COURT FILE NO.: CV-22-00088766-0000

DATE: 2022/08/17

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board

Pursuant to the Health Care Consent Act S.O. 1996, Chapter 2, Schedule A, as amended

RE: Linda Carre, Appellant

AND:

Barbara Jannack, Respondent

Dr. Shane English, Respondent

BEFORE: Justice J. Hooper

COUNSEL: Michael Davies, for the Appellant

Earl Atnikov, for the Respondent, Barbara Jannack

Brooke Smith and Barbara Prikrylova, for the Respondent, Dr. Shane English

HEARD: June 27^th and August 10, 2022

ENDORSEMENT

Hooper J.

[1] This is an appeal of the decision of the Consent and Capacity Board (the “Board”), rendered on February 24, 2022, with reasons provided on March 2, 2022. This appeal relates to a Form G application initiated by the Respondent, Dr. Shane English, under section 37(1) of the Health Care Consent Act, 1996 S.O. 1996, c.2, Sched. A (“HCCA”). The Board was asked to determine whether or not Ms. Barbara Jannack’s substitute decision-maker (the “SDM”), complied with section 21 of the HCCA. The Appellant, Linda Carre (“Linda”), is Ms. Jannack’s daughter and the SDM.

[2] After four days of evidence and counsel’s submissions, the Board found:

(1) Ms. Jannack was incapable of consenting to the proposed treatment; and

(2) The SDM had not complied with the principles for substitute decision-making set out in the HCCA.

[3] The Board therefore ordered that Linda, as SDM, consent to the proposed treatment by 12:00 p.m. on February 26, 2022. Linda appealed the Board’s decision, which stayed the implementation of the proposed treatment plan.

[4] Linda takes no issue with the Board’s finding that Ms. Jannack is not capable to make her own medical decisions. As a result, the only issue under appeal is whether the Board erred in finding that Linda, as Ms. Jannack’s SDM, failed to comply with the principles for substitute decision-making set out in the HCCA.

[5] The appeal is on the following grounds:

(1) The Board’s order directing consent to palliative care was unreasonable; and

(2) The Board arrived at its order via an erroneous legal framework, focusing excessively on the decision-making process of the substitute decision maker rather than on the best interests of Ms. Jannack.

[6] The appeal seeks the quashing of the Board’s decision with the substitution of a finding that, in refusing consent for palliative care, Linda complied with the provisions of the HCCA, or, in the alternative, that a new hearing of the Board be ordered before a differently constituted panel.

Decision

[7] For the reasons that follow, I find that the Board’s decision was unreasonable and should be quashed.

Background Facts

[8] Ms. Jannack is a 73-year-old woman. She is married with four children, eleven grandchildren, and fourteen great-grandchildren. She is a woman of faith and has lived through a very complicated medical history.

[9] In 1996, Ms. Jannack suffered a ruptured aneurysm. Following this aneurysm, Ms. Jannack had to be taught to do everything again: how to eat, how to talk, how to walk. This took years. But eventually, Ms. Jannack returned to almost full functioning, except for mobility difficulties with one leg, and ongoing issues with short-term memory. Ms. Jannack lived with her daughter, Linda, during her recovery.

[10] In 2015, Ms. Jannack suffered a stroke resulting in dysphagia (difficulty swallowing) and a permanent inability to walk. Following her stroke, Ms. Jannack was unable to safely live with Linda, and the family found a retirement residence in Québec where both Ms. Jannack and her husband could live together.

[11] In January 2019, Ms. Jannack suffered recurrent aspirations resulting in pneumonia. She was admitted to the Hull Hospital. During her time at the Hull Hospital, Ms. Jannack was either in the intensive care unit (the “ICU”) or a step-down ICU. While at the Hull Hospital, Ms. Jannack had a tracheostomy and a percutaneous gastroesophagostomy (“PEG”) tube inserted for feeding and in order to limit the risk of further aspiration.

[12] Due to ICU demands during COVID-19, Ms. Jannack was eventually transferred from the Hull Hospital to the Gatineau Hospital. In July 2021, due to a spike in COVID-19 cases, Ms. Jannack was again transferred, this time to St. Vincent’s Complex Continuing Care Unit (“St. Vincent’s”) in Ottawa.

[13] In October 2021, Ms. Jannack’s oxygen saturation dropped, requiring her to be transferred to The Ottawa Hospital – Civic Campus (the “Civic”) where she became a patient either in the ICU or the step-down ICU. It was at the Civic that the proposed plan of care was made, resulting in this litigation.

[14] At the hearing before the Board, Dr. English provided an overview of the care provided to Ms. Jannack by the Civic’s ICU team.[^1] The initial goal at the Civic was to focus on addressing any reversible conditions and improving Ms. Jannack’s overall health status. According to the evidence before the Board, by November 2021, the consensus of the Civic ICU team was that Ms. Jannack was approaching the end of her life, and that mechanical ventilation, and other heroic measures would not be appropriate.

[15] It is important to note that, as of November 2021, Ms. Jannack was on a “Code 1” Level plan of care. This is the highest level of care provided by the hospital and would include any and all medical interventions required by the patient. The palliative plan of care proposed by the Civic ICU team to the family in November 2021 was the opposite: only symptom and pain management would be provided. For example, even if Ms. Jannack showed signs of a minor infection, or needed routine bloodwork, no interventions or treatments would be administered. This was a complete reversal of the Code 1 Level plan of care currently in place.

[16] It is apparent from the record, and the testimony before the Board, that Ms. Jannack’s family, particularly her daughter, Linda, the SDM, and a second daughter, Monique, the only visitor allowed to see Ms. Jannack during COVID-19 restrictions, were very upset by the proposed plan of care for their mother. Both testified to a belief that the Civic ICU team—new to Ms. Jannack’s care—failed to appreciate that many of the interventions Ms. Jannack required had been in place for years, that their mother had adapted to these interventions, and that it was not in her best interest to adopt a palliative care approach at this time.

[17] The Respondent concedes that, although Ms. Jannack does not have capacity to make her own medical decisions, she can—at times—be alert, lucid, and demonstrate happiness. While she cannot recognize her doctors (who change through rotating shifts, are masked, and are strangers to her), she can recognize family and asks about her husband. Evidence was presented before the Board that Ms. Jannack could wave, blow kisses, and mouth words such as “I love you.” The Respondent also concedes that Ms. Jannack is not on any regularly administered pain medication. The ICU team is, however, very concerned that Ms. Jannack will suffer in the future if the proposed plan of care is not adopted and that, from a medical point of view, there is no benefit to continuing with medical interventions. When asked if prolonging life was a benefit, Dr. English testified that this was a “values question”.

[18] The crux of Linda’s position, as SDM, in relation to the plan of care is: “Why now?” With her mother in no apparent distress, experiencing moments of joy with her family, and given her mother’s history of a strong survival instinct, Linda pushed back against the plan of care presented to her during a family meeting on January 13, 2022, refused to consent, and asked the Civic ICU team not to give up on her mother. Dr. English put forth the proposed plan of care in writing by letter dated January 15, 2022, delivered it to Linda on that day with a 48-hour deadline to either agree, or he would initiate the process before the Board. A brief extension was provided to Linda from that original deadline but, by that point, both sides had become entrenched in their respective positions.

The Board’s Decision

[19] The Board properly cited the test for determining the patient’s best interests under s. 21 of the HCCA, which requires consideration of:

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

(i) Whether the treatment is likely to,

(ii) improve the incapable person’s condition or well-being;

(iii) prevent the incapable person’s condition or well-being from deteriorating; or

(iv) reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.

(v) Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

(vi) Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

(vii) Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

[20] In considering Ms. Jannack’s values and wishes absent a prior capable wish (s. 21(a) and (b) of the HCCA), the Board made the following findings starting at page 11 of the decision:

(1) BJ had said that she wanted to stay alive if confronted with health issues and that she did not want her family to give up on her;

(2) BJ was willing to tolerate invasive measures to a degree to continue living and to be surrounded by her family;

(3) BJ would have wanted to stop life support and heroic measures at some point, but the evidence was not clear as to when BJ would want heroic measures to stop;

(4) BJ’s family was of paramount importance to her, and she continued to experience joy at times when visited or connected to them via videoconference;

(5) BJ had a general life philosophy in which life was deeply valued – somewhat influenced by a belief that God would intervene.

[21] The Board, however, outweighed the above with the medical evidence to be considered under ss. 21(1)(c), (2), (3) and (4). At page 20 of the decision, the Board stated that it was “convinced [Ms. Jannack’s] medical condition would continue to deteriorate with or without the current heroic measures.”

[22] This finding was based upon Dr. English’s testimony that Ms. Jannack would likely survive only days, or weeks, even if the current treatment plan was maintained. Dr. D’Edigio testified that he would “be shocked if she could make it out of the ICU” under the current plan of care, which remained the highest level of care, Code 1.

Update Provided at the Commencement of the Appeal

[23] At the commencement of the hearing, the parties provided the Court with an update regarding Ms. Jannack’s condition as four months had now passed since the Board’s decision. The wording of the update had been agreed to by the parties in advance. The update was as follows:

(a) Ms. Jannack is now chronically ventilated, and the care team is not proposing to remove her from the ventilator;

(b) Ms. Jannack is now suitable to be transferred back to St. Vincent’s Hospital and is currently on a waiting list for this transfer;

(c) Should Ms. Jannack’s condition deteriorate, she may require to be moved back to the ICU.

Further Update Provided on July 14, 2022 and Through Oral Submissions on August 10, 2022

[24] On consent of all parties, counsel for the Appellant provided the following e-mail update on July 14, 2022:

(a) Ms. Jannack has been transferred from The Ottawa Hospital to St. Vincent’s.

[25] The court was unclear what impact this transfer had on the within appeal. The proposed palliative plan of care under appeal was created by doctors at the Civic. Ms. Jannack is now at a different facility, with a different care team. One would assume the physicians at St. Vincent’s could propose their own plan of care and work with the family directly.

[26] Counsel were invited to make further submissions on the impact of Ms. Jannack’s transfer from the Civic. Those submissions were heard on August 10, 2022. Counsel for Dr. English argued Ms. Jannack’s transfer from the Civic to St. Vincent’s had no impact on this appeal because St. Vincent’s was waiting for this court’s decision on whether to commence palliative care. When asked why the within appeal was not moot, counsel for the Respondent informed the court that if the current plan of care remains in place, and Ms. Jannack suffers any complications that cannot be treated at St. Vincent’s, she would be returned to the Civic ICU. As such, it is Dr. English’s position that this plan of care is still the best approach, as it will allow Ms. Jannack to remain at St. Vincent’s until she passes.

[27] The Appellant’s counsel argued that the entire foundation upon which the Board made its decision has now changed. Most of the medical evidence put before the Board suggested that Ms. Jannack would continue to deteriorate even under the current aggressive care plan; however, she has now survived for over five months and has stabilized to the point of being transferred.

[28] Counsel for both the Appellant and Respondent agreed that, aside from these updates as to Ms. Jannack’s current condition and location, this Court is to assume that everything else remains the same. As a result, the evidence remains that Ms. Jannack still experiences periods of time when she is alert and lucid, still derives observable pleasure from seeing her family, still communicates to some limited extent, and is not on any continuous pain management.

Law and Analysis

Jurisdiction and Standard of Review

[29] This appeal is brought pursuant to s. 80 of the HCCA, which grants the right to appeal a decision of the Consent and Capacity Board to the Superior Court of Justice on a question of law, fact, or both.

[30] The Court’s powers on appeal are very broad. Section 80(10) of the HCCA provides this Court with the following powers on appeal:

(b) Exercise all of the powers of the Board;

(c) Substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

(d) Refer the matter back to the Board, with directions, for rehearing in whole or in part.

[31] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (“Vavilov”), at para. 37 the Supreme Court of Canada established a new framework for the standard of review of administrative tribunals. While reasonableness is the presumptive standard of review, where the legislature has provided for an appeal to the court, as in this case, the court must apply appellate standards of review to the decision.

[32] The standard of review for an error in law is correctness. Where the scope of statutory review includes questions of fact, the appellate standard of review is palpable and overriding error (Vavilov). When an appeal involves mixed findings of fact and law, with no extractable error of law, the applicable standard is palpable and overriding error (see: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).

[33] While the Board is entitled to deference in its assessment of the evidence, as stated in Vavilov at para. 36: the requirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-making process the legislature intended to put in place. If the Board’s reasons, taken as a whole, are not tenable to support the ultimate decision, the decision is unreasonable (see R.K. v. Ahmed, 2019 ONSC 3348 citing Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 30).

The impact of the Fresh Evidence on Appeal

[34] When considering the impact of the updates provided, s. 80(9) of the HCCA sets forth what an appellate court can consider:

80(9) The court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.

[35] In M.(M.) v. M.(B.) et al. (1982), 1982 CanLII 2012 (ON CA), 37 O.R. (2d) 716 (C.A.) (“M.(M.)”), the Ontario Court of Appeal dealt with whether an appellate court should admit fresh evidence and rely upon it in the overturning of a decision. The fresh evidence in M.(M.) was a report of a psychiatrist on the issue of child abuse. The Ontario Court of Appeal held that, considering the prevailing issue in the proceeding was the best interest of the child, “it may be that it would have been wrong to refuse to admit it as it was relevant to the central issue to be decided.”

[36] I agree with the Ontario Court of Appeal in M.(M.) that, with Ms. Jannack’s best interest as the prevailing issue in this proceeding, it would be wrong not to consider whether her transfer to St. Vincent’s materially conflicts with the evidence before the Board such that it changes the evidentiary foundation for the Board’s decision, making it unreasonable. I further agree with Appellant counsel’s argument that the court can not simply shut its eyes to what has actually occurred.

Does Ms. Jannack’s transfer from the Civic to St. Vincent’s render the Board’s decision unreasonable?

[37] Having reviewed all transcripts from the witnesses who testified, the questions regarding the plan of care focused on two main topics:

(1) A strong belief that continuous mechanical ventilation was not in Ms. Jannack’s best interests given the risk of serious and painful complications;

(2) The desirability to return Ms. Jannack to St. Vincent’s, where she could be supported in palliative care, with family visitation rules that are more relaxed than the Civic ICU.

(1) Continuous Ventilation was not in Ms. Jannack’s best interest

[38] Reading the evidence of Dr. English and Dr. D’Egidio, the grim picture presented to the Board was that Ms. Jannack would suffer from imminent and painful complications if further heroic measures were undertaken. This was reiterated in the Board’s decision at page 52:

…chronic ventilation is associated with increased risk of infection, leading to shock and hypoperfusion leading to end organ failure, delirium, skin breakdown, pressure ulcers, etc. This necessitates chemical and physical restraints which propagates this cyclical process.

[39] There is no evidence that, since Ms. Jannack became continuously ventilated, any of the painful complications outlined in detail to the Board, have arisen. On the contrary, Dr. English’s and Dr. Edigio’s predictions of imminent decline have proven to be incorrect. According to Counsel for Dr. English, in her submissions on August 10, 2022, the continuous ventilation was the primary reason Ms. Jannack was able to stabilize sufficiently to be transferred to St. Vincent’s.

(2) The Goal of the Proposed Plan of Care was to enable the transfer to St. Vincent’s

[40] The witness testimony before the Board was replete with references to the desire of Ms. Jannack to be around her family. At the time the Board heard this appeal (late February 2022), the Civic was still under COVID-19 restrictions and visitation at both the ICU and step-down ICU was extremely limited. The palliative care plan was argued to be the only way in which Ms. Jannack could be discharged from the ICU and returned to a more comfortable setting with family around her.

[41] Starting at Volume 1, page 56 of the transcript:

MS. SMITH: The next point is ICU discharge. Can you describe what you mean by that?

DR. ENGLISH: Again really, just for clarity, in that as part of this care plan, the, the advanced or invasive life supports and, and things that are sort of typical of an ICU setting, would not form a part of this care plan. And so, her care needs would be able to be met elsewhere in the hospital and that that we would discharge her from the ICU, presumably back to the AMA. All [with] the goal really, of trying to get to her back to her residence, so getting her back to St. Vincent's, an environment that hopefully is familiar to her. That there's more a non-acute care setting one of a home, if you will, rather than in hospital.

Page 57:

MS. SMITH: And just to be clear, given her current level of interventions required, she cannot be transferred to St. Vincent’s at this time?

DR. ENGLISH: Right. Her care needs are too high in the context of someone who’s care plan still includes all of these invasive measures.

[42] Under cross examination, Dr. English referred to a return to St. Vincent’s as the goal of the care plan at page 131:

MR. CARTER: In your evidence though, didn’t you say one of the goals of the proposed care plan was that she, Ms. Jannack, could be discharged and go back to [St. Vincent’s]?

DR ENGISH: So, my evidence is that we should be on the care plan where that is the goal. Absolutely.

[43] Later in the evidence, the Board’s Chairperson summarized the issue in her question to Dr. English at page 174-175:

THE CHAIRPERSON: And you’ve been asked this many times and I just think I’ve gotten mixed up by the way that the different questions were posed. But you feel that she could return to St. Vincent if the care plan was – if the proposed care plan was adopted. Does her medical condition have to change for that to be safe to transfer her?

DR. ENGLISH: So I’m going to try and clarify this. So her care needs are clearly very high, I think that part has, hopefully, come out clear. And in the intent to intervene on these changes in an invasive way has precluded her abilities to move to a chronic facility because of the recurrent fluctuation in her care needs. The care plan as proposed would not have those escalations of care but rather focus on symptom management. It’s really that piece that would allow her to move to facility like St. Vincent. So, the chronic care facility at St. Vincent, where they are excellent at palliative care and end of life needs and could meet that. Whether the patient herself is in fact stable enough where she could do that, I genuinely don’t know…

THE CHAIRPERSON: Okay. So, it would take both the adoption of this care plan plus increased medical stability for her to get there?

DR. ENGLISH: Correct.

[44] It is obvious from what has transpired since the Board’s decision that Ms. Jannack did not have to be on the proposed plan of care to transfer to St. Vincent’s. Dr. English was mistaken in his evidence before the Board on this point, and the Board’s decision heavily relied upon this erroneous evidence:

Page 21: The panel determined that although BJ may want to live as long as possible, she would nevertheless not want to continue with invasive treatments indefinitely or in all circumstances. This was acknowledged by both LC and MC in their testimony. While the panel was cognizant of the importance BJ placed on being with her family and the joy she found in communicating with them or knowing that they were nearby, it also became clear that those visits had become a smaller and smaller part of BJ’s life. In the ICU she was unable to have more than one visitor, owing to pandemic precautions.

Page 22: While the proposed treatment plan may shorten BJ’s life, it was more consistent with BJ’s own definition as she could be with more family, more often. It allowed BJ a better opportunity to be with her loved ones to interact, laugh, love and be loved, if for a shorter period of time.

Later on page 22: The panel determined that the palliative treatment plan best reflected BJ’s well-being; the benefit of being surrounded by family as much as possible, if for a somewhat shorter time.

[45] I agree with Appellant counsel’s argument that the entire foundation of the evidence before the Board has now shifted. As a result, the Board’s decision is unreasonable.

[46] If the physicians at St. Vincent’s do not believe that a Code 1 Level plan of care is in Ms. Jannack’s best interest, they can create any plan of care they believe is appropriate and seek the SDM’s consent to put that plan of care in place. If the SDM and the professionals at St. Vincent’s cannot agree, a new hearing can be arranged before the Consent and Capacity Board.

Conclusion

[47] For the above reasons, the appeal is allowed, and the decision of the Consent & Capacity Board of March 2, 2022 is quashed.

Justice J. Hooper

Released: August 17, 2022

[^1]: The use of “Civic ICU team” refers to the medical professionals either in the ICU or the step-down ICU, also referred to as Acute Monitoring Area or “AMA”.