Court File and Parties

BARRIE COURT FILE NO.: DC-18-0315 DATE: 20181022 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: N.J. Appellant/Respondent – and – Dr. N. Corriveau Respondent/Moving Party

Counsel: N.J., In-Person David Northcott, Amicus James Thomson, for the Respondent/Moving Party

HEARD: October 12, 2018

Reasons for Decision

MCKELVEY J.:

Introduction

[1] N.J. is currently a patient at the high security provincial forensic program at Waypoint Centre for Mental Health Care in Penetanguishene, Ontario. He was found not criminally responsible on account of mental disorder on charges of criminal harassment in 2011 and has been detained at various psychiatric hospitals in Ontario since that time. On January 29, 2018, N.J.’s attending physician, Dr. Corriveau, made a finding that he was incapable of consenting to treatment to a delusional disorder she had diagnosed. N.J. requested a review of this finding by the Consent and Capacity Board. A hearing by the Consent and Capacity Board took place on February 21, 2018. At that hearing, the Board upheld the finding of Dr. Corriveau that N.J. was incapable of consenting to treatment with anti-psychotic medication, oral and injectable.

[2] N.J. has brought an appeal from the Consent and Capacity Board decision. That appeal has not yet been perfected by him and it is not known when the appeal will be heard.

[3] Section 18(3) of the Health Care Consent Act, 1996, precludes any treatment being given to N.J. until his appeal from the Board’s decision has been finally disposed of because no treatment had been commenced prior to the Board hearing. Dr. Corriveau has brought a motion under s. 19 of the Health Care Consent Act, seeking authorization to administer treatment pending the hearing of N.J.’s appeal to Superior Court from the Consent and Capacity Board’s decision.

[4] Section 19 of the Act provides as follows:

19 (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given.

(2) The court may make the order if it is satisfied,

(a) that,

(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person’s condition will not or is not likely to improve without the treatment, or

(ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate;

(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

(d) that the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal.

Position of the Parties

[5] Dr. Corriveau’s position is that N.J. urgently needs treatment for his delusional disorder and that the criteria under s. 19 have been satisfied. She is not seeking any order to treat any of the other conditions, such as depression, which she feels N.J. suffers from. She agreed in her evidence at the hearing that N.J. does have the capacity to make treatment decisions about his depressive illness. N.J.’s mother is proposed to act as the substitute decision maker and has consented to the proposed treatment.

[6] N.J. denies that he is incapable of making decisions about his delusional disorder and further denies that he suffers from that disorder. He also denies that the proposed substitute decision maker is his biological parent. N.J. represented himself at the hearing, but was assisted by legal counsel, Mr. David Northcott, who acted as Amicus and who provided legal advice and assistance to N.J. during the course of the hearing before me.

Evidence Before the Court on this Motion

[7] Dr. Corriveau filed a motion record which included an Affidavit from Dr. Jeffrey Van Impe, who is the Psychiatrist-in-Chief at Waypoint and who is also one of N.J.’s treating physicians. Dr. Corriveau also gave oral evidence on the motion. N.J. filed two envelopes containing documentary evidence, as well as a Consent and Capacity Board summary which sets out their reasons for their finding of incapacity.

Analysis

[8] The case law recognizes that any order which permits a patient to undergo forcible treatment against his or her will is a serious infringement to the physical integrity, liberty and security of the person. Such an order should not be granted unless it is truly necessary and, even then, only with due consideration and respect for the personal rights of the patient. See for example Gunn v. Koczerginski, 2001 CarswellOnt. 4079. The requirements of s. 19 of the Health Care Consent Act, 1996, set out strict criteria which must be satisfied before such an order is given. It must be recognized, however, that the legislation authorizes treatment pending an appeal where the failure to treat threatens the welfare of the patient and where there has been a careful consideration of the risks and benefits of treatment. The authority to treat patients in appropriate cases recognizes that treatment may be the only available means to preserve the physical integrity and quality of life for an incapable person. Treatment orders under s. 19 therefore require a careful consideration of all relevant factors because the potential consequences for the patient are serious, regardless of which way a court rules.

[9] The Affidavit of Dr. Van Impe does contain evidence that the statutory criteria have been satisfied. Dr. Van Impe concurs with Dr. Corriveau’s diagnosis that N.J. suffers from a delusional disorder. He also states that N.J. demonstrates angry and threatening behaviour towards staff members, including threats of bodily harm. He is paranoid of certain staff members and has left several staff members feeling concerned for their safety at work. N.J. is reported to have made death threats against members of the nursing staff, as well as Dr. Corriveau. His current active symptoms include persecutory delusions, which include a belief by N.J. that he is being poisoned by food contaminated with disease such as HIV or Hepatitis. His behaviours are described as including threatening and explosive. They required police involvement in April, 2018, when he attempted to break through his locked door and was reported to be yelling out death threats to staff. In a Hospital Report reference in Dr. Van Impe’s Affidavit, it states,

[N.J.] cannot appreciate that his psychosis and personality style has led to aggression (verbal and physical) towards others, only portraying himself as the victim of mistreatment by others.

[10] At para. 18 of his Affidavit, Dr. Van Impe states that N.J.’s mental status is deteriorating without treatment. He also states that he continues to be of the opinion that N.J. is not capable of making decisions with respect to his treatment for the delusional disorder. N.J. continues to believe that he does not suffer from a delusional disorder or delusional thinking.

[11] At para. 23 of his Affidavit, Dr. Van Impe states that N.J.’s mental condition will be significantly improved by receiving the proposed treatment. He feels it is reasonable to expect that if treated, there will be a reduction in the delusions experienced by N.J. and that he will become less aggressive, less grandiose, more organized and more coherent in his thought process. He references the fact that N.J. has been treated in the past with apparent success.

[12] At para. 24 of his Affidavit, Dr. Van Impe states that although all treatments bear some risk of side effects, he believes that the benefits N.J. will likely receive from the proposed interim treatment outweigh the risk of harm. He notes that when individuals experience side effects, the dosage of medication can be adjusted and that Waypoint will proceed with treatment cautiously and monitor N.J.’s response carefully.

[13] Dr. Van Impe expects to see a positive clinical response within several weeks of the commencement of treatment. He further states that the proposed treatment he is seeking the court to allow is the least intrusive and least restrictive possible under the circumstances. If left untreated, Dr. Van Impe is of the opinion that N.J.’s clinical condition will deteriorate and he states that his presentation has worsened since the initiation of the appeal.

[14] Dr. Van Impe’s opinions were supported by Dr. Corriveau in her evidence. She adopted Dr. Van Impe’s opinions as set out in his affidavit. She noted that N.J. has been in seclusion because of his threats to staff members. He is also suffering weight loss because of his fear of tainted food. Because of his behaviours, Dr. Corriveau suggested that N.J. has limited socialization in the hospital. He is in seclusion most of the time and Dr. Corriveau feels that he suffers from a poor quality of life which will significantly improve with treatment.

[15] On questioning by N.J., Dr. Corriveau acknowledged that there are treatments other than medication for delusional disorder. Dr. Corriveau noted that psychotherapy is an accepted form of treatment. However, at this point N.J. has not been able to develop a psychotherapeutic relationship with her because of the severity of his symptoms. Dr. Corriveau hopes that anti-psychotic medication can improve his condition so that at some point it may be discontinued in favour of psychotherapy.

[16] Dr. Corriveau also acknowledged the side effects of anti-psychotic medication, which include neurological complications such as muscle stiffness and spasm, weight gain, diabetes and an increased risk of some very serious medical conditions associated with diabetes, which include heart disease. She noted, however, that N.J.’s condition would be monitored closely. There was no evidence of serious side effects when he was on anti-psychotic medication in the past. She is of the view that the benefits clearly outweigh the risks of treatment.

[17] Dr. Corriveau also agreed in response to questioning by N.J. that he is able to understand information which is given to him. His incapacity to consent to treatment is based on the fact that he is not able to appreciate the foreseeable consequences of a decision or lack of decision.

[18] I have concluded that the necessary criteria under s. 19 have been satisfied on this motion.

[19] N.J. attended in court on this motion. He was well-dressed and groomed. He is obviously very intelligent and articulate. However, he does not accept that he has a delusional disorder. He suggested that other physicians have disagreed with this diagnosis. However, there appears to be considerable support for the opinions of Dr. Van Impe and Dr. Corriveau. For example, a discharge summary from Waypoint prepared by Dr. C. Libermore dated October 26, 2012, refers to N.J. suffering from a delusional disorder. A Waypoint Hospital Report from the Ontario Review Board, dated May 31, 2018, makes reference to an attendance at London Health Sciences Centre in June of 2011 where the assessing psychiatrist was of the opinion that N.J. was suffering from a delusional disorder and Bipolar Disorder could not be ruled out. N.J. has not presented any expert opinion which calls into question the opinions about his current condition and the advisability of the proposed treatment as outlined in the evidence of Dr. Van Impe and Dr. Corriveau.

[20] I have concluded on the evidence before me that while there are other psychiatric conditions at play here, N.J. does suffer from a serious delusional disorder, which has been deteriorating and which has manifested itself by very threatening behaviours.

[21] In his submissions to the court, N.J. acknowledged that he threatened to kill Dr. Corriveau and has threatened others at Waypoint. He suggested, however, that it is his seclusion, which has been amplified by improper housing arrangements which have led to these behaviours. He also suggested that his behaviours have been caused by stress within the prison institution, as well as concerns for his own health and safety. The opinions of Dr. Van Impe and Dr. Corriveau suggest that the root cause of his behavioural issues rests with the delusional disorder which they have diagnosed. It may well be that the measures which have been instituted to control his behaviour, such as seclusion have a part to play as well. However, it is also apparent that the objective for treatment is to improve his mental state so that security measures such as seclusion will no longer be necessary. Without treatment it seems likely that N.J.’s quality of life will be adversely affected. He would need to be held in seclusion and there is a significant risk that his condition will continue to deteriorate in a substantial way.

[22] I further accept Dr. Corriveau’s opinion that treatment is likely to significantly improve N.J.’s condition. These opinions are supported by Dr. Van Impe and are further supported by his past treatment with anti-psychotic medications for delusional disorder. While the proposed treatments do entail some risks, the risks can be minimized by appropriate monitoring. His past exposure to these drugs suggest that the risks can be appropriately managed. I therefore conclude that the benefits from the treatment should outweigh any risk of harm.

[23] I also accept that the proposed treatment is currently the least restrictive and least intrusive treatment. While psychotherapy is an alternative form of treatment, it is not suitable in the present circumstances. I accept the evidence of Dr. Corriveau and Dr. Van Impe in this regard.

[24] It is not clear when N.J.’s appeal can be heard. Given the fact that it has not yet been perfected, there will likely be a significant delay. N.J.’s condition has deteriorated to the point where in my view, it is necessary to administer the treatment before the final disposition of the appeal. It is not a practical alternative to wait for the appeal to be heard, given that it has not yet been perfected and there is no reliable evidence about when the appeal will be heard.

Conclusion

[25] For the above reasons, I have concluded that the requirements of s. 19 have been satisfied. I therefore grant the order requested, authorizing N.J.’s attending physician at Waypoint to administer anti-psychotic medication, oral and injectable, in accordance with directions to be provided by his substitute decision maker. With respect to the designation of N.J.’s mother as the substitute decision maker, this would appear to be consistent with the provisions of the Health Care Consent Act. However, N.J. has denied that the person identified as his mother is in fact his parent. There is no evidence before me on this point and I therefore conclude that the responsibility for properly identifying and obtaining instructions from the correct substitute decision maker lies with the health practitioner proposing treatment in accordance with the Health Care Consent Act.

Justice M. McKelvey Released: October 22, 2018