Court File and Parties

CITATION: Lue v. Patel 2017 ONSC 4716

COURT FILE NO.: CV-16-562151

DATE: 20170803

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF an appeal from a decision

of the Consent and Capacity Board,

Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A

AND IN THE MATTER OF CAROLE LUE, a patient at

The Centre for Addiction and Mental Health ‑

Queen Street Site, Toronto, Ontario

RE: CAROLE LUE, Appellant

AND:

DR. MITESH PATEL, Respondent

COUNSEL: Ms. Carole Lue, on her own behalf, for the Appellant

Ms. Kendra A. Naidoo, for the Respondent

Mr. D’Arcy Hiltz, as amicus curiae

BEFORE: Monahan, J.

HEARD: July 28, 2017

ENDORSEMENT

[1] This appeal is brought by Ms. Carole Lue (“CL”) who seeks to set aside a decision of the Consent and Capacity Board (the “Board”) dated October 7, 2016, in which the Board upheld the finding that CL was incapable of consenting to antipsychotic medication, both oral and injectable. The respondent, Dr. Mitesh Patel, was CL’s attending psychiatrist at the Centre for Addiction and Mental Health (“CAMH”) and determined that CL was incapable with respect to antipsychotic medication on August 17, 2016.

[2] The Board convened a hearing on October 6, 2016 to review Dr. Patel’s finding of incapacity. The Board released its decision the next day with written reasons following on October 14, 2016.

Facts

[3] At the time of the hearing, CL was a 48-year old single woman with no dependents. She had moved to Canada from Jamaica in 1979 and worked as a caregiver for developmentally challenged adults from 1989 to 2001.

[4] CL had a long-standing and well-established diagnosis of schizoaffective disorders and schizophrenia. Her first psychiatric hospitalization was in 1989 for depression and a suicide attempt. Since then she has been admitted to hospitals on six separate occasions with four admissions to CAMH.

[5] The record before the Board indicated that CL has a history of medication non-compliance followed by decompensation in her mental condition. During her first admission to CAMH in February 2002, she was unwilling to begin treatment and left against medical advice. She was returned to CAMH in 2003, had a good response to medication prescribed at that time, and was discharged in March 2004, with follow-up care. As indicated, there were a number of other hospital admissions over the subsequent decade.

[6] On June 14, 2016, CL was admitted to CAMH subject to a 60-day treatment order after being found unfit to stand trial with respect to certain criminal charges. At the conclusion of the treatment order, she remained unfit to stand trial and was returned to CAMH pursuant to a warrant of committal. She remained at CAMH pursuant to a disposition of the Ontario Review Board at the time of the hearing on October 6, 2016.

[7] Dr. Patel conducted a formal capacity assessment of CL on August 17, 2016, following the expiry of the treatment order. He found that CL was incapable of consenting to or refusing antipsychotic medication because her mental condition rendered her unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding same.

[8] In his assessment, Dr. Patel noted that CL continued to experience disorganization and paranoia. Multiple staff had been unable to engage in conversations with CL as she consistently interrupted, repeated already answered questions, and perseverated on specific words. CL expressed on several occasions that the staff had poisoned the air, her food, and her clothes. Throughout her hospitalization, CL maintained that she did not have a mental condition or any abnormality in her thought processes. She believed that she did not need medication and that the antipsychotic medication was only harming her.

The Board Hearing and Decision

[9] At the hearing, the Board considered documentary evidence, including a clinical summary prepared by Dr. Patel and several progress notes from CL’s CAMH health record. The Board also considered the oral testimony of Dr. Patel. CL did not testify at the hearing.

[10] Both the documentary and oral evidence supported Dr. Patel’s opinion that CL was incapable of consenting to antipsychotic medication. Dr. Patel presented evidence of CL’s history and the manifestations of her illness that had been observed since her admission to CAMH. He testified that CL did not believe that she suffered from a mental condition and was unable to engage in meaningful discussions about her condition because of the symptoms of that condition.

[11] Dr. Patel testified that if CL was not compliant with mediation it was very likely that her condition would worsen and she would present safety risks to herself and others. With adequate treatment, however, Dr. Patel anticipated benefits, including a reduction of psychotic symptoms, specifically her paranoia and abnormal thought processes. His evidence was that CL had previously “transformed” while receiving antipsychotics, becoming calmer and settled such that she was discharged from hospital. At the time of the hearing, Dr. Patel had observed mild improvements in CL’s overall mental condition. She was better able to take care of her hygiene, and was better able to follow directions in regards to changing topics during interviews. CL had previously struggled with ending interviews and agreeing to meet again, but she was more able to do so following treatment.

[12] In its reasons dated October 14, 2016, the Board found that CL was likely able to understand the information relevant to making a decision about the treatment in question, but her mental condition rendered her unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision. The Board was satisfied, on a balance of probabilities, that CL did not believe she had a mental condition and was not able to recognize its manifestations or the impact of those manifestations on her thinking and behavior. The Board made the following findings:

(i) Dr. Patel’s evidence and opinion were supported by clear, cogent, and compelling corroboration by other treating physicians;

(ii) CL was experiencing the manifestations of a mental condition, including paranoia and thought disorder; and

(iii) CL was unable to appreciate that she was experiencing those manifestations at the time of the hearing.

[13] The Board concluded that CL was unable to apply information about antipsychotic medications to her own circumstances, and that this inability was a manifestation of her mental condition. She was, therefore, unable to appreciate the reasonably foreseeable consequences of such a decision and was incapable of consenting to antipsychotic medication.

Standard of Review

[14] The Supreme Court of Canada has confirmed that the standard of review on an appeal of a board decision to this Court on questions of law is one of correctness. The standard of review is reasonableness for questions of mixed fact in law, or questions of fact alone. In the leading Supreme Court of Canada case, Starson v. Swayze, 2003 SCC 32, Chief Justice McLachlin described the standard of reasonableness in the following terms:

“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. (at para. 5)”

[15] The issue on this appeal involves the Board’s application of the test for capacity to the facts before it, a question of mixed fact and law. The amicus and counsel for Dr. Patel agreed that the Board’s decision should be reviewed on a standard of reasonableness.

Analysis

[16] The test for capacity to consent to treatment is set out in s.4(1) of the Health Care Consent Act 1996, S.O. 1996, c.2, Schedule A (the “HCCA”) which provides as follows:

“A person is capable with respect to treatment…if the person is able to understand the information that is relevant to making a decision about the treatment…and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

[17] The Supreme Court of Canada clarified the scope and application of the test in s.4(1) in Starson v. Swayze. A person will not meet the second component of the test for capacity where he or she is unable to apply information about a proposed treatment to his or his situation:

“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 acknowledge the possibility that he is affected by that condition…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. 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.”

[18] The Board in this case applied the same reasoning as the Supreme Court of Canada in Starson v. Swayze. It found that CL’s mental condition resulted in her being unable to appreciate that she was affected by its manifestations. The Board’s finding regarding CL’s incapacity was supported by ample evidence on the record. The Board carefully weighed all of the evidence and found that CL was unable to apply the relevant information to her circumstances and unable to appreciate the reasonably foreseeable consequences of a decision regarding antipsychotic mediation to treat that condition. In my view, this was clearly a reasonable decision in the sense that it was among the range of conclusions that could reasonably have been reached on the law and evidence.

[19] It should also be noted that the Court of Appeal has held that it is not necessary for the Board to consider the benefits or side effects of a proposed treatment. In M.M. v. de Souza, 2016 ONCA 155, the Court of Appeal noted that it was not necessary for the Board to have testimony concerning the benefits or side effects of a proposed treatment. The Court of Appeal indicated that the Board’s task is to make decisions on the question of capacity and not on the advisability of a proposed treatment regime from a medical perspective. Thus, the only relevance of concerns regarding the benefits or the side effects of antipsychotic medication is whether CL had a rational justification for refusing the medication. Her belief that she did not need medication was founded in her view that she did not suffer from a mental condition. Thus, her appraisal of the benefits or side effects cannot be said to form the basis of an informed decision regarding her treatment.

[20] The amicus raises a concern that CL had been treated with antipsychotic medication for paranoia upon her admission to the CAMH in June 2016 up to and including the date of the hearing in October 2016. The amicus argues that if CL was suffering from a mental disorder with symptoms of paranoia there would have been a reduction in the symptoms with treatment by the time of the hearing. The amicus argues that the Board failed to consider that the absence of any benefit of being treated with medication and that this failure is an indication that the Board’s decision was unreasonable.

[21] However, contrary to amicus’ assertion, the Board did consider that there had been only limited improvement in CL’s mental condition at the time of the hearing. The Board noted the protective element provided by the antipsychotic medication and also considered that CL was benefiting, albeit to a limited extent, from the antipsychotic medication at the time of the hearing. The Board found that CL was not able to recognize either her improvement on medication or its protective element despite significant psycho-education in that regard. CL maintained that the medication was harming her and that she would feel better without it. Applying the test in Starson v. Swayze, the Board reasonably found that this meant that CL was unable to apply the relevant information to her circumstances and was unable to weigh the risks and benefits of medication to treat her condition.

[22] Overall, having heard, assessed and weighed the entirety of the evidence, the Board found that CL was unable to recognize the possibility that she was affected by the manifestations of her mental condition. This, in turn, rendered her unable to apply the relevant information to her circumstances and to weigh the positive or the negative effects of antipsychotic medication to treat that condition. As discussed above, if an individual is unable to recognize the possibility that she is affected by the manifestations of her condition, she will not be able to evaluate the risks and benefits of medication proposed to treat those symptoms. Thus, the Board was reasonable in finding that CL was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision and was incapable of consenting or refusing antipsychotic medication.

[23] In the result, I hereby dismiss the appeal and affirm the Board’s decision to uphold Dr. Patel’s finding of incapacity.

Monahan, J.

Date: August 3, 2017