COURT FILE NO.: CV-21-00658084
DATE: 2022-01-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
C.L.A.
Self-represented, for the Appellant
Appellant
- and -
DR. EBENEZER OKYERE
K. Smith, for the Respondent
Respondent
HEARD: January 19, 2022, via videoconference at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons On Appeal
Overview
[1] The appellant, "CLA", appeals the decision of the Consent and Capacity Board ("Board") dated February 16, 2021, upholding her attending psychiatrist's finding that CLA was incapable of consenting to treatment with mood stabilizers and anti-anxiety medication[^1].
[2] This hearing was conducted electronically via ZOOM videoconference and using CaseLines which presented some issues for CLA. CLA was unable to upload her appeal material to CaseLines[^2] and counsel for the respondent uploaded CLA's factum and eighteen other documents totalling in excess of 600 pages that CLA had sent to her to assist the court. During the respondent's submissions, CLA's audio failed and Ms. Smith repeated her submissions enabling CLA to reply.
[3] For the reasons that follow, the appeal is dismissed.
The Statutory Basis for the Appeal and the Standard of Review
[4] Section 80 of the Health Care Consent Act, 1996[^3] (the "Act") allows an appeal from a decision of the Board to this Court on a question of law, fact, or both. On appeal, the Court may exercise the powers of the Board, substitute its opinion for that of the health practitioner, the substitute decision-maker, or the Board, or refer the matter back to the Board with directions for a rehearing in whole or in part[^4].
[5] The question under appeal is the Board's determination of incapacity which is a question of mixed fact and law. As such the Board's decision is reviewable on the deferential standard of palpable and overriding error, absent an extricable question of law in the Board's analysis[^5].
[6] A reviewing court must also decide whether procedural fairness requirements have been met and no deference is owed to the Board on questions of procedural fairness.[^6]
The Facts
[7] On February 2, 2021, CLA was brought to an emergency department by police under a Form 2 which was initiated by her husband.
[8] Dr. Joseph, the attending physician at the hospital, placed CLA on a Form 1 Application by Physician for Psychiatric Assessment noting that CLA was "very delusional" and claiming that "husband puts poison in my food". The physician also noted that CLA's husband stated: "as patient not taking meds worsening delusions."
[9] Dr. Okyere, a psychiatrist and the respondent, assessed CLA on February 5, 2021. Dr. Okyere found CLA incapable to consent to treatment (mood stabilizers, anxiety medication) for her bipolar disorder.
[10] CLA appealed Dr. Okyere's finding of incapacity to the Board and a hearing was conducted by teleconference on February 16, 2021. By decision dated February 17, 2021, the Board confirmed the finding of incapacity with respect to psychiatric treatment and released reasons on February 24, 2021.
The Hearing
[11] CLA was represented by counsel at the hearing who was provided with the document brief for the hearing the night before the hearing. CLA raised an issue with not receiving the documents and Dr. Okyere advised the Board that CLA refused to accept the documents. The Board satisfied itself that CLA had received the documents at the commencement of the hearing and stood down to give her an opportunity to review those documents which consisted of hospital records and a four page summary ("family letter") prepared by CLA's three children and her husband of CLA's prior psychiatric history and recent mental health issues. No further adjournment was sought.
[12] Dr. Okyere testified and was cross-examined by counsel for CLA.
[13] Dr. Okyere testified that CLA's husband described unusual and unsafe behaviour by CLA including taking pictures of strangers who CLA thought were beaming rays into her home, pouring "holy water" on a stranger's car, lighting candles in the home to drive demons away, and hiring private investigators to investigate her neighbours. Dr. Okyere stated that CLA does not think that there is anything wrong with her and is not able to understand that she is mentally unwell. In his opinion, CLA's illness would likely deteriorate without immediate treatment. He diagnosed CLA is suffering from bipolar disorder.
[14] The "family letter", dated February 14, 2021, described CLA's history and noted that she had a similar episode in 2017 and that she was found incapable of making treatment decisions. Thereafter, she took her prescribed medications regularly and was well. However, in 2019, she stopped taking her medication and her condition deteriorated. The family indicated that CLA had suicidal thoughts and had attempted self-harm before. Prior to admission she complained of being bombarded by rays and covered windows with metal lids to provide protection against those rays. She attempted to hire a private investigator at a price of $5400 to investigate neighbours who she says were sending the rays to target her. She has called the police and 911 to complain about cars and neighbours who are sending out rays that were hurting her. She is also sent out emails complaining about "psychotronic harassment and Covid 19 mass murders being carried out under the guise of the pandemic."
[15] CLA did not testify.
The Board's Decision
[16] In affirming Dr. Okyere's decision that CLA was incapable of consenting to treatment, the Board weighed the evidence and applied the test as set in s. 4(1) of the Act and as set out by the Supreme Court of Canada in Starson v. Swaze[^7]. The Board unanimously concluded that CLA was unable to appreciate the risks and benefit of treatment with mood stabilizers and anti-anxiety medication.
This Appeal
[17] Although her factum raises many issues, the core of the appeal is that CLA says that the Board was wrong to conclude that she has a mental health condition requiring treatment and that she was denied procedural fairness because she was not provided with the documentation submitted by Dr. Okyere to the Board sufficiently in advance to allow her to prepare.
Analysis
[18] The Board applied the correct test under s. 4(1) of the Act as directed by the Court in Starson. There was evidence to support the Board's findings and conclusions and therefore I find no palpable and overriding error.
[19] As to procedural fairness, CLA was represented by counsel and was given an opportunity to review the documentation in advance to allow CLA and her counsel to address the issues before the Board. No request for an adjournment or more time was requested by counsel. In these circumstances, procedural requirements for this hearing were met.
Disposition
[20] Accordingly, this appeal is dismissed.
[21] The respondent does not seek costs and no costs are ordered.
"Original signed by"
The Hon. Mr. Justice W.D. Newton
Released: January 24, 2022
COURT FILE NO.: CV-21-00658084
DATE: 2022-01-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
C.L.A.
Appellant
- and -
DR. EBENEZER OKYERE
Respondent
REASONS ON APPEAL
Newton J.
Released: January 24, 2022
[^1]: Although CLA's factum and Confirmation form states that she seeks other relief including restitution of one billion dollars for 25 years of harassment, a restraining order against her husband, an order that her husband undergo mental health treatment and return certain items of personal property, that I request law enforcement to remove the criminals surrounding her home, and that her mental health records be purged or destroyed, CLA was advised at the outset of her appeal of that the Court was restricted by the statute to a review of the decision of the Board only. [^2]: In her confirmation form CLA stated that she was unable to upload her documents to CaseLines "due to cyber criminals interfering with" her documents. A subsequent email to court staff from CLA indicated that her case is against a "cyber criminal gang" who have "put surveillance on me 24/7." [^3]: SO 1996, c 2. [^4]: Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, ss. 32, 80(1), 80(10). [^5]: B.L. v. Pytyck, 2021 ONCA 67 at para 22. [^6]: Jajo v. Ontario (Transportation), 2021 ONSC 5227 at para 28, [^7]: 1 SCR 722.