COURT FILE NO.: CV-18-607224-0000
DATE: 20190514
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from the a decision of the Consent and Capacity Board, Pursuant to the Mental Health Act, S.O. 1990, chapter M.7, schedule A, as amended
AND IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board Pursuant to the Health Care Consent Act, S.O. 1996, chapter 2, schedule A, as amended
AND IN THE MATTER OF
FILIP IGNACY SOCZEWSKI
A Resident of
Toronto, Ontario
BETWEEN:
FILIP IGNACY SOCZEWSKI
Appellant
– and –
DR. VINCENCO DE LUCA
Respondent
COUNSEL:
Anita Szigeti and Maya Kotob, for the Appellant
Kathryn Hunt, for the Respondent
HEARD: April 26, 2019
JUSTICE S. NAKATSURU
[1] Mr. Filip Soczewski is a young man who finds himself dealing with the mental health system in Ontario. He has found himself frustrated by it. In particular, Mr. Soczewski does not agree with the medications he is taking. For the moment, he has no choice but to take the medications. Mr. Soczewski is subject to a Community Treatment Order (henceforth “CTO”) under the Mental Health Act, R.S.O. c. M.7. The CTO was issued on June 18, 2018. He has also been found incapable of consenting to treatment under the Health Care Consent Act 1996, 1996 c. 2, Sch. A. His father, Jerry Soczewski, is his substitute decision-maker. On October 11, 2018, the Consent and Capacity Board (henceforth the “Board”) reviewed both these issues and confirmed the CTO and the finding of incapacity. Mr. Soczewski has appealed those decisions to me.
A. MR. SOCZEWSKI’ S CLINICAL HISTORY
[2] At the time of the hearing, Mr. Soczewski was 24 years old and and was living with his parents. Mr. Soczewski has a commerce degree from Queen’s University. He has had past employment as a stock manager at a grocery store. Mr. Soczewski has a diagnosis of schizoaffective disorder (bipolar type) with manic and psychotic symptoms that began in 2012 when he was still at university.
[3] In the summer of 2013, Mr. Soczewski began behaving oddly and exhibiting paranoid beliefs. He became involved in a family altercation which led to police being called and eventually his hospitalization. He was given medication and discharged. However, he discontinued his medication. He began to exhibit beliefs that his father was hiring on the black market and his mother, who is a nurse, was illegally selling opioids. Mr. Soczewski received further treatment and his symptoms subsided. He went back to school in 2014 and 2015. He did not continue his medication at this time.
[4] In 2015, Mr. Soczewski’s father described his son as being in a psychotic state. As a result of his paranoia, Mr. Soczewski believed that Russians were spying on him through appliances, electrical cords, and parking meters. He further became disruptive at school and he was banned from one of the main halls on campus because of his conduct which included turning off the building’s lights and throwing out other student’s food before they had finished. His family also became concerned about his suicidal thoughts. In 2015, a psychiatrist noted these concerns. In one instance, Mr. Soczewski called his mother in despair and went to a lake. At this time, Mr. Soczewski was not on medication. He was eventually admitted into Kingston General Hospital in November of 2015. Mr. Soczewski was ultimately placed on his first CTO. He received medication. His father served as his substitute decision-maker. While under his CTO, Mr. Soczewski took his medication and attended his medical appointments. He took a reduced course load at school and graduated.
[5] The CTO lapsed. Mr. Soczewski stopped taking his medication in June of 2016. His father and mother decided to do so as Mr. Soczewski seemed to be doing fairly well and they noticed some side effects of the medication. In the fall of 2016, Jerry Soczewski began to see a mental health deterioration in his son. Mr. Soczewski no longer was interested in looking for a job and found a job at a corner convenience store. He again began to believe he was an agent and was being spied upon. By Christmas, he was paranoid, unusually recklessly spending, behaving oddly at a place he rented, and was verbally aggressive and abusive to his mother and sister.
[6] In January 2017, Mr. Soczewski was admitted to Credit Valley Hospital. He was placed on a CTO and treated with anti-psychotic medication. He showed some improvement and was discharged. This CTO expired in the summer of 2017. Mr. Soczewski showed disruptive behaviour at home including aggressive behaviour towards his family. They called police on a few occasions. Mr. Soczewski also consumed alcohol and used non-prescription “party drugs.” Due to his worsening symptoms in 2017, he had a brief admission at Credit Valley Hospital without a CTO. In September of 2017, Mr. Soczewski was asked to leave the family home due to his behaviour. In November of 2017, he was placed on a Form 1 by Dr. De Luca at Credit Valley Hospital. He was later discharged but admitted to Trillium Hospital.
[7] In December of 2017, Mr. Soczewski was put on yet another CTO. He was treated with Flupenthixol and lithium. It was in January of 2018 while on the CTO, that Mr. Soczewski attempted suicide by overdosing on prescribed Epival. Mr. Soczewski testified that he did so as he was angry at having to take medication and was feeling hopeless. On February 22, 2018, there is a psychiatric consult note that stated “Inner suicidal thoughts that are passive.” Mr. Soczewski denied any current suicidal intention or plan. He did admit to having searched means for suicide online. He also wrote a letter stating that his psychiatrist and parents have removed his freedom and that he’s tortured by treatment. He reported these to them, but thought that people did not care. When asked if he would want to live if not on his current CTO, he answered “obviously.”
[8] From January to April 2018, Mr. Soczewski showed improvement. He complied with his CTO, took his medication, and attended regular follow-up appointments with his clinical team. He returned to work, socialized, and stated his relationship with his family improved as he moved back home. In April of 2018, Dr. De Luca ceased treating Mr. Soczewski with Flupenthixol out of concern for side effects. Only lithium was given.
[9] In early June 2018, Mr. Soczewski stopped taking his lithium. His condition deteriorated. He was subsequently hospitalized as an involuntary patient at Trillium Hospital and then transferred to Center for Addiction and Mental Health (“CAMH”) on June 14, 2018. On June 18, he became a voluntary patient and the subject CTO was issued. He remained in hospital for two months at CAMH. His mental state and legal status fluctuated. At times he was a voluntary patient. Other times he was an involuntary patient. During these months, Mr. Soczewski presented as psychotic and disorganized. There was one occasion he was unable to fill a water glass from the tap and instead drank from the toilet. Other times, he would shower in his underwear before putting on dry clothing and used toilet water to wash his feet. He would wear a pillowcase to protect himself from infection.
[10] After he was made a voluntary patient on July 5, 2018, Mr. Soczewski left against medical advice. He returned to his parent’s home where he shut off the electricity, stole a bicycle, and turned on the gas of the barbecue. At 3 a.m., Mr. Soczewski ‘s parents awoke and found Mr. Soczewski standing in front of their bed shining a flashlight on his phone. On July 6, he was re-admitted to CAMH on a Form 1. On July 7, he began receiving treatment with an anti-psychotic drug, Abilify. During that summer, Mr. Soczewski continued to express delusions that he was a member of the Canadian military. On August 18, 2018, the police informed CAMH that Mr. Soczewski had sent an individual at e-Health Ontario an email with an attached poster that indicated that the person at e-Health was “wanted” by Interpol.
[11] It was the opinion of his treatment team that the Abilify improved Mr. Soczewski‘s clinical presentation. On August 24, 2018, Mr. Soczewski was discharged from CAMH. At the time of the Board hearing, Mr. Soczewski remained an outpatient. Dr. De Luca testified that he was encouraged by Mr. Soczewski‘s progress and that although there was still some paranoia, he was doing much better.
B. STANDARD OF REVIEW
[12] The determination of capacity in the particular circumstances of Mr. Soczewski and the decision to confirm or revoke the CTO in light of his particular circumstances are questions of mixed fact and law. As a result, as the parties have agreed, the standard of review is reasonableness.
[13] In light of the Board’s expertise, deference is warranted. In Starson v. Swayze, 2003 SCC 32, McLachlin C.J. held 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.
C. ANALYSIS
1. The Board’s Decision on Incapacity was Reasonable
[14] The test for capacity is found in s. 4(1) of the Health Care Consent Act 1996:
4 (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.
[15] I find that the Board’s decision on incapacity was reasonable. The Board referred to the proper legal test and reviewed the evidence at some length and detail. It also made findings of credibility. It found Jerry Soczewski to be a credible witness. And that he was a loving and concerned father although he became frustrated at times with his son’s behavior. The Board noted some flaws in Dr. De Luca’s evidence but determined they were not a result of any credibility issues. It also commented that Mr. Soczewski was intelligent, well-read, and testified articulately. However, it determined where Mr. Soczewski ‘s evidence conflicted with Dr. De Luca’s, the Board preferred Dr. De Luca’s because it was supported by the evidence contained in the progress notes of other doctors and health practitioners and by the testimony of Jerry Soczewski. This finding must be given deference.
[16] The Board determined that Mr. Soczewski was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question. They relied upon Dr. De Lucas’s opinion. The Board found that Mr. Soczewski was unable to appreciate that he was suffering from the symptoms of mental illness, had deteriorated when he refused medication, and had done well when treated with medication. In my opinion, the evidence and the clinical history amply support this finding.
[17] Further, the Board found that Mr. Soczewski could not appreciate the benefits of regular monitoring while on a CTO both in terms of watching for suicidal ideation and the side effects of the medication. They found that without being on a CTO, Mr. Soczewski would stop his medication completely; a conclusion based on his past actions, the documented reports in the record, and indeed, Mr. Soczewski ‘s own testimony. Indeed, his greatest objections have been to the taking of medication. This lack of insight was a feature of Mr. Soczewski‘s mental illness.
[18] On appeal, Mr. Soczewski essentially re-argues the case on this issue. It is submitted that on the totality of the evidence, Mr. Soczewski did not do well on a CTO and did better off of it both in terms of his symptoms, his social and family relationships, and his employment. However, all these matters were considered by the Board. When they concluded that they preferred other evidence and came to a different conclusion from the evidence, they made no error in doing so. The lack of Mr. Soczewski’s insight into his illness, the benefits of taking medication and being on a CTO, and his clinical history of relapses when not following medical advice, reasonably support the finding made that due to his illness, Mr. Soczewski was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision as required under the section. The Board’s conclusion was within a range of conclusions that could reasonably have been reached on the law and evidence.
[19] Thus, I do not accept this ground of appeal.
2. The Board’s Decision on the CTO was Reasonable
[20] The criteria for issuing or renewing a CTO is found in s. 33.1(4) of the Mental Health Act which states:
- A physician may issue or renew a community treatment order under this section if,
(a) during the previous three-year period, the person,
(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or
(ii) has been the subject of a previous community treatment order under this section;
(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;
(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,
(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,
(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,
(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,
(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and
(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;
(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;
(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and
(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996. 2000, c. 9, s. 15.
[21] The only criteria challenged on the appeal is the Board’s determination under s. 33.1(c)(iii) that without the CTO, Mr. Soczewski would likely due to his mental disorder, suffer substantial mental deterioration. On this issue, the Board concluded:
The panel found that there was clear and compelling evidence that FS would suffer substantial mental deterioration without the CTO and determined that this criterion was met. The panel found clear evidence, based on FS’s history, and his beliefs that medication had no beneficial effect on him and had serious side effects, that FS would discontinue medication without a CTO. The panel determined that there were repeated examples of decompensation when FS stopped taking his medication.
The panel considered Ms. Szigeti’s submissions that there was little evidence for FS’s symptoms: the panel considered FS’s difficult relationship with his family, including the evidence of the videotaped incident, and their alleged ulterior motives. The panel also considered FS’s position that Dr. De Luca had not obtained true and neutral collaterals. The panel acknowledged that FS had a difficult relationship with both his family and his doctors, but considered the evidence that these relationships were better when FS was well. Ultimately, the panel determined that FS’s history of mental illness, the continuing paranoia, and his beliefs were well documented and obtained from multiple sources.
The panel determined that there was sufficient evidence of mental disorder and decompensation, even if the panel discounted his family’s collateral information. FS suffered from a mental disorder, lacked insight into this disorder, and wished to stop taking medication and stop seeing his doctors. The panel found that there was clear evidence that FS would like (sic) was likely to suffer substantial mental deterioration just as he had in the past.
[22] After the requisite degree of probing, these conclusions of the Board are reasonable.
[23] To begin, there is substantial evidence supporting the fact that Mr. Soczewski does not believe he has a mental illness and believes that medication provides him with no significant benefit. There is a long history of this lack of insight. In addition to this, the clinical history shows that Mr. Soczewski, when not on a CTO, does not take medication and mentally decompensates, often to the point of requiring hospital admission.
[24] The Board further accepted Dr. De Luca’s opinion that without treatment, he foresaw an increase in aggression, suicide/self-harm attempts, and general functional deterioration. In the past, without treatment and when unwell, Mr. Soczewski had psychotic symptoms such as paranoid and persecutory delusions and disruptive conduct.
[25] Jerry Soczewski, whose testimony was accepted by the Board, testified that from January to June of 2018, while on his previous CTO, Mr. Soczewski was not verbally abusive to his family, pleasant rather than abusive to his cousins, active at family gatherings, obtained employment at his old job, was developing an app with friends and went with friends to a cottage. Jerry Soczewski explained that his son had recently quit his job but, in his view, it was because Mr. Soczewski started cooking methamphetamine by the side of his parents’ home which led to the request that he leave his home.
[26] When I take into account the number of times Mr. Soczewski was put under a mental health form, his lack of insight, the history of non-compliance with recommended treatment, his past behavior when decompensated with its repeated hospital admissions, the opinion of Dr. De Luca, the clinical documentation, and the testimony of his father, I see nothing unreasonable about the Board’s decision. The type of deterioration is not simply odd behavior but “substantial” mental deterioration. It has in the past affected his ability to function in different spheres of his life. It also has led to mental functioning that was significantly impaired.
[27] One issue that is worthy of highlighting is Mr. Soczewski’s attempted suicide in January of 2018, and how that figured in the Board’s decision. Mr. Soczewski submits that given that he actually attempted suicide when he was on a CTO, he would suffer less mental deterioration if he was not under such an order.
[28] On appeal, the parties agree on appeal that to proper evaluate the evidence in determining the question whether the criteria under s. 33.1(c)(iii) has been met, a comparative approach must be taken. Said in another way, the question is whether Mr. Soczewski would suffer substantial mental deterioration if not on a CTO as compared with if he was on a CTO.
[29] While I agree that this comparative approach must inform the analysis, it is not simply a matter of tallying up two separate score sheets and determining whether a patient was better or worse on-or-off a CTO. A qualitative analysis must be undertaken. Such an analysis will inherently be imprecise since there are such numerous variables that affects a person’s life that it is impossible to tease out why someone might appear better or worse whether on a CTO or off a CTO at any point in their life. Given this, the prominence of expert evidence on this issue is highlighted.
[30] Thus, using a comparative approach, Mr. Soczewski submits that it was while on a CTO, that in January of 2018, he attempted suicide. It is argued that given this and his feelings about being forced to take medications, Mr. Soczewski’s mental state is much worse while on a CTO then off.
[31] While there is a logical attractiveness to this argument, I cannot accept it.
[32] To begin, I fully agree that Mr. Soczewski’s attempted suicide and his subjective feelings about the CTO are important factors for the Board to consider under the criteria. Attempts at suicide must always be taken seriously. The reasons are obvious. They can lead to tragic consequences. They are relevant to mental and emotional functioning. They can be symptomatic of a mental disorder. They can also affect the application of the test in making a comparative analysis. In this case, Mr. Soczewski argues that it was his being forced to take medication while on the CTO that led to his feelings of hopelessness which caused his suicide attempt.
[33] The Board did not simply dismiss this suicide attempt. They devoted a full section of their reasons to the risk of suicide and the role of the Board. They reviewed the evidence on this point, including Mr. Soczewski’s testimony about his views and feelings regarding being on medication.
[34] While I acknowledge that some of the Board’s comments could be interpreted as not fully appreciating the significance and the relevance of the January 2018 suicide attempt, I conclude that they made no error in concluding that it was not determinative. They rightfully concluded that they should not apply any notion of a “best interest of the patient” test and were required to apply the statutory criteria. In doing so, they looked at the whole of the evidence and measured it against the legal tests they had to apply. They rejected Mr. Soczewski’s submissions to look at the criteria through a “biomedical” lens.
[35] There are a number of reasons why, despite the suicide attempt of 2018, the Board’s decision regarding s. 33.1(c)(iii) remains reasonable. One is the evidence that in the past, when he was not on a CTO or on medication, Mr. Soczewski expressed other suicidal thoughts or ideations. Thus, there are reasons other than being on a CTO that are linked to his thoughts of suicide. Secondly, the risk he might pose to himself would be lessened by the greater monitoring and vigilance a CTO would provide. Further, as the Board pointed out, there was other evidence of substantial mental deterioration while not on a CTO including the evidence of Dr. De Luca which could be pointed to. In other words, satisfaction of this criteria did not just depend upon whether Mr. Soczewski was at greater risk of suicide on a CTO or off a CTO. The whole of the evidence must be considered when it comes to assessing whether a substantial mental deterioration if not on a CTO has been proven. It is not just a matter of a risk of suicide. Finally, while Mr. Soczewski tried to commit suicide in January of 2018, the evidence also showed that subsequent to that time, while still on the CTO and while he was medicated, Mr. Soczewski was relatively much improved. It was only after he stopped his medication in June, that he decompensated to the point he was admitted back in CAMH. The progress notes before the Board demonstrated this:
• March 26, 2018, shows good progress. He is on lithium. Tolerating it well with no side effects. His mood is fine. His sleep and appetite are good. No psychotic symptoms. He is meeting friends. His relationship with parents is good. Looking forward to Easter. Meds were continued.
• April 20, 2018, Mr. Mr. Soczewski met with Dr. De Luca. He was angry about taking his medications. However, there were no psychotic symptoms. Mr. Soczewski’s familial connections seem fine. His father said his mood is better on lithium. Other treatment options were discussed including psychosocial treatment. The plan included increasing lithium and taking him off flunaxol due to side effects. He was compliant with meds although resistant to taking them and the CTO. His family is supportive.
• May 29, 2018, Mr. Soczewski is better, smiling, working fulltime. Limited insight. He is on lithium but Mr. Soczewski does not feel he should continue it. There was no overall change. He was unhappy with the CTO. Denied any suicidal ideation.
• On June 8, 2018, his father called and said Mr. Soczewski is not taking lithium for a week and becoming more paranoid. On lithium, his father says he is better. Dr. De Luca notes that if not treated with it he was likely to deteriorate leading to substantial impairment.
• June 25, 2018, Mr. Soczewski is a voluntary patient at CAMH. He continues to display unusual behavior with threatening postures/gestures. Not physically aggressive. He denies any experiences in the past that could be resolved by medication despite absence of such experiences during medications. On the mental status exam, notes include: “Wearing hospital mask regularly, refuses to sit down during interview, stares intensely and does not answer questions at times; affect guarded and irritable; denies all pathological thought content”. Assessment is active psychosis.
• July 5, 2018, Mr. Soczewski discharges himself against medical advice at 1 a.m. He went home and tried to shut down electricity and took bike. Parents extremely distraught and worried. Plan was to start treatment that day.
• July 12 and August 1, 2018, Mr. Soczewski is back in hospital. There are continuing symptoms including a belief he was made a commander-in-chief of the military and inability or unwillingness to shower without disrobing and drinking from the toilet.
[36] From this history and clinical symptoms, it was reasonable for the Board to conclude that in the recent events leading up to the CTO, despite the suicide attempt in January of 2018, Mr. Soczewski became better as time progressed under the CTO. It was only when he decided to stop taking medication while off the CTO that his mental condition substantially deteriorated. This was not a minor decompensation. In my view, Mr. Soczewski’s mental condition fluctuates from time to time; there is no linear path to his struggles with his illness. This fluctuation happens both when he is on a CTO and off of it. However, there is a clear and compelling foundation for the conclusion that he is likely due to his mental disorder to suffer substantial mental deterioration when he is not on a CTO.
[37] In sum, taken in its entirety including their consideration of the January 2018 suicide attempt, I find that the Board’s decision regarding confirming the CTO was reasonable.
[38] Mr. Soczewski’s appeal is dismissed.
Justice S. Nakatsuru
Released: May 14, 2019
COURT FILE NO.: CV-18-607224-0000
DATE: 20190514
IN THE MATTER OF an appeal from the a decision of the Consent and Capacity Board Pursuant to the Mental Health Act, S.O. 1990, chapter M.7, schedule A, as amended
AND IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board Pursuant to the Health Care Consent Act, S.O. 1996, chapter 2, schedule A, as amended
AND IN THE MATTER OF
FILIP IGNACY SOCZEWSKI
A Resident of
Toronto, Ontario
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FILIP IGNACY SOCZEWSKI
Appellant
– and –
DR. VINCENCO DE LUCA
Respondent
REASONS FOR JUDGMENT
NAKATSURU J.
Released: May 14, 2019