COURT FILE NO.: CV-17-0530
DATE: 2018-06-15
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Matter of an Appeal from 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 the Mental Health Act, R.S.O. 1990, c. M.7
B E T W E E N:
Shelly Kubas
Mr. D. Shannon, for the Appellant
Appellant
- and -
Dr. Jane Fogolin and Dr. Renee Vachon
Ms. E. Roy, for the Respondents
Respondents
HEARD: June 6, 2018, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Appeal from a Decision of the Consent and Capacity Board
Introduction
[1] Under s. 54(1) of the Mental Health Act, a physician is required to conduct an examination of a person admitted to a psychiatric facility to determine if the patient is capable of managing property. The appellant, Shelly Kubas, was such a patient. She was an in-patient resident at the Lakehead Psychiatric Hospital operated by the St. Joseph’s Care Group at the time of the examination.
[2] Ms. Kubas was assessed by her attending physicians, Dr. Jane Fogolin and Dr. Renee Vachon who determined that she was incapable of managing property. Their finding was appealed to the Consent and Capacity Board (“the Board”) which heard the matter and confirmed the respondents’ finding in a decision dated September 6, 2017. Ms. Kubas was represented by counsel at the initial hearing and on appeal.
[3] Ms. Kubas now appeals the decision of the Consent and Capacity Board to the Superior Court of Justice and asks the court to declare that she is capable of managing her property.
Jurisdiction
[4] The Superior Court has jurisdiction, pursuant to s. 48(1) of the Mental Health Act, R.S.O. 1990, c. M.7, to hear appeals from the Consent and Capacity Board on a question of law or fact or both.
[5] The Health Care Consent Act, S.O. 1996, c.2, Sch A, s. 80 (10) provides that on appeal, the court may:
(i) exercise all the powers of the Board;
(ii) substitute its opinion for that of a health care practitioner, an evaluator, a substitute decision-maker or the Board;
(iii) refer the matter back to the Board, with directions, for rehearing in whole or in part.
Standard of Review
[6] The parties agree that the standard of review for a decision of the Consent and Capacity Board is reasonableness. I also agree with this submission. See: Starson v. Swayze 2003 SCC 32, [2003] 1 S.C.R. 722, para. 84.
The Test for Incapacity to Manage Property
[7] A person is presumed capable by statute and at common law. While the Mental Health Act does not define capacity to manage property, the Board relied on companion legislation, the Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 6, Schedule B. for the test as follows:
- A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her own property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[8] The test is disjunctive; in other words, a finding on either branch of the test is sufficient to ground a finding of incapacity to manage property: M.B. v. Dr. Brad Booth, 2017 ONSC 3814, at para. 20. At a hearing, the onus of proving incapacity is on the attending physicians on a balance of probabilities.
[9] In the Starson case, the Supreme Court of Canada considered capacity to consent to treatment. However, an analogy can be drawn from those principles to capacity to manage property. At para. 79, the court commented:
…a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is the 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.
[10] The Board has, in various decisions, used the following indicators of capacity to manage property:
Does the patient suffer from delusions or hallucinations which will likely materially affect the patient’s understanding and management of finances?
Is the patient oriented to time, place and person?
Is the patient’s memory sufficiently intact so as to allow the patient to keep track of financial matters and decisions?
Is the patient’s calculating ability sufficient in the circumstances?
Does the patient suffer specific thought process deficits which give rise to the conclusion that deficits in financial judgment exist?
Does the patient possess or have the capacity to learn skills necessary to make the sort of decision required in an estate of the size, nature and complexity that he or she possesses?
Position of the Parties
[11] The appellant submits that the appeal should be allowed and asks the court to declare that she is capable of managing her finances. She submits that the Board made errors in fact and in law for several reasons:
the appellant was not advised that she was being questioned for the purpose of ascertaining whether she was capable of managing her property;
the respondents did not present cogent and compelling evidence that the appellant was unable to understand information presented to her concerning the management of her finances and appreciate the reasonably foreseeable consequences of acting upon that information;
because the appellant’s income consisted of a hospital allowance of $140.00 per month in a controlled environment, there is no significant concern about the management of her finances;
the appellant was not asked about her ability to perform mathematical calculations or whether she had any debts.
[12] The respondents submit that the Board’s conclusion that:
the appellant suffers from a mental disorder which causes her to experience delusional beliefs that she is married and owns a residence with her husband when neither is true;
these delusions cause her to refuse any realistic discharge planning; and
the delusions impair her ability to appreciate the foreseeable consequence of refusing to participate in discharge planning, which includes the prospect of life-long hospitalization
is supported by the evidence of Dr. Vachon, and corroborated by the documentary evidence. The respondents submit the decision of the Board was reasonable and the appeal should be dismissed.
Discussion
[13] The evidence before the Board describes the appellant as being 52 years old and a college graduate who is in receipt of Ontario Disability Support Program benefits of $140.00 per month.
[14] The appellant was admitted to Lakehead Psychiatric Hospital on January 19, 2009 as an involuntary patient. She is currently diagnosed as having schizoaffective disorder. By June 30, 2017, she was assigned to the care of Dr. Fogolin as attending physician. She was assessed as incapable of managing her property by Dr. Vachon, who is a third year resident in the psychiatric service, under the supervision of Dr. Fogolin.
[15] As required by s. 54(2) of the Mental Health Act, Dr. Vachon assessed the appellant to determine her capacity to manage property. The appellant submits that she was not advised that she was being questioned for the purpose of ascertaining whether she was capable of managing her property. This submission does not accord with the testimony of Dr. Vachon at the hearing.
[16] Dr. Vachon indicated that Ms. Kubas was aware that she wanted to know Ms. Kubas’ understanding about her assets and income during the interview. She began the interview by attempting to develop a rapport with Ms. Kubas; however, she testified that Ms. Kubas was resistant to being asked about financial matters, to the point of becoming angry, aggressive, and leaving the interview before the assessment was completed.
[17] Ms. Kubas also objected that the assessment was incomplete because she was not asked about whether she had debts; nor was her ability to do mathematical calculations probed during the assessment. I do not accept this submission. The appellant certainly understood that she was being questioned about financial matters.
[18] The Board accepted the evidence of Dr. Vachon that she was unable to ask Ms. Kubas about debts or test her ability to perform mathematical calculations because the appellant became angry and walked out of the interview. Dr. Vachon found the appellant angry and threatening towards her since that time. It appears that it was the appellant’s behaviour that limited the scope of the assessment.
[19] The Board accepted as cogent and compelling the respondents’ evidence that Ms. Kubas consistently held the delusional belief that she and her husband owned a home on “R” Street in Thunder Bay and that her husband, whom she believed was a police officer, would bring her home from the hospital to live with him in their residence. The evidence before the Board showed that Ms. Kubas had not been married and did not own a home. Furthermore, the evidence before the Board showed that the appellant had had no visitors since being hospitalized in 2009.
[20] Upon her admission, the appellant’s mother, acting as her substitute decision-maker, had contact with the appellant and the hospital; however the evidence showed that any contact had lapsed since 2013 and that efforts to locate the mother were unsuccessful.
[21] The Board accepted the evidence of Dr. Vachon that the appellant’s delusional belief that she intended to live with her husband in a home that they owned led Ms. Kubas to refuse any alternate discharge planning, such as to supportive housing.
[22] The Board concluded at p. 9 of the decision that the appellant was not capable of managing property because at the time of the assessment, she was unable to understand information that was relevant to making a decision in the management of her property. The Board reasoned:
I found that this belief prevented S.K. from being able to understand information that was relevant to making a decision in the management of her property in that she was unable to understand that her assets did not include the house on “R” Street in Thunder Bay.
I noted that even if S.K. no longer believed that she owned the property where she would be living with her husband, as long as she held the delusional belief that her husband was going to pick her up and take her to a home where they would live together, she would not be able to understand information that was relevant to making a decision in the management of her property in that she would continue to believe that she had housing available to her in the community.
[23] At p. 16 of the decision, the Board also concluded:
I found that S.K. was therefore unable to appreciate that she would likely remain in the hospital indefinitely if she did not engage in discharge planning including plans in regard to her future housing in the community.
[24] The Board characterized the appellant’s inability to understand her housing options because of the delusion that she owned property as interfering with her understanding of the reasonably foreseeable consequences of a decision or lack of decision in the management of property: p. 17.
[25] This was a reasonable conclusion. The Board relied on the evidence of capacity that was germane to the treatment plan being developed for Ms. Kubas: to explore housing her in a non-institutional setting. There was also evidence that the appellant resisted any plan that did not involve living with a husband she believed she had in a home that she believed she owned.
[26] What is the purpose of doing a capacity assessment? There would have been no practical utility in assessing the appellant’s capacity to manage the “pin money” account to which she was entitled under ODSP. The requirement to assess a patient’s capacity to manage property under the Mental Health Act must surely relate to the circumstances and treatment prospects of the patient at the time of the assessment.
[27] For instance, what immediate steps, if any, are required to protect a patient’s property upon admission? What resources are available to help a patient as part of her treatment plan, both upon hospitalization and upon discharge? Capacity assessment is not simply busy work for the medical staff and their patients. Otherwise, why would the test for capacity encompass a consideration of the patient’s capacity to appreciate reasonably foreseeable consequences of acting on information? In my view, capacity assessments are a tool to support treatment plans.
[28] The appellant submits that the Board relied on medical evidence from 2008 – 2010 to determine the appellant’s capacity to manage property. I do not agree. The Board specifically rejected some evidence as indicative of the appellant’s inability to manage property: for example, a vague suggestion that she believed she worked for the FBI and had income from that source; a discrepancy in the amount of ODSP benefit she believed she received; her failure to file income tax returns and her refusal of filing assistance, with the consequent result that she received no GST cheques.
[29] The Board also rejected as not cogent and compelling historical evidence pre-dating the assessment that in 2008, the appellant had been discharged from hospital, lived in and was evicted from a local hotel and ended up living in a local shelter where she demonstrated bizarre behaviour, determining that such evidence did not relate to the time of the assessment.
[30] In my view, the decision of the Board was grounded in the evidence and was reasonable. The appeal is therefore dismissed.
_______“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: June 15, 2018
COURT FILE NO.: CV-17-530
DATE: 2018-06-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Shelly Kubas
Appellant
- and -
Dr. Jane Fogolin and Dr. Renee Vachon
Respondents
REASONS ON APPEAL FROM A DECISION OF THE CONSENT AND CAPACITY BOARD
Pierce J.
Released: June 15, 2018
/lvp