NEWMARKET COURT FILE NO.: CV-17-132523

DATE: 20180202

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, Chapter 2, Schedule A

As amended

AND IN THE MATTER OF

C.T.

A patient at the Southlake Regional Health Centre

in Newmarket, Ontario

BETWEEN:

C.T.

Appellant

– and –

DR. GAURAV MEHTA

Respondent

T.A. Whillier, for the Appellant

M. O’Brien, for the Respondent

HEARD: February 2, 2018

REASONS FOR DECISION

QUINLAN J.:

The Appeal

[1] The appellant, C.T., appeals from the decision of the Consent and Capacity Board (the Board) dated August 28, 2017, confirming his incapacity with respect to certain psychiatric treatment, namely antipsychotic medication, pursuant to s. 4 of the Health Care Consent Act, 1996 (the Act). The Board was satisfied that C.T. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his treatment. Similarly, the Board found that C.T. would likely suffer substantial mental deterioration if he was not detained as an involuntary patient. C.T. appeals only the finding of incapacity and requests that the Decision of the Board be quashed, that this court substitute a decision finding C.T. capable with respect to antipsychotic medications or alternatively, that the matter be remitted to the Board for a new hearing.

[2] The appellant submitted that the sole issue for determination is whether the Board misconstrued the evidence such that its decision was unreasonable.

[3] The respondent’s position is that the Board’s factual findings are grounded in the clear and cogent evidence that was before it and was reasonable. As such, its decision should not be disturbed on appeal.

Background

[4] At the time of the hearing, C.T. was a 35-year-old single male with a high school education and had been living in a self-contained apartment at his parents’ home. He was unemployed. Since 2010, C.T. has had a number of psychiatric admissions. In January 2010, C.T. was first diagnosed with a mental illness when he was admitted and treated for psychosis. C.T. was subsequently treated numerous times for psychosis and paranoid schizophrenia. In April 2017, C.T. was admitted to Southlake Regional Health Centre (Southlake) and diagnosed with schizophrenia. C.T. has had multiple instances of deterioration from non-compliance with medication that was treating his conditions.

[5] On August 15, 2017, C.T. was admitted to Southlake after his father obtained a Form 2 under the Mental Health Act issued by a Justice of the Peace. On August 18, 2017, Dr. Gaurav Mehta determined that C.T. was incapable of consenting to treatment of his mental disorder and should be kept in hospital as an involuntary patient.

[6] C.T. appealed both the finding of treatment incapacity and his involuntary status to the Consent and Capacity Board (the Board). A hearing was held at Southlake on August 28, 2017. The Board’s decision, released on August 28, 2017, determined that C.T. was not capable with respect to anti-psychotic medications and confirmed his involuntary status. The Board released reasons for its decision on September 12, 2017.

Evidence at the Board Hearing

[7] A three-member panel of the Board reviewed Dr. Mehta’s incapacity and involuntary status findings. C.T. was represented by counsel but did not attend the hearing. Dr. Mehta was not represented by counsel, but testified at the hearing. He was the only witness. The Board had before it Forms that had been issued under the Mental Health Act; a number of C.T.’s medical records: progress and consultation notes, handwritten interdisciplinary notes and emergency reports; and a memo to the panel written by C.T.’s parents dated August 20, 2017.

[8] Dr. Mehta testified that between 2010 and April 2017 C.T. had been diagnosed with psychosis and schizophrenia, paranoid type. Dr. Mehta produced documents to support admissions for psychosis, schizophrenia and to show that C.T. had been positively treated with antipsychotic medications, including after his admission to Southlake in April 2017.

[9] During his admission in August 2017, C.T. was aggressive to the point that he required seclusion, five-point physical restraint and chemical restraint. He was dismissive when it was suggested that he had any mental health issues. C.T. was not taking his medication and told Dr. Mehta that there was no need to take it. He reported that “Bob”, the hospital’s CEO, had brought him to hospital and he would sue “Bob”; in fact the CEO was Dr. David Williams. C.T. was responding to internal stimuli. C.T. reported to Dr. Mehta on August 25, 2017 that he was working for Donald Trump and Justin Trudeau on a top-secret mission. A staff psychiatrist at Southlake who interviewed C.T. during his August 2017 admission observed that C.T. was “in the midst of a psychotic episode” and did “not have insight into the presence of the disease or the necessity for treatment”. C.T. told the psychiatrist that he does not have a mental illness, has never been told he has a mental illness and has no need of any medication whatsoever.

[10] During his most recent admission, Dr. Mehta noted that C.T. was swearing and agitated. He was non-compliant with medication, paranoid and uncooperative; his family was quite concerned about him.

[11] C.T.’s father advised Dr. Mehta on August 24, 2017 that C.T. stopped taking medication in January 2015; he deteriorated gradually to the point of verbal aggression and was unable to maintain his employment. C.T. had responded well to medication after his April 2017 admission but stopped his medication and had since deteriorated; he was not able to function well and could not even cut grass, unlike when he had been on his previous medication. C.T.’s father reported that C.T. becomes isolated from family when he is not on medication, swears all the time and constantly paces. C.T. was then incapable of doing anything related to daily chores. A month before, Midland police called C.T.’s parents to report that C.T. was sitting in a parking lot and had told police that he was going on a special mission to the United States and was waiting to be picked up by Donald Trump’s helicopter. Prior to his admission to Southlake in August 2017, C.T.’s mother barricaded their bedroom at night for protection. His parents were fearful of him and have called the police on him.

[12] The medical records indicate that C.T. has exhibited physically aggressive behaviour both in and out of hospital.

[13] Dr. Mehta testified that he explained the diagnosis of schizophrenia to C.T. and talked about treating it with medication; he tried to inform C.T. about the consequences of refusing treatment. Dr. Mehta reported that, despite his persistent efforts to discuss the issue with C.T. every day he was on the ward, C.T. was not cooperative and maintained that he did not have a mental illness and did not need any medication. C.T. told Dr. Mehta that Donald Trump will take care of him.

[14] Regarding the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision about being treated for schizophrenia with antipsychotic medication, the evidence disclosed episodes of aggressive behaviour over the last number of years that was stabilized following treatment with antipsychotic medication. Whenever C.T. stopped his medication, the symptoms of his mental disorder returned and he became delusional, verbally aggressive and isolated himself from his family.

Decision of the Board

[15] After reviewing the law, the Board commenced its analysis.

[16] The Board considered the test under s. 4 of the Act. It found that there was no evidence to displace the presumption that C.T. was capable of understanding the information about the diagnosis and proposed treatment. The panel found that C.T. had the cognitive ability to understand the information about the proposed treatment.

[17] The Board found that the issue was the second prong of the test set out in s. 4 of the Act. It concluded that Dr. Mehta discharged his burden by displacing the presumption that C.T. was able to consent to treatment and found that there was clear and cogent evidence that C.T. did not satisfy the second prong of the test set out in section 4 (1) of the Act: he was unable to appreciate the reasonably foreseeable consequences of a decision to accept or reject treatment, being antipsychotic medication.

[18] The panel was convinced by what it described as clear and cogent evidence that C.T. was suffering from a mental disorder at the time of the hearing. The Board was satisfied that C.T.’s behaviour was not caused by the cystic lesion in his temporal lobe.

[19] The Board concluded that Dr. Mehta made “valiant” efforts to inform C.T. about all aspects of his treatment, but C.T. was unwilling to listen or talk to him about his treatment, including the course of medication and the consequences of refusing treatment. The Board accepted Dr. Mehta’s evidence and found that it established that C.T. received information about the diagnosed disorder and its treatment to enable him to consent to treatment.

[20] The Board also accepted Dr. Mehta’s evidence that C.T. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about being treated for schizophrenia with antipsychotic medication. The Board accepted the unchallenged evidence of Dr. Mehta who testified that C.T. does not believe that he has a mental disorder and, therefore, does not believe that he requires any medication.

[21] The Board found that C.T.’s mental condition rendered him unable to appreciate the reasonably foreseeable consequences of making a decision about the treatment proposed for him because he was unable to relate any information about treatment to himself. The evidence clearly demonstrated that C.T. held fixed and firm delusional beliefs that he did not have any mental condition that required treatment and that he was unable to recognize that he was affected by his mental condition. The Board held:

We accepted Dr. Mehta’s evidence which established that C.T. is unable to consider and apply the relevant information about his condition to his circumstances. We found that C.T. is unable to do so because of his psychosis. He has been hospitalized and stabilized with treatment on several occasions. However, he is unable to acknowledge that his admission to hospital occurred because he is unwell. He blamed “Bob” the individual he mistakenly believes is the CEO of Southlake hospital for this admission. As a result of his delusional beliefs, C.T. is unable to appreciate that he is ill, has received benefits previously when he was treated. We also found that he is unable to appreciate the potential benefits of treatment and is also unable to appreciate the risks of not being treated. Accordingly, we found that C.T. was incapable of consenting to treatment of a mental disorder with antipsychotic medication.

Issues on Appeal

[22] As earlier noted, the appellant submitted that the sole issue for determination is whether the Board misconstrued the evidence such that its decision was unreasonable.

[23] The appellant submitted that the oral evidence given by Dr. Mehta combined with the documentary evidence did not provide a clear and cogent body of evidence on which the Board could reasonably rely in deciding to uphold Dr. Mehta’s finding of incapacity with respect to antipsychotic medications. Specifically, the following evidence does not support the Board’s decision:

a. C.T. had conflicting diagnoses;

b. C.T. was feeling better when off medication and was not a management problem at home; C.T.’s father maintained that he was “fine” when he was off his medication;

c. C.T. was able to work for two years while not on medication;

d. C.T. was able to recognize the harmful side effects of his medication including that he was increasingly more tired and gaining weight.

The Law

(a) Standard of Review

[24] The parties agree that the standard of review of the Board’s decision is reasonableness, as confirmed by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 at paras. 86-88:

The Board is uniquely positioned to hear the viva voce evidence of the patient and physicians. These factors suggest that determinations of capacity should generally be entrusted to the relative expertise of the Board. … The standard of reasonableness “involves respectful attention, though not submission” to the Board’s reasons. [Citations omitted.]

[25] The Supreme Court has ruled that the reasonableness standard involves “…deferential self-discipline” by the reviewing court: Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 46. Reasonableness is mostly concerned with justification and intelligibility within the decision-making process, and whether the decision falls within a range of possible, acceptable outcomes, defensible in respect of the facts and law. The guiding principle is deference and the reviewing court may consider both the reasons offered and the reasons which could have been offered by the tribunal: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 47-48.

[26] The court must consider the reasons as a whole and must not interfere unless the appellant has positively shown that the decision was unreasonable: Ryan, at paras. 47-48. A decision may satisfy the reasonableness standard if it is supported by a “tenable” explanation: Ryan, at paras. 55-56.

[27] Even where the tribunal’s reasons do not adequately support the decision, the court must first seek to supplement them before it seeks to subvert them. The reviewing court should look to the evidentiary record to support the finding. Consistent with the guiding principle of deference, the decision of the tribunal should be presumed to be correct, even if its reasons are in some respects defective: Newfoundland & Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at paras. 11-12, 14-18.

(b) Treatment Capacity

[28] The test to determine capacity to make treatment decisions is two-fold. To be capable, one must be both able to understand information that is relevant to making a decision and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Conversely, to be incapable, one need only “fail” one branch of the two-part test. One is incapable at law, for example, if one is able to understand relevant information, but is not able to apply that information to one’s own circumstances and appreciate the reasonably foreseeable consequences of a decision or lack of decision: the Act, s. 4(1); Starson, at para. 78.

[29] While a person is presumed at law to be capable with respect to treatment, this is a rebuttable presumption. The health care practitioner before the Board bears the onus of establishing incapacity. Cogent and compelling evidence is required to discharge this onus. Capacity can fluctuate over time. In making determinations, the relevant consideration is the patient’s capacity at the time of the hearing: the Act, ss. 4(2), 15(2); Starson, at para. 118.

[30] With respect to the second branch of the test, the Supreme Court has stated this requires that the patient be able to apply relevant information to his or her own circumstances and to be able to weigh the reasonably foreseeable risks and benefits of a decision, or lack thereof: Starson, at para. 78. As Major J. stated, writing for the majority of the Supreme Court in Starson, 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 recognize the possibility that he is affected by that condition. … [I]f 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.

[31] The Act requires the ability to appreciate consequences, not an actual appreciation of those consequences. Only the inability to understand and appreciate consequences as the result of a mental illness may give rise to a finding of incapacity: Starson, at paras. 80-81. The side effects of psychiatric medications are an entirely appropriate consideration when an individual is determining whether to consent to treatment with such medications: Fleming v. Reid, 1991 CanLII 2728 (ON CA), 4 O.R. (3d) 74 at p. 84. The Board’s view of the patient’s best interests is irrelevant to a determination of the patient’s capacity: Starson, at para. 76.

[32] The patient must be able to recognize not only the negative effects of treatment, but to appreciate the positive effects of treatment or the negative effects of the failure to treat: D’Almeida v. Barron, 2010 ONCA 564 at paras. 25-26, leave to appeal to S.C.C. refused, 284 O.A.C. 400 (note) (S.C.C.).

[33] As Day J. noted in Neto v. Klukach, [2004] O.J. No. 394 (S.C.J.) at para. 10:

The first branch of the test assesses intellectual understanding of relevant information as it applies to his or her treatment. The second branch assesses the ability to evaluate, not just understand, information. The patient must have an ability to appreciate the relevant information as it relates to him or her.

Analysis

[34] Only the second branch of the two-part test for capacity, C.T.’s ability to appreciate the reasonably foreseeable consequences of his decision-making, is at issue in this appeal.

[35] I do not accept the appellant’s position that C.T.’s conflicting diagnoses do not support the Board’s decision. C.T. was diagnosed with psychosis in 2011 and since April 2017 has been diagnosed with schizophrenia. I agree with the respondent that the evidence supported that C.T. suffered from delusions and had an inability to recognize that he did. He had a past history of being treated successfully for psychosis and schizophrenia. C.T.’s diagnosis does not affect the impact of his condition: his inability to appreciate that he might be affected by his condition and its manifestations.

[36] The information that C.T.’s father provided to Dr. Mehta does not support that C.T. was “fine” when he was off his medication and was not a management problem at home, nor does it support that C.T. was able to work for two years while not on medication. Dr. Mehta explained that because C.T. was on injectable medication, there would be a period of time before he would relapse. The information from C.T.’s father was to that end: C.T. suffered from a gradual decline before he relapsed.

[37] C.T. must not only be able to recognize the harmful side effects of medication, but must also be able to appreciate the positive effects of treatment or the negative effects of the failure to treat: see D’Almeida, supra at para. 26.

[38] The Board had before it clear, cogent, and compelling evidence to establish that C.T. was suffering from a mental disorder and its manifestations. The Board had before it a pattern of admissions and successful instances of treatment and of eventual relapse when C.T. discontinued treatment. There was clear and cogent evidence that C.T. did not recognize that he had a condition requiring treatment due to the nature of his mental disorder.

[39] I find that the Board did not misconstrue the evidence and reasonably concluded that C.T. was incapable of consenting to treatment of a mental disorder with antipsychotic medication.

Conclusion

[40] I find that C.T. has failed to demonstrate that the Decision of the Board was unreasonable. The Board rendered a reasonable Decision with respect to the second branch of the two-part test for capacity. It applied the evidence before it to the statutory test for capacity and amply explained its rationale for doing so. The Decision is not outside the range of acceptable outcomes on the evidence before the Board.

[41] Accordingly, the appeal is dismissed.

[42] Neither party sought costs at the hearing. There shall be no order respecting costs.

QUINLAN J.

Released: February 2, 2018