Court File No.: CV-16-544329 Date: 2016-06-15 Ontario Superior Court of Justice
Between: Donnalee Jemmison, Appellant – and – Dr. Charles Ohene-Darkoh, Respondent
Counsel: Joanna Weiss, for the Appellant Kara Smith, for the Respondent
Heard: April 18, 2016
Reasons for Decision
MCEWEN, J.
[1] The Appellant, Donnalee Jemmison (the “Appellant”), brings this appeal pursuant to s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the “Act”) seeking to set aside the decision of the Consent and Capacity Board (the “Board”) dated January 6, 2016.
[2] The Board, in its decision, found that the Appellant was incapable of making decisions with respect to treatment with anti-psychotic medication and with respect to consenting to a community treatment plan (the “CTP”).
Background
[3] The Appellant is thirty-four years old and, for approximately ten years, has been diagnosed with Schizophrenia. Historically, she has been admitted to hospital on a number of occasions: July 2005 (3 days); June 2012 (8 days); October 2012 (9 days); January 2013 (6 days); June 2015 (14 days); and October 2015 (19 days).
[4] The Respondent, Dr. Charles Ohene-Darkoh (the “Respondent”), has treated the Appellant as an outpatient at the Brampton Civic Hospital for approximately four years.
[5] The Appellant’s latest admission, in October 2015, occurred as a result of the Appellant’s mother and substitute decision maker, Janet Jemmison (“Ms. Jemmison”), obtaining a Form 2 with respect to concerns she had about the Appellant’s apparent rapidly deteriorating mental state. The Appellant, who resides with Ms. Jemmison and her husband, had resigned her job as an IT support worker, isolated herself and was making claims she was hearing voices and that coworkers were controlling her mind and body (amongst other claims). The Appellant has a history of non-compliance in taking anti-psychotic medication.
[6] Prior to the Appellant being discharged from hospital in October 2015, the Respondent issued a community treatment order (the “CTO”), which was also signed by Ms. Jemmison, citing, amongst other things, that the Appellant suffered from a mental disorder and that she was likely to relapse with consequent deterioration in mental state without a CTO. The Appellant’s capacity to consent to a CTP was also assessed at this time. It was determined that the Appellant was incapable of consenting to the CTP, accordingly, a CTP was entered into by the Respondent, Ms. Jemmison, Ms. Skye McLellan, the CTO coordinator of the Brampton Civic Hospital and a representative of the Brampton Civic Hospital-Medication Clinic. The CTO expired on April 22, 2016.
[7] The Appellant appealed the aforementioned findings to the Board and a hearing was conducted on January 5, 2016. Only the Respondent testified. The Board issued its 16-page decision on January 12, 2016, in which it upheld the finding of incapacity with respect to the proposed treatments and confirmed the CTO.
[8] The Appellant appeals this decision on a number of grounds that will be reviewed below.
Standard of Review
[9] The parties agree that the standard of review for reasonableness applies to all of the disputed decisions made by the Board since they involve questions of mixed fact and law.
[10] Reasonableness has been defined by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47, as follows:
Reasonableness is a deferential 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. A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Analysis
[11] The Appellant raises three arguments on this appeal, and I will deal with each in turn.
[12] First, the Appellant’s primary complaint is that the CTP included reference to a referral that had been made to Canadian Mental Health Association-Peel (“CMHA-Peel”) for community support services.
[13] The portion of the CTP that the Appellant finds offensive states as follows:
A referral has been made to CMHA-Peel for community support services. If accepted, CMHA-Peel will offer community support services for this Community Treatment Plan.
[14] As can be seen from the aforementioned excerpt, the Appellant had not yet been accepted by CMHA-Peel. As it turned out, the Appellant never was accepted by CMHA-Peel, and CMHA-Peel provided no treatment.
[15] The Appellant submits that the Mental Health Act, R.S.O. 1990, c. M.7 does not allow for such prospective or theoretical referrals and that – once a CTP is entered into and a CTO issued – there is no mechanism or ability to add parties, such as CMHA-Peel.
[16] In this regard, the Appellant submits that the CTP violates sub-sections 33.1(4)(b), (c) (iii), (v) and (d), which provide as follows:
(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;
(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,
(iii) if the person 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 cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,
v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;
(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan.
[17] Since CMHA-Peel had not agreed to accept the Appellant and did not execute the CTP, the Appellant submits that both CTO and CTP are invalid.
[18] I disagree. The Board fully considered this argument. The Board, however, found that the fact that CMHA-Peel did not participate in developing the CTP, nor did it sign the CTP, were not fatal. I agree with the Board’s reasoning that it was not necessary for CMHA-Peel to execute the CTP since it was not yet providing services, and, as the Board held, “The future, contingent possibility of the involvement of CMHA-Peel had not yet come to fruition and was of no real effect on the matter as of yet”. Had CMHA-Peel later provided services, the Appellant’s argument may well then have merit if a further CTO or CTP were not executed. However, this was not the case.
[19] Since CMHA-Peel was not involved when the CTP was entered into, nor did it ever become involved in this case, the present matter is distinguishable from the decision of Faieta J. in S.S. v. Kantor, 2016 ONSC 1444. The Appellant relies on this decision.
[20] In that case, the Public Guardian and Trustee was the substitute decision maker and did not agree to the CTP until a much later date. In those circumstances, Faieta J. found the CTP to be invalid. In the within case, however, the prospective possibility never occurred and the Respondent continued to provide treatment. That is, CMHA-Peel never provided any services. Accordingly, in my view, the Board’s conclusion was correct and consistent with section 33.1(4).
[21] Further, with respect to this argument, the Appellant also submitted that since CMHA-Peel treatment was not available at the time the CTP was entered into, CMHA-Peel should not have been included in the plan. Once again, in my view, this raises a prospective problem that never developed since the Respondent was providing and continued to provide all treatment to the Appellant. The complaint raised by the Appellant never occurred, as CMHA-Peel never provided the services.
[22] The second argument raised by the Appellant is that the Appellant’s mother, Ms. Jemmison, withdrew as the substitute decision maker after the CTO was prepared and that a new CTO and CTP were required, since the existing CTO and CTP were invalid once Ms. Jemmison resigned as the substitute decision maker. I do not agree that, in fact, this is what occurred.
[23] When one reviews the Board’s decision, it is clear that the Board considered the evidence concerning Ms. Jemmison’s alleged withdrawal as the substitute decision maker. The Respondent testified at the Board hearing that Ms. Jemmison was under duress and pressure from the Appellant to withdraw as the substitute decision maker and was in a very difficult position. Notwithstanding Ms. Jemmison’s correspondence that she no longer wished to act as the substitute decision maker, she later spoke with the Respondent and she advised that the letters were executed under duress and pressure by the Appellant and that she was willing to remain as a substitute decision maker until someone else could be appointed. Ms. Jemmison then reaffirmed the consent, previously given by her, in respect to the treatment. In my view, the Board fairly considered this argument and the evidence, and it gave thoughtful and concise reasons for determining the consent of Ms. Jemmison remained valid throughout.
[24] The third argument raised by the Appellant is that the Board, “in two mere sentences”, found that the evidence demonstrated that she was unable to appreciate the consequences of the treatment decision and that she was unable to recognize that she was affected by the manifestation of a mental health condition.
[25] The Appellant argues that the analysis is unduly brief and fails to consider important evidence such as the limited interaction between the Appellant and the Respondent; the difficult relationship they endured; and, that, over the years, the Appellant had serious side effects with respect to the medication that had been prescribed. Further, the Appellant submits that she had informed the Respondent that she felt benefits from the medication; that she acknowledged some of her difficulties; and had appropriate insight. All of this was allegedly overlooked by the Board.
[26] I disagree. In my view, the Board came to a reasonable conclusion based on the evidence before it which was reasonably considered. The Board, which included a psychiatrist, conducted a thorough review of the evidence of the Respondent. As noted, the Appellant did not testify. The record discloses, in fact, that the Appellant did not acknowledge that she had a mental disorder but rather blamed stress. In numerous places in the transcript, the Respondent testified that the Appellant would deteriorate mentally to the point that she, among other things, would not eat, became fearful, had delusions, heard voices, stopped taking her medication, and deteriorated due to non-compliance. In my view, the evidence supported the provision of the CTO. The decision of the Board was well within the range of conclusions it could have reached on the evidence. It was not necessary for the Board to address each and every single point in its reason as submitted by the Appellant. Overall, its reasons are reasonable and consistent with the existing law. I see no reason to interfere with its decision.
Conclusion
[27] For the reasons above, I find that it was reasonable for the Board to conclude that the Appellant was incapable of consenting to treatment with the anti-psychotic medication and the CTP, and I, therefore, dismiss the appeal.
Mr. Justice T. McEwen