COURT FILE NO.: CV-20-636119
DATE: 20210726
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF Appeal from a decision of the
Consent and Capacity Board,
Pursuant to the Health Care Consent Act,
S.O. 1996, chapter 2, Schedule A,
As amended,
AND IN THE MATTER OF
M.F.
A patient at the
CENTRE FOR ADDICTION AND MENTAL HEALTH
COLLEGE STREET SITE, TORONTO, ONTARIO
BETWEEN:
M.F.
Appellant
– and –
DR. TAMARA MILOVIC
Respondent
M.F., Appellant acting in person
Anita Szigeti and Maya Kotob, as amicus curiae
Kathleen MacDougal and Kendra Naidoo, for the Respondent
HEARD
(By Videoconference): June 30, 2021
REASONS FOR DECISION
A.A. SANFILIPPO, J.
Overview
[1] The Appellant brought this appeal from a decision of the Consent and Capacity Board (the “Board”) dated February 25, 2020 (the “Board Decision”). The Board confirmed the physician’s involuntary admission to hospital further to a Certificate of Involuntary Admission issued under s. 39(1) of the Mental Health Act, R.S.O. 1990, c. M.7, as amended, and confirmed the finding by the Respondent, Dr. Tamara Milovic, that the Appellant was incapable with respect to treatment for a mental disorder, under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended.
[2] The Appellant did not appeal the Board’s decision confirming his involuntary status. The Appellant appealed the Board’s finding of incapacity as it relates to the proposed treatment with antipsychotic medication.
[3] For the reasons that follow, I have concluded that the Board’s Decision in finding incapacity as to treatment was based on a correct understanding of the law that the Board was required to apply and that the Board had cogent evidence on which to make its determination. I do not accept the Appellant’s submission that the Board committed an overriding and palpable error by failing to consider key issues in relation to the capacity finding. I dismiss the appeal.
[4] I have anonymized the Appellant’s name, considering the personal nature of the evidence.
I. BACKGROUND
[5] At the time of the Board’s hearing, M.F. was 33 years old, living at times with his mother and at times with his father. He was periodically employed in the retail or hospitality sectors. M.F. was an involuntary patient at the Centre for Addiction and Mental Health (“CAMH”), having been admitted on January 16, 2020 on a Form 1 “Application by Physician for Psychiatric Assessment”. MF was then subject to a Form 3 “Certificate of Involuntary Admission” on January 19, 2020, followed by a Form 4 “Certificate of Renewal” on January 31, 2020. On January 21, 2020, M.F. made an application to the Board to challenge his involuntary status.
[6] On January 27, 2020, the Respondent Dr. Tamara Milovic, M.F.’s attending psychiatrist, determined that M.F. was not capable to make treatment decisions with respect to antipsychotic medications. That same day, M.F. made an application to the Board to challenge the physician’s finding of incapacity as to treatment.
[7] A Board hearing was first convened on January 29, 2020 but was ultimately adjourned to and heard on February 7, 2020. At the Board hearing, the Board received documentary evidence and heard oral evidence from Dr. Milovic. On February 8, 2020, the Board released its decision confirming M.F.’s involuntary status and confirming Dr. Milovic’s finding of incapacity as to treatment with anti-psychotic medication. On February 10, 2020, M.F. issued a Notice of Appeal, by which he appealed only the Board’s finding of incapacity as to treatment. On February 25, 2020, the Board released its Reasons for Decision, which I will refer to as the “Board Decision”.
II. THE BOARD DECISION
[8] The Board panel consisted of a Senior Lawyer/ Presiding Member, a Lawyer Member, a Nurse in Extended Class Member and two Public Members. The Appellant was represented by a lawyer, now appointed as the amicus curiae on this Appeal, in which the Appellant is acting in person.
[9] The Board heard that Dr. Milovic was the attending psychiatrist who treated the Appellant on January 27, 2020 and found that he was incapable as to treatment with antipsychotic medication. Dr. Milovic appeared and testified without counsel.
[10] The Board admitted into evidence eleven Exhibits, as follows: as Exhibit 1, Dr. Milovic’s Board Summary dated January 28, 2020; as Exhibits 2 through 8, inclusive, the Forms pertaining to the Appellant’s involuntary admission under the Mental Health Act and the Forms pertaining to the physician’s finding of incapacity under the Health Care Consent Act; as Exhibit 9, an undated letter from Dr. Laura Kennedy, the psychiatrist who issued the Form 1 that brought the Appellant into hospital on January 16, 2020; as Exhibit 10, Progress Notes totaling 71 pages; and, as Exhibit 11, Discharge Notes totaling 28 pages.
[11] Dr. Milovic’s Board Summary outlined M.F.’s history of a diagnosis of schizophrenia since 2004, complicated by cannabis abuse. M.F.’s psychotic symptoms were said to include disorganized thinking, delusions of persecution, Capgras syndrome (a longstanding belief that his parents are not his parents), pressured speech, grandiose delusions and auditory hallucinations, including delusions that he was a pop recording singer, a producer, that he spoke many languages and that he is a high-ranking officer in the military.
[12] The Board Summary, the Progress Notes and the Discharge Notes explained M.F.’s hospitalization, on at least 20 occasions, which, according to Dr. Milovic, showed a long-standing diagnosis of schizophrenia and that M.F, “has been noted to show robust responses to treatment with anti-psychotic medications”. These findings were supported by notes by at least 11 other doctors who similarly described M.F.’s mental status and diagnosis of schizophrenia.
[13] The Board unanimously confirmed the Appellant’s involuntary admission to hospital and unanimously confirmed the Respondent’s finding that the Appellant was incapable as to treatment with antipsychotic medication.
III. THIS APPEAL
[14] The Appellant appealed the Board’s decision confirming the Respondent’s finding of incapacity with respect to treatment with antipsychotic medication. As stated, the Appellant did not appeal the Board’s confirmation of his involuntary admission.
[15] M.F. sought an Order that there be no publication of the name of the Appellant or names of members of immediate family who share his surname. I grant this Order and will refer to the Appellant only by his initials and to family members only by the nature of their relationship to the Appellant.
[16] In terms of remedy, the Appellant sought an Order that he be declared capable of consenting to the proposed treatment with antipsychotic medication. In the alternative, the Appellant sought an Order remitting the confirmation of the attending physician’s determination of incapacity back to the Board for rehearing, in whole or in part.
[17] This Appeal is based on s. 80(1) of the Health Care Consent Act, which gives parties to the Board proceeding a statutory right of appeal “to the Superior Court of Justice on a question of law or fact, or both”: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 85. Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321, at para. 45.
[18] Section 80(10) of the Health Care Consent Act sets out the remedies available on appeal:
80(10) On the appeal, the court may,
(a) exercise all the powers of the Board;
(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;
(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.
[19] My analysis of the issues raised by this Appeal begins with consideration of the applicable standard of review, regarding which the parties did not disagree.
IV. ANALYSIS
A. The Standard of Review on Appeal
[20] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37, the Supreme Court of Canada instructed that where the legislature has provided for a statutory right of appeal from an administrative decision to the Court, “a court hearing such an appeal is to apply appellate standards of review to the decision.” The Supreme Court explained that the Court hearing a statutory appeal from an administrative decision will apply a correctness standard in considering questions of law, including interpretation of statutes, and a standard of palpable and overriding error to questions of fact or mixed fact and law, except for any extricable errors of law, which are subject to the correctness standard: Vavilov, at para 37, applying Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19 and 26-37; see also Shergar Development Inc. v. Windsor (City), 2020 ONCA 490, at para. 21; B.L. v. Pytyck, 2020 ONSC 3766, at paras. 23, 26-27; J.G. v. Dr. Vukin, 2020 ONSC 142, at para. 9.
[21] This means, that on questions of law, including the interpretation of statutes, the appellate court is free to replace the Board’s opinion with its own: Housen, at para. 8: “On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness”.
[22] On questions of fact or mixed fact and law, the reviewing court must find a “palpable and overriding error”, which is an error that is “clearly wrong” or “plainly seen”: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55, 68-69; Housen, at paras. 5-6, 21-22, 102-103 and 169. A palpable and overriding error is not “a needle a haystack”, but “a beam in the eye”: Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33.
[23] The Supreme Court stated that the legislature can provide for a different standard of review in a statutory appeal should it so intend, but there is none in the legislation that applies to this appeal.
B. The Appellant’s Position
[24] The Appellant appealed a single determination by the Board: specifically, the Board’s confirmation of Dr. Milovic’s finding that M.F. lacked the ability to appreciate the reasonably foreseeable consequences of his decisions about antipsychotic medication.
[25] The Appellant contended that the Board engaged in palpable and overriding error, reversible on appeal, in failing to consider key issues relevant to Dr. Milovic’s finding of incapacity, submitting as follows:
(a) The Board failed to conduct any meaningful assessment of Dr. Milovic’s evidence about M.F.’s diagnosis and, particularly, failed to consider evidence that M.F.’s psychosis was caused by prolonged, chronic cannabis use and not by schizophrenia.
(b) The Board failed to consider that M.F.’s admissions to hospital were initiated by M.F.’s parents, with whom he had a dysfunctional and difficult relationship.
(c) The Board failed to consider that M.F. had been found by the Board to be capable as to treatment with antipsychotic medications on December 13, 2019, some eight weeks before the Board’s hearing on February 7, 2020.
[26] The Respondent denied that the Board made any of the errors contended by the Appellant and submitted that although it may be possible for a reviewing judge to weigh parts of the evidence differently than the Board, this presents no basis for overturning the Board’s findings: H.L., at para. 55; Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 38.
C. Did the Board Commit a Reversible Error in Determining that the Appellant was Incapable as to Treatment?
(a) Did the Board Identify the Applicable Legal Principles?
[27] A person is presumed capable of making her or his own treatment decisions: Health Care Consent Act, s. 4(2). The onus of proving incapacity as to treatment is on the physician claiming it, in this case the Respondent, on the civil standard of a balance of probabilities: K.M. v. Banik, 2021 ONCA 481, at para. 5; Starson, at para. 77: “At a capacity hearing, the onus is on the attending physician to prove that the patient is incapable. I agree with the Court of Appeal that proof is the civil standard of a balance of probabilities.”
[28] The Board identified these principles, writing as follows:
At a Board hearing for review of a finding of incapacity to consent to treatment under the Health Care Consent Act (the "HCCA"), and for the review of the involuntary status of a patient under the Mental Health Act (the "MHA"), the onus of proof is always on the health practitioner / attending physician to prove the case. The standard of proof is proof on a balance of probabilities. The Board must be satisfied on the basis of clear and compelling evidence that the physician's onus has been discharged. There is no onus whatsoever on the person found incapable or subject to detention on an involuntary basis.
The Board must consider all evidence properly before it. Hearsay evidence may be accepted and considered, but it must be carefully weighed.
[29] The interpretation of the legal standard for capacity is a question of law and therefore reviewable on a correctness standard: Starson, at para. 110, citing Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35. The Board recognized that a person is presumed capable as to treatment and identified the correct test for determination of incapacity in section 4(1) of the Health Care Consent Act, writing as follows:
Under s. 4(2) of the HCCA, a person is presumed to be capable to consent to treatment and the onus to establish otherwise in this case rested with Dr. Milovic.
The test for capacity to consent to treatment is set forth in s. 4(1) of the HCCA, which states:
- (1) A person is capable with respect to a 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.
[30] The Board recognized that Dr. Milovic based her finding of incapacity on the second branch of the two-part test in s. 4(1). Dr. Milovic testified that M.F. was able to understand psychotic symptoms and the diagnosis of schizophrenia. The Board was satisfied that M.F. met the first branch of the test set out in s. 4(1): “Dr. Milovic had not satisfied us on the basis of clear and compelling evidence that M.F. was incapable based on the first branch of the capacity test.”
[31] The Board thereby focused its review on the second branch of the capacity test, as it was the basis on which Dr. Milovic concluded that M.F. was incapable as to treatment. Dr. Milovic testified that M.F. did not appreciate that he had schizophrenia, did not appreciate that he had psychotic symptoms and was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[32] The Board analysed whether the evidence established that M.F. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment with anti-psychotic medication. To frame its analysis, the Board identified and quoted from the principles set out by the Supreme Court in Starson, at paras. 78-81, as applicable to an assessment of M.F.’s capacity to appreciate the reasonably foreseeable consequences of a treatment decision:
(a) To appreciate the reasonably foreseeable consequences of a treatment decision, the patient must “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’: Starson, at para. 78.
(b) “[A] patient need not agree with the diagnosis of [an] attending physician in order to be able to apply the relevant information to [her] own circumstances ... a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition”: Starson, at para. 79.
(c) “While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition”: Starson, at para. 79.
(d) “[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”: Starson, at paras. 79 and 80.
(e) “Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision”: Starson, at para. 81.
[33] The Board identified the correct legal principles applicable to its review of Dr. Milovic’s finding that M.F. was incapable as to treatment with anti-psychotic medication, specifically, Dr. Milovic’s finding that M.F. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment.
(b) Did the Board Commit a Palpable and Overriding Error?
[34] This Appeal turns on the Appellant’s submission that the Board erred in its application of the facts to the second part of the capacity test: specifically, the Board’s finding that the Appellant was not able to appreciate the reasonably foreseeable consequences of a decision, or lack of decision, about treatment with antipsychotic medication.
[35] I will consider the areas in which the Appellant contended that the Board made palpable and overriding errors by failing to consider material evidence.
(i) The Board’s Consideration of the Appellant’s Diagnosis and Treatment
[36] The Board rejected M.F.’s submission that Dr. Milovic’s diagnosis of schizophrenia is not supported by M.F.’s medical history. In my view, the Board had ample cogent evidence on which to reach this determination, as I will now explain.
[37] The Board noted Dr. Milovic’s evidence that M.F. had been hospitalized on at least 20 occasions in the Greater Toronto Area in the 12-year period from 2008 to 2020. From March 13, 2008 to May 14, 2008, M.F. was admitted to a secure unit at CAMH, having been observed to be delusional and threatening to staff. M.F. was found by the attending psychiatrist, Dr. Faizal Ali, to be incapable as to treatment, was treated in hospital with anti-psychotic medication and released subject to a community treatment order when his symptoms diminished.
[38] The Board noted that M.F. “maintained that he did not have any mental illness, did not require hospitalization and did not need any treatment or medications”. The Board found:
Despite these denials, the evidence showed that M.F. had a history of mental disorder. Dr. Milovic indicated that M.F. carried a diagnosis of schizophrenia. His symptoms included disorganized thinking, Capgras Syndrome (a long-standing belief that his parents are not his parents), pressured speech, grandiose delusions and auditory hallucinations. The grandiose delusions included believing at times that he was a pop recording singer, a producer, and that he spoke many languages. He has also believed that he was a high-ranking officer in the military.
[39] The Board set out the evidence that it relied on in making these findings. From May 24, 2013 to July 25, 2013, M.F. was brought to CAMH after being released from a 14-month incarceration, during which he had stopped taking antipsychotic medication. M.F. was diagnosed with schizoaffective disorder, cannabis dependence and antisocial traits. The attending physician, Dr. Horowitz, found M.F. to be incapable of consenting to treatment, and was treated with anti-psychotic medication. Again, M.F. showed significant clinical improvement, described by Dr. Ali as a “robust response” to his medications.
[40] The Board noted M.F.’s hospitalization from April 2, 2015 to July 9, 2015 when, following expiry of a community treatment order, M.F. had not received any antipsychotic medication. M.F. was observed to be verbally abusive to the medical staff and although he reported a belief that he had no medical condition, he willingly took anti-psychotic medications and improved. The Board noted periods of hospitalization on April 25, 2019 to May 24, 2019 and September 20, 2019 to November 21, 2019. The Board summarized that the medical staff observed M.F. “experiencing auditory hallucinations (talking to himself), expression of persecutory delusions related to staff and his family, and grandiose delusions of being a member of an elite military force”.
[41] Dr. Milovic testified that M.F. suffers from schizophrenia, was able to understand psychotic symptoms and schizophrenia but does not appreciate that he has that illness or any psychotic symptoms. Dr. Milovic testified that, in the days leading to the Board hearing, M.F. stated that he believed that his delusions were grounded in reality. As a result, she testified that M.F. could not appreciate that his psychotic symptoms could be assisted by anti-psychotic medication. In considering this evidence, the Board had the benefit of documentation from 11 doctors pertaining to M.F.’s mental status and supporting the diagnosis of schizophrenia: Dr. Janet Ellis, Dr. Andrew Lustig, Dr. Omair Husain, Dr. Mishelle McIntyre, Dr. Juveria Zaheer, Dr. Donna Kim, Dr. June Lam, Dr. Wayne Baici, Dr. Sacha Agrawal, Dr. Jason Joannou and Dr. Laura Kennedy.
[42] The Board made the following findings:
Although this recitation of the history of some of MF's hospitalizations was lengthy, it clearly established that MF suffered from serious mental disorder and was in need of treatment. He denied this completely and repeatedly. MF did not see any benefit to the treatment that was proposed for him. The evidence before the Board and the history of hospitalizations clearly showed that on the occasions that MF had been off his medications, he suffered a substantial deterioration in his mental state and an increase in the manifestations of his illness.
[43] From my review of the Record of Proceedings, including the transcript of evidence of Dr. Milovic, Progress Notes and Discharge Summaries, the Board had ample cogent evidence on which to base these findings.
[44] I will next consider the Appellant’s submission that the Board failed to consider cogent evidence that M.F.’s correct diagnosis was “drug-induced psychosis”, and that in the absence of cannabis use, M.F.’s psychosis was likely to improve and his symptoms were likely to clear without the necessity of anti-psychotic medication. In my view, the Board considered this evidence, weighed it and rejected it, as it was entitled to do. I will explain the basis for this determination.
[45] The Appellant submitted that the section of the Board Decision that addressed M.F.’s incapacity as to treatment, being pages 11-17, did not refer to the possible diagnosis of drug-induced psychosis. I accept that this section of the Board Decision does not refer to the possible diagnosis of drug-induced psychosis, and that this issue was argued by the Appellant before the Board in support of M.F.’s submission that recovery from drug-induced psychosis required only that M.F. stop ingesting drugs and that anti-psychotic medication was unnecessary.
[46] However, the Board addressed this issue as part of its analysis of whether M.F. was suffering from a mental disorder, as one of the criteria in its review of whether the prerequisites were established for the admission of M.F. as an involuntary patient. The Board stated as follows:
The evidence at the hearing provided by Dr. Milovic supported by the clinical notes and records in Exhibit 10, was that MF suffered from schizophrenia. The manifestations of his illness included disorganized thought, Capgras Syndrome (a long-standing belief that his parents are not his parents), pressured speech, grandiose delusions and auditory hallucinations. Untreated, his illness led to aggressive, accusatory and violent behavior.
Counsel for MF submitted that these manifestations were not the result of an underlying psychotic condition, but rather a result of MF' s substantial use of cannabis - that MF in fact suffered from a substance-induced psychosis fueled by heavy cannabis use. No evidence was called to support that theory. Dr. Milovic clearly rejected that hypothesis, and pointed to extended periods of hospitalization during which MF would not have been consuming cannabis and yet his psychotic symptoms remained.
[47] I reject M.F.’s position that this analysis does not form part of the Board’s assessment of M.F.’s capacity to consent to treatment because it is contained in a separate section of the Board Decision. Rather, I accept the Respondent’s submission that the Board Decision must be read holistically. This is consistent with the Supreme Court’s guidance in Vavilov, at para. 97, where, in reference to its decision in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Court instructs that “close attention must be paid to a decision maker’s written reasons and that they must be read holistically and contextually, for the very purpose of understanding the basis on which a decision was made.”
[48] The Board was required to make findings regarding M.F.’s mental condition for two purposes: review of his involuntary admission under the Mental Health Act; and, review of the physician’s determination of incapacity as to treatment under the Health Care Consent Act. I accept the Respondent’s submission that the Board’s reasoning in assessment of M.F.’s mental condition did not have to be repeated but rather could be read to apply to both analyses.
[49] Reading the Board Decision holistically and contextually, the Board considered and rejected M.F.’s submission that his manifestations were the result of substance-induced psychosis fueled by heavy cannabis use, and thereby required no medical treatment except cessation of use of cannabis, and accepted Dr. Milovic’s evidence that M.F. suffered from an underlying mental condition, schizophrenia, and required treatment with anti-psychotic medication. The Board had an evidentiary basis on which to make this finding. In particular, Dr. Milovic testified that M.F. had been hospitalized in a secure ward for three weeks prior to the Board hearing (January 16, 2020 to February 6, 2020) and continued to be psychotic: “[M.F.] has been admitted here for three weeks. He remains very psychotic despite not using in the hospital for the past three weeks. … I’m telling you that no matter how much marijuana he used, he would not be this psychotic three weeks into his admission.” The Board’s acceptance of this evidence was sufficient, in my view, to support its confirmation of Dr. Milovic’s finding that M.F.’s psychotic condition was caused by schizophrenia and while exacerbated by abuse of cannabis, was not a drug-induced psychosis.
[50] The Appellant’s counsel cross-examined Dr. Milovic on M.F.’s previous admission to hospital in November 2019 where he had been hospitalized for some two months, and still had psychotic symptoms, but had day passes and admitted to cannabis use while out of hospital. Dr. Milovic testified that even though M.F. used marijuana in day passes, that this alone could not have caused his ongoing psychosis, pointing to “a consensus among numerous psychiatrists, myself included, in (sic) that his presentation and his symptoms could not be attributable to cannabis use alone.”
[51] Last, the Appellant urged consideration that the administration of the anti-psychotic medication to M.F. cannot begin until the determination of this Appeal, in accordance with s. 18(3)(d)(ii) of the Health Care Consent Act, and that no order has been obtained for emergency treatment, under s. 25(1) of the Health Care Consent Act. The Appellant contended that I should take this into consideration as part of an assessment of M.F.’s position that his mental conditions are caused by abuse of cannabis and will subside naturally when not using cannabis. I have rejected this submission because it was irrelevant to take into account the Appellant’s treatment from the date of the Board Decision to the date of the argument of this Appeal. This evidence was not before the Board.
[52] The Board had ample cogent evidence on which to reject the Appellant’s position that his psychosis was drug induced, and not a result of schizophrenia. I find that the Board considered the evidence on this issue and submissions made by the Appellant and rejected the Appellant’s position in favour of the evidence of Dr. Milovic, as it was entitled to do.
[53] Lastly in this area, M.F. contended that the Board’s statement that M.F. called no evidence to support the theory that he suffered from drug induced psychosis constituted a reversal of the physician’s onus to establish that he was incapable as to treatment. I do not accept this submission because the Board identified and applied the correct onus. The Board did not rely on lack of proof on the part of M.F. in confirming the physician’s determination of incapacity. Rather, the Board relied on evidence provided by the Progress Notes, the Discharge Summaries and Dr. Milovic in direct testimony, writing as follows:
The evidence to support a finding of incapacity was clear and compelling. MF had no appreciation of his need for treatment, because he did not believe that he suffered from a mental condition or that there were any benefits for him of receiving treatment. The manifestations of MF's illness rendered him unable to appreciate the consequences of a decision or lack of a decision. As a result of his inability to truly recognize that he suffered from a mental condition, MF was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision. He was unable to recognize the manifestations of previous relapses or illness, or that the medications that had been taken or were administered at the time had played any role in improving his condition. From the evidence, the panel found that MF was unable to appreciate the consequences for him of either consenting or not consenting to the treatment.
[54] Even if I had accepted the Appellant’s submission that the Board was critical of M.F.’s failure to lead evidence of drug-induced psychosis and that this constituted a reversal of onus by the Board, I do not see that it had any effect on the outcome of its confirmation of the physician’s finding of incapacity as to treatment. The Board grounded its decision on the evidence presented by the Respondent, and not on lack of evidence by the Appellant.
(ii) Consideration of Family Dynamics
[55] The Appellant maintained that the Board did not take into consideration M.F.’s family dynamics in reaching its decision and, specifically, did not factor that M.F.’s parents had a role in his prior admissions. The Appellant acknowledged that Dr. Milovic testified to M.F.’s complex family dynamics in her evidence before the Board but submitted that the Board did not analyse or consider this evidence in its Decision.
[56] The Board noted in its Decision that M.F.’s parents, who were M.F.’s co-substitute decision makers, had a role in seeking treatment for M.F. and his admissions to hospital. When unwell, M.F. had a history of violence and threatening conduct towards his parents, which was directed toward the hospital staff in threats of physical harm, aggression and insults. Dr. Milovic testified that while “there are family dynamics at play here … it is a clinical decision by a psychiatrist to keep [M.F.] in hospital involuntarily, not his parents.”
[57] I am satisfied that the Board noted the role of M.F.’s parents in seeking treatment for M.F., including hospitalization, as part of their analysis. The Board also reviewed the physicians’ assessment and diagnosis of M.F. upon presentation at hospital. It was open to the Board to give weight to the physician’s diagnosis and treatment recommendations without comment on the role of M.F.’s parents in seeking medical attention for M.F.’s conditions.
[58] To the extent that the Appellant submitted that the Board placed undue weight on the evidence of M.F.’s parents regarding his mental condition, and ought not to have done so based on the family dynamics, I did not see this in the Board Decision. The Board reviewed the evidence of M.F.’s admission to hospital, care and treatment, including the involvement of M.F.’s parents, but based its decision on acceptance of Dr. Milovic’s evidence, as it was entitled to do.
(iii) Consideration of Previous Board Determination
[59] The Board Summary stated that in December 2019 the Board overturned a physician’s finding that M.F. was incapable as to treatment. The Board had references to this December 2019 determination in the record, including the Emergency Record of January 16, 2020 (“finding of incapacity was not upheld by the CCB following his most recent hospitalization”) and the Progress Note of Dr. Juveria Zaheer of January 17, 2020:
In the last two admissions he was found incapable of consenting to treatment and the plan was to initiate community treatment order. However, either the finding of incapacity to consent to treatment or the community treatment order itself had been overturned by the CCB, on very narrow and specific grounds. It was not fell that the grounds for these decisions were broad enough to indicate that the patient was generally capable of consenting to treatment or unsuitable for a CTO.
[60] In cross-examination, Dr. Milovic confirmed that M.F. had been found or presumed capable at a hearing on December 12 or 13, 2019, but stated: “It is now February 7th. We are assessing capacity as of today. As of today he remains incapable.”
[61] The Appeal Record did not contain the Board’s decision of December 2019, or the Board’s reasons for that decision. The record contained only references to that determination. The Appellant is correct that the Board did not address its December 2019 determination in the Board Decision under appeal.
[62] The Appellant did not submit how the Board ought to have addressed the Board’s earlier finding in December 2019. If the Appellant’s submission is that the Board was bound by its earlier determination, that is rejected. The Board is no more bound by an earlier decision of capacity than it would have been bound by an earlier decision of incapacity.
[63] I accept the Respondent’s submission that Dr. Milovic was required to assess M.F.’s capacity at the material time in 2020, after his admission on January 16, 2020 to the Board hearing on February 7, 2020. The Board considered the evidence of Dr. Milovic’s treatment of M.F. during this time period, as follows:
“Notwithstanding that Dr. Milovic had been treating MF for only a short period of time, she met with MF on a number of occasions during this admission. Those meetings took place on January 27, January 28, January 31, February 2, February 3, February 4, February 5 and February 6, 2020. Each of the meetings lasted anywhere from 10 minutes or so to over an hour. The length of the meetings would depend on M.F's condition at the time, based on Dr. Milovic's own observations of M.F., and sometimes on discussions she would have with staff of the unit in which M.F. was housed during his admission. In response to question from M.F.s counsel, Dr. Milovic estimated that she had met with M.F. for a total of about six to seven hours.”
[64] The Board made the following findings:
The further notes of Dr. Milovic that were also included in Exhibit 10, documented her subsequent, almost daily, interactions with MF. Throughout those interactions, M.F. maintained that he did not have any mental illness, did not require hospitalization, and did not need any treatment or medications. Despite these denials, the evidence showed that MF had a history of mental disorder.
[65] I do not accept the Appellant’s submission that the Board made a palpable and overriding error in not addressing its December 2019 finding of capacity. The Board was required to address Dr. Milovic’s finding of incapacity on the admitted evidence that it weighed and assessed on February 7, 2020. The Board had evidence on which to make the finding that M.F. was not able to appreciate the reasonably foreseeable consequences of a treatment decision or lack of decision, and could do so without reference to its determinations in December 2019.
[66] Even had I found that the Board made a palpable error in not referring to or explaining its earlier finding in its Decision, I would not have found that this was an overriding error in that it did not have any effect on the decision made by the Board to confirm Dr. Milovic’s finding of incapacity as to treatment with anti-psychotic medications.
V. CONCLUSIONS
[67] The Board identified the correct legal principles applicable to its review of Dr. Milovic’s finding that M.F. was incapable as to treatment with anti-psychotic medication.
[68] It is not the role of the appeal court to re-weigh evidence that was available and considered by the Board. The Board had ample cogent evidence on which to conclude that M.F. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment. Applying the principles set out in Starson, the Board had an evidentiary basis on which to conclude that M.F. did not recognize the possibility that he is affected by the manifestations of a mental condition and he is thereby unable to apply the relevant information to his circumstances and unable to appreciate the consequences of his decision. The Board concluded that M.F. was suffering from a mental condition, applied the correct legal test for capacity and based its conclusions on clear evidence. I see no basis to interfere with the Board’s determinations.
VI. DISPOSITION
[69] I order that this Appeal is dismissed.
VII. COSTS
[70] The parties jointly submitted that no costs would be sought by any party on this Appeal. There shall be no order of costs of this Appeal.
A.A. SANFILIPPO J.
Released: July 26, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.F.
Appellant
– and –
DR. TAMARA MILOVIC
Respondent
REASONS FOR DECISION
A.A Sanfilippo J.
Dated: July 26, 2021