Court File and Parties

OTTAWA COURT FILE NO.: 16-70927 DATE: 2017/06/07

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of The Consent and Capacity Board Pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, as amended, AND IN THE MATTER OF GAYLE WHALEN A patient at The Ottawa Hospital, Civic Campus Ottawa, Ontario

BETWEEN:

Gayle Whalen Applicant – and – Dr. Ramprasad Bismil Respondent

Counsel: Celine Dostaler, for the Applicant Mark Faassen, for the Respondent

HEARD: May 12, 2017

REASONS FOR DECISION

CORTHORN J.

Overview

[1] Gayle Whalen (“Ms. Whalen”) appeals the decision of the Consent and Capacity Board (the “Board”) that she is incapable of consenting to treatment in the form of anti-psychotic medications and mood stabilizers. Ms. Whalen also appealed the decision of the Board confirming her involuntary status as a patient of the Ottawa Hospital – Civic Campus. However, that aspect of the appeal was not pursued in submissions to the Court.

[2] The hearing before the Board was held on December 7, 2016 (the “Hearing”). Ms. Whalen was represented by counsel at the Hearing. The Board’s decision was released the same day (the “Decision”), with written Reasons for Decision (“Reasons”) delivered on December 15, 2016.

[3] The notice of appeal is dated December 8, 2016. A single ground is identified in support of the appeal from both aspects of the Board’s decision – that the Board members erred in law by (a) confirming Ms. Whalen’s involuntary status, and (b) finding that Ms. Whalen was incapable with respect to treatment. I note that in the factum delivered on behalf of Ms. Whalen, it is submitted that the Board erred both in law and with respect to questions of mixed fact and law.

[4] Given that the appeal with respect to involuntary status was not pursued, the only response on behalf of Dr. Bismil relevant to this appeal is his response on the issue of capacity to consent to treatment. In that regard, Dr. Bismil submits that the Board applied the proper legal test for capacity and made a reasonable decision.

Background

[5] Ms. Whalen was born in November 1962. She was 54 years old when, on November 22, 2016, she was admitted to the Ottawa Hospital – Civic Campus (the “Hospital”). Immediately prior to that admission, Ms. Whalen had been living in her car.

a) Previous History

[6] Ms. Whalen’s history includes what Dr. Bismil described to the Board as “coming to psychiatric contact … in Newfoundland in 1995 with a psychotic episode.” [1] That episode is described in a 2005 document from the Hospital as a month-long admission to the Newfoundland General Hospital in St. John’s in 1995. Ms. Whalen presented in 1995 “with extreme lability and irritability. She had flight of ideas and persecutory and grandiose delusions. She had no insight. She was treated and improved with Valproic Acid … and Haldol.” [2]

[7] In March 2005, Ms. Whalen was brought to the Hospital by a member of the Ottawa Police Services Mobile Crisis Team. She was admitted to the Hospital under a Form 1, which was followed by certification under Form 3, the latter because she denied being ill and wanted to leave the Hospital. As a result of her lack of insight at the time, she was declared incapable to decide psychiatric treatment. Over time, Ms. Whalen made some progress and the evidence of psychotic thinking dissipated. She was discharged in early May 2005. [3]

[8] Ms. Whalen was also admitted to the Ottawa Hospital in 2012. [4] That admission was for 43 days and said to be the result of a manic episode. Ms. Whalen was discharged with a prescription for multiple medications. She was followed on an out-patient basis at the Ottawa Hospital – General Campus. [5]

b) November 2016 Admission

[9] On November 22, 2016, the Ottawa Police Services brought Ms. Whalen to the Hospital. One of the police officers in attendance with Ms. Whalen described that she had been observed engaging in reckless driving. Ms. Whalen’s driving included speeding near pedestrians and almost running over the foot of another police officer.

[10] The Record of Proceedings (the “Record”) for the Hearing includes a Psychiatry Consultation report based on an assessment of Ms. Whalen carried out on the date of admission. The author of the report is not identified. Ms. Whalen was described by the author of the report as “clearly manic … labile +++, intimidating and requiring prn medications.” The author’s impression was that Ms. Whalen suffers from Bipolar Disorder Type 1 and that she was manic at the time of the consultation. [6]

[11] On November 28, 2016 a Form 33 pursuant to the Mental Health Act was completed by Dr. M.E. Allan. Pursuant to the form, Ms. Whalen was notified that in Dr. Allan’s opinion she was “not mentally capable to consent to treatment of a mental disorder.” [7] Ms. Whalen appealed to the Board from the finding with respect to incapacity to consent to treatment.

[12] At the Hearing, Dr. Bismil testified that for a number of days following Ms. Whalen’s admission to the Hospital either he or the physician by whom he was assisted saw Ms. Whalen. Dr. Bismil’s evidence was that “Ms. Whalen did not have the ability to understand the information pertaining to the situation or appreciate the reasonably foreseeable consequences of her choices.” [8] Dr. Bismil explained that Ms. Whalen’s inability and lack of appreciation were the result of the psychosis from which she was suffering at the time.

[13] Dr. Bismil summarized his opinion of Ms. Whalen’s condition as follows:

… Ms. Whalen has a longstanding history of psychotic illness characterized by delusions, disorganization, and profound lack of insight. She has had multiple hospitalizations with similar conditions.

She continues to act based on these delusions and this places [her at] significant risk of serious bodily harm to another person and also at risk of serious physical impairment to the patient.

She has consistently lacked the ability to understand the information pertaining to the situation and appreciate the reasonably foreseeable consequences of her choices. [9]

[14] Dr. Bismil testified that his diagnosis of Ms. Whalen’s condition was that of schizoaffective disorder, a combination of psychotic symptoms, and some mood symptoms. The proposed initial treatment was anti-psychotic medications. It was Dr. Bismil’s evidence that he encountered difficulties in discussing the proposed treatment with Ms. Whalen for a number of reasons including that she (a) refused to accept that she suffered from the condition(s) diagnosed and (b) expressed the belief that she was the victim of a plot against her by physicians and the police. [10]

[15] Ms. Whalen testified that she understood that Dr. Bismil is of the opinion that she is suffering from schizoaffective disorder; that the condition can be treated by medication to address the chemical imbalance which is part of the disorder; and that she had previously been advised by her neurologist not to take the proposed medication because it would cause Ms. Whalen to experience tremors. [11]

[16] At the conclusion of the Hearing, the Board issued the Decision confirming the finding of the health-practitioner that Ms. Whalen is incapable with respect to antipsychotic medications and mood stabilizers. [12] In its Reasons, the Board addressed in two parts the issue of capacity to consent to treatment.

[17] First, the Board concluded that “the evidence did not establish that Ms. Whalen was unable to understand the information relevant to making a decision about the treatment in question.” [13]

[18] Second, the Board considered the evidence with respect to Ms. Whalen’s delusional, grandiose, and persecutory beliefs; her lack of insight; her denial that she suffered from a mental disorder; and her denial that she was in need of treatment. The Board concluded that Ms. Whalen’s denial that she suffers from a mental disorder is part of her lack of insight into reality and demonstrative of her inability to appreciate the consequences of her decisions regarding treatment. The Board ultimately concluded that the evidence established that Ms. Whalen was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the proposed treatment. [14]

The Health Care Consent Act

[19] Capacity to consent to treatment is governed by section 4 of the Health Care Consent Act, 1996 (the “Act”). [15] Section 4 of the Act provides as follows:

(1) 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.

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

[20] In summary, a person is presumed to be capable with respect to giving consent to treatment. The onus of proving that a patient is incapable in that regard is on the health-care practitioner.

[21] A finding of incapacity may be premised on establishing that the individual fails to satisfy one part or both parts of the criteria set out in section 4(1). In the matter before the Court, for example, the Board concluded that only the second criterion was not met. That conclusion alone was sufficient to support the Board’s confirmation of the health-practitioner’s finding of incapacity with respect to antipsychotic medications and mood stabilizers.

[22] As highlighted in the Decision, Ms. Whalen was prohibited from making a new application to the Board with respect to the issue of capacity for six months from the date of the Decision. That six-month period expired on June 7, 2017.

Standard of Review

[23] Pursuant to section 80(1) of the Act, this Court has jurisdiction to hear an appeal, on a question of fact or law or both, from a decision of the Board regarding incapacity to consent to treatment. The powers of this Court on appeal are prescribed by section 80(10) of the Act, as follows:

On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[24] The parties are in agreement that the standard of review for a question of law is correctness and for a mixed question of fact and law case is reasonableness. [16]

[25] The purpose of reasons is to demonstrate “justification, transparency and intelligibility.” [17] A reviewing court is required to read the reasons of the administrative tribunal, whose decision is being appealed, together with the outcome and determine “whether the result falls within a range of possible outcomes.” [18]

[26] Dealing specifically with the Board, the Supreme Court of Canada articulated that a decision of the Board must be upheld, provided it is among the range of conclusions that could reasonably be reached on the law and the evidence:

The legislature assigned to the Board the task of hearing the witnesses and assessing evidence. 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. As Binnie J. states in R. v. Owen, [2003] 1 SCR 779, 2002 SCC 33 … at para 33: “If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene.” The fact that the reviewing court would come to a different conclusion does not suffice to set aside the Board’s conclusion. [19]

[27] The Board, as a specialized tribunal, is entitled to “considerable deference” given that it is comprised of individuals who have experience in dealing with the issue of capacity to consent to treatment. [20] I note that the Board for Ms. Whalen’s appeal was comprised of a senior lawyer, a psychiatrist member, and a member of the public.

Analysis

1) The Legal Test

[28] I am satisfied that the Board applied the two-part test set out in section 4(1) of the Act. The first part of the test is articulated and was considered by the Board at page 6 of its Reasons. At page 7 of its Reasons the Board considered the second part of the test. In addition, the Board understood that the onus of proof was on Dr. Bismil to establish incapacity and to do so on the standard of a balance of probabilities. The Board addressed the onus and standard of proof at pages 5 and 6 of the Reasons.

2) The Finding of Incapacity

[29] Ms. Whalen was found by the Board to be incapable of consenting to treatment solely on the basis of the second criterion set out in section 4(1) of the Act (the “Second Criterion”). The Board found that Ms. Whalen lacks the ability to appreciate the reasonably foreseeable consequences of her decision or lack of decision to accept treatment. Given the Board’s reliance exclusively on that criterion, it was the focus of submissions to the Court.

[30] On behalf of Ms. Whalen it was highlighted that the Board found that Ms. Whalen has a level of understanding about the condition with which she has been diagnosed by Dr. Bismil. Ms. Whalen submits that such a finding is inconsistent with the Board’s finding with respect to the Second Criterion. While I agree with the finding made, I disagree with the suggested impact of that finding. Such a finding does not undermine the Board’s finding of incapacity based on the Second Criterion.

[31] Much of Dr. Bismil’s evidence before the Board addressed the difficulties he and his colleagues encountered when attempting to discuss treatment with Ms. Whalen. Dr. Bismil testified that the discussions would come to an end, in essence without a meaningful discussion of treatment, because Ms. Whalen denied that she suffered from the mental disorder(s) diagnosed by the physicians.

[32] It is clear from the Hearing Transcript that in her evidence before the Board, Ms. Whalen did not admit that she continued to suffer from symptoms of schizoaffective disorder. Ms. Whalen’s inability to acknowledge that she remained symptomatic and in need of treatment was highlighted by the Board in support of its finding with respect to the Second Criterion.

[33] I agree with the Board that Ms. Whalen’s denial that she (a) suffers from the mental disorder(s) with which she has been diagnosed and (b) was in need of treatment is evidence of her lack of insight into reality and her inability to appreciate the consequences of her decision (or lack of decision) regarding treatment.

[34] Ms. Whalen is critical of the Board for considering evidence of her conduct as it relates to businesses she is said to operate, intellectual property claims, and litigation. In my view the Board’s consideration of that evidence was secondary to its consideration of Ms. Whalen’s persisting denial that she suffers from a mental health disorder and is in need of treatment. I agree with the submission on behalf of Dr. Bismil that Ms. Whalen’s conduct in regard to the other matters was merely “a piece of the puzzle” considered by the Board.

[35] The approach taken before this Court on behalf of Ms. Whalen was to review, paragraph-by-paragraph, each of the four paragraphs in the Reasons in which the Board addressed the Second Criterion. [21] In my view, such an approach is contradictory to that established by the case law and discussed above.

[36] I agree with the submissions on behalf of Dr. Bismil that the four paragraphs in which the Board summarized its finding with respect to the Second Criterion are a reflection of “ample evidence” that:

• Ms. Whalen suffered from a mental disorder;
• The manifestations of Ms. Whalen’s mental disorder included delusional, grandiose, and persecutory beliefs and lack of insight;
• The consequence of those manifestations is that Ms. Whalen denied that she suffered from a mental disorder and was in need of treatment; and
• Ms. Whalen was not able to evaluate and apply her intellectual understanding of schizoaffective disorder to her own circumstances, and was unable to weigh the foreseeable risks and benefits of a decision or lack thereof.

[37] I note that Dr. Bismil’s opinion with respect to Ms. Whalen’s incapacity regarding treatment was corroborated by (a) the opinions expressed by other health practitioners whose records were before the Board and (b) Ms. Whalen’s evidence before the Board.

[38] I find that the Reasons, when considered in their entirety and read together with the outcome, clearly demonstrate that the result falls within a range of possible outcomes.

Disposition

[39] The Decision of the Board dated December 7, 2016, that Ms. Whalen is incapable with respect to treatment, in particular with respect to antipsychotic medications and mood stabilizers, is confirmed.

[40] Dr. Bismil is not seeking costs of the matter.

[41] In summary, Ms. Whalen’s appeal is dismissed without costs.

Madam Justice Sylvia Corthorn Date: June 7, 2017

Footnotes

[1] Hearing Transcript, at page 9. [2] May 3, 2005 Psychiatry Discharge Summary, Ottawa Hospital – Civic Campus, Record of Proceedings, at p. 33. [3] Ibid, at pp. 32-34. [4] It is unclear whether Ms. Whalen was admitted to the Hospital at the Civic Campus or the General Campus in 2012. [5] November 22, 2016 Psychiatry Consultation, Ottawa Hospital – Civic Campus, Record of Proceedings, at p. 36. [6] Ibid, at pp. 36-37. [7] November 28, 2016 Form 33 Mental Health Act, Record of Proceedings, at p. 30. [8] Hearing Transcript, at p. 12. [9] Hearing Transcript, at pp. 12-13. [10] Hearing Transcript, at pp. 14 and 17-18. [11] Hearing Transcript, at pp. 47-48. [12] December 7, 2016 Decision of the Board, Record of Proceedings, at p. 15. [13] December 15, 2016 Reasons for Decision (p. 6), Record of Proceedings, at p. 8. [14] December 15, 2016 Reasons for Decision (p. 7), Record of Proceedings, at p. 9. [15] S.O. 1996, c. 2. [16] Starson v. Swayze, 2003 SCC 32, at para. 5 and Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 45. [17] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. [18] Nurses’ Union v. Newfoundland and Labrador, 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14. [19] Starson v. Swayze, 2003 SCC 32, at para. 5. [20] M.T. v. Bibr, 2015 ONSC 7029, at para. 34. [21] December 15, 2016 Reasons for Decision (p. 7), Record of Proceedings, at p. 9.