CITATION: JG v. Hertzman, 2016 ONSC 7458
COURT FILE NO.: 2459/16
DATE: 2016/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JG
Appellant
– and –
Dr. Daniel Hertzman
Respondent
Jonathan Fernandez, for the Appellant
Julie A. Zamprogna Balles, for the Respondent
HEARD: November 17, 2016
REASONS FOR DECISION ON APPEAL
Justice J.C. George:
nature of appeal
[1] The appellant, JG, appeals from an order of the Consent and Capacity Board (“CCB”). On June 9, 2016 it found JG incapable of consenting to treatment, specifically the administering of antipsychotic medications and the community treatment plan (“CTP”). The CCB confirmed the respondent doctor’s earlier findings under the Health Care Consent Act (“HCCA”), and upheld JG’s involuntary admission and community treatment order (“CTO”).
[2] JG wants the decision set aside or quashed, and asks that I declare him capable of consenting to the proposed treatment. In the alternative, he asks that I send the matter back to the CCB for another hearing with specific directions.
[3] His position is the CCB erred in fact and in law. The notice of appeal alleges several errors, including that the CCB failed to take into account relevant evidence, and that it failed to properly apply the presumption of capacity. JG submits the CCB accepted a diagnosis of schizophrenia (rather than a mood disorder) without evidence; that it adopted a ‘paternalistic perspective’ of his best interests; accepted overly vague hearsay evidence; and did not properly assess the deleterious impacts of the proposed medication.
[4] JG contends the CCB’s decision cannot stand as it was not specific to a treatment, or a time, and because he was not provided relevant information which would have allowed him to appreciate the benefits and risks of treatment. He also claims his substitute decision maker did not receive information about the material risks of treatment, and therefore her consent to treatment is deficient.
[5] His argues that because the finding of incapacity is invalid, the CTO is invalid. This is distinct from a challenge to the involuntary admission or specifically to the CTO, which was not pleaded on this appeal. It is simply the logical result of, should I so find, JG’s capacity to consent.
[6] The two standards of review are well known. Questions of fact, questions of mixed fact and law, and questions which involve the interpretation of a specialized tribunal’s home statute are to be assessed on the standard of reasonableness. Deference is owed to the original decision maker. On questions of law, the standard of review is correctness. The original decision maker has to be right. The parties don’t agree on which standard applies.
[7] On this appeal, I may:
- exercise all the powers of the board;
- substitute my opinion for that of a health practitioner, an evaluator, a substitute decision maker, or the CCB; or
- refer the matter back for rehearing in whole or in part.
[8] JG has struggled with mental illness most of his life. He has both Canadian and U.S. citizenship. He is exceptionally talented. As a 14 year old he undertook some university studies. One year later he was admitted as a full-time student at Western University. He attended the Eastman School of Music, and holds an undergraduate and master’s degree, and a third degree in French.
[9] He suffered his first delusion at the age of 17, which led to hospitalization. He has now experienced 16 hospital admissions.
[10] His mother is his substitute decision maker. She consented to treatment after the incapacity finding.
[11] JG was found incapable of consenting to treatment of a mental illness in January 2012. He has been treated by medication since. He was involuntarily admitted to the hospital in February of this year after a missed appointment. He subsequently went through a period of delusions. After this hospital admission he was placed on a CTO. When released into the community, he missed appointments and reported not taking his prescribed medications. This led again to an involuntary admission. He was an involuntary patient at the time of hearing.
CCB HEARING
[12] JG challenged the finding of incapacity, and also the validity of the CTO and involuntary admission. I have already set out the CCB’s decision, and JG’s specific challenges to it, but I will now detail some of the evidence.
[13] The respondent testified about why he admitted JG as an involuntary patient, and described the characteristics of his mental illness. JG is schizophrenic and suffers from delusions.
[14] He testified that JG’s mental health deteriorates when he doesn’t take his prescribed medication. He outlined JG’s reluctance to receive treatment and take antipsychotic medications. He testified that, in light of the fact past deteriorations took several months to manifest itself, he decided to involuntarily admit JG to the hospital. His conclusion was essentially that the best predictor of a treatment’s effect was the past reactions of the patient. To the respondent’s knowledge, all prior admissions were due to JG stopping his own treatment or decreasing drug dosages.
[15] The respondent testified that he advised and explained to JG the risks associated with the CTP. His ultimate conclusion was JG was unable to weigh the drawbacks and benefits of the proposed treatment.
POSITION OF THE PARTIES
JG
[16] JG contends the respondent, and CCB, erred in not finding incapacity with respect to a specific time; in not finding incapacity with respect to a specific treatment; in not assessing incapacity in the context of informed consent; and in appraising informed consent without regard to the risks associated with the proposed treatment.
[17] Respecting consent, JG writes this at paras. 48 and 49 of his factum:
An analysis of informed consent is necessary to find incapacity to consent to a treatment because the definition of consent includes an informed component in the legislation. When a person is found incapable to consent to a treatment that person cannot appreciate the reasonably foreseeable consequences of a decision to accept or reject treatment unless they have information to inform an analysis of the consequences.
Treatment cannot be administered without the consent of either a capable person or the consent of the substitute decision maker of an incapable person. Consent to a treatment must be informed. Consent is informed if, before giving it, the person who gives consent received information prescribed by subsection 11(3) of the Health Care Consent Act. The Board failed to apply the prescribed legislative criteria to confirm that consent was informed under section 11(3). The person who gives consent must first receive information about the material risks and side effects of treatment along with four other components.
[18] JG says the material risks of the proposed treatment and medications were not given to him (or his substitute decision maker), therefore he could not possibly have provided an informed consent. Not having even the opportunity to give an informed consent it was then impossible to make a finding of incapacity. This, his counsel argues, is reviewable on a standard of correctness.
[19] Capacity must relate to a specific time, and to a specific treatment. JG refers to page 98 of the hearing transcript where the respondent makes, what JG alleges, a blanket finding of incapacity. This, he argues, invalidates the respondent’s finding.
[20] To support his position that incapacity was not found relative to a specific type of treatment, JG points to the respondent’s completion of the Mental Health Act’s (“MHA”) prescribed forms. Form 33 for example simply provides a check box which would have a doctor indicate a person is ‘not mentally capable to consent to treatment of a mental disorder’. The respondent indeed checked this box, but JG argues this indication is overly broad and not specific.
[21] He draws a distinction between side effects and risks. He concedes the respondent spoke to him about side effects, which could be both detrimental and beneficial, but not about risks, which are inherently dangerous.
[22] JG poses this question; if he hadn’t been given an opportunity to provide informed consent, how then could that consent (or in his case lack of consent) be properly evaluated?
Respondent
[23] The respondent argues that it’s clear upon a review of the complete record that there was a finding of incapacity respecting a specific treatment, namely antipsychotic medication and the CTP. He relies upon the Starson decision which confirms consent, in a situation like this, is in relation to a class of medication; Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. In other words, the prescribed medication can change under a treatment plan so long as it is of the same type, geared to the same outcomes.
[24] Respecting time, the respondent again argues that upon a review of the complete record it is abundantly clear that the finding of incapacity was based on, first, JG’s present inability to recognize symptoms (i.e. hallucinations, delusions), and second, his present inability to recognize the benefits of treatment. The fact his is an ongoing illness with recurring symptoms doesn’t detract from this, or create an added burden upon the respondent.
[25] JG’s mother testified about how these are not, from her son’s perspective, delusions. They are “painfully real”. His delusions are his reality. For what it’s worth, she agreed with the respondent in that her son has no insight into his illness or need for medication.
[26] The respondent’s conclusion was that JG was incapable of consenting to the treatment plan and medication. He argues that JG, a sophisticated patient, was repeatedly advised of the risks and benefits of this plan. Without reproducing the specific passages, he points to pages 103 - 104 of the hearing transcript where he speaks to the benefits and risks, and outlines how he communicated them to JG. His opinion was JG was so consumed with risks he had no ability to appreciate the benefits. The bottom line is JG has a psychosis he fails to recognize.
[27] The respondent argues that, while JG had become preoccupied with the idea of paralysis and suicide (as a consequence of taking medication), this doesn’t mean he was uninformed. In other words he didn’t believe these things because of what the respondent told him; he believed them despite of it.
LAW & ANALYSIS
[28] Having considered the respective positions of each party, I conclude that the appropriate standard of review is that of reasonableness. This appeal raises questions of mixed fact and law, and involves the interpretation of the CCB’s home statute. The CCB is entitled to deference.
[29] I further find that section 11 of the HCCA, while relevant, has limited applicability. It does set out the elements of a valid consent, but the question before me is whether JG was capable of providing that consent. This may sound like a semantical distinction, but there is a considerable difference in that JG’s suggested approach would have me focus on the evaluation of consent. It seems to me that there can’t be a proper and considered evaluation of consent, if a medical practitioner has reasonably concluded the person is incapable of providing it. These are entirely different analyses.
[30] Having determined the appropriate standard of review is reasonableness, the question before me is not whether the CCB’s conclusion was the best one on the evidence, but whether it was among the range of conclusions it could have reasonably arrived at.
[31] There were a range of possible outcomes available to the CCB. The respondent argues the decision to uphold his conclusions was one of them. He writes this at para. 32 of his factum:
According to the Supreme Court, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. A decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.
[32] This position relies upon the court’s comments in each of Dunsmuir v. New Brunswick [2008] S.C.C. 9; and Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] 1 S.C.R. 247.
[33] The Supreme Court is clear in that an administrative decision maker’s interpretation of its home or closely connected statute should be afforded great deference. This is the case here.
[34] It is wrong to say that, in order to find incapacity, a doctor (or reviewing tribunal or court) must first engage in a detailed analysis of informed consent under section 11 of the HCCA. The section does set out what constitutes informed consent, and obviously a consent must conform to the section’s requirements, but section 11 applies only if one is capable of consenting. In my view, the section, and the notion of informed consent generally, contemplates someone who is capable, but hadn’t been sufficiently informed before providing a consent. The respondent doctor and CCB determined JG was not capable.
[35] The issue of capacity is governed by section 4 of the HCCA. It sets out a two-part test. A person is capable if, first, they are able to understand the information relevant to making a treatment decision, and second, if they are able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. A person is presumed capable.
[36] Given the presumption, the onus lies with the person who seeks a finding of incapacity, on a balance of probabilities.
[37] Can it be said that JG was, at the relevant time, able to weigh the foreseeable risks and benefits of a treatment decision? The answer is no. The evidence overwhelmingly showed that JG had no ability to recognize his illness, symptoms, and that he couldn’t appreciate the consequences. It then logically follows that he would be incapable of consenting to medication or a treatment plan.
[38] Focusing on the second branch of the test - assessing one’s ability to appreciate the reasonably foreseeable consequences of a decision (or lack thereof) – what can we look to as indicators? First, was JG able to recognize that a recommended treatment condition may impact him? Second, was he able to assess how, in his case no treatment, would affect his quality of life? And third, to the extent he could understand and appreciate those things and make any choices at all, was it based in reality or on his delusions? Respecting the first two questions, the answer is a resounding no. Respecting the third question, the evidence established that his delusions had overcome reality.
CONCLUSION
[39] On the evidence before it the CCB’s decision was within the range of possible outcomes. It was open to the respondent, and CCB, to conclude JG was incapable, as his delusions had rendered him unable to properly understand what was being proposed. This necessarily meant JG could not make informed decisions. And to be clear, this had everything to do with his delusions, and nothing to do with the sufficiency of the respondent’s explanation of risks to him.
[40] The record discloses an incapacity finding related to a specific treatment. The respondent’s finding was with respect to antipsychotic medications and the proposed CTP. The CCB decision confirms this.
[41] I find no deficiency in the completion of the MHA forms and checklist. These forms are informational and a mechanism to trigger the rights available to a patient. While I agree that to describe a proposed treatment as “treatment for a mental disorder” would be far too broad, the respondent’s evidence at the CCB hearing goes beyond that. He details a specific treatment.
[42] To accept JG’s position would be to place too fine a point on a health care practitioner’s responsibility. A proposed treatment need not be set out as a precise formulation or brand. It is necessary to allow for some flexibility. We must permit changes to the course of treatment in a way that doesn’t always engage a further legal review. This would not conform to the CCB’s proper role. Its job is not to manage treatment but to perform a very specific review function.
[43] I reject the argument that the incapacity finding was unrelated to a specific time. Upon a review of the complete record before the CCB, the respondent’s evidence, and ultimate findings, were current to the time he was expressing them. He spoke to JG’s past and how it informed and led to his present circumstances. He testified to how this impacted his decision. While one could cherry pick the respondent’s evidence and point to aspects of it that suggest a general blanket finding of incapacity, this would be unfair and not reflect the entire evidentiary picture.
[44] I reject JG’s argument that he was not apprised of treatment risks. The evidence suggests he was, so much so that he began exaggerating them.
[45] In the result, the appeal is dismissed. The CCB’s decision respecting incapacity is upheld. The CCB’s decision to confirm JG’s involuntary status, and to find him incapable of consenting to antipsychotic medication and the CTP, was reasonable. It was therefore reasonable for it to confirm the issuance of the CTO.
[46] Exercising the powers of the CCB, I find as it did in all respects.
“Justice J. C. George”
Justice J.C. George
Released: November 30, 2016
JG v. Hertzman, 2016 ONSC 7458
COURT FILE NO.: 2459/16
DATE: 2016/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JG, Appellant
-and-
Dr. Daniel Hertzman, Respondent
REASONS FOR DECISION ON APPEAL
Justice J.C. George
Released: November 30, 2016