Court File and Parties

COURT FILE NO.: CV-22-687113-0000 DATE: 20230605 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Chelsea Penner, Appellant -and- Dr. Tariq Munshi, Respondent

BEFORE: Shin Doi J.

COUNSEL: Russell W. Browne, for the Appellant Jennifer Arduini, for the Respondent

HEARD: May 29, 2023

Endorsement

[1] I dismissed the appeal by the Appellant on May 29, 2023. The following are my reasons.

[2] The Appellant appealed a decision of the Consent and Capacity Board (the “Board”) dated August 18, 2022. The Board upheld the finding that the Appellant was incapable of consenting to treatment with anti-psychotic medication and mood stabilizers. The Board found that the evidence in support of a finding of incapacity was clear and compelling. The Appellant argues that the benefits and consequences of the proposed treatment were not explained to her, either at the time of the assessment giving rise to the finding of incapacity or at all.

[3] I find that there is no palpable and overriding error by the Board in upholding the finding of incapacity. The Appellant was not able to appreciate the reasonably foreseeable consequences of either consenting or not consenting to treatment. Accordingly, the Appellant failed the second branch of the capacity test. There was also no evidence that that consequences of the proposed treatment were not explained to her. Hence, I dismiss the Appellant’s appeal.

Legal Test for Capacity and Standard of Review

[4] Legal Test for Capacity and Standard of Review

[5] The Health Care Consent Act, s. 80(1) allows an appeal from a decision of the Board to the Superior Court of Justice on a question of law or fact or both. The question under review is the Board’s determination of incapacity which is a question of mixed fact and law.

[6] The Board, in reviewing the facts, must determine capacity according to the law. Health Care Consent Act, s.4(1), provides,

4 (1) a person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[7] The leading case, Starson v. Swayze, 2003 SCC 32, paragraph 78, explains the determination of capacity 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…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 his circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof…

[8] The appellate standard of review for statutory appeals of administrative decisions based on questions of mixed fact and law is palpable and overriding error. It was held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. at paragraph 37, “where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable).” As cited in G.A. v. Kantor, 2022 ONSC 4434 at paragraph 26 and Farsi v. DaRocha, 2020 ONCA 92, 444 D.L.R. (4th) 197 at paragraph 35,

A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte-Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.”

No Palpable and Overriding Error in Finding of Incapacity

[9] In reviewing the Board’s Reasons for Decisions (22-3018-01, 22-3018-02), it is clear that there is no palpable and overriding error.

[10] The hearing took place on August 18, 2022 and the Board heard from three witnesses: the Respondent, the Appellant’s Father, and the Appellant.

[11] The Board considered the law, as set out above, and that the onus of proof was on the attending physician/health practitioner to prove the case. The Board noted that the standard of proof was on a balance of probabilities.

[12] The evidence submitted to the Board was that the Respondent believed that the Appellant was able to understand the information provided to her and therefore, there was no basis for any finding that the Appellant was incapable based on the first branch of test. However, the Appellant failed the second branch of the capacity test. The Appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to her treatment with antipsychotic medications and mood stabilizing medications (pages 12 and 13).

[13] The Respondent’s evidence was that the Appellant suffered from Bipolar 1 Disorder, had a history of substance use, and had a history of admission to psychiatric facilities for treatment dating back to at least 2017. The Appellant was brought to the emergency department by police on the evening of August 7, 2022 because she was exhibiting “bizarre behaviour”. The Appellant was not wearing pants and she was complaining of methane gas in her unit which she states was killing her. The police escorted her to her apartment which was in disarray and the police became concerned about her ability to care for herself. In the emergency department, the Appellant was placed on a Form 1 Application by Physician for Psychiatric Assessment and was admitted.

[14] Counsel for the Respondent submitted evidence that the Respondent’s colleague assessed the Appellant on August 10, 2022 and issued a Form 3, Certificate of Involuntary Status on the basis that without treatment, the Appellant would suffer substantial mental or physical deterioration. The Respondent further assessed the Appellant on August 16, 2022 and again on August 18, 2022 on the morning of the hearing. On each occasion, the Appellant was assessed as incapable to consent to treatment.

[15] Counsel for the Respondent noted the Board’s findings in the record, in part, as follows,

a. The Appellant did not feel she had symptoms of psychosis or mania and did not believe that she needed treatment; b. The Appellant did not believe there to be any risks of no treatment and did not believe there to be any possible benefit of treatment; c. The Appellant was unable to recognize any benefit from taking anti-psychotic medication.

[16] The Board noted at page 16,

[The Appellant] was clearly not able to recognize or appreciate that the symptoms that she suffered were manifestations of her mental illness. In the circumstances, she was not able to consider the reasonably foreseeable consequences of making a decision or not making a decision in regard to the treatment of those conditions.

Without a recognition of the symptoms which were the manifestations of her mental illness, [the Appellant] is unable to effectively weigh the risks against the benefits of choosing to take or not take medications. On that basis, the evidence to support a finding of incapacity was clear and compelling. [The Appellant] was unable to recognize the manifestations which accompanied previous relapses or illness, or that the medications that she had taken or were administered at the time had played any role in improving her condition.

[17] From that evidence, the Board determined that the Appellant failed the second branch of the test for capacity. The Appellant was unable to appreciate the reasonably foreseeable consequences of either consenting or not consenting to treatment. Accordingly, the Appellant was assessed as incapable with respect to the treatment proposed.

[18] The Appellant argued that the benefits and consequences of the proposed treatment were not explained to her, either at the time of the assessment giving rise to the finding of incapacity or at all. The evidence and the record do not support that argument.

[19] I conclude that there is no overriding or palpable error in the Board’s decision. Accordingly, I order that the Appellant’s appeal be dismissed.

[20] No costs were sought by the Respondent and so I order that no costs be payable by the Appellant.

Shin Doi J. Date: June 5, 2023