SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-20-637499

DATE: 20210318

RE: B.N.

AND:

DR. M. BEDER

BEFORE: J. STEELE J.

COUNSEL: Suzan E. Fraser, for the Amicus Curiae

Patrick Wright and Margaret Robbins, for the Respondent

HEARD: March 10, 2021 via video conference

ENDORSEMENT

Appeal from the February 27, 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 February 27, 2020, which upheld a finding that B.N. was incapable of consenting to treatment and a Community Treatment Order requiring him to submit to a Community Treatment Plan overseen by the respondent, Dr. Michaela Beder, a psychiatrist. 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 February 27, 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 and anti-psychotic 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 subsequent decision of the Board, dated September 17, 2020 (the “September 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) 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] The Public Guardian and Trustee has served as B.N.’s substitute decision maker (“SDM”) since 2018. Prior to then, the applicant’s mother, H.N., was his SDM. H.N. ceased to be his SDM on or about March 15, 2018.

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

[9] The Community Treatment Order that is the subject of this appeal was a renewal of a prior Community Treatment Order issued in April 2019, with an expiry in October 2019.

[10] Dr. Sediqzadah (a fifth year resident working with Dr. Beder) met with B.N., H.N., and a friend on September 30, 2019. She examined B.N. for the purpose of the renewal of the Community Treatment Order and found him incapable of consenting to treatment with respect to antipsychotic medications or the Community Treatment Plan. Dr. Sediqzadah signed the Community Treatment Plan and Form 49 (Notice of Intention to Issue or Renew a Community Treatment Order) as a delegate of Dr. Beder.

[11] The Public Guardian and Trustee consented to the proposed Community Treatment Plan. The Community Treatment Order was then signed by Dr. Beder on October 29, 2019 (the “CTO Under Appeal”).

[12] 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.

[13] Dr. Beder saw B.N. on November 20, 2019 prior to the scheduled hearing before the Board. At that time, she conducted another capacity assessment and concluded that he was still incapable of consenting to the Community Treatment Plan or the anti-psychotic medications.

[14] The hearing was adjourned on November 27, 2019 and December 13, 2019 as B.N. did not attend on either occasion. On January 22, 2020, the Board considered three preliminary motions raised by B.N. and the Board issued an Order dated January 23, 2020. The following were the preliminary motions considered by the Board:

• The appellant submitted that there was failure to obtain the consent of the proper substitute decision maker, his mother, in violation of section 33.14(f) of the MHA and section 20 of the HCCA, when the community treatment plan was signed. Consent was obtained from the public guardian and trustee. The Board found that given H.N.’s views on B.N.’s condition and treatment, there was no reason for Dr. Sediqzadah to ask her if she wanted to be a B.N.’s substitute decision maker again and dismissed the motion.
• The appellant submitted that it was not appropriate that his assessment that was to be done within 72 hours of entering into the community treatment plan was completed by a delegate of Dr. Beder (Dr. Sediqzadah, a fifth-year resident). The Board found that there was no improper delegation and dismissed the motion.
• The appellant submitted that he was not examined within 72 hours of entering into the community treatment plan by Dr. Beder or Dr. Sediqzadah in accordance with the requirements of section 33.1(4)(c) of the MHA and that Dr. Sediqzadah did not turn her mind to the issue of whether he would meet the requirement for the completion of a psychiatric assessment. The Board determined that she had turned her mind to the issue as required under section 33.1(4)(c) of the MHA and dismissed this motion.

Because I determine that the appeal is moot, I do not address the merits of these preliminary motions below.

[15] The hearing of the matter on its merits proceeded before the Board on February 4, 2020 and February 26, 2020.

[16] At the Board hearing, the Board heard oral testimony from Dr. Beder and H.N.. The Board also had the following Exhibits as evidence before them:

i. Consent and Capacity Board Summary re: Community Treatment Order, dated November 20, 2019, completed by Dr. Beder;

ii. Collection of Forms under the MHA (various dates and authors);

iii. Letter to Nadine Fleming from the Office of the Public Guardian and Trustee, dated October 23, 2019, signed by Olga Statkevich;

iv. St. Michael’s Hospital Assertive Community Treatment Teams Progress Notes (various dates and authors);

v. Collection of Discharge Summaries (various dates and authors); and

vi. St. Michael’s Hospital Assertive Community Treatment Teams Progress Note, dated February 1, 2017, prepared by Dr. Beder.

[17] 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.

[18] After the expiry of the CTO Under Appeal, another Community Treatment Plan was issued for B.N.. On or about July 21, 2020, Dr. Beder determined that B.N. was incapable of giving or refusing consent to a proposed Community Treatment Plan and the Notice of Intention to Issue or Renew a Community Treatment Order was signed by her on July 22, 2020. The Community Treatment Order was dated August 5, 2020 (the “August CTO”). The basis for the August CTO was that B.N. had been the subject of a previous Community Treatment Order during the previous three year period. B.N. applied to the Board for review. The Board confirmed Dr. Beder’s finding that B.N. was incapable of consenting to the proposed treatment including the Community Treatment Plan. The Board also confirmed the August CTO. That Board decision has also been appealed (the September 2020 Appeal).

New Evidence

[19] 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.

Is the issue Moot?

[20] 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.

[21] The Community Treatment Plan and the CTO Under Appeal have long since expired. The August CTO (also under appeal) has also expired. 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 Mental Health Act. 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 Mental Health Act, 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. Because there have been two subsequent Community Treatment Orders issued since the one under appeal (the August CTO and the 2021 CTO), and the 2021 CTO did not rely upon section 33.1(4)(a)(ii), 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 two other subsequent Community Treatment Orders, one of 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. 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] In Carty v. Levy, 2015 ONSC 2200, 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 have been two subsequent community treatment orders issued for B.N., one of 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 CTO Under Appeal is farther removed in the instant case, and the 2021 CTO was not necessarily “influenced by the predecessor” as it was based on section 33.1(4)(a)(i) instead. 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 was issued on October 29, 2019. Under section 33.1(11) of the Mental Health Act it expired six months later – on April 20, 2020. Another Community Treatment Order was issued in August 2020, and then a further one 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.. I further note that any subsequent Community Treatment Orders must comply with the MHA, including a new capacity assessment of B.N. at that time.

[29] I also find that the appeal with regard to the Board’s determination that B.N. was incapable with respect to antipsychotic medication and the community treatment plan is moot. There was another capacity assessment done on or about July 21, 2020 where it was again determined that B.N. was incapable with respect to a (new) community treatment plan and antipsychotic medication.

[30] There is no live issue between the parties. Accordingly, B.N.’s appeal is moot. I also find that there are no special circumstances such that I should exercise my discretion to hear an otherwise moot appeal. Dr. Beder and B.N. have a continuing relationship, as she is his treating physician, but they are not adversaries.

Disposition

[31] For the reasons set out above, I dismiss the appeal without a decision on the merits.

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

March 18, 2021

DATE

J. Steele J.