COURT FILE NO.: CV-21-660550
DATE: 20211206
ONTARIO
SUPERIOR COURT OF JUSTICE
AND IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board Pursuant to the Health Care Consent Act, SO 1996, c. 2, schedule A, as amended
BETWEEN:
J.L.
Appellant
– and –
Dr. Michael Chan
Respondent
In person
Szigeti, A. and Kotob, M., amicus curiae
Smith, B., for the Respondent
HEARD: August 13, 2021
SUGUNASIRI, J.:
Overview:
[1] JL, also known as Tom Walker, is a 43-year-old forensic patient under the jurisdiction of the Ontario Review Board. He has been in and out of psychiatric care since 2001and has been at Providence Care Hospital since February of 2014. According to his primary care provider, Dr. Chan, J.L. suffers from schizophrenia. Due to J.L.’s refusal to all medications offered to him to address his mental health, he has been in a cycle of capacity and incapacity since 2016. J.L.’s main concern is the impact of medication on his eyes. He believes that when he takes Olanzapine, it causes his eyes to roll to the back of his head, rendering him unable to see, sometimes for hours. J.L. finds this condition intolerable. On this basis, he always refuses this drug when he is capable. Unfortunately, with no treatment, J.L. deteriorates to the extent where Dr. Chan believes he no longer has the capacity to make treatment decisions. At that point, Dr. Chan has the authority to give JL medication. Once JL regains capacity, he again refuses medication.
[2] It is this cycle that finds the parties before me. On March 26, 2021 Dr. Chan found that J.L. was not capable to make his own treatment decision with respect to antipsychotic medication. On April 6, 2021 the Consent and Capacity Board (“CCB”) upheld Dr. Chan’s finding. JL appeals the CCB’s decision.
[3] I quash the CCB’s decision and send it back for rehearing. The presiding Member failed to indicate how he analyzed JL’s main argument that his mutism or inability to speak to Dr. Chan about treatment at a time of deterioration does not equate with an inability to appreciate the pros and cons of treatment. This was central to JL’s position. A generous reading of the decision does not cure this barrier to meaningful appellate review.
Analysis:
[4] Subsection 4(1) of the Health Care Consent Act (“HCCA”) provides that a person can consent to treatment if that person is: (1) able to understand the information relevant to deciding about the proposed treatment and (2) able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. A person is presumed capable of making his or her own treatment decisions. The onus of proving incapacity is on the party claiming it.[^1] Once a practitioner finds incapacity, the patient may apply to the CCB to review the practitioner’s finding. In turn a patient has a right of appeal to the Superior Court of Justice of the Board’s decision.[^2]
[5] The parties agree that pursuant to the Supreme Court of Canada’s recent reformulation of standards of review in Vavilov, appellate review standards apply to statutory appeals from an administrative tribunal: correctness for questions of law and legal principle, palpable and overriding error for factually suffused questions of mixed fact and law and questions of fact.[^3] If after a functional and contextual reading of the CCB’s decision deficiencies exist that prevent meaningful appellate review, then the decision maker has committed an error in law.[^4] “The inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues.”[^5] After reviewing the decision in this case, I conclude that the reasons do not respond to the case’s live issues.
[6] Dr. Chan has been treating JL since he was admitted to Providence Care in 2014. As the Board noted, Dr. Chan and JL have been in a dance. When JL is capable, it appears that he refuses all medication or bloodwork required to determine medication suitability. After a period of not taking medication, JL starts to show the manifestations of his mental illness. At that point Dr. Chan has been attempting to find the appropriate balance between respecting JL’s autonomy over his own mind and body and providing appropriate treatment to alleviate the severe manifestations of his disorder. On February 11, 2016, Dr. Chan found JL to be incapable. Upon review by the CCB in 2019, CCB found him to be capable. Unlike before this Board, JL was able to testify. Months later, after JL remained unmedicated, Dr. Chan again found him incapable to consent. By June of 2020, Dr. Chan decided to deem JL capable again. By August of 2020, Dr. Chan renewed his finding of incapacity. The CCB upheld Dr. Chan at that time. Having been forced to have treatment, JL regained capacity by March 9, 2021, only to lose it again on March 26, 2021. At that time, Dr. Chan concluded that JL failed both parts of the test; he was not able to understand the information relevant to deciding about the proposed treatment and unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[7] The Board found that JL had cognitive capacity but agreed with Dr. Chan that he did not have the ability to appreciate the reasonably foreseeable consequences of treatment or no treatment. In doing so, the presiding Member recited the evidence and arguments before him including the continued cycle of capacity and incapacity that JL finds himself in. The presiding Member was troubled by the cycle and Dr. Chan’s stated intent to let JL’s deterioration unfold in “real-time” before triggering a capacity assessment. The Board was aware that Dr. Chan was waiting until JL was totally mute to deem him incapable. JL’s counsel squarely opposed this approach by arguing that merely refusing to speak to Dr. Chan, or being unable to do so, does not equate with JL being unable to appreciate the reasonably foreseeable consequences of a decision. JL cited Neto v Klukach, 2004 OJ No 394 to support his argument.
[8] After reciting evidence and argument, the presiding Member wrote:
Although JL may have had the ability to appreciate the consequences associated with the side effects of certain medications, overall JL did not have the ability to appreciate how his decisions about treatment impacted him in the long-term. The presiding member also found that JL did not have the ability to appreciate that his mental status could deteriorate to the point that he became increasingly suspicious, more non-communicative, and more agitated. In this sense, JL was not able to appreciate the consequences of failing to take the antipsychotic medications.
[9] On appeal, JL argued that the Board erred in inferring that the inability or unwillingness to speak equates with an inability to appreciate the reasonably foreseeable consequence of treatment decisions. To the extent that the Board made this inference, I agree that there was no basis to do so and it amounts to a palpable and overriding error. I would go further. In my view, the Board simply did not analyze or address JL’s central argument, at all. Even with the most contextual and generous reading of the reasons, the Board’s decision does not respond to the case’s live issues as required.[^6] This is incorrect in law because it prevents meaningful appellate review.
Conclusion:
[10] Whether the Board made a palpable and overriding error or was incorrect in law in failing to give adequate reasons, I quash the Board’s decision and send it back for a rehearing pursuant to subsection 80(10)(c) of the HCCA. I am not prepared to exercise the powers of the Board nor substitute my opinion for that of Dr. Chan or the Board. Notwithstanding the error, the Board has expertise in capacity issues and is best equipped to properly consider JL’s circumstances and his argument.
“original signed”
Sugunasiri, J.
Released: December 6, 2021
COURT FILE NO.: CV-21-660550
DATE: 20211206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.L.
Appellant
– and –
Dr. Michael Chan
Respondent
REASONS FOR JUDGMENT
Sugunasiri J.
Released: December 6, 2021
[^1]: Health Care Consent Act, 1996, SO 1996 c2 Sched A (“HCCA”)/ [^2]: HCCA, sections 32 and 80 respectively. [^3]: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC at paras. 34-37; Housen v. Nikolaisen, 2002 SCC 33. [^4]: R v Sheppard, 2002 SCC 26 at para. 28; R v GF, 2021 SCC 20 at paras. 69-75. [^5]: R v Dinardo, 2008 SCC 24 at para. 31. [^6]: Dinardo, supra note 5.