COURT FILE NO.: CV-23-00694993-0000
DATE: 20230922
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
A.N
Appellant
– and –
DR. DOMINIC DIMANNO
Respondent
Eyitayo Dada, for the Appellant
Sheila Morris, for the Respondent
HEARD: September 5, 2023
REASONS FOR JUDGMENT
J. CALLAGHAN
[1] A.N was subject to a capacity assessment performed by Dr. Dominic Dimanno. Dr. Dimanno found that the appellant lacked the capacity to consent to the proposed medical treatment pursuant to s. 4(1) of the Health Care Consent Act (hereafter "Act"). The proposed treatment was the administration of antipsychotic drugs. A.N appealed that decision to the Consent and Capacity Board (“Board”). The Board upheld Dr. Dimanno’s finding. This is an appeal of the Board’s decision.
[2] 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
[3] A.N is in his late 50s and lives on his own. He has been diagnosed with a schizophrenic disorder and an opiate user disorder.
[4] A.N was brought to hospital by police on December 26, 2022. At that time, he believed that Ben Stiller and other actors had entered his apartment and knocked his television down and tried to re-route his cables. He was made an involuntary patient. On December 28, 2022, he was found to be incapable of consenting to treatment. Due to procedural issues, that finding of incapacity to consent to treatment was rescinded. A subsequent finding of incapacity to consent to treatment was made on January13, 2023, which was the subject of the Board hearing which is now
under appeal. Dr. Dimanno found that A.N was capable of comprehending the information as to treatment options but lacked the ability to appreciate the reasonably foreseeable consequences of a decision, or lack of decision as it related to the proposed treatment.
The Hearing
[5] There were three separate hearings related to this matter. There were two preliminary hearings which are not the subject of this appeal. The substantive hearing which is the subject of this appeal took place on January 31, 2023. A.N was represented at the hearing by Ms. Coelho. The respondent, Dr. Dimanno was not represented by counsel.
[6] Dr. Dimanno and the appellant’s sister testified at the hearing. The Board accepted the evidence of Dr. Dimanno. The Board also found that the appellant had the ability to understand the information relevant to making treatment decisions but concluded that the appellant failed the second part of the test for capacity in that he “lacked the ability to appreciate the reasonably foreseeable consequences of a decision or lack thereof”. As a result, the Board confirmed that the appellant was incapable of consenting to treatment with antipsychotic medications.
[7] The Board also confirmed the appellant’s status as an involuntary patient. This part of the Board’s ruling is not an issue on this appeal.
Issues
[8] The appellant raises the following issues:
Did the Board make a palpable and overriding error when it concluded that the appellant was incapable under s. 4(1), in circumstances where the appellant asserts that he was not provided with adequate information relevant to deciding whether to be treated with antipsychotic medication?
Did the Board make a palpable and overriding error in failing to recognize that capacity fluctuates over time?
Does the totality of evidence support the Board’s finding that the appellant was not able to appreciate the reasonably foreseeable consequence of its treatments with antipsychotic medication? Did the appellant acknowledge the manifestations of his conditions? Was that the appellant’s decision based on delusional belief or genuine concern regarding the side effects?
Standard of Review
[9] As this is a statutory appeal, the parties correctly concur that the standard of review from decisions of the Board follows the normal appellate standard of review (see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 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 Houson v Nikolaisen, 2002 SCC 33 see paras 5, 8).
The application of the facts to the test in s. 4(1) of the Act is a matter of mixed fact and law. Matters of mixed fact and law are determined on the palpable and overriding standard, unless it can be clearly demonstrated that the error was inextricably due to an error of law (see Gajewski v Wilkie, 2014 ONCA 897, para 33).
[10] The Supreme Court of Canada in Hydro- Quebec v Matta, 2020 SCC 37, at paragraph 33 described the palpable and overriding standard as follows:
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)
[11] 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 must be 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)
[12] Appellate deference to findings of fact includes the reasonable inferences drawn from those facts by the tribunal (H.L. v Canada (Attorney General), 2005 SCC 25 para 57).
Analysis
[13] Subsection 4(1) of the HCCA codifies a two-part objective test for treatment capacity. The first branch of the test requires the patient to have the “ability to understand the information relevant to making treatment decisions.” This requires the cognitive ability to process, retain, and understand the relevant information. The second branch of the test for capacity requires an “ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” This
requires a person to have the ability to apply the relevant information to his or her circumstances and the ability to weigh the foreseeable risks and benefits of a decision.
[14] The legislation presumes that all persons can make their own treatment decisions. The onus of proving incapacity is on the party alleging it. The case law is clear that having a mental disorder does not necessarily equate with incapacity (see Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, para 7). Moreover, the determination of a person’s capacity to make treatment decisions can fluctuate over time.
[15] Section 11 of the HCCA provides that the patient is to receive information about the nature of the treatment, the benefits of the treatment, the material risks associated with the treatment, alternative courses of action, and the likely consequences of not having the treatment. As to the first issue, the appellant submits that the Board made a palpable and overriding error when it upheld that the appellant lacked capacity to consent to treatment by antipsychotic medication, because the capacity assessment was deficient in that it did not document the requirements of section 11.
[16] The appellant states that the progress notes for January 13, 2023, did not record that Dr. Dimanno discussed with the appellant the expected benefits of the treatment, consequence of not having treatment, the material risks of the treatment or alternative courses of action.
[17] The progress note of January 13, 2023, reads, in part:
Writer met with patient today to discuss treatment options again. We discussed antipsychotic treatment once again, including aripiprazole. He voiced again that he does not need psychiatric medications as he is not mentally unwell. He knows about antipsychotic medications, including aripiprazole, and voiced that he does not need an antipsychotic because he is not psychotic. He voiced that it is his sister who is forcing the issue.
[18] There were many earlier discussions where treatment with anti-psychotic medication was discussed with the patient. There was also testimony by Dr. Dimanno about his discussions with
A.N. about treatment options:
MS. COELLO: And did you give A.N information that was necessary for him to make an informed decision about his treatment?
DR. DIMANNO: Yeah, and he told me he's very familiar with Abilify, because it was the medication that he's been on before, and he's very well versed in that, he told me. He just doesn't believe he needs it. He knows it's an antipsychotic and he's not psychotic, so he doesn't need Abilify. And that's the medication that we talked about, given that's the medication he apparently responded to in the past, her notes and his sister.
MS. COELLO: Have you discussed with A.N. the nature of his illness?
DR. DIMANNO: Yes, yes. But he doesn't believe. he has ---
MS. COELLO: And the nature – okay. And the nature of the treatment?
DR. DIMANNO: Yes, yes. He's very well versed that it's an antipsychotic and doesn't believe he needs it because he's not psychotic.
DR. DIMANNO: Okay. Have you discussed benefits of the treatment, the side effects, or any alternative course of action regarding treatment?
DR. DIMANNO: Oh, we have. And we discussed there's other antipsychotics that we could try, but he's adamant that he doesn't need an antipsychotic.
MS. COELLO: Have you discussed with A.N. the likely consequences of not having treatment?
DR. DIMANNO: Yes, yes, that his symptoms will not resolve on its own.
MS. COELLO: When -- when did you discuss this with A.N.?
DR. DIMANNO: Oh, this is an on -- this is --this is a regular discussion that we have. But A.N., again, doesn't believe he has psychosis, so there's no need for this medication.
MS. COELLO: And have you documented these discussions with A.N.?
DR. DIMANNO: Yeah, I document in progress notes in the past. We've talked about Abilify. Specifically, Abilify, for example, is the medication he's been on and that he again stated that he doesn't need to be on an antipsychotic, he's not psychotic.
MS. COELLO: And you believe A.N. is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment?
DR. DIMANNO: No.
MS. COELLO: How did you come to this conclusion?
DR. DIMANNO: He doesn't believe he's psychotic. As -- it's a non-starter. He doesn't need to be on the medication. There's-- he's not ill.
MS. COELLO: Is A.N. willing to take any anti-psychotic medication?
DR. DIMANNO: No, no. No antipsychotics. He's made that clear.
[19] The Board accepted the evidence of Dr Dimanno and further found that he attempted to explain the proposed treatment. The Board found specifically that:
Dr. Dimanno testified that he tried to educate A.N about the benefits and risks of the medication. In his testimony, A.N disputed that the doctor had provided him with any information regarding the proposed treatment. Not only did we find A.N's testimony unreliable in this regard, but we also noted that Dr. Dimanno and others had documented several attempts to discuss treatment with A.N. Where A.N's evidence differed from that of the doctor, we preferred the evidence of the doctor.
[20] The Board then reviewed the notes of the treatment sessions. The panel concluded that the notes reflected that Dr Dimanno attempted to explain the treatment proposals but that A.N was unable or unwilling to process the information. The panel said, in part:
T
We found on the totality of the evidence, both Dr. Dimanno's oral and written evidence that attempts had been made to educate A.N about the proposed treatment. However, A.N was dismissive of the doctor's explanations. Against this background and A.N’s ongoing assertion that he did not suffer an illness that required treatment, we found that Dr. Dimanno had made adequate attempts to provide the relevant information to A.N regarding the parameters of his treatment decisions.
[21] The appellant relied heavily on G.A. v Kantor, 2022 ONSC 4434 (OSC). In that case, the court held that the treatment options were not adequately explained to G.A. This was in large part because the doctor testified that he “could not recall if he provided G.A. with information relevant to making a decision in respect of the CTP and anti-psychotic medications”. That is not the case here. In this case, the Board accepted that Dr. Dimanno made adequate attempts to educate A.N, as to the parameters of his treatment decisions but due to A.N’s unwillingness to accept that he had a condition requiring treatment, he was unable or unwilling to listen.
[22] The failure by a doctor to properly explain the nature, benefits and consequences of medical treatment may be the reason for a patient not appreciating the consequences of treatment. However, that was not the finding of the Board. Rather, the Board found that the illness itself was preventing
A.N from appreciating the benefits of treatment. That finding was supported by the evidence. In doing so, the Board cited Starson at para 79 where the SCC commented: "if a 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." The panel went on to find:
In our view, AN lacked the ability to appreciate the consequences of his decisions with respect to treatment with antipsychotics because he was unable to appreciate that he suffered from a psychotic illness, and attendant symptoms, such as, thought disorganization, irritability, and significant delusional beliefs. Nor was AN able to make a meaningful connection between his symptoms and his repeated decline in the community, evidenced by multiple recent hospitalizations. AND was not able to appreciate the potential benefits of the medications being proposed because he
was unable to recognize that he suffered from symptoms of an illness that would likely attenuate with medication.
In our opinion, AN's symptoms prevented him from having the ability to recognize the manifestations of his condition and to evaluate the relevant information as it applied to his own circumstances. Absent an ability to make a connection between his mental disorder and its effects on him and an inability to connect his improvement to medication adherence, he did not have the ability to evaluate the information or to weigh the benefits of the proposed treatments against their risks. Consequently, the panel found it had been proven that AN was incapable with respect to antipsychotic medication.
[23] I find no fault with the rationale of the Board. The Board’s decision correctly applies the reasoning in Starson to the facts as the Board found them and is consistent with the Court of Appeal’s decision in Giecewicz v. Hastings, 2007 ONCA 890. In that case, the court upheld an appeal of a Board decision where the appellant could not comprehend the advice of the treating physician due to the patient’s failure to appreciate his condition. At para 38, Doherty J stated as follows:
I have set out the evidence in some detail because, in my view, that evidence speaks to the very situation described by both Major J. and McLachlin C.J.C. in the passages from their reasons in Starson v. Swayze quoted above. According to Dr. Hastings, the appellant suffers from a mental disorder that in the words of Major J., quoted above at para. 17 makes her unable to apply the relevant information given to her to her own circumstances and unable to appreciate the consequence of her decisions. Dr. Hastings testified that the appellant’s inability to acknowledge the existence of the condition for which he had recommended medication thoroughly undermined her ability to evaluate that information and his advice.
[24] On the second ground of appeal, the appellant asserts that the Board failed to recognize that a patient may not be capable of consenting at one time and yet may be capable of consenting at a different time. In this regard, it is said that the Board relied too heavily on the assessment of incapacity by Dr. Mottaghian, dated December 28, 2022, which was later vacated. However, there is nothing in the Board’s decision to suggest that it was not alive to the fact that the assessment of capacity is a temporal assessment. Indeed, the evidence of Dr. Dimanno was that he reconfirmed his assessment on the morning of the hearing.
MS. COELLO: Dr. Dimanno, um, are you aware that a person's capacity to consent to treatment can fluctuate and a person may be without capacity at some point and then regain capacity at another point?
DR. DIMANNO: Yes.
DR. DIMANNO [sic.MS. COELLO]: As of today, the day of the hearing, do you still maintain that A.N. lacks capacity to consent to his own treatment?
DR. DIMANNO: Yes.
[25] The reference to the December 28 assessment of Dr. Mottaghian was not improper but rather part of the Board’s narrative. The Board reviewed A.N.’s treatment history to assess if the presentation of the patient was consistent in that he not only suffered from a mental condition, but that he was unwilling or unable to comprehend the treatment advice. As the Board noted “Not only did we find AN’s testimony unreliable in this regard [i.e., regarding being provided information regarding the proposed treatment], but we also note that Dr Dimanno and others had documented several attempts to discuss treatment.” The note of Dr. Mottaghian is very similar to Dr. Dimanno’s progress note of January 13 in that A.N denied benefiting from medication and denied he suffered any psychotic symptoms. In doing so, the Board was testing the evidence of Dr. Dimanno wherein he testified that he provided A.N with the necessary information regarding the proposed medication but that the advice was not comprehended by A.N because the patient failed to recognize he suffered from a condition requiring treatment. As noted above, the Board accepted Dr Dimanno’s evidence where it differed with A.N on this point. There is nothing in the Board’s decision that suggests that it was not addressing A.N’s capacity as observed by Dr. Dimanno at the appropriate time.
[28] The last ground of appeal addresses whether A.N appreciated his diagnosis such that he could appreciate the treatment recommendation. The Court of Appeal in S.H. v Prakash, 2023 ONCA 459, which came out after the Board’s decision in this case, considered a similar circumstance. In that case, the patient was unable to appreciate that he suffered from delusions. In S.H., the court was similarly addressing the second part of the Starson test. The court noted 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 things. The failure to appreciate the possibility that certain conduct or beliefs were the manifestation of a medical condition prevented the patient from appreciating the benefits and risks of the recommended treatment. In that case, the Court of Appeal held that the appeal judge correctly found the Board did not err when it concluded there was a sufficient evidentiary basis for the Board to conclude that the patient was unable to recognize that he was affected by manifestations of a mental condition for which treatment was being offered. Similarly, in this case, there was no error in the Board’s application of the facts to the law.
[29] It is argued that the Board erred in not finding that A.N acknowledged the manifestations of his illness. A.N testified that the day he was taken to the hospital that he took Sleep-Eze which caused him to hallucinate. The Board expressly considered this evidence. The Board did not accept that the hallucinations were the result of the sleeping medications. The Board found that A.N believed that his hallucinations were, in fact, real and that he genuinely believed people were out to hurt him. As such, the Board found that A.N did not appreciate the hallucinations were manifestations of his illness. The Board’s findings in this regard are supported by the evidence and do not constitute an error.
[26] It is submitted that A.N had a legitimate concern about the effectiveness of the medication. The evidence was that one of A.N’s hallucinations was that doctors were contaminating his medication , described as a “false prescription”, which A.N. said made the medication ineffective. He had earlier said this happened when he picked up his drugs from the drug store. There was no suggestion that this was anything other than a hallucination. This was not a valid concern over the
medication such that it demonstrated that A.N appreciated the benefits and risks of the proposed treatment.
CONCLUSION
[27] In this case, there was sufficient evidence before the Board to conclude that A.N could not make “a connection between his mental disorder and its effects on him” and , as a result, “he did not have the ability to evaluate the information or to weigh the benefits of the proposed treatments against their risks.” There was no error by the Board either in its assessment of the evidence or in its application of the evidence to the applicable legal standard.
[28] The appeal is dismissed. On agreement of counsel, there will be no costs.
J. Callaghan
Released: 20230922
COURT FILE NO.: CV-23-00694993-0000
DATE: 20230922
ONTARIO
SUPERIOR COURT OF JUSTICE BETWEEN:
A.N
– and –
DR. DOMINIC DIMANNO
Appellant
Respondent
REASONS FOR JUDGMENT
J Callaghan, J.