Court File and Parties

Court File No.: CV-17-569098 Date: 2018-07-18 Ontario Superior Court of Justice

Between: Timothy Keizer, Appellant And: Dr. Satyadev Nagari, Respondent

Counsel: S.E. Fraser, for the Appellant J. Blackburn, for the Respondent

Heard: April 5, 2018

Reasons for Judgment

SCHRECK J.:

[1] Timothy Keizer and his treating psychiatrist, Dr. Satyadev Nagari, had a disagreement. Dr. Nagari believed that Mr. Keizer suffered from delusional disorder and should be given anti-psychotic medication. Mr. Keizer preferred the opinion of one of his former psychiatrists who thought that he did not have delusional disorder. He did not want to take the anti-psychotic medication because it made him feel “groggy and stupid”.

[2] As a result of the disagreement, Dr. Nagari made a finding pursuant to s. 10(1)(b) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. (“HCCA”) that Mr. Keizer was incapable of consenting to treatment. On a review requested by Mr. Keizer, the Consent and Capacity Board (“CCB”) upheld Dr. Nagari’s finding. The Board concluded that Mr. Keizer suffered from delusional disorder and that his failure to recognize this meant that he was incapable of applying information about treatment decisions to his own circumstances.

[3] Mr. Keizer now appeals to this court from that decision pursuant to s. 80(1) of the HCCA. He takes the position that the Board misapprehended the evidence and reached an unreasonable conclusion. The respondent, Dr. Nagari, submits that because Mr. Keizer has since been released from the hospital, the appeal is moot. Even if it is not, deference is owed to the Board’s decision, which was reasonable and open to it based on the evidence.

[4] For the reasons that follow, I would allow the appeal. The appeal is not moot as the outcome may be relevant to a substitute decision maker if Mr. Keizer is found to be incapable of consenting to treatment in the future. In my view, when the Board’s reasons are read as a whole, it is clear that its conclusion is based almost entirely on Mr. Keizer’s disagreement with Dr. Nagari’s diagnosis. Based on the evidence adduced, it was not clear that Mr. Keizer suffered from a delusional disorder at the time of the hearing. While Mr. Keizer did not accept the diagnosis, he clearly recognized that he was affected by the manifestations which Dr. Nagari described as resulting from the disorder. The evidence showed that the benefits of the proposed treatment were doubtful, and Mr. Keizer’s decision to avoid the treatment because he did not believe that it would benefit him was not based on a delusion. It was based on Mr. Keizer’s past experience of taking the medication as well as his view that his former psychiatrist’s opinion was preferable to Dr. Nagari’s. Mr. Keizer had the right to hold that opinion and his decision to do so did not mean that he was incapable of consenting to treatment.

I. Evidence

A. The Appellant’s History

(i) Early Psychiatric History

[5] The appellant’s psychiatric history began in 1985, when he was 19 years old and saw a psychiatrist about hearing voices and seeing things which frightened him. He was hospitalized for two weeks and given anti-psychotic medication, which apparently resulted in an improvement of his condition. He was admitted again the following year for similar complaints and was once again given anti-psychotic medication, which again resulted in an improvement of his condition. He visited the hospital again in 1987, 1992, and twice in 1995, each time experiencing a variety of symptoms, including persecutory delusional ideas.

(ii) Loss of Driver’s Licence

[6] The appellant was employed as a truck driver in the 1990s. In 1998, he was charged with impaired driving. As a result, his driver’s licence was administratively suspended. Although the appellant was later acquitted of the charge, the suspension continued to be noted on his record. As a result, his insurance premiums increased and his licence classification was downgraded. This made it difficult for him to find work as a truck driver. He began to work for unsafe trucking companies that did not respect licensing regulations, which resulted in him being found guilty of various infractions. This, in turn, made it even more difficult for the appellant to find work.

(iii) Problems With Ontario Works

[7] Eventually, the appellant turned to Ontario Works (“OW”) as he was unable to support himself. Because he had been fired from his job, OW subjected him to a lengthy waiting period. As a result, he was unable to buy food for himself.

[8] The appellant began to reach out to various people and organizations, such as the police and the Hamilton Crisis Outreach and Support Team (“COAST”). He became increasingly angry about his situation and would engage in threatening conduct with the various people he interacted with at these agencies. He told COAST workers that he wanted the Ministry of Transportation of Ontario (“MTO”) charged with attempted murder. It appears that at some point, he began to believe that the MTO, Social Services and the police were conspiring against him. By 2002, he was diagnosed with delusional disorder.

(iv) Criminal Charges and Findings of Not Criminally Responsible

[9] In 2010, the appellant made a complaint about the Hamilton police to the Office of the Independent Police Review Director (“OIPRD”). After receiving a letter from the OIPRD in September advising him that his complaint would not be investigated, the appellant called 911 to ask that the Director of the OIRPD be charged with attempted murder. During that call, he also asserted that he had a “legal right to kill in self-defence”. As a result of this comment, the appellant was charged with uttering threats. During his testimony before the Board, the appellant explained that he had engaged in this conduct because he was hungry and he knew that if he was placed into an institution, it would be a “good source of nourishment”.

[10] In June 2012, the appellant attended a Hamilton police station, contrary to one of the conditions of his recognizance, and was charged with failing to comply. He was later found not criminally responsible (“NCR”) on both the threatening and the breach charges, although the finding with respect to the threatening was later reversed on appeal.

(v) Prior Findings of Incapacity

[11] Following the NCR finding, the appellant had a hearing before the Ontario Review Board (“ORB”), which ordered that he be detained in the Secure Forensic Unit of St. Joseph’s Healthcare Centre in Hamilton. While the appellant was at St. Joseph’s, a psychiatrist, Dr. Kolawole, found him to be incapable of consenting to treatment. That finding was confirmed by the CCB and a subsequent appeal to this court was dismissed.

[12] In November 2013, the ORB ordered that the appellant be transferred to the Waypoint Centre for Mental Health Care because a deterioration in his condition had resulted in the St. Joseph’s staff being unable to manage him safely. The conduct giving rise to this conclusion included a number of threats against Dr. Kolawole.

[13] While at Waypoint, the Public Guardian and Trustee consented on the appellant’s behalf to him being given anti-psychotic medication, which he apparently took “sporadically”. In September 2014, the issue of his capacity to consent was again considered by the CCB, which concluded that he was incapable. An appeal to this court was dismissed.

(vi) Dr. Bergstrome

[14] The appellant saw a number of physicians at Waypoint, where he twice unwillingly received injections of anti-psychotic medication. At some point, a new psychiatrist, Dr. Brant Bergstrome, became his treating physician. The appellant and Dr. Bergstrome developed a good rapport. Unlike many of his predecessors, Dr. Bergstrome did not believe that the appellant suffered from a delusional disorder and was of the view that he was capable of consenting to treatment.

(vii) The Respondent’s Finding of Incapacity

[15] In October 2016, the appellant was transferred back to St. Joseph’s, where the respondent became his treating physician. On January 17, 2017, the respondent found the appellant to be incapable of consenting to treatment.

B. The Respondent’s Evidence at the Hearing

(i) Delusional Disorder

[16] At the hearing, the respondent explained delusional disorder:

As opposed to schizophrenia, the delusional disorder is less prevalent and usually there are various categories of delusional disorder, persecutory type is one of them, the others are somatic type, the manic type and various others. Basically, the central symptom is that of feeling that someone has been spied on or, as I mentioned earlier, maliciously maligned, or that they have been followed or in receipt of harm of some kind. There is a clear sense of paranoia of life being in danger. …. Usually the delusions are based on real facts and that kind of makes anyone looking at the symptomology as being factual, but it is not the facts that form the symptom cluster of delusional disorder but the interpretation of those facts.

[17] The respondent was questioned about the nature of the appellant’s delusions:

Q. … [T]he delusions, where he is – what his view point is, is that, “I’m basing my view points on facts and so if any of those were delusions I’d take your medication but these are facts in my life,” that would be how he sees things, is that fair? And then I’m going to ask you about maybe interpreting beyond the facts, that’s where my next question will be, but just to deal with the bare – his view point is that, “These are facts that were part of my life and were very traumatizing to me”?

A. Those facts are agreed entirely, I do not oppose that these have not occurred, but I do not believe that these were deliberately caused and are part of colluded work between government agencies.

Q. So that’s where, if I put it – an expression I don’t particularly like – the rubber hits the road, that if he endorses a conspiracy or collusion, or whatever the choice of word is, is that’s what gives you cause for concern?

A. Yes, sir.

(ii) The Purpose of the Proposed Treatment

[18] At the hearing before the Board, the respondent explained why he wished to administer anti-psychotic medications to the appellant:

My interest really is in having Mr. Keizer obtain some relief from these persecutory emotions that he has been labouring for the last so many years. It is a fact, and I do believe, that he has had several traumas, he has gone through a lot of life stressors, negative life events starting with in 1998 when there was an administrative licence suspension which has caused a domino effect of how his insurance shot up, he was unable to secure employment of his liking, and had to take employment in dangerous circumstances. I totally acknowledge that is a fact and is not a delusion. I do totally acknowledge that he was deprived of welfare by the Ontario Works, saying it not in a blaming way but that he had to wait for his benefits to kick in, during which time he had no money, he starved and he had other life events as well. His mother passes away, he was evicted from his home, so I acknowledge that these were serious life events in his life. The issue is not about whether these have occurred or not. As traumatic as these events were, they have affected Mr. Keizer’s perception of life itself. He has come to include and interpret every event that happened after this series of events as being deliberately caused by a lynch mob, which is a term he uses to address the collusion among the MTO, the Hamilton Police and Ontario Works. And every event that happened afterwards he somehow links it to the core events of his life…. It is this extent of believing that he was maliciously maligned by government agencies that is indicative of delusional disorder.

[19] The respondent was cross-examined on the potential benefits of medication:

Q. Now the other thing that I wanted to ask … is that were you able to describe to him the benefit of the medication and how that would benefit him because as you’re saying throughout, it’s not going to remove the facts that all of us agree he went through, or that you agree with him he went through, the drivers, the problems, the Welfare, the Court, the medication will not remove those things?

A. The medication will not remove the facts but the medication will help, there is a one in two chance that Mr. Keizer will be able to process the trauma. The benefit really is some relief from the sense of persecution that has come to dictate his life for so many years which has caused him so many problems including legal issues, so that is the benefit.

According to the respondent, the appellant’s condition “could worsen” without treatment, leading to a “risk of further offending behaviour”.

(iv) The Currency of the Diagnosis

[20] On more than one occasion, the respondent explained that the appellant had a history of being delusional and not believing that he was the victim of circumstances but, rather, that the negative things that had happened to him had been done deliberately by many different parties, including the Hamilton police. The respondent continued his testimony as follows:

A. … So he has felt extremely petrified and also maliciously maligned by Hamilton police. There were numerous contacts with COAST from 2004 onwards right up until 2011 that speak to how he processed traumas that we’ve just talked about. I think it’s this inability to process trauma and believing that he is a target which needs to be addressed and that’s where I believe medication could help.

Q. Okay, does he believe those things today?

A. He endorses that situation was such at that time, but to my question at this point if he believes Hamilton police are targeting him, he answered in the negative and then he tried to unpack as to what has changed. If they had been persecuting him, if he had been the target back then why is that he believes he is not the target anymore? We were not able to come to any conclusions regarding that.

Q. So it doesn’t sound like he’s believing of those things now? Have I got that right?

A. Correct.

[21] The respondent gave the following evidence when questioned by the psychiatrist member of the Board:

Q. Now you mentioned that right now he’s not talking so much about the police being after him, of feeling threatened by the police at this time, is that correct?

A. That’s correct, sir.

Q. What about his delusions? Are there still other people that he feels might be involved in some conspiracy or some plot to do him harm or get in his way of progress?

A. I think one of the people he’s still thinking about is to bring the doctor who diagnosed him with delusional disorder, which led to the NCR finding, to justice. He [inaudible] as I proposed a diagnosis and thought he was incapable and he referred to me as a criminal and he has been quite traumatized by that finding. So even though there are no ongoing expressions that his life is in danger, the signature behaviour of incorporating people into his threat system continues.

Q. But other than people who diagnose him with the delusional illness that he has, are there any other current symptoms of delusional disorder?

A. No, sir. I think the only aspect that I have been able to elicit since Mr. Keizer has been transferred here is that he continues to endorse that whatever happened in the past is a product of colluded effort by these agencies and he will not rest until he brings someone injustice [sic] or his evidence is heard in a court of law. So the drive is still alive, the beliefs he had endorsed in the past he continues to endorse as well. He has been in the NCR system for nearly four years in the exact same state.

C. The Appellant’s Evidence at the Hearing

(i) Delusional Disorder and Persecution

[22] The appellant testified. He explained that he did believe that he was suffering from a mental illness. He also denied believing that he was a victim of a conspiracy:

Q. Now that being said, do you think that you are being conspired against personally or as part of a larger group? Where are we on that, can you help me? How does that fit in?

A. Well as far as the Welfare cuts go, I mean that’s common sense that that happens to a lot of people, but they’re supposed to do their job and give you a tribunal or appeal process, which they didn’t. As far as the MTO abstract goes, I question that, I don’t know what happened, but that one would of course be personal against me.

Q. Well, yes, that’s your abstract.

A. It doesn’t work with accusing a bunch of people all at the same time with something like that. I am definitely a victim of circumstances. However, I think they could have certainly been prevented had someone done their due diligence and corrected the matter when I was brought to their attention.

[23] The appellant denied that he believed that he was being persecuted:

However, I do have an abstract and a record of my income that proves that there was definitely something happening here that shouldn’t have and I’m owed a lot of money in lost wages, like it or lump it, and evidence of this could have possibly been misdirected to keep it out of the courts. Anything’s possible and until I see proof it isn’t I’ll maintain any belief I have, but, I’m not persecutory, I don’t think people are persecuting me, think that what happened was absolutely wrong and needs to be justified, sorry, rectified.

(ii) The Benefits of Medication

[24] The appellant was asked about the respondent’s view that medication might benefit him:

Q. … [S]uppose you take the medication, you heard what the doctor said, it might help you process the trauma, what would happen if you took the medication, sir?

A. Well, let’s see, it’s almost two decades after the fact and it’s just going to make me feel groggy and stupid like I felt when they forced it on me at Waypoint.

Q. Do you think you will be able to pursue your complaints if sedated?

A. I don’t think so. I need my scruples, I need my brain, and I have always pursued it through legal means, hence the overturned utter a threat charge. I did not utter a threat, I’m here on a fail to comply.

[25] The appellant gave the following evidence when questioned by the public member of the Board:

Q. In the period when you were at Wayside [sic] and you received treatment, did you notice any improvement at all in the way you felt?

A. No, it made me feel awful, as it always had. It’s not going to take away the facts and my beliefs are corroborated by documentation. I don’t have this idiosyncratic belief, my belief is in the facts, and when the facts point in a certain direction, I’m going to assume that until something else shows me different, and nothing ever, ever, ever had in all of this nonsense, nothing, except somebody’s opinion. Well, sorry about your opinion but that’s a questionable diagnosis here because Dr. Bergstrome says I’m not mentally ill and I’m not a threat to the public, and he’s right.

(iii) The Appellant’s Reaction to the Respondent’s Diagnosis

[26] The appellant was asked whether the respondent’s diagnosis had caused him to feel threatened. He responded as follows:

No except for he’s threatening me with medication. I don’t need medication, I don’t suffer from persecutory disorder, okay, if anything it’s post-traumatic stress disorder from the ordeal that I was subject of.

[27] The respondent cross-examined the appellant on his reaction to the diagnosis:

Q. … I would like to think that when we were having these discussions we had some kind of rapport, and then when I informed you that in my professional opinion I believed that you had a delusional disorder, you became upset. Is that a fair word to use?

A. Well, if I told you that you’re delusional….

BOARD MEMBER: Just answer the question please, Mr. Keizer.

A. I wasn’t happy.

Q. At that time, yes. And you did say something along the lines of, you would see that my career was ended and you referred to me as a criminal, is that correct?

A. I did refer to you as a criminal, I did say something that, “Well, it’s your career, if you want to lose it, that’s up to you”.

Q. Explain to the Board how I turn from being your doctor into being a criminal. How did you arrive at that?

A. Well, when you look up malpractice in the dictionary, it says criminal wrongdoing.

Q. Which in your case was what exactly?

A. Wrongful diagnosis.

II. The Board’s Reasons

[28] After summarizing the evidence and the relevant statutory provisions, the Board considered the respondent’s diagnosis and the appellant’s evidence with respect to that diagnosis. The Board concluded:

We preferred the evidence of the doctor. We found the doctor’s evidence to be clear, cogent and compelling that TK suffered from a delusional disorder and continued to suffer from this disorder at the time of the hearing.

[29] The Board concluded that the appellant was able to understand information relevant to making a decision about the treatment in question. The Board went on to consider whether the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question. After summarizing the positions of the appellant and the respondent, the Board held:

TK gave evidence that he did not want medication because it would make him “groggy and stupid”. He stated he needed to be alert to pursue the government agencies (mentioned above) to hold someone accountable for the stress they caused him. He was unable to recognize he was still pursuing what he thought was real but was, according to the evidence, manifestations of his mental illness.

Dr. Nagari’s finding of incapacity rested on TK’s inability to apply the information he received to himself. This was because he did not accept he suffered from any mental illness or any manifestations of mental illness. The doctor’s report at Exhibit 8 stated “[TK] disagrees and takes profound offense at a diagnosis of a Delusional Disorder…. he is unable to acknowledge, even remotely, that his interpretations of the events of his life, could be manifestations of a psychotic disorder. Since he does not believe he suffers from delusions (which are the primary symptoms of a Delusional Disorder) he does not believe the proposed treatment applies to him. Mr. [TK] is unable to apply the relevant information to his circumstances, and unable to appreciate the reasonably foreseeable consequences of his decision”.

TK did not accept he would benefit from the proposed treatment because he did not have an illness that required treatment. In evidence, TK acknowledged he had taken psychiatric medication in the past when he needed it, but this was not a situation that required medication.

The evidence received supported Dr. Nagari’s conclusion concerning TK’s capacity. TK was unable to see that he was suffering from serious manifestations of a mental condition. He continued to believe he was not ill and therefore did not need treatment. He was unable to evaluate information concerning the proposed type of medications as it related to his own circumstances. This rendered him incapable to make a decision concerning the proposed treatment.

III. Analysis

A. Mootness

[30] By the time this appeal was heard, the ORB had granted the appellant an absolute discharge and he was no longer in the hospital. The respondent took the position that as a result of this, the appeal was moot. If the appellant were to be hospitalized in the future, his capacity to consent to treatment would have to be assessed anew at that time.

[31] The appellant submits that the appeal is not moot because if he is found to have been capable at the time he declined to consent to treatment, his expressed wishes on that occasion would be relevant to a substitute decision maker if he is found to be incapable in the future. Section 21(1) of the HCCA states that if a substitute decision maker “knows of a wish applicable to the circumstances that the incapable person expressed while capable’, then the substitute decision maker “shall give or refuse consent in accordance with the wish.”

[32] The issue of the mootness of an an appeal from a decision of the Board in these circumstances was thoroughly considered by my colleague, Glustein J., in Christoforou v. Shin, 2018 ONSC 2184. He concluded that because of the potential impact that the outcome of the appeal can have on future decisions made by a substitute decision maker, the appeal was not moot. I agree with his analysis and his conclusion.

[33] While the appellant in Christoforou had been discharged from the hospital since the decision that was being appealed had been made, unlike the appellant she had been re-admitted and again found incapable by another doctor before the appeal was heard. This made the potential impact of the appeal’s outcome more immediate than in this case. However, this is at least the third time that the appellant has been found to be incapable, so the potential for this issue to arise in the future is substantial. In my view, this appeal is not moot. Even if it is, like Glustein J. in Christoforou, I would nonetheless exercise my discretion to hear it.

B. The Standard of Review

[34] This appeal was brought pursuant to s. 80 of the HCCA. Section 80(10) sets out the powers this court has on an appeal:

80. (2) On the 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; (c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[35] The parties agree that other than with respect to questions of law, which are reviewed for correctness, the Board’s decision is reviewable on a reasonableness standard. This was explained in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 88:

The standard of reasonableness “involves respectful attention, though not submission” to the Board’s reasons: see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at para. 49. An unreasonable decision is one that “is not supported by any reasons that can stand up to a somewhat probing examination”: see [[Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748]](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii385/1997canlii385.html), at para. 56.

See also Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 45-48; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 11-18.

C. The Test for Capacity

[36] Capacity to consent to treatment is defined in s. 4(1) of the HCCA:

4.(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.

There is a presumption that a person is capable of deciding whether to accept medical treatment. That presumption can only be displaced by evidence which shows on a balance of probabilities that the person lacks the elements of capacity outlined in the HCCA: Starson, at para. 77.

[37] As explained in Starson, at para. 78, this involves two criteria: (1) whether the person is able to understand the information relevant to the treatment decision; and (2) whether the person is able to appreciate the reasonably foreseeable consequences of the decision or lack of one. There is no issue that the appellant meets the first criterion. The Board found that he does and neither party takes issue with that finding.

[38] The second criterion requires that the person “be able to apply the relevant information to his or her circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof”: Starson, at para. 78. The majority in Starson set out two points that must be kept in mind when considering this criterion (at paras. 79-80):

First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and “capable but dissident interpretations of information” are to be expected: see Weisstub Report [D.N. Weisstub, Enquiry on Mental Competency: Final Report, Toronto: Queen’s Printer, 1990], at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows (at p. 250, note 443):

Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.

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.

Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences. The distinction is subtle but important: see L. H. Roth, A. Meisel and C. W. Lidz, “Tests of Competency to Consent to Treatment” (1977), 134 Am. J. Psychiatry 279, at pp. 281-82, and Weisstub Report, supra, at p. 249. In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment. If the patient shows an appreciation of these parameters — regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation — he has the ability to appreciate the decision he makes: see Roth, Meisel and Lidz, supra, at p. 281.

C. The Appellant’s Refusal to Accept the Diagnosis

(i) The Issues

[39] As explained in Starson, the appellant was not required to agree with the respondent’s diagnosis. However, if it is established that he suffers from a condition, he must be able to recognize that he is affected by its manifestations. This raises two questions: (1) Did the evidence establish that the appellant suffered from a delusional disorder; and (2) If so, did the appellant recognize that he was affected by the manifestations of the disorder. Both questions require careful consideration of the specific details of the respondent’s diagnosis.

(ii) Did the Evidence Establish that the Appellant Suffers From Delusional Disorder?

[40] The disagreement between the appellant and the respondent is a narrow one. They both agree that the appellant experienced a number of negative events in his life which had a significant impact on him. They both agree that some of those events were the result of various forms of state action involving the MTO, OW and the Hamilton police. Where they appear to disagree is with respect to whether that state action was intentional and the result of a conspiracy, and whether the appellant believes such to be the case. According to the respondent, the appellant believed himself to be the victim of a conspiracy and that belief was the result of delusional thinking. According to the appellant, he did not believe that he was the victim of a conspiracy and therefore did not suffer from delusions.

[41] In many CCB cases involving delusional disorder, the patient refuses to accept the diagnosis because he or she thinks that his or her beliefs are true and not the result of delusions: see, e.g., Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481; B.J. (Re); M.C. (Re); F.R. (Re). This case is different in that the appellant’s disagreement with the diagnosis did not stem from a refusal to accept that his belief in a conspiracy was delusional. Rather, it stemmed from a denial that he held the belief at all.

[42] The Board found that the respondent’s evidence that the appellant suffered from a delusional disorder was “clear, cogent and compelling”. With respect, it was anything but. Rather, it was unclear and, at times, contradictory. While the respondent was clear that the appellant had suffered from delusions about a “lynch mob” in the past, it was not at all clear that the appellant continued to suffer from such delusions at the time of the hearing. The respondent agreed with the suggestion put to him in cross-examination that the appellant no longer believed that he was being persecuted. In response to questions by the psychiatric member of the Board, the respondent testified that the only current symptom of the delusional disorder was the appellant’s reaction to being diagnosed with having a delusional disorder, which was to accuse the doctors of being “criminals”. None of this evidence was mentioned by the Board in its reasons. In these circumstances, the conclusion that the respondent’s evidence was capable of rebutting the presumption of capacity was, with respect, unreasonable.

[43] During oral argument, counsel for the respondent relied on the following statement from the respondent’s summary in the “Administrator Report to the Ontario Review Board” as evidence that the appellant continued to suffer from delusional disorder. This report, dated January 18, 2017, was part of the record before the Board. In it, the respondent stated:

Mr. Keizer has expressed to one of the staff that he believes that the writer, like other psychiatrists in the past, has been paid by the MTO, HPS and OW to testify against him, and diagnose him as mentally ill, and force treatment on him.

There are several reasons why I would place no weight on this evidence. It describes a statement allegedly made by the appellant to an unknown staff member at an unknown time and in unknown circumstances. While it is open to the Board and this court to rely on hearsay evidence, care must be taken to “avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability”: Starson, at para. 115. This evidence fits that description. Furthermore, the respondent made no mention of this incident during his testimony before the Board, even when expressly asked about the appellant’s current symptoms, nor did the Board mention this evidence in its reasons.

[44] While it was open to the Board to conclude that the appellant had suffered from a delusional disorder in the past, in my view, the conclusion that he did so at the time of the hearing was unreasonable. The only current symptom of delusional disorder described by the respondent was the appellant’s reaction to being diagnosed. The appellant explained that he had called the respondent a “criminal” because he disagreed with the diagnosis and believed that medical malpractice was the equivalent of “criminal wrongdoing”. As Starson makes clear, he had the right to disagree. While his reaction may have been overstated and colourful, it is difficult to see how it is evidence of delusional thinking.

(iii) Recognition of the Manifestations

[45] Even if I am wrong in my conclusion that the finding that the appellant suffered from a delusional disorder at the time of the hearing was unreasonable, in my view the evidence clearly established that he recognized that he was affected by what the respondent described as being the manifestations of the condition. Once again, the relevant timeframe is the time of the hearing. While the respondent’s evidence on this point was unclear, it would appear that the only “current symptom” or manifestation of the disorder at that time was the appellant’s reaction to being diagnosed. The appellant acknowledged that he was upset by the diagnosis and that he had called the respondent a “criminal”. He denied, however, that he did so as a result of a delusion but, rather, because he viewed the diagnosis as wrong and constituting malpractice. As in Starson, he did not agree with the diagnosis, but he agreed that he had been exhibiting the symptoms that were said to confirm the diagnosis.

[46] Furthermore, the focus of the respondent’s concerns about the appellant’s condition was the appellant’s inability to process the trauma arising from his negative life events and the extent to which this preoccupied him. The appellant was fully aware that he had been traumatized and that he had spent and planned to continue to spend significant time and energy to redress what he perceived to be injustices. The Board’s conclusion that the appellant was “unable to recognize he was still pursuing what he thought was real but was, according to the evidence, manifestations of his mental illness” was unsupported by the evidence. Everybody, including the respondent, agreed that the events that had traumatized the appellant were real.

D. The Appellant’s Ability to Appreciate the Consequences of His Decision

[47] The Board agreed with the respondent that the appellant was “unable to apply the relevant information to his circumstances, and unable to appreciate the reasonably foreseeable consequences of his decision.” With respect, the evidence did not support this conclusion.

[48] The appellant explained why he did not want to take the medication: He had taken it in the past, it had not resulted in any improvement, and it made him feel “awful”. The appellant clearly understood that the proposed medication was intended to assist him in “processing the trauma”. However, he did not agree that the medication would do so, as in his view the trauma arose as a result of real events. In other words, in the appellant’s view it was the events, and not the existence of a conspiracy, that caused the trauma.

[49] The Board’s conclusion that the appellant was unable to appreciate the consequences of his decision appears to be based entirely on the appellant’s disagreement with the respondent’s diagnosis. However, the appellant’s belief that he did not have a delusional disorder did not affect his appreciation of the consequences of his decision to refuse treatment. He refused treatment because based on his past experience, the medication did not help. Whether it did not help because he did not suffer from a delusional disorder or whether it did not help because there was only a “one in two” chance that it would, as the respondent testified, does not alter the fact that the appellant considered the consequences of his decision.

[50] Importantly, the appellant’s unwillingness to undergo treatment was not the result of a delusion. He did not, for example, refuse treatment because he believed that the respondent was trying to perform experiments on him or to keep him in the hospital in order to make a profit, as was the case in Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587. Not every failure to appreciate the consequences will result in a finding of incapacity, only those failures that result from the patient’s condition. This was made clear in Starson (at para. 111):

It is critical that the Board determine whether the reasons for a patient’s failure to appreciate consequences demonstrate that the patient is unable, as result of his condition, to appreciate those consequences. [Emphasis added].

[51] Similarly, in her dissent in Starson, McLachlin C.J. canvassed common clinical indicators of a person’s ability to appreciate the consequences of accepting or declining treatment, including that “the person’s choice is not substantially based on a delusional belief” (at para. 18).

[52] On the respondent’s evidence, it was unclear if the proposed medication was likely to ameliorate the appellant’s condition. This was a significant fact which the Board failed to consider: Anten v. Bhalereo, 2013 ONCA 499, 366 D.L.R. (4th) 370, at paras. 23-25. The appellant was of the belief that it would not. This belief was not the result of any delusions about the medication or its purpose but, rather, his preference for Dr. Bergstrome’s opinion over that of the respondent. As Starson makes clear, he was entitled to hold that view.

IV. Disposition

[53] The appeal is allowed and the decision of the Board finding that the appellant is not capable to consent to treatment is set aside.

[54] The parties do not seek costs and none are ordered.

[55] I would like to thank both counsel for their extremely helpful written and oral submissions.

Schreck J.

Released: July 18, 2018.