D.L. v. Kay, 2017 ONSC 4724

CITATION: D.L. v. Kay, 2017 ONSC 4724

COURT FILE NO.: 16-71134

DATE: 2017/08/03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.L.

Appellant

– and –

Dr. Gary Kay

Respondent

Mr. D. Tucker-Simmons, Counsel for the Appellant

Ms. Brooke Smith, Counsel for the Respondent

HEARD: July 31, 2017 in Ottawa

ENDORSEMENT

C.T. Hackland J.

Introduction

1The appellant, whom I refer to as “D.L.”, appeals two decisions of the Consent and Capacity Board (the Board). The Board confirmed a finding of incapacity under s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, in regard to the appellant and confirmed the Board’s decision upholding a Community Treatment Order (CTO) which was made under s. 33.1(4) of the Mental Health Act, R.S.O. 1990, c. M.7.

Standard of Review

2Both parties agree that the standard of review of the Board’s decision is reasonableness and I note also that cases have observed that the Board is an expert tribunal in respect of which considerable deference is owed, see M.T. v. Bibr, 2015 ONSC 7029.

Background

3The appellant wishes to discontinue anti-psychotic medication he has been taking under a C.T.O. His treating psychiatrist Dr. Kay determined that the appellant was incapable of consent to treatment with anti-psychotic medications or to consent to a C.T.O. The appellant made an application to the Board to review Dr. Kay’s findings. The Board confirmed Dr. Kay’s findings.

4The appellant has a long history of schizophrenia as well as substance abuse and insulin dependent type 2 diabetes.

Legal Framework

5Assessing whether the appellant has the capacity to make the treatment decisions in question here involves two criteria under s. 4(1) of the Health Care Consent Act. Firstly, he 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 this information. Both parties agree the appellant is capable so far as this criteria is concerned.

6Secondly, the appellant must be able to appreciate the reasonably foreseeable consequences of the decision to accept or, as in this case, to decline treatment. He must be able to apply the relevant information to his situation and to weigh the risks of declining the treatment, see the discussion in Starson v Swayze 2003 SCC 32, [2003] S.C.J. No. 33, at paras. 79 – 81. This second branch of the capacity analysis is referred to as “the appreciation test”. Counsel agree that it is the appreciation test that was in issue before the Board and before this Court.

Analysis

7The Board dealt with the appreciation test at pages 16 – 17 of its reasons and reached the conclusion that:

Based on the testimony of Dr. Kay and the findings of incapacity from other psychiatrists, along with the Applicant’s own words, the Board found that the evidence established that DL was unable to appreciate the foreseeable consequences of a decision or lack of decision about the treatment in question.

8The Board provided well-articulated reasons for its conclusion. The Board considered not only the evidence of the appellant at the hearing but also Dr. Kay’s evidence and Dr. Kay’s clinical reports from his meetings with the appellant on November 3rd and December 14th, 2016.

9In the Court’s view Dr. Kay’s clinical summary (Ex. 1) as well as his oral testimony offer cogent if not overwhelming evidence to support the Board’s findings that the appellant is incapable of appreciating the likely consequences of declining to accept his anti-psychotic medication and of declining to accept a C.T.O.

10As the Board’s reasons reflect, the appellant was inconsistent as to whether he accepted that he had a mental illness requiring treatment. He felt his problems actually stemmed from substance abuse that he now had under control. He was not prepared to accept that his mental illness was the underlying disorder. There was ample evidence in the record to justify this expressed concern of the Board:

This lack of acceptance of the illness in spite of a diagnosis from several psychiatrists and multiple hospitalizations was clear and cogent evidence that DL was failing to realize the seriousness of his situation. The history of non-compliance with medication, deterioration of mental health, subsequent lack of self care, threatening behaviours toward others, occasional police involvement and hospitalization was a pattern that repeated multiple times between 2008 and 2015.

11In all of the circumstances, the Court is of the opinion that the Board’s conclusions as to the appellant being incapable to consent to continued administration of his anti-psychotic medication or to his participation in a C.T.O., are reasonable and fully supported by the evidence before them.

Disposition

12Accordingly, this appeal is dismissed. There will be no order as to costs.