Court File and Parties
COURT FILE NO.: 15-66285 DATE: 2016/05/04
IN THE MATTER OF THE HEALTH CARE CONSENT ACT S.O. 1996, Chapter 2, Schedule A, as amended
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JAY REVOY Appellant – and – DR. JOEL WATTS Respondent
Counsel: Marnie D. Munsterman, for the Appellant Michelle O’Bonsawin, for the Respondent
HEARD: April 29, 2016 (at Ottawa)
REASONS FOR JUDGMENT
Shelston J.
Overview
[1] The appellant appeals from the decision of the Consent and Capacity Board (“the Board”) dated October 19, 2015 that confirmed the appellant’s incapacity with respect to treatment with anti-psychotic medication and mood stabilizers, determining that the requirements set out in the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the “HCCA”) had been met.
Facts
[2] The appellant is 40 years of age and has been diagnosed with schizophrenia, a lifelong major mental illness. He was found not criminally responsible for assault in 2011.
[3] He was readmitted to the Royal Ottawa Mental Health Centre (“ROH”) on April 15, 2015 on a warrant of committal (Form 49) signed by Dr. Kunjukrishnan due to aggression towards his girlfriend. The appellant was placed in the care of Dr. Dufour then transferred to the care of Dr. Watts who was joined in the treatment team by Dr. Smith.
[4] Dr. Smith examined the appellant on October 5, 2015 and found him incapable to consent to treatment of a mental disorder.
[5] Both Dr. Smith and Dr. Watts were of the opinion that the appellant remained incapable to consent to treatment at the time of the hearing while the appellant maintained that he was able to consent and that he did not need or want medication for the treatment of a mental disorder.
Standard of Review
[6] The applicable standard of review on appeal from a finding of incapacity under the HCCA is reasonableness.
[7] An unreasonable decision is one that is not supported by reasons that can stand up to a somewhat probing examination as set out in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722.
[8] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190, the Supreme Court of Canada expanded on the meaning of the reasonableness standard:
Reasonableness is a differential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.
[9] On appeal, the standard of the review for questions of law is correctness while questions of mixed fact and law or questions of fact alone, the standard of review is reasonableness. Consequently, as this appeal involves questions of fact or questions of mixed fact and law, I should not grant the appeal unless I conclude that the Board’s decision was unreasonable.
Appellant’s Position
[10] The appellant submits that the Board failed to consider evidence and misapprehended the evidence before it.
[11] The appellant submits that the two-part test for capacity under section 4(1) is met by the applicant. The first part of the test is that the person is capable with respect to a treatment, admission to a care facility or a personal assistant 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. Both the appellant and the respondent agree that the appellant has met that test.
[12] The second part of the test is that the appellant must be able to appreciate the reasonably foreseeable consequences of a decision or a lack of a decision. The parties disagree on this part of the test.
[13] The appellant submits that he was readmitted to the ROH because of anger management issues with his girlfriend at the time. Further, he submits that there was a 10-month period where he was not on any psychotic medication and he was coping and that when he was under the care of Dr. Kunjukrishnan and Dr. Dufour, neither doctor prescribed an antipsychotic medication.
[14] Based on these submissions, he seeks to have the decision of the Board set aside in order that the findings of the Board be quashed and substituted with a finding that the appellant is capable with respect to treatment with antipsychotic medications and mood stabilizers. In the alternative, he seeks an order that the matter be sent back for a new hearing before a fresh panel.
Respondent’s Position
[15] The respondent’s position is that the appellant failed the second part of the test set out in section 4(1) of the HCCA because his condition resulted in him being unable to recognize that he was affected by its manifestations. In that situation, the appellant was unable to apply the relevant information to his circumstances and was unable to appreciate the consequences of his decision.
Evidence before the Board
[16] The evidence presented was a template summary with respect to incapacity to consent to treatment as well as the viva voce testimony of Dr. Smith and Dr. Watts. The respondent did not testify and presented no medical evidence to counter the medical opinions of Dr. Smith and Dr. Watts.
[17] The template summary provided information that the appellant was diagnosed with schizophrenia and placed on antipsychotic medication in 2009 based on a finding of NCR for an assault. The appellant was readmitted voluntarily in 2014 then discharged in September 2014.
[18] Upon admission in 2015, the patient was first seen by Dr. Dufour who indicated that there were no overt signs of psychotic illness but wondered whether the appellant had anger management issues.
[19] Dr. Smith testified that when he joined the treatment team there was a concern about the appellant’s mounting disorganization and paranoia. Dr. Smith met with the appellant on two occasions to discuss the possibility of starting antipsychotic medication. Dr. Smith testified that on the first visit on September 29, 2015, the appellant talked about side effects and did express some concern about weight gain. The appellant was presented with two options regarding medication being Abilify and Risperidone. The appellant indicated he needed more time to think about which medication he would take.
[20] On the second meeting on October 2, 2015, the appellant was unable to repeat any of the things that they had talked about but was preoccupied with Dr. Smith’s level of training.
[21] Dr. Smith was of the opinion that the appellant did not appreciate the foreseeable consequences of a lack of decision based on the extent that his psychosis had progressed since Dr. Watts had assumed care.
[22] Dr. Smith provided particulars such as that the appellant had great difficulty speaking coherently, he was markedly disorganized and confused through the interview, he was preoccupied with the disparity in the levels of education of his doctors; he indicated he had not had time to prepare for the meeting and he was unable to converse in any meaningful way.
[23] Dr. Smith’s stated that when he left the interview on October 2, 2015, he believed that the appellant did not understand what had been said. Dr. Smith also indicated that the nurses had noted illogical responses to questions from the appellant, that he was perplexed, was suspicious of others, was knocking on windows and doors purposelessly, was observed slamming his fists on the nursing desk, was refusing meals, refusing to meet doctors, was isolated in his room and made statements about co-patients receiving “codes from the outside”.
[24] Dr. Smith concluded that the appellant was becoming increasingly disorganized and did not appear to be able to follow through on simple commands or tasks let alone engage in complex decision-making.
[25] Dr. Watts also testified that this was not the first time that the appellant had been diagnosed with having a psychotic illness as he had been diagnosed with schizophrenia in the past. Dr. Watts was very concerned about the level of disorganized thinking of the appellant and that in his opinion the appellant was clearly unable to understand the consequences of remaining untreated and that he did not understand that he was psychotic.
[26] Dr. Watts advised that the treatment team was in agreement that the appellant’s behaviour, attitude and mental status had changed from a couple of months ago. He no longer makes any sense when he talks and it is not possible for him to engage in any meaningful conversation.
[27] Dr. Watts opined that even if the appellant understands information that is given with respect to mental illness and medication, he denies that he has any symptoms at all and does not appreciate the consequences of him not taking the medication. His denial of his illness is in itself that which makes him unable to appreciate that the consequences applied to him. He is not able to recognize that it is the appellant who is the one suffering from the symptoms.
[28] Both Dr. Smith and Dr. Watts were cross-examined by counsel for the appellant.
Analysis
[29] The Board concluded that the evidence establish on a balance of probabilities that the appellant was at the time of the hearing manifesting the symptoms of active psychosis. The Board considered the evidence of the doctors that having long periods of symptom dormancy does not rule out the possibility of a sudden emergent decompensation. As indicated by the Board, there was no medical evidence submitted on behalf of the appellant to the contrary.
[30] The Board also considered the evidence of the doctors that the appellant does not believe he is ill and he will become more ill without a treatment. The Board concluded that the doctors’ joint opinion that the particular psychosis in itself results in the appellant’s inability to appreciate the consequences in question applied to him. Again, there was no medical evidence submitted on behalf of the appellant to the contrary.
[31] I find that the evidence of Dr. Smith coupled with the evidence of Dr. Watts provide a strong evidentiary base upon which the Board could base their decision in confirming the finding of incapacity.
[32] Upon my review of the evidence, the reasons for decision of the Board reflect a complete and thorough review of the evidence and the applicable law. I find that the Board’s decision in this case was reasonable.
[33] Consequently, the appeal is dismissed.