Court File and Parties

COURT FILE NO.: CV-21-00661662 DATE: 20210907

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Mental Health Act, R.S.O. 1990, chapter M.7, as amended,

AND IN THE MATTER OF an 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,

BETWEEN:

D.S. Appellant

– and –

Dr. Steven Youssoufian Respondent

Counsel: Self-represented Pia Hundal, for the Respondent Ken J. Berger, Amicus Curiae

HEARD: August 26, 2021

BEFORE: Justice M. Sharma

REASONS FOR JUDGMENT

[1] This is an appeal from a decision of the Consent and Capacity Board (the “Board”) made on April 20, 2021, with Reasons for Decision released on April 26, 2021.

[2] At the commencement of this hearing, the appellant requested that his initials, D.S., be used to identify him in these reasons. The respondent had no objection. Accordingly, I refer to him solely by his initials.

[3] The appellant was self-represented. The Court heard brief submissions from him. The Court also received written and oral submissions from amicus curiae, Mr. Ken Berger, and from counsel for the respondent.

[4] The Board found that the grounds were met under s. 20(5) of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”) for D.S. to be involuntarily admitted. It also found that D.S. lacks capacity, as defined in s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”), to consent or refuse consent to treatment of antipsychotic medications.

[5] In this appeal, D.S. seeks to have both of the Board’s findings quashed, with a finding that D.S. is capable with respect to the proposed antipsychotic medication, and that he be released from involuntary admission. In the alternative, he requests that the matter be remitted back to the Board for a re-hearing.

I. Background

[6] D.S. is 49 years old and was diagnosed with schizophrenia in 2008.

[7] D.S. also has severe hypertension and diabetes. According to the evidence before the Board given by the respondent psychiatrist, D.S. has end stage renal disease requiring dialysis three or four times a week. The evidence was that D.S.’s kidney condition arose from his hypertension and diabetes.

[8] Since 2008, D.S. has been hospitalized often. At hospital, he often presents as paranoid and delusional. He also presents as not taking care of his hypertension and diabetes. The evidence also disclosed that there were some lengthy periods when D.S. did not require hospitalization (e.g., between 2014 and 2019), and that D.S. was not taking antipsychotic medications for “quite some time” during these periods when he was not hospitalized.

[9] D.S. lived with his two brothers in a house in Richmond Hill. He resided there for 20 years. On April 8, 2011, he was brought to hospital by police following a conflict with his brothers at their home. D.S. had become agitated after his brothers advised him that they had sold the house in which they all lived. The sale was to close in a matter of days. D.S. was upset, shoved his brother, and caused property damage to the kitchen. This dispute triggered his current involuntary hospitalization.

[10] He was held on a Form 1 under the MHA for a psychiatric assessment.

[11] On April 11, 2021, he was held on a Form 3 (certificate of involuntary admission), with the attending physician of the opinion that D.S. “is suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to another person.”

[12] On April 13, 2021, the respondent, Dr. Youssoufian, began managing D.S.’s care. He determined that D.S. lacked capacity, as defined in s. 4(1) of the HCCA, to consent or refuse consent to treatment by way of antipsychotic medication. He signed a Form 33 under the MHA, giving notice to D.S. of this determination.

[13] D.S. sought a review of the findings of involuntariness and incapacity before the Board which took place on April 20, 2021. He was represented by counsel. The hearing lasted two hours.

[14] The evidence before the Board was the oral testimony of Dr. Youssoufian, D.S., and his brother, E.S. One exhibit was entered as evidence, which included the various forms under the MHA, as well as various clinical notes.

[15] The Board concluded that D.S. did not have the capacity, under s. 4(1) of the HCCA, to consent to treatment of antipsychotic medications to treat his schizophrenia. It also concluded that it was necessary to hold him involuntarily under s. 20(5) of the MHA. It found that his medical conditions – hypertension, kidney disease and ability to attend dialysis – were exacerbated by non-compliance with his antipsychotic medications. It concluded that his mental disorder was of a nature that likely would result in in serious physical impairment to him unless he remained in hospital and underwent treatment.

[16] At this juncture, I note that the Board found D.S. incapable to appreciate the consequences of refusing treatment for schizophrenia. It also determined that he was to be involuntarily admitted, not for the exclusive purpose of treating his schizophrenia, but because it was concerned that if his schizophrenia is left untreated, his medical conditions would also likely go untreated, resulting in serious physical impairment to D.S..

[17] On this appeal, D.S. argues:

(a) The Board erred in its decision that he could not consent to treatment;

(b) The Board erred in its decision that he should be held involuntarily;

(c) The Board conducted the hearing in a rushed manner that prevented D.S. from having a fulsome hearing.

II. Analysis

[18] This appeal is under s. 80 of the HCCA and s. 48 of the MHA which provide rights of appeal on “a question of law or fact or both.”

Standard of Review

[19] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1, the Supreme Court of Canada stated, at para. 37, that where the legislature has provided for an appeal from an administrative tribunal to a court on a question of fact, or questions of mixed fact and law, the standard of review is “palpable and overriding error”.

[20] Since Vavilov, decisions of this court and the Court of Appeal have confirmed that on an appeal of decisions under s. 80 of the HCCA and s. 40 of the MHA, the standard of review is “palpable and overriding error” on questions of fact or questions of mixed fact and law, and a standard of “correctness” on questions of law: See Almeida v. Morgan, 2020 ONSC 5066, at paras. 26-27; B.L. v. Pytyck, 2020 ONSC 3766, at para. 26, aff’d 2021 ONCA 67, at para 22.

[21] In rendering its decision, the Board correctly noted:

On any review of incapacity to consent to treatment under the HCCA, and any review of involuntary status under the MHA, the onus of proof at a Board hearing rests with the attending physician or health practitioner to prove his or her case. The standard of proof is on a balance of probabilities. The Board must be satisfied on the basis of clear, cogent and compelling evidence that the physician’s onus has been discharged. The patient appearing before the Board does not have to prove anything, as the onus is entirely on the physician.

The Board must consider all evidence properly before it. Hearsay evidence may be accepted and considered, but it must be carefully weighed.

Issue 1: Did the Board err in its conclusion that D.S. was not capable to consent to treatment?

[22] Under s. 4(2) of the HCCA, a person is presumed to be capable to make decisions around their own treatment.

[23] Section 4(1) of the HCCA sets out the two-part test to determine whether or not a person is capable to consent to treatment. It reads:

4 (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. [emphasis added]

[24] The Board found that D.S. “was able to understand the information that is relevant to making a decision about the treatment” – the first part of the test under s. 4(1) of the HCCA.

[25] However, it found that he was not able “to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question” – the second part of the test under s. 4(1) of the HCCA.

[26] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, the Supreme Court of Canada addressed how the Board is to approach the analysis of whether a person is able to appreciate the consequences of a treatment decision. At paras. 80 – 81, the majority of the Court said:

80 Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences. The distinction is subtle but important: see L. H. Roth, A. Meisel and C. W. Lidz, “Tests of Competency to Consent to Treatment” (1977), 134 Am. J. Psychiatry 279, at pp. 281-82, and Weisstub Report, supra, at p. 249. 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: see Roth, Meisel and Lidz, supra, at p. 281.

81 However, 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: see the Weisstub Report, supra, at p. 249. 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.

[27] In my view, the Board made two errors in its assessment of the evidence as to D.S.’s ability to appreciate the consequences of a decision or lack of decision to treatment. These errors are apparent upon review of the Transcript of the Board Hearing, the Board’s Reasons, and applying the governing test in the HCCA and Starson.

1. The Board improperly concluded that that D.S. lacked the ability to appreciate the consequences of a decision because D.S. did not believe he had schizophrenia.

[28] The Board provided the following reasons with respect to the second part of the test:

“According to Dr. Youssoufian, DS did not believe that he had any mental illness and did not wish to be treated with antipsychotic medications, but did believe that his psychiatrists were plotting against him and trying to deprive him of his enjoyment of life.”

“The panel concluded that DS was unable to appreciate the benefits or risks of treatment because he did not believe that he had a condition which the treatment was intended to ameliorate. Absent the ability to appreciate he had schizophrenia, DS was unable to weigh the risks and benefits of treating the disorder. As such the panel found that DS was incapable of consenting to the treatment.”

[29] A review of the transcript shows that Dr. Youssoufian printed and explained to D.S. information with respect to his mental disorder, medications, and the risks and benefits of treatment. According to Dr. Youssoufian, D.S. responded by denying having a mental disorder and expressing a view that psychiatrists are plotting against him, and that his psychiatric medication caused his medical conditions: see Transcript, pp. 20-22. This was the extent of Dr. Youssoufian’s evidence around D.S.’s ability to appreciate the consequences of treatment or lack of treatment.

[30] Dr. Youssoufian did not go further to explain whether or how these views or perceptions held by D.S. have compromised his ability to understand the risks and benefits of receiving treatment. Dr. Youssoufian did not draw a correlation between how the views or perceptions held by D.S. would make it difficult or impossible for D.S. to be able to understand the reasonably foreseeable consequences of treating someone with schizophrenia. He and the Board jumped to the conclusion that a refusal to accept a diagnosis of schizophrenia rendered D.S. incapable of appreciating the consequences of treatment.

[31] As stated by the majority in Starson, at para. 111, “a patient’s failure to recognize consequences does not necessarily reflect an inability to appreciate consequences.” D.S. may well have disagreed with his diagnosis and the proposed treatment, but it does not mean he was unable to appreciate the risks and benefits of the proposed treatment.

2. The Board ignored evidence which showed that D.S. did understand his diagnosis and did appreciate the effects of medication to treat schizophrenia.

[32] D.S. had been treated with antipsychotic medication in the past and in the days prior to his Board hearing. His evidence and the evidence of this brother, E.S., was that D.S. was aware of his diagnosis of schizophrenia and that he made conscious decisions not to take antipsychotic medication because of the effects it had on him.

[33] His brother gave the following evidence (at pp. 66-67 of the Transcript):

Q. So, are you able to comment on – is your brother willing to take meds now?

A. No.

Q. His psychotropic meds?

A. I don’t believe so, no. Because…

Q. And why not?

A. Because every time when he was on those meds, then he would say, no, I don’t want to take meds, I’m not going back on. Like every time when he was going for his treatment, at the beginning, everything’s all fine. You know, he’ll take it at the beginning and everything’s fine. After a period of time, he’ll go no, I don’t want to take it and then that’s it, then he’s off.

Q. No, no, but I’m just wondering whether he comments on any side effects or anything that you might notice?

A. The only thing that he has brought up at the time was basically he just feels tired, that’s it.

Q. And do you notice him being tired?

A. Yes, I do.

[34] The evidence of D.S. further showed D.S. understood that his doctor had diagnosed him with schizophrenia and that he had an ability to appreciate the consequences of taking the medication.

[35] When asked by a board member if D.S. was aware of a diagnosis given to him, D.S. responded, “Yes, and I believe the doctor said it’s Schizophrenia” (at p. 75 of the Transcript).

[36] His lawyer asked D.S. to comment on his opinion with respect to the diagnosis, to which D.S. replied, “Yes, but unfortunately sometimes when I try to explain something, it’s the medication and being forced into a psychiatric hospital that I – my mind lapses and have Dementia sometimes. So, I apologize if that happens because it’s the medication that makes me stall and delay in my response” (at p. 75 of the Transcript).

[37] The following exchange then happened between his lawyer and D.S. at p. 76:

Q. And is the doctor suggesting that you take any meds for that?

A. Yes.

Q. What? What meds?

A. I don’t know exactly what meds because I don’t keep track of the name. I don’t really record the name. I don’t remember the name.

Q. Did the doctor speak to you about any risks and benefits of meds?

A. I don’t remember exactly, because like I said the medication doesn’t really make my mind actually function as well as it used to….

[38] This evidence was not discussed or considered by the Board in its Reasons. If it had, it would have provided evidence of D.S.’s ability to appreciate the consequences of taking the antipsychotic medication. Whether the Board, Dr. Youssoufian, or another patient with schizophrenia would have agreed with D.S.’s decision not to take the medication because of these side effects and the impact antipsychotic medication has on his mental processes is irrelevant. What is relevant is that this evidence shed some light on to D.S.’s ability to assess the impact the medication on him, and for this reason, the Board was required to consider it.

[39] The respondent points to decisions of this Court for the proposition that an appellant may have an ability to appreciate the side effects of medication but is still unable to have the requisite capacity to consent to treatment: see Neill v. Chawla, 2021 ONSC 1406, at para. 19; A.S. v. Sum, 2021 ONSC 4296, at para. 38, both citing D’Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250.

[40] I have reviewed those decisions and the excerpts of the Board’s reasons in those cases. The Board’s reasons demonstrated that it considered evidence that corroborated the physicians’ views, including the evidence of the appellant. There was evidence that explained why the appellant was unable to consent, going beyond mere statements that the appellant was unable to appreciate the consequences of treatment simply because he refused to accept that he suffered from a mental illness. I further note that there was a real threat of harm to others in one case, and grandiose delusions in another. On these points, those decisions can be distinguished from the present one.

[41] In my view, these were palpable and overriding errors that would have affected the outcome. There was an absence of any evidence – let alone clear, cogent and compelling evidence – that D.S. was unable to appreciate the reasonably foreseeable consequences of a decision with respect to treatment. The Board leaped to the conclusion that D.S. was incapable of appreciating the consequences of treatment simply because he believed he did not have schizophrenia. In addition, there was evidence showing that D.S. had taken antipsychotic medication in the past, was aware of the impact it had on him, but chose not to take it, which evidence was ignored by the Board in its reasons. It may have chosen to reject that evidence, but there was no indication that it even considered it.

[42] For these reasons, I find that the burden of establishing that D.S. is incapable of consenting to treatment under s. 4(1) of the HCCA has not been met. The presumption of D.S.’s capacity to make treatment decisions under s. 4(2) of the HCCA is restored.

Issue 2: Did the Board err in its conclusion that D.S. should be held involuntarily?

[43] Section 20(5) of the MHA sets out what is commonly known as “Box A” criteria (as they are laid out in Box A of Form 3) for involuntary admission. That section reads:

(5) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[44] Counsel appearing as amicus notes Form 3 completed by the attending physician concluded that D.S. was suffering from a mental disorder that likely will result in “serious bodily harm to another person.” However, the Board concluded that D.S. was not at risk of causing bodily harm to anyone. Instead, the Board examined and concluded that D.S.’s mental disorder would likely result in serious physical impairment of the patient. Therefore, he argues that the Board should not have confirmed the involuntary admission on different grounds (i.e., serious physical impairment of the patient).

[45] In my view, this argument fails. As the respondent correctly points out in his factum, under ss. 41(1) and 41(2) of the MHA, the Board must determine whether the prerequisites set out in the MHA for admission as an involuntary patient are met at the time of the hearing before the Board. Those grounds are not limited to the original involuntary admission grounds.

[46] Amicus further notes, in its factum and during argument, that the Board made a tangential connection between D.S.’s mental illness and his need for dialysis treatment that was not supported by the evidence. I agree that the Board did not have a sound evidentiary basis to conclude that D.S.’s mental illness will likely result in serious physical impairment. This theory was presented to the Board by the respondent as a reason to involuntarily admit D.S., but the evidence on this point was significantly lacking, and there was evidence to the contrary that was not considered by the Board.

[47] In its reasons, the Board stated:

“DS had a history of hospitalizations for which he had presented as being paranoid and delusional and not taking care of his chronic medical conditions, which included severe hypertension and diabetes. Dr. Youssoufian stated that, as a result of poorly controlled blood pressure and diabetes, DS had developed end stage renal disease for which he was receiving dialysis three or four days a week”

[48] The Board considered medical records from a 2010 discharge summary. That summary indicated D.S. has not been taking psychotropic medications for some time, and that he had not been taking hypertensive medication. It also considered a 2014 discharge summary from Dr. Youssoufian, which stated that “[i]f the patient is unable to maintain oral Haldol [used to treat schizophrenia], then likely this medical condition will also be compromised.” Dr. Youssoufian also recounted in his evidence a note from a doctor in 2011 who had a similar view, namely, that D.S. “will be non-compliant with medications likely in the community unless he can actually comply with his Paranoid Schizophrenia Medications” (see p. 47 of the Transcript).

[49] The Board, in its Reasons, recounted that “Dr. Youssoufian stated that if DS was unwell from schizophrenia and untreated, then he would have thought disorganization, he would have delusions around psychiatric treatment and that this would affect his decision making and his ability to follow through with dialysis.”

[50] The Board accepted this evidence as demonstrating that D.S.’s mental disorder was of a nature that likely would result in serious physical impairment to him, unless he remained in hospital and underwent treatment.

[51] The problem, in my view, was that there were no current medical records showing missed dialysis appointments nor the frequency of any missed dialysis appointments to substantiate the doctor’s theory. The evidence on which the Board relied was from 2010, 2011 and 2014 discharge summary reports. There was more current evidence from E.S. that for “quite some time” between 2014 and 2019 when D.S. was not hospitalized, D.S. was not taking medication for his schizophrenia. During this period, there was no evidence to show that D.S. missed a substantial or many dialysis appointments.

[52] In terms of evidence from 2019 onwards, there was some evidence from D.S.’s brothers which was reported to Dr. Youssoufian that D.S. missed “some” dialysis appointments over the last few months. This was hearsay evidence, which I accept the Board could have accepted, but it ought to have been critically weighed by the Board to ensure it was reliable. There was a possibility that the information from D.S.’s brother was not credible, as they had an incentive to keep D.S. hospitalized and out of the home to ensure D.S. did not cause any further damage to it and that there was vacant possession on closing – a mere days after the Board’s hearing. No one questioned E.S. on his knowledge of missed dialysis appointments or their frequency, if any, during the Board hearing.

[53] Moreover, there was nothing connecting D.S.’s schizophrenia to those missed appointments, nor was there evidence of a nephrologist attesting to whether the frequency of missed appointments or whether those missed appointments would result in substantial impairment to D.S.’s health. When cross-examined about a report he prepared that references missed dialysis appointments, Dr. Youssoufian stated (at p. 31 of the Transcript):

Q. When – there’s a reference on that point that my client missed – he’s missing Dialysis. Is that the case?

A. Yes, according to the brothers, his brother, yes.

Q. And what type of impact does that have?

A. Again, I’m not the best person to answer that question, but it does affect the kidney function if people are not having Dialysis.

[54] In my view, there was an absence of clear, cogent and compelling evidence establishing that D.S. missed dialysis appointments, or if he did, that it was because of his schizophrenia, and that if he did miss dialysis appointments because of his schizophrenia, that he had missed enough such that it would have resulted in a substantial impairment of his health. As a result, in my view, the respondent’s position remained only a theory.

[55] There was also evidence running against this theory that was not considered or addressed by the Board. There was evidence within the record that on the night before the incident with D.S.’s brothers, D.S. underwent dialysis: see consultation report of Dr. Zelina, April 8, 2021. The fact that D.S. went to dialysis voluntarily the day before he was involuntarily admitted was not considered by the Board.

[56] During the hearing of this appeal, D.S. acknowledged that it is critical that he attend dialysis appointments. He stated he understood the importance of these appointments and that if he did not attend, he could die. There has been no issue with him voluntarily attending dialysis appointments while subject to this involuntary admission. His treating physicians have not opined that D.S. does not having capacity to make decisions around treatment for his end-stage renal disease.

[57] For these reasons, I find there was insufficient evidence on which the Board could rest a conclusion that involuntary admission due to D.S.’s mental disorder was necessary to protect D.S. from likely serious physical impairment.

Issue 3: Did the Board conduct the hearing in a rushed fashion that prevented D.S. from having a fulsome hearing?

[58] I make no findings on this issue given my previous findings that the Board made palpable and overriding errors in their decision.

[59] However, I do note the frequency with which the Board reminded the parties of the 2-hour time limit in what may have been an attempt to rush the hearing to a conclusion. The respondent notes that the appellant could have requested more time. Given the evidentiary gaps in the respondent’s case noted above, it may well have been the respondent who ought to have asked for more time before the Board.

[60] In Sum, at para. 25, the Court copied a quote from the Board’s decision in that case which spoke of the importance of the decisions that the Board renders. I have recopied it below as a reminder of the care and attention that rests with the Board when the presumptive rights of those with mental illness are in jeopardy:

The presumption of capacity is a bedrock medical and legal principle. It is not a presumption that should be easily set aside. The right of individuals to make autonomous treatment decisions must always be vigorously protected and promoted. It is only in situations where an individual does not have an ability to receive, process and articulate the information being provided to them about the mental disorder in question that a finding can be made that there is an inability to understand.

III. Conclusion

[61] The standard of review on an appeal of a decision of the Board is high: palpable and overriding error. With this standard of review, an appellate court is not to substitute its assessment of the evidence for that of the Board unless it finds that Board made palpable and overriding errors. In this case, I find that the Board did make palpable and overriding errors when it (a) jumped to the conclusion D.S. lacked capacity because he did not believe he had schizophrenia; (b) ignored evidence that tended to show D.S. was able to appreciate the reasonable foreseeable consequences of treatment; and (c) when it accepted the respondent’s theory of substantial impairment to D.S.’s health without critical or sufficient evidence to support that theory.

[62] These errors obviously and fundamentally impacted the outcome of the case. Accordingly, the Board’s decision is quashed.

[63] The respondent’s burden of establishing D.S. lacks capacity has not been met. The presumption of D.S.’s capacity to make treatment decisions under s. 4(2) of the HCCA is restored.

[64] The respondent has also failed to meet the burden of establishing that involuntary admission under s. 20(5) of the MHA is justified. Accordingly, I order that he be released from hospital.

Justice Mohan Sharma

Released: September 7, 2021