Court File and Parties

Court File No.: CV-18-00602567 Date: 20190404 Superior Court of Justice - Ontario

Re: MIRZA BAIG, Appellant And: PRAM MALDENIYA, Respondent

Before: LEDERER J.

Counsel: no one, amicus curiae spoke on Appellant’s behalf: Ken J. Berger Mark Handelman, Counsel, for the Respondent

Heard: February 21, 2019

Endorsement

[1] The appellant, Mirza Baig is 36 years old. He is appealing a July 24, 2018 decision of the Consent and Capacity Board. The Board upheld his status as an involuntary patient at Trillium Hospital and the determination that he lacked the capacity to consent to treatment with antipsychotic medications. As a technical matter Mirza Baig was not represented. Ken Berger, both a lawyer and a doctor, appeared as amicus curiae. It was apparent that Ken Berger and Mirza Baig had been in contact prior to their appearance in court. At the outset of the hearing Mirza Baig was asked and agreed that Ken Berger would address the court on his behalf.

Background

[2] In June 2018 the police brought Mirza Baig to Trillium Hospital for an examination under the authority of a Form 2 that had been obtained by his sister pursuant to the terms of the Mental Health Act [^1]. His sister had complained that Mirza Baig had been difficult since returning to the family home during April 2018 and shared concerns about his mental state, more specifically his self-care, aggression and observations of him talking or yelling to himself. At the hospital Mirza Baig had a psychiatric examination, followed by a three day assessment. He was admitted as an involuntary patient under a Form 3, Certificate of Involuntary Admission. On July 10, 2018, a member of his treatment team found that Mirza Baig was incapable of consenting to treatment of a mental disorder. The next day, July 11, 2018, Mirza Baig submitted a Form A application to the Consent and Capacity Board contesting the finding of incapacity.

[3] Mirza Baig has been diagnosed with primary psychosis/schizoaffective disorder and substance induced psychosis. On June 29, 2018, Mirza Baig submitted a Form 16 application to the Consent and Capacity Board. On July 20, 2018 a Form 4 Certificate of Renewal was completed for Mirza Baig. His capacity to consent to the proposed antipsychotic medication was reassessed by the respondent, Dr. Pram Maldeniya, the day before the hearing held on July 24, 2018 by the Consent and Capacity Board.

[4] Prior to the admission to Trillium Hospital, Mirza Baig had no history of diagnosed mental illness or hospitalizations on account of mental illness.

[5] Mirza Baig made submissions to the court on his own behalf. What he said was reasonable and restrained. He addressed his circumstances. As I saw and heard him, there was no indication of any behaviour that would have suggested any mental disorder or illness. Judges are not doctors. Courtrooms are not hospitals. On an appeal, it is not for the judge to form an independent determination of whether the appellant was appropriate for identification as an involuntary patient or, in fact, incapable of consenting to the proposed treatment. An appeal is a legal process, raising legal issues: in this case whether the Consent and Capacity Board erred in determining that the statutory requirements for a finding of involuntary status, under the Mental Health Act, had been met and whether there was insufficient evidence to support the finding that Mirza Baig was incapable of making treatment decisions with respect to antipsychotic medication.

Did Mirza Baig meet the criteria for continued involuntary detention?

[6] The authority to hold a patient on an involuntary basis is found in section 20(1) of the Mental Health Act which outlines the duty of the attending physician:

The attending physician, after observing and examining a person who is the subject of an application for assessment under section 15 or who is the subject of an order under section 32,

(a) shall release the person from the psychiatric facility if the attending physician is of the opinion that the person is not in need of the treatment provided in a psychiatric facility;

(b) shall admit the person as an informal or voluntary patient if the attending physician is of the opinion that the person is suffering from mental disorder of such a nature or quality that the person is in need of the treatment provided in a psychiatric facility and is suitable for admission as an informal or voluntary patient; or

(c) shall admit the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in subsection (1.1) or (5) are met.

[Emphasis added]

[7] Conditions on which a certificate of involuntary admission may be founded are in section 20(5) of the Mental Health Act:

The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[Emphasis added]

[8] From the evidence of the sister of Mirza Baig, the Consent and Capacity Board found he had caused her “serious bodily harm … as a result of the psychological harm she experienced as a result of his behaviours”. [^2] Counsel for the respondent points out that the Board “has often held that, as used in the Mental Health Act, the phrase ‘serious bodily harm’ includes psychological harm:

With respect to the past incident of sexual assault, Mr. Szpytman submitted that there was no evidence that the woman suffered any significant physical injury and that the incident had been minor enough to qualify for a diversion program. There are numerous decisions of the Consent and Capacity Board that allow the definition of “serious bodily harm” to include psychological harm…. [^3]

And

Does the phrase encompass psychological harm? I think that it must. The term "bodily harm" referred to in s. 267 is defined as "any hurt or injury". Those words are clearly broad enough to include psychological harm. Since s. 264.1(2) refers to any "serious" hurt or injury then any serious or substantial psychological harm must come within its purview. So long as the psychological harm substantially interferes with the health or well-being of the complainant, it properly comes within the scope of the phrase “serious bodily harm”. There can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm. I can see no principle of interpretation nor any policy reason for excluding psychological harm from the scope of s. 264.1(1)(a) of the Code. [^4]

[Emphasis added by the Consent and Capacity Board]

[9] This arose from and is supported by evidence provided by the sister of Mirza Baig, which the Consent and Capacity Board accepted - that he had accused his sister of throwing a pair of scissors at him from the roof of the family home. He was in “a type of a rage”. He was “ranting”. She was sitting on the couch. “[H]e was yelling, and as he was yelling, he was waving the scissors.” He was waving the scissors in her face. This caused her “a lot of anxiety” and “heart palpitations, trouble breathing”. She was feeling “very anxious and very threatened”. [^5]

[10] In his submissions, amicus curiae submitted that this evidence did not justify drawing a conclusion that the sister’s “clinical anxiety [was] caused by [Mirza Baig’s] behaviour, thereby constituting evidence of serious bodily harm to another”. [^6] There was evidence before the Consent of Capacity Board demonstrating that in the past the sister of Mirza Baig had suffered anxiety for which she had been medicated. [^7] There is nothing that suggests that in order to satisfy the requirement of “serious bodily harm to another” the anxiety caused must be “clinical”. She had not taken medication for anxiety for some time. There is no reason to presume that her response was anything other than what would have been experienced by a reasonable person in those circumstances.

[11] During the course of the submissions there was reference to section 14 of the Evidence Act [^8] which states:

An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:

1. A person who has been found, i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act, ii. incapable of personal care under the Substitute Decisions Act, 1992, or iii. incapable by a court in Canada or elsewhere.
2. A patient in a psychiatric facility.
3. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence.

[12] Certainly, Mirza Baig is a patient in a psychiatric facility. Clearly the respondent is an interested party. No submissions were made as to whether his sister was one. Suppose she was. Is there evidence that corroborates hers?

[13] The court was referred to Anten v. Bhalerao, 2013 ONCA 499 [^9]. An appeal from the Consent and Capacity Board was dismissed. The decision of the Board was upheld. The judge found there was corroboration of the evidence that had been provided by the respondent doctor. The appeal judge’s conclusion on corroboration was simply that the Board “was in the best position to hear the evidence and observe and assess the demeanour and comportment of both witnesses, all of which served to corroborate the Respondent’s testimony”. [^10] The Court of Appeal acknowledged that it was possible that the evidence of the appellant (the patient) could corroborate the evidence of the respondent (the doctor) that is, one interested party may corroborate the evidence of another. In Anten v. Bhalero the court could not see how, in the particular case, that corroboration could be said to have taken place. On the record, the appellant contradicted the respondent on virtually every substantive issue. [^11] Essentially, the evidence of the respondent as to the appellant’s mental illness stood alone. [^12] The Court of Appeal had difficulty with the conclusion of the judge but did not go on to consider whether corroboration was otherwise present. There was no need. The evidence of the doctor, even if corroborated, was insufficient to support a finding of incapacity. [^13]

[14] In this case the respondent provided the following evidence:

Q. Okay. And you’ve heard his sister give evidence today? A. M’hmm. Q. Yes? And, you’ve also reviewed the chart entries that others have made during his hospitalization? A. Yes. Q. Okay. What is your view whether or not Mr. Baig’s psychosis will get worse, get better, or stay the same? A. He’ll get worse. Q. Okay. And you’ve heard of the concerns that his sister expressed regarding his delusional beliefs and his threatening behaviour and his accosting people and things like that? A. Yes. Q. Okay. When you say his behaviour is likely to get worse, what will it get worse like in the context of dealing with other people? A. Very likely, irritability, being argumentative, maybe misbehaving behaviours, words, situations that might land him in trouble with the authorities or other individuals. Q. And what is your view specifically about the risk to other people of physical, or for that matter, psychological harm? A. Substantial. Q. Okay. So, do you think that without treatment, the community is at risk? A. Yes. Q. And, I, I don’t know if you can view this or not, but could, could you identify how that might come to pass? A. I, I will, it would, as mentioned already, the scissors incident, I think, while he’s being sincere, doing his best to be reasonable, if situations are misinterpreted and causing severe anxiety, paranoid reactions, then he would be acting in that train of thought, that would likely lead to very challenging situations with perhaps violence, as part of his reaction to something else. [^14]

[Emphasis added]

[15] The Consent and Capacity Board accepted the evidence of the sister:

We also found that MB’s behaviours had caused serious bodily harm to [his sister] as a result of the psychological harm she experienced as a result of his behaviours. [^15]

[16] To my mind the question that requires corroboration is not as confirmation that the “scissors incident took place” or more particularly that it took place as interpreted by the sister and relied on by the doctor. Rather the evidence that requires corroboration is that the patient, in this case Mirza Baig is appropriate to be admitted on an involuntary basis. It is not enough that the doctor offer this opinion on a foundation that cannot be corroborated.

[17] The impact of section 14 of the Evidence Act was considered in the case of McTaggart v. Boffo, 10 OR (2d) 733 [^16]. In that case the plaintiff was the administrator of the estate of a deceased woman. While she was alive, the deceased woman and the defendant had become friends, spending a good deal of time together. She issued cheques to him which he used in the purchase of real estate. The issue was the purpose behind the delivery of these funds: were they a gift to the defendant, loans to him or monies to be invested on behalf of the deceased woman. The court considered other cases [^17] and drew, from them, three principles:

In summary, the foregoing cases stand for the following propositions, namely:

(1) the corroboration which is required need not be by evidence of another witness. It can be based on circumstances presented in evidence;

(2) these circumstances must be consistent only with the allegation by the opposed or interested party. If they are consistent also with the theory of the plaintiff they cannot be taken to corroborate the story of the interested party as well;

(3) individual items of evidence which are sufficient to corroborate by themselves should not be used in the aggregate to corroborate on their entire weight.

While permissible in a gross negligence action, nevertheless "aggregating" may not be done in a case like the present. [^18]

[18] Here the doctor was aware of the “scissors incident” and relied on it. This was information provided by the sister. She testified at the hearing held by the Consent and Capacity Board and in doing so corroborated this as a foundation for the concern that Mirza Baig was a danger to others. This is corroboration consistent with the circumstances presented in the evidence of the respondent doctor. The sister’s view was that she felt threatened. This was evidence that Mirza Baig had already caused serious bodily harm to another person. As it happens this was not the only evidence consistent with the concern expressed by the respondent and the conclusion he presented which the Board accepted.

[19] The Consent and Capacity Board referred to a summary prepared “for use by attending physicians” and “intended to shorten and simplify the attending physician’s oral presentation to the Board.” [^19] The respondent noted:

It appeared he has a history of legal difficulties. He was jailed on a couple of occasions. The charge was physical assault. He assaulted a stranger in the park and he assaulted his brother while he was asleep. He attacked him with a knife…

[20] Supportive of this summary is Exhibit 13 to the hearing of the Consent and Capacity Board. It is the letter written by the sister of Mirza Baig to the Justice of the Peace in support of an order authorizing the police to take the appellant to a facility (Trillium Hospital) for a psychiatric examination. In her evidence before the Consent and Capacity Board she acknowledged that she was its author. The letter contains evidence which corroborates the broader indications that Mirza Baig is a danger to others:

He will misplace his phone, sunglasses or something else, and become so enraged that it is actually very scary.

He lived with us until February 2013, when we had to call 911 because we woke up in the middle of the night with him attacking my other brother who is 11 years older than him. He moved in with one of my sisters and actually lived with her on two separate occasions. Both times it was because she agreed to be his surety because he had been charged for assaulting someone (once for assaulting my brother in February 2013, another time it was for the alleged assault of someone unknown to us). I believe both charges were dismissed…

He was homeless for a while and was charged for disturbing the peace, which led to him being jailed for a week or so [this was sometime in March 2018]. When he got out of jail he would come to our house, sit on the porch, drink alcohol for a few hours, yell and swear to himself and then leave.

[21] Each of these statements depicts a circumstance suggesting the prospect of danger to another person. The evidence is imprecise. However, it is clear that there were two incidents for which Mirza Baig was charged. We know this because his other sister, on both occasions, acted as his surety. His actions when he “got out of jail” confirm this fact. That charges were dismissed simply indicates that either he was found not guilty or they did not proceed. This does not negate these circumstances as pointing to the risk of harm to others. This may not always be the case when someone is charged but, in these circumstances, for this respondent, it was. Moreover, on one of those occasions, it was the older brother of Mirza Baig who was involved. Mirza (referred to as Zacure which I understand to be his middle name [^20]) is described as coming upstairs, grabbing a knife and returning to attack his brother. [^21] Dispensing with this as a fight rather than “unilateral action” [^22] does not change it as collaboration of a determination of risk to other persons attributable to mental instability. If nothing else, introducing a knife to the situation could contribute to such a finding. The second incident seemingly occurred outside a liquor or beer store. When first asked about this the respondent attributed this to the psychosis of Mirza Baig. [^23] Within moments, once under cross-examination, he said it was unclear whether this was due to his psychosis, altercation or personality traits. He testified that he was leaning towards this incident as the result of psychosis. [^24] To my mind the strength or impact of this was for the Consent and Capacity Board to analyse and weigh for its collaborative value. It heard the evidence. Becoming enraged to the point of being “scary” over sunglasses is another piece of evidence collaborating the finding of the respondent as found and accepted by the Consent and Capacity Board.

[22] I turn to the third of the three the principles the judge in McTaggart v. Boffo identified in applying section 14 of the Evidence Act. It is not a question of weighing the indications of threat to others and applying that weight in the aggregate. Each one stands, on its own, as corroboration of the evidence that Mirza Board is a danger to others.

[23] Finally, I point out that the understanding that this danger is, in some measure, attributed to his psychosis is confirmed by the realization that after a period where Mirza Baig was relatively settled (“no big violent outbursts or verbal allowed altercations…”) he was downgraded to a regular unit. Upon going there, he became agitated “speaking in a loud threatening voice”. He told the staff that “he was likely to be violent toward someone else, and he couldn’t guarantee being calm.” [^25]

Was the Appellant, as at the hearing, incapable of consenting to his own treatment with anti-psychotic medication?

[24] The test as to whether Mirza Baig had the capacity to make treatment decision is set by the Health Care Consent Act, s. 4(1) [^26]:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[25] Accordingly, there are two components to the test. First, a person must be able to understand the relevant information and second to appreciate the consequences of the decision:

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard. [^27]

[26] There is a presumption of capacity:

A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. [^28]

[27] This means that the onus is on those seeking to establish that the patient is without capacity; that is to rebut the presumption. In this case the onus lies with the respondent, the physician.

[28] In his submissions, made on behalf of Mirza Baig, amicus curiae referred to Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 [^29], a decision of the Supreme Court of Canada, almost inevitably referenced in cases of this kind and reasonably noted as a seminal case in respect of appeals from the Consent and Capacity Board. In that case the patient Scott Jeffrey Schutzman (who preferred to be called “Professor Starson” or “Starson”) refused medical treatment as proposed by his psychiatrist. The Consent and Capacity Board held that Professor Starson lacked the capacity to make that decision. The Board’s ruling was overturned on judicial review. The Ontario Court of Appeal upheld the findings of the reviewing judge. The Supreme Court of Canada dismissed the subsequent appeal. The Board had found that Professor Starson had failed to appreciate the risks and benefits of treatment, but neglected to address whether the reasons for that failure demonstrated an inability to appreciate those risks and benefits. The majority judgment quoted the reviewing judge:

The Board’s . . . conclusions appear to be based on its perception that Professor Starson failed to understand the information or appreciate the consequences as evidenced by his refusal to agree that he should have the recommended treatment, rather than any evidence that his mental disorder prevented him from being able to understand and appreciate. [^30]

[Emphasis in original.]

[29] And then concluded:

As noted above, a patient’s failure to recognize consequences does not necessarily reflect an inability to appreciate consequences. It is critical that the Board determine whether the reasons for a patient’s failure to appreciate consequences demonstrate that the patient is unable, as result of his condition, to appreciate those consequences. In this case, the Board stated that the patient failed to appreciate the consequences of treatment with regard to future dispositions by the ORB. However, neither of the psychiatrists who testified had discussed any of these possible consequences with the patient. Professor Starson’s perceived failure in this regard might have simply reflected the psychiatrists’ failure to inform him of the potential consequences. [^31]

[30] Amicus curiae also referred to the case of Keizer v. Nagari, 2018 ONSC 4424 [^32]. The psychiatrist determined that the patient was incapable of consenting to treatment. The Consent and Capacity Board upheld the doctor’s finding. The Board concluded that the patient suffered from delusional disorder and that his failure to recognize this meant that he was incapable of applying information about treatment decisions to his own circumstances. The patient appealed. The Court granted the appeal. The Board’s reasons made it clear that its conclusion was based almost entirely on the patient’s disagreement with doctor’s diagnosis. While the patient did not accept the diagnosis, he did recognize that he was affected by the manifestations which the doctor described as resulting from the disorder. The patient’s decision to avoid the treatment was based on his belief that it would not benefit him. It was not based on a delusion but on his past experience with the medication and his preference for the diagnosis of his former psychiatrist. [^33]

[31] These are two cases where appeals from the Consent and Capacity Board were granted. They are relied on by the appellant. What they demonstrate is the requirement that the evidence match the test, that is, that it is shown that it was as a result of the condition (the mental illness) that the patient was unable to appreciate the implications of the decision not to accept treatment. A person is capable as to treatment if (1) the person is able to understand the information that is relevant to making a decision about the treatment, and (2) is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

[32] It was not suggested that Mirza Baig did not have the ability to understand the information relevant to the decision to be made concerning his treatment. It is the second component of the test that was in issue before the Consent and Capacity Board and of concern on this appeal: his ability to appreciate the consequences of that decision.

[33] The patient is not required to agree with a diagnosis, or with the “label” used to characterize the apparent set of symptoms. However, the patient must be able to acknowledge his or her symptoms to understand information relevant to a treatment decision. [^34]

[34] There is evidence supporting the conclusion that Mirza Baig suffers from a mental disorder. For example, the respondent personally observed the impact of the paranoia and persecutory fears of the appellant. [^35] The letter to the Justice of the Peace from the sister of Mirza Baig notes:

My brother appears to have some form of psychosis and is often not in touch with reality. He is often talking to himself, arguing with himself, and at times I think he sees people who are not there. At times he is also very delusional.

He is constantly accusing people of stealing from him and claims to have had a bag full of money that we stole from him and gave away to people. I can assure you this did not happen. He then becomes verbally abusive and uses horrible vulgar language and at times hurls racial slurs, which I find very shocking, disgusting and disturbing.

Every night before he goes to bed he’s talking, yelling, screaming and fighting with people who don’t exist or aren’t there.

I strongly believe that he is suffering from schizophrenia. I am not a doctor, however, he is often talking to himself, he is delusional and states things that have happened never even occurred.

He makes comments sometimes referring to this grandiose lifestyle that he believes he was living or his “Hollywood lifestyle”. He talks about things where he was living in Alberta and working on an oil rig, or about his record deals, or company, which I believe are part of the delusions that he has. [^36]

[35] Mirza Baig does not acknowledge his symptoms. The respondent testified as follows:

Q. Okay. Have you tried to suggest to Mr. Baig that he does suffer from a mental condition? A. He maintains that, to his belief, that he does not have a mental health illness. Q. Okay. Is he prepared to admit or acknowledge or recognize that he has any kind of a condition, whatever he wants to call it, that could benefit from treatment? A. No he’s -- what he shared with me is that it’s his and family’s views that are affecting how he is. [^37]

[36] The upshot of this is that Mirza Baig suffered from a mental condition and, because of the condition itself, he was unable to recognize its manifestations in himself:

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. [^38]

[37] Because he does not recognize that he has a mental illness or acknowledge its symptoms Mirza Baig is unable to appreciate the impact of a decision to refuse treatment.

[38] The Consent and Capacity Board concluded that:

The evidence established that MB suffers from psychosis and it is manifested by his persecutory delusions. The evidence also established that those delusional beliefs prevent him from appreciating the reasonable foreseeable consequences of a treatment decision. This evidence established that he is unable to apply the relevant information about treatment to his own situation. It follows from this finding that we also concluded that MB is not able to appreciate the reasonably foreseeable consequences of taking or not taking the proposed treatment. We confirmed Dr. Maldeniya’s finding that MB is incapable of consenting to treatment of a mental disorder with antipsychotic medications. [^39]

[39] The objections to the decision of the Consent and Capacity Board do not touch on these issues. Amicus curiae submits that the symptoms Mirza Baig suffers from are not necessarily caused by “primary psychotic disorder”. Rather they were the result of “substance-induced psychosis”. This was included in the diagnosis of Mirza Baig. This takes these reasons back to the beginning. This is a legal proceeding. Here the respondent doctor provided evidence that the “auditory hallucinations” suffered by were the result of a 20-year history of cannabis use by Mirza Baig. [^40] Amicus curiae submitted that the Consent and Capacity Board erred in not considering this as information relevant to the assessment of his capacity to make a treatment decision. The fact remains that Mirza Baig does not accept he has any symptoms. Moreover, it ignores the evidence of the doctor that the treatment would still be of benefit:

It could be that the lack of cannabis is starting to very, very but too slowly clear up some of the psychotic symptoms. [^41]

[40] Rather than accept this, amicus curiae submits that the Consent and Capacity Board erred by failing to consider the improvements in the symptoms of Mirza Baig attributed to the absence of cannabis. This information may be relevant to the treatment decisions to be made but not to the capacity of Mirza Baig to make them:

As stated above, Dr. Wilkie testified that the medication would diminish the intensity of the appellant’s delusions. True, she did not present the Board with anything beyond her professional opinion that the proposed medication would help the appellant. However, with respect, the appellant’s submissions on the efficacy of the proposed medication are not particularly germane to the question before the Board. As stated by Doherty J.A. in Giecewicz, at para. 43:

It is not the Board's task to weigh the risks and benefits of the proposed treatment or to make any determination as to the advisability of the treatment from a medical standpoint. The issue before the Board was the appellant's capacity to make the relevant decisions. [^42]

[41] By approaching the matter in this way, amicus curiae is attempting to take these considerations outside the accepted legal tests and to expect the Court to accept an alternative diagnosis. In taking this position amicus curiae relies on the case of Keizer v. Nagari. I repeat what I have already said in respect of that case. There the patient had an alternative diagnosis from a former psychiatrist. He had taken the medication before and complained that it made him feel groggy. He did not deny his symptoms.

[42] For the reasons reviewed herein, the appeal is dismissed.

[43] Costs were not addressed. To my mind there should be none awarded.

Lederer J. Date: April 4, 2019

[^1]: R.S.O. 1990, c. M.7 [^2]: Decision of the Consent and Capacity Board cited as MB (Re) at p. 10 [^3]: GM (Re) [^4]: L.I. (Re) quoting R. v. McGraw, [1991] 3 S.C.R. 72 at para. 22 [^5]: Transcript, Hearing of the Consent and Capacity Board at p. 16, l. 38 to p. 20 l. 27 [^6]: Appellant’s Factum at para. 30. [^7]: Transcript, Hearing of the Consent and Capacity Board at p. 48, l. 24-37 and p. 56. l. 26-37 [^8]: R.S.O. 1990, c. E.23 [^9]: 2013 ONCA 499 [^10]: Ibid at para. 29 [^11]: Ibid at para. 30 [^12]: Ibid at para. 31 [^13]: Ibid at paras. 31 and 32 [^14]: Transcript, Hearing of the Consent and Capacity Board at p. 65, l. 27 to p.67, l. 16 [^15]: Decision of the Consent and Capacity Board, supra (fn. 2) at p. 10 [^16]: , 10 OR (2d) 733; 64 DLR (3d) 441; [1975] OJ No 2539 (QL) [^17]: Toronto General Trusts Corp. et al. v. Smith, [1945] O.W.N. 233, [1945] 2 D.L.R. 111, Bayley v. Trusts & Guarantee Co. Ltd., 66 O.L.R. 254, [1931] 1 D.L.R. 500, McMaster et al. v. Byrne, [1951] O.W.N. 1 at p. 6, [1951] 1 D.L.R. 593, Elgin v. Stubbs (1928), 62 O.L.R. 128, [1928] 2 D.L.R. 838, Thompson v. Coulter (1903), 34 S.C.R. 261, and R. v. Baskerville, [1916] 2 K.B. 658. [^18]: McTaggart v. Boffo, supra (fn. 16) at p. 742 (OR) and p. 450 (OR) [^19]: Record of Proceedings, Exhibit 1 [^20]: Transcript, Hearing of the Consent and Capacity Board at p.35, l. 31 [^21]: Transcript, Hearing of the Consent and Capacity Board at p.35, l. 16 to p. 36, l. 5 [^22]: Transcript, Hearing of the Consent and Capacity Board at p.35, l. 29 [^23]: Transcript, Hearing of the Consent and Capacity Board at p.71, l.31 to p. 72, l. 4 [^24]: Transcript, Hearing of the Consent and Capacity Board at p.72, l. 25 to l. 35. [^25]: Transcript, Hearing of the Consent and Capacity Board at p. 64, l. 4 to l. 31 [^26]: S.O. 1996, c. 2, Sched. A [^27]: Starson v. Swayze [2003] 1 SCR 722, 2003 SCC 32, 225 DLR (4th) 385; 304 NR 326; 173 OAC 210; 1 Admin LR (4th) 1; [2003] CarswellOnt 2079; JE 2003-1132; [2003] SCJ No 33 (QL); 122 ACWS (3d) 938 at para. 78 [^28]: Health Care Consent Act, supra (fn. 26), s. 4(2) [^29]: Supra (fn. 27) [^30]: Ibid at para. 111 quoting at para. 74 [^31]: Ibid [^32]: 2018 ONSC 4424 [^33]: Ibid at paras. 1-4 and 47-50 [^34]: Starson v. Swayze, supra (fn. 27) at para. 16 [^35]: Transcript, Hearing of the Consent and Capacity Board at p. 63, l. 10 to l. 21 [^36]: Record of Proceedings, Exhibit 13 [^37]: Transcript, Hearing of the Consent and Capacity Board at p. 65, l. 4 to l. 26 [^38]: Starson v. Swayze, supra (fn. 27) at para. 79 [^39]: Decision of the Consent and Capacity Board, supra (fn. 2) at p. 8 [^40]: Transcript, Hearing of the Consent and Capacity Board at p. 62, l. 9 to l. 21, p. 94, l. 29 to p. 95, l. 17 [^41]: Transcript, Hearing of the Consent and Capacity Board at p. 95, l. 1 to l. 5 [^42]: Gajewski v. Wilkie, 2014 ONCA 897, 123 OR (3d) 481