Overview

[1] The appellant, Ms. Mildred Micah, appeals from two decisions of the Consent and Capacity Board dated April 28, 2016. The Board subsequently released its reasons on May 4, 2016. The decisions confirmed the validity of a Community Treatment Order (CTO) dated April 7, 2016 and a finding of incapacity made by Dr. Patricia Cavanagh with respect to treatment decisions under a Community Treatment Plan (CTP), which administered antipsychotic medication. The respondent, Dr. Cavanagh, gave evidence before the Board supporting both the CTO and CTP.

[2] Dr. Cavanagh became involved in Ms. Micah’s psychiatric care following her discharge from a fifteen month admission at the Centre for Addiction and Mental Health (CAMH) in August 2015. This was her fourth admission in five years. On March 21, 2016, Dr. Cavanagh confirmed the assessment of her resident, Dr. Rostas, that Ms. Micah was incapable of consenting to antipsychotic medication and to her CTP because she was unable to understand the reasonably foreseeable consequences of such decisions. On April 7, 2016, Dr. Cavanagh renewed Ms. Micah’s CTO with the consent of her substitute decision-maker, the Public Guardian and Trustee (PGT).

Facts

[3] I have relied upon the discharge summaries, progress notes, and transcripts of the hearing to form the backbone of these facts. At the time of the hearing, Ms. Micah had been living independently in a subsidized apartment and was being supported by ODSP. Ms. Micah had been diagnosed with schizoaffective disorder. Her psychiatric history spans more than 30 years.

[4] Since 2011, Ms. Micah has been admitted to CAMH on four occasions. She attended the CAMH emergency department on several other occasions. Ms. Micah’s most recent admission, from May 2014 to August 2015, began involuntarily after police brought her to the hospital. At that time, she presented with pressured speech, flight of ideas, and disorganized thoughts. She had been exhibiting bizarre behaviours and had lost 30 pounds from inadequate nutrition.

[5] At times, she has experienced suicidal and homicidal ideations. Ms. Micah has also experienced auditory hallucinations and paranoid delusions, often concerning members of her treatment team.

[6] Ms. Micah’s admissions to CAMH over the past five years have produced periods of general stability and improvement. Prior to her discharge in August 2015, she was generally compliant and cooperative in taking medication. During her most recent hospitalization, she showed marked improvement following a course of acute ECT and treatment with antipsychotic medications. When she was discharged in August 2015, she was less disorganized and her delusions had diminished. She no longer endorsed many of her auditory hallucinations.

[7] Although she would often voluntarily go to the hospital, her history also demonstrated a recurring pattern of noncompliance with medication upon being discharged. Dr. Cavanagh noted that Ms. Micah has a longstanding and well-documented history of not complying with prescribed medication, which was a factor in her many hospitalizations. Following her discharge in August 2015, she immediately stopped taking one of her antipsychotic medications and refused to attend for ECT treatment. Dr. Rostas attended at Ms. Micah’s home and completed a capacity assessment, which was confirmed by Dr. Cavanagh on March 21, 2016.

[8] According to Dr. Rostas’ assessment, Ms. Micah had very limited insight into the nature of her mental condition. She did not believe she had a mental illness. She believed the medication was preventing her from functioning normally. She thought Dr. Cavanagh was ruining her life. As a result of this assessment, Dr. Cavanagh concluded that Ms. Micah was incapable with respect to her antipsychotic medication and the CTP.

[9] On April 7, 2016, Dr. Cavanagh executed a CTO renewal, which incorporated the CTP. Ms. Micah’s capacity continued to be assessed on an ongoing basis from March 21, 2016 to the April 28, 2016 hearing. Dr. Cavanagh determined that there was no change in her mental status significant enough to warrant another formal capacity assessment before the April 28, 2016 hearing date.

Issues

[10] I have been tasked with deciding three issues:

(1) Given that the CTO before the Court expired on October 6, 2016, is an appellate review of the Board’s CTO confirmation now moot?

(2) Did the Board err in confirming the CTO at the time it was issued on April 7, 2016 and at the time of the hearing on April 28, 2016?

(3) Did the Board err in finding that Ms. Micah was unable to appreciate the reasonably foreseeable consequences of her treatment decisions?

Standard of Review

[11] Absent an error of law, the standard of review is reasonableness: Starson v Swayze, 2003 SCC 32. Writing for the minority in Starson, but agreeing on this issue, McLachlin CJ explained how the reasonableness standard is applied to Board decisions at paragraph 5:

Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence. [Emphasis added]

[12] By confirming the CTO and ruling on Ms. Micah’s capacity, the Board applied the law to the facts and, therefore, its decisions must be reviewed on a reasonableness standard.

Analysis

Issue 1: Is a review of Ms. Micah’s expired CTO moot?

[13] The first step in a mootness analysis is determining whether the tangible and concrete dispute between the parties has disappeared: Borowski v Canada (AG), [1989] 1 SCR 342 at para 16, 1989 CanLII 123. Here, the dispute continues between the parties and the issues have not become academic.

[14] Counsel for Dr. Cavanagh submits that there is no active dispute between the parties. In Carty v Levy, 2015 ONSC 2200, Perell J declined to hear an appeal of a CTO once it had expired. Perell J’s decision is distinguishable because the Carty CTO had expired more than five months before the scheduled appeal date and was not renewed by Dr. Levy. While the CTO under review in our case has also expired, it was renewed by Dr. Cavanagh on October 5, 2016. The Board is scheduled to review the renewed CTO on a date in December 2016.

[15] The tangible dispute between the parties has not disappeared. It is ongoing. The issues before the Court are not moot. It is important for the parties that I deal with the validity of the CTO.

Issue 2: In light of the standard of review articulated in Starson, was the Board’s decision affirming the Community Treatment Order reasonable?

[16] Counsel for Ms. Micah asserts that the Board’s decision to confirm the CTO was unreasonable for three reasons:

(i) The evidence did not establish that Ms. Micah would likely suffer from a substantial deterioration without the CTO;

(ii) There was no reasonable cause to believe that Ms. Micah would exhibit clinical improvement as a result of treatment; and

(iii) The evidence before the Board did not establish that Dr. Cavanagh had developed the CTP in consultation with all necessary parties.

[17] I disagree with counsel’s submissions. For the following reasons, the Board’s decision in affirming the CTO was reasonable at the time it was issued on April 7, 2016 and at the time of the hearing on April 28, 2016.

(i) Was it reasonable for the Board to conclude that Ms. Micah would likely suffer substantial deterioration without a CTO?

[18] Counsel for Ms. Micah submits that the evidence did not establish that she would likely suffer from a substantial mental deterioration without a CTO, as required by the Mental Health Act, RSO 1990, c M 7, s 33.1(4)(c)(iii). Ms. Micah’s longstanding history of seeking treatment is cited as the primary reason that she is unlikely to suffer a substantial deterioration. I disagree with this argument.

[19] I do agree that Ms. Micah does have a longstanding history of voluntarily seeking treatment; however, Dr. Cavanagh gave evidence at p. 13 of the Transcript that Ms. Micah “immediately…began to argue against treatment and refused her ECT” after being transferred to her ACT team in August 2015.

[20] Dr. Cavanagh also informed the Board at p. 13 that Ms. Micah is “adamant that she wants to stop treatment.” Dr. Cavanagh’s testimony made it clear that Ms. Micah is “quite plain that she wants to stop her treatment right now” (p. 22 of the Transcript).

[21] In response to a question at p. 40 about what substantial deterioration looks like for Ms. Micah, Dr. Cavanagh answered that her mood lability, auditory hallucinations, paranoia, disorganized thoughts and delusions that God is speaking to her would all worsen. Dr. Cavanagh reiterated that she expected Ms. Micah’s current symptoms to worsen at p. 64. For the reasons enumerated in Issue 3(iii), the evidence above is as true for April 7, 2016 as it was when Dr. Cavanagh gave testimony before the Board on April 28, 2016.

[22] Dr. Cavanagh’s primary concern was that, without the CTO, Ms. Micah would stop taking her antipsychotic injection. When this matter was before the Board, it was the only medical treatment Ms. Micah had been receiving. She had been consistent that she wanted to stop the injection (p. 76). Dr. Cavanagh was quite candid that Ms. Micah had only had a partial response to the injection, but stated that, “[Ms. Micah] would be a lot more unwell if she did not receive treatment” (p.82).

[23] Despite Ms. Micah’s previous history of seeking treatment, the evidentiary record also established that she often resisted treatment for her schizoaffective disorder. Dr. Cavanagh’s concerns about Ms. Micah’s behaviour led her to believe that she would be worse off without the CTO. Although Dr. Cavanagh did not use the actual words ‘substantially deteriorate,’ her meaning was plain. That conclusion was inescapable from the language she used to describe Ms. Micah’s deterioration. It was reasonable for the Board to conclude that Dr. Cavanagh’s evidence meant Ms. Micah would likely suffer from a substantial mental deterioration without the CTO.

(ii) Was it reasonable for the Board to conclude that Ms. Micah experienced clinical improvement as a result of treatment?

[24] Ms. Weiss, counsel for Ms. Micah, submits that the Board erred in ordering an assessment of Ms. Micah because it had no reasonable cause to believe Ms. Micah demonstrated “clinical improvement as a result of treatment,” as required by the Mental Health Act, s 15(1.1)(b). She argues that Ms. Micah never showed the necessary improvement or, alternatively, any improvement only resulted from ECT, which is not included in the Community Treatment Plan. I disagree with this submission.

[25] There is ample evidence on the record establishing that Ms. Micah improved, or at the very least avoided substantial deterioration, as a result of treatment.

[26] A discharge summary from August 13, 2015, at p. 81 of the Record of Proceedings, indicates that Ms. Micah “was frequently using lorazepam and loxapine PRN, which were clearly beneficial.” Loxapine is an antipsychotic medication.

[27] A further discharge summary from May 16, 2011 can be found at p. 71 of the Record of Proceedings. The discharging clinician recorded that Ms. Micah was treated with Risperidone and “experienced an improvement in her symptoms.” Another discharge summary, this one from December 12, 2012 at p. 76 of the Record of Proceedings, noted that Ms. Micah “responded well to the Risperidone.” Risperidone is also an antipsychotic medication.

[28] Finally, in Dr. Cavanagh’s evidence at p. 82 of the Transcript, she opines that Ms. Micah “would be a lot more unwell if she did not receive treatment.”

[29] I appreciate counsel’s concern for her client. The record does establish that ECT had worked well for Ms. Micah; however, there is also evidence that antipsychotic medication has improved her symptoms and been beneficial. Further, Dr. Cavanagh explained why the CTP did not include ECT at p. 73 of the Transcript:

I think we decided to remove it from the treatment plan, because we - - we weren’t giving it right now. So we didn’t want to develop a treatment plan that included a treatment that we weren’t using. Sort of on a contingency that we might use it in the future we wouldn’t do that. We can always alter it and get consent to put it in the plan later if we decide to do that.

[30] All of this evidence provided a sufficient basis for the Board to reasonably conclude that Ms. Micah would show clinical improvement from a treatment plan based on antipsychotic medications. The Board’s conclusion was reasonable and fully supported by the evidence.

(iii) Was it reasonable for the Board to determine that the Community Treatment Plan had been developed by consulting the necessary parties?

[31] The Mental Health Act mandates that a community treatment plan must be developed in consultation with the health practitioners named therein: MHA, s 33.1(4)(b) and (d). Ms. Micah’s counsel submits the Board erred in concluding that the necessary parties to the CTP had been properly consulted.

[32] Based on a review of the evidence, this position is untenable. In her cross-examination before the Board, Dr. Cavanagh was unclear whether she spoke to the designated decision maker and community treatment coordinator or if her resident, Dr. Rostas, spoke with them. She was not pressed on this issue. Either she spoke to them or Dr. Rostas did.

[33] It is immaterial if Dr. Cavanagh had personal contact with the health practitioners named in the plan or if she delegated it to Dr. Rostas on her behalf. Further, Dr. Cavanagh described the consultation process at p. 63 of the Transcript:

...the discussions with Ms. Micah, we’ve already talked about um, Ms. Battalion, I - - she draws up the documents. Ms. Skeen [sic] is the Manager at the clinic so she’s there for the daily meetings. Um, Ms. Kodera as I said I can’t recall who spoke with her um, either myself or my resident would have got in touch with them about any of (inaudible) the CTO.

Although this aspect of the CTP is not explored more fully, it is clear that Dr. Cavanagh and Dr. Rostas consulted the necessary parties.

[34] The Community Treatment Plan can be found at p. 59 of the Record of Proceedings. Critically, the CTP was agreed to by Ms. Catherine Skene of the Downtown Central Clinic, Ms. Kimberly Batalion of CAMH, and Ms. Micah’s substitute decision maker, Ms. Christine Caines of the PGT. These people all signed off on Ms. Micah’s CTP. That, too, is evidence of Dr. Cavanagh’s consultation with them.

[35] The Board’s decision that consultation occurred is a reasonable one. The signatures on the CTP and Dr. Cavanagh’s evidence on cross-examination provided the Board with sufficient evidence to make this determination.

Issue 3: Did the Board err in finding that Ms. Micah was unable to appreciate the reasonably foreseeable consequences of her treatment decisions.

[36] Counsel for Ms. Micah also challenges the Board’s finding that she did not have capacity with respect to her treatment decisions. She asserts that the Board’s decision was unreasonable because

(i) it inappropriately inferred that Ms. Micah’s mental illness was the cause of her inability to appreciate the foreseeable consequences of treatment decisions;

(ii) it improperly reversed the burden of proof;

(iii) it erred in relying on an assessment of Ms. Micah that was over a month old at the time of the hearing;

(iv) it erred in determining Ms. Micah’s capacity by relying on her refusal to acknowledge that she had a mental illness;

(v) there was no evidence, aside from Dr. Cavanagh’s testimony, corroborating a finding of incapacity; and

(vi) there was no evidence that the proposed treatment would actually benefit Ms. Micah.

(i) Was the Board’s determination that Ms. Micah’s mental illness was the cause of her inability to appreciate the foreseeable consequences of treatment decisions reasonable?

[37] Ms. Micah’s counsel contends that the Board acted unreasonably in concluding that her mental illness was the cause of her inability to appreciate the consequences of her treatment decisions. She asserts that Dr. Cavanagh led no evidence on this point. I do not agree with this submission.

[38] A finding of incapacity would only be justified if Ms. Micah’s mental disorder prevented her from being able to appreciate the foreseeable consequences of treatment decisions. The Supreme Court of Canada is clear that the statutory test for capacity in s. 4 of the Health Care Consent Act 1996, SO 1996, c 2, Sch A has two parts. First, a person must be able to understand the information that is relevant to making a treatment decision. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one: Starson at para 78.

[39] In this case, we are only concerned with the second part of the test. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof: Starson at para 78.

[40] In Starson at para 81, Major J indicates that a “patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences.” It is an error to assume that a person is incapable merely because they have a mental illness. In that same paragraph, Major J goes on to give an example of another reason a patient may be unable to appreciate consequences: “a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences.”

[41] If Dr. Cavanagh had failed to explain the consequences of Ms. Micah’s treatment decisions to her, then her failure to appreciate those consequences would stem from a lack of information, not an inability to appreciate that information. That is plainly not the case here. Dr. Cavanagh’s evidence was that she has “had countless conversations with [Ms. Micah] about medications” (p. 32 of the Transcript). In particular, Dr. Cavanagh pointed to a discussion between Dr. Rostas and Ms. Micah where Dr. Rostas tried to convey that there was a connection between “getting better in hospital because of the medications and treatments and not doing so well when [she] stops the medications” (p. 32).

[42] A complete review of Dr. Cavanagh’s testimony leads to the conclusion that this is not a case where the patient has been deprived of adequate information. The record is rife with examples of Ms. Micah’s scattered thoughts, inconsistent approaches to treatment, and erratic feelings toward her treatment team. Even though Dr. Cavanagh never explicitly created a link in her testimony between Ms. Micah’s schizoaffective disorder and her inability to make treatment decisions for herself, the entirety of her evidence forms a cogent foundation upon which the Board could reasonably conclude that Ms. Micah’s mental illness caused her to be unable to appreciate the reasonably foreseeable consequences of her treatment decisions.

[43] I do not make this finding lightly. It would have been preferable if Dr. Cavanagh explicitly made the link or if the Board directly inquired about the link. I am, however, amply satisfied that the overall record is clear and transparent on the cause of Ms. Micah’s inability to appreciate the foreseeable consequences of her treatment decisions. A careful review of Dr. Cavanagh’s testimony would lead to no other possible conclusion but that Ms. Micah’s schizoaffective disorder prevents her from being able to appreciate the foreseeable consequences of treatment decisions.

(ii) Did the Board reverse the burden of proof?

[44] Counsel for Ms. Micah asserts that the Board erred in drawing an adverse inference against her because she did not attend or testify. She is correct to point out that there is a presumption of capacity and the onus of proving incapacity rests entirely on Dr. Cavanagh in this matter: Health Care Consent Act, 1996, s 4(2). In particular, counsel points to p. 15 of the Board’s Reasons as evidence that the Board reversed the onus:

The Board noted that [Ms. Micah] had not chosen to provide any evidence that was contrary to the evidence given by the doctor. The Board accordingly concluded that the evidence before it was clear, cogent and compelling and supported a finding of both mental disorder and capacity with respect to the proposed treatment.

The word ‘accordingly’ could possibly suggest that the evidence was accepted as clear, cogent, and compellable because Ms. Micah could not offer any evidence to the contrary.

[45] While the language the Board uses on p. 15 of its Reasons may be imprecise, it is likely a product of the tremendous pressure the Board faces in canvassing all the evidence and releasing written decisions in an expeditious manner. The timelines the Board faces are extremely rigid. This is why reviewing courts should not parse discrete sections of text, but instead must look at those decisions in their entire context. In reading the reasons as a whole, I am satisfied that the Board did not reverse the onus of proof.

[46] The Board is explicit in its reasons that the onus rests with Dr. Cavanagh. The Board’s reasons expressly state this at the bottom of p. 4: “the onus of proof at a Board hearing is always on the physician/health practitioner to prove the case.” Additionally, the Board states that, “[t]here is no onus whatsoever on the person found incapable or subject to the CTO.” Further, at p. 9 of the Transcript, the Chairperson’s opening remarks include, “[t]he onus, with respect to both of these matters being reviewed today, is, at all times, with a doctor.” The Board did not improperly reverse the onus of proof. The Board did not fall into error.

(iii) Was the March 21, 2016 capacity assessment outdated by the April 28, 2016 Board hearing date?

[47] Ms. Weiss submits that the Board’s determination that Ms. Micah was incapable with respect to treatment is unreasonable because Ms. Micah’s most recent capacity assessment was more than a month old. The Board heard Dr. Cavanagh’s application for a finding of incapacity and CTO on April 28, 2016. Ms. Micah’s most recent capacity assessment had occurred on March 21, 2016. Dr. Rostas performed the assessment and it was confirmed by Dr. Cavanagh on that date. That report is at p. 43 of the Record of Proceedings.

[48] The capacity assessment is somewhat dated by the time of the hearing; however, Dr. Cavanagh’s evidence is that she and her team were in regular contact with Ms. Micah following the assessment, and “there was nothing to suggest that [Ms. Micah’s] capacity had improved since that time” (p. 66 of the Transcript). In response to a question from the Chairperson, Dr. Cavanagh stated, at p. 78, that she spoke with Ms. Micah on the phone “most days.” Also, someone from Dr. Cavanagh’s team had “been visiting her three times a week, sometimes more.”

[49] Dr. Cavanagh’s evidence suggested that she had a strong grasp of Ms. Micah’s capacity and was in an excellent position to evaluate it, despite the five weeks that had elapsed between the formal assessment and the Board hearing. It was reasonable for the Board to rely upon Dr. Rostas’ and Dr. Cavanagh’s capacity assessment. Dr. Cavanagh’s evidence makes it clear that she and her team were continually monitoring Ms. Micah’s capacity. Based upon Dr. Cavanagh’s testimony, it was reasonable for the Board to conclude that Ms. Micah was incapable because of the capacity assessment of March 21, 2016 and that nothing had changed with respect to that assessment by the time of the Board hearing date on April 28, 2016.

(iv) In reviewing Ms. Micah’s capacity, did the Board improperly require her to acknowledge she had a mental illness?

[50] Ms. Weiss raises a further argument in connection with the March 21, 2016 assessment. The assessment points out that Ms. Micah refused to agree that she has a mental illness and refused to recognize that any improvement in her condition was due to her medication. The Board relied upon the capacity assessment. Counsel contends that the Board erred in relying upon this assessment because it was based on factors that should not have been considered in a capacity analysis, such as Ms. Micah’s refusal to agree that she had a mental illness and that treatment would benefit her. I disagree with Ms. Weiss’ submissions on this point.

[51] A patient is not required to describe their mental condition as an illness or agree with the attending physician’s characterization of their condition, but if that patient’s condition results in an inability to recognize its affect, then that person may be unable to apply the relevant information to their circumstances and appreciate the reasonably foreseeable consequences of treatment decisions: Starson at para 79. This is the appropriate framework upon which to consider whether a person has the ability to appreciate their treatment decisions.

[52] The March 21, 2016 assessment indicates that Ms. Micah stated, “I don’t have a mental illness.” Dr. Cavanagh elaborated on this in her testimony at p. 20 of the Transcript, while highlighting Ms. Micah’s many rationalizations about her illness and medications:

…she’s very ambivalent. I would say sometimes confused about whether she needs treatment, whether she has a mental illness or not. She’ll often say that God will help her; she doesn’t need medication. She’ll call me one day saying she’s perfect; the next day saying she’s depressed. Uh, the next day saying she’s perfect; the next day saying she’s suicidal. So I don’t think it’s just the treatment order that bothers her. I think um, she is very ambivalent about wanting help or not wanting help and um, mostly deciding these days that she does not have a mental illness and that God will make her better, et cetera. But she’s in distress a lot of the time.

[53] Ms. Micah’s refusal to recognize that she has a mental illness, and that proposed treatments will be beneficial, factor into the capacity assessment. These factors have been endorsed by the Supreme Court of Canada as common clinical indicators of a person’s ability to appreciate the consequences of accepting or declining treatment: Starson at para 18 citing B F Hoffman, The Law of Consent to Treatment in Ontario, 2nd ed (Toronto: Butterworths, 1997) at 18. The Board did not err by considering these factors in its capacity analysis because it is not an error to consider them.

[54] Ms. Weiss’ submission that the Board erred by requiring Ms. Micah to endorse that she suffers from schizoaffective disorder is unfounded. How Ms. Micah chooses to describe her mental condition is not relevant, but her ability to recognize how she is affected is relevant.

(v) Was there evidence before the Board corroborating Dr. Cavanagh’s testimony?

[55] Counsel for Ms. Micah contends that the Board erred in considering the evidence of Dr. Cavanagh because her evidence was not corroborated with respect to her finding of incapacity. The law is clear that a doctor seeking to uphold a CTO is an adverse party whose evidence must be corroborated: Anten v Bhalerao, 2013 ONCA 499 at para 28. In Anten at para 29, Rosenberg JA did not accept that the Board’s ability to hear the evidence and assess credibility could be considered corroborating evidence.

[56] The case here is markedly different from Anten. Here, there is a substantial body of documentary evidence in support of Dr. Cavanagh’s testimony in the Record of Proceedings. I have already referred to a number of those excerpts from the progress notes and discharge summaries. Dr. Cavanagh’s resident, Dr. Rostas, participated in the capacity assessment and treatment of Ms. Micah. The health practitioners in the CTP all signed off after consultation. Ms. Micah’s psychiatric history spans 30 years.

[57] This is not a case of Dr. Cavanagh’s word against Ms. Micah’s. The documentary evidence of Ms. Micah’s psychiatric history amply corroborated the evidence of Dr. Cavanagh. This was more than sufficient for the Board to uphold Dr. Cavanagh’s finding of incapacity.

(vi) Was there evidence before the Board that the proposed treatment would likely benefit Ms. Micah?

[58] At paragraph 62 of her factum, counsel for Ms. Micah submits that there must have been evidence before the Board that the proposed treatment was likely to be beneficial. Her concern is that the most beneficial treatment for Ms. Micah, ECT, is not proposed in her current CTP. While I appreciate that not including ECT in the CTP may be a concern for counsel, the evidence also indicates that Ms. Micah refused ECT multiple times. Dr. Cavanagh has also adequately explained why ECT was not part of the CTP at the time of hearing. In any event, there is ample evidence from the various discharge summaries that antipsychotic medications are also beneficial. As I have referenced this evidence in relation to Ms. Micah’s CTO, I will not repeat it here. The Board’s decision, on the totality of the evidence, was a reasonable one.

Conclusion

[59] After considering all of the legal issues raised by Ms. Micah’s counsel and reviewing the evidence before the Board, I have concluded that the Board made a reasonable decision in affirming the CTO and upholding the finding of incapacity with respect to treatment decisions.

[60] The appeal is dismissed. This is not a case for costs.

Archibald J

Released: December 16, 2016

CITATION: Micah v. Cavanagh, 2016 ONSC 7924

COURT FILE NO.: CV-16-552246 & CV-16-552248

DATE: 20161216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MILDRED MICAH

Appellant

– and –

DR. PATRICIA CAVANAGH

Respondent

REASONS FOR JUDGMENT

Archibald J.

Micah v. Cavanagh, 2016 ONSC 7924

Case Summary

Overview

Facts

Issues

Standard of Review

Analysis

Issue 1: Is a review of Ms. Micah’s expired CTO moot?

Issue 2: In light of the standard of review articulated in Starson, was the Board’s decision affirming the Community Treatment Order reasonable?

(i) Was it reasonable for the Board to conclude that Ms. Micah would likely suffer substantial deterioration without a CTO?

(ii) Was it reasonable for the Board to conclude that Ms. Micah experienced clinical improvement as a result of treatment?

(iii) Was it reasonable for the Board to determine that the Community Treatment Plan had been developed by consulting the necessary parties?

Issue 3: Did the Board err in finding that Ms. Micah was unable to appreciate the reasonably foreseeable consequences of her treatment decisions.

(i) Was the Board’s determination that Ms. Micah’s mental illness was the cause of her inability to appreciate the foreseeable consequences of treatment decisions reasonable?

(ii) Did the Board reverse the burden of proof?

(iii) Was the March 21, 2016 capacity assessment outdated by the April 28, 2016 Board hearing date?

(iv) In reviewing Ms. Micah’s capacity, did the Board improperly require her to acknowledge she had a mental illness?

(v) Was there evidence before the Board corroborating Dr. Cavanagh’s testimony?

(vi) Was there evidence before the Board that the proposed treatment would likely benefit Ms. Micah?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2