ONTARIO SUPERIOR COURT OF JUSTICE
RE: G.A., Appellant
-and-
Dr. David Kantor, Respondent
BEFORE: Robert Centa J.
COUNSEL: Eyitayo Dada, for the appellant
Nadia Marotta, for the respondent
HEARD: June 24, 2022
ENDORSEMENT
1G.A. appeals a decision of the Consent and Capacity Board issued on October 28, 2021, which found that he was incapable in respect of a community treatment plan (“CTP”) and antipsychotic medications.
2I find that the Board committed a palpable and overriding error when it upheld Dr. Kantor’s finding that, on September 21, 2021, G.A. lacked capacity to consent to the CTP and to consent to treatment in relation to antipsychotic medications. While Dr. Kantor was certain that he had discussed the benefits and consequences of the proposed treatment with G.A. on many occasions over the course of their treating relationship, he could not say with certainty that he did so on September 21, 2021. His note of the assessment did not record that he provided that information and he fairly conceded that he was not in a position to offer any evidence about what happened on that day that went beyond what was in the note. The failure to provide G.A. with information about the benefits and consequences of the proposed treatment on September 21, 2021, means that the presumption of capacity to consent has not been displaced.
3In addition, the evidence is clear that Dr. Kantor signed the CTP before he assessed G.A. on September 21, 2021. I find that this is a fundamental defect in the CTP. It defeats the purpose of the CTP if it is developed without the involvement of its subject and before an assessment is made regarding whether or not the person is capable to consent to the treatment or any part of it that is described in the CTP.
A. Facts
4G.A. is a 27-year-old single man. He lives in Mississauga, Ontario, with his mother who is his substitute decision-maker. He currently works at Canadian Tire and also receives support under the Ontario Disability Support Program. He has been diagnosed with the mental health condition known as schizophrenia.
5For the past six years, Dr. Kantor has served as the treating psychiatrist for G.A. through Services and Housing in the Province (“SHIP”) Mississauga, a community mental health agency.
6Since his first hospital admission in late 2013, G.A. has been admitted to hospital several times for observation, diagnosis, and treatment. From time to time, G.A. has not complied with his medication. Sometimes, when he is non-compliant with his medication he has presented as highly agitated, intimidating, and threatening. In April 2021, after Dr. Kantor reviewed G.A. in his office, G.A.’s level of agitation escalated significantly. He struck a plexiglass barrier, broke a window, and attempted to strike a staff member.
7From time to time, Dr. Kantor has concluded that G.A. has lacked insight into his illness and the need for treatment and, therefore, capacity to consent to anti-psychotic medication and other elements of his treatment program. For this reason, Dr. Kantor has issued at least six Community Treatment Orders (“CTO”) that incorporated a CTP. The CTO issued by Dr. Kantor immediately before the one reviewed by the Board in this case, was set to expire on October 14, 2021.
8On September 20, 2021, Dr. Kantor (as monitoring psychiatrist), G.A.’s mother (as substitute decision maker), and Darrell Patey (SHIP Mississauga Assertive Community Treatment Team Coordinator) signed a CTP for G.A. They signed to indicate that “We…have participated in the developing this Community Treatment Plan for [G.A.] and agree to the above conditions.” On September 21, 2021, Genevive Divinagracia (CTO Coordinator) signed the form. There was space on the CTP for G.A. to sign to indicate that “I…have reviewed this Community Treatment Plan”, but that space was blank on the copy in the record of proceedings.
9Among other obligations, the CTP required G.A. to:
a. attend appointments with Dr. Kantor every two to six weeks for ongoing psychiatric follow-up;
b. meet with the Assertive Community Treatment Team once per week, either in person or by telephone;
c. take antipsychotic medications prescribed by Dr. Kantor, which at the time was Clopixol up to 400 mg by intramuscular injection every two weeks, but could be adjusted as clinically appropriate, “agreed upon by [the substitute decision-maker] and discussed with G.A.; and
d. have blood work done as clinically indicated and ordered by Dr. Kantor.
10In the afternoon of September 21, 2021, Dr. Kantor assessed G.A. by telephone. Dr. Kantor’s note of that call indicates that he advised G.A. that the CTO was up for renewal and that G.A. had no questions about it. Dr. Kantor reminded G.A. that the plan required him to remain in contact with the care team and to take medication. The note indicated that Dr. Kantor reviewed the most significant common adverse effects of antipsychotic medication and that Dr. Kantor concluded that G.A. remained incapable with respect to giving or refusing consent to his medication or the CTP.
11On September 21, 2021, Dr. Kantor issued a notice of intention to issue or renew a CTO (Form 49 under the Mental Health Act) to G.A. The Form 49 stated that on September 21, 2021, Dr. Kantor determined that G.A. was incapable with respect to giving or refusing consent to a proposed CTP. The Form 49 also described the development of the CTP:
A community treatment plan must be developed with you or with your substitute decision-maker (where applicable) and any other health practitioners or persona involved in your treatment or care and supervision.
A copy of the community treatment plan developed for you is attached to this notice.
During the 72 hours prior to entering into the community treatment plan, I examined you and am of the opinion that
You are suffering from mental disorder such that you need continuing treatment or care and continuing supervision while living in the community, AND
You meet the criteria for the completion of an application for psychiatric assessment, if you are not currently a patient in a psychiatric facility, AND
If you do not receive continuing treatment or care and continuing supervision while living in the community, you are likely, because of mental disorder, to cause serious bodily harm to yourself or another person or to suffer substantial mental or physical deterioration of yourself or serious physical impairment of yourself, AND
You are able to comply with the community treatment plan contained in the community treatment order, AND
The treatment or care and supervision required under the terms of the community treatment order are available in the community.
12On September 23 and 24, 2021, G.A. and his substitute decision-maker received rights advice with respect to the Form 49. On October 4, 2021, Dr. Kantor signed a CTO for G.A. Dr. Kantor set out his opinion that G.A. would suffer substantial mental deterioration without continuing treatment and supervision in the community and added that: "Patient demonstrates no insight into his illness, nor into the need for adequate treatment. This has led to non-compliance with treatment and consequent severe deterioration."
13On September 24, 2021, G.A. applied to the Board to review of Dr. Kantor’s finding that he was incapable with respect to the “treatment of mental disorder” and also applied to review the CTO. The Board heard both issues on October 28, 2021. The evidence at the hearing comprised a 51-page exhibit of medical records, and the oral evidence of Dr. Kantor and G.A., who was represented by counsel.
14On October 28, 2021, the Board issued two decisions. First, the Board confirmed Dr. Kantor’s finding that G.A. was incapable with respect to the treatment. Second, the Board determined that “the criteria for issuing or renewing the Community Treatment Order set out in the Mental Health Act were not met at the time of the hearing. The Community Treatment Order is hereby revoked.”
15The Board was requested to provide reasons for its decisions. On November 5, 2021, the Board issued its reasons for decision.
16The Board dealt first with the issue of G.A.’s capacity to consent to treatment. The Board noted that a person is presumed to be capable to consent to treatment and that the burden was on Dr. Kantor to demonstrate that G.A. was not capable within the meaning of s. 4(1) of the Health Care Consent Act, 1996, c. 2, Sched. A (“HCCA”).
17The Board accepted that G.A. was able to understand information relevant to making a decision about the treatment in question.
18The Board then held that Dr. Kantor had established that G.A. was unable to appreciate the reasonably foreseeable consequences of a decision or a lack of decision about the treatment in question. The Board reviewed the evidence of Dr. Kantor’s treatment of G.A. from 2015 to 2021. The Board reviewed the note of Dr. Kantor’s telephone call with G.A. on September 21, 2021, and his evidence about his observations of G.A. The panel concluded that Dr. Kantor had met his burden and found on a balance of probabilities, that G.A. was incapable of consenting to the antipsychotic medications and the CTP.
19The Board stated that the onus was also on Dr. Kantor to establish that all the statutory criteria for issuing a CTO had been met. The Board also held that there was compelling evidence that G.A. was likely, because of mental disorder, to suffer substantial mental deterioration if he did not receive continuing treatment or care and continuing supervision while living in the community. The Board was also satisfied that all the remaining criteria for issuing the CTO were met and summarized its findings as follows:
For the foregoing reasons, the panel unanimously found that the criteria for renewal of the CTO were met. Further, the panel unanimously upheld the finding that [G.A.] was incapable of consenting to treatment, specifically the Community Treatment Plan and antipsychotic medications.
20The reasons for decision issued on November 5, 2021, cannot be reconciled with the decision of the Board released on October 28, 2021, which stated “the criteria for issuing or renewing the Community Treatment Order set out in the Mental Health Act were not met at the time of the hearing. The Community Treatment Order is hereby revoked.”
21On November 9, 2021, the Board released revised reasons for decision, which concluded that Dr. Kantor did not examine G.A. within the 72-hour period before he signed the CTP and, therefore, the CTO must be set aside. There is nothing in the record before me to explain what caused the Board to issue amended reasons. There were not many amendments, but the amendments they made were extremely significant. The Board’s amended reasons do not explain these changes and do not mention whether or not these changes affected any other parts of its analysis.
B. Appeal Route and Standard of Review
22G.A. appealed the Board’s decision to confirm the CTP and to find that he was incapable in respect of the proposed CTP and antipsychotic medications. This is a statutory appeal pursuant section 80 of the HCCA.
23Subsection 80(1) provides that a party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both. The court has very broad powers on appeal. Pursuant to s. 80(10), the court may exercise all the powers of the Board, substitute its opinion for that of a health practitioner, a substitute decision-maker, or the Board, or refer the matter back to the Board with directions, for a rehearing in whole or in part.
24Because this case involves a statutory appeal from an administrative decision-maker, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and mixed fact and law: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 29; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 33, 36-52.
25In Hydro-Québec v. Matta, 2020 SCC 37, 450 D.L.R. (4th) 547, at para. 33, the Supreme Court of Canada explained the meaning of a palpable and overriding error:
An error is palpable if it plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result. As Morissette J.A. so eloquently put it … “a palpable and overriding error is in the nature not of a needle in the haystack, but of a beam in the eye. And it is impossible to confuse these last two notions”. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see.
26In Farsi v. Da Rocha, 2020 ONCA 92, 444 D.L.R. (4th) 197, at para. 35, the Court of Appeal described the palpable and overriding error standard in this way,
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.”
C. Capacity to Consent to Treatment
27I find that the Board made a palpable and overriding error in finding that Dr. Kantor displaced the presumption of capacity. Dr. Kantor could not recall if he provided G.A. with information relevant to making a decision in respect of the CTP and antipsychotic medications. His notes contained no reference to such advice. The Board committed a palpable and overriding error in finding that he provided that information on the day of the assessment.
28Under Ontario law, a person is presumed to be capable with respect to treatment: HCCA, s. 4(2). This preserves the value of individual autonomy. A diagnosis of mental disorder is not to be conflated with incapacity and, without more, does not remove capacity and autonomy. The law is clear that a person may be incapable with respect to some treatments and capable with respect to other treatments. A person can also be incapable with respect to a treatment at one time and capable with respect to that same treatment at another time: HCCA, s. 15.
29Under Ontario law, only where it can be shown that a person is unable to understand relevant factors and appreciate the reasonably foreseeable consequences of a decision (or lack of a decision) treatment can be imposed: Starson v. Swayze, 2003 SCC 32, 1 S.C.R. 722, at para 10. The onus to disprove capacity rests on the physician: HCCA s. 4(2). The test for capacity is set out in s. 4 of the HCCA:
A person is capable with respect to a treatment…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.
30In this case, Dr. Kantor conceded, and the Board found, that G.A. was capable of understanding the information that is relevant to making a decision about the treatment. This appeal turns on the second part of the test, whether or not G.A. was able to appreciate the reasonably foreseeable consequences of his decision or lack of decision.
31The leading case on s. 4 of the HCCA remains the Supreme Court’s decision in Starson. In Starson, Justice Major explained the physician must provide evidence of the nature and purpose of the proposed treatment, the foreseeable benefits and risks associated with the treatment, and the expected consequences for the patient if the patient does not follow the treatment: see M.S. v. Legault, 2022 ONSC 4035, at para. 18.
32However, 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.
33At the Board hearing, Dr. Kantor testified that on September 21, 2021, he found G.A. incapable to consent to the CTP and to treatment in relation to antipsychotic medications. Dr. Kantor then tendered the 51-page exhibit that contained all of his clinical notes and stated that he had nothing further to add. The exhibit contained Dr. Kantor’s note from the September 21, 2021, telephone call with G.A. It read as follows:
Was successful in reaching the patient by phone today.
It was afternoon but he had been sleeping. He says that his sleep pattern varies but that does not bother him.
His tone throughout the appointment was calm.
Denies hearing voices, denies troublesome thoughts. He did not spontaneously voice bizarre ideation nor demonstrate a thought disorder.
He did not cite adverse effects of medication.
When asked specifically he said that he does not believe that he would feel differently without antipsychotic medicine. Shortly after, he said if he was attacked he would not be able to defend himself because the medication would stifle his instinct to do so.
He was advised that his CTO is up for renewal. He had no questions about it. I reminded him that the plan requires that he maintain communication with the team and myself and take medication. I reviewed with him the most significant common adverse effects of antipsychotic medicine including movement symptoms and metabolic signs.
He does not find contact with the team essential to his mental health.
Patient continues to lack insight into his illness and need for adequate treatment. This accounts for his inability to appreciate the consequences of being involved in or not being involved in treatment and thus he remains incapable to make consent decisions regarding antipsychotic medicine and his community treatment plan.
Plan-continue renewal process for CTO; appointment 2 months.
34The note clearly reflects that Dr. Kantor reviewed with G.A. the “most significant common adverse effects of the antipsychotic medicine.” There is, however, no record that Dr. Kantor reviewed the benefits of taking the antipsychotic medication or the consequences of not taking the antipsychotic medication. This can be contrasted with Dr. Kantor’s notes from an August 26, 2019, appointment with G.A. and his mother:
I reviewed with them the requirements of the patient's community treatment plan. Patient did not want to sign it. He was reminded that we feel medication is definitely helpful to him as is his contact with the team-and that without medication and support in the community, he would relapse. He said that he needs neither the team nor the medication. I discussed with them potential adverse effects of his medications including movement symptoms, and metabolic signs, and described some of these signs and symptoms.
35Counsel for G.A. pressed Dr. Kantor for his best recollection of whether he discussed the benefits and consequences of the proposed treatment with G.A. on September 21, 2021, or if he could only say that he had discussed those items with G.A. on other occasions:
Counsel: Now, in respect of his incapacity as it relates to antipsychotic medication, did you have that discussion with him; did you talk to him about the benefits and the consequences in terms of taking or not taking antipsychotic medication?
Dr. Kantor: Well, just keep in mind; it's important; I know this is a one-time meeting but I've known [G.A.] for about five years and we've discussed this issue numerous times. He's fully aware; he's heard me say many times that if he does not receive antipsychotic medicine his mental state will deteriorate; and I respect his opinion; he disagrees with that, but, yes, he's certainly aware that that's my belief, that without medication he will deteriorate.
Counsel: So was that discussed with him on the 21st of September?
Dr. Kantor: I'm just looking at that right now; I don't see that I wrote that but I'm quite sure that it came up; and as I've said, it's come up many, many times in the past.
Counsel: Okay. So what exact information did you give to him in respect of the consequences and benefits around treatment?
Dr. Kantor: I'm assuming you're referring specifically to the September 21 appointment or do you mean throughout ---
Counsel: I'm referring to your last assessment.
Dr. Kantor: I understand -- I would refer to the note, okay? But I do want to stress this is probably about the tenth renewal that we have and [G.] and I have -- or [G.A.] and I have had many repeated conversations about my beliefs about the medicine and his. So I can't say that -- other than what is in the note of September 21, I can't really comment on what else may have been said. I wouldn't necessarily recall either. But that issue, those topics have been discussed many times over. [emphasis added]
36The chair of the panel asked a follow up question about Dr. Kantor’s typical discussions with G.A. during an assessment. Dr. Kantor repeated that he frequently discussed the pros and cons of treatment with G.A.:
Chair: So in terms of your discussion regarding the consequences and risk and benefits of no treatment, when you do an assessment on him do you typically have that discussion with him on that subject?
Dr. Kantor: About the pros and cons of treatment?
Chair: Yes.
Dr. Kantor: Frequently, yes. And I'll just mention, it just comes up naturally because much of the time Greg is making arguments as to why he may not need an injection or need medicine so I will, of course, respond, "Well, this is why you do need it and this is what happens when you're without it". He may not agree but we exchange our opinions about the pros and cons.
37I find that the Board committed a palpable and overriding error in finding that Dr. Kantor explained the benefits and consequences of the proposed treatment with G.A. on September 21, 2021.
38Dr. Kantor bore the burden of demonstrating that he discussed the benefits and consequences of the proposed treatment with G.A. on September 21, 2021. He tendered the exhibit containing the medical notes and did not provide any other evidence in chief. The note of the September 21, 2021, assessment did not record any explanation of the benefits or consequences.
39On cross-examination, when first asked if he discussed these topics with G.A. on September 21, he responded by saying he had discussed that issue with him “numerous times,” but that was clearly a reference to discussions over the course of the treating relationship, not a specific recollection of a discussion on the day in question. When pressed for his recollection of what was said on September 21, he agreed that he did not record that he provided that advice but stated that he was “quite sure” it came up.
40Most importantly, counsel then asked him for the “exact information” he would have provided to G.A. on that day. Dr. Kantor then conceded that he could not recall what may have been said the session beyond what was in the note. Essentially, he admitted that he could not offer any evidence about what he said to G.A. during the assessment on September 21 beyond the content of the note.
41Dr. Kantor was very certain that he had discussed the issue of the benefits and consequences of the proposed treatment with G.A. on many occasions over the course of their treating relationship. I accept that evidence and have no doubt that it is true. I do not think, however, that Dr. Kantor gave evidence that he provided that information to G.A. on September 21, 2021. To his credit, Dr. Kantor acknowledged that his note did not record him providing that information and that he was not in a position to offer any evidence about what happened on that day that went beyond what was in the note.
42As described in Starson, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made at the time it is being made. This includes the foreseeable benefits and risks of treatment and the expected consequences of not having the treatment. G.A.’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. His lack of appreciation may derive from causes that do not undermine their ability to appreciate consequences. In this case, G.A.’s lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the benefits and consequences of his decision at the time of the assessment.
43I find that the Board committed a palpable and overriding error by misapprehending Dr. Kantor’s evidence on this key point: Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49 (Div. Ct.), at 63. I find that there is no evidence that Dr. Kantor adequately informed G.A. of the proposed treatment’s benefits and consequences.
44This error is fatal to Board’s decisions to confirm Dr. Kantor’s findings of incapacity to consent to the CTP and incapacity to consent to treatment in relation to antipsychotic medications for G.A.
45I, therefore, quash the decision of the Board. Since Dr. Kantor did not meet his burden to establish that G.A. was incapable of consenting to treatment, G.A. is presumed at law to have been capable of making his own decisions as to treatment: M.N. v. Klukach, 2004 CanLII 6325 (ON SC), at paras. 50-53.
Community Treatment Plan
46Although it is unnecessary for my decision, I find that the Board also made a second palpable and overriding error in upholding the CTP.
47A community treatment plan is explicitly included in the definition of treatment in s. 2 of the HCCA. Therefore, a person is presumed capable to consent to a community treatment plan unless the person is found to lack capacity under the test in s. 4 of the HCCA.
48A physician may issue or renew a CTO if the criteria in s. 33.1(4) are met. I this case, the relevant provisions are found in s. 33.1(4)(c), which require the doctor to have examined the patient in the 72-hour period before the entering into the CTP. The provision states:
(4) A physician may issue or renew a community treatment order under this section if,
(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 ….
49The court has held that “strict compliance with s. 33.1(4) is required in order for the CT Plan to be developed and for the CT Order to be valid.”: J.S. v. Dr. Suzanne Legault, 2017 ONSC 5809, at para. 17. The CTP is entered into when it is signed by the doctor: Singh v. de Souza, 2009 CanLII 44122 (Ont. S.C.) at para 21.
50In the revised reasons, released on November 5, 2021, the Board found that Dr. Kantor did not examine G.A. within the 72-hour period before he signed “the document,” meaning the CTP. Pursuant to s. 33(1)(4), it is the CTP, not the CTO that must be signed within 72 hours after the examination
51Having found that Dr. Kantor did not examine G.A. within the 72-hour period before he signed the CTP, the Board revoked the CTO. I agree that the CTP does not fall automatically simply because the CTO is revoked: Re: TMP, 2017 CanLII 89404 (CCB). For example, if the physician examined the patient 96 hours before the physician signed a CTP, that would prohibit a physician from issuing a CTO but it might not affect the validity of the CTP.
52However, in this case the CTP was signed by Dr. Kantor before he examined the patient on September 21, 2021, and it appears that he had not examined G.A. since May 31, 2021.1 One of the purposes of requiring the CTP to be based on an examination within the prior 72 hours is to ensure that “the medical findings are fresh and the treatment plan is relevant to the condition of the patient.”: J.S., at para. 52; Singh v. de Souza, 2009 CanLII 44122 (Ont. S.C.).
53I find that signing the CTP before examining the patient is, in these circumstances, a fatal defect. It defeats the purpose of the CTP if it is developed without the involvement of its subject and before an assessment is made regarding whether or not the person is capable to consent to the treatment or any part of it that is described in the CTP.
54For these reasons, I find the board made a palpable and overriding error in upholding the CTP.
D. Conclusion
55For these reasons, I allow G.A.’s appeal and quash the decision of the Board. Since Dr. Kantor did not meet his burden to establish that G.A. was incapable of consenting to treatment, G.A. is presumed at law to have been capable of making his own decisions as to treatment.
56The parties agreed that there should be no costs awarded, regardless of the outcome. I thank both counsel for reaching that agreement and for their excellent written and oral submissions.
Robert Centa J.
Date: July 28, 2022
Footnotes
- The record of proceedings contains a note made by Dr. Kantor about a May 31, 2021, phone interview of G.A. but does not contain any subsequent written progress notes before September 21, 2021. Dr. Kantor testified that he assessed G.A. on July 26, 2021, but there is no note of that assessment in the record. If that assessment took place, it does not affect my decision.