CHUBAREV v. DE SOUZA, 2018 ONSC 3960

COURT FILE NO.: 4033/17 DATE: 2018 06 22 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to Health Care Consent Act , 1996 S.O. 1996, chapter 2, schedule A , as amended

AND IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Mental Health Act R.S.O. 1990, chapter M.7 as amended

AND IN THE MATTER OF OLGA CHUBAREV a resident of Oakville, Ontario

BETWEEN:

OLGA CHUBAREV Appellant – and – DR. DARINA DE SOUZA Respondent

Russell Browne, for the Appellant Carolyn Brandow, for the Respondent

HEARD: June 20, 2018

REASONS FOR JUDGMENT

CONLAN J.

I. Introduction

The Appeal and the Proceeding Below

1Olga Chubarev (“Chubarev”) appeals from an amended decision of Ontario’s Consent and Capacity Board (“Board”) dated November 27, 2017.

2In a 16-page written decision, after a hearing that took place on October 5, 2017, the Board unanimously concluded that Chubarev “was incapable of consenting to treatment with anti-psychotic medications and the Community Treatment Plan”. The Board confirmed the renewal of the Community Treatment Order (“CTO”).

3As usual, the Board consisted of three members – one lawyer, one psychiatrist, and one member of the public. Chubarev was present at the hearing and was represented by counsel, Mr. Browne. The attending physician, Dr. Darina De Souza (“De Souza”), was also present. Exhibits were filed. Both Chubarev and De Souza testified.

4At the time of the hearing, Chubarev was 31 years old, lived with her parents in Oakville and was supported by the Ontario Disability Support Program. She had been diagnosed with schizophrenia.

5Chubarev’s first psychiatric admission was in January 2016. She stayed at the Center for Addiction and Mental Health in Toronto for about ten days. Her second psychiatric admission occurred in January 2017, this time at the Oakville hospital, lasting more than thirty days. She was found incapable of consenting to treatment with anti-psychotic medication and a Community Treatment Plan. She was discharged on a CTO.

6That CTO was renewed on September 12, 2017. Chubarev applied to the Board to review the CTO and the finding of incapacity. As indicated above, her application was unsuccessful.

The Law on Capacity

7At pages 4-6 of its written decision, the Board summarized the law as follows:

Capacity to Consent to Treatment

Under the HCCA, a person is presumed to be capable to consent to treatment (s. 4(2)) and the onus to establish otherwise, in this case lay with Dr. De Souza.

The test for capacity to consent to treatment is set forth in s. 4(1) of the HCCA, which states:

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.

Community Treatment Order

On a review of a Community Treatment Order (CTO), the onus of proof at a Board hearing is also on the attending physician/health practitioner to establish that the statutory criteria for issuing a Community Treatment Order are met. The Board must be satisfied on the basis of cogent and compelling evidence that the physician’s onus has been discharged. There is no onus whatsoever on the patient. The Board must consider all evidence properly before it including hearsay evidence. However, this type of evidence must be carefully weighed.

Section 33.1 of MHA sets out the procedure for the issuance of a CTO.

Subsections 33.1 (1) to (4) of the MHA describe the purpose and the criteria for issuing a CTO as follows:

33.1 (1) Community treatment order - A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

(2) Same . – The community treatment order must be in the prescribed form.

(3) Purposes . The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

(4) Criteria for order. - A physician may issue a community treatment order under this section if,

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community.

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15(1) or (1.1) where the person is not currently a patient in a psychiatric facility.

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in The community, he or she is likely, because of mental disorder, to causes serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person.

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with the rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996 .

Section 33.1(4) (c)(ii) refers to the criteria in s. 15(1) and (1.1) for an application for psychiatric assessment. These criteria are found in Form 1. A Form 1 can be based on the criteria in ss.15(1) (“Box A criteria”) or ss.15(1.1) (“Box B criteria”) or both.

Subsection 33.1(6) sets out the contents of an order. Subsection 33.1 (9) describes the obligations of a person subject to the CTO. In addition, section 33.7 describes the contents of a community treatment plan. Further, Section 39.1 of the MHA deals with applications to the Board respecting CTOs, including mandatory hearings under subsection (4). The Board’s mandate upon hearing an application under s. 39.1 is contained in subsections (6) and (7).

8No issue is taken with the correctness of the Board’s statement of the law on capacity.

The Board’s Decision on Capacity

9The following, taken from paragraph 18 of the Respondent’s Factum, is an accurate summary of the crux of the Board’s decision on capacity:

In written reasons, the panel explained that it concluded that the evidence established that Ms. Chubarev was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question, in essence failing the second branch of the test for capacity. Ms. Chubarev did not see any benefits of treatment, but rather only recognized the negative effects, and as a result, she could not weigh the benefits against the risks in making a decision.

The Argument on Appeal

10Mr. Browne, for Chubarev, submits as follows, taken from paragraph 2 of the Appellant’s Factum:

In support of the Appellant’s appeal it is submitted that the Board’s finding that she was unable to appreciate the reasonably foreseeable consequences of a decision or a lack of a decision was an unreasonable one in that the evidence clearly established that:

a. The Appellant was aware that she had a mental illness;

b. Understood the benefits, as well of the risks of the medication that she was taking; and

c. Understood the risks associated with stopping her medication.

11At paragraph 13 of the Appellant’s Factum, it is submitted that the evidence adduced at the hearing before the Board demonstrated the following: (i) that Chubarev acknowledged that she had an illness, which she referred to as psychosis, (ii) that she admitted that she had received some benefit from her medication, and (iii) that she was aware that there were risks in stopping her medication and for that reason agreed to be monitored in the future.

12Consequently, Chubarev argues that the Board’s decision is unreasonable.

13For the Respondent De Souza, it is submitted that the Board correctly stated the law on capacity, made reasonable findings of fact and applied, reasonably, the law to those facts, and therefore, the Appeal ought to be dismissed.

The Remedy Sought by the Appellant

14Chubarev seeks an order quashing the decision of the Board and substituting in its place a finding of capacity or, alternatively, a new hearing.

15This Court is not being asked to pronounce anything with regard to the CTO; the sole focus is on the issue of incapacity as found by the Board.

Jurisdiction of this Court and the Standard of Review

16I adopt the following from paragraphs 8 and 9 of the Appellant’s Factum:

8. A party to a proceeding under the Mental Health Act before the Consent and Capacity Board may appeal the Board’s decision or order the Superior Court of Justice on a question of law or fact or both.

Section 48(1) of the Mental Health Act, R.S.O. 1990, c. M.7.

9. On an appeal from a decision of the Board the standard of review with respect to findings of law is correctness, while the standard of review with respect to findings of fact and the application of the law to the facts is one of reasonableness.

Starson v. Swayze, 2003 SCC 32 , [2003] 1 S.C.R. 722, at paragraph 5

L.G. v. Pityk, 2017 ONSC 6863, at paragraphs 11 to 13.

17On the standard of review, I also agree with the Respondent’s submissions at paragraphs 21-24 of her Factum:

21. In her appeal, Ms. Chubarev is asking this Court to review the Board’s application of the facts to the statutory definition of incapacity, the standard of review for which is reasonableness.

22. The standard of review for a question of law is correctness. The only question of the law in this appeal is the Board’s interpretation of the Health Care Consent Act with respect to the statutory test for incapacity and the applicable test is not in dispute.

23. The Board’s findings of fact, application of the facts to the correct legal test, and determination Ms. Chubarev was incapable are entitled to deference. Absent any demonstrated unreasonableness, there is no basis for judicial interference with finding of facts or the inference drawn from the facts. The Board is uniquely positioned to hear the viva voce evidence of the patient and physician.

24. The Board is a specialized expert tribunal to which deference must paid when the tribunal makes a decision within its area of expertise. One of the Board members was a psychiatrist who has specific expertise in the area of mental health. Deference ought to be afforded to the Board, including deference to factual determinations of capacity issues. If the Board’s findings are reasonable, then this Court ought not to interfere with these findings. The Board’s conclusions are not to be treated lightly

II. Analysis and Conclusion

18For the following reasons, the Appeal is dismissed. In my view, the Board’s decision was not infected by any factual error, palpable and overriding or not, or any unreasonableness.

19In oral submissions, Mr. Browne argued that Chubarev made an informed decision not to take her medicine because she was concerned about potential side-effects, including an alleged stifling of her creativity and an alleged interference with her ability to become pregnant.

20It is true that Chubarev, when she testified at the hearing before the Board, spoke about her concerns regarding the possible side-effects of her medication. For example, at page 24 of the transcript, she stated that “this medication can ruin my fertility eventually” (line 25).

21The Board, however, did not ignore that evidence. In fact, at the top of page 10 of its decision, there is an express reference to that testimony. Further, that evidence does nothing to detract from the penultimate conclusion of the Board that Chubarev “was unable to appreciate the benefits of treatment” (page 13 of the decision, in the first full paragraph). If anything, that evidence from Chubarev supports the Board’s conclusion.

22In oral submissions, Mr. Browne argued that Chubarev, while testifying at the hearing before the Board, acknowledged some benefits of her medication, for example, to reduce the frequency and/or intensity of her hallucinations.

23Again, however, the Board did not ignore that evidence. At page 10 of its decision, in the first full paragraph, that testimony is explicitly referred to and summarized by the Board.

24Having said that, the Board was entitled to accept some, all or none of Chubarev’s testimony. Ultimately, the Board was concerned about the reliability of Chubarev’s evidence, about the benefits of her medication, in answering questions by Mr. Browne because her answers changed when she was later questioned by the panel, specifically by the psychiatrist, Dr. Pellettier. When asked questions by the panel, Chubarev stated that there was no particular benefit from taking her medication (page 10 of the Board’s decision, in the second full paragraph).

25In the end, the Board preferred the evidence of De Souza over that of Chubarev, and it gave specific reasons for doing so (page 12 of its decision, in the second paragraph). There is no reason for this Court to interfere with that assessment.

26In oral submissions, Mr. Browne argued that the Board placed too much weight on Chubarev’s alleged swallowing problem in light of the fact that the said condition was never discussed between Chubarev and De Souza as being a possible side-effect of the medication.

27The weight to attach to certain evidence, and the weight to attach to certain findings of fact, are not matters to be lightly interfered with by this Court. Moreover, Chubarev’s alleged swallowing problem was not a side-effect of the medication, thus, that issue could not possibly have been discussed between the patient and her doctor. Rather, the Board found, based on the evidence of De Souza, which evidence it was entitled to accept, that the alleged throat problem was likely not based in reality given that the symptoms complained of by Chubarev disappeared when she began to take her anti-psychotic medication.

28In oral submissions, Mr. Browne argued that the Board placed too much weight on Chubarev’s conflict with her partner’s former girlfriend. I disagree. In fact, there is only a passing reference to that conflict at page 7 of the Board’s decision.

29Finally, in oral submissions, Mr. Browne argued that the Board placed too much weight on hearsay evidence. I disagree. A reading of the Board’s decision illustrates that it looked to the documentary evidence to help it determine whether the oral testimony of De Souza was corroborated and, thus, reliable, and that is something that the Court of Appeal for Ontario has held to be permissible. M.M. v. de Souza, 2016 ONCA 155, at paragraph 20.

30The overall tenor of the Appellant’s submissions is that her case is very similar to that which was confronted by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, and therefore, a similar result should have occurred (a finding of capacity).

31I disagree. The Board did not ignore Starson, supra . It is referred to extensively at pages 10 to 13 of the Board’s decision. The Board rejected the parallel being drawn by the Appellant’s counsel between this case and that of Professor Starson. While Professor Starson was able to appreciate the consequences of his decision to not receive the proposed treatment of his mental illness, Chubarev was not because “she was unable to appreciate the benefits of treatment and was, therefore, unable to weigh those benefits against the risks of not accepting treatment” (page 13 of the Board’s decision, in the first full paragraph).

32In summary, it is not the function of this Court to effectively re-hear the matter. It is conceded by the Appellant that the Board correctly stated the law on capacity. On whether the Board made unreasonable factual findings and/or unreasonably applied the law to the facts as found by it, I conclude that it did not.

33As such, the Appeal is dismissed.

Conlan J.