Court File and Parties

Court File No.: CV-23-00697192-0000 Date: 2023-08-03 Ontario Superior Court of Justice

Between: SBJ, Applicant (Appellant) And: Dr. Amina Ali, Respondent (Respondent in Appeal)

Counsel: SBJ, self-represented and acting in person, Appellant John McIntyre and Nicole Fielding, Lawyers for Respondent, Dr. A. Ali Mercedes Perez, Lawyer Amicus Curiae

Heard: By videoconference at Toronto: August 1, 2023

Reasons for Decision

LEIPER J.

Introduction and Background

Introduction

[1] This is an appeal from a decision of the Consent and Capacity Board (“the Board”) finding that the appellant, SBJ, is not capable of consenting to treatment in the form of mood stabilizing and antipsychotic medication. Amicus, Ms. Perez, raises two issues on appeal: first, that the transcript of the hearing before the Board is incomplete and prevents effective appellate review, and second, the Board failed to apply the correct test for capacity. SBJ seeks to overturn the Board’s finding and asks that the matter be sent back for a fresh hearing before the Board.

[2] Counsel for Dr. Ali, Mr. McIntyre submits that the appeal should be dismissed. He Submits that the Board applied the correct test, and that the gaps in the transcript do not constitute a basis because they do not cause any prejudice to the appeal rights of SBJ.

Preliminary Issue: Anonymization

[3] Ms. Perez sought an order that the case be reported by using initials in the title of proceedings and in any reporting of the case. This Court has jurisdiction to use pseudonym initials to protect the identity of parties in civil proceedings: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 135, 137; Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 2.03 and 14.06. Counsel for Dr. Ali, Mr. McIntyre, agreed that such an order should be made.

[4] I find that on balance, the order sought protects the Appellant’s privacy concerning intimate personal health information without unduly restricting the open court principles as recently affirmed by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 at para 30. These proceedings and findings are public. Only the name will be protected from publication by use of anonymization.

Background

[5] At the time of the hearing, SBJ was 32 years old and single with no dependents. He had obtained his high school diploma and later attended Sheridan College to study fitness and nutrition but did not complete the program. He had worked in several jobs in various industries starting at age 16.

[6] On March 23, 2018, SBJ was found not criminally responsible on account of mental disorder (“NCR”) on charges of robbery, using a firearm and disguise with intent.

[7] SBJ had progressed to living in the community as part of a range of privileges pursuant to a detention order made after being found NCR, at the time of the capacity decision, he had been readmitted to hospital and in late 2022, he was moved to a medium secure ward as a result of his intrusive behaviour, aggression and sexual touching of staff.

[8] SBJ has been diagnosed with schizoaffective disorder, bipolar type. Prior to his admission related to the NCR finding, SBJ had multiple psychiatric hospital admissions. He has had trials and treatments with a range of antipsychotics and mood stabilizers.

[9] At the time of the Board hearing, SBJ was being treated with 750 mg of the antipsychotic medication Quetiapine which is considered a medium to high dose. He was compliant with this treatment. Prior to Dr. Ali’s finding of incapacity, SBJ had been considered capable of making his own treatment decisions for several years and had consented to treatment with Quetiapine, including multiple dosage increases. At the time of the formal finding of incapacity, Dr. Ali was of the opinion that SBJ was not optimally treated. She described his symptoms which included paranoia, impulsivity, heightened mood, behavioural issues, incoherent thoughts, responding to internal stimuli, hyper talkativity, hypersexuality, irritability, agitation and disorganized speech. Dr. Ali testified that when during their discussions about taking medications, SBJ has stated that he does not have any symptoms.

[10] On January 13, 2023, Dr. Ali discussed potential medication changes with SBJ. He agreed to meet the following week with Dr. Ali and the pharmacist to review the options. SBJ expressed a preference to increase the dose of Quetiapine rather than transition to a different antipsychotic. On January 24, 2023, SBJ met with Dr. Ali and the pharmacist for a “thorough conversation about his past medication history”. SBJ raised concerns about side effects from previous medication trials which the records show the treatment team concluded had not been documented.

[11] On February 21, 2023, Dr. Ali reassessed SBJ’s capacity because he had not yet agreed to increase the Quetiapine dose, to change his medication to another antipsychotic, or to agree to add a second medication. SBJ reported that other antipsychotic medications “make him worse and gives him side effects.” However, he remained compliant with his current dose of Quetiapine.

[12] On February 28, 2023, Dr. Ali recommended a change in medication, which SBJ refused. Dr. Ali was concerned that the current medication was not effective and not controlling the symptoms and behaviours related to SBJ’s illness. SBJ said he preferred to remain on Quetiapine, due to past experiences with side effects on other medications. Dr. Ali found that SBJ was not able to appreciate the consequences of his decision based on his behaviour on the ward, his inability to name his symptoms, or to connect his paranoid and grandiose ideas to his illness. In the CCB summary of March 8, 2023 Dr. Ali wrote:

He is agreeing to take his current dose of quetiapine but does not agree to increase it. He cannot state how his current medication is helpful to him and does not seen [sic] the need for change. He is refusing all options and attributes this to previous history of trying many different antipsychotic/mood stabilizing medication and this resulting in side effects (that he could not name). This information is not correct, and from history he has tolerated medication well in oral and long acting injections with no reported side effects.

[13] The Board found that SBJ did not have the capacity to consent to treatment because SBJ did not have the ability to appreciate the reasonably foreseeable consequences of his decision or lack thereof.

The Law

a. The Statutory Test

[14] Section 4(1) of the Health Care Consent Act 1996, S.O. 1996, c.2, Sch. A (“the Act”) sets out the test for capacity to consent to treatment:

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.

[15] The test under s. 4(1) of the Act has two parts: 1) the ability to understand the information that is relevant to making a treatment, admission or personal assistance service decision, and 2) the ability to appreciate the reasonably foreseeable consequences of the decision.

[16] Under s. 4(2) of the Act, a person is presumed to be capable with respect to treatment. A diagnosed mental illness does not mean a person is incapable of consenting to treatment. It is important to recognize the context of proceedings such as this, which have been recognized as concerning matters of fundamental human rights and bodily autonomy. As the Court of Appeal has noted, “[f]ew medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects.”: See Fleming v. Reid, at pp. 21 and 22.

b. Judicial Interpretation of the Test for Capacity

[17] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, the Supreme Court of Canada considered the application of the test for capacity under the Act. The court found that the first branch of the test assesses an individual’s intellectual understanding of relevant information as it applies to their treatment. While an individual need not agree with a particular diagnosis, they must be able to recognize the possibility that [they are] affected by that condition: Starson at para. 79.

[18] The second branch considers the ability of an individual to evaluate the information and appreciate the consequences of their decision. It does not require that the individual choose a particular outcome as a result of the evaluation of the information. Capable individuals may make sub-optimal, even unreasonable decisions concerning treatment. The test is not the reasonableness of the choice, but the capacity to make that choice. The test balances the value of individual autonomy with the desirability of treatment and health: Starson at paras. 75-76.

c. Jurisdiction of the Court on an Appeal from the Board

[19] Section 80(1) of the Act provides a right of appeal on a question of law or fact or both. Section 80(10) of the Act gives the court on appeal the power to:

a) exercise all the powers of the Board;

b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board; and

c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

d. Standard of Review

[20] The standard of review on questions of law is one of correctness. Questions of fact and credibility findings are entitled to deference absent palpable and overriding error. On issues of mixed fact and law, the standard of review is reasonableness, unless there is an extricable error of law in the application of the law to the facts as found: See Housen v. Nikolaisen, 2002 SCC 33 at paras 5, 21-25; A.S. v Sum, 2021 ONSC 4296 at para 6-7; Gajewski v. Wilkie, 2014 ONCA 897 at para. 33.

Issues

[21] The issues in this appeal are as follows:

1. Do gaps in the hearing transcript prevent a meaningful statutory right of appeal and thus breach SBJ’s rights to natural justice?
2. Did the Board err in law by applying a “best interests” test to the second branch of the test for capacity?

Analysis

Issue 1: Do gaps in the hearing transcript prevent a meaningful statutory right of appeal and thus breach SBJ’s rights to natural justice?

[22] Where a gap or gaps in the transcript of a proceeding prejudices a party’s rights to meaningful statutory appeal, the decision may be vulnerable to being sent back on appeal. Ms. Perez submits that given the large number of gaps in the evidence, including 16 interruptions during SBJ’s evidence, which was found not to be credible, that this is such a case. In her submission, this outcome flows from the subject matter of the proceedings which engage fundamental human rights, the broad appeal rights, and the statutory requirement for a transcript to be prepared for the appeal.

[23] Mr. McIntyre submits that the gaps in the transcript are not prejudicial to SBJ’s issue on appeal: the test used by the Board to assess his capacity. The existing transcript is part of a larger record that includes the detailed submissions of counsel, the Board’s reasons and documentary evidence which summarizes the medical evidence, the attending physician’s opinions as to capacity and conversations with SBJ. Further, the existing transcript, even with gaps, is substantial and largely intelligible save for the moments of interference which it is not disputed happen 44 times over an 80-page transcript.

[24] The Supreme Court of Canada considered the impact of a missing transcript on appeal rights in R. v. Hayes, [1989] 1 SCR 44. There, the context was an appeal from a charge of first degree murder. A portion of the judge’s charge to the jury was not recorded. The trial judge filled the gap in the transcript from his notes made prior to delivering his charge to the jury.

[25] The majority in Hayes found that there was no serious possibility of an error in the missing part of the transcript or that it deprived the appellant of a ground of appeal. The inquiry by the majority and the dissenting minority was fact-specific.

[26] The majority considered the existence of the judge’s notes, the lack of objection to the charge by defence counsel and the fact that the trial judge provided the jury with the applicable sections of the Criminal Code. The minority would have allowed the appeal based on the missing transcript together with the trial judge’s failure to give a Vetrovec warning concerning the evidence of an accomplice. Together, the minority found this led to “an appearance of a failure of justice.” Both the majority and the minority agreed however, that not every gap in a transcript will require a new trial.

[27] In Ontario cases decided since Hayes, appellate courts have applied the context-specific consideration of whether a missing transcript causes prejudice to appeal rights: See: R. v. Sameluk, 2011 ONCJ 259, at para. 9; R. v. Dobis, at paras. 19-23.

[28] In Dobis, the Ontario Court of Appeal dismissed an appeal from a sentencing decision where portions of the sentencing hearing transcript were missing. The court found that the prejudice in that instance was mitigated by the documentary evidence filed by the Appellant as part of the material before the sentencing judge, which was available on appeal.

[29] In 168774 Ontario Inc. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), 2017 ONSC 3579, at para. 14, the Divisional Court applied the Hayes test, describing the primary question as whether there is a potential for a miscarriage of justice because a missing portion of the transcript has deprived an appellant of a ground of appeal.

[30] The issue on appeal here is an alleged error in law by the Board, by applying a “best interests” test to SBJ’s capacity to consent to treatment. The focus on appeal is the Board’s reasoning as it was applied to the evidence it heard and in particular a passage from the Board’s reasons discussing credibility. The Board found that SBJ was merely “mouthing” the language of capacity, but was not really engaged with his doctor in the discussions about medication:

I found SBJ’s thinking about “carrots” and changing his medication to go to another floor, i.e. to a different security level within CAMH, was part and parcel of ongoing gamesmanship between him and the medical staff at CAMH. I did not find or believe that SBJ was earnest in any desire to improve his mental state and that his reliance, for instance, on potential side effects as a reason for not wanting to change his medication was simply a red herring. I did not consider it incumbent on Dr. Ali to continue to revisit the same issues of treatment options when the patient was recalcitrant: Snell v Head (2018) ONSC 1516.

[31] Amicus excerpted in her factum the missing portions of the transcript and their relationship to the evidence and the test. These begin with a gap during Dr. Ali’s evidence about SBJ’s capacity under the statutory test:

MR. LIDDLE: Okay. Very well. And in terms of the two branches of the test, the first being understanding, and the second being appreciation, in your opinion, does he fail either one of the two branches or both branches?

DOCTOR ALI: It’s somewhat unclear if he failed the first branch. He likely understands it. However, he has difficulty engaging in conversation. But it is clear that he does fail the - the second branch of the test and would be unable to appreciate the – [indiscernible...ZOOM interference on channel is distorted] decision, or a lack thereof.

DOCTOR ALI: His current presentation and the symptoms that he is experiencing currently is prohibiting him from realizing that he’s experiencing symptoms of his illness and appreciate – appreciating the [indiscernible...ZOOM interference on channel is distorted]. And also being able to weigh the risk and benefits of changes in his medication indiscernible... ZOOM interference on channel is distorted] making him unable to make a decision.

[32] At a second point in Dr. Ali’s evidence, she is talking about SBJ’s insight into his symptoms and again there is interference that renders the transcript incomplete:

DOCTOR ALI: …[SBJ] refuses to believe that his behaviours that have been observed and he’s presented with on the unit, are due to a mental illness.

[indiscernible...ZOOM interference on channel is distorted] that any of his fears have been due to his illness.

[33] At other places in the transcript there are gaps in the description of SBJ’s history, symptoms and some of the side effects suffered by SBJ in the past.

[34] During SBJ’s evidence there were additional interruptions. SBJ was asked about how his current medication helps him to which he answered:

SBJ: So, from – so, [indiscernible...ZOOM interference on channel is distorted] – I wanna make sure I don’t butcher this. It’s like when you get elevated, you can laugh into mania and you can become manic. So, like you know somebody looks at you the wrong way and you just shoot. And – and you’re – you’re [indiscernible...ZOOM interference on channel is distorted] to that person. 'Cause you know, somebodies saying – getting personal with you or you going back and forth with somebody.

[35] Another interruption occurred during SBJ’s evidence about his conversations with Dr. Ali about changing his medication:

SBJ: So, you know, I – I – I mean I would go up, but I don’t wanna just go up for no reason and just sit here for another three months. I – I want the carrot. And I’m like, okay, where’s the [indiscernible...ZOOM interference on channel is distorted] and possibly we could get you there, but you know, you’d have to consider going to 900. I’d be like, “Well, yeah, for sure”.

[36] Ms. Perez also points to interruptions during SBJ’s evidence about his discussions with Dr. Ali and the pharmacist prior to the finding of lack of capacity, and also during his evidence about negative interactions with other patients in the hospital.

[37] The transcript has interruptions, and thus it is not complete. However, it includes significant relevant evidence and conveys the positions of the parties. There was no gap so large that one could say they did not know what was argued before the Board, or that there was virtually no evidence on the issues raised there or discussed in the Board’s reasons—there was evidence as to symptoms, evidence of behaviour and explanations for that behaviour, the diagnosis, history of treatment, medication offered, conversations around side effects, and SBJ’s understanding and appreciation of his illness. The Board’s reasons quote at length from the evidence and from the CCB summary filed by Dr. Ali and her report of February 28, 2023 making the formal finding of incapacity.

[38] I conclude that although there are gaps in the transcription of the evidence that speak to the issue of SBJ’s capacity before the Board, and to the findings of credibility, they do not cause prejudice to SBJ’s ability to make submissions on this appeal, on the issue as framed. The issue on appeal is whether the Board’s reasons for decision reveal an error in law by using the incorrect test for capacity. There is no suggestion that the Board misapprehended the evidence before it or made a palpable and overriding error in its appreciation of the evidence. If that were the case, the gaps in the transcript might have assumed a greater significance. However, on this appeal, the issue relates to how the Board applied the test for capacity and whether it imported a “best interest” standard into its consideration of the evidence, which is well-summarized and not challenged by Ms. Perez.

[39] The test adopted by the majority in Hayes, and applied in cases since, focus on actual prejudice rather than the appearance of justice based on missing portions of the record. I conclude that the interruptions and gaps do not prejudice SBJ’s ability to challenge the Board’s findings on appeal.

Issue 2: Did the Board misapply the second branch of the test by requiring that SBJ make a treatment decision that was in his best interests?

[40] The contours of the second part of the test for capacity to consent to treatment under the Act have been considered at the appellate level in Ontario. An individual who was able to understand side effects and the risks of medication was nevertheless found not be capable of consenting given his evidence that he was “perfectly fine” and not experiencing symptoms of a mental disorder: Murray v. Alatishe, 2019 ONCA 596 at para. 20. The Court of Appeal found that the Board received evidence that the appellant did not understand he could be affected by mental illness. It was reasonable for the Board to conclude that he could not appreciate the benefits of treatment and without that ability, could not assess the consequence of his treatment decision.

[41] In Gajewski v. Wilkie, the Court of Appeal upheld the Board’s finding of lack of capacity in circumstances where the evidence supported a finding that the appellant did not truly believe that he suffered from delusions. As a result, he was not able to apply the relevant information to his circumstances and was not able to appreciate the reasonably foreseeable consequences of taking or not taking the proposed medication.

[42] In B.L. v. Pytyck, 2021 ONCA 67, the Court of Appeal reviewed and reiterated the test from Starson as applied in Murray and in Gajewski, and several other decisions. The court in B.L. observed at para. 26 that “the Starson test for capacity in respect of the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision includes a requirement to consider whether a person’s condition results in an inability to recognize that he or she is affected by its manifestations, thereby rendering the person unable to apply the relevant information and appreciate the consequences of his or her decision.”

[43] Mr. McIntyre, for Dr. Ali, submits that the Board found that SBJ did not have an appreciation of the depth of his disorder, which is sufficient to meet the second branch of the test. It found that he denied or minimized those symptoms. This finding is supported by both the documentary and oral evidence of Dr. Ali.

[44] Ms. Perez submits that the Board erred by importing a best interest standard into the test for capacity during its credibility analysis. This included the Board’s observations (excerpted above) that SBJ was not “earnest” about his treatment and that he was engaged in “gamesmanship” with his treatment team. This portion of the reasons appears to import a finding of SBJ taking intentionally tactical positions during his treatment discussions. To the extent that the Board intended that SBJ was not capable of consenting to treatment if he made his decision for reasons other than “earnestly” wishing to become healthy, I agree with Ms. Perez that this would suggest a best interest approach and constitute an error on the part of the Board. That is not the test: SBJ may analyze the risks and benefits, including the potdo not read these portions of this paragraph in isolation. The Board framed the impugned observations about SBJ’s discussions with Dr. Ali as a credibility analysis and concluded that it was not incumbent on Dr. Ali to keep revisiting these issues with SBJ given its finding that he was playing games with Dr. Ali. The Board’s findings on the therapeutic relationship and SBJ’s engagement with Dr. Ali are entitled to deference. More importantly, the Board continued and made findings that that SBJ did not appreciate the depth of his disorder and minimized his conduct which included sexually inappropriate acts and violent behaviour arising from his mental disorder. These findings suggest that the Board was alive to the correct test and applied it as it continued with its reasons.

[46] Ms. Perez also submits that the Board’s reasons import a best interests standard in referring to the evidence about side effects as a “red herring” or as Ms. Perez aptly described it, an irrelevant matter, or a “distraction.” Side effects often play a role in any patient’s decision to consent to treatment. The “cost” of a given medication in the form of deleterious side effects may outweigh the benefits. Dr. Ali conceded there had been issues with side effects experienced by SBJ in the past, and that many of the medications he had been given had lethargy as a side effect. Side effects are thus a valid part of the calculus but given the Board’s findings,it was not indicative of error to describe the question of side effects as a “red herring.” Rather, it was a shorthand way of putting the question of side effects to one side and bringing the focus back, in the succeeding paragraph of the reasons, to the question of SBJ’s appreciation of the impact of his mental disorder on his behaviour, his symptoms and his current placement on a secure ward due to those symptoms and behaviours. I would not give effect to the submission that the portion of the Board’s reasons dealing with side effects indicates that the Board improperly applied a best interests standard or failed to apply the second branch of the test from the Act.

[47] Overall, the Board’s finding that SBJ failed to appreciate the nature of his disorder, based on the documentary and oral evidence, supports its reasonable conclusion that SBJ was not capable of consenting to treatment.

Conclusion

[48] For these reasons, I dismiss the appeal. I thank Ms. Perez and Mr. McIntyre for the quality of their written argument and their excellent oral submissions.

Leiper J. Date: August 3, 2023