COURT FILE NO.: CV-20-00644880-0000

DATE: 20210426

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIA CHRISTOFOROU

Appellant

– and –

DR. ADAM TOEWS

Respondent

Joanna Weiss, for the Appellant

Kathleen MacDougall, for the Respondent

HEARD: January 25, 2021

A. Ramsay j.

Overview

1The appellant, Maria Christoforou, appeals two decisions of the Consent and Capacity Board (“Board”) dated July 22, 2020, which found that the criteria for issuing a Community Treatment Order (“CTO”) set out in the Mental Health Act, R.S.O. 1990, c. M.7 (“Mental Health Act”) were met, and asks that the Board’s determination that she was incapable of making decisions regarding a Community Treatment Plan (“CTP”) be set aside or quashed and that the CTO be revoked and the appellant be declared capable of consenting to the treatment, or alternatively, remitting the matter back to the Board for a new hearing before a different panel.

2On June 16, 2020, the respondent, a psychiatrist at the Centre for Addiction and Mental Health (“CAMH”), found the appellant incapable of consenting to the proposed Community Treatment Plan (“CTP”). The respondent issued a Community Treatment Order (“CTO”) on June 24, 2020. The appellant’s brother, Nick Christoforou, who is her substitute decision-maker, consented to the CTP.

3The appellant applied to the Board to review her capacity with respect to the CTP and whether the criteria for issuing the CTO were met. The Board dismissed the appellant’s two preliminary motions in its decision its Decisions released on July 22, 2020, finding that the criteria for the issuance of the CTO were met and confirmed the respondent’s finding that the appellant was incapable of consenting to treatment with the CTP.

4Both parties agree with the facts contained in their respective factum save for a few characterizations.

5The appellant is in her mid-forties, single, and has no dependents. She was living with her mother at the time of the hearing before the Board. The appellant has been on long-term disability benefits since 2009.

6The appellant has had approximately twelve psychiatric admissions since 2009. On several occasions she has been diagnosed with schizophrenia/schizoaffective disorder. She has occasionally been diagnosed with posttraumatic stress disorder (“PTSD”) and anxiety disorder. Her most recent admission to CAMH before the hearing by the Board was from May 7, 2020 to June 24, 2020 and it was during this period that the respondent initiated the CTO. On June 5, 2020, the appellant received an injection of the medication Abilify Maintena (Abilify). The respondent was of the view that the appellant improved with treatment but not all her symptoms abated. The appellant was discharged on a CTO on June 24, 2020.

Mootness - Is the Appeal Moot as it relates to the CTO and the CTP?

7During the hearing, the court raised the issue as to whether the appeal was moot.

8The CTO under appeal has already expired. As it has expired, no treatment may be started pursuant to the underlying CTP. In order for any new C TO be issued, the process prescribed in the Mental Health Act must be followed.

9During the course of the hearing the appellant, who was present, and her counsel advised the court that she is subject to another CTO which did not flow from the CTO under appeal and involved different physicians.

10A CTO, which is a legal order issued by a physician under the Mental Health Act, and is treatment for the purposes of the Health Care Consent Act¹, provides a person who a has a serious mental disorder with treatment and supervision in the community, as opposed to a psychiatric facility. In order for a CTO to be issued, all the criteria set out in the Mental Health Act must be met. A CTO obliges an individual to comply with a CTO and is consent-based. The consent of the person who will be subject to the order is therefore required, or if the person is incapable, the consent of his or her substitute decision maker must be obtained.

11The 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 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.”

Where an individual has been the subject of a prior CTO, under section 33.1(4)(a) of the Mental Health Act, the physician may issue another CTO provided the other criteria under section 33.1 are met. However, under section 33.1(4)(a) of the Act, there are two alternative tests, one of which must be satisfied. As the 2020 CTO issued by the respondent which is under appeal was not relied upon for the renewal or another CTO, it is not clear how the result of this appeal would assist the appellant if she were successful as she would still be subject to a new CTO, which was issued under the Act, but not relied upon for the new CTO. And, unlike K.T. v. O’Brien, 2021 ONSC 209, where the court determined that the appeal related to a recently expired CTO, and therefore was not moot, no evidence that the CTO issued by the respondent in June 2020 was renewed or influenced by it.

12In Carty v. Levy, 2015 ONSC 2200, which involved the an appeal of the Board’s decision regarding capacity and a CTO, the appellant 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”.

13However, there is jurisprudence which supports the appellant’s argument that an appeal is not moot when a fining of incapacity is made: see Neto v. Klukach, [2004] O.J. No. 394 (“Neto”) and in Doherty v. Horowitz, 2016 ONSC 4457 (“Doherty”).

14In the circumstances, the appeal is partially moot, and the merits of the appeal will be considered.

Standard of Review

15Pursuant to section 80 (1) of the Health Care Consent Act, any party to a proceeding before the Board may appeal a decision of the Board to the Superior Court of Justice on a question of law or fact or both.

16The respondent argues that a determination as to whether the statutory requirements of the CTO were met is a question of law and the standard is correctness and further submits that the determination as to whether the appellant had capacity to consent to treatment is a question of mixed fact and law and the standard is palpable and overriding error.

17The standard of review on a question of law is correctness.

18The standard of review of a decision of the Board on appeal involving questions of fact or questions of mixed fact and law is one of palpable and overriding error (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 44 D.L.R. (4th) 1 at para. 37). On the issue of whether the appellant had capacity to consent to treatment, this is a question of mixed fact and law. Accordingly, the applicable standard of review is palpable and overriding error on this question.

Did the Board err in dismissing the appellant’s two preliminary motions?

Appellant’s First Preliminary Motion

19The appellant’s first preliminary motion related to the alleged failure of the CTP to include the names of all of the persons or organizations who had agreed to provide treatment, care, and supervision to the appellant. The appellant argued that the CTO should be revoked due to the failure of the CTP to include the depot where the appellant was to receive her injectable antipsychotic medication. The CTO was issued on June 24, 2020 and the CTP attached to the CTO indicated that Dr. D. Sum, or delegate, of the Scarborough Health Network (“SHN”) would act as the appellant’s outpatient psychiatrist and would monitor the CTO.

20The appellant argued that the respondent had not complied with various subsections of 33.1 of the Mental Health Act, as the depo was not determined until well after the CTP was entered into on June 16, 2020, and therefore could not have participated in the development of the CTP. ). The appellant also argued that the respondent had not determined whether treatment or care and supervision required under the CTO was available in the community at the time the CTP was entered into as required by the Act. Finally, the appellant argues that the depot clinic ought to have been named in the CTP and consulted prior to entering the CTP pursuant to the Act.

21The Board concluded that there was no requirement that the depot clinic be named or give its consent to the CTP so long as Dr. Sum, who was responsible for the administration and supervision of her medication, had been named and indicated her agreement with the terms of the CTP and the appellant had been provided with all the relevant information prior to her discharge.

22. The evidence was clear that Dr. some had agreed to monitor the appellant CTO prior to the CTP being entered into and she was responsible for the administration and supervision of the medication and the appellant had been provided with all of the pertinent information prior to discharge.

23In dismissing the appellant’s first preliminary motion, the Board made the following finding of facts:

• The depot clinic is associated with the Scarborough Hospital where individuals followed by their outpatient psychiatrist may go to receive depot medication.
• The appellant lived in Scarborough.
• Dr. Sum was involved in the appellant’s CTO because her practice was in Scarborough and had agreed to follow the appellant on the CTO.
• The respondent had coordinated with Dr. Sum prior to the appellant’s discharge from CAMH to confirm when the appellant would be receiving her injectable antipsychotic medication.
• The depot clinic affiliated with the SHN and was not a separate institution.
• Dr. Sum, who had treated the appellant previously, was a member of the organization and had signed the CTP and she had agreed to monitor the CTO because the appellant lived outside the CAMH catchment area.
• Dr. Sum was consulted in the development of the CTP and had agreed to the terms and been named in it.
• Dr. Sum had provided information indicating that the depot clinic was a satellite clinic affiliated with the Scarborough Health Network hospital and other evidence with respect to where her office was located in the staff and of the depot clinic.
• The depot clinic’s activities fell within the mandate of SHN to provide treatment.
• The depot was not an independent organization which provided treatment or care and supervision to the appellant but was directly affiliated with SHN and Dr. Sum and was an administrative mechanism through which the injectable antipsychotic medication was delivered.
• The clinic’s involvement was only to carry out the instructions of Dr. Sum, and accordingly, it was not necessary to consult others in developing the CTP as Dr. Sum had been consulted.
• Dr. Sum had agreed to monitor the appellant’s CTO prior to the CTP being entered into and she was responsible for the administration and supervision of the medication and the appellant had been provided with all of the pertinent information prior to discharge.
• the June 23, 2020 clinical note of Ms. Hammar as well as the discharge summary dated advised the appellant of pertinent information and the appellant was advised of the role of Dr. Sum and her obligations.

24The Board made no palpable and overriding error in concluding that the statutory criteria for the CTO were met and specifically that the criteria set out in subsection 33.1(9) or 33.7 of the Mental Health Act were met. The Board’s conclusion, based on the evidence, was reasonable. On a correctness standard, the court sees no error in the board’s determination the CTO complied with the requirements of the Act.

Appellant’s Second Preliminary Motion

25The appellant’s second preliminary motion related to the alleged failure of the respondent to properly issue the Notice of Intention to Issue a Community Treatment Order (Form 49) or CTP.

26The respondent issued the form 49 Notice on June 12, 2020. He issued a second one on June 16, 2020 after discovering that the rights advice had been provided to the appellant prior to her receiving the CTP. The respondent completed another assessment prior to issuing the second form on the date of the new assessment. The appellant took the position that a new CTP was being issued and fresh consents to the plan to provide treatment, care and supervision from the involved parties was required. The Board found that the second from was substantively the same as the first aside from two typographical errors which were corrected. The appellant received rights advise twice. The Board found that the timing of the signatures of two of the doctors was not crucial as it was the same CTP and what was crucial was that the respondent had consulted with them in the development of the CTP and they had agreed to provide the treatment or care and supervision under the plan.

27The court finds no error in the Board’s determination that there was only one substantive CTP in this case and that the CTP attached to the June 16, 2020 and form 49 were in all material respects one and the same CTP as the one associated with the June 12, 2020 form 49.

Did the Board make a palpable and overriding error in confirming the appellant’s incapacity?

28With respect to the June 12, 2020 and June 16, 2020 assessment, the respondent indicated that the appellant was able to understand the information relevant to making a decision but that she failed to appreciate the reasonably foreseeable consequences of her treatment decisions because she did not recognize that she was ill, and was unable to weigh the risks and benefits of the proposed treatment.

29In Starson v Swayze, 2003 SCC 32, 1 S.C.R. 722 (“Starson”), the leading case on the test for capacity, the Supreme Court of Canada explained the test set out in the HCCA (at para. 78):

“Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. ... Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.”

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

“…[I]f the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision. …In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment. If the patient shows an appreciation of these parameters – regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation – he has the ability to appreciate the decision he makes.”

31In Neto v. Klukach, [2004] O.J. No. 394 (“Neto”) the Court elaborated on the second criterion set out in Starson, as follows at para. 10):

“The second branch assesses the ability to evaluate, not just understand, information. The patient must have an ability to appreciate the relevant information as it relates to him or her.”

32On the evidence the Board found that the appellant consistently denied that she had any mental condition that required treatment with antipsychotic medications or a CTP, and found that she offered alternative explanations for the consequences of her mental condition, and that her mental condition prevented her from being able to recognize that she was experiencing the manifestations of a psychotic illness. The Board further found that the appellant was unable to appreciate that her condition had improved with treatment or that she would likely substantially mentally deteriorate without treatment. The Board determined that the appellant was not able to apply the information relevant to making a treatment decision or evaluate information in respect of the proposed treatment as it related to her own circumstances.

33The Board’s findings were supported by the facts. The court finds no palpable and overriding error in the conclusion of the Board that, based on the evidence, the appellant was incapable of providing her consent to treatment.

34The appeal is appeal is dismissed.

35If either side wishes to seek costs, the parties may schedule a case conference through my assistant within 30 days of receiving theses Reasons to speak to costs.

A. Ramsay J.

Footnotes

1. 1Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A