COURT FILE NO.: C-1002-17
DATE: 2018-03-09
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A,
as amended
and pursuant to the Mental Health Act, R.S.O. 1990, c.M.7,
as amended
RE: D.P., Appellant
AND:
DR. DIANE PITTMAN, Respondent
BEFORE: The Honourable Mr. Justice D.J. Gordon
COUNSEL: Russell W. Browne, Counsel for the Appellant
Barbara Walker-Renshaw, Counsel for the Respondent
HEARD: February 7, 2018
REASONS FOR DECISION
Overview
[1] D.P. appeals from the decision of the Consent and Capacity Board (“the Board”), dated September 11, 2017 that confirmed the health practitioner’s finding he was incapable of consenting to the proposed treatment.
[2] Section 4(1) and (2), Health Care Consent Act, 1996, SO. 1996, c.2, Schedule A (“HCCA”) provides as follows:
Capacity
- (1) A person is capable with respect to a 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.
Presumption of capacity
(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.
[3] Given the statutory presumption of capacity, the onus of establishing D.P. was not capable was on the respondent, Dr. Pittman, at the Board hearing. An appeal from the Board’s decision on a question of law or fact or both is to this court pursuant to section 80, HCCA.
Background
[4] D.P. is presently 43 years of age. He has been dealing with mental health issues since age 27. D.P. previously owned his own business. He is presently unemployed and receiving Ontario Disability Support Program benefits. D.P. is single. As a result of his incapacity, his mother acts as substitute decision maker.
[5] On March 28, 2017, Dr. Pittman determined D.P. was incapable of consenting to treatment, specifically antipsychotic and mood stabilizing medication, due to a diagnosis of schizoaffective disorder. D.P., in result, was placed on a Community Treatment Order, issued April 20, 2017, such being confirmed at a mandatory Board hearing on June 21, 2017.
[6] D.P. made application to the Board on July 11, 2017 to review the finding of incapacity.
[7] The hearing took place on September 11, 2017. The Board issued a decision the same day, confirming the physician’s finding D.P. was incapable of consenting to treatment. Written reasons for the decision were released on September 25, 2017.
[8] By notice of appeal dated September 18, 2017, D.P. has appealed the Board’s decision to this court. He seeks an order quashing the Board decision or, in the alternative, of directing a new hearing before a three member Board panel.
Psychiatric History
[9] Dr. Pittman prepared a CCB summary, dated July 25, 2017, for the Board hearing. This report ultimately was filed as her evidence in chief at the hearing. The summary sets out D.P.’s involvement with psychiatric health services, briefly summarized as follows:
(a) D.P. was referred to the Assertive Community Treatment Team of the Community Outreach Treatment Team of the Grand River Hospital in September 2009. The diagnosis at the time was schizoaffective disorder polar subtype, antisocial personality traits, and drug abuse. D.P. was considered incapable of making treatment decisions at the time of the referral and the Public Guardian and Trustee was his substitute decision maker. D.P. had at least seven prior admissions to schedule 1 psychiatric units throughout Ontario as well as in British Columbia. His major psychiatric symptoms were considered intractable. D.P. had been involved in the criminal justice system and has a co-existing substance use disorder. D.P. was on a Community Treatment Order involving medical injections. He had a history of non-compliance and wanted to be off injections;
(b) In 2012 and 2013, D.P. spent approximately 15 months at Waypoint Centre for Mental Health in Penetanguishene on a forensic admission following arrest on criminal charges. For reasons unknown, he was released from this facility in September 2013;
(c) Within days of that release D.P. was admitted to inpatient psychiatric at KW Health Centre. He was discharged to the community in December 2013 without the knowledge, for some unknown reason, of the Assertive Community Treatment Team;
(d) At the time, D.P. was subject to the terms of a probation order. There was no requirement of psychiatric treatment in this order and, in result, D.P. was of the belief he did not need to be seen by a psychiatrist or receive treatment, that he could simply be followed by his probation officer;
(e) In May 2014, D.P. was readmitted to inpatient psychiatry at KW Health Centre. He was homeless at the time and had accessed emergency medical services himself. D.P. was initially assessed at St. Mary’s Hospital and subsequently involuntarily admitted to the KW Health Centre. He was not discharged until April 2015.
(f) During this lengthy period of hospitalization, D.P. was transferred to Specialized Mental Health for extensive tertiary care. He had chronic residual thought disorder, auditory hallucinations and paranoid and grandiose delusions. After 11 months of hospitalization and treatment with medication, D.P. was deemed safe to discharge to the community under the supervision of a Community Treatment Order;
(g) The Community Treatment Order has been continuously renewed since April 2015;
(h) Dr. Pittman first became involved in D.P.’s care in 2015 while he was hospitalized; and
(i) Since his discharge in April 2015, D.P. is said to have struggled with compliance regarding follow-up and medication. He has had a number of brief admissions to the KW Health Centre psychiatric intensive care unit. On six occasions, an Order for Examination was required to bring D.P. back into the hospital to effect compliance with treatment.
Psychiatric Opinion
[10] As Dr. Pittman’s evidence in chief at the hearing was her report, the following excerpts provide her opinion:
D.P. has a superficial therapeutic relationship with 2 or 3 ACT team members only. He regularly verbally dismisses my assessment/interview with him essentially speaking over me, with grandiose and paranoid delusional thought content. His grandiose delusions are regarding patents and extensive wealth. His paranoid delusions are regarding having microchips inserted into dental work or other parts of his head. He also experiences chronic auditory hallucinations. He is not guarded with his psychotic thought content whatsoever during these assessments as he tries to convince me that my assessment/diagnosis and treatment plans are all incorrect. He repeatedly requests that the antipsychotic medication be discontinued. He continues to lack insight into his illness and the need for treatment. His schizoaffective disorder symptoms are also complicated by the continued use of a variety of illicit substances. He reports daily substance use.
He has a history of aggression when off medications and using substances but also has been aggressive while on medications. He can also be verbally threatening. He is repeatedly verbally aggressive and threatening to his mother who is currently acting as his Substitute Decision Maker, and last year threatened to shoot ACT staff with a gun. He was recently verbally and physically aggressive toward his mother when she came to the Kitchener area for the first time in years to see him. He damaged her vehicle as she retreated to it for her physical safety. D.P. has a history of physical assault to his mother in the past as well.
Despite his persistent and chronic residual symptoms, ACT team members report that when in public he generally is able to be superficially polite and to get his needs met.
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…
a) What information has been given to patient?
D.P. has had his diagnosis and evidence for this diagnosis repeatedly explained to him. He has been informed that he has a diagnosis of schizoaffective disorder. His active and chronic symptoms of delusional thinking, auditory hallucinations, thought disorder and fluctuating mood states have been presented to D.P. as evidence of his illness. The indication for treatment with antipsychotic medication as well as mood stabilizers and the expected benefit of treatment has been explained to him. We have reviewed the potential short term and long term risks and side effects of the medication. D.P. has also been informed of the foreseeable consequences of mental deterioration and hospitalization if not receiving active treatment …
b) Evidence patient is unable to understand:
D.P. is unable to understand this information as he has no insight into his psychiatric symptoms or illness. He does not understand the nature of his mental illness. He does not believe the presented evidence of illness applies to him personally. He does not recognize any of his symptoms that the recommended treatment is targeting.
…and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
a) What are the reasonably foreseeable consequences?
A decision to discontinue medication or inaction to seek active treatment such as antipsychotic medication and active follow up of his illness, would result in rapid deterioration in D.P.’s mental state. As in the past, D.P. would experience intense mood swings especially noted irritability and aggression that would increase the risk of harm to himself or others. His thinking would also be more disorganized, grandiose and paranoid leading to behaviours that are in response to these psychotic thoughts. In the past non adherence to medication and follow up has led to continued mental deterioration, homelessness, aggression, physical assault to others, damage to property, forensic hospitalization and involuntary hospitalizations.
b) Evidence patient is unable to appreciate these:
D.P. has repeatedly explained to me that he has been incorrectly diagnosed, hospitalized and treated. He does not recognize the clear benefits he has received from the active treatment of his illness as he does not recognize his symptoms or the improvement in his symptoms with treatment. He does not recognize the repeated deterioration in his symptoms and the other consequences of this mental deterioration that has repeatedly occurred over the years of non-adherence to treatment. He does not appreciate the reasonably foreseeable consequences of mental deterioration that will result from him not receiving treatment for his severe treatment refractory mental illness.
The Hearing
[11] The hearing took place before a single member of the Board on September 11, 2017. As previously stated, Dr. Pittman relied on her report as evidence in chief. She was cross-examined by Mr. Browne. D.P. did not testify nor were any other witnesses called by either party. Dr. Pittman declined the opportunity to present closing submissions. Mr. Browne did provide submissions.
[12] Cross-examination of Dr. Pittman produced a number of significant matters, namely:
(i) Dr. Pittman recorded discussions with D.P., as did others, and such were placed on the chart. Dr. Pittman did not bring her notes, the medical chart, other reports or any other documents to the hearing. She testified by memory and reliance on her normal practice;
(ii) at the outset, and as in her report, Dr. Pittman opined that D.P. did not meet either of the two criteria in section 4, HCCA. She subsequently acknowledged that D.P. did understand some information provided, such as potential side effects of the proposed medication and other significant matters;
(iii) Dr. Pittman had reported D.P. to have a substance abuse disorder. She acknowledged D.P. admitting to a daily use of crystal meth. Some physiological effects of the substance were observed, such as extreme politeness, tremors, sweating and jaundice. Dr. Pittman believes D.P. would have been unable to access such drugs during periods of hospitalization but could not say so with certainty as, for example, he would be given daily passes from time to time;
(iv) violence and aggression in and of itself is not necessarily a presence of a mental condition; and
(v) D.P. was capable of handling his finances.
[13] The transcript of the Board hearing reveals constant interruption by D.P. At one point he acknowledged a mental disorder. Nothing further can be made of his interruptions.
[14] In his closing submissions, Mr. Browne attempted to refer to medical literature. The Board, quite properly, declined to allow such to occur as Dr. Pittman had not been challenged with respect to that literature. See: Browne v. Dunn (1893), 6 R.67 (H.L.). Of some interest, Mr. Browne declined the invitation to re-open the case for that purpose.
Board Decision
[15] Following the hearing, and on the same day, the Board decision confirmed the health practitioner’s finding. Reasons for this decision were released on September 25, 2017.
[16] In her reasons for decision, the Board member made two significant findings, namely:
(i) the evidence failed to establish that D.P. lacked the ability to understand the information relevant to making a decision about treatment in question; and
(ii) the evidence did establish that D.P.’s condition resulted in him being unable to recognize the manifestations of his disorder, and therefore he is unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of the treatment proposed.
[17] The Board member also reviewed the background and psychiatric history of D.P., the statutory requirements and the relevant case law.
[18] Complaints are raised on this appeal with the purported insufficiency of evidence. Specific matters regarding the reasons for decision include:
(a) the Board member stated Dr. Pittman testified in a straightforward and forthright manner without inconsistencies or hesitations, notwithstanding Dr. Pittman’s change in opinion regarding whether D.P. understood the information relevant to making a decision about treatment;
(b) she did not address D.P.’s admission of a mental illness;
(c) reference was made to Dr. Pittman’s evidence regarding aggression and violence when not adhering to the medication plan but did not refer to Dr. Pittman’s concession that violence and aggression are not necessarily demonstrative of a medical condition; and
(d) finding access to illicit drugs during hospitalization was speculative despite D.P.’s admission of daily use and potential availability of such drugs, along with the lack of physiological analysis.
Standard of Review
[19] The standard of review for questions of law is correctness. For questions of fact, or mixed law and fact, the standard is reasonableness. See: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 45.
[20] Reasonableness considers the existence of justification and intelligibility within the decision-making process and whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. See: Dunsmuir, at para. 47; Law Society of New Brunswick v. Ryan, 2003 SCC 20, at para. 46; and Newfoundland & Labrador Nurses’ Union v. HMTQ, 2011 SCC 62, at paras. 11 and 18.
[21] Mr. Browne submits the Board did not apply the statutory test for capacity and, hence, the standard of review is correctness, as this is a question of law. Ms. Walker-Renshaw says the standard for review is reasonableness.
[22] As I understand the challenge on this appeal, the primary focus is with respect to the sufficiency of evidence and findings of fact. I am not persuaded the Board applied the wrong test. Indeed, the Board quite properly identified the statutory provisions that applied. Hence, I conclude the standard for review is reasonableness.
Consent and Capacity Board
[23] The Board is considered a specialized tribunal. The Legislature has explicitly assigned the hearing of witnesses and the assessing of evidence to the Board. The Board is uniquely positioned to hear the evidence of the patient and the physician. The Board has become experienced in dealing with legal and medical issues pertaining to capacity and consent to treatment. It is the function of the Board to weigh the evidence. As a general rule, considerable deference is owed to the Board: Starson v. Swayze, 2003 SCC 32 at paras. 5 and 86. Also see, for example, Law Society New Brunswick, at paras. 30-46.
[24] The statutory mechanism for a Board review is intended to expedite the process as treatment is considered a principal aim of the legislation. See: Starson, at para. 87. Here, the hearing by the Board occurred on September 11, 2014, having been adjourned on August 14, 2017 due to the unavailability of a court reporter. Expediency, however, is not meant to be used to negate or limit the rights of the appellant. Findings of incapacity can result in a loss of liberty and, at least, unwanted medical treatment. The individual’s Charter rights must be protected. Due process is required. Matters such as full disclosure of medical records and the ability to obtain a second opinion, for example, should always be addressed at the outset.
[25] In this case, it is unclear if any such preliminary matters were raised. Mr. Browne referred to the failure of the physician to bring the appellant’s chart and her notes to the Board hearing but does so with respect to the weight given to the physician’s evidence, not as a disclosure issue.
[26] Mr. Browne also raises a complaint regarding the make-up of the panel. The panel, by statute, can be composed of one or three members. With the latter, the panel consists of a lawyer, a psychiatrist and a lay member. Here, the panel was a single member who referred to herself as “presiding lawyer, senior member”. On review of the transcript, it is clear she has experience and knowledge with respect to the issues.
[27] But the member is not a psychiatrist and the issues on the hearings are often both legal and medical.
[28] Presumably, the Board has a policy directive setting out the criteria in assigning members to a panel. It would be helpful if the presiding member would explain at the outset of the hearing why only one member was assigned.
[29] Mr. Browne did have the opportunity to insist on a three member panel. The hearing was scheduled to occur by teleconference on August 14, 2017. When speaking to the adjournment, Mr. Browne requested an in person hearing on the return date. He should have raised all procedural issues at that time, not on appeal.
[30] Mr. Browne’s argument on the make-up of the panel is that less deference ought be given than normally allowed for a three member panel. On review of the transcript of the hearing and the Board’s reasons for decision, I am not persuaded this is a compelling submission. While it would have been helpful to have a three member panel when dealing with psychiatric issues, I am satisfied the Board was well aware of the issues, and understood the evidence and the applicable principles.
Examination by Board
[31] During the hearing, the Board member posed many questions to Dr. Pittman. The transcripts shows 23 pages for the Board member compared to 53 pages of cross-examination by Mr. Browne.
[32] It is quite proper for the Board to ask a witness questions for the sole purpose of clarification. The Board cannot be seen as an advocate. Here, the questions focused on the issues but new matters were raised and considerable detail was presented.
[33] In my view, this went beyond the scope of an independent decision-maker. It is not the Board’s role to seek the introduction of evidence. But the Board was placed in a difficult situation. Dr. Pittman is not a lawyer and is not trained in dealing with legal issues. As hereafter discussed, it is highly prejudicial to require a psychiatrist to represent herself at such an important hearing. The questions posed by the Board would have been asked by counsel for Dr. Pittman, had one been present.
[34] While I find the process to be less than proper, I am not persuaded the Board’s questioning of Dr. Pittman is of sufficient magnitude to direct a new hearing.
Representation at Board Hearings
[35] As noted above, Dr. Pittman represented herself at the Board hearing. D.P. was represented by counsel. I cannot understand why the Ministry does not provide counsel for the physician. These are significant issues, impacting on a person’s liberty potentially, and ought be treated seriously.
[36] Dr. Pittman relied on her brief report as her evidence in chief. She declined to present submissions to the Board. This is an unacceptable practice. Many of the obvious problems at Board hearings would be avoided if the physician had counsel to present the case.
Capacity
[37] Section 4(1) HCCA provides for a two part test:
(i) the cognitive ability to process, retain and understand the relevant information; and
(ii) the ability to apply relevant information to his/her circumstances and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
See: Starson, at para. 78-99.
[38] This appeal concerns only the latter requirement, the Board having determined the evidence failed to establish D.P. lacked the ability to understand the information as set out in the first part. Dr. Pittman does not appeal that finding.
[39] The second part of the test deals with the ability of D.P. to apply the information to his own situation, necessitating a recognition of the manifestations of the illness. That is the issue here.
[40] In this regard, three common clinical indicators are said to be:
(i) whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her;
(ii) whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her quality of life; and
(iii) whether the person’s choice is not substantially based on a delusional belief.
See: Starson, at para. 18; and Giecewicz v. Hastings, 2007 ONCA 890, at para. 21.
[41] As previously discussed, there are multiple concerns in this case regarding systemic procedural deficiencies, evidentiary shortcomings, and erroneous findings in the Board’s reasons. Nevertheless, on my review of the transcript and exhibits, I am satisfied there was sufficient cogent evidence to support the Board’s ultimate decision.
[42] While D.P. admits to a mental health condition, Dr. Pittman clearly articulated her opinion that he is unable to recognize the manifestations of his illness and cannot apply relevant information provided to his own situation.
[43] For example, Dr. Pittman reported D.P. to be adamant in saying he was not irritable, despite clear evidence that he was. Given his belief, Dr. Pittman was prevented from concluding D.P. would appreciate the benefit of medication. Dr. Pittman went further, saying in cross-examination:
… So where the dilemma is for D.P. is that he does not appreciate that he has extreme, intense irritability that’s driven by his paranoia and driven by his delusional thought content. Driven by his severe auditory hallucinations. And he responds behaviourally in a, in an extremely intense irritable way and has been insultive in the past. This is all in the context of, so his irritability is wrapped into his schizoaffective disorder as opposed to the, like you say, the colloquial use of the word “irritable”. …
Dr. Pittman was not challenged on those comments.
[44] Dr. Pittman also spoke in some detail as to D.P.’s delusional beliefs, such as being extremely wealthy and owning patents. But, she said, D.P. perceives such were real and, hence, he does not appreciate the benefit of medication. Indeed, even when medication lead to a decrease in delusional beliefs, D.P. still saw no benefit.
[45] Without medication, Dr. Pittman is of the opinion D.P.’s condition will deteriorate. The evidentiary record supports this opinion, particularly in view of the lengthy history of D.P., and further, the finding D.P. cannot appreciate the benefit of medication as he does not recognize the manifestations of his illness. Simply put, D.P. remains unable to apply information to his own circumstances. He cannot weigh the risks and benefits of a decision or lack of a decision.
[46] On behalf of the appellant, much was made of D.P.’s substance abuse disorder. Dr. Pittman reported that she and other health care providers regularly assessed D.P. in this regard. She acknowledged the presence of some physiological symptoms but opined that the substance abuse disorder was “moderate”, both with respect to physical and mental health. On my review of the transcript, I do not see an evidentiary foundation to support the appellant’s complaint.
[47] Dr. Pittman was also of the view that D.P.’s ability to access illicit drugs while hospitalized was limited. The Board considered the appellant’s assertion of daily use of crystal meth, even while hospitalized, was speculative. D.P.’s admission to Dr. Pittman of daily use was not specific to his periods of hospitalization. Hence, on the evidentiary record, the Board’s comment was appropriate. Regardless, even accepting that illicit drugs were available in secured facilities (as has been recognized in many cases), based on assessments of D.P., was the only evidence before the Board. I see no merit in the appellant’s complaint.
[48] The Board’s final conclusory remarks are worth repeating:
… Unlike Starson, this was not a case of acceptance or acknowledgement of the manifestations of illness and then accepting the risk. The evidence before the Panel was the DP did not accept the presence of illness in himself that would benefit from the treatment proposed. Therefore DP was unable to evaluate information concerning the proposed treatment as it related to his own circumstances, a fact which rendered him incapable to make a decision concerning the treatment proposed. …
[49] In result, I am satisfied the Board’s decision was reasonable. The Board assessed the evidence and correctly applied relevant legal principles.
Summary
[50] For these reasons, the appeal is dismissed.
D.J. Gordon J.
Date: March 9, 2018