Date: 20201106
TUESDAY, OCTOBER 27, 2020
R E A S O N S F O R J U D G M E N T
ROGER, J. (ORALLY):
[1] The appellant was an outpatient at the Royal Ottawa Mental Health Centre. He is currently an inpatient, being detained at the Royal Ottawa Mental Health Centre under a detention order that was subsequently made by the Ontario Review Board.
[2] The appellant appeals the decision of the Consent and Capacity Board dated February 11, 2020, which upheld a finding that the appellant was incapable with respect to treatment relating to his schizophrenia.
[3] The appellant seeks that the Board’s decision be quashed and a new hearing ordered arguing that:
a) the Board applied the wrong legal test in determining the appellant’s treatment capacity;
b) the Board’s finding that the appellant was likely to be violent was unreasonable; and
c) the Board failed to inquire into the parameters of the appellant’s appreciation of the treatment decision and came to an unreasonable conclusion.
[4] The appeal is brought under s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A. The parties agree, correctly, that the standard of review is governed by the Supreme Court of Canada’s decision in Vavilov. As such, considering that s. 80 of the Health Care Consent Act provides for an appeal to this Court, the appellate standard of review is applicable. Consequently, questions of law are decided on the correctness standard, questions of facts are decided on the standard of palpable and overriding error and questions of mixed facts and law are decided on palpable and overriding error unless an error of law can be separated for correctness review.
[5] The Health Care Consent Act is applicable. In Ontario everyone is presumed capable of making decisions about their own medical treatment. The test for capacity is found at s. 4(1) of the Health Care Consent Act. A person needs to be able to understand relevant information and be able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
[6] Here, there is no question that the appellant understands relevant information. The question was whether he is able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding his treatment.
[7] The Supreme Court decision in Starson v. Swayze, 2003 SCC 2, [2003] 1 S.C.R. 722 is the governing decision. At paras. 79 to 81 the Supreme Court informs us that:
Patient need not agree with the diagnosis in order to be able to apply the relevant information.
However, if a patient has a mental condition, as is the case here, the patient, while he or she may disagree with the diagnosis, must be able to recognize the possibility that he is affected by the condition. Condition (or conditions) refers to the broader manifestation of the illness rather than to a discrete diagnosable pathology. The patient must understand the objectively discernable manifestations of the illness, rather than the interpretation made of these manifestations.
I am essentially paraphrasing and almost quoting from the Supreme Court that, as a result a patient is not required to describe his mental condition as an illness or to otherwise characterize the condition in negative terms, and nor is the 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.
That paragraph is important, and I will come back to it.
Secondly, and I am quoting from para. 80 of the decision of the Supreme Court,
“Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences. The distinction is subtle but important… 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.”
Here, I am quoting from para. 81.
“However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences, such as if he received no explanation.”
I continue quoting from the decision.
“For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences… Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision.”
[8] Here, it is clear that the Board relied essentially on para. 79 of the Starson decision. This is clear from the analysis at page 12 of their decision and clear from their statements at page six. At page six the Board states the proper test to be applied and cites para. 79 of Starson. Effectively, the Board states that a patient will be unable to appreciate the consequences of his or her decisions if the patient’s condition results in him or her being unable to recognize that he or she is affected by the manifestations of the condition. This refers to the broader manifestations of the illness or conditions as indicated by the Supreme Court of Canada in Starson. Although not perfect, this is the analysis conducted by the Board as illustrated at p. 12 of its decision and as demonstrated by the questions that some of its members asked during the hearing of this matter.
[9] Considering the Board’s conclusion that the appellant was unable to recognize that he is affected by the manifestations of his condition and that he is therefore unable to appreciate the consequence of his decision, as outlined at para. 79 of Starson, the Board therefore did not embark on the analysis stated at paras 80 and 81 of Starson. The analysis stated at paras 80 and 81 of Starson was not required considering the Board’s finding and this is a correct application of the law stated in Starson. The Board applied para. 79 and found that the appellant’s condition results in him being unable to recognize that he is affected by its manifestations and therefore that he is unable to appreciate the consequences of his decision, as stated at para. 79 of Starson. This is a correct approach.
[10] On the issue of questions of facts and questions of mixed facts and law, I do not find a palpable and overriding error by the Board. Nothing is clearly wrong in their factual findings or an obvious error. It was reasonable to conclude, as they did, that the appellant did not understand the objective manifestations of his condition. Indeed, despite the appellant’s deteriorating condition, the appellant had a very limited understanding of the objective manifestations of his illness, stating essentially, when asked about his symptoms by members of the Board, that he had ambitious political aspirations and could not explain when asked further why he posted what he posted on Facebook.
[11] The sentence at p. 12 of the Board’s decision, which was giving me some difficulty, that the appellant “testified, that he showed no symptoms of anything before assaulting his mother”, is simply poorly written by the Board. The appellant did testify that he had no symptoms before these events. When he testified he did not link a lack of symptoms at that time to before the assault on his mother, it was rather he was asked questions about different times, and he said that he had no symptoms at a time that was prior to that event, although in the answers that he gave it was not linked to the assault on his mother.
[12] Similarly, the last paragraph of the Board’s analysis simply outlines that the appellant at present did not appreciate that a risk of violence is a likely consequence of his mental condition and, therefore, as per para. 79 of Starson, the appellant is unable to appreciate the consequences of his decision.
[13] Considering its findings, the Board was therefore not required to inquire into the parameters of the appellant’s appreciation. I say this because it is obvious when we read Starson that if you find the patient’s condition results in him or her being unable to recognize that he is affected by the manifestations of that condition, and therefore unable to understand or unable to appreciate the consequences of his decision, as is relevant to this situation in this case where he is able to apply the relevant information but unable to appreciate the consequences of his decisions, if you make that finding then there is no purpose in conducting the analysis at paras. 80 and 81 of Starson because you have found that the patient was unable because of his medical condition to recognize how he is affected by the manifestations of his condition. So, if you find that, then there is no point in going into the analysis at para. 80 which says, “secondly, looking to the patient’s ability to appreciate the consequences of his decision”, because you have already found that because of his mental condition the patient is unable to appreciate the consequence of his decision, because he is unable to recognize that he is affected by its manifestations. There is therefore no purpose in conducting the analysis of section 80 and 81, and that’s exactly what the Board did, they found the former and therefore did not conduct the latter analysis.
[14] The Board’s finding of a risk that the appellant might act violently was also not unreasonably or clearly wrong, considering the evidence relating to his more recent and ongoing deterioration.
[15] Consequentially, for reasons stated above, the appeal is dismissed.
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Elaine Paquette, certify that this document is a true and accurate transcript of the recording of October, 2020, in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario taken from Recording 0411-MR57-20201027-145534-10-ROGERP which has been certified in Form 1 by Ashley Moniz Andrade.
November 2, 2020 _________________________________
Date Elaine Paquette
Authorized Court Transcriptionist
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GEORGES LANDRY
Plaintiff
- and -
MELANIE STRIKE
Defendant
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE P. ROGER
on October 27, at OTTAWA, Ontario
APPEARANCES:
M. Davies
Counsel for the Plaintiff
J. Dagher
Counsel for the Defendant
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Reasons for Judgment Page 01
- Roger, J. (Orally)
Transcript Ordered: October 28, 2020
Transcript Completed: November 02, 2020
Ordering Party Notified: , 2020