COURT FILE NO.: 17-0470 Brockville DATE: 2019/05/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

R.K. Appellant – and – Dr. A.G. Ahmed and W.D. Respondents

Counsel: Michael Davies, Counsel for the Appellant Marie-Pierre T. Pilon, Counsel for Dr. A.G. Ahmed W.D. Self-represented

HEARD: April 29, 2019

Ruling on Appeal

Leroy, j.

Introduction

[1] The appellant, R.K., is a patient in the forensic treatment unit of the Brockville Mental Health Centre (BMHC). He appeals three rulings of the Consent and Capacity Board (CCB) dated June 23, 2017 with reasons released July 3, 2017 in which the Board:

1. Found that the document R.K. offered as his power of attorney for personal care, R.K. drafted and signed in 2007, did not confer to W.D. the requisite authority to give or refuse consent to proposed treatment to preclude W.D.’s Form C application;
2. Confirmed that R.K. is incapable with respect to treatment of schizophrenia with antipsychotic medication because he lacks the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment with antipsychotics; and
3. Denied W.D.’s application for appointment as representative with respect to treatment decisions to give or refuse consent on behalf of R.K. to treatment with antipsychotic medication because he failed to show the appointment would be in R.K.’s best interests.

[2] R.K. asks that the decisions of the Board be quashed and a new hearing be ordered before a fresh panel of the Consent and Capacity Board.

[3] R.K. was and remains a patient of Dr. Ahmed at the BMHC. Dr. Ahmed's opinion is that the appellant suffers from paranoid schizophrenia. For years, R.K. has been considered incapable with respect to treatment with antipsychotic medication and has been treated with the consent of the Public Guardian and Trustee acting as substitute decision maker.

A. Appellant's Background

[4] R.K. is 63 years old. He is a patient of the Forensic Treatment Unit of the BMHC. Dr. Ahmed is his psychiatrist. W.D. is his long-time friend.

[5] R.K.’s life path turned in 2006. He incurred property tax arrears on his farm. When the municipality seized and sold the property, R.K. refused to leave. On June 1, 2006, the OPP assisted the owners in taking possession. R.K. hid in a closet. Negotiations ensued but ended badly. A shot was fired from the closet, injuring an officer. R.K. was charged.

[6] R.K. gave an accounts of the event to the police and psychiatrists. He did not deny shooting the firearm. He claimed defence over himself and his property. He advised that in the years before the shooting, he underwent a "spiritual awakening." Part of the new philosophy involved refusal to pay municipal taxes. Attempts to avoid payment included designating the farm as the "Epistical Apostolic Fellowship of the Kingdom of Yahweh" asserting that the land was an embassy immune from government taxation authority. R.K. denied his registered name of R.K., asserting it to be a fiction of the government. He subscribed to "Captain Rodney Malak Yahweh." His beliefs distinguish his individuality from the juridical being.

[7] On February 4, 2011, R.K. was found not criminally responsible on account of a mental disorder in relation to the shooting incident. In the view of the psychiatric experts, at the time of the incident, R.K. was suffering from a psychosis, and his actions in shooting the OPP officer were brought on by a web of persecutory and religious delusions.

[8] In the years between the offence and the NCR verdict, R.K. was detained in jail or at the BMHC. For a time, he was unfit to stand trial. After the NCR verdict, R.K. came under the jurisdiction of the Ontario Review Board (ORB) and was detained at the Forensic Treatment Unit, in Brockville. R.K. refused to accept he had a mental illness or need for treatment, and insisted he was detained by virtue of unlawful conspiracy.

[9] R.K. was considered incapable of making treatment decisions in respect of schizophrenia and is treated, against his will, with injectable antipsychotic medication with the consent of the Public Guardian and Trustee.

[10] R.K.'s condition improved enough so that by September 2016, he was discharged from the hospital still under an ORB detention order. Initially, he stayed in supervised accommodation and subsequently moved to a shared apartment. His relationship with his family improved.

B. The statutory framework and R.K.’s issues

[11] The proceedings before the Board started when W.D. filed a "Form C" application under section 33 of the Health Care Consent Act, 1996 (the HCCA), seeking appointment as representative to make treatment decisions for the appellant, R.K.

[12] W.D.'s application, if successful, would have him replace the Public Guardian and Trustee as the substitute decision maker. W.D.'s application was supported by the appellant, but opposed by Dr. Ahmed.

[13] Subsection 33(2) provides that a person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person.

[14] W.D. is such a person.

[15] Subsection 33(3) provides that Subsection (2) does not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority.

[16] R.K. asserts he conferred the requisite authority to W.D. by a power of attorney for personal care that complied with statutory formality on February 9, 2007. Accordingly, the first determination was whether that document conferred authority on W.D. to give or refuse consent to the proposed treatment.

[17] As noted, the Consent and Capacity Board (CCB) concluded it did not. R.K. argues that the CCB misconstrued the meaning of subsection 33(3).

[18] R.K. argued that the CCB decision on this issue contravenes the purposes of the HCCA.

[19] The purposes of the HCCA set out is section 1 include:

The purposes of this Act are,

(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by,

(i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding,

(ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and

(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to.

[20] R.K.’s values, beliefs and wishes on February 9th, 2007 were and remain to refuse treatment with antipsychotic medication.

[21] An attorney appointed by a power of attorney for personal care conferred with authority to give or refuse consent is bound to approach the decision in accordance with the statute. The HCCA outlines principles as to how an authorized attorney or representative is to approach a decision whether to give or refuse consent to treatment. Section 21 provides that: A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.
2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests. (Italics by writer)

Best interests

(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

1. Whether the treatment is likely to, i. improve the incapable person’s condition or well-being, ii. prevent the incapable person’s condition or well-being from deteriorating, or iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.
2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

[22] The second issue decided by the Board was whether the appellant was capable of making his own treatment decisions. The HCCA provides that a Form C application to appoint a representative automatically triggers a review by the Board of the health care practitioner's finding of incapacity. If the incapable person is found by the Board to be capable, there is no need to appoint a representative.

[23] Subsection 4(2) provides that a person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

[24] The measure of capacity with respect to treatment under the HCCA is stated in subsection 4(1) as follows: 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] The CCB decided after hearing from Dr. Ahmed and R.K. that R.K. is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[26] That left the CCB with the decision regarding appointment of W.D. as R.K.’s representative for the purpose of giving or refusing consent to treatment involving antipsychotic medication.

[27] Subsection 33(6) sets the criteria the CCB is to consider on this application. The Board may make an appointment under this section if it is satisfied that the following requirements are met:

1. The incapable person does not object to the appointment.
2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.
3. The appointment is in the incapable person’s best interests.

[28] The CCB, after hearing Dr. Ahmed, R.K. and W.D. and after reviewing Dr. Ahmed’s CCB Summary dated June 19, 2017, concluded that appointing W.D. to the position of R.K.’s representative with authority to give or refuse consent to treatment involving the administering of antipsychotic medication to R.K. is not in R.K.’s best interests.

C. Standard of Review

[29] I can state the applicable standard no better than Justice Kristjanson in Z.(Z.) v. Shafreo, 2016 ONSC 6412 at paragraphs 16 and 17.

“[16] Both the appellant and the respondent submitted that the standard of review of the Board’s decisions on questions of fact or mixed fact and law are reasonableness, but the standard of review on a question of law is correctness. In so doing, they relied on the Supreme Court of Canada’s decision in Starson v. Swayze, 2003 SCC 32, 1 S.C.R. 722 [“Starson”]. Starson was decided before the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [“Dunsmuir”], which significantly changed the jurisprudence on review of decisions of administrative tribunals. As a result, in oral argument counsel agreed that the definition of reasonableness that should be used is that set out by in Dunsmuir. The Court held at para. 47: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[17] Following Dunsmuir, it is clear that questions of fact, mixed fact and law, discretion and policy are entitled to deference, and are thus reviewed on a reasonableness standard. It is also clear in the post-Dunsmuir universe that many questions of law are now to be reviewed on a reasonableness standard. However, as that issue was not argued before me, for the purposes of this appeal, I will review any extricable questions of law on a correctness standard.”

[30] Further direction can be gleaned from the Supreme Court in Law Society of New Brunswick v. Ryan, 2003 SCC 20, 1 S.C.R. 247 paras. 54-56:

“54 How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness? The answer is that a reviewing court must look to the reasons given by the tribunal.

55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). (underscored by writer) This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.”

D. The Power of Attorney for Personal Care

[31] The appellant’s position is that the CCB’s interpretation of subsection 33(3) of the HCCA is incorrect because:

i. It is unnecessarily restrictive; ii. It is incompatible with the purposes of the HCCA; iii. It is incompatible with the Substitute Decisions Act; iv. It is incompatible with the Powers of Attorney Act; and v. It radically alters the law of Ontario, thereby undermining potentially thousands of powers of attorney.

[32] I disagree. The CCB declined to weigh in on the efficacy of R.K.’s power of attorney for personal care as contemplated by the Substitute Decisions Act and the Powers of Attorney Act.

[33] The HCCA represents a careful and balanced response to the problem of accommodating the individual autonomy of the mentally ill person and the aim of securing effective treatment for mentally ill people.

[34] Subsection 33(3) only precludes a Form C application when the power of attorney for personal care confers or grants authority to give or refuse consent to treatment. There is no provision that restricts the donor from declaring wishes regarding treatment or not within the grant. Indeed s. 21 contemplates just that.

[35] A medical practitioner does not have authority to act on the refusal or consent to treatment from an attorney who does not have the authority to refuse or grant consent.

[36] In the case at bar, R.K. did not confer or grant authority to give or refuse consent. The only grant of authority was to refuse consent. The effect is to deny W.D. the authority to apply discretion that matched with R.K.’s best interests when it is not possible to honour his known wishes, values and beliefs - subsection 21(2). The result then would be the status quo with the PGT.

[37] I do not accept that the ruling undermines incumbent powers of attorney for personal care. There is a clear bright line between the granting of authority subject to the strictures of s. 33(3), s. 21 together with the expression of wishes and preferences within that authority and a limited grant of authority to only refuse treatment.

Conclusion

[38] Whether the standard of review is correctness or reasonableness the CCB did not err in the ruling.

E. R.K.’s capacity to consent to treatment

[39] 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. This requires the cognitive ability to process, retain and understand the relevant information. Secondly, the person must be able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. This requires the patient to be able to apply the relevant information to his or her circumstances and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[40] At a capacity hearing, the burden is on the physician to prove incapacity on the civil standard of balance of probabilities.

[41] Dr. Ahmed opined that R.K. suffers from schizophrenia - paranoid type, that is in partial remission as the result of treatment with antipsychotic medication.

[42] The CCB concluded that Dr. Ahmed acknowledged R.K.’s ability to understand information relevant to treatment with antipsychotics and so the first part of the test for incapacity was not met.

[43] For the second part of the test, the Court in Starson held that a 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 treatments;
• 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 to the attending physician and disagrees with the treatment recommendation he has the ability to appreciate the decision he makes.

[44] The right to refuse unwanted medical treatment is fundamental to a person's dignity and autonomy. This right is equally important in the context of mental illness, and the presence of a mental illness must not be conflated with incapacity. The issue is solely the patient’s capacity. The adjudication does not consider the wisdom of the patient’s decisions or best interests.

[45] There is a distinction between actually appreciating the consequences of treatment decisions, and being capable of appreciating the consequences.

[46] “A patient will fail the second part of the test if his condition results in an inability to recognize he is affected by its manifestations. In Pararajasingham v. Dr. Druss, Kurke J. noted that the second branch of the test of capacity (appreciation), “is not met where a person is unable to apply the information about the proposed treatment to his or her own situation: Khan v. St. Thomas Psychiatric Hospital…Thus if the patient’s condition keeps him from recognizing that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and therefore will be unable to appreciate the consequences of his decision”: Starson at para. 79.

[47] A patient need not agree with the psychiatrist's diagnosis or characterize the condition as an "illness" or in a negative way in order to be found capable. Nevertheless, where it is shown that a person has a mental "condition", in order to be found capable, the person must be able to recognize that he or she is affected by the manifestations of the condition.

The CCB reasons

[48] The CCB “concluded that R.K. lacked the ability to appreciate the reasonable foreseeable consequences of a decision or lack of decision about treatment with antipsychotics. The evidence provided by Dr. Ahmed was detailed, thorough and substantial. He provided both his written opinion and oral evidence that R.K. continued to reject his diagnosis of schizophrenia, did not appreciate the positive changes he had demonstrated from taking antipsychotics, and was unable to appreciate the risk of substantial deterioration he would suffer if he stopped taking this medication.”

[49] The Board concluded that although the Appellant acknowledged the benefit of treatment of schizophrenia with antipsychotic medication for others, he did not see any benefit for himself. He was unable to appreciate the positive changes he had demonstrated from taking antipsychotic medication since commencing his treatment.

[50] The appellant submits that the Board either misapprehended the appellant, or, if they apprehended his evidence correctly, applied a more rigorous capacity test than permitted by Starson. In either event, the appellant pleads he is entitled to a new hearing to correctly determine the issue of his treatment capacity.

[51] R.K.’s position is that in conducting the incapacity analysis, the Board misapprehended his evidence on a vital point. The Board found that the appellant testified: "modern science cannot treat symptoms of schizophrenia and the only risk of not taking antipsychotics was that he [the appellant] would suffer withdrawal symptoms." The Board added that when asked about whether he might be concerned about being detained in hospital again if he came off antipsychotics, the appellant responded that Q96 was a viable alternative with some manageable withdrawal symptoms.

[52] The appellant submits that his view on the potential effects of withdrawing from the use of antipsychotic medication is vital to an analysis of his capacity to make treatment decisions. He concedes that if the Board is correct in finding he does not see any risk, other than withdrawal symptoms, of coming off the medication, it would be hard to argue against its conclusion that the appellant is incapable. R.K. states that this finding does not fairly capture the appellant's full testimony before the Board.

[53] The appellant agrees he is of the view he had been misdiagnosed, decompensation as a result of coming off the medication was highly unlikely and he believed Q96 was likely to ameliorate his condition.

[54] R.K. described schizophrenia as a disease where the individual may hear voices, hallucinate or suffer delusional thinking. The cause is unclear and there is no cure. There are medications that treat the illness in some individuals. In his own case he had not seen the manifestations of the illness in himself. Nevertheless, he accepted that there may have been "something such as stress that threw him over the edge of some sort of mental breakdown." R.K. saw the causes of his mental health difficulties as external or stress related, not something internal to himself.

[55] R.K. acknowledged he was told that if he stopped taking Invega it would result in decompensation. He believed, however, that taking the proper dose of the vitamin supplement Q96 would minimize any such risks. Additionally, his faith would give him the strength to overcome decompensation.

[56] R.K. said he considered the possibility he was wrong about there being no decompensation and he was either willing to accept the risk, or he may have to take the prescribed medication for the rest of his life. R.K. argues that so long as he recognises the possibility decompensation will occur, as he said in testimony, he is entitled to make decisions that others would regard as foolish.

[57] R.K. acknowledged that if he stopped antipsychotics and the Q96 failed to stop the decompensation then "maybe we should either go slower or I am stuck with this for life." But he would like to give the alternative to antipsychotics his "best shot."

[58] Mr. Davies underscored the point that the Starson standard does not require him to agree with the doctor's analysis, nor does it require him to weigh risks and benefits the way doctor or a reasonable person would weigh them.

[59] Dr. Ahmed testified that the Appellant’s delusions would likely flourish in the event of decompensation and the discontinuation of the medication would ultimately lead to deterioration and exacerbation of his symptoms.

[60] Dr. Ahmed said that the Appellant “does not believe that without medication he is likely to return to the situation that he was, i.e. when his delusion was florid and affecting his day-to-day interactions”. There is evidence the Appellant believes that his ongoing symptoms are caused by the antipsychotic medication itself. Dr. Ahmed said:

R.K. does not believe – I mean consistently, he’s told me that he doesn’t believe that he has a mental illness, he has indicated that if I said he has a mental illness, that was my opinion. He believes just like W.D., that nutrition, if anything it was nutritional deficiencies and the stress that he was going through at the time of his index offence. He further believes that if there was any difficulty that he has at all is as a result of the medication and that he’s going to suffer from serious symptoms if the medication were discontinued.”

[61] In Dr. Ahmed's clinical view, R.K. is incapable with respect to treatment of schizophrenia with antipsychotic medication. R.K. does not believe he suffers from a mental disorder and continues to hold the belief that he is under the ORB because of conspiring forces within the health and criminal justice systems. He does not accept that the antipsychotic medications have altered his thought processes for the better. R.K. believes that any current mental health symptoms are caused by the antipsychotic medication. R.K. does not appreciate that the progress made, including improvement that permitted community reintegration. Nor, in the doctor's view, does R.K. appreciate that his delusions would likely flourish again if the current medication was stopped, and he could return to the mental state he was in at the time of the shooting in 2006.

Conclusion

[62] It was open to the Board to conclude that while R.K. acknowledged there may be decompensation he does not believe it.

[63] Referring back to paragraph 43, all of the evidence testimonial and written and the Board’s reasons permit the conclusion that R.K. does not appreciate the foreseeable benefits and risks of treatments; the alternative courses of action available; and the expected consequences of not having the treatment. In other words, that R.K. is incapable of coming to terms with the consequences of the treatment decision or lack of decision is consistent with Dr. Ahmed’s evidence.

[64] This aspect of the appeal is dismissed.

F. W.D. as Representative

[65] The CCB concluded that W.D.’s views against conventional medicine and the proposed treatment precluded him from weighing the benefits this treatment provided to R.K. in the past or the risks to R.K. if he were to stop this treatment so his appointment could not be in R.K.’s best interests.

[66] The Board did not accept W.D.’s professed commitment to dialogue and listen to Dr. Ahmed’s clinical opinion and concerns about treatment options.

[67] The Appellant submits that because W.D. changed his stance with respect to the treatment of schizophrenia throughout his testimony when pressed with treatment questions, this led to a misapprehension of W.D.’s evidence by the CCB.

[68] W.D. has known R.K. for about 20 years. Over recent years, he has been in contact with R.K. once or twice a week, primarily by telephone. He said they discuss R.K.'s relationship with the treatment team at Brockville. W.D. said he urges R.K. to be attentive to the opinions of his doctor. W.D. said that the only change he noted in R.K. after he began the anti-psychotic regimen was that R.K. cannot hold thoughts. He did not say he observed a difference/improvement in behaviour.

[69] W.D. said he understood that R.K. had been diagnosed with schizophrenia. He had not, however, had a chance to sit down and talk with Dr. Ahmed about the diagnosis, nor about treatment. He would like to do this and arrive at the best treatment decision for R.K. When asked by the Board what he thought the best treatment was, W.D. said he could not be certain until he had a full discussion with Dr. Ahmed. W.D. said he saw his role as representative to make decisions in R.K.'s best interests, taking his wishes into consideration. He saw it as a serious responsibility. He understood that antipsychotic medication had both benefits and side-effects and that for some individuals there is no alternative but to treat with antipsychotic medication.

[70] W.D. volunteered that Q96, a vitamin product he himself uses, might be of some benefit to R.K. He was challenged as to his belief that this product, or nutrition generally, is the only way to treat disorders of the brain, such as schizophrenia. In response, W.D. explained that, from his understanding, psychotropic drugs treat symptoms and can do so effectively. They do not cure the disease. He said that the only way to cure the source of any problem in the body is that which God has given us, which is natural product. He said he believes there is an alternative to pharmaceuticals in every case only because the body is an holistic organism. W.D. emphasized he did not "know better" than the doctor and that R.K.'s best interests would have to include what the doctor thinks.

[71] When asked if W.D. thought R.K. enjoyed greater freedom on the pharmaceuticals, W.D. said “Yeah, but that has nothing to do with the drugs; that’s got to do with Dr. Ahmed who approved his release.”

[72] R.K. submits that the Board’s ruling about W.D.’s application to be appointed as representative significantly misapprehended the evidence of W.D. and, ultimately, came to conclusions that were profoundly unfair to him.

[73] The Appellant cites four examples to illustrate the Board's unfair approach to W.D.'s testimony:

[74] Firstly, “the Board found as a fact that W.D. had heard all the evidence at the hearing as to how the appellant had improved on antipsychotic medication and Dr. Ahmed's evidence regarding the likelihood of deterioration should he come off the drugs and, despite this, persisted in wanting to have a discussion with Dr. Ahmed. The difficulty with this conclusion is that Dr. Ahmed testified after W.D.. He had not, therefore, had a full opportunity to hear Dr. Ahmed's evidence and, even in the event that this had been so, a substitute decision maker is entitled to sit down with the doctor proposing the treatment and take the time necessary to come to a considered decision. The Board's expectations were improper and unfair to W.D.”

[75] W.D. lamented the fact that he had not been able to talk with Dr. Ahmed. W.D. was present for Dr. Ahmed’s testimony in direct, for Mr. Davies’ cross-examination and experienced opportunity to cross-examine Dr. Ahmed personally. It is apparent from W.D.’s cross-examination that he too does not accept that R.K. is delusional.

[76] The dialogue during cross-examination and in W.D.’s closing submissions left open the impression that the purpose of the dialogue from W.D.’s perspective was directed at validating his beliefs about there being two of everyone and rationalizing R.K.’s apparent delusions, rather than a review of what treatment would best improve R.K.’s well-being, prevent or reduce the rate of deterioration in his condition or well-being and whether R.K.’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

[77] Secondly, “the Board found that W.D. had initially taken the position that antipsychotics were of no use in treating schizophrenia and that Q96 was the proper treatment, only changing his view later in his testimony. This is an unfair reading of W.D.’s views. He had initially testified only that he believed that lack of nutrition may be the cause of schizophrenia. At no point did he testify that antipsychotics "were of no use in treating mental disorder," as the Board claimed. On the contrary, he made it clear during his testimony that although he recognized the adverse side effects of antipsychotics, there may be no alternative to them.”

[78] W.D. said “there is an alternative to pharmaceuticals in every case.” The Board did not believe W.D.’s stated commitment to work with the doctors. That was an available determination based on all the evidence.

[79] Thirdly, ‘the panel found that W.D. "backtracked" from an initial position of holding that Q96 was the only possible treatment to a position where he claimed to be open-minded about treatment and prepared to discuss the matter with Dr. Ahmed. Again, this is unfair to W.D., who maintained throughout his testimony that he was prepared to and wanted to speak to Dr. Ahmed before making any final decisions.”

[80] A conclusion that these discussions would be at cross-purposes was a possible acceptable outcome defensible on the evidence and open to the board.

[81] Fourthly, “the Board found that W.D. had counselled the appellant not to pay his taxes. This is a serious allegation by the Board given it was the appellant's refusal to pay property taxes that led to the shooting of the officer. There was no evidence before the Board that W.D. had counselled the appellant in this way. Again, the Board misapprehended W.D.’s evidence and failed to give him a fair hearing.”

[82] The Board relied on a hearsay statement attributed to R.K.’s mother on page 8 of the Report to the Board for the hearing – “The mother states that W.D. encouraged R.K. in his refusal to pay taxes.”

[83] W.D. denied that was an aspect of his involvement at the time during testimony. R.K.’s mother is deceased so in terms of admissibility the evidence was necessary. In terms of threshold reliability this information was gathered as part of the fitness to stand trial process in a clinical context years ago and not in any way related to W.D.’s form C application.

[84] It was within the Board’s ambit to accept and rely on that allegation and prefer it to W.D.’s stance.

[85] Dr. Ahmed, in his report to the Board and in his testimony, expressed concerns over W.D.'s potential role as substitute decision maker. Dr. Ahmed has never had a conversation about treatment parameters with W.D.. Dr. Ahmed’s knowledge of W.D.'s views was learned in the context of hearings such as this one before the Board.

[86] Dr. Ahmed completely rejected the idea of using vitamins to combat schizophrenia.

[87] Dr. Ahmed’s evidence on this issue was that “W.D., just like R.K., does not believe that R.K. suffers from a major mental disorder as it is recognized by other doctors in the practice of medicine. W.D. believes R.K. has nutritional deficiencies and the best treatment is to use micro-nutrients as contained in Q96. He believes that R.K. is going to have significant withdrawal symptoms and, if anything, that he should be afraid of, it is a result of those withdrawal symptoms”.

[88] And, “given W.D.’s bizarre belief system and that he does not believe that R.K. suffers from a mental illness that benefitted from treatment, he is unable to objectively consider that R.K.’s well-being will deteriorate significantly if he is not treated, or that treatment with antipsychotic medication will continue to improve or maintain R.K.’s wellbeing in that continued treatment facilitates his ability to manage in the community.”

[89] The Board weighed all the evidence and did not believe W.D. would take into account of the information regarding R.K.’s improvement on antipsychotics and serious deterioration without them. The Board sided with Dr. Ahmed’s assessment.

[90] The Board’s conclusion based on all the evidence was a possible acceptable outcome defensible on the evidence and open to the board.

Conclusion

[91] This aspect of the appeal is dismissed.

[92] The orders of the Board in this matter are sustained.

The Honourable Mr. Justice Rick Leroy

Released: May 31, 2019