Court File and Parties

CITATION: Elder v. Klukach, 2017 ONSC 677

COURT FILE NO.: CV-16-560258

DATE: 2017-01-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacqueline Elder

AND:

Dr. John Klukach

BEFORE: Madam Justice Jasmine T. Akbarali.

COUNSEL: Kendra A. Naidoo, for the Moving Party/Respondent

Ken J. Berger, for the Responding Party/Appellant

HEARD: January 20, 2017

ENDORSEMENT

Overview of the Motion

[1] The moving party/respondent, Dr. John Klukach, brings this motion for an order pursuant to s. 19 of the *Health Care Consent Act, 1996*, S.O. 1996, c. 2, Sched. A., seeking authorization to treat Jacqueline Elder pending the final resolution of her appeal from the decision of the Consent and Capacity Board, dated September 5, 2016. In that decision, the Board confirmed Ms. Elder’s involuntary status and confirmed her incapacity to consent to treatment with antipsychotic medication in all its forms, side effects medication, and mood stabilizers.

[2] Ms. Elder is currently being treated with, among other things, anti-psychotic medication. Dr. Klukach seeks an order authorizing a change in her anti-psychotic medication to a drug called clozapine. The parties agree that, because Ms. Elder is challenging the Board’s finding of incapacity, under the Act this change cannot be made unless this court authorizes it.

[3] I conclude that the criteria in s. 19 of the Act are met and an order authorizing a change in Ms. Elder’s anti-psychotic medication to clozapine is warranted.

The Evidentiary Record

[4] Ms. Elder filed no evidence and no written submissions on the motion. However, at the hearing, her counsel cross-examined Dr. Sacha Agrawal on his affidavit filed on the motion. Dr. Agrawal is the psychiatrist responsible for following Ms. Elder’s care in the community pursuant to a Community Treatment Order issued on August 9, 2016. Since the CTO was issued, Ms. Elder has been re-admitted to the Centre for Addiction and Mental Health, where Dr. Agrawal is a member of the active medical staff. He continues to be involved in her care.

[5] The evidentiary record before me thus consists of the moving party’s motion record, containing Dr. Agrawal’s affidavit and the exhibits thereto, the record of proceeding and the transcript of proceeding before the Board, and the cross-examination of Dr. Agrawal that took place before me. Ms. Elder’s counsel resisted the motion for authorization to treat Ms. Elder. I therefore assume that, notwithstanding the absence of evidence from Ms. Elder, she does not want to be treated with clozapine.

The Admissibility Issues

[6] Without having put the moving party on notice, Ms. Elder’s counsel challenged the admissibility of some of the evidence before me. First, he challenged the clinical summary co-authored by Dr. Agrawal and attached to his affidavit as Exhibit A. This challenge appeared to be based on the fact that the clinical summary was not a medical record made in the ordinary course and that it contained hearsay evidence. He also challenged the clinical notes attached as Exhibit B to Dr. Agrawal’s affidavit to the extent that they contained hearsay evidence. Ms. Elder’s counsel provided me with no jurisprudence on these issues. Dr. Klukach’s counsel had no submissions because she was not on notice that the issue would be raised. In the circumstances, I gave the parties six days to file written submissions of no more than three pages on the question of the admissibility of the hearsay evidence.

[7] Despite my clear direction, Ms. Elder’s counsel filed six pages of written submissions[^1] on several issues, including some he did not raise at the hearing. This creates a fairness concern because I directed the parties to exchange submissions, not deliver them one after the other. Dr. Klukach has thus had no opportunity to respond to these new issues raised by Ms. Elder’s counsel. In particular, Ms. Elder’s counsel argues for the first time that Dr. Agrawal was not qualified as an expert, did not comply with his expert’s duty, and that the court “ought to be extremely careful accepting psychiatric evidence to begin with, as it is not a science for the most part, and is highly subjective and dependent on the observer”.

[8] I will address each objection to the evidence.

[9] The clinical summary is not a medical record made in the ordinary course; however, this fact is not relevant to the question of its admission. Dr. Klukach does not seek to rely on the exception for medical records in introducing the clinical summary. Rather, the clinical summary is a document co-authored by Dr. Agrawal and he has identified it as such in his affidavit. Subject to the hearsay concern, which I address below, the document is admissible.

[10] The hearsay concern raised by Ms. Elder’s counsel is the same for both, the clinical summary and the clinical notes. The clinical summary draws heavily on the clinical notes. To the extent the summary includes hearsay evidence, that evidence has its origin in the clinical notes. The issue is thus whether the hearsay in the notes is admissible.

[11] There are two types of hearsay in the clinical notes. First, there is the evidence of things directly observed by the recorder of the notes, for example, a nurse’s observations of Ms. Elder’s demeanour in hospital. This type of hearsay in medical notes is permitted: see Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 at p. 626.

[12] Second, there is double hearsay, that is, hearsay evidence that is recorded in the notes but is not in the first-hand knowledge of the recorder. Examples of this include reports of Ms. Elder’s personal history, a report that she lost her housing placement when she assaulted a staff member, and reports that she has assaulted other people in the community. Some of these notes record reports made by Ms. Elder or her mother; others record reports made by police or staff from the housing placement she lost. Some of the double hearsay in the clinical notes is also in direct evidence, through the transcript of the examination of Ms. Elder’s mother before the Board. For example, Ms. Elder’s mother testified about occasions when she was assaulted by Ms. Elder.

[13] I note that while Ms. Elder’s counsel objects to the admissibility of the double hearsay evidence in the clinical notes, he also sought to rely on some of it, including, for example, evidence that Ms. Elder had been having difficulties at her housing placement due to her lifestyle choices, including bringing men home and abusing substances.

[14] Dr. Klukach argues that the double hearsay is admissible pursuant to s. 35 of the *Ontario Evidence Act*, R.S.O. 1990 c. E. 23, and that any concerns about the lack of personal knowledge of the recorder of the notes goes to weight, not admissibility. I have no evidence before me that the appropriate notice was given under s. 35 of the OEA. Accordingly, I do not rely on s. 35 of the OEA to admit the double hearsay.

[15] Dr. Klukach also argues that the double hearsay is admissible under the principled approach to hearsay articulated by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57; [2006] 2 S.C.R. 787. This approach requires me to assess whether the hearsay evidence is reliable and necessary.

[16] I find that the statements in the notes that record reports from the police and staff from the housing placement are reliable. These are reports that were given to CAMH staff in the course of duty of the officers and housing staff. The reports of Ms. Elder’s behaviour is consistent with the direct evidence of her behaviour that is before me. The circumstances in which these statements were made indicate that there is no real concern about their truth.

[17] I also find that these statements are necessary. It is not practical, especially in the urgent circumstances of this motion, to track down and lead evidence from each person whose report was recorded in the clinical notes.

[18] I do not admit evidence of Ms. Elder’s history that appears in the notes from other sources. I accept that it is standard practice to include such histories in the clinical notes. However, much of that evidence originates with Ms. Elder’s mother. As I noted, Ms. Elder’s mother gave evidence before the Board. Her transcript includes direct evidence of some of the evidence that is hearsay in the clinical notes. Ms. Elder’s mother could have given further evidence on this motion if required. The necessity criterion is thus not satisfied with respect to the double hearsay evidence in the clinical notes that originates with Ms. Elder’s mother.

[19] I also do not admit the double hearsay consisting of reports made by Ms. Elder. There is evidence before me that she suffers from delusions – for example, she believes she invented and owns Facebook. Accordingly, the reliability criterion is not met with respect to her evidence.

[20] Although I have admitted some of the double hearsay evidence and will refer to some of it in my analysis below, this evidence was not necessary to my conclusions. I would have reached the same conclusions even had I considered only the direct evidence before me and the hearsay in the clinical notes that is permitted based on Ares. Thus, the double hearsay evidence I have admitted supports, but does not determine, my analysis and conclusions.

[21] Although Dr. Klukach had no opportunity to address it, I will consider the issues Ms. Elder’s counsel raises with respect to Dr. Agrawal. As I noted, counsel, in written submissions, expanded the issues on which he had been permitted to file supplementary argument. For the first time, he argues that Dr. Agrawal was not properly qualified and was in breach of his expert’s duty.

[22] In Westerhof v. Gee Estate, 2015 ONCA 206 at paras. 6 and 60, the Court of Appeal held that a treating physician can provide expert opinion evidence for the truth of its contents without complying with the formal requirements of r. 53.03 of the *Rules of Civil Procedure*, R.R.O. 1990, Reg. 194 where the opinion is based on the witness’s participation in the events in issue, and the witness formed his opinion as part of the ordinary exercise of his skill, knowledge, training and experience while participating in such events. Dr. Agrawal is a participant expert as described in Westerhof. He has participated in Ms. Elder’s care and formed his opinions based on the exercise of his skill, knowledge, training and experience while participating in Ms. Elder’s care. I therefore decline to exclude his evidence.

[23] I also reject Ms. Elder’s counsel’s argument that psychiatric evidence “is not a science for the most part, and is highly subjective and dependent on the observer”. Psychiatry is a well-known, well-established branch of medicine. If Ms. Elder’s counsel seeks to establish that it is “not a science for the most part” he must do more than simply assert the proposition in his written submissions.

Statutory Scheme

[24] Section 18 of the Act provides that a health practitioner shall not begin treatment for a person who has been found incapable with respect to the treatment if the person has appealed the finding of incapability. In this case, Ms. Elder’s treatment with the anti-psychotic haloperidol, valproic acid and lorazepam had already begun when she contested the finding of incapacity and her involuntary status. Since that time, her treatment with these drugs has been maintained without change. However, the parties agree that to change her medication, Dr. Klukach requires an order under s. 19.

[25] Section 19(1) provides that, where an appeal is taken from a decision of the Board that has the effect of authorizing a person to consent to treatment, the treatment may be administered before the final disposition of the appeal, despite s. 18, if the court to which the appeal is taken so orders and consent is given. Section 19(2) sets out the criteria for the court to make the interim treatment order. In this case, it requires that I be satisfied that:

a. The treatment will or is likely to improve substantially Ms. Elder’s condition, and her condition will not or is not likely to improve without the treatment;

b. The benefit Ms. Elder is expected to obtain from the treatment outweighs the risk of harm to her;

c. The treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

d. Ms. Elder’s condition makes it necessary to administer the treatment before the final disposition of the appeal.

[26] In this case, Ms. Elder’s mother is her substitute decision maker and consents to the treatment. The issue is therefore whether the four criteria in s. 19(1) of the Act are made out.

Analysis

[27] In Gunn v. Koczerginski, 109 A.C.W.S. (3d) 808 (Ont. S.C.J.) at para. 8, Molloy J. accurately set out the serious nature of the relief sought in a motion for an interim treatment order:

Forcible treatment against [the patient’s] will is a serious infringement of his right to self-determination, physical integrity, liberty and security of the person. It should only be undertaken if truly necessary and, even then, only with proper consideration and respect for these important personal rights.

[28] I am guided by these principles in my analysis of the relevant criteria.

(a) Is Ms. Elder’s condition likely to improve substantially with treatment, and not likely to improve without treatment?

[29] Ms. Elder is a 27 year old single woman. She was diagnosed with schizophrenia approximately four years ago while she was a law student in London, England. She has had over a dozen admissions to hospital in the last three years, including three admissions to CAMH in 2016. She is currently admitted to CAMH involuntarily.

[30] Prior to her diagnosis she was a high-functioning and promising student. When unwell, as she is now, she is disorganized, paranoid, agitated, unpredictable and erratic.

[31] Ms. Elder has engaged repeatedly in acts of violence, both in the community and towards staff and co-patients at CAMH. Dr. Agrawal testified that Ms. Elder continues to need an inpatient environment due to her ongoing psychotic symptoms and erratic behaviour. Her violent behaviour at CAMH has forced staff at CAMH to resort to the use of locked seclusion and other restraints on a regular basis. At the time I heard this motion, Ms. Elder was in locked seclusion at CAMH.

[32] Ms. Elder exhibits high-risk, impulsive, hyper-sexual behaviour, including exposing herself and seeking out the male ward at CAMH. She has been sexually assaulted once at CAMH.

[33] As I have noted, Ms. Elder is currently being treated with the antipsychotic haloperidol, valproic acid and lorazepam. She has been on this medication for about four months, and for at least the last two months has had good adherence due to the fact that she has been an inpatient since November 10, 2016. She has had an adequate trial of the treatment, but it has not successfully improved her disorganization, erratic behaviour or aggression. In addition, Ms. Elder has had earlier, adequate trials of other antipsychotic medication, including Paliperidone and Aripiprazole, which have also been unsuccessful, achieving, at best, only a partial response.

[34] Dr. Agrawal deposed that treatment refractory schizophrenia is characterized by symptoms that do not remit after an adequate trial of two or more antipsychotic medications. Since Ms. Elder has only had partial response to the treatments she is on currently and has had in the past, Dr. Agrawal deposed that the probability of her symptoms responding to antipsychotic medication other than clozapine is less than 10%. Clozapine is the first line treatment for treatment-resistant schizophrenia and has been shown to be effective.

[35] Dr. Agrawal testified he believes Ms. Elder’s condition is likely to improve substantially with clozapine and not likely to improve without it.

[36] Dr. Agrawal expects that with clozapine, Ms. Elder’s psychotic symptoms, including disorganization, paranoia and agitation, will improve or go into remission. This will mitigate her propensity for violence and decrease her risk of involvement with the criminal justice system. It will alleviate the need for Ms. Elder to be placed in locked seclusion or subject to other physical or chemical restraints.

[37] Clozapine is also likely to improve Ms. Elder’s impulsivity and hyper-sexual behaviour. Dr. Agrawal testified that Ms. Elder’s impulsive and hyper-sexual behaviour puts her at risk of sexual assault, sexually transmitted diseases and pregnancy, especially since she has refused contraceptive treatment.

[38] Clozapine is also likely to improve Ms. Elder’s restlessness and insomnia.

[39] Clozapine may reduce Ms. Elder’s substance abuse, and improve her compliance with treatment, both of which have been barriers in the past to her successful treatment, but not alone responsible for her failure to respond to treatment. For example, she has been an inpatient at CAMH since November 2016 without access to substances and in compliance with her current treatment regime, yet she is still exhibiting psychotic symptoms.

[40] Dr. Agrawal also deposed that, with clozapine, some patients experience dramatic improvement in their functional status, including a return to stable housing, the ability to engage in meaningful social and occupational activities and the ability to repair significant relationships. He testified that, for some patients, clozapine is “nothing short of a miracle”.

[41] In contrast, without clozapine, there is little prospect for Ms. Elder’s condition to improve. Her current and past treatments have not sufficiently abated her symptoms. Dr. Agrawal deposed that her current clinical condition is deteriorating.

[42] When released into the community, Ms. Elder’s behaviour is reported to be aggressive and violent. She abuses substances and does not comply with her medication (although that may have improved as a result of the CTO). This sets in motion a cycle where Ms. Elder is repeatedly returned for readmission to hospital.

[43] In cross-examination and argument, Ms. Elder’s counsel sought to make something of the fact that Dr. Agrawal did not depose that Ms. Elder’s condition was “likely to improve substantially” with clozapine. Dr. Agrawal indicated in cross-examination that he indeed thinks that her condition is likely to improve substantially with clozapine. In any event, it is not the recitation of a particular phrase that meets this element of the test, but an assessment of whether the evidence led supports a conclusion that Ms. Elder’s condition is likely to improve substantially with clozapine, and is not likely to improve without it.

[44] Ms. Elder’s counsel also relies on a single study in which 32% of patients given clozapine did not meet clinical response criteria. Counsel argues that Ms. Elder’s condition is thus not likely to improve substantially with clozapine. Dr. Agrawal agreed that the study was peer-reviewed and that it was published in a journal that he reads. However, he was concerned that the study’s findings were not applicable to Ms. Elder. The cohort was small, and the mean length of illness in the patients studied was fifteen years, a factor which made Dr. Agrawal question the relevance of this study to Ms. Elder. Dr. Agrawal did not accept the study as authoritative and did not accept the applicability of its findings to Ms. Elder. In any event, even in this study, over 2/3 of patients responded to clozapine, albeit many of them after the period of time within which Dr. Agrawal expects to see improvement in Ms. Elder.

[45] Ms. Elder’s counsel also argues that Ms. Elder in fact has a personality disorder, and made reference to the clinical notes that describe the observation of Cluster B personality traits in Ms. Elder. He suggested that a personality disorder would not respond to clozapine. Dr. Agrawal testified that the presence of Cluster B personality traits is not equivalent to a diagnosis of Cluster B personality disorder. He confirmed that Ms. Elder’s diagnosis is schizophrenia. Accordingly, clozapine is an appropriate treatment.

[46] Based on the evidentiary record, I conclude that Ms. Elder’s condition is likely to improve substantially with clozapine and is not likely to improve without it.

(b) Does the benefit outweigh the risk of harm?

[47] Ms. Elder’s counsel argues that the side effects of clozapine are serious and can be life-threatening. He argues it is a dangerous drug and since Ms. Elder has not taken it before, we do not know how she will respond to it. He also argues that Ms. Elder’s history of non-compliance with treatment may put her at risk with this drug, which must be taken daily.

[48] Dr. Agrawal disagreed that clozapine is dangerous. He agreed that there are risks, but testified that the risks are understood and can be managed. The most serious risks are rare. Moreover, there is a plan to manage the risks to Ms. Elder that includes performing a physical examination and baseline blood work prior to treatment. Ms. Elder would then be started on a low dose of clozapine and titrated up very slowly over two to three weeks with careful monitoring of her clinical condition, vital signs and behaviour. During this process, and in the weeks following the commencement of the clozapine trial, Ms. Elder will remain in hospital.

[49] The expectation is that eventually Ms. Elder will be well enough to be discharged into the community. Dr. Agrawal deposed that with clozapine, Ms. Elder is more likely to be compliant with treatment and less likely to abuse substances. He is optimistic about Ms. Elder’s ability to successfully reintegrate into the community with clozapine.

[50] Based on this evidence, I conclude that the benefits of clozapine outweighs the risk of harm to Ms. Elder. The side effects of clozapine can be managed so that the risk of harm to her is minimal, while the likely benefit is great.

(c) Is the proposed treatment the least restrictive and least intrusive means that meets the requirements of the first two elements of the test?

[51] This third element of the test asks, in effect, if there is a better alternative that meets the requirements of the first two elements of the test. It asks the court to examine the options available in the circumstances.

[52] One option for Ms. Elder is the use of multiple antipsychotics, which Dr. Agrawal deposed would increase the risk of serious side effects. Another option is electroconvulsive therapy, which is far more intrusive.

[53] The only other option is the status quo, but it does not meet the requirements of the first element of the test, for the reasons I have explained above. Nor does it meet the requirements of the second element of the test because the benefit of avoiding the side effects of clozapine do not outweigh the harm and risk to Ms. Elder if she remains sub-optimally treated.

[54] I also take into consideration the fact that Ms. Elder is already on antipsychotic medication. As a result, I am not considering whether to authorize treatment with an antipsychotic medication, but whether to authorize treatment with a different antipsychotic medication. Changing antipsychotic medication is less intrusive than beginning treatment with antipsychotic medication.

[55] I conclude that clozapine is the least restrictive and least intrusive means that meets the requirements of the first two elements of the test.

(d) Is it necessary to administer the treatment before the final disposition of Ms. Elder’s appeal?

[56] Ms. Elder’s appeal is scheduled to be heard on April 27, 2017, about three months from now. Dr. Agrawal deposed that clozapine is likely to demonstrably improve Ms. Elder’s condition in the first month after treatment is begun, and that she may continue to improve for up to six months thereafter.

[57] Dr. Agrawal deposed that the longer Ms. Elder goes without treatment, the more likely she may develop psychosis-related post-traumatic stress disorder (PRPTSD). If she develops PRPTSD it would be less likely that she will be able to have a positive functional outcome. Dr. Agrawal also deposed that there is scientific evidence to suggest that untreated psychosis has a toxic effect on the brain, and long periods of untreated psychosis can have a negative impact on a person’s responsiveness to medications and the likelihood that they will recover functionally after a psychotic episode.

[58] These factors, without more, might not justify an order in advance of the appeal. As was the case in Gunn at para. 12, these are general statements that could apply to any patient.

[59] However, in this case there are other considerations. Ms. Elder’s hyper-sexual behaviour puts her at risk of sexual assault. She has been sexually assaulted while in hospital. Her combative behaviour puts her at risk for involvement with the criminal justice system.

[60] Ms. Elder’s behaviour also puts others at risk. There is evidence that the housing director she assaulted was off work for two weeks. Ms. Elder’s mother requires physiotherapy as a result of an injury she sustained during one of Ms. Elder’s assaults.

[61] Even leaving aside the evidence of her assaults on others in the community, there is ample evidence before me of Ms. Elder’s assaultive behaviour towards staff and co-patients at CAMH. Her counsel tried to minimize the assaultive behaviour, reducing an incident in which Ms. Elder threw hot coffee at a co-patient to her “spilling” coffee, and alleging that the incidents were minor and without serious consequences. There is no evidence before me as to how severe the injuries have been when Ms. Elder has assaulted staff and co-patients at CAMH, but her behaviour has, at the very least, the potential to cause serious injury. I reject Ms. Elder’s counsel’s submission that throwing hot coffee at someone is a minor incident; such an assault can lead to serious injuries. Her other assaultive behaviour includes kicking and punching, which can also lead to serious injuries.

[62] Thus far, to manage the risk of violence presented by Ms. Elder’s behaviour, she has suffered regular restrictions on her liberty, including involuntary hospitalization, the use of restraints and being placed in locked seclusion. As I have noted, her violent behaviour also places her at risk for involvement with the criminal justice system.

[63] Given these factors, I conclude it is necessary to administer treatment before the final disposition of the appeal, which is at least three months away. In other cases, courts have found that treatment cannot be delayed where there is a real and significant risk to the patient and others: see S.R. v. Hutchinson (2009) 177 A.C.W.S. (3d) 499 (S.C.J.) at para. 30 (where the appeal was scheduled to be heard three weeks after the motion) and Woods v. Dr. Baici, 2013 ONSC 4397 at paras. 15 and 20-21 (where the appeal was scheduled to be heard about two months after the motion).

[64] Moreover, I have concerns about whether this appeal will actually proceed on April 27, 2017. Ms. Elder’s counsel assures me it will. However, Dr. Klukach’s counsel has some doubt. As she points out, the appeal raises the constitutionality of certain legislative provisions. Although the Notice of Appeal was delivered in September 2016, no Notice of Constitutional Question has been served upon the Attorneys General, and the appeal has not been perfected. It is possible the appeal will be delayed. It is also possible a decision will take some time to render, given the constitutional questions Ms. Elder is raising.

[65] This factor is not determinative, but it supports my conclusion that treatment cannot wait.

[66] Ms. Elder’s counsel argues that CAMH has had four years to treat Ms. Elder with clozapine, and did not, so its own actions demonstrate that there is no urgency. I do not accept this argument. Ms. Elder’s clinical history demonstrates that she has been treated in the past with trials of different antipsychotic medication. Ms. Elder’s treatment was punctuated by periodic discharge from hospital and was, at times, fractured as a result. It is only after at least two unsuccessful trials of antipsychotic medication that a patient can be considered refractory to treatment. Clozapine is appropriate for treatment-resistant schizophrenia. It took the failed trials for Ms. Elder’s physicians to conclude that clozapine was the appropriate antipsychotic medication for her. This is not a case of Ms. Elder’s physicians delaying the appropriate care.

Conclusion

[67] I authorize Dr. Klukach and the team at CAMH to treat Ms. Elder with the anti-psychotic medication clozapine pending the final disposition of the appeal of the September 5, 2016 decision of the Consent and Capacity Board.

The Honourable Madam Justice J. T. Akbarali

Date: January 27, 2017.

[^1]: Single-spaced, and including an “appendix” that might have been evidence in the motion had it been properly proved. Since it was not, I will not consider it.