COURT FILE NO.: CV-21-00654309

DATE: 20210730

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF an application under subsection 32(1) of the Health Care Consent Act, 1996 S.O. 1996, c.2, Schedule A, as amended

RE: A.B. Appellant

AND:

DR. ARIEL SHAFRO Respondent

BEFORE: Mr. Justice Chalmers

COUNSEL: J. Danch, for the Appellant

T. Nemetz for the Respondent

HEARD: June 18, 2021 by videoconference

ENDORSEMENT

OVERVIEW

[1] A.B. appeals from the decision of the Consent and Capacity Board (“Board”) dated December 30, 2020, upholding Dr. Shafro’s finding that she is incapable of treatment decisions in respect of anti-psychotic and mood stabilizing medication.

[2] Ms. A.B. argues that the Board failed to consider the breakdown in the relationship between her and the hospital and medical staff. She states that the breakdown in the relationship interfered with Dr. Shafro’s ability to properly determine Ms. A.B.’s capacity with respect to the proposed treatment with anti-psychotic medication. Ms. A.B. also argues that there was no evidence to support the Board’s finding that she was incapable of consenting to treatment with mood stabilizing medication.

[3] Dr. Shafro denies there was a breakdown in the therapeutic relationship. He states that he properly diagnosed Ms. A.B. with a long-standing mental illness, namely bi-polar disorder, and that as a result of her illness, Ms. A.B. was unable to recognize and apply the information she received about the treatment.

[4] For the reasons set out below, I dismiss the appeal with respect to the Board’s finding that Ms. A.B. was incapable of consenting to the proposed treatment with anti-psychotic medication. I allow the appeal with respect to the finding that Ms. A.B. was incapable of consenting to treatment with mood stabilizing mediation.

BACKGROUND FACTS

[5] Ms. A.B. is presently 34 years of age. She was born in India and moved to Canada in 2014. She was trained in India as an engineer but has not worked in this field in Canada. She is married with one child.

[6] Ms. A.B. has a history of mental illness. She was hospitalized in India on two or three occasions. She was diagnosed with psychosis. She was first hospitalized in Canada in February 2019. She was treated by Dr. Senthelal. On discharge, he noted that there was “maybe a history of bipolar affective disorder”.

[7] Ms. A.B. was next hospitalized for a two-week period ending April 4, 2019. During this period, she was found incapable with respect to treatment. On discharge, the diagnosis was “query bipolar affective disorder, manic psychosis.” She was prescribed aripiprazole, 5mg. At the follow-up appointment three weeks later, Dr. Senthelal noted that Ms. A.B. has no insight into her mental illness. He stated that she was focused on wanting a divorce.

[8] On October 27, 2020, Ms. A.B. was brought to the hospital by her husband. She was non-compliant with medication. During the hospitalization, she refused all oral medication but received one injection of aripiprazole. Her husband, as the designated substitute decision maker, had consented to her receiving this medication. She remained in the hospital for one month. On November 27, 2020, she was released from the hospital after the Board concluded that her rights were violated. At the time of her discharge on November 27, 2020, the diagnosis was bipolar affective disorder, manic psychosis.

[9] After discharge, Ms. A.B. refused her next scheduled dose of medication. Her husband reported that she began showing worsening manic symptoms. He contacted the police to have her brought back to the hospital. She returned to the hospital on December 17, 2020, at which time she came under the care of Dr. Shafro. He had no history with Ms. A.B..

[10] On December 18, 2020, Dr. Shafro became Ms. A.B.’s most responsible physician. She advised the doctor that she had never taken any oral medication. This was contrary to the information provided by her husband who stated that he gave her oral medication at bedtime. Her husband reported that there had been improvement with medication. Dr. Shafro stated that Ms. A.B. was a “highly unreliable” historian.

[11] Dr. Shafro concluded that Ms. A.B. was incapable of consenting to treatment with anti-psychotic medication. In his clinical note dated December 18, 2020, Dr. Shafro noted that Ms. A.B. denied she had a mental illness. She did not believe she required any medication. She denied that the medication had been of benefit in the past. In his summary for the Board, Dr. Shafro stated as follows:

Patient was given information about her underlying illness, the symptoms that were currently manifesting, and the risk of not treating them. I had provided her with the risks, benefits, side effects and alternatives to aripiprazole, though she was highly reluctant to even hear this information and did not wish to explore alternatives in any level of detail.

[Ms. A.B.] is unwilling to consider even the possibility that she may suffer from a mental illness, unwilling to discuss any of her past experiences of mania or concerns from her husband. She does not acknowledge that she has suffered any impairment from her symptoms by any name, nor that medication has had any impact on her whatsoever, despite very clear observations from her husband and psychiatrist that medication has been extremely effective in both treating and preventing recurrence of her symptoms of mania and depression.

[12] On December 18, 2020, Ms. A.B. applied to the Board under the Health Care Consent Act, 1996 (“HCCA”) to review Dr. Shafro’s finding of treatment incapacity. She also asked the Board to review her involuntary status pursuant to the Mental Health Act (“MHA”). On December 28, 2020, she executed a Power of Attorney for Personal Care appointing her mother and grandfather for personal care. As a result, her husband was displaced as the substitute decision maker.

[13] The hearing before the Board proceeded on December 30, 2020. The only witness was Dr. Shafro. Ms. A.B. did not provide any oral or written evidence. Dr. Shafro testified that he spoke with Ms. A.B. about her illness, treatment plan, risks of treatment, side-effects and the benefits of treatment. He formed the opinion that Ms. A.B. was unable to apply the information to herself. He stated that she did not want to listen.

[14] The Board released its reasons on January 7, 2021, confirming Dr. Shafro’s finding with respect to Ms. A.B.’s mental capacity to the proposed treatment with anti-psychotic medication. The Board found that Ms. A.B. was “unable to appreciate the benefits of treatment and was, therefore, unable to weigh those benefits against the risk of not accepting treatment.” The Board upheld Dr. Shafro’s finding that Ms. A.B. was incapable of consenting to treatment with anti-psychotic and mood stabilizing medication. The Board concluded as follows:

The panel accepted Dr. Shafro’s cogent and compelling evidence that A.B. suffers from a mental disorder that requires treatment with antipsychotic and mood stabilizing medications. That A.B. denied that she had a mental disorder. A.B. was unable to recognize that her symptoms were the manifestation of her underlying mental conditions and as such she was unable to apply the relevant information in her circumstances. This panel therefore found that A.B. was unable to appreciate the benefits of treatment and was, therefore, unable to weigh those benefits against the risk of not accepting treatment.

THE ISSUES

[15] The following issues will be addressed in this endorsement:

(i) What is the Standard of Review?

(ii) Did the Board err in finding Ms. A.B. incapable of appreciating the consequences of her treatment decision? and

(iii) Did the Board err in confirming the finding of incapacity in respect of mood stabilizers in the absence of corroborating evidence?

ANALYSIS

Standard of Review

[16] There is a statutory right to appeal a decision of the Board to the Superior Court of Justice on questions of law or fact or both. The starting point for the analysis of the standard of review is a presumption of reasonableness. In the case of a statutory right of appeal, the court hearing the appeal is to apply appellate standards of review. The standard of review for an error of law is correctness. If the review includes questions of fact or mixed fact and law, the appellate standard of review is palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37.

[17] The role of the Board is to make findings of fact and to determine whether the applicable statutory test is established. The findings of fact by the Board are entitled to deference. The role of expertise in administrative decision making remains a relevant consideration in conducting a reasonableness review. The Board may assess and evaluate the evidence before it and absent exceptional circumstances, a reviewing court will not interfere with its factual findings: Vavilov, at paras. 31 and 125.

[18] The Board’s decision as to whether Ms. A.B. had capacity to consent to treatment is a question of mixed fact and law and the applicable standard is one of palpable and overriding error. Palpable is an obvious error. An overriding error is one that goes to the heart of the matter.

Did the Board err is finding Ms. A.B. incapable of appreciating the consequences of her treatment decision?

[19] The test to determine the capacity to consent to treatment is set out in s. 4(1) of the HCCA which provides that:

(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.

[20] Therefore, there are two parts of this test:

• the person is able to understand the information relevant to making the decision about the treatment; and,
• the person appreciates the reasonably foreseeable consequences of a decision or lack of decision.

[21] The inability to understand the information relevant to making a decision about treatment must be as a result of a mental disorder. As stated in Starson v. Swaze:

[A] patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences. 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 v. Swaze, 2003 SCC 2, at para. 81.

[22] Ms. A.B. takes the position that Dr. Shafro failed to prove that any failure to appreciate the consequences of treatment was caused by a mental illness. She argues that if there was a failure to appreciate the consequences of treatment, it was because there had been a breakdown in the therapeutic relationship.

[23] Ms. A.B. refused to speak with Dr. Shafro when he was attempted to assess her. In argument, counsel for Ms. A.B. states that she did not speak to Dr. Shafro because she did not trust him. She had previously told hospital staff about the domestic violence issues involving her husband and her request for social services assistance. She states that the hospital did not provide any assistance. This resulted in Ms. A.B. not trusting the medical staff at the hospital.

[24] Ms. A.B. did not testify before the Board. There was no evidence that Ms. A.B. did not speak to Dr. Shafro because she had lost trust in the medical staff.

[25] Counsel for Ms. A.B. argues that the Board is a board of enquiry and has a positive obligation to look into alternative reasons for her inability to appreciate the consequences of treatment. She states that the Board ought to have made its own enquiries to determine the reasons for Ms. A.B.’s failure to communicate with Dr. Shafro, and if it had done so, it would have determined that the reason for the lack of communication was because of the failure of the medical staff to respond to her allegations of domestic violence.

[26] I am satisfied that the Board, when determining treatment capacity under the HCCA, is not a board of inquiry. There is no reference to a duty to inquire in the HCCA. This is to be contrasted with the Mental Health Act which provides that the Board is to inquire into the involuntary patient status.

[27] Ms. A.B. argues that there is evidence in the hospital records that the failure to deal with Ms. A.B.’s complaints of domestic violence led to a breakdown in the therapeutic relationship. In the note dated February 6, 2019, there is reference to Ms. A.B. stating that her husband slapped her. The note goes on to state that there was a good mental health examination. The note provides that thought content was focused on the abuse from her husband. Ms. A.B. described her husband as “controlling”. She asked that someone talk to her husband about her rights. In the note dated April 25, 2019, she stated that she is not mentally sick and is only asking for a divorce. In the note dated October 27, 2020, there is reference to her husband hitting her since 2012. In the note dated November 27, 2020, it is reported that she complained about her husband. She talked to a social worker about marriage counselling.

[28] When Dr. Shafro became responsible for Ms. A.B., he tried to speak with her. In the note dated December 18, 2020, he states that she refused to answer his questions. Counsel for Ms. A.B. argues that she did not speak with Dr. Shafro because she had shut down. She did not trust the hospital and medical staff because they failed to assist her with the issues she has with her husband. It is Ms. A.B.’s position that there is no evidence that her failure to engage was because of a mental illness.

[29] On the day before the hearing, counsel for Ms. A.B. sent an e-mail to Dr. Shafro requesting social worker support. Dr. Shafro did not make a referral to a social worker and focused on treating Ms. A.B. with medication. Ms. A.B. notes that the Board’s reasons did not refer to her experience as a victim of domestic abuse or her request for social work assistance.

[30] Ms. A.B. relies on Isber v. Zebrowski, 2009 58980 (ONSC). In that case, the patient argued that there had been a breakdown in the patient-physician relationship. When the doctor tried to engage with the patient with respect to the treatment, she refused and left the room. The patient stated that the breakdown in the relationship was because the doctor did not accept her allegation that she had been sexually assaulted by her husband. On appeal, the Court stated that the Board’s failure to address the breakdown in the relationship permeates the decision.

[31] Dr. Shafro argues that Isber is distinguishable on the facts. In Isber, the patient testified at the hearing that there had been a breakdown in her relationship with the doctor. Here, Ms. A.B. did not testify. There was no evidence before the Board that Ms. A.B. did not engage with Dr. Shafro because of a breakdown in the patient-physician relationship.

[32] Dr. Shafro testified before the Board that in his opinion Ms. A.B. exhibited evidence of a manic episode. She had increased energy, euphoria, irritability, significant mood lability, and flight of ideas. He stated that there were symptoms of mania. He did not observe any clear psychotic symptoms. Ms. A.B. told Dr. Shafro that she “refused to be mental” and dismissed the possibility of having an illness. Dr. Shafro acknowledged that Ms. A.B.’s husband initiated the hospitalization. He placed little or no weight on the husband’s report of an increase in manic symptoms. Dr. Shafro further testified that he spoke to Ms. A.B. and provided information to her about her illness and the treatment plan. It was his opinion that she was unable to apply that information to herself. She refused to listen.

[33] I am satisfied that there was evidence before the Board that Ms. A.B. was having symptoms of a mental illness when she was examined by Dr. Shafro. Dr. Shafro testified that he had observed signs of mania. There was also evidence that she was unable to appreciate the consequences of her decision with respect to the proposed treatment with anti-psychotic medication. Ms. A.B. did not testify. There was no evidence before the Board that she did not speak to Dr. Shafro because she had lost faith in the hospital to assist her with her marital issues.

[34] In its reasons, the Board correctly set out the test in Starson. The Board noted that Ms. A.B. is presumed to be capable unless she can apply the information to her own circumstances. The Board states that there is evidence that she was oblivious of the information as it applies to her. The Board concludes that Ms. A.B. had bipolar disorder and that her mental illness prevented her from applying the information about treatment to herself. I am satisfied that the Board had before it, evidence that it could accept and did accept in coming to its decision. The Board did not address the existence and causes of the alleged breakdown in the relationship between Ms. A.B. and Dr. Shafro because there was no evidence before the Board that there was such a breakdown.

[35] It is my view that the Board’s decision was reasonable and based on the evidence before it. The Board did not make a palpable or overriding error with respect to its finding that Ms. A.B. did not have the capacity with respect to the proposed treatment with anti-psychotic medication. There was evidence that Ms. A.B. had symptoms of a mental illness, namely bipolar disorder. There was also evidence that as a result of her mental illness, she was unable to apply the information with respect to treatment to her own circumstances and was unable to appreciate the consequences of her refusal of treatment.

Did the Board err in confirming the finding of incapacity in respect of mood stabilizers in the absence of corroborating evidence?

[36] Ms. A.B. argues that the Board erred in finding that she was incapable of consenting to or refusing to consent to treatment with mood stabilizing medication.

[37] There was evidence before the Board that Ms. A.B. had accepted and taken anti-psychotic medicine in the past which were helpful. The evidence provided by Dr. Shafro to the Board was with respect to Ms. A.B.’s improvement with anti-psychotic medication. The evidence was specific to aripiprazole. There was no evidence before the Board that Ms. A.B. had taken mood stabilizing medications in Canada. It is Ms. A.B.’s position that although Dr. Shafro and the hospital staff discussed treatment with the anti-psychotic medication, there was no discussion with respect to mood stabilizers.

[38] Ms. A.B. argues that it is an error of law for the Board to make a finding without any evidentiary basis to do so. There was no evidence before the Board that mood stabilizers are appropriate in Ms. A.B.’s case or that Dr. Shafro assessed her capacity with respect to this class of medication.

[39] I am satisfied that there was no evidence upon which the Board could reasonably conclude that Ms. A.B. was incapable of refusing to consent to treatment with mood stabilizing medications. I allow the appeal with respect to the finding of the Board that Ms. A.B. was incapable of consenting to treatment with mood stabilizing medications.

Conclusion

[40] I find that the evidence before the Board, including the testimony of Dr. Shafro provided a reasonable basis for the Board to conclude that Ms. A.B. was unable to recognize that she suffers from a mental illness and as a result, is unable to appreciate the reasonably foreseeable consequences of her decision with respect to treatment with anti-psychotic medication.

[41] The Board did not make a palpable or overriding error. I conclude that there was sufficient evidence before the Board to allow it to conclude that Ms. A.B. did not have capacity with respect to the proposed treatment with anti-psychotic medication. This finding is within the range of acceptable and rational conclusions based on the evidence, and I dismiss this aspect of the appeal.

[42] There was no evidence before the Board that Ms. A.B. was incapable of consenting to treatment with mood stabilizing medication. I allow this aspect of the appeal.

[43] Counsel for both parties advise that they are not seeking costs of the appeal.

DISPOSITION

[44] I make the following order:

(i) The appeal with respect to the Board’s finding that Ms. A.B. is not capable of consenting to the proposed treatment with anti-psychotic medication is dismissed;

(ii) The appeal with respect to the Board’s finding that Ms. A.B. is not capable of consenting to treatment with mood stabilizing medication is allowed; and

(iii) I make no order as to costs.

DATE: JULY 30, 2021