COURT FILE NO.: 19-80526

DATE: 2019/12/18

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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

XIANG ZHANG

Appellant

– and –

DR. HEIDI KING

Respondent

R. Mitchell Rowe

Brooke Smith and Barbara Prikrylova, for the Respondent

HEARD: November 22, 2019 (at Ottawa)

REASONS FOR JUDGMENT

LABROSSE, J.

Overview

Overview

1The is an appeal from the decision of the Consent and Capacity Board (“the Board”) dated June 14, 2019 with respect to the Appellant, Mr. Xiang Zhang. The Board found that Mr. Zhang was incapable of consenting to treatment and that the statutory criteria for a Community Treatment Order (“CTO”) was met pursuant to s. 33.1(4) of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). In short, the Board was not satisfied that Mr. Zhang had an ability to appreciate the reasonably foreseeable consequences of engaging or not engaging in treatment and that he would be deprived of necessary treatment that would assist him in maintaining his current level of functioning.

2The Appellant’s documents challenge the Board’s decision on two grounds:

a. Was the issuance of the CTO 28 days after the examination of the Appellant and the entering into the Community Treatment Plan (“CTP”) in breach of the MHA?

b. Did the Board err in finding that the Appellant required continuous treatment or care and continuous supervision in the community under s. 33.1(4)(c)(i) of the MHA?

3At the hearing of the appeal, the Appellant advised the Court that he was no longer pursuing the second ground of appeal.

Facts

Facts

4The Appellant is 50 years of age and resided in Ottawa with his wife and two children. He was first admitted to the Ottawa Hospital, Civic Campus in May 2016. At the time of his admission, he endorsed delusional beliefs that he was being followed by spies for the Chinese government. He remained in hospital for six days as a voluntary patient and was treated with Risperidone. Upon discharge, he was referred to Outpatient Psychiatry. A CTO was initiated on July 26, 2016 and renewed on January 26, 2017.

5On June 9, 2017, the Appellant was admitted to the Ottawa Hospital, Civic Campus for a second time following an encounter with the Royal Canadian Mounted Police. He was aggressive and confrontational with officers. He was charged with assaulting an officer and convicted of that offence. He was also admitted to the hospital under a Form 1 and was then found incapable of consenting to the treatment by a physician who is not a party to these proceedings. He was treated with the antipsychotic medication, Risperidone Consta. He was discharged from the hospital on July 20, 2017. His delusional beliefs were in remission at that time and he was noted to be cooperative. Notwithstanding, the Appellant was also found incapable with respect to his finances and the Office of the Public Guardian and Trustee was named as his substitute decision-maker (“SDM”) as his wife also shared the delusions. While hospitalized under a Form 3, the Appellant continually refused antipsychotic medications.

6Dr. King is a psychiatrist working at the Ottawa Hospital. The Appellant first saw Dr. King as an inpatient. At the initial consultation, the Appellant told Dr. King that he did not suffer from any mental illness and therefore did not require any antipsychotic medication.

7The CTO dated January 6, 2017 expired on July 25, 2017 and was not renewed. The CTO was re-issued on December 8, 2017 and again on October 31, 2018.

8The following chronology is relevant to the appeal:

a. April 12, 2019 - Dr. King examined the Appellant and signed a CTP together with Form 49 – Notice of Intention to Issue or Renew a CTO.

b. April 17, 2019 - CTO was signed by the SDM.

c. April 26, 2019 - the Appellant received rights advice and a Form 50 – Confirmation of Rights Advice was signed on that same date.

d. April 26, 2019 – the Appellant signed the Application to Board to Review CTO.

e. April 30, 2019 - the October 31, 2018 CTO expired.

f. May 10, 2019 – Dr. King signed the CTO and a Notice to the Appellant of Issuance or Renewal of CTO.

9At some point, Dr. King changed the antipsychotic medication to Invega Sustenna which allowed the Appellant to receive the injections monthly. The medication was again changed to Invega Trinza which allowed him to receive injections every 12 weeks as opposed to monthly.

Standard of Review

Standard of Review

10The applicable standard of review on appeal from a decision of the Board is correctness on a question of law and reasonableness on a question of mixed fact and law or fact alone: see Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at paras. 5, 83-88.

11In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190, the Supreme Court of Canada expanded on the meaning of the correctness and reasonableness standards:

When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

12Further in Starson, the Supreme Court of Canada found that an unreasonable decision is one that is not supported by reasons that can stand up to a somewhat probing examination.

13As this appeal involves questions of fact or questions of mixed fact and law, I should not grant the appeal unless I conclude that the Board’s decision was unreasonable.

Position of the Parties

Position of the Parties

14The Appellant focuses on the 28-day period between the signature of the CTP on April 12, 2019 and the issuance of the CTO on May 10, 2019 and states that Dr. King’s explanation for that delay was inadequate. The Appellant states that he was left in a state of uncertainty for an unreasonable period of time in these circumstances and that the responsibility for ensuring that the legislative protections are carried out rests with the physician who issues or renews the CTO. Consequently, the delay between the signature of the CTP and issuance of the CTO was unreasonable and the CTO should be revoked.

15The Respondent does not dispute that time between the signature of the CTP and the issuance CTO must be reasonable but argues that in these circumstances, there is evidence to support the Board’s finding that the CTO was renewed in conformity with the provisions of the MHA. Thus, the Board’s finding was reasonable, and the appeal should be dismissed.

Analysis

Analysis

16The MHA imposes fixed timelines for certain steps that are part of the community treatment process. Section 33.1(12) allows for a CTO be renewed within one month after its expiry. Also, s. 33.1(4)(c) prescribes that an examination occurs within 72 hours before entering into the CTP. Finally, s. 14.3(1)-(2) of the R.R.O. 1990, Reg. 741, requires that rights advice be given “promptly”.

17Conversely, the MHA does not prescribe any specific timelines between the signing of the CTP and the issuance of the CTO.

18In DY (Re), 2016 CanLII 101851 (Ont. CCB), at p. 5, the Board inferred that there cannot be undue delay between the signing of the CTP and the issuance of the CTO.

19I agree with the interpretation of the MHA given by the Board in DY whereby there should not be undue delay between the signature of the CTP and the issuance of the CTO. In order to assess that delay, the Court must consider the following chronology referenced above:

− The CTP was signed by Dr. King on April 12, 2019. The CTP informed the Appellant of his entitlement to consult a rights adviser before the CTO could be issued or renewed.

− The CTP was signed by the SDM on April 17, 2019. This was five days after its signature by Dr. King.

− The Appellant and the SDM received Rights Advice on April 26, 2019.

− The October 31, 2019 CTO expired on April 30, 2019.

− The CTO was issued on May 10, 2019.

20The initial 5-day delay in having the SDM sign the CTP cannot lie at the feet of Dr. King. There was evidence that the SDM who had carriage of the Appellant’s file was not immediately available due to holidays. Similarly, while s. 33.1(4)(e) of the MHA places the responsibility on the physician to arrange for the provision of rights advice, the system that has been put in place arranges for rights advice to be provided by the rights adviser. Thus, the 11-day delay in the provision of the rights advice cannot either lie at the feet of Dr. King.

21This leaves a 14-day period between the rights advice being given and the issuance of the CTO. During that period, the CTP is dealt with administratively at the hospital. It should be noted that the CTO was issued on a date when the Appellant attended for an examination of Dr. King. There is no indication in the record if that delayed the issuance of the CTO.

22During her testimony, Dr. King explained that within the Hospital administration, there is a CTO coordinator who provides the paperwork to the physician and that three weeks to a month delay is not uncommon for the Ottawa Hospital. Further, Dr. King acknowledged that rights advice in the Ottawa area has not always been the timeliest but that it is not unusual for the rights advice to be given in a two-week period. Dr. King could certainly have been more explicit in her evidence to explain the process within the Ottawa Hospital and the process for arranging for rights advice. Her evidence in this regard was somewhat lacking as it would have been helpful for her to breakdown the various processes that are followed during the 28-day period in question.

23With that evidence, the Board concluded at p. 9 of its decision:

Finally Mr. Rowe submitted that the panel should consider that there was a period of one month between the CTP being entered into and the date on which the CTO was issued. He did not refer the panel to any statutory provision or case law that established this as an issue affecting the validity of the CTO. Section 33.1(12) of the MHA permitted Dr. King to renew the CTO during a period of time up to and including one month following the expiry of the previous CTO. The previous CTO expired on April 29, 2019. Dr. King renewed the CTO on May 10, 2019. The panel found that this renewal was made in conformity with the provisions of the MHA.

24While there may be different ways of attributing the chronology of time between the signature of the CTP by Dr. King and the issuance of the CTO some 28-days later, the Board essentially concluded that there was no undue delay and that the renewal was made in conformity with the provisions of the MHA.

25That finding falls within the range of possible, acceptable outcomes and is certainly defensible in respect of the facts and the law. Furthermore, when considering the timelines for the SDM involvement, the provision of rights advice and the administrative process required by the Ottawa Hospital, I conclude that there was no undue delay in these circumstances in having the CTO issued 28-days after the signature of the CTP but a better understanding of the administrative process within the Ottawa Hospital would have been helpful.

26Consequently, the appeal is dismissed.