Court File and Parties

COURT FILE NO.: CV-19-616686

DATE: 20191106

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: O.D., Applicant

AND:

Dr. Justin Geagea, Respondent

BEFORE: Pollak J.

COUNSEL: Adam McIver, for the Applicant

Kendra Naidoo, for the Respondent

HEARD: September 13, 2019

ENDORSEMENT

[1] The Appellant, O.D., appeals from a Decision of the Consent and Capacity Board (“Board”), dated March 14, 2019, with Reasons dated March 19, 2019, confirming the Respondent’s finding that the Appellant is “not capable” to consent to treatment with electro-convulsive therapy (“ECT”). Ms. O.D., seeks to set aside the Decision. The adjudication of Ms. O.D’s capacity by the Board is pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”).

[2] The police brought the Appellant to the Centre for Addition and Mental Health (“CAMH”) on December 24, 2018 as a result of “increased agitation, confusion and an inability to care for herself”. She was admitted to CAMH as an involuntary patient on December 27, 2018. On February 22, 2019 She was found incapable of consenting to ECT and applied to the Board to review that finding.

[3] At that time, she was 54 years old, single, living in supportive housing and unemployed. Her sister and brother are her substitute decision makers, who have given their consent to ECT.

[4] She was diagnosed with schizoaffective disorder, bipolar type, approximately 29 years ago and had been admitted to CAMH several times in the last 8 years. As of March 13, 2019, she has been in the hospital more than 450 of the past 700 days. Many of these hospitalizations were caused by “substantial mental deterioration as a result of non-adherence with psychiatric medication”. This substantial mental deterioration has caused an increased frequency of episodes with the episodes becoming increasingly harder to treat.

[5] Before her most recent admission, on December 24, 2018, she was followed by a CAMH Assertive Community Treatment (“ACT”) team.

[6] The evidence is that although she had previously experienced significant clinical improvement with medication, she has shown substantial mental deterioration even when she was adherent to medications. Medications were ineffective and resulted in side effects that significantly impacted her physical health. A course of ECT was therefore proposed for Ms. O.D.’s treatment. In this regard, she was assessed by the Respondent Dr. Geagea on February 22, 2019, who found her “incapable of consenting to treatment with ECT”. Both of her substitute decision makers consent to ECT.

[7] The Respondent and the Appellant testified at the CCB hearing. There were no other witness.

[8] This CCB Appeal is on grounds that the Board erred in fact and law in finding O.D. incapable of consenting to the ECT treatment proposed which it is argued is a class of treatment “the use of which amounts to cruel and unusual punishment, contrary to her rights under section 12 of the Charter of Rights and Freedoms (“Charter”)”. The Appellant also submits that the Board’s decision is unfair or unreasonable.

[9] The Appellant submits there are four issues in this appeal: (1) whether or not the use of ECT amounts to cruel and usual treatment or punishment, contrary to her rights under section 12 of the Charter; (2) the statutory test for capacity and its application to O.D.’s circumstances; (3) whether the Board was unfair or unreasonable; and (4) whether or not the Board compromised its impartiality in this case. The Appellant’s position is that she was “capable to make her own treatment decisions” with respect to ECT. Specifically, the Appellant submits that the Board erred in concluding that she was “unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision” based on the opinion of the Respondent.

[10] She submits that the evidence before the Board could not establish that she was “unable to appreciate the reasonably foreseeable consequences of making or not making a decision regarding the proposed treatment”.

[11] A Notice of Constitutional Question, dated July 15, 2019, was served and filed. The Attorney General of Canada advised that it “would not intervene in this matter”.

[12] The Appellant requests the following relief:

(a) “that the Decision of the Board, dated March 14, 2019, be set aside or quashed;

(b) that the Appellant be declared capable of consenting to the proposed treatment;

(c) in the alternative, an Order remitting the matter back to the Board for rehearing, in whole or in part, in accordance with such direction as this Honourable Court considers proper;

(d) a declaration that the use of ECT amounts to cruel and unusual treatment or punishment, contrary to the Appellant’s rights under section 12 of the Charter;

(e) that in any reporting upon this case in the media or in the reporting of the Reasons for Decision that there be no publication of the names of the Appellant or members of her immediate family who share her surname, should her surname become known;”

[13] The Respondent submits that the Court ought to dismiss the Appellant’s claim for a remedy pursuant to s. 24(1) of the Charter as this Court and the Court of Appeal have held that it is not appropriate to “append” a new Charter claim to an appeal from the Board; rather, the appropriate procedure is to commence a separate application. The Charter claim it is submitted, exceeds the scope of this appeal as neither, the Board, CAMH or the Government are parties to this Appeal and there is an insufficient evidentiary record. As a result, the claim for remedies pursuant to s.24(1) of the Charter are not properly raised in this appeal.

[14] Alternatively, it is submitted that the Appellant has failed to establish a legal or evidentiary basis to support the Charter claim.

[15] This decision of the Board was on the issue of “whether the Appellant was incapable of consenting or refusing consent to ECT on February 22, 2019”. The Appellant seeks “a declaration that the use of electroconvulsive therapy amounts to cruel and unusual punishment contrary to section 12 of the Charter.” This submission requires a detailed analysis into the nature of the treatment at issue, its uses, benefits, risks and other effects. Further, non-parties who are alleged to have breached the Appellant’s Charter rights, have the right to make submissions. I find that the Appellant’s allegation that the administration of ECT violates s. 12 of the Charter does exceed the scope of this appeal. Our jurisprudence from this Superior Court and the Court of Appeal has held that the correct procedure to raise a Charter claim is to bring a separate, originating process.

[16] The only parties are the Appellant and Dr. Geagea. The Appellant has not alleged a basis upon which Dr. Geagea could be held responsible for these violations by, or in a position to respond on behalf of, either CAMH or the Board.

[17] The only question before the Board was whether the Appellant was capable of consenting to ECT treatment at the time of the hearing. The evidentiary record before this Court and the Board’s findings are limited to that issue. There was no evidence of the risks, benefits, and appropriateness of ECT. The only evidence with respect to ECT was whether the Appellant was able to weigh information on ECT. The Board had no jurisdiction to make any finding of the propriety or appropriateness of ECT.

[18] I find that the evidentiary record is inadequate to permit this Court to address these issues. The only evidence before this Court is in the Record of Proceedings and Transcript which addresses only the Appellant’s capacity to consent to treatment with ECT.

[19] The Board did not find that ECT would be beneficial for the Appellant. It limited its analysis to the applicable statutory test of whether the Appellant was able to appreciate she was affected by the manifestations of her mental condition and whether she was able to appreciate the potential benefits and risks of taking or not taking the treatment.

[20] With respect to the merits of this Appeal, the Respondent submits that the evidentiary record before the Board provided a clear, cogent and compelling basis on which the Board could reasonably find incapacity on the part of the Appellant. The Board applied the correct legal test and did not misapprehend the evidence. The Decision was supported by the evidence and is, therefore, reasonable. It is submitted that there is no basis for this court to interfere with the Board’s finding that the Appellant was not “capable” with respect to treatment with ECT.

[21] The issue on this appeal is the evaluation of the Board’s application of the test for capacity to the facts before it, which is a question of mixed fact and law. The standard of review is one of reasonableness.

[22] I find that the Board did not “reverse the onus” at the Hearing as alleged by the Appellant. The Reasons state that the “onus of proof is on the health practitioner” and “there is no onus whatsoever on the patient”. In its Reasons, the Board examined the evidence to evaluate whether incapacity was established on a balance of probabilities.

[23] The Supreme Court of Canada set out the standard of review for Board decisions in the case of Starson v Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32. Questions of law are reviewed on a standard of correctness. Questions of mixed fact and law, or questions of fact alone are reviewed on a standard of reasonableness. Justice McLachlin stated:

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 [emphasis added].

[24] There is no de novo review on Appeal from a decision of the Board with respect to a patient’s capacity. The Board is a specialized expert tribunal entitled to deference on questions of fact and mixed fact and law within their expertise. The Board is in a better position to assess witnesses’ credibility, reliability and to make findings of fact.

[25] The Board is entitled to deference, provided its findings were within a range of conclusions that could have been reasonably reached. Interference is appropriate only if the Board made an unreasonable decision that is not within a range of possible, acceptable outcomes.

[26] I find that the Board correctly identified and applied the test for capacity to consent to treatment set out in section 4(1) of the HCCA. “A person is capable with respect to treatment… if the person is able to understand the information that is relevant to making a decision about the treatment… and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.

[27] The Board’s decision was based on Ms. O.D.’s inability to recognize that she was affected by the symptoms of her condition, even though she acknowledged having bipolar disorder. She also testified that this was “caused by antidepressant medication” and “spiritual wickedness”, that her real problem was not getting up in the morning, and that she had “no manner of illness”. Such evidence is consistent with Dr. Geagea’s opinion that the Appellant was not able to appreciate her symptomatology, that she believed her issues were related to voodoo, religion, and the devil, and that she was unable to recognize she was suffering from a mental condition.

[28] In considering the second part of the test for capacity, it was appropriate for the Board to consider whether or not Ms. O.D. appreciated that she is affected by the manifestations of a mental illness or mental condition.

[29] I find that the Board applied the criteria set out by the Supreme Court in the Starson v. Swayze [2003] 1 S.C.R. 722, 2003 SCC 32 decision that “if a patient is demonstrated to have a mental condition, then that patient must be able to recognize the possibility that she is affected by that condition”. The Board’s decision was based on the Appellant’s inability to recognize that she was affected by her mental condition. There is therefore no basis for a finding that the Board erred in its application of the test for capacity.

[30] The Respondent relies on the evidence before the Board that the Appellant’s mental condition rendered her unable to weigh the risks and benefits of ECT. Dr. Geagea testified that the Appellant’s concerns about ECT were delusionally based, including the belief that her brain would be taken. The Appellant was delusionally misinterpreting the information she was being given about ECT. She also denied any potential benefits of ECT, despite being informed of the potential benefits. It is submitted that the Appellant’s concerns about side effects of ECT are not evidence of her capacity. Rather, such evidence is relevant to whether Ms. O.D. has a rational justification for refusing the treatment. Because the Board found that Ms. O.D. was not able to recognize she was affected by the manifestations of her mental condition, it was reasonable for the Board to determine that she was not able to appreciate the reasonably foreseeable consequences of consenting to or refusing ECT to treat that condition. I find that as the Appellant did not have the ability to appreciate the possible benefits of ECT and had a delusional belief on the consequences of taking it, the Board could not reasonably conclude that the Appellant was capable of weighing the information.

[31] The Appellant was suffering from the following symptoms of schizoaffective disorder, bipolar type: hypertalkative, pressured speech, flight of ideas, grandiose delusions, persecutory delusions, somatic delusions, hearing voices, hallucinations, disinhibition, sexualized behaviour, and disorganized thinking. Further, the Appellant was consistently unable to acknowledge that she was affected by the manifestations of her mental condition. Dr. Geagea testified that the Appellant’s inability to appreciate the foreseeable consequences of a decision or lack thereof was itself a direct consequence of her mental condition. I therefore find that the evidence of Dr. Geagea and the Appellant as well as the documentary evidence, provided the Board with the necessary evidence upon which the Board could reasonably confirm Dr. Geagea’s finding of incapacity.

[32] I find that the Board applied the correct legal test and did not misapprehend the evidence. The Decision was supported by the evidence and is, therefore, reasonable. As a result, there is no basis for interfering with the Board’s finding that the Appellant was not capable with respect to treatment with ECT.

[33] Further, I find that the Reasons and Record do not support a conclusion that the Board was biased. References to “Dr. Rotenberg” and a CTO are typographical errors which are not relevant to the Board’s decision. It is clear from the Reasons that the Board’s Decision was based on evidence heard at the Hearing.

Pollak J.

Date: November 6, 2019