Court File and Parties

Court File No.: CV-15-525445 Date: 2016-05-16 Superior Court of Justice - Ontario

IN THE MATTER OF appeals from decisions of the Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended, and the Mental Health Act, R.S.O. 1990, c. M.7..

Re: L.W., Appellant And: Dr. D. Kantor, Respondent

Before: Justice W. Matheson

Counsel: Joanna Weiss, for the Appellant Gillian Hnatiw, for the Respondent

Heard: May 12, 2016

Endorsement

[1] L.W. appeals from the decision of the Consent and Capacity Board dated March 30, 2015, which confirmed a finding of incapacity to consent to treatment made by the respondent, Dr. Kantor.

Events Giving Rise to Appeal

[2] At the time of the hearing before the Board, the appellant was a 29-year-old educated person, living independently. The appellant was first diagnosed with a schizoaffective disorder in about 2007 and as of the hearing had also been diagnosed with borderline personality disorder.

[3] In the period from 2007 to 2014, the appellant had some hospital admissions. By 2015, the appellant was being followed by an outpatient mental health care team called South Toronto LINK, on a voluntary basis. South Toronto LINK is a mental health outreach team that is part of Reconnect Community Health Services.

[4] The appellant’s mental health history shows a pattern of being treatment-seeking and shows past acknowledgment of benefits of treatment. Until the finding of incapacity challenged on this appeal, the appellant had not been the subject of any formal finding of incapacity with respect to treatment or otherwise.

[5] Dr. Kantor met with the appellant on only two occasions: December 22, 2014 and February 2, 2015. The appellant had stopped taking medication. On February 2, 2015, Dr. Kantor concluded that the appellant lacked the capacity to consent to treatment with antipsychotic medication. On February 9, 2015, the appellant applied to the Consent and Capacity Board to review this finding.

[6] The hearing before the Board was scheduled for and proceeded on March 30, 2015. The Board was comprised of a single senior member, rather than a panel.

[7] The appellant requested an adjournment of the hearing. The appellant sought additional time to prepare for the hearing and to think about treatment options. In addition, on the morning of the hearing, Dr. Kantor gave the appellant a seven-page document that he proposed to rely on in the hearing. The document set out, in some detail, Dr. Kantor’s account of their two prior meetings and some of the appellant’s medical history. In addition to more time to prepare generally, the appellant sought the adjournment in order to review the seven-page summary document.

[8] Dr. Kantor objected to the request for an adjournment. He took the position that there had been enough time for the appellant to prepare for the hearing in that it had been more than a month since the application was brought. He further submitted that he would be prejudiced by an adjournment because he had already cancelled his day for the hearing, and would have to do so again if the hearing was adjourned. The hearing location was also inconvenient for him, resulting in significant travel time.

[9] The Board concluded that there was prejudice to Dr. Kantor, and offered the appellant only a recess, which was not seen by the appellant as sufficient to address the need for preparation before the appellant testified. The adjournment request was refused.

[10] The hearing proceeded that day. Dr. Kantor and the appellant testified at the hearing. Dr. Kantor’s summary document was entered as an exhibit at the hearing and formed part of the record upon which Dr. Kantor relied to support his finding of incapacity. In addition, certain historical medical records were introduced into evidence. The historical medical records were from the period from 2012 to 2014. The only medical evidence from 2015 came from Dr. Kantor and his summary document. That evidence was based on his one assessment of the appellant in February 2015, about two months before the hearing.

[11] In its reasons for decision, the Board acknowledged that this was an unusual case because Dr. Kantor had not examined the appellant since February 2, 2015, and “could offer no specific evidence of [the appellant’s] state of mind the day of the hearing.” Indeed, Dr. Kantor testified that he was “not a mind reader” and testified: “I don’t know [the appellant’s] mental state today”, and “I couldn’t comment with any validity what [the appellant’s] mental status has been like over the last couple of months.” Further, there was no evidence of an assessment of the appellant’s treatment capacity by anyone else in the intervening two-month period. Dr. Kantor was nonetheless convinced that the appellant remained incapable of making decisions about anti-psychotic medications as of the date of the hearing. He testified that his conviction was based upon the nature of the appellant’s condition, his two examinations of the appellant and the historical medical records.

[12] Although the appellant testified, the Board concluded that the appellant’s testimony was not reliable. Unfortunately, the Board’s reasons in this regard demonstrate the potential impact of the denial of the adjournment. The appellant had requested the adjournment to better prepare for his testimony. In the end, the Board decided that the appellant’s testimony was not reliable because the appellant had a very poor memory of his medical history and changed his testimony more than once when confronted with specific information from the documented history. The Board concluded that it could place little weight on the appellant’s testimony.

[13] In its decision dated March 30, 2015, the Board confirmed Dr. Kantor’s finding that the appellant was incapable with respect to anti-psychotic medications. The appellant satisfied the first branch of the test for capacity to consent to treatment in s. 4(1) of the Health Care Consent Act, R.S.O. 1990, c. 2, Sch. A (“HCCA”). However, the Board confirmed the finding that the appellant lacked the ability to appreciate the reasonably foreseeable consequences of a decision about the proposed treatment and therefore failed to satisfy the second branch of the test for capacity under s. 4(1).

Issues on Appeal

[14] The issues on appeal are as follows: (1) whether the Board erred in refusing the appellant’s request for an adjournment; and, (2) whether the Board erred in confirming the respondent’s finding of incapacity.

Request for an Adjournment

[15] There is no issue that the Board had authority to grant or deny the request for an adjournment, or that the Board’s decision in that regard was a discretionary one. Further, the Board’s policy guidelines provide that the Board “will strive to avoid adjournments as a general principle.”

[16] The decision by an administrative tribunal about whether to exercise its discretion to grant or refuse an adjournment is entitled to considerable deference: Misir v. Agago, at paras. 2-5.

[17] A tribunal must not refuse to grant an adjournment arbitrarily. It must consider the nature of the proceeding, the timeliness of the request, the reasonableness of the request and the possible prejudice to the parties in deciding whether the request should be granted: Conway v. Darby, at paras. 42, 45.

[18] The appellant makes strong arguments to the effect that the factors presented to the Board fairly supported the request for an adjournment. However, that is not the question before me. The appellant further submits, with good foundation, that the refusal of an adjournment had a prejudicial impact on the appellant, given the findings made by the Board about the reliability of the appellant’s evidence. While it appears that the denial of an adjournment may have had that effect, that is a matter of hindsight.

[19] Having reviewed the submissions made to the Board, I conclude that while one might easily have taken a different view, the decision to refuse the adjournment was not arbitrary and was based on relevant factors. It is deserving of considerable deference. I am not prepared to grant the appeal on this basis.

Finding of Incapacity

[20] There is no dispute between the parties about the legal principles that apply to the Board’s capacity decision and those that determine the standard of review of that decision.

[21] The standard of review for questions of law is correctness. For questions of mixed fact and law, or questions of fact alone, the standard of review is reasonableness: Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32, at para. 5 (per McLachlin C.J., dissenting on other grounds).

[22] Where the issues are factual or questions of mixed fact and law, the question is whether the Board’s decision was among the range of conclusions that could reasonably have been reached on the law and the evidence before it: Starson, at para. 5.

[23] The test for capacity with respect to treatment is set out in section 4 of the HCCA, as follows:

4(1) A person is capable with respect to a treatment… if the person is able to understand the information that is relevant to making a decision about the treatment… and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[24] A person is presumed capable with respect to treatment. The onus of proving incapacity is on the person alleging it. Further, capacity can fluctuate over time – the relevant time is the time of the hearing: Starson, at para. 118.

[25] The crux of the issue on this aspect of the appeal is whether or not there was sufficient evidence before the Board based upon which the Board could reasonably confirm that the appellant failed to meet the second branch of s. 4(1) at the time of the hearing. I conclude that there was not sufficient evidence.

[26] Even the Board acknowledged the unusual nature of this case. The respondent put forward no medical evidence about the appellant for the approximately two-month period leading up to the date of the hearing. This is not a case where a patient refused to attend and be seen by the physician in advance of a hearing. If that had been the case, it may have been a significant consideration in addressing the absence of evidence. Nor is this a case where the patient had a lengthy medical history with a series of major problems. While the history is not determinative in any way, that sort of history could bring with it a more extensive potentially relevant medical record. In contrast, this was the first finding of incapacity for a patient who had a history of self-initiated requests for help and past recognition of some benefits of treatment.

[27] Further, the Board relied on the respondent’s opinion on key issues, yet it did not address the need for corroboration. For the Board to uphold the respondent’s finding of incapacity, the respondent’s evidence had to be corroborated: Evidence Act, R.S.O. c. E.23, s. 14(1); Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, at para. 28.

[28] As well, the evidence reveals that the respondent relied heavily on what he viewed as the usual characteristics of the appellant’s mental illness, as a substitute for the required focus on the appellant’s own ability to appreciate the consequences of a treatment decision.

[29] The paucity of evidence about whether or not the appellant had the ability to appreciate the consequences of the treatment decision at the relevant time – that is, the date of the hearing – causes me to conclude that the Board’s decision was unreasonable in this case.

[30] The appellant raised other issues about the Board’s decision that need not be addressed given my finding on the above issue.

Disposition

[31] I therefore allow the appeal and set aside the decision of the Board.

[32] There remains the question of what order should be made in the circumstances. The appellant asks that a finding be made that the appellant is capable with respect to treatment; however, I am not prepared to make that finding on the basis of the record before me, especially given the findings made about the appellant’s evidence. A new hearing is required to fairly address the matter.

[33] I therefore direct a new hearing before a differently constituted panel of the Board, on the basis of an updated record.

[34] The respondent’s counsel has indicated that the respondent is no longer part of the South Toronto LINK team, which may have an impact on the utility of a new hearing. However, the respondent’s counsel has also confirmed that the appellant remains a patient of Reconnect Community Health Services, and there is no reason to assume a lack of continuity of care. The Board has the authority under s. 32(3) of the HCCA to add as a party any other person it specifies, and is therefore able to add the appellant’s current treating physician at Reconnect Community Health Services or other physician as appropriate.

[35] Finally, I thank counsel for both parties for their able and helpful submissions on this appeal.

Justice W. Matheson Date: May 16, 2016