Court File and Parties

COURT FILE NO.: CV-24-2856

DATE: 2024/09/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.L., Appellant/Responding Party

AND:

Dr. Laura Powe, Respondent/Moving Party

BEFORE: Tranquilli J.

COUNSEL: Aislinn Reid, for the Moving Party

Ikenna Aniekwe, for the Responding Party

HEARD: September 17, 2024

ENDORSEMENT

Overview

[1] J.L. is an involuntary patient at the Adult Inpatient Mental Health Program at the London Health Sciences Centre (“LHSC”). In June 2024, his attending psychiatrist, the respondent Dr. Laura Powe, found him incapable of consenting to antipsychotic treatment for treatment of a diagnosed relapse of a primary psychotic disorder, schizophrenia.

[2] J.L. applied to the Consent and Capacity Board (“CCB”) for a review of Dr. Powe’s determination. On June 25, 2024, the CCB confirmed Dr. Powe’s finding of incapacity. J.L. has appealed the CCB decision to this court. The appeal is still to be perfected and a hearing date is yet to be scheduled. I have addressed this issue in some case management orders that will be included in the disposition of this motion.

[3] Dr. Powe brings this motion pursuant to s. 19(1) of the Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A., for an order authorizing the administration of anti-psychotic medication to J.L. pending the disposition of J.L.’s appeal to this court.

[4] Dr. Powe proposes to administer an injectable antipsychotic medication, Invega Sustenna for the treatment of J.L.’s symptoms. She must demonstrate that this treatment meets the statutory test under s. 19(2) of the Act on a balance of probabilities: Almeida v. Morgan, 2020 ONSC 2192, at para. 34.

[5] Dr. Powe submits that the record satisfies all the statutory criteria to permit the periodic injection of an antipsychotic pending appeal. J.L.’s condition is unlikely to improve without the treatment. Without treatment, the risk is his symptoms will become intractable and diminish the prospects of restoring him to his base level of function. He responded favourably to this antipsychotic treatment in the past and it is expected it is likely to substantially improve his condition. JL can be monitored, and the treatment adjusted for side effects. The injection treatment is therefore the least restrictive and least intrusive treatment. J.L.’s deteriorating condition makes it necessary to administer the treatment before the final disposition of his appeal, particularly because the appeal hearing date is still to be scheduled.

[6] J.L. submits the motion for this extraordinary relief should be dismissed. The record falls short of establishing a case for administering the treatment before his appeal is heard on its merits. If his condition truly required urgent intervention, Dr. Powe could rely on other provisions of the Act to administer treatment on an emergent basis. The record does not demonstrate either a deterioration in his condition or that his present condition makes it necessary to administer treatment before the final disposition of the appeal. The evidence relied upon by the respondent for interim treatment is nothing more than a repetition of the same circumstances that were before the CCB. The record also relies on Dr. Powe’s evidence and fails to offer corroborating evidence, as is required by s. 14 of the Evidence Act.

[7] An order permitting the forcible treatment of a patient while he is challenging a finding that he is incapable of consenting to or refusing that very treatment is a serious matter. It affects J.L.’s autonomy, liberty, security of person and physical integrity: Almeida v. Morgan, 2020 ONSC 2192at para. 32. My decision is informed by application of the criteria under s. 19(2) of the Act.

[8] These reasons will now explain why the court allows the motion and will permit Dr. Powe to administer an antipsychotic medication between now and the disposition of the appeal.

Background

History

[9] Dr. Powe has followed J.L. since he was first admitted to the LHSC Mental Health Program between September and November 2019. He had a history of a recent diagnosis of psychosis. She confirmed J.L.’s diagnoses of schizophrenia, cannabis use disorder, and obsessive-compulsive personality disorder. She deemed J.L. incapable to consent to antipsychotic treatment. J.L.’s mother was his substitute decision-maker and she consented to treatment by Invega Sustenna to treat his schizophrenia symptoms. Dr. Powe found him appropriate for a community-focused mental health program known as the Prevention and Early Intervention Program for Psychoses (“PEPP”).

[10] Dr. Powe acknowledged that J.L. experienced weight gain and that he reported subjective apathy as apparent side effects from the medication. However, she found that his schizophrenia symptoms improved. He was pleasant, engaged, and reduced his substance use. His thought processes were linear, coherent, more organized and did not appear paranoid. He was discharged in November 2019 with PEPP outpatient follow-ups that included the administration of Invega Sustenna by injection. He reported he was enjoying better relationships with his peers and mother and that his function had improved, including that he was able to work for a time.

[11] He discontinued the Invega Sustenna treatment in July 2021 with his mother’s support. He wanted to try a more “holistic” approach to his care and promised his mother that he would restart his medication if he “spiraled again.” His outpatient follow-up became sporadic until he completely ended contact with LHSC in May 2022. He was discharged from PEPP in the spring 2023 due to lack of engagement.

May 2024 Admission

[12] His mother contacted PEPP in May 2024 to report concern about J.L.’s escalating cannabis and alcohol use and deteriorating mental health. Dr. Powe assessed J.L. She identified symptoms of schizophrenia including thought disorganization, vagueness, apathy, and cognitive dysfunction.

[13] J.L. refused both a voluntary admission and to restart his antipsychotic medication. Dr. Powe admitted J.L. to LHSC, where he has remained since May 22, 2024.

[14] He has been an involuntary patient for most of this time. He was briefly deemed a voluntary patient for a matter of days in late June 2024; however, he demanded to leave the unit on unaccompanied passes and demonstrated severe thought disorder and perseveration. He was changed back to involuntary status. (He has received rights advice, and since the CCB hearing regarding this treatment, also challenged his involuntary status. On September 5, 2024, the CCB dismissed J.L.’s application on a without prejudice basis.)

[15] On June 6, 2024, Dr. Powe found J.L. incapable of consenting to or refusing antipsychotic treatment.

The CCB Hearing

[16] J.L. requested a review of Dr. Powe’s determination on June 7, 2024. The hearing was held on June 19, 21 and 25, 2024. The panel released its decision on June 25, 2024, and its written reasons on July 5, 2024.

[17] The CCB received submissions from Dr. Powe and J.L.’s substitute decision-maker, his mother. At that time in June 2024, Dr. Powe explained that although J.L. had not deteriorated to the same degree as his psychotic presentation in 2019, his paranoia was beginning to manifest itself to a significant extent. He was refusing to shower because it causes an “imbalance”, he expressed the unsubstantiated belief that his phone had been tampered with, he insisted on interviews being held in the hallway and expressed distrust toward his mother and roommates. In Dr. Powe’s view, J.L. did not appreciate that he was and is suffering from a psychotic disorder and did and does not appreciate the consequences of refusing antipsychotic treatment.

[18] J.L. asserted that Dr. Powe’s evidence was insufficient to displace the presumption of his capacity to consent to treatment. He submitted his presentation was equally consistent with other diagnoses such as Obsessive-Compulsive Disorder, Attention Deficit Hyperactivity Disorder, substance-induced psychosis, or his compulsive personality traits. He had not entirely dismissed the possibility of taking antipsychotic medication. He submitted that he should be allowed to make the treatment decision on his own rather than have it imposed upon him, particularly where he had experienced negative side effects from the treatment in the past.

[19] The CCB accepted Dr. Powe’s opinion that J.L. likely suffered from a primary psychotic disorder and that a substance-induced psychosis had been ruled out as he had been abstinent for several weeks with no improvement in his symptoms. Dr. Powe and her team had witnessed his presentation and J.L.’s mother corroborated Dr. Powe’s evidence regarding her son’s positive and negative symptoms which had occurred in the absence of substance use and which improved after medication was introduced.

[20] The Board found that J.L.’s opposition to the treatment stemmed primarily from his lack of acceptance of the possibility that he ever experienced psychosis or that he was currently experiencing psychosis. His expressed concerns regarding side effects of the medication were not his primary reason for opposing treatment; rather, he continues to believe that he has been misdiagnosed and that he is not suffering from psychosis.

[21] The Board accordingly concluded J.L. failed to appreciate the reasonably foreseeable consequences of taking or not taking the medication. His symptoms likely interfered with his ability to rationally weigh the benefits of the medications against their risks.

[22] J.L. commenced his appeal of this decision on July 4, 2024.

Current Diagnosis & Treatment Recommendation

[23] In Dr. Powe’s opinion, J.L. is suffering a schizophrenia relapse with symptoms of delusion, severe thought disorder, slow speech, inability to focus, stay on topic or to make a decision. In her view, he requires immediate intervention with antipsychotic medication. Dr. Powe prescribed Abilify to be taken orally. He has not previously trialled this medication. The psychiatrist wanted to see if J.L.’s symptoms would respond favourably to this different medication with fewer side effects than he previously experienced on Invega Sustenna. However, he will not consent to treatment by that medication either.

[24] Dr. Powe therefore proposes injectable Invega Sustenna as he previously responded well to that medication, with minimal side effects. The injectable form is also optimal for patients where compliance is a challenge. She anticipates short term improvements with the administration of the medication, with increased privileges, participation in occupational and vocational activities and improved interpersonal relationships. She anticipates that with this improvement in his symptoms he can be transferred to Parkwood Institute, which is better placed to meet his long-term needs.

Analysis

[25] I am satisfied the respondent has met the statutory requirements on a balance of probabilities so as to justify treatment pending appeal pursuant to s. 19(2) of the Act.

[26] The proposed treatment by Invega Sustenna injection will or is likely to improve substantially J.L.’s condition and his condition will not or is likely to improve without the treatment. J.L.’s clinical presentation has not improved since his admission in May 2024. Dr. Powe proposed to trial the oral treatment Abilify during this admission; however, he has refused the treatment. She therefore proposes Invega Sustenna by injection give his past clinical response to this intervention. The evidence of Dr. Powe, which is corroborated by J.L.’s mother and substitute decision-maker, is that he previously responded well to the Invega Sustenna treatment in 2019, to the point that he was discharged and able to return to the community and be followed as an outpatient.

[27] Similarly, I accept that J.L.’s condition will or is likely to deteriorate substantially or deteriorate rapidly without treatment and that his condition will or is likely to prevent the deterioration to substantially reduce its extent or its rate of deterioration. The record establishes that J.L.’s symptoms and behaviours have continued and escalated since the hearing in June.

[28] I acknowledge that Dr. Powe’s outline of J.L.’s presentation since the CCB hearing is similar to the picture presented at the CCB hearing. However, the fact that these symptoms or behaviours were present at the time of the hearing does not necessarily mean that his condition remains unchanged such that it is reasonable to await the disposition of his appeal. He has now been an untreated inpatient for approximately four months, far in excess of the duration of his previous admission, where he was treated.

[29] Dr. Powe has explained that the fact that these behaviours remain and are not improving is a concern for his prognosis. The longer he goes without intervention, the more intractable the symptoms and the risk he will not be able to return to his base level of function before this relapse. Without treatment intervention J.L. is unlikely to be able to return to his base level of functioning. This will have long term implications for his ability to live in the community, maintain stable housing, employment and engage in other activities of daily living such as driving.

[30] It is anticipated the antipsychotic treatment will reduce or attenuate these symptoms and therefore prevent or substantially reduce the extent of his psychosis.

[31] Moreover, there are additional behaviours or degrees of symptoms that support Dr. Powe’s view that his condition will or is likely to deteriorate substantially or rapidly. Dr. Powe explains that a central concern is that J.L. has always been generally pleasant to deal with, notwithstanding his psychotic symptoms. However, he has shown more aggression, which is out of character. My review of the hospital records from July 2024, in the month since the hearing, confirmed the ongoing behaviours noted at the CCB hearing, as well as an escalation of behaviours that is interfering with his progress:

a. Telling nursing staff that he believes there is medication hidden in the food and water. He refused to drink water on the ward on at least one day.

b. Mostly walking only backwards when he is in the common areas on the ward. He says this makes him feel “balanced”.

c. Continues not to shower for at least 10 days at a time.

d. Will not speak with his mother or allow her to visit on the ward.

e. Physically pushed a resident.

f. Has stopped speaking with Dr. Powe.

g. Has refused to take all medications, including for issues unrelated to the psychosis diagnosis, including for sleep and anxiety.

h. Continued to demand an unaccompanied pass and refused to engage further when offered only an accompanied pass.

i. As of July 25, 2024, he was behaving in a bizarre and very distracted manner during group recreational therapy such that the therapist determined he was not well enough to attend the group.

j. Refused to come out of his room to speak with the resident.

k. As of July 29, 2024, the ward staff determined J.L. was too disorganized to safely manage during the groups or passes off unit with staff. They are not comfortable accompanying him off unit until his clinical presentation improves.

l. As of July 30, 2024, the resident and nursing staff documented that he was more uncooperative with his care. He continued to ask for passes to go off unit and refused to have a shower unless he was given a pass. He stood at the unit door all morning and refused to move.

m. He continued to talk over the resident’s efforts to explain why passes had been revoked.

n. On July 31, 2024, he continued to refuse medication and intermittently refused to have his vitals assessed. Staff had difficulty in redirecting him from his demands for off unit passes. He was verbose, difficult to interrupt, often rambling and showed poor insight and judgment.

[32] It is of note that he was no longer attending recreational and therapeutic groups as he cannot participate appropriately to the extent staff do not feel comfortable in accompanying him away from the ward. This is a new and significant development since the CCB hearing.

[33] J.L. submits that given Dr. Powe’s opinion of his incapacity, that s. 14 of the Evidence Act requires her to adduce other evidence to corroborate or support her position that treatment is justified. Dr. Powe questions the applicability of this provision. I need not decide that issue, as I find there is other material evidence that corroborates the respondent’s submission. The clinical notes and records, examples of which were just summarized, document the findings and observations of the resident and nursing staff, and support the respondent’s position.

[34] The treatment by injection against his wishes and pending his appeal is a profound intrusion on J.L.’s bodily integrity and cannot be lightly dismissed. Nevertheless, I am satisfied that the benefit J.L. is expected to obtain from the treatment outweighs the risk of harm to him and is the least restrictive and least intrusive treatment. The record demonstrates he previously responded well to this specific treatment such that he was eventually discharged. There are unwanted side effects, such as weight gain, which the respondent proposes to monitor (and which is why another medication was prescribed). Because of the medication compliance issues, injection is necessary, but it also means the administration of the treatment is done with less frequency. Based upon his past response to this treatment, his symptoms and behaviours are anticipated to improve, which offers the short-term advantages of a return of privileges such participation in group recreation and therapy and passes and long-term benefits of a plan for his return to the community.

[35] For the same reasons, I am satisfied that his present condition makes it necessary to administer the Invega Sustenna treatment before final disposition of the appeal.

[36] Dr. Powe has also explained that the LHSC inpatient mental health program does not provide long-term inpatient mental health care. However, given his condition and deterioration since the CCB hearing, J.L. cannot be discharged to a home or residential setting. Given the delay in intervention and worsening symptoms, Dr. Powe and the LHSC treatment team believe J.L. would receive more appropriate long-term care at Parkwood Institute, part of St. Joseph’s Health Care London, which is dedicated to patients with severe and persistent mental illness in need of longer-stay specialized mental health care. St. Joseph’s agrees J.L. is appropriate for transfer; however, has concerns about accepting the transfer while he is untreated for psychosis. Transfer plans are therefore on hold.

[37] Finally, considering J.L.’s condition, the scheduling of the appeal is also a circumstance that contributes to the necessity of the treatment before resolution of the appeal. The appeal did not truly get underway until late August 2024. As of the time of this hearing, the CCB record was still not received, although it was expected within the next week to ten days. The parties are prepared to expedite efforts to perfect the appeal and have confirmed that two hours is anticipated for the hearing. The court will endeavour to schedule an urgent hearing for as soon as possible; however, with the volume of other scheduling demands upon the court, it is unlikely that a hearing date can be confirmed before late October and is more likely for November 2024. As soon as the appeal materials are received, the court will set the hearing date for as early as possible, but at this point, it remains a contingent exercise.

Disposition

[38] For the foregoing reasons, the motion by the respondent Dr. Powe is granted.

[39] Pursuant to s. 19 of the Health Care Consent Act, 1996, the respondent is authorized to administer treatment of antipsychotic medication to J.L. pending final resolution of his appeal from the decision of the Consent and Capacity Board dated June 25, 2024:

a. The appellant J.L. shall perfect his appeal within one (1) week of receipt of the Consent and Capacity Board record.

b. The respondent shall deliver responding materials within one (1) week of receipt of the appeal materials.

c. Upon perfection of the appeal, the court will fix the hearing date, to be heard via Zoom, for two (2) hours. The appellant is asked to ensure the trial coordinator is notified when the appeal is perfected so that scheduling inquiries can be undertaken.

Justice K. Tranquilli

Date: September 25, 2024