CITATION: LA v. Waisman, 2016 ONSC 6514
COURT FILE NO.: CV-16-552723
DATE: 20161019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LA Appellant
– and –
ZOHAR WAISMAN Respondent
Suzan E. Fraser, for the Appellant
Barbara Walker-Renshaw, for the Respondent
HEARD: September 12, 2016
M.D. FAIETA J.
REASONS FOR JUDGMENT
INTRODUCTION
[1] The Appellant, LA, appeals a decision of the Consent and Capacity Board (“Board”) dated May 6, 2016, which confirmed a finding made by the Respondent, Dr. Zohar Waisman, dated April 7, 2016, that the Appellant was incapable of consenting to his own treatment with anti-psychotic and ancillary side effect medications.
[2] For reasons described below, I have dismissed this appeal.
BACKGROUND
[3] The Appellant was born in 1991 and is 24 years old.
[4] On April 29, 2010, he spent the night at a friend’s house. He had brought over a vial of oil and holy water and asked his friend to pray with him for society and mankind. On April 30, 2010, the Appellant’s odd behaviour continued at school. The Appellant’s high school teacher called the Appellant’s father to express concern about the Appellant’s behaviour. On April 30, 2010, the Appellant stabbed his mother to death after they attended his sister’s school play. The Appellant thought that his mother was a devil and that if he did not kill her the world would end later that evening.
[5] The Appellant was detained at the Waypoint Centre for Mental Health Care. His initial diagnosis was “psychosis not otherwise specified,” and was later changed to “drug-induced” psychosis.
[6] The Appellant was discharged to the Maplehurst Correctional Complex in July 2010, where he stayed until December 2010. He received a very low dose of antipsychotic medication at the detention centre until November 2010 when it was most often refused.
[7] In November 2010, the Appellant was found “not criminally responsible” of the charge of second degree murder related to his mother’s death. On December 20, 2010, the Appellant was transferred to another facility pending the outcome of his initial disposition hearing before the Ontario Review Board (the “Board”).
[8] On January 14, 2013, the Appellant was transferred to Ontario Shores Centre for Mental Health Sciences pursuant to a decision made by the Ontario Review Board dated September 6, 2012. At Ontario Shores, the Appellant was treated by Dr. Elizabeth Coleman. On September 3, 2014, Dr. Coleman found that the Appellant was incapable of consenting to treatment with antipsychotic medication. On October 27, 2014, Dr. Coleman’s decision was upheld by the Board. A second opinion, dated March 15, 2015, was obtained from Dr. Andrew Morgan. Like Dr. Coleman, he concluded that the Appellant suffers from schizophrenia. On May 12, 2015, the Appellant’s appeal of the Board’s decision was dismissed by this court. On November 12, 2015, the Appellant abandoned his appeal to the Ontario Court of Appeal in respect of this court’s decision dated May 12, 2015.
[9] In the interim, the Appellant refused to work with Dr. Coleman. The Appellant agreed to be treated instead by Dr. Waisman. On August 31, 2015, the Appellant met with Dr. Waisman. The Appellant did not accept the two earlier opinions of schizophrenia.
[10] On February 15, 2016, Dr. Waisman discussed the side effects of Abilify with the Appellant and his father, who is also the Appellant’s substitute decision-maker (“SDM”). The Appellant agreed to start taking oral Abilify. On February 22, 2016, Dr. Waisman met with the Appellant and his father. Dr. Waisman noted that the Appellant was still “acting bizzarely but less impulsively.” The Appellant’s father was told that Abilify was less effective than some other choices; however, his father was “very reluctant to approve a swithc [sic] to another antipsychotic such as Risp fearing ‘side effects’ but no speciifc [sic] mentioned.”
[11] On February 25, 2016, the Appellant declined Abilify. Dr Waisman’s notes states:
[C]learly psychotic and now refusing meds – comlex [sic] as father reluctant to give consent for depot – at the same time father has approved PO Abilify but at thsi [sic] time this approval is obsolete as [patient] would not take oral meds. hopefully with signed consent I could offer [patient] option of oral meds or injectable.
[12] Dr. Waisman’s notes dated February 26, 2016 state:
[M]et with [patient]
bizarre behavior reading the Talmud – he stated “abra Cadabera disapper…” when asked to elaborate he stated that he has the powers to make me leave. father SDM signed agreed with depot Abilify treatment. pt chose to proceed with PO Abilify….
[13] Dr. Waisman’s notes dated March 14, 2016 state:
[P]ts behavior has been appropriate
compliant with meds
sleep improved….
mood and affect euthymic
TF is goal directed
No homicidal or suicidal ideation, intent, and plan
less paranoid….
overall improved. From a suicide risk perspective the factors increasing risk include a previous attempt and presence of mental illness; however, the risk is reduced by recent compliance with Abilify and improvement in overall metnal [sic] state as evidenced by brighter affect, improved mood … We granted privileges to the community accompanied with staff or approved person.
[14] In a report prepared for the Board dated April 7, 2016, Dr. Waisman stated:
It is my opinion that [LA] suffers from ongoing psychotic presentation and lack of any insight into having manifestations of a mental disorder. He is therefore unable to apply information about his condition to himself and to his own circumstances. As a result he fails second branch of the test. Although he agrees to continue taking antipsychotic medication at the current dose as “I am being required to, to get out of here”, he has no insight into the key aspects of his need for medication being the manifestation of a mental disorder. He is unable to appreciate that the defined symptoms or manifestations of his mental disorder impair his appreciation, and unable to appreciate that medication has helped him and would help him with his delusional and paranoid thinking. He is unable to see that he was in fact suffering from ongoing psychosis and other manifestations of mental disorder and would likely benefit from the proposed treatment as he had previously. He has been unable to evaluate information concerning the proposed treatment as it relates to his own circumstances, a fact which rendered him incapable on the basis of the second branch of the test for capacity and therefore to make a decision concerning the proposed psychiatric treatment.
[LA] does not appreciate the consequences of the deterioration of his mental health. He is not able to connect that his mental condition has resulted in his delusional state and criminal charges.
[15] Dr. Waisman’s notes dated April 18, 2016 state:
pt very dismissive today
irritable
he stated, “I will not take any medications. There is nothing wrong with me. I will only take natural remedies. You are poisoning me with the medication. I am much better. I am back to normal.” …
pt has clearly decompensated since stopping abilify
due to his irritability and unpredictability without meds his privileges have been placed on hold to allow us closer monitoring of his behavior
The Board’s Decision
[16] The Board found that the Appellant was not capable with respect to the treatment with anti-psychotic and ancillary side-effect medication as he was unable to appreciate the reasonably foreseeable consequences of a decision or a lack of decision about this treatment for the following reasons:
Dr. Waisman’s evidence was that LA was unable to appreciate the reasonably foreseeable consequences of decision about his treatment because LA was unable to consider that he may be experiencing a serious mental condition and was unable to evaluate information concerning the treatment to his own circumstances.
Dr. Waisman had known LA for the past 9 months when LA’s care was transferred to him by LA’s former attending physician, Dr. Coleman at the end of August, 2015. Dr. Waisman advised the panel that he concurred with the diagnosis of schizophrenia previously made by both Dr. Coleman and Dr. Andrew Morgan and concurred with Dr. Coleman’s finding of incapacity. Dr. Waisman stated that he confirmed LA’s diagnosis approximately one month after LA was transferred to his care. Dr. Waisman based the diagnosis on his review of LA’s history, discussions with LA and LA’s father, his own independent observations and interactions with LA, and discussions with other team members at Ontario Shores involved in LA’s care. Dr. Waisman was careful to form his own opinion as to LA’s diagnosis. Dr. Waisman told the panel that when he first began to care for LA he advised LA “he would not discuss any diagnosis or past diagnosis for one month” allowing Dr. Waisman the time necessary […] to review LA’s medical history and make his own observations.
During a period at the Waypoint Centre for Mental Health, where there is no evidence of LA having an opportunity to use street drugs, he was described by Dr. Dickey as, “grossly thought disordered”. He lacerated his penis to attempt to remove an electronic device he felt was implanted. At the hearing LA explains he was completely delusional and out of his mind due to the fact he was stressed over his parent’s divorce and was taking pot. This was long after his mother’s demise and LA was unable to reconcile those facts at the hearing.
Dr. Waisman outlined LA’s mental health history in his CCB Summary Incapacity Consent to Treatment (Exhibit 3). There he noted that LA continued to exhibit psychotic symptoms in the form of paranoid ideas, specifically about security guards entering his room. LA had reported that one of the security guards at Ontario Shores stole his credit cards. LA was also convinced that there were cameras in the facility watching him specifically. Dr. Waisman told the panel that based on this belief LA had been found “tampering” with the cameras in the facility on occasion.
Dr. Waisman stated that LA had reported to him that he had become a member of the Church of Scientology. LA provided Dr. Waisman with a very complex and nonsensical description of brain waves that were responsible for LA’s condition based on, according to LA, the teachings of the Church of Scientology. Dr. Waisman stated that he undertook an internet review of the Church of Scientology and was unable to make any connection between LA’s description of brain waves responsible for his condition and the teachings of the Church of Scientology.
Dr. Waisman advised the panel that LA had also become religiously preoccupied and developed an interest in the Kabbalah. LA had also become interested in mystical phenomenon telling Dr. Waisman that he had special powers to understand Kabbalistic knowledge.
Dr. Waisman told the panel that LA experienced both positive symptoms (delusions, hearing of voices and paranoid thoughts) and negative symptoms (lack of ability to express self, isolation and lack of ability to interact with others) of schizophrenia. The positive symptoms worsened according to Dr. Waisman at times of high stress. Dr. Waisman stated that LA does not believe he suffers from mental disorder instead believing that his past behavior including the index offense were a result of a combination of stress due to the breakdown of his parents’ marriage and his use of marijuana. Dr. Waisman stated that, although Dr. Coleman’s diagnosis of LA at the time of his admission into Ontario Shores, was substance-induced psychosis, she later revised the diagnosis to schizophrenia based on the fact the [sic] LA’s behavior as outlined by Dr. Waisman in his evidence continued to exist without any substance-induced cause. Dr. Coleman’s revised diagnosis was corroborated by the letter from Dr. Andrew Morgan to Dr. Coleman dated March 15, 2015 (Exhibit 6). Dr. Morgan had been requested by Dr. Coleman to provide a second opinion as to LA’s diagnosis.…
When again asked whether he suffered from any mental illness today, he described it as “engrams” and past unresolved traumatic events. He later offered a comment when asked about suffering from mental disorder, that engrams have not been produced or cleared and the need to reach a spiritual someone to assist you in ridding of the damage from “anagramic” [sic] functioning. He suggested schizophrenia is related to some corporate structure and people wanting to patent something, there being a public interest in medication and the system playing some sort of game. He stated they [the Doctors or drug manufacturers] are paid to follow the corporate system.
The panel found after carefully reviewing LA’s testimony that LA’s reported religious beliefs and related views on treatment were not based in reality but were clearly demonstrated to be part of his paranoid belief system and severe thought disorder. This was not the case of LA being able to appreciate he suffered from some symptoms of mental disorder for which someone may consider the proposed treatment but after carefully weighing same, declining to accept it as the potential benefits were outweighed by his religious beliefs or value systems. LA was unable to understand the nature his mental condition and likewise the anticipated benefits and risks of the treatment or not having treatment for same.
The panel finds LA’s oral evidence relating to his condition and treatment confirmed his inability to recognize that he is affected by a mental condition for which treatment with antipsychotic medication would be considered. His answers to questions clearly indicated as a whole, he is not able to appreciate the foreseeable risk of a relapse to the state he was at the time of the event that lead [sic] to his charges, the episode while at Waypoint or the recent exacerbations of his paranoia and the corresponding lessening of symptoms while taking treatment. He was further unable to appreciate that without treatment, he will likely not be able due to disorganized thoughts and paranoia, reach his goals such as using a computer. Without being able to recognize these facts, he is unable to apply the relevant information to his circumstances and unable to appreciate the consequences of his decision regarding treatment.
In this case, the evidence was clear that LA was unable to consider the possibility that he may be experiencing a mental condition for which treatment with anti-psychotic and related side-effect medications would be proposed. He was unable to consider that his beliefs, his paranoia and his disorganized thoughts (the last having improved with treatment at the time of the hearing) could possibly be manifestations of a condition for which the treatment is proposed. As LA was unable to consider that he was possibly experiencing a mental condition, the manifestations of which may be impacted by anti-psychotic medication, he was wholly unable to weigh the benefits and risks of either consenting to or refusing consent to that medication. He lacked the ability to appreciate the relevant information as it related to him. This inability was directly related to his paranoid beliefs outlined in his evidence at the hearing and his clearly disorganized thought processes. Without this ability, LA was unable to appreciate the reasonably foreseeable consequences of a decision about the anti-psychotic medication.
ANALYSIS
Standard of Review
[17] Absent an error of law, the standard of review is reasonableness: see Anten v. Bhalerao, 2013 ONCA 499, at para. 20.
[18] The application of the standard of reasonableness requires a “respectful attention to the reasons offered or which could be offered in support of a decision.” A decision is reasonable if the reasons, when read together with the outcome, fall within a range of possible outcomes: see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paras. 11-12.
The Statutory Test for Capacity to Provide Consent for Treatment
[19] In Ontario, except in cases of emergency, a health practitioner shall not administer a treatment unless consent from the patient is granted, if the patient is “capable with respect to the treatment,” or from their substitute decision-maker, if the patient is incapable with respect to the treatment: see ss. 10 and 25 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “Act”). Capacity is both time and treatment specific: see s. 15 of the Act.
[20] A person is presumed to be capable with respect to a treatment. The onus is on the health practitioner proposing a treatment to show that the patient lacks such capacity: see ss. 4(2) and (3) of the Act.
[21] Whether a person is “capable with respect to a treatment” is governed by s. 4(1) of the Act which provides as follows:
A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if 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 decision. [Emphasis added.]
[22] The assessment of whether a person is capable with respect to a treatment reflects the Act’s attempt to balance the competing interests of liberty and welfare – that is, a person’s right to dignity and autonomy against that person’s well-being: see Starson v. Swayze, 2003 SCC 32, at para. 75.
[23] A person is able to understand the information that is relevant to making a decision about the treatment if that person has the “cognitive ability to process, retain and understand the relevant information”: see Starson, at para. 78.
[24] A person is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision if the patient is able “to apply the relevant information to his or her circumstances, and […] to weigh the foreseeable risks and benefits of a decision or lack thereof”: see Starson, at para. 78.
[25] In Starson, at paras. 79-81, the Supreme Court of Canada explained:
While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental "condition", the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows…
Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.
As a result, a patient is not required to describe his mental condition as an "illness", or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician's opinion regarding the cause of that condition. Nonetheless, if the patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision…
In practice, the determination of capacity should begin with an inquiry into the patient's actual appreciation of the parameters of the decision being made: 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. If the patient shows an appreciation of these parameters -- regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation -- he has the ability to appreciate the decision he makes…
However, a patient's failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient's lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician's failure to adequately inform the patient of the decision's consequences… Accordingly, it is imperative that the Board inquire into the reasons for the patient's failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient's mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision. [Emphasis added.]
[26] There is no dispute that the Appellant satisfies the first requirement for establishing capacity. At issue on this appeal is whether the Board erred in finding that the Appellant does not satisfy the second requirement under s. 4(1) of the Act in that he is unable “to appreciate the reasonably foreseeable consequences of a decision or lack of decision” about the proposed treatment.
[27] The Appellant makes two main submissions:
(1) The Board unfairly characterized the Appellant’s evidence;
(2) The Board erred in its application of the test for capacity.
Issue #1: Did the Board unfairly characterize the Appellant’s evidence?
[28] The Appellant submits that “the Board inaccurately and unfairly characterized the appellant’s evidence in a manner that made him look nonsensical, when the evidence, had it been accurately received and fairly interpreted, demonstrated the appellant’s reasoned rejection of the proposed treatment”: see Factum, at para. 61.
[29] Having reviewed the hearing transcript, I find that the Board fairly characterized the Appellant’s evidence. In many instances, his answers to direct questions are confusing and unresponsive to the question asked, and sometimes his answers are inconsistent with his earlier testimony.
[30] In any event, the merits of the Appellant’s reasons for rejecting the proposed treatment does not inform whether he is “unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.”
Issue #2: Did the Board err in its application of the test for capacity?
[31] The Appellant submits that the Board erred in its application of the test for capacity “by unduly focus[ing] on the disagreement over diagnosis rather than the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision”: see Factum, at para. 72.
[32] The Appellant states:
[T]he appellant provided a reasoned critique of what was proposed, preferring a diagnosis that had been made early in his care, choosing to feel physically and mentally better off medication and identifying a religious objection to medication. The Board wholly disregarded the appellant’s principled rejection of antipsychotic treatment as if an individual’s religious beliefs were of no consequence: see Factum, at para. 74.
[33] I am not satisfied that the Appellant was found incapable with respect to the proposed treatment because he does not recognize that he suffers from schizophrenia rather than a drug-induced psychosis or because he rejects the proposed treatment in favour of a treatment that does not involve the use of synthetic substances.
[34] The finding of incapacity turned on the Appellant’s inability to recognize the possibility that he may be affected by schizophrenia and by its manifestations. The Board described these manifestations as follows:
Dr. Waisman told the panel that LA experienced both positive symptoms (delusions, hearing of voices and paranoid thoughts) and negative symptoms (lack of ability to express self, isolation and lack of ability to interact with others) of schizophrenia. The positive symptoms worsened according to Dr. Waisman at times of high stress.
[35] At the hearing, the Appellant denied that he suffers from hallucinations. He stated that he has suffered from paranoia mainly as a result of the side effects of medication that he has taken: see Hearing Transcript, at pp. 101, 103-104. Accordingly, from the Appellant’s own evidence it is clear that he does not recognize the possibility that he may be affected by the manifestations of schizophrenia.
[36] In addition, the Appellant stated that his current mental health issues relate to the presence of “engrams.” The Appellant stated that everyone has “engrams,” which he explained is a term used by Scientologists, that are due to past traumatic events that need to be revisited in order to be dispelled. He believes that he has mental health issues today because of past traumatic events that he has not revisited and resolved: see Hearing Transcript, at pp. 111-112.
[46] In any event, the question of whether the Appellant is capable with respect to the proposed treatment turns on whether the Appellant is able to recognize the possibility that he is affected by the manifestations of mental illness, which in this case have been identified by Dr. Waisman.
[37] Given the evidence of the Appellant and Dr. Waisman, I find that the Board did not err in concluding that the Appellant lacks capacity in respect of the proposed treatment because the Appellant is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
CONCLUSIONS
[38] For the reasons given above, I dismiss the appeal.
[39] I encourage the parties to settle the issue of costs of this appeal, failing which the Appellant shall file its costs submissions and an outline of costs within fourteen days of today’s date. The Respondent shall file its costs submissions within twenty-one days of today’s date. Both costs submissions shall be no more than three pages in length.
Mr. Justice M. D. Faieta
Released: October 19, 2016
CITATION: LA v. Waisman, 2016 ONSC 6514
COURT FILE NO.: CV-15-532477
DATE: 20161019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LA Appellant
– and –
ZOHAR WAISMAN Respondent
REASONS FOR JUDGMENT
Mr. Justice M. D. Faieta
Released: October 19, 2016