Court File and Parties

Court File No.: CV-20-635035 Date: 2021-02-24 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, 1996, S.O. 1996, c. 2, Sched. A, as amended

Between: Matthew Neill, Appellant And: Dr. Bharat Chawla, Respondent

Counsel: Self-represented, but not appearing (for Appellant) Maya Kotob and Anita Szigeti, Amici Curiae Hakim Kassam, for the Respondent

Heard: December 2, 2020

Before: Vella J.

Reasons for Decision

[1] This is an appeal from a decision of the Consent and Capacity Board (“CCB”) dated January 17, 2020, whereupon the CCB confirmed the Respondent, Dr. Chawla’s finding that the Appellant, Mr. Matthew Neill, is incapable of consenting to treatment with antipsychotic medications under s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”).

[2] Anita Szigeti Associates was appointed amicus curiae by Order dated July 27, 2020, to ensure this Court had the benefit of arguments available to Mr. Neill based on the filed Record of Proceedings of the CCB and the Notice of Appeal.

[3] Notice was provided to Mr. Neill of today’s hearing. A Zoom link was active to the boardroom set up at the Ross Memorial Hospital (the “Hospital”), where Mr. Neill is currently a patient, and a nurse was present to assist Mr. Neill. However, Mr. Neill declined to appear. This, notwithstanding that both amicus curiae (who has met virtually with Mr. Neill before today) and I (who also met virtually with Mr. Neill at a prior case conference held on November 30, 2020, when today’s date and arrangements were set), each met separately (on consent) with him at the outset of the hearing to explain the purpose of today’s hearing and that this matter would be proceeding in his absence should he decide not to attend.

[4] Mr. Neill confirmed he would not be attending because he would not accept a hearing conducted virtually. He would only attend in person. However, due to COVID-19, this was not possible. Mr. Neill was previously advised that this hearing would be conducted virtually.

[5] The Zoom link was kept open for the duration of the hearing, but Mr. Neill did not appear.

[6] Accordingly, I proceeded in his absence.

[7] At issue is whether the CCB had evidence to support its finding, upholding Dr. Chawla’s finding, that Mr. Neill is incapable of consenting to treatment with antipsychotic medications.

Standard of Review

[8] Mr. Neill’s appeal is being brought as of right under s. 80(1) of the HCCA. The HCCA allows for an appeal from a decision of the CCB to this Court on a question of law, fact, or both.

[9] On appeal, this Court may, exercise all the powers of the CCB; substitute its opinion for that of the health practitioner, an evaluator, the substitute decision-maker, or the CCB; or refer the matter back to the CCB, with directions, for a rehearing in whole or in part, pursuant to s. 80(10) of the HCCA.

[10] In accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37, the appellate standards of review from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 apply. As this appeal involves mixed findings of law and fact with no extricable error of law, the standard is that of a palpable and overriding error: see Housen, at para. 36; Almeida v. Morgan, 2020 ONSC 5066.

[11] Dr. Chawla and amicus curiae both agree that, post-Vavilov, the appellate standards of review from Housen now apply to appeals under s. 80(1) of the HCCA.

Analysis

[12] The main argument advanced by amicus curiae was that the CCB failed to meaningfully consider, or erred in considering, the following key issues in relation to the incapacity finding:

(a) The CCB failed to address whether Mr. Neill could recognize the possibility that he is affected by a mental condition when it determined that he could not appreciate the reasonably foreseeable consequences of his decision to refuse treatment; and

(b) The CCB erred in finding that the evidence of Mr. Neill’s brother and mother, respectively, corroborated Dr. Chawla’s finding that he could not consent to treatment.

[13] There is no appeal from the CCB’s finding that Mr. Neill had the ability to understand the information relevant to making a treatment decision.

[14] Of note, at the CCB hearing, Mr. Neill was represented by a lawyer. Further, the CCB rescinded Mr. Neill’s certificate of involuntary admission, having found that the evidence did not establish that Mr. Neill’s mental disorder was of a nature or quality that would likely result in “serious bodily harm to himself”, “serious bodily harm to another person”, or “serious physical impairment”.

Incapacity to Consent to Treatment

[15] With respect to the CCB’s finding that Mr. Neill was incapable of making decisions with respect to treatment with antipsychotic medications under s. 4(1) of the HCCA, the CCB found, in material part, as follows in MN (Re) (“Reasons”):

The panel considered all the evidence and found that it was likely that MN did suffer mental disorder. The panel found that as a result of the mental disorder, MN did not appreciate the reasonably foreseeable consequences of a decision or lack of decision about the proposed treatment. Although MN had received no medications or prn while in hospital, he had not been a management concern or required physical restraints. However, the panel made a finding that MN’s untreated psychotic behaviours directly impacted his ability to make an informed decision about the decision to either take or refuse the antipsychotic medications. MN’s counsel argued that there was insufficient corroborative evidence that MN was incapable to consent to treatment, but the panel found this was not the case. Instead, the panel found that both MN’s brother and mother were corroborative and credible witnesses and described MN’s behaviour in the community such that it was likely he held psychotic beliefs. The panel found that this criterion was met.

[16] Amicus curiae emphasized that when Dr. Chawla was cross examined at the CCB hearing, he did not say if he asked Mr. Neill whether he would accept the “possibility” that he, Mr. Neill, was experiencing symptoms of psychosis but only that Mr. Neill believed he was not psychotic and therefore did not need treatment.

[17] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 (“Starson”), at para. 9, McLachlin C.J., in dissent (though not on this point), wrote the following in relation to the focus to be applied in determining whether a patient has capacity to consent to treatment under s. 4(1) of the HCCA:

The Ontario Legislature’s decision to permit a mentally ill person’s decision to refuse treatment to be overridden where public safety is not threatened reflects the value of promoting effective medical treatment of people suffering from mental illness. The HCCA’s definition of capacity offers a way out of the dilemma that is created when treatment for an illness is dependent on consent, which in turn is not forthcoming because of the illness. The way out of the dilemma lies in recognizing that the focus should be not only on consent but on capacity to consent. The policy of the law is that where a person, due to mental illness, lacks the capacity to make a sound and considered decision on treatment, the person should not for that reason be denied access to medical treatment that can improve functioning and alleviate suffering. Rather, that person’s incapacity should be recognized and someone else appointed to make the decision for him or her. [Emphasis in original.]

[18] In Starson, at paragraphs 78 – 81, Major, J. (writing for the majority), explains the test for determining capacity within this legislative context. There are two criteria:

First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information…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 a decision or lack thereof….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 appreciate the consequences of his decision. (at paras. 78-79)

[19] In D’Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250, leave to appeal refused, , the Court of Appeal affirmed that under s. 4(1) of the HCCA, the emphasis is on the patient’s capacity to consent to treatment. In that case, the appellant patient could not appreciate the consequences of non-treatment due to the nature of his mental illness that fostered a belief that “evil forces are conspiring to keep him from assuming his proper role in this country” which was as “the rightful King of Canada”. The appellant recognized some of the negative effects of treatment, namely the side effects, but had no appreciation of the positive effects of treatment or the negative effects of the failure to treat. The appellant believed that his progress was due to his own efforts and had nothing to do with the medication he had received. The Court of Appeal upheld the reviewing judge’s decision who, in turn, upheld the CCB’s finding that the appellant lacked the capacity to make treatment decisions.

[20] It is clear on the face of its Reasons that the CCB turned its mind to the appropriate test set out by the HCCA.

[21] There was evidence before the CCB that supports its findings that Mr. Neill was unable to recognize or appreciate the reasonably foreseeable consequences of a treatment decision, or lack thereof, owing to the nature of his illness.

[22] In the Reasons, the CCB addressed the issue of whether Mr. Neill could appreciate the reasonably foreseeable consequences of a decision to accept or reject the proposed course of treatment. Some of the evidence before the CCB included Dr. Chawla’s testimony that, in his view, Mr. Neill could not accept the possibility that his thoughts could be symptoms of a psychosis, and the different ways in which Dr. Chawla approached the issue of mental health with Mr. Neill.

[23] Furthermore, the Record of Proceedings contained documentary evidence that supports the CCB’s finding of incapacity on this issue. For example, in the clinical notes filed by Dr. Chawla, it is revealed that Mr. Neill holds the views that everyone is out to get him, and points to incidents that lack a basis in reality. Dr. Chawla’s clinical notes indicate that Mr. Neill holds the following views:

(a) people are trying to harm him, including gangs, and that the police want gangs to be involved to make it look like a set up;

(b) people drilled holes in his car’s brake line, and have broken into his mother’s house, where he resides, and drilled holes in the basement walls;

(c) people have burned a hole in his dog’s neck;

(d) people are trying to play mind games with him;

(e) people are spraying mercury in the air when he is out in public;

(f) people are “putting stuff in his food including glass powder” and are shoving a lot of food into him and making him look outside the window;

(g) people are using “neuro phones”, a military communication device allowing the ear to catch noises nobody can hear, and there has been secret communication happening directly from the Canadian military; and

(h) people are trying to change memories in his family member’s brain.

[24] The Record of Proceedings also contains additional clinical notes from Dr. Chawla reflecting Dr. Chawla’s observation that Mr. Neill’s insight into his illness was poor. Dr. Chawla documented Mr. Neill’s denial of suffering from any mental health issues, including psychosis, Mr. Neill’s uncertainty of why he was in hospital, and Mr. Neill’s inability to appreciate the benefits and risks of the proposed treatment.

[25] Dr. Chawla found that Mr. Neill could not appreciate information regarding the benefits and risks of treatment with antipsychotic medications due to his mental illness. The CCB affirmed this finding based on the evidentiary record before it.

[26] As such, the CCB applied the correct test under s. 4(1) of the HCCA in finding that Mr. Neill lacked the ability to appreciate the reasonably foreseeable consequences of the proposed course of treatment due to the nature of his illness. The CCB had sufficient evidence before it to support this conclusion.

Requirement of Corroboration

[27] For the CCB to uphold Dr. Chawla’s finding of incapacity, it required Dr. Chawla’s evidence to be corroborated pursuant to s. 14 of the Evidence Act, R.S.O. 1990, c. E.23, because Mr. Neill is a patient in a psychiatric facility.

[28] In Farquhar-Lockett v. Jones, 2016 ONSC 346, at para. 68, this Court elaborated on the statutory requirement of corroboration in the context of a Consent and Capacity Board hearing:

Not every portion of an individual’s evidence has to be corroborated. The notion of corroboration is that it supports confidence in the word of the health practitioner who bears the onus of proof in a treatment incapacity hearing before the Board. Courts must strive to find corroboration where its absence might otherwise foreclose a meritorious case from succeeding. Corroborative evidence which is weak when viewed in isolation may achieve strength in combination.

[29] In its Reasons, the CCB addressed the issue of corroboration.

[30] There was evidence before the CCB that supported its finding that Mr. Neill’s mother provided evidence in the form of testimony that is corroborative of Dr. Chawla’s findings. For example, the transcripts of the hearing demonstrate that the mother provided testimony concerning her observations that Mr. Neill fails to recognize that he has any problems, or that he requires any help, and thinks it is everyone else who needs help.

[31] As well, there was evidence in the nature of corroboration from Mr. Neill’s brother who testified at the hearing before the CCB. His evidence also supports the finding that Mr. Neill is not open to the possibility that he is suffering from a mental condition and that he is unable to appreciate the consequences of refusing treatment.

Conclusion

[32] The CCB has not made a palpable and overriding error.

[33] Accordingly, the appeal is dismissed. No costs were sought, and none are ordered.

Released: February 24, 2021 Justice Vella