Court File and Parties
CITATION: KF v. Horowitz, 2016 ONSC 7045
COURT FILE NO.: CV-16-553899
DATE: 20161128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KF Appellant
– and –
DR. GLENDA HOROWITZ Respondent
Counsel:
KF, in person Joanna Weiss, amicus curiae on behalf of the Appellant, KF
Kathryn A. Hunt, for the Respondent
HEARD: November 9, 2016
m.d. faieta j.
REASONS FOR JUDGMENT
INTRODUCTION
[1] The Appellant, KF, appeals a decision of the Consent and Capacity Board (“CCB”) dated May 25, 2016, which confirmed a finding made by the Respondent, Dr. Glenda Horowitz, that the Appellant was incapable of consenting to his own treatment with antipsychotic and ancillary side effect medications.
[2] For reasons described below, I have dismissed this appeal.
[3] At the outset of the hearing of this appeal, KF dismissed Ms. Weiss as his counsel. KF’s oral submissions, of some 20 minutes in length, were rambling, incoherent and largely described what appeared to be legislative provisions related to copyright and patents. At my request, Ms. Weiss kindly continued as amicus curiae to present the arguments that had been advanced on behalf of KF in the written materials filed with the court.
BACKGROUND
[4] KF is a 41-year-old single man. He has a history of violent behaviour dating back to his teenage years and a history of criminal convictions, including several assault and uttering threat convictions, dating back to 1992. He has had psychiatric admissions in 1999, 2002, 2003, 2005, 2006, 2007-2008, 2010 and 2011-2013. He has been diagnosed with schizophrenia and antisocial personality disorder since about 2002. He was deemed unfit to stand trial in both 2006 and 2010 for various violent and non-violent criminal offences: see Centre for Addiction and Mental Health (“CAMH”) Report to the Ontario Review Board, CCB Exhibit #3, at pp. 47-52 of the Record.
[5] KF was charged with assault with a weapon, possession of a weapon contrary to a prohibition and possession of a prohibited in relation to an incident on October 14, 2010, where he struck a man in a law office with a telescopic baton numerous times resulting in a 4 cm gash to the top of the man’s head and defensive bruising to both arms. KF was found not criminally responsible for these charges on July 26, 2011. At the direction of the Ontario Review Board, KF remained an inpatient at CAMH until May 2013: see CAMH Report to the Ontario Review Board, CCB Exhibit #3, at pp. 47-53 of the Record.
[6] KF was discharged to the community in 2013. He had been quite stable in the community from 2013 until about March 2016. KF was granted an absolute discharge from the Ontario Review Board in January 2016. Shortly thereafter, in February 2016, KF advised CAMH’s Forensic Outpatient Services by email that he no longer wished to be seen and that he was planning on establishing other psychiatric supports in the community. Accordingly, his treatment regimen ended. No alternative psychiatric treatment arrangements were, in fact, made: see CCB Summary, CCB Exhibit #2, at p. 38 of the Record.
[7] KF lived in a rented room at Ecuhomes supportive housing in the first half of 2016. The discontinuance of KF’s treatment at CAMH was accompanied by increasingly disruptive behaviour, which had been escalating in aggression leading to staff and other residents being fearful for their safety. For instance, an auditory hallucination led him to complain about unusual sucking sounds that he believed were a product of his roommates engaging in oral sex. He stated that if the sounds did not stop “he would end up in court as a result of what he would do”: see CCB Summary, CCB Exhibit #2, at p. 39 of the Record.
[8] On May 3, 2016, KF was brought to CAMH’s Emergency Department pursuant to a Form 2 – Order for Examination under s. 16 of the Mental Health Act, R.S.O. 1990, c. M.7, which was sought and obtained by the management of Ecuhomes. KF’s father reported that he was unaware that KF had stopped his medications or follow-up and noted that his son’s mental health had deteriorated over the prior month as his text messages had become more litigious and disorganized: see CAMH Progress Notes, CCB Exhibit #4, at p. 80 of the Record. KF remains an involuntary patient at CAMH.
[9] On May 4, 2016, Dr. Horowitz issued a Form 33 under the Mental Health Act, which notified KF that he is not mentally capable to consent to treatment of a mental disorder: see Form 33, CCB Exhibit #1, at p. 36 of the Record.
[10] KF applied to the CCB to review his involuntary detention at CAMH and Dr. Horowitz’s finding of his treatment. Dr. Horowitz prepared a summary, dated May 13, 2016 (“”), addressing the issues raised by KF’s appeal. The CCB Summary prepared by Dr. Horowitz, at pp. 43-45 of the Record, explains the proposed treatment, among other details:
Antipsychotic medications both oral and long-acting injections to treat psychotic symptoms.
Sedatives and hypnotics as needed to protect Mr. K.F.’s sleep and to attenuate aggression/agitation and anxiety.
Side-effect medications as needed to treat abnormal involuntary movement disorders that can be caused by the antipsychotic treatment.
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,
a) What information has been given to the patient? Attempts have been made to discuss with [K.F.]:
His diagnosis, signs and symptoms of Schizophrenia.
The immediate concerns his treating physicians and family have in regards to his mental and emotional health.
Attempts have been made to convey various treatment options with indications for each risk, benefits, and side-effects.
The reason why Mr. K.F. has been detained in hospital.
The reasons why he has been found incapable to consent to the treatment of his mental disorder.
b) Evidence patient is unable to understand:
Mr. K.F. has the intellectual ability to understand the information pertaining to his mental illness and the treatment thereof.
and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
a) What are the reasonably foreseeable consequences?
Without treatment, Mr. K.F. will likely suffer serious mental and physical deterioration, become more intensely paranoid and experience further auditory hallucinations. These symptoms would affect his judgment and impulse control. This is further complicated by recent escalation of alcohol consumption in the community. Consequently, Mr. K.F. would be more likely to cause serious bodily harm to others if he were to go un-medicated. When taking medications, Mr. K.F. displays less impulsive, menacing and threatening behaviors. The auditory hallucinations are greatly attenuated and he does not display the intense paranoid or persecutory delusions as observed during this admission. His interpersonal effectiveness is also more appropriate. At present, Mr. K.F.’s housing is in jeopardy and writer has been informed that he will not be able to return to the residence without adequate treatment.
b) Evidence patient is unable to appreciate these:
Mr. K.F. has a history of poor insight and prior to the absolute discharge, “superficial” at best. Presently, he is not able to appreciate the symptoms of neither his psychotic illness nor the impact the symptoms have on his thinking, behavior and judgment. He is unable to understand the role of his antipsychotic medications or the support from the health care team in treating his delusions and hallucinations. Mr. K.F. is convinced that he does not have a psychotic illness either presently or in the past and is adamant that when he received an absolute discharge the acting ORB informed him he “never” had a psychotic illness. Mr. K.F. does not identify any benefit from past treatment and does not contribute the stability he experienced in the community since his discharge from a lengthy inpatient admission as secondary to treatment of his psychotic symptoms. In addition, Mr. K.F. has expressed concern that if he were to take antipsychotic medication the side-effect will be that he’ll be “turned into a paranoid Schizophrenic[”], and cannot appreciate the significant mental changes or paranoid thinking and behaviors that have led to his current admission. He denies any changes since coming off his medications and refers to reports from the boarding home as “lies[”].
Mr. K.F.’s compromised insight into his mental condition, and inability to apply the information he has been given to his own circumstances is a manifestation of his mental condition. Therefore, it is this writer’s opinion that Mr. K.F. is unable to appreciate the reasonably foreseeable consequences of making decisions with respect to his treatment and fails a second branch of the test. [Emphasis in original.]
[11] The CCB held a hearing on May 25, 2016. KF appeals from the CCB’s decision, which confirmed Dr. Horowitz’s finding that he is not capable of consenting to treatment with the medications described above because he is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.
[12] In its decision, the Board, at pp. 12 and 13 of the Record, stated:
Without treatment, KF will likely decompensate, becoming more intensely paranoid and experiencing further auditory hallucinations; these symptoms will affect his judgement and impulse control, causing him to become more likely to cause serious bodily harm to others. This is further complicated by his recent escalation of alcohol consumption. When treated, KF displays less menacing and threatening behaviours; he does not display such intense paranoid and persecutory delusions; his interpersonal effectiveness is more appropriate.
KF has a history of poor, at best superficial insight. At present, he is not able to acknowledge the symptoms of his psychotic illness and the impact these symptoms have on his thinking, behaviour and judgement. He is unable to understand the role of antipsychotics and his health care team in treating his delusions and hallucinations. KF is convinced that he does not have a psychotic illness, nor did he in the past. He cannot identify any benefit from past treatment and does not attribute the stability he experienced in the community for almost three years to treatment of his psychotic symptoms. He believes taking antipsychotics will turn him into a paranoid schizophrenic. He cannot appreciate the significant mental changes in paranoid thinking and behaviours which have led to his current admission. He denies any changes since stopping this medication and refers to Ecuhomes’ reports as lies.
KF’s compromised insight and inability to apply the information he has been given to his own circumstances is a manifestation of his mental condition; he is unable to appreciate the reasonably foreseeable consequences of making decisions with respect to his treatment (Exhibit 2).
Dr. Horowitz testified that it is a by-product of his mental illness that KF minimizes or denies his attacks on others and that he believes he does not need help for any reason. He is unable to understand why Ecuhomes might be fearful of him returning to reside there.
KF corroborated Dr. Horowitz’ evidence when he informed us, “I don’t suffer from any mental illness”. He was adamant that taking medication made no difference.
The evidence as a whole was sufficient to rebut the presumption of capacity. KF is unable to appreciate that he is suffering from serious manifestations of mental illness. He does not have the ability to evaluate the information concerning treatment as it relates to his own circumstances. KF is not able to perceive any benefit to taking medications in order to control symptoms which he does not believe he has and he has no rational reason for refusing them.
Accordingly, the Board found that KF was unable to appreciate the reasonably foreseeable consequences of a decision or lack thereof about the treatment in question.
ANALYSIS
Standard of Review
[13] Absent an error of law, the standard of review is reasonableness: see Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, at para. 20.
[14] 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, [2011] 3 S.C.R. 708, at paras. 11-12.
The Statutory Test for Capacity to Provide Consent for Treatment
[15] 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 consent from the patient’s substitute decision-maker is granted, 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.
[16] 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.
[17] 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.]
[18] 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, [2003] 1 S.C.R. 722, at para. 75.
[19] 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.
[20] 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.
[21] 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. [Underlining in original. Bold added.]
[22] 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. The Appellant raises several issues on this appeal.
Issue #1: Did the CCB err in its application of the test for capacity by requiring that KF agree that he suffers from a “psychotic illness” and from specific symptoms of a psychotic illness?
[23] The Appellant submits that the CCB erred as it allegedly found that he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question on the basis that the Appellant failed to agree that he suffers from a “psychotic illness” and from specific symptoms of a psychotic illness.
[24] I dismiss this submission for the following reasons.
[25] As required by Starson, the CCB inquired “… 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”. At pp. 12 and 13 of its decision (pp. 16-17 of the Record), the CCB applied the above criteria and found that KF did not show an appreciation of these parameters.
[26] Additionally, as required by Starson, the CCB found, at p. 13 of its decision (p. 17 of the Record), that KF’s failure to demonstrate an appreciation of the parameters of the decision was due to his mental disorder.
Issue #2: Did the CCB err in its application of the test for capacity by requiring that KF prove that he was capable with respect to treatment?
[27] The Appellant submits that Dr. Horowitz did not discharge her onus to provide clear, cogent, or compelling evidence on which the CCB could have reasonably concluded, on a balance of probabilities, that he was incapable. Specifically, the Appellant submits that the CCB did not have enough evidence to conclude that his inability to appreciate the foreseeable consequences of his decision or lack of decision about the treatment in question was due to his condition rather than some other explanation.
[28] I dismiss this submission for two reasons.
[29] First, it is clear that the CCB placed the onus on the Respondent to prove that KF did not have the capacity to make a decision in respect of the proposed treatment. At p. 6 of the decision (p. 10 of the Record), the CCB stated that the onus rests with the Respondent. It is also clear that the CCB recognized this onus in its application of the test for capacity. At p. 13 of the decision (p. 17 of the Record), the CCB stated that the “evidence as a whole was sufficient to rebut the presumption of capacity”.
[30] Second, I reject the suggestion that there was no evidence before the CCB that KF’s inability to appreciate the consequences of his treatment decisions was due to his condition rather than for some other reason such as not having received a sufficient explanation from Dr. Horowitz. The CCB Summary indicates that KF’s inability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment is a manifestation of his mental condition. Similar evidence was given by Dr. Horowitz in her testimony before the CCB.
Issue #3: Did the CCB err in finding that KF’s insight into his condition and need for treatment had historically been consistently poor and, at best, “superficial”?
[31] KF submits that the CCB misapprehended the evidence in that it found that KF’s insight into his condition and the need for treatment had historically been consistently poor and, at best, “superficial”. I am not satisfied that the CCB’s finding was unreasonable. It reflects the evidence given by Dr. Horowitz. Further, Dr. Horowitz was not cross-examined on the appropriateness of this characterization by counsel that appeared at the CCB hearing for KF.
Issue #4: Did the CCB err in finding that KF was incapable with respect to sedatives, hypnotics and side effect medications?
[32] KF submits that there was little, if any, evidence that treatment with sedatives, hypnotics and side effect medications, as needed, was being proposed for him at the time of the hearing.
[33] The record shows that these medications were proposed to KF as part of his treatment plan: see CCB Summary, at p. 43 of the Record. Antipsychotic medications were proposed to treat psychotic symptoms. Sedatives and hypnotics were to be used as needed to protect KF’s sleep and to attenuate aggression/agitation and anxiety. Side effect medications were to be used as needed to treat abnormal involuntary movement disorders that can be caused by the antipsychotic treatment.
[34] The record also shows that the Respondent made “attempts” to discuss various treatment options, as well as their risks, benefits and side-effects, with KF: see CCB Summary, at p. 44 of the Record, and Progress Notes, dated May 5, 2016, at p. 80 of the Record.
[35] In my view, the CCB’s finding that KF was incapable with respect to making a treatment decision regarding sedatives, hypnotics and side effect medications was reasonable.
CONCLUSIONS
[36] For the reasons given above, I dismiss the appeal. No submissions regarding costs of this appeal were made and, accordingly, no costs are awarded.
Mr. Justice M. D. Faieta
Released: November 28, 2016
CITATION: KF v. Horowitz, 2016 ONSC 7045
COURT FILE NO.: CV-16-553899
DATE: 20161128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KF Appellant
– and –
DR. GLENDA HOROWITZ Respondent
REASONS FOR JUDGMENT
Mr. Justice M. D. Faieta
Released: November 28, 2016