Court File and Parties

COURT FILE NO.: CV-16-00547662

DATE: 2018-03-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARGARET SNELL AND: DR. DON HEAD

BEFORE: P. J. Monahan J.

COUNSEL: D’Arcy Hiltz, for the Appellant Mark Handelman, for the Respondent

HEARD: February 27, 2018

IN THE MATTER OF an application pursuant to section 32(1) of the Health Care Consent Act, S.O. 1996, c.2, Sch. A., as amended, and IN THE MATTER OF MARGARET SNELL

ENDORSEMENT

[1] Ms. Margaret Snell (the “Appellant”) appeals from a decision of the Consent and Capacity Board (the “Board”) dated February 23, 2016, confirming a finding that she was not capable of consenting to treatment with antipsychotic and side effect medications. The Appellant raises a number of issues, including whether the evidence of Dr. Don Head (the “Respondent”) was corroborated by other evidence; whether the Respondent conducted an examination sufficient to determine the Appellant’s capacity; and whether the Appellant’s refusal to participate in an assessment justified the failure to inform her of the consequences of the treatment decision.

[2] The parties are agreed that the standard of review of the Board’s decision is whether it was correct in Law and reasonable in result. In my view, the Board correctly instructed itself as to the relevant legal framework and its confirmation that the Appellant was incapable of consenting to treatment was reasonable. Accordingly, for the reasons that follow, the appeal is dismissed.

Facts

[3] The Appellant is a 62-year-old woman who resided in Mississauga prior to her admission to hospital on January 23, 2016 to treat diffuse swelling and difficulty with mobilization. Since she was unable to walk and get out of bed she had contacted the fire department on several occasions to assist her in getting into and out of bed. The Appellant has a history of obesity, osteoarthritis, hypothyroidism and sleep apnea.

[4] During her hospital admission the Appellant appeared agitated, irritable and was verbally abusive toward staff. Much of her agitation appeared to stem from a belief that she was being harassed by a local television and radio personality. The Appellant felt that this personality was jealous of her and had interfered with a potential relationship between the Appellant and another media personality. In addition, the Appellant believed that the air in the hospital and her home was being poisoned.

[5] As part of her discharge planning from hospital, the Appellant’s treatment providers were of the view that her delusional thinking interfered with her ability to benefit from community supports because her agitation and irritability were driving caregivers away. Her attending physician requested a psychiatric consultation from the Respondent. The Respondent determined that the Appellant suffered from a delusional disorder and found that she lacked the capacity to consent to treatment of that disorder.

[6] The Appellant applied to the Board to review the Respondent’s finding of incapacity. The Board found, on the basis of the evidence of the Respondent as well as that of the Appellant herself, that the Appellant was suffering from mental disorder on the date of hearing. In its review of the evidence, the Board found that the Appellant’s responses and her own description of her behaviours were consistent with the symptoms of delusional disorder that the Respondent had identified.

[7] In its analysis of capacity to consent to treatment, the Board concluded that there was insufficient evidence to establish that the Appellant was unable to understand the information relevant to making a decision about the treatment in question. However the Board went on to find that the Appellant was unable to appreciate that her behaviours were symptoms of a mental condition, namely, delusional disorder.

[8] In the opinion of the Board, the evidence of both the Respondent and the Appellant established that the Appellant was unable to acknowledge that she had any mental condition that may benefit from treatment. Thus the Appellant was unable to apply the information about the benefits and risks of treatment to her own situation. Consequently, she was unable to appreciate the reasonably foreseeable consequences of a treatment decision and lacked the capacity to consent to treatment of a mental disorder. The Board therefore confirmed the finding of the Respondent that the Appellant was incapable of consenting to treatment with antipsychotic and side effect medications.

Applicable Law

[9] There is no dispute between the parties with respect to the relevant legal framework governing this appeal.

[10] With respect to the standard of review of Board decisions, the standard of review for questions of law is correctness while, for questions of mixed fact and law or questions of fact alone, the standard of review is reasonableness. The issues on this appeal are factual or questions of mixed fact and law. Accordingly, the parties are agreed that the standard of review is reasonableness. The question is whether the Board’s decision was among the range of conclusions that could reasonably have been reached on the law and the evidence before it.

[11] The test for capacity with respect to treatment is found in section 4 of the Health Care Consent Act, 1996,[^1] which provides as follows:

4(1) A person is capable with respect to a treatment… if the person is able to understand the information that is relevant to making a decision about the treatment… and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[12] A person is presumed capable with respect to treatment. The onus of proving incapacity is on the person alleging it. Further, capacity can fluctuate over time, with the relevant time being the time of the hearing.

Issues on Appeal

[13] The Appellant argues that the Board decision was unreasonable and should be overturned on the following grounds:

a. there was insufficient corroboration of the Respondent’s evidence regarding incapacity;

b. there was insufficient examination of the Appellant by the Respondent sufficient to establish a finding of incapacity; and

c. there was a failure to adequately inform the Appellant of the consequences of making or not making a decision regarding treatment.

[14] I will consider each of these grounds of appeal in turn.

Corroboration

[15] The Appellant argued that there was insufficient corroboration of the Respondent’s finding of incapacity, as required by section 14 of the Evidence Act.[^2] In particular, the Appellant maintained that the Respondent did not have any evidence as to whether she was agitated with other caregivers and in the community generally. The Appellant had reported that prior to her admission to hospital several service providers had refused to assist her because of her weight and not because she was agitated or could not get along with people.

[16] In its review of the Respondent’s findings, the Board noted that the Respondent had met with the Appellant on nine occasions. At their initial meeting on January 25, 2016 they spoke for approximately 45 minutes. At that meeting, the Respondent informed the Appellant about the concerns regarding her behaviour. The Appellant denied having any psychiatric illness. The Respondent’s attempt to pursue the subject generated wailing and screaming that could be heard halfway down the hallway, with the result that the Respondent was unable to continue the meeting.

[17] This behaviour was repeated throughout the remaining eight meetings between the Respondent and the Appellant. These meetings ended because the Appellant’s agitation was so severe, as manifested by yelling, wailing, threatening legal action and accusations of abuse, that the Respondent would be forced to leave.

[18] The Respondent observed that as long as hospital staff avoided discussing the Appellant’s diagnosis and treatment, she showed improvement in her ability to engage with them. However, because the Appellant was unwilling to acknowledge that she had any type of mental condition, the Respondent concluded that she was unable to apply information about her diagnosis and treatment to herself.

[19] The Board found that the Respondent’s diagnosis of lack of capacity was confirmed by the Appellant’s testimony. In the opinion of the Board, her answers were not responsive to the questions that were asked. She provided explanations to support her belief that she was not delusional and maintained that her concerns about the behaviour of the radio personality and others were entirely based on fact. The Board found that her responses and her own description of her behaviours were consistent with the symptoms of delusional disorder that the Respondent had identified.

[20] The Board had other corroborating evidence before it, including consultation notes of Dr. Alan Campbell, who had examined her upon her admission to hospital on January 23, 2016. Dr. Campbell had found that the Appellant was “paranoid re-pollutants in the air causing her symptoms.” In addition, the Board made reference to a 2009 letter from Adriana MacLennan which had noted that the Appellant’s “delusional disorder is fixed and appears to affect her ability to judge her situation.”

[21] It is well established that in an appropriate case a physician’s evidence can be corroborated, within the meaning of section 14 of the Evidence Act, by a patient’s own evidence.[^3] Moreover, the other documentary evidence before the Board provided additional corroboration for the Respondent’s diagnosis.

[22] The Appellant relies in particular on the decision of the Court of Appeal in Anten in support of her argument that there was insufficient corroboration of the Respondent’s diagnosis. In my view, the facts here are quite different from those considered by the Court of Appeal in Anten. In that case, the Board did not specify how the evidence given by the appellant corroborated the respondent physician’s evidence. The Court of Appeal found that the respondent’s evidence of the appellant’s mental illness largely stood alone. Here, in contrast, the Board clearly specified the manner in which the Appellant’s evidence was corroborative of the Respondent’s diagnosis. Moreover, the Board had additional documentary evidence supporting the diagnosis.

[23] I conclude that the Board had ample evidence before it, both in the testimony of the Respondent as well as the Appellant, along with other documentary evidence, to support the conclusion that the Appellant was incapable of consenting to treatment.

Examination of the Appellant

[24] The Appellant submits that the Respondent failed to conduct an examination sufficient to determine her incapable. The Appellant argues that her denial that she was suffering from a mental disorder is insufficient in itself to ground a finding of incapacity. Moreover, the refusal of the Appellant to participate in an examination is not evidence of incapacity. The Appellant submits that she was entitled to not participate.[^4]

[25] As the Supreme Court of Canada has pointed out in Starson v. Swayze,[^5] the leading authority in this area, an individual need not agree with the diagnosis of an attending physician in order to be able to apply the relevant information to his or her own circumstances. However, while the individual need not agree with a particular diagnosis, if it is demonstrated that he or she has a mental “condition”, s/he must be able to recognize the possibility of being affected by that condition. As Justice Major noted, where a person cannot recognize that he or she is suffering from a mental condition, they cannot apply information about treatments to their own condition and are therefore unable to appreciate the consequences to themselves of a treatment decision:

As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

[26] In this case, the Respondent met with the Appellant on nine separate occasions. Through these examinations, the Respondent concluded that the Appellant had no awareness that she was suffering from a mental condition. This conclusion was confirmed by the Appellant in her testimony before the Board. As such, this was not a case where an individual disagrees with a physician’s particular diagnosis. Rather, the circumstances here were precisely those contemplated by Justice Major in Starson, namely, one in which the Appellant was unable to recognize her mental condition and thus was unable to appreciate the consequences of the treatment decision in her case.

[27] In short, I conclude that the Board did not act unreasonably in accepting the Respondent’s conclusions based on his examination of the Appellant.

Explanation Of Risks and Benefits of Treatment

[28] As described earlier, the Respondent was unable to explain the risks and benefits of the proposed treatment to the Appellant. The Appellant submits that her refusal to participate in an assessment does not justify the failure to inform her of the consequences of having treatment or not having treatment. The fact that the Appellant disagreed with the diagnosis and would not engage in a conversation with the Respondent ought not to have prevented the Respondent from providing the information in other forms of communication such as written material.

[29] The Respondent argues that an explanation of the risks and benefits of treatment is not necessarily part of a capacity assessment, but rather part of the requirements for obtaining informed consent to treatment. Here, the Respondent made repeated efforts to explain the risks and benefits of treatment to the Appellant, but these efforts were frustrated by her refusal to listen to the information. The Appellant would not let the Respondent give her that information despite his numerous attempts to do so.

[30] The issue before the Board and this Court is not whether the proposed treatment plan was medically appropriate or desirable. Rather, the relevant legal question is whether the Board had a reasonable basis to confirm the diagnosis of incapacity made by the Respondent.[^6] It is clearly necessary and desirable for a physician to explain to an individual the consequences of any treatment decision as part of the process of obtaining informed consent. But if the individual refuses to permit such a discussion to take place, that cannot in itself form a basis to challenge a finding of incapacity that is otherwise supported by sufficient evidence.

[31] The Board found that the Appellant’s outbursts when the Respondent tried to discuss his diagnosis and treatment frustrated the latter’s attempt to provide her with the information. The Board concluded that it would be unreasonable to require a health practitioner to force the information on a patient who is not just merely disinterested but becomes unbearably distressed when the topic is even broached. In the Board’s view, the Respondent could not be faulted because the Appellant became agitated and disruptive whenever he tried to discuss his diagnosis and treatment plan.

[32] As the Court of Appeal observed in Gajewski v. Wilkie,[^7] the only relevance of submissions relating to the benefits and side effects of a proposed medication to the question of capacity “is whether the appellant has a rational justification for refusing the treatment.” As such, the fact that the Respondent was unable to explain to the Appellant the benefits and risks of the treatment plan does not detract from his diagnosis on capacity. Nor does it call into question the reasonableness of the Board’s decision confirming that diagnosis.

Conclusion

[33] In my view, the Board had ample evidence upon which to confirm the Respondent’s diagnosis with respect to the Appellant’s incapacity. The Board applied the correct legal framework and its conclusions were reasonable in result. Accordingly, the appeal is dismissed. The Respondent does not seek costs and no costs are ordered.

Monahan J.

Date: March 5, 2018

[^1]: c.2, Sch. A., (the “HCCA”). [^2]: R.S.O. 1990, c. E.23. [^3]: Anten v. Bhalerao, 2013 ONCA 499 (the "Anten") at paragraph 30. [^4]: See, for example, M.N. v. Klukach, 2004 6325 at paragraph 44. [^5]: 2003 SCC 32 ("Starson") at paragraph 79. [^6]: Giecewicz v. Hastings, 2007 ONCA 890 at paragraph 43. [^7]: 2014 ONCA 897.