COURT FILE NO.: CV-18-589949 DATE: 20190416 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ANDERSON TUNG AND: DR. REGINA LIU
BEFORE: Mr. Justice Chalmers
COUNSEL: A. Tung, Self-Represented Appellant B. Walker-Renshaw and J. R. Szabo for the Respondent
HEARD: April 5, 2019
ENDORSEMENT
OVERVIEW
[1] The Appellant, Anderson Tung, appeals from the decision of the Consent and Capacity Board dated December 27, 2017, in which the Board found him incapable of consenting to treatment with anti-psychotic medications.
[2] The Board found that the Respondent, Dr. Liu established, on the balance the probabilities, that at the time of the hearing, Mr. Tung was unable to appreciate the reasonable, foreseeable consequences of a decision or lack of decision about the treatment of his mental disorder with anti-psychotic medications. The Board concluded that Mr. Tung was incapable of consenting or refusing to consent to treatment.
[3] Mr. Tung appeals the Board’s finding that he did not have the capacity to consent to treatment. For the reasons that follow, I dismiss the appeal.
THE FACTS
[4] On December 3, 2017, Mr. Tung was brought to North York General Hospital for a psychiatric assessment, by the police. Mr. Tung had been observed attempting to cut Rogers cable wires.
[5] Mr. Tung was examined by psychiatrist, Dr. Tugg on December 4, 2017. Dr. Tugg’s consultation note was introduced into evidence before the Board and formed part of the record.
[6] Dr. Tugg noted that Mr. Tung advised that he was cutting the Rogers wires because they are part of a system that is affecting his behaviour. Mr. Tung told Dr. Tugg that he had been injected with something in his back which allows him to be monitored by private security. He also reported being sprayed with lice and fleas. Mr. Tung made the same statements in his submissions on this appeal.
[7] Dr. Tugg stated that Mr. Tung’s thought content revealed delusions. He provided a diagnosis of schizophrenia of the paranoid subtype. Mr. Tung was admitted to the Hospital.
[8] After being admitted to the Hospital, Mr. Tung declined the option of treatment. He insisted that he did not have a mental illness and that the Hospital and doctors were part of a conspiracy.
[9] On December 5, 2017, Dr. Tugg completed an application to the Board to review Mr. Tung’s involuntary status and for a finding of incapacity to consent to treatment.
[10] The hearing of the Board took place on December 12, 2017. Dr. Liu, a psychiatrist, was the attending physician at the hearing. She testified that Mr. Tung had a diagnosis of schizophrenia, paranoid subtype. He had delusions particularly that he was being persecuted by people in the Jewish community and Hollywood.
[11] Dr. Liu testified that the proposed treatment with anti-psychotic medications would make his delusions less salient. She testified that the risks of the proposed treatment were metabolic concerns, and there were no alternative treatment. She presented the treatment options to Mr. Tung. She advised him of the potential side effects and benefits of the medication. She advised the Board that Mr. Tung denied treatment because he believes he does not have a mental illness and therefore does not need medication.
[12] Mr. Tung also testified at the Board hearing. He believes that he is the subject of a conspiracy and has been injected with GPS cyanide, which allows organizations to track him. He believes he is being pursued by an Israeli death squad and that Hollywood actors have moved in around his house and have made death threats. At the Board hearing, Mr. Tung introduced into evidence, x-rays which he says are evidence that certain devices have been injected into his jaw, temple and ribs.
[13] With respect to the consent to treatment, Mr. Tung denied that he had any mental illness. He was of the belief that putting him on psychotic medication would be a waste of time and money.
[14] In addition to his oral testimony, Mr. Tung submitted a 6-page letter to the Board. The letter was introduced into evidence and forms part of the record. In the letter, Mr. Tung states that he had fleas and lice sprayed at him. He stated that a wireless shock device was drilled into his head and that he is being pursued by U.S., U.K., and Israel intelligence.
[15] The Board released its Reasons for Decision on December 27, 2017. With respect to the issue of the incapacity to consent to treatment, the Board found that the evidence established on a balance of probabilities that at the time of the hearing, Mr. Tung was unable to appreciate the reasonable foreseeable consequences or a decision or lack of decision about the treatment of his mental disorders with anti-psychotic medications. The Board noted that Mr. Tung rejected the possibility that he may be experiencing a mental condition, and he was not open to considering that his beliefs and resulting behaviours may be caused or influenced by a mental condition.
ANALYSIS
(a) Standard of Review
[16] The Board found that Mr. Tung was incapable of consenting or refusing to consent to treatment with anti-psychotic medication. Mr. Tung appeals this finding.
[17] Mr. Tung, as a party to a Board proceeding, has a statutory right of appeal to the Superior Court of Justice, from Board decisions on a question of law, or fact, or both.
[18] The Board’s decision with respect to the Capacity to Consent to Treatment is a question of mixed law and fact which is subject to a reasonableness standard: Starson v. Swayze 2003 SCC 32, at para. 5, 84 and 88. The reasonableness standard involves “respectful attention, though not submission to the Board’s decision.” A decision will be considered to be reasonable if it is among the range of acceptable conclusions that could reasonably have been reached on the law and evidence: Starson, at para. 5 and 88.
[19] The Board is an administrative tribunal which is entitled to deference. The Board has expertise with respect to mental health and treatment issues. In addition, the Board heard the evidence and is in a better position to assess the creditability of a witness and to make findings of fact: Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 SCC9 at para. 47-48.
(b) Test for Capacity to Consent to Treatment
[20] The test to determine the Capacity to Consent to Treatment is set out in s. 4(1) of the Health Care Consent Act which provides that:
(1) 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.
[21] Therefore there are two parts of this test:
(1) the person is able to understand the information relevant to making the decision about the treatment; and,
(2) the person appreciates the reasonably foreseeable consequences of a decision or lack of decision.
[22] In this case, the Board found that Mr. Tung was able to understand the information relevant to making a decision with respect to treatment. Although the Board found that Mr. Tung met the first part of the test, the Board found that Mr. Tung did not meet the second part of the test in that he failed to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the proposed treatment.
[23] The second part of the test requires the person to apply the information regarding treatment to his circumstances and to weigh the foreseeable risks and benefits of a decision. If it is demonstrated that the person has a mental condition, the patient need not agree with the particular diagnosis, however the patient must be able to recognize the possibility that he is affected by that condition. If the patient denies a mental condition, he will be unable to apply the information to his circumstances and will be unable to appreciate the consequences of his decision: Starson, at paragraphs 78-79.
[24] In this case there is sufficient evidence to allow the Board to conclude that Mr. Tung had a mental illness. Dr. Tugg diagnosed Mr. Tung with schizophrenia of the paranoid subtype. In determining whether Mr. Tung had capacity to consent to treatment, the Board considered the fact that Mr. Tung denied any mental illness. Dr. Tugg in his consultation report noted that Mr. Tung had a grossly impaired awareness of illness. Dr. Liu in her testimony confirmed that Mr. Tung denied any mental illness. I note that Mr. Tung maintained that position in his submissions before me.
[25] In determining whether Mr. Tung could assess the proposed treatment, the Board noted that Dr. Liu discussed with him the risks and benefits of the proposed treatment, and the absence of alternative treatment. She testified that Mr. Tung could not assess how the treatment or lack of treatment would impact his quality of life due to the fact that he did not believe he had a mental illness. Dr. Liu testified that Mr. Tung’s lack of insight was part of his mental disorder.
[26] I find that the evidence before the Board, including the testimony of Dr. Liu, provided a reasonable evidentiary basis for the Board to conclude that Mr. Tung was unable to recognize that he suffers from a mental illness and as a result, he was, at the time of the hearing, unable to appreciate the reasonably foreseeable consequences of his decision with respect to treatment.
[27] I therefore conclude that there was sufficient evidence before the Board to allow it to come to the decision that Mr. Tung did not have the capacity to consent to treatment with anti-psychotic medications. This finding is within the range of acceptable and rational conclusions based on the evidence and is a decision to which deference should be given.
DISPOSITION
[28] The Appellant’s appeal is dismissed.
[29] There is no order as to costs.
Chalmers, J. Date: April 16, 2019