Court File and Parties

COURT FILE NO.: CV-17-568327 DATE: 20170630 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MILDRED MICAH AND: DR. PATRICIA CAVANAGH

BEFORE: Mr. Justice Monahan

COUNSEL: Joseph Berger, for the Appellant Kathryn A. Hunt, for the Respondent

HEARD: June 22, 2017

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board from a hearing of an application under section 39.1(1) of the Mental Health Act, R.S.O. 1990, Chapter M.7, and an appeal from an order of the Consent and Capacity Board from a hearing of an application under section 32(1) of the Health Care Consent Act, 1996 S.O. 1996, c. 2, Sch. A., as amended

AND IN THE MATTER OF MILDRED MICAH, a resident of Toronto, Ontario

Endorsement

[1] The Appellant, Ms. Mildred Micah, appeals from two decisions of the Consent and Capacity Board (the “Board”) issued following a January 18, 2017 hearing. The first decision, issued on January 18, 2017, dismissed an application (the “Form 48 Application”) brought under s. 39.1(1) & (3) of the Mental Health Act, R.S.O. 1990, c. M-7 (the “MHA”), seeking a review of the validity of a Community Treatment Order (“CTO”) issued in respect of Ms. Micah. The second decision, issued on January 19, 2017, dismissed an application (the “Form A Application”) brought pursuant to s. 32(1) of the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A (the “HCCA”), seeking a review of a finding that Ms. Micah lacked the capacity to consent to treatment under a Community Treatment Plan (the “CTP”).

[2] With respect to the Form 48 Application, the Board found that Ms. Micah met the statutory criteria for issuance of the CTO and it therefore confirmed the validity of the CTO that had been renewed by the Respondent, Dr. Patricia Cavanagh, on October 5, 2016. With respect to the Form A Application, the Board found that it had no jurisdiction to hear the application, since it had been brought contrary to the six-month time limit prescribed by s. 32(5) of the HCCA.

[3] For the reasons that follow, I would dismiss the appeals brought by Ms. Micah and confirm the validity of the decisions of the Board.

Background

[4] Ms. Micah is a 58-year old single woman who immigrated to Canada from Ghana in 1976. [1] She lives alone in a subsidized rental apartment and is supported on ODSP.

[5] Ms. Micah has an over 30-year history of schizoaffective disorder. She had several hospitalizations in the 1980’s. More recently, since 2011 she has had at least four hospitalizations at the Centre for Addiction and Mental Health (“CAMH”), in addition to numerous visits to the CAMH emergency department. Her most recent hospitalization was from May 2014 until August 2015, during which she was found to be incapable of consenting to treatment and a representative from the Office of the Public Guardian and Trustee became her substitute decision maker (“SDM”). When unwell, Ms. Micah exhibits prominent mood and psychotic symptoms, including marked affective lability, grandiosity, decreased sleep and hyper-religiosity. These symptoms are accompanied by highly disorganized, tangential thinking. Ms. Micah experiences auditory hallucinations and paranoid delusions which are often related to members of her treatment team.

[6] Each of Ms. Micah’s admissions to CAMH in the last five years has produced periods of general stability and improvement, when she has been compliant and cooperative with medication. During her most recent hospital admission, Ms. Micah showed marked improvement following treatment. When discharged in August 2015, Ms. Micah was less disorganized and her delusions had diminished.

[7] Although she would often go voluntarily to the hospital, her history also demonstrated a recurring pattern of noncompliance with medication upon being discharged. Following her discharge in August 2015, she immediately stopped taking one of her antipsychotic medications and refused to attend for treatment. A CTO and an accompanying CTP were issued in October 2015, with the approvals required in respect of Ms. Micah being provided by her SDM. A further capacity assessment was undertaken in March of 2016, which confirmed that Ms. Micah was incapable of consenting to treatment under the CTP. On April 7, 2016, the CTO was renewed, which incorporated the CTP. The matter came before the Board and, on April 28, 2016, the Board confirmed the validity of the CTO renewal and the finding of incapacity with respect to treatment decisions under the CTP.

[8] The April 2016 Board decisions confirming the CTO and the capacity assessment for purposes of the CTP were appealed to this Court. On December 16, 2016, those appeals were dismissed by Justice Archibald, who concluded that the Board had acted reasonably in affirming the CTO and in upholding the finding of incapacity with respect to treatment under the CTP. [2]

[9] Since a CTO expires after six months unless renewed, on September 28, 2016, Ms. Micah’s capacity to consent to antipsychotic medication and a CTP were assessed by a psychiatry resident, Dr. Laura Orlando, under the supervision of Dr. Cavanagh. Ms. Micah was found to be incapable of consenting to antipsychotic medication and the CTP, on account of her inability to appreciate the foreseeable consequences of stopping medication, and her inability to appreciate the stability the CTO had provided. On October 5, 2016, Dr. Cavanagh executed a CTO renewal, incorporating a CTP that was identical to the one contained in the previous CTO. On the same day, Ms. Micah filed the Form 48 Application alleging that the criteria for renewing the CTO were not met. On October 31, 2016, Ms. Micah filed the Form A Application, seeking a review of the finding of incapacity with respect to the CTP.

The Board Decisions

[10] At the Board hearing on January 18, 2017, the Board considered documentary evidence, including the relevant MHA forms, a clinical summary prepared by Dr. Cavanagh, progress notes from Ms. Micah’s clinical record, and four discharge summary reports from Ms. Micah’s previous hospitalizations at CAMH. The Board also heard testimony from Dr. Cavanagh. Ms. Micah was not present at the hearing and did not testify.

[11] At the outset of the hearing, Dr. Cavanagh brought a preliminary motion that the Board was precluded from hearing Ms. Micah’s Form A Application on account of the time limit prescribed by section 32(5) of the HCCA, which provides:

“If a health practitioner’s finding that a person is incapable with respect to a treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance.”

[12] As noted above, Ms. Micah had sought a review of the previous finding of incapacity that had been made in March of 2016, and the final disposition of that application had been rendered by Justice Archibald on December 16, 2016. Therefore, Dr. Cavanagh took the position that a new Form A Application with respect to the same or similar treatment could not be brought until June 16, 2017. Ms. Cavanagh also provided the Board with earlier Board decisions which had confirmed this interpretation of the time limit in s. 32(5). In a brief endorsement, the Board accepted these submissions and found that it had “no jurisdiction” to hear the Form A Application in respect of the finding of incapacity until June 16, 2017. [3]

[13] With respect to the Form 48 Application, the Board determined that the six criteria for a CTO set out in s. 33.1(4) of the MHA had been met. In its discussion of the requirement that the person or his/her SDM consent to the CTP in accordance with the rules for consent under the HCCA, the Board noted that Dr. Cavanagh’s evidence was that Ms. Micah was not capable of providing consent to the CTP. The Board was persuaded by what it described as the “clear, cogent and compelling evidence of Dr. Cavanagh” that, without the CTO, Ms. Micah would likely not comply with treatment in the community. In the Board’s view, Ms. Micah was unable to recognize the benefits of medication compliance and, further, she lacked the ability to appreciate that without the CTP, the reasonably foreseeable consequence for her would likely be substantial mental deterioration. This, in turn, would likely result in involuntary admission to a psychiatric facility.

[14] In the result, the Board unanimously confirmed the CTO in respect of Ms. Micah.

[15] Ms. Micah appeals the Board’s finding that it lacked jurisdiction to hear the Form A Application on account of the time limit in s. 32(5), as well as the Board decision confirming the CTO, pursuant to s. 80(1) of the HCCA.

Standard of Review

[16] It is common ground between the parties on this appeal that the Board’s decision dismissing the Form 48 Application should be reviewed on a standard of reasonableness. This decision applied the relevant law to the factual circumstances of Ms. Micah and therefore is one of mixed fact and law. The parties agree that the accepted standard of review for such decisions is reasonableness. [4]

[17] However, the parties differ on the standard of review applicable to the Board’s decision that it lacked jurisdiction to consider Ms. Micah’s Form A Application, on account of the six-month time limit in s. 32(5) of the HCCA. Counsel for Ms. Micah argues that this was a question of law which the Supreme Court of Canada determined in Starson v. Swayze, 2003 SCC 32 [5] to be reviewable on a standard of correctness. Moreover, the right of appeal under s. 80(1) of the HCCA is broad, permitting appeals on questions of law or fact or both, and the reviewing court is permitted to substitute its opinion for that of the Board. [6]

[18] However, counsel for Dr. Cavanagh, relying on more Supreme Court of Canada jurisprudence which has significantly reformulated the law regarding standard of review, argues that the Board’s interpretation of s. 32(5) should be reviewed on a standard of reasonableness. In particular, in Dunsmuir v. New Brunswick, 2008 SCC 9 [7], the majority opinion of Justices Bastarache and LeBel noted that deference will usually result where an administrative tribunal is interpreting its “own statute or statutes closely connected to its function, with which it will have particular familiarity”. [8] The Court also noted that, although a tribunal must be correct in its determination of a ‘true question of jurisdiction’, jurisdiction is intended “in the narrow sense of whether or not the tribunal had the authority to make the inquiry.” Questions of jurisdiction will be narrow, and the Court reiterated the caution in earlier jurisprudence against branding as jurisdictional issues that are doubtfully so. [9]

[19] More recently, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 [10], the Court considered the interpretation and application of a statutory provision imposing a time limit for the completion of an inquiry by an administrative decision maker. Relying on Dunsmuir, Justice Rothstein for the majority reiterated that the interpretation of a tribunal’s home statute will generally be reviewed on a standard of reasonableness, absent certain limited categories of issues that still attract the correctness standard of review. [11] Justice Rothstein also underlined the Court’s earlier comments in Dunsmuir regarding the narrowness of ‘true questions of jurisdiction’, noting that “[e]xperience has shown that questions of jurisdiction are narrow indeed”, particularly when the tribunal is interpreting its home statute. Based on this framework, the Court concluded that the interpretation of the statutory time limit before the Court in Alberta Teachers “engages considerations and gives rise to consequences that fall squarely within the Commissioner’s specialized expertise” and, accordingly, should be reviewed on a standard of reasonableness.

[20] For similar reasons I conclude that the Board’s interpretation of the time limit in s. 32(5) of the HCCA does not raise a ‘true question of jurisdiction’ and is entitled to deference. This follows from the wording of the provision, which provides that the six-month time limit applies “unless the Board gives leave in advance”. Moreover, s. 32(6) of the HCCA provides that the Board may give leave for a new application within a shorter time limit than six months, “if [the Board] is satisfied that there has been a material change in circumstances that justifies reconsideration of the person’s capacity.”

[21] In short, it is clear that the interpretation and application of the time limit in s. 32(5) directly engages the expertise of the Board. The Board has the jurisdiction to ‘enter upon the inquiry’ of whether the time limit in s. 32(5) should be applied; indeed, the provision mandates the Board to engage in such an inquiry. This includes the possibility of the Board being “satisfied” that there are circumstances that justify reconsideration of the person’s capacity by the Board, and leave being granted, despite the six-month time limit. [12]

[22] I conclude that the Board’s interpretation of s. 32(5) of the HCCA is entitled to deference and, accordingly, should be reviewed on a standard of reasonableness.

The Form A Application

[23] The first ground of appeal raised by counsel for Ms. Micah is that the Board erred in concluding that it was precluded from hearing the Form A Application on account of the time limit prescribed by s. 32(5) of the HCCA. The Appellant argues that the Board fell into legal error in determining that a comprehensive CTP constitutes a “treatment” as contemplated by s. 32(5).

[24] The Appellant recognizes that the HCCA definition of a “treatment” expressly includes a CTP. [13] Nevertheless the Appellant argues that a CTP involves fundamentally different treatment than any other contemplated by the HCCA and, therefore, should not be included in the definition of treatment for purposes of s. 32(5). The distinctive features of the CTP include the fact that it requires the consent of a number of other individuals, in addition to the individual (or their SDM) and the health practitioner who will administer the treatment. Moreover, a CTP cannot be implemented without a CTO, which the Appellant describes as a “broad, expansive, and fundamentally coercive legal mechanism which [has] the power to restrict where a person lives and goes, when, where, and how they interact with their treatment team and other individuals in their lives.” [14] By preventing Ms. Micah from challenging the capacity assessment undertaken on September 28, 2016 until June 18, 2017, the result is that Ms. Micah is subjected to a CTO on the basis of a finding of incapacity made on March 21, 2016.

[25] I would note that counsel for the Appellant does not take issue with the Board’s finding that the “final disposition” of the capacity assessment undertaken on March 21, 2016 was not rendered until December 16, 2016, the date of Archibald J.’s disposition of her appeal to this Court. Moreover, it is conceded that the treatment proposed in the September 2016 CTP was identical to that incorporated in the April 2016 CTP, and it is, therefore, a finding of incapacity with respect to the “same or similar” treatment, as specified in s. 32(5) of the HCCA.

[26] I recognize and appreciate counsel’s concern that the practical impact of the Board’s decision is that Ms. Micah will be deprived of the opportunity to review the finding of incapacity with respect to the September 2016 CTP for eight months, until June 16, 2017. Nevertheless, I agree with the Board that this outcome is mandated by the relevant legislative scheme. In addition to the fact that the definition of “treatment” in the HCCA expressly includes a CTP, the Form A review of the finding of incapacity is brought on the basis of s. 32(1), which provides:

“A person who is the subject of a treatment may apply to the Board for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.”

[27] In other words, Ms. Micah is seeking Board review of the finding of incapacity with respect to the CTP on the basis that the CTP involves “treatment” for the purposes of s. 32(1). But counsel have it both ways, arguing that a CTP involves “treatment” for purposes of s. 32(1) but not for s. 32(5). Clearly, the term “treatment” in both subsections must have the same meaning. In any event, the fact that the HCCA specifically defines “treatment” as including a CTP is a full answer to the argument of the Appellant on this point.

[28] I conclude that the Board’s determination that Ms. Micah could not challenge the finding of incapacity in relation to the CTP because of the time limit in s. 32(5) to be reasonable. In fact, although not necessary in order to uphold the Board’s decision on this point, in my view the Board’s interpretation of s. 32(5) is correct. I would therefore dismiss the first ground of appeal.

The Form 48 Application

[29] Counsel for Ms. Micah argues that the Board erred in concluding that all criteria required for issuance of the CTO had been met. In particular, counsel argues that the evidence did not establish that Ms. Micah would be likely to suffer substantial mental deterioration without a CTO in place. Counsel for Ms. Micah relies on Dr. Cavanagh’s evidence that, even without a CTO in place, if Ms. Micah were to refuse treatment the team would try to bring her to hospital before substantial mental deterioration could occur. Counsel also argues that there would be other possible legal mechanisms under the MHA which could be utilized to compel Ms. Micah to take her medication in the case of a refusal.

[30] There was ample evidence before the Board, in the form of Dr. Cavanagh’s testimony, to support its conclusion that, absent a CTO, there was a likelihood that Ms. Micah would suffer substantial mental deterioration. Dr. Cavanagh noted instances where Ms. Micah had initially resisted medication, and had changed her mind upon being reminded that the CTO was in place. In Dr. Cavanagh’s opinion, the absence of the CTO would likely lead to Ms. Micah refusing medication and that, within a matter of weeks to months, this would result in a worsening of the psychotic symptoms she experiences on an ongoing basis, including auditory hallucinations, paranoia, depressive symptoms and mania. The purpose of having the CTO in place is to proactively ensure that Ms. Micah will continue her medication, thereby avoiding the ‘crisis’ that would ensue if Ms. Micah refused medication. [15]

[31] The Board carefully reviewed this evidence and concluded that all of the criteria required for issuance of the CTO had been met. This conclusion was clearly open to the Board on the evidence. In the circumstances, the Board’s conclusion was not unreasonable.

Conclusion

[32] I would dismiss Ms. Micah’s appeals of the Board’s decisions in respect of the CTP and the CTO. Dr. Cavanagh does not seek costs and no costs are ordered.

Monahan, J.

Date: June 30, 2017

[1] In preparing this summary of Ms. Micah’s circumstances and medical history, I have relied on the record that was before the Board, as well as the transcript of the Board hearing on January 18, 2017. [2] Micah v. Cavanagh, 2016 ONSC 7924 (“Micah v. Cavanagh 2016”). [3] Order/Endorsement of the Board, Record of Proceedings before the Consent and Capacity Board in the matter of Mildred Micah, January 19, 2017, pp. 21-22. [4] The same conclusion was reached by Justice Archibald in Micah v. Cavanagh 2016, at paragraphs 11-12. [5] 2003 SCC 32, [2003] 1 S.C.R. 722 at paragraph 110. [6] HCCA, s. 80(1) & (10). [7] 2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”). [8] Dunsmuir, at paragraph 54. [9] Dunsmuir, at paragraph 59. [10] 2011 SCC 61, [2011] 3 S.C.R. 654 (“Alberta Teachers”). [11] Matters that continue to be reviewed on the standard of correctness include “constitutional questions, questions of law that are of central importance to the legal system as a whole and are outside the adjudicator’s expertise….questions regarding the jurisdictional lines between two or more competing specialized tribunals.” See Alberta Teachers at paragraph 30. [12] In fact, the Board had so concluded in one of the precedents provided by Dr. Cavanagh at the hearing. See In the Matter of JS, HA-11-0374, May 15, 2011. [13] See s. 2(1) of the HCCA, which defines “treatment” as “anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan …” (emphasis added). [14] Factum of the Appellant, paragraph 38. [15] See generally the testimony of Dr. Cavanagh, Transcript of Proceedings Before the Consent and Capacity Board, January 18, 2017, at pp. 52-66.