Court File and Parties

COURT FILE NO.: CV-23-701361-0000 DATE: 20240306 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Daniele Pugliano AND: Brett Jones

BEFORE: J.T. Akbarali J.

COUNSEL: Ken J. Berger, for the appellant Nicole Fielding, for the respondent

HEARD: March 5, 2024

Endorsement

Overview

1The appellant appeals from the order of the Consent and Capacity Board (“CCB”) dated May 26, 2023, confirming the appellant’s status as an involuntary patient at the Centre for Addiction and Mental Health (“CAMH”), and confirming the finding of the respondent physician that the appellant was incapable of consenting to treatment at the time of the CCB hearing on May 26, 2023.

2At the hearing of the appeal, the appellant advised that he was withdrawing his appeal with respect to his involuntary status, which is now moot, since the appellant was discharged from CAMH on May 29, 2023. Accordingly, the appeal proceeded on the question of the finding of incapacity only.

Brief Background

3At the time of the events in question, the appellant was a high-functioning 28-year-old-man with no history of mental illness.

4The appellant was admitted to CAMH on May 13, 2023. He had been brought to the Emergency Department at Mount Sinai Hospital in Toronto by police, after he attempted to defecate in the lobby of the Four Seasons Hotel and exhibited hostile behaviour towards hotel security staff and police.

5At Mount Sinai Hospital, a Form 1 was completed by a Dr. Koblic. Thereafter, the appellant was transferred to CAMH.

6At the time the appellant was admitted to CAMH, he was reported to be elevated and experiencing grandiose ideations. For example, the Progress Notes indicate he stated he has “higher levels of consciousness”. He denied having engaged in aggressive behaviour. At that time, he reported infrequent alcohol use and occasional cannabis use.

7The appellant’s mother advised CAMH staff that the appellant had arrived in Toronto from London, Ontario, about a week prior to his admission, and had been behaving grandiosely and bizarrely since that time, speaking about special powers and calling the rest of his family inferior. She confirmed that the appellant had no psychiatric history. She also advised that the appellant’s brother had spoken to the appellant’s roommate who reported the appellant had engaged in recent psilocybin and cannabis use.

8The appellant was admitted to CAMH on a Form 3 (Certificate of Involuntary Admission). On May 17, 2023, he reported having used psilocybin mushrooms in London, one week prior to arriving in hospital. He continued to endorse grandiose delusions, including being a physician, running a global banking corporation, and being able to heal himself.

9While admitted, the appellant exhibited aggressive and intrusive behaviours, leading to his transfer from a crisis and critical care unit to a psychiatric intensive care unit. He continued to exhibit intrusive and provocative behaviour on the psychiatric intensive care unit, including attempting to grab the genitals of a co-patient, who responded by punching the appellant in the head.

10The respondent met with the appellant on May 17, 2023. At that time, he explained that the symptom clusters the appellant was exhibiting were symptoms of a mental condition. The appellant denied having any symptoms of any mental disorder. The respondent explained risks and benefits of taking medication such as mood stabilizers and antipsychotic mediation. The appellant indicated that he needed nothing other than water.

11On May 18, 2023, the respondent conducted a capacity assessment of the appellant’s mental status. During that assessment, the appellant denied having a psychiatric illness or symptoms of an illness, stating, “No, I am enlightened.” Again, he indicated that all he needed was water. After the respondent advised the appellant that, based on the respondent’s clinical assessment, the appellant did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision due to his mental disorder, the appellant stated, “I comprehend on levels beyond what you are capable of knowing. I have left the appropriate information on the meta-verse. I have had 5 ego deaths. Its [ sic ] impossible for you to know.”

12The progress notes indicate that the respondent considered, as a differential diagnosis, that the appellant’s symptoms were “potentially drug induced but symptoms continue to persist.”

13The respondent conducted another capacity assessment on May 24, 2023. Again, the appellant denied that he was experiencing symptoms of mental illness.

14On May 25, 2023, the respondent again assessed the appellant’s capacity, and issued a Form 4 (Certificate of Renewal).

15The appellant applied to the CCB on Form 16 and Form A applications to have his involuntary status, and the finding of incapacity regarding antipsychotic medication and mood stabilizers, reviewed.

16The hearing took place on May 26, 2023, by teleconference before a three-person panel of the CCB.

17The respondent gave evidence about the differential diagnosis of substance-induced symptoms in his oral evidence before the CCB. He indicated that:

a. It is possible to have a substance-induced psychotic and manic episode. This means that while intoxicated, a person can have a mania and psychosis presentation, but when the intoxicants come out the symptoms resolve. That is a substance-induced presentation.

b. A substance-induced presentation of symptoms was a differential diagnosis in this case, but because the appellant’s symptoms persisted longer than the drugs would be in the appellant’s body, the possibility of drug-induced symptoms was coming lower on the differential, “because the symptoms have persisted beyond what, what would be pharmacologically active in the body”.

c. Psychedelic medications can cause distorted thinking, hallucinations, and delusional thinking in the period of intoxication, about 12 hours, but not in the days and weeks afterwards.

d. The respondent did not do any toxicological screening on the appellant because he was unable to get a blood sample from the appellant to test.

e. After a week in hospital, at most there would be metabolites of psychoactive substances in the appellant’s blood, but it would not be pharmacologically possible for the substances to be causing a psychoactive experience at the time of the hearing.

f. There is also a substance-precipitated presentation, which means the substance triggered the presentation, but the symptoms persist beyond, which speak to a primary psychiatric disorder.

g. Because the appellant’s symptoms persisted for so long, the potential for a purely substance-induced syndrome was significantly lower on the differential.

18On May 26, 2023, the CCB confirmed the respondent’s findings with respect to the appellant. The board released its written reasons for decision on June 2, 2023.

19On May 29, 2023, the appellant was discharged from hospital.

20On June 4, 2023, the appellant commenced this appeal of the CCB’s decision.

The CCB’s Decision

21In its decision, the CCB directed itself that the onus of proof lay on the respondent to prove the case, and that while it could accept and consider hearsay evidence, that evidence must be carefully weighed.

22With respect to the finding of incapacity, the CCB noted that under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (“HCCA”) s. 4(2), a person is presumed to be capable to consent to treatment, and the onus to prove otherwise lies on the health practitioner (the respondent). The CCB directed itself to the test for capacity to consent to treatment in s. 4(1) of the HCCA, which states that:

A person is capable with respect to consent 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.

23The CCB noted that the respondent had concluded that the appellant was able to understand the information relevant to making a decision about the treatment in question. The CCB agreed there was no evidence of an inability to understand the information.

24The CCB went on to find that the evidence that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question was “compelling”.

25After reviewing the facts leading up to the appellant’s admission and during his stay at CAMH, the CCB referred to the leading decision of Starson v. Swayze, 2003 SCC 32, [2003] SCC 32, [2003] 1 S.C.R. 722, and directed itself that:

[c]apacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. …Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. …

…two important points regarding this statutory test require comment. First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and ‘capable but dissident interpretations of information’ are to be expected… 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 otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

26The CCB concluded that the respondent had established that the appellant had a mental disorder and should be able to recognize the possibility that he was affected, but the appellant repeatedly denied that he was affected by mental disorder. As a result, the CCB confirmed the respondent’s finding that the appellant was incapable of consenting to treatment with antipsychotic and mood stabilizer medications.

Issue

27There is one issue on this appeal: whether the CCB erred in confirming the respondent’s finding that the appellant was not capable to consenting to treatment.

Analysis

Preliminary Issue: Fresh Evidence

28The respondent seeks to admit an affidavit he swore on February 23, 2024, as fresh evidence. The appellant has made no objection.

29The affidavit is a brief, 10-paragraph affidavit that updates the record to include information about the respondent’s discharge from hospital on May 29, 2023. The affidavit also explains that the appellant was referred for follow-up, but to the best of the respondent’s knowledge, the appellant has not engaged with CAMH’s outpatient services since his discharge. Moreover, the affidavit indicates that, to the respondent’s knowledge, the appellant has not been an involuntary patient at CAMH in any capacity since his discharge.

30Section 80(9) of the HCCA allows the court to receive new or additional evidence on appeal as it considers just. Section 134(4) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, is to the same effect.

31The test for admission of fresh evidence was set out by the Supreme Court of Canada in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 776, and requires establishing that: (i) the evidence could not have been adduced at the time of the hearing; (ii) it is relevant upon a decisive or potentially decisive issue; (iii) it is credible, and (iv) if reasonably believed, when taken with the other evidence adduced at trial, it could be expected to have affected the result. In A.N. v. Guimond, 2020 ONSC 6751, at paras. 11-3, the court accepted fresh evidence on a CCB appeal where the evidence consisted of an affidavit of the respondent physician relating to the appellant’s health progression and other matters occurring after the CCB hearing. Using the Palmer principles, the court found that the evidence could not have been adduced at the hearing and its admission was just.

32In this case, the evidence could not have been adduced at the hearing; it occurred after the hearing was complete. The evidence is relevant and credible. In my view, it is just to admit it.

Standard of Review

33The next question to consider is the appropriate standard of review to apply to the CCB’s decision. The appellant argues that the CCB made errors in law, and as such a correctness standard ought to apply. In the alternative, the appellant argues that the CCB made palpable and overriding errors of fact.

34The appellant argues that the CCB erred in law by applying the incorrect legal test, and in failing to consider capacity at the time of the hearing ¹.

35The thrust of the appellant’s argument is that, at the hearing, it was squarely in evidence that the appellant had no history of any mental disorder, that he consumed stimulants and hallucinogens immediately prior to his admission, no toxicology screening was ever done, and the appellant improved without treatment. In short, according to the appellant, the CCB erred because there was no evidence before it that the appellant had a mental disorder.

36The respondent argues that, pursuant to s. 80(1) of the HCCA a party before the CCB has a statutory right of appeal on questions of law, or fact, or both. Thus, the court must apply the applicable appellate standard of review depending on the nature of the question in issue.

37The respondent argues that there are no distinct questions of law raised on this appeal, but that the appeal engages questions of mixed law and fact. The respondent argues that the appropriate standard of appeal is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, at paras. 5, 21-25.

38In my view, the appellant has not identified a pure or an extricable error of law to consider. Moreover, as I have reviewed already, the CCB directed itself to the governing principles with respect to the law on findings of incapacity to consent to treatment.

39The question is thus whether the CCB erred in concluding that the appellant was incapable of consenting to treatment (the legal conclusion) because he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question (the factual conclusion).

40The challenge the appellant mounts is to the factual conclusions the CCB reached in support of its legal conclusion of incapacity. I thus agree with the respondent that the correct standard of review is palpable and overriding error.

Did the CCB make palpable and overriding errors in confirming the respondent’s finding of incapacity of the appellant?

41In reaching its conclusion to confirm the respondent’s finding that the appellant was incapable of consenting to treatment, the CCB relied on the fact that the appellant repeatedly denied that he was affected by a mental disorder. As the Supreme Court of Canada held in Starson, if a patient’s condition leaves him 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. There was ample evidence on the record to support the CCB’s conclusion that the appellant was unable to recognize that he was affected by a mental disorder or by symptoms of a mental disorder.

42With respect to the appellant’s argument that the CCB made palpable and overriding errors by failing to give weight to his lack of psychiatric history, his ingestion of substances, the lack of any toxicology screening, and his improvement without treatment, I note that the CCB had before it evidence that:

a. The appellant was exhibiting symptoms of grandiose delusions, intrusiveness, disorganized thought form, mania, and psychosis;

b. The appellant denied, not just that he had a mental disorder, but that he was exhibiting symptoms of a psychiatric illness;

c. The respondent had considered whether the appellant’s symptoms could have been substance-induced, but in view of the length of time that passed between his ingestion of substances and the hearing, during much of which he was an involuntary patient at CAMH without access to substances, it was not possible that the substances he had ingested were still pharmacologically active. Thus, the respondent, though having considered substance-induced symptoms as a differential diagnosis, had concluded that the appellant’s symptoms indicated a primary psychiatric condition.

43The evidence that the appellant had no history of mental disorder was known to the respondent throughout the appellant’s admission at CAMH, and was in evidence before the CCB.

44With respect to the appellant’s argument that he improved without treatment, there was evidence before the CCB that there had been some improvement in his condition, however, there was also evidence that, as of the day before the CCB hearing, the appellant had continued to deny any mental disorder and any manifestations of a mental disorder. There was also evidence that the day before the CCB hearing, the appellant was still “quite symptomatic”, although “more redirectable”. The respondent also testified at the hearing that the fact that the appellant was becoming more settled could be related to some of the medication he had received at CAMH, to the impact of the environment he was in, and in some measure to the effects of the substances he had ingested wearing off, but “if it was fully [the substances wearing off that improved his condition] I would expect more, more of a robust resolution.”

45In view of the totality of the evidence, it is not a palpable and overriding error for the CCB to not have concluded that the appellant did not have a mental disorder.

46In my view, having regard to the entirety of the record that was before the CCB, it cannot be said that the CCB made a palpable and overriding error in concluding that the appellant’s condition left him unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision or lack of decision. There was evidence before the CCB on which it could find that the appellant was unable to recognize a link between his decision regarding treatment (or the lack of it) and the potential benefits or consequences, including his repeated assertions that he only needed water to be better, and his repeated refusal to recognize that he was exhibiting any symptoms of a mental disorder.

47The standard of deference that is owed to the CCB with respect to its conclusions of fact and of mixed fact and law in this case are high. I find that the conclusions the CCB reached were open to it on the record before it.

48In the result, I dismiss the appellant’s appeal. I make no order as to costs.

J.T. Akbarali J.

Footnotes

1. 1Although the appellant’s factum makes this argument about failing to consider capacity at the time of the hearing in passing, it was not pursued in oral argument. The CCB noted that the most recent capacity assessments the respondent had undertaken were on May 24, 2023, and May 25, 2023, and that the hearing before it was first thing in the morning on May 26, 2023. No argument was made to the CCB that the capacity assessment on May 25, 2023 was out of date.