CITATION: RJ v. Zalan, 2016 ONSC 2337
COURT FILE NO.: CV-15-537953
DATE: 20160407
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an Appeal from Decisions of the Consent and Capacity Board from a hearing of an application under s. 32 (1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, as amended, and an application under s. 39 (1) of the Mental Health Act, R.S.O 1990, c. M. 7
AND IN THE MATTER OF RJ, a patient at North York General Hospital, Toronto, Ontario
BETWEEN:
RJ
Appellant
– and –
DR. ROBERT ZALAN
Respondent
D’Arcy J. Hiltz, amicus curiae
Barbara Walker-Renshaw for the Respondent
HEARD: March 11, 2016
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] RJ appeals from Decisions of the Consent and Capacity Board (the “Board”) made on her applications pursuant to: (1) s. 39 (1) of the Mental Health Act, R.S.O 1990, c. M.7; and (2) s. 32 (1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A.
[2] More precisely, RJ, who was assisted by amicus curiae, appeals from Decisions of the Board dated September 25, 2015 and October 2, 2015 with Reasons for Decision dated October 9, 2015. The Board confirmed her involuntary admission as a patient to a psychiatric facility and the attending physician’s determination that she is not capable to consent to treatment with antipsychotic medications.
[3] For the reasons that follow, I dismiss RJ’s appeals.
B. STATUTORY BACKGROUND
1. The Mental Health Act
[4] In order to understand the questions to be answered on this appeal, it is necessary to understand how the Mental Health Act operates to admit and detain individuals as an “involuntarily patient” at a psychiatric facility.
[5] Under the Mental Health Act, a “patient” is defined as a person who is under observation, care and treatment in a psychiatric facility. A “psychiatric facility” means a facility for the observation, care and treatment of persons suffering from mental disorder, and designated as such by the Minister of Health and Long-Term Care. “Mental disorder” means any disease or disability of the mind.
[6] There are four kinds of admitted patients. First, there is the “out-patient,” a person who is registered in a psychiatric facility for observation or treatment or both, but who is not admitted as a patient and is not the subject of an application for assessment. Second, there is the “informal patient,” a person who is a patient in a psychiatric facility, having been admitted with the consent of another person under s. 24 of the Health Care Consent Act, 1996. Third, there is the “voluntary patient.” Upon the recommendation of a physician, a voluntary patient is a person admitted by an attending physician who is of the opinion that the person is suffering from a mental disorder of such a nature or quality that the person is in need of the treatment provided in a psychiatric facility and is suitable for admission. An “attending physician” means a physician to whom responsibility for the observation, care and treatment of a patient has been assigned. Fourth, there is the “involuntary patient,” a person who is detained in a psychiatric facility under a certificate of involuntary admission, a certificate of renewal, or a certificate of continuation.
[7] Pursuant to s. 12 of the Mental Health Act, a person who is believed to be in need of the observation, care and treatment provided in a psychiatric facility may be admitted as an informal or voluntary patient upon the recommendation of a physician. Pursuant to s. 19 of the Act, subject to ss. 20 (1.1) and (5), the attending physician may change the status of an informal or voluntary patient to that of an involuntary patient by completing and filing with the “officer in charge” (i.e., the officer who is responsible for the administration and management of a psychiatric facility) a certificate of involuntary admission.
[8] Pursuant to s. 14 of the Mental Health Act, nothing in the Act authorizes a psychiatric facility to detain or to restrain an informal or voluntary patient. Involuntary patients, however, may be detained.
[9] There are five ways that a person may be admitted as an involuntary patient to a psychiatric facility.
[10] First, and not pertinent to this appeal, pursuant to sections 21-25 of the Mental Health Act, a judge may remand a person charged with an offence and in custody for an assessment and admission to a psychiatric facility when they have reason to believe that the person suffers from a mental disorder.
[11] A second way that a person is admitted as an involuntary patient, which is pertinent to this appeal, is pursuant to s. 16 of the Mental Health Act. Pursuant to s. 16 (1), a person may bring an information upon oath before a justice of the peace that another person within the limits of the jurisdiction of the justice of the peace: (a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself; (b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or (c) has shown or is showing a lack of competence to care for himself or herself, and if the justice of the peace has reasonable cause to believe that the person is apparently suffering from mental disorder of a nature or quality that likely will result in: (i) serious bodily harm to the person; (ii) serious bodily harm to another person; or (iii) serious physical impairment of the person, the justice of the peace may issue an order for the examination of the person by a physician (Form 2). Pursuant to the Form 2 Order, a police officer may take the person into custody to be detained for examination by a physician, who shall conduct the examination, where practicable, at a psychiatric facility or other health facility.
[12] A third way that a person is admitted as an involuntary patient, which is also pertinent to this appeal, is pursuant to s. 15 of the Mental Health Act. Pursuant to s. 15, where a physician examines a person and has reasonable cause to believe that, among other criteria, the person is apparently suffering from a mental disorder of a nature or quality that likely will result in: serious bodily harm to the person; serious bodily harm to another person; or serious physical impairment of the person, then the physician may make an application for a psychiatric assessment of the person. The criteria under s. 15 are similar to the criteria of s. 16 described above.
[13] A fourth way that a person is admitted as an involuntary patient, which is not pertinent to this appeal, is pursuant to s. 17 of the Mental Health Act. The admission criteria are similar to those described above and if some other factors are satisfied, a police officer may take a person suffering from a mental health problem into custody for examination by a physician.
[14] A fifth way that a person is admitted as an involuntary patient, which is not pertinent to this appeal, is associated with the community treatment order provisions set out in sections 33.1 – 33.9, 33.3, and 39.1 of the Mental Health Act, which can lead to an order for an examination of the person and an application for a psychiatric assessment of the person under s. 15 of the Act.
[15] Pursuant to s. 20 (1) of the Mental Health Act, the attending physician, after observing and examining a person who is the subject of an application for assessment has three choices. The first choice is to release the person if they are of the opinion that the person is not in need of the treatment provided in a psychiatric facility. The second choice is to admit the person as an informal or voluntary patient if they are of the opinion that the person is suffering from mental disorder of such a nature or quality that the person is in need of the treatment provided in a psychiatric facility and is suitable for admission as an informal or voluntary patient. The third choice of the attending physician is to admit the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in s. 20 (1.1) or s. 20 (5) of the Mental Health Act are met.
[16] Section 20 of the Mental Health Act sets out the test for involuntary patient admission. The conditions for admission as an involuntary patient are known as the Box A criteria for the s. 20 (5) criteria and as the Box B criteria for the s. 20 (1.1) criteria, because they appear in Boxes A and B respectively of Forms 3 and 4 for admission as an involuntary patient. Sections 20 (1.1) and 20 (5) of the Mental Health Act state:
Conditions for involuntary admission
20 (1.1) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion that the patient,
(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person;
(b) has shown clinical improvement as a result of the treatment;
(c) is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;
(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment;
(e) has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained; and
(f) is not suitable for admission or continuation as an informal or voluntary patient.
Conditions for involuntary admission
(5) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both,
(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,
(i) serious bodily harm to the patient,
(ii) serious bodily harm to another person, or
(iii) serious physical impairment of the patient,
unless the patient remains in the custody of a psychiatric facility; and
(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.
[17] Pursuant to s. 20 (3) of the Mental Health Act, the officer in charge shall release a person who is the subject of an application for assessment under s. 15 upon the completion of 72 hours of detention in the psychiatric facility, unless the attending physician has: (1) released the person; (2) admitted the person as an informal or voluntary patient; or (3) admitted the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission.
[18] Pursuant to s. 20 (4) of the Mental Health Act, an involuntary patient may be detained in a psychiatric facility for not more than two weeks under a certificate of involuntary admission that is completed and filed with the officer in charge. The detention, however, may be extended by what are described in the Act as a “certificate of renewal” or a “certificate of continuation.”
[19] The temporal duration of the certificate of involuntary admission, the certificate of renewal or the certification of continuation are set out in s. 20 (4), which states:
Authority of certificate
(4) An involuntary patient may be detained, restrained, observed and examined in a psychiatric facility,
(a) for not more than two weeks under a certificate of involuntary admission; and
(b) for not more than,
(i) one additional month under a first certificate of renewal,
(ii) two additional months under a second certificate of renewal,
(iii) three additional months under a third certificate of renewal, and
(iv) three additional months under a first or subsequent certificate of continuation,
that is completed and filed with the officer in charge by the attending physician.
[20] Pursuant to s. 20 (6) of the Mental Health Act, an involuntary patient whose authorized period of detention has expired shall be deemed to be an informal or voluntary patient. Pursuant to s. 20 (7), an involuntary patient whose authorized period of detention has not expired may be continued as an informal or voluntary patient upon completion of the approved form by the attending physician.
[21] Pursuant to s. 20 (8) of the Mental Health Act, after the completion and filing of a certificate of involuntary admission, a certificate of renewal or a certificate of continuation, the officer in charge or his or her delegate shall review the certification documents to ascertain whether or not they have been completed in compliance with the criteria outlined in the Mental Health Act. Where, in his or her opinion, the documents are not properly completed, the officer in charge shall so inform the attending physician and, unless the person is re-examined and released or admitted in accordance with s. 20 of the Mental Health Act, the officer in charge shall release the person.
[22] Pursuant to s. 34 (1) of the Mental Health Act, a patient shall be discharged from a psychiatric facility when he or she is no longer in need of the observation, care and treatment provided there.
[23] Pursuant to s. 39 of the Mental Health Act, an involuntary patient may apply to the Board to inquire into whether or not the prerequisites set out in the Mental Health Act for admission or continuation as an involuntary patient are met. In addition, the involuntary patient may apply to the Board: (a) when a certificate of involuntary admission respecting the patient comes into force; (b) when any certificate of renewal respecting the patient comes into force; or (c) when any certificate of continuation respecting the patient comes into force. Section 39 of the Act states:
Application for review by patient, etc.
- (1) An involuntary patient, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the prerequisites set out in this Act for admission or continuation as an involuntary patient are met.
When application may be made
(2) In addition to the applications under subsection (4), an application under subsection (1) may be made,
(a) when a certificate of involuntary admission respecting the patient comes into force;
(b) when any certificate of renewal respecting the patient comes into force; or
(c) when any certificate of continuation respecting the patient comes into force.
Application for review by Minister, etc.
(3) An application under subsection (1) may be made at any time by the Minister, the Deputy Minister or the officer in charge of the psychiatric facility in respect of any involuntary patient.
Where notice deemed to have been given
(4) On the completion of a patient’s first certificate of continuation and on the completion of every fourth certificate of continuation thereafter, the patient shall be deemed to have applied to the Board in the approved form under subsection (1) unless he or she has already applied under clause (2) (c).
Waiver
(5) A waiver by an involuntary patient of an application or of the right to an application mentioned in subsection (4) is a nullity.
[24] It should be noted that on the completion of a patient’s first certificate of continuation and on the completion of every fourth certificate of continuation thereafter, the patient shall be deemed to have applied to the Board for a review.
[25] Section 42 of the Mental Health Act prescribes who the parties to a hearing before the Board are. Section 42 states:
Parties
- (1) The parties to a hearing before the Board, other than a hearing described in subsection (2), are the attending physician, the patient or other person who has required the hearing and such other persons as the Board may specify. 2015, c. 36, s. 11.
Certificate of continuation hearing
(2) The parties to a hearing of a patient detained under a certificate of continuation are the following:
The patient or other person who has required the hearing.
The attending physician.
The officer in charge of the psychiatric facility.
If a party to the hearing requests a transfer to another psychiatric facility, or if the Board proposes to transfer the patient to another psychiatric facility on its own motion, the officer in charge of that psychiatric facility.
The Minister, if the Minister has informed the Board that he or she intends to participate as a party.
Such other persons as the Board may specify.
Minister entitled to be heard
(3) The Minister is also entitled to be heard, by counsel or otherwise, at a hearing referred to in subsection (2) without becoming a party
[26] Pursuant to s. 41 of the Mental Health Act, on the hearing of an application, the Board shall promptly review the patient’s status to determine whether or not the prerequisites set out in the Act for admission as an involuntary patient continue to be met at the time of the hearing of the application.
[27] For the purposes of the appeal before this court, it should be noted that the Board’s determination of the criteria for admission as an involuntary patient is made as of the time of the hearing of the application.
[28] On a review application, the Board shall rescind the certificate if the Board determines that the prerequisites set out in the Mental Health Act for admission as an involuntary patient were not met at the time of the hearing of the application. An order of the Board confirming or rescinding a certificate applies to the certificate of involuntary admission, the certificate of renewal or the certificate of continuation in force immediately before the making of the order. Section 41 of the Act states:
Review of admission or renewal
41. (1) On the hearing of an application, the Board shall promptly review the patient’s status to determine whether or not the prerequisites set out in this Act for admission as an involuntary patient continue to be met at the time of the hearing of the application.
Confirming order
(2) The Board by order may confirm the patient’s status as an involuntary patient if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were met at the time of the hearing of the application.
Rescinding order
(3) The Board by order shall rescind the certificate if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were not met at the time of the hearing of the application.
Application of order
(4) An order of the Board confirming or rescinding a certificate applies to the certificate of involuntary admission, the certificate of renewal or the certificate of continuation in force immediately before the making of the order.
2. Health Care Consent Act
[29] In order to understand the questions to be answered on this appeal, it is necessary to understand the consent to treatment provisions of the Health Care Consent Act.
[30] Section 10 (1) of the Act precludes a physician from administering treatment unless certain conditions are satisfied. Section 10 (1) provides:
10(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or,
(b) he or she is of the opinion that the person is 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.
[31] Section 4 of the Act stipulates the criteria for determining whether a person is “capable with respect to a treatment.” Section 4 states:
Capacity
- (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Presumption of capacity
(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.
Exception
(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.
[32] In Starson v. Swayze, 2003 SCC 32, at para. 78, Justice Major, writing for the majority, explained the two criteria for capacity as follows:
- First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information ... Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient 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.
[33] To determine that a person is capable with respect to a treatment, the Board must be satisfied that there is evidence that the person is able to appreciate the consequences of a decision or lack of decision in respect of treatment beyond mere verbalization of an understanding and that the person is able to apply the information about the proposed treatment to his her own situation. If the person cannot apply the information to his or her own situation, then he or she does not have the ability to appreciate the reasonably foreseeable consequences of a decision or a lack of decision in respect of treatment: Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (C.A.) at pp. 314-5.
[34] The question on a capacity assessment is not whether the patient’s decision is reasonable; the question is whether the patient has the capacity to make a decision: Neto v. Klukach, [2004] O.J. No. 394 (S.C.J.) at para. 11; Bartoszek v. Ontario (Consent and Capacity Board), [2002] O.J. No. 3800 (S.C.J.) at para. 20. The Board is tasked with making decisions on the question of capacity, not on the advisability of a proposed treatment regime from a medical perspective: Giecewicz v. Hastings, 2007 ONCA 890 at para. 43, leave to appeal refused [2008] S.C.C.A. No. 97; M.M. v. De Souza, 2016 ONCA 155 at para. 18.
[35] The fact that the patient has a mental condition does not preclude the patient having the capacity to make a decision about medical treatment: Neto v. Klukach, supra at para. 12.
[36] A patient need not agree with the diagnosis of his or her attending physician to be able to apply the information relevant to a treatment decision to his or her own circumstances; however, if it is established that the patient in fact has a mental condition, the patient must be able to recognize the possibility that he or she is affected by that condition: Starson v. Swayze, supra at para. 79. If the person’s mental condition results in him or her being unable to recognize that he or she is affected by its manifestations, then he or she will be unable to apply the relevant information to his or her circumstances and be unable to appreciate the consequences of a decision about treatment: Starson v Swayze supra at para. 79; M.M. v. De Souza, supra at para. 22.
[37] For capacity to consent, the Health Care Consent Act does not require the patient to actually appreciate the consequences of his or her decision; rather, it requires the patient to have the ability to appreciate. Justice Major explained, at para. 80 of his decision in Starson v. Swayze, that while the Act requires a patient to have "the ability to appreciate the consequences of a [treatment] decision", it does not require "actual appreciation of those consequences." If the patient has an appreciation of the nature and purpose of the proposed treatment, the foreseeable benefits and risks of treatment, the alternative courses of action available, and the expected consequences of not having the treatment, then he or she has the ability to appreciate the decision made, even if the patient disagrees with his or her physician's treatment recommendation: Gligorevic v. McMaster, 2012 ONCA 115 at para. 8.
[38] The law presumes a person is capable to decide to accept or reject medical treatment and at a capacity hearing, the onus is on the attending physician to prove that the patient is incapable, to the civil standard of a balance of probabilities. The Board must avoid the error of equating the presence of a mental disorder with incapacity; the presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity: Starson v. Swayze, supra at para. 77.
C. FACTUAL BACKGROUND
1. Psychiatric Assessments and Treatments 2006-2015
[39] RJ is 42 years old, and she lives in Toronto with KS, her mother. RJ suffers from paranoid subtype schizophrenia, and she has been an untreated involuntary patient at North York General Hospital since April 16, 2015, where her attending psychiatrist is Dr. Robert Zalan along with Dr. Andrea Bunker, a psychiatry resident under Dr. Zalan’s supervision.
[40] Approximately 10 years ago, while she was pursuing a Master’s degree in English at York University, RJ developed fears that other students would kill her. She quit school and returned home to live with KS. RJ has not lived independently since her return to her mother’s home.
[41] In 2007, RJ was seen as an outpatient by Dr. Stephen Gelber at North York General Hospital. Dr. Gelber thought she might be suffering from a delusional disorder or from schizophrenia of the paranoid subtype.
[42] In April 2008, RJ was admitted as a patient at North York General Hospital for psychiatric assessment. She was as an involuntary patient, and she was found incapable with respect to treatment. On an application for review to the Board, RJ was found not certifiable as an involuntary patient, but the finding of incapacity was confirmed. With the Board’s finding, she became a voluntary patient, and she signed out against medical advice. She did not receive treatment.
[43] From December 14, 2011 to March 12, 2012, RJ was admitted as an involuntary patient to the Centre for Addiction and Mental Health (“CAMH”) under the care of Dr. Gegea. RJ was found incapable and both her status as an involuntary patient and her incapacity determination were subsequently upheld by a decision of the Board. RJ appealed the Board’s decisions and after three months of involuntary admission with no treatment, Dr. Gegea changed her status to a voluntary patient. RJ signed herself out against medical advice.
[44] From July 31, 2012 to August 2, 2013, RJ was admitted to CAMH under the care of Dr. G. Horowitz as an involuntary patient. When her certificate expired, her status reverted to voluntary patient, and she signed herself out against medical advice.
[45] Subsequently, RJ was seen by an outreach psychiatrist affiliated with CAMH. The psychiatrist prescribed Olanzapine 5 mg. The drug was administered by KS who noted an improvement in RJ’s ability to care for herself.
2. The 2015 Assessments and Certificates
[46] On April 14, 2015, police attended at KS’s home and advised her that they had received repeated calls from RJ. The police urged KS to seek medical help for RJ.
[47] On April 15, 2015, KS appeared before a Justice of the Peace and obtained a Form 2 Order for Examination for RJ. In the Form 2, KS indicated that RJ’s behaviour was revealing increased isolation, irritability, verbal abuse toward neighbours including accusing them of being criminals and Nazis, fearfulness of being harmed by RCMP, and delusions of having been sexually assaulted by the RCMP.
[48] On April 16, 2015, pursuant to the Justice of the Peace’s Order, RJ was brought to North York General Hospital and examined by Dr. Blinker who completed a Form 1 Application for Psychiatric Assessment. The Form 1 authorized RJ’s detainment for examination for no more than 72 hours.
[49] The next day, April 17, 2015, at 12:21 p.m. (10 hours later), RJ. Was examined by Dr. Andrea Bunker who completed a Certificate of Involuntary Admission. The form was completed as set out below:
Form 3 Mental Health Act Certificate of Involuntary Admission
Name of Patient [RJ]
Name of physican Andrea Bunker ….
Date of examination 17 Apr 2015
I hereby certify that the following three pieces of information are correct:
I personally examined the patient on the date set out above.
I am of the opinion that the patient named above is not suitable for voluntary or informal status.
Complete one or more boxes as appropriate.
□ I am of the opinion that the patient named about meets the criteria set out in Box A (please complete Box A below)
□ I am of the opinion that the patient named about meets the criteria set out in Box B (please complete Box B below)
[50] It should be noted that while Dr. Bunker completed Boxes A and B, she did not check off the directive boxes.
[51] The Certificate of Involuntary Admission (Form 3) was filed with the officer in charge. Later the same day RJ was assessed not capable of consenting to treatment.
[52] The delegate of the officer in charge reviewed the Certificate of Involuntary Admission, and he concluded that it had not been properly completed. The officer in charge returned the Certificate to the attending physician to be properly completed. As noted above, the problem was that neither of the preliminary boxes for Box A and Box B had been checked although Box A and Box B had been completed.
[53] On April 20, 2015, at 3:53 p.m., more than 37 hours beyond the 72-hour period prescribed by the Mental Health Act, the Certificate, which was now complete, was filed with the officer in charge.
[54] On April 27, 2015, the Board convened to review RJ’s involuntary status and the finding of her incapacity to consent to treatment. The hearing was adjourned, but before the adjournment RJ told the Board that Dr. Waisman, Dr. Zalan, and Dr. Bunker had done genetic testing and had sterilized her.
[55] On April 30 2015, the First Certificate of Renewal (Form 4) of RJ’s involuntary status was completed. The Form authorized her being detained until May 29, 2015.
[56] On May 5, 2015, the Board reconvened to review RJ’s involuntary status and the finding of her incapacity to consent to treatment. She did not have counsel, and she requested that the matter be adjourned so that she could obtain counsel. Another adjournment was granted, this time to May 13, 2015. Before the adjournment, RJ accused Dr. Zalan and Dr. Bunker of being informants and the Hospital of being a facility for British intelligence. She asked the Board to investigate these matters.
[57] On May 13, 2015, RJ requested another adjournment. This time, the adjournment request was refused, and the hearing proceeded without her being represented by counsel.
[58] At the hearing, Dr. Bunker reported that RJ had being receiving Loxapine 25 mg IM PRN for agitation and her agitation settled but she had refused the Risperidone 2mg PO that had been prescribed with a consent obtained from KS, her substitute decision maker. Dr. Bunker reported that RJ had refused all physical health investigations including bloodwork and medical imaging. She testified that RJ had limited insight and judgment and was in denial about any mental illness and believed that she did not require treatment. Dr. Bunker opined that RJ was suffering from a mental disorder of a nature or quality that would likely result in harm to herself or another person and that RJ was not suitable for admission or continuation as an informal or voluntary patient because she had previously left hospital against medical advice each time she had been an voluntary patient. Dr. Bunker opined that RJ was incapable of consenting to treatment with antipsychotic medications because she was unable to demonstrate an understanding of the information presented to her and had no insight about her condition. Dr. Bunker further opined that without treatment, RJ would continue to manifest paranoia and associated distress and that her functionality would progressively decline. Dr. Bunker opined that RJ posed a risk of harm to herself and others.
[59] On May 14, 2015, the Board issued decisions confirming the involuntary patient status and upholding the finding of incapacity to consent to her own treatment.
[60] Shortly after the Board released its decision, RJ issued a Notice of Appeal with respect to the Board’s decision that she lacked the capacity to consent to treatment. For the purposes of the appeal now before this court, it shall be important to note that she did not initially appeal the Board’s decision about her status as an involuntary patient.
[61] On May 29, 2015, Dr. Zalan made a clinical note that RJ seemed to be deteriorating. She was isolating herself from other patients and was increasingly hostile towards staff. She was hallucinating and talking to herself. She refused to speak to Dr. Zalan and accused him of conspiring to harm her. She continued to refuse injectable antipsychotic or oral antipsychotic medications.
[62] On May 29, 2015, the second Certificate of Renewal (Form 4) was issued to detain RJ for two months, until July 28, 2015. For the purposes of this appeal, it is important to recall the point mentioned above that RJ had not yet appealed the Board’s decision about her status as an involuntary patient when the second Certificate of Renewal was issued.
[63] On June 5, 2015, and again on June 30, 2015, Dr. Zalan noted continuing deterioration in RJ’s behaviour. There was continuing anger and irritability and outbursts of disruptive, profane, and rude behaviour with other patients. Dr. Zalan felt threatened and he noted that security was required to escort RJ to the psychiatric intensive care unit where she was administered a chemical restraint due to the risk of violence on the ward.
[64] On July 15, 2015, RJ delivered a Supplementary Notice of Appeal from the Decision of the Board. The Supplementary Notice of Appeal appealed the Board’s decision with respect to her status as an involuntary patient.
[65] Here it should be noted that pursuant to s. 48 (11) of the Mental Health Act, where an appeal is taken to the Superior Court from the Board’s decision to confirm a Certificate of Involuntary Admission or a Certificate of Renewal, the Certificate remains in force pending the outcome of the appeal, unless the attending physician decides that the patient does not meet the criteria set out in s. 20 (1.1.) of s. 20 (5). Section 48 (11) of the Mental Health Act states:
(11) Where an appeal is taken from a decision of the Board to confirm a certificate of involuntary admission, a certificate of renewal or a certificate of continuation, the certificate is effective until,
(a) the certificate is confirmed or rescinded by the court;
(b) the certificate is rescinded by the attending physician;
(c) forty-eight hours after notice is given to the attending physician that the party appealing has withdrawn the appeal; or
(d) the attending physician confirms under subsection (12) that the patient does not meet the criteria set out in subsection 20 (1.1) or (5).
[66] Pausing here, one of the problems presented by the appeal in this court is that by the time that RJ appealed the Board’s decision upholding her involuntary admission, there had been the original Certificate and two Renewal Certificates. The Board’s decision, which was appealed, came between the two Renewal Certificates.
[67] The Mental Health Act does not envision this possibility of a Certificate of Renewal after a Board decision affirming involuntary patient status and then an appeal, and I was advised further that patients typically do not appeal their status as involuntary patients preferring to have their status reviewed as mandatorily required within the timeframes mandated by the Act. In this regard, it should be recalled that in any event s. 41 (1) of the Act requires that the Board must consider whether the prerequisites for admission as an involuntary patient continue to be met at the time of the hearing of the review application.
[68] Returning to the narrative, on July 28, 2015, a third Certificate of Renewal (Form 4) was completed detaining RJ for three months until October 27, 2015. A handwritten note on the Form, however, indicated that it was not in effect due to the appeal of the May 29, 2015 Form 4.
[69] On September 11, 2015, Justice Dunphy granted RJ’s appeal. He concluded that the Board had denied RJ natural justice by refusing her adjournment request and proceeding with the hearing without legal counsel. A new hearing before a differently constituted panel of the Board was ordered.
[70] On September 23, 2015, Dr. Zalan attended on RJ and made a clinical assessment. His consultation notes stated that his opinion that RJ lacked capacity to make treatment decisions was unchanged. He opined that RJ was unable to appreciate and did not appreciate that she has a mental illness. His opinion was that she was unable to appreciate the reasonably foreseeable consequences of taking medication and that she did not appreciate that the reasonably foreseeable consequences of remaining untreated are that she will be homeless and her mother will not take her back in. Dr. Zalan opined that it was reasonably foreseeable that RJ posed harm to herself and to others. It was Dr. Zalan’s view that RJ did not accept even a remote possibility that she suffers from a mental disorder and it was his view that she is unable to evaluate the information about antipsychotic medications.
3. The September 25, 2015 Board Order
[71] On September 25, 2015, the Board convened for a new hearing. At the outset of the hearing, there was uncertainty about what Certificate of Involuntary Patient Admission would be the subject of the Board’s decision. The Board concluded that it should proceed based on the May 29, 2015 second Certificate of Renewal, which remained in effect by operation of s. 48 (12) of the Mental Health Act. As noted above, the second Certificate of Renewal was issued on the day that the first Certificate expired and before RJ delivered her July 15, 2015 Notice of Appeal. The Board found that Dr. Zalan had complied with the Act by filing a statement in writing with the officer in charge confirming that the patient continued to meet the criteria for involuntary patient admission.
[72] At the hearing, RJ’s counsel brought a motion asking that the second Certificate of Renewal be rescinded due to the attending physician’s failure to comply with the Mental Health Act when the April 17, 2015 Certificate of Admission (Form 3) was submitted to the officer in charge. In particular, he challenged that there were irregularities with the filing and review of this Form.
[73] The Board, however, held that the initial Certificate was filed in compliance with the Mental Health Act when it was delivered to the officer in charge on April 17th. In the Board’s opinion, the error discovered during the review by the officer in charge, which required the Form to be corrected by the attending physician, was of a minor nature that had no bearing on the validity of the Certificate. In addition, the Board found that RJ’s rights had been fully protected.
[74] At the hearing on September 25, 2015, Dr. Zalan opined that RJ met the Box A and the Box B criteria. He opined that is was likely that RJ would cause bodily harm to others, particularly her mother or inadvertently to herself, because she continued to have paranoid beliefs about Dr. Zalan, police, and others whom she believed were trying to harm her. In Dr. Zalan’s view anyone trying to prevent RJ from expressing her beliefs about her paranoia was also at risk of harm. Dr. Zalan testified that he had spoken on several occasions with KS who had informed him that unless RJ was on medication, KS did not feel safe having her in her home and that she would not allow her back in her current mental state.
[75] At the September 25, 2015 hearing, KS testified that she had been physically assaulted by RJ. She said that she been grabbed and pushed and her arms squeezed to the point of bruising. She said that RJ had thrown hot tea from a cup at her and once had poured cold water on her while she was sleeping. She said that, nevertheless, she would take RJ back home if she was discharged from the hospital.
[76] At the September 25, 2015 hearing, there was evidence that while in the hospital, RJ had accused staff of physical and sexual assaults and the physicians of doing “Nazi, racist things” and performing “genetic testing.”
[77] On September 25, 2015, the Board did not complete its hearing, but the Board issued an endorsement. The Board held that RJ’s admission as an involuntary patient on April 17, 2015 complied with the Mental Health Act.
4. The October 2, 2015 Hearing and the Board Orders and Decisions
[78] When the hearing resumed on October 2, 2015, RJ’s counsel sought clarification of RJ’s involuntary status, and he submitted that it was unclear when the second Certificate of Renewal would expire. He submitted that there were 12 or 13 days left to run but it was uncertain whether those days had already begun to run from the date of Justice Dunphy’s order (September 11, 2015) or would begin to run from when the Board began the rehearing (September 25, 2015) or from the date when the Board released its decision.
[79] The Board noted that the statute provided no guidance to answer this novel question but concluded that the Certificate of Renewal restarted on September 25, 2015 and would expire on October 6, 2015. The Board reasoned that this was fair to RJ, provided certainty to the process and ensured that there would be the new hearing that was ordered by the Court.
[80] On October 2, 2015, the Board proceeded to hear testimony about the involuntary status of RJ as of that date and about her incapacity to consent to treatment. When the hearing proceeded on the merits, Dr. Zalan testified that RJ had a history of being violent towards her mother, throwing hot tea at her, pushing her down to the point of the mother sustaining bruises and having difficulty getting up. He said that KS would lock her bedroom door at night because she was fearful that RJ would barge in. Dr. Zalan advised that he believed that KS would not allow RJ to return home. He testified that he had feared for his own safety in his attendances on RJ. He testified that RJ’s mental status had not changed and that she had become very aggressive and hostile towards other patients and nursing staff. He said that she was experiencing hallucinations and paranoia. He testified that she continued to refuse medication but if she were treated, she would be able to regain her functioning, to reduce her symptoms and be at less risk of harming herself, but without medication she would further deteriorate into a decompensated psychotic state.
[81] Dr. Zalan confirmed that he would recertify RJ on the date of the hearing and would rely on criteria found in both s. 20 (5) and s. 20 (1.1) of the Mental Health Act. He testified that RJ was suffering from a mental disorder of a nature or quality that would likely result in serious bodily harm to another person and / or her serious physical impairment unless she remained in the custody of a psychiatric facility and that she was unsuitable for voluntary status (the Box A criteria). Further, Dr. Zalan testified that RJ was suffering from a mental disorder of a nature or quality that would likely result in her substantial mental deterioration unless she remained in the custody of a psychiatric facility and that all other criteria of the Act were established (the Box B criteria).
[82] On the issue of RJ’s capacity to consent to treatment, Dr. Zalan testified that she did not have the requisite mental capacity. He testified that she persisted in her denial of having any mental health problems and was paranoid that she was being targeted for genetic testing by spies for the British Secret Service or by Nazis. In his view, her delusions interfered with her ability to appreciate she had a mental illness and would benefit from treatment. Dr. Zalan testified that RJ was unable to appreciate the facts relevant to making a decision because she denies any illness and her paranoia is so profound that she could not enter into any meaningful thought process about the risks and benefits of taking the medication or the consequences of not taking it.
[83] KS also testified at the October 2, 2015 hearing. She testified that she was very concerned about her own safety should RJ be discharged. She said that before RJ’s admission she had been concerned about RJ’s behaviour and upset because RJ was disturbing their neighbours with verbal abuse. She said that RJ had physically hurt her many times causing bruising and that RJ would come into her bedroom during the night. She said that RJ had thrown water and tea at her. KS said that in her current state, RJ was not ready to come home.
[84] On October 2, 2015, the Board confirmed RJ’s involuntary patient status and found that RJ was not capable to consent to treatment with respect to anti-psychotic medications in all forms. The Board found that RJ was suffering from a mental disorder at the time of the hearing. The Board found RJ unsuitable to be a voluntary patient. The Board found that if RJ was not continued as an involuntary patient, her current condition was such that serious bodily harm was likely to come to KS. The Board found that KS had minimized the risk of harm to herself by focusing on her daughter being unwell and needing help. The Board found that RJ lacked the ability to appreciate the reasonably foreseeable consequences of consenting to (or refusing) treatment because her delusional beliefs precluded her from considering the reality of her situation and made her unable to consider the information being provided to her and because she rejected the possibility that she might be experiencing a mental condition. The Board found that she lacked the ability to consider the possible benefits of consenting to the proposed treatment.
5. The Current Appeal
[85] On October 6, 2015, RJ filed a Notice of Appeal from the Board’s Decisions.
[86] On October 9, 2015, the Board issued written Reasons for Decision, and on October 13, 2015 the Board issued a final amended Decision.
D. DISCUSSION AND ANALYSIS
Introduction - Issues on the Appeal
[87] There are five issues on the appeal; namely:
• (1) What standard of appellate review applies to the Decisions of the Board?
• (2) Did the Board make a reviewable error in concluding that RJ was legally admitted as an involuntary patient notwithstanding the late completion of the initial (Form 3) Certificate of Involuntary Admission?
• (3) Did the Board make a reviewable error in concluding that RJ was subject to the second Certificate of Renewal at the time of the September 25, 2015 hearing and that the certificate would begin to expire as of that date?
• (4) Did the Board make a reviewable error in concluding that RJ met the test for involuntary admission pursuant to s. 20 (5) of the Mental Health Act?
• (5) Did the Board make a reviewable error in concluding that RJ was incapable of consenting to treatment with antipsychotic medication?
1. Standard of Appellate Review of the Decisions of the Consent and Capacity Board
[88] Pursuant to s. 48 (1) of the Mental Health Act, a party to a proceeding before the Consent and Capacity Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both. Pursuant to s. 48 (3) of the Mental Health Act, s. 80 of the Health Care Consent Act, 1996 applies to the appeal. Section 80 (10) of the Health Care Consent Act, 1996 provides as follows:
- (10) On the appeal, the court may,
(a) exercise all the powers of the Board;
(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;
(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.
[89] The case law establishes that on an appeal, the decision of the Board applying the law to the evidence is subject to review on a standard of reasonableness: Giecewicz v. Hastings, supra; M.M. v. De Souza, supra. The Board’s interpretation of the law, however, is reviewable on a standard of correctness. In Starson v. Swayze, supra, Chief Justice McLachlin (in dissent, but not on this point) stated at para. 5:
- I agree with my colleague Major J. that the Board's interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, I agree that the Board's decision is subject to review for reasonableness. The legislature assigned to the Board the task of hearing the witnesses and assessing evidence. Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board's conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence. As Binnie J. states in R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33 (released concurrently), at para. 33: "If the Board's decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene." The fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board's conclusion.
[90] See also: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 45- 49; I.T. v. L. L. (1999), 1999 CanLII 19918 (ON CA), 46 O.R. (3d) 284 (C.A.) at pp. 290-292; Duarte v. Kingston General Hospital, [2000] O.J. No. 3238 (S.C.J.) at paras. 10-11; Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (H.C.J), aff’d (1984) 1983 CanLII 1687 (ON CA), 44 O.R. (2d) 264 (C.A.).
[91] Thus, an appellate court reviews the findings of fact of the Board and the Board’s application of the law to the facts to the standard of reasonableness. This standard shows deference to the relative expertise of the Board members who are likely to have acquired experience over the course of their appointments in dealing with assessments of capacity and are uniquely positioned to hear the viva voce evidence of the parties. If the Board’s decision, however, is unreasonable, then it should be set aside. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination. If the Board’s decision is within the range of conclusions that could reasonably have been reached on the law and evidence, the decision should be affirmed.
[92] The Board may rely on hearsay evidence and the weight to be accorded to the evidence is normally left to the discretion of the Board, although the Board should be careful to avoid placing undue emphasis on uncorroborated evidence that lacks a sufficient indicia of reliability: Starson v. Swayze, supra at paras. 5 and 115; Anten v. Bhalerao, 2013 ONCA 499 at para. 32; Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15.
2. Did the Board make a reviewable error in concluding that RJ was legally admitted as an involuntary patient notwithstanding the late completion of the initial (Form 3) Certificate of Involuntary Admission?
[93] Amicus submits that the attending physician’s failure to file a properly completed Certificate of Involuntary Admission with the officer in charge on or before 2:20 a.m. on April 19, 2015 meant that RJ’s admission as an involuntary patient was unlawful.
[94] As noted above, the officer in charge identified an error in the initial (Form 3) Certificate of Involuntary Admission; namely that the attending physician neglected to check off two boxes in the Form designed to confirm whether the attending physician found that the patient met criteria under Box A or Box B. However, other sections of the completed Form confirmed that the attending physician regarded RJ as satisfying both the Box A and Box B criteria.
[95] Neither the parties’ legal research nor my own has identified any case law that has addressed circumstances similar to the immediate case on the formalities of completing Form 3.
[96] In my opinion, the Board’s decision was not a matter of law but rather was a matter of applying the law to the facts of the particular case. In my opinion, the Board’s decision was reasonable and the Board did not make a reviewable error in concluding that RJ was legally admitted as an involuntary patient notwithstanding the return for correction and apparent late completion of the initial Form 3 Certificate of Involuntary Admission.
[97] I agree with the Board that the error in completing the form, if that is what it was, was trifling, and the error did not affect the substance of the form. It was clear from the form as it was originally submitted that the attending physician when she submitted the form was satisfied that the criteria for admission as an involuntary patient were satisfied.
[98] Further, pursuant to s. 20 (8) of the Mental Health Act, where, in his or her opinion, the documents are not properly completed, the officer in charge shall so inform the attending physician and, unless the person is re-examined and released or admitted in accordance with s. 20 of the Mental Health Act, the officer in charge shall release the person. It would appear that the admission of RJ proceeded pursuant to s. 20 (8) of the Act and her rights were protected.
[99] In any event, there was no reviewable error made by the Board.
3. Did the Board make a reviewable error in concluding that RJ was subject to the second Certificate of Renewal at the time of the September 25, 2015 hearing and that the certificate would begin to expire as of that date?
[100] When, after Justice Dunphy’s order, the Board reheard RJ’s appeal, the Board used the second Renewal Certificate as the operative certificate. That certificate had 12 days remaining to run, when RJ filed her Supplementary Notice of Appeal, and the Board concluded that the certificate would begin to expire as September 25, 2015 when it began to hear RJ’s appeal.
[101] RJ’s Amicus submits that the Board erred in law. He submitted that the Board’s decision was detrimental to RJ. It would appear that the alleged detriment is associated with the temporal authority of the Certificate and of the temporal authority of Certificates of Renewal that may follow, because an involuntary patient may be detained for not more than one additional month under a first Certificate of Renewal and for not more than two additional months under a second Certificate of Renewal.
[102] Neither the parties’ legal research nor my own has identified any case law that has addressed circumstances similar to the immediate case about what certificate is operative in circumstances similar to those that occurred in the immediate case.
[103] In my opinion, the Board’s decision to treat the second Renewal Certificate as the operative certificate and the Board’s decision to beginning the time period for the expiry of that certificate as of September 25, 2015 was not a matter of law but rather was a matter of applying the law about the operation of certificates to the unusual facts of this particular case.
[104] In my opinion, the Board’s decision was reasonable, and the Board did not make a reviewable error.
4. Did the Board make a reviewable error in concluding that RJ met the test for involuntary admission pursuant to s. 20 (5) of the Mental Health Act?
[105] RJ’s Amicus submits that the Board’s decision about RJ’s involuntary admission was not reasonable because: (1) there was insufficient evidence for the Board to conclude that RJ would likely cause serious bodily harm to KS as result of mental disorder if not detained; (2) any touching of KS by RJ occurred in KS’s home and there was insufficient evidence for the Board to conclude that RJ would return home if not detained at the hospital; and (3) there was insufficient evidence for the Board to conclude that KS would allow RJ into her home.
[106] I disagree with these submissions. On the basis of the evidence of Dr. Zalan and of KS, there was ample support for the Board’s conclusions that RJ suffered from a mental disorder at the time of the hearing and that her mental disorder was likely to result in serious bodily harm to another person, in particular her mother, if she did not remain in the hospital and there was ample evidence to support the Board’s conclusion that RJ was not suitable for admission as a voluntary patient.
[107] In my opinion, the Board’s decision that RJ met the statutory requirements of s. 20 (5) of the Mental Health Act for admission as an involuntary patient was supported by cogent and compelling evidence and the Board’s decision was reasonable.
5. Did the Board make a reviewable error in concluding that RJ was incapable of consenting to treatment with antipsychotic medication?
[108] RJ’s Amicus submits that the Board’s Decision that RJ was incapable was unreasonable because: (1) the decision was not supported by the evidence; (2) there was an insufficient examination of RJ’s capacity; (3) minimal information was provided regarding diagnosis and treatment; and (4) there was an absence of evidence that RJ’s delusions directly influenced her decision-making and precluded her from considering the reality of her situation.
[109] I disagree with these arguments. In the immediate case, Dr. Zalan’s evidence, combined with the documentary evidence, provided evidence that RJ was in paranoid denial and was unable to recognize that she was affected by a mental condition. The Board reasonably concluded that she lacked the ability to appreciate the reasonably foreseeable consequences of consenting or not consenting to the treatment proposed for her.
[110] The Board in the immediate case did not make the errors that were identified in the leading case of Starson v. Swayze, supra. It did not assume that simply because of RJ’s mental condition that she did not have the capacity to make a treatment decision and rather focused on whether she actually had the capacity to process, retain, and understand the relevant information and whether she had the capacity (not the actuality) of applying the relevant information to her circumstances and of weighing the foreseeable risks and benefits of her decision. The Board did not proceed on the basis of making the decision it would recommend for her or on the basis of what it thought was in her best interests. Rather, it made a reasonable decision about her capacity and there is no basis for the court to set aside the Board’s decision.
E. CONCLUSION
[111] For the above reasons, the appeal is dismissed. There shall be no order as to costs.
Perell, J.
Released: April 7, 2016
CITATION: RJ v. Zalan, 2016 ONSC 2337
COURT FILE NO.: CV-15-537953
DATE: 20160407
IN THE MATTER OF an Appeal from Decisions of the Consent and Capacity Board from a hearing of an application under s. 32 (1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, as amended, and an application under s. 39 (1) of the Mental Health Act, R.S.O 1990, c. M. 7
AND IN THE MATTER OF RJ, a patient at North York General Hospital, Toronto, Ontario
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RJ
Appellant
– and –
DR. ROBERT ZALAN
Respondent
REASONS FOR DECISION
PERELL J.
Released: April 7, 2016