Court File and Parties

COURT FILE NO.: CV-20-637176

DATE: 2020-08-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STANLEY ALMEIDA, Appellant

AND: DR. ANDREW MORGAN, Respondent

BEFORE: Justice Lorne Sossin

COUNSEL: Antonietta Raviele, for the Appellant Jessica Szabo, Counsel, for the Respondent Russell Browne, Amicus Curiae

REASONS FOR JUDGMENT

[1] This appeal is brought by Mr. Stanley Almeida (“Mr. Almeida”). Mr. Almeida seeks to set aside a decision of the Consent and Capacity Board (“CCB” or “the Board”) dated, February 25, 2020, in which he was found not to be capable under Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA” or the “Act”).

[2] At the time of the CCB hearing, Mr. Almeida was a forensic patient at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”), pursuant to a disposition of the Ontario Review Board (“ORB”).

[3] Mr. Almeida was found Not Criminally Responsible on Account of a Mental Disorder (“NCR”) on June 19, 1998 for a charge of uttering a death threat.

[4] Following the NCR finding, Mr. Almeida was diagnosed with a delusional disorder and a narcissistic personality disorder. Mr. Almeida was found incapable of consenting to treatment of his mental disorder in 1998 by his attending physician at the time.

[5] On different occasions, Mr. Almeida applied to the CCB to have the finding of incapacity reviewed. When unsuccessful, Mr. Almeida appealed these Board decisions to the Superior Court and, on two occasions, to higher appellate courts. These appeals were dismissed and treatment was initiated in 2006.

[6] Treatment was discontinued in 2010, and Mr. Almeida lived in the community until 2019.

[7] On November 12, 2019, Dr. Andrew Morgan (“Dr. Morgan”), a psychiatrist at Ontario Shores, found Mr. Almeida to be incapable of consenting to or refusing treatment. At that time, Dr. Morgan recommended antipsychotic medication to treat Mr. Almeida's delusional disorder (the “proposed treatment”), which be believed had intensified.

[8] Mr. Almeida applied to the Board to review Dr. Morgan’s finding of incapacity. A hearing took place before the Board on December 4, 2019 and continued on January 20, 2020.

[9] On January 20, 2020, the Board adjourned the hearing and ordered that a hearing de novo commence on February 24, 2020.

[10] On January 21, 2020, the ORB convened an early hearing to review Mr. Almeida’s disposition, at the request of Ontario Shores. Given Mr. Almeida’s untreated psychosis and the inability of the team to adequately manage his risk in the community, the ORB issued a Detention Order on January 29, 2020.

[11] The CCB released its decision on February 25, 2020. The Board confirmed Dr. Morgan’s finding that Mr. Almeida was incapable of consenting to the proposed treatment.

[12] On March 19, 2020, the Board released amended reasons for decision.

[13] A notice of appeal was delivered on Mr. Almeida’s behalf on or about March 3, 2020.

[14] While the appeal was pending, Dr. Morgan brought a motion under s. 19(1) of the HCCA for an Order authorizing him to give Mr. Almeida intravenous antipsychotic medication pending the final resolution of his appeal.

[15] On March 25, 2020, Justice Myers ordered that this motion should proceed as an urgent matter within the terms of the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, issued by Chief Justice Morawetz on March 15, 2020.

[16] Justice Davies heard the motion and rendered her decision on April 6, 2020. Justice Davies denied Mr. Almeida’s preliminary motion to adjourn the motion.

[17] Mr. Almeida was not represented at the hearing. Justice Davies appointed Russell Browne as amicus curiae, to provide assistance to the Court.

[18] After an analysis of the test under s.19(1) of the Act, Justice Davies granted Dr. Morgan’s motion.

[19] Mr. Almeida received the treatment prescribed by Dr. Morgan and was released from the Ontario Shores facility. He is now living in the community.

[20] This appeal was heard on August 13, 2020, via Zoom.

[21] While Mr. Almeida has been represented for this appeal, Mr. Browne’s appointment as amicus curiae was continued as well in order to assist the Court.

ANALYSIS

[22] Section 80(1) of the HCCA sets out that, “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.”

The Standard of Review

[23] In considering an appeal from the CCB, the first issue I must address is the appropriate standard of review.

[24] A party before the Board has a statutory right of appeal to the Superior Court of Justice from the Board’s decisions on questions of law or fact or both. On appeal, the Court may exercise all the powers of the Board; substitute its opinion for that of a health practitioner or the Board; or may refer the matter back to the Board, with directions, for rehearing in whole or in part.

[25] Recently, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 the Supreme Court of Canada addressed the standard of review applicable to administrative tribunals where, as here, there is a statutory right of appeal.

[26] The majority in Vavilov held that in these circumstances, the legislature expects that the court will scrutinize these decisions on an appellate basis (at para. 37):

It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 234 (S.C.C.), at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute. (Emphasis added.)

[27] Therefore, the question I must address is whether the CCB made a “palpable and overriding error” in deciding that Mr. Almeida is not capable; see also B.L. v Pytyck, 2020 ONSC 3766 at para 26.

The CCB Decision

[28] The CCB determined that Mr. Almeida was not capable based on s.4(1) of the HCCA. Section 4(1) provides that:

A person is capable with respect to a treatment, admission to 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 or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[29] Thus, the threshold for determining capacity has two parts. The first part requires that the individual be able to understand the information required to make decisions regarding treatment. The second part requires that the individual be able to appreciate the reasonably foreseeable consequences of such informed decisions. Both parts of the threshold must be met to make a finding of capacity.

[30] Additionally, under s.4(1) of the HCCA, the Board considers an individual’s capacity in a specific context. For example, capacity is temporal in nature. In other words, a person can be capable with respect to a specific treatment at one time and not another. A person can be incapable at the time of being assessed by a physician but capable at the time of the hearing; G., (Re), [2009] CarswellOnt 5267, at para. 15.

[31] Capacity is also treatment specific. As Kristjanson J. stated in Z. (Z.) v. Shafro, [2016] ONSC 6412 at para. 60, “…incapacity findings relate to specific types of proposed treatment. In order for the Board to confirm finding of incapacity, the treatment in question must be proposed for the person, and her capacity to consent to it must be assessed.”

[32] In the context of Mr. Almeida’s mental health condition at the time of the hearing, and the proposed treatment, Dr. Morgan acknowledged that Mr. Almeida met the first part of the s.4(1) HCCA threshold. However, Dr. Morgan testified that Mr. Almeida did not meet the second part of the test for capacity.

[33] Dr. Moran’s evidence was that Mr. Almeida was unable to apply information about the proposed treatment to his own situation, and did not recognize that he was affected by the manifestations of a mental condition.

[34] Dr. Morgan’s opinion was that Mr. Almeida was incapable of consenting to the proposed treatment as he was unable to appreciate the reasonably foreseeable benefits or consequences of that treatment. Mr. Almeida continued to reject the possibility that antipsychotic medication could offer him any benefit.

[35] Dr. Morgan testified that Mr. Almeida’s delusional disorder was characterised by three core delusions: first, that he is the King of Canada; second, that he has been poisoned (usually by gaseous antipsychotic medication); and third, that he has superhuman health or abilities because he is a descendent of mermen.

[36] It was Dr. Morgan’s opinion that although Mr. Almeida may not develop full insight into his delusional disorder, and his delusions may not fully resolve with antipsychotic treatment, these delusions would lessen in intensity.

[37] According to Dr. Morgan, the proposed treatment would enable Mr. Almeida to be less preoccupied with these beliefs, and it would facilitate his ability to work with the outpatient team and discharged into the community.

[38] In his own evidence before the Board, Mr. Almeida reiterated his belief that he did not suffer from a mental illness. At one point, he was asked directly if some of the things he believes are related to a mental illness. He responded unequivocally: “No, zero possibility.”

[39] Because Mr. Almeida denied the possibility of ever having been affected by a delusional disorder, he did not believe the proposed treatment could benefit him in any way. By the same token, Mr. Almeida also could not recognize any harm associated with the lack of treatment.

[40] The Board found that the evidence established that Mr. Almeida was unable to appreciate the reasonably foreseeable consequences of a decision with respect to the proposed treatment and therefore was incapable of consenting to the proposed treatment.

[41] The Board agreed with Dr. Morgan that Mr. Almeida suffered from a mental disorder, which included entrenched delusional beliefs. The Board did not find Mr. Almeida’s account of the Hospital pumping poisonous gas into his apartment credible.

[42] As set out in its conclusion, the Board accepted and confirmed Dr. Morgan’s finding that Mr. Almeida was incapable to consent to psychiatric treatment under the HCCA:

The panel member reviewed all the evidence and found that it was clear [Mr. Almeida] suffered from a serious mental disorder including entrenched delusional beliefs. The panel member did not find [Mr. Almeida]’s account credible that Ontario Shores, or anyone else for that matter, was pumping gaseous antipsychotic medications into his condo or into the PICU while he was there. The nature of the death threats that [Mr. Almeida] made to his outpatient psychiatrist were very serious and the panel member noted that [Mr. Almeida] had originally been found NCRMD due to uttering death threats and had a criminal history (Exhibit 1). Although [Mr. Almeida] may have been able to reside in the community for several years, it was clear to the panel member that his mental status had reached a tipping point such that he needed to be brought back into hospital by the clinical team. The statements by [Mr. Almeida] that he had never been taking antipsychotic medications in the past, when others thought he may have been doing so, show to some extent how he lacked the ability to appreciate the reasonably foreseeable consequences of not making a decision about treatment. These consequences include [Mr. Almeida]’s making serious death threats towards others, deterioration in his mental status, and an inability to move out of the forensic system. The panel member had no hesitation in upholding Dr. Morgan’s finding that SA was incapable to consent to psychiatric treatment, which based on clear, cogent, and compelling evidence. (Emphasis added.)

[43] In his factum, Mr. Almeida submits that, “Although the Board found that the Mr. Almeida failed to appreciate the risks and benefits of treatment, it neglected to address whether the reasons for that failure demonstrated an inability to appreciate those risks and benefits. The “serious” death threats referred to by the Board in his reasons and by Dr. Morgan were not that “serious”…” (at para. 48).

[44] Mr. Almeida further submits that the threats at issue against one of Mr. Almeida’s physicians were contingent on events which had not taken place (i.e. Mr. Almeida assuming the role of King of Canada).

[45] I do not find the issues raised by Mr. Almeida with respect to the seriousness of the threats led to a palpable and overriding error on the part of the Board. The Board was entitled to accept Dr. Morgan’s clinical assessment of Mr. Almeida as suffering from a mental disorder which had intensified, and required medication.

[46] Mr. Almeida also argues that the Board’s reasons demonstrate that it had strayed from its legislative mandate to adjudicate solely upon the patient's capacity and entered into a consideration of the wisdom of the patient's treatment decision, which was irrelevant to its determination.

[47] In other words, according to Mr. Almeida, the CCB improperly allowed its own conception of the patient's best interests to influence its finding of incapacity.

[48] Mr. Almeida relies on the following testimony by Dr. Morgan to illustrate this distinction. When asked a CCB member to explain why Mr. Almeida fails to meet the standard for capacity under the HCCA, Dr. Morgan replied:

It isn't so much that Mr. Almeida is unable to understand that information, such as when I explained those consequences and benefits to him, he, he understands the words and the sentences perfectly well. But where Mr. Almeida fails the test is he's unable to appreciate how those could even possibly apply to him. It isn't that Mr. Almeida is simply accepting that he could have a mental condition, he doesn't agree with it and that he could get some benefit, but he is making a choice to not take antipsychotic medication, he rejects out of hand even the possibility that he could have a mental disorder or could potentially get any sort of benefit from treatment. (Emphasis added.)

[49] Mr. Almeida relies on Dr. Morgan’s characterization of him “making a choice” not to take medication as evidence that Dr. Morgan in fact recognized Mr. Almeida’s capacity to decline the medication which Dr. Morgan had concluded was in his best interests to take.

[50] While Mr. Almeida may well have been making a “choice,” the CCB concluded that it was one not based on an appreciation of the reasonably foreseeable consequences of the decision to take the medication or not to take it. Rather, the CCB accepted Dr. Morgan’s evidence that this choice itself was a result of Mr. Almeida’s delusional disorder.

[51] Dr. Morgan argues that the situation with respect to Mr. Almeida’s condition was similar to the circumstances in 2010, in which the Court of Appeal dismissed an appeal from this Court which denied an appeal from the CCB; D'Almeida v. Barron, 2010 ONCA 564, leave to appeal ref’d 2011 CanLII 14359 (S.C.C.). Writing for the Court, Rosenberg J.A. concluded (at paras. 25-26),

[25] As a result of his mental condition, which does not simply include his fixed false belief that he is the rightful King of Canada, the appellant is unable to recognize that he is mentally ill. As a result, he cannot apply the information to his circumstances. He cannot appreciate that without the medication his condition will deteriorate. While the appellant verbalizes that he would rather be in hospital without medication, that is not the same as appreciating the consequences of the failure to treat. For his belief is not that lack of medication will cause his return to hospital. Rather, he believes that he will continue to improve without the medication. The respondent's opinion that the appellant's condition will deteriorate is firmly anchored in the evidence, including evidence of the experience both before and after the appellant began treatment.

[26] The appellant recognizes some of the negative effects of treatment, namely, the side effects. But he has no appreciation of the positive effects of treatment or the negative effects of the failure to treat. To the contrary, as set out above, he believes that his progress is solely the result of his own efforts and that the treatment has retarded his progress. That is manifestly not the case. Moreover, his failure to appreciate is directly related to his mental condition. Because of his false ideas, he does not appreciate that he is ill and does not appreciate that he needs medication. He attributes his hospitalization not to his illness, but to the fact that evil forces are conspiring to keep him from assuming his proper role in this country. (Emphasis added.)

[52] The Court of Appeal distinguished Mr. Almeida’s case from Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, where Professor Starson understood that he suffered from a mental condition and appreciated the possible benefits of medication, but preferred his state of mind without medication. By contrast, Rosenberg J.A. stated, “This appellant does not understand that he suffers from a mental condition nor does he appreciate the purpose of the medication and the possible benefits.” (at para. 27)

[53] In this instance, in light of the record before the CCB and its reasons, I find Mr. Almeida has not established that the Board committed a palpable and overriding error in concluding that Mr. Almeida was not capable within the meaning of s.4(1) of the HCCA.

CONCLUSION

[54] For the reasons set out above, Mr. Almeida’s appeal is dismissed.

[55] Costs were not sought by Dr. Morgan, and there will be no costs awarded.

[56] I am grateful for the assistance of counsel for the parties and the amicus curiae.

Sossin J.

Released: August 24, 2020