COURT FILE NO.: CV-19-614024

DATE: 20190920

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ghalib Islam, Appellant

AND

Dr. Christian Ulic, Respondent

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, 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, c. 2, Sched. A, as amended

BEFORE: Nishikawa J.

COUNSEL: Ghalib Islam, in Person

Erin Chesney and Keary Grace, for the Respondent

Allan Welman, amicus curiae

HEARD: September 19, 2019

ENDORSEMENT

Overview

[1] The Appellant, Ghalib Islam, is a 37-year old single man living in Toronto. He is the eldest son of a family that emigrated from Bangladesh when he was seven years old. He obtained an M.A. in creative writing and, in 2013, published a novel to some critical acclaim. Mr. Islam was diagnosed with paranoid schizophrenia in 2008.

[2] Since January 2019, Mr. Islam has been an involuntary patient at Mount Sinai Hospital in Toronto, after family members obtained a Form 2 Order for Examination under s. 16 of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”).

[3] The Respondent, Dr. Christian Ulic, Mr. Islam’s treating psychiatrist, determined that the requisite criteria had been met under the MHA for Mr. Islam’s admission as an involuntary patient. Dr. Ulic further concluded that Mr. Islam was incapable of consenting to treatment with anti-psychotic medication pursuant to s. 4 of the Health Care Consent Act, S.O. 1996, c. 2, Sched. A (the “HCCA”).

[4] Mr. Islam appeals from the decision of the Consent and Capacity Board (the “Board”) dated January 29, 2019, with reasons dated February 4, 2019 (the “Decision”), confirming Mr. Islam’s involuntary status in hospital and confirming the finding that Mr. Islam was incapable of consenting to treatment with anti-psychotic medications.

Analysis

The Parties’ Positions

[5] At the hearing, Mr. Islam submitted that he does not suffer, and has never suffered, from a mental illness, and that there was no evidentiary basis before the Board to support a finding that he has a mental illness. Mr. Islam denies the incidents of violence alleged by his family members and that led them to obtain the Form 2. The Appellant takes the position that he is being detained illegally contrary to the Universal Declaration of Human Rights. He further submits that he has diplomatic immunity by virtue of having won the Nobel Prize for peace and for literature in April 2014 and his position as a United Nations envoy. Mr. Islam stated that the Supreme Court of Canada and International Criminal Court have already determined at hearings held earlier this year that he did not have a mental illness and should be set free. Mr. Islam requests that he be released in order to pursue his work and writing.

[6] Mr. Welman, as amicus curiae, submits that the Decision was not reasonable because: (i) the Board failed to consider the fact that Mr. Islam had been released by doctors after brief stays in the hospital approximately ten times in the past; (ii) there was no evidence to corroborate the family members’ accounts of Mr. Islam’s attacks on them and, relatedly, the Board erred in relying upon uncorroborated hearsay evidence of Mr. Islam’s family members; and (iii) the Board erred in finding that Mr. Ghalib was not capable of foreseeing the consequences of not accepting treatment because the Board equated mental illness with incapacity and required Mr. Islam to agree with Dr. Ulic’s diagnosis.

[7] The Respondent maintains that, based on the totality of evidence before the Board, the Decision was reasonable.

The Standard of Review

[8] The standard of review of a decision of the Board on a question of mixed law and fact is reasonableness: Starson v. Swayze, 2003 SCC 32, at paras. 5 and 88. This means that the court does not review the matter de novo but, rather, determines whether the Decision fell within the range of conclusions that could reasonably be reached on the law and evidence.

[9] In Starson v. Swayze, at para. 86, a majority of the Supreme Court stated that “[t]he Board is uniquely positioned to hear viva voce evidence of the patient and physicians. These factors suggest that determinations of capacity should generally be entrusted to the relative expertise of the Board.”

The Appellant’s Admission as an Involuntary Patient

[10] The Board confirmed Dr. Ulic’s decision to admit Mr. Islam as an involuntary patient under s. 20(5) of the MHA, which requires that the following criteria be met:

(i) The patient is suffering from mental disorder of a nature or quality that will likely result in:

(a) Serious bodily harm to the patient;

(b) Serious bodily harm to another person; or

(c) Serious physical impairment of the patient.

Unless he or she remains in the custody of a psychiatric facility; and

(ii) The patient is not suitable for continuation as an informal or voluntary patient.

[11] The Board found that Mr. Islam was suffering from a mental disorder that was of a nature or quality that would likely result in serious bodily harm to another person unless he remained in hospital and that he was not suitable for involuntary patient status. The Board did not confirm Dr. Ulic’s finding that Mr. Islam was likely to cause serious bodily harm to himself.

[12] The evidentiary record before the Board included, in addition to Dr. Ulic’s testimony, the testimony of Mr. Islam’s brother, Farzad Islam (“Farzad”), and his sister, Tanzil Islam (“Tanzil”). In addition, there was an affidavit from a former roommate, Michelle Douma, and letters from Mr. Islam’s father, Nazrul Islam (“Nazrul”), his mother, Naznima Islam (“Naznima”), as well as from numerous friends who knew Mr. Islam from his twenties when his illness began to manifest itself.

[13] There was ample evidence before the Board of Mr. Islam’s mental illness, extending back to a diagnosis of paranoid schizophrenia in 2008. The Board found that Mr. Islam has at various times suffered from delusions and acted out based on those delusions. For example, Mr. Islam believed that his mother had killed three of her babies before he was born. In the summer of 2014, he asked for a childhood photograph of himself and then attacked his mother when she went to get it. Mr. Islam held her down, with a remote control to her neck like a knife, and pulled out her hair. While no one witnessed the attack, Farzad saw his mother soon after and Tanzil kept the hair in a bag and took it to the hospital with her. In another incident in 2016, Farzad was moving Mr. Islam’s personal items from his parents’ house to the garage because they were infested with bed bugs. Mr. Islam attacked Farzad and bent his finger back to the point that a ligament was torn. The following day, Mr. Islam tried to move his things back into the house. When his mother attempted to stop him, he punched her in the eye. While no one witnessed this attack either, both Farzad and Tanzil gave evidence of having seen their mother’s black eye.

[14] The affidavit of his former roommate, Ms. Douma, describes two incidents in 2018, including one where Mr. Islam pushed her against a wall and scratched at her and one where he followed her to her car in a menacing manner. In addition, Mr. Islam incorrectly claimed to own both his parents’ home and the house he lived in with Ms. Douma.

[15] The Board found that Mr. Islam’s unprovoked attacks on his mother and Ms. Douma, as well as his verbal threats and gestures, were all made in the context of him experiencing significant psychosis.

[16] The incident that triggered Mr. Islam’s latest admission into the hospital was a near-assault of Tanzil at an ATM, where Mr. Islam was about to punch her when another individual entered the area.

[17] Before the Board, Dr. Ulic gave evidence of his observations of Mr. Islam, including his belief that the hospital food was poisoned or contaminated with feces, and that microwaving it would address that. Mr. Islam has made blog posts that he is being persecuted by a religious group and that an individual has threatened to kill him.

[18] I do not accept Mr. Welman’s submission that in finding that serious bodily harm was likely, the Board relied upon uncorroborated hearsay evidence, contrary to s. 14 of the Evidence Act, R.S.O. 1990, c. E.23. In Starson v. Swayze, at para. 115, the Supreme Court confirmed the admissibility of hearsay evidence in proceedings before the Board.

[19] Not only is the Board entitled to rely upon hearsay evidence, corroborating evidence need not be in the form of testimony: Farquhar-Lockett v. Jones, 2016 ONSC 346, at para. 70. In M.M. v. De Souza, 2015 ONSC 2362, at para. 38, aff’d 2016 ONCA 155, this court held that the requirements of s. 14 of the Evidence Act are satisfied in cases where the physician’s evidence was consistent with the letters submitted to the Board by a patient’s family members. The Board was alert to the need to weigh hearsay evidence carefully. The Board did not admit certain materials whose authorship was not adequately identified.

[20] In fact, the incidents described in Naznima’s letter were corroborated by Tanzil’s testimony. Moreover, Farzad’s testimony about the attack on him was not hearsay. The Board found both Tanzil and Farzad to be “clear and straightforward” witnesses.

[21] Mr. Welman’s submissions on the Board’s factual findings would require this court to engage in the type of parsing and second-guessing that is not appropriate on a reasonableness standard of review.

[22] In any event, in applying s. 20(5) of the MHA, the test is not actual bodily harm, but whether serious bodily harm is likely: M.T. v. Bibr, 2015 ONSC 7029, at para. 46. The absence of criminal charges is not determinative. In determining the likelihood of serious bodily harm, the Board can take into consideration a long history of escalating aggressive behaviour: M.T. v. Bibr, 2015 ONSC 7029, at para. 47. The record before the Board showed increasingly serious incidents in the past few years.

[23] In relation to the fact that Mr. Islam was released from the hospital on numerous occasions in the past, this did not preclude Dr. Ulic from making a determination under s. 20(5) of the MHA, nor did it require that he explain or rebut those past releases. While the past releases may be relevant to Mr. Islam’s medical history, Dr. Ulic was not required to address them specifically. Dr. Ulic’s determination was based on his assessment of Mr. Islam and the surrounding circumstances.

[24] Mr. Welman suggests that the Board erred in accepting Dr. Ulic’s speculation as to why Mr. Islam was repeatedly released in the past. While Dr. Ulic offered an explanation, that Mr. Islam was not violent while in the hospital and because it was more convenient to release him, there was no requirement that he do so. This in itself does not render the Decision unreasonable.

[25] Mr. Welman further suggests that an adverse inference ought to have been drawn from the failure to produce the discharge notes from Mr. Islam’s previous hospital admissions. In fact, Dr. Ulic brought those notes to the hearing, but it was the Board that determined that it would not consider the notes. In any event, given that the Board relied significantly on more recent accounts of violent conduct, the previous releases from hospital would be of limited relevance.

[26] Based on the totality of the evidence before the Board, I find the Board’s determination that Mr. Islam suffers from a mental condition of a nature or quality that will likely cause serious bodily harm to another person, and that he is not suitable for continuation as an informal or voluntary patient, was reasonable.

The Appellant’s Capacity to Consent to Treatment

[27] Under s. 4 of the HCCA, a person is capable with respect to treatment if they: (i) are able to understand the information relevant to making a decision about treatment; and (ii) are able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[28] The Board found that Mr. Islam was incapable of consenting to certain treatment with anti-psychotic medication because, although he was able to understand the information relevant to making a decision, he was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[29] Mr. Welman submits that the Board equated the presence of a mental illness with incapacity, and that Mr. Islam cannot be found unable to appreciate the reasonably foreseeable consequences of a decision because Dr. Ulic did not sufficiently explain the consequences of treatment.

[30] The Supreme Court’s analysis in Starson is relevant to Mr. Islam’s circumstances. In that case, the Supreme Court stated as follows:

While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition.

As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

Starson, at para. 79

[31] Contrary to Mr. Welman’s submission, neither Dr. Ulic nor the Board equated mental illness with incapacity, nor did they require that Mr. Islam acknowledge that he had a mental illness. The Board considered the evidentiary record, including Dr. Ulic’s evidence of his discussions with Mr. Islam about treatment. The Board also considered Mr. Islam’s submissions at the hearing and specifically found that Mr. Islam’s “insistence that the oral evidence about his diagnosis, symptoms, paranoid delusions and the associated behaviours were legal, not mental health issues also demonstrated his inability to recognize this information as pertinent to him, to his detention in hospital or at the hearing.” Based on its careful consideration of the evidence, the Board found that Mr. Islam “was not able to consider the possibility that he was affected by a mental condition” and that he “was unable to recognize the manifestations of his mental condition in himself.”

[32] In addition, the Board considered and rejected Mr. Welman’s submission that Dr. Ulic failed to produce evidence that he had provided Mr. Islam with information about his illness and potential treatment.

[33] In any event, there was evidence before the Board that Dr. Ulic had discussed treatment with Mr. Islam, specifically, that he had brief trials of anti-psychotic medications in the past and that it was his view that his illness would respond to treatment and improve his quality of life and functionality. Dr. Ulic further explained to Mr. Islam that without treatment, he feared there was a risk that Mr. Islam would end up “in jail or in a forensic system.” In addition, Mr. Islam declined Dr. Ulic’s offer that Mr. Islam meet with the clinical pharmacist to discuss specific medications.

[34] Based on its finding that Mr. Islam is unable to recognize his mental condition and its manifestations, the Board concluded that he is unable to appreciate the reasonably foreseeable consequences of his decisions regarding treatment. This was a reasonable conclusion based on the application of the correct legal principles to the evidence before the Board.

Conclusion

[35] Based on the foregoing, I dismiss the Appellants’ appeal.

[36] At the hearing, Mr. Islam asked how he would receive my decision. Ms. Chesney undertook to send the decision to Dr. Ulic, to be brought to Mr. Islam. In the event that Dr. Ulic is unavailable, I direct that Ms. Chesney ensure that my endorsement is forwarded to Mr. Islam at Mount Sinai Hospital by the end of the day.

Nishikawa J.

Date: September 20, 2019