Court File and Parties

COURT FILE NO.: CV-18-607223 DATE: 20190613 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacqueline Bell, Appellant AND: Dr. Charles Ohene-Darkoh, Respondent

BEFORE: Pollak J.

COUNSEL: Maya Kotob, for the Appellant Peter Leigh, for the Respondent

HEARD: March 13, 2019

Endorsement

[1] The Appellant, Ms. Jaqueline Bell, appeals from two Decisions of the Consent and Capacity Board ("the Board") heard on October 12, 2018:

(1) confirming a Community Treatment Order ("CTO") dated August 29, 2018; and (2) confirming a finding of incapacity with respect to antipsychotic medications and a Community Treatment Plan (“CTP”).

[2] The grounds for appeal are that the Board erred in fact and in law in finding that the criteria for issuing a CTO were met and when it found that Ms. Bell was not capable of consenting to antipsychotic medications and the Community Treatment Plan. The Appellant submits that the Board unreasonably misapprehended, dismissed, or discounted important evidence and erred in its application of the statutory test of capacity under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A ("HCCA") and the provisions regarding CTOs in the Mental Health Act, R.S.O. 1990, c. M.7 ("MHA").

[3] She challenges conclusions reached by the Board that she was:

(a) likely to suffer substantial mental deterioration given her history of mental disorder and current mental condition; (b) likely, because of her mental disorder, to suffer substantial mental deterioration of the person if she does not receive continuing treatment or care and continuing supervision while living in the community; and (c) incapable of consenting to treatment with anti-psychotic medication and a community treatment plan.

[4] On this appeal, Ms. Bell challenges the Board's application of the law to the facts of her case. The issue for this Court is whether the Board met the standard of review -when it weighed the evidence and confirmed the decision to issue the CTO. She also appeals the Board's finding that she lacked the requisite capacity to make decisions regarding her illness and the CTO.

[5] The parties agree that the issues on this appeal are:

(a) What is the applicable standard of review to the Board's decision? (b) Was the Board's decision to confirm her incapacity finding reasonable? (c) Was the Board's decision to confirm the CTO dated August 29, 2018 reasonable?

What is the applicable standard of review to the Board's decision?

[6] The parties agree that the Board's decisions are subject to review on a standard of reasonableness.

The Board’s decision to confirm Ms. Bell’s incapacity finding and her CTO

[7] Ms. Bell has been diagnosed with schizoaffective disorder. Ms. Bell's mother is her substitute decision-maker. A number of CTOs have been issued and renewed for Ms. Bell by various physicians at Brampton Civic Hospital.

[8] Dr. Koczerginski was Ms. Bell's treating psychiatrist for almost a year and had intimate knowledge of her mental health history. Dr. Charles Ohene-Darkoh is Ms. Bell's current psychiatrist at the Hospital. He assessed Ms. Bell on September 10, 2018 and testified at the hearing with respect to her ongoing incapacity to appreciate the reasonably foreseeable consequences of a decision, or lack of a decision, regarding her treatment.

[9] The Board based its findings on the record before it. Dr. Ohene-Darkoh, Dr. Koczerginski, and Ms. Bell gave evidence at the hearing.

[10] In her argument, Ms. Bell submits that "the evidence of Dr. Ohene-Darkoh and Dr. Koczerginski with respect to her history was “vague, unclear, undetailed, and unsubstantiated.” The Board did not accept this submission. Rather it accepted and preferred the evidence of the physicians.

[11] The CTO contains a CTP that requires Ms. Bell to attend at Brampton Civic Hospital every four weeks to receive an injectable anti-psychotic medication: Aripiprazole (Abilify) 400mg.

[12] The CTP was entered into on August 8, 2018 when Dr. Koczerginski and Ms. Bell's mother signed the plan.

[13] The evidence is that Dr. Koczerginski satisfied the requirements of ss. 33.1(4) (c) of the MHA by examining Ms. Bell within the 72-hour period before entering into the CTP and that he formed an opinion in accordance with the criteria of that subsection.

[14] Specifically, on this appeal, Ms. Bell challenges Dr. Koczerginski's conclusions and opinions that she was likely to:

(a) “suffer substantial mental deterioration given her history of mental disorder and current mental condition; and (b) because of her mental disorder, suffer substantial mental deterioration of the person if she does not receive continuing treatment or care and continuing supervision while living in the community;”

[15] These opinions were recorded in Dr. Koczerginski’s consult note dated August 8, 2018. Further, the note states that “there has been evidence of persistent improvement with regard to her psychotic symptoms and she has been more engaged with family and, overall, her attention to self-care” and that “[h]er history is well documented in the old records and will not be fully repeated here.”

[16] The Board based its conclusions on the testimony of Dr. Koczerginski and Dr. Ohene-Darkoh. The Board concluded that in consideration of Ms. Bell's mental history and current condition, she was likely to suffer a substantial mental deterioration if not treated by anti-psychotic medication.

[17] The Board accepted Dr. Koczerginski's testimony that Ms. Bell demonstrated clinical improvement when treated with anti-psychotic medication in May 2017. He also testified that Ms. Bell's mother saw clinical improvement in her daughter and that she was "extraordinarily frightened [sic] by the thought that Ms. Bell would again [sic] be off medications and run risk of relapse to her prior state of poor functioning". Dr. Ohene-Darkoh also testified that, after being non-adherent with medication, Ms. Bell improved within two weeks after receiving anti-psychotic medication.

[18] The Respondent emphasizes that the Board relied on the psychiatrists' evidence but also on the opinions of Ms. Bell's family, who reported that Ms. Bell was doing much better when receiving the injections. Further, the Board considered the evidence about Ms. Bell’s functioning in the community when she was not taking anti-psychotic medication, and referenced the testimonies of all the witnesses. The Board also considered the documentary evidence. The Board considered all of the evidence and applied the correct legal tests. It unanimously confirmed the physicians' findings and the decision to issue the CTO.

[19] Ms. Bell does not agree with the Board’s decision to prefer the two physicians’ evidence over her evidence. The Respondent submits that the Board made reasonable findings based on a spectrum of reasonable possibilities; the fact that a reviewing Court could come to a different conclusion does not suffice to set aside the Board's decision. The Board was entitled to prefer the evidence of her two physicians over her evidence on the issue of capacity. It was entitled to make these findings. I agree with this submission.

[20] The Board found that Dr. Koczerginski and Dr. Ohene-Darkoh provided clear, cogent, and compelling evidence to conclude that Ms. Bell "did not have the ability, at the time of the hearing, to appreciate the reasonable foreseeable consequences of making a decision with regard to the CTP or treatment with anti-psychotic medication." It made this finding with reference to both physicians' capacity assessments of Ms. Bell, and with reference to their testimony and consultation notes. The Board correctly applied the relevant test and concluded that Ms. Bell was incapable of acknowledging being affected by the manifestations of her condition. However, Ms. Bell focuses not on whether she was able to acknowledge being affected by the manifestations of her condition, which is the proper question, but on whether she acknowledged having a particular mental illness or diagnosis.

[21] In particular, Ms. Bell submits that the Board misapprehended evidence regarding her testimony about capacity. She submits that she did not deny having a mental illness and she did not deny needing medication. Rather, she argues that her evidence on these issues shows that she was open to taking oral medication.

[22] I find that, based on the evidentiary record, the Board's decision was "among the range of conclusions that could reasonably have been reached based on the law and evidence" (Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 5).

[23] The Board accepted Dr. Koczerginski's testimonial evidence that Ms. Bell demonstrated clinical improvement when treated with anti-psychotic medication in May 2017. He also testified that Ms. Bell's mother saw clinical improvement in her daughter and that she was "extraordinarily frightened [sic] by the thought that Ms. Bell would again [sic] be off medications and run risk of relapse to her prior state of poor functioning". Dr. Ohene-Darkoh also testified that, after being non-adherent with medication, Ms. Bell improved within two weeks after receiving anti-psychotic medication.

[24] Further, the Board thoroughly considered the evidence about how Ms. Bell presented herself in the community when she was not taking anti-psychotic medication.

[25] The Board considered all of the above evidence and applied it to the correct legal tests. It unanimously accepted and confirmed the physicians' findings and the issuance of the CTO.

[26] As the standard of review of the Board’s decision on this appeal is one of reasonableness, and I have concluded that the Board's decision was "among the range of conclusions that could reasonably have been reached on the law and evidence" (Starson, at para. 5), this Appeal is dismissed.

Pollak J. Date: June 13, 2019