Court File and Parties

COURT FILE NO.: CV-16-0565786 DATE: 20170714 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

BRIAN ALTA Appellant – and – DR. PUSHPAL DESARKAR Respondent

Counsel: Jonathan Fernandes for the Appellant Kendra Naidoo for the Respondent

HEARD: June 30, 2017

REASONS FOR JUDGMENT

FAVREAU J. :

Introduction

[1] The appellant, Brian Alta, appeals the decision of the Consent and Capacity Board (the “Board”) issued on December 7, confirming his involuntary status at the Centre for Addiction and Mental Health (“CAMH”) pursuant to section 20(5) of the Mental Health Act, RSO 1990, C M.8 (“MHA”).

[2] Mr. Alta was admitted to CAMH on November 2, 2016, and was subject to a Form 4 dated December 2, 2016, signed by the respondent, Dr. Desarkar. Mr. Alta requested a review of his involuntary status at a hearing held by the Board on December 6, 2016. In a decision issued on December 7, 2016 with written reasons subsequently released on December 19, 2016, a five member panel of the Board confirmed Mr. Alta’s involuntary status. The Board found that Mr. Alta had a mental disorder that would likely result in serious physical impairment unless he remained at CAMH, and that he was not a suitable candidate for voluntary admission.

[3] For the reasons that follow, I find that the Board’s decision was reasonable and that the Board did not make any reviewable errors of law. Accordingly, the appeal is dismissed.

Applicable Legislation

[4] Section 20(5) of the MHA provides as follows:

20.(5) The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from a mental disorder of a nature of quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal voluntary patient.

[5] Pursuant to section 39(1) of the MHA, an involuntary patient can apply to the Board “to inquire into whether or not the prerequisites set out in the Act for admission or continuation as an involuntary patient are met”. In accordance with subsections 41(2) and (3) of the MHA, on an application for review, the Board has the power to confirm or rescind the involuntary status of a patient.

[6] Section 80(1) of the Health Care Consent Act, 1996, SO 1996, c.2, Sched. A (the “HCCA”) provides that any party can appeal a decision of the Board to the Superior Court on questions of law or fact or both. On an appeal to the Superior Court, in accordance with section 80(10) of the HCCA, the Court has all of the powers of the Board, can substitute its opinion for that of the practitioner, or can refer the matter back to the Board.

Factual Background

[7] At the time of the hearing, Mr. Alta was 60 years old. He did not have dependents or any other family members playing an active role in his life. The Public Guardian and Trustee was Mr. Alta’s guardian for personal care. Mr. Alta lived with his mother until her death in 2000. He then lived alone in supportive housing until he was evicted in 2016. His eviction resulted from an incident when his landlord attempted to enter his apartment to make repairs, at which time Mr. Alta responded aggressively toward his landlord and support workers, and ultimately pulled a knife on police officers who were called to the scene. This incident led to his admission at CAMH.

[8] Mr. Alta has an Unspecified Intellectual Disability which he likely has had since birth. He also has a diagnosis of “Major Neurocognitive Disorders due to multiple etiology” resulting from a brain injury suffered in a car accident dating to when he was 15 years old and from a stroke that was diagnosed in 2014. In combination, these psychiatric diagnoses have left Mr. Alta with significant cognitive deficits that affect his attention, memory, language and executive functions. The evidence before the Board indicated that the lesions in Mr. Alta’s brain were causing a “mixed picture of Alzheimer’s and vascular dementia”.

[9] Prior to his admission at CAMH, Mr. Alta’s memory and ability to function had been progressively declining. He was experiencing difficulties with basic tasks such as feeding and cleaning himself, taking his medication as prescribed and keeping his apartment clean. There was evidence before the Board that Mr. Alta had been evicted from supportive housing on at least two previous occasions following events similar to those that led to his admission to CAMH. He had also been hospitalized three times due to falls in the year prior to his admission to CAMH.

[10] The Board also heard evidence about Mr. Alta’s condition during his time at CAMH. Mr. Alta needed frequent reminders and assistance with basic tasks such as eating and cleaning himself. He often got lost and needed assistance finding his room. He also tended to avoid taking his medication by putting pills in his pockets or keeping them in his cheeks.

[11] There was also evidence that if Mr. Alta were to be released from CAMH, he would have nowhere to live. CAMH was actively trying to find a place for him to live, but he was hard to house due to his age, his refusal to accept supports in the past and waiting lists. There was also evidence that Mr. Alta did not always understand that he did not have a home in the community.

The Board’s Decision

[12] The hearing before the Board was heard by a five member panel. Mr. Alta was represented by a lawyer and Dr. Desarkar represented himself.

[13] At the beginning of its reasons, the Board noted that on a review of a patient’s involuntary status, the onus of proof is always on the physician to prove the case on the balance of probabilities. The Board must be satisfied that the physician has discharged the onus on the basis of cogent and compelling evidence. The Board also noted that it can consider and accept hearsay evidence, but that such evidence is to be carefully weighed.

[14] The Board went on to apply the test for involuntary status under section 20(5) of the MHA.

[15] The Board first found that Mr. Alta suffers from a mental disorder. The Board noted that the MHA defines “mental disorder” broadly as “any disease or disability of the mind”. In reaching its conclusion that Mr. Alta suffers from a mental disorder, the Board relied on Dr. Desarkar’s opinion that:

[T]he combination of BA’s pre-existing intellectual disability and recent onset dementia significantly reduced BA’s ability to cope with day to day demands, problem solve, and regulate emotion, anger and behaviour. Further, BA was unable to retain information and counselling to modify his aggressive behaviours and tendencies. Dr. Desarkar’s evidence was that both BA’s conditions were likely to be chronic and progressive conditions.

[16] The Board then applied section 20(5)(a)(iii) of the MHA, and found that Mr. Alta’s mental disorder was of a nature or quality that likely would result in his serious physical impairment unless he remained in the hospital. In reaching this conclusion, the Board considered three factors separately, namely activities of daily living, retaliation and medication mismanagement.

[17] Finally, the Board found that Mr. Alta was not suitable for voluntary admission at CAMH. The Board based this conclusion on findings that Mr. Alta would not willingly stay in the hospital or willingly stay to receive treatment, care and observation of his mental condition.

Issues and Analysis

[18] On this appeal, Mr. Alta does not take issue with the Board’s finding that he suffers from a mental disorder nor does he take issue with the Board’s findings in relation to the impact of his mental disorder on his activities of daily living. However, he argues that the Board made errors when it considered retaliation and medication mismanagement as relevant factors in assessing the risk of serious physical impairment. He also argues that the Board erred in its assessment of the evidence of Mr. Alta’s suitability for voluntary admission.

[19] Therefore, the issues to be decided on this appeal are as follows:

a. What is the appropriate standard of review? b. Did the Board err when it considered the risk of retaliation and issues of medication mismanagement in finding that Mr. Alta was at risk of serious physical impairment? c. Did the Board err in finding that Mr. Alta was not suitable for admission on a voluntary basis?

Standard of Review

[20] The appellant and respondent agree that the standard of review on questions of fact or mixed law and fact is reasonableness. However, they disagree on the issue of whether questions of law are to be decided on a standard of reasonableness or correctness.

[21] Mr. Alta concedes that the issues raised in relation to his suitability for admission on a voluntary basis are issues of fact, and are therefore to be decided on a standard of reasonableness. However, he argues that the issues raised in relation to the relevance of retaliation and medication mismanagement to the assessment of serious physical impairment are issues of law, and should therefore be considered on a standard of correctness.

[22] In Starson v. Swayze, 2003 SCC 32, the Supreme Court found that the standard of review from decisions of the Board in respect of questions of fact or mixed fact and law is reasonableness. Writing in dissent, but agreeing on the issue of the standard of review, McLachlin CJC held at para 35:

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.

[23] In Starson, at paras 5 and 110, the Supreme Court also held that questions of law were to be decided on a standard of correctness. However, Starson was decided before the Supreme Court’s decisions in Dunsmiur v. New Brunswick, 2008 SCC 9 at para 54 and Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61 at para 39, wherein the Supreme Court established that questions of law that fall within a tribunal’s expertise and that are not of central importance to the development of the law as a whole are to be reviewed on a standard of reasonableness. During argument, counsel for Dr. Desarkar indicated that the Court of Appeal for Ontario currently has a decision under reserve that is considering this apparent inconsistency.

[24] For the purposes of this appeal, I do not believe that it is necessary for me to resolve this issue. I agree with counsel for Dr. Desarkar that the questions in issue on this appeal are questions of mixed law and fact or fact alone and are therefore all to be reviewed on a standard of reasonableness. The issues of whether retaliation and medication mismanagement are relevant to the question of serious physical impairment require consideration of the application of the legislation to the facts in this case, and are therefore properly characterized as issues of mixed fact and law, see Starson, at para 84. In any event, as set out below, it is my view that the Board’s interpretation and application of section 20(5) of the MHA was correct.

Serious Physical Impairment

[25] As noted above, in reaching the conclusion that Mr. Alta was properly admitted as an involuntary patient, the Board relied on three separate considerations, namely activities of daily living, retaliation and medication mismanagement.

[26] Mr. Alta’s lawyer does not take issue with the Board’s findings with respect to activities of daily living. However, he argues that the Board erred in considering the issues of retaliation and medication mismanagement when it found that Mr. Alta is at risk of serious physical impairment.

[27] Counsel for Dr. Desarkar argues that the Board’s findings in relation to activities of daily living is sufficient for the purpose of making a finding that Mr. Alta is at risk of serious physical impairment. Therefore, even if the Board did improperly consider retaliation and medication management, arguments with which Dr. Desarkar disagrees, the Board’s overall conclusion should remain unaffected.

[28] I agree with the respondent that the Board’s finding in relation to activities of daily living is sufficient to support its finding of serious physical impairment. In any event, I am satisfied that the Board did not make any errors in considering retaliation and medication mismanagement as relevant to the issue of serious physical impairment.

Activities of Daily Living

[29] The Board conducted a detailed review of the evidence regarding the challenges Mr. Alta faces in his activities of daily living. The evidence included findings that:

• Mr. Alta has been unable to take care of basic tasks such as cleaning himself, eating, preparing food and going to the grocery store.
• Mr. Alta’s support worker, Jeff, observed that Mr. Alta’s apartment was a health hazard, having observed the presence of garbage “all over the place”, bed bugs and feces on the walls.
• Mr. Alta got lost and did not know his own address.
• Mr. Alta had overdosed on Tylenol on one occasion due to confusion over his medication.
• When Mr. Alta was brought to CAMH, he was described as having an “unkempt appearance with bad personal hygiene and a malodorous smell”.
• While at the hospital, Mr. Alta required significant supports. He had difficulty finding his room, and required prompts for going to the bathroom, cleaning himself and eating.
• Administering medication to Mr. Alta at CAMH was challenging because he tended to keep pills in his cheeks or place them in his pockets.

[30] At the hearing before the Board, Mr. Alta’s lawyer contested the admission of some of this evidence related to Mr. Alta’s activities of daily living on the basis that it was hearsay evidence gleaned from reports prepared by Mr. Alta’s support worker, Jeff, who did not testify at the hearing. However, on this appeal, Mr. Alta does not dispute the Board’s findings in relation to Mr. Alta’s activities of daily living. In addition, I agree with the Board’s finding that it has the authority to accept hearsay as long as it is carefully considered and weighed. The admissibility of hearsay evidence before the Board was confirmed in Starson, para. 115, wherein the Court held that the weight to be given to hearsay evidence is left to the Board’s discretion which must “be careful to avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability”. In this case, the Board accepted the reliability of the evidence because Dr. Desarkar had been “actively in touch” with Mr. Alta’s support worker on many occasions, and the support worker appeared to be the only support in Mr. Alta’s life while Mr. Alta was in the community, and that he had assisted Mr. Alta with many aspects of his life.

[31] At the conclusion of the section dealing with activities of daily living, the Board held that:

The panel accepted the evidence that BA had been having significant difficulty with activities of daily living while he had been living in the community, as had been reported by Jeff, and also accepted by Dr. Desarkar’s evidence that these difficulties had continued while BA had been living in the hospital. While in the hospital BA required prompting with almost every aspects of daily living. The panel found that these difficulties were a direct result of BA’s mental condition. Further, BA currently had nowhere to live if he left the hospital, and the panel agreed with Dr. Desarkar that BA would have great difficulty navigating the shelter system in Toronto. As a result, the panel found that there was sufficient evidence to conclude that BA was likely to suffer serious physical impairment as a result of his mental condition if he was not in the hospital, as he would have nowhere to live, was likely to get lost, and would not be able to manage necessary activities without significant support.

[32] While the Board goes on to consider the issues of retaliation and medication mismanagement, I am satisfied that based on the Board’s review of evidence regarding Mr. Alta’s activities of daily living and the Board’s conclusion in respect of that evidence, this factor was sufficient on its own to support the Board’s finding that Mr. Alta’s condition at the time of the hearing met the test under section 20(5)(a)(iii) of the MHA.

[33] Mr. Alta’s lawyer relies on the Board’s conclusion at the end of the entire section dealing with serious physical impairment to argue that the activities of daily living were not sufficient to support the Board’s conclusion. The Board concluded as follows:

After considering all of the evidence presented with respect to BA’s activities of daily living, and the risk of retaliation and medication mismanagement, the panel concluded that there was sufficient evidence to conclude that BA’s mental disorder was of a nature or quality that likely would result in serious physical impairment to BA unless he remained in hospital.

[34] However, reading the Board’s discussion and conclusion in the section dealing with Mr. Alta’s activities of daily living, it is evident that the Board was satisfied based on this factor alone that Mr. Alta would face serious physical impairment if he did not remain in the hospital. The sentence relied on by Mr. Alta’s lawyer is simply a concluding statement closing off the section of the reasons dealing with serious physical impairment.

[35] Even if the Board’s finding in this respect cannot stand on its own, as set out below I accept that issues of retaliation and medication mismanagement are relevant to the consideration of serious physical impairment and that the Board did not make any errors in considering these factors.

Retaliation

[36] Mr. Alta argues that the Board made an error in considering the issue of retaliation because as a matter of policy it is a factor that should not be given any weight. He argues that giving weight to the risk of retaliation has the effect of providing an excuse to the criminal conduct of third parties who may retaliate against Mr. Alta in response to some of his aggressive behaviours.

[37] In considering the risk of retaliation, the Board had regard to Mr. Alta’s behaviours at the hospital and in the community. For example, with respect to Mr. Alta’s behaviour in the hospital, Dr. Desarkar’s testimony included evidence of two incidents in which Mr. Alta was persistently threatening and violent with staff. In one instance Mr. Alta threatened to “cut staff’s head off and throw it out the window”. In another instance, Mr. Alta tried to “punch security”. It was Dr. Desarkar’s opinion that:

[I]f these types of incidents had occurred in the community (on the streets or in the shelter system), BA would have suffered serious physical impairment as a result of retaliation. Dr. Desarkar explained that staff at CAMH were trained in how to deal with aggressive behaviours, and there was supervision, security and medication to assist them, but people in the community did not have this training or an understanding of these issues.

[38] Similarly, with respect to Mr. Alta’s behaviour in the community, the Board noted that Mr. Alta had previously been aggressive towards his landlord and worker, resulting in the need for police intervention, and that there had been at least two similar incidents in the past.

[39] Based on the evidence it considered, there is no doubt that it was reasonable for the Board to reach the conclusion it did that Mr. Alta “was likely to suffer serious physical impairment in the form of physical harm, or eviction, as a result of exhibiting these aggressive behaviours in the community”. I do not accept that the Board should have disregarded this compelling risk to Mr. Alta on public policy grounds.

[40] First, on its face, the risk of retaliation is a relevant consideration to the issue of whether Mr. Alta will suffer “serious physical impairment” if he does not remain in the hospital. A history of aggressiveness and violence do put Mr. Alta at risk of responsive physical violence or eviction. Mr. Alta’s argument invites the Board and this Court turn a blind eye to this risk.

[41] Second, retaliation is a factor that has previously been considered as relevant by the Board: AG (Re) at p 9. While prior Board decisions are not binding on this Court, they are persuasive as an indication of the types of factors the board typically considers in assessing the risk of serious physical impairment.

[42] Finally, there is no evidence or authority in support of the proposition that accepting retaliation as a risk factor would have any effect in determining whether anyone committing an act of retaliation should be charged or found guilty of a criminal offence. Albeit in a different context, this Court has already noted the distinction between the purposes of the Criminal Code and the MHA in Nelson v. Livermore, 2016 ONSC 1262 at para 119:

This argument misapprehends the fundamentally different nature and objectives of criminal and mental health legislations. The former is a penal statute while the latter is a protective statute designed to protect persons who pose a danger to themselves or others.

[43] The relevance of provocation as a defence in criminal law is to be assessed in that context, and should not influence the Board’s decision in determining what, if any, risks a mentally ill individual may face in the community.

[44] Accordingly, I find that the risk of retaliation was relevant and properly considered by the Board.

Medication Mismanagement

[45] Mr. Alta argues that the Board should not consider the issue of medication mismanagement when assessing the involuntary status of a patient because this is in fact an issue that is only to be considered when assessing a person’s ability to consent to treatment under section 4 of the HCCA. Mr. Alta further argues that the Board improperly conflated the test for capacity with the test for involuntary status.

[46] Dr. Desarkar’s evidence before the Board was that Mr. Alta required active support to take his medication because in the hospital he had a history of “cheeking or pocketing his medication” and because four of the medications prescribed to Mr. Alta “could be fatal independently or in combination if not managed appropriate”.

[47] While the Board recognized that Mr. Alta stated at the hearing that he took his medication daily and that he would continue to do so if he left the hospital, the Board chose to prefer Dr. Desarkar’s evidence because of concerns over the reliability of Mr. Alta’s evidence, including the Board’s observation of inconsistencies in Mr. Alta’s evidence.

[48] Based on Dr. Desarkar’s evidence, the Board ultimately found that “as a result of his mental condition, BA required supports when taking medication. If BA did not have these supports it was likely that he would suffer serious physical impairment as a result of mismanagement of medication.”

[49] Again, as with the issue of retaliation, the risk of medication mismanagement on its face is relevant to determining whether Mr. Alta’s mental disorder poses a serious risk of physical impairment if he does not remain in the hospital. To not consider the issue of whether there is a risk that Mr. Alta will fail to take his medications or will otherwise take them improperly would amount to ignoring one obvious potential source of serious physical impairment.

[50] In reaching its conclusion, the Board considered whether remaining in hospital was necessary for the purpose of avoiding serious physical impairment due to medication mismanagement. In particular, the Board considered whether Mr. Alta required supports when taking medication. This is in fact a different test than the test to determine capacity to consent to treatment which requires a patient to first understand that he is affected by a condition of the mind and second have the ability to appreciate the consequences of a treatment decision. There may be overlap in what needs to be considered under both tests -- which is not surprising – but they are not identical tests nor did the Board in this case treat them as such.

[51] Mr. Alta’s lawyer argues that where someone is found incapable with respect to treatment, one would expect that a method would be in place in the community to ensure that a third party administers their medication. While this may be desirable, it is not Mr. Alta’s reality. As mentioned above, the evidence is that at the time of the hearing there was no home in which he could be placed. In addition, there was evidence of medication mismanagement in the supported housing where he had been living prior to his admission.

[52] As with retaliation, the Board has previously viewed medication mismanagement as a relevant factor: AG (Re) at p 9.

[53] It is clearly a relevant consideration, and there is no reason to depart from this approach in this case.

Suitability for Voluntary Status

[54] Mr. Alta’s lawyer conceded that his primary attack on the Board’s finding that Mr. Alta is not suitable for voluntary status is an attack on findings of fact. In particular, he argues that there was insufficient evidence in support of the Board’s finding and that the Board improperly disregarded some of the evidence Mr. Alta gave during the hearing.

[55] This Court has held that in order for a person to be considered a voluntary patient, the person must be in a position to exercise his or her own free will and must have made a capable decision to consent to voluntary status: Daugherty v. Stall at para 21.

[56] In this case, the Board accepted the evidence of Dr. Desarkar who articulated three reasons why Mr. Alta was not suitable to be a voluntary patient, namely because he was incapable of making treatment decision, he did not want to stay in the hospital and if he remained as a voluntary patient no physical or chemical restraints could be administered if Mr. Alta’s behaviour became aggressive.

[57] On this appeal, Mr. Alta’s lawyer argues that the Board erred in preferring Dr. Desarkar’s evidence and thereby discounting Mr. Alta’s evidence. In particular, he argues that the Board erred in having regard to Mr. Alta’s demeanour when he was answering questions rather than having regard to the answers themselves.

[58] However, the Board’s ability to consider Mr. Alta’s demeanour is precisely why the Court owes deference to the Board on questions of fact. In this case, while Mr. Alta did give some responses that indicated that he would be willing to remain at CAMH as a voluntary patient, the Board clearly considered the evidence as a whole, including Mr. Alta’s demeanour, in reaching its conclusion. In its discussion of activities of daily living, the Board provided an explanation as to why it generally preferred Dr. Desarkar’s evidence over Mr. Alta’s evidence:

During BA’s testimony, he regularly gave one word answers to questions, and on a few occasions did not provide an answer at all. The panel noted that BA frequently looked to Mr. Fernandes before answering a question, and on a few occasions gestured to Mr. Fernandes whether he should respond (the Chair advised BA that he had to answer the questions himself). The panel was of the view that BA was often providing answers that he believed his lawyer wanted him to say. The panel also found that BA’s answers were often vague, variable and at times contradictory (which had also been reported by Dr. Desarkar), and as a result, place limited weight on his testimony.

[59] In dealing with the issue of Mr. Alta’s suitability for voluntary status, the Board conducted a detailed review of the evidence it heard from Mr. Alta and Dr. Desarkar before reaching its conclusion:

BA was asked by Mr. Fernandes whether he would leave the hospital if he had no place to go. BA responded “without a place, no.” BA agreed with Mr. Fernandes that he would stay in the hospital until a place was found. However, when Mr. Fernandes asked BA whether there was anything else he wanted to make clear to the panel, BA stated “No, but I don’t want to be here.” Dr. Desarkar asked BA whether he wanted to stay in the hospital and BA said “no”. When asked why not, BA said he did not like it. When Dr. Desarkar explained that he was recommending that BA stay in the hospital until a place could be found for him to live, BA did not answer. Dr. Desarkar asked BA again whether he wanted to stay in the hospital, and BA said “no”.

The panel found BA’s evidence to be superficial and contradictory on this issue. In response to questions from Mr. Fernandes, BA stated that he would stay in the hospital if he did not have a place to go to. However, as was outlined earlier in these Reasons, BA did not appear to understand that he was not able to return to his apartment. When asked whether he could return to his old apartment he had stated that he did not know, he did not think so, or that it could still be his. BA also consistently gave answers to Dr. Desarkar and the panel that he did not want to stay in the hospital and he wanted to leave. Mr. Fernandes submitted that although BA stated that he wanted to leave, what he would actually do was what was important, and BA had no obligation to enjoy staying in a psychiatric facility. Mr. Fernandes relied on BA’s statement that he would not leave until he had a place to go. The panel considered Mr. Fernandes’ argument, but simply did not find BA’s evidence that he would stay in hospital to be reliable. This finding was based on BA’s statements to Dr. Desarkar that he would leave if free to do so, BA’s statements that he did not think he had any difficulties living on his own, and BA’s variable degree of understanding that he could not go back to his apartment.

[60] I see no error in the manner in which the Board considered and weighed the evidence of Mr. Alta’s suitability for voluntary admission. The Board’s decision on this point falls well within the range of reasonable outcomes.

Conclusion

[61] For the reasons set out above, the appeal is dismissed. Neither party seeks costs of the appeal and therefore there shall be no order as to costs.

FAVREAU J.

RELEASED: July 14, 2017