SS v. Zalan, 2023 ONSC 5559

Court File and Parties

COURT FILE NO.: CV-23-00699342-0000 DATE: 2023-10-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: SS, Appellant AND: DR. ROBERT ZALAN, Respondent

COUNSEL: Matias Contreras León, for the Appellant John Hunter and Nicole Chanderpaul, for the Respondent

HEARD: September 27, 2023

BEFORE: Koehnen J.

Reasons for Judgment

1This is an appeal by SS from a decision of the Consent and Capacity Board dated April 25, 2023 which found the appellant incapable of making treatment decisions with respect to all forms of antipsychotic medications and a Community Treatment Plan.

Clinical History

2SS was first diagnosed with a bipolar disorder with psychotic aspects during a hospitalization in 2009. She agreed with that diagnosis and accepted treatment with antipsychotic medications until September 2014. In September 2014 she decided to discontinue treatment abruptly. Her manic symptoms re-emerged and she went to hospital in July 2015, where Dr. Zalan treated her and has continued to treat her as an outpatient since. He prescribed antipsychotic medication, which SS took until March 2022. [1]

3By March 2022, SS had become unhappy with the side effects of her antipsychotic medication. She was concerned about weight gain and feeling a limited range of emotions. She spoke with Dr. Zalan about weaning herself off of the medication entirely. Dr. Zalan explained the risks and expressed concerns about her intentions. He warned SS that she might not recognize the return of her symptoms. [2]

4SS weaned herself off of the medication and her manic symptoms returned.

5SS’ parents described her as having an elevated and irritable mood, increased energy, pressured speech, distractibility, excessive spending, grandiose ideas, and paranoid, persecutory delusions, including one delusion that her brother wanted to kill her that prompted her to report him to the police. They also reported that she wasn’t sleeping much at night, but would pace, talk, laugh and swear loudly at herself [3] and that she had lost her sense of chronology.

6This ultimately resulted in involuntary hospitalization beginning between March 7, 2023 and April 11, 2023 pursuant to a Form 1 under Box B criteria. [4]

7During SS’ hospitalization, her physicians and family observed SS display manic symptoms. Dr. Zalan noted that SS acknowledged some symptoms of her mental condition but ascribed them to the stress of recovered memories about an uncle and family discord. Throughout her hospitalization, SS denied the prospect that she was having a manic episode. [5]

8SS attempted to escape from her stay at the hospital in March by jumping into a taxi. [6]

9There are three issues for appeal:

i. Did the Board err in finding that SS could not appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment? ii. Did the board misapprehend the appellant’s evidence? iii. Did the board err in finding that the appellant was likely to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person without treatment?

10Both parties agree that the first issue is a question of law to which the standard of correctness applies. The second and third issues are mixed issues of fact and law to which the standard of palpable and overriding error applies.

i. Ability to Appreciate Consequences of a Decision or Lack of Decision

11Subsection 4(1) of the Health Care Consent Act, 1996 (HCCA) provides that one is capable of consenting to treatment if one is: (1) able to understand the information relevant to making a decision about the proposed treatment (the first branch); and, (2) able to appreciate the reasonably foreseeable consequences of a decision or lack of decision (the second branch). The onus of proving incapacity is on the party alleging it. [7]

12The Board found that, the appellant met the first branch of the test. That is to say she could understand information relevant to her treatment decisions. However, the Board found that she was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.

13There is an important distinction between the failure to appreciate on the one hand and the inability to appreciate on the other hand. Justice Major explained the distinction as follows in Starson v. Swayze, 2003 SCC 32: [8]

…a patient is not required to describe his mental condition as an "illness", or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician's opinion regarding the cause of that condition. 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. [9] (Emphasis added)

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 . . . 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. [10]

14Dr. Zalan’s clinical summary and charts indicate that SS did not appreciate that the benefit of the treatment would be to prevent mental health deterioration from occurring again because she was unable to recognize the symptoms of her conditions, which is itself a typical symptom of SS’s condition.

15What is of importance from Starson for our purposes is that the patient be able to “recognize that [s]he is affected by [the] manifestations” of her condition. That is to say that she recognize that she is affected by the symptoms of her mental condition. She need not agree with the diagnosis or agree that she have a mental illness.

16The appellant’s key point in this regard is that when her capacity was assessed, she acknowledged that she had mental health symptoms. The appellant submits that the board erred because it dismissed her evidence about her mental health symptoms because she had attributed the symptoms to trauma arising from the recent death of an uncle who she says had abused her as a child. The appellant says her uncle’s death brought back memories of the trauma and triggered her mental health symptoms.

17In my view the board made no error in this regard. The board clearly identified the statutory test as refined in Starson and applied it. In doing so, the Board stated:

SS testified she understood the risks of discontinuing treatment. She testified they included a full spectrum of emotions that she would have to learn to manage. She might have difficulty sleeping, experience an elevated mood and perhaps have intrusive or racing thoughts. We noted she did not mention the risk of a return of psychotic symptoms, a consequence of her discontinuing treatment in December 2022.

In hospital, SS denied displaying any recent manic symptoms. In her testimony, she maintained that denial. She did not think there was any valid reason for being hospitalized from early March for just over a month.

We found as a fact that SS was manic on admission in March 2023. She did not, then or since, recognize she displayed the manifestations of a major mental condition and we concluded she would not be able to recognize the onset of similar manifestations when they recurred, which was the likely result were she to discontinue treatment. SS was therefore unable to apply information about treating a bipolar condition to herself. We confirmed Dr. Zalan’s finding of treatment incapacity. [11]

18What was critical for the board was SS’ failure to recognize psychotic symptoms. Although the board used a short form label of psychotic symptoms rather than listing those symptoms individually, the Board is an expert tribunal and is entitled to use a medical label that would be understood in the medical community. The appellant was not hospitalized for the symptoms she recognized (experience and manage a full range of emotions; difficulty sleeping, elevated mood and perhaps intrusive or racing thoughts) but for those she did not recognize: paranoia, persecutory delusions, distractibility, grandiose ideas, loud talking, laughing and swearing at herself.

19The need for a person to recognize the symptoms of their mental illness was put this way in KM v Agrawal, 2021 ONSC 5748: [12]

If it is demonstrated that the person is being affected by a mental condition in the broad sense that he or she is manifesting the symptoms of an illness, then to pass the test of capacity, the person must be able to recognize the possibility that he or she is affected by that condition. The question is: does the patient recognize, which is to say appreciate, that the symptoms affect his or her behaviour and thinking. [13] (Emphasis added)

20If SS is unable to recognize the symptoms of her mental illness, then she will not be able to process and apply relevant information regarding the proposed treatment to her situation. [14] Although the appellant does not have to agree with the diagnosis of bipolar mania, she must have the ability to recognize symptoms to appreciate the consequences of treatment or lack of treatment.

ii. Did the Board Misapprehend the Appellant’s Evidence?

21The appellant submits that the Board made a palpable and overriding error in that it mischaracterized the appellant’s evidence about her symptoms and failed to consider evidence favourable to her.

22In this regard the appellant points to evidence about her acknowledgment of her bipolar diagnosis, her years of voluntarily taking medication and compliance with outpatient care, her identification of a need for medical help in 2015, her identification of some symptoms of her condition, her efforts to address her medical condition with psychotherapy, exercise and creative endeavors. The appellant submits that these efforts demonstrate an acknowledgement of her mental condition and the need to have support to deal with her symptoms even if the respondent and the Board did not agree about the effectiveness of these efforts.

23The Board in fact considered much of the evidence that the appellant says it failed to consider. For example, The Board considered the following:

a. SS agreed with her diagnosis of a bipolar condition during in 2009, and accepted treatment with antipsychotic medications which resulted in improvement for her. [15] b. According to SS, the consequence of her “ill-advised decision” to discontinue treatment in September 2014 was the re-emergence of symptoms, resulting in her hospital attendance in July 2015. [16] c. SS testified that she understood the risks of discontinuing treatment and identified them as having a full spectrum of emotions to manage, difficulty sleeping, elevated mood, and perhaps intrusive or racing thoughts. SS did not mention the risk of a return of psychotic symptoms as a consequence of her discontinuing treatment in December 2022. [17] d. The board recognized that the appellant was receiving treatment from a psychologist and devoted over a page of its reasons to that evidence. The Board noted, however, that a psychologist cannot diagnose mental illness and cannot treat mental illness. In addition, the psychologist had the benefit only of the appellant’s version of events without seeing medical records which cast the appellant’s condition in a different light. The board assessed the psychologist’s evidence but put less weight on it. [18]

24I am satisfied that the Board did not misapprehend or discount the appellant’s evidence. Rather, it weighed her evidence differently than the appellant does. The Board recognized that the appellant could identify certain minor symptoms of her condition. Of importance to the Board was that the appellant could not recognize the more serious symptoms of her condition.

25The Board specifically referred to the conflict in evidence and stated:

We thought SS testified honestly but at times inaccurately because as explained below, she could not see that she recently displayed symptoms of mania sufficient to require her hospitalization for a month. Where SS’s evidence diverged from [her father’s] or Dr. Zalan’s, we preferred theirs.”

26This does not reflect the board failing to appreciate the appellant’s evidence but reflects the board weighing conflicting evidence and preferring the evidence of witnesses other than the appellant.

27That the Board did not refer to every part of the Appellant’s evidence is not a valid ground for appeal. It is not required to recount every piece of evidence it hears. The Supreme Court of Canada noted in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 97. A holistic and contextual review of the Board’s reasons shows that it correctly applied the legal test in accordance with the principles the Supreme Court set out in Starson.

iii. Likelihood of Substantial Mental Deterioration

28The appellant submits that the board made a palpable and overriding error in that it failed to consider her view that she would not deteriorate in the community.

29Section 33.1(4)(c)(iii) of the Mental Health Act [20] provides that a physician may issue or renew a community treatment order if, within 72 hours before the issuance of the community treatment order the physician has examined the person and is of the opinion that:

if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person.

30The appellant submits that this factor must be considered in light of the purpose of community treatment orders which is to provide treatment in the community and to avoid the revolving door problem of patients stopping medication, deteriorating, and requiring hospital admission, only to have the problem recur when the person leaves the hospital and stops taking medication again. [21] The appellant submits that her medical history has not been characterized by this problem because she was only hospitalized on one previous occasion on which occasion she brought herself to the hospital to receive medication and was discharged immediately.

31The appellant also notes she has strong community supports including contact with her family, a good relationship with her father, an income earning condominium and a psychotherapist.

32In my view, the board made no error in this regard. Although there are cases that speak about the revolving door syndrome from which some mental health patients suffer, a history of revolving hospital admissions is not the test for a community treatment order. The test for a community treatment order is set out in section 33.1 (4) of the Mental Health Act [22] as follows:

(4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person,

i. has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

ii. has been the subject of a previous community treatment order under this section.

33The appellant was hospitalized between March 7, 2023 and April 11, 2023 she therefore falls within the test for a community treatment order.

34The requirement for ‘substantial mental deterioration’ has been described as “not just a trivial change in symptoms and/or functioning, but rather a significant increase in symptoms and/or a significant decline in functioning.” Further, “the degree of mental or physical deterioration a person is likely to suffer must be ‘considerable, consequential, ample, significant, sizeable’.” [23]

35There was ample evidence of a risk of substantial deterioration on which the board could rely.

36The appellant suffered from a bipolar disorder with psychotic aspects, she required medication to improve her condition, prior treatments had led to an improvement in her condition and stopping medication led to a substantial deterioration in her condition.

37Among other things, the Board considered the following evidence in this regard:

a. SS had a bipolar condition with psychotic features. [24] b. When SS was previously treated for the same condition, she showed improvement and went for years without a manic episode. [25] c. After SS discontinued treatment in December 2022, she substantially deteriorated from her baseline and required a month-long hospitalization. [26] d. SS did not see any need for treatment and said she would discontinue treatment again if the choice were hers. [27] e. According to Dr. Zalan, SS is not able to recognize the symptoms of mania, which is typical for her condition. [28] When SS is in a state of mania, she loses touch with reality and is not able to recognize that she is manic. [29] f. Dr. Zalan was of the view that without ongoing treatment, SS would relapse again within approximately three months. [30]

38There is no doubt that a comparison of the appellant’s condition when she was on medication with her condition when she was admitted to hospital, reflects a substantial deterioration. The uncontested medical evidence before the Board was that the cessation of medication would lead to a similar deterioration within three months.

39The only contrary evidence about this was the appellant’s evidence that she would be able to recognize symptoms of mania and seek care. She was not, however, able to do so between the time she discontinued medication entirely in December 2022 and her discharge from hospital in April 2023.

40In the foregoing circumstances I am satisfied that the board made no error of law and made no palpable and overriding error of fact or fact and law. I am more than satisfied that the Board’s decision was legally correct and reasonable.

Koehnen J.