B.N. v. Dr. M. Beder

COURT FILE NO.: CV-20-00648657

DATE: 2021-03-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: B.N.

AND: DR. M. BEDER

BEFORE: J. STEELE J.

COUNSEL: Suzan E. Fraser, Amicus Curiae Patrick Wright and Margaret Robbins, for the Respondent

HEARD: March 10, 2021 via video conference

ENDORSEMENT

Appeal from the September 17, 2020 decision of the Consent and Capacity Board

Appeal from Consent and Capacity Board Decision

[1] This is an appeal from a decision of the Consent and Capacity Board (the “Board”), dated September 17, 2020, which confirmed the appellant’s community treatment order and upheld the respondent’s determination that the appellant was incapable of consenting to treatment related to antipsychotic medication, mood stabilizing medication and the community treatment plan. The appeals are made pursuant to Section 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the “HCCA”) and Section 48(1) of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”).

[2] On this appeal, the appellant argues that the Board’s decision of September 17, 2020 should be set aside or quashed, the community treatment order revoked and a declaration made that the appellant is capable of consenting to the community treatment plan, anti-psychotic medication and mood stabilizing medication. In the alternative, B.N. seeks an order remitting the matter back to the Board for rehearing, in whole or in part.

[3] This appeal was heard at the same time as another appeal by B.N. of a prior decision of the Board, dated February 27, 2020 (the “February 2020 Appeal”).

[4] B.N. indicated at the outset of the appeal that he would not be making submissions himself, as amicus curiae would be.

[5] B.N. requests that there be no publication of his name, or the names of his immediate family members who share his surname in the media or the reporting of the case. Dr. Beder does not oppose this request. Given the personal nature of the evidence, anonymization of the appellant’s name (and those of his family members) is appropriate.

Background

[6] The appellant, B.N., is a 48-year old man with a history of involvement in the mental health system and substance use. B.N. has been involuntarily admitted to psychiatric facilities at least seven times in the past decade. B.N. has been diagnosed as suffering from schizoaffective disorder.

[7] When he is unwell, B.N. experiences intense delusions and symptoms of mania. At times he presents a danger to both himself and others. However, when he is consistently treated with antipsychotic medication, B.N.’s condition improves and his symptoms are reduced.

[8] The Public Guardian and Trustee has served as B.N.’s substitute decision maker since 2018. Both of B.N.’s parents are deceased and he has no siblings who reside in the Toronto area.

[9] The respondent, Dr. Beder, has followed B.N. since approximately March 2016, and had issued six prior Community Treatment Orders.

[10] On or about July 21, 2020, Dr. Beder and Dr. Marium Arain assessed B.N.’s capacity to consent to a community treatment plan and anti-psychotic medications. The staff at the community housing place where B.N. resided had reported that B.N. had been “talking to himself (spirits)” and “appears to be off his baseline”. During his assessment, B.N. denied that he had any psychotic disorder. The assessors noted that “[h]e does not believe that he needs any treatment for psychosis”. Following their assessment, they determined that B.N. was incapable of consenting to anti-psychotic medication and the Community Treatment Plan. At the time of this assessment, B.N.’s prior Community Treatment Order, issued in October 2019, had lapsed.

[11] B.N.’s Community Treatment Plan was prepared and issued with the Public Guardian and Trustee’s consent on July 22, 2020. A copy of the Form 49 and Community Treatment Plan was provided to B.N. and the Public Guardian and Trustee on July 23, 2020. The Community Treatment Order that is the subject of this appeal was issued by Dr. Beder on August 5, 2020 with an expiry date of February 4, 2021 (the “CTO Under Appeal”).

[12] On or about July 28, 2020, B.N. applied to the Board for a review of his Community Treatment Order and Dr. Beder’s finding of incapacity with respect to the Community Treatment Plan and antipsychotic medication. B.N. requested the review of Dr. Beder’s finding of incapacity and the CTO before either treatment could commence.

[13] The hearing was scheduled for September 1, 2020. It was adjourned as B.N. did not attend and his counsel did not have instructions.

[14] At the Board hearing on September 16, 2020, B.N.’s counsel brought a preliminary motion, which the Board dismissed. The preliminary motion requested an order revoking the Community Treatment Order and restoring the presumption of capacity because the Form 49 was mailed to B.N., as opposed to being personally given to him. Because I determine that the appeal is moot as it relates to the Community Treatment Order, I do not address the merits of this preliminary issue below.

[15] The Board then proceeded to hear B.N.’s application. The Board had before it documentary evidence, including Dr. Beder’s Consent and Capacity Board Summary, the Community Treatment Plan for B.N. dated July 22/23, 2020, the various Ministry of Health Forms associated with issuing the Community Treatment Order, B.N.’s medical records, and email correspondence between Dr. Beder and Ms. Saadiaa Khan, the Community Treatment Order coordinator for Unity Health Centre for Addition and Mental Health. The Board also heard viva voce evidence from Dr. Beder.

[16] The Board held that the Community Treatment Order and the Community Treatment Plan were properly issued. The Board also confirmed Dr. Beder’s determination that B.N. was incapable with respect to antipsychotic medication and the Community Treatment Plan.

New Evidence

[17] The CTO Under Appeal has expired and has been replaced. The respondent filed a brief of new evidence, which contains a new Form 45, Community Treatment Order, dated February 3, 2021 (the “2021 CTO”). Amicus curiae consented to the admission of this new evidence on the basis that it would be of assistance to the Court. I agree.

Analysis

i. Is the Appeal Moot as it relates to the CTO and the CTP?

[18] The respondent took the position that the appeal of the Board’s decision with regard to this CTO Under Appeal and Community Treatment Plan are moot.

[19] A Community Treatment Order is a legal order issued by a physician under the MHA. A Community Treatment Order provides a person who a has a serious mental disorder with treatment and supervision in the community, as opposed to a psychiatric facility. In order for a Community Treatment Order to be issued, all the criteria set out in the MHA must be met. A Community Treatment Order requires an individual to comply with a Community Treatment Plan, which also must satisfy the requirements of the MHA. A Community Treatment Order is consent-based, as it is based on an agreement to enter into a community treatment plan. The consent of the person who will be subject to the order is therefore required, or if the person is incapable, the consent of his or her substitute decision maker must be obtained. A Community Treatment Plan is a treatment for purposes of the HCCA.

[20] The CTO Under Appeal expired on February 4, 2021. As it has expired, no treatment may be started pursuant to the underlying Community Treatment Plan. In order for any new Community Treatment Order to be issued, the regime set out under the MHA must be followed.

[21] B.N. is now subject to a new Community Treatment Order, the 2021 CTO, which was not premised on the earlier Community Treatment Orders, as it involved a new capacity assessment. The 2021 CTO indicates that it is the first renewal of the CTO dated August 5, 2020. It indicates that the basis for the 2021 CTO is that B.N. has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of thirty days or more during the previous three period. It relies on this for the renewal, as opposed to B.N. having been the subject of previous Community Treatment Orders during the prior three-year period.

[22] The Court will generally not determine hypothetical or academic questions and will decline to hear cases where the outcome does not have a practical effect. In the leading case of Borowski v. Canada (Attorney General) 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court of Canada stated (at para. 15):

“The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. if the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.”

[23] Amicus curiae submits that given the number of Community Treatment Orders issued by Dr. Beder for B.N. there is a resulting ongoing relationship. Amicus also submits that because B.N. has been subject to rolling Community Treatment Orders it is important for him to clear the clock for the purposes of section 33.1(4)(a) of the MHA. That section provides:

“(4) A physician may issue or renew a community treatment order under this section if,

(a) During the previous three-year period, the person,

i. Has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three- year period, or

ii. Has been the subject of a previous community treatment order under this section;”

[24] Accordingly, where an individual has been the subject of a prior Community Treatment Order, under section 33.1(4)(a) of the MHA, the physician may issue another Community Treatment Order provided the other criteria under section 33.1 are met. However, under section 33.1(4)(a) of the MHA, there are two alternative tests, one of which must be satisfied. As the 2021 CTO was issued based on B.N. having been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during the prior three-year period, the CTO Under Appeal was not specifically relied upon for the renewal. Accordingly, I fail to see how any outcome regarding the CTO Under Appeal would assist. If, for example, B.N. were successful in his appeal, he would still have the 2021 CTO, which was issued under section 33.1(4)(a)(i) of the MHA, not relying upon the prior Community Treatment Orders.

[25] Cases on this issue have gone both ways. For example, in K.T. v. O’Brien, 2021 ONSC 209, the Court determined that the appeal related to a recently expired Community Treatment Order was not moot. There had been rolling Community Treatment Orders and the Court was of the view that it was likely that each renewal was influenced by the predecessor.

[26] On the other hand, Carty v. Levy, 2015 ONSC 2200 went the other way. In Carty, the Court considered an appeal of the Board decisions with respect to capacity and a Community Treatment Order. The Community Treatment Order that was the subject of the appeal had expired and had not been renewed. The appellant in that case raised a similar argument to B.N.. She argued “that a successful appeal that would revoke the Community Treatment Order would have the practical effect of diminishing by six months her vulnerability to the issuance of another Community Treatment Order under s. 33.1(4)(a) of the Mental Health Act, which provides that a physician may issue a Community Treatment order if, during the previous three-year period, the person has been the subject of a previous Community Treatment Order”. Justice Perell stated (at para. 51) that this argument “does not change the dynamic that the Court’s decision will have no practical effect or no meaningful practical effect”.

[27] Given that there has been a new Community Treatment Order issued, which was not based on prior community treatment orders, I agree with Dr. Beder’s submission that there is no live or tangible controversy with respect to the CTO Under Appeal. This case is distinguishable from K.T. v. O’Brien as the 2021 CTO was not necessarily “influenced by the predecessor” as it was based on section 33.1(4)(a)(i) of the MHA instead of section 33.1(4)(a)(ii). I find Carty v. Levy instructive, and agree that in B.N.’s case, the arguments advanced by amicus curiae do “not change the dynamic that the Court’s decision will have no practical effect or no meaningful practical effect”.

[28] As set out above, the CTO Under Appeal expired on February 4, 2021. Another Community Treatment Order was issued in February 2021. As a result, irrespective of the court’s determination, the CTO Under Appeal cannot be relied upon to treat B.N..

[29] Even though there is an ongoing relationship with Dr. Beder and B.N., any subsequent Community Treatment Orders are still required to comply with the MHA, including a new capacity assessment of B.N. at that time. Capacity may fluctuate. Accordingly, any future Community Treatment Order cannot be predicated on a capacity assessment that was done in respect of the CTO Under Appeal.

[30] There is no live issue between the parties with regard to the CTO Under Appeal. Accordingly, B.N.’s appeal is partially moot.

[31] I also find that there are no special circumstances such that I should exercise my discretion to hear an otherwise moot appeal as it relates to the Community Treatment Order and Community Treatment Plan. Dr. Beder and B.N. have a continuing relationship, as she is his treating physician, but they are not adversaries.

[32] As I have determined that the appeal is moot with regard to the CTO Under Appeal, I do not need to address the preliminary issues raised by amicus curiae with regard to the MHA technical compliance.

[33] Although I have determined that the matter is moot with regard to the Community Treatment Order and Community Treatment Plan, it is not moot with regard to Dr. Beder’s finding of incapacity with respect to treatment. Accordingly, I have considered whether the Board committed an error in this regard.

ii. Did the Board commit a palpable and overriding error when it determined that B.N. was incapable with respect to antipsychotic medication and the Community Treatment Plan?

[34] The standard of review of a decision of the Board where the appeal involves questions of fact or questions of mixed fact and law is one of palpable and overriding error (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 44 D.L.R. (4th) 1 at para. 37). The issue here – whether the appellant had capacity to consent to treatment – is a question of mixed fact and law. Accordingly, the applicable standard of review is palpable and overriding error.

[35] Under the HCCA, where a health practitioner proposes treatment for a person, the treatment shall not be administered unless the health practitioner is of the opinion that the person is capable with respect to the treatment and the person has consented, or if the health practitioner is of the opinion that the person is incapable with respect to the treatment, his or her substitute decision maker has given consent.

[36] The test for capacity to consent to treatment is set out in Section 4 of the HCCA:

“4(1) A person is capable with respect to treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

[37] Under the HCCA, a person is presumed to be capable with respect to treatment. The onus lies on the health care professional to prove that a person is incapable with respect to treatment.

[38] In Starson v Swayze, 2003 SCC 32, 1 S.C.R. 722 (“Starson”), the leading case on the test for capacity, the Supreme Court of Canada explained the test set out in the HCCA (at para. 78):

“Capacity involves 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.”

[39] The issue before me is whether the Board’s decision to uphold Dr. Beder’s determination that B.N. was incapable of consenting to his treatment should be reversed.

[40] In Starson, the Supreme Court elaborated on the second component of the test – that the person must have the ability to recognize the reasonably foreseeable consequences of his or her decision or lack of one (at para. 118):

“…[I]f 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.

…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.”

[41] Amicus curiae submits that the Board erred in finding that the appellant was incapable at the time of the hearing in the absence of any direct evidence on that point. Amicus submits that the Board drew inferences and that there was not current information on B.N.’s condition at the time of the hearing. The most recent capacity assessment had been done by Dr. Beder on July 21, 2020, almost two months prior to the date of the hearing (September 16, 2020). Amicus submits that it was unreasonable for the Board to conclude that B.N. was incapable at the time of the hearing as capacity fluctuates.

[42] The respondent submits that the Board did not make a palpable and overriding error when it determined that B.N. was incapable with respect to antipsychotic medication and the community treatment plan.

[43] The Board found that B.N. was able to understand information relevant to making a decision regarding antipsychotic medication and the community treatment plan (the first criteria of the Starson test). However, the Board determined that B.N. was not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision with regard to the proposed treatments.

[44] With regard to the timing of B.N.’s capacity assessment, the Board indicated that it “carefully considered” whether B.N. was incapable at the time of the hearing. The Board concluded that “there was sufficient evidence to find on a balance of probabilities that BN was incapable of making decisions about the proposed treatments at the time of the hearing”. The Board stated:

“The panel accepted that Dr. Beder had known BN since 2016, had seen him both unwell and well, and had found him to be incapable through that period of time. While BN had been treated as capable in March 2016, and there were some statements in the records that BN had been agreeable to taking medication or had developed some appreciation, there was clear evidence that BN had been found incapable of consenting to treatment consistently over the past few years. BN consistently denied that he suffered from a psychotic disorder, or symptoms of a psychotic disorder that could be improved with treatment. Although Dr. Beder had not assessed BN formally since July 21, 2020, she did have reports from Strachan House, other members of the ACT Team and from BN’s admission to SMH on August 11, 2020 that confirmed nothing had changed since that time based on her longitudinal assessment of BN’s capacity. This was supported by the documentary evidence which indicated that BN continued to believe that he had been misdiagnosed and did not required treatment for a psychotic disorder.

For the reasons outlined above, the panel accepted Dr. Beder’s evidence that BN’s mental condition was preventing him from being able to recognize that he was suffering from a psychotic illness or the manifestations of a psychotic illness. The evidence was clear that BN had consistently denied that he had schizoaffective disorder or symptoms of a mental condition that could benefit from the proposed treatment. BN was unable to appreciate that without treatment he was likely to suffer substantial mental deterioration, as had happened in the past, and that his condition had improved with treatment. BN was therefore unable to apply the relevant information or evaluate information concerning any proposed types of medications or treatment as it related to his own circumstances.”

[45] The Board is entitled to make factual determinations based on the evidence before them. There was sufficient evidence before the Board to justify their determination that B.N. was incapable as at the date of the hearing. As mentioned above, they had Dr. Beder’s oral testimony, and clinical records that post-dated Dr. Beder’s July 21, 2020 examination of B.N.. I note, for example, September 2, 2020 clinical notes of a meeting with B.N. where he “expressed some delusional thought content regarding military lawyers”. Another example is in the clinical notes from August 11, 2020, which noted, in reference to B.N., “[w]hen seen today, was yelling, very disorganized, not able to engage in a full safety assessment, pacing, yelling, screaming, threatening to harm “other people”, endorsing paranoia about people wanting to hurt him and give him lethal injections.” B.N. had a psychiatric admission to St. Michael’s Hospital on August 11, 2020 until August 20, 2020.

[46] It is evident from the Board’s decision that they accepted Dr. Beder’s evidence on this issue, which they were entitled to do. Dr. Beder’s testimony was that the assessment was longitudinal. Dr. Beder’s evidence was that the clinical records before the Board, post-dating her assessment on July 21, corroborated and supported her finding of incapacity of B.N. The Board determined that there was sufficient evidence linking the finding of incapacity in July to the date of the hearing. The Board clearly accepted Dr. Beder’s evidence. The Board turned their mind to this issue, set out the correct legal test for capacity, considered the evidence, and “concluded that BN was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the CTP and anti-psychotic medications”.

[47] As stated in H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 402 (at para. 70), for me to determine that there has been a palpable and overriding error I “must be able to ‘put one’s finger on’ the crucial flaw, fallacy or mistake”. I cannot do so in this case.

Disposition

[48] For the reasons set out above, the appeal is dismissed.

[49] This is not an appropriate case for costs.

March 18, 2021

J. Steele J.