUINLAN J.

Released: March 29, 2016