CITATION: Montagna v. Klukach, 2016 ONSC 3293
COURT FILE NO.: CV-15-539351
DATE: 20160519
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to Health Care Consent Act, 1996 S.O. 1996 c. 2,
as amended
AND IN THE MATTER OF
JULIE VICTORIA MONTAGNA, a patient at
CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET SITE
Toronto, Ontario
BETWEEN:
JULIE VICTORIA MONTAGNA
Appellant
– and –
DR. JOHN KLUKACH
Respondent
Joanna Weiss, for the Appellant
Kendra A. Naidoo, for the Respondent
HEARD: May 17, 2016
ENDORSEMENT
DIAMOND J.:
Overview
[1] The appellant Julie Victoria Montagna is currently 57 years of age. For several decades, she has suffered from schizophrenia with a history of hospitalizations.
[2] Between 2009-2014, the appellant was admitted to St. Michael’s Hospital on four separate occasions. During these four admissions, she experienced, inter alia, thought disorder, agitation, irritability, limited insight, poor self-care, paranoid and bizarre delusions and eating and sleeping disorders.
[3] On June 15, 2015, the appellant was admitted to the Centre for Addiction and Mental Health (“CAMH”). Up to the date of that admission, the appellant had rapidly decompensated to the point that she had ceased eating or attending to her personal hygiene.
[4] On June 18, 2015, the appellant was initially assessed by Dr. Jason Joannou for the purpose of determining her capability of consenting to anti-psychotic medication. Approximately one month later, her care was subsequently transferred to the respondent Dr. John Klukach (“Dr. Klukach”).
[5] Dr. Klukach assessed the appellant’s capacity on an ongoing basis. She remained under the care of Dr. Klukach for the next few months. On September 9, 2015, she applied to the Consent and Capacity Board (the “Board”) to review Dr. Klukach’s finding that she was incapable of consenting to treatment (specifically anti-psychotic medication). A hearing proceeded before the Board on October 20, 2015 at which time the Board heard testimony from both the appellant and Dr. Klukach.
[6] By decision dated October 21, 2015 (with reasons released on October 28, 2015), the Board confirmed Dr. Klukach’s finding with respect to the appellant being incapable of consenting to treatment.
[7] The appellant now appeals the Board’s decision and asks this Court to quash the decision, declare the appellant capable of consenting to treatment, or in the alternative remit the matter back to the Board for a rehearing before a differently constituted panel.
[8] The following issues are raised on this appeal:
Did the Board err in finding that the appellant was incapable of consenting to treatment?
Did the Board specifically err in confirming Dr. Klukach’s finding of incapacity with respect to the specific medication and forms of proposed treatment?
The Health Care Consent Act
[9] Pursuant to section 10 of the Health Care Consent Act, 1996 S.O. 1996 c. 2, (the “Act”) a health care practitioner who proposes a treatment for a person shall not administer that treatment unless the practitioner is of the opinion that the person is: (a) capable with respect to the treatment and the person has given consent, or (b) incapable with respect to the treatment and the person’s substitute decision maker has given consent on the person’s behalf in accordance with the Act.
[10] Under the Act, a person is presumed to be capable with respect to giving consent to treatment. The onus of proving that a patient is incapable lies upon the health practitioner.
[11] Pursuant to section 4 of the Act, a person is capable with respect to a treatment where that person is able to (a) understand the information relevant to making a decision about the treatment, and (b) appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
[12] At the hearing, Dr. Klukach thus bore the onus of convincing the Board on clear and cogent evidence that the appellant was unable to: (a) understand the information relevant to making a decision about the treatment, or (b) appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the treatment. The test is not cumulative; in the event the Board was convinced of either (a) or (b), then Klukach satisfied his onus.
Standard of Review
[13] The issues on this appeal comprise matters of mixed fact and law. The parties thus agree that the appropriate standard of review is one of reasonableness.
[14] As the Board is a specialized expert tribunal, absent any demonstrated unreasonableness, deference ought to be afforded to decisions made within the Board’s area(s) of expertise.
[15] As stated by Justice Faieta in D.P. v. Betlen 2015 ONSC 4442 (S.C.J.), reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
Issue #1: Did the Board err in finding that the appellant was incapable of consenting to treatment?
[16] Both parties rely upon the Supreme Court of Canada’s seminal decision in Starson v. Swayze, 2003 SCC 32, [2003] S.C.J. 33. In Starson, the majority stated that while a patient need not agree with any particular diagnosis, if it is demonstrated that the patient has a “mental condition” then the patient must be able to recognize the possibility that he/she is affected by that condition. If the patient’s mental condition results in him/her being unable to recognize that he/she is affected by its manifestations, the patient will be unable to apply the relevant information to his/her circumstances, and thus will be unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
[17] The thrust of the appellant’s argument is that the Board failed to give proper weight to how her extensive psychiatric history likely impacted and influenced her views of the treatment being proposed by Dr. Klukach. The appellant testified that (i) she held strong views with respect to avoiding the “traditional medical model”, and (ii) she wanted to pursue homeopathic and naturopathic treatments. The appellant now submits that the Board failed to take her views into consideration when assessing whether she was unable to appreciate the parameters, risks and consequences of the treatment.
[18] To begin, I do not find that the Board failed to consider the appellant’s views and personal history in coming to its decision. There was ample evidence placed before the Board by the appellant which set out her position in detail. The Board found the evidence of Dr. Klukach to be clear and compelling, and corroborated by past events. The salient findings in the Board’s decision were as follows:
“JM denied that the medication had been of any benefit to her, even when confronted with the fact that she had improved with treatment on a number of occasions in the past. JM testified that there was no benefit of medication other than to a pocketbook. JM also clearly denied that she was unwell when she was not taking medication, even when this was clearly contradicted by the evidence of numerous doctors over numerous hospital admissions. JM testified that she was highly functioning, 100% focused and more controlled when she was not taking medication.
The panel did not accept the suggestion that JM was not taking the medication because of side effects, or because she preferred homeopathic alternatives. The panel accepted Dr. Kkukach’s evidence that these were not consistent and reliable reasons provided by JM for not taking medication, and that JM consistently stated that she did not want medication because she did not need it.
In conclusion, after carefully considering all of the evidence, the submissions and the law, the panel concluded that JM was unable to consider that she may be suffering from manifestations of mental illness, which could potentially be improved with psychiatric treatment. This was a direct result of JM’s mental illness. JM was therefore unable to evaluate information concerning any proposed types of medications or treatment as it related to her own circumstances. The panel therefore concluded that JM did not have the ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision about the treatment in question.”
[19] From my review of the jurisprudence, in order to be found capable, it is not necessary that the appellant possess an actual appreciation of the reasonably foreseeable consequences, but rather that she has the ability to appreciate such consequences. I cannot conclude that the Board’s finding, namely that the appellant lacked the capacity to consent to the proposed treatment, was unreasonable.
[20] It was within the Board’s mandate and exercise of its specialized discretion to weigh the evidence as it considered relevant and important. Generally speaking, a failure to place additional weight upon a specific fact does not translate into a finding of unreasonableness.
[21] There was ample evidence before the Board to conclude that by reason of her mental condition, she remains unable to appreciate that she has a mental illness and that its symptoms have or can be managed with the prescribed anti-psychotic medication as per Dr. Klukach’s treatment plan.
[22] The Board’s decision was reasonable and is entitled to deference. The answer to Issue #1 is therefore “No”.
Issue #2: Did the Board err in failing to address and/or consider what the appellant alleges to be a clear breakdown in the doctor/patient relationship?
[23] Section 15 of the Act states that a person may be incapable with respect to some treatments and capable with respect to others. And as held by the Court of Appeal for Ontario in Anten v. Bhalerao 2013 ONCA 499, there must be inquiry into a patient’s appreciation of the parameters and the decision being made, including 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.
[24] The appellant submits that Dr. Klukach did not discuss the possibility or availability of alternative courses of action with her, including different types of anti-psychotic medication or homeopathic options. The appellant relies upon Dr. Klukach’s evidence that he did not provide the appellant with written information about the proposed treatment, nor did he discuss alternative forms of treatment or alternative (oral) medications in “any great details”.
[25] I note that Dr. Klukach also testified that he did not know of any alternative homeopathic treatment(s) for schizophrenia. Accordingly, Dr. Klukach submits that he could not have discussed the availability of alternative treatments about which he was unaware.
[26] The Board did not explicitly comment upon whether Dr. Klukach had a legal obligation to provide information about such alternative treatments. However, the Board did state as follows:
“Further, while Dr. Klukach indicated that he had discussed oral anti-psychotic medication with JM, he did not think that it was a realistic alternative since it had not worked well in the past. Dr. Klukach also testified that he was not currently considering a different anti-psychotic medication in light of JM’s long history with schizophrenia and treatment with various anti-psychotic medications, and instead had tried to reduce the dose provided to JM.”
[27] In my view, this is not a case where there is a “dearth of evidence” about proposed treatments as found by Justice Matheson in Masih v. Siekierski 2015 ONSC 2877. In reviewing the record, I find that there was sufficient evidence that Dr. Klukach discussed the known alternative treatments, and the benefits and risks and expected consequences of the anti-psychotic medication, with the appellant.
[28] Dr. Klukach testified that oral medication was not a viable option for the appellant in her circumstances, and as there were no comparable homeopathic treatments available, I find that there was no error made by the Board in confirming Dr. Klukach’s finding of incapacity.
[29] The answer to Issue #2 is therefore “No”.
[30] Accordingly, the appeal is dismissed.
[31] Neither party sought costs of the appeal, and thus I make no order as to costs.
Diamond J.
Released: May 19, 2016
CITATION: Montagna v. Klukach, 2016 ONSC 3293
COURT FILE NO.: CV-15-539351
DATE: 20160519
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to Health Care Consent Act, 1996 S.O. 1996 c. 2,
as amended
AND IN THE MATTER OF
JULIE VICTORIA MONTAGNA, a patient at
CENTRE FOR ADDICTION AND MENTAL HEALTH – QUEEN STREET SITE
Toronto, Ontario
BETWEEN:
JULIE VICTORIA MONTAGNA
Appellant
– and –
DR. JOHN KLUKACH
Respondent
ENDORSEMENT
Diamond J.
Released: May 19, 2016