COURT FILE NO: CV-19-615912
DATE: 20200910
ONTARIO
SUPERIOR COURT OF JUSTICE
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, Schedule A, As amended
B E T W E E N:
AHMAD SHAHWAN ) Self-represented
Appellant )
-and- )
DR. CLAIRE HARRIGAN ) Jessica Szabo, for the Respondent
Respondent )
) Maya Kotob, Amicus curiae
) HEARD: July 9, 2020
REASONS FOR DECISION
DAVIES J.
A. Overview
[1] Mr. Shahwan was admitted to Ontario Shores Centre for Mental Health under the care of Dr. Harrigan in December 2018 after he was found not criminally responsible as a result of a mental disorder in relation to charges of uttering death threats against Prime Minister Trudeau, the director of the Canadian Security Intelligence Service and others. The threats were part of a video Mr. Shahwan recorded and posted online.
[2] Mr. Shahwan testified at trial that he never intended to harm anyone; he was just angry because the Toronto Police and CSIS were not taking seriously his reports that the Jordanian Intelligence Agency was torturing him and trying to kill him. Mr. Shahwan testified that he posted the video to get the Canadian government’s attention so they would protect him.
[3] Shortly after being admitted to Ontario Shores, Mr. Shahwan was assessed by Dr. Harrigan. Dr. Harrigan formed the opinion that Mr. Shahwan has a delusional disorder and recommended that he take antipsychotic medication. Mr. Shahwan refused to consent to treatment. Mr. Shahwan believes that his experiences with the Jordanian Intelligence Agency are real, not delusions. He does not think he has a mental illness or that he needs medication.
[4] Dr. Harrigan also formed the opinion that Mr. Shahwan is not capable of appreciating the risks and benefits associated with taking (or not taking) antipsychotic medication. She, therefore, found Mr. Shahwan incapable with respect to the treatment she was proposing. Mr. Shahwan applied to the Consent and Capacity Board for a review of Dr. Harrigan’s finding that he is treatment incapable. The Board upheld Dr. Harrigan’s finding.
[5] Mr. Shahwan now appeals the Board’s decision. Mr. Shahwan argued that he does not have a mental illness and does not require medication. Amicus curiae urged me to consider whether the Board failed to consider Mr. Shahwan’s position that he does not have a mental illness and erred in finding his lack of insight precludes him from being capable of consenting to treatment. For the reasons that follow, I find that the Board did not err in upholding Dr. Harrigan’s finding of incapacity and Mr. Shahwan’s appeal is dismissed.
B. Standard of Review
[6] Any party to a hearing before the Consent and Capacity Board has a right to appeal the Board’s decision to this Court on a question of law or fact or both.[^1] Because there is a statutory right of appeal from the Board’s decision, this Court must apply “appellate standards of review”.[^2] In other words, if the appeal raises a question of law, that issue will be decided using the correctness standard. If the appellant challenges an issue of fact or an issue of mixed fact and law, this Court will only overturn the Board’s decision if the Board committed a “palpable and overriding error”. For a mistake to be “palpable and overriding” it must be both obvious and determinative of the outcome of the case.[^3]
C. Did the Board err in finding that Mr. Shahwan is treatment incapable?
[7] In its reasons, the Board correctly stated the two-part test for capacity to consent to treatment from the Health Care Consent Act:
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 treatment…and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[^4]
[8] The Board also correctly noted that Mr. Shahwan is presumed to be capable of consenting to treatment and the onus was on Dr. Harrigan to establish otherwise.
[9] Dr. Harrigan found that Mr. Shahwan was capable of understanding information related to the proposed treatment but was not capable of appreciating the consequences of his decision to refuse treatment. The Board’s focus was, therefore, on whether Mr. Shahwan was able to appreciate the reasonably foreseeable consequences of his decision to decline treatment. The Board’s reasons on this issue are as follows:
There is no issue in the present case that AS suffered from mental illness, namely delusional disorder. The grounds for this finding were documented by Dr. Harrigan in the CCB Summary (Exhibit 4), the Psychiatric Progress Notes (Exhibit 3), and were adequately corroborated by the 28 page forensic assessment of Dr. Woodside of September 4, 2018. The Board found that AS’s mental illness was both long‑standing and static….
The primary treatment proposed for AS was antipsychotic medication. Dr. Harrigan stated that she had discussed the potential risks and benefits of antipsychotic treatment with AS on several occasions including the morning of the hearing. The risk of AS not taking medication, inter alia, would be a recurrence of behavior by AS involving him threatening government officials, resulting in him being charged criminally. The benefit of AS engaging in treatment, inter alia, would be a decrease in his delusional thinking. Potential side effects of antipsychotic medication such as sedation, weight gain, extrapyramidal symptoms, and neuroleptic malignant symptoms were reviewed with AS by Dr. Harrigan. (Exhibit 3)
It was clear to the Board that a ruling was required in respect of the primary treatment proposed, namely that of antipsychotic medication. It was Dr. Harrigan’s opinion that AS did not believe he had a mental illness, and as a consequence he did not believe he needed to take antipsychotic medication. Dr. Harrigan’s opinion on this point was not seriously challenged, and the Board agreed with her assessment that AS’s lack of insight into his psychiatric condition foreclosed the possibility he could be capable with respect to antipsychotic treatment.
[10] Amicus urged me to consider two issues arising from the Board’s reasons. First, did the Board err in concluding there is “no issue” that Mr. Shahwan has a mental illness? Second, did the Board err in finding that Mr. Shahwan’s lack of insight “foreclose the possibility” he could be capable of consenting to treatment? These are issues of mixed fact and law, so the question is whether the Board made a palpable and over-riding error in reaching either conclusion.
i. Did the Board err in concluding that Mr. Shahwan has a mental illness?
[11] Mr. Shahwan’s position is and has always been that his experiences with the Jordanian Intelligence Agency are grounded in reality, not a delusion. Although Mr. Shahwan did not testify at the hearing, his position was before the Board in Dr. Harrigan’s clinical notes, her Consent and Capacity Board Summary and the report prepared by Dr. Woodside for Mr. Shahwan’s NCR hearing.
[12] Amicus notes that the Board was required to find that Mr. Shahwan had a mental illness before considering whether he was treatment incapable. In Starson v. Swayze, the Supreme Court held a finding of incapacity is only justified if it is the patient’s mental disorder that prevents him from being able to appreciate the foreseeable consequences of his decision to take or refuse treatment.[^5] In other words, Mr. Shahwan must have a mental illness and his mental illness must be the reason that he is not capable of appreciating the consequences of his decision. Amicus argues that the Board’s reasons do not meaningfully address Mr. Shahwan’s position that he does not have a mental illness.
[13] It is unfortunate that the Board said that there was “no issue” that Mr. Shahwan has a mental illness. That was a live issue at his hearing. However, the Board’s reasons must be read as a whole, in the context of the evidence adduced at the hearing.[^6]
[14] Despite its initial statement that there was no issue that Mr. Shahwan has a mental illness, the reasons show that the Board considered but ultimately rejected Mr. Shahwan’s position that he does not have a mental illness. The Board referenced Mr. Shahwan’s position explicitly. The Board relied on Dr. Harrigan’s clinical notes and summary as well as Dr. Woodside’s report to support its finding that Mr. Shahwan has a mental illness that is both long-lasting and static.
[15] Dr. Woodside’s report was part of the record before the Board. During his assessment of Mr. Shahwan, Dr. Woodside reviewed the record from Mr. Shahwan’s trial, interviewed Mr. Shahwan and collected collateral information. Dr. Woodside also arranged for Mr. Shahwan to complete psychological testing. Dr. Woodside noted that Dr. Ukwe at the Scarborough and Rouge Hospital first diagnosed Mr. Shahwan with a delusional disorder in April 2018. The psychologist who conducted the psychological testing concluded that Mr. Shahwan has a lengthy history of paranoid delusions and possible auditory hallucinations. The psychologist formed the opinion that Mr. Shahwan likely has schizophrenia. Based on all the information he received, Dr. Woodside formed the opinion that Mr. Shahwan has a delusional disorder with persecutory and somatic delusions. Dr. Woodside addressed the psychologist’s conclusion that Mr. Shahwan has schizophrenia and explained why he preferred a diagnosis of delusional disorder:
In my opinion, his presentation is most in keeping with the diagnosis of delusional disorder, with both persecutory and grandiose subtypes present, as well as some somatic delusions…
Delusional disorder is a major mental illness that tends to have its onset later than schizophrenia, specially individuals tend to experience the onset of this illness in their thirties, and beyond. Individuals with a delusional disorder are not (by definition) markedly odd or bizarre in presentation. They tend not to be disorganized or thought form disordered. Auditory hallucinations tend to be absent. In essence, individuals with a delusional disorder will present with one or more domains of delusional thinking, which they may keep relatively well hidden, unless an individual asks specifically about cognition or behavior in those domains…
In this case, there is good information indicating that since at least 2015, Mr. Shahwan has been suffering from a delusion disorder with primarily persecutory delusions and some grandiose and somatic delusion, including his own self‑report, police reports of prior contact with Mr. Shahwan, available psychiatric records and the assessment completed by Dr. Heasman, albeit she favoured a diagnosis of schizophrenia. As well, in my opinion, Mr. Shahwan continues to suffer from this disorder at present, as evidenced by his ongoing description and belief that he is being actively persecuted by Jordanian intelligence agents.
[16] Dr. Harrigan met with Mr. Shahwan three times in early 2019. The notes of each meeting formed part of the record before the Board. During their first meeting, Dr. Harrigan explored in detail why Mr. Shahwan believes the Jordanian Intelligence Agency is targeting him. Mr. Shahwan reported that the Jordanian Intelligence Agency pulled a gun on him and tortured him when he was in Jordan. He also told Dr. Harrigan that the Jordanian Intelligence Agency followed him to Canada and were using high tech devices to pressure him not to complain to Canadian officials. Mr. Shahwan also complained that an American sexually assaulted him using a high tech device when he tried to go to the United States to surrender his passport to the Jordanian Embassy. Dr. Harrigan reviewed Mr. Shahwan’s beliefs about the Jordanian Intelligence Agency in their other meetings as well. He maintained in each meeting that his experiences are real, not delusions. Nonetheless, Dr. Harrigan concluded, consistent with Dr. Woodside’s opinion, that Mr. Shahwan’s beliefs about the Jordanian Intelligence Agency are delusions and that Mr. Shahwan suffers from a delusional disorder.
[17] It was open to the Board on the record to reject Mr. Shahwan’s position that he does not have a mental illness and accept the opinion of Dr. Harrigan and Dr. Woodside that Mr. Shahwan has a delusional disorder. The Board was not required to outline in detail the evidence it relied on to support its findings. The reports the Board noted in its reasons support its finding that Mr. Shahwan has a delusional disorder. Although brief, the reasons of the Board demonstrate that it understood Mr. Shahwan’s position and explain what evidence it relied on to reject his position in favour of Dr. Harrigan’s opinion.
ii. Did the Board err in finding that Mr. Shahwan’s lack of insight foreclosed the possibility that he could be capable?
[18] A patient’s refusal to acknowledge a mental illness is not, on its own, sufficient to prove incapacity. A patient can disagree with the doctor’s diagnosis and still be capable of consenting or refusing to consent to treatment. If there is evidence that the patient has some sort of mental condition, the focus of the analysis must be on whether the patient is able to recognize that he is affected by that condition:
…[A] patient is not required to describe his mental condition as an “illness”, or otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, 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.[^7]
[19] Amicus urged me to consider whether the Board erred in finding that Mr. Shahwan’s lack of insight “foreclosed the possibility that he could be capable with respect to antipsychotic treatment”. While a lack of insight will not always foreclose the possibility of being found capable, the Board’s finding must be read in the context of the evidence adduced in this case about Mr. Shahwan’s beliefs. According to the clinical record, Mr. Shahwan does not agree with the doctors’ opinions that he has a mental illness. Mr. Shahwan’s disagreement with his diagnosis might not, on its own, support a finding that Mr. Shahwan is incapable of consenting to treatment. However, the record also shows that Mr. Shahwan refuses to acknowledge the possibility that he has a mental illness or that he is experiencing symptoms of a mental condition that might benefit from treatment.
[20] When Dr. Harrigan asked Mr. Shahwan whether it was possible that his beliefs about the Jordanian Intelligence Agency persecuting him are the symptoms of a mental illness, Mr. Shahwan said, “I don’t think so”. He said his experiences, including the pain from the high tech devices, are real. Mr. Shahwan understands that he has been diagnosed as having a delusional disorder. However, Mr. Shahwan totally disagrees with the diagnosis and does not think it is possible that the doctors are right about his symptoms or the diagnosis. When asked if he thought medication could help with his symptoms, Mr. Shahwan repeatedly said no. He maintained there is nothing wrong with his brain and the medication would just make him feel bad. Mr. Shahwan also said he would not take the medication even if it could help with his symptoms. According to one of Dr. Harrigan’s assessment reports, when Mr. Shahwan was asked if he believed he was experiencing symptoms of a mental illness that could benefit from treatment he said, “No, I don’t believe so…medication will ruin my brain, and I don’t believe that I have a mental illness”.
[21] The Board understood that a patient’s refusal to admit he has a mental illness is not enough to support a finding of incapacity. The Board also understood that a patient is entitled to make an unwise decision about his own treatment without being incapable. The Board explicitly referenced the facts in Starson v. Swayze. In that case, the patient denied he had a mental illness but acknowledged he was affected by symptoms of a mental condition. Dr. Starson acknowledged that the proposed treatment could address his symptoms but declined the treatment because of the side effects. In that case, the Supreme Court held that Dr. Starson was capable of consenting to treatment.
[22] The Board expressly found that Mr. Shahwan’s situation is different than the facts in Starson v. Swayze. Mr. Shahwan does not recognize that he is affected by the manifestations of a mental illness; he does not think he is experiencing any symptoms of a mental illness; and he does not think medication can assist him. It is in this factual context that the Board concluded that Mr.Shahwan’s lack of insight forecloses the possibility that he could be capable of consenting to treatment. The evidence supports the Board’s finding that Mr. Shahwan lacks the insight necessary for him to appreciate the consequences of his decision to refuse treatment.
[23] Having found no error in the Board’s reasons in this case, I dismiss Mr. Shahwan’s appeal.
Davies J.
Released: September 10, 2020
COURT FILE NO.: CR-19-615912
DATE: 20200910
ONTARIO
SUPERIOR COURT OF JUSTICE
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, Schedule A, As amended
B E T W E E N:
AHMAD SHAHWAN
Applicant
– and –
DR. CLAIRE HARRIGAN
Respondent
REASONS FOR DECISION
B. Davies J.
Released: September 10, 2020
[^1]: Health Care Consent Act, 1996 S.C. 1996, c.2. Sched. A., s. 80 [^2]: Vavilov, 2019 SCC 65 at para. 37 [^3]: Benhaim v. St-Germain, 2016 SCC 48 at paras. 36 – 40; Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33 [^4]: Health Care Consent Act, s. 4 [^5]: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 at para. 81 [^6]: R. v. R.E.M., 2008 SCC 51 at para. 16 [^7]: Starson v. Swayze, at para. 79