OSHAWA COURT FILE NO.: CV-22-000209-00 DATE: 20230710 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

N. H. Appellant – and – Dr. Karen DeFreitas Respondent

Counsel: Ken. J. Berger, for the Applicant (Appellant) Gavin S. MacKenzie, for the Respondent

HEARD: April 28, 2023-virtually

APPEAL DECISION

sutherland J. :

Introduction

[1] This is an appeal from the written decision of John Hanbidge, presiding member of the Consent and Capacity Board (the Board), dated February 10, 2022, made pursuant to the Health Care Consent Act, 1996 [^1] (“the Act”). The Board found that the appellant did not have the capacity to consent to medical treatment of a mental disorder with antipsychotic medication and/or electroconvulsive therapy (ECT).

[2] The appellant contends that the decision of the Board was not reasonable and that the Board “erred at law, misapprehended the evidence, inadequately considered the evidence in erroneously finding that Mr.(H) was not capable to make his own treatment decisions.” The Board’s decision should be set aside, and this Court should determine that NH has capacity, or the matter be remitted back for consideration by different members of the Board.

[3] The respondent submits that the Board’s reasons do not disclose an error of law and that the reasons identified the correct legal test and relevant principles. The Board properly weighed the evidence and that its analysis was founded on the evidence and was entirely reasonable. The appeal should be dismissed.

[4] For the reasons that follow, I dismiss the appeal.

Factual Background

[5] The appellant was 39 years old at the time of the hearing. He immigrated from Trinidad and studied physics at Lakehead University. He was formally diagnosed with psychosis in 2008. He has been diagnosed with schizophrenia and cannabis use disorder. He was first prescribed antipsychotic medication in 2007.

[6] In 2018, he was found not criminally responsible (“NCR”) on account of a mental disorder on a charge of criminal harassment (the “index offence”) and two counts of failure to comply with a recognizance. The index offence related to the appellant contacting a woman repeatedly through Facebook. Following his NCR finding, the Ontario Review Board ordered the appellant detained in a secure forensic unit at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) and he remained there at the time of his hearing. After high school, the appellant attended university but was expelled in 2004 after being criminally charged for harassing a female student via e-mail. He subsequently attended Centennial College but left after a year due to his mental illness.

[7] The appellant was deemed incapable to consent to ECT on January 27, 2020. This finding was subsequently withdrawn after his psychiatrist decided not to proceed with ECT due to the appellant’s resistance to the treatment and the decision that it would not be of much assistance. He has been treated with various antipsychotic medication. At the time of the hearing, the appellant was receiving Risperidone. With treatment he was no longer agitated or aggressive or experiencing hallucinations. His thought processes were also organized.

[8] NH has a substitute decision maker, his mother, who was providing consent to his treatment but her consent to treatment as put forth by Dr. DeFreitas treatment has not been sought.

The Decision of the Board

[9] The hearing took place on February 7, 2022. The Board received virtual oral testimony from both the appellant and the respondent along with two exhibits, namely the Physicians Document Package CCB Summary Form and Mental Health Act Forms and the Inpatient Progress Reports.

[10] At the hearing it was conceded that the appellant met the first part of the two-part test for capacity set out section 4(1) of the Act, in that the appellant is capable of understanding the information that is relevant to making a decision about his treatment. The second part of the test was in issue, that is, is the appellant “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

[11] The Board outlined the evidence of both parties. In weighing the evidence, the Board preferred the evidence of the respondent over that of the appellant. After a detailed review, the Board found the appellant’s evidence “both incredible and unreliable, and therefore, constituted unconvincing evidence at the hearing. This finding was based on the historical information provided by Dr. DeFreitas, namely, that NH had repeatedly expressed to Dr. DeFreitas during their interactions prior to the hearing that he did not suffer from schizophrenia, and therefore, did not require treatment with any antipsychotic medication and/or ECT, coupled with NH’s waivering position at the hearing…” [^2]

[12] The Board determined that the changing position of NH that initially at the hearing he testified, that he never previously suffered from a mental illness to later changing his position that he might now suffer from mild mental illness was cervical to a finding that his testimony was not credible. The Board concluded that if anything the change of position of NH provided additional support for Dr. DeFreitas’s professional opinion concerning NH’s lack of appreciation for his mental condition and the need for the proposed treatments.

[13] The Board accepted the opinion of Dr. DeFreitas and concluded that NH was unable to weigh the potential benefits and risks of the proposed treatments and found that at the time of the hearing, “due to his mental illness, NH did not possess the ability to conduct such an evaluation in the context of his own circumstances when dealing with his mental health condition.” [^3]

Standard of Review

[14] An appeal from a Board’s decision under the Act is governed by section 80. Section 80(1) states that an appeal is on a question of law, fact or both. Section 80(10) provides broad powers that the Court on appeal may:

a. exercise all the powers of the Board. b. substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-marker or the Board and c. refer the matter back to the Board, with directions, for rehearing in whole or in part.

[15] Pure questions of law are reviewed on the correctness standard and on mixed questions of fact and law, in which there is no extricable error of law, the standard of review is palpable and overriding error. [^4]

[16] In determining palpable and overriding error standard, the Ontario Court of Appeal in Farsi v. Da Rocha [^5] stated:

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.”

Issues

[17] The issue for this Court to decide is whether the Board made a palpable and overriding error in determining that NH did not satisfy the second part of the test for capacity in section 4(1) of the Act, in that, NH could not appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Analysis

[18] This issue for this Court to decide is a mixed question of law and fact. There is no question of law that is an issue in this appeal. The standard of review for this Court to use is that of palpable and overriding error. Did the Board make such an error in determining that NH did not have the requisite capacity on the day of the hearing to decide his treatment of antipsychotic medications and/or ECT?

[19] I conclude that the Board did not.

[20] It is not disputed that NH understands and appreciates the information that is relevant in making a treatment decision. The evidence supports that NH is very intelligent. He understands the effect and side effects of the medication along with the possible health effects of ECT. NH did investigate the uses and possible negative effects of ECT. He understood the concerns to his well being if ECT is used and that his previous physician withdrew the use of ECT for that physician was not satisfied that it would have any positive effect on NH’s mental illness.

[21] However, the evidence does also show that NH does not appreciate his mental illness, the effect of his mental illness and the foreseeable consequences if he decides not to undergo the treatment put forth by Dr. DeFreitas.

[22] As the Supreme Court of Canada determined in Starson v. Swayze [^6], the leading authority of the meaning of s. 4(1) of the Act, at paragraphs 80 and 81:

80. Secondly, the Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences. The distinction is subtle but important: see L. H. Roth, A. Meisel and C. W. Lidz, “Tests of Competency to Consent to Treatment” (1977), 134 Am. J. Psychiatry 279, at pp. 281-82, and Weisstub Report, supra, at p. 249. In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; the alternative courses of action available; and the expected consequences of not having the treatment. If the patient shows an appreciation of these parameters — regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation — he has the ability to appreciate the decision he makes: see Roth, Meisel and Lidz, supra, at p. 281.

81 However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences: see the Weisstub Report, supra, at p. 249. Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability to appreciate the foreseeable consequences of the decision.

[23] I do not determine that the Board made a palpable or overriding error based on the evidence presented. The Board’s conclusion to not find the evidence of NH credible is supported by the evidence presented. NH’s testimony on his mental illness did change during the hearing. He was of the view that he did not suffer any mental illness and then pivoted to agreeing that he may have a mild mental illness. His evidence was not consistent.

[24] The Board did determine that the appellant did suffer from a mental illness, was unable to recognize that his thought process and beliefs could be manifested by his mental condition.

[25] Further, NH’s view that he would take the recommended medication only to satisfy the Board and the physicians but was not of the view that he required such medication again supports that because of his mental illness, he does not have the ability to appreciate the foreseeable consequences of his decision.

[26] Taken the historical evidence presented by Dr. DeFreitas, which was not necessarily challenged by NH, and the evidence and changing of evidence of NH, the Board’s conclusion that NH did not appreciate his behaviour as it relates to others or that due to his mental illness he lacked the ability to appreciate his decision is amply supported by the evidence presented at the hearing.

[27] I cannot conclude that the decision of the Board was “clearly wrong, unreasonable or not reasonably supported on the evidence.”

[28] Accordingly, notwithstanding the able submissions of counsel for NH, I am not persuaded that the Board’s decision should be interfered with and dismiss the appeal.

[29] I do note that as indicated in the Board’s decision the consent of NH’s substitute decision maker, his mother, is still necessary to determine whether or not the treatment recommended by Dr. DeFreitas, that is the antipsychotic medication and/or electroconvulsive therapy (ECT), should proceed.

Disposition

[30] I dismiss the appeal of NH.

Justice P.W. Sutherland

Released: July 10, 2023

Footnotes

[^1]: Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A. [^2]: Reasons for Decision, p. 21. [^3]: Ibid., p. 24. [^4]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 36-37. [^5]: Farsi v. Da Rocha, 2020 ONCA 92 at para. 35. [^6]: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 72. Also see S.H. v. Prakash, 2023 ONCA 459, at paras. 4-16.