Court File and Parties

Court File No.: CV-22-00689168-0000 Date: 2023-01-10 Ontario Superior Court of Justice

Re: R.E., Responding Party / Appellant -and- Dr. Olusegun Omoseni, Moving Party / Respondent

Before: Robert Centa J.

Counsel: Nicholas E. Gehl, for the responding party Trevor S. Fisher, for the moving party

Heard: January 9, 2023

Endorsement

[1] R.E. is 60 years old and has a history of psychotic illness with manic features that spans several decades. He does not accept his current diagnosis of schizoaffective disorder, manic subtype vs. bipolar disorder. His condition appeared to decline in 2022, culminating in an incident on September 8, 2022, which resulted in the police taking R.E. to the the Grand River Hospital – Kitchener Waterloo, where he was admitted to the psychiatric intensive care unit.

[2] Dr. Olusegun Omoseni is the most responsible physician treating R.E. On September 9, 2022, Dr. Omoseni signed a certificate of involuntary admission for R.E. because he believed that R.E. was suffering from a mental disorder of a nature or quality that would likely result in serious physical impairment to himself. On September 15, 2022, Dr. Omoseni concluded that R.E. was incapable with respect to treatment decisions regarding anti-psychotic medication. Dr. Omoseni recommenced treatment of R.E. with injectable anti-psychotic medication.

[3] R.E. applied to the Consent and Capacity Board pursuant to sections 32 and 50 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., for a review of his involuntary status at the hospital and his capacity to consent to treatment, specifically the injection of anti-psychotic medication. The treatment of R.E. was suspended pending the board’s review: Health Care Consent Act, s. 18.

[4] On October 3, 2022, the board confirmed R.E.’s involuntary status and the finding of incapacity regarding anti-psychotic medication. On October 11, 2022, R.E. appealed the board’s decision to the Superior Court of Justice pursuant to s. 80 of the Health Care Consent Act. R.E.’s appeal has the effect of suspending the treatment: Health Care Consent Act, s. 18(3).

[5] R.E.’s appeal is scheduled to be heard on January 31, 2023.

[6] Dr. Omoseni brings this motion under s. 19(1) of the Health Care Consent Act for an order authorizing him to give R.E. intravenous anti-psychotic medication pending the final resolution of R.E.’s appeal.

[7] R.E. does not want to be injected with the anti-psychotic medication. Forcible treatment against his will is a serious infringement of his right to self-determination, liberty, and security of the person: Gunn v. Koczerginski, [2001] O.J. No 4479 (S.C.J.), at para. 8. If I grant the order sought by Dr. Omoseni, R.E. will be injected with the anti-psychotic medication, against his wishes, before his appeal is heard 22 days from the day I heard this this motion.

[8] I do not grant the order sought. Given how soon his appeal will be heard, I do not find that it is necessary to administer the treatment before the final disposition of the appeal.

Authorization of treatment pending appeal

[9] Subsection 19(1) of the Health Care Consent Act permits a physician to seek an order from the court to administer the proposed treatment before the final disposition of the appeal. Pursuant to s. 19(2), the court has the discretion to grant such an order if all the following criteria are met:

a. the treatment is likely to substantially improve the person’s condition and the condition is not likely to improve without the treatment, or the person’s condition will deteriorate without the treatment and the treatment will likely prevent the deterioration;

b. the benefit of the treatment outweighs the risk of harm to the patient;

c. the proposed treatment is the least restrictive and least intrusive treatment possible that will substantially improve the patient’s condition such that the benefit outweighs the risk; and

d. the person’s condition makes it necessary to administer the treatment before the resolution of the appeal.

[10] Dr. Omoseni has the burden to prove on a balance of probabilities that each of the four criteria in s. 19(2) has been met. Dr. Omoseni must show the treatment is necessary but does not have to establish that R.E.’s current condition constitutes a medical emergency: Biancucci-Holmes v. Hastings, 2013 ONSC 2363; Woods v Dr. Baici, 2013 ONSC 4397; Ducharme v. Hudson, 2021 ONSC 1286, motion for a stay pending appeal dismissed, 2021 ONCA.

Will the treatment substantially improve R.E.’s condition or prevent a deterioration of his condition?

[11] The evidence is clear that R.E.’s behaviour has deteriorated since mid-November. His behaviour has included the following:

a. screaming and throwing items in his room, refusing to contract for personal safety or surrender oral medications (which he had refused to take) requiring security to intervene resulting in a physical altercation in which R.E. may have injured his shoulder and ribs;

b. taking water out of the toilet, placing items in the toilet causing it to overflow and placing himself on the floor insisting that nurses attend to pick him up;

c. defecating and urinating on the floor;

d. verbal aggression towards Dr. Omoseni and staff;

e. repeatedly contacting police secondary to delusions, including that a nurse had stolen money out of his bank account, resulting in police contacting the hospital about the repeated calls;

f. acting in an aggressive and violent manner, including tearing his mattress apart, requiring physical intervention by seven staff; and,

g. behaviour towards co-patients, such as encouraging them to commit suicide, resulting in retaliatory threats and risk of attack.

[12] I accept Dr. Omoseni’s opinion that the use of long-acting injectable anti-psychotic medication will substantially improve R.E.’s condition. I accept Dr. Omoseni’s view that an injectable anti-psychotic avoids the challenges of the patient not complying with a treatment regime for oral anti-psychotic medication. I accept Dr. Omoseni’s view that R.E. may continue to deteriorate absent the treatment he recommends.

Will the benefits of the treatment outweigh the risk of harm to R.E.?

[13] The risks of treatment with the injectable anti-psychotic Invega Sustenna appear to be reasonable. I accept Dr. Omoseni’s evidence that the benefits of treatment, as outlined above, outweigh the risks of harm to R.E.

[14] Treatment with long-acting injectable anti-psychotics could result in R.E. experiencing side effects. While R.E. remains in hospital pending his appeal, the potential for side effects can be closely monitored and steps taken to address them.

Is the proposed treatment the least restrictive and least intrusive treatment that will substantially improve R.E.’s condition?

[15] I am less certain that the proposed treatment is the least restrictive and least intrusive treatment that will substantially improve R.E.’s condition.

[16] R.E. appears to be willing at the moment to take oral anti-psychotic medications. His history of non-compliance with oral anti-psychotics appears to take place largely when he is in the community, not when he is residing in hospital, particularly when he is confined there involuntarily.

[17] However, I also accept Dr. Omoseni’s evidence that the oral anti-psychotic medicines will not improve R.E.’s condition as significantly as will the injectable form of the drug and that the injectable form eliminates issues of non-compliance, which is much more likely to lead to a substantial improvement in his condition.

Is it necessary to treat R.E.’s condition before his appeal is finally resolved?

[18] I find, however, that it is not necessary to treat R.E.’s condition before his appeal is resolved. The appeal is only 22 days away. Counsel for Dr. Omoseni could not point me to any cases where an order to permit interim treatment was granted so close to the date of the appeal. If the appeal were still several months away, I might well have found that it was necessary to treat R.E.’s condition before his appeal is resolved.

[19] In Almeida v. Morgan, 2020 ONSC 2192, para. 33, Davies J. well described the very difficult question the court faces on a motion to permit treatment pending appeal:

Any order that allows a physician to forcibly treat a patient is a profound infringement of the patient’s right to liberty, self-determination, security of the person and physical integrity. It is a particularly serious matter to grant an order permitting forced treatment while the patient is challenging a finding that he is incapable of consenting to or refusing treatment. If Mr. Almeida wins his appeal and is found to be capable, he will have every right to refuse the treatment that is being proposed now, notwithstanding the potentially serious consequences of that decision. Given that a treatment order will have a very significant impact on Mr. Almeida’s rights, this Court should only exercise its discretion to make such an order if it is truly necessary. [internal citations omitted]

[20] I do not find it is truly necessary to order treatment in advance of the appeal. It may be that R.E. will continue to be subject to restraints (chemical or physical) or seclusion pending his appeal. This is obviously not desirable and is, itself, an interference with R.E.’s rights to liberty, self-determination, security of the person and physical integrity. In addition, the Health Care Consent Act contains a separate provision that allows a physician to treat a patient without their consent in an emergency.

[21] Dr. Omoseni’s evidence that R.E. is expected to improve within “three to four weeks of commencing treatment.” That means that he may not see improvement prior to the appeal. I accept that delaying the start of treatment until after the appeal also means that, if the appeal is dismissed, the court is delaying the start of any potential improvement by the same amount of time. It is a factor, however, that R.E. would not see any meaningful improvement in his health before the date of his appeal if I order the treatment to proceed in advance of his appeal.

[22] Even in these serious circumstances, I do not think it is truly necessary to compel R.E. to undergo forcible medical treatment on the eve of his appeal to challenge the findings that he is incapable of refusing treatment such treatment. Such a decision would not place appropriate weight on R.E.’s rights to self-determination, physical integrity, liberty, and security of the person.

[23] In closing, I wish to emphasize two points. First, I do not fault Dr. Omoseni for bringing this motion. He was trying to do what he believed to be in his patient’s best interests. Second, it is imperative that this appeal proceed on January 31, 2023.

[24] Both counsel advised me that they were not seeking costs of this motion and none are awarded. I thank counsel for their very helpful and focused written and oral submissions.

Robert Centa J. Date: January 10, 2023