Court File and Parties

COURT FILE NO. CV-22-88767 DATE: 2023/07/25 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board pursuant to the Health Care Consent Act, 1996, S.O. 1996 c. 2, Schedule A, as amended

RE: Gina Benz, Appellant AND Dr. Naista Zhand, Respondent

BEFORE: The Honourable Justice C.T. Hackland

COUNSEL: Megan O’Brien, for the Respondent The Appellant, in person Michael Davies, amicus

HEARD: May 29, 2023 (Ottawa)

Endorsement

[1] This is an appeal pursuant to s. 80 of the Health Care Consent Act, 1996, SO 1996, c 2, Sch A, of a Consent and Capacity Board decision dated March 1, 2022. This decision confirmed the finding of Dr. Zhand that Ms. Benz was not mentally capable of providing consent or refusing consent to the treatment of her mental disorder with antipsychotic medications.

[2] Ms. Benz is self represented in this appeal. Mr. Davies has been appointed amicus to assist the court.

[3] Ms. Benz appeals this decision on the basis that the Board erred in conflating her disagreement about her diagnosis with incapacity to make treatment decisions. Amicus also raises the ground of appeal that the Board erred in not approaching the issue of whether Ms. Benz suffered from schizophrenia with an open mind. The Respondent disagrees with both of these contentions and submits that the Board made no such errors.

[4] At the time of the Board’s order, Ms. Benz was an inpatient in the Schizophrenia Unit at the Royal Ottawa Hospital under the care of Dr. Zhand and colleagues. She was participating in the inpatient recovery program. However, Ms. Benz objected to receiving anti-psychotic medications. The Public Guardian and Trustee, Ms. Benz’s Substitute Decision Maker (SDM), ultimately provided consent to treatment with two antipsychotic medications.

[5] Ms. Benz was discharged by the Royal Ottawa Hospital in May 2022. Since that time, she has been residing in the community and is no longer under the care of Dr. Zhand or the Royal Ottawa Hospital. She maintains her position that she does not require or consent to antipsychotic medications.

Mootness

[6] At the commencement of the hearing of this appeal, counsel made submissions on the issue of whether the issues have become moot in as much as Ms. Benz now resides in the community and has done so for a year and is no longer under Dr. Benz’s care. Both counsel have urged the court to find that Ms. Benz’s appeal is moot at this point of time. I am in agreement with this position and will order that the appeal be dismissed on this basis. I am advised that Ms. Benz has communicated to amicus that she is content with this course of action and counsel for Dr. Zhand advises her client is also in agreement.

[7] I am satisfied that this course of action is in accordance with the ruling of the Ontario Court of Appeal in Conway v. Darby, 2013 ONCA 538, which is a factually very similar case. In Conway, the court explained at paras [10] and [11]:

[10] We agree with Mr. Di Luca that Mr. Conway would suffer no prejudice if we were to quash the appeal as moot. Although s. 32(5) of the Act prevents Mr. Conway from applying for a review of a finding of incapacity for a period of six months after the final disposition of an application for review, if we were to quash the appeal as moot, Whitaker J.’s decision to uphold the Board’s finding of incapacity would constitute the “final disposition” of an application for review of a finding of incapacity pursuant to s. 32(5) of the Act. see: K.M. v. Shammi, 2012 ONSC 1102. Over six months have gone by since that decision so that, in the event of pharmacological treatment with antipsychotic medication again being prescribed, the door is open to Mr. Conway to apply for a review of any finding of incapacity to consent to any such treatment.

[11] As well, we note that s. 32(5) of the Act also gives the Board jurisdiction to grant leave to Mr. Conway to make a new application even within the six months if there has been a material change in circumstances that would justify reconsideration of Mr. Conway’s capacity. It was agreed by the parties that if there were a change in Mr. Conway’s current treatment circumstances noted above, he would clearly qualify for leave.

[8] In other words, as a result of this court’s determination that this appeal is quashed due to mootness, the Board’s March 2022 decision stands, but due to the passage of time, in future, if Ms. Benz finds herself in a position where her SDM proposes to consent to her receiving medically recommended anti psychotic medications, to which she objects, she will have a right of appeal and will not be barred from doing so under s. 32(5) of the Health Care Consent Act.

[9] There will be no costs awarded in this matter.

Justice Charles T. Hackland Date: July 25, 2023