COURT FILE NO.: CV-21-00668691-0000
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.S.
Appellant
– and –
DR. SUZANNE LEGAULT
Respondent
Ken J. Berger, for the Appellant
Theodore Nemetz, for the Respondent
HEARD: June 20, 2022
VERMETTE J.
[1] The Appellant, M.S., appeals from a decision of the Consent and Capacity Board (“CCB”) dated August 25, 2021 (with Reasons for Decision dated September 1, 2021) which: (a) confirmed the finding of the Respondent, Dr. Suzanne Legault, that the Appellant was incapable with respect to a community treatment plan, and (b) upheld the validity of a community treatment order issued by Dr. Legault against the Appellant on August 6, 2021 (“CTO”).
[2] I find that the CCB did not make any reviewable errors. Therefore, the appeal is dismissed.
A. FACTUAL AND EVIDENTIARY BACKGROUND
[3] The Appellant is a 34-year-old woman. She is university-educated and is financially supported by the Ontario Disability Support Program (ODSP). In March 2021, she moved into an apartment in downtown Toronto after a period of homelessness. She gave birth to a child in April 2021, but the child was apprehended in hospital by Native Child and Family Services of Toronto. In late April 2021, her partner suffered a severe cardiac arrest and was in hospital on life support. The Appellant was the designated person to make treatment decisions about him.
[4] The Appellant has a history of bipolar disorder since 2011, with several hospitalizations. From August 24 to November 16, 2019, she was hospitalized in Mississauga. She showed significant improvement in hospital, and a community treatment order was developed at that time. Initially, she continued to improve in the community. However, it appears that the Appellant discontinued her medications at some point after the beginning of the COVID-19 pandemic.
[5] The Appellant was hospitalized again from August 28 to October 16, 2020 because of treatment non-compliance and relapse in psychotic symptoms. In hospital, there was gradual improvement with respect to the Appellant’s psychosis, and she was eventually discharged under a reissued community treatment order. At that time, the Appellant was in the early stages of her pregnancy.
[6] The Appellant’s most recent hospitalization was from April 28 to May 26, 2021. She was brought to the hospital by police due to non-compliance with treatment, as mandated by the community treatment order in force at the time. On April 29, 2021, Dr. Legault made a finding of incapacity with respect to antipsychotic medication which was upheld by the CCB in a decision dated May 11, 2021 (this decision is not in issue in this appeal). Dr. Legault’s notes dated April 29, 2021 include the following:
When we talked about her situation specifically, she does not recognize the possibility that she may be suffering from bipolar disorder. She does understand the symptoms as they have been explained to her on multiple occasions. However, she is not able to recognize these symptoms in herself. Rather she has an alternative explanation for her situation. She said that she has been “sicked” by the mental health system and that she has posttraumatic stress disorder from her psychiatric admissions. She does not recognize any evidence of the symptoms of mania or psychosis, either in the present time or during past hospitalizations. She said that she was “never sick” and that she was given “toxic medications.” She also denied that she had ever had any benefit from medication. Even when I brought to her attention the clear improvements observed in hospital, particularly during the 2019 admission, and during the several months after that discharge from hospital, when she was actually complying with medication. She does not recognize that there was any change in her. She does certainly recognize side effects of medication, particularly the detrimental side effects she had with Epival. However, she has not been able, over the course of the last couple of years, to weigh risks and benefits of treatment. Although she accurately recognizes side effects, she does not appreciate the symptoms of illness, which are manifested in her.
Although she indicates that she “wants to choose my own treatment,” which she describes as various “nutreginic” [sic] foods and vitamins, and refers to them as an “alternate treatment.” She does not recognize the symptoms, which are the focus of treatment with antipsychotic medications. When I pressed her about what her “alternate treatments” were meant to treat, she said that they were to keep her healthy and that she did not have any type of mental illness. She does recognize that people at times tell her that she is talking too fast, and she believes that CBD mellows her out.
On mental status examination, Ms. [M.S.] was a slim young woman. She remained mildly agitated and somewhat hostile throughout our interaction. Mood was elated and there was pressure speech. However, she did engage with me on a discussion about the reasons for hospitalization at the present time, as well as the reasons for the proposed treatment. As I noted above, she does not recognize any of the symptoms I brought to her attention, which include thought disorder, elated mood, and ongoing auditory hallucinations. The auditory hallucinations consist of a male voice, which has been present for several months, and which gives her direction about what to eat or what to do. For example, she said the voice told her to take aspirin during her pregnancy, but to stop it 3 weeks prior to delivery. She is uncertain of the identity of the voice, but feels that the information the voice gives her is useful and listens to it. She does not recognize the possibility that this auditory hallucination could be part of a mental health disorder.
The focus of much of Ms. [M.S.]’s talk was to argue that all of the psychiatric system was invalid and only gave people “toxic drugs.” She told me over and over again that I was not using any critical thinking and I was fat and would end up in a nursing home for 20 years. She rambled on about this. However, she came back to the same position, namely that she did not suffer from, and had never suffered from any manifestations of a mental disorder. She also was very clear that she had never had any benefits from treatment with antipsychotic and mood stabilization despite the evidence I put forward about clear observations of improvement in hospital.
[7] On April 30, 2021, Dr. Legault issued a Notice of Termination of the community treatment order that was then in force for the purpose of issuing a revised community treatment order which would include intramuscular antipsychotic medications. This was to ensure medication compliance in the future.
[8] On May 6, 2021, Dr. Legault made a finding that the Appellant was incapable with respect to giving or refusing consent to the proposed community treatment plan. Her notes from that day read, in part:
I reviewed and assessed Ms. [M.S.] on the Inpatient Unit on the morning of May 6, 2021, from 10:50 to 11:15 am. I note that, early this morning, she was extremely agitated and required p.r.n. medication to settle; she was assaultive toward staff. By the time I spoke to her later in the morning, she was resting in her room.
Review of the notes over the last 24 hours continues to indicate that Ms. [M.S.] remains agitated, often walking in the hallways, yelling and screaming and talking to herself. She has required p.r.n. medications consistently to settle her behaviour.
When I approached her to speak with her today, I brought the Form 49 and a new Community Treatment Plan to discuss with her. She declined to discuss this in any detail. She understands that the Community Treatment Plan has as its goal both medication administration as well as monitoring in the community to ensure that she is stable. Her response to this was to say that, “There is nothing wrong with me except I have to have my marijuana every 20 minutes.” She said that the CTP was “a fascist tool to control me.” She also said, “I am not sick and I don’t need any of your poison medication.” As well, she indicated that she did not see any point in us trying to monitor her. She believes that she will be released from hospital without any treatment next week after her review board.
On mental status examination, Ms. [M.S.] was elated and thought disordered. She was angry and labile. In the course of our conversation, she again called me a number of abusive names and told me that she hoped I would die over a period of 20 years. She continues not to ascribe her agitation to a lack of marijuana. She does not recognize the possibility that any of the manifestations of her illness including her agitation, aggressiveness, thought disorder and ongoing auditory hallucinations could be part of a mental health disorder. She was specifically not able to recognize the potential benefits of antipsychotic medications. As well, she does not recognize any indication for nor any value in the community monitoring envisioned in the Community Treatment Plan. Finally, she does not recognize any benefits that she experienced in the past during treatment with the antipsychotic medications and Community Treatment Order. In this sense, insight and judgment remains [sic] poor. Sensorium was grossly intact.
ASSESSMENT AND TREATMENT PLAN:
It is my assessment that Ms. [M.S.] does not have a capable appreciation with regard to manifestations of her illness nor is she able to appreciate consequences of a treatment decision respecting the Community Treatment Plan and antipsychotic medications.
Having received the consent of the substitute decisionmaker to the Community Treatment Plan, I entered into the plan by signing it.
[9] On the same day, i.e. on May 6, 2021, Dr. Legault issued a “Notice of Intention to Issue or Renew Community Treatment Order”.
[10] During her hospitalization, the Appellant’s manic psychosis improved gradually with treatment with antipsychotic medications. Dr. Legault met with the Appellant on May 25 and 26, 2021, and noted a significant improvement, in particular in the last four or five days. However, she also noted that the Appellant “continued to not recognize the possibility that she suffered from a mental disorder and hence, remained incapable with regard to treatment decisions.”
[11] The CTO was issued on May 25, 2021, the day before the Appellant’s discharge. The CTO indicated that it was Dr. Legault’s opinion that if the Appellant did not receive continuing treatment while living in the community, she would likely, because of mental disorder, suffer substantial mental deterioration of the person. The following facts were set out in the CTO as the facts on which Dr. Legault formed her opinion:
Ms. [M.S.] suffers from Bipolar Disorder complicated by cannabis use. She does not have a capable appreciation of the manifestations of her mental illness. Nor is she able to appreciate the consequences of a treatment decision respecting her mental disorder, as it pertains to the Community Treatment Plan. But for the Community Treatment Order, Ms. [M.S.] will not comply with treatment, as specified in the Community Treatment Plan. This non-compliance will result in illness, relapse with substantial mental deterioration and re-hospitalization.
[12] The community treatment plan attached to the CTO (“CTP”) is dated May 6, 2021 and provides, in part:
- Dr. Suzanne Legault of the South Central Etobicoke Assertive Community Treatment Team (ACTT) or delegate will provide monitoring of the Community Treatment Order (CTO) for Ms. [M.S.].
a. Dr. Legault or delegate will be available to meet with Ms. [M.S.] every two to six weeks. Appointments may be in office, via telephone or video at Dr. Legault’s or delegate’s discretion. Frequency of appointments may be adjusted as clinically indicated and discussed with Ms. [M.S.].
b. Dr. Legault or delegate will determine when it is appropriate to issue a Form 47 and issue same. Criteria for the issuance of a Form 47 is itemized below (section 6).
Recognizing that Ms. [M.S.] has moved out of the catchment area of the South Central Etobicoke ACT Team, a referral has been made to an ACT Team in her new area of residence. When a transfer to this team is completed, this CTO will be delegated to them.
Ms. [M.S.] will be responsible for the following:
a. Ms. [M.S.] will attend appointments with Dr. Legault or delegate every two to six weeks at designated appointment times for ongoing psychiatric follow-up in office, via telephone or video.
b. Ms. [M.S.] will meet with ACTT or delegate a minimum [sic] once a week for assessment and ongoing rehabilitation.
c. Ms. [M.S.] will take antipsychotic medications prescribed by Dr. Legault or delegate as clinically indicated, discussed with her and consented to by her SDM [substitute decision-maker]. SDM’s consent was obtained for the following medications:
• Risperdal to a maximum of 6 mg orally per day
• Olanzapine to a maximum of 20 mg orally per day
• Risperdal Consta to a maximum of 50 mg via intramuscular injection (IM) every 2 weeks
a. Ms. [M.S.] will have blood work done as clinically indicated and ordered by Dr. Legault or delegate as per prescribed antipsychotic medications.
b. Ms. [M.S.] is to reside in the catchment area of the delegated ACT Team, in order to allow for regular support and monitoring. If there is a planned move, Ms. [M.S.] will advise ACT Team Clinicians or delegate so that continuity of care can be provided.
c. Recognizing the impact of marihuana in increasing risk of relapse of Ms. [M.S.]’s illness, Ms. [M.S.] will do her best to abstain from marihuana use.
- Dr. Legault, or delegate, may issue an order for examination (Form 47) and have Ms. [M.S.] brought in for psychiatric examination at Dr. Legault’s office, delegate’s office or Hospital Emergency Department if there is reasonable cause to believe that Ms. [M.S.] is not complying with the plan. Non-compliance on Ms. [M.S.]’s part includes:
a. Missing one appointment with Dr. Legault or delegate without making alternate arrangements or
b. Missing two consecutive appointments with ACTT or delegate without making alternate arrangements or
c. Reasonable cause to believe that Ms. [M.S.] is not taking antipsychotic medications as outlined above,
d. Missing blood tests ordered by Dr. Legault or delegate on one occasion without making alternate arrangements or
e. Changing her living situation without advising ACTT clinicians or delegate.
ACTT and Dr. Legault or their delegates will make reasonable efforts to assist Ms. [M.S.] to comply with this plan by problem solving around issues interfering with compliance prior to the issuance of a Form 47. Reasonable efforts will be made by ACTT or delegate to notify Ms. [M.S.], and her SDM, about her failure to comply, the intent to issue an order for examination and possible consequences.
[13] Since discharge, the Appellant has complied with the terms of the CTO, including intramuscular antipsychotic injections every two weeks. Her condition has significantly improved, with no overt psychosis.
[14] At the hearing, Dr. Legault was asked questions about her finding that the Appellant was incapable to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to the CTP. The following exchange took place:
Q. And on August the 3rd, did you have an opportunity to review treatment capacity ...
A. I did.
Q. … with respect to her need for ongoing care in the community using pharmaceuticals?
A. Yes, I did.
Q. And what was your opinion then?
A. That she remained incapable with regard to appreciating her condition and the intent of the community treatment plan provisions.
Q. And firstly, what is it that – so you’re relying on the second part of the statutory test.
A. Yes.
Q. And what information did you receive from Ms. [M.S.] that would lead you to that?
A. Well, we had a discussion about the reason she was being given medications. I brought to her attention the improvements which have been considerable since her discharge, and improvements during earlier times of treatment. She was insistent that she did not have any type of mental condition and therefore ....
MS. [M.S.]: That isn’t true. I do not insist that I don’t have a mental condition. I have PTSD. You don’t even listen to me when I talk to you. God.
DR. LEGAULT: Well, maybe I can be more precise and say that all the manifestations I brought to her attention which reflect psychosis and mood instability are not manifestations she recognizes. And therefore, she does not see a role for antipsychotic medications in her treatment.
MS. [M.S.]: That’s true, because I don’t exhibit behaviour that is like in any way psychotic that it should be treated more as forced treated of forced medication. I don’t have like hallucination (indiscernible) that causes (indiscernible).
MR. NEMETZ: I’m just wondering if Ms. [M.S.] could be asked to mute her phone ...
Q. That [sic] you, Dr. Legault, you were saying that she doesn’t recognize any mood component or psychosis as (indiscernible) or antipsychotic medication with respect to the need for ongoing treatment in the community, mandated treatment in the community. How does that apply?
A. Well, she believes that she – well, her position is that she’s being forced to submit to this treatment and monitoring and that it’s completely inappropriate and unnecessary because she doesn’t have the condition, we’re monitoring her for.
MS. [M.S.]: (Indiscernible).
BY MR. NEMETZ:
Q. And you’ve indicated that she has made substantial gains while on the community treatment plan.
A. Yes. On this particular community treatment plan and also after her hospitalization in 2019 we saw a very big improvement just prior to the onset of the pandemic and then we’ve seen a big improvement in her since her discharge from hospital a couple of months ago.
Q. And is she prepared to recognize that some of this improvement may be related to antipsychotic medication?
A. She doesn’t think she’s improved. She thinks she’s the same as she was before. The only problem with the hospitalization from her point of view was that certain foods weren’t provided that she believes are necessary nutritionally for her.
Q. Now she’s ....
MS. [M.S.]: (Discernible) right.
[Emphasis added.]
B. LEGAL FRAMEWORK
1. Capacity to consent to treatment
[15] In order to put the discussion that follows in its proper context, it is important to review the relevant legal framework and the applicable statutory provisions.
[16] The test for capacity to consent to treatment is set out in section 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”):
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.
[17] Subsection 4(2) of the HCCA provides that a person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. The presence of a mental disorder cannot be equated with incapacity: Starson v. Swayze, 2003 SCC 32 at para. 77 (“Starson”).
[18] In Starson, the Supreme Court of Canada made the following points with respect to the second criterion in subsection 4(1) of the HCCA, i.e. the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision (at paras. 78-81):
a. It requires the patient to be able to apply the relevant information to their circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
b. The HCCA requires a patient to have the ability to appreciate the consequences of a decision, but it does not require actual appreciation of those consequences.
c. In practice, the determination of capacity should begin with an inquiry into 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 the treatment. If the patient shows an appreciation of these parameters — regardless of whether they weigh or value the information differently than the attending physician and disagree with the treatment recommendation — they have the ability to appreciate the decision they make.
d. However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine their ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences. Accordingly, it is imperative to inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents them from having the ability to appreciate the foreseeable consequences of the decision.
e. A patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to their own circumstances.
f. While a patient need not agree with a particular diagnosis, if it is demonstrated that they have a mental "condition",[^1] the patient must be able to recognize the possibility that they are affected by that condition.
g. A patient is not required to describe their 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 cause of that condition.
h. Nevertheless, if the patient’s condition results in them being unable to recognize that they are affected by its manifestations, the patient will be unable to apply the relevant information to their circumstances, and unable to appreciate the consequences of their decision.
[19] Section 15 of the HCCA provides that a person may be incapable with respect to some treatments and capable with respect to others, and that a person may be incapable with respect to a treatment at one time and capable at another.
[20] Subsection 32(1) of the HCCA provides that “[a] person who is the subject of a treatment may apply to the [CCB] for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.” In an application to the CCB, the CCB may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment and, in doing so, may substitute its opinion for that of the health practitioner: see subsection 32(4) of the Act. At a capacity hearing, the onus is on the attending physician to prove on a balance of probabilities that the patient is incapable: Starson at para. 77.
2. Community treatment orders and community treatment plans
[21] Sections 33.1 to 33.9 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”) deal with community treatment orders. Sections 33.1 and 33.7 provide, in part:
Community treatment order
33.1 (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.
Same
(2) The community treatment order must be in the prescribed form.
Purposes
(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.
Criteria for order
(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.
Content of order
(6) A community treatment order shall indicate,
(a) the date of the examination referred to in clause (4) (c);
(b) the facts on which the physician formed the opinion referred to in clause (4) (c);
(c) a description of the community treatment plan referred to in clause (4) (b); and
(d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations.
Community treatment plans
33.7 A community treatment plan shall contain at least the following:
A plan of treatment for the person subject to the community treatment order.
Any conditions relating to the treatment or care and supervision of the person.
The obligations of the person subject to the community treatment order.
The obligations of the substitute decision-maker, if any.
The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).
The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan.
[22] Section 39.1 of the MHA deals with applications to the CCB for review of a community treatment order. It states, in part:
Application for review by person subject to community treatment order
39.1 (1) A person who is subject to a community treatment order, or any person on his or her behalf, may apply to the [CCB] in the approved form to inquire into whether or not the criteria for issuing or renewing a community treatment order set out in subsection 33.1 (4) are met.
Review of community treatment order
(6) On the hearing of an application, the [CCB] shall promptly review whether or not the criteria for issuing or renewing the community treatment order set out in subsection 33.1 (4) are met at the time of the hearing of the application.
Confirm or revoke order
(7) The [CCB] may, by order, confirm the issuance or renewal of the community treatment order if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the [CCB] determines that those criteria are not met, it shall revoke the community treatment order.
[23] A community treatment plan is a “treatment” for the purposes of the HCA as it is specifically included in the definition of “treatment” in subsection 2(1) of the HCCA.
C. REASONS OF THE CCB
[24] The hearing before the CCB took place on August 25, 2021. The Appellant was represented by counsel at the hearing.
[25] The evidence before the CCB consisted of the oral testimony of the Appellant and Dr. Legault, as well as three exhibits: (1) a package of documents submitted by Dr. Legault which included, among other things, the completed CCB Summary template, relevant forms and various notes of Dr. Legault and others; (2) a package of documents submitted by the Appellant which included, among other things, some e-mails and letters written in support of the Appellant; and (3) an article entitled “Need of Nutrigenomic Studies for the Prevention and Treatment of Mood and Neurodegenerative Disorders” submitted by the Appellant.
[26] In its reasons, the CCB reviewed the legal test for capacity to consent set out in section 4 of the HCCA. It stated that a person is presumed to be capable to consent with respect to treatment and that the onus to establish otherwise rests with the physician.
[27] The CCB also reviewed the legal prerequisites for a community treatment order that are set out in section 33.1 of the MHA, as well as sections 33.7 and 39.1 of the MHA. It stated that the CCB must be satisfied on the basis of cogent and compelling evidence that the physician’s onus under section 33.1 has been discharged. It also noted that there is no onus on the patient.
[28] With respect to the issue of capacity to consent to treatment, the CCB found that the evidence had shown that the Appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment regarding the CTP. The CCB reviewed the evidence on this point and concluded as follows:
The panel considered all the evidence and found that it was likely that MS did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the proposed treatment with the CTP. Dr. Legault’s evidence was that MS was unable to appreciate the therapeutic benefit of the CTP or to apply the information relevant to her own circumstances (Exhibit 1). Dr. Legault’s evidence was clear, cogent, and compelling and revealed that it was likely that MS would decompensate mentally after stopping her psychiatric medications if not on the CTP. The panel found this criterion was met.
[29] With respect to the CTO, the CCB discussed each of the criteria set out in subsection 33.1(4) of the MHA and found that they had been met. The CCB stated the following with respect to the clauses in the CTP relating to the Appellant’s residence and use of marijuana:
Mobility rights
Dr. Legault was asked by MS’s counsel about certain provisions in the CTP. One of these was found in section 5 (e) of the CTP where it indicated that MS “is to reside in the catchment area of the delegated ACT Team, in order to allow for regular support and monitoring. If there is a planned move, [MS] will advise ACT Team Clinicians or delegate so that continuity of care can be provided” (Exhibit 1). Mr. Berger suggested that this provision was illegal, overbroad, and unconstitutional on the grounds that it violated MS’s mobility rights under section 6 of the Charter of Rights and Freedom [sic] (Charter). Mr. Berger qualified his statements by stating he was not necessarily raising Charter issues before the Board but asked the Board to consider whether MS’s Charter values involving mobility rights were being impacted.
Dr. Legault responded that she did not believe this provision in the CTP violated MS’s rights. The panel reviewed the provision closely and agreed with Dr. Legault’s position. MS had previously been living in the catchment area of Etobicoke, Ontario and followed by an ACTT. It appears that MS moved to Toronto, Ontario but continued to be followed by the ACTT from Etobicoke. When the panel reviewed section 5(e) it allowed for MS to plan a move to another area but stated that she ought to advise the members of the ACTT so that there could be “continuity of care.” At any rate, MS had already appeared to move to another area. Dr. Legault advised that they were in the process of handing over MS’s care and treatment to a team in Toronto. The panel did not find this provision in the CTP prevented MS from being able to comply with the CTP.
Marijuana Use
MS’s counsel also raised an issue with Dr. Legault regarding a provision in the CTP regarding the use of marijuana. Section 5(f) of the CTP included a provision that stated, “recognizing the impact of marijuana in increasing risk of relapse of [MS’s] illness, [MS] will do her best to abstain from marijuana use.” Mr. Berger’s position was that this provision should not be in the CTP because it was not enforceable, and that if Dr. Legault wanted to prevent MS from using marijuana such a statement could have been included in the clinical records. Dr. Legault disagreed with this provision stating that the language used was not mandatory but was included because a CTP is intended to be a “comprehensive” plan of treatment. Inclusion of the provision was according to the physician to assist MS from having a trigger or relapse, which had apparently occurred in the past. Dr. Legault also added in her oral testimony that if MS were to use marijuana this would not, in and of itself, lead to a Form 47 (Order for Examination) being issued. Instead, section 6 of the CTP detailed the reasons for issuing a Form 47. At the same time, if MS’s mental state were to decompensate leading to a risk of relapse as a result of consuming marijuana, some of the elements in section 6 could occur in which case a Form 47 would need to be ordered. To avoid this from occurring, the suggestion regarding MS not using marijuana was included. The panel did not find that this provision offended the CTP, and that MS was able to comply with the CTP notwithstanding.
D. POSITIONS OF THE PARTIES
1. Position of the Appellant
[30] The Appellant submits that her indigenous heritage and her connection to indigenous culture as well as Charter values should be considered as part of the standard of review analysis.
[31] The Appellant argues that the CCB erred in relying on Dr. Legault’s last assessment of her capacity, which was approximately three weeks before the hearing, and should have relied on more current observations of the Appellant’s condition. She states that the correct time to assess capacity is on the day of the hearing and Dr. Legault’s conclusions were based on historical impressions and data and were not current. The Appellant points out that Dr. Legault indicated that there had been significant improvements since the Appellant was discharged.
[32] The Appellant submits that the CCB applied the wrong legal test as it considered her actual appreciation of the reasonably foreseeable consequences of a decision or lack of decision as opposed to her ability to appreciate these consequences. She further submits that the CCB incorrectly concluded that she did not appreciate that she suffered from a mental illness. The Appellant states that she does not have to agree with the diagnosis of bipolar disorder and she has the right to choose alternative medicine. She notes that she actively sought treatment and care for her mental condition, which shows that she knew that she had a condition that needed to be treated. The Appellant also notes that she recognizes side effects of medication.
[33] The Appellant argues that the CCB incorrectly concluded that her use of cannabis had negative effects on her mental health and was an indication that she did not have capacity to consent to the CTP. According to the Appellant, the CCB conflated cannabidiol (CBD) and tetrahydrocannabinol (THC) when reaching its conclusion.
[34] With respect to the validity of the CTO, the Appellant submits that the CTP is overbroad and that the CCB should have used its discretionary power under subsection 39.1(7) of the MHA to revoke the CTO, regardless of whether any other criteria were met. The Appellant relies on the decision of the CCB in Re GB, 2021 22853 (Ont. C.C.B.) (“GB”) on this point. She argues that the CTP contains provisions that Dr. Legault does not plan to enforce as she is not legally able to do so. She points to the clause that requires her to do her best to refrain from marijuana use and expresses the view that this clause is overbroad and confusing and creates unfair obligations for the Appellant. She states that it is impossible to assess whether she is doing her best at anything. The Appellant also argues that the CTP is overbroad because it restricts her mobility rights.
[35] While this point was not raised in oral argument, the Appellant takes the position in her Factum that she “did not receive a fulsome hearing as her counsel was rushed and not allowed the opportunity to complete his questioning at the appropriate pace.” A review of the transcript of the entire hearing shows that this submission has no merits whatsoever and, accordingly, I will not discuss it further.
[36] Further, I note that the only issues before me are the finding of incapacity to consent to the CTP and the validity of the CTO. While the Appellant has raised other issues in her Factum (e.g., issues related to her pregnancy and the alleged reasons she was admitted to hospital), I do not discuss them as they are not relevant to this appeal.
2. Position of Dr. Legault
[37] Dr. Legault’s position is that the CCB applied the proper test and analysis to determine if the Appellant had capacity to consent to the CTP. She points to the evidence that the Appellant does not recognize the manifestations of her illness, the symptoms of psychosis that exist for her, and the benefits of medication and the CTP. According to Dr. Legault, the Appellant believes that she is brought to hospital for reasons other than her illness, and she does not recognize that her self-medication is not maintaining her stability. Given that the Appellant does not recognize that she is suffering from the manifestations of her illness, Dr. Legault argues that the Appellant is unable to apply the information about treatment to her own circumstances.
[38] With respect to the validity of the CTO, Dr. Legault submits that any discretion of the CCB not to confirm a community treatment order that is otherwise valid should be exercised carefully and only in exceptional circumstances. She further submits that the purpose of community treatment orders set out in subsection 33.1(3) of the MHA, i.e. to assist the patient in remaining in the community without the revolving door of rehospitalizations, must be considered. Dr. Legault argues that the CCB does not have jurisdiction to review a CTP to determine if it is overbroad, but that, in any event, the CTP in this case is not overbroad. She notes that the clauses in the CTP regarding the Appellant’s residence and use of marijuana are not mandatory and that these two points are not included in section 6 of the CTP which lists the grounds upon which a Form 47 could be issued to require the Appellant to be brought to the hospital.
[39] Finally, Dr. Legault submits that there is no basis for any aboriginal claims by the Appellant and that the Appellant has not identified any protected aboriginal rights on which she is relying in the context of the MHA or HCCA.
E. STANDARD OF REVIEW
[40] Section 80 of the HCCA sets out the statutory right of a party to a proceeding before the CCB to appeal to this Court on a question of law, fact, or both. On appeal, this Court may exercise the powers of the CCB, substitute its opinion for that of the health practitioner, the substitute decision-maker, or the CCB, or refer the matter back to the CCB with directions for a rehearing in whole or in part.
[41] Since the legislature has provided for an appeal from the decision of the CCB to this Court, the appellate standards of review apply to the CCB’s decision: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. Thus, as set out in Housen v. Nikolaisen, 2002 SCC 33, the standard of correctness applies to questions of law (including questions of statutory interpretation and those concerning the scope of a decision-maker’s authority) and the standard of palpable and overriding error applies to questions of fact and questions of mixed fact and law, unless an error of law can be extricated from the mixed question of fact and law, in which case the standard of correctness applies.
[42] The standard of palpable and overriding error was described as follows by the Court of Appeal in Farsi v. Da Rocha, 2020 ONCA 92 at para. 35:
A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte‑Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.”
[43] The fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made: see Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38 and Salomon v. Matte‑Thompson, 2019 SCC 14 at para. 33.
[44] As stated above, the Appellant submits that her indigenous heritage and her connection to indigenous culture as well as Charter values should be considered as part of the standard of review analysis. I reject this argument. Despite my many questions on this point at the hearing, counsel for the Appellant was unable to clarify his argument and articulate the relevance of Charter values to the applicable standards of review. A question is either a question of law, a question of mixed fact and law or a question of fact. In my view, Charter values have no impact on this analysis.
F. DISCUSSION
1. Capacity to consent to treatment
[45] In my view, the CCB applied the correct legal test with respect to capacity and did not make any error of law.
[46] I reject the Appellant’s argument that the CCB only considered her actual appreciation of the consequences of a decision or lack of decision as opposed to her ability to appreciate the consequences. The CCB expressly found that the Appellant did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the proposed treatment with the CTP. The CCB reviewed the evidence of Dr. Legault which clearly addressed the Appellant’s inability to appreciate the reasonably foreseeable consequences of not being on a CTP. The CCB specifically referred to Dr. Legault’s evidence that the Appellant was unable to appreciate the therapeutic benefit of the CTP or to apply the relevant information to her own circumstances. Therefore, I conclude that the CCB applied the correct test as set out in section 4 of the HCCA and Starson.
[47] Further, a review of the CCB’s decision in the context of the evidence that was before it satisfies me that the CCB’s analysis is reasonably supported by the evidence and reflects an application of the proper legal principles to that evidence. I see no palpable and overriding error with the CCB’s conclusion that the Appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision in relation to the CTP.
[48] In particular:
a. I reject the Appellant’s argument based on the fact that Dr. Legault’s last formal assessment of her capacity was approximately three weeks before the hearing. There was evidence supporting a finding of incapacity on the day of the hearing, including Dr. Legault’s evidence, her knowledge of the Appellant and her past experience with her, and the Appellant’s own evidence, including the excerpt reproduced in paragraph 14 above.
b. I also reject the Appellant’s argument that the fact that she sought some treatment shows that she knew that she had a condition that needed to be treated. The evidence at the hearing, including the Appellant’s own evidence, showed that psychosis and mood instability were not manifestations of her illness that she recognized, and the evidence did not show that the Appellant was seeking to address these manifestations of her illness through other treatments.
c. A review of the CCB’s reasons for decision does not support the Appellant’s argument that her use of cannabis had any impact on the CCB’s finding of incapacity.
[49] Finally, I note that the fact that the Appellant was the designated person to make treatment decisions about her partner after he suffered a cardiac arrest is neither here nor there. As stated above, a person may be able to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to certain treatments but not others. In other words, the fact that the Appellant may be able to consent to treatment with respect to her partner’s physical illness does not mean that she is able to consent to treatment with respect to her own mental illness.
[50] Thus, I find that the CCB did not make any error of law or any palpable and overriding error in finding that the Appellant was incapable of consenting to the CTP.
2. Validity of the CTO
[51] The Appellant’s position on this appeal is not that the CCB should have revoked the CTO because it did not comply with the criteria set out in subsection 33.1(4) of the MHA. Rather, the Appellant submits that the CCB erred in failing to exercise its discretion not to confirm the CTO under subsection 39.1(7) of the MHA on the basis that the CTP is overbroad.
[52] I find it unnecessary to address Dr. Legault’s arguments as to whether the CCB has, in fact, the discretion not to confirm an otherwise valid community treatment order under subsection 39.1(7) and, if so, what the scope of that discretion is. Assuming for the purpose of this appeal that the CCB has some discretion under subsection 39.1(7), I find that it did not make any error in exercising its discretion to confirm the CTO in this case.
[53] The Appellant does not argue that the CCB exercised its discretion on the wrong principles, and she has not identified any general legal principles that the CCB failed to apply or follow. Therefore, the applicable standard of appellate review on this issue is palpable and overriding error.
[54] I see no palpable and overriding error in the way the CCB interpreted the CTP, in particular the clauses pertaining to the Appellant’s ability to move and use of marijuana, which are alleged to be overbroad by the Appellant.
[55] With respect to the Appellant’s ability to move under the CTP, the CCB concluded that the only obligation of the Appellant under the CTP was to advise of any planned move to ensure continuity of care. As noted by the CCB, this interpretation is supported by the fact that the CTP contains a separate provision recognizing the Appellant’s recent move and the steps that were being taken to transfer her care and treatment to a different team. It was open to the CCB to adopt such an interpretation and to find that the Appellant’s “mobility rights” were not infringed.
[56] With respect to the clause in the CTP regarding the use of marijuana, it was also open to the CCB to interpret this clause as not being mandatory and as being included in the CTP to assist the Appellant in avoiding a relapse. The CCB turned its mind to the issue of whether the use of marijuana on the part of the Appellant could result in an order that she be brought in hospital for a psychiatric examination pursuant to a Form 47, but the CCB noted that the use of marijuana was not among the grounds listed in section 6 of the CTP.
[57] Thus, I see no palpable and overriding error in the manner in which the CCB interpreted the relevant provisions of the CTP and in its decision to uphold the validity of the CTO. The CCB’s conclusions were available based on the evidence before it.
[58] As stated above, the Appellant heavily relies on the case GB in support of her argument that the CTP is overbroad.
[59] In GB, the CCB found that the physician’s evidence satisfied all of the criteria for the renewal of the community treatment order in that case, but it nevertheless revoked the community treatment order on the basis that the community treatment plan was overly broad and patently unfair to G.B. The CCB stated that its decision to revoke the community treatment order was based on the discretionary power in subsection 39.1(7) of the MHA to revoke a community treatment order even though the criteria in subsection 33.1(4) were met. The only reason relied upon by the CCB to find that the community treatment plan was overbroad was that the plan required G.B. to take medications with respect to which he had not been found to be incapable to consent. The physician conceded that these medications should not have been included in the community treatment plan. According to the terms of the community treatment plan, if G.B. stopped taking the medications that he was legally capable to refuse to take, the physician could issue a Form 47 allowing the police to apprehend G.B. and bring him to the hospital. The CCB stated that it was not enough for the physician to say that he never intended that condition to be in the community treatment plan and he had no intention to force G.B. to take these medications. The CCB’s view was that the community treatment plan was ambiguous and G.B. could reasonably claim that it was confusing and unfair.
[60] The situation in this case is not like in GB. The CTP in this case does not include any medication with respect to which the Appellant is capable to consent. Further, the impugned clause in GB was mandatory and, based on the wording of the community treatment plan, could lead to the issuance of a Form 47 allowing the police to apprehend G.B. and bring him to the hospital. This is not how the CCB interpreted the impugned clauses in this case, as discussed above. Thus, GB is easily distinguishable.
[61] In light of the foregoing, I find that the CCB did not make a palpable and overriding error in upholding the validity of the CTO and in not exercising its discretion not to confirm the CTO on the ground that the CTP was overbroad.
G. CONCLUSION
[62] For the reasons set out above, I dismiss the appeal.
[63] Neither party is seeking costs of this appeal. As such, I make no order as to costs.
Vermette J.
Released: July 7, 2022
COURT FILE NO.: CV-21-00668691-0000
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.S.
Appellant
– and –
DR. SUZANNE LEGAULT
Respondent
REASONS FOR JUDGMENT
VERMETTE J.
Released: July 7, 2022
[^1]: Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology: see Starson at para. 79.