Court File and Parties
Court File No.: CV-23-695323 Date: 2023-05-08 Superior Court of Justice – Ontario
Re: MLD, Appellant And: Dr. Regina Liu, Respondent
Before: Koehnen J.
Counsel: Eyitayo Dada for the appellant Patrick Wright for the respondent
Heard: May 2, 2023
Endorsement
[1] The appellant, MLD is a 30-year-old woman with a long-standing history of schizoaffective bipolar disorder with symptoms of disorganized thought, mood dysregulation, paranoia, grandiose delusions, and poor self-care. MLD appeals from a community treatment order approved by the Consent and Capacity Board under the Mental Health Act. She advances two fundamental grounds of appeal. First, she submits that she was not given prompt advice as required by the statute. Second she submits that the Board erred in finding that she was unable to appreciate the foreseeable consequences of a lack of treatment.
[2] The parties agree that since the Mental Health Act provides for an appeal to this court from decisions of the Board, the proper standard of review is the appellate standard of review. That is to say, the Board must be correct on questions of law but can only be overturned on questions of fact or questions of mixed fact and law for palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37; Housen v. Nikolaisen, 2002 SCC 33 at para 8, 10.
The Rights Advice Issue
[3] A patient who is subject to a notice of intention to issue or renew a community treatment order must be given rights advice “promptly”: Section 14.3 (2) General, RRO 1990, Reg 741 promulgated under the Mental Health Act RSO 1990, c M.7. The respondent, Dr. Liu, issued a notice of intention to renew the community treatment order for MLD on November 3, 2022. MLD did not receive rights advice until 15 days later on November 18, 2022.
[4] It is unclear from the appellant’s factum whether the appellant says that the standard of review on this issue is correctness or palpable and overriding error. The appellant’s factum submits that the Board fell into a legal error and made a palpable and overriding error of fact and mixed fact and law in this regard. I accept that the issue of promptness could be a pure legal question or a mixed question of fact and law, depending on whether the issue focusses purely on the meaning of prompt (legal error) or the application of promptness to the facts (mixed question of fact and law). In my view the Board committed no error, regardless of the standard applied.
[5] MLD submits that the Board has historically set aside community treatment orders when advice is not provided promptly and relies on a number of cases where the Board set aside community treatment orders when advice was delayed for periods of time that were similar to or shorter than the 15 days at issue here.
[6] I read the cases on prompt advice differently than the appellant does. In my view, “prompt” is not capable of a bright line test but depends on the circumstances of the case. I say this, in part, because “prompt” is not defined in the Act: RK (Re), 2020 ONCCB 32674 at p. 6-8; JC (Re), 2022 ONCCB 48546 at p. 10.
[7] As I read the cases, they turn less on a bright line test and more on whether the respondent can establish with clear, cogent evidence that the rights advisor took prompt steps to try to provide advice to the patient. Where the respondent introduced such evidence, the community treatment order was upheld even though it may have taken 15 days or longer to provide advice: Salem v Kantor, 2016 ONSC 7130 where 17 days remained prompt in light of an explanation for the time taken. Zhang v. King, 2019 ONSC 7394 where 14 days was prompt. MC (Re) 2022 ONCCB 87772 where an 8 day delay was prompt. The Board has also set aside community treatment orders where there was only a four day delay but where the hospital staff had made a conscious decision not to provide advice: SB (Re) 2022 ONCCB 45515 at p. 7-8 where four days was too long in the absence of an explanation. See also RK (Re), 2020 ONCCB 32674 at p. 6-8; JC (Re), 2022 ONCCB 48546 at p. 10 where, in both cases, 12 days was too long in the absence of an explanation for the delay.
[8] Here, there is clear, cogent evidence that explains the delay. The rights advisor phoned MLD and left messages beginning the day after the issuance of the Notice of Intention and continued to do so for approximately 13 days. Indeed, the rights advisor gave advice to MLD’s father, her substitute decision-maker, the following day. I note that MLD lives with her parents.
[9] After 13 days of no response, the rights advisor enquired about the phone number and discovered that he had the wrong telephone number for MLD. When he obtained the correct number, he provided rights advice the following day. The respondent physician was not alarmed by the delay in providing rights advice because MLD had told her that she would be working and could not take calls at work.
[10] In these circumstances, this is not a case of an intention to delay advice. This is a case of a rights advisor trying diligently to provide advice, drilling down when it became apparent that there was an issue with the contact information he or she had, and providing advice the day after they obtained the correct contact information.
[11] The application of promptness to the facts of this case is a mixed question of fact and law to which the standard of palpable and overriding error applies. I find the board made no such error. It applied the well established principle of requiring an explanation for any delay when assessing the concept of promptness, examined the evidence surrounding the delay and concluded that the rights advisor had, at all times, been making diligent efforts to contact MLD. I can find no palpable and overriding error in the Board’s approach or analysis. I would also uphold the Board’s decision if this part of the analysis were governed by the standard of legal correctness. The Board applied the correct test and reached a conclusion that was consistent with the approach that the Board and this court have taken in past capacity reviews. I find no legal error in that approach.
[12] The Board also noted that there was no prejudice to MLD as a result of the delay. MLD submits that this amounts to an error of law because it imports the requirement of prejudice into the analysis of promptness when the statute contains no such requirement. I find the Board’s approach was correct.
[13] The Board did not impose an absolute requirement for prejudice on the standard of promptness. Instead, the Board noted that prejudice can be a factor when considering whether advice was provided promptly. I can find no legal error in that conclusion. It strikes me as eminently sensible. In certain cases it may be that a delay of two days fails to meet the promptness requirement because of prejudice that the patient may have suffered in the interim. In other cases, advice can still be prompt even though provided long after two days. Prejudice to the patient is also relevant in determining whether the rights advisor made adequate efforts to contact the patient. In circumstances where there is no particular urgency, an ordinary approach to contacting the patient may be appropriate. In circumstances where delay prejudices the patient, it may be appropriate to require the rights advisor to take more energetic steps to contact the patient.
[14] Here, there was no particular urgency or prejudice. The community treatment order was not signed until after advice was given. There is no suggestion that the 15 days it took for the plaintiff to receive rights advice in any way delayed the ultimate hearing, affected the nature of the hearing, affected the arguments available to MLD or had a negative effect on MLD in any other way.
[15] In the foregoing circumstances I find that the Board made no error in concluding that MLD received prompt rights advice and would dismiss that ground of appeal.
The Capacity Issue
[16] The next ground of appeal is capacity. The majority of the Board concluded that MLD continued to lack capacity at the time of the hearing. The lawyer member of the board concluded that MLD had capacity at the time of the hearing.
[17] The test for capacity under s. 4(1) of the Mental Health Act requires that the patient must be able to understand information relevant to making a decision about treatment and be able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment. The Board unanimously found that MLD was able to understand information relevant to making a decision about treatment. The Board divided on the second branch of the test. The majority found that MLD was not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment. The dissenting member found that MLD was able to appreciate the foreseeable consequences of any such decision or lack of decision.
[18] MLD submits that the majority erred in several ways when coming to its conclusion. The majority’s alleged errors are subject to different standards of review. I will address each standard of review when addressing the alleged errors below.
[19] By way of summary, I find the majority made no error of any sort. At the end of the day, the difference between the majority and the minority turned on the weight they gave to different parts of MLD’s evidence at the hearing. The question of the weight to ascribe to different and potentially conflicting evidence is a question of fact to which the standard of palpable and overriding error applies. Weighing evidence is a fundamental function of the trier of fact. It would not be appropriate to interfere in the way the majority weighed that evidence when there was ample evidence on which the majority could come to the decision it did.
[20] In her submissions, MLD’s counsel focussed on those elements of the evidence which supported the assertion that the appellant was able to appreciate the foreseeable consequences of treatment decisions. There was evidence to support her capacity in this regard. Indeed, the respondent physician agreed that MLD had been making progress in this regard and was beginning to have insight into her illness and the benefits of medication. That, however, is not the test. The test is not whether the patient has elements of insight or whether the patient is making progress. The test is whether the patient has the ability to appreciate the foreseeable consequences of treatment decisions or a lack of decision.
Appreciation or Complete Appreciation
[21] The standard for capacity at issue here is that the patient be able to appreciate the foreseeable consequences of treatment or lack of treatment. The appellant submits the majority erred by importing the element of “complete” appreciation into the statute. I disagree.
[22] The Board distinguished between appreciation and complete appreciation and used the phrase complete appreciation when summarizing Dr. Liu’s evidence, not when describing the standard of capacity. The majority did not incorporate the notion of complete appreciation into that test for capacity.
Ability to Appreciate or Actual Appreciation
[23] The standard of capacity requires the patient to be able to appreciate the consequences of treatment or lack of treatment. The appellant submits the majority made an error of law when formulating and applying this test because the majority required actual appreciation of the consequences rather than merely the ability to appreciate.
[24] The distinction is somewhat nuanced by can be important. A patient who actually appreciates the foreseeable consequences of a decision or lack of decision about treatment is capable. However, the lack of actual appreciation does not automatically result in a finding of incapacity. If a patient does not have actual appreciation, one must ask why. Is it because the physician has not explained things properly (in which case a finding of incapacity might or might not follow) or is it because the patient does not have the ability to appreciate because of their mental illness (in which case a finding of incapacity will follow): Starson v. Swayze, 2003 SCC 32 at paras. 80-81.
[25] The appellant submits that the Board focussed on actual appreciation by focussing on MLD’s understanding and appreciation of her symptoms which the appellant submits amounted to a legal error. I am unable to agree.
[26] To determine whether a patient has the ability to appreciate the consequences of treatment may, at times, require an appreciation of the severity of the symptoms: K.M. v. Banik, 2020 ONSC 4829 at para. 31; Starson v. Swayze, 2003 SCC 32 at paras. 79-80. The patient must also appreciate that the symptoms affect her behaviour and thinking: KM v. Agrawal, 2021 ONSC 5748 at para. 71; Schwartz v. Gelber, 2023 ONSC 956 at para. 125.
[27] The majority then applied these principles to the facts. In doing so it focussed on MLD’s own evidence at the hearing to the effect that:
a. She has had “panic attacks” associated with work or anxiety and that medication could prevent that.
b. She has the “ability to control whether or not the symptoms come back or not…” because she is “aware when it happens, when it happens, I just chose to act out because I lost my job and then I was just…decided to lose some sense of reality and just acting whichever way.” She further described herself during these episodes as not paying attention to the time and doing her “own thing.”
[28] That testimony is evidence of an inability to foresee the reasonable consequences of treatment or lack of treatment.
[29] Although the recognition that medication could prevent the symptoms referred to in sub-paragraph 27 (a) above is helpful to establishing capacity, describing MLD’s condition as panic attacks associated with work or anxiety, materially understates the nature of her condition and therefore materially understates the foreseeable consequences of treatment or lack of treatment. The lack of treatment will not result in merely a panic attack but will result in the full onslaught of symptoms of the schizoaffective bipolar disorder from which MLD suffers, including paranoia, mood dysregulation, grandiose delusions, poor self-care and disorganized thought.
[30] The idea that MLD can control symptoms and that she chose to behave in a certain way as set out in sub-paragraph 27 (b) above, seriously underestimates the extent of her illness and materially underestimates the foreseeable consequences of a lack of treatment. If someone believes that symptoms of a schizoaffective bi-polar disorder can be controlled by her own choice, it is open to the majority to conclude that such a patient does not have the ability to appreciate the foreseeable consequences of a lack of treatment.
[31] I accept the appellant’s submission that she also provided other evidence in which she recognized the benefits of medication. That evidence is a sign of progress. At best what that Board had at that stage was evidence about MLD’s capacity that pointed in different directions. However, as Kurke J. held in Pararajasingham v. Druss, 2016 ONSC 1135:
Such a partial appreciation could not satisfy the second part of the test in s. 4(1) of the HCCA, which does not speak of an appreciation of some of the consequences. It speaks in terms of reasonably foreseeable consequences, which in the appellant’s case, must include the dangerous consequences of not taking his medication that the appellant does not acknowledge, but which can be reasonably foreseen. The legislation, as interpreted by the courts, envisages a kind of cost-benefit analysis that can only be effective if the patient is able to take into account significant and foreseeable risks inherent in a decision not to take prescribed medication. Without a full appreciation of the reasonably foreseeable risks, a patient cannot adequately weigh those risks against the benefits of choosing treatment or refusal of treatment.
[32] MLD also submits that the Board failed to consider that MLD acknowledged the manifestation of her condition. In my view, that is not a fair reading of the Board’s decision.
[33] Far from failing to consider this, the majority referred to the appellant’s recognition of her condition and its symptoms but then weighed that against her evidence to the effect that she could control whether the symptoms would return and her evidence that when she had lost her sense of reality in the past, she had done so by choice.
[34] The majority’s analysis in this regard does not amount to the legal error of importing actual appreciation into the test for capacity nor does it amount to the palpable and overriding error of ignoring or misapplying evidence. The majority applied the test of ability to appreciate, not actual appreciation. There was ample evidence available on which it was open to the majority to conclude that the appellant lacked the ability to appreciate the consequences of a lack of treatment. That fact that there was also evidence to support an improvement in the appellant’s condition does not mean that it was no longer open to the majority to find as it did. The majority was entitled to and did weigh the evidence pointing in both directions and concluded that the appellant continued to lack capacity. It made no error in doing so.
Fluctuation of Capacity
[35] MLD submits that the majority made a palpable and overriding error in failing to recognize that capacity fluctuates over time. In this regard, the appellant submits that the majority relied on a capacity assessment that was conducted on November 3, 2022, 99 days before the hearing. This, the appellant submits, does not take into account the possibility that MLD may have regained capacity between the date of the assessment and the date of the hearing.
[36] In my view, that submission does not reflect the totality of the Board’s reasons. The Board referred to and relied on the oral evidence given at the hearing by Dr. Liu and MLD. Dr. Liu testified about MLD’s condition since November and indicated that it had improved but still did not rise to the level of capacity. The Board referred to and relied on MLD’s own evidence at the hearing about how she perceived her condition at the time of the hearing. The Board expressly referred to the issue of capacity fluctuation over time at p. 18 of its reasons and concluded at p. 19 that the majority found that MLD remained incapable at the time of the hearing and referred to MLD’s evidence during the hearing to support that finding.
Substantial Mental Deterioration
[37] Next the appellant submits that the majority erred in fact and law by holding that the appellant would likely suffer substantial mental deterioration if she did not receive continuing treatment or care and continuing supervision while living in the community.
[38] The issue arises out of s. 33.1(4)(c)(iii) of the Mental Health Act which provides that a physician may issue or renew a community treatment order if the person is likely, because of a mental disorder, to suffer substantial mental deterioration without continuing treatment and supervision.
[39] The majority relied on MLD’s clinical history and Dr. Liu’s evidence in concluding that MLD would suffer substantial mental deterioration without treatment and supervision.
[40] In doing so, the appellant submits that the Board ignored her evidence about two incidents of her past clinical history. The first involved a car accident that was allegedly attributable to her medical condition which the appellant explained as being attributable to her trying to avoid hitting an animal. The second involved the appellant denying that she went out to meet men at night.
[41] Those incidents are irrelevant to the majority’s decision. The majority did not continue the community treatment because of the automobile accident or a belief that the appellant went out to meet men at night. Rather, the Board found that the evidence supported the physician’s opinion that if MLD did not receive continuing treatment she would likely suffer substantial mental deterioration.
[42] There was ample evidence on which the majority could come to this conclusion. MLD had experienced multiple admissions to hospital. Those admissions were caused by serial non-compliance with treatment when she was not subject to a community treatment order. When admitted to hospital and under treatment she improved. When she was released, she failed to adhere to treatment and deteriorated markedly. This cycle has occurred over several years. Dr. Liu testified that her interactions with MLD had been sporadic between 2018 and 2022 because of the patient’s failure to comply with treatment recommendations unless a community treatment order was in place.
[43] Dr. Liu testified that: (i) When MLD is ill, she has significantly disorganized thought, mood dysregulation, paranoia or grandiose thinking, eats poorly, sleeps poorly, poor self-care, and poor judgment. (ii) If MLD were to discontinue her antipsychotic medications, the recurrence of the symptoms of her mental illness “is a certainty.” That evidence goes well beyond whatever the patient’s explanation for two isolated events might be.
[44] For the foregoing reasons I find that the Board had ample evidence before it on which the majority could reach the conclusions it did. The majority found certain evidence more compelling. The minority found other evidence more compelling. That exercise of weighing evidence is one that finders of fact are far better able to perform than is an appellate court. I therefore dismiss the appeal without costs.
Released: May 8, 2023 Koehnen J.
[1] Mental Health Act, RSO 1990, c M.7 [2] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37; [3] Housen v. Nikolaisen, 2002 SCC 33 at para 8, 10. [4] Section 14.3 (2) General, RRO 1990, Reg 741 promulgated under the Mental Health Act RSO 1990, c M.7 [5] RK (Re) at p. 6-8; JC (Re) at p. 10 [6] Salem v Kantor, 2016 ONSC 7130 where 17 days remained prompt in light of an explanation for the time taken. Zhang v. King, 2019 ONSC 7394 where 14 days was prompt. MC (Re) where an 8 day delay was prompt. [7] SB (Re) at p. 7-8 where four days was too long in the absence of an explanation. See also RK (Re) at p. 6-8; JC (Re) at p. 10 where, in both cases, 12 days was too long in the absence of an explanation for the delay. [8] See for example Decision at p. 17 [9] See for example, Decision p. 15-16. [10] See generally: Starson v. Swayze, 2003 SCC 32 at paras. 80-81 [11] K.M. v. Banik, 2020 ONSC 4829 at para. 31; Starson v. Swayze, 2003 SCC 32 at paras. 79-80. KM v. Agrawal, 2021 ONSC 5748 at para. 71. [12] Schwartz v. Gelber, 2023 ONSC 956 at para. 125. [13] Pararajasingham v. Druss, 2016 ONSC 1135. [14] Pararajasingham v. Druss, 2016 ONSC 1135 at para. 19; followed in Woods v. Chatterjee, 2018 ONSC 73 at para. 31.