Court File and Parties
Court File No.: CV-20-637032 Date: 2021-01-07 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
Between:
S.S., Appellant
- and - DR. MOJGAN MOTTAGHIAN, Respondent
Counsel: Eyitayo Dada, for the Appellant Glynnis Burt and Azin Samani, for the Respondent
Heard: At Toronto (in writing) On appeal from the decision of the Consent and Capacity Board dated February 26, 2020.
Before: Davies J.
A. Overview
[1] S.S. was involuntarily admitted to the Mackenzie Health – Richmond Hill Hospital on January 23, 2020 after an altercation with her mother. An application for psychiatric assessment (Form 1) was issued when S.S. was first admitted to hospital. Her status as an involuntary patient was continued on January 26, 2020 when a certificate of involuntary admission (Form 3) was issued. A certificate of renewal (Form 4) was issued on February 7, 2020 to further continue S.S.’s involuntary status.
[2] S.S. was treated with an antipsychotic medication, Latuda, for the first few days of her admission. However, when she learned that Latuda is an antipsychotic drug, S.S. refused to take it any longer. She also refused any other antipsychotic medication.
[3] On February 4, 2020, Dr. Mottaghian assessed S.S.’s capacity to consent to treatment. Dr. Mottaghian concluded that S.S. has chronic schizophrenia with delusions. Dr. Mottaghian formed the opinion that although S.S. was capable of understanding information related to the proposed treatment, she was not capable of appreciating the consequences of her decision to refuse treatment.
[4] At S.S.’s request, the Consent and Capacity Board convened a hearing on February 19, 2020. The Board confirmed S.S.’s involuntary status and also confirmed Dr. Mottaghian’s finding that S.S. is incapable of consenting to treatment with antipsychotic medication. The Board found that S.S. was unable to appreciate the reasonably foreseeable consequences of her decision to decline treatment.
[5] S.S. appeals the Board’s finding in respect of her capacity to consent to treatment only. S.S. argues that the Board applied the wrong legal test because it focused on what is in her best interests, which is an irrelevant factor when assessing capacity to consent. In the alternative, S.S. argues that the Board failed to consider evidence that she was capable of consenting to treatment. First, S.S. argues the Board overlooked evidence that Dr. Mottaghian failed to give her information relevant to her decision to refuse treatment. Second, S.S. argues the Board overlooked evidence that she did acknowledge that she is affected by the symptoms of a mental condition and made an informed decision to refuse treatment with antipsychotic medication.
[6] For the reasons that follow, I dismiss the appeal. I find that the Board applied the right legal test when considering whether S.S. was capable of refusing treatment. Further, the Board did not make any palpable and overriding error in assessing the evidence relevant to the issue of S.S.’s capacity.
B. Standard of Review
[7] Any party to a hearing before the Consent and Capacity Board has a statutory right to appeal the Board’s decision to this Court on a question of law or a question of fact or a question of mixed fact and law: see Health Care Consent Act, 1996 (HCCA), S.O. 1996, c. 2, Sched. A., s. 80. Because there is a statutory right of appeal from the Board’s decision, this Court must apply the appellate standards of review: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37.
[8] If an appellant raises a question of law, the Court will decide whether the Board’s decision on that issue was correct.
[9] If an appellant raises a question of fact, the Court will only overturned the Board’s decision if the Board committed a “palpable and overriding error”. For an error to be “palpable and overriding”, it must be both obvious and determinative of the outcome of the case: see Benhaim v. St-Germain, 2016 SCC 48 at paras. 36-40; Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33.
[10] When an appellant raises a question of mixed fact and law, it is not always easy to determine which standard of review applies. A question of mixed fact and law is one that involves the application of a legal standard to a set of facts: Housen v. Nikolaisen, 2002 SCC 33 at para. 27. In some cases, what appears to be a question of mixed fact and law may be a question of law alone. The Supreme Court of Canada provided the following example in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, at para. 39:
. . . if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.
[11] If a discrete question of law can be extricated from the question of mixed fact and law, the correctness standard will apply to the question of law. However, where a discrete question of law cannot be extricated from the factual considerations, the higher standard of “palpable and overriding error” will apply.
[12] S.S. argues that although the Board correctly stated the test for incapacity, it failed to apply it. S.S. argues the Board improperly considered what was in her best interest rather than focusing on whether she was able to appreciate the consequences of her decision to refuse treatment. This argument raises a question of law, which is to be reviewed on a standard of correctness.
[13] In the alternative, S.S. argues that the Board failed to consider evidence that was relevant to its assessment of her capacity. This argument is a question of mixed fact and law, which attracts a higher standard of review. If the Board did not apply the wrong legal test, S.S. must show that the Board committed a palpable and overriding error in its assessment of the evidence. In other words, the Board must have committed an obvious error about a factual issue that goes to the heart of the Board’s decision before I can intervene.
C. Did the Board apply the wrong legal test?
[14] S.S. can only be found incapable if she is unable to understand information relevant to making a decision about her treatment and unable to appreciate the reasonably foreseeable consequences of her decision to refuse treatment: HCCA, s. 80. The record is clear that S.S. was capable of understanding information about the antipsychotic medication Dr. Mottaghian recommended. The issue before the Board was whether S.S. was capable of appreciating the reasonably foreseeable consequences of her decision to refuse treatment.
[15] To be capable, S.S. does not have to agree with the medical opinions about her diagnosis. Nor does she have to act in her own “best interests”. As the Supreme Court of Canada held in Starson v. Swayze, 2003 SCC 32 at para. 19,
A patient who is capable has the right to refuse treatment, even if that treatment is, from a medical perspective, in his or her best interest. It is crucial to guard against interpreting disagreement with a particular diagnosis or proposed treatment plan as itself evidence of incapacity.
[16] In its reasons, the Board recognized at p. 6 that what might be considered to be in S.S.’s best interests is not relevant to its assessment of her capacity:
In the seminal case of Starson v. Swayze, [2003] S.C.R. 722 (“Starson”), the Supreme Court of Canada reviewed the law of capacity to consent to treatment. The Court noted that the right to make one’s own treatment decisions is a fundamental one that can only be displaced where it is established that a person lacks mental capacity to do so. The person’s “best interests” are not a consideration in determining the question of capacity to consent to (or refuse) treatment. Capable people have the right to take risks, to make decisions which others consider unwise, and to make mistakes. The presence of mental disorder should never be equated with a lack of capacity.
[17] S.S. argues that although the Board correctly stated the test for incapacity, it actually based its decision on what was in her best interest rather than on her capacity to appreciate the consequences of her decision. S.S. argues that the Board improperly focused on her history of non-compliance with treatment recommendations and improperly relied on her history of refusing treatment with antipsychotic medication as a factor in its assessment of her capacity. I disagree.
[18] In its reasons at pp. 10-11, the Board did review S.S.’s history of non-compliance with prescribed medication and her concomitant deterioration in some detail:
Dr. Mottahgian indicated that SS would continue to experience mental deterioration without treatment. The panel considered SS’s deterioration in light of her history of non-compliance with medication. Following her consultation with Dr. Feinstein in 2014, she had been prescribed Risperidone but chose not to take it. She was prescribed Risperidone again by Dr. Feinstein her second consult with him in 2015, but again stopped after a few doses. Dr. Mottaghian prescribed SS Olazapine during her admission to Mackenzie Health in September 2015, but SS stopped taking it upon discharge. During her admission to Mackenzie Health in April 2016, Dr. Kurup prescribed Zyprexa, but she did not take this medication beyond two days. The panel was satisfied that the evidence demonstrated that SS’s hospital admissions in 2015, 2016 and January 2020, had resulted from SS’s mental deterioration in the absence of any meaningful or prolonged treatment.
[19] By reviewing S.S.’s history of refusing to take medication as prescribed and the deterioration of her condition, the Board was not imposing on S.S. its own views of what was in her best interests, which would be a legal error. Rather, I find that the Board was identifying the reasonably foreseeable consequences of S.S.’s decision to refuse treatment with antipsychotic medication, namely that her mental health would further deteriorate. As the Court of Appeal held in Anten v. Bhalerao, 2013 ONCA 499 at para. 23, the capacity inquiry must start “with some evidence as to the foreseeable benefits and risks of treatment and the expected consequences of not having treatment.” In my view, the Board was properly identifying the expected consequences of S.S.’s refusal to take the prescribed medication before turning to the issue of whether she was able to appreciate that her condition would likely deteriorate if she refused treatment.
[20] I, therefore, find that the Board applied the correct test in assessing whether S.S. was capable of consenting to or refusing treatment.
D. Did the Board err in finding that S.S. was incapable of understanding the consequences of refusing treatment with antipsychotic medication?
[21] The Board found that S.S. was experiencing symptoms of a mental illness at the time of the hearing. S.S. does not challenge this finding on appeal.
[22] The Board also found that S.S. was unable to appreciate that she suffered from these symptoms and she was unable to appreciate that her decision to refuse treatment would cause her condition to deteriorate. S.S. raises two grounds of appeal in relation to these findings. First, S.S. argues that Dr. Mottaghian did not give her the information she needed to make an informed decision about whether to consent to treatment and, as a result, she should not have been found incapable. Second, S.S. argues that the Board failed to consider evidence that shows that she does acknowledge that she is affected by the symptoms of a mental condition.
i. Did Dr. Mottaghian give S.S. information relevant to her decision to refuse treatment?
[23] Before seeking S.S.’s consent to treatment with antipsychotic medication, Dr. Mottaghian was required to give S.S. information about the nature of the proposed treatment, expected benefits of the proposed treatment, material risks and side effects of the proposed treatment and alternative courses of action: HCCA, ss. 10-11. And before confirming Dr. Mottaghian’s finding of incapacity, the Board had to be satisfied that S.S. was given enough information that she could have provided informed consent, if she was capable of doing so: see RR (Re). As the Supreme Court of Canada noted in Starson, at para. 81, a patient’s failure to appreciate the consequences of a decision to refuse treatment may reflect the physician’s failure to adequately inform the patient of the consequences of their decision rather than an inability to appreciate the information provided.
[24] S.S. argues that Dr. Mottaghian did not provide her with adequate information to allow her to consider the consequences of her decision to refuse treatment. In support of this argument, S.S. argues that Dr. Mottaghian admitted during her testimony that she did not give S.S. full information about the treatment being recommended even though S.S. demanded information about its side effects.
[25] S.S. did not raise this issue before the Board. Generally, this court will not consider new issues on appeal, save for exceptional circumstances: see M.M. v. De Souza, 2016 ONCA 155, at para. 25. Nonetheless, I will address this argument because it is based on a mischaracterization of the evidence.
[26] A Board member asked Dr. Mottaghian whether she gave S.S. “full information about antipsychotic medications and side-effects”. Dr. Mottaghian’s answer to that question is as follows:
I haven’t, but on -- I gave her handout on Latuda, the medication that she was prescribed, and she read through that and she was able to appreciate -- like, understand all the information. And she came back to me with a complaint that she did not have a proper menses that month, she just had some black spotting. And she noticed in that handout that these medications might impact your periods and she was going after that, telling me that I’m giving her toxic medication that would make her not menstruate and as a result, not able to get pregnant in future. So, she was able to comprehend those information and read them thoroughly and come back to me with some questions.
[27] It is not reasonable to characterize Dr. Mottaghian’s answer as an admission that she did not give S.S. all the relevant information. It is clear that Dr. Mottaghian gave S.S. information about the side effects of Latuda and S.S. understood the information provided.
[28] Dr. Mottaghian’s answer must also be considered in the context of the record as a whole. Dr. Mottaghian testified that she explained the symptoms of schizophrenia to S.S. Dr. Mottaghian also testified that S.S. understood the information provided but did not believe she was experiencing any of the symptoms of schizophrenia. In a report filed as an exhibit at the hearing, Dr. Mottaghian wrote that she “spent a significant amount of time discussing the risks and benefits of treatment versus lack of treatment” with S.S. Dr. Mottaghian also testified that she explained to S.S. that Latuda is an antipsychotic medication and discussed the benefit it had already had for S.S. from the short course of treatment after her initial admission.
[29] Dr. Mottaghian testified that she spoke to S.S. about different antipsychotic medications, including their formats, indications and side effects, but S.S. was “not very welcoming of that discussion.” Dr. Mottaghian’s evidence was corroborated by the self-assessment questionnaire S.S. completed. Dr. Mottaghian explained that she asked S.S. to complete the questionnaire “to know whether she saw any benefits in taking those medications, whether she would see any benefits in taking any medications right now, whether she would consider any alternatives to taking antipsychotic medications, would she appreciate the role of using drugs, including marijuana, in her condition.” S.S. wrote in the questionnaire that she had only experienced “negative results” from antipsychotic medication. She also wrote that Latuda had not been helpful and she was “not interested” in alternative treatments, such as different medications.
[30] The evidence before the Board established that Dr. Mottaghian gave S.S. relevant information regarding the proposed treatment, its benefits and potential side effects. Dr. Mottaghian also attempted to discuss other treatment options with S.S. The fact that S.S. refused to engage in further discussions with Dr. Mottaghian about her symptoms and alternate treatments is not a basis to challenge the Board’s finding of incapacity in this case: see Snell v. Head, 2018 ONSC 1516, at para. 30.
ii. Did the Board fail to consider relevant evidence on the issue of capacity?
[31] As set out above, S.S. does not have to agree with Dr. Mottaghian’s diagnosis to be capable of refusing treatment. She does not even have to acknowledge that she has a mental illness to be found capable. If there is evidence that S.S. has a mental condition, the focus must be on whether S.S. recognizes the possibility that she is affected by that condition. If S.S. does not recognize that possibility, she will be unable to apply relevant information about the recommended treatment to her circumstances and will be unable to appreciate the consequences of her decision: see Starson, at para. 79.
[32] S.S. argues that the Board improperly focused on whether she accepts Dr. Mottaghian’s diagnosis that she has schizophrenia and failed to consider other evidence that she does acknowledge the possibility that she is affected by the manifestations of a mental condition and appreciates the consequences of her decision.
[33] First, S.S. argues that the evidence shows that she and Dr. Mottaghian disagreed only on the cause of her symptoms, not whether she has symptoms that are a manifestation of a mental condition. I do not accept this argument.
[34] At the time Dr. Mottaghian conducted her capacity assessment, S.S. believed that her family had implanted cameras in her brain behind her eyes and were broadcasting a video of her life on the Internet. She believed her father was making money off the broadcasts. She said her friends had told her that intimate images of her were being broadcast online. S.S. also believed a device had been implanted in her ear that would allow her parents to listen to her conversations. S.S. believed her family were all part of a conspiracy to torture, torment and kill her. S.S. also believed that Dr. Mottaghian was the mastermind behind all the devices that had been implanted in her.
[35] S.S. was diagnosed with relapsing-remitting Multiple Sclerosis in 1997. By the time of her admission to hospital in 2000, S.S. had not had any relapses for 16 years. Nonetheless, during Dr. Mottaghian’s assessment, S.S. told Dr. Mottaghain that she developed multiple sclerosis and scoliosis from exposure to toxic mold in her parents’ house and that her parents continue to expose her to toxic mold.
[36] This is not a case where S.S. simply disputes the diagnosis or the cause of her symptoms. S.S. does not believe that she has a psychiatric illness or any symptoms of a psychiatric illness. She denies that her beliefs about having cameras implanted behind her eyes or listening devices implanted in her ears are delusions or hallucinations. She believes that all her experiences are grounded in reality and are “real world problems”. In the “Treatment Capacity Assessment” completed by S.S. on February 6, 2020, she wrote that she was not suffering from any psychiatric symptoms at the time and had never had any psychiatric symptoms. She also wrote that she did not think it was possible that she had a mental disorder, condition or illness. In my view, the Board properly focused on whether S.S. accepts that it is possible that she is affected by the manifestations of a mental illness, not whether she accepts Dr. Mottaghian’s diagnosis.
[37] Second, S.S. argues that there was evidence that she acknowledged and “owned up” to the incident with her mother that brought her into the hospital and recognized that it was the product of her anger. In my view, this evidence does not support a finding that S.S. recognized the possibility that she is affected by the manifestations of a mental illness. The fact that S.S. took responsibility for the incident that resulted in her hospitalization is not the same as acknowledging the possibility that the incident was related to the manifestation of an illness. In fact, this evidence suggests that S.S. attributed the incident to her anger and lack of sleep, not to any symptoms of a mental condition.
[38] Finally, S.S. argues that there was evidence that she understood the side effects of the antipsychotic medication and made an informed decision to refuse treatment. There was evidence before the Board that S.S. was willing to take anti-anxiety medication on an as needed basis and was also willing to take medication related to her multiple sclerosis. She will not, however, consent to taking any antipsychotic medication. The Board considered this evidence and concluded that S.S.’s perception of the benefits of anti-anxiety medication did not impact her capacity with respect to antipsychotic medication.
[39] There was also evidence before the Board that S.S. understood the handout Dr. Mottaghian gave her about Latuda and its side effects. S.S. raised concerns with Dr. Mottaghain that she was experiencing one of the side effects described in the handout. The Board concluded at p. 11 that this evidence did not establish that S.S. was capable of refusing to take Latuda:
SS had been able to identify some side effects to taking the psychotic medication. Upon reading the pamphlet of information Dr. Mottaghian had provided to her, SS had expressed concern about the possible effects on her menstrual cycle and her ability to get pregnant. However, in the panel’s view, the fact that SS could see side effects if she took the medication did not change the fact that SS was unable to see any risks and benefits to taking, or not taking, a treatment that was to address manifestations of a mental illness that she was unable to appreciate she had.
[40] The Board carefully considered and weighed the evidence of S.S.’s concerns about a specific side effect of the proposed medication. The relevant question was not whether S.S. understood the information provided but whether she was able to apply that information to her own circumstances. S.S. understood one of the risks of taking Latuda but could not appreciate the potential benefits of taking it because she did not recognize the possibility that she had the symptoms the medication was intended to address. The Board did not err in finding that S.S. was incapable of appreciating the consequences of refusing treatment even though she understood and voiced concerns about one of the side effects.
[41] It was open to the Board to accept Dr. Mottaghian’s evidence that S.S.’s schizophrenia was robbing her of the ability to identify that she was ill and to appreciate the benefits of the proposed treatment. The Board did not err in its assessment of the evidence in this case.
[42] The appeal is, therefore, dismissed.
Released: January 7, 2021 Davies J.