Court File and Parties

COURT FILE NO.: CV-16-548787 DATE: 20160822 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AJ Appellant – and – DR. LORNE TUGG Respondent

Counsel: Theodore Nemetz for the Appellant Barbara Walker-Renshaw for the Respondent

HEARD: August 18, 2016

IN THE MATTER OF an application pursuant to section 32(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, AND IN THE MATTER OF an application pursuant to section 39(1) of the Mental Health Act, R.S.O. 1990, c. M.7, AND IN THE MATTER OF AJ

PERELL, J.

REASONS FOR DECISION

[1] This is an appeal by AJ from a decision of the Consent and Capacity Board dated February 18, 2016, confirming a finding that he was incapable of consenting to treatment with antipsychotic medication. For the reasons that follow, the appeal is dismissed.

[2] Section 4 (1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A sets out a two-part test for capacity to consent to treatment:

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.

[3] In the immediate case, the Consent and Capacity Board said that it applied Starson v. Swayze, 2003 SCC 32 to conclude that AJ was incapable of consenting to treatment.

[4] In Starson, the Supreme Court of Canada explained the two-part test for capacity to consent to treatment. For a person to pass the first part of the test, the person must be able to understand the information that is relevant to making a treatment decision. The first part of the test measures whether the person has the cognitive ability to process, retain and understand information. The first part of the test examines physical and mental abilities to make decisions.

[5] To pass the second part of the test, a person with the ability to decide must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one; that is, the person must be able to apply the relevant information to his or her particular circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[6] To pass the second part of the test, the person need not appreciate the actual consequences of his or her decision; rather, a person need only have the ability to appreciate that there will be consequences to his or her decision and the ability to weigh those consequences.

[7] In being able to apply the relevant information, the person need not agree with the diagnosis of the attending physician of a discrete diagnosable pathology, but if it is demonstrated that the person is being affected by a mental condition in the broad sense that he or she is manifesting the symptoms of a mental illness, then to pass the test of capacity, the person must be able to recognize the possibility that he or she is affected by that mental condition. In Conway v. Darby, [2008] O.J. No. 4205 (S.C.J.), Justice D.M. Brown, described this ingredient of the test for capacity as follows:

Put another way, where it is demonstrated that a patient displays objectively discernible manifestations of an illness, a Board should ask: does the patient recognize that he is affected by such manifestations or that his mental functioning was not normal? If he does not, then the patient may be unable to apply the relevant information to his circumstances and may be unable to appreciate the consequences of his decision.

[8] In Starson v. Swayze, supra at para. 78, the Supreme Court stated that a finding of incapacity can be justified only if the person’s mental condition and not some other cause, such as not being adequately informed of the consequences, was the reason that he or she did not have the ability to appreciate the consequences.

[9] In the immediate case, the factual background to the Board’s decision was that AJ is a 34-year-old single male who has been living with his parents for the last three years and is financially supported by them. He had worked as a web designer and lived on his own until he began to believe that, during cosmetic laser surgery, a computer chip had been inserted into his temples in order to monitor his thoughts.

[10] In 2015, AJ briefly attended the Psychiatric Day Hospital Program. At that time, there was a possible diagnosis of Delusional Disorder or Obsessive Compulsive Disorder. AJ did not accept these diagnoses, and he refused the offer of psychiatric medication.

[11] AJ presented himself at an outpatient assessment at CAMH (Center for Addiction and Mental Health) and also presented to North York General Hospital’s Emergency Department on four occasions. He asked for the chip to be removed. On one of the visits, imaging was conducted to try to reassure AJ that there were no implants.

[12] After AJ moved home, his parents became particularly concerned about his considerable weight loss and the amount of time he was spending alone in his room. They believed he was only eating once a day, or not at all. He became reclusive and spent a lot of time in his room with the lights off and the curtains shut.

[13] On February 6, 2016, members of AJ’s family procured a Form 2 to have AJ undergo a psychiatric assessment, and the police brought him to the Emergency Department at North York General Hospital. He was seen in the Emergency Department. He presented as emaciated and dehydrated, and he said he was suffering from a stomach problem.

[14] He was given a psychiatric assessment and admitted to the psychiatric inpatient unit as an involuntary patient. Dr. Lorne Tugg became his attending psychiatrist.

[15] Dr. Tugg’s consultation note was that AJ expressed his belief that he had been implanted with a computer chip and that AJ denied any depression. AJ said that he had no concerns about his weight loss. However, Dr. Tugg noted that AJ’s thought content revealed persecutory delusions and that his insight was quite impaired. Dr. Tugg noted that AJ had a complete lack of insight. Dr. Tugg opined that:

Overall, this is a 34-year-old man with a history of significant functional impairment over the last three years in association with increasing persecutory delusions and some features of obsessional thoughts. It is possible that his weight loss is due to his increasing suspicion about food and that this indeed is the reason for the weight loss. Diagnostically, I do think that this history shows many of the features of a schizophrenic illness of the paranoid subtype, along with some OCD related symptoms. It is not clear that there is a significant mood component to his illness at this time, but this needs to be further clarified. In terms of his past diagnoses of delusional disorder, I do think that his current presentation is more schizophrenic illness in that there are multiple delusions in several different domains that have become very systematized along with the significant progressive decline in functioning. There is also a suggestion on history that he may be showing some catatonic features in terms of standing in a position for long periods of time.

[16] On February 8, 2016, Dr. Tugg found AJ incapable of consenting, or refusing consent, to treatment with antipsychotic medication.

[17] AJ applied to the Consent and Capacity Board to review his involuntary status as well as Dr. Tugg’s finding of incapacity.

[18] On February 17, 2016, the Board heard AJ’s application. At the hearing, the Board heard testimony from AJ and from Dr. Tugg. The Board reviewed the documentary evidence including the medical records.

[19] At the hearing, Dr. Tugg testified that AJ clearly has a major mental illness. Dr. Tugg stated:

…as a result of that mental illness, I believe it has affected his decision making around eating to the point where he’s lost fifteen kilograms and had laboratory evidence of dehydration on admission to Hospital.

[20] At the hearing, Dr. Tugg testified about AJ’s eating habits while at the hospital. Dr. Tugg stated:

[AJ had] …been eating in hospital, but only in a particular manner that I’ll describe. So only with a lot of nursing care and support um, and he’ll take about three hours to eat a meal. So there are features that he’s presenting of what we often seen in OCD, obsessive compulsive disorder, where he’s very slow and uh, very worried about small little items of any activity. So, when he eats, he eats very slowly and carefully and it will take two to three hours, but only with great nursing support and encouragement and uh, structure does he eat.

[21] With respect to AJ’s capacity, it was Dr. Tugg’s evidence that:

…I believe that in terms of assessing his capacity that he meets the first part of the test. … AJ is clearly an intelligent man. He’s worked and been successful. I think he has the cognitive intellectual capacity to understand information relevant to treatment, but I don’t think he meets the uh, second part of the test, which is an awareness of the reasonably foreseeable consequences of treatment or no treatment.

Yes, so it’s based on AJ not feeling that he has a mental illness in any regard, that he feels he’s really only needed to seek medical care for his GI complaints and, in the past, for his asking that this be removed, the computer chip that he believes is inserted in him. And that when I try to explore it with him that he cannot – I feel appreciate that he may have a mental illness, whether there’s something even if he doesn’t agree with our specific diagnosis, which I feel is schizophrenia, that there’s something in the mental health – mental realm or in the mind that is uh, affecting his behaviour and is causing symptoms. I don’t believe he can acknowledge any – having any mental health symptoms. And therefore as a result of that, I do feel he doesn’t meet the legal definition of capacity. And um, would like to ask that the Board uphold that in that his family, as I’ve indicated, have given consent to initiate both oral and long acting paliperidone for him.

[22] Dr. Tugg confirmed that he discussed with AJ the proposal of treatment, but it was clear that he did not want any treatment at all. He just wanted his stomach issues addressed and then he wanted to leave. Dr. Tugg said that AJ was absolutely clear that he did not want any kind of mental health treatment.

[23] Dr. Tugg told AJ that without treatment, he may continue to lose weight and be distressed about the chip and that treatment could offer the potential for helping with those things. However, Dr. Tugg felt that AJ could not appreciate these things. Dr. Tugg testified that: “[I]t was like we were speaking a different language. He didn’t agree that there is any or are any symptoms in the mental health realm that he needs help with”.

[24] Dr. Tugg stated that he advised AJ of the treatments that could help him and that he had been informed many times before including his outpatient experience with the Hospital and that AJ declined any of the proposed treatments because he did not feel there is an illness. AJ didn’t agree that there were any symptoms in the mental health realm that he needed help with.

[25] At the hearing, AJ denied that he had any mental condition. He testified:

No. I don’t have any mental condition uh, with regards to uh, you know, anything that would be uh – uh, requiring any further uh, attention.

…I don’t believe that’s the case with me just simply because, you know, with regards to uh, my reasoning and logic I believe it’s pretty sound…

And with regards to my own mental soundness, I believe it is uh, good in terms of how stable it is…

[26] At the hearing, when asked about treatment with antipsychotic medication as Dr. Tugg had prescribed, AJ testified:

I think, you know that antipsychotic medication uh, is uh, is something that’s useful in certain situations for some patients. Uh, for myself, I find that, you know, with regards to my situation uh, I don’t believe that any medication is necessary. Simply uh, due to the fact that, you know uh – I am – uh, feeling much better now. And I can do some treatments that was [sic] recommended to me in terms of, you know, stretches and things like that, massages for the body.

[27] At the hearing, AJ had the following exchange with the Chairperson:

THE CHAIRPERSON: … AJ, you heard Dr. Tugg say that he believes that some of the symptoms of – or some of the behaviours that you’re displaying are symptoms of a mental disorder. Forget about the label whether its schizophrenia or OCD, forget about the labels, but just the idea that may there’s something going on in your mind that’s guiding your actions and your decisions, do you think that that’s possible, that there’s like some kind of mental disorder that’s channelling you right now?

AJ: I think, you know, that could be the case with certain patients and certain people. Uh, I don’t believe that the case with me just simply because, you know, with regards to my reasoning and logic I believe it’s pretty sound. Uh, you know, I’m not a hundred percent on anything, usually, I’m, you know, uh, I think things and try to examine them. You know, uh, when usually people are like that, they tend to, you know, be very confident in certain things. They’re saying uh, you know, there’s, you know, for example, uh, they --- uh, because whenever they do it rains, something like that. Do you know what I mean? It’s not like that with me, I don’t think.

[28] The panel released its decision on February 19, 2016 and confirmed AJ’s involuntary status and the finding of incapacity. AJ appealed and on March 28, 2016, the Board released its Reasons for Decision. In considering AJ’s capacity to consent to treatment, the Board stated that:

In response to every question asked at the hearing AJ rationalized his recent behaviour and minimized his parents’ concerns, saying they were confused. He appreciated the concern of Dr. Tugg and the hospital staff, but denied he had any symptoms of a mental illness, it was all a misunderstanding. He was not open to the possibility that he was experiencing some form of mental disorder. In weighing the conflicting evidence of AJ and Dr. Tugg, the panel considered the corroborating opinion of Dr. Unger of the Day Hospital Program, AJ’s four previous visits to ER despite being told the chip was non-existent, the ER staff had placed AJ on a Form 1 for psychiatric observation, the nursing reports of AJ’s paranoid behaviour around food, and the fact that AJ was seriously thin and dehydrated on arrival at the hospital, with readings that indicated a prolonged period of fasting. The parents’ description of AJ as extremely paranoid at home supported Dr. Tugg’s clinical opinion that AJ was suffering from a psychotic illness. Despite AJ’s adamant denials, the panel was persuaded by Dr. Tugg’s evidence that AJ suffered from mental disorder at the time of the hearing.

Dr. Tugg testified that he had explained everything to AJ about his diagnosis, the nature of his illness, the risks and benefits of the proposed treatment, and the consequences of refusing treatment. AJ was consistently clear that he did not want to take antipsychotic medication or any psychiatric treatment. AJ was not even open to the possibility that he suffered from mental disorder, or that any of his beliefs were the manifestations of a mental condition. AJ did not acknowledge that his recent weight loss was a risk to his health, despite Dr. Tugg’s advice, and was unable to appreciate that his refusal of psychiatric treatment would put his at continued risk of serious physical impairment. At the hearing AJ stated that antipsychotic medication might be useful to some people in certain situations, but was not useful to him because he was not affected by any mental disorder. Dr. Tugg stated that AJ’s lack of awareness about his mental condition was itself a symptom of the disorder.

AJ was not open to the possibility that he suffered from a mental illness that could be helped by antipsychotic medication. Because he was unable to appreciate that he was affected by mental illness, AJ was not willing to consider the proposed treatment. AJ’s outright denial that he suffered from mental illness rendered him unable to appreciate or weigh the benefits of antipsychotics, or the consequences of refusing treatment. AJ fit the description of incapacity summarized in Starson v. Swayze, 2003 SCC 32.

[29] AJ appeals to this court. AJ submitted that there was no evidence that Dr. Tugg had explained with any particularity what the benefits of treatment would be and rather only said that he was not open to having this discussion. AJ submits, therefore, that the Board’s conclusion about the benefits of treatment not being understood or appreciated was not based on the evidence before it and, accordingly, the Board’s decision was not reasonable.

[30] Further, AJ submitted that while the court must defer to the Board in the finding of facts it can only do so where the finding is based on evidence and that it has been properly analyzed and that the Board did not analyze the evidence in the immediate case and simply accepted Dr. Tugg’s testimony.

[31] I disagree with AJ’s submissions.

[32] The standard of review on an appeal from the Board’s findings on questions of facts and the application of the law to the facts is reasonableness. The standard of reasonableness involves respectful attention (though not submission) to the Board’s reasons due to the relative expertise of the Board members, who are likely to have acquired experience over the course of their appointments in dealing with assessments of capacity and are uniquely positioned to hear the viva voce evidence of the parties. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination. The Board’s conclusions must be upheld provided it is among a range of conclusions that could reasonably have been reached on the law and evidence: Starson v. Swayze, supra at paras. 5, 84, 86, 88, and 110; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 45-49.

[33] In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the Supreme Court of Canada considered how the reasonableness standard is applied to the reasons of administrative tribunals. The Court stated that the notion of deference to administrative tribunal decision making requires “a respectful attention to the reasons offered or which could have been offered in support of a decision”. The Court stated that the reasonableness standard requires that the tribunal’s “reasons must be read together with the outcome and serve the purpose of showing where the result falls within a range of possible outcomes.” The Court stated at para. 12:

“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective.

[34] In the immediate case, notwithstanding, AJ’s arguments, there was evidence that he did not satisfy the second branch of the test of capacity to consent to treatment and, in my opinion, the Board openly performed an anaysis that explained its conclusion that he wanted for capacity.

[35] There was ample evidence that AJ was manifesting the symptoms or manifestations of a mental condition but that he was incapable of recognizing those circumstances. He persisted in the belief that a computer chip in his brain was monitoring his thoughts notwithstanding that imagining technology had revealed no chip and notwithstanding the efforts by several physicians to persuade him that this belief could be a manifestation of a mental condition. He was physically suffering from his beliefs, but he could not recognize that there was anything wrong, and he would not admit and could not recognize the possibility that a mental condition was influencing his beliefs and what was happening to him.

[36] AJ was not able to recognize the possibility that he was affected by a mental condition because he denied that he had any problems at all. AJ, as was his right, denied that he had any mental illness, but he also denied even the possibility that his behaviour and beliefs were a manifestation of a mental condition. He denied that his beliefs about brain monitoring or his eating disorders could be a manifestation of a mental condition. Although he was informed of the consequences, he was unable to appreciate that with treatment, his concerns that had led him to numerous attendances at hospitals might be ameliorated and without treatment his condition and the manifestations of it would continue.

[37] Notwithstanding AJ’s arguments, the Board did not leap to a conclusion. It accepted that AJ had the cognitive ability to make decisions, but it analyzed the evidence and reached the reasonable conclusion that AJ could not and would not exercise his cognitive capacity because he was closed-minded about the possibility that he was affected by a mental condition. He was not able to appreciate that there were consequences from making or not making a decision because he did not believe that any decision had to be made.

[38] In my opinion, the conclusion of the Board was supported by the evidence and the Board’s conclusion was within the range of reasonable outcomes and, therefore, should not be overturned.

[39] Accordingly, AJ’s appeal is dismissed.

Perell, J. Released: August 22, 2016