COURT FILE NO.: CV-23-00694178-0000 DATE: 20230921
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
A.K Appellant – and – DR. JUSTIN WEISSGLAS Respondent
Counsel: Ikenna Aniekwe, for the Appellant Sean Blakeley, for the Respondent
HEARD: August 15, 2023
CALLAGHAN, J.
REASONS FOR JUDGMENT
[1] A.K seeks to quash a decision of the Consent and Capacity Board (“CCB”), dated January 16, 2023. The CCB upheld a finding that A.K was incapable of consenting to treatment for schizophrenia.
[2] Dr. Justin Weissglas, the respondent, a psychiatrist at the Toronto General Hospital, treated A.K. Dr. Weissglas made a finding of incapacity. It was his view that A.K was not able to meet the second prong of the two-pronged test under section 4 of the Health Care Consent Act, S.O. 1990, c. 2, Sched. A (the “Act”) in that he was not “able to appreciate the reasonably foreseeable consequences of a decision or a lack of a decision” in respect of his recommended treatment.
[3] The facts and subject matter of this appeal are highly personal. As such, the name of the appellant has been anonymized to protect his privacy.
BACKGROUND
[4] A.K has had a long-standing history of schizophrenia. He was treated with antipsychotic medication for many years but stopped taking the medication in the summer of 2022. He had been living in supportive housing (the “home”). In December 2022, A.K was being disruptive at the home and the police were called. A.K had been intimidating other members of the home and was demonstrating poor self-care. The police brought A.K to St. Michael’s Hospital for a mental health assessment. A.K was involuntarily detained on the authority of a Form 1 (being a Certificate of Involuntary Admission pursuant to section 20 of the Mental Health Act, R.S.O. 1990, c. M. 7 (“MHA”)).
[5] On December 12, 2022, the treating physician, Dr. Salema, determined that A.K was incapable of consenting to treatment. As a result, she issued a Form 33. With the consent of A.K’s father, his substitute decision-maker, A.K was administered the anti-psychotic medication which he had previously been taking.
[6] Due to a lack of space at St. Michael’s Hospital, A.K was transferred to Toronto General Hospital on December 21, 2022. On December 25, 2022, Dr. Weissglas issued a Form 4, renewing the certificate of involuntary admission of A.K.
CCB HEARING
[7] Pursuant to section 39 of the MHA and 32 of the Act, A.K sought a review by the CCB of the finding that he was mentally incapable of consenting to treatment and that he should be an involuntary patient at the Toronto General Hospital. The initial hearing was set for January 3, 2023, but was adjourned to permit A.K to review documents which were to be submitted at the hearing. The hearing reconvened on January 16, 2023, before a three-person panel consisting of a senior lawyer, a psychiatrist, and a public member. A.K was represented by counsel who also argued this appeal. Dr. Weissglas was not represented.
[8] During the hearing, there were disturbances by A.K that were addressed by the CCB. This included A.K hitting himself and making allegations of various unsubstantiated impropriety about Dr. Weissglas.
[9] Dr. Weissglas testified that A.K had a longstanding history of schizophrenia. A.K had been treated as an out-patient by Dr. McIntosh, with the anti-psychotic drug known as Olanzapine. For many years, A.K was quite stable and functioned quite well in the community. However, he stopped taking the medication and began to deteriorate, culminating with him being taken to St. Michael’s Hospital.
[10] Dr. Weissglas testified about the manifestations of A.K’s schizophrenia and his attempts to advise A.K as to his treatment options. As to his manifestations, Dr. Weissglas testified that A.K spoke about having guns and being able to kill people, being a member of the Russian military, and that “he would go ahead and kill them". He testified that A.K often hit his head while shadowboxing. The banging of his head was so severe that at one point he had to be restrained. Dr. Weissglas was concerned about retaliatory violence if A.K continued to be aggressive and was in the community.
[11] Dr. Weissglas referred to progress notes that were from earlier in January. One such note, dated January 1, 2023, recorded that A.K spoke at length about being from Russia and Kazakhstan, and being from a long line of horse breeders. When asked by the medical staff whether he was struggling with mental illness he responded “no, I'm perfectly fine, I'm actually great”. When discussing his condition and treatment, A.K stated that he “had relatives in Russia who have guns, who can take care of the people who are doing this". When asked whether he was making a threat, A.K responded, "absolutely I am" and “demonstrated shooting a gun".
[12] A progress note dated January 8, 2023, records that A.K showed signs and symptoms of psychosis. He expressed sexual minority discrimination towards the physician. He was described as having “an intrusive and agitated behaviour towards the writer”. It was recorded that he “show[s] signs and symptoms manifesting as threats to harm others in the context of delusions as outlined”.
[13] On January 10, 2023, a progress note records A.K as saying he was part of the Kozaks, being “an enterprise/skill passed down through generations”. He stated that because he was a Kozak he had a “license to kill". A.K went on to say, “it would be nothing personal”, but he would kill certain groups of people. When asked which types of people, he said: "criminals like sex offenders or corrupt hospital staff who steal medications". The allegation of corrupt hospital staff was the same allegation A.K made against Dr. Weissglas during the hearing. When asked when he would act on these thoughts of violence, A.K replied that he is "waiting for orders from above" and that “these orders would tell him weather [sic] he should beat those people up, take them to the authorities, or kill them.” When asked about his medication, he denied any side effects and referred to the fact that the medication was high quality and “the more he took the better he became”. When asked to describe what he meant by better, he responded, “helps me be stronger".
[14] Dr. Weissglas testified that A.K told him that he has “no specific intention to continue with the treatment". A.K further told Dr. Weissglas that he does not believe he has a mental health condition that requires any form of treatment. Dr. Weissglas testified that he was concerned that if A.K was to leave hospital in a state of psychosis that he would very quickly deteriorate mentally and likely physically.
[15] In terms of appreciating the impact of treatment, Dr. Weissglas testified that A.K “continues to insist that he does not have a mental health diagnosis". He says that “A.K does acknowledge that he previously had a diagnosis of schizophrenia” but says that “it is cured now, and he doesn't need to be on medication”. A.K was asked by Dr. Weissglas what the anti-psychotic medication did for him, but A.K could not explain what the medication does for him, although he was able to say that it “makes him stronger". Dr. Weissglas further stated that he tried to explain to A.K the risks and benefits of the proposed treatment, but that A.K did not allow him to continue with a meaningful dialogue, but rather interrupted Dr. Weissglas, insisting he does not have that diagnosis and that he does not need treatment.
[16] In cross-examination, Dr. Weissglas was asked about the manifestations of A.K’s illness. Dr. Weissglas repeated that A.K suffered from delusions, including his assertion that he was an arms dealer. Dr. Weissglas was asked how it is that he knows that A.K was not, in fact, an arms dealer. Dr. Weissglas said he does not know for certain, but A.K’s stories changed daily, and he contradicts himself in respect of the stories. A.K’s presentation led Dr. Weissglas and staff to conclude that A.K was delusional. Dr. Weissglas agreed that if, in fact, A.K was an arms dealer that would not be a delusion. However, Dr. Weissglas testified if A.K was an arms dealer and with his delusions, he would be even more concerned about A.K being in the community. Dr. Weissglas described his conversations with A.K as “non-coherent and non-linear.”
[17] Dr. Weissglas testified that A.K repeatedly denied having any symptoms and was unable to explain how the anti-psychotic medication assisted him, other than that he described to staff that it “makes him stronger”. Dr. Weissglas explained that most patients can articulate how medication assists the treatment of their symptoms, but A.K could not. Dr. Weissglas reiterated that A.K has said he does not need the medication and that he has told Dr. Weissglas he has “no intention of taking the medication when he leaves because he’s not unwell…”
[18] In response from questions by the CCB members, Dr. Weissglas said that his opinion was “based on the idea that [A.K] insists that he has no condition, no symptoms, and no need for treatment”. Dr. Weissglas testified that when he attempted to discuss treatment options and risks, A.K simply did not engage.
[19] A.K then testified. He testified that while at the home he received anti-psychotic prescriptions from Dr. McIntosh. He described taking anti-psychotics and their effect as follows during his examination in chief: Q. Okay. Now what, what are they treating you with this medication for; do you know? A. Schizophrenia. Like, I sort of -- Olanzapine is sort of -- I was very stable, my mind was very clear. Never been self-destructive or anti-social. But I sort of -- you have to take it every day, every night before you go to bed. And if you don’t take it you cannot fall asleep. You sort of take it, you fall asleep. If you forget to take it, you, you cannot fall asleep. Like, I, I almost, like, never missed my medication because, like, sometimes I forget. Sometimes, like, I party and I forget and I lay in my bed 'til, like, 1 o'clock in the morning, 2 o'clock. And I say, oh, I forgot to take my meds, that's why I cannot fall asleep. And I take my meds and eventually I fall asleep. So [indiscernible] medication. Q. Right. So the med, the med help, help you to fall asleep; right, and you.... A. No, no. It sort of -- you, you take it before you go to bed and if you don't you, you simply cannot fall asleep. Like, couple of times [indiscernible]. [Indiscernible] couple of times [indiscernible]. Once, Dr. McIntosh was on the vacation, so I simply cannot sleep. And I sort of -- if it lasts for couple of days my mind is little bit unstable and I -- somehow I get my meds. I take them, I sleep and everything else is back to normal. It's not like [indiscernible]; yes.
[20] As to his diagnosis, A.K testified as follows: Q. Okay. So, Dr. Weissglas is suggesting that right now you, you have schizophrenia. What do you say to that? A. Maybe I do. Doctors know better, but I don’t have to be here and take my Olanzapine. Like, he -- like, I can go back to Dr. McIntosh. I can get my -- like, it's a little bit far away, it's on, like, Coxwell. It, it, it’s close to Coxwell Subway Station and I am downtown, but I can get it, like, get a TTC bus and go there, like, once every month to refill my prescription. I can do that; I agree to do that; yes.
[21] In cross-examination, Dr. Weissglas asked A.K about his appreciation of his diagnosis, the manifestation of the disease, and the impact of his medication as follows: Q. Mr. A.K, you have said as recently as this hearing at the very beginning that you don't have schizophrenia, that you don't need treatment. A. Maybe I do. Doctors know better, doctors know better. I don't -- when I was diagnosed with schizophrenia, I was living in a shelter called Cedar House (ph). I spend there two years. I was a little bit [indiscernible]. I was a little bit like a -- my mind was not 100 percent there. I had trouble sleeping, I had seen a lot of problems, but they put me on Olanzapine, and I felt much, much better. And I stayed there since 2007 probably. [Indiscernible], yeah, 2007, 2008. Since then, I was on Olanzapine. And it actually does help you. Q. [Indiscernible.] A. You feel completely, completely normal but if you don't take it you have problems sleeping. Yeah, that, that’s from experience what Olanzapine is. Q. What symptoms do you have of schizophrenia? A. I’m not delusional, I am not exhausted. I don’t need outside help. But, yes, if doctor say I have to take [indiscernible] say, I have to take it. People take medication, like, I’m not self-destructive, I'm not anti-social. Q. Do you have any symptoms at all of any kind of mental health condition? A. Doctors know better but I, I don't think so. Yeah, I'm not self-destructive, I don't have any genetic defect. I don't have any fundamental problems; I don't have brain damage. I've never been a victim of sexual abuse. Like, I, I personally have seen a lot of people with every kind of problem; genetical defects from the mental problems. Right here in the hospital we have couple of people this actual -- like, from the mental problems that need, actually need medication. But if doctors say I have a diagnosis, what kind of -- or if I need to take a med -- like, why you take one pill before you go to bed, you sleep, you, you wake up, in the morning you're just fine. But if you don't take it you cannot fall asleep and, like, some kind of sort of unstable the next morning. I understand it. Yeah, if, if the doctor says I have to take meds, I'm gonna take them. Q. What do you mean by unstable? A. Like, I, I have -- I'm [indiscernible] that person, like, emotionally and psychologically, you sort of feel a little bit -- you sort of -- I believe you get addicted to that medication and if you don't take it you, you cannot sleep, you don't feel 100 percent. But historically speaking even though that time I, I was taking Olanzapine, and only three or four times because of life disruptions. And, like, every time it happens, like, I cannot sleep, I don't feel, like, very stable the next morning. If I got couple days without medication I sort of -- yeah, I need some feel -- I need to feel and I need to fall asleep. I have trouble sleeping when I, when I don’t get that med. Q. So, just to clarify, the benefit of the Olanzapine for you is that it allowed you to sleep? A. Yes, yes. I cannot sleep without it. Q. Was there any other, was there any other benefit to the Olanzapine? A. Benefit, yes. Like, you feel like 100 percent [indiscernible]. You don't have any problem; people talk to you like you're a sane person. But I actually needed that medication. Q. So, you -- we have discussed that, that as a medical team we believe you do have delusions. You said.... A. What kind of delusions? You, you think I’m delusional that I'm a professional boxer; no, I am a professional boxer. I can punch people and they can get the brain damage right away. But I never been, like, sentenced to any kind of time in prison, never had, like, a long [indiscernible], never been, like, charged with anti-social or self-destructive behaviour. Nothing like that. I'm not -- maybe I'm delusional but if I'm delusional you have to give me [indiscernible].
[22] CCB upheld the finding of incapacity and confirmed the involuntary admission. While A.K appealed both findings of the CCB, he subsequently abandoned the appeal as it relates to the CCB’s confirmation of the involuntary admission.
THE CCB DECISION
[23] No issue was taken with whether A.K suffers from schizophrenia. The focus at the hearing was on the second part of the capacity test in s. 4(1). Dr. Weissglas had already found that A.K was able to understand the relevant information to making the decision regarding his treatment. The issue considered by the CCB, and what is at issue on this appeal, is whether A.K can appreciate the reasonably foreseeable consequences of a decision to take, or refuse to take, the recommended treatment.
[24] The CCB found that, when unwell, “A.K exhibited positive symptoms of schizophrenia, namely delusional beliefs (i.e., being in the Russian military, trying to harm people), and thought and behaviour disorganization, command hallucinations and agitation”. They recited the history of his admissions at St Michaels’s and Toronto General, including how A.K became a patient of Dr. Weissglas and the finding that A.K was incapable of making treatment decisions.
[25] In addressing the issue of A.K’s capacity, the CCB cited Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. wherein the Supreme Court addressed the second prong of the test is s 4(1) of the Act [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....
[26] The CCB found that “A.K fell into this category of person, as he denied he was experiencing the manifestations of schizophrenia described to him by Dr. Weissglas and other health practitioners”. The CCB further found that A.K denied he was experiencing any of the symptoms that were being targeted by the anti-psychotic treatment. The CCB accepted Dr. Weissglas’ evidence that A.K’s psychotic illness interfered with his ability to recognize he was experiencing the manifestations of his illness. Applying Starson, the CCB found “the evidence clearly established that A.K was unable to appreciate either the potential benefits of treatment with antipsychotic medication, or the consequences of refusing such treatment”.
ISSUES:
[27] A.K’s counsel set out the following issues in his factum: A. Jurisdiction and powers of this court on appeal B. The standard of review applicable to this appeal C. Whether the Board committed a palpable and overriding error in confirming the finding of incapacity.
Powers on Appeal
[28] Section 80(1) of the Act grants A.K the right to appeal a decision of the CCB to the Superior Court of Justice “on a question of law or fact or both”. If an error is found, the Act provides broad powers to this court. In s.80(10), the Act provides the court with the following powers, (a) exercise all the powers of the Board. (b) substitute its opinion for that of a health practitioner, an evaluator, substitute decision-maker, or the Board. (c) refer the matter back to the Board, with directions, for rehearing in whole or in part.
[29] Of course, these powers can only be utilized if there is an error that has been identified in the CCB’s decision or process. Whether a reviewable error has occurred first requires consideration of the standard of review by which this court is to analyse the CCB’s decision.
Standard of Review
[30] As this is a statutory appeal, the parties correctly concur that the standard of review from decisions of the CCB follow the normal appellate standard (see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37). As such, questions of law are reviewable on the standard of correctness and all other findings are not to be disturbed unless they constitute a palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 5 and 8).
[31] Much of this appeal addressed whether the CCB made a palpable and overriding error in its consideration of the evidence, its findings of facts, and its application of those facts to the applicable test. As such, further consideration needs to be given as to what constitutes a palpable and overriding error.
[32] The Supreme Court of Canada in Hydro-Quebec v. Matta, 2020 SCC 37, 450 D.L.R. (4th) 547, at para. 33 described the standard as follows:
[33] Absent a palpable and overriding error, an appellate court must refrain from interfering with findings of fact and findings of mixed fact and law made by the trial judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-37; Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56 and 69-70; Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33. As Morissette J.A. so eloquently put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77, [translation] “a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions”: quoted in Benhaim, at para. 39. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see. (Emphasis added)
[33] The Ontario Court of Appeal in Farsi v. Da Rocha, 2020 ONCA 92, used equally emphatic language that the error must not only be obvious but so obvious and impactful that it altered the outcome of the decision. At para. 35, the court described the test as follows: 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.” (Emphasis added)
[34] The reason for deference, in part, is due to the fact that the CCB was able to observe the evidence. As stated in Housen, the trier of fact is at an advantage when it hears viva voce evidence and considers the multiplicity of considerations that apply in weighing that evidence. The Court described the benefits of the trier of fact as follows:
[18] The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.
[35] The CCB is a specialized tribunal with a distinct make up of members who the legislature considered best able to address the complex medical and legal issues associated with a finding of incapacity. The panel is presumed to be competent to make the requisite findings of fact as it relates to incapacity. Of course, this does not diminish the court’s role as an appellate review court but rather explains why deference is owed to the findings of the CCB.
[36] A finding of mixed fact and law also attracts the palpable and overriding error standard, unless the error can be attributed to “the application of an incorrect standard, a mischaracterization of a legal test or a similar error in principle” (see Markowich v. Lundin Mining Corporation, 2023 ONCA 359, at para. 39). However, as stated in Housen, the extraction of an error of legal principle from the factual analysis is difficult, and it is only where the error is “readily extractable” that the standard of correctness applies (see para. 39).
The Legal Test to be Applied
[37] Section 4(1) of the Act sets out the test for capacity as it relates to medical treatment. A person is capable of consenting to treatment if that person is both able to 1) understand the relevant information, and 2) appreciate the reasonably foreseeable consequence of taking or refusing to take the proposed treatment. This appeal concerns the second part of the test. Section 4(1) of the Act reads as follows:
4 (1) 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.
[38] The Act specifically provides for a presumption of capacity. This is provided for in s 4(2) which reads as follows: 4(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.
[39] The onus is on the party asserting that the person lacks capacity. In this case, the legal onus was on Dr. Weissglas to establish on a balance of probabilities that A.K lacked the required appreciation of the reasonable consequences of either taking or not taking the prescribed anti-psychotic medication.
[40] As noted, Dr. Weissglas conceded that A.K was capable of understanding the relevant information about treatment but was unable “to appreciate the reasonably foreseeable consequences of a decision or lack of a decision”. The Supreme Court of Canada described the second part of the test in in Starson v. Swayze, 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 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.
[41] In addressing what is meant by appreciating the foreseeable consequences of treatment, the Court of Appeal in Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587, referred to Chief Justice McLachlin’s comments in dissent at para. 17 of Starson v. Swayze where she quoted with approval from the reasons of Arbour J.A. in Khan v. St. Thomas Psychiatric Hospital (1992), 7 O.R. (3d) 303 (C.A.) at p.314:
[T]here are situations where a person may understand in an intellectual sense the subject-matter in respect of which consent is requested and further understand the nature of the illness for which treatment is proposed and understand the treatment proposed, but his or her ability to appreciate the same as it relates to themselves may be impaired by mental disorder.
[42] The Chief Justice went on to state at para. 18 of Starson: Commentators have identified three “common clinical indicators” of a person’s ability to appreciate the consequences of accepting or declining treatment: “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. … These indicators provide a useful framework for identifying what “ability to appreciate” means in concrete terms. [Emphasis added.]
[43] In assessing the evidence, the CCB was required to consider the issue of incapacity at the time of the hearing (Starson, para 118). Both sides agree that prior conduct was relevant and could be considered. This would include the clinical notes, and the assessments that led to Dr. Weissglas’ conclusion of incapacity, both of which occurred in the weeks and days immediately prior to the hearing. However, A.K’s counsel asserted that the CCB was required to give greater emphasis to A.K’s testimony on the date of the hearing. While the evidence of A.K was undoubtedly important, the CCB was entitled to weigh all the evidence in coming to its conclusion. The clinical notes and observations by Dr. Weissglas of A.K were important evidence which the CCB was entitled to consider in assessing A.K’s evidence and his capacity at the time of the hearing. In considering if there was a palpable and overriding error, this court is required to consider whether the totality of the case was misread by the CCB, not whether more emphasis ought to have been placed on some evidence over other evidence. As the Supreme Court noted at para. 33 of Hydro-Quebec, the error must connote “a misreading of the case whose impact on the decision is plain to see.” I do not find any such error by the CCB in considering and weighing the evidence to arrive at its factual findings.
Alleged Errors
[44] A.K alleged that the CCB made three palpable and overriding errors in its assessment of the evidence.
[45] The first is whether the CCB erred when it found that A.K “in response from panel members, denied having any symptoms of schizophrenia or any other mental disorder at the time of the hearing.” It is asserted that the panel members never asked questions about any of A.K’s symptoms. In contrast, it is asserted that when asked about his illness, A.K was able to describe that the doctors had diagnosed him as a “schizophrenia.” Elsewhere, when asked about whether he had schizophrenia he said, “maybe I do, doctors know better”. It is suggested that these excerpts and his general acknowledgment that he might have schizophrenia demonstrated a recognition of his schizophrenia and its manifestations.
[46] Second, A.K takes issue with the finding that “the medication provided him no benefits other than allowing him to sleep a little better”. A.K points to his testimony wherein he stated as follows: Q. So, just to clarify, the benefit of the Olanzapine for you is that it allowed you to sleep? A. Yes, yes. I cannot sleep without it. Q. Was there any other, was there any other benefit to the Olanzapine? A. Benefit, yes. Like, you feel like 100 percent [indiscernible]. You don't have any problem; people talk to you like you're a sane person. But I actually needed that medication. (A.K’s emphasis)
[47] The third alleged erroneous conclusion by the CCB is said to be tied to the second insofar as the panel said that A.K “clearly denied suffering from any manifestations of mental disorder”. It is pointed out that during his testimony, A.K said, at the very least, that he “recognized the possibility” that he suffered from the manifestations of a mental disorder.
[48] I do not believe the that these three alleged errors, either individually or collectively, constitute a palpable and overriding error such that I should set aside the CCB’s decision.
[49] In respect to the first alleged error, it is correct that the panel members did not ask questions that addressed the manifestations of A.K’s schizophrenia. However, there was plenty of evidence provided by Dr. Weissglas and even A.K regarding A.K’s inability to appreciate the manifestations of his illness. The fact that the CCB misdescribed who asked the relevant questions is not the type of error that could be said to “be determinative of the case”.
[50] The CCB had regard to the evidence of Dr. Weissglas who described a number of A.K’s manifestations of his illness which included self-harm, delusions, aggression towards others, and threatening to kill others. Dr. Weissglas testified as to A.K’s talk of guns, being a member of the Russian military, and awaiting orders to kill somebody. Dr. Weissglas testified he was concerned about self harm to A.K who was seen hitting himself during the hearing.
[51] In contrast, in his testimony, A.K never acknowledged any symptoms. Comments such as “maybe I’m delusional” and “maybe I have schizophrenia” are not acknowledgements of the symptoms of the disease or its manifestations. Rather, they are deflections of the issue. They are not what Chief Justice McLachlin described in Starson v. Swayze as the ability to “to acknowledge the fact that the condition for which the treatment is recommended may affect him or her.” To say that a doctor believes you have a condition, is not the same as having an appreciation of how that condition is affecting you. The conclusion of the CCB that A.K did not acknowledge the manifestation of the schizophrenia, including the delusions, is supported by the evidence, and does not constitute an overriding and palpable error.
[52] When asked about delusions, A.K responded, in part, “What kind of delusions? You, you think I’m delusional that I'm a professional boxer; no, I am a professional boxer. I can punch people and they can get the brain damage right away.” The testimony of Dr. Weissglas was that A.K’s delusional thinking was far beyond his claim that he is a boxer. It was argued by A.K that there was no evidence proffered by Dr. Weissglas that the delusional statements were not, in fact, true. In the cross-examination of Dr. Weissglas, counsel suggested that if A.K was, in fact, an arms dealer then saying so would not be a delusion. In argument, it was argued that as the onus was on Dr. Weissglas, he had to prove that all the delusions were in fact false narratives. I disagree.
[53] First, Dr. Weissglas was required to apply his professional judgment to the totality of A.K’s presentation. He testified that A.K suffered from delusional thoughts which were not coherent and were often contradictory. Much of that delusional thinking had to do with violence and weapons. Some involved aggressive statements to staff and co-patients including racist and homophobic comments which were inconsistent with A.K’s baseline assessment. The CCB accepted Dr. Weissglas’ evidence which it was entitled to do. Based on its assessment of the evidence, the CCB concluded that A.K is unable to recognize that he is affected by the manifestations of his mental illness such that, he is unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision. This finding was supported by the evidence.
[54] It is argued that it was unfair not to put each delusion to A.K when he was examined by Dr. Weissglas. In this case, the issue of delusions was clearly in play from the outset. Dr. Weissglas in his examination set out the delusions. There was no surprise to A.K or his counsel as to what Dr. Weissglas was relying upon in arriving at his conclusion. A.K testified with the assistance of counsel but never addressed the delusions in his own testimony. He was asked generally in examination by Dr. Weissglas about delusions and answered, as set out earlier, about boxing. It was not necessary for Dr. Weissglas to go further. A.K’s counsel could well have asked A.K about the other delusions, if there was a concern of dispelling the facts or inference raised by Dr. Weissglas’ testimony.
[55] On the second argument, the CCB did not commit a palpable and overriding error in its assessment of A.K’s appreciation of how the medication affected him. As evident from the excerpts reproduced earlier in these reasons, A.K said several times that the medication made him sleep better. For example, when asked what the medication was treating him for, A.K replied: “-- you have to take it every day, every night before you go to bed. And if you don’t take it, you cannot fall asleep. You sort of take it, you fall asleep. If you forget to take it, you, you cannot fall asleep”. Elsewhere, he talked about the impact of taking the medication being that if you “take one pill before you go to bed, you sleep, you, you wake up, in the morning you’re just fine”.
[56] In contrast, there was no appreciation by A.K that the medication addressed any of the symptoms related to the schizophrenia, such as delusions, self-harm, aggression towards others, etc.…When read in context, the comment that A.K felt “100%”, was not misconstrued by the CCB. Read in its totality, the CCB was entitled to conclude that A.K believed that the “the medication provided [A.K] no benefit other than allowing him to sleep a little better”.
[57] Third, it is asserted that the finding by the CCB that A.K denied the manifestation of his symptoms was an erroneous finding. It is asserted that A.K acknowledged the “possibility” he suffered from the “broader manifestations of the mental condition.” It is said that this argument is to be considered with the second argument. As discussed above, there was no appreciation by A.K that he suffered from the delusions or that his violent thoughts and statements towards others were a manifestation of his mental illness. Based on the evidence, the CCB was entitled to conclude as it did on this point.
[58] I conclude that there was a sufficient evidentiary basis for each of the alleged erroneous factual findings.
[59] It is argued that the CCB erred either in law or as a matter of mixed fact and law as to the application of those factual findings to the test set out in Starson. I disagree.
[60] The facts established that A.K was not “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” In applying the facts to the law, I cannot find an inextricable error that requires any intervention on the correctness standard. Similarly, I can not find a palpable and overriding error in the CCB’s application of the facts to the law.
[61] This case is similar to S.H. v. Prakash, 2023 ONCA 459 which was released after the CCB’s decision in this case. In S.H., the patient was unable to appreciate that he suffered from delusions. In applying the second part of the Starson test, the court noted at para. 11 that the “distinction between the ability to appreciate the possibility that certain conduct or beliefs were the manifestation of a medical condition and an acceptance of that diagnosis” were two separate considerations. In that case, the court found that the CCB was correct to consider capacity with reference to the patient’s ability to appreciate the manifestations of his illness. The Court of Appeal found that the appellate judge properly applied the second prong of the Starson test when the judge found as follows: The appeal judge, at para. 49, went on to conclude that:
[A] sufficient evidentiary basis [existed] for the Board to conclude that he [the appellant] is unable to recognize that he is affected by manifestations of a mental condition. The condition afflicting the appellant does not prevent him from understanding that others attribute his delusions to a mental health condition, but it prevents him from being able to appreciate the possibility that this may be true. The appeal judge further determined, at para. 52, that the CCB had properly applied the principles in Starson to the facts as found, holding: The Appellant’s inability to appreciate the possibility he was affected by the manifestations of the mental condition for which treatment was being proposed left the Board with no alternative but to conclude that he was incapable of making a reasoned decision to decline the recommended treatment.
[62] Like S.H., A.K does not accept his diagnosis, nor does he appreciate the manifestations of his illness. Similarly, the CCB was justified in concluding, as it did, that A.K was not able to “recognize he was experiencing the manifestation of an illness” and, as such, “was thus unable to apply his own circumstances to the information he was given about schizophrenia and the treatment of it”. In my view, the CCB correctly applied the facts as it found them to the second part of the test as set out in Starson.
DISPOSITION
[63] The appeal is dismissed. On agreement of the parties, there will be no order of costs.
J. Callaghan Released: September 21, 2023
COURT FILE NO.: CV-23-00694178-0000 DATE: 20230901
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
A.K Appellant – and – DR. JUSTIN WEISSGLAS Respondent
REASONS FOR JUDGMENT
J CALLAGHAN, J. Released: 20230921