CITATION: E.K. v. McGavin, 2016 ONSC 590

BARRIE COURT FILE NO.: 15-1330

DATE: 20160122

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, Pursuant to the Health Care Consent Act, S.O. 1996, Chapter 2, Schedule A As amended

AND IN THE MATTER OF E.K. A patient at Waypoint Centre for Mental Health Care – Provincial Program Penetanguishene, Ontario

BETWEEN:

E.K. Appellant

– and –

DR. CAMERON McGAVIN Respondent

E.K., Self-represented

J.P. Thomson, for the Respondent

HEARD: January 18, 2016

REASONS FOR DECISION

MULLIGAN J.:

[1] The appellant, E.K., seeks to set aside the decision of the Consent and Capacity Board (the Board).

[2] E.K.’s grounds for appeal alleged that the Board erred in fact and law in finding that E.K. was not capable of consenting to treatment. E.K. requests that the decision be set aside or alternatively, remitted back to the Board for a re-hearing.

[3] At the beginning of the consent and capacity hearing before the Board, E.K. was represented by counsel. However, counsel made submissions as to a breakdown in the relationship with her client, E.K. In the result, the Board removed counsel of record. E.K. indicated he wished to proceed on his own and the hearing proceeded with E.K. representing himself. He also was self-represented at this appeal hearing.

[4] The Board held a hearing on October 26, 2015. On November 1, 2015, the Board issued its decision, concluding:

For the foregoing reasons, the Board upheld the finding of Dr. Prakash that E.K. was incapable of consenting to treatment with anti-psychotic medication, sedative/hypnotic (anxiolytic) medications, and anti-depressants, medications to manage side effects and mood stabilizing medications as appropriate to target active symptoms.

[5] The respondent submits that the Board conducted a full hearing and rendered a decision which considered the evidence of E.K., Dr. McGavin, and the exhibits filed. The Board made reference to the two-part legal test in the Health Care Consent Act, S.O. 1996, c.2, in reaching a decision confirming Dr. McGavin’s opinion that E.K. continued to be incapable with respect to decisions to consent or refuse his proposed treatment, including anti-psychotic medication.

[6] The respondent submits that the appropriate standard of review is reasonableness in the absence of any error of law on the record.

Background

[7] In addition to the viva voce testimony of Dr. McGavin, the Board received as an exhibit a summary (the CCB Summary) as to E.K.’s family history, medical, and psychiatric background. As the CCB Summary notes at page 2:

E.K. has been supervised under the Ontario Review Board since he was found not criminally responsible on a charge of criminal harassment and two counts of failure to comply with a recognizance in February of 2007. Since that time, he has been detained under the jurisdiction of the ORB, with the majority of that time spent at the Regional Mental Health Centre in St. Thomas, the Centre for Addiction and Mental Health (CAMH) to a lesser extent, and more recently, Waypoint Centre for Mental Health Care… E.K. was found incapable at another facility in 2009 [by Dr. A. Prakash, psychiatrist].

[8] As the CCB Summary notes at para. (b):

E.K. was treated by Dr. Prakash in 2007, reportedly with significant improvement. Although documentation is not currently available, at present it is presumed that E.K. was provided appropriate health teaching regarding medications provided, their indications, relative risks and benefits at the time. Subsequently, E.K. began to refuse treatment and legal appeals have left him largely, if not entirely, untreated until the present.

[9] As to E.K.’s current psychiatric condition, Dr. McGavin opined at the Board hearing as follows:

E.K. has a fairly prolonged history of involvement in the forensic system… I think over time it’s become more clear and with prolonged exposure to treatment teams at various sites it had become readily evident that E.K. is suffering from a primary psychotic disorder, which I would say is consistent with Schizophrenia. …The issues around E.K.’s diagnosis, I think, are fairly clear that he, again, suffers from a primary psychotic illness into which he has virtually no insight. I think this complicates the question of E.K.’s ability to understand the information relevant to making decisions regarding his own treatment in as much as he does not believe he suffers from an illness rather believes that his involvement with the forensic system has been the result of a misunderstanding or a conspiracy or a series of orchestrated or unorchestrated malicious actions by various providers and staff members.

[10] E.K. had an opportunity to cross-examine Dr. McGavin and gave evidence largely focusing on his understanding of his own medical condition.

[11] Dr. McGavin spoke to this issue in his testimony and stated:

E.K. appears to be concerned to the point that he is unable to reasonably weigh out the risks and benefits of treatment. He pretty clearly appears to be unable to appreciate the possibility of potential side effects as opposed to actually side effects. What I mean by that is that all medications come with a long list of possible reactions which, in our discussion as recently as Friday, E.K. describes as side effects not as potential side effects, that is to say diabetes as an outcome, not as a possible outcome.

[12] E.K. gave evidence at the hearing, suggesting that his physical ailments were largely being untreated, if not worsened by the conditions of his confinement.

The Board’s Decision

[13] In a carefully worded decision, the Board reviewed E.K.’s history and considered the two-part test for capacity to consent to treatment under s. 4 of the Health Care Consent Act. The Board also noted the presumption of capacity provided in s. 4(2) of the Act. Section 4(1) provides as follows:

A person is capable with respect to treatment, admission to a care facility or a personal assistant service is the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. [Emphasis added.]

[14] As to the first branch of the test, the Board stated, “The Board found that E.K. was able to understand the information relevant to making a decision about the treatment in question.” However, with respect to the second branch of the test, after considering the evidence the Board found, “E.K. failed part two of the test of capacity, that is, that he lacked the ability to appreciate the reasonably foreseeable consequences of consenting to or not consenting to treatment of a mental illness.”

[15] In coming to that conclusion, the Board stated:

However, E.K. had virtually no insight into his psychotic illness. He did not believe he suffered from a major psychotic disorder. Furthermore, his involvement in the forensic system was a conspiracy or misunderstanding. He said his detention was not legitimate. He was a victim of malicious actions by health care providers and hospital staff. The charges were trumped up (in St. Thomas). E.K. did not relate his detention to his mental health.

[16] In the result, the Board upheld the finding of the psychiatrist that E.K. lacked the capacity to consent to treatment under the Act.

[17] Both E.K. and the respondent provided factums to assist the court at this hearing. E.K. was self-represented at the hearing and provided a handwritten one-page factum. Much of his factum focused on his perception of his medical health issues as not being accommodated by Waypoint, including his ability to purchase certain foods and supplements to manage his Crohn’s Disease. He also raised issues about his Ontario Review Board appeal or NCR appeal. It was indicated to him at the hearing that those issues were outside the jurisdiction of this court on this appeal. However, counsel for Dr. McGavin said he would make inquiries as to the status of that appeal and provide that information to E.K. as soon as possible.

Factum of Dr. McGavin

[18] I accept the essence of the submissions of the respondent that the standard of review of an administrative tribunal is one of reasonableness, absent an error of law.

[19] As the Supreme Court of Canada noted in Starson v. Swayze, [2003] S.C.C. 32 at para. 84:

The question under review is the Board’s determination of capacity. This is a question of mixed fact and law; the Board must apply the evidence before it to the statutory test for capacity. In the absence of error in law, this question is relatively fact-intensive. Applying the pragmatic and functional approach to this question, it is clear that reasonableness is the appropriate standard of review. [Citations omitted.]

[20] In Starson, the Court found that the two-part test was properly applied by the motions judge in her finding that Dr. Starson was capable of understanding the information and could appreciate the foreseeable consequences of the decision not to take treatment. As Major J. stated for the majority at para. 106:

In summary, there was no basis to find that Professor Starson lacked awareness of his condition or that he failed to appreciate the consequences of treatment. In the absence of these findings, there was no support for the Board’s ultimate finding of incapacity.

[21] The Supreme Court of Canada dealt with the reasonableness standard in Dunsmuir v. New Brunswick, [2008] S.C.C. 9. As the Court noted at para. 47:

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.

[22] As to deference to be shown to administrative bodies, the Supreme Court of Canada stated in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador, [2011] S.C.C. 62, at paras. 15 and 17:

Courts must show respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

Conclusion

[23] The Board made a finding of fact that E.K. failed the second part of the capacity test under the Health Care Consent Act. In deciding that he was unable to appreciate the reasonably foreseeable consequences of his decision or lack of decision, the Board found that E.K. had “virtually no insight into his psychotic illness”.

[24] The Board accepted that based on Dr. McGavin’s evidence, E.K. failed part two for three reasons:

(i) E.K. did not believe that he suffered from a major mental illness;

(ii) E.K. was paranoid about conventional medicine; and

(iii) E.K. could not do a meaningful risks/benefits analysis of the proposed treatment because he was unable to discern the differences between potential side effects as listed by a pharmaceutical for each chemical element as opposed to definite outcomes based on past experience.

[25] The Consent and Capacity Board had a full hearing with respect to this matter, receiving evidence from Dr. McGavin and E.K. The Board has a high level of expertise when considering and applying its own statute. The Board made factual findings based on the evidence before it and was guided by the two-part test in the Health Care Consent Act. I am satisfied that the Board’s decision was reasonable under the circumstances.

[26] Appeal dismissed.

Costs

[27] Under the circumstances, there is no order as to costs.

MULLIGAN J.

Released: January 22, 2016