Court File and Parties
Court File No.: CV-21-667164 Date: 2022-01-14
Ontario Superior Court of Justice
Between:
ML Appellant
– and –
Dr. Nizanthan Rathitharan Respondent
Counsel: I. Aniekwe, for the Appellant B. Walker-Renshaw, for the Respondent
Heard: November 2, 2021
Before: Sugunasiri, J.
Reasons for Decision
Overview:
[1] ML is a 20-year-old man who has been diagnosed with schizophrenia, was found incapable of making treatment decisions about anti-psychotic drugs. Dr. Rathitharan found ML incapable because "he did not have insight into his illness nor the benefits of treatment." This, Dr. Rathitharan noted, meant that ML was not able to appreciate the reasonably foreseeable consequences of taking or not taking anti-psychotic drugs. On review, the Consent and Capacity Board ("CCB") upheld Dr. Rathitharan's finding. ML seeks to overturn the CCB.[^1]
[2] For the reasons that follow, I allow the appeal and quash the Board's decision. Both the doctor and the CCB failed to apply the correct test. The applicable test is whether ML is unable to appreciate the reasonably foreseeable consequences of treatment or no treatment. The Board's reasons focus on ML's actual failure to appreciate that he has schizophrenia or any of its symptoms. Further inquiry was required by both Dr. Rathitharan and the CCB to determine ML's ability to appreciate and foresee.
[3] Further, the CCB erred in considering ML's best interests and the impact of his refusal to be treated on his family.
[4] Finally the CCB made a palpable and overriding error when it failed to make the necessary inquiries as to why ML did not appreciate the consequences of treatment or test his ability to appreciate the possibility of a mental condition with manifestations that could be ameliorated by medication. The evidence against ML was not cogent, clear and compelling as it must be to deny him the presumption of capacity. I explain below.
Background:
[5] ML is diagnosed with a treatment resistant strain if schizophrenia. In December of 2018 he spent three weeks at North General Hospital and was then transferred to Ontario Shores for six months. Many medications were tried but all were relatively unsuccessful. He was discharged from Ontario Shores in early July of 2021. When he left Ontario Shores he lived at home with his mother, father and 18-year-old sister. With release came a prescription for an injectable anti-psychotic drug that had some benefit in alleviating psychotic symptoms. The discharge summary from Ontario Shores stated: "He got a fair trial on the medication clozapine, unfortunately with no satisfactory response, the patient eventually opted not to continue on the clozapine, and the medication was stopped and replaced by paliperidone palmitate injection at a dose of 150mg every three weeks. Interestingly he is better on the Invega Sustenna, with limited improvement of his psychotic symptoms. He remains lacking insight into his illness, and he always displays resistance to taking his injection, however, there were not reported incidents of verbal or physical aggression towards others."
[6] On July 19, 2021 ML was readmitted to North York General Hospital and saw Dr. Lin. He had received a paliperidone injection a few days prior. His family had called in reporting that he was agitated, broke a number of things and was observed speaking to himself. They felt unsafe with him at home. At that time Dr. Lin advised that given ML's lack of response to multiple treatment trials, this may be ML's new baseline. ML's mother also noted that he was not agreeable to taking the injectable medication and it was difficult to get him to the hospital to receive it.
[7] Dr. Lin noted that ML denied he had schizophrenia or that he needed the injectable medication. Dr. Lin explained the benefits and risks but concluded that ML was unable to understand or appreciate them. At the same time ML met with a psychiatric resident, the Respondent Dr. Rathitharan. He observed that ML was rocking back and forth, bent at the waist and nodding his head up and down. He was engaged in the interview but somewhat guarded. Dr. Rathitharan observed his speech to be normal and a reported mood of "happy". ML's thought process was relatively organized and did not reveal any delusions. ML also did not appear internally preoccupied. His cognition was not formally assessed but Dr. Rathitharan concluded that his insight and judgment were poor.
[8] On the same day Dr. Rathitharan concluded that ML was incapable of making treatment decisions having noted that he had no insight into his illness or the benefits of treatment.
The Evidence Before the Board
[9] The CCB panel of three convened a hearing on August 3, 2021. The only two witnesses were Dr. Rathitharan and ML.
[10] At the hearing Dr. Rathitharan testified as follows with respect to his capacity assessment:
When I did the capacity assessment the patient refuses the diagnosis, denies experiencing any symptoms and when the indication and the risks of the proposed treatment, which in this case would be an antipsychotic, was explained to him he stated that he did not require the medication because he did not have schizophrenia and would not be compliant with taking the medication. If he does not take his medications, there is a chance of his psychotic symptoms worsening over time; he may experience auditory hallucinations; delusions including paranoia; disorganization in speech and behaviour; this could lead to episodes of aggression as has been observed in the past. Based on this capacity assessment I declared him incapable to make treatment decisions with respect to antipsychotic medications for his schizophrenia. I would add to this that after the discharge from Ontario Shores, and he was home for two weeks, he was brought to the hospital to receive his next injectable medication, and his family had conveyed to us, that it was extremely difficult to bring him to the hospital…
[11] On cross- examination, Dr. Rathitharan admitted that ML's only symptoms observed were those detailed by the family like speaking to himself and breaking things, two incidents of shouting at the hospital, and throwing some juice. When asked why Dr. Rathitharan concluded that ML was unable to appreciate the consequence of treatment, he answered:
Because the patient does not believe that he has the diagnosis of schizophrenia; he provides history that's contradictory to the collateral with respect to aggression at home; he is not able to appreciate the reasonably foreseeable consequences of a worsening psychosis including a number of symptoms such as hallucinations, delusions, paranoia; and he does not believe that taking this medication would prevent relapse of those symptoms.
[12] Dr. Rathitharan also explained that of the five general manifestations of schizophrenia, only two have been clinically observed (delusions and hallucinations). The hallucinations were as observed by family and nurses, that he appeared to be speaking to himself. The delusion was with respect to ML's interpretation of the hallucinations. ML's interpretation of his alleged hallucinations were difficult to explore further because ML was guarded which is itself a manifestation of the illness. When asked about why he was shouting, ML first indicated that it was someone else shouting and then explained that he had himself from picking at his nails.
[13] On cross-examination by a CCB member, Dr. Rathitharan said that ML was able to understand that the proposed injection is a medicine with certain affect but was unable to apply the information to himself. Another CCB member focused the questioning on the benefits and burdens of treatment, the likelihood of ML's deterioration if he did not take the suggested medication, and the impact on ML's family. In that regard Dr. Rathitharan explained that the family is requesting that ML receive the next injectable dose before he is discharged from hospital because they think it will be difficult to bring him into the hospital to receive it.
ML's testimony
[14] ML testified that he understood that he was diagnosed with schizophrenia but did not agree that he had it nor its symptoms. He understood the medication that he had been taking but saw no benefit to it because he did not believe he had schizophrenia. He explained why he was shouting in the hospital room and disagreed that he threw anything while living with his parents. On the singular cross-examination question by a Panel Member about the reasons for being admitted into the hospital, ML testified that it was because his mom said he was yelling and throwing things but that it was not in fact not true.
The CCB's decision
[15] In upholding Dr. Rathitharan's finding of incapacity, the Board pinned their conclusion on a) Dr. Rathitharan's evidence that ML had limited insight into his illness and its symptomology; b) the evidence from both the doctor and ML that he denied his diagnosis; c) that ML denied his symptoms arising from his mental illness in spite of "objective evidence" that confirmed those symptoms; and d) that it was the doctor's evidence that should ML be made voluntary, he would refuse treatment.
The Issues:
[16] This appeal is pursuant to section 80 of the Health Care Consent Act ("HCCA")[^2] which gives ML a statutory right of appeal from the CCB's decision. The standard of review is one of correctness for questions of law and palpable and overriding error for questions of fact and mixed fact and law where the issue of law cannot be easily extricated.[^3]
[17] The issue in this case is whether the Consent and Capacity Board erred in confirming Dr. Rathitharan's finding pursuant to section 4(1) of the HCCA that ML is unable to appreciate the reasonably foreseeable consequences of a decision to take anti-psychotic drugs or not.
[18] ML argues that they erred in law in unduly hinging their decision on his denial of schizophrenia or the symptoms alleged to have been observed by others. After review on a correctness standard, I agree.
[19] ML argues that the CCB erred in law by considering the best interests of ML taking the medication. After review on a correctness standard, I agree.
[20] I allow the appeal, quash the Board's decision and restore ML's presumption of capacity to make treatment decisions with respect to anti-psychotic medication.
Analysis:
The CCB applied the incorrect test by requiring ML to accept his diagnosis and have an actual appreciation of the consequences of treatment
[21] The Supreme Court of Canada in Starson v Swayze made it clear that a patient's failure to accept his diagnosis or appreciate the benefits of treatment does not necessarily lead to a conclusion of incapacity. Requiring ML to accept his diagnosis and have actual appreciation was incorrect in law.[^4] The sum total of Dr. Rathitharan's analysis during the "assessment" was that ML was incapable of making treatment decisions because he had no insight into his illness or the benefits of treatment. Even though he did agree on cross-examination that ML did not have to agree with his diagnosis, the test described on cross-examination did not reflect that test actually applied in the doctor's assessment. As Justice Major noted in Starson, it is incumbent on Boards to inquire into the reasons for the patient's failure to appreciate consequences.[^5] In the present case there was no such inquiry despite ML's availability to answer such questions at the hearing.
[22] Even if there was no error in law in the test the doctor and the CCB applied, both made a palpable and overriding error in failing to make the necessary inquiries of ML to assess capacity. A palpable and overriding error is one that both obvious and determinative.[^6] ML was available to the Board to be questioned on capacity. No one asked ML whether it was possible that he could have a mental condition that might be treated by medication. This was the minimum inquiry required to ensure that ML's denial of his diagnosis was not conflated with an inability to appreciate consequence of treatment decisions. ML neither had to agree that he had schizophrenia, nor any symptoms associated with the illness. More inquiry was needed for the Board to conclude that ML's condition resulted in him being unable to recognize that he is affected by its manifestations and therefore unable to apply the relevant information to his circumstances, as that concept is understood in Starson. The record does not demonstrate the clear and compelling evidence required to deprive ML of the presumption of capacity.
[23] The record also does not support the three indicia of capacity set out by McLachlin, J. in her dissent in Starson. The first is whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her. ML denied that he had schizophrenia or its symptoms. As noted above, there were no other questions put to him to explore whether he as able to acknowledge the fact that the condition for which treatment is recommended may affect him. As argued by Mr. Aniekwe, there is a difference between denying the named illness and denying its possibility. The Board's questions focused on whether ML had schizophrenia. The law is clear that no one is required to agree with the name of a diagnosis, or that they have an illness of any kind. Where someone does not accept the diagnosis or the name put to a condition, it is incumbent on health care providers and the reviewing Board to make further inquiries to determine capacity.
[24] Similarly, there was insufficient inquiry to determine whether ML was able to assess how the proposed treatment could affect his life or quality of life. The evidence reveals one conversation with Dr. Rathitharan and scant evidence at the CCB appeal.
[25] Finally, the record does not support that ML's choice to refuse treatment is substantially based on a delusional belief. The only evidence of delusion is Dr. Rathitharan's opinion that denying schizophrenia and its symptoms is itself a delusion. The problem with this analysis is that it largely relies on accepting, without explanation, the family's statements on ML's alleged symptoms. The family did not testify at the hearing but told Dr. Rathitharan that they brought ML in because he had broken some items and was talking to himself. One wonders if their evidence should have even been considered probative in light of the fact that no medical personnel, either during the current hospitalization, nor during ML's time at Ontario Shores, observed any type of violent or destructive behaviour. At the very least the hearsay information (which the Board is permitted to consider) should have been weighed against that evidence and ML's direct testimony that he did not break things at home. It was not. There was no analysis to prefer the family's evidence over ML's. The failure to do so is in and of itself a palpable and overriding error. One can see the mischief that can arise in uncritically accepting hearsay evidence from family as a basis to remove a patient's right to self-determination.
The CCB was incorrect in considering the best interests of ML and his family in assessing capacity
[26] It was clear from the CCB's reasons and the Member's questioning that the Board considered the impact on ML's well being and the wishes of the family in determining whether to restore his presumption of capacity. This is wrong in law. It is clear from Starson that the mode and manner a capable person chooses to exercise his capacity, even if foolish or contrary to his best interests, should never sway the CCB in assessing capacity.[^7] Even more removed from the assessment is the impact on the family. It is irrelevant whether the family finds it difficult to get ML to go into the hospital to take his injection or whether they are afraid of him.
Conclusion:
[27] For these reasons, I quash the CCB's appeal and restore the presumption of ML's capacity to make decisions with respect to anti-psychotic treatment.
Court File No.: CV-21-667164 Date: 2022-01-14
Ontario Superior Court of Justice
Between:
ML Appellant
– and –
Dr. Nizanthan Rathitharan Respondent
Reasons for Decision
Justice P. T. Sugunasiri
Released: January 14, 2022
[^1]: There were other issues about involuntary admissions and ability to deal with property that were before the Board. However, ML has only appealed involuntary admission and incapacity to make treatment decisions. He abandoned the appeal with respect to involuntary admissions by notice of abandonment dated October 29, 2021. The only issue in this appeal is the Board's finding that ML is unable to make treatment decisions.
[^2]: Health Care Consent Act, RSO 1990, c M7.
[^3]: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para. 37.
[^4]: Starson v Swayze, 2003 SCC 32 at paras. 80-81, 111. See also Sharma, J.'s analysis in DS v Youssoufian, 2021 ONSC 5929 at paras. 26-31.
[^5]: Ibid. at para. 81.
[^6]: Salomon v Matte-Thompson, 2019 SCC 14 at paragraph 33 as cited in SS supra note 2 at paragraph 9.
[^7]: Starson, supra note 4 at paras 12 and 76.