Court File and Parties

COURT FILE NO.: CV-19-000000401-0000

DATE: January 24, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

L.R. Appellant

– and –

DR. ANTONINA STAKHEIKO Respondent

COUNSEL:

Robert F. Goddard, Appearing for the Appellant

Stephanie Pearce and Justin McCarthy, Appearing for the Respondent

Heard: November 20, 2019

BEFORE: Tausendfreund, J.

REASONS

[1] L.R. appeals from the decision of the Consent and Capacity Board (“Board”) dated July 22, 2019 (with Reasons dated July 28, 2019).

[2] The Board upheld L.R.’s involuntary patient status which decision is not challenged in this appeal.

[3] The subject of this appeal is the decision of the Board which upheld the decision of L.R.’s treating psychiatrists, including the Respondent, that he is incapable of consenting to treatment with anti-psychotic medication for his diagnosed mental disorder, namely schizophrenia. L.R. asks that this decision be set aside and that he be found capable of making his own treatment decisions, or in the alternative, that a new hearing be ordered.

[4] The grounds for the appeal are that the Board:

a) misapplied the test for capacity; and

b) failed to consider relevant evidence.

[5] The Respondent disagrees with L.R.’s grounds of appeal and states that the Board’s decision is reasonable and well within the range of conclusions that could reasonably have been reached on the law and the evidence.

Facts

[6] In 2019, L.R. was a 38-year-old single male with no dependants. He had not completed high school and had limited employment history. He supported himself with benefits from the Ontario Disability Support Plan (“ODSP”).

[7] The Respondent, Dr. Antonina Stakheiko (“Dr. Stakheiko”), is a psychiatrist who practices at the Belleville General Hospital (“BGH”). Dr. Stakheiko was L.R.’s attending physician and was most responsible for his treatment during his relevant hospital admissions.

[8] On July 24, 2016, and while in the BGH emergency department, L.R. went to the washroom, broke a sink, took the faucet and inserted it in his rectum. He thereby damaged his bowel and caused himself severe internal injuries which required surgical intervention in Peterborough. He was returned to the BGH Mental Health inpatient unit where he took prescribed anti-psychotic medication for a number of days. He was then discharged with a colostomy resulting from the bowel perforation.

[9] On May 7, 2018, he was admitted to the BGH in a psychotic state. He had been causing a disturbance in the community, was sleeping on business properties and was wandering into traffic while talking about God.

[10] On June 29, 2018, L.R. was re-admitted to the inpatient mental health unit in the BGH where he remained until July 10, 2018. He was treated with anti-psychotics. Following his discharge, L.R. saw Dr. Stakheiko on an outpatient basis between July and December 2018, during which time he received injections of anti-psychotic medication.

[11] On July 12, 2019, L.R. was again involuntarily admitted to the BGH. He was reported to be homeless and presented in a disruptive and agitated manner. Dr. Badowski, the attending emergency physician, noted that L.R. was talking in the third person, endorsing religious themed ideas and was incoherent. Dr. Badowski documented that L.R. was probably suffering from a mental disorder that would likely result in serious physical self impairment unless treated. L.R. was then examined by three psychiatrists, Drs. MacPherson, Stakheiko and Reshetukha, all of whom diagnosed L.R. to have symptoms of schizophrenia.

[12] Dr. Stakheiko testified before the Board. In her opinion, L.R. was suffering from schizophrenia which impaired him from appreciating the foreseeable consequences of not proceeding with treatment. She stated that L.R. did not believe that he needed medications and claimed to be healthy.

Board Hearing

[13] On July 14, 2019, Dr. Reshetukha issued a Form 3 under the Mental Health Act (“MHA”), finding that L.R. met the criteria of detention in a psychiatric facility as an involuntary patient and that L.R. was incapable of consenting to treatment of his mental disorder with anti-psychotic medication.

[14] At L.R.’s request, the Board convened to review the grounds of the continuation of his involuntary status and the evidence regarding his capacity to consent to treatment of a mental disorder.

[15] At the hearing, Dr. Stakheiko testified that she had continued on an ongoing basis to assess L.R.’s capacity to consent to the treatment of a mental disorder during his current admission. It was her opinion that he was then incapable of consenting or refusing to consent to treatment of a mental disorder with anti-psychotic medication.

[16] Dr. Stakheiko further testified that at the time of L.R.’s current admission, his presentation was consistent with previous incidents when he had become non-compliant with his prescribed medication. It was her opinion that these were all symptoms of a mental disorder, namely schizophrenia.

[17] Based on a review of all of the evidence, the panel found that:

That evidence was sufficient to support a finding that L.R.’s mental disorder was of such a nature and quality that there was a likelihood of him suffering serious physical impairment unless he remained in the custody of a psychiatric facility. When untreated, his delusional beliefs had resulted in him engaging in certain activities that exposed him to a risk of suffering serious physical impairment. There was a marked decline in his self care and his awareness of the risks of serious physical impairment caused by these activities.

L.R. had previously been admitted to a psychiatric facility in 2016 and 2018 to receive treatment for symptoms of a mental disorder, namely schizophrenia. The panel was satisfied that this mental disorder was recurring in nature and if left untreated that it would likely result in L.R. suffering substantial mental deterioration.

[18] The panel applied the 2-part test set out in s.4(1) of the Health Care Consent Act (“HCCA”) to determine whether L.R. could be found incapable of making decisions with respect to treatment with anti-psychotic medication.

[19] The panel ruled that it was satisfied that, on account of a mental disorder, L.R. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision concerning treatment of his mental disorder.

Standard of Review

[20] The parties agree and I find that the Standard of Review as to whether the Board applied the appropriate legal tests for incapacity is one of correctness, and that on the application of the law to the facts, the standard is reasonableness.

[21] The Board is a specialized tribunal and is therefore entitled to considerable deference on issues within its expertise: see N.T. v. Bibr, 2015 ONSC 7029 at para 34.

[22] The Supreme Court in Starson v. Swayze, 2003 SCC 32 (“Starson”) held that a decision of the Board must be upheld, provided it is among the range of conclusions that could reasonably be reached on the law and the evidence. The Court stated at para 5:

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.

…The fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board’s conclusion.

Analysis

[23] The Board recited and relied on the test for capacity set out in s.4(1) of the HCCA:

A person is capable with respect to a 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.

[24] The Board also identified that under s.4(2) of the HCCA, a person is presumed to be capable to consent to treatment. Incapacity must be proven to exist at the time of the hearing. The onus here is on Dr. Stakheiko. The standard of proof is on a balance of probabilities: see Starson at para 77.

[25] As summarized by the Supreme Court in Starson at para 78, the determination of capacity under the HCCA involves two criteria:

a) First, a person must be able to understand the information that is relevant to making a treatment decision.

b) Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of the decision or lack thereof.

[26] The court further noted in Starson at para 79:

…if the patient’s condition results in him being unable to recognize that he is affected by its manifestation, [mental health issues], he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

[27] The Board found that the first part of the capacity test was met, namely that L.R. was able to understand the information relevant to making a decision about the treatment in question.

[28] Turning to the second part of the capacity test, namely the issue of the ability of an individual to appreciate the reasonably foreseeable consequences of engaging, or not engaging, in treatment of a mental health disorder, the Board quoted from Starson at para 79:

… if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. … if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

[29] Addressing this issue whether L.R. was able to appreciate the reasonably foreseeable consequences of his decision or lack of one, the Board stated:

Protecting and promoting the autonomy of a person to make treatment decisions is a legal principle that must be protected with significant vigor when dealing with individuals with mental health challenges. At the same time, the panel was required to give equal consideration to the treatment needs of a mentally disordered individual.

The panel was tasked with addressing the issue of whether the presumptive right of L.R. to make treatment decisions should be abrogated, as a result of his incapacity to appreciate the reasonably foreseeable consequences of the decision to engage, or not engage, in the treatment of the mental disorder he suffered from.

[30] The Board quoted Dr. Stakheiko:

I presented him with my impression that his experiences are very common of people with schizophrenia. L.R. consistently dismisses this possibility. He cannot at all acknowledge even the possibility he has mental health illness. He tells me he has no delusions or hallucinations. He doesn’t need to be on anti-psychotic medications, as God is an ultimate healer and will help him.

[31] The Board continued:

L.R. dismissed the possibility that he suffered from a mental disorder or that there was treatment available that would aide him in alleviating the symptoms that he suffered from…L.R. demonstrated no insight into the symptoms he displayed when he was most recently admitted to the BGH on July 12, 2019. He was reported to be homeless, presenting in a disruptive and agitated manner. His behaviours were extreme enough that police were required to bring him to hospital. He was confrontational with police to the extent that a taser was required to subdue him. Upon admission, he was endorsing religious themed ideas and referring to himself in the third person. He required 4-point restraints…

Dr. Stakheiko testified that it was the symptoms of the mental disorder that L.R. suffered from that impaired or prevented him from appreciating the reasonably foreseeable consequences of a decision or lack of a decision regarding treatment. L.R. was in the exact situation referenced by Justice Maclachlin in Starson, when she spoke of individuals who may be denied treatment they require based on an inability to make sound and considered decisions that anticipate the reasonably foreseeable consequences of engaging in or foregoing the proposed treatment of their mental disorder…

Based on a review of all of the evidence, the panel was satisfied that L.R. was, on account of mental disorder, unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision concerning treatment of the mental disorder he suffered from.

[32] Although the Board noted that it was required to give equal consideration to the treatment needs of a mentally disordered individual, there was no reference or any comment in its decision regarding L.R.’s treatment needs, other than this statement.

[33] I accept that the Board well understood that the issue before it was not a question of the best interest of L.R., but his mental capacity to make a decision about the treatment proposed for him. As in King v. Lebreton, 2011 ONSC 6820 at paras 26-28, I find that the Board applied the correct test, namely whether L.R. had the mental capacity to appreciate the reasonably foreseeable consequences of his decision or the lack of one.

[34] In short, there is no reference in the Board’s decision to the issue of what the Board might consider to be in the best interest of L.R. The Board focused its decision making process entirely on whether L.R. appreciated the reasonably foreseeable consequences of his decision or lack of decision concerning treatment.

[35] I am satisfied that the Board applied the correct test and did not infuse or conflate its decision with L.R.’s treatment needs.

[36] Evidence before the Board that L.R. was unable to appreciate the reasonably foreseeable consequences of his decision to decline anti-psychotic medication included the following:

a) In 2016 and 2018, L.R. was hospitalized on two occasions for treatment of his psychiatric condition. Both Drs. MacPherson and Stakheiko on those occasions diagnosed L.R. to suffer from schizophrenia.

b) On July 12, 2019, the emergency physician, Dr. Badowski documented that L.R. presented as unkempt, dishevelled and incoherent. He had no insight into his current condition, referred to himself in the third person, rambled and was unable to follow a convesation. Dr. Stakheiko testified that L.R.’s delusional ideas impaired his ability to appreciate the reasonably foreseeable consequences of treatment. He was unable to acknowledge even the possibility that he had a mental health illness. He asserted that he had no delusions or hallucinations and did not need anti-psychotic medications, as God would help him.

c) During his oral testimony, L.R. stated that:

• he did not need any medication;

• he did not accept the diagnosis of schizophrenia;

• he did not believe that he had a mental disorder other than a learning disability;

• he believed that God had already healed him, heart mind and soul, and that God would take care of any psychiatric problem from which he might suffer; and that

• a combination of marijuana and unspecified religious intervention would address his mental health issues.

d) Dr. Stakheiko testified that in her view L.R.’s symptoms of schizophrenia impaired or prevented him from appreciating the reasonably foreseeable consequences of a decision or lack of decision, regarding treatment.

[37] I find that the Board not only heard from and considered L.R.’s position of refusing to take anti-psychotic medication, but that the Board also inquired into and heard about the reasons for L.R.’s failure to appreciate the consequences of his decision.

[38] An order will go dismissing the appeal and upholding the decision of the Board that L.R., on account of a mental disorder, was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision concerning treatment of his mental disorder.

[39] There will be no order as to costs.

Tausendfreund, J.

Released: January 24, 2020