COURT FILE NO.: CV-22-688203 DATE: 20240328

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

G.H. Appellant – and – NAZANTHAN RATHITARAN [1] Respondent

Counsel: Ken J. Berger, for the Appellant Jennifer L. Hunter, for the Respondent

HEARD: September 28, 2023

A.P. RAMSAY J.

I. Introduction

1The appellant, G.H, is a 57-year-old female with a history of hospitalization and a diagnosis of schizophrenia. The respondent physician determined that she was incapable of consenting to treatment with antipsychotic medications or a Community Treatment Plan (“CTP”). The respondent became involved in G.H.’s care during her recent admission leading up to the hearing. The respondent renewed a Community Treatment Order (“CTO”). G.H. applied to the Consent and Capacity Board (the “Board”) to review whether the criteria for renewing the CTO and the finding by the respondent that she was not able to consent to treatment with antipsychotic medications and to the CTP were met. At the time of the hearing before the Board, the appellant had been discharged from hospital and was living in the community. The Board upheld the respondent’s conclusions.

II. Nature of the Appeal

2G.H. appeals from the decision of the Board dated September 2, 2022, which confirmed the CTO and upheld the respondent’s finding that she was incapable of consenting to antipsychotic medication or the CTP and renewing the CTO. The appeals are made pursuant to s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the “HCCA”) and s. 48(1) of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”).

3On this appeal, the appellant asks for an extension of time to appeal, an order quashing the findings of incapacity and the CTO and an order finding the appellant capable. In the alternative, the appellant asks that the matter be remitted back to the Board for a rehearing, in whole or in part.

III. Background

4G.H. is a 58-year-old single woman with no children or family save for a cousin. She has a longstanding history of hospital admissions dating back to the early 1980s because of a diagnosis of schizophrenia and the manifestation of mental illness. G.H.’s cousin served as her substitute decision maker (“SDM”).

5G.H. had been on a CTO in the past. She was being followed by the COTA team and lived in supportive housing.

6In October 2021, G.H. was found sleeping in bus shelters with maggots living in some areas of her skin. She was admitted to Michael Garron Hospital from October 8, 2021 to November 22, 2021. As a result of this admission, G.H. has lived in supportive housing since November 2021. During her 2021 admission, she was observed to have animated discussions with herself. She reportedly consistently denied any visual or auditory hallucinations.

7G.H. was admitted to the hospital on three separate occasions between October 2021 and August 2022 for delusions, violent behaviour, and poor self-care arising from noncompliance with her treatment.

8G.H. was admitted to the hospital between January 14, 2022 and January 21, 2022, on a Form 2 initiated by her SDM. She had reportedly been aggressive with others. She was noted to be grandiose and paranoid and had been noncompliant with her medication. On January 20, 2021, she was placed on a CTO by Dr. Andrew Gotoweic, which expired on July 19, 2021.

9G.H. was brought to the hospital by the police on August 1, 2022, after her monitoring physician, Dr. Cheryl Rowe, filled out a Form 1 for being noncompliant with her medication and G.H. becoming increasingly aggressive. Dr. Rowe noted G.H. refused her antipsychotic medication from December 2021. She increasingly responded to internal stimuli and had altercations with other residents and staff. Dr. Rowe noted: “She has threatened staff verbally and most recently lit a cigarette lighter and tried to burn a staff member’s shirt. She has a history of severe deterioration in her physical and mental health when off medications”. Dr. Rowe indicated that G.H. was likely to cause serious bodily harm to herself, another person, or suffer substantial mental or physical deterioration.

10Upon admission to the hospital on August 1, 2022, on a Form 1 from her residence, it was noted that the report from the emergency department was that she had been behaving violently toward staff, had been yelling at staff, and there was a physical altercation with another resident. She had been observed talking loudly to herself and had held a lit cigarette lighter toward staff. Her hygiene had been deteriorating and she was wearing dirty clothes, not showering, and hoarding items. She had stopped taking her medication in December 2021. It is noted: “She had been very loud, aggressive, angry and noted to be responding to internal stimuli.”

11The following day, on August 2, 2022, the respondent Dr. Nazanthan Rathitharan met G.H. for the first time. Dr. Rathitharan described her as follows: “Insight and judgment poor, reliability limited”. He noted G.H. presented with “aggression, disorganization and poor selfcare” in the context of noncompliance with her medication. She was observed to voice numerous disorganized and paranoid ideas including that the government was out to harm her. G.H. denied having a mental illness and stated she did not require treatment. Her medication at the time was Abilify, an antipsychotic agent.

12On August 3, 2022, Dr. Rathitharan found G.H. to be incapable to consent to treatment. A Form 3 and Form 33 were issued, and a Form 50 confirming Right’s Advice was obtained, as was consent for treatment from G.M.’s SDM.

13On August 5, 2022, her SDM provided consent for her to be treated with Amplify.

14Dr. Rathitharan issued a Form 4 on August 16, 2022. G.H. continued to exhibit delusional thoughts. She insisted that she did not have schizophrenia and that schizophrenia is a “fear of sex”, which only men got. She denied needing medication. Her thoughts were noted to be delusional themes about her cousin having stolen her house and “many of her comments were quite disorganized and did not make sense.”

15On August 17, 2022, Dr. Rathitharan assessed G.H.’s capacity to consent to treatment of her mental illness with antipsychotic medication and to a CTP. With respect to the former, she denied having schizophrenia and indicated that she did not require any antipsychotic medication. As for the latter, she again indicated that she did not have schizophrenia and therefore did not require a CTP or CTO. Both the CTP and CTO had apparently been explained to G.H. Dr. Rathitharan obtained consent from the SDM to treat her with antipsychotic medication. A Form 49 was subsequently completed and issued by Dr. Rathitharan, which G.H. challenged together with the Form 4. G.H. sought a review of the Form 4 by the Board, but the hearing was later adjourned.

16On August 19, 2022, G.H. again stated that she did not have schizophrenia. She indicated that she would not take any antipsychotic medication as she had been “cleared by the top doctor of Canada” and indicated that she did not need medication. She denied being related to her cousin and indicated he “stole” her house. Dr. Rathitharan renewed the CTO. He was of the opinion that G.H. would cause serious bodily harm to another person, suffer substantial mental and physical deterioration of herself, or suffer serious physical impairment of herself. Dr. Rathitharan included the following facts in support of his opinion: “The patient has a history of schizophrenia as well as a history of noncompliance with treatment … She repeatedly denied that she has a diagnosis of schizophrenia and denied that she needed treatment.” G.H. applied to the Board for a review of the finding of incapacity and the CTO.

17On August 23, 2022, Dr. Rathitharan noted that G.H. had improved in her agitation and irritability but continued to have delusions. He noted that she “appeared to be able to understand the information provided but was not able to appreciate the reasonably foreseeable consequences of taking or not taking the medication proposed.” He noted:

When asked how antipsychotic medication may help an individual with schizophrenia, the patient stated it ‘calms them down, helps their thoughts, helps them sleep.’

The patient stated she does not have schizophrenia and that she does not require treatment with antipsychotic medications. She denied that treatment with antipsychotic medication would improve the symptoms noted above and denied that lack of treatment would result in the likely perpetuation or worsening of the same symptoms. She stated again that the ‘top doctor of Canada’ had ‘cleared’ her of needing to be on antipsychotic medication.

18Dr. Rathitharan noted that while G.H. continued to have residual symptoms, she no longer met the criteria for involuntary status. A Form 5 was completed and issued; however, G.H. discharged herself contrary to medical advice.

19The hearing regarding the finding of incapacity and the CTO proceeded before the Board on August 26, 2022. That CTO was reviewed by the Board and is the subject of this appeal. The CTO under appeal has long expired. In fact, by the time of the hearing before the Board on August 26, 2022, G.H. had already discharged herself from the hospital, against medical advice, and was living in the community.

20G.H. applied to the Board to review if the criteria for renewing the CTO and the finding of incapacity to consent to the CTP antipsychotic medications were met.

IV. Preliminary Objections

21In an email dated August 25, 2022, G.H.’s representative raised a number of questions which required a response, and which grounded the preliminary objections at the hearing.

V. Decision of the Board

22The Board rejected G.H.’s preliminary objections.

23The Board concluded that the CTO met the statutory requirement under s. 33.1(4) of the MHA.

24The Board found G.H. was able to understand the information relevant to making a decision about the proposed treatment for mental disorder. The Board noted that Dr. Rathitharan indicated that G.H. retained the ability to understand the information relevant to making a decision or lack of decision with respect to antipsychotic medications and the CTP and was not relying on this branch of the statutory test.

25However, the Board found that G.H. was unable to appreciate the reasonably foreseeable consequences of a decision, or lack of decision, for the class of antipsychotic medications and the CTP and upheld the finding of incapacity to consent to treatment and confirmed the CTO.

VI. The Issues

26The issues to be determined on this appeal are as follows:

(i) What is the appropriate standard of review for Board decisions? (ii) Did the Board err in dismissing the preliminary objections raised by the appellant? (iii) Did the Board make a palpable and overriding error in confirming Dr. Rathitharan’s finding of incapacity with respect to antipsychotic medications and the CTP? (iv) Did the Board err in finding that the criteria for issuing the CTO were met? (v) Did the Board make a palpable and overriding error in failing to exercise its discretion pursuant to s. 39.1(7) of the MHA?

VII. Position of the Parties

A. The appellant

27While not raised in the appellant’s factum, counsel for the appellant urged the court to take into consideration the fact that the Superior Court is the guardian of the Canadian Charter of Rights and Freedoms and the final arbiter of legislative interpretation, and this court plays an important role in the statutory right of a tribunal appeal to achieve these objectives and goals. In the result, this court need not accept any decisions by the Board in interpreting its own power under the Charter or the intention of the legislation.

28The appellant submits that G.H. is an intelligent 57-year-old woman. G.H.’s most recent hospital admission started because of disagreements over where she was living. Neither G.H. nor any member of the public was seriously impacted or suffered any harm. G.H. was compelled to enter a CTO and treatment against her will to keep her quiet and obedient.

29G.H. argues that the Board erred in determining that she could not consent to treatment and erred in upholding the CTO.

30G.H. submits that the Board made findings of facts without any evidence or based on speculation and failed to protect her rights for proper notice and due process and made erroneous decisions.

B. The respondent

31The respondent, Dr. Rathitharan, submits that the Board articulated the proper legal test for determining capacity and properly applied that legal test to the evidence before it, and the Board’s finding that G.H. was unable to appreciate the reasonably foreseeable consequences of a decision specifically for the class of antipsychotic medications and the CTP was supported by the evidence.

32Dr. Rathitharan submits that the Board appropriately considered each criterion in determining the validity of the CTO and identified the evidence upon which it based its decision.

VIII. Standard of Review

33The presumptive standard of review is reasonableness. It can be rebutted in two situations: (1) where the legislature prescribes the standard of review or an appeal mechanism from an administrative tribunal to a court or (2) where correctness is required by the rule of law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 16-17.

34The appellant has a statutory right of appeal from a decision of the Board to the Superior Court of Justice on questions of law, fact, or both, pursuant to s. 48(1) of the MHA. Section 48(3) of the MHA indicates that s. 80 of the HCCA applies to the appeal, as well.

35Where the legislature provides a statutory appeal mechanism from an administrative decision, the court must apply the appellate standard of review, as determined by the nature of the question and applicable jurisprudence. Questions of law are reviewable on a correctness standard. Questions of fact and questions of mixed fact and law without an extricable error of law, are reviewed for palpable and overriding error: see Vavilov, at paras. 10, 16-17, 23, 25 and 36-37.

36The issues raised in this appeal involve findings of fact and questions of mixed fact and law and, in the result, the standard of review is palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 37, 52, 56 and 58; Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at paras. 5 (per McLachlin C.J., dissenting but not on this point), 83-84; and Vavilov, at paras. 36-37.

IX. Analysis

A. Extension of time to appeal

37The appellant sought an extension of time to appeal in order to retain counsel and to file her materials. As the respondent did not appear to oppose the relief sought in their materials or in their arguments before me, I am inclined to extend the time to appeal.

B. Did the Board err in dismissing the preliminary objections raised by the appellant?

38At the outset of the hearing, counsel for G.H. raised a number of preliminary objections regarding compliance with the MHA as outlined in his August 25, 2022 correspondence to the Board. The panel decided at the outset of the hearing that they would hear the objections in a blended fashion rather than hearing the preliminary objections first and then turning to the merits. The parties agreed to this procedure, and the reasons for each of these objections are explained below.

39G.H. sought evidence that the Officer-in-Charge (the “OIC”) was provided with copies of the Form 45, Form 46, and CTP pursuant to s. 33.1(1)(c) of the MHA. The Board accepted the testimony of Dr. Rathitharan as to what the practice was, but beyond that the Board noted that Dr. Rathitharan had tendered evidence to show that the copies of the Form 45 had been emailed to the OIC. The Board’s finding that the statutory criteria was met, a finding made on the evidence before it, was a reasonable one. In other cases, the Board has indicated that it is appropriate to take a purposive approach to the delivery of documents to the OIC: HA (Re), at pp. 12-13.

40G.H. requested evidence that Dr. Rathitharan provided her with copies of the Form 45, Form 46, and CTP pursuant to s. 33.1(10)(a) of the MHA. In its decision, the Board noted: “Dr. Rathitharan pointed to a note from August 22, 2022 that confirmed Form 45, Form 46, and the CTP was provided to Ms. Hawley. The Board accepted this statutory criterion was met.” It was therefore open to the Board to find that this statutory requirement had been met, which it did, and the finding was reasonable on the evidence before it.

41G.H. requested evidence that she had been a patient in a psychiatric facility for a cumulative period of 30 days or more during a three-year period pursuant to s. 33.1(4)(a)(i) of the MHA. The Board accepted Dr. Rathitharan’s explanation that he relied on the fact that G.H. was subject to a previous CTO pursuant to s. 33.1(4)(a)(ii) of the MHA to issue the CTO. The Board’s determination that this statutory criterion was met is supported by the documentary record that was before it. The Board made no palpable and overriding error in determining that the statutory criterion had been met.

42The appellant sought evidence of the finding of incapacity as it relates to antipsychotic medication. Although the Board accepted that the CTP should be tailored as much as possible to the individual, it found that including the word “antipsychotic medication” without the actual name of the medication was sufficient. The Board concluded the statutory criterion was met. This was a reasonable choice in the range of findings, and I find no error by the Board.

43G.H. also requested evidence of the finding of incapacity as it related to antipsychotics and the CTP on August 17, 2022. The Board found this statutory criterion was met and that the inclusion of the class of medications as antipsychotics was sufficient. This was a reasonable finding by the Board based on the evidence. Dr. Rathitharan testified that he made a finding of incapacity to antipsychotic medications on August 3, 2022, after his assessment and a discussion of the risks and benefits of the proposed treatment. Dr. Rathitharan testified that he conducted further assessments on August 17, 2022 and August 23, 2022, during which G.H. remained incapable to consent to antipsychotic medication and to the CTP, which the Board accepted.

44The appellant indicated the CTP was void and overbroad as there was no clear statement of G.H.’s obligation under the CTP, and no clear statement of what she must do and that failure to comply would potentially subject her to a Form 47. She argued that the conditions listed in the CTP were not explained and were unclear. The Board rejected the objection, noting that the CTP clearly listed out certain conditions on G.H., including to attend appointments, take antipsychotic medications, and meet members of her team.

45The appellant requested clarification as to why paragraph 8 of the CTP did not outline the conditions that would lead to an Order for Examination, if not adhered to. The Board’s rejection of this objection is reasonable. The Board found, as a fact, that the conditions were listed in the CTP in preceding paragraphs. The Board made no palpable and overriding error.

46The appellant sought clarification as to why the CTP did not include the requirements for the issuance of an Order for Examination pursuant to s. 33.3(1)(2) of the MHA. The Board also rejected this objection. The Board indicated that that these conditions did not need to be explicitly listed in the CTP and that Dr. Rathitharan’s explanation to G.H. of what would occur if she did not follow the CTP was sufficient. I find no error by the Board.

47The appellant requested clarification as to why the CTP did not include reference to the specific antipsychotic medications (e.g., Abilify). I find no error in the Board’s conclusion that there was no obligation on Dr. Rathitharan to list the current antipsychotic medication in the CTP. Reference to the class of medication was sufficient, which is consistent with previous decisions: see AS (Re), at p. 13; JA (Re), at pp. 17-19.

48The appellant argued that verbal consent from the monitoring physician and case manager for a CTP was insufficient. The Board made no error in rejecting this objection. Verbal consent has been found to satisfactory in other cases: see JT (Re), at pp. 20-22.

49The appellant also raised the issue of G.H.’s contact information not being included in the CTP. I see no palpable and overriding error in the Board’s conclusion that the Form 46 included G.H.’s address.

C. Did the Board make a palpable and overriding error in confirming Dr. Rathitharan’s finding of incapacity with respect to antipsychotic medications and the CTP?

50A person is presumed capable with respect to treatment. The standard of proof is a balance of probabilities: Starson, at para. 77.

51The Board correctly articulated and applied the test for capacity to consent to treatment set out in s. 4(1) of the HCCA. The test is 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.

52The Board was correct in setting out the presumption with respect to capacity, the onus to establish otherwise, and the legal test for capacity. The Board adverted to the correct standard of proof, the civil standard on a balance of probabilities.

53The onus of proving incapacity falls on the attending physician. Since capacity can fluctuate over time, the relevant time to assess capacity is the time of the hearing: Starson, at para. 118. The first branch of the test in HCCA s. 4(1) asks whether a person is able to understand the information relevant to making a decision about the treatment. This requires the cognitive ability to process, retain and understand the relevant information. Starson, at para. 78.

54Whether the appellant possessed the requisite capacity to consent to treatment with antipsychotic medication is a question of mixed fact and law, and as such is reviewed on a standard of palpable and overriding error, absent an extricable question of law in the Board’s analysis: B.L. v. Pytyck, 2020 ONSC 3766, aff’d 2021 ONCA 67; Christoforou v. Toews, 2021 ONSC 722; K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481; Starson; and KM v. Agrawal, 2021 ONSC 5748, at para. 83.

55Capacity relates to specific types of proposed treatment: Agrawal, at para. 63; Almeida v. Morgan, 2020 ONSC 5066, at para. 31; and Z. (Z.) v. Shafro, 2016 ONSC 6412, at para. 60. Capacity is temporal in that an individual can be capable with respect to a specific treatment at one time and not another: Agrawal, at para. 63; Almeida, at para. 30. Section 15 of the HCCA also provides that capacity depends on the treatment and time. The relevant section reads as follows:

15 (1) A person may be incapable with respect to some treatments and capable with respect to others. (2) A person may be incapable with respect to a treatment at one time and capable at another.

56An individual’s consent must relate to the treatment, be informed, be given voluntarily, and must not be obtained through misrepresentation or fraud: HCCA, s. 11(1). Sections 11(2) and (3) of the HCCA sets out the elements of informed consent as follows:

11 (2) A consent to treatment is informed if, before giving it, a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and b) the person received responses to his or her requests for additional information about those matters.

Same

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.

57In this case, Dr. Rathitharan conceded at the hearing that G.H. met the first prong of the statutory test for capacity. She had the ability to understand the information relevant to making a decision or lack of decision regarding the proposed treatment, namely antipsychotic medication. Therefore, the question before the Board was whether G.H. met the second prong at the time of the hearing, that is whether she was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision with respect to antipsychotic medication and the CTP: Starson, at paras. 77, 118.

58The Board found the evidence of Dr. Rathitharan compelling. The Board reviewed the fact that G.H. did not believe she had schizophrenia and did not believe that she required treatment with antipsychotic medications. The Board noted the evidence that G.H. repeatedly denied having a mental illness or requiring any treatment. It was implicit in the Board’s review of the evidence that given G.H.’s repeated denial that she had a mental illness and that she did not believe she required treatment with antipsychotic medications, G.H. was unable to appreciate the reasonably foreseeable consequences of a decision regarding treatment or lack of treatment, that is to say, that her condition improved with the treatment of antipsychotic medication and deteriorated in the absence of such treatment. Also implicit in the Board’s determination is a conclusion that as a result of her mental disorder, G.H. was unable to recognize that she was affected by its manifestations. The Board upheld the respondent’s finding that although G.H. was able to indicate that the medications help her to be calm, help her thoughts, and assist with her sleep, the statement did not reflect an ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment for antipsychotic medications and the CTP.

59For the reasons below, I find no error in the Board’s conclusion that G.H. met the second prong of the statutory test. There was ample evidence to support the Board’s conclusion that G.H. did not meet the second prong of the statutory test for capacity. It is well established that while a person need not agree with a particular diagnosis, if it is demonstrated that the person has a mental “condition”, the person must be able to acknowledge the possibility that they are affected by that condition. The jurisprudence is well established that the individual is not required to describe the mental condition as an “illness”, or to agree with their specific psychiatric diagnosis, but they must be able recognize that they are affected by its manifestations. If not, the person will be unable to apply the relevant information to their circumstances, and unable to appreciate the consequences of their decision: see Starson, at paras. 78-79; Gajewski, at para. 49; and Khan v. St Thomas Psychiatric Hospital (1992), 7 O.R. (3d) 303 (C.A.), at pp. 314-15.

60The Board implicitly found that G.H.’s mental disorder resulted in her being unable to recognize she was affected by its manifestations. The Board noted that G.H. repeatedly denied having a mental illness or requiring any treatment.

61In considering the second part of the test for capacity, the Board considered whether G.H. was able to appreciate being affected by the manifestations of a mental condition. As Major J. held in Starson, “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”: at para. 79.

62G.H. was admitted to the hospital between August 1, 2022 and August 23, 2022. She was brought to the hospital by the police after her monitoring physician, Dr. Rowe, filled out a Form 1 because of her noncompliance with medication and increasing aggressiveness. Dr. Rowe noted G.H. refused her antipsychotic medication from December 2021. As a result, and as noted above, she increasingly responded to internal stimuli and had altercations with other residents and staff. Dr. Rowe noted as follows: “She has threatened staff verbally and most recently lit a cigarette lighter and tried to burn a staff member’s shirt. She has a history of severe deterioration in her physical and mental health when off medications”. As a basis for the Form 1, Dr. Rowe noted G.H. was likely to cause serious bodily harm to herself, another person, or suffer substantial mental or physical deterioration.

63Dr. Rathitharan testified that G.H. was likely to cause “serious bodily harm to another person”, suffer “substantial mental deterioration”, “substantial physical deterioration”, and “serious physical impairment” if she did not continue to remain on a CTO.

64Dr. Rathitharan renewed the CTO. He noted:

The patient has schizophrenia and a history of decompensation when not treated. She is often noncompliant with treatment. The patient has been deemed incapable to consent to treatment. Treatment with antipsychotic medication would mitigate her symptoms of psychosis. If untreated, she would likely meet criteria for the completion of an application for psychiatric assessment under the MHA. Without a CTO the patient is likely to repeatedly decompensate with respect her mental health as documented.

65The CTO Form 45 was completed on the basis of Box B criteria, that is, if G.H. did not receive continuing treatment or care and continuing supervision while living in the community, she was likely, because of mental disorder, to cause serious bodily harm to another person, suffer substantial mental deterioration of the person, suffer substantial physical deterioration of the person and suffer serious physical impairment of the person. It was noted that:

The patient has a diagnosis of schizophrenia and a history of noncompliance with treatment. Prior to this admission, she gestured with a lit lighter at staff at her home, behaved violently, was yelling at staff and there was a physical altercation. She has been observed talking to herself in hospital. She denies she was previously non compliant. She was previously found living on the streets with maggots living on her skin. She required medication attention for this in hospital. She has been delusional and disorganized.

66The Board considered the evidence, including that G.H. did not believe that she had schizophrenia and did not believe that she required treatment with antipsychotic medication. The Board noted she stated that the “top doctor” in Canada had cleared her of needing any treatment with antipsychotic medications, though the Board noted it was not clear to whom this referred. The Board considered evidence which revealed that at times G.H. endorsed delusional beliefs. The respondent argued that, for example, G.H. harboured delusional beliefs that she is an accountant or secret service agent, that she is related to government officials including the Prime Minister, and that her SDM stole her house. She also insisted that she has been “off medications for over 20 years at the advice of physicians”.

67Over the course of her admission in the hospital in August 2022 under the care of Dr. Rathitharan, G.H. continued to deny a history of schizophrenia. She endorsed having been an accountant and in the secret service, though she had a grade six education. She indicated she was Prime Minister Trudeau’s daughter. She admitted that she had been trying to set people on fire, then recanted. She denied that she needed treatment with antipsychotic medication.

68There were two assessments conducted by Dr. Rathitharan for treatment with antipsychotic medications, the first on August 3, 2022, and the second on August 17, 2022. The Board noted that the evidence indicated that the medications helped G.H. to stay calm, help her thoughts, and assist with sleep, but that the physician did not consider that the statement reflected her ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment for antipsychotic medications and the CTP. Dr. Rowe, who issued a Form 1 for admission to hospital, indicated that they were concerned for her safety and the safety of others. She was noted as “presenting with aggression, disorganization and poor self care in the content [sic] of treatment non adherence.” The admission note indicated that “[g]iven the patient’s behaviour and disorganization, there does appear to be a risk of harm to the safety of others. As such we will proceed with a Form 3 Box A criteria.” The admission note went on to indicate: “Furthermore, the patient is unable to understand or appreciate the benefits and risks of treatment with an antipsychotic medication for her psychiatric illness. She is thus deemed incapable to consent to the treatment of her psychiatric illness with antipsychotic medications. A Form 33 was issued to her.”

69There was ample evidence before the Board to support its decision to confirm Dr. Rathitharan’s findings. The Board had Dr. Rathitharan’s notes and progress reports which chronicled G.H.’s August hospital admission. As for the capacity assessment, when asked about the benefits and risk of treatment with an antipsychotic medication, G.H. indicated that it did not matter as she did not need it.

70In upholding Dr. Rathitharan’s finding that G.H. did not have the ability to appreciate the reasonably foreseeable consequences of a decision regarding treatment with antipsychotic medication and the CTP, the Board made the following comments with respect to Dr. Rathitharan’s notes:

The panel reviewed the content of both notes and found that the assessments were fulsome and Dr. Rathitharan’s finding was clear, cogent, and compelling. The evidence showed from GH’s admission to hospital in August 2022 that she held other bizarre and delusional beliefs that likely reflected mental disorder (Exhibit 1). The evidence also revealed that GH repeatedly denied having a mental illness or requiring any treatment (Exhibit 1).

71In my view, there was ample evidence on the record before the Board to arrive at its conclusion. Dr. Rathitharan repeatedly documented G.H.’s lack of insight into her illness, and the fact that she did not acknowledge the manifestations of her mental condition, including on August 3, 2022, August 17, 2022, and August 23, 2022. Dr. Rathitharan explained that this lack of insight was the key to his finding of incapacity under the second prong of the statutory test.

72There was evidence before the Board to indicate that without appropriate medication, G.H. exhibited disorganized thinking, paranoia, poor hygiene, aggressive tendencies, and delusional ideas. The record before the Board revealed a history of severe deterioration in her physical and mental health when off medication and improvement when she took medications. In a To Whom it May Concern noted dated July 28, 2022, Dr. Rowe confirmed that G.H. was an inpatient at the supportive housing since November 2021, since her discharge from hospital. She had been refusing medication since December 2021 and it was noted that over the previous four months, she had gradually deteriorated in all of her functioning. She was often angry and verbally aggressive. She talked very loudly and shouted at internal voices.

73An individual cannot appreciate the reasonably foreseeable consequences of accepting or refusing treatment when they do not believe they have any mental condition to treat: M.C. v. Whelan, 2012 ONSC 1771, at paras. 15, 19; J.S. v. Dr. Suzanne Legault, 2017 ONSC 5809, at paras. 86-91; J.G. v. Hertzman, 2016 ONSC 7458, at paras. 24-25 and 37-38; Saini v. Labelle, 2017 ONSC 6632, at paras. 43-45; Wakeling v. Kolla, 2015 ONSC 2765, at paras. 18-19, aff’d 2015 ONCA 881; and Shafro, at paras. 57-58.

74Where the evidence demonstrates that the patient has no insight into their illness, denies ever being ill or having any mental health condition, is unable to recognize the symptoms and manifestations of their illness, and believes their behaviour is “rational and normal”, the patient is unable to appreciate the reasonably foreseeable consequences of treatment or lack thereof: see J. S., at paras. 86-88; Lefebvre, Re, at paras. 12-13, 22.

75Where there is clear evidence that the patient is unable to recognize that they suffer from a mental condition, and is therefore unable to apply the relevant information about treatment to their circumstances, it is “not mandatory” for the Board to inquire into the patient’s appreciation of “the parameters of the decision being made” – i.e., the patient’s appreciation of the nature and purpose of the proposed treatment, the benefits and risks of the treatment, the alternative courses of action available, and the expected consequences of no treatment: P.R. v. Legault, 2015 ONSC 7716, at paras. 18-19.

76In my view, there was ample evidence to support the Board’s finding that G.H. did not meet the second prong of the test and I find no error by the Board in the test applied, the law, or the application of the law in arriving at its conclusion. On the record, the Board did not ignore evidence or misapprehend the evidence.

D. Did the Board err in finding that the criteria for issuing the CTO were met?

77G.H. challenged the validity of the CTO, arguing that it did not comply with the criteria required under s. 33.1(4) of the MHA. The Board meticulously reviewed then considered the validity of the CTO. It reviewed each of the criteria governing the issuance of a CTO and confirmed that each criterion had been met.

78Reasonableness is the appropriate standard of review for a decision of the Board where the question is one of fact or mixed fact and law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 53. A finding by the Board that the s. 33.1(4) criteria were met is a question of mixed fact and law, reviewed for reasonableness: S.S. v. Kantor, 2017 ONCA 828, 420 D.L.R. (4th) 86, at para. 39. However, although the Court of Appeal applied the correctness standard in Kantor in determining whether the CTO in that case met the requirements under s. 33.1(4) of the MHA, the nature of the questions was in fact different. In that case, the Board had been tasked with interpreting the criteria that govern the exercise of the discretion to issue a CTO, whereas in this case, the Board was tasked in determining whether, on the evidence, the CTO did in fact comply with the criteria under s. 33.1(4). The former is a question of law whereas the latter is a mixed question of fact and law.

79On the reasonableness standard, I find that the Board made no palpable and overriding error in finding that the CTO met the statutory requirement. On the correctness standard, the Board made no error in its articulation of the law or in applying the law to the facts as they found them.

80The criteria that apply for a physician to issue or renew a CTO under s. 33.1(4) are as follows:

33.1 (4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person, (i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or (ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that, (i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community, (ii) 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, (iii) 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, (iv) the person is able to comply with the community treatment plan contained in the community treatment order, and (v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996. 2000, c. 9, s. 15.

81The Board considered each of the criteria for issuance of the CTO:

a. Criterion 1: The Board found that the criteria under s. 33.1(4)(a) had been met. The Board found that during the previous three-year period, G.H. had been a patient in a psychiatric facility for more than 30 days, from January 20, 2021, to July 19, 2021. I find no palpable and overriding error in the Board’s finding of fact or its conclusion that the criterion was met. b. Criterion 2: The Board found that this criterion had been met. It found, as a fact, that there had been a CTP developed by G.H. or her SDM, physician and other healthcare practitioners and persons involved in G.H.’s treatment, care, and supervision in the community. They found no deficiency in the CTP. The Board found that her cousin had acted as SDM and had provided consent. The Board found that the monitoring physician, Dr. Rowe, had provided verbal consent. c. Criterion 3: The Board found that the third criterion was met as Dr. Rathitharan had examined G.H. within 72 hours before the CTP was signed. It found as a fact that the respondent had examined G.H. the same day. i. The Board accepted Dr. Rathitharan’s evidence that G.H. was suffering from schizophrenia and required ongoing treatment to be compelling. ii. The Board accepted that, if G.H. were in the community without being subject to the CTO, she would meet the criteria for a psychiatric assessment under either ss. 15(1) or (1.1) of the MHA. iii. The Board specifically considered the evidence and identified that, if G.H. did not receive continuing treatment or care and continuing supervision while in the community, she was likely to cause “serious bodily harm to another person,” suffer “substantial mental deterioration” and “substantial physical deterioration,” or suffer “serious physical impairment”, which supported Dr. Rathitharan’s opinion. iv. The Board accepted Dr. Rathitharan’s evidence that G.H. was able to comply with the CTP and that she would regularly attend for her injections of antipsychotic medication. v. The Board found that the ongoing care being offered to G.H. by members of her treatment team were available. d. Criterion 4: The Board held that Dr. Rathitharan’s documentary evidence and testimony was that he consulted with the other persons named in the CTP and he discussed the relevant issues with individuals named in the CTP. e. Criterion 5: The Board received evidence by way of a Form 50 (Confirmation of Rights Advice) for both G.H. and her SDM and was satisfied that they both received rights advice in a timely manner. f. Criterion 6: The Board determined that the CTP was in place and there was no deficiency in it. The Board further determined that both the SDM and the monitoring physician had provided consent to the CTP.

82I find no error in the Board’s finding that G.H. was suffering from mental disorder such that she required continuing treatment or care and continuing supervision while living in the community. The Board made no error in finding that the criteria were met.

83I also find no palpable and overriding error in the Board’s finding of fact that G.H. was not a patient in a psychiatric facility, nor did the Board make any error in finding that she met the criteria for completion of an application for psychiatric assessment under either ss. 15(1) or (1.1) of the MHA. There was ample evidence to support the Board’s conclusions.

84It was also open to the Board to find, as it did on the evidence, that if G.H. did not receive continuing treatment or care and continuing supervision while in the community, G.H. was likely to cause “serious bodily harm to another person,” suffer “substantial mental deterioration” and “substantial physical deterioration” or suffer “serious physical impairment”. There was ample evidence for the Board to conclude there was a risk of serious bodily harm to another person, as discussed above.

85There was also ample evidence for the Board to conclude that there would be substantial mental deterioration in the absence of a CTO. Collateral evidence received from her COTA-AHFT East team indicates that G.H. had been acting aggressively in her supportive housing environment and her behaviour was described as atypical from her baseline. It was reasonable for the Board to accept on the evidence before it and the opinion of Dr. Rathitharan that it was likely that G.H. would not continue to take her medication and that she would have a reemergence of her psychiatric symptoms. The Board had ample evidence to show that G.H. had become psychotic for refusing to take her medication months before her admission to the hospital in August. The Board accepted the evidence that when she was taking her medication, G.H. would become calm and organized.

86There is also ample evidence to support the Board’s finding that absent ongoing care, G.H would experience substantial physical deterioration. He noted the history of her deterioration to the point where she was living on the street and found to have maggots living on her skin and various parts of her body, and the lengthy periods of homelessness and pressure-related wounds. The Board’s finding that G.H. was at risk of serious physical impairment is supported by the evidence above.

87There was ample evidence before the Board to find that G.H. was able to comply with the CTP contained in the CTO and she had done this previously. The Board accepted the respondent’s testimony.

88I see no error in the Board’s finding that the treatment or care and supervision required under the terms of the CTO were available in the community and therefore the criteria under s. 33.1(4)(c) were met.

89I see no palpable and overriding error in the Board’s finding that the respondent had consulted with other persons named in the community treatment plan, thereby satisfying s. 33.1(4)(d), or its finding that G.H. or her SDM had consented to the CTP, thereby satisfying s. 33.1(4)(f).

E. Did the Board err in not revoking the CTO under s. 39.1(7) of the MHA?

90G.H. submits that the Board ought to have used its discretionary power to revoke the CTO even though the criteria in s. 33.1(4) were met. She relies on Re GB in support of her position. Re GB is distinguishable as in that case, the Board found the CTP was confusing and overbroad because it required the patient to take medications which he was legally capable of refusing. The Board noted that it had no power to rectify the deficient wording of the CTP, and the only power available to the Board was to revoke the CTO, a power expressly conferred on the Board under s. 39.1(7) of the MHA. There is no similar ambiguity in the CTP issued by Dr. Rathitharan.

91The Board’s decision not to exercise its discretion to revoke the CTO, when considered in the context of the record before it, was a reasonable one. Juxtaposed with its finding that the CTO met all the statutory criteria under the MHA and was valid, was the Board’s confirmation that G.H. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about antipsychotic medication and the CTP, and that when not treated with antipsychotic medication, she deteriorated, became delusional, increasingly aggressive, and violent, and presented a danger to herself and others. However, when treated, her condition improved, and she became calm.

X. Disposition

92For the reasons above, I would dismiss the appeal.

XI. Costs

93If costs are being sought, and the parties are not able to agree on costs, I will consider written submissions based on the following schedule:

i. The respondent shall deliver costs submissions and a Costs Outline within 15 days from the date of these Reasons. ii. The appellant shall deliver their responding submissions and supporting materials within 15 days thereafter. iii. There shall be no reply submissions.

94The costs submissions, excluding the Costs Outline, Bill of Costs and any supporting case law, must be no longer than five pages, double-spaced.

95Any authority referred to may be hyperlinked to a free online source for decisions.

96The costs submissions should also be emailed to my assistant and must also be uploaded to Caselines.

A.P. Ramsay J.

Released: March 28, 2024

Appendix A

1. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.

   Capacity

   4 (1) A person is capable with respect to a treatment, admission to or confining in 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, confining or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

   Appeal

   80 (1) A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

2. Mental Health Act, R.S.O. 1990, c. M.7

   Conditions for involuntary admission

   20 (5) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both,

   (a) that the patient is suffering from mental disorder of a nature or quality that likely will result in, (i) serious bodily harm to the patient, (ii) serious bodily harm to another person, or (iii) serious physical impairment of the patient, unless the patient remains in the custody of a psychiatric facility; and (b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

   Community Treatment Order

   33.1 (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

   Same

   (2) The community treatment order must be in the prescribed form.

   Purposes

   (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.

   Criteria for Order

   (4) A physician may issue or renew a community treatment order under this section if,

   (a) during the previous three-year period, the person, (i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or (ii) has been the subject of a previous community treatment order under this section;

   (b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

   (c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that, (i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community, (ii) 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, (iii) 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, (iv) the person is able to comply with the community treatment plan contained in the community treatment order, and (v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

   (d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

   (e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

   (f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

   Exception

   (5) Clause (4)(e) does not apply in any of the following circumstances:

   1. If a rights adviser has made best efforts to locate the person subject to the order, the person could not be located and the rights adviser so informs the physician.
   2. If the person subject to the order refuses to consult with a rights adviser and the rights adviser so informs the physician.
   3. If, for the renewal of the order, the Public Guardian and Trustee is the substitute decision- maker for the person subject to the order.

   Content of Order

   (6) A community treatment order shall indicate, (a) the date of the examination referred to in clause (4)(c); (b) the facts on which the physician formed the opinion referred to in clause (4)(c); (c) a description of the community treatment plan referred to in clause (4)(b); and (d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations.

   Confirm or Revoke Order

   39.1 (7) The Board may, by order, confirm the issuance or renewal of the community treatment order if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the Board determines that those criteria are not met, it shall revoke the community treatment order.

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

G.H. Appellant – and – NAZANTHAN RATHITARAN Respondent

REASONS FOR JUDGMENT A.P Ramsay J.

Released: March 28, 2024

1The respondent’s name is spelled “Rathitaran” in the title of proceedings but is spelled “Rathitharan” in the materials before the Board and the materials before me, and accordingly the court will use the latter in the body of the decision.