Superior Court of Justice - Ontario

COURT FILE NO.: CV-22-689460-0000

DATE: 2023-02-08

RE: Joshua Schwartz AND: Dr. Steven Gelber

BEFORE: J.T. Akbarali J.

COUNSEL: Ikenna Aniekwe, for the appellant Patrick A. Wright, for the respondent

HEARD: February 1, 2023

ENDORSEMENT

Overview

[1] The appellant appeals from the decisions of the Consent and Capacity Board (the “CCB”) dated October 12, 2022, which confirmed the finding of the respondent that the appellant is incapable of consenting to a Community Treatment Plan (“CTP”), and which confirmed that the Community Treatment Order (“CTO”) issued by the respondent met the statutory criteria under the Mental Health Act, R.S.O. 1990, c. M.7.

Brief Background

[2] The appellant is 41 years old. He has a lengthy history of severe OCD, hoarding disorder, major depressive disorder with possible psychotic features, and polysubstance use disorder. In particular, he uses alcohol and cannabis.

[3] The appellant is on the Ontario Disability Support Program (“ODSP”). The Public Guardian and Trustee (“PGT”) is in charge of his finances. The appellant is not employed.

[4] The appellant lives with his fiancée. His parents live nearby. He receives assistance and support from all of them.

[5] The respondent has been the appellant’s community-based treating psychiatrist for more than 12 years.

[6] The appellant was admitted to hospital in 2021 twice. First, on June 11, 2021, he decompensated in the community, and was found incapable with respect to antidepressant and antipsychotic medications, and of managing his property. He was discharged on August 12, 2021, but was re-admitted a week later after decompensating again. During this second admission, he was found incapable with respect to treatment with antipsychotic medications and a CTP. A CTO/CTP was issued requiring him to receive treatment with long-acting antipsychotic medication by way of injection (“LAI”). In addition, he was prescribed oral medications including an anti-depressant and a drug to assist with addiction. The appellant was discharged on September 9, 2021.

[7] Shortly after his discharge, the appellant was exhibiting behaviours of substance abuse, confabulation and disorganization. The respondent modified his medication. By October and November 2021, the appellant’s behaviour and mental status had improved. At that time, the appellant appeared to be compliant with his medications. His parents would visit him daily to administer them by crushing them into applesauce.

[8] Unfortunately, on January 10, 2022, the appellant’s parents reported a significant deterioration in the appellant’s condition. The respondent found symptoms of major depression, OCD and possible psychotic disorder. In March 2022, the appellant’s family reported that the appellant had engaged in violent and aggressive behaviour, and was hoarding large quantities of marijuana. The appellant denied mental health problems and declined to attend cognitive behaviour therapy.

[9] The CTO expired in March 2022, but the appellant was not aware of its expiry until May 16, 2022. The appellant continued to attend for his LAI, accompanied by a family member, even after he became aware that the CTO had expired. However, his family reported that he was resisting taking his oral medications. His behaviours, including his obsessive and combative behaviours, continued.

[10] At an appointment on July 22, 2022, the respondent discussed a proposed CTP with the appellant, including an LAI, but the appellant refused to consent. The respondent completed an assessment of the appellant and determined he was incapable of consenting to the LAI and the CTP. The appellant’s mother, as his substitute decision maker, consented to the CTP, which was signed on July 22, 2022.

[11] On August 29, 2022, the appellant applied to the CCB for a review of the respondent’s finding that he was incapable of consenting to the LAI and the CTP, and to review whether the CTO issued by the respondent satisfied the required statutory criteria.

[12] The hearing proceeded before the CCB on September 23, and October 12, 2022. The appellant did not attend or give evidence. The CCB received documentary evidence from the parties and heard evidence from the respondent and the appellant’s mother.

[13] On October 12, 2022, the CCB confirmed the respondent’s determination that the appellant was incapable with respect to the LAI and the CTP. It also determined that the statutory criteria for issuing the CTO were met.

Issues

[14] This appeal requires me to determine the following issues:

a. Did the CCB err in law in its application of the legal test to determine whether the appellant is incapable with respect to the CTP and LAI?

b. Did the CCB make palpable and overriding errors of fact in confirming the finding of incapacity?

c. Did the CCB make palpable and overriding errors in confirming that the CTO was valid because the relevant statutory criteria were met?

Standard of Review

[15] The appellant has exercised a statutory right of appeal under s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. [HCCA]. Pursuant to s. 80(10), on appeal, the court may exercise all the powers of the CCB, substitute its opinion for that of a health practitioner, an evaluator, a substitute decision maker, or the CCB, and/or may refer the matter back to the CCB with directions, for rehearing.

[16] The parties agree that normal appellate standards of review apply on this appeal. That is, questions of law are reviewable on a correctness standard, but questions of fact, and questions of mixed fact and law without an extricable error of law, are reviewed for palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 10, 16-17. 23. 25 and 37; Starson v. Swayze, 2003 SCC 32, at para. 84.

Did the CCB err in law in confirming the finding of incapacity?

[17] Under s. 4(1) of the HCCA, a person is capable with respect to a treatment if (i) the person is able to understand the information that is relevant to making a decision about the treatment; and (ii) the person is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[18] The CCB found that the appellant met the first branch of the test for capacity, but did not meet the second branch.

[19] The parties agree that the CCB correctly identified the burden of proof and the legal test for incapacity. However, the appellant argues that the CCB misapplied the test by requiring the appellant to acknowledge the severity of his symptoms to be found capable, which the appellant states is not part of the test for capacity. A wrong application of the legal test can amount to an error of law: Housen v. Nikolaisen, 2002 SCC 33, at para. 27.

[20] The appellant relies on Starson, at para. 79, where the Supreme Court of Canada held that a patient need not agree with a particular diagnosis, but if it is determined that the patient has a mental condition, the patient must be able to recognize the possibility that he is affected by that condition. The condition refers to the broader manifestations of the illness. A patient need not describe his mental condition as an illness, or characterize it negatively. “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”.

[21] In this case, the appellant acknowledged his diagnoses of depression and OCD. The appellant relies on the respondent’s clinical note of July 22, 2022 to support his argument that the appellant recognized his diagnoses and the manifestations of those diagnoses. The note reflects that the appellant understood he was prescribed medication to treat OCD and depression. It reflects he had some understanding that certain of his behaviours, such as those involving picture-taking, had been compulsive, but he believed these obsessive behaviours were more under control than in the past.

[22] However, the note also indicates that the appellant stated his OCD was well-controlled, when there were concerns about his obsessional behaviour around golfing. The note reflects that the appellant reported that he was doing “good”, and smoking marijuana “less”, and some days not at all. However, his partner disclosed that he was smoking marijuana multiple times a day, and that he had displayed some angry and threatening behaviour. The appellant denied that he was spitting out his oral medications, or that he had ever done so; however, his family had reason to believe he was spitting out his oral medications regularly, and in the past, in hospital, he had been caught hoarding medication he had not taken as prescribed. The clinical note also recorded that the appellant was engaging in bizarre behaviour, like not wearing clothes appropriate for the season.

[23] The respondent explained in his evidence that the appellant’s statements were not necessarily lies, although some of them probably were. However, as a result of the appellant’s mental illness, he also confabulates, which is to say, he creates false memories and genuinely believes in them.

[24] In applying the legal test for capacity, the CCB considered the appellant’s lack of insight into of his symptoms. It is in this context that it considered his appreciation of the severity of his symptoms.

[25] In my view, it is necessary, when considering whether a person has the ability to appreciate the positive and negative effects of engaging or not engaging in the proposed treatment, to consider whether they have insight into their symptoms, including some degree of insight into the severity of their symptoms. An assessment of the pros and cons of treatment must occur within the context of the manifestations of the person’s mental illness, which, necessarily and practically, includes their severity. This approach is consistent with past decisions of the CCB: S.R. (Re), 2016 CanLII 32118 (ON CCB); B.B. (Re), 2017 CanLII 144430 (ON CCB).

[26] In any event, the CCB’s decision did not turn only on the appellant’s ability to appreciate the severity of his symptoms, but also on his inability to appreciate the role that his conduct and his adherence to medications played on his condition. After reviewing the evidence, and carefully directing itself about the proper use it could make of the evidence, the CCB concluded:

Because [the appellant] was unable to appreciate his own condition, or the role adherence to medications played on his condition, or how his own conduct contributed to his condition, we concluded he was incapable. The evidence satisfied on [sic] the second branch of the test.

[27] I see no error of law in the CCB’s application of the legal test for capacity.

Did the CCB make palpable and overriding errors of fact in applying the test for capacity?

[28] The appellant argues that the CCB made palpable and overriding errors of fact in its capacity analysis because it considered the evidence that the appellant did not comply with his oral medications, but there was no finding of incapacity with respect to those medications. As the appellant argues in his factum: “It is in effect a serious error to rely on the Appellant’s exercise of his lawful autonomy on one aspect of treatment to find him incapable of exercising autonomy on another aspect of treatment”. The appellant argues that the CCB engaged in the consideration of best interests, value judgment and the wisdom of the appellant’s choices, not the appellant’s mental capacity.

[29] In my view, this is not a fair characterization of the CCB’s reasons.

[30] First, the CCB was cognizant of the danger of applying a best interests test, and specifically directed itself not to do so in its reasons. There is nothing in the reasons that suggests that it ignored its caution to itself.

[31] The CCB considered the appellant’s non-compliance with his oral medications in a nuanced and particular manner. It indicated that it was careful to keep in mind that the issue it had to decide was the appellant’s incapacity for the LAI and CTP. It wrote:

We considered that the evidence of [the appellant’s] struggle to comply with his oral medications was relevant because it spoke to his insight and the relationship between OCD and medication compliance. We were satisfied that the partial understanding [the appellant] had had not resulted in him having the ability to appreciate the reasonably foreseeable consequences of his treatment decisions including those pertaining to antipsychotic medications and the CTP. We found that [the appellant] was unable to appreciate that his mental state was deteriorating, and unable to appreciate the essential role the LAI and the CTP were playing in keeping him as well as he was and keeping him in the community, particularly in the context of his nonadherence to oral medications and marijuana use.

[32] The CCB was entitled to apply the evidence about the appellant’s non-compliance with his oral medications in this very careful and nuanced manner.

[33] I also note that the CCB considered the evidence about the appellant’s confabulation by referring to examples, including his confabulation about being compliant with his oral medications. The CCB was entitled to consider the evidence in this manner as well.

[34] The CCB also noted the appellant’s compliance with the LAI after the prior CTO expired, but was not persuaded that the compliance was evidence of insight and capacity. It noted that the appellant did not know until mid-May that the CTO had lapsed, and that he always attended for his LAI with a family member. It concluded it was not evident that the appellant would attend on his own. Moreover, the appellant had asked to switch from his LAI to oral antipsychotic medications. The CCB concluded that his compliance with the LAI was not evidence of capacity, but rather, acquiescence.

[35] The CCB was entitled to make these findings of fact on the record before it.

[36] Separately, the appellant argued that there was insufficient evidence in the record to conclude that the appellant was not taking his oral medication. I disagree. There was ample evidence from the witnesses that the appellant would “cheek” his oral medication, or spit it out, or vomit it up.

[37] I thus conclude that the CCB made no palpable and overriding error of fact in determining that the appellant was incapable because the second branch of the test was not met.

Did the CCB err in confirming the validity of the CTO?

[38] Section 33.1 of the Mental Health Act sets out the criteria that apply for a physician to issue or renew a CTO. The statutory requirements at issue in this appeal, which the appellant argues were not met at the relevant times, are found in s. 33.1(c) (ii) and (iii). Section 33.1(4)(c)(ii) requires that:

the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

[39] In this case, the respondent determined, and the appellant disputes, that the criteria under s. 15(1.1) was met on July 22, 2022 and at the time of the heearing. Section 15(1.1) provides:

Where a physician examines a person and has reasonable cause to believe that the person,

(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person; and

(b) has shown clinical improvement as a result of the treatment,

and if in addition the physician is of the opinion that the person,

(c) is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; and

(e) is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained,

the physician may make application in the prescribed form for a psychiatric assessment of the person.

[40] The appellant argues that the import of these sections is that, for the CTO to be valid, the appellant had to be certifiable within the 72-hour period prior to the CTO and also at the time of the hearing. The respondent’s evidence did not support a conclusion that the appellant was certifiable at those times. The appellant argues that rather than grapple with the respondent’s evidence, the CCB accepted the submission of the respondent’s counsel that the respondent’s evidence, properly understood, was that if the appellant were not on a CTO, he would deteriorate to such a degree that he would be certifiable. The appellant argues that the CCB accepted counsel’s submission as if it were evidence.

[41] In my view, this is not a fair reading of the CCB’s reasons.

[42] First, I note that the CCB considered the evidence of the appellant’s history of significant clinical deterioration and decompensation when not treated, including his hospitalization twice in 2021 during a period of non-compliance with treatment. The CCB considered the appellant’s clinical progress into 2022, and the respondent’s evidence that the only thing preventing the appellant from deteriorating back to psychosis was the LAI he was receiving under the CTP. The respondent testified that the CTO would ensure the appellant continued to receive the LAI which was necessary to avoiding the appellant’s return to a severe and potentially life-threatening condition.

[43] The CCB also considered the respondent’s evidence about whether the appellant was certifiable. At the hearing, the respondent testified (by way of example only):

…it is my belief that [the appellant] has not gotten to the point that I felt that he was certifiable over the course of the CTO. He has deteriorated in his functioning, compared to how well he was in the fall, as of the fact that he is taking the injectable he has been able to not deteriorate to the point where he was last summer.

…at the moment, he does not meet the criteria to be certified and be in hospital. …and that’s the benefit of being on a [CTO], that has allowed us to maintain his treatment. If it was taken away, he would not take treatment which he has proven to do and then would likely – my view is that he would end up, that’s why we’re here today to end this. [I read this evidence as indicating that the appellant would end up in hospital without the CTO.]

[44] The CCB accepted counsel’s submission that the respondent’s evidence, properly understood, was that given the appellant’s history and current mental state, without the CTP and LAI he would likely deteriorate to such a degree that he would be certifiable. It noted that the respondent testified that it was the CTO and LAI that were maintaining the appellant’s mental state. While he was not as well as he had been in the fall of 2021, and not as well as he could be, he was neither psychotic nor catatonic, as he had presented during his hospital admissions in 2021. The CCB concluded that the respondent’s assessment of the appellant’s likely deterioration if not on the CTO and LAI was supported by the clinical records and the testimony of the appellant’s mother.

[45] It was open to the CCB to draw this conclusion from the evidence, including the respondent’s evidence. The fact that counsel urged it to do so in his submissions does not turn counsel’s submission into evidence nor does it suggest that the CCB treated counsel’s submission as evidence.

[46] The appellant also argues that the statutory requirements were not met at the times required by the statute; that is, within the 72 hours prior to the issuance of the CTO, on the date of the hearing. He relies on Haugan v. Whelan, 2003 CanLII 37206 (ON SC), 64 O.R. (3d) 713 (S.C.J.), where the Superior Court of Justice found that the CCB erred in concluding that it was irrelevant that the appellant in that case would not satisfy the criteria for the order set out in s. 34.1(4)(c)(ii) until some two months after the discontinued treatment, because the CCB’s conclusion amounted to a finding that it was enough if the patient was on a slippery slope towards meeting the criteria, when in fact the Mental Health Act requires more.

[47] In C.I. (Re), 2002 CanLII 33965 (ON CCB), the CCB considered the decision in Haugan and concluded that the CCB panel that heard Haugan had applied the wrong test by asking when substantial mental deterioration would begin, rather than by asking whether, at the relevant times, the person is likely to suffer substantial mental or physical deterioration. In other words, it is the foreseeability of harm that must be present at the relevant time periods, but the harm need not foreseeably occur on those particular days. The same conclusion was reached in S.S. (Re), 2018 CanLII 141894 (ON CCB).

[48] The conclusion of the CCB in S.S. (Re) was supported by the decision of this court in J.S. v. Legault, 2016 ONSC 3098 where, at para. 34, Dunphy J. wrote:

I am satisfied that the Board acted reasonably in determining that it is likely that, without the [CTO], that the appellant would suffer a substantial mental deterioration leading to admission. The whole point of a [CTP] regime is to short-circuit the revolving door treatment-deterioration-readmission cycle. It cannot be said that a reasonable likelihood of substantial deterioration does not exist merely because the harm occurs in a gradual fashion over time where there is sufficient certainty both as to the likelihood of the harm and its severity.

[49] The temporal connection between the 72 hours before the issuance of the CTO and the date of the hearing on one hand, and the foreseeable harm on the other, are not a perfect venn diagram. LAIs are long-acting; their effects do not end simply because a CTO is declared invalid. A practical interpretation must be brought to bear to the question of foreseeability. I agree with the approach adopted by Dunphy J. in J.S. v. Legault. I note that it is consistent with the stated purpose of CTOs in the Mental Health Act, s. 33.1(3):

The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

[50] I thus conclude that the CCB made no error in its determination that the statutory criteria in s. 33.1(4)(c)(ii) were met.

[51] The appellant also argues that the criteria in s. 33.1(4)(c)(iii) were not met. That subsection provides:

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,

[52] In its argument on this issue, the appellant refers to the respondent’s evidence that the appellant was not certifiable in the 72 hours before the CTO was issued, or at the time of the hearing. For the reasons I have already set out above, I see no error in how the CCB treated the respondent’s evidence on this point.

[53] In any event, the requirement in s. 33.1(4)(c)(iii) is that the respondent must have examined the appellant within 72 hours before entering into the CTP and formed the opinion that if the appellant does not receive continuing care or treatment and continuing supervision while living in the community, he is likely, because of his mental disorder, to suffer substantial mental deterioration.[^1]

[54] As I have already reviewed above, it is the foreseeability of the likely substantial mental deterioration at the relevant points in time that matters, not that the harm need be suffered on those particular dates. In the context of s. 33.1(4)(c)(iii), the decision of this court in KM v. Agrawal, 2021 ONSC 5748, at paras. 15-22 are instructive. In particular, at para. 15, Perell J. wrote:

First, accepting that there is a temporal aspect to condition s. 33.1(4)(c)(iii) of the Mental Health Act, the satisfaction of the condition then becomes an issue of mixed fact and law. … In other cases, while not specifying a precise period, various panels of the [CCB] have found that the word “likely” refers to anticipated risks that need not be immediate, but which must be risks that occur on the basis of a reasonable temporal proximity.

[55] The CCB’s conclusion that the requirements of s. 33.1(4)(c)(iii) were met in this case is amply supported by the record, including the respondent’s evidence that the appellant would suffer substantial and serious clinical decline in the foreseeable future if he did not receive the LAI and the CTP.

[56] I thus find that the CCB made no error in confirming the validity of the CTO.

Conclusion

[57] In summary, the appeal is dismissed. As is typical in appeals from the CCB, no party seeks costs and none are ordered.

J.T. Akbarali J.

Date: February 8, 2023

[^1]: There are other relevant consequences in s. 33.1(4)(c)(iii) but I focus on substantial mental deterioration because it is the foreseeable harm that the CCB relied upon in its reasons were the CTO to be set aside.