DATE: 20220502

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laith Salah, Appellant

– AND –

Dr. Ken Little, Respondent

BEFORE: E.M. Morgan, J.

COUNSEL: Eyitayo Dada, Amicus Curie

Kate Deakon, for the Respondent

HEARD: April 27, 2022

REASONS FOR JUDGMENT

[1] The Appellant, who I am advised now prefers a plural pronoun, is a 33-year-old who suffers from mental illness. They had their first hospitalization in 2011 and have had six hospitalizations altogether, including at the Centre for Addiction and Mental Health (CAMH) in 2014, and at St. Michael’s Hospital (Toronto) in July 2020. They have been diagnosed with schizoaffective disorder, bipolar type.

[2] The Appellant was detained at the Toronto South Detention Centre (“TSDC”) prior to their latest admission to CAMH on February 12, 2021. The Respondent is the physician who assessed the Appellant for this admission and who has been treating them at CAMH. Upon completing the admission assessment, the Respondent filed a Form 33 under the Mental Health Act, RSO 1990, c. M.7, declaring the Appellant incapable of consenting to treatment.

[3] The Appellant sought to review the Respondent’s finding before the Consent and Capacity Board. A hearing was held on February 26, 2021, following which the Board confirmed the Respondent’s finding that the Appellant was incapable of consenting to treatment for a mental disorder.

[4] In her factum, amicus counsel states that, “[o]ne would have to labour strenuously to decipher the reasons behind the Board finding that the Appellant did not have capacity…” That description is a tad harsh, but in a sense accurate. Having read the Board’s decision, I do understand why one would come to the conclusion that they did; but, frankly, the Board just barely said so. In its 20-page decision, the specific rationale in support of the result is not easy to discern.

[5] Distilled to its essence, the Board found that the Appellant is able to understand information relevant to making a treatment decision; however, it agreed with the Respondent that the Appellant is unable to appreciate the reasonably foreseeable consequences of such a decision. The Appellant was therefore found to have failed the requirement in s. 4(1) of the Health Care Consent Act, 1996, SO 1996, c. 2, Sched. A (“HCCA”), in that they did not have the ability to apply the relevant medial information to their circumstances or have the ability to weigh the foreseeable risks and benefits of a decision in respect of their medical care.

[6] Amicus counsel has done a good job of lawyering. She has meticulously combed through the Board’s decision to highlight any erroneous statements or unsupported findings. As she points out, there is no doubt that the Board made factual errors in analyzing the evidence before it. Perhaps the clearest example is that it mixed up two drugs discussed by the Respondent with the Appellant: loxapine and lorazepam. It stated that the Appellant had asked to be treated with one of these two similar sounding drugs, but in fact it was the other. As the Board put it:

Dr. Little told the panel that during the current admission LS had requested loxapine (an anti-psychotic medication) on as needed basis for agitation, and that although Dr. Little did not propose this medication as treatment for LS for various reasons including its addictive potential, it had had some effect on making LS’s thinking somewhat more organized.

[7] The Respondent’s evidence, however, was that it was lorazepam that was the subject of this discussion, not loxapine. The Respondent’s notes of the discussion record it that way:

He felt the combination of loxapine and lorazepam was helping him to organize his thoughts better. I explained that lorazepam was not an antipsychotic and given its addictive potential, I would not recommend that he takes it. He was appreciative of the discussion at the time.

[8] In other words, the Board concluded that the Appellant was asking to be treated with a non-recommended drug. This was taken as supporting the conclusion that the Appellant was not able to understand or appreciate the consequences of a medical decision. The Respondent’s notes, however, show that the Appellant was not seeking to experiment with lorazepam but rather was seeking to augment the positive effect of loxapine. That is, the Appellant was actually asking for a recommended drug to be combined with another drug that they did not know had adverse side effects and whose risks they seemed to understand once advised thereof.

[9] In my view, factual errors of this nature, while discernable once the Board’s decision is read closely, are not significant enough in the overall analysis of the Appellant’s case to impact on its conclusion. In order to be significant for present purposes, an error made by the Board must not only be discernable, or palpable, it must be overriding: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para 37. The Supreme Court of Canada has indicated that, “Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, at para 28. There is a presumption of reasonableness which must be shown to be overridden by the palpable error: Vavilov, at para 10.

[10] The Appellant’s pervasive problem is that they do not appear to recognize that they suffer from mental illness at all. Amicus counsel submits that the Appellant would describe their mental condition as one of confusion, and points out that the Appellant speculated in conversation with the Respondent that they might be suffering from dementia or Alzheimers or other such condition of cognitive decline.

[11] To the extent that the evidence shows the Appellant recognizing the potential benefit of medication, it reveals that the Appellant perceived medication as beneficial if it addressed lifestyle and social issues, not psychiatric ones. The Respondent testified: “He appeared open to the idea of treatment if it would help him achieve life goals (e.g. finding a partner, having children, getting a job).” But when specifically anti-psychotic medications were proposed by the Respondent, the Appellant rejected the suggestion. The Respondent testified that this rejection of anti-psychotic medication represented a danger to the Appellant and those around them:

Without this, he would continue to have these symptoms which would make it difficult for him to engage in self care, placing himself at risk of physical impairment and place others at risk due to violence (as has happened in the past….).

[12] In fact, the Board found that during the assessment at CAMH on February 18, 2021, the Appellant told the Respondent that they were “against any form of western medicine” and “I will never take any medications”. The panel then took note of the evidence in the record indicating that the Appellant had not been accepting treatment with anti-psychotic medication, or only accepting it sporadically, since 2019.

[13] The Appellant was first diagnosed with a mental illness in 2011. It is fair to say that they have a lengthy history of non-adherence to treatment and relapses into hostile, aggressive, and disordered behavior. The record shows that in September 2019, the Appellant stopped taking antipsychotic medication and was subsequently involved in an altercation resulting in a stabbing and serious wounds. In July 2020, the Appellant again stopped taking antipsychotic medication and was involved in yet another physical altercation.

[14] Just prior to the current admission to CAMH, the Appellant was being held at TSDC on an assault charge. While in detention, the Appellant had been engaged in various forms of anti-social and unhygienic conduct, including threatening violent harm to prison staff. TSDC staff brought the Appellant to CAMH for psychiatric assessment, where the Appellant were assessed as experiencing the symptoms of a mental disorder that would likely result in serious bodily harm to themselves or another person.

[15] The CAMH Admission Note dated February 11, 2021 is explicit in describing the manifestations of the Appellant’s mental illness:

I spoke with corrections officers that are accompanying LS for their observations… In jail, he was observed eating his feces. Today, he did take a shower at CAMH. While in the shower, he urinated in a cup and then with this urine, was later dipping his toothbrush in it to brush his teeth.

[16] A Progress Note recorded by the Respondent later on February 11, 2021 followed up on this description of the Appellant’s conduct:

[A]fter having a bowel movement, [the Appellant] was noted to have placed a toothbrush soiled with fecal material on the countertop. …He continues to be easily irritable with rapid speech…themes of sexual preoccupation…

[17] On the other hand, the Appellant’s mother describes them as an intelligent and well-behaved person when compliant with their regime of medication. The Board recounted this testimony in its decision (citations omitted):

Dr. Little told the panel that he had spoken to LS’s mother. He described her information about LS is as follows:

When well, she tells me that LS is a caring person who loves his family. When unwell, he is aggressive, religiously preoccupied and angry. She tells me that when he is well, he is not religiously preoccupied. When unwell, he is preoccupied with being Christian, although this is not always the case. He had focused on being Buddhist in the past as well.

When well, mother describes him as ‘pleasant, sweet, polite, doesn’t swear at all, intellectual, and consideration’. She describes him as ‘180 degree different’ than the way he is when unwell, which is angry, violent, aggressive’.

She stated that he has a pattern where he will stop taking medications, become unwell, becomes angry at his family, lose touch with them, become violent in the community and end up in police custody with various legal charges. At this point he will obtain treatment and improve while he is on treatment until he discontinues treatment again.

[18] The Board found that the circumstances surrounding the Appellant’s current admission were consistent with the description of past events as described by the mother; that is, where non-compliance with medication perpetuates, it leads to increased symptoms of mental illness and eventually to “various legal charges”. This finding, although not articulated as expressly as one might like, is in essence an application of the second branch of the test under s. 4(1) of the HCCA. Given the dangerous symptoms that the Appellant would inevitably exhibit in the absence of prescribed medications, one can easily see that there was a failure to appreciate the reasonably foreseeable consequences of the decision to forego those medications.

[19] The most egregious error that Amicus counsel has identified in the Board’s decision was to mix up two medicines whose names both begin with ‘L’. That would doubtless be a serious medical error if the Board were in the practice of prescribing medication to patients. Loxapine and lorazepam are dissimilar in every respect but in name, and are used in very different circumstances; loxapine is generally prescribed for treatment of schizophrenia, while lorazepam is generally prescribed to relieve anxiety and seizures.

[20] But, of course, the Board does not prescribe medication and its error did not result in the Appellant receiving incorrect medication. Rather, in assessing the Respondent’s correct prescription the Board mixed up two medical names. In the process, it made a small error in its overall assessment of the Appellant’s attitude toward treatment. In the greater context of the Appellant’s medical needs, that error was not of great significance. It certainly did not override the Respondent’s otherwise correct assessment of the Appellant’s condition or the Board’s affirmation of that assessment.

[21] Although amicus counsel has been astute in picking apart the Board’s decision, the various errors that she has exposed are not greater than the sum of the decision’s parts; in total, they do not override its conclusion. In my view, to elevate relatively minor errors on the way to a correct conclusion would do an injustice to the Appellant. He deserves to be medically treated in accordance with the Respondent’s best medical advice.

[22] To put the matter as bluntly as possible, and without meaning to be indelicate, the evidence before the Board, and before me, poses a stark choice. With medication, the Appellant is an intelligent, caring, and pleasant family-oriented person. Without medication, the Appellant is a violent and threatening person who handles and eats excrement and dips a toothbrush in urine. It is mental illness, and not legal error or a denial of legal rights, that threatens to deprive the Appellant of what he needs most.

[23] The Board’s finding of incapacity is affirmed. The Appeal is dismissed.

Morgan, J.

Date: May 2, 2022