Court File and Parties

COURT FILE NO.: CV-23-00696555-0000 DATE: 20230816 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JESUS DONA MARCANO, Appellant – and – DR. LORNE TUGG, Respondent

BEFORE: E.M. Morgan, J.

COUNSEL: Jesus Dona Marcano, on his own behalf Kate Deakon, for the Respondent

HEARD: August 15, 2023

APPEAL FROM CONSENT AND CAPACITY BOARD

[1] This is a partial appeal from the decision of the Consent and Capacity Board (the “Board”) dated March 4, 2023, in which the Board confirmed the Respondent’s finding that the Appellant was incapable with respect to treatment with antipsychotic medications. At the same time, the Board revoked the certificate by which the Appellant was involuntarily detained.

[2] The Appellant brings this appeal from the Board’s decision as of right under section 80 of the Health Care Consent Act, 1996, SO 1996, c. 2, Sched. A (“HCCA”). As Respondent’s counsel points out, this matter is to be treated as an appeal, not as a hearing de novo.

I. Background

[3] The Respondent was the Appellant’s attending psychiatrist at North York General Hospital. The Appellant was involuntarily admitted to hospital on February 17, 2023, when police apprehended him at the request of his ex-spouse and delivered him to the hospital’s emergency department. On February 20, 2023, another physician, Dr. Ian Weinroth, assessed the Appellant and issued a Certificate of Involuntary Admission.

[4] The Appellant applied to the Board to review his involuntary status and his incapacity with respect to the treatment with antipsychotic medication proposed by the Respondent. A hearing held on March 3, 2023. The next day, on March 4, 2023, the Board issued its decision rescinding the Certificate of Involuntary Admission but confirming the Respondent’s finding that the Appellant was incapable with respect to treatment.

[5] The Appellant served a Notice of Appeal on March 6, 2023. He appeals the Board’s decision with respect to its finding that he is incapable of deciding whether or not to pursue the proposed treatment.

[6] The Respondent’s view is that the Board’s decision, and the Board’s corresponding reasons dated March 10, 2023, are free of any palpable and overriding errors. Counsel for the Respondent submits that the Board’s decision is based reasonably on all of the evidence that was before it.

[7] The Appellant advised me at the hearing that he is a lawyer in his native country of Venezuela, and in Ontario is a paralegal licensed by the Law Society. At the hearing he struck me as an articulate, well-spoken, and well-educated man, who has suffered considerable hardship in recent years. His presentation was far more calm and rational than his evidence before the Board would suggest or, for that matter, than his written submissions to this Court reveal. As discussed further below, in these other instances the Appellant has tended to demonstrate in the very nature of his arguments the veracity of the Respondent’s diagnosis of him.

[8] The Appellant submits that he is a mentally healthy, well-balanced, non-violent, caring father of his two children. He contends that his rights have been violated by the Respondent, the Board, and his now ex-wife. He also explains that he has been rendered homeless because of all of the events leading up to his hospitalization and the findings of the Respondent and the Board. He blames his ex-wife, and not his own mental health, as the source of all of his troubles.

[9] The record shows that the Appellant has a psychiatric history dating back to 2017. He has received several different diagnoses over the years, although the most recent diagnosis by the Respondent is delusional disorder of the persecutory and jealous type. His symptoms consist of delusions regarding conspiracies involving police, including a belief that they are making efforts to poison him; follow him; harass him; rape him; and surveil him. The evidence indicates that the Appellant also believes his children are at risk.

[10] On February 17, 2023, the Appellant was brought to North York General by police after his ex-spouse reported her concerns that he was decompensating. At the time of the Respondent’s assessment of him, the Appellant had reportedly made specific threats toward his ex-wife and brother, including threatening to kidnap the children from his ex-wife to shield them from threats related his imagined conspiracies.

[11] Evidence before the Board indicated that the Appellant had been partially responding to treatment during the year prior to the events of February 2023, and there had reportedly been a reduction in his symptoms. Reports from both the Appellant’s ex-wife and brother, submitted through the evidence of the Respondent, reflect that, although medication did not lead to a complete symptom resolution, previous treatment with antipsychotic medication was assisting him in being more functional and caused a reduction in his delusions.

[12] The Board found that in July 2022, the Appellant had stopped his medication. He has apparently been off his antipsychotic medication entirely since that time. According to the statement given by the Appellant’s ex-wife, the Appellant became progressively more psychotic after that, causing her to fear for her own safety and the safety of her children. She separated from him in January 2023.

[13] The Respondent presented evidence that the Appellant’s current symptoms are secondary to delusional disorder following his decision to halt medication. The Appellant has apparently expressed that he fears his doctors “were trying to turn him into a woman”, and that his recent hospitalizations are attributable to the police and his wife “trying to deprive him of his rights, torture him, and harm him.” The Respondent also indicated that he has considerable concern about the Appellant’s incorporation of the safety of his children into his delusional beliefs. It is the Respondent’s view that the Appellant’s delusions place the Appellant’s wife and children in danger and that, without treatment, the Appellant will remain a significant risk to his family members.

[14] The Respondent’s evidence before the Board led the Board to the conclusion that the Appellant fails the second part of the capacity test – that is, that he does not appreciate the reasonably foreseeable consequences of treatment or no treatment. The Respondent gave evidence that he tried to explore the potential benefits of treatment with the Appellant, including a decrease in delusional intensity and severity, and a reduction in his fear for himself and his children. The Respondent also explained that the consequences of no treatment for the Appellant include continued high levels of fearfulness and delusions, together with a continuation of his wish to act on his fear by abducting his children and taking them out of the country and/or harming his wife.

[15] It was the Respondent’s evidence that these consequences have been discussed with the Appellant, but that he cannot appreciate them because of his very impaired awareness of his own illness.

[16] The Appellant testified that there is, in fact, a “possibility” that his conspiracies about police and his wife are true, stating that, “…some situations happen in my day-to-day life that they don’t have like a logical reason to happen. That brings me to the conclusion that it might be a possibility that they are in some way or another trying to influence my life.” In his testimony, he denied saying that he and his children are at risk of police interference, but he insisted that taking away legal capacity to make decisions about one’s life is a type of strategy that the police deploy.

[17] It was the Appellant’s evidence that he believes he is competent to manage the information with which the Respondent provided him, and that he does not need any medication in order to do so. He testified that he does not think that his legal capacity or mood are affected by a lack of treatment with antipsychotic medication, and that he therefore does not see any reason to take it.

[18] The Board found the Respondent to be a credible witness. The Board also found the Appellant to be honest but not always accurate due to his inability to recognize the delusional nature of some of his beliefs. The Board concluded that the conspiracies referred to by the Appellant, and corroborated by the Respondent, amount to a “disease or disability of the mind, which is the MHA definition of ‘mental disorder’”.

[19] Further, the Board found the Appellant’s evidence that the police were after him to be a delusional belief. The Board determined that because he could not attach information about treating such a condition to himself, he was unable to appreciate the reasonably foreseeable consequences of his own treatment decision. In its decision, the Board therefore confirmed the finding that the Appellant was incapable with respect to treatment with antipsychotic medication.

II. Standard of Review

[20] Because section 80 of the HCCA provides for an appeal from the Board’s decision, this Court must apply the appellate standard of review. That is to say, questions of law can be overturned if they are incorrect, but questions of fact and mixed questions of fact and law can only overturned if there is found to be palpable and overriding error: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at paras 10, 16-17, 23, 25, 37. This latter test is a relatively high bar for the Appellant to meet.

III. The decision of the Board

[21] In my view, the Board correctly articulated the legal test for capacity to consent to treatment and applied that test to the evidence before it. The Board’s decision was amply supported by the evidence and contained no palpable and overriding error.

[22] Section 4(1) of the HCCA provides:

A person is capable with respect to a treatment... if the person is able to understand the information that is relevant to making a decision about the treatment ... and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[23] As indicated above, this appeal concerns the second part of the test for capacity under section 4(1) of the HCCA – i.e. whether the Appellant is able to appreciate the reasonably foreseeable consequences of a decision or a non-decision. This test is not met where the individual is unable to apply information about the proposed treatment to their own situation. The Supreme Court of Canada explained in Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, at para 79:

While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental ‘condition’, the patient must be able to recognize the possibility that he is affected by that condition... As a result, a patient is not required to describe his mental condition as an ‘illness’, or to otherwise characterize the condition in negative terms ... Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

[24] The Court of Appeal has elaborated on this analysis, emphasizing that the “common clinical indicators” of a person’s ability to appreciate the consequences of accepting or declining treatment are: “whether the person is able to acknowledge the fact that the condition for which the treatment is recommended may affect him or her; whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life; [whether] the person’s choice is not substantially based on a delusional belief”: Giecewicz v Hastings, 2007 ONCA 890, at para 21, quoting Starson, at para 18 (McLachlin CJ, dissenting).

[25] It is these indicators, according to the Court of Appeal, that provide a useful framework for identifying what “ability to appreciate” means in concrete terms.

[26] I have no trouble concluding that the Board had before it considerable evidence establishing that none of the three clinical indicators of a person’s ability to appreciate the consequences of accepting or declining treatment were met. In the first place, the Appellant was, by his own declaration, shown to be incapable of recognizing that he may be suffering from a mental condition or associated symptoms for which treatment is recommended and how it may affect him. Moreover, the Appellant was not able to perceive how the medication prescribed by the Respondent could impact on his quality of life and reduce his experience of fearfulness and delusions.

[27] The Board had clear evidence of the Appellant’s rejection of his diagnosis and of the need for the prescribed medication. It accepted the Respondent’s view that the Appellant’s rejection of treatment flows from the delusional beliefs he was experiencing. Further, the Board had evidence from the Respondent and from the Appellant’s family members that at previous times, when the Appellant was on medication and capable of making decisions, he had expressed the wish to continue taking the antipsychotic medications that the Respondent recommended.

[28] The Appellant insists that he does, in fact, have insight into his own mental health, and that he is aware of his condition. In his view, he does not require medication to handle the situation. It is his view that the Respondent, and the Board, did not take into account the Appellant’s views, which he expressed to the Respondent in various conversations and to the Board in his testimony.

[29] I would characterize the Appellant’s perception of his own mental health as a “glimmer of insight”, along the lines of what my colleague Justice Dunphy described in Annandale v. Delva, 2022 ONSC 586. As in that case, the Board heard “significant evidence of the benefits to [the Appellant] of [the proposed treatment] and the swiftness of his deterioration without [treatment]. [The Appellant’s] ‘glimmers of insight’ into his own condition were insufficiently deep and long-lasting to permit him to appreciate to the degree necessary the foreseeable consequences of decisions he might make regarding his treatment”: Ibid., at para 33.

[30] In my view, the Respondent in requiring antipsychotic medication, and the Board in upholding that decision, did take into account the Appellant’s point of view. They correctly perceived it as a product of his delusional state, and concluded that antipsychotic medication is required as necessary treatment for condition.

IV. The Appellant’s written submissions

[31] I note that in his written submissions on this appeal, the Appellant continues to insist that it is his ex-spouse, Daniella Mujica, who is orchestrating the allegations of mental health problems which his current efforts are aimed at refuting. I reference this view as expressed by the Appellant in light of the Respondent’s specific concern that absent the proposed treatment with antipsychotic medication, the Appellant focuses on his family members, and especially his former spouse, in a way that causes concern.

[32] In his factum submitted to this Court, the Appellant commences his submissions with the following preface:

I will NOT submit the required Books or any more information (knowing that can be consider that the appeal was not perfected) base that I have experienced on my skin that Canadians Institutions acts against my Rights and Freedoms set on the Charter. There is no need for me to fill requirements to a Judicial System that does not work, it is just looking to make the false appearance of correctness and always deprive my rights to benefits Daniella Mujica interest.

[33] The Appellant goes on in his written submissions to allege that portions of the transcript of proceedings before the Board have been improperly altered. He suggests conspiratorially that the record before the Court therefore contains false information. In his concluding paragraph, he summarizes his view as follows:

Corruption and false appearance of the Capacity and Consent Board on certified transcripts.

Transcripts were altered in content. That shows that there is a situation happening and is involved my brother Jesus Enrique, my wife (Daniella Mujica) the Respondent, and the Capacity and Consent Board. Because they all just go towards the same direction, that is why I request to quash partially the decision appeal related to “not consent to treatment” because, they are just looking for me to have unvoluntary movements, memory lost, and BLOCK my ability to have or keep SEXUAL ERECTIONS, so in that way Daniella Mujica is going to keep me as she wanted, depressed, blocking my life, and alone. [Emphasis in the original]

[34] There is no evidence to suggest that there is any reality to these statements. They appear to be a product of the delusional symptoms that the Respondent has described and which the proposed treatment with antipsychotic medication is meant to address.

[35] I respect the Appellant’s efforts in putting his views before the Court. He did so more cogently at the hearing than in his written submissions, which are more erratic. In all, rather than countering the Respondent’s arguments and the Board’s findings, the volatility exhibited in the Appellant’s submissions tend to establish the Respondent’s, and the Board’s, very point.

V. Conclusion

[36] I find no palpable and overriding error – indeed, I find no real error at all – in the Board’s decision. The decision accurately reflects and draws reasonable conclusions from the facts and law presented to the Board.

VI. Disposition

[37] The appeal is dismissed.

Morgan J. Date: August 16, 2023