CITATION: Barker v. Patel, 2017 ONSC 6931
COURT FILE NO.: CV-17-569543
DATE: 20171120
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF an application under subsection 32(1) of the Health Care Consent Act, 1996, S.O. 1996, c.2, Sch. A, as amended
AND IN THE MATTER OF CRAIG BARKER A Patient at the CENTRE FOR ADDICTION AND MENTAL HEALTH-QUEEN STREET SITE
RE: CRAIG BARKER, Appellant
AND:
DR. KIRAN PATEL, Respondent
BEFORE: Cavanagh J.
COUNSEL: Kelley Bryan, Amicus Curiae
Kate A. Hunt, for the Respondent
HEARD: November 17, 2017
ENDORSEMENT
Introduction
[1] The appellant, Craig Barker, appeals from a decision of the Consent and Capacity Board (the “Board”) dated February 3, 2017 in which the Board found him incapable of making treatment decisions respecting anti-psychotic medication and ancillary side effect medications. The Board released written reasons for decision dated March 10, 2017.
[2] The Board found that the appellant was unable to perceive that he was experiencing the manifestations of a mental condition and, as such, he was not able to consider the risks and benefits of treatment. The Board found that there was sufficient clear, cogent and compelling evidence to meet the standard of proof that, as a result of a mental condition, the appellant lacked the capacity to appreciate his condition and the reasonably foreseeable consequences of a decision or lack of decision with respect to the treatments proposed.
[3] Submissions were made by amicus curiae counsel in support of the appellant’s appeal.
[4] For the following reasons, the appeal is dismissed.
Background Facts
[5] The appellant was 42 years old at the time of the hearing. He was living in Toronto but is originally from Hamilton, where his parents still reside. He is divorced.
[6] The respondent Dr. Kiran Patel was the appellant’s attending physician at the Centre for Addiction and Mental Health in Toronto (“CAMH”).
[7] The appellant’s current hospitalization stems from criminal charges related to an incident on September 11, 2016. The appellant was found unfit to stand trial in relation to these charges and no evidence was presented at the hearing respecting whether the alleged events were related to a mental disorder.
[8] Following the finding that the appellant was unfit, a 60 day treatment order was made from September 20 to November 21, 2016. The appellant was transferred to Waypoint Centre for Mental Health Care, where he was treated with antipsychotic medication Olanzapine for 60 days pursuant to the order. Despite this course of treatment, he remained unfit by the end of the treatment order. The appellant was remanded to the jurisdiction of the Ontario Review Board (“ORB”). The appellant was subject to a warrant of committal detaining him in a psychiatric facility pending his initial ORB hearing. Due to an error in the warrant of committal, the appellant remained in detention from November 22, 2016 to January 11, 2017 during which he was untreated.
[9] On January 12, 2017, the appellant was transferred to the Centre for Addiction and Mental Health in Toronto (“CAMH”). At the time of the Board hearing, he remained detained at CAMH under the authority of the warrant, awaiting his initial ORB hearing. At CAMH, the appellant was prescribed a low dose of Olanzapine because he requested it to help him sleep, and he said he wanted to continue to take it. This medication was discontinued on January 17, 2017 upon the appellant being found incapable.
[10] At the time of the Board hearing, the respondent had requested but had not received clinical records from the appellant’s 60 day hospitalization at Waypoint, and CAMH had not otherwise obtained collateral information about the appellant’s psychiatric history.
[11] The capacity assessment at issue was conducted by the respondent’s resident, Dr. Misha Hartfeil, on January 17, 2017. Following Dr. Hartfeil’s interview of the appellant, she issued a notice of finding of incapacity. The finding of incapacity applied to two classes of medication: (a) antipsychotic medication, orally or in injectable form; and (b) medication to combat antipsychotic medication side effects, orally or in injectable form.
[12] The Board convened a hearing on February 3, 2017 to hear the appellant’s application to review the finding of incapacity. The appellant was represented by counsel at the hearing. The respondent’s case was presented by Dr. Hartfeil, in the respondent’s presence. The evidence at the hearing consisted of the oral testimony of Dr. Hartfeil and of the appellant. In addition, the Board received documentary exhibits from the parties, primarily a clinical summary prepared by Dr. Hartfeil, along with her capacity assessment note of January 17, 2017 and a follow-up clinical progress note dated January 27, 2017.
[13] The Board released its decision on February 4, 2017 with written reasons following on March 10, 2017.
[14] In the decision, the Board confirmed the respondent’s finding with respect to antipsychotic medication and ancillary side effect medications.
[15] In its reasons, the Board found that there was sufficient clear, cogent and compelling evidence to meet the standard of proof that, as a result of a mental condition, the appellant lacked the capacity to appreciate his condition and the reasonably foreseeable consequences of a decision or lack of decision with respect to the proposed treatment. The Board upheld the finding that the appellant was incapable of consenting to the proposed treatment by way of all forms of antipsychotic medication.
Analysis
[16] A party to a Board proceeding has a statutory right of appeal to the Superior Court of Justice from Board decisions on a question of law or fact or both. The court’s powers are very broad. On an appeal, the court may (a) exercise all the powers of the Board; (b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board; and (c) refer the matter back to the Board, with directions, for rehearing in whole or in part: Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A (the “HCCA”), ss. 32(4), 80(1), 80(10).
[17] Questions of law before the Board are reviewable on a correctness standard, while questions of fact and of mixed fact and law are subject to a reasonableness standard: Starson v. Swayze, 2003 SCC 32, at paras. 5, 84 and 88. On questions of fact or mixed fact and law, the reasonableness standard is concerned with qualities such as justification, transparency and intelligibility in the decision making process, as well as with whether the decision falls within a range of acceptable outcomes that are defensible in view of the facts and the law. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47. A standard of reasonableness involves “respectful attention, though not submission” to the Board’s reasons: Starson, at para. 88.
[18] The HCCA stipulates that all persons are presumed capable to consent to treatment. Capacity does not involve an evaluation of whether the patient’s decision is reasonable or wise, but whether the patient has the capacity to make a decision.
[19] The healthcare practitioner asserting incapacity bears the onus of rebutting this statutory presumption on a civil standard. Clear, cogent and compelling evidence is required to satisfy the standard of proof and displace the statutory presumption of capacity.
[20] Pursuant to section 4(1) of the HCCA, a person is capable with respect to a treatment if he or she is able to (a) understand the information relevant to making a decision about the treatment, and (b) appreciate the reasonably foreseeable consequences of a decision or lack of a decision. The second branch requires that a person have the ability to apply relevant information to his or her situation and to weigh foreseeable risks and benefits.
[21] The respondent concedes, and the Board found, that the appellant passes the first branch of the capacity test, as he is able to understand information relevant to making treatment decisions. The sole issue at the Board hearing was whether the appellant failed the second branch of the capacity test in being unable to appreciate the reasonably foreseeable consequences of decisions about the treatments in question.
[22] The appellant, through the submissions of amicus counsel, raises two issues:
a. Did the Board err in finding that the reasonably foreseeable consequences of the treatment with antipsychotic medication were that the appellant’s mental condition would improve and potentially resolve?
b. Did the Board err in finding the appellant incapable of making treatment decisions respecting “ancillary side effect medications”?
I address each of these issues.
a. Did the Board err in finding that the reasonably foreseeable consequences of the treatment with antipsychotic medication were that the appellant’s mental condition would improve and potentially resolve?
[23] In its reasons, the Board reviewed the evidence given at the hearing on the question of whether the appellant did or did not appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to the proposed treatments. The Board held that “Dr. Hartfeil’s evidence was clear, cogent and compelling that it was more likely than not that there would be improvement in CB with the proposed treatment, and that his manifestations would worsen without it”.
[24] Amicus counsel submits that evidence of incapacity requires that a patient be presented with relevant information respecting, among other things, the foreseeable benefits of treatment. Amicus counsel submits there was insufficient evidence before the Board for it to reasonably find that the reasonably foreseeable consequences of the proposed treatment with antipsychotic medication were presented to the appellant and were such that the appellant’s mental condition would improve and potentially resolve.
[25] Amicus counsel submits that Dr. Hartfeil had no information about the previous course of the appellant’s psychiatric history, previous medications and dosages and whether any of those medications had any benefit to him. Amicus counsel submits that the evidence of Dr. Hartfeil that it was more likely than not that there would be an improvement with antipsychotic medication was not sufficient, and too vague, for the Board to find that the proposed treatment was likely to result in an improvement for the appellant and his specific symptoms.
[26] Counsel for the respondent submits that there is no legal requirement that a patient have experienced a past benefit from a proposed treatment for an anticipated benefit to be a reasonably foreseeable consequence of treatment. Counsel submits that Dr. Hartfeil relied on her expertise as a psychiatrist and her knowledge of typical responses in patients with similar presentation to that of the appellant. Dr. Hartfeil’s evidence was that it was more likely than not that the appellant would experience improvement with the proposed treatment, that there were no alternative treatments as effective for his condition as antipsychotic medication, that antipsychotic medication was essential and that untreated psychosis can have a toxic effect on the brain. Dr. Hartfeil gave evidence that another antipsychotic medication could be tried if the appellant did not respond to Olanzapine.
[27] In my view, the evidence before the Board from Dr. Hartfeil, based upon her expertise and knowledge of typical responses in patients with similar presentations to that of the appellant, provided a reasonable evidentiary basis for the Board to find that the proposed treatment would lead to the reasonably foreseeable consequence of improvement in the appellant’s mental state.
[28] Amicus counsel points to the notes taken by Dr. Hartfeil of her capacity interviews of the appellant and submits that they do not disclose that she told the appellant that the reasonably foreseeable consequences of treatment with antipsychotic medication were that his symptoms would improve or resolve. In Dr. Hartfeil’s clinical summary to the Board, she wrote that “Mr. Barker has been informed of the proposed treatment plan, including the use of antipsychotic medications and medications to manage side effects, should they arise. He has been informed of the potential benefits of the proposed treatment, namely improvement or resolution of his symptoms. He has been informed that choosing not to take the proposed medications will result in continued symptoms and potentially deterioration”. Amicus counsel submits that the notes of the capacity interview do not include this information.
[29] Counsel for the respondent agrees that there is an expectation that in a capacity assessment that there be a discussion with the patient about the benefits and risks of the proposed treatment. Counsel submits that there was ample evidence before the Board that Dr. Hartfeil had such discussions with the Appellant. Counsel points to the progress notes of Dr. Hartfeil in the record before the Board in which Dr. Hartfeil records a number discussions with the appellant about the proposed treatment, what it was to address, and the expectation that the symptoms he was experiencing would be expected to improve with treatment.
[30] The progress notes refer to discussions about the Olanzapine medication and its effect on the appellant’s symptoms, the appellant’s wish to discontinue the medication, and the treatment that is proposed for schizophrenia. These notes show that there were discussions with the appellant about the treatment that was proposed, and what the proposed treatment was to address.
[31] Counsel for the respondent also submits that even if there had not been such discussions, it was not necessary for the respondent to present evidence establishing an independent factual foundation for Dr. Hartfeil’s clinical opinion concerning the anticipated benefits of the proposed treatment, or for the Board to have conducted an independent analysis of this question, in the circumstances of this case, where the appellant was unable to appreciate that information about the proposed treatment had any application to his circumstances.
[32] In Wilkie v. Gajewski, 2014 ONCA 897, the Court of Appeal addressed the quality of evidence needed to support a finding of incapacity in that case, and, at paras. 52-53, Epstein J.A. wrote:
As stated above, Dr. Wilkie testified that the medication would diminish the intensity of the appellant’s delusions. True, she did not present the board with anything beyond her professional opinion that the proposed medication would help the appellant. However, with respect, the appellant’s submissions on the efficacy of the proposed medication are not particularly germane to the question before the Board. As stated by Doherty J.A. in Giecewicz, at para. 43:
It is not the Board’s task to weigh the risks and benefits of the proposed treatment or to make any determination as to the advisability of the treatment from a medical standpoint. The issue before the Board was the appellant’s capacity to make the relevant decisions.
The only relevance of submissions relating to the benefits and side effects of the proposed medication to the question of capacity is whether the appellant has a rational justification for refusing the treatment. While I do not doubt that the appellant has a sincere, and perhaps justified, concern about potential adverse effects from the proposed medication, the rational nature of this concern cannot, on its own, overcome the preponderance of evidence that supports the reasonableness of the Board’s finding of incapacity on the second branch.
[33] The Board found that the appellant was “not able to perceive that he was experiencing the manifestations of a mental condition and, as such, he was not able to consider the risks and benefits of treatment”. This finding was sufficient to establish the appellant’s inability to appreciate the reasonably foreseeable consequences of his decisions. In my view, the decision of the Court of Appeal in Wilkie supports the reasonableness of the Board’s finding in respect of the appellant on the second branch of the test.
[34] For these reasons, I conclude that there was sufficient evidence before the Board for it to find that the reasonably foreseeable consequences of the proposed treatment were that the appellant’s mental condition would improve and potentially resolve. This finding is reasonable and one to which deference should be given. I also conclude, relying upon Wilkie, that in these circumstances it was not necessary for the Board to have received such evidence in order for it to make a finding of incapacity on the part of the appellant with respect to the proposed treatment.
b. Did the Board err in finding the appellant incapable of making treatment decisions respecting “ancillary side effect medications”?
[35] Dr. Hartfeil had included in her finding of incapacity a finding that the appellant was incapable respecting side effect medication. The appellant applied to the Board for a review of the finding of incapacity, without restriction. At the outset of the hearing, Dr. Hartfeil stated that the side effect medication was ancillary treatment to the antipsychotic medication. At the hearing, there was nothing more said on the subject of the side effect medication.
[36] The Board issued its decision and made a finding that the appellant was incapable, in part, regarding side effect medications. In its reasons, the Board wrote:
It was noted during the hearing that side effect medication was proposed, ancillary to antipsychotic medication and as a result, the panel did not address capacity for the side effects medication.
Amicus counsel submits that the Board erred in law in its finding that the appellant was incapable regarding side effect medication.
[37] Capacity is treatment specific. The HCCA, in s. 15(1), provides that a “person may be incapable with respect to some treatments and capable with respect to others”.
[38] Section 23 of the HCCA addresses ancillary treatment:
Authority to consent to a treatment on an incapable person’s behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.
[39] Amicus counsel submits that s. 23 of the HCCA addresses authority to consent to treatment, not capacity to consent to treatment, and that the effect of s. 23 is not a sufficient justification for the Board to make a finding of incapacity on the part of the appellant with respect to ancillary treatment.
[40] The respondent submits that it was unnecessary for the Board to address evidence concerning the appellant’s capacity with respect to side effects medications that are ancillary to the primary treatment because of the effect of s. 23 of the HCCA.
[41] Amicus counsel submits, in particular, that (i) the Board erred failing to consider evidence and give reasons in respect of the appellant’s capacity to consent to side effects medications, (ii) the Board erred by failing to provide notice to the appellant and his counsel that it intended to dismiss, or decline to consider, this part of the appellant’s application for review of the finding of incapacity, (iii) having failed to consider evidence of the appellant’s capacity respecting side effects medications, the Board erred in deciding that the appellant was incapable in respect of such medications, and (iv) the Board’s reasons are inconsistent with its decision because the decision finds that the appellant is incapable respecting side effects medication, while the reasons seem to say that the Board did not consider his capacity in that regard.
[42] Section 23 of the HCCA is engaged where it is established that a treatment is necessary and ancillary to a primary treatment. In this case, the respondent submits that it was clearly established that the side effects medication was ancillary to the primary treatment of antipsychotics medication. Counsel for the respondent notes that there was no cross-examination at the hearing by appellant’s counsel on the appellant’s capacity with respect to side effects medication, and she submits that this was because it is accepted that the Board does not need to separately undertake an analysis as to whether a person is capable with respect to ancillary treatment where the ancillary link is established.
[43] This question was addressed in Mladenovic v. Papatheodorou, 2015 ONSC 754 where, at para. 14, Pollak J. accepted that the relevant jurisprudence holds that if a person is found incapable with respect to a primary treatment, he or she is also incapable with respect to ancillary treatments, including side-effects medication. See also Mitchell v. Banik, 2017 ONSC, at paras. 43-46.
[44] The respondent submits that Dr. Hartfeil directly answered at the hearing that the side effect medication would be ancillary treatment to the antipsychotic treatment and that the link between the primary treatment and the ancillary treatment was clearly established in the evidence. The respondent submits, therefore, that it was unnecessary for the Board to separately consider the question of the appellant’s capacity with respect to side effects medication, and that it made no error in law in making its decision.
[45] I agree with the respondent that health care professionals would be in a very challenging clinical situation if they are able to administer primary treatment to a patient who is incapable with respect to such treatment without the ability to address potentially harmful side effects through administration of ancillary treatment for side effects. Section 23 of the HCCA addresses this very circumstance.
[46] I agree with the approach taken to this question by Pollak J. in Mladenovic. In my view, given the clear evidence before the Board of the link between the primary treatment and the ancillary treatment, the effect of s. 23 of the HCCA is such that it was not necessary for the Board to have considered evidence of the appellant’s specific capacity with respect to ancillary treatment to the primary treatment and to make specific findings in this respect.
[47] For these reasons, I conclude that the Board did not err in law in finding the appellant incapable of making treatment decisions respecting ancillary side effect medications.
Disposition
[48] The appellant’s appeal is dismissed.
[49] I may be spoken to concerning costs, if necessary.
Cavanagh J.
Date: November 20, 2017