COURT FILE NO.: CV-16-561495
DATE: 20180525
SUPERIOR COURT OF JUSTICE - ONTARIO
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.
RE: M. C., Appellant
AND: Dr. Karen Shin, Respondent
BEFORE: Justice W. Matheson
COUNSEL: Joanna Weiss, for the Appellant
Alexandra V. Mayeski, for the Respondent
HEARD: May 24, 2018
ENDORSEMENT
[1] M.C. appeals from the decision of the Consent and Capacity Board dated September 21, 2016, which confirmed a finding of incapacity to consent to treatment made by the respondent, Dr. Shin.
Events giving rise to appeal
[2] At the time of the hearing before the Board, the appellant was a 42-year-old person, supported by long-term disability benefits and, apart from the hospitalizations referred to below, living on her own in a home owned by her parents. The appellant’s psychiatric history began in 2009 and since that time she has been diagnosed with mental health conditions including a schizoaffective disorder and schizophrenia.
[3] The appellant’s first psychiatric admission was in September 2012 for 27 days. In the period from 2012 to 2014, she had three more psychiatric admissions: one in 2012 for eight days, one in 2013 for six days and one in 2014 for 25 days. After discharge in 2014, the appellant resided in the community without psychiatric care until she was again admitted to the Scarborough Grace Hospital on August 31, 2016. All of these admissions were pursuant to Form 2 orders under the Mental Health Act, R.S.O. 1990, c. M.7, obtained by her brother N.C. or other family members.
[4] On August 31, 2016, the appellant was brought to the Scarborough Grace Hospital pursuant to a Form 2 obtained by her brother, and was ultimately admitted as an involuntary patient.
[5] The finding of incapacity that is at issue on this appeal was made by Dr. Shin on September 13, 2016. Dr. Shin found that the appellant was incapable of consenting to her own treatment with oral and injectable anti-psychotic medications.
[6] The appellant brought an application to the Consent and Capacity Board for a review of Dr. Shin’s finding of incapacity and involuntary admission, the latter of which is not at issue on this appeal.
[7] The hearing before the Board took place on September 20, 2016. The Board comprised of three members: a senior lawyer, a psychiatrist and a public member. At the hearing, the Board heard oral testimony from Dr. Shin, the appellant’s brother and the appellant. The appellant was represented by counsel. The Board also received documentary evidence.
[8] The Board confirmed the finding of incapacity with respect to treatment. The Board found that the appellant had the necessary ability to satisfy the first branch of the test for treatment capacity. In reaching this conclusion, the Board differed from the respondent’s opinion. However, the Board concluded that the second branch of the capacity test was not met; it concluded that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.
[9] This appeal was commenced by notice of appeal dated September 29, 2016, in respect of the confirmation of the finding of incapacity. The appellant has a statutory right of appeal on questions of law or fact or both: s. 80(1), Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”).
Standard of Review
[10] There is no dispute between the parties about the standard of review of the Board’s decision. The standard of review for questions of law is correctness. For questions of mixed fact and law, or questions of fact alone, the standard of review is reasonableness: Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32, at para. 5 (per McLachlin C.J., dissenting on other grounds).
[11] Where the issues are factual or questions of mixed fact and law, 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: Starson, at para. 5.
[12] The issues raised by the appellant challenge the Board’s decision, to some degree, based on what is and is not expressly referred to in the reasons for decision of the Board. The relevant principles in that regard, also agreed to by the parties, are as set out in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paras. 15-16:
In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [Citations omitted.]
Issues on appeal
[13] The issues on appeal are as follows:
(1) whether the Board erred in applying the test for capacity in s. 4 of the HCCA; and,
(2) whether the Board misapprehended the evidence, particularly that of the appellant, resulting in a decision that is unreasonable.
Treatment capacity
[14] The statutory test for capacity with respect to treatment is set out in s. 4 of the HCCA, 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.
[15] A person is presumed capable with respect to treatment. The onus of proving incapacity is on the person alleging it: Starson, at para. 118.
[16] The above test and principles are correctly set out in the Board’s reasons for decision.
[17] In Starson, the Supreme Court elaborated on the two branches of the test, at para. 78, as follows:
Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. ... Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
[18] This appeal focuses on the second branch of the above test. In regard to the second branch, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his or her own circumstances. However, as set out in Starson, at paras. 78 – 79, the patient must be able to recognize the possibility that she is affected by that condition:
While a patient need not agree with a particular diagnosis, if it is demonstrated that [she] has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. …
As a result, a patient is not required to describe [her] 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 [her] being unable to recognize that [she] is affected by its manifestations, [she] will be unable to apply the relevant information to [her] circumstances, and unable to appreciate the consequences of [her] decision. [Emphasis added.]
[19] The appellant submits that the Board erred by essentially requiring that the appellant agree with Dr. Shin. On the contrary, it is apparent from the reasons for decision that the Board did not require that the appellant agree with Dr. Shin. In accordance with the above principles from Starson, the Board found that the evidence confirmed that the appellant “did not even accept the possibility that her persecutory delusions could be symptoms of mental disorder.” [Emphasis added.]
[20] The appellant submits that the above finding in the Board’s decision was too narrowly focused on delusions, rather than looking more broadly at the full range of manifestations applicable to the appellant. This submission disregards the following discussion in the reasons for decision, beginning with the finding that the evidence “taken as a whole” amply supported the finding of incapacity. The evidence was summarized in some detail within the 14 pages of reasons for decision. Further, the specific reference to delusions is not surprising given that delusions were a significant focus of the evidence regarding the appellant.
[21] The appellant submits that the Board’s discussion about the second branch of the test is brief, found in about one page of the reasons, but that discussion follows a lengthy account of the evidence before the Board and other relevant observations. The appellant makes a number of additional arguments that seek to challenge the Board’s decision by looking narrowly at or for particular wording in the reasons for decision, without considering the reasons for decision as a whole, in the context of the entire evidentiary record.
[22] As set out above, reasons for decision need not include every detail. These reasons for decision are sufficient to allow this Court to understand why the Board made its decision and to determine whether the Board’s decision is within the range of acceptable outcomes. When the reasons are read as a whole, it is apparent that the Board had regard for both the correct legal principles and the evidence in confirming incapacity based on the second branch of the test.
[23] Lastly, the appellant submits that the Board misapprehended the evidence, particularly the evidence of the appellant. These submissions invite this Court to reevaluate the entire evidentiary record, seeking different findings than those made by the Board. However, the standard of review does not ask whether some other conclusion could have been reached on the evidence. It asks whether or not the Board’s decision was among the range of conclusions that could reasonably have been reached on the law and evidence, and it was.
[24] In this regard, the appellant also submits that Dr. Shin’s evidence was not sufficiently corroborated by other evidence. For the Board to uphold the respondent’s finding of incapacity, the respondent’s evidence had to be corroborated: Evidence Act, R.S.O. c. E.23, s. 14(1); Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, at para. 28. However, the Board had significant other evidence that corroborated Dr. Shin, including not only documents such as nurses’ notes but also the testimony of the appellant’s brother and the testimony of the appellant herself.
[25] The appellant has not demonstrated an error in law in the Board’s decision. Further, the Board’s decision was within the range of conclusions that could reasonably have been reached on the law and the evidence before it.
Disposition
[26] This appeal is therefore dismissed.
Justice W. Matheson
Dated: May 25, 2018