COURT FILE NO.: CV-21-670212 DATE: 2021-12-31

ONTARIO SUPERIOR COURT OF JUSTICE

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:

J.C. Appellant

– and –

Dr. Pramudith Maldeniya Respondent

Counsel: I. Aniekwe, for the Appellant T. Nemetz, for the Respondent

HEARD: August 26, 2021

SUGUNASIRI, J.:

Overview:

1JC is a 39-year old man who has been diagnosed with schizoaffective disorder, polysubstance use disorder and antisocial personality traits disorder. On or around May 18, 2021, he presented himself for admission at Trillium Hospital Mississauga. Dr. Maldeniya became his responsible physician. On May 31, 2021, he found JC incapable of making treatment decisions with respect to anti-psychotic drugs. On June 9, 2021, the Consent and Capacity Board upheld Dr. Maldeniya.

2JC appeals the Board’s decision on several grounds including the fact that it erred in confirming incapacity when Dr. Maldeniya did not apply the proper legal test for capacity; namely, that JC lacked the ability to appreciate the foreseeable consequences of anti-psychotic treatment. JC also argued that Dr. Maldeniya’s evidence was not corroborated as required by the Evidence Act and overall, the record did not support a finding of incapacity. For the reasons that follow, I dismiss the appeal. The Board correctly concluded that Dr. Maldeniya knew and applied the proper test and that that his evidence was sufficiently corroborated by other physicians. Finally, the Board did not err in upholding JC’s incapacity. The record before it supports their finding because JC denies the possibility of any mental condition that could be ameliorated by treatment. This renders him incapable of appreciating the reasonable consequences of treatment and therefore incapable of making anti-psychotic treatment decisions under section 4(1) of the Health Care Consent Act.

Analysis:

Standard of Review

3I apply the appellate standard of review in reviewing the Board’s decision because section 80 of the Health Care Consent Act (“HCCA”) provides for a statutory right of appeal.¹ Questions of law and issues of mixed fact and law where the legal issue can be easily extricated from the facts are reviewed on a correctness standard.² Questions of fact and questions of mixed fact and law where the legal issue cannot be easily extricated require deference and are only overturned if the Board made a palpable and overriding error.³ To be palpable and overriding, the error must be both obvious and determinative.⁴

4Applying these standards to the issues JC has raised three issues on appeal, I answer the following questions:

a. Was the Board correct in concluding that Dr. Maldeniya understood and applied the proper legal test for determining JC’s capacity? Yes.

b. Was the Board correct in finding that Dr. Maldeniya’s evidence was appropriately corroborated as required by section 14 of the Evidence Act? Yes.

c. Did the Board make a palpable and overriding error in upholding Dr. Maldeniya’s conclusion that JC lacked the ability to appreciate the reasonably foreseeable consequences of anti-psychotic treatment? No.

Factual background

5JC presented himself to the Emergency Department of the Mississauga Hospital on May 18, 2021 and was seen by several doctors including Dr. Maldeniya, a psychiatrist. He arrived at the hospital with complaints of endocarditis, but he presented various psychotic manifestations including delusions. He was involuntarily admitted under Dr. Maldeniya’s care and was offered Seroquel. This is an antipsychotic drug that JC had taken in the past. Shortly after admission a urine test confirmed that JC was free of drugs or alcohol that in the past had impacted on the manifestations of his condition.

6Prior to Dr. Maldeniya’s care, JC had several attendances at the hospital where other doctors diagnosed him with schizoaffective and other disorders. Immediately before attending at Trillium JC was discharged from Mississauga Hospital on December 21, 2020 with a Seroquel and Zopiclone prescriptions. At that time the doctor noted that the symptoms of his schizoaffective disorder had been exacerbated by crystal methamphetamine but that the symptoms were in remission upon discharge. In November of 2020 Dr. Maldeniya made a similar diagnosis and prescribed both drugs with some hospital time to regain stability.

7Dr. Maldeniya continued to work with JC and recommended antipsychotic medication to address what Dr. Maldeniya described as paranoid prosecutorial fears, hearing voices, disorganized thoughts, and grandiosity. JC continued to assert that all of his descriptions were about real situations and that he did not need medication. He discussed various anti-psychotic drugs beyond Seroquel. On May 20, 2021 JC continued to show manifestations of his condition but agreed to discuss medications. Dr. Maldeniya expected JC to accept the Seroquel he had taken in the past which would lead to a remission of symptoms and discharge from hospital. However, by May 27, 2021 JC was insisting that he was feeling fine and did not want to take even Seroquel. By this time, JC had not taken medication for at least three months. Dr. Maldeniya’s observations of manifestations of JC’s condition continued. He recorded what he diagnosed as JC’s delusions and psychosis driven behaviour (JC having been free of drugs or alcohol for several months). Dr. Maldeniya provided detailed notes of JC’s decline, with continued and heightened delusions, paranoia, and other manifestations consistent with a schizoaffective disorder. Dr. Maldeniya noted that JC described persecution by Russian hitmen and other threats that went beyond what was plausible even in JC’s immediate world which did involve violent encounters. On May 31, 2021 Dr. Maldeniya found JC to be incapable of making treatment decisions. In so doing his focus was on the second part of the test set out in section 4 of the HCCA – namely that JC was unable to appreciate the reasonably foreseeable consequences of treatment or no treatment because he denied that he had any mental illness that could be ameliorated by treatment.

The Board and Dr. Maldeniya’s understood and applied the proper test capacity test

8JC argues that it is not clear and convincing that Dr. Maldeniya properly understood the test to apply in assessing JC’s capacity because he alluded to JC refusing to accept that he had a mental “illness”. While I understand JC’s point, I disagree. First, there is no basis to require the Board to assess whether Dr. Maldeniya’s knowledge of the test was clear and convincing. The Presiding Member need only be satisfied that Dr. Maldeniya had a working knowledge of the test and properly applied it. The Board went to great lengths to assess Dr. Maldeniya’s understanding. While I agree that at times the doctor appeared to misstate the test by stating that JC must be able to identify and recognize symptoms of an illness and apply treatment information to him, there was ample evidence available to the Board to conclude on the whole that Dr. Maldeniya understood and applied the correct test. His language was imperfect, but not fatal. For example, when asked to clarify his understanding, Dr. Maldeniya said that JC had to be able to identify and recognize, disregarding the label, that there are active symptoms of an illness. On its face using the word “illness” runs contrary to the Supreme Court’s direction in Starson that a person need not agree or describe his condition as an illness in order to maintain the presumption of capacity.⁵ However, Dr. Maldeniya’s notes and testimony read broadly and liberally support the Board’s conclusion that he intended to capture the principle in Starson that a patient must be able to recognize the possibility that he has a mental condition with manifestations that can be treated. This is what Dr. Maldeniya clearly meant when he stated, “disregarding the label”.

9JC also argued that Dr. Maldeniya conflated the ability to appreciate with actual appreciation. After considering the evidence, the Presiding Member was satisfied that Dr. Maldeniya correctly distinguished between assent, noncompliance and capacity, and ability versus actual appreciation of the reasonably foreseeable consequences. In my view, the Board was correct in its finding. Much like psychiatry, the line between an ability to appreciate and actual appreciation is not an exact science. It is a subtle, albeit important distinction. The ability to appreciate can often be gleaned from actual appreciation.⁶ The words used in enunciating the test should not be evaluated on a more exacting standard than the distinction itself. The Board was correct in looking at the totality of the doctor’s evidence to ensure that he applied the correct test. Finally, even if the Board was incorrect in its evaluation of Dr. Maldeniya, the Board’s legislative mandate is to adjudicate on JC’s capacity.⁷ It must apply the correct standard itself. I find no error in the Board’s own interpretation and understanding of the test. The Presiding Member specifically stated that JC need not agree that he has a mental illness. Her finding of incapacity was not premised on whether JC agreed that he had a mental illness but rather that his mental condition deprived him of the ability to entertain even the possibility of a mental condition that could be treated.

The Board was correct in finding that there was corroborating evidence

10Section 14 of the Evidence Act prohibits an “opposite party” from obtaining a judgment or decision against a person in a psychiatric facility on the force of the party’s evidence without corroboration by some other material evidence.⁸ Dr. Maldeniya is subject to this section as an opposing party seeking a decision against JC who is under psychiatric care.⁹ JC argued that only Dr. Maldeniya opined on JC’s capacity and therefore did not have the required corroborating evidence. The evidence from other doctors was about JC’s diagnosis of schizoaffective disorder and his experience of delusions, agitation, paranoia, and other manifestations of psychosis like grandiosity and noted improvement and remission when JC took Seroquel and other anti-psychotic drugs.

11The Board correctly rejected this argument. The Evidence Act does not require a second corroborating opinion on JC’s capacity. That is the ultimate decision and is a conclusion of law, not evidence as understood by the Evidence Act. Dr. Maldeniya’s evidence in support of his finding of incapacity was that JC suffered from a schizoaffective disorder with various manifestations of that illness. He also observed that JC denied he had any of the manifestations and denied the possibility of any condition because everything he believed was real. This was the case even after Dr. Maldeniya explained the benefits of Seroquel, that JC had historically improved with medication, and that his symptoms relapsed when he was not on the medication. JC refused to consider that he had any manifestation that required or would benefit from medication. This is the material evidence that requires corroboration. The Board correctly concluded that several doctors, like Drs. Shulman and Head, observed the same manifestations and received similar denials prior to JC accepting treatment and that treatment then putting his manifestations into remission. JC’s own testimony at the Board hearing corroborated Dr. Maldeniya’s evidence that JC denies he has any mental illness or the possibility of a condition that could be ameliorated by treatment. The transcript of the hearing before the Board reflected some of the same manifestations both when JC was called upon to testify and throughout the hearing when JC would interrupt others. JC testified that he does not have a mental illness nor the possibility of any condition that might be ameliorated with medication, but was willing to take Seroquel to keep him in a medical institution and off the street as he tries to rebuild his life. He refuses any other anti-psychotic medications because he believes they cause him to have visions. According to him, what the doctors think are delusions were all in fact real situations. This is sufficient corroboration to meet the requirement in section 14.

The Board made no palpable and overriding error in confirming incapacity

12I do not find any obvious and determinative error that the Board made in upholding Dr. Maldeniya’s finding of JC’s incapacity with respect to anti-psychotic medications. After considering all of the evidence including JC’s oral evidence, Dr. Maldeniya’s testimony, his notes and progress notes from other physicians, the Board concluded that JC was unable to appreciate the reasonable consequences of treatment or not treatment because he was unable to apply the information to himself. This is a conclusion supported by the record and the jurisprudence. The Board agreed with JC that his refusal to accept that he has a mental “illness” was not determinative of incapacity. Its decision rests on the evidence that JC wholly denied the possibility of suffering from a mental illness because all of the situations he described were real. The Presiding Member might have worded her statement more appropriately to talk about the possibility of a mental “condition” rather than “illness”, but this misnomer does not lead to an obvious and determinative error when I consider the reasoning in its entirety. Dr. Maldeniya conceded that given the circumstances of his life, some of the situations JC described are certainly plausible. However, he balanced this concession with common sense and medical opinion based on his training and expertise that the other situations involving Russian hitmen, saving children in BC and his prowess as a streetfighter and were more akin to a manifestation of his mental disorder. It was entirely reasonable for the Board to accept Dr. Maldeniya’s evidence and views on this.

13The Board also appropriately considered and weighed the fact of and reason for JC’s willingness to take Seroquel – namely to allow him to stay in the hospital and away from threats on the outside. The Board concluded from this that his willingness to consider treatment did not stem from an ability to weigh the benefits and risks of the proposed treatment. The Board also considered the fact that JC was able to identify the benefits of Seroquel. Based on the record, it was open to the Presiding Member to conclude that JC’s acknowledgement did not equate with capacity because he unduly minimized this benefit and its historical impact, and instead focused on the alleged link between the non-Seroquel medications and visions.

14In sum, there was clear evidence before the Board that JC’s inability to recognize that he suffers from a mental condition or disorder renders him unable to apply the relevant information to his circumstances and weigh the risks and benefits. As stated by Morgan, J. in Edem v Kantor, while a patient need not agree with their physician’s diagnosis, they must at least recognize the possibility that they are affected by the mental condition. They must also demonstrate ability to appreciate the positive effects of treatment of the negative effects of failing to engage in treatment. If a person’s disorder causes them to be unable to recognize that they are affected by its manifestations, they will be incapable of applying the relevant treatment information and will be unable to appreciate the consequences of their decision.¹⁰ The Board’s finding is in line with this case and supported by the record.

Conclusion:

15Despite able submissions of JC’s counsel, I dismiss the appeal.

Sugunasiri, J.

Released: December 31, 2021

COURT FILE NO.: CV-21-670212 DATE: 2021-12-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

J.C. Appellant

– and –

Dr. Pramudith Maldeniya Respondent

REASONS FOR JUDGMENT

Sugunasiri, J.

Footnotes

1. 1Health Care Consent Act, 1996, S.O. 1996 c. 2, Sch A, section 80; Canada v Vavilov, 2019 SCC 65 at paragraph 37 and Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at paragraph 8.
2. 2SS v Motaghian, 2021 ONSC 137 at paragraph 11.
3. 3Housen supra note 1.
4. 4Salomon v Matte-Thompson, 2019 SCC 14 at paragraph 33 as cited in SS supra note 2 at paragraph 9.
5. 5Starson v Swayze, [2003] 1 SCR 722 at paragraph 76, 2003 SCC 32.
6. 6Ibid. at paragraph 80.
7. 7HCCA, supra note 1, section 54.14,; Starson, supra note 5 at paragraph 76.
8. 8Evidence Act, RSO 1990, c E23.
9. 9See for example Baig v Maldeniya, 2019 ONSC 2045 and Anten v Bhalereo, 2013 ONCA 499.
10. 10Edem v Kantor, 2020 ONSC 4729 at paragraph 17 citing Starson supra note 5 at paragraph 79 and D’Almeida v Barron, 2010 ONCA 564 at paragraphs 25-26.