Court File and Parties

COURT FILE NO.: 398/17 DATE: 2017-04-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.P., Appellant AND: Dr. Julie Richard, Respondent

BEFORE: Heeney R.S.J.

COUNSEL: Jonathan Fernandes, for the Appellant David Nash for the Respondent

HEARD: April 4, 2017 at London

Endorsement

[1] The Appellant appeals the decision of the Consent and Capacity Board dated May 13, 2016, which upheld the finding of the Respondent, Dr. Richard, that she was not capable of making treatment decisions with respect to anti-psychotic medications, both oral and injectable.

[2] To briefly state the facts, the Appellant was first diagnosed with a psychotic disorder in 2013, after the breakup of a long-standing domestic relationship. She has consistently been diagnosed as suffering from a psychotic disorder by several different psychiatrists since then, including the Respondent. She responded well to anti-psychotic medication and was able to work part-time and secure her own housing in the community. However, the Appellant does not believe that she suffers from a psychiatric disorder, other than anxiety and post-traumatic stress. She eventually stopped taking her medication and, by April, 2016, was observed by the Respondent to be “clearly delusional”. She was involuntarily admitted to the hospital on May 5, 2016. She has refused treatment and demanded a new treatment team. She considers taking anti-psychotic medication to be “like dumping poison into your body”.

[3] In its Amended Reasons for Decision dated May 27, 2016, the Board correctly articulated the test for capacity found in s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2 Sch. A, and found that the Appellant was able to understand the information relevant to making a decision about the treatments. However, it found that the evidence established that she was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision in regard to treatment, which is the second part of the test under s. 4(1).

[4] In Starson v. Swayze, 2003 SCC 32 at para. 5 per McLachlin C.J. (dissenting but not on this point), it was held that the standard of review with respect to the Board’s interpretation of the law is correctness, but on the application of the law to the facts, the standard of review is reasonableness. However, that decision predated New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9. Dunsmuir, together with more recent jurisprudence from the Supreme Court, such as A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, backs away from the correctness standard on questions of law, and holds that where a tribunal is interpreting its home statute, a more deferential standard generally applies.

[5] Assuming, without deciding, that the higher standard of correctness applies to questions of law, no error of law has been demonstrated. In its Amended Reasons, at pp. 9 - 10, the Board correctly articulated the criteria for capacity as set out in paras. 78 - 9 of Starson. The Board’s application of those criteria to the facts before them is reviewable on a standard of reasonableness.

[6] The Board also correctly recognized the legal requirement for corroboration, arising from s. 14(2) of the Evidence Act, R.S.O. 1990, c. E.23.

[7] The thrust of this appeal relates to the need for corroboration. The Respondent’s evidence, outlined in the CCB Summary prepared by her and filed as evidence at the hearing, was that the Appellant has delusional thoughts about multiple people on line “cyberstalking” her. One group is run by the motivational speaker, Mastin Kipp, and she believed that the Facebook posts by his group were indirectly about her. She also queried whether her roommate/landlord was communicating about her with Mark Zukerberg, CEO of Facebook. She felt that the only possible plan would be to demand money for damages from either Facebook or Mastin Kipp. If her demands for financial damages are not met, she will commit suicide.

[8] In her testimony, the Appellant admitted to feeling suicidal, but attributed it to the sudden drop in her lifestyle that resulted from the termination of her long-term relationship with her former partner. She denied suffering from the symptoms of psychosis, and believed that “anyone in my position … would feel the exact same way as me”.

[9] The Appellant’s central argument is that the Respondent’s assertion that her suicidal thoughts are connected to her plan to extract damages from Facebook or Mastin Kipp was not corroborated by the Respondent’s evidence, because she attributed her suicidal thoughts to her changed circumstances and not to a disorder. With respect, that argument misses the point.

[10] In Starson, Major J., speaking for the majority, said the following, at paras. 78 – 9:

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. 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. The Board's finding of incapacity was based on their perception of Professor Starson's failure in this regard.

Before turning to an analysis of the reviewing judge's decision, two important points regarding this statutory test require comment. First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and "capable but dissident interpretations of information" are to be expected: see Weisstub Report, supra, at p. 229. 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 (at p. 250, note 443):

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.

[11] Applied to this case, the Appellant is not required to agree with the Respondent’s diagnosis that she suffers from psychosis. However, since it has been demonstrated that she is affected by a mental condition, she must be able to recognize the possibility that she is affected by that condition. On her evidence, it is clear that she is unable to recognize the possibility that her suicidal ideation is a manifestation of her condition. As a result, she is unable to appreciate the consequences of her decision not to take medication to deal with her underlying condition.

[12] The essential point of the Respondent’s evidence was that the Appellant suffers from delusions as a result of her psychosis, which have led to suicidal ideation. The Appellant has corroborated her suicidal ideation. The fact that she attributes it to changes in her living circumstances does not mean that the evidence of the Respondent is uncorroborated. Quite the reverse. It confirms the finding that she is unable to recognize the connection between her condition and her suicidal ideation. That renders her unable to recognize the consequences of refusing treatment.

[13] That is precisely what the Board concluded at pp. 12 – 13 of its reasons:

Based on this opinion and the evidence of Dr. Richard and the repeated evidence of JP that her problems, including her thoughts of suicide were caused by her life circumstances, the panel found, on a balance of probabilities that at the time of the hearing, JP was not able to recognize that she was affected by the manifestation of her mental condition.

Following the reasoning in Starson, supra at paragraph 79, the panel found that JP was thus unable to apply the relevant information to her circumstances and unable to appreciate the reasonably foreseeable consequences of her decision or lack of decision.

[14] The decision of the board was transparent and intelligible, and the conclusions arrived at were justifiable, based on the evidence that the Board had before it. The finding that the Appellant was not capable of making treatment decisions with respect to anti-psychotic medications, both oral and injectable, falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The Board’s decision is, in other words, reasonable.

[15] Accordingly, the appeal is dismissed.

[16] In her Factum, the Respondent submitted that there should be no order for costs, but reserved the right to seek an order for costs if successful on the appeal. If the Respondent wishes to pursue the issue of costs, I will accept brief written submissions from the Respondent within 15 days, with the Appellant’s responding submissions to be due within 10 days thereafter, and any reply within 5 days thereafter. Failing that, there will be no order as to costs.

“T. A. Heeney R.S.J.” Regional Senior Justice T. A. Heeney Date: April 18, 2017.