Court File and Parties
COURT FILE NO.: CV-20-00642126-0000 DATE: 20200805 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joshua Edem, Appellant – AND – Dr. David Kantor, Respondent
BEFORE: E.M. Morgan J.
COUNSEL: Eyitayo Dada, for the Appellant Colin Johnston and Adam Kanji, for the Respondent
HEARD: July 24, 2020
Reasons for Decision
1The Appellant appeals a decision of the Consent and Capacity Board (the “Board”) confirming the renewal by his psychiatrist, the Respondent, of a Community Treatment Order (“CTO”) made pursuant to the Mental Health Act, RSO 1990, c M.7. The CTO requires the Appellant’s adherence to a Community Treatment Plan dated June 20, 2020 (the “CTP”), the terms of which he opposes. The Appellant also appeals the Board’s decision that he lacks capacity to make decisions about the CTO and his antipsychotic medications.
2The issues under appeal concern findings of fact and determinations of mixed fact and law by the Board. Counsel for both parties agree that the standard of review to be applied is one of palpable and overriding error: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at para. 37. This standard “requires that one must be able to ‘put one’s finger on’ the crucial flaw, fallacy or mistake…”: HL v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401, at para. 70.
I. The Appellant’s health background
3The Appellant has been diagnosed with schizophrenia, which manifested at the age of 19 when he was hospitalized following a suspension from school and a call to the police about erratic behaviour. Over the next 6 years, from 2012 to 2018, the Appellant cycled in and out of mental illness, depending on whether he was taking his medications or had ceased taking them. The record before the Board shows that when medicated, he was stable. When unmedicated, he displayed physical aggression towards his family, had irrational suspicions that police and school authorities were not who they claimed to be, experienced hallucinations, engaged in dangerous antics such as climbing onto the roof of his house while shouting religious messages, and uttered threats resulting in at least one criminal charge.
4As a result of all of this, the Appellant was admitted to hospital a total of 12 times between 2012 and 2018, both in Nigeria (his country of birth) and in Canada. Each time, he would be stabilized on medication and then be discharged home, only to stop taking his medicine shortly thereafter and become unwell again. The cycle repeated itself numerous times. The Brampton Civic Hospital Mental Health Final Summary report dated May 9, 2018 indicates that on that date the Appellant’s then treating physician, Dr. Ohene-Darkoh, concluded that a CTO should be issued for the Appellant due to the “revolving door nature of his admission pattern”.
5The CTO, which is renewable every 6 months, imposes a CTP with various mandatory terms, including a requirement that the Appellant meet periodically with members of his treatment team and comply with treatment in the form of long-acting injectable antipsychotic medication. The present Appeal concerns the most recent renewal by the Respondent, who took over as the Appellant’s community-based treating physician during the Fall of 2019. In his submissions to the Board and in this Appeal, the Appellant has contended that he did have capacity to make decisions about his antipsychotic medications and his treatment and that the CTO was deficient and should be quashed.
II. The Board hearing
6The Board heard the matter by videoconference on April 16, 2020, as Ontario was at that time on total lockdown due to the COVID-19 pandemic. The Appellant gave viva voce testimony and expressed the view that he does not currently suffer from a mental illness. The Board also heard viva voce evidence from the Respondent and considered numerous medical records. Based on the totality of the evidence before it, the Board concluded that the Appellant lacked capacity because he could not appreciate the reasonably foreseeable consequences of a decision whether or not to take the medications prescribed for him. Along with this, the Board found that there were no deficiencies with the CTO.
7The evidence heard by the Board established that the Respondent first saw the Appellant on November 25, 2019, at which time he recorded in the Appellant’s medical chart that the Appellant was aware of his diagnosis of schizophrenia but that the Appellant did not believe that he currently suffers from any mental illness. The Appellant advised the Respondent at the time that he had discontinued any consumption of alcohol and marijuana. The Respondent also recorded that the Appellant expressed the view that his previous psychiatric symptoms that led to the diagnosis of schizophrenia were a result of his antipsychotic medications combined with marijuana use.
8The Respondent testified that he, in turn, advised the Appellant that he does indeed suffer from a psychiatric illness and that he will experience a relapse if he ceases taking the prescribed medication. The Respondent indicated that the Appellant appeared to lack insight into his illness and was not capable of appreciating his need for treatment. On that basis, the Respondent concluded that the Appellant was incapable of consenting to decisions regarding antipsychotic medications and the CTO.
9The Respondent saw the Appellant again on February 6, 2020, at which time the Appellant advised that he was doing well and intended on pursuing an apprenticeship in carpentry. The Respondent recorded in the Appellant’s chart that the Appellant again told him that he intended to stop taking his medication. The Respondent indicated that he again stressed to the Appellant that he was likely to have a relapse if he did so. He again reviewed the CTO and treatment plan with the Appellant, and again recorded his impression that the Appellant was stable but that he was without insight into his mental illness and was still incapable of making consent decisions regarding his CTO and medications.
10Two weeks later, on February 20, 2020, the Respondent recorded in the Appellant’s chart that he had received a communication from the Appellant’s parents, who were acting as his substitute decision maker (“SDM”). They indicated to the Respondent that in their view the CTO should be renewed. They also expressed their understanding that without anti-psychotic medication, the Appellant’s condition would deteriorate.
11In light of all of this, the Respondent renewed the CTO on February 20, 2020.
12Section 33.1(3) of the Mental Health Act establishes that the purpose of a CTO is, “[T]o provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility.” The CTP mandated by the Appellant’s CTO requires the Appellant to: a) see the Respondent in his office every two months in his office, b) meet one to three times each week with members of his designated support group, the North Peel Assertive Community Treatment Team (“ACTT”), and c) get an injection of antipsychotic medication administered at the ACTT office once every four weeks.
13The Appellant applied to the Board with a challenge to the Respondent’s determination that he was incapable of consenting to use of antipsychotic medications and to his CTP. At the April 2020 hearing, the Appellant repeated in his testimony all of the points he had made to the Respondent during his several appointments. These included the view that he had regained his capacity to understand and consent to treatment now that he had ceased consuming alcohol and marijuana, and that it was the consumption of these substances that caused his symptoms to appear in the first place. In response, the Board held, at p. 12 of its decision, that the Appellant could not appreciate the reasonably foreseeable consequences of a decision with respect to treatment, and that he was incapable with respect to decisions about the need for antipsychotics.
14In addition, the Appellant sought a review of his CTO and alleged that the criteria for issuance of a CTO under s. 33.1 of the Mental Health Act were not met. The Board was asked to address the Mental Health Act criteria that the Appellant: a) requires continuing community supervision and treatment, b) meets the requirements for completion of a psychiatric assessment under the Mental Health Act, and c) would suffer significant mental deterioration without a CTO. At p. 14 of its decision, the Board found that these criteria were met:
It was clear that the facts of [the Appellant]’s case were exactly the kind of ‘revolving door’ cycle of admissions that are intended to be addressed by a CTO. The evidence was that [the Appellant] had repeatedly discontinued medication and would do so even if he said he would not. He discontinued medication because he did not think that he had any condition that would benefit from treatment. It was clear to us that in the absence of the CTO, [the Appellant] would experience substantial mental deterioration and would again require hospitalization. It was the CTO that kept [the Appellant] well enough to live in the community, maintain a relationship with his family, pursue employment, and maintain his hobbies and interests.
III. Decision-making capacity
15Turning first to the question of capacity, the applicable test is set out in s. 4 of the Health Care Consent Act, 1996, SO 1996, c 2. A patient with capacity must: a) understand the information relevant to making a treatment decision; and b) be able to appreciate the reasonably foreseeable consequences of their decision. This, in turn, requires that the patient be capable of applying the relevant information to their own situation and to be able to weigh the foreseeable risks and benefits of a decision: Starson v Swayze, 2003 SCC 32, at para. 78.
16The Board found that the Appellant lacked the “ability to appreciate” in that he was not able to apply the relevant information regarding treatment decisions to his circumstances, or to be capable of weighing the foreseeable risks and benefits of his decision to discontinue taking medication. The Board applied the accepted three indicators in coming to its conclusion: a) the person must be able to acknowledge the fact that the condition for which treatment is recommended may affect them; b) the person must be able to assess how the proposed treatment (or discontinuing the treatment) could affect their quality of life; and c) the person’s choice must not be substantially based on a delusional belief: Ibid., at para. 18.
17Moreover, while a patient need not agree with their physician’s diagnosis, they must at least recognize the possibility that they are affected by the mental condition: Ibid., at para. 79. They must also demonstrate ability to appreciate the positive effects of treatment or the negative effects of a failing to engage in treatment: D’Almeida v Barron, 2010 ONCA 564, at paras. 25-26. Accordingly, if a person’s disorder causes them to be unable to recognize that they are affected by its manifestations, they will be incapable of applying the relevant treatment information and will as a result be unable to appreciate the consequences of their decision: Starson, at para. 79.
18I have little hesitation in concluding that there was ample evidence to support the Board’s finding that the Appellant lacked the ability to appreciate the reasonably foreseeable consequences of his decision to discontinue taking antipsychotic medications. His consistent pattern of non‑compliance with prescribed treatments and medication is well documented in his medical records, as are his numerous denials to the Respondent and his previous physicians that he suffers from any mental illness that requires medical treatment. The Board had little trouble concluding that the Respondent, who testified to this respect and whose notes of his appointments with the Appellant were adduced into evidence, gave credible testimony as to the Appellant’s communications in this regard.
19The Board also heard testimony from the Appellant himself. It noted, at pp. 11-12 of its decision, that the Appellant was “confused and inconsistent on the question of the nature of the manifestations of his mental condition and what role treatment might take in addressing those manifestations.”
20Appellant’s counsel submits that the Board focused incorrectly on whether the Appellant agreed or disagreed with his physician’s diagnosis, but the decision itself reveals that that was not the thrust of the Board’s analysis. Rather, the Board undertook a thorough analysis of the Appellant’s conflicting statements, and in the process noted that on several occasions in his testimony the Appellant continued to deny suffering from a mental illness that required treatment at all. In other words, it was hardly necessary to assess the credibility of the Appellant’s account of his conversations with the Respondent as against the Respondent’s account of those conversations; in fact, the Appellant had met the test for incapacity right before the Board’s eyes in the hearing itself.
21Furthermore, the Board found that the Appellant’s belief that his problematic behaviour had been caused by marijuana and alcohol use was contradicted by the chronology of his documented bouts of illness. They found that on each occasion that he was hospitalized, his condition stabilized when he resumed compliance with his regime of antipsychotic medication. Cessation of alcohol and marijuana abuse was not sufficiently coincident with these episodes of destabilization and stabilization to have had a causative effect. Thus, for example, the records before the Board show that the Appellant’s last hospitalization occurred in August 2019, whereas the Appellant himself testified that this was a period of time when he was not engaged in drug or alcohol abuse.
22Overall, the Board concluded that the Appellant had no insight into the fact that he suffers from a mental illness, and that this illness is the cause of his cycle of erratic behaviours and hospitalizations. There was considerable basis in this record before the Board for it to conclude, at p. 12 of its decision, that he “did not see that there was any underlying mental condition and was unable to appreciate the reasonably foreseeable consequences of a decision to take or not take the treatments proposed.”
IV. Consent to the Community Treatment Order
23Turning to the CTO, s. 33.1(4) of the Mental Health Act sets out the criteria to be satisfied for a CTO to be ordered. Of these, the Appellant takes issue with the Board’s findings under ss 33.1(4)(c)(iv) and 33.1(4)(f):
33.1 (4) A physician may issue or renew a community treatment order under this section if,…
(c) within the 72-hour period before entering into the Community Treatment Plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,…
(iv) the person is able to comply with the Community Treatment Plan contained in the community treatment order, and…
(f) the person or his or her substitute decision-maker consents to the Community Treatment Plan in accordance with the rules for consent under the Health Care Consent Act, 1996. 2000, c. 9, s. 15.
24The Court of Appeal has indicated that appeals regarding the validity of a CTO raise issues of mixed fact and law: SS v Kantor, 2017 ONCA 828, at para. 39.
25As counsel for the Appellant explains it, the Mental Health Act requires that any renewal of a CTO be done with the consent of the patient. In the event that the patient lacks decisional capacity, consent must be obtained from the patient’s SDM.
26Counsel for the Respondent submits that the Board made no error in finding that the Appellant’s SDM – i.e. his parents – consented to the CTP. Respondent’s counsel also argues that this was not an issue contested by the Appellant at the Board level and so should not be considered in this Appeal. That may be so, but in any case it is easily answered with reference to evidence already on the record before the Board.
27The Respondent’s evidence was that on the day that the CTO was renewed, he spoke with the Appellant’s parents on the telephone and that they were in agreement with their son’s continued adherence to the CTP. The Respondent’s notes of this conversation confirmed that he had reviewed the requirements of the plan with the parents and that both of them agreed to the CTO’s renewal “without hesitation”. There is nothing in the evidentiary record to counter the Board’s conclusion that the CTO was properly issued; to the contrary, the evidence clearly established that consent from the Appellant’s SDM was properly obtained.
V. The Community Treatment Plan and the COVID-19 pandemic
28Counsel for the Appellant submitted at the hearing before me that at time of the hearing before the Board – i.e. on the date relevant to any appeal of the Board’s decision – the Appellant could not comply with the CTP imposed by the CTO due to the effects of the COVID-19 societal lockdown. Since the CTP required the Appellant to travel across Toronto and Peel Region to periodic appointments with the Respondent and with the ACTT, it effectively compelled him to meet and travel in ways which did not accommodate for applicable public health precautions. It is counsel’s position that a treatment plan that bumps up against public health norms in this way imposes an unacceptable burden and is invalid. Appellant’s counsel therefore submits that the criteria for issuance of the CTO were accordingly not satisfied.
29Counsel for the Respondent submits that since this argument was never made before the Board, it should be dismissed as there is no evidence in the record to support it. They contend that if the court were to engage in the analysis of this issue as urged by Appellant’s counsel, it would improperly turn this appeal into a hearing de novo. The Respondent also contends that it would be unfair to address this issue, since his counsel have not had a chance to cross-examine on the point.
30Counsel for the Appellant submits that there is no reason for the court not to consider this issue, as no additional evidence is needed. She argues that I am able to take judicial notice of the pandemic and the society-wide lockdown rules that accompanied it and that were in force in April 2020, and that no other evidence is needed. To exclude this issue, which has significant practical ramifications for the Appellant, would be to elevate form over substance.
31This was a significant oversight by all parties, including by the Board, and it should certainly have been considered at the April 16, 2020 hearing. In my view, it constitutes an error which is outside the scope of reasonableness mandated by Vavilov, at para. 25. It is not reasonable for the Board to require the Appellant to risk being infected by COVID-19 in order to comply with the CTP. He should not have to jeopardize his physical health in order to properly look after his mental health.
32I am also of the view that Appellant’s counsel is correct that the issue requires no new evidence. We are all aware that there was in April 2020, and that there still is, a world-wide pandemic due to the spread of a novel coronavirus. I am certain that the Respondent and his counsel were equally aware of the situation, and that nothing about it catches them by surprise to the extent that they would require some fact-finding by the Board before they can properly consider it.
33The pandemic is all around us. Not only was the April hearing before the Board conducted by videoconference due to the lockdown, but this very appeal was conducted via Zoom because ordinary court operations are still partially closed down as a result of the public health situation. No doubt Respondent’s counsel are excellent cross-examiners, but, with the greatest of respect, it is hard to imagine what enticing fact could be elucidated by cross-examining the Appellant on the existence of the COVID-19 pandemic and the public health restrictions under which the entire society has been operating.
34The relevant public health restrictions include the much more limited use of crowded transportation, as well as the prohibition on person-to-person meetings and the closing and staged re-opening of offices and businesses, including many medical offices. The regulations in effect in April 2020, which was in the heart of the public health crisis, called for refraining from virtually any non-emergency meeting with people, including doctors and community support workers, in close proximity indoors.
35While the Appellant’s attempt to cope with these restrictions may be a matter of fact, he is not significantly different from anyone else in this respect. The novel part of the equation is the existence of the restrictions themselves, which are matters of public policy and are enshrined in law. For the most part, what the Respondent and his counsel would need to know to address this aspect of the Appellant’s CTP is not only common knowledge, but is contained in legislation and regulatory enactments such that additional testimony by the Appellant would add very little: Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c. 17, O Reg 82/20 (“Rules for areas in Stage 1”), O Reg 263/20 (“Rules for areas in Stage 2”), O Reg 364/20 (“Rules for areas in Stage 3”).
VI. Remedial options
36Under s. 80(10) of the Health Care Consent Act, 1996, SO 1996, c 2, Sched A, I have a number of remedial options:
(10) On the appeal, the court may,
(a) exercise all the powers of the Board;
(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;
(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.
37I would ordinarily be inclined to send this issue back to the Board to fashion a CTP that can work within the province’s public health guidelines for the duration of the pandemic. As a practical matter, however, the provincial COVID-19 rules and guidelines are a moving target as the pandemic progresses. What was not a feasible plan in April of this year, when the province was in total lockdown, might be a reasonable arrangement today with the province having entered Stage 3 of its re-opening plan. And the regulations and public health recommendations applicable today may not be applicable by the time the Board reconvenes for a re-hearing on the issue.
38The public health situation calls for adding an element of judgment and flexibility into the Appellant’s CTP. Since the element of judgment that is required is in essence a medical judgment, it seems appropriate for the Respondent to assume responsibility for working out a flexible arrangement for the visitations required in the CTP. In doing so, he will be in a position to bear his professional knowledge and medical expertise. That can be done by a relatively simple amendment of the plan, without the need to reconvene another Board hearing to consider any new issue or new evidence.
VII. Disposition
39The CTP is hereby amended such that any required meetings with either the Respondent or the ACTT can take place either by videoconference, or teleconference, or in person. The determination of whether those meetings are to be virtual, telephone, or face-to-face meetings is to be made from time to time by the Respondent in his professional judgment, taking into account the Appellant’s personal circumstances and medical needs as well as the public health considerations prevailing in Ontario and locally. The Respondent is to keep the Appellant as well as the ACTT apprised on an ongoing basis of the appropriate forum or medium for any required meetings.
40In all other respects, the Appeal is dismissed.
Morgan J.
Date: August 5, 2020