Court File and Parties
COURT FILE NO.: CV-21-662800
DATE: 20220630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BV Appellant
– and –
Dr. Matthew Knox Respondent
BV on her own behalf
Kate Deakon for the Respondent Anita Szigeti and Tanner Blomme, Amici Curiae
HEARD: June 24, 2022
BEFORE: F.L. Myers J.
REASONS FOR DECISION
[1] By order dated May 11, 2022, the Consent and Capacity Board upheld Dr. Knox’s finding that BV is incapable with respect to antipsychotic medications and his finding that she should be held under involuntary status.
[2] This appeal is not a re-hearing. Rather, the court is to review the orders and the supporting reasons provided by the Board on May 25, 2022. The court will correct any errors of law made by the Board in its decision. The court is more deferential toward the Board for other types of errors. The court will only correct errors of fact or errors of mixed fact and law if the errors are “palpable and overriding”. That means that before the court can correct errors of fact or errors applying the law to the facts as found, the errors must
be clear on the evidence (palpable) and they must be very important to the final outcome of the Board’s decision (i.e. overriding). This is the standard of appellate review set by the Supreme Court of Canada in the case of Canada(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
[3] The Board set out all the correct legal tests and standards. It understood the two-part analysis of incapacity set out in the statute and discussed by the Supreme Court of Canada in the case of Starson v Swayze, 2003 SCC 32. It also set out the Box B criteria for involuntary status on a point-by-point basis. The Board committed no error of law in its assessment of the legal tests before it.
[4] The question then is whether the Board made any palpable and overriding errors in its assessment of the facts or in applying the law to those facts. The submissions during the appeal focused on the question of whether the Board made errors in how it assessed whether BV was able to appreciate the foreseeable consequences of a decision concerning antipsychotic medications. The essential issue, as discussed in Starson, is whether BV’s illness prevents her from being able to recognize that she is affected by its symptoms and whether this renders her unable to appreciate the consequences of the medication decision.
[5] Here, Dr. Knox and the Board agreed that BV understands the information about the proposed medications. She also is clear that she believes that they are very harmful. She has read scientific literature that is highly critical of the use antipsychotic medications. She also says that one medication in particular has caused her to twice consider committing suicide in order to avoid harming others.
[6] The Board made several findings of fact that are relevant. It found that BV suffers from mental disorder. On at least twenty separate occasions BV has been admitted to hospital with a diagnosis of schizophrenia or schizoaffective disorder. The Board accepted the following evidence:
It was Dr. Milovic who made the finding of incapacity to consent to treatment on March 2, 2021, and an assessment note was documented at length (Exhibit 1). When Dr. Milovic gave BV the Form 33, BV became highly agitated and threatened the physician to the point that she had to leave the room for her own safety (Exhibit 1). Dr. Milovic proposed to treat BV with a long- acting injectable (LAI) of paliperidone, but on March 15, 2021 the consent of the SDM was changed to only oral antipsychotic medications (Exhibit 1). Over the days and weeks that followed, while BV remained untreated, the evidence showed that BV's mental condition and behavior deteriorated in hospital (Exhibit 1). BV would frequently curse others in a state of extreme agitation (Exhibit 1). The evidence showed that other psychiatrists had also conducted consultations of BV's capacity, including for example Dr. Joannou on March 12, 2021, who came to the same conclusion that BV was unable to appreciate the consequences of a decision regarding treatment for mental disorder (Exhibit 1).
Dr. Knox stated that BV manifested symptoms of being in an ongoing manic state that included pressured speech, irritability, poor judgment, and lack of regular sleep. Dr. Knox added that the physical impacts of BV not sleeping regularly had a detrimental overall effect on BV's mental and physical health. BV was hyper-talkative and would become irritable when there were any attempts at redirecting her conversation (Exhibit 1). According to Dr. Knox, BV remained untreated while in hospital but there were some occasions when she required chemical restraints.
The evidence showed that that BV manifested delusional and paranoid thoughts, including at the time of the hearing. BV stated she did not believe Dr. Knox was a licensed physician with the College of Physicians and Surgeons of Ontario ("CPSO"), that he was committing crimes, and that he appeared intoxicated. BV was making serious allegations including that Dr. Knox was trying to have her sexually assaulted. The panel did not find BV's comments credible and instead that they were related to BV's severe and persistent mental disorder. BV also alleged that physicians and nurses at CAMH were being paid under the table, and they were harvesting food from various units that was somehow related to date rape. BV also manifested some paranoid thought that she was being surveyed by Dr. Knox on her tablet or computer. The panel did not find BV to be credible.
The evidence also revealed that BV had discussed antipsychotic medications with Dr. Knox as of April 28, 2021 and she stated that she never benefited from treatment with antipsychotic medications, and they were a hoax (Exhibit 12). BV told Dr. Knox that BV also denied having any symptoms of mental disorder in the past (Exhibit 12).
[7] Each of these findings was based on evidence before the Board. Each finding was open to the Board on the evidence before it. None of these findings represents a palpable error.
[8] The Board understood that BV appreciated risks of harm from antipsychotic medications. But, it found that her illness precluded her from seeing even the possibility of benefits in her own case and based on her own history in particular. The Board concluded as follows:
The panel weighed all the evidence and found that BV was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment. The panel found that the highly dysregulated state of mind of BV was clearly due to mental disorder and that BV was unable to appreciate or apply the decisions to herself that antipsychotic medications may have some benefits. The panel found this criterion was met. [Emphasis added.]
[9] The Board applied the correct legal test to the facts that it found. There was no palpable error in the Board’s assessment of the case before it.
[10] BV appeared on her own behalf on the appeal. She made forceful submissions that I will discuss below. Ms. Szigeti and Ms. Blomme appeared on the appeal as amici. They did not in any way replace the appellant. Ms. Szigeti spoke after BV and added legal framework to some of the factual submissions that BV raised. Amici helped raise additional issues that BV might not have raised herself and they ensured that the court was provided with relevant precedents so as to have a full picture of the issues relied upon by the respondent.
[11] The court is grateful to Ms. Szigeti and Ms. Blomme. Their assistance provided the court an assurance that it had a full appreciation of the issues
[12] Ms. Szigeti submits that the Board erred by failing to give adequate consideration to the evidence on the issue of BV’s foresight. Moreover, although she had counsel at the hearing, BV discharged him and acted for herself. Counsel remained at the hearing but did not act as amicus. Ms. Szigeti submits that the Board then failed in its duty to bring out from the self-represented BV evidence of relevance. For example, Dr. Knox noted in passing that BV had indicated that she was open to taking oral forms of medications. This was consistent with her Power of Attorney for Personal Care. Ms. Szigeti submits that the Board ought to have questioned BV about her prior expression of willingness to take oral forms of drugs or cross-examined the doctor about why he said she could not appreciate the benefits of antipsychotic medications if she might have been willing to accept them orally.
[13] Similarly, it is common ground that BV was not incapacitated when she granted her Power of Attorney with its differentiation among different types of medications. Ms. Szigeti submits that the Board ought to have inquired as to whether BV continued to endorse the choices she made in her Power of Attorney and, if not, questioned when and why her views change.
[14] Furthermore, in her reply evidence, BV expressed the concern that she had and could again become suicidal on certain of the antipsychotic medications. The Board did not address why an aversion to suicide was not evidence that BV had capacity to foresee the consequences of the medication decision.
[15] In addition, the Board did not address the issue of whether antipsychotic medications do have the negative consequences feared by BV – like reduced life expectancy. Expert pharmacology evidence may have been required to assess whether BV was being perfectly rational in her fears and conclusions.
[16] Ms. Szigeti submits that the Board’s failure to inquire means that key issues were not addressed adequately at the hearing. She submits that one cannot tell from the Board’s reasons if it ever considered whether, like Professor Starson, BV was making an informed, capable decision with which others might disagree, or whether her illness deprived her of recognition of the manifestations of her illness to such a degree as to deprive her of the foresight required. This too, Ms. Szigeti submits, amounts to a reviewable error.
[17] This argument sent me back into the Board’s reasons for decision to consider, with sharp focus, what the Board found and did not find. It was aware of and recited the evidence referred to by Ms. Szigeti. It did not expressly deal with each piece of evidence in its analysis. But, I repeat the bolded finding highlighted above:
The panel found that the highly dysregulated state of mind of BV was clearly due to mental disorder and that BV was unable to appreciate or apply the decisions to herself that antipsychotic medications may have some benefits.
[18] This was a clear holding coming right after the Board noted that BV had (wrongly) denied that she received any benefit from treatment with antipsychotic medication in the past, that she had denied symptoms of mental disorder, and that she dismissed antipsychotic drugs as a hoax. The Board did indeed make a finding that it was the illness that caused the lack of foresight and it did so on the evidence before it.
[19] The question of the duty to inquire is double-edged. During the appeal, I inquired of BV whether she remained open to taking oral antipsychotic medications. At first she evaded the question and then ultimately said she was not prepared to do so. These responses were perfectly consistent with her views about antipsychotic medications that I discuss below. It also reminds us of the vagaries of witness evidence and the risk of asking a question to which one does not know the answer. Had the Board elicited that answer at the hearing, would the appellant then claim that the Board exceeded its mandate and cross-examined her to her detriment? I put no stock in the answer because only the evidence before the Board is before me absent a ruling on fresh evidence. I only refer to it to say that the fact that the Board did not make an inquiry that inquiring minds might want to know in hindsight does not mean that the failure to inquire had any effect or was an error.
[20] I see no failure of the Board to ensure that a self-represented party understood the process, was able to present her case, or respond to the other side’s case. Nor do I have any doubt about the chain of reasoning that underlies the Board’s findings. It asked questions and made findings of fact on evidence before it to reach a conclusion.
[21] The Board did not fail to address the question of whether it was BV’s illness that caused her lack of foresight. It addressed the question directly. Its reasons do not have to be perfect or address every single piece of evidence recited.
[22] During the appeal hearing, BV made submissions for more than two hours. She is highly educated and articulate. She speaks very quickly and with few intervals. She gets agitated and aggressive at times. The court did try to re-direct BV on occasion with mixed success. With some patience and a desire by counsel and the court to ensure that BV was heard and felt heard, we were able to complete the hearing.
[23] BV explains her agitation and aggression as anger for being wrongly held for 15 months in a unit designed for temporary stays. She says she is denied ready access to the internet and lawyers. She submits that she is punished for telling other patients scientific facts about vaccines and medications. She submits that Dr Knox has engaged in criminal behaviour by re-committing her involuntarily after an earlier order by a different panel of the Board that is not before me. She says Dr. Knox is sadistic, often appears intoxicated, surreptitiously watches her, and she fears that he and others may be trying to sexually assault her.
[24] BV says that she has only twice been suicidal in her life and both times came when she was on a particular antipsychotic drug. Although Dr. Knox gave evidence before the Board that he was not proposing to use that drug in this case, BV says that at a very recent follow-up hearing, he is now proposing to do so. She made it very clear to me that she believes that she will die if she is put on that drug. She says it will cause her to commit suicide or it will reduce her life span to the point that her death will come soon.
[25] BV denies that she ever did well on antipsychotics and the feared drug in particular. The Board held the opposite and found that her evidence was not credible.
[26] BV explained to me some of her concerns about psychiatry being linked to Nazi experiments. She discussed her concerns that studies show antipsychotic medications cause negative long term effects with little to no short term gain.
[27] BV also questioned Dr. Knox’s qualifications. She told me that many of the nurses did not have her pharmacology knowledge and did not even know about black box warnings contained on the documentation for many of the drugs that they administer.
[28] BV advised me that she has been tortured by nurses who deny her water from the nursing station for days on end. BV advised that water dispensed by the sink in her room was contaminated and contained sedatives.
[29] BV also advised that she has been denied sunlight. She finds sunlight assists to reduce her anxiety. She has also been treated with inappropriately strong chemical restraints.
[30] I tried to assist BV by directing her to try to identify errors made in the Board’s reasons. I advised that Dr. Knox’s motivations and qualifications, while serious issues, did not amount to errors of the type that can be reviewed on this appeal. I tried to assist BV by asking her to spend some of her lunch hour listing for me specific errors that she can show me in the Board’s reasons.
[31] After the lunch hour, BV raised several alleged errors. She said that the initial order made by Dr. Milovic did not have sufficient particulars and was signed with the doctor’s initials instead of her signature. The doctor did not include “M.D.” after her name as she did on a later document. The inference was that someone other than Dr. Milovic signed the form or the initial order was procedurally deficient.
[32] BV also raised an issue about whether Dr. Knox carries $1 million in insurance as is required for a capacity assessor under the relevant regulation. BV made submissions about the legal status of the Canadian Medical Protective Association arguing that it is not an insurer and therefore Dr. Knox lacks the regulatory qualification to assess her capacity. She also submits that she spoke to the Royal College of Physicians and Surgeons and someone there told her that Dr. Knox never took his qualifying examinations.
[33] BV also advises that Dr. Milovic only interviewed her for 15 minutes and not the 30 minutes set out in the evidence. Even at 30 minutes, she submits the interview was too brief to amount a valid capacity assessment.
[34] BV challenges a handwritten surreptitious entry on the doctor’s initial order that set out the time of day of the initial assessment. She says the entry was not initialed and therefore was invalid at law. She also says that the wrong time of day was entered.
[35] BV submits that the failure of nurses to set out their contact details on various forms makes those forms invalid as a matter of law.
[36] None of this is a ground to undermine the Board’s decision based on the evidence before it. The Board accepted Dr. Knox’s evidence of his qualifications as a doctor and it dealt with the issues as at the time of its hearing as required by the statutory scheme.
[37] BV then submitted that scientific literature establishes that everyone who takes antipsychotic drugs dies early. She relies on her understanding of the literature to suggest that any symptoms that she has displayed in past were caused by antipsychotic drugs rather than illness. She submits that there was a burden on the Board to refute the literature that establishes that antipsychotic medications kill you and are guaranteed to make your symptoms worse. She referred to studies showing very high relapse rates for patients on some antipsychotic medications, that outcomes overall are better in countries that minimize antipsychotic use, and that, on average, lifespans are reduced for patients who take antipsychotics for their lifetimes.
[38] There was only one study in evidence before the Board. It was put into evidence by Dr. Knox, presumably as an indication of the type of material relied upon by BV.
[39] The most salient point about BV’s submissions to me on this topic was that while she points to various studies that report various outcomes from various drugs in various circumstances, she personalizes the outcome to herself with no regard to the applicability of the conditions in the studies nor their use of statistical averages. That is, she was quite clear that antipsychotics will make her worse and will cause her to die despite her own experience being otherwise according to the evidence accepted by the Board.
[40] I make no finding about any of the studies referred to by BV. None are before me in a way that I could make any form of conclusion about the science. Nor should I be doing so. The issue for the court is whether the Board made a reviewable error in deciding that BV’s illness caused her to suffer a highly dysregulated state of mind that prevents her from appreciating the consequences of the medication decision.
[41] The Board was not required to embark on a study of the efficacy of antipsychotic medications to resolve the issues before it. The correctness of BV’s view of the state of the science does not affect the correctness of the Board’s findings in her particular case.
[42] Whether someone with full capacity might foolishly or quite reasonably accept the science relied upon by BV and choose to forgo possible benefits of the proposed course of treatment due to possible risks, is not the issue. Rather, the question was whether BV had the capacity to make that assessment or whether her illness precludes her from having the capacity to do so.
[43] In my respectful view, the Board made no reviewable error and the appeal must therefore dismissed.
FL Myers J
Released: June 30, 2022
COURT FILE NO.: CV-21-662800
DATE: 20220630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BV
-and-
Dr. Matthew Knox
REASONS FOR JUDGMENT
FL Myers J
Released: June 30, 2022