Court File and Parties
Court File No.: CV-19-0108-000 Date: 2020-01-09
Ontario Superior Court of Justice
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
Between:
W.S. Appellant (E. Morris, for the Appellant)
- and -
Dr. Ramprasad Bismil Respondent (J. Szabo, for the Respondent)
Heard: October 9, 2019 at Thunder Bay, Ontario
Before: Mr. Justice W. D. Newton
Reasons for Decision
Overview
[1] Can a declaration of incapacity to manage property be used to pursue treatment objectives for a mental health patient? In this case, particularly, can a person be declared incapable of managing property to prevent her from purchasing alcohol?
The Facts
[2] W.S. is a 20-year-old with significant mental health issues. Her most recent diagnoses were developmental disability, alcohol use disorder with state-dependent suicidality/aggression during intoxication, depressive symptoms and Cluster B traits (lack of empathy, impulsiveness and manipulativeness).
[3] W.S. has been in foster care since she was about nine. She has never lived independently. Currently, she lives in supported housing and is in receipt of ODSP.
[4] W.S. has a history of “binge” drinking and suicide attempts with many hospital admissions. Many of these episodes occurred before she was legally able to purchase alcohol.
[5] On January 3, 2019, Dr. Bismil, the treating psychiatrist, found that W.S. was not mentally capable to consent to treatment of a mental disorder. Dr. Bismil also found that W.S. was “incapable of” managing property.
[6] Dr. Bismil made the following observations on Form 21, under the Mental Health Act, with respect to W.S.’s incapacity to manage property:
I personally observed the following facts indicating incapacity to manage property: Developmental disability with depression and substance use. Unable to understand and appreciate the reasonably foreseeable consequences of the choices.
The following facts, if any, indicating incapacity to manage property were communicated to me by others: Patient repeatedly running out of money. Placing herself in unsafe situations with spending.
[7] W.S. applied to the Consent and Capacity Board to review Dr. Bismil’s finding of incapacity to manage property. That hearing was held on February 11, 2019, and the Board confirmed Dr. Bismil’s finding that W.S. was incapable of managing her property.
[8] W.S. appealed the decision of the Consent and Capacity Board to this court.
[9] At the commencement of this hearing, counsel advised that the Public Guardian and Trustee had not acted upon the finding of incapacity to manage property. Counsel did not provide any explanation for the Public Guardian and Trustee’s inaction since January.
The Reasons
[10] In very detailed and extensive reasons, the Board confirmed Dr. Bismil’s finding of incapacity to manage property.
[11] The presiding member acknowledged that the appropriate test was set out in the Substitute Decisions Act, S.O. 1992, c. 30:
6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6. [Emphasis added.]
[12] The presiding member found that the evidence did not establish that W.S. was incapable to manage property under the first branch of the test:
I found that the evidence did not establish that W.S. was unable to understand the information that was relevant to making a decision in the management of her property.
I noted that there was no evidence that W.S. lack[s] the cognitive ability to process, retain and understand the relevant information.
There is no evidence that W.S.’s memory was not sufficiently intact to allow her to keep track of her financial matters and decisions or that her calculating ability was not sufficient in [the] circumstances.
I found on a balance of probabilities that, at the time the hearing, W.S. was able to understand the information that was relevant to making a decision in the management of her property.
[13] However, the presiding member found that W.S. was not capable of managing property because she was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision, that is, acquiring alcohol:
He (Dr. Bismil) said that W.S. was not capable of managing her property because she continued to purchase alcohol causing a significant risk of harm to herself and to others.
Whether W.S. was doing this by purchasing alcohol, having someone else purchase alcohol for or in some other way, her decision to acquire alcohol was a decision in the management of her property.
I found, as a fact, based on Dr. Bismil’s oral and written evidence that he believed that the reasonably foreseeable consequence of the decision of W.S. to purchase or otherwise acquire alcohol … were that she was consuming alcohol, and become intoxicated, become suicidal and/or attempt suicide, perhaps engaged in assaultive behavior with [the] community worker with the hospital staff member and that this pattern would like to result in death or serious bodily harm to W.S. and/or serious bodily harm to another person. Dr. Bismil said that his evidence for these reasonably foreseeable consequences was that W.S. had demonstrated a consistent pattern of behavior that put her at risk.
However, he (Dr. Bismil) said that W.S. needed to be found incapable of managing her property to prevent her from purchasing alcohol.
Positions of the Parties
[14] W.S. argues that the Board misapplied the test for capacity to manage property thereby committing an error of law by focusing on matters unrelated to financial capacity – W.S.’s perceived best interest. W.S. argues that the evidence relied upon by the Board does not establish an inability to manage property.
[15] Counsel for Dr. Bismil argues that the Board did not misapply the test for capacity to manage property and that, therefore, the standard of review is reasonableness [1]. Counsel argues that the finding of the Board was reasonably supported by the evidence.
The Law
[16] Section 80 of the Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A. sets out the procedure for appeals and the power of this Court on appeal:
Appeal
80 (1) A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.
[17] Since the legislature has provided for an appeal of the Board’s decision to a court, appellate standards of review are to be applied. The standard of review for an error in law is correctness. Where the scope of statutory review includes questions of fact, the appellate standard of review is palpable and overriding error: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paragraph 37.
[18] It is also not disputed that the test for capacity to manage property under s. 6 of the Substitute Decisions Act is to be analyzed as the similar test for capacity for treatment under the HCCA which provides:
4 (1) A person is capable with respect to a treatment, admission to or confining in 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, confining or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[19] In describing this test the Court of Appeal for Ontario in Anton v. Bhalerao, 2013 ONCA 499, [2013] O.J. No. 3459, stated, referencing the Supreme Court’s decision in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722:
21 The statutory test for capacity in s. 4 of the HCCA comprises two criteria. First, that the person be able to understand the information relevant to making a treatment decision, and second, that the person be able to appreciate the reasonably foreseeable consequence of his or her decision: Starson, at para. 78.
22 In Starson, Major J., speaking for the majority, began his analysis by making two key points about this test. First, the patient must be able to recognize the possibility that he or she is affected by a mental condition. Second, and of particular relevance to this case, the focus of the test is on the ability to appreciate the consequences of the decision, and not on actual appreciation. He described the inquiry in these terms, at para. 80:
In practice, the 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 treatment; 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 than the attending physician and disagrees with the treatment recommendation -- he has the ability to appreciate the decision he makes: see Roth, Meisel and Lidz, supra, at p. 281. [Emphasis added.]
[20] Not surprisingly, appeals regarding capacity to treatment such as T.C. v. Hastings, 2017 ONSC 374, at paras. 24 and 87, have confirmed that foreseeable consequences refer back to treatment. Similarly, appeals regarding capacity to manage property such as Mladenovic v. Papatheodrou, 2015 ONSC 754, at para. 2, have confirmed that foreseeable consequences relate back to property.
[21] In Re Ms M.B.G., the Consent and Capacity Board disagreed with a submission that a finding of incapacity to manage property may be used to assist in controlling behaviour unrelated to the management of property. A decision about where M.B.G. would live was “too remote from the issue of capacity to manage property to bear on it.”
[22] In order to uphold a finding of incapacity, the evidence of the physician asserting incapacity must be corroborated: see s. 14(1) of the Evidence Act, R.S.O. 1990 c. E.23 and Anten v. Bhalerao, 2013 ONCA 499, [2013] O.J. No. 3459, at paras. 17, 28 ff.
[23] It is not disputed that the following recital of the onus and the standard of proof by the Board member is correct:
On any review of incapacity to manage property … the onus of proof at a Board hearing is always on the attending physician to prove the case. The standard of proof is proof on a balance of probabilities. The Board must be satisfied on the basis of cogent and compelling evidence that the physician’s onus has been discharged. There is no onus whatsoever on the patient.
Analysis
[24] Dr. Bismil’s evidence was focused on the purchase of alcohol and the consequences of intoxication. His assertion on Form 21 that W.S. was “repeatedly running out of money” was uncorroborated. Dr. Bismil observed:
a) If we find Ms. S capable of property, what we are essentially saying is that someone with the developmental level of nine years of age can purchase alcohol, even if it places them at risk of harm to themselves or others. Transcript, p. 3, line 15
b) The only part of the incapacity for property of significance, is Ms. S acquiring money, which is totally her own and in proceeding to purchase alcohol. Transcript, p. 36, line 13
c) I do not have any direct knowledge because I’m not involved in the day-to-day activities of Ms. S’s finances. My understanding is that she has about $400 for groceries in a month. She mostly manages, on her own, with some support from her worker and that her workers are present 24/7 so there is some implicit support involved that she does manage that on her own. Transcript, p. 48-9. Line 25
d) [s]he does quite well when she stays away from alcohol. Transcript, p. 63, line 3
e) I would also point out that some parts of the financial capacity that Ms. S has been able to demonstrate is that my understanding is that she is actually quite good at purchasing … food for her cat but appropriately she often makes grocery purchases. Again, as a final -- That is appropriate developmental level and I would -- my submission would be that the purchase of alcohol is not appropriate to the developmental level of between 8 to 10 years of age. Transcript, P. 64-65, line 17
f) I do not believe we would be able to stop every single instance of intoxication, but I would – I do believe that the Public Guardian and Trustee keeping control over the finances … would reduce the substantially because she has an excellent team of workers were quite committed, despite the challenges – challenging situations to her and at the moment, they have no ability to stop or control or modulate any of the spending. So I think the PGT, if involved, would be able to, in my opinion, stop a substantial number of the intoxications. Transcript, p. 71-2, line14
[25] Because W.S. lives in supported housing, the property related decisions to be made by her are not complex. The evidence confirms that W.S. is capable of managing her modest income. Dr. Bismil’s concerns relate to W.S.’s purchases of alcohol and the finding of incapacity is sought to control her spending on alcohol. There is no corroboration, as noted, with respect to the assertion that W.S. is “repeatedly running out of money.” It was raised in argument and not seriously contested that W.S. was able to acquire alcohol before she was legally able to and I take judicial notice of the fact that there are methods, other than direct purchase, for W.S. to acquire alcohol.
[26] I conclude that it was an error of law for the Board to characterize W.S.’s decision to “acquire alcohol” as “a decision in the management of her property” when there was no other evidence of issues with respect to property management. While W.S. may spend money to acquire alcohol, there was no corroborating evidence that this expenditure dissipated her property.
Disposition
[27] The finding of the Board that W.S. is incapable of managing property is set aside.
“Original signed by” The Hon. Mr. Justice W.D. Newton
Released: January 9, 2020
Footnotes
[1] This appeal was argued before the release of the decision from the Supreme Court of Canada on December 19, 2019 of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. This decision did not alter the standard of review for an error of law which is correctness. Since I concluded that there was an error of law in this case it was not necessary to have counsel make submissions based on Vavilov.