COURT FILE NO.: CV-21-00654730 DATE: 2022-04-14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MAK Mr. K. Berger, for the Appellant, MAK Appellant

• and -

Sarah Levitt Ms. L. Ostler, for the Respondent, Dr. Levitt Respondent

HEARD: By Zoom, January 14, 2022, at Thunder Bay, Ontario Madam Justice H. M Pierce

Reasons on Appeal

Introduction

1In these reasons, I will refer to the appellant by his initials, MAK.

2On November 18, 2020, after a hearing, the Consent and Capacity Board (“the Board”) confirmed the finding that the appellant was incapable of making treatment decisions for his bipolar condition; as well, the Board confirmed a Community Treatment Order for him.

3MAK appeals from these decisions. He submits that the Board made errors of law, and that its findings of fact contained palpable and overriding errors.

4The appellant argues that he regained his capacity to consent to treatment after an assessment of incapacity was made, and he retained his capacity to consent to treatment at the time of the hearing. Thus, the first issue on this appeal is whether the Board erred in deciding MAK could not consent to treatment.

5He contends that the Board misapprehended the evidence. He also submits that since he had not been seen for several weeks on the day of the hearing, the Board had no evidence of his capacity to consent to treatment on that day. He argues that there was no evidence at the hearing of mental deterioration.

6The second issue, arising from the first, is whether the Board erred in concluding that the appellant met the requirements for a Community Treatment Order.

7MAK seeks the following orders on appeal:

1. quashing the Board’s finding of incapacity to consent to treatment;
2. quashing the Community Treatment Order, or, alternatively,
3. remitting the matter back to the Board for a new hearing, according to the court’s directions.

8The respondent submits that the Board applied the correct legal tests to findings of fact that were not subject to palpable and overriding error. The respondent contends that the Board correctly found on the evidence that the appellant had bipolar disorder and was incapable of consenting to the proposed treatment with anti-psychotic medications and a Community Treatment Plan. Accordingly, the respondent submits that its decision should not be overturned.

The Facts

9The facts of this case are summarized in the parties’ factums. At the time of the hearing, MAK was a 33 years-old single man, living with four roommates in Welland, Ontario. He had achieved a B.A. from Western University but had never been employed. He supported himself with an inheritance and by playing poker in casinos.

10At the time of his most recent hospitalization, he was pursuing further education at Niagara College. He is currently supported by Ontario Works.

11The appellant was first diagnosed with bipolar disorder when he was hospitalized between December 10, 2016 and January 21, 2017.

12His second hospitalization for bipolar disorder occurred between June and July 2019, after the death of his mother. He was released on a Community Treatment Order that expired in December 2019 and he discontinued treatment thereafter.

13The appellant’s third hospitalization for this disorder occurred between October 7 and 27, 2020. He was hospitalized at the Centre for Addiction and Mental Health (“CAMH”) voluntarily, although at his father’s insistence. His father reported that MAK’s mental health had declined since December 2019, and that he exhibited signs of mania that included increased energy, poor sleep, disinhibition, and significant paranoia.

14MAK was assessed by Dr. Baici on October 9, 2020. During his assessment, MAK declared that he wanted to leave the hospital and planned to be the “king of the world.” He also reported that he had been injured by glass laced in his hospital garments. He denied any symptoms of a mental condition. Dr. Baici concluded that the appellant was unable to appreciate the consequences of a treatment decision and deemed him incapable.

15Subsequently, MAK was transferred to another hospital where a bed was available. There, he continued to behave in a bizarre manner. He denied his bipolar diagnosis and the need for medication to treat it.

16On October 16, 2020, MAK received his first dose of antipsychotic medication. Within five days, he showed improvement, being more organized in his thinking and less irritable towards staff; however, he continued to show residual manic symptoms of grandiosity and impulsivity.

17On October 21, 2020, Dr. Weissglas assessed MAK for the Community Treatment Order. The appellant denied having any mental disorder or needing treatment.

18Dr. Weissglas determined that the appellant was able to understand the information relevant to the Community Treatment Plan, including its contents, and the risks and benefits of treatment using antipsychotic medication. However, the doctor concluded that MAK was unable to appreciate the foreseeable consequences of non-compliance with the Treatment Plan or with the Community Treatment Order. These risks included substantial mental deterioration in the community and the need for further hospitalization.

19Dr. Xue saw MAK on October 26, 2020. At that time, the appellant denied having symptoms of bipolar disorder. He was discharged from hospital on October 27, 2020.

20MAK’s first appointment pursuant to the Community Treatment Order was scheduled at the Bridging Clinic at CAMH on November 17, 2020. He did not attend that appointment.

Standard of Review

21The appellant submits that although the presumptive standard of review is reasonableness, in this case, the standard of review is correctness because the Board applied the incorrect legal test, misapprehended the evidence, and failed to consider capacity at the time of hearing.

22On this appeal, the court must review the Board’s assessment of MAK’s capacity and whether he meets the requirements of a Community Treatment Order.

23The Supreme Court of Canada determined in H.L. v. Canada (Attorney General), 2005 SCC 25 at para.110, that where a standard of palpable and overriding error applies, an appellate court can only intervene when there is an obvious error that determines the outcome of the case. In other words, the court may only intervene if the reasons are “clearly wrong,” “unreasonable,” or “not reasonably supported by the evidence.”

24More recently, the Court of Appeal held in B.L. v. Pytyck, 2021 ONCA 67 at para. 22, that the determination of capacity is a question of mixed fact and law and therefore reviewable on the deferential standard of palpable and overriding error. That is the standard that applies in this case.

Legal Parameters

25The Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 4 (2) provides that a person is presumed to be capable of consenting to medical treatment. The onus to prove incapacity at the Consent and Capacity Board hearing, on a balance of probabilities, falls on the attending physician: Starson v. Swayze, 2003 SCC 32. There is no onus on the patient. The court also held that the time to assess capacity is the time of the hearing; see Starson, para 118.

26Under s. 4 (1) of the Health Care Consent Act, the test to determine capacity to consent to medical treatment involves two considerations:

1. whether the person a person is able to understand the information that is relevant to making a decision about treatment, admission, confining or personal assistance service; and
2. whether the person is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

27Both branches of the test must be met to displace the presumption of capacity. In this case, the Board found that MAK met the first branch of the test, because he was able to understand the information relevant to treatment decisions.

28The second branch of the test is at issue on the appeal: did MAK appreciate the reasonably foreseeable consequences of a decision or lack of a decision? The Board found that he did not.

29In Starson, at para. 78, the court explained that the appreciation of reasonably foreseeable consequences,

…requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the risks and benefits of a decision or lack thereof.

30It was on this basis that the Board concluded the MAK was unable to appreciate the reasonably foreseeable consequences of a treatment decision.

Discussion

31The function of the court on appeal is not to rehear the case but to determine whether the Board made errors of fact and law in arriving at its decision. As the Court of Appeal pointed out in B.L. v. Pytyck, this is a high standard, requiring deference to the decision-maker.

Capacity to Consent

32In this case, the Board correctly cited the two-part test for capacity to consent to treatment from s. 4 (1) of the Health Care Consent Act, 1996 in its reasons.

33As well, the Board correctly recognized the burden of proof at a Board hearing is on the attending physician to prove lack of capacity on a balance of probabilities. In its reasons, the Board stated that it “…must be satisfied on the basis of cogent, credible and compelling evidence that the physician’s onus has been discharged. There is no onus on the patient.”

34MAK submits that he has the ability to understand information relevant to treatment decisions and the Board agreed. MAK acknowledged that he has bipolar disorder. This is the first branch of the test defining capacity at s. 4 (1) of the Health Care Consent Act, 1996.

35The appellant submits that the Board failed to assess his capacity at the date of the hearing. He submits this was an error of law to which a standard of correctness applies.

36The parties agree that the relevant time for assessing the appellant’s capacity is the date of hearing. However, they disagree about whether there was evidence to permit the Board to reach its conclusion about capacity at the date of hearing.

37In this case, the appellant failed to attend at his psychiatric appointment for a formal assessment the day before the hearing. The appointment was scheduled in order to provide a contemporary assessment of the appellant’s functioning.

38The appellant argued that his failure to attend the first community appointment on November 17, 2020, was inadvertent, and that the Board should not draw an adverse inference based on his inadvertence, since he called the psychiatrist to reschedule.

39In B.N. v. Beder, 2021 ONSC 100, the Board upheld findings of capacity made two months before the hearing, while accepting new evidence at the date of the hearing.

40As in the Dr. Beder case, the Board heard new evidence at the hearing, including the testimony from the appellant and Dr. Levitt.

41The Board also considered other evidence from health care records from health care professionals that formed part of the capacity assessment made three weeks earlier, and evidence from the appellant’s father. Thus, having regard for the onus on Dr. Levitt, the Board was able to reach conclusions based on a record available to it at the time of hearing. The record included contemporary evidence from the appellant.

42I therefore find that the Board assessed the appellant’s capacity at the date of hearing. It made no error of law in doing so.

Ability to Appreciate Reasonably Foreseeable Consequences of a Treatment Decision or Lack of Treatment Decision

43The second branch for assessing capacity under s. 4 (1) of the Health Care Consent Act, 1996 deals with a person’s ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision for treatment.

44This was the real issue with the Board’s finding: whether, on a balance of probabilities, the appellant was able to appreciate the reasonably foreseeable consequences of a treatment decision or lack of decision. This was the basis on which the Board affirmed the finding of incapacity.

45MAK testified at the hearing. He agreed that he should take medication to ameliorate bouts of mania or depression but disagreed he should take them as a preventative measure. He acknowledged that his symptoms improved once he took medication. He testified that he knew how to identify his mania and in conjunction with his doctor, could manage the risk that he would require further hospitalization without the necessity of a Community Treatment Order.

46The appellant expressed concern about the side-effects of treatment, including feeling sedated and suffering erectile dysfunction. MAK argued that he is not incapable because he doesn’t wish to take medication to prevent a recurrence of his illness.

47The Board, in its decision, cited Starson v. Swayze, 2003 SCC 32, at para 79, to this effect:

…a patient is not required to describe his mental condition as an “illness,” or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if 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.

48The respondent submits that the appellant’s failure to attend his appointment the day before the hearing is the most compelling evidence refuting MAK’s contention that he can be treated in the community, following his doctor’s recommendations.

49The Board did not accept MAK’s evidence as credible. It found his testimony contradictory, concluding that his manner of communication was detached, with no real concern about the devastating effects his illness would likely have on his life. Instead, the Board accepted Dr. Levitt’s testimony.

50Dr. Levitt testified that the appellant still suffered from bipolar condition and was incapable of making treatment decisions about it. She stated that he was unable to appreciate his need for medication, the Community Treatment Order, or the potential consequences of not taking his medication.

51Dr. Levitt also testified that the appellant was unable to understand how a Community Treatment Order might prevent future hospitalizations or mood disturbances, or the risk of substantial mental deterioration in the community.

52The Board accepted Dr. Levitt’s testimony and other evidence, including the testimony of MAK, in finding that he did not meet the second branch of the test for incapacity. The Board stated in its reasons:

The medical evidence, MAK’s demeanour when he gave evidence and the collateral MAK’s father provided belied MAK’s assertions that he always acknowledged his bipolar condition and belied his evidence that he displayed no symptoms prior to his October 2020 hospitalization. We preferred that evidence to MAK’s. It was far more likely. MAK did not recognize the grandiosity he displayed to Dr. Baici. We also doubted that MAK’s behaviour in hospital was due to being in hospital: he displayed symptoms more consistent with mania than with a bad hospitalization.

53In its reasons, the Board concluded that MAK “…displayed no real concern for having an illness that, untreated, was likely to have devastating effects on his life.”

54This conclusion that MAK did not meet the second branch of the test for capacity is based on the evidence and is entitled to deference. I am not persuaded that the reasons or the conclusion show palpable and overriding error.

Community Treatment Order

55The appellant also appeals the conclusion of the Board that MAK met the statutory requirements for a Community Treatment Order as set out at s. 33.1(4) of the Mental Health Act.

56In its reasons, the Board summarized the criteria for issuing Community Treatment Orders pursuant to s. 33.1 (4) of the Mental Health Act, R.S.O. 1990 c. M.7, as set out below. It correctly declared that the onus of proof, on a balance of probabilities, was on the health practitioner to prove the criteria. The Board made the following observations about the purpose of a community treatment order:

1. A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.
2. The community treatment order must be in the prescribed form.
3. The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.
4. A physician may issue or renew a community treatment order under this section if, a) During the previous three-year period, the person, (i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or (ii) has been the subject of a previous community treatment order under this section; b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person; c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that, (i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community, (ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15(1) or (1.1) where the person is not currently a patient in a psychiatric facility, (iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person, (iv) the person is able to comply with the community treatment plan contained in the community treatment order, and (v) the treatment or care and supervision required under the terms of the community treatment order are available in the community; d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan; e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

57At the hearing, MAK argued that he did not meet the criteria for a Community Treatment Order because he did not need the level of supervision and treatment while living in the community contemplated in such an order. He stated that he was willing to return to hospital for treatment if necessary and would receive recommended treatment regularly from his doctor in the community.

58The Board did not accept his position and found that the criteria for a Community Treatment Order were met. It reviewed MAK’s history of discontinuing treatment in December 2019 when his prior Community Treatment Order lapsed. He found that MAK’s mental health deteriorated, to the point that he required hospitalization, although he did not recognize the recurrence of his manic symptoms.

59At the time of the hearing, MAK had missed an appointment for assessment scheduled the day before. The Board concluded that MAK would repeat the lapse in treatment with the resulting mental deterioration if the choice were left to him. The Board also noted that MAK had been found unable to appreciate the consequences of treatment decisions.

60The Board’s conclusion that a Community Treatment Order should be imposed is grounded in the evidence and is entitled to deference.

Conclusion

61For the reasons set out above, the appeal is dismissed.