Court File and Parties
COURT FILE NO.: CV-16-544748 and CV-16-544750 DATE: 20160511 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J. S., Appellant AND: Dr. Suzanne Legault, Respondent
BEFORE: S. F. Dunphy, J.
COUNSEL: Joanna Weiss, for the Appellant Mark Handelman, for the Respondent
HEARD: May 9, 2016
Endorsement
1This is an appeal pursuant to section 39.1 (1) of the Mental Health Act, R.S.O. 1990, c. M.7 by the appellant JS from a January 12, 2016 decision of the Consent and Capacity Board confirming a Community Treatment Order dated November 11, 2015 in relation to the appellant and an appeal pursuant to section 32 (1) of the Health Care Consent Act, S.O. 1996, s. 2 from a decision of the Consent and Capacity Board of the same date confirming the finding of the appellant’s healthcare practitioner dated November 6, 2015 that she lacks capacity with respect to the treatment prescribed under her Community Treatment Plan.
2At the outset of the hearing, I ordered an amendment to the style of cause of these two applications to remove reference to the appellant’s proper name, substituting her initials. This was done in the interest of protecting her privacy.
Background Facts
3The respondent on the applications is the appellant’s treating physician, Dr. Legault. Dr. Legault has been her treating psychiatrist since September 2009. The Board heard from Dr. Legault and the appellant’s sister, ES, her appointed her substitute decision maker.
4The evidence of these two witnesses before the Board establishes that the appellant, while having had to surmount an exceptionally challenging childhood, was leading an apparently normal life, successful in her education and career and planning to marry prior to the first onset of symptoms of a mental disorder that has been diagnosed as paranoid schizophrenia by Dr. Legault.
5The first onset of symptoms in the 1999 – 2000 timeframe resulted in a period of hospitalization and treatment with medication. The appellant went off her medication after a short while. According to her sister, her mental and physical health deteriorated considerably as a result. She was nevertheless able to live at home with her father. Her sister described her state during the years 2000 – 2009 as being far from normal and characterized by increasing difficulty.
6The progressive manifestations of the appellant’s mental disorder reached another critical point in 2009 resulting in another period of hospitalization. It was at this point that Dr. Legault at Trillium Health Partners began to treat the appellant.
7Upon her discharge in 2010 and until March 2014, the appellant lived in a supervised setting and was subject to a succession of Community Treatment Orders that were renewed from time to time. During that time frame, there were three further admissions to hospital during which her medication program was adjusted with some apparent success.
8In March 2014 the renewal of the then-current Community Treatment Order was revoked on technical grounds that are not before me. Dr. Legault chose not to reapply for a further Community Treatment Order in light of JS’s expressed desire to cooperate in a voluntary treatment plan. A voluntary treatment plan was in fact followed whereby the appellant continued to live in a supervised setting, eventually spending several days per week at her family home. The appointment of her sister as substitute decision-maker and a finding of incapacity in relation to her treatment program nevertheless remained in place despite the revocation of the Community Treatment Order.
9In late January 2015, the appellant simply disappeared. She returned to her family home to pick up some money and a winter jacket for the apparent purpose of going on a job interview. She never returned to her family home or to the halfway house. A series of Form 2’s were issued and, after approximately two months, the appellant was ultimately found in a shelter in Burlington.
10There is no evidence of the appellant’s conduct or state during the time she spent in the shelters. She was eventually tracked down after making telephone contact. The police were sent to retrieve her and she was delivered back to the hospital pursuant to the Form 2 that had been issued.
11Upon her readmission to hospital on March 27, 2015, Dr. Legault found her state to have sufficiently deteriorated to warrant committal on an involuntary basis. This was done. Her medication regime was reinstituted and her condition stabilized during her three week stay in hospital.
12On April 17, 2015, the appellant was released from hospital and returned to the supervised residential setting in which she had been living previously but this time under a new Community Treatment Order. That Community Treatment Order and the finding of incapacity were both appealed to the Consent and Capacity Board by JS. The Board upheld both the Community Treatment Order and the finding of incapacity. Subsequent appeals by the appellant to the Superior Court were denied with reasons for judgment issued by Mew J. on November 10, 2016.
13In October 2015, Dr. Legault began the process of issuing a renewed Community Treatment Order and a renewed finding of incapacity of the appellant to consent to treatment under the Community Treatment Plan. The appellant commenced proceedings before the Board seeking to appeal both actions of her treating physician.
14Dr. Legault was of the view that there was a potential issue with the original Community Treatment Order that she made. As there is no provision in the Mental Health Act permitting a Community Treatment Order to be amended, Dr. Legault opted instead to issue a new set of documents incorporating the desired corrections. Accordingly, Dr. Legault started the process of making a fresh determination of incapacity and a fresh Community Treatment Order on November 6, 2015 as described above. The two resulting decisions were also appealed to the Consent and Capacity Board by the appellant.
15As a result, the Board had before it a total of four appeals from the appellant – one appeal from each of the October and November Community Treatment Orders and one appeal from each of the October and November determinations of incapacity to consent to the Community Treatment Plan.
16On November 25, 2015 all four appeals filed by the appellant came on for hearing before the Board. At that time, counsel for the appellant submitted that she had not had time to review the full clinical files and was not prepared to proceed. The matter was accordingly adjourned to January 11, 2016.
17The Board released its two decisions confirming the November Community Treatment Order and the November finding of incapacity on January 12, 2016 and released its reasons on January 17, 2016. The Record of the proceedings before the Board has been forwarded to me for the purposes of the appellant’s appeals.
Issues to be Decided
18The appellant raises three issues for the court’s consideration on these appeals. These are:
a. Was the Community Treatment Order dated November 11, 2015 invalid on its face? b. Was the decision of the Board confirming the Community Treatment Order unreasonable? c. Was the finding of the Board confirming the incapacity of the appellant to consent to her Community Treatment Plan unreasonable?
Analysis and Discussion
(i) Validity of November 11, 2015 Community Treatment Order
19At the initial November 25, 2015 hearing before the Board, the issue of the duplicate appeal proceedings was brought up by the chairperson. Counsel for the appellant advised the chairperson that it was her understanding that the November applications superseded the ones from October.
20The panel of the Board that convened on January 11, 2016 was differently composed. At the opening of the hearing the same issues regarding the duplicate appeals arose. It was again explained that the October forms had been superseded by those issued in November. Ms. Weiss on behalf of the appellant indicated that it was her understanding that the initial Community Treatment Orders were “no longer in existence” and accepted that the appellant’s appeal of the October decisions was effectively moot. It was therefore agreed that the Panel would only hear the appeal of the November decisions. No other preliminary issues were raised by the appellant.
21In the course of cross-examination of the two witnesses, Ms. Weiss on behalf of the appellant elicited admissions that there had been no withdrawal of consent to the October Community Treatment Plan by the substitute decision maker.
22In final argument before the Board, Ms. Weiss submitted that the form of the November Community Treatment Order was invalid on its face because Dr. Legault had checked a box on the form indicating that the subject order was not a renewal but a “first for this person”. Since the October Community Treatment Order had neither expired nor been terminated in accordance with s. 33.2, s. 33.3 or s. 33.4 of the Mental Health Act the appellant took the position that the October Community Treatment Order was therefore still extant when the November Community Treatment Order was made and that the form thus incorrectly indicated that it was a first order.
23The Board rejected this argument for two reasons. Firstly, the Board found that the error, if so characterized, was not fatal to the validity of the Community Treatment Order. The form in fact disclosed the existence of prior Community Treatment Orders. Nothing in s. 33.1(4) of the Mental Health Act requires the disclosure of all prior Community Treatment Orders. Secondly, the Board found that the failure of the appellant to have raised this issue in advance as a preliminary issue as required by the Board’s Rule 13 disentitled the appellant to argue the point for the first time in closing argument.
24I agree with both reasons as expressed the Board.
25The appellant’s clinical history, including the recent history of Community Treatment Orders, was fully on the record and before the Board. Indeed, the basis for the (opposed) adjournment of the November 25, 2015 hearing was counsel for the appellant having had insufficient time to review the various medical files disclosed to her. Both the October and November Community Treatment Orders were before the Board on January 11, 2016, the former being a clear instance of a renewal.
26Dr. Legault checked the “first for this person” box on the form intending to refer to the mandatory review process under s. 39.1 of the Mental Health Act. The distinction is academic since JS appealed the November order in any event and was given a full hearing on the merits.
27Secondly, the Board as a tribunal has a right to control its own process with reasonable rules. The Board in practice assumes the regularity of the forms on which its proceedings are based absent a party raising an alleged defect as a preliminary matter pursuant to Rule 13. Rule 13 permits notice to be given up until the day prior to the hearing or, with leave, at the opening. The balancing of interests under the Mental Health Act places the onus upon the physician. The object of the hearing is to require (and permit) the responding practitioner to discharge that onus by demonstrating that each of the statutory prerequisites for the issuance of such an order under s. 33.1(4) of the Mental Health Act have been satisfied. If there are any issues other than the discharge of that statutory onus, fairness dictates that some notice be given to permit a response to be prepared. Raising a technical issue such as this in final argument for the first time deprives the respondent of any opportunity to respond to the objection with additional evidence. It is to be recalled that while patients exercising appeal rights are often represented by lawyers under legal aid certificates, the system very frequently relies upon physicians acting without counsel. The appeal system, as supervised by the Board, must be fair and accessible by all parties. This goal cannot be achieved if the Board is not permitted to control its process with reasonable rules.
28In my view, the Board was correct in rejecting the technical objection to the sufficiency of the Community Treatment Order when raised, as it was here, in final argument for the first time.
(ii) Reasonableness of Decision re: Community Treatment Order
29The appellant acknowledges that the standard of review to be applied by this court in hearing an appeal of the Board’s confirmation of the Community Treatment Order is that of reasonableness.
30The principal issue taken by the appellant with the confirmation of the Community Treatment Order was the Board’s finding that the criterion in s. 33.1(4)(c)(iii) of the Mental Health Act was satisfied. This required the Board to be satisfied on the evidence that if the appellant “does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder,… to suffer substantial mental or physical deterioration of the person…” (emphasis added).
31The appellant submitted that Dr. Legault’s evidence, at best, was that the plaintiff would become more symptomatic over a long period of time. The appellant pointed to nine years living unsupervised in the community (2000-2009) as well as 10 months of compliant out-patient care in 2014 and no record of complaints or intervention having been required while she was living in shelters for two months as evidence that there was not a likelihood of the patient suffering a substantial mental deterioration.
32The appellant appropriately emphasizes the words “likely” and “substantial” as found in s. 33.1(4)(c)(iii) of the Mental Health Act. The power to impose a treatment plan on a patient against his or her will is a potentially drastic one and one that the Legislature has quite strictly bounded with important safeguards. These safeguards place the onus of satisfying the Board as to the existence of the statutory prerequisites upon the physician making the order. On the other hand, the treatment regime in question is a community treatment plan – the whole purpose of which is to facilitate, where feasible, treatment in the community and outside the institutional setting.
33In my view, the evidence before the Board was quite sufficient to justify the finding of the Board. The nine years of community living experienced by the appellant between the first onset of her symptoms in 2000 and her hospitalization in 2009 were characterized by a significant decline of the appellant, culminating in serious episodes that required hospital treatment. ES was out of the country for approximately one of those years but remained in close touch with her family and was in a position to provide a reliable picture of the entire span of time. This time frame cannot be described as a successful example of the appellant’s ability to subsist without substantial deterioration in her mental condition on an unsupervised basis. The shorter period of voluntarily supervision in 2014 was also less than successful. The evidence does not establish when the appellant ceased taking her medication, but some elements of deterioration were noted before her disappearance in January 2015. While there is no evidence of her state prior to her apprehension in March 2015 while living in shelters, her state had deteriorated to the point of requiring involuntary admission for three weeks in March 2015.
34I am satisfied that the Board acted reasonably in determining that it is likely that, without the Community Treatment Order, it is likely that the appellant would suffer a substantial mental deterioration leading to admission. The whole point of a community treatment plan regime is to short-circuit the revolving door treatment-deterioration-readmission cycle. It cannot be said that a reasonable likelihood of substantial deterioration does not exist merely because the harm occurs in a gradual fashion over time where there is sufficient certainty both as to the likelihood of the harm and its severity.
(iii) Capacity to consent
35I quite concur with the submissions of the appellant in her factum in regards to the importance of the issue of capacity. Capacity is presumed by s. 4(2) of the Health Care Consent Act, 1996. The requirements of capacity do not preclude an individual from disagreeing with a diagnosis or from determining to take health risks that might be considered unreasonable by some. The right to make such personal decisions, even against the grain of popular or professional opinion, is a critical component of individual freedom and autonomy. In Starson v. Swayze, [2003] 1 SCR 722, 2003 SCC 32, Major J. cited with approval the following from the decision of Quinn J. in Koch (Re) (1997), 1997 ONSC 12138, 33 O.R. (3d) 485 (Gen. Div.), at p. 521:
“The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake.”
36The appellant takes issue with the emphasis the Board placed upon her disagreement with the respondent’s diagnosis of her condition or her failure to accept the benefits of the treatment program she had been placed on. She submits that the Board has acknowledged her ability to understand the side effects of the medication she has been prescribed. She suggests that it cannot be said that she lacks the capacity to understand that she might benefit from the treatment plan even if she personally does not accept that she will.
37In my view, the Board acted reasonably in making the finding of incapacity it made. The evidence before it amply demonstrated that by reason of the very mental condition to which she is subject, the appellant is unable to appreciate either that she has a mental illness or that its symptoms have been managed with the medications she has been administered under the treatment plan she has been following. When on her medications and treated, the appellant is able to function at a relatively high level. Unfortunately, she is unable to recognize the cause and effect relationship between her high functioning when treated and the medications she is taking nor is she able to bring to mind her state when untreated to compare.
38In the Starson case, Professor Starson was able to make the decision to decline treatment for his bipolar disorder because he formed the personal view that the impact of the treatment proposed on his professional abilities was worse than the symptoms being treated. JS on the other hand is not able to identify the existence of her mental disorder by reason of the very disorder she suffers from and that same disorder prevents her from assessing the benefits of treatment (that she simply cannot recognize at all) relative to the possible side-effects (that she is capable of appreciating). Such a finding is potentially a dangerous one and must be approached with great care. In the former Soviet Union, political dissidence was sometimes taken as evidence of mental disorder and failure to recognize the alleged flaws in one’s political views as confirmation of the disorder. In the case of JS there is objective evidence of the manifestations of her disorder that goes far beyond simple intransigence in refusing to accept a diagnosis and there is evidence that the disorder itself plays a role in her inability to assess her need for treatment.
39If she cannot make a reasoned assessment of why she might need treatment and assess the benefits of the medication regime proposed in mitigating her symptoms, she cannot reasonably and on an informed basis weigh the benefits of that treatment regime to her as against the risks.
40The Board as an expert tribunal had ample evidence before it from which to make its finding and its finding was neither unreasonable nor the product of an incorrect appreciation of the test it was required to apply. Its decision is entitled to deference.
41In the result, I am dismissing both appeals of JS before me.
S. F. Dunphy, J.
Date: May 11, 2016