COURT FILE NO.: CV-21-00661990-0000
DATE: 20220126
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board Pursuant to the Mental Health Act S.O. 1990, chapter M.7, schedule A, as amended
AND 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
AND IN THE MATTER OF BRENDAN ANNANDALE A Resident of KINGSTON, ONTARIO
RE: BRENDAN ANNANDALE, Appellant
AND:
DR. NICHOLAS DELVA, Respondent
BEFORE: S.F. Dunphy J.
COUNSEL: Anita Szigeti and Maya Kotob, for the Apellant
Brooke F. Smith and Marie-Eve Caissy, for the Respondent
HEARD at Toronto: December 7, 2021
REASONS FOR DECISION
[1] These two Consent and Capacity Board appeals were heard together before me on December 7, 2021. The decisions appealed from, both rendered on April 10, 2021, confirmed and renewed the November 27, 2020 Community Treatment Order (or “CTO”) made in respect of Mr. Annandale and upheld a finding of incapacity made with respect to his consent to treatment with antipsychotic medications under a Community Treatment Plan.
[2] These appeals are before me pursuant to s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched, A. While the Board’s decisions are entitled to deference in view of its expertise and the advantages it possessed in hearing evidence first-hand, I am granted a wide range of jurisdiction by s. 80 of the HCCA to exercise all the powers of the Board, to substitute my opinion for that of a health-care practitioner or the Board or to refer a matter back to the Board for a re-hearing in whole or in part.
[3] The standard of review applicable to my review of the Board’s decisions is correctness as regards errors of law and palpable and overriding error as regards findings of fact or mixed questions of fact and law where there is no extricable error of law. The balancing required is a delicate one – the Legislature plainly intended to create a robust and meaningful appeal process but it also created a Board whose jurisdiction, expertise and evidence-gathering procedures are entitled to deference. My task is thus to have an eye to both principles while losing sight of neither: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 36-37.
[4] The appellant alleges no extricable errors of law on these appeals. The grounds of appeal alleged are errors of fact and law in finding the criteria for issuing a CTO existed on the date of the hearing and errors of fact and law in finding that Mr. Annandale was not capable of consenting to treatment with antipsychotic medication on that date. Accordingly, the applicable standard of review for both decisions under appeal is palpable and overriding error.
Background facts
[5] Mr. Annandale is 34 years of age. His history of mental disorders dates back to 2011. He has currently been diagnosed with schizoaffective disorder and was diagnosed with bipolar disorder in 2015. His medical history also includes substance abuse of alcohol, cannabis, cocaine and crystal meth.
(i) Previous history of mental disorder
[6] In early 2016, Mr. Annandale was admitted to hospital for examination on a Form 2. The diagnosis at the time was that of a manic episode in the context of bi-polar disorder. He was eventually discharged under a CTO and treated with an antipsychotic drug administered via an intramuscular injection.
[7] Mr. Annandale continued to receive his medication after this CTO lapsed. This state of affairs continued until early 2018 when Mr. Annandale discontinued taking the antipsychotic medication. In consequence, his condition deteriorated resulting in a further admission under a Form 2 in May 2018. This admission followed a three-week period of aggression and poor hygiene as well as daily use of methamphetamine and cannabis. Mr. Annandale was released soon afterwards. On his release, he indicated that he would follow an oral medication program in lieu of the intramuscular injections he had previously been receiving.
[8] Mr. Annandale lapsed soon after release and was once again admitted under a Form 2 on July 24, 2018, following a physical altercation with a neighbour and displays of symptoms of paranoia.
[9] He was released again in September 2018 but has been subject to a series of CTO’s with respect to his course of antipsychotic medication ever since. The respondent Dr. Delva was not the treating physician at the time of the first in the most recent series of CTO’s in September 2018. Dr. Delva found Mr. Annandale to be incapable with respect to anti-psychotic medications and renewed the CTO in March 2019, April 2020 and then November 2020, this last finding being the subject of the present appeals.
(ii) Events leading to Board hearing
[10] Mr. Annandale has not been hospitalized since his last release in September 2018. Orders for examination under the Mental Health Act, RSO 1990, c M.7 (Form 47) have however been required on several occasions to locate Mr. Annandale and administer his antipsychotic medication.
[11] The November 11, 2020 CTO of Dr. Delva was issued following an assessment performed by Dr. Delva that day. Dr. Delva was able to administer Mr. Annandale’s antipsychotic medication and perform that assessment by reason of a Form 47 issued on October 21, 2020. The result of Dr. Delva’s assessment was that the criteria for issuing the CTO pursuant to s. 33.1(4) of the MHA were found to be met and Mr. Annandale was found to be incompetent to consent to the community treatment plan (or “CTP”) and antipsychotic medications.
[12] The CTP in question required Mr. Annandale to meet with Dr. Delva or his designate monthly, to take antipsychotic medication (a monthly injection of 400mg of Abilify Maintena) as prescribed and on the consent of his substitute decision maker (his mother, Ms. Tracey Bartley). Ms. Bartley consented to the CTP and medication as Mr. Annandale’s SDM.
[13] Dr. Delva performed further assessments of Mr. Annandale on February 5, 2021 and March 5, 2021. Dr. Delva found that Mr. Annandale continued to demonstrate poor insight into his condition and denied that he needed medication or that it was helpful. Observed manifestations of his mental disorder included psychosis and delusions (evidenced by claims to be the second Messiah and claims about vast damage awards he expected to receive from court claims he would be bringing) as well as pressured speech and paranoia.
(iii) Board hearing and decisions
[14] The Consent and Capacity Board hearing was initially convened for March 22, 2021 to review the CTO and the finding of incapacity made. That hearing was adjourned on consent to March 31, 2021. At that time, a preliminary motion challenging the validity of the CTO was heard and dismissed and the substantive hearing on the CTO and capacity issues was scheduled for April 9, 2021.
[15] Dr. Delva and Ms. Bartley testified at the hearing before the Board. In addition, extensive written evidence of Mr. Annandale’s medical and treatment history was placed before the Board, including the various Form 47’s.
[16] On April 10, 2021, the Board confirmed Dr. Delva’s finding that the criteria for issuing the CTO were satisfied and found that Mr. Annandale was incapable to consent to the CTP and his treatment with antipsychotic medication The Board issued its reasons for these two decisions on April 13, 2021.
Issues to be determined
[17] The appellant raises two issues on these appeals:
a. Did the Board make a palpable and overriding error in finding that Mr. Annandale was incapable of consenting to treatment with antipsychotic medication and the Community Treatment Plan?
b. Did the Board make a palpable and overriding error in finding that the criteria for issuing a CTO were satisfied on the date of the hearing?
Analysis and discussion
(a) Did the Board make a palpable and overriding error in finding that Mr. Annandale was incapable of consenting to treatment with antipsychotic medication and the Community Treatment Plan?
[18] There is no question that the Board identified the proper test for determining capacity in this case. The issue raised by the appellant is whether the Board committed a palpable and overriding error in applying the facts to the correctly-identified legal standard.
[19] The appellant’s position was that the Board committed a palpable and overriding error in finding that Mr. Annandale was unable to make his own treatment decisions with respect to the CTP and antipsychotic medication. To support this claim, the appellant referred to the evidence of Mr. Annandale where he acknowledged that he was sick, acknowledged the benefits of his antipsychotic medication and the benefits of the CTO that helped him become consistent in his treatment. In effect, the appellant submits, the Board failed to address Mr. Annandale’s testimony adequately and erred in its assessment of the capacity of Mr. Annandale to consent at the time of the hearing by implicitly applying a standard of consistency over time to the test for capacity which under the HCCA.
[20] In Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, the Supreme Court broke down the capacity test in s. 4(1) into its two component parts (at para. 78) as follows:
Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
[21] The Board’s findings with respect to Mr. Annandale focused on the second aspect of the test – the ability of Mr. Annandale to appreciate the reasonably foreseeable consequences of the decision or lack of one. There was no allegation that Mr. Annandale was unable to understand the information relevant to his treatment decisions.
[22] I do not agree with the appellant that the simple fact that Mr. Annandale testified that he believed he was sick and acknowledged the benefits of the antipsychotic medication treatment he was receiving was effectively dispositive of the question of capacity. The Board was entitled to consider the relevant evidence, including that of Mr. Annandale, and to make its findings after weighing and considering all of it. I cannot infer a palpable and overriding error merely because the Board’s decision did not accept uncritically Mr. Annandale’s statements on the subject.
[23] The Board found that Mr. Annandale “did not acknowledge other symptoms of the mental condition from which he suffered, such as his pressured speech, anger, irritability or swearing”. The Board found that his pressured speech was evident when he gave evidence and read three poems to them and noted that he frequently swore or talked while others testified. Further, “while [Mr. Annandale] said he had a mental condition, we sensed no attachment to that admission on his part and he was unaware of his symptoms that others saw”.
[24] The evidence and the Board’s observations regarding the evidence went considerably beyond mere observations of transitory displays of frustration or even anger. While patients may quite naturally show such signs from time to time, the evidence observed by the Board was more than this. The Board had evidence of operative delusions and a history of similar symptoms. These were not “one-off” events brought about by the hearing but evidence of the continuing manifestation of an on-going mental disorder.
[25] There was ample evidence in the record to justify the conclusions reached by the Board that “since he could not recognize the manifestations of the mental condition from which he suffered, he was not able to attach information about treatment to his own condition and was therefore not able to appreciate the consequences of a treatment decision”.
[26] I can find no palpable or overriding error in the chain of reasoning leading to the Board’s conclusions. The Board correctly appreciated the test to be applied, considered the evidence before it relevant to that test and made findings that rationally support the conclusion reached in applying the evidence to that standard.
[27] The appellant suggested that the Board erred by referring to Dr. Delva’s testimony that Mr. Annandale’s acknowledgments at the hearing were not sufficient to rescind the finding of incapacity “because it was not consistent”. This, the appellant submitted, amounts to an error because the test for capacity is a point in time assessment and not one that requires consistency from one time to another: a person may be capable today even if incapable yesterday. This argument amounts to a misreading of the decision of the Board.
[28] The reference to Dr. Delva’s testimony regarding consistency was in the context of whether the acknowledgments given by Mr. Annandale as to his state of illness and the benefits of treatment might be considered “the start of insight and the return of capacity”. In this regard, Dr. Delva responded that Mr. Annandale had previously shown some insight and displayed awakening capacity “but when this happened before it did not last”. Capacity is indeed a point in time assessment but it is not undertaken without any regard to the past – prior history cautioned about attaching undue weight to what might otherwise appear to be the first shoots of Spring and a resumption of capacity. The Board properly considered this evidence in the context in which it was given.
[29] The appellant also took issue with the Board’s conclusion that it “sensed no attachment” to Mr. Annandale’s admissions regarding his mental illness suggesting that this finding amounted to a reversal of the onus of proof, requiring Mr. Annandale to demonstrate his “attachment” to the particular diagnosis made. In my view, the appellant is once again reading more into this isolated comment than it can bear. The intent of the Board is clear enough in context. The Board’s conclusion was that Mr. Annandale had only a partial understanding of the degree of his illness and that his insight into his condition was inadequate to permit him to recognize the manifestations of his illness and “to attach information about treatment to his own condition”. It was this inability that led to the conclusion that he was not able to appreciate the consequences of a treatment decision.
[30] There was ample evidence before the Board to support the conclusions it reached on the question of capacity. I have found no error in the chain of reasoning leading to the conclusion reached.
[31] I find no palpable and overriding error was made in the Board’s confirmation of the finding of incapacity and must therefore reject this first ground of appeal.
(b) Did the Board make a palpable and overriding error in finding that the criteria for issuing a CTO were satisfied on the date of the hearing?
[32] The appellant’s second ground of appeal is that the Board committed a palpable and overriding error in concluding that the criteria for issuing a CTO were satisfied on the date of the hearing. The key point of debate between the parties was the Board’s determination that Mr. Annandale’s lack of insight was “the same as it ever was”, that Mr. Annandale did not see that “without treatment the stability of [his] mental condition is evanescent” and that he would discontinue treatment without the supervision of the CTO.
[33] In effect, the appellant is repeating here the same objection made with respect to the first ground of appeal: Mr. Annandale testified that he understood that he was suffering from an illness and he understood that his medication keeps him “from going crazy”. If accepted at face value, this testimony would tend to undermine the conclusions reached by the Board regarding the criteria for issuing a CTO being satisfied at the time. However, Mr. Annandale’s testimony was far from the only evidence on this subject. The medical history of Mr. Annandale – and indeed his recent medical history – established considerable issues with regard to Mr. Annandale’s willingness to pursue treatment and the adverse impact upon him of failure to do so. Form 47’s had been resorted to recently when he declined to receive his injection and he had swiftly stopped accepting treatment and undergone a decline when released without a CTO in the past. There was significant evidence of the benefits to Mr. Annandale of a CTO and the swiftness of his deterioration without one. Mr. Annandale’s “glimmers of insight” into his own condition were insufficiently deep and long-lasting to permit him to appreciate to the degree necessary the foreseeable consequences of decisions he might make regarding his treatment.
[34] There was clear and compelling evidence before the Board that absent the CTO, Mr. Annandale would suffer substantial deterioration. I can find no evidence that the Board’s appreciation of the evidence was tainted by palpable and overriding error. This ground of appeal must also fail.
Disposition
[35] As regards the findings of fact and mixed findings of law and fact, I find that there has been no palpable and overriding error contained in either of the two decisions under appeal. Both appeals must accordingly be dismissed.
[36] I wish to congratulate the parties for the thoroughness of their written and oral arguments. The job of providing representation to appellants in this area is a vitally important one and the questions raised are difficult ones to grapple with. The bench is indebted to counsel who bring their depth of experience and talent to the task.
[37] Neither party requested costs of this appeal. In my view, this is not a case for costs and accordingly none are ordered.
S.F. Dunphy J.
Date: January 26, 2022