COURT FILE NO.: CV-18-606430 DATE: 2019-04-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: W.C., Appellant AND: Dr. IZABELLA PATYK, Respondent

BEFORE: Sossin J.

COUNSEL: Mitchell Greenberg, for the Appellant Alexandra Mayeski, Counsel for the Respondent

HEARD: April 2, 2019

REASONS FOR DECISION

OVERVIEW

[1] The appellant, W.C., appeals from a decision of the Consent and Capacity Board (the “Board”) made on October 1, 2018, confirming his incapacity to consent or refuse to consent to a proposed treatment of antipsychotic medication.

[2] The respondent, Dr. Izabella Patyk (“Dr. Patyk”), submits that the Board’s decision to uphold the finding of incapacity was both correct and reasonable, and that the appeal should be dismissed.

[3] For the reasons that follow, W.C.’s appeal is dismissed.

BACKGROUND

[4] W.C. is a 37 year old man who has been diagnosed with paranoid delusional disorder and schizophrenia. He was admitted to hospital in November – December, 2011 for treatment. Further incidents in 2012 and 2013 indicate that W.C. had problems with compliance and medications for his condition. He was admitted again to a hospital in September, 2013, with worsening psychotic symptoms, including reporting that he was being followed, and that he was being watched and hearing voices.

[5] The record of these previous admissions suggests W.C. responds well to medications, and functions quite highly when taking medications as prescribed, including in his work as an elevator mechanic.

[6] The incident giving rise to this appeal occurred on September 13, 2018. W.C. was brought to a hospital based on a Form 2 (Order for Examination) initiated by his parents and sister. The Form 2 was based on W.C. hearing voices that would not allow him to sleep and were telling him to kill himself. W.C. was not eating or maintaining personal hygiene. He refused help and did not believe he needed medical treatment. His initial assessment on September 13, 2018 indicated that W.C. was convinced that he was being “stalked,” “extorted” and “human trafficked.”

[7] W.C. agreed initially to take olanzapine, but soon after refused medication and sought a discharge from the hospital.

[8] Dr. Patyk was responsible for W.C.’s treatment on September 24, 2018 and conducted an assessment of W.C. on September 25, 2018. Dr. Patyk found W.C. incapable to consent to or refuse to consent to treatment will oral and injectable forms of antipsychotic medication on September 25, 2018, and again on September 28, 2018.

[9] W.C. applied to the Board to review Dr. Patyk’s finding of incapacity. The Board panel for the hearing consisted of a lawyer, a psychiatrist and a member of the public.

[10] The Board made the following findings (at p. 15 of its reasons):

This panel accepted Dr. Patyk’s evidence that because of his mental disorder, WC did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment.

The evidence was cogent and compelling that WC was suffering from a mental disorder, namely schizophrenia. The evidence disclosed that WC was paranoid and delusional at the time of admission and remained such throughout the admission. The evidence further established that WC did not recognize that his symptoms, as observed by his family and health care providers, were the manifestations of a mental disorder that required treatment with antipsychotic medication. He had been treated with antipsychotic medication in the past and his mental status had improved as a result of the treatment with antipsychotic medication.

WC’s parents had also reported to Dr. Patyk that when treated, WC did very well and was highly functional to a point where he was able to work as an elevator mechanic.

The evidence clearly established that WC only saw the side-effects of the medication and did not see any benefits, specifically when it applied to his situation. He did not recognize that he had benefitted from treatment with antipsychotic medication in the past and did not see any need for treatment now.

We therefore found that the evidence established on a balance of probabilities that WC, due to his mental disorder, was unable to apply relevant information to his circumstances. He was unable to appreciate the benefits of treatment, and was therefore, unable to weigh those benefits against the risks of not accepting treatment. As a result, when trying to make decision about whether to take his medication or not, he was able to recognize only the adverse affects associated with the proposed treatment and was unable to appreciate the benefits of treatment.

We therefore find that WC was incapable of consenting to treatment with the antipsychotic medication.

ANALYSIS

[11] Section 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended (“HCCA”), provides a statutory right of appeal from the Board’s decision on a question of law or fact or both.

[12] The powers of this Court on appeal are prescribed by section 80(10) of the HCCA, as follows:

On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[13] Below, I consider the standard of review and then apply that standard to the decision of the Board.

Standard of Review

[14] Both parties submit that the standard of review of Board decisions is correctness in law and reasonableness in the application of the law to the facts.

[15] The standard of review for decisions of the Board was confirmed by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32 (“Starson”). In that decision, Chief Justice McLachlin (for the majority on this point), stated (at para. 5):

I agree with my colleague Major J. that the Board’s interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, I agree that the Board’s decision is subject to review for reasonableness. The legislature assigned to the Board the task of hearing the witnesses and assessing evidence. Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence. As Binnie J. states in R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33 (released concurrently), at para. 33: “If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene.” The fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board’s conclusion.

[16] The standard of reasonableness is concerned with the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within the range of possible, acceptable outcomes which are defensible in fact and law (Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47).

Was the Board’s Decision Reasonable?

[17] W.C. asserts that the Board’s decision was unreasonable on two grounds:

a. First, the Board erred in accepting evidence that was the direct result of an unlawful detention; and

b. Second, the Board misapprehended the evidence, and misinterpreted and misapplied the test for capacity in s.4 of the HCCA.

[18] I examine each ground of appeal below.

Should the Board have accepted the evidence of Dr. Patyk?

[19] On a preliminary motion by W.C., the Board found that the Form 1 under which W.C. had been involuntarily admitted on September 25, 2018 was invalid.

[20] W.C. submits that because the basis for his involuntary assessment and admission to a psychiatric facility has been found to be invalid, he was never a “patient” within the meaning of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”), and that he was unlawfully detained during the period of his assessment by Dr. Patyk leading to the finding of incapacity.

[21] W.C. submits that given this finding, the evidence of Dr. Patyk based on assessments to which W.C. did not consent, should have been excluded by the Board.

[22] Justice Kristjanson confronted a similar issue in Z. (Z.) v Shafro, 2016 ONSC 6412 (“Shafro”), where she wrote (at paras. 29-33, 35):

[29] Counsel for the appellant brought a preliminary motion in which she argued that Dr. Ariel Shafro’s “finding of incapacity was void” because it was made “during a period of time when her client was unlawfully detained as a patient, and not a voluntary or informal patient”. This submission was based on the fact that the January 14 Form 3, Certificate of Involuntary Admission, had not been filed and reviewed by the officer in charge, contrary to the requirements of section 20(8) of the MHA.

[30] Counsel argued that the finding of incapacity made on January 14, 2016 was “the fruit of the poisonous tree and not lawful,” and should be set aside on that basis, relying on three cases of the Board which adopted this approach. Counsel also argued that the Mental Health Act defines a “patient” as a person under observation, care and treatment in a psychiatric facility. A person who is the subject of a Form 1 assessment does not become a patient until she is assessed and a decision is made to admit her either on a voluntary or involuntary basis. Counsel submitted that Z. (Z.) was not a patient of Dr. Shafro when assessed as to her treatment capacity, based on the definition of “patient” in the MHA, was not a patient for any other purposes, and so there was no basis on which Dr. Shafro could or should have assessed her capacity for treatment.

[31] The Board dismissed this preliminary motion, holding that the finding of treatment incapacity was not void. The Board held that whether or not Z. (Z.) was an involuntary psychiatric patient within the meaning of the Mental Health Act, “she was still Dr. Shafro’s patient for other purposes,” and Dr. Shafro had obligations to Z. (Z.), in addition to those set out in the Mental Health Act.

[32] The Board held: Once Dr. Shafro took on a physician’s treatment obligations and made observations of ZZ that called the presumption of her capacity into question, he had to assess ZZ’s capacity regardless of her status as a psychiatric patient. Indeed the HCCA permitted health practitioners to make assessments of treatment incapacity in any setting, there being no statutory requirement confining it to a hospital or psychiatric facility. The …“fruit of the poisonous tree” argument ignored this obligation. The issues of whether a person has the capacity to make treatment decisions and whether a patient has been detained unlawfully, were two separate matters, requiring separate consideration.

[33] The Appellant argues that the Board erred as a matter of law in failing to adopt the “fruit of the poisonous tree” analysis. There are two distinct streams of decisions at the Board with respect to whether a valid capacity assessment can be made where the involuntary admission of a patient to a psychiatric facility does not comply with the statutory requirements of the Mental Health Act. One stream, relied on by the Appellant, follows the “fruit of the poisonous tree” theory, and one stream, accepted by the Board, views capacity assessments as part of the patient-physician relationship under the Health Care Consent Act, separate and apart from the issue of the validity of the involuntary admission under the Mental Health Act. The Board appears to move back and forth between these two positions frequently. For this reason, the Appellant argued that this court should clarify the law.

[35] I reject the Appellant’s argument as a matter of law. The position put forward by the Appellant conflates rights and responsibilities under two different pieces of legislation, the Mental Health Act and the Health Care Consent Act. The Appellant relies on a breach of the MHA to set aside a finding of incapacity under the HCCA, analogizing to the exclusion of evidence following a violation of constitutionally protected rights known as the “fruit of the poisonous tree” doctrine in the United States. First, I note that the fruit of the poisonous tree doctrine has never been part of Canadian criminal law, and it is an error to rely on it in the administrative law context of the Board’s decision-making process. The remedy of finding that a capacity assessment is void ab initio, whenever a MHA provision regarding involuntary admissions is not complied with, is not the appropriate remedy under the Mental Health Act, nor is it consistent with the statutory scheme under the HCCA. Finally, the Board’s approach to the separate analysis of a physician’s obligations under the HCCA is the correct approach as a matter of law.

[23] W.C. submits that the circumstances of this appeal differ from Shafro, because in Shafro the question as to whether a person was a “patient” was at issue, whereas in this proceeding before the Board, Dr. Patyk conceded that W.C.’s Form 1 was invalid. W.C. argues (at para. 47 of his factum):

Mr. [C.] submits that at no point in time during his unlawful detention at [the Health Centre] in 2018 was he legally a `patient.’ Mr. [C.] submits that he was not a voluntary patient, and he was not an involuntary patient because the Form 1, upon which the subsequent forms of involuntary admission were based, was invalidated ab initio.

[24] W.C. argues that the evidence of Dr. Patyk should not have been accepted because it was a direct result of a “coerced interrogation,” and that “the basis upon which Dr. Patyk procured her evidence against him flowed directly from the unlawful and inequitable deprivation of his fundamental right to liberty and bodily autonomy.” (at para. 49 of his factum).

[25] W.C. accepts that the “fruit from the poisonous tree” doctrine does not apply to Canadian criminal or administrative law, and that excluding evidence under s.24(2) of the Canadian Charter of Rights and Freedoms is not available to the Board (as the Ontario Court of Appeal held that the Board is not a court of competent jurisdiction for the purposes of s. 24 of the Charter in E.S. v. Joannou, 2017 ONCA 655). W.C. argues that the Board nonetheless has a discretion at common law to exclude evidence that would result in unfairness if admitted, or the if the prejudicial value of evidence outweighs its probative value. W.C. asserts with respect to the evidence of Dr. Patyk that the “prejudicial value of such evidence far outweighed the probative value of the evidence.” (at para. 44 of W.C.’s factum).

[26] Justice Kristjanson observed in Shafro that a finding of invalidity of the basis for an involuntary admission to a psychiatric facility constitutes a breach of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”), and a remedy for this breach, if one is appropriate, must be found under the MHA as well. As Kristjanson J. concluded (at para. 38), “there is no remedy under the MHA that relates to setting aside or voiding a finding of incapacity under the HCCA in these circumstances.”

[27] The HCCA is part of a health care legislative framework. An assessment of a person’s capacity under the HCCA is not an “interrogation.” For this reason, W.C.’s reliance on case law arising in the context of involuntarily induced confessions in criminal law, such as R. v. Oickle, 2000 SCC 38, does not lead to the conclusion that evidence should be excluded in a hearing on capacity.

[28] In this case, the Board rescinded the Certificate of Renewal on the basis of the invalidity of the Form 1 by which W.C. was brought to the psychiatric facility on September 13, 2018. The invalidity of W.C.’s admission does not, however, warrant a finding that the Board’s acceptance of Dr. Patyk’s evidence was unreasonable.

[29] I find that the Board acted reasonably in accepting evidence of Dr. Patyk for purposes of exercising its authority under the HCCA in reviewing a finding of incapacity.

Did the Board misinterpret or misapply the test for capacity under the HCCA?

[30] Capacity to consent to treatment is governed by section 4 of the HCCA, which provides:

(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.

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

[31] By virtue of s.4 of the HCCA, a person is presumed to be capable with respect to giving consent to treatment and the onus of proving that a patient is incapable in that regard is on the health-care practitioner (see e.g. Whalen v Bismil, 2017 ONSC 3540, at para. 20).

[32] In this appeal, the Board found that W.C. was not able to understand information relevant to the making a decision about treatment, and appreciate the reasonably foreseeable consequences of a decision or lack of decision in relation to his treatment with antipsychotic medication.

[33] W.C. submits that the Board misapplied the standard for capacity under s.4 of the HCCA, as determined by the Supreme Court in Starson when it accepted Dr. Patyk’s that WC was unable to appreciate the reasonably foreseeable consequences to him of receiving or not receiving treatment with antipsychotic medication.

[34] W.C. relies on this Court’s decision in M.N. v. Klukach, in which a decision of the Board was found to be unreasonable for the following reasons (at paras. 50-52):

[50] The Board did not meet its onus in finding Ms. N. incapable of consenting to treatment. I find that the majority of the Board erred by requiring Ms. N. to admit that she suffered from a mental illness, and by unreasonably concluding that she was not able to appreciate the consequences of a decision or lack of a decision regarding her treatment with proposed medications. Ms. N. acknowledged her condition. She was able to assess how treatment decisions may affect her quality of life. Her decisions were not based on delusional belief.

[51] The Board appears to have been influenced by what choices appeared to it to be most rational or in the patient’s best interest, based on subjective views of what behaviour or state of being is to be preferred. Although Ms. N. experienced some delusional thinking and despite making choices that may not be in her best interest, or the easiest for her family to deal with, she nonetheless has the ability to make the choices she made. In my view, these choices should be respected.

[52] Since the Board did not meet its onus in establishing that Ms. N. was incapable, Ms. N. is presumed at law to have been capable of making her own decisions as to treatment at the time of the hearing.

[35] W.C. asserts that the Board relied on Dr. Patyk’s conclusion that W.C. suffered from delusions, notwithstanding that the evidence of these delusions came from past admissions, not from the symptoms he reported during this September, 2018 admission.

[36] W.C. also argues that the Board erred in the significance it attributed to W.C.’s failure to acknowledge his mental illness and the benefits of medication. W.C. relies on Starson, where the Supreme Court affirmed that a patient’s refusal to acknowledge a mental illness is insufficient, on its own, to prove incapacity. As Justice Major explained (at paras. 80-81):

80. Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences. The distinction is subtle but important: see L. H. Roth, A. Meisel and C. W. Lidz, “Tests of Competency to Consent to Treatment” (1977), 134 Am. J. Psychiatry 279, at pp. 281-82, and Weisstub Report, supra, at p. 249. In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment. If the patient shows an appreciation of these parameters — regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation — he has the ability to appreciate the decision he makes: see Roth, Meisel and Lidz, supra, at p. 281.

81. However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences: see the Weisstub Report, supra, at p. 249. Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision.

[37] In light of this approach, W.C. submits that his disagreement with Dr. Patyk’s characterization of his mental health condition, or the benefits of antipsychotic medication, did not justify a finding of incapacity.

[38] W.C.’s evidence is that he rejected the antipsychotic medication because of a justified aversion to the serious side effects which could accompany the medication. W.C. asserts that the Board preferred the evidence of Dr. Patyk to his own evidence without explanation, and raised the possibility that W.C.’s evidence was not preferred because of the fact he had been diagnosed with a mental illness.

[39] In an appeal from the Board’s decision, it is not the role of this Court to reweigh the evidence or findings of credibility made by the Board based on the proceedings before it and its application of the s.4 test under the HCCA.

[40] I am unable to conclude that the Board acted unreasonably to the extent Dr. Patyk’s evidence was preferred where it contradicted the evidence of W.C. The Board’s reasons indicate that it considered W.C.’s testimony in detail. For example, the Board stated (at p. 12 of its reasons):

WC in his testimony denied that he had any mental illness. When asked by his counsel if it was possible that may be affected by a mental disorder, WC said “I wouldn’t say I have it now but may be in the future.” He said it was possible for a person to have delusions and hallucinations but “I don’t have it.” … WC categorically denied any benefit from medication. He said he was very confident about not taking medication. He said he didn’t need it. He said everything Dr. Patyk said was untrue. He denied any delusions. He denied anybody was following him. However, in his cross examination by Dr. Patyk, WC said that originally he thought he was followed and “they figured” that I had schizophrenia.” (Emphasis in original).

[41] Turning to the transcript of the proceedings before the Board, Dr. Patyk confirmed that W.C. remained “extremely paranoid” and “delusional” about some of the nurses at the facility harassing him (at p. 26) and concluded “there’s no way that he will improve without treatment.” (at p. 35).

[42] W.C. himself testified at the Board hearing and addressed the key question of his ability to weigh the risks and benefits of treatment before the Board in this exchange with his counsel (at pp.53-54):

Mr. Greenberg: Okay. If you were to take either of those medications, it would be likely that you would take – that it would decrease the – do you agree that if you took either of these medications, it would decrease the likelihood of exhibiting symptoms of schizophrenia?

W.C.: Uh, for someone with schizophrenia, most likely.

Mr. Greenberg: Okay. Do you think it is humanly possible that you have schizophrenia?

W.C.: Uh, not at this time.

Mr. Greenberg: Okay. Do you it’s humanly possible that in the past you may have had schizophrenia?

W.C.: No, I’m pretty sure I haven’t.

Mr. Greenberg: Ok. Do you think it’s possible that you did. … I’m not asking it you did have it. I’m asking if it is possible that you had it.

W.C.: I’ve always been coherent, and uh, I’d never seen things that aren’t there, uh, never heard voices that aren’t there.

[43] In his testimony, W.C. proceeded to recount a number of the negative side effects he associated with the proposed antipsychotic medication. Following this, W.C. and his counsel had the following exchange (at pp. 55-56):

Mr. Greenberg: Okay. So those are some of the risks, which are certainly part of the reasonably foreseeable outcomes of taking those drugs. I’d like to know if you are aware of or if you believe there are any benefits of taking either of these drugs?

W.C.: I’d say no.

[44] In his factum (at para. 58) W.C. submits that “his concerns about adverse side effects played a crucial role in his decision-making process, and materially affected his decisions with respect to anti-psychotic medications. W.C. felt that the adverse effects, outweighed the potential benefits of the proposed treatment.”

[45] The Board accepted Dr. Patyk’s evidence and relied on W.C.’s own testimony that he did not appreciate any benefits to the proposed medication. Based on the evidence before it, the Board concluded that W.C. was not able to weigh the reasonably foreseeable outcome of taking or not taking the antipsychotic medication, and therefore that Dr. Patyk had met the standard under s. 4(1) for establishing that W.C. lacked capacity.

[46] The Board did not err in its interpretation of the legal standard under s. 4(1) of the HCCA. The Board focused on whether, based on the evidence, W.C. was able to understand the information relevant to making a decision about treatment with antipsychotic medication, and weigh the reasonably foreseeable outcome of a decision or lack of a decision about that treatment.

[47] I find the Board’s decision that W.C. was unable to weigh the reasonably foreseeable outcome of a decision or lack of decision about treatment, meets the standard of reasonableness, as its analysis is clearly rooted in the evidentiary record before the Board, and falls within a range of possible, acceptable outcomes which are defensible based on the facts and law.

CONCLUSION

[48] The Decision of the Board, dated October 1, 2018, that W.C. is incapable with respect to treatment, in particular with respect to his consenting to or refusing to consent to antipsychotic medications, is confirmed.

[49] Dr. Patyk is not seeking costs in this appeal.

[50] For the reasons above, W.C.’s appeal is dismissed, without costs.

Sossin J. Released: April 23, 2019