Court File and Parties

Court File No.: CV-17-583630 Date: 2018-11-22 Ontario Superior Court of Justice

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.

Between:

Jacobus Melo, Appellant

- and -

Dr. John Klukach, Respondent

Before: Justice Edward P. Belobaba

Counsel: Maya Kotob and Anita Szigeti as Amicus for the Appellant Kendra Naidoo for the Respondent Jacobus Melo in person

Heard: November 20, 2018

Endorsement

[1] This is an appeal by Jacobus Melo from a decision of the Consent and Capacity Board (the “Board”) dated September 22, 2017 in which the Board confirmed the respondent psychiatrist’s finding that Mr. Melo was incapable of consenting to treatment with antipsychotic medication. The Board’s finding was limited to the second branch of s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A which focuses on the person’s ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[2] The submissions on appeal were advanced by Amicus Curiae on the appellant’s behalf. Mr. Melo added a few words in person at the conclusion of the hearing.

Background

[3] On September 7, 2017, Dr. John Klukach, a psychiatrist at the Centre for Addiction and Mental Health, found Mr. Melo incapable of consenting to treatment with antipsychotic medication. Mr. Melo applied to the Board for a review of that finding.

[4] The Board convened on September 21, 2017 to review Mr. Melo’s capacity to consent to treatment with antipsychotic medication. The Board released its decision the next day, followed by written reasons on October 20, 2017 (the “Reasons”).

[5] At the hearing, the Board considered documentary evidence, including the relevant Mental Health Act Forms, a clinical summary that Dr. Klukach prepared, several progress notes from Mr. Melo’s CAMH health record, an Emotionally Disturbed Person Information Form from Toronto Police Services and a discharge summary from CAMH. The Board also considered the oral testimony of Dr. Klukach. After reviewing the evidence before it, the Board concluded on a balance of probabilities that Mr. Melo was incapable of consenting to treatment with antipsychotic medication.

[6] In its Reasons, the Board found that while Mr. Melo was able to understand the information relevant to making a decision about treatment with antipsychotic medication, he was unable to appreciate the reasonably foreseeable consequences of such a decision. In essence, Mr. Melo was unable to appreciate that he was experiencing the manifestations of a mental condition, thus making him unable to weigh the benefits and risks of antipsychotic treatment.

[7] The Board, accordingly, concluded under the second branch of s. 4(1) of the HCCA that Mr. Melo was incapable with respect to treatment.

The Issue on Appeal

[8] Mr. Melo says the Board ignored positive and important evidence in coming to its conclusion, namely his stated desire to enlist in the Canadian military and his belief that this would not be possible if he was taking anti-psychotic medication. Amicus counsel put it this way in their factum:

Mr. Melo has a right to take risks and make decisions that may be considered to be unreasonable or “foolish”. All of Mr. Melo’s reasons for his decision regarding the proposed treatment are crucial to determining his treatment capacity. His interest in stopping his medications to facilitate his application to a military program is a considerable piece of evidence favorable to Mr. Melo. Yet, there is simply no indication that the Board considered this evidence in its legal analysis of Mr. Melo’s treatment capacity prior to coming to a decision.

[9] The absence of a fulsome analysis by the Board of the material evidence before it, argues Amicus, results in an unreasonable decision that must be set aside on appeal.

Discussion

[10] The appellant is right to say that no specific mention is made of his military enlistment concern in the portion of the Reasons that deal with Mr. Melo’s incapacity to consent to treatment under the second branch of s. 4(1) of the HCCA. The Board’s decision, however, turned on the documentary and oral evidence that Mr. Melo did not appreciate that he was affected by the manifestations of a mental illness or mental condition. As the Supreme Court noted in Starson v. Swayze, 2003 SCC 32, at para. 79:

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 acknowledge the possibility that he is affected by that condition…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. 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.

[11] The Board’s decision to uphold the finding of incapacity hinged on Mr. Melo’s inability to acknowledge even the possibility that his behaviour and symptoms arose from a mental condition. The Board agreed with Dr. Klukach’s evidence that Mr. Melo was unable to appreciate he was experiencing the manifestations of a mental condition and went on to find that this inability rendered him unable to weigh the risks and benefits of the proposed treatment.

[12] In any event, the evidence about military enlistment was squarely before the Board. When questioned by the Board, Dr. Klukach explained that he discussed this concern with Mr. Melo but it was evident, separate and apart from the military enlistment reason for refusing medication, that Mr. Melo was continuing to deny even the possibility of being affected by a mental condition.

[13] See, for example, the following exchange between the Board and Dr. Klukach in oral evidence:

Q: And have you explored with him the idea that if, if it is the case that he can join the army while being on prescription medication, would he then continue his medication? A: Well, I, I told him that I find it doubtful that that’s the case and that, you know, that they’re not allowed to discriminate on things like that. He, he didn’t really seem to internalize that. We’ve had discussions aside from the army consideration. I mean, you know, is that his only reason; no. He doesn’t think he’s ever---doesn’t think he has an illness, he doesn’t think it’s giving him benefit, and he doesn’t think that he really, you know, ever should have taken it. I mean, that’s, that’s been the gestalt from several conversations. It’s not just, “Yeah, I know, like, I know I have schizophrenia and meds help, but I can’t be on them to join the army.” That’ that’s not – no. [Emphasis added]

[14] I agree with the respondent that when viewed in the context of the evidence as a whole, the military enlistment reason for refusing medication was before the Board and is not indicative of capacity.

[15] Dr. Klukach’s testimony on this point, and the Board’s treatment of this evidence, mirrors the analysis articulated by the Supreme Court in Starson. While there was evidence that Mr. Melo stated his refusal of antipsychotic medication was due to his desire to join the army, there was also ample, uncontradicted evidence that he was not able to appreciate that he was affected by the manifestations of his mental condition or the possible benefits of and risks of not taking antipsychotic medication. Absent an ability to appreciate the possibility he was affected by his mental condition or the possible benefits or treatment and consequences of not taking same, Mr. Melo cannot be said to be capably weighing the information. In my view, the Board made no error in this regard.

[16] I should add this further point. There is no dispute that the Board’s findings of fact and weighing of evidence are entitled to deference on review. The Supreme Court has held that the sufficiency of the Board’s reasons is not, alone, grounds for determining whether the Board’s decision was reasonable. The reviewing court can look to the record to assess reasonableness, and the Board is not required to describe every element which accounted for their 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… 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 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at para. 17 criteria are met.

[17] In my view, the Reasons allow this reviewing court to understand the Board’s decision and determine that its conclusion is within the range of acceptable outcomes. I am satisfied that the Board applied the correct legal test, properly considered the entirety of the evidence and rendered a decision that was reasonable and was based on compelling evidence. The Board made no error in confirming Dr. Klukach’s finding that Mr. Melo was not capable of consenting to treatment with antipsychotic medication.

[18] The appeal is dismissed.

Justice Edward P. Belobaba Date: November 22, 2018