Court File and Parties
COURT FILE NO.: CV-19-81901 DATE: 2022/03/10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: T.S. Appellant – and – DR. JOHN MOISE Respondent
Counsel: Michael Davies, for the Appellant Brooke F. Smith and Justin McCarthy, for the Respondent
HEARD: February 10, 2022
REASONS FOR DECISION
Maranger J.
Introduction
1T.S. appeals from the decision of the Consent and Capacity Board (“Board”) dated October 29, 2019 (with reasons dated November 2, 2019).
2The subject of this appeal is the decision of the Board which upheld the decision of T.S.’s treating psychiatrist, the respondent, that T.S. is incapable of consenting to treatment with antipsychotic medication for his diagnosed mental disorder, schizophrenia. T.S. asks that this decision be set aside and that he be found capable of making his own treatment decisions or, in the alternative, that a new hearing be ordered.
3The grounds for the appeal are that the Board:
(a) misapplied the test for capacity thereby committing an error in law; and
(b) failed to consider relevant evidence and committed a palpable and overriding error in doing so.
4The respondent disagrees with T.S.’s grounds of appeal and states that the Board’s decision is reasonable and well within the range of conclusions that could reasonably have been reached on the law and the evidence.
Factual Background
5T.S. is a man in his early fifties with a lengthy and complicated medical psychiatric history. Dr. Moise has been his treating physician/psychiatrist for over 15 years.
6T.S. was diagnosed with schizophrenia in 2003 and suffers from Crohn’s disease. Between 2003 and 2004, he underwent three psychiatric admissions to hospital. As of 2006, T.S. was taking a stable dose of risperidone, an antipsychotic medication to treat his schizophrenia, and his family physician was following his mental health care in the community.
7In April 2011, T.S. attended the Ottawa Hospital emergency department after experiencing increasing auditory hallucinations and paranoia. He was admitted to the hospital under Dr. Moise’s care. He independently stopped treatment approximately six months before attending the emergency department. His justification for stopping treatment at the time was that he had managed his mental health condition well for so long that he no longer required antipsychotic treatment. T.S. was put back on medication and returned to the community under the care of Dr. Moise.
8In 2019, T.S. had been taking Latuda, an antipsychotic medication, to treat his schizophrenia. However, he decided to stop taking the medication sometime during August of that year.
9On October 9, 2019, T.S.’s wife became fearful of his behaviour. Police apprehended and brought him to the Ottawa Hospital general campus emergency department, where he was admitted under Dr. Moise’s care.
10The evidence supported the proposition that his mental condition had deteriorated. His spouse, Mrs. S., reported that T.S. talked to himself, ignored his personal hygiene, uncharacteristically swore at her, displayed anger, and intended to cancel an appointment with a specialist regarding his Crohn’s disease.
11On October 11, 2019, Dr. Moise assessed T.S. and certified him as an involuntary patient and found him incapable of consenting to treatment with antipsychotic medication.
12On October 13, 2019, T.S. requested that the Board review Dr. Moise’s decision. The Board upheld Dr. Moise’s finding that T.S. was incapable to consent to treatment with antipsychotic medication. T.S. appealed that decision to this court.
Issues and the law
13The issues to be determined on this appeal can be framed into two separate questions:
(1) Did the Board apply the wrong legal test for capacity as set out in section 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”)?
(2) Did the Board make a palpable and overriding error in upholding Dr. Moise’s finding that T.S. was incapable to consent to treatment with antipsychotic medication?
Did the Board apply the wrong test for capacity?
14The law of capacity to consent to treatment in Ontario is set out at s. 4(1) of the HCCA:
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.
Presumption of capacity
(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.
15The Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, interpreted the relevant sections of the Act and set out the governing principles in determining the issue of a person’s capacity to consent. They can be summarized as follows:
(a) To understand means the patient possesses the cognitive ability to “process retain and understand the relevant information”.
(b) To appreciate means the patient “must 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”.
(c) The right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy. The right is equally important in the context of mental illness, and the presence of a mental illness must not be conflated with incapacity.
(d) The Board in deciding capacity should not consider the wisdom of the patient’s decision or the patient’s best interests.
(e) When dealing with a patient with a “mental condition”, to be found capable the individual must be able to recognize that he or she is affected by the manifestations of the mental condition. There is a distinction between appreciating the consequences of treatment decisions and being capable of appreciating the consequences.
(f) The Board must consider 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 treatment.
16The standard of review for an error of law is correctness.
17The appellant submitted that the Board applied the wrong test in this case based upon the following arguments:
(a) They applied the wrong legal framework by considering “treatment needs” or the “best interests” of the appellant as part of their analysis regarding capacity.
(b) In their decision, they indicated the following:
Protecting and promoting the autonomy of a person to make treatment decisions is a legal principle that must be engaged with significant vigour when dealing with individuals with mental health challenges. At the same time, the panel was required to give equal consideration of the treatment needs of a mentally disordered individual. In Starson, ibid at paras 9 and 11, McLachlin C.J.C., in the minority decision, offers the following analysis of Section 4 of the HCCA;
9 The Ontario legislature’s decision to permit a mentally ill person’s decision to refuse treatment to be overridden where public safety is not threatened reflects the value of promoting effective medical treatment of people suffering from mental illness. The HCCA’s definition of capacity offers a way out of the dilemma that is created when treatment for an illness is dependent on consent, which in turn is not forthcoming because of the illness. The way out of the dilemma lies in recognizing that the focus should be not only on consent but on capacity to consent. The policy of the law is that where a person, due to mental illness, lacks the capacity to make a sound and considered decision on treatment, the person should not for that reason be denied access to medical treatment that can improve functioning and alleviate suffering. Rather, that person’s incapacity should be recognized and someone else appointed to make the decision for him or her.
11 The HCCA represents a careful and balanced response to the problem of accommodating the individual autonomy of the mentally ill person and the aim of securing effective treatment for mentally ill people. It says that when a mentally ill person lacks the capacity to sufficiently understand and appreciate his or her situation, authorized treatment may be imposed. This response is doubtless influenced by increased appreciation of the suffering and loss occasioned by non-violent mental illness, and the ever-expanding treatment options available as our understanding of mental illness increases. Whatever the explanation, the fact is that the legislature has chosen a test based on a nuanced conception of incapacity that includes both the ability to understand and appreciate, to be applied by the specialized Board. The courts must respect this choice.
(c) The Board extracted this principle from the dissenting opinion of McLachlan C.J.C. in the Supreme Court of Canada’s decision of Starson.
(d) The Board overemphasized its use of the “treatment needs” principle by concluding its analysis of the treatment capacity of the appellant by holding that he “was one of those individuals identified by Justice McLachlin in Starson who, ‘should not for that reason be denied access to medical treatment that can improve functioning and alleviate suffering’.”
(e) Furthermore, the Board misapprehended the meaning of the words expressed in the dissent by the Chief Justice. The Chief Justice was addressing the objectives of the HCCA in that it seeks to balance individual autonomy against treatment for those who are found incapable. The dissenting judgment did not suggest that the “treatment needs” of a mentally ill individual are to be part of the Board’s analysis of capacity under section 4(1) of the Act.
18The argument advanced here was similarly made in the case of L.R. v. Stakheiko, 2020 ONSC 513. In that decision, the court found that despite citing the dissenting judgment in Starson, the Board did not refer or comment in their decision as to what the Board might consider to be the patient’s treatment needs or the best interests of the patient.
19In this case, when considering the Board’s decision in its entirety, and despite quoting from the dissenting decision of the Chief Justice in Starson, the correct test was applied when they determined whether the appellant met the appreciation component of the capacity test. There is nothing in the decision to suggest that T.S.’s “best interests” or “treatment needs” were given any weight in deciding the issue of capacity.
20The following excerpt from the Board’s decision, at para. 53, demonstrates this to be the case:
there was a tangible disconnect between the decline in TS’s functioning after he discontinued his antipsychotic medication in August 2019 and his ability to demonstrate any degree of insight into this decline. TS was unable to understand or appreciate a reality that was readily apparent to those closest to him. He was no longer at his baseline level of functioning. He was demonstrating a number of atypical and concerning behaviours. Most notably, he had become verbally aggressive, paranoid, disorganized and disregarded his personal hygiene. … Dr. Moise clearly indicated that there was no reasonable expectation that these symptoms would improve without treatment. The panel did not accept the TS had insight into the serious decline in his functioning. The panel did not accept the position of TS that his symptoms would largely remain unchanged without antipsychotic medication. Finally, and most importantly, the panel found that TS was unable to appreciate the reasonably foreseeable consequences of any decisions regarding treatment. His plan to rely on his own judgement as to when he had may need to re-engage in treatment was fraught with peril. His level of insight was likely to deteriorate the longer he remained untreated. The symptoms of his mental disorder were impairing his ability to make informed treatment decisions and to appreciate the reasonably foreseeable consequences of engaging, or not engaging, in treatment.
21The decision demonstrates that the Board understood and applied the correct principles in determining T.S.’s capacity. The Board recognized that they were to determine whether T.S. appreciated the manifestations of his mental condition, the reasonably foreseeable consequences of his treatment decision, and whether he could apply the relevant information to his circumstances and weigh the foreseeable risks and benefits of a decision. They found that Dr. Moise established that he did not.
22I would not grant the appeal based on this ground.
Did the Board make a palpable and overriding error in upholding Dr. Moise’s finding that T.S. was incapable to consent to treatment with antipsychotic medication?
23The appellant fundamentally argued that the evidence before the Board, particularly the testimony of T.S., supported the proposition that he was capable of applying the relevant information to himself and able to weigh the foreseeable risks and benefits of a decision. In support of the argument, the following parts of the evidence are highlighted:
(a) T.S. testified and fully acknowledged suffering from schizophrenia and gave evidence as to how the condition manifested itself in him. For example, the primary issue of auditory hallucination was something he fully acknowledged and acknowledged that it was not based in reality.
(b) T.S. acknowledged with respect to the proposed treatment that there had been a benefit in the past and he was able to describe the benefit.
(c) T.S. acknowledged the possibility of having to go back on medication in the future. He described particular scenarios that would indicate to him that he was no longer coping mentally and would need medications.
(d) The evidence supported the proposition that he acknowledged having been angry and frustrated and the possibility that his wife was correct that the change in his behaviour was connected to him not taking medication. T.S. acknowledge that things could get worse and that he may need to return to medication.
24I reject this ground of appeal. The record of evidence before the Board supported their upholding of Dr. Moise’s finding of incapacity.
25The following examples from the evidence before the Board allowed for the finding that T.S. was unable to appreciate the manifestations of his mental condition and unable to appreciate the reasonably foreseeable consequence of a treatment decision or lack thereof:
(a) The evidence supported that T.S. had a history of noncompliance with his medication, which resulted in deterioration of his mental condition in hospital admissions. The periods of deterioration resulted in T.S.’s failure to manage other health conditions.
(b) Dr. Moise testified that since T.S. discontinued treatment he had become increasingly hostile and expressed rage. Furthermore, T.S. had not showered in months, had trouble sleeping, had decreased energy, and was unable to feel pleasure when using his computer. The doctor testified that T.S. believed these were not symptoms of schizophrenia and that they did not justify treatment.
(c) Dr. Moise testified that T.S. did not realize the effect his behavioural changes was having on his relationship with his wife.
(d) T.S. in part testified to the following propositions:
- That the voices he heard were at a level where he could cope without medication.
- That he did not believe he needed antipsychotic medication because he stopped taking it over three months ago and that there had been no difference, or only a negligible difference, in the intensity of the voices he heard.
- That even though his doctor thought he would decompensate further without treatment, it was of his right to refuse treatment.
- That his hostility, social isolation, lack of interest in his computer, and his lack of personal hygiene and self-care were not related to his mental condition.
- That he did not know if his symptoms would get worse if left untreated because he could not know what the future was going to hold.
- That despite Dr. Moise’s evidence regarding his deterioration without treatment, he would trust his own opinion regarding treatment.
26The evidence before the Board in my view supported the proposition that T.S. did not recognize that certain aspects of his behaviour (hostility, lack a self-care, etc.) were symptoms of his mental condition. This speaks to his inability to appreciate all the manifestations of his mental condition and his inability to fully appreciate the reasonably foreseeable consequences of a treatment decision. The Board did not commit a palpable and overriding error in upholding Dr. Moise’s finding of incapacity.
27Therefore, the appeal is dismissed.
Released: March 10, 2022