Court File and Parties

Court File No.: CV-23-042 Date: 2023-11-06 Ontario Superior Court of Justice

In the Matter of: an Appeal from a decision of the Consent and Capacity Board, Pursuant to the Health Care Consent Act, S.O. 1996, chapter 2, Schedule A, As amended,

Between: Brandon Mott, Appellant And: Dr. Arun Prakash, Respondent

Counsel: Lisa Leinveer, for the Appellant Julie Zamprogna Ballès, for the Respondent

Heard: October 23, 2023

Before: Tranquilli J.

Overview

[1] Mr. Mott appeals a Consent and Capacity Board decision that upheld the Respondent treating psychiatrist’s finding that the Appellant is incapable of consenting to treatment with anti-psychotic medication.

[2] The Appellant has a primary psychotic disorder diagnosis of Schizophrenia; a diagnosis that he denies. There is no dispute the Appellant can understand the information relevant to making a decision about the proposed treatment.

[3] At issue is the Board’s conclusion that the Respondent established that the Appellant is unable to appreciate the reasonably foreseeable consequences of his decision to decline treatment for his psychotic symptoms. The Board found the Appellant was unable to recognize that he was affected by the manifestations of a mental condition and that the reason for this inability was due to the nature of the condition itself such that he was unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

[4] For the reasons that follow, I conclude the Board’s decision was based upon a correct understanding of the applicable law and that the Board had ample cogent evidence on which to make its determination of incapacity to treatment with anti-psychotic medication.

Background

[5] The following background relevant to this appeal comes from the uncontradicted evidence at the Board hearing. The Respondent treating psychiatrist, Dr. Prakash, was the sole witness. Mr. Mott did not testify and did not call other evidence.

[6] In 2014, the now 32-year-old Appellant entered the forensic system after he was found not criminally responsible for theft. The charge arose from an incident where he had entered a private residence while the occupants were asleep. When confronted by one of the occupants, he fled with a lighter. He was initially released on conditions but in July 2015 the Ontario Review Board (“ORB”) ordered him detained. He has been under the supervision of the ORB for approximately the last nine years.

[7] The Appellant was detained at the Southwest Centre for Forensic Mental Health St. Joseph’s Healthcare London beginning in 2015. He has a primary diagnosis of schizophrenia with concurrent diagnoses of Substance Use Disorder, Antisocial Personality Disorder (“ASPD”) and Attention Deficit Hyperactivity Disorder (“ADHD”). He was consistently found incapable of making treatment decisions regarding antipsychotic medication. He has challenged previous treatment decisions without success. A finding of incapacity to consent to anti-psychotic medications has been in effect since 2015.

[8] Forensic psychiatrist Dr. Chaimowitz assessed the Appellant in May 2021 at the Ontario Review Board’s request. Dr. Chaimowitz concluded that while the Appellant’s criminal history consisted of mostly relatively minor offences, he had remained in the forensic system and failed to progress to any significant degree. He found the Appellant had “absolutely no insight into his illness or current situation”. The Appellant had no appreciation of the interaction between his illness, the law, the hospital and the Ontario Review Board.

[9] The Appellant has received the anti-psychotic Clopixol by intramuscular injection for the last 5 years. The dose was incrementally increased to manage the Appellant’s psychotic symptoms. In 2022 his dose was increased to 500 mg weekly. The Respondent found the Appellant’s symptoms responded favourably to this optimal dose.

[10] As a result, for the first time in eight years, the Appellant was approved to live in the community in a 24-hour supervised group home in London, on terms that he would submit to substance use testing and abstain from drug and alcohol use. Since being on community supervision, the Appellant has had three psychiatric admissions between June 2022 and February 2023. Two of the admissions were found to be secondary to substance use and the third because of suspected substance use.

[11] The Appellant denies he has schizophrenia. In or about March 2023 he asked the Respondent to reduce the anti-psychotic to less than half of his current dose, from 500 mg weekly to 400 mg every two weeks. He claimed the current level caused light-headedness and fainting.

[12] Dr. Prakash reassessed the Appellant in March 2023 as he understood Mr. Mott intended to challenge the ongoing Clopixol treatment. Dr. Prakash reviewed the Appellant’s history with him at that time. The Appellant denied he had previously demonstrated psychotic symptoms including impaired thought processing and paranoia with delusions. His mental status and behaviour were additionally hampered by substance use. Dr. Prakash explained that once the Clopixol treatment started, the care team noted the Appellant’s psychotic symptoms lessened. This would indicate the behaviours were related to his psychotic disorder and not his other diagnoses such as substance use. Further, in 2018, when there was no evidence that the Appellant was using substances, it was nevertheless documented the Appellant was clearly psychotic and paranoid. The Appellant denied that any of this history was correct.

[13] In Dr. Prakash’s view, the Appellant was unable to recognize his mental disorder symptoms. His psychosis symptoms initially interfered with his ability to recognize the symptoms. Now that his psychosis was optimally treated, Dr. Prakash’s opinion is the Appellant’s antisocial personality disorder, specifically his inability to trust people in authority, was preventing him from recognizing his past symptoms or his history of mental illness.

Board Decision

[14] In its reasons of April 5, 2023, the Board made the following findings:

a. The evidence was clear, cogent and compelling that Mr. Mott was unable to recognize that he was affected by the manifestation of a mental condition, and that the reason for this inability was due to the nature of the condition itself. The uncontested evidence established the Appellant lacked insight. His inability to recognize his well-documented symptoms and history were also impaired by his concurrent diagnosis of ASPD which made him unable to trust his physicians.

b. It was therefore unnecessary to embark on an analysis of whether the Appellant was able to engage weighing the risks and benefits of the recommended treatment. Nonetheless, the Board accepted that Dr. Prakash had reviewed the foreseeable benefits of treatment and foreseeable consequence of no treatment. Although his assessment note was abbreviated as to the discussion about the medication side effects, the assessment was adequately documented. There was no evidence that side effects played a meaningful role in the Appellant’s wish to avoid the treatment.

c. The evidence did not support the Appellant’s position that it was reasonable for him to believe there were no consequences to taking or not taking the anti-psychotic medication. The evidence established the Appellant enjoyed “fairly remarkable” improvements once the Clopixol dosage was optimized.

d. The Board also did not accept the submission that his psychosis was more likely precipitated by substance use as opposed to a primary psychotic disorder. The evidence was clear the Appellant was repeatedly diagnosed with a psychotic disorder requiring treatment even when he was not using substances.

Issue

[15] The parties agree on the standard of review. The determination of whether the appellant had the capacity to consent to treatment is a question of mixed fact and law. The standard of review is palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[16] The law presumes persons are capable in respect of treatment decisions. The onus of proving incapacity is on the person alleging it. A person is capable of consenting to treatment if they meet the two statutory branches of this test: (1) they are able to understand the information relevant to making a decision about the proposed treatment; and (2) they are able to appreciate the reasonably foreseeable consequences of a decision or lack thereof: Health Care Consent Act, 1996, s. 4(1).

[17] Only the second branch of this test is under scrutiny on this appeal: Is the Appellant able to appreciate the reasonably foreseeable consequences of a decision or lack thereof?

[18] Mr. Mott submits the Board erred in its application of the second branch of the capacity test. He argues the Board failed to appropriately account for and address his reported side effects from the Clopixol treatment along with the role that substance use played in his mental health history.

[19] The Appellant submits the Board fell into error in failing to account for evidence that demonstrated the Appellant’s position regarding treatment was reasonable. He submits the Board:

a. Failed to appropriately account for the treatment side-effects he reported, such as light-headedness, fainting spells, and failure to maintain erection;

b. Failed to properly consider the role substance use has played in the Appellant’s mental health history. He has a significant history of substance use and the Board failed to account for evidence that the Appellant functioned well when he was not impacted by those substances; and

c. Improperly considered the Respondent’s evidence as to the risk of violence should the anti-psychotic treatment end.

Analysis

[20] The Appellant submits the Board was in error in finding that he was not able to recognize the possibility that he is affected by a primary psychosis condition. Further, the Board failed to consider the Appellant’s lived experience with the Clopixol side effects that informed his belief regarding the treatment. He also contends the Board’s acceptance of the Respondent’s diagnostic opinion failed to account for the fact that his history of substance use correlated with the presentation of his symptoms of psychosis. Finally, he submits the Board improperly relied upon evidence of a risk of violence in reaching its decision.

[21] I find the Board made no palpable and overriding error in its analysis and findings in its detailed review of the evidence.

The Second Branch of the Incapacity Test

[22] The Board’s reasons demonstrate they were alive to the test for capacity pursuant to s. 4(1) of the HCCA and the law of capacity to consent to treatment as articulated in Starson v. Swayze, 2003 SCC 32. The Board correctly concluded that the presumption of capacity remained intact under the first branch of the test, given Dr. Prakash’s uncontradicted opinion that the Appellant understood the information relevant to making the decision. The focus of the Board’s detailed inquiry was on the second part of the test, being whether the Appellant was able to appreciate the reasonably foreseeable consequences of a decision or lack thereof about the anti-psychotic treatment in issue.

[23] In its reasons the Board paid express attention to the nuanced principles that bear on the application of the second branch of the test as outlined in Starson v. Swayze, 2003 SCC 32 at paras 79-81: The Act requires a patient to have the ability to appreciate the consequence of a decision. It does not require actual appreciation of those consequences. In practice, the capacity determination should begin with the patient’s actual appreciation of the parameters of the decision being made. If the patient shows an appreciation of those treatment parameters, he has the ability to appreciate the decision he makes, regardless of whether he weights or values the information differently from the physician or disagrees with the treatment recommendation. However, 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] To that end, the Board’s conclusion of the Appellant’s incapacity on the second branch of the test was supported by the evidence. The Board found that the “unchallenged opinion” of Dr. Prakash established that the Appellant was unable to recognize that he was affected by the manifestations of a mental condition, and that the reason for this inability was due to the nature of the condition itself. At page 14 of its reasons, the Board continued:

As Dr. Prakash indicated, commonly, persons with schizophrenia lack insight. He went on to indicated that in BM’s case, his ability to recognize the facts of his symptoms and history was also impaired by co-occurring ASPD which made him unable to trust his physicians. None of this evidence was contested.

[25] The Board referred to the psychiatric assessment of March 23, 2023, and noted that while the Appellant was not obliged to accept that he had schizophrenia, he denied that he had been psychotic in 2019 or that in 2018 he claimed staff were putting spells on him, had given him cancer, or put sexual designs on him. Notwithstanding his simple denials of his history, the Board found these symptoms were well documented by his care team and that they had frequently reviewed his history with him.

[26] It was therefore open to the Board to rely upon Landry v. Strike, 2020 ONSC 6832 to conclude that as the Appellant was unable to recognize that he is affected by manifestations of his condition. It would therefore follow that the board was not required to inquire into the parameters the treatment. This was the correct approach and consistent with the established principles in Starson v. Swayze, 2003 SCC 32, at para. 79.

[27] The Board concluded that it was not established that the Appellant’s concerns about treatment side effects played a meaningful role in his wish to avoid treatment. The Appellant contends the Board unfairly discounted his lived experience of side effects from the Clopixol treatment, and which informed his belief about the consequences of taking or not taking the medication.

[28] The court does not agree with this submission. The Reasons show the Board discounted that argument after thorough consideration of the evidence. The Board acknowledged that Dr. Prakash’s capacity assessment was “fairly brief” and that the Respondent was inconsistent on the issue of whether he discussed the possible side effects associated with the treatment on that occasion. However, the Board concluded that the only evidence of side effects at the hearing came from Dr. Prakash and that he was able to “persuasively” speak to the contents of his discussion with the Respondent on March 23, 2023. The record shows that Dr. Prakash explained that he told the Appellant that the reported symptoms of fainting and light-headedness were unlikely to be a side effect from the Clopixol medication on which he had been stable since August 2022 without a change in dosage. The Respondent noted the Appellant’s request to reduce his Clopixol dose from 500 mg weekly to 400 mg every two weeks. The Appellant denied he would experience symptoms of decompensation on a reduced dose. Again, the Appellant asserted he did not have schizophrenia and did not have any issues in the past, therefore taking the capacity issue back to whether he was able to recognize he was affected by manifestations of his condition.

[29] The Appellant also pointed to his report to Dr. Chaimowitz in May 2021 of a treatment side effect of erectile dysfunction that was also unfairly discounted in assessing his capacity. However, it is noted that he made this report when he was on the lower dose of Clopixol than at present. This, in fact, is the lower dose which he proposed to the Respondent.

[30] The Board’s finding that the Appellant’s complaints of side effects did not play a meaningful role in his wish to avoid the treatment was therefore reasonable on the record before it.

Substance Use

[31] The Board concluded it was not persuaded that the Appellant’s psychosis was more likely precipitated by substance use than by a primary psychotic disorder.

[32] The Appellant submits the Board erred in failing to account for how the Appellant’s history of drug use correlated to psychosis symptoms and how periods of mental stability corresponded with periods of abstinence.

[33] The Board’s conclusion was reasonably supported by the uncontradicted evidence and opinion of Dr. Prakash. The Board noted it was clear the Appellant had been repeatedly diagnosed with a psychotic disorder requiring treatment even when he was not using substances, such as in 2018. Further, his history showed that substance use exacerbated and destabilized his condition but was not the primary explanation for his pyschosis.

Risk of Violence

[34] Finally, the Appellant challenges the Respondent’s evidence before the Board wherein Dr. Prakash testified the Appellant would be very likely to become violent if the Clopixol does was lowered. On cross-examination, the Respondent conceded there had been no serious violence in his past nine years in the forensic setting, despite ostensibly not responding to the anti-psychotic treatment at the time.

[35] I accept the Respondent’s submission that the Board’s reasons as a whole demonstrate it did not rely on the evidence of risk of violence in arriving at its decision on capacity. This testimony arose in the context of the risks and benefits of treatment versus no treatment. However, the Board applied Landry v. Strike, 2020 ONSC 6832, as previously reviewed, and having found he was unable to recognize he was affected by manifestations of his mental condition concluded it was unnecessary to embark on an assessment of the parameters of the treatment decision as summarized at Starson v. Swayze, 2003 SCC 32, paras. 80, 81: the nature and purpose of the treatment, the foreseeable risks and benefits, alterative courses of action and the expected consequences of treatment.

Conclusion

[36] The appeal is therefore dismissed. The court appreciates the assistance of counsel.

Justice K. Tranquilli

Released: November 6, 2023