CITATION: J.S. v. Dr. Suzanne Legault, 2017 ONSC 5809
COURT FILE NO.: CV-17-571153
DATE: 20170929
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of Appeals from decisions of the Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended, and the Mental Health Act, R.S.O. 1990, c. M.7
BETWEEN:
J.S.
Appellant
– and –
DR. SUZANNE LEGAULT
Respondent
Joanna Weiss, for the Appellant
Mark Handelman, for the Respondent
HEARD: September 15, 2017
REASONS FOR DECISION
SANFILIPPO J.
A. Introduction
[1] These appeals bring into sharp focus the question of when and how a physician can issue an order to treat a person determined to have a mental disorder. There are both procedural and substantive requirements that must be established before a person’s autonomy in health treatment can be displaced.
[2] These appeals are brought pursuant to s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended (the “Consent Act”), from decisions of the Consent and Capacity Board (the “Board”). The Board’s decisions were in relation to review sought by the appellant, pursuant to s. 39.1 of the Mental Health Act, R.S.O. 1990, c. M.7 (the “Mental Health Act”), of a community treatment order (“CT Order”) issued by the respondent, Dr. Suzanne Legault.
[3] The appellant’s history of mental health issues resulted in a series of CT Orders issued from 2010 to the CT Order that gives rise to these appeals, being the CT Order that was renewed on November 28, 2016 (the “November 2016 CT Order”).
[4] The appellant previously applied for Board review of the CT Order renewed by Dr. Legault a year earlier on November 11, 2015 (the “November 2015 CT Order”), which was confirmed: see JS (Re), 2016 22554 (Ont. C.C.B.). An appeal to this court of the Board’s decision was upheld by Dunphy J. in J.S. v. Legault, 2016 ONSC 3098 (Ont. S.C.J.). That decision is under appeal, including the determination that the appellant was not capable as to treatment at the time of issuance of the November 2015 CT Order.
[5] Section 32(5) of the Consent Act prohibits an application for review of incapacity within six months after final disposition of an earlier application in which capacity is reviewed, unless leave is granted by the Board. The appellant’s challenge of the finding of incapacity in relation to the November 2015 CT Order has not been finally disposed of by reason of the pending appeal such that leave was required for a review of the physician’s finding of incapacity as to treatment in relation to the November 2016 CT Order.
[6] The appellant sought and, on consent, obtained leave for the Board to hear her application dated November 22, 2016 (Form A) for a review of the physician’s finding of incapacity in November 2016, which was heard at the same time as the application to set aside the November 2016 CT Order (Form 48).
[7] To address the appellant’s applications, the Board conducted the following hearings:
(a) On February 9, 2017, the appellant’s preliminary motion that the November 2016 CT Order was invalid on its face due to non-compliance with s. 33.1(4) of the Mental Health Act. The appellant contended that all participants to the community treatment plan executed by the physician on November 15, 2016 (the “November 2016 CT Plan”) had not executed the plan within 72 hours of the examination by the physician, with the result that the November 2016 CT Plan was not properly entered into.
(b) On February 28, 2017, a review of the physician’s determination of the appellant’s lack of capacity as to treatment in November 2016 and the review of whether the criteria for renewing the November 2016 CT Order had been established.
[8] By decision rendered on February 10, 2017, and amended on February 24, 2017, the preliminary motion was dismissed on the basis that the November 2016 CT Plan was entered into within 72 hours of the physician having examined the appellant for the purpose of determining whether she met the criteria under s. 33.1(4)(c) of the Mental Health Act.
[9] By decision rendered on March 1, 2017, the Board confirmed the physician’s finding that the appellant was incapable as to treatment. The Board thereby confirmed the physician’s finding with respect to the November 2016 CT Plan.
[10] By further decision rendered on March 1, 2017, the Board determined that the criteria for renewing the November 2016 CT Order as set out in the Mental Health Act were met, such that the November 2016 CT Order was confirmed.
[11] On March 8, 2017, the Board issued the reasons for its decisions (the “Board Reasons”).
[12] The appellant appeals from the decisions by the Board both on the preliminary motion and on the Board’s review and confirmation of the November 2016 CT Order and its CT Plan.
[13] The court noted that the six-month duration of the November 2016 CT Order under analysis had expired before these appeals were heard, such that the requested relief of revoking the November 2016 CT Order is redundant. Nonetheless, on the appellant’s submission of the importance of a determination of her capacity in November 2016, and to address the process prescribed by the Mental Health Act for entry into a CT Plan, the appeals proceeded.
[14] I ordered an amendment to the style of cause to remove reference to the appellant’s proper name, substituting initials, in protection of the appellant’s privacy.
[15] For the reasons set out herein, the appeals are dismissed.
B. The Purpose of the Community Treatment Order
[16] The purpose of the CT Order is stated in s. 33.1(3) of the Mental Health Act as follows:
33.1(3) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.
[17] Section 33.1(3) recognizes the potential for a “revolving door” of treatment for a person diagnosed with a serious mental disorder when community-based treatment is not provided. The CT Order, and the CT Plan forming part of it, are designed to address and prevent this “revolving door” of treatment, but are permissible only when certain requisite criteria are established.
[18] The criteria for the issuance or renewal of a CT Order are detailed by s. 33.1(4) of the Mental Health Act. Strict compliance with s. 33.1(4) is required in order for the CT Plan to be developed and for the CT Order to be valid.
[19] These appeals focus on whether the physician’s renewal on November 28, 2016 of a CT Order for the appellant satisfied the procedural and substantive statutory requirements.
C. Factual Background
[20] The appellant is a 43-year-old whose first psychiatric admission was in 2000. Following discharge, she resided in the community for nine years without psychiatric treatment, medications or hospital admissions.
[21] In 2009, the appellant was involuntarily admitted to hospital when a family member obtained a Form 2 Order for Examination under the Mental Health Act. She came under the care of Dr. Legault, who has since been her physician. Dr. Legault diagnosed her with paranoid schizophrenia.
[22] The appellant was determined to be incapable in regard to treatment. A CT Plan was developed and the appellant was discharged from hospital in 2010 on a CT Order. The Board’s confirmation of the physician’s finding of lack of capacity was appealed unsuccessfully.
[23] The CT Order was renewed continuously from 2010 to March 2014, throughout with the consent of a family member who acted as the appellant’s substitute decision-maker.
[24] In March 2014, the Board rescinded the then-prevailing CT Order on a procedural ground. The appellant agreed to comply with prescribed anti-psychotic medication and outpatient psychiatric care with the outpatient team in the absence of a CT Order.
[25] In January 2015, the appellant discontinued her involvement in treatment and for two months her whereabouts and living circumstances were unknown to family members. A media campaign failed to locate her. The appellant had left the group home in which she was residing, began to stay in shelters and became disconnected from her family and caregivers.
[26] The appellant was located by family on or about March 27, 2015, at which time a family member obtained a Form 2 under the Mental Health Act with the result that the appellant was admitted to hospital on March 27, 2015.
[27] On March 30, 2015, Dr. Legault diagnosed the appellant with chronic paranoid schizophrenia, in relapse. The appellant presented with evidence of psychosis and acknowledged that she had not taken her medication for two months but denied that her symptoms had recurred. A finding of treatment incapacity was made, medications were reinstated and a CT Plan was developed and implemented on the consent of the substitute decision-maker.
[28] The appellant was discharged from hospital on April 22, 2015 in an improved condition and a CT Order issued on April 22, 2015 implementing the CT Plan that had been entered into.
[29] CT Orders were thereafter successively renewed by Dr. Legault on sixth-month intervals, in November 2015 and May 2016, on similar CT Plans, leading to the events of the Fall of 2016.
D. Events Leading to the November 2016 Renewal of the CT Order
[30] Dr. Legault’s ongoing care of the appellant in 2016 is detailed in her clinical notes which formed part of the Record of Proceedings and were thereby provided to me for these appeals.
[31] In examination on February 3, 2016, Dr. Legault noted that the appellant was doing well, working part-time in the community, living at home and adhering to the CT Plan. The appellant continued to believe that she did not have any mental illness and did not need medication. There was no recognition by J.S. of any symptoms of her illness and accordingly no recognition of any improvements with medication. Insight and judgment of her illness were determined to be poor. The appellant was adamant that a CT Order was not necessary.
[32] On June 28, 2016, Dr. Legault’s follow-up assessment of the appellant was conducted after review with the treating clinicians and substitute decision-maker. The physician noted that J.S. reported to be doing very well, but without recognition of observations made by family and clinical staff of agitation, talking to herself and responding to internal stimuli. J.S. repeated that she had never been ill and did not need medication. The physician ordered that intramuscular medication be reinstituted to seek to avoid relapse and, in particular, the re-emergence of symptoms of illness.
[33] An assessment of August 23, 2016 noted overall improvement in functioning considered attributable to the reinstitution in June of the intramuscular medication. J.S. had increased her role in the workplace to full-time, was living with family and was compliant with the CT Plan.
[34] Following August 23, 2016, the appellant continued to be monitored under the CT Order that had been issued on May 24, 2016.
[35] On November 1, 2016, Dr. Legault met with J.S.’s substitute decision-maker, the clinical team leader and the treating nurse for the purpose of reviewing J.S.’s status regarding the pending expiry of the May 2016 CT Order. The substitute decision-maker reported on the appellant’s improvement since the introduction of the intramuscular medication but also reported on continued symptoms consistent with manifestations of J.S.’s illness.
[36] The substitute decision-maker believed that the appellant had no insight into her condition and that she would not continue with her treatment unless required to do so by a CT Order. The substitute decision-maker provided her consent to the renewal of the CT Order both from a capable understanding of her family member’s condition and as a best interest decision for treatment. The substitute decision-maker confirmed her consent by execution on November 1, 2016 of the November 2016 CT Plan that mirrored the terms of previous CT Plans.
[37] The November 2016 CT Plan was then signed by the clinical team coordinator on November 7, 2016 and by the clinical team leader on November 14, 2016.
[38] Dr. Legault met with J.S. on November 15, 2016 for the purpose of examination and assessment, including for the purpose of considering renewal of the May 2016 CT Order. The physician’s clinical note of November 15, 2016 records that the appellant was functioning and feeling well, with good job performance and satisfaction. She continued to take her medication under the supervision of a family member. The appellant stated that she did not have, and has never had, any kind of mental illness, did not recognize the benefit of any medication and, indeed, did not recognize any change in her condition resulting from medication. The appellant denied that she had ever suffered from any kind of symptoms of a mental disorder. She stated that she did not want to be on a CT Order and did not want any treatment, including the prescribed medications.
[39] The physician’s examination concluded that the appellant did not have a capable appreciation of symptoms and manifestations of her illness or of the consequences of a treatment decision. The appellant was found to be unable to recognize symptoms and manifestations of her conditions, elements that had persisted since the physician’s care of the appellant began in 2009. The physician concluded that the appellant was not capable of making treatment decisions.
[40] The physician executed the November 2016 CT Plan on November 15, 2016. On the same day, the physician executed a Notice of Intention to Renew the Community Treatment Order (Form 49 under the Mental Health Act).
[41] On November 21, 2016, the appellant and the substitute decision-maker received rights advice in relation to the Notice of Intention to Renew the Community Treatment Order. Thereafter, on November 28, 2016, the physician met with the substitute decision-maker to complete the Community Treatment Order (Form 45 under the Mental Health Act).
[42] On November 28, 2016, the physician and the substitute decision-maker both executed the November 2016 CT Order. In doing so, the substitute decision-maker affirmed her consent to treatment and also provided her best efforts undertaking to ensure that the appellant complied with the November 2016 CT Plan. Dr. Legault renewed the November 2016 CT Order on the ground that the appellant was likely to suffer substantial mental deterioration in the absence of continued treatment or care resulting from her mental disorder.
[43] On November 28, 2017, Dr. Legault issued to the appellant a Notice of Renewal of Community Treatment Order, under Form 46 of the Mental Health Act, which was delivered together with the November 2016 CT Order and its annexed November 2016 CT Plan.
[44] The appellant delivered an Application to the Board to Review the November 2016 CT Order, under Form 48 of the Mental Health Act, and also a Form A to review the physician’s determination of lack of capacity as to treatment.
E. Issues Raised by these Appeals
[45] The appellant raises three issues for consideration on these appeals:
(a) Was the November 2016 CT Order invalid due to lack of compliance with the procedure set out in s. 33.1(4)(c) of the Mental Health Act?
(b) Did the Board err in confirming the incapacity of the appellant to consent to the November 2016 CT Plan?
(c) Did the Board err in confirming that the criteria for the November 2016 CT Order had been met?
F. Standard of Review on Appeal
[46] The standard of review for appeals from the Board is set out in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. The Board’s interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, the Board’s decision is subject to review for reasonableness. This was stated by the court as follows, at para. 5:
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 SCC 33 (S.C.C.) (released concurrently), 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 have come to a different conclusion does not suffice to set aside the Board's conclusion.
[47] Since Starson, decisions in the area of administrative law have called for renewed consideration of the standard of review analysis: see New Brunswick (Board of Management) v. Dunsmir, 2008 SCC 9, [2008] 1 S.C.R. 190; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654; British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895. In M. (M.) v. de Souza, 2016 ONCA 155, the court was asked to revisit the standard of review for board decisions on questions of law involving its home and related statutes but did not find it necessary to do so for the purposes of the appeal. Lederer J. cautioned in Salem v. Kantor, 2016 ONSC 7130, at para. 16 (Ont. S.C.J.), against movement to a reasonableness standard on consideration of an issue of law where decisions, like this one, impact the individual and personal autonomy of those involved.
[48] On the authority of Starson, these appeals will be determined by application of a standard of review of correctness in respect of questions of law and on a standard of review of reasonableness on questions of fact or of mixed fact and law. In Starson, at para. 5, the reasonableness standard was stated to require 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”. The standard of review of reasonableness was summarized in Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587, at para. 13, as follows:
The reasonableness inquiry dictates respect for the expertise and advantaged position of the Board. It also, however, demands a somewhat probing examination of the reasons offered by the Board for its conclusion. That examination must ensure that the reasons taken as a whole provide a line of analysis, supported by the evidence, that can reasonably justify the Board’s conclusion.
G. Analysis
Issue #1: Procedural Validity of the November 2016 CT Order
[49] The appellant submits that the November 2016 CT Order ought to be revoked because the November 2016 CT Plan on which it was based was not “entered into” in accordance with the process set out in s. 33.1(4) of the Mental Health Act, which provides, in operative part, as follows:
33.1(4) A physician may issue or renew a community treatment order under this section if,
(b) the person or his or her substitute decision-maker, the physician who is considering … renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;
(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,
(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,
(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15(1) or (1.1) where the person is not currently a patient in a psychiatric facility,
(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,
(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and
(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;
(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;
(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and
(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the [Consent Act].
[50] Section 33.1(4)(b) provides that a CT Order cannot be renewed unless a CT Plan has first been “developed” by the physician together with the person or her substitute decision-maker and any other person involved in the patient’s treatment or care (“other care providers”).
[51] Section 33.1(4)(b) does not prescribe any time period within which the CT Plan must be “developed”. Section 33.1(4)(b) contemplates that the development of the CT Plan can take place as the physician is considering the renewal of the CT Order. In other words, there is no statutory requirement that the consultation by the physician with the substitute decision-maker and other care providers regarding a CT Plan take place only after the physician has made a determination of the necessity to renew a CT Order.
[52] Section 33.1(4)(c) prescribes that a physician cannot “enter into” a CT Plan without first having examined the person “within the 72-hour period before entering into the CT Plan”. The basis for this requirement was identified by Low J. in Singh v. de Souza, [2009] O.J. No. 3490, at para. 26 (Ont. S.C.J.), as being necessary to ensure that “the medical findings are fresh and that the treatment plan is relevant to the condition of the patient.”
[53] The 72-hour imperative in s. 33.1(4)(c) is focused on the physician’s “fresh” examination. The wording of the Mental Health Act does not make this 72-hour imperative applicable to the timing of the input into the CT Plan by the substitute decision-maker and the other care providers or of the undertakings required of these parties to make the CT Plan viable.
[54] I interpret s. 33.1(4)(c) to state that the physician’s “fresh” examination must provide a basis for the physician’s determination of whether the criteria under s. 33.1(4)(c) are met. The physician’s determination may also be based on “other relevant facts communicated to the physician”. The physician’s assessment and resultant opinions concerning the criteria mandated by s. 33.1(4)(c) can take into consideration facts communicated to the physician outside of the examination, before and within the 72-hour period, by others, including by the substitute decision-maker. And, of course, the physician’s examination conducted in the 72 hours immediately before “entering into” the CT Plan is, by its very nature, informed by knowledge acquired by the physician throughout the history of the continuing care of the patient.
[55] I will address later in these reasons the substantive adequacy of the physician’s assessment of the criteria required by s. 33.1(4)(c). For the purpose of the appeal of the procedural, preliminary motion, it is sufficient to determine, as I do, that Dr. Legault’s clinical note of November 15, 2016 shows that her finding that these criteria were established was based on the examination that she conducted of the appellant on November 15, 2016, which necessarily included her history of treatment of the appellant.
[56] The appellant agrees that Dr. Legault conducted an examination of the appellant on November 15, 2016 and executed the November 2016 CT Plan on that day. I have determined that the physician’s determination of the criteria required by s. 33.1(4)(c) was made within 72 hours of her examination. As such, what is left to determine is the appellant’s contention that the November 2016 CT Plan is invalid because the other participants to the November 2016 CT Plan did not execute the November 2016 CT Plan within 72 hours of the physician’s examination. In particular, the appellant takes issue with the substitute decision-maker and one of the other care providers having executed the CT Plan more than 72 hours before the physician.
[57] Section 33.7 of the Mental Health Act states that a properly constituted CT Plan requires the participation of the physician, the substitute decision-maker and the persons that I have referred to as “other care providers”:
33.7 A community treatment plan shall contain at least the following:
A plan of treatment for the person subject to the community treatment order.
Any conditions relating to the treatment or care and supervision of the person.
The obligations of the person subject to the community treatment order.
The obligations of the substitute decision-maker, if any.
The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5(2).
The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan.
[58] Section 33.5(3) of the Mental Health Act requires that these participants shall indicate their agreement to the CT Plan. It provides as follows:
33.5(3) A person who agrees to provide treatment or care and supervision under a community treatment plan shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan.
[59] There is no timing imperative specified in s. 33.5(3) for the other care providers to indicate their agreement with the CT Plan. There is no express provision mandating the sequence in which they do so: whether before or after the physician’s examination, or even within 72 hours of the physician’s examination.
[60] Similarly, there is no timing imperative specified in the Mental Health Act within which the physician must consult with the other care providers or, indeed, obtain the consent of the substitute decision-maker. The obligation contained in s. 33.1(4)(d), quoted above, that the physician must consult with the “other persons proposed to be named in the CT Plan” does not specify a timing parameter. The Mental Health Act is silent concerning whether this step must be conducted before or after the physician’s examination of the patient and is similarly silent concerning whether it need be conducted within 72 hours of that examination.
[61] The appellant contends that there is a 72-hour requirement in relation to these steps and that this requirement was contravened because the timing of execution of the November 2016 CT Plan shows that the substitute decision-maker’s consent was provided more than 72 hours before (November 1, 2016) and more than 72 hours after (November 28, 2016) the physician’s examination and execution of the CT Plan (November 15, 2016) and that execution by the clinical treatment coordinator took place more than 72 hours before (November 7, 2016) the physician’s examination and execution. Notably, execution by the clinical team leader took place on November 14, 2016, within 72 hours of the physician’s examination.
[62] The appellant relies on S.S. v. Kantor, 2016 ONSC 1444 (Ont. S.C.J.), wherein the physician conducted his examination on April 16, 2015 and executed the CT Plan that day, but the CT Plan was not agreed to by the substitute decision-maker until 5 days later and was not executed by others involved in the patient’s care until 4 and 5 days later. The appellant in that case submitted that as the signatures required of the substitute decision-maker and others involved in the patient’s care were obtained more than 3 days after the physician’s examination, the CT Plan could not have been “entered into” by the physician within 72hours following the physician’s examination and thereby did not meet the requirements of s. 33.1(4) of the Mental Health Act.
[63] The CT Plan was set aside in Kantor on the finding that the physician’s examination was not conducted within 72 hours of the time that all participants had executed the CT Plan to reflect their agreement. Justice Faieta stated as follows, at para. 30:
Accordingly, the requirement in s. 33.1(4)(c) that “…within the 72-hour period before entering the CTP, the physician examined the person…” requires that the examination be held within 72 hours of the time that all persons named in the plan (including the physician, the person that is the subject of the plan or their substituted decision-maker, and all persons who are required to provide treatment or care and supervision under the proposed terms of a CTP) signed the plan to reflect their agreement to its terms.
[64] A different result was reached in Paspalovski v. Agrawal, 2016 ONSC 4805 (Ont. S.C.J.). Here, the physician executed the CT Plan within 72 hours of his examination but the execution by others did not take place until after expiry of the 72-hour period. The court upheld the CT Plan as compliant with the procedural requirements of the Mental Health Act, notwithstanding that it was not executed by all participants within 72 hours. The court found that s. 33.1(4) requires that the physician examine the patient and enter into the CT Plan within 72 hours of doing so, to ensure that the capacity assessment is current, but that execution by others is not statutorily bound by the same 72-hour requirement.
[65] The fact situations in Kantor and Agrawal both involved execution by the other participants to the CT Plan more than 72 hours after the physician’s examination. In Kantor this lead to the conclusion that the CT Plan was invalid, whereas in Agrawal the CT Plan was upheld on the basis that there was no timing requirement for execution of the CT Plan by the other participants.
[66] Here, the execution of the CT Plan by certain of the other participants took place more than 72 hours before the physician’s examination and entry into the CT Plan, although the execution of the CT Plan by the clinical team leader took place within 72 hours of the physician’s examination.
[67] To the extent that the reasoning in Kantor can narrowly be taken to mean that the physician can only “enter into” a CT Plan if it has first been executed by the other participants, and that the physician must do so within 72 hours of patient examination, then the process by which the November 2016 CT Plan was entered into is compliant with Kantor. Nothing in Kantor implies that other parties to the CT Plan cannot enter into it before the attending physician. To the extent that Kantor is relied upon by the appellant as authority for the principle that all participants to the CT Plan are bound to execute the CT Plan 72 hours of physician examination, then I respectfully decline to follow this reasoning in situations, like the present, where the other participants execute the CT Plan before the physician.
[68] The reasoning in Agrawal supports the absence of a 72-hour imperative for execution by the other participants after execution by the physician on the finding that these other participants are not bound by a 72-hour principle by the Mental Health Act. This leaves unanswered the question of how long the CT Plan remains open for consideration and execution by others after execution by the physician. This issue is not present in the current appeals, as the physician’s execution of the CT Plan on November 15, 2016, within 72 hours of patient examination, was the last step required to conclude, implement and thereby enter into the CT Plan.
[69] That Dr. Legault had obtained the agreement to the November 2016 CT Plan from the clinical team coordinator more than 72 hours before her examination does not affect the validity of the CT Plan as the Mental Health Act does not require that the agreement of the other care providers be obtained less than 72 hours before the physician’s examination. The clinical team leader’s consent and execution was obtained within 72 hours of the physician’s examination.
[70] Similarly, Dr. Legault had obtained the consent of the substitute decision-maker more than 72 hours before patient examination and, again, this does not offend the Mental Health Act because the statute does not require that the consent of the substitute decision-maker be obtained within 72 hours of the physician’s examination. The consent of the substitute decision-maker is required to be re-confirmed after the physician’s examination, as a required element in execution of the CT Order pursuant to prescribed Form 45 of the Mental Health Act, such that there is no circumstance in which the CT Order can be issued without obtaining or affirming the consent of the substitute decision-maker after examination of the patient by the physician, as occurred here.
[71] I agree with Mew J.’s determination in P.R. v. Legault, 2015 ONSC 7716 (Ont. S.C.J.), that the order of entering into the CT Plan as between physician and substitute decision-maker is not material to the validity of the CT Plan. In that decision, a CT Plan was upheld notwithstanding that the consent of the substitute decision-maker was obtained before the physician conducted her final assessment, albeit on the same day.
[72] Dr. Legault had “developed” the CT Plan with the consent and undertaking of the substitute decision-maker and with the agreement of the other care providers during a time in which the physician was considering renewal of the CT Plan, in accordance with s. 33.1(4)(b) of the Mental Health Act. The physician was developing the CT Plan to the point that it could be entered into by the physician within 72 hours of the physician’s examination of the appellant presuming, of course, that the examination caused the physician to conclude that the CT Plan was required.
[73] The physician conducted her final assessment of the appellant within 72 hours of executing the CT Plan, as she is required to do by s. 33.1(4)(c) of the Mental Health Act. Having already received the consent and agreement of all other parties required by the Mental Health Act to participate, the physician entered into the CT Plan on November 15, 2016 upon execution of the November 2016 CT Plan: well-within 72 hours of her assessment.
[74] The appellant takes considerable issue with the physician having obtained the consent of the substitute decision-maker to the CT Plan two weeks before the physician’s “fresh” examination of J.S. The appellant submits that this leads to the conclusion that the November 2016 CT Order was issued not out of current assessment but rather out of habit or routine, which was recognized as inappropriate in Ness v. Geagea, 2015 ONSC 623 (Ont. S.C.J.). I do not accept this submission. The physician had a treatment history of 7.5 years with the appellant. She examined the appellant regularly in the months leading to November 2016, and applied her expertise, experience and skill to set in motion the development of a CT Plan subject to a “fresh” examination within 72 hours of entering into the CT Plan. This does not offend the statutory requirements.
[75] I have determined that the process by which the November 2016 CT Plan was entered into was in accordance with the Mental Health Act. The appeal of the Board’s denial of the appellant’s preliminary motion is dismissed.
Issue #2: Reasonableness of Decision: Capacity to Consent
[76] The Consent Act governs broad aspects of the relationship between the health practitioner and the patient including providing rules pertaining to the consent to treatment. The Consent Act recognizes the autonomy of persons for whom treatment is recommended and provides a strict set of principles that must be followed before substitute decisions may be made.
[77] Section 4 of the Consent Act defines “capacity” and sets out a rebuttable presumption that every person is capable:
4(1) A person is capable with respect to 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.
[78] Where a person is found to be incapable as to treatment by reason of a serious mental disorder, the Mental Health Act provides that a CT Order can be issued or renewed by a physician where certain prescribed requirements are established.
[79] The onus of proof at the Board is for the physician to prove the incapacity on a balance of probabilities.
[80] In Starson, the Supreme Court considered and set out the statutory test for capacity under the Consent Act. Major J. emphasized the right of the patient to refuse unwanted medical treatment, as part of a person’s autonomy and right of self-determination. The court cited with approval the observation by the reviewing judge, Molloy J., that “[a] competent patient has the absolute right to make decisions that any reasonable person would deem foolish”: Starson, at para. 76, citing Starson v. Swayze, [1999] O.T.C. 9, at para. 13.
[81] The court provided the following analysis for the determination of capacity, at paras. 78, 79:
The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act.
… Capacity involves two criteria. First, a person 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 the relevant information.… Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
[82] In review on appeal, the Board was required to be correct in its application of the test for capacity. I am satisfied that it was. The Board’s Reasons set out the correct understanding of onus on the part of the physician, that the standard of proof required is on a balance of probabilities, and the proper test as set out in s. 4(1) of the Mental Health Act and articulated in Starson.
[83] Further, the Board was required to inquire into reasons for the appellant’s inability to understand the information that is relevant to making a treatment decision and the reasons for a patient’s failure to appreciate consequences. To find lack of capacity, the Board is required to have a basis on which reasonably to conclude that the appellant’s mental disorder prevented her from having the ability to appreciate the reasonable consequences of her treatment decision.
[84] The Board recognized that Dr. Legault was not relying on the first branch of the test for capacity. The physician’s opinion was that the appellant was able to understand the information that is required to make a treatment decision. Rather, the Board noted correctly that Dr. Legault’s finding of incapacity was based on the second branch of the test: namely, that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision about treatment.
[85] In assessing the second part of the test for capacity, the Board referred to Neto v. Klukach [2004] O.T.C. 138, wherein Day J. commented on the second branch of the capacity test set out in Starson as follows, at paras. 10, 11:
Chief Justice McLachlin, in her dissenting judgment (but not dissenting on this point), quoted with approval three common indicators of a person’s inability to meet the second branch of the test, set out by commentators such as B.F. Hoffman in The Law of Consent to Treatment in Ontario, 2nd ed. (1997), at p. 18. One indicator is whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her. A second indicator is whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her quality of life. A third indicator is whether the person’s choice is substantially based on a delusional belief.
In determining capacity, the court in Starson cautioned that capable individuals have the right to take risks and are presumed free to make decisions that are considered unreasonable. The test is not whether the choice by the patient appears reasonable or wise, but whether the patient is capable, within the meaning of the statute, of making the decision. The Board is not to inject its own personal values, judgments and priorities into the process.
[86] There was ample evidence in the Record of Proceedings to support the Board’s conclusion that the appellant was unable to appreciate the reasonably foreseeable consequences of accepting or refusing treatment. In particular, the Board noted that Dr. Legault had a basis, including her history of treatment of the patient, for her opinion that J.S. had no insight into her illness. According to Dr. Legault, J.S. had delusional beliefs about the reasons for her previous hospitalizations, and denied ever being ill or having any mental health conditions.
[87] The clinical note of August 23, 2016 records Dr. Legault’s assessment of capacity:
[J.S.] continues not to have any insight into her condition nor recognize manifestations of her illness nor improvements related to treatment. It remains my opinion that she is incapable of making treatment decisions.
[88] The physician made a similar observation after consultation with the substitute decision-maker on November 1, 2016, as follows:
[J.S.] does not acknowledge any symptoms of illness and continues to insist that she has never been ill and does not need treatment.
[89] The Board carefully reviewed the physician’s clinical note of November 15, 2016 and evidence in support that the patient could not assess the proposed treatment and alternatives and continued to deny any improvement resulting from the medication protocol even though objective evidence of improvement was available to the physician, both directly and from family members:
It remains my finding today that JS does not have a capable appreciation of symptoms and manifestations of her illness nor consequences of a treatment decision. This has been in evidence throughout my treatment of JS which dates back to 2009. In particular, she has been consistently unable to recognize symptoms and manifestations [of] her condition nor consequences of treatment. In the absence of any recognition of manifestations she has also not been able to recognize significant improvements observed by family and her treatment team. Hence, it remains my view that she is not capable of making treatment decisions respecting her mental disorder and in this case specifically the treatment proposed in the community treatment plan.
[90] The Board investigated the basis for the physician’s opinion that the appellant lacked capacity as to treatment and found that there was evidence to support findings of both mental disorder and incapacity. The Board identified evidence that supported the physician’s conclusion that the appellant was unable to appreciate the consequences to her of consenting or not consenting to treatment. There was evidence that the appellant lacked the ability to appreciate that without the treatment the foreseeable consequences could include substantial mental deterioration.
[91] The Board’s decision was reasonable, was the product of a correct appreciation and application of the legal test and will thereby receive deference.
Issue #3: Reasonableness of Decision: Community Treatment Order
[92] The Board identified that there are six criteria to the renewal of the November 2016 CT Order. Each of the criteria was assessed by the Board and found to have been established.
[93] Certain of the criteria were easily verified: first, the requirement in s. 33.1(4)(a) of the Mental Health Act that the patient must have been subject to a previous CT Order was apparent by the treatment history; second, the requirement in s. 33.1(4)(c) that the CT Plan be developed with the participation of the substitute decision-maker and other care providers was readily satisfied; third, the physician had consulted with other care providers named in the CT Plan (s. 33.1(4)(d)), including to ensure their availability, in accordance with s. 33.1(4)(c)(v); fourth, the Board was satisfied that the substitute decision-maker had consulted with a rights advisor (s. 33.1(5)).
[94] The fifth requirement, that the person or the substitute decision-maker consent to the CT Plan, as required by s. 33.1(4)(f), was satisfied both before the physician’s entry into the November 2016 CT Plan and at the time the physician executed the November 2016 CT Order.
[95] The primary submission made by the appellant to seek to reverse the Board’s confirmation of the November 2016 CT Order was the Board’s finding Dr. Legault had an evidentiary basis on which to conclude that the appellant would suffer “substantial mental deterioration” unless a CT Order was issued. Section 33.1(4)(c)(iii) provides as follows:
(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,
[96] The appellant pointed to portions of the Board’s Reasons that referred to the physician’s assessment of the appellant’s potential “mental deterioration”, without reference to the requirement that the deterioration be “substantial” in nature, and submitted that this showed that the physician had not adequately turned her mind to the proper test as set out in s. 33.1(4)(c)(iii).
[97] The Record of Proceedings does not substantiate this submission. The Board had before it, and made reference to, ample material that demonstrated that the physician’s examination revealed that the appellant was at risk of sustaining substantial mental deterioration in the absence of treatment. The patient history showed that when the appellant failed to adhere to her treatment protocol, she relapsed, became estranged from her family and lived in shelters. The marked improvement following the introduction of the intramuscular medication was noted.
[98] The Board assessed the basis for the physician’s finding that the appellant would suffer substantial mental deterioration in the absence of continued treatment, as stated as follows by the physician in issuing the CT Order on November 28, 2016:
[J.S.] suffers from chronic paranoid schizophrenia. She does not have insight into the symptoms and manifestations of her illness, nor is she able to appreciate the consequences of a treatment decision. But for the [CT Order], she will discontinue treatment, which will lead to illness relapse with substantial mental deterioration and re-hospitalization.
[99] There was a basis for the Board to find that the physician had established that the requirements of the Mental Health Act were satisfied for the issuance of the November 2016 CT Order. The Board had ample evidence in the various consultation notes filed to corroborate the physician’s opinion concerning the appellant’s mental disorder, history of presentation and substantial mental deterioration in the past.
[100] I find that the Board acted reasonably in concluding that the requirements of s. 33.1(4)(c)(iii) were satisfied, as were the other requisite elements necessary to support the entry into the November 2016 CT Plan and the issuance of the November 2016 CT Order. In particular, there was a reasonable basis on which to conclude that without the November 2016 CT Order there was a likelihood that the appellant would suffer substantial mental deterioration.
H. Conclusion
[101] The appeals are dismissed.
I. Costs
[102] The appellant and the respondent have agreed that there will be no costs of these appeals.
Sanfilippo J.
Released: September 29, 2017
CITATION: J.S. v. Dr. Suzanne Legault, 2017 ONSC 5809 COURT FILE NO.: CV-17-571153 DATE: 20170929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.S.
Appellant
– and –
DR. SUZANNE LEGAULT
Respondent
REASONS FOR JUDGMENT
Sanfilippo J.
Released: September 29, 2017