Ducharme v. Hudson

Ontario Reports

Ontario Superior Court of Justice

Myers J.

February 19, 2021

155 O.R. (3d) 25 | 2021 ONSC 1286

Case Summary

Criminal law — Mental disorder — Doctor proposing to treat not criminally responsible patient with antipsychotic drugs — Patient claiming not to suffer mental illness and not consenting to medication — Patient appealing decision of Consent and Capacity Board that patient lacked capacity to consent — Patient taking no steps to have appeal heard — Patient's condition rendered it necessary to treat him before appeal was heard — Patient was delusional and could be violent and threatening — Evidence established that proposed treatment was likely to improve patient's condition and benefits outweighed risks — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 19.

Health care — Consent to treatment — Doctor proposing to treat not criminally responsible patient with antipsychotic drugs — Patient claiming not to suffer mental illness and not consenting to medication — Patient appealing decision of Consent and Capacity Board that patient lacked capacity to consent — Patient taking no steps to have appeal heard — Patient's condition rendered it necessary to treat him before appeal was heard — Patient was delusional and could be violent and threatening — Evidence established that proposed treatment was likely to improve patient's condition and benefits outweighed risks — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 19.

The appellant was a patient at a high-security forensic hospital after having been being found not criminally responsible on account of mental disorder in relation to charges against him. The respondent was a doctor in charge of the appellant's care. He diagnosed the appellant with unspecified schizophrenia spectrum and other psychotic disorder and proposed to treat him with antipsychotic medication. The appellant did not believe that he suffered from mental illness and did not consent to taking the medication. The Consent and Capacity Board upheld a finding by the respondent that the appellant lacked capacity to consent to treatment. The appellant appealed the decision of the Board, but took no steps to have the appeal heard as he was unable to find a lawyer that he could trust who would take Legal Aid. The respondent brought a motion to either dismiss the appeal or to authorize treatment before the appeal was heard.

Held, the motion should be granted.

The appellant's condition rendered it necessary to treat him before the appeal was heard. The medical evidence was that the appellant's mental status was unstable and that he expressed persecutory delusions with respect to hospital staff and grandiose delusions about his musical ability. He was easily agitated and he threatened staff and their families. His health improved on three occasions after taking antipsychotic medication. The appellant acknowledged that he had experienced breakdowns and that he was frequently violent and threatening, but he attributed his violence to the physical and emotional abuse he claimed to have suffered from the respondent and other hospital staff. He was unable to particularize the abuse. He acknowledged that he appeared to do better when on medication, but he attributed that to better treatment of medicated patients by the staff. The treatment proposed was likely to substantially improve the appellant's condition and the benefits outweighed the risks. Any side effects could be [page26] monitored and controlled by changing the dosage. In light of the appellant's evidence that he did not suffer mental illness, his chances of success on appeal were not strong. His suffering was brought on by his untreated and severe illness and he ought not to be left to suffer any longer than necessary. The order for treatment was to take effect in six days to allow the appellant an opportunity to bring an urgent motion to delay or stay the order in light of his stated intention to appeal a negative decision.

Cases referred to

Starson v. Swayze, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, 2003 SCC 32, 225 D.L.R. (4th) 385, 304 N.R. 326, J.E. 2003-1132, 173 O.A.C. 210, 1 Admin. L.R. (4th) 1

Statutes referred to

Canadian Charter of Rights and Freedoms

Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 19

MOTION to authorize treatment with antipsychotic medication.

C. Ducharme, in person.

J. Lefebrve and J. Thomson, for Dr. Hudson.

A. Raviele, amicus curiae.

ENDORSEMENT BY THE COURT: --

Background Facts

[1] Mr. Ducharme is a patient at Waypoint Centre for Mental Health Care. It is a high-security forensic hospital in Penetanguishene.

[2] Mr. Ducharme is being held at Waypoint under a decision of the Ontario Review Board as a result of being found not criminally responsible on account of mental disorder in relation to criminal charges five years ago.

[3] Dr. Hudson is responsible for Mr. Ducharme's care. He has diagnosed Mr. Ducharme as suffering from "unspecified schizophrenia spectrum and other psychotic disorder".

[4] On July 24, 2020, the Consent and Capacity Board upheld a finding by Dr. Hudson that Mr. Ducharme lacks capacity to consent to treatment.

[5] Dr. Hudson proposes to treat Mr. Ducharme with antipsychotic medication.

[6] Mr. Ducharme does not believe that he suffers from mental illness. He does not consent to take antipsychotic medication. He says that it will do him no good because he is not ill. He does not want to risk any of the side effects that he believes can be extremely dangerous.

[7] Mr. Ducharme appealed to this court from the decision of the Board on the day that it made its decision. However, he has [page27] taken no steps to have his appeal heard since then. He told me that he cannot find a lawyer he trusts who will take Legal Aid.

[8] Ms. Raviele appears as amicus curiae under a Legal Aid Certificate. I am grateful for her assistance.

This Motion

[9] Dr. Hudson asks the court to dismiss Mr. Ducharme's appeal due to his delay in taking the steps necessary to have it heard. Alternatively, he asks the court to authorize him to treat Mr. Ducharme before the appeal is heard.

[10] The Board provided its transcript and appeal record in December. There is nothing Mr. Ducharme could have done to have the appeal heard before then. Moreover, now that amicus curiae has been appointed, she can deliver a factum and assist to have the appeal scheduled.

[11] It is possible that this matter could be heard for under two hours in late April. If it needs more than two hours to argue, then the appeal will not likely be heard until late May or early June.

[12] Dr. Hudson's evidence is that antipsychotic medication will likely start to cause positive benefits for Mr. Ducharme in as little as two to three weeks.

[13] Should I authorize Dr. Hudson to treat Mr. Ducharme now or wait for the outcome of the appeal?

[14] I recognize that the order I am asked to make will infringe upon Mr. Ducharme's physical, bodily integrity as well as his personal autonomy. If he is to be medicated, Mr. Ducharme will be restrained in what is likely to be a fairly violent, if brief, encounter.

[15] I watched and listened to Mr. Ducharme give heartfelt and articulate evidence and submissions. He regards Dr. Hudson and the staff at Waypoint as criminals who have subjected him to physical and emotional abuse amounting to torture. He regards Dr. Hudson's desire to medicate him as nothing short of an attack against his personal dignity and his prospects for a meaningful future.

Mr. Ducharme's Evidence

[16] Mr. Ducharme gave evidence orally at the hearing by videoconference. He is being detained in an isolation cell at Waypoint in a very high-security setting. The sliding door of his cell was opened a few inches so he could participate in the hearing by a computer on a desk in front of his cell.

[17] Mr. Ducharme advised me that the Province has determined that the private owners of mental health facilities in [page28] Ontario are exempt from the Canadian Charter of Rights and Freedoms. As a result, he says, he has suffered months of abuse while at Waypoint. In addition, he has determined that the owners of Waypoint have laundered and stolen tens or hundreds of millions of dollars of government funding that should have been spent on patient care.

[18] Mr. Ducharme has written letters to every government body that he can think of to expose the abuse that he has suffered and the financial irregularities he has found. He says that no one will pay attention to people in his situation. He has therefore taken steps to form a grassroots movement to expose his issues to the public.

[19] Mr. Ducharme would like the police to investigate the abuse he has endured and the financial issues he raises. He believes that Dr. Hudson and the staff will be arrested very quickly if they do so. I told Mr. Ducharme that the court cannot order a police investigation. However, for what it's worth, these reasons, with his allegations, will be made public and available on the website.

[20] One important theme of Mr. Ducharme's evidence is that he is a musician. He believes that he has the talent to be a sensation the likes of which have never been seen before. He believes that he is so skilled as to be a national treasure worth hundreds of millions of dollars.

[21] Mr. Ducharme says that to prove he was not having grandiose delusions, he asked Dr. Hudson to let him have access to a recording studio so that he could prepare a demo of his music and dance. He says that if the demo is not a hit in the industry, he will acknowledge that he has been living under a delusion and he will take medication.

[22] In response to his offer, Mr. Ducharme says that Dr. Hudson said that he would get back to Mr. Ducharme in a week. But Dr. Hudson did not provide an answer the next week, so that, on the eighth day Mr. Ducharme says he had a "nervous breakdown". He says he began smashing equipment in his room and nurses then attended and assaulted him.

[23] Mr. Ducharme acknowledges that he had several breakdowns in the recent past. He acknowledges that he is frequently violent. He makes very significant threats to kill and violently maim staff and their families. He attributes his violence to the abuse he suffers. He says that anyone being tortured would eventually fight back.

[24] Mr. Ducharme also acknowledges that he appears to do better when he is on medication. However, he says, it is not due to the medication. Rather, once the staff have a patient [page29] medicated, they treat the patient better. He says he is under less stress to cause violent responses when staff treat him better.

[25] Mr. Ducharme acknowledges that he has smeared his feces in his room. However, he says that he only smears it to cover the camera by which he is watched 24/7 and his mirror. If staff would give him paper to cover the mirror and camera, he would not have to use his feces.

[26] During the hearing, Mr. Ducharme broke into tears at one point. At another time, he spontaneously started singing to himself. He was not disruptive, but there was clear indication of his emotional fragility.

[27] It strikes me as important to note that Mr. Ducharme was not able to particularize the daily abuse and stress he says is inflicted upon him. No doubt there have been some major blow-ups. But he says he suffers constant abuse in a very general way.

[28] Similarly, Mr. Ducharme did not describe any negative effects of his prior periods while on antipsychotic medications. He believes they are dangerous and that staff have killed many patients using medication. But he did not identify any issue or side effect or complaint that he has suffered using them previously.

Mr. Ducharme's Medical Records

[29] The most recent report from Mr. Ducharme's treatment team provides:

Mr. Ducharme's mental status is unstable. He frequently expresses persecutory delusions including that staff are harming him or are trying to frame him. He regularly voices grandiose delusions insofar as his musical ability ("[I'm] ... better than Michael Jackson, better than Elvis!" [June 16, 2020]) and his high-level connections with Warner Brothers and Drake. He believes that Waypoint receives large sums of money to keep him in hospital. He insists that Waypoint is run by the mafia and that they are laundering money.

Consistent with these beliefs, Mr. Ducharme repeatedly states he wants retribution against Waypoint staff, voicing detailed threats to harm and/or kill staff and their families. He is easily agitated and his mood can quickly become explosive even during simple therapeutic interactions. It is important to note that Mr. Ducharme's threats emanate in large part from his perception of how staff are treating him, this being influenced by his delusional thoughts; as such staff must be vigilant at all times. This makes the building of rapport difficult, in that Mr. Ducharme does not see staff's attempts to encourage and reassure him as genuine. Nonetheless, staff continue to provide Mr. Ducharme with support and encouragement regularly in an effort to help him move forward.

[30] Dr. Hudson records Mr. Ducharme's decline in wellness over the months leading to his isolation and strict confinement. Dr. Hudson believes that Mr. Ducharme's insight and mental [page30] health will improve on medication as it has in the past. Moreover, his situation will not improve spontaneously.

[31] Counsel took me through evidence of three separate occasions in past when Mr. Ducharme took antipsychotic medication and saw his health improve. With decreases in symptom, such as violence, Mr. Ducharme has experienced greater liberty in his living conditions. He can be released from high-security isolation and perhaps obtain greater privileges in the facility.

The Legal Test

[32] Dr. Hudson relies on s. 19 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, that provides:

Order authorizing treatment pending appeal

19(1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given.

Criteria for order

(2) The court may make the order if it is satisfied,

(a) that,

(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person's condition will not or is not likely to improve without the treatment, or

(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

(d) that the person's condition makes it necessary to administer the treatment before the final disposition of the appeal.

[33] I required counsel to take me through the evidence for each individual piece of the statutory test.

[34] I certainly agree that the treatment proposed is likely to improve substantially Mr. Ducharme's condition. The most striking piece of the hearing to me, was how very unhappy Mr. Ducharme is. He is confined to a small cell. When he comes out, which is rarely, he has to be restrained. He is angry. He feels threatened physically and emotionally. He calls for help from everyone he can speak to or write to. He feels that he is being tortured and kept from experiencing his music. [page31]

[35] His prior experiences at CAMH, in Montreal, and then Ontario Shores facilities each show that Mr. Ducharme experienced far better quality of life when on medication.

[36] A clinical note dated May 1, 2018 from Ontario Shores described Mr. Ducharme's status as follows:

On February 15, 2018, Mr. Ducharme was transferred from Phillip Pinel Institute in Quebec to Ontario Shores. He settled well on the unit, and he has been pleasant and calm during interactions. He generally reports his mood as being "good", and denies any psychotic symptoms. He has been compliant with medications. On the unit, he spends his time on the computer and watches television. His mother and sister have visited him on the unit since his arrival. He socializes appropriately with co-peers and engages well with staff. He has been utilizing his accompanied privileges with staff to go for walks on the grounds, and was recently granted indirect passes on hospital grounds. Mr. Ducharme was very patient when the clinical team had to delay initiation of privileges in order to clarify the disposition given to him by the Quebec Review Board.

[37] There is just no comparison between that Mr. Ducharme and the angry, sad, agitated, violent Mr. Ducharme kept cooped up in a small cell today.

[38] Moreover, it seems apparent that the benefits to Mr. Ducharme outweigh the risks to him. Dr. Hudson testified that side effects can be monitored and controlled by changing the dosage of the medication and by anti-side effects medication. I do not minimize the harm of going against Mr. Ducharme's expressed wishes. But I am not able to articulate any other tangible and realistic risk to him on the evidence before me.

[39] Recognizing the need to be as minimally intrusive as possible, Dr. Hudson proposes a medication by injection that is needed only once in three months. Giving the initial shot will likely require that Mr. Ducharme be restrained for a few seconds. But, thereafter, his psychotic symptoms should decline, his mood should improve, and consequently, he will likely become entitled to enjoy greater freedom and more pleasant living conditions.

[40] Finally, I must consider if Mr. Ducharme's condition makes it necessary to administer treatment before the appeal is heard. Ms. Raviele points out that if the medication works as hoped, the appeal may be withdrawn or rendered moot. By this decision therefore, I may be ending Mr. Ducharme's appeal practically speaking if not legally so.

[41] While nothing in s. 19 discusses the strength of the appeal, the case law looks at the appeal process to try to help with some conclusions. First, the appeal has been outstanding for a long time. Mr. Ducharme has been untreated in high-security confinement throughout. The appeal could possibly be scheduled within a couple of months although it may take a little [page32] longer. The medication is expected to start showing real effects in a few weeks.

[42] In light of Mr. Ducharme's clear evidence before me that he does not believe that he suffers mental illness, I do note that his chances of success on appeal are not strong. This is the example given in Starson of someone who cannot foresee or weigh the relative risks and benefits of medication because their illness blinds them to its existence: Starson v. Swayze, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, 2003 SCC 32, at para. 18. Mr. Ducharme does not appear to be "able to acknowledge the fact that the condition for which treatment is recommended may affect him".

[43] I cannot in good conscience leave Mr. Ducharme suffering one day longer than necessary. I know that he does not believe that he is ill. He says many others, including staff at Waypoint, tell him that he is not ill. Two staff testified at Mr. Ducharme's request and neither supported that statement.

[44] I am satisfied that Mr. Ducharme's condition renders it necessary to treat him before the appeal is heard because his suffering is brought on by his untreated and severe illness. He is quick to blame everyone else for causing him stress that he uses as the excuse for his violence. He cannot see the cause and effect that once his violence and threats are under his own control, his quality of life will improve physically as well as emotionally.

[45] The order sought in para. (a) of the Notice of Motion (Caselines p. A5) is granted.

[46] This order is not effective until 5:00 p.m. on February 24, 2021. Mr. Ducharme announced an intention to seek to appeal a negative decision. I told him that he will need to bring an urgent motion to a judge of the Court of Appeal to seek to delay (or stay) this decision.

[47] It is not clear to me how he will be able to do that from his confinement. I know that he does not trust lawyers. But he will need one urgently if he wants to appeal. The Law Society of Ontario offers a free lawyer referral service that can be reached at https://lsrs.lso.ca/lsrs/welcome.

Motion granted.

End of Document