Court File and Parties

Court File No.: CV-24-00719668-0000 Date: 20241017 Ontario Superior Court of Justice

Re: B.B., Appellant -and- Dr. Dianne Pittman, Respondent

Before: Robert Centa J.

Counsel: Eyitayo Dada, for the Appellant Meghan Payne and Rebecca Lang, for the Respondent

Heard: October 4, 2024

Endorsement

Note: The appellant sought, and I grant, an order that in any reporting upon this case in the media or in the reporting of the reasons for decision, there shall be no publication of the names of the appellant or the members of her immediate family.

1B.B. appeals from decisions of the Consent and Capacity Board dated April 25, 2024. The Board confirmed the finding of Dr. Pittman, that B.B. was incapable with respect to treatment with antipsychotic medications and a community treatment plan. The Board also confirmed a community treatment order that came into effect on March 12, 2024, and expired on September 11, 2024.

2For the reasons that follow, the appeal is dismissed.

Facts

3B.B. is 27 years old. She was first admitted to hospital in 2011, at the age of 14. She was admitted again from August 31, 2019, to October 21, 2019, after she chased a man and reportedly tried to kidnap his daughter. At this time, she reported that people were following her, she presented with disorganized thinking and behaviour, and she was found incapable of consenting to treatment. B.B.’s mother has acted as her substitute decision-maker since 2019.

4After her discharge from hospital in 2019, B.B. was subject to her first community treatment order. B.B. has been subject to several community treatment orders since that time. During a time that she was not subject to a community treatment order, she stopped taking her medication, and in February 2022, was found walking outdoors without pants or shoes and experiencing hallucinations. She was readmitted to hospital from February 21, 2022, to April 14, 2022. A new community treatment order was issued upon her discharge from hospital, which was renewed on October 17, 2022, April 5, 2023, and September 29, 2023.

5Dr. Pittman has cared for B.B. since September 2022. On February 27, 2024, Dr. Pittman assessed B.B.'s capacity to consent to treatment with antipsychotic medication and to the community treatment plan. Dr. Pittman concluded that B.B. does not believe she has a mental illness and does not need antipsychotic medication. Dr. Pittman concluded that B.B. would neither participate in follow-up care nor take antipsychotic medication if she was not subject to a community treatment order. Dr. Pittman formed the opinion that absent compliance with medical treatment, B.B.’s health would deteriorate, and she would require readmission to hospital. The notice of intention to renew the community treatment order was provided to B.B. on February 27, 2024, and she and her substitute decision-maker received rights advice.

6The new community treatment order came into effect on March 12, 2024. It expired on September 11, 2024.

7On February 28, 2024, B.B. applied to the Board to review the finding of incapacity and the community treatment order. The Board met on April 3, 2024, and April 24, 2024. B.B. was represented by counsel at the Board. The Board confirmed the finding of incapacity and the need for the community treatment order in decisions dated April 25, 2024. At the request of counsel for B.B., the Board provided reasons for decision on April 30, 2024. The reasons for decision span 22 pages.

8On May 1, 2024, B.B. issued a notice of appeal of the decision of the Board to the Superior Court of Justice. On August 29, 2024, B.B. filed a notice to request Civil Practice Court. I saw the parties in Civil Practice Court on September 10, 2024, timetabled the exchange of materials, and scheduled the appeal to be heard by me on an urgent basis on October 4, 2024.

Appeal Route and Standard of Review

9B.B. commenced a statutory appeal of the Board’s decisions pursuant to s. 80 of the Health Care Consent Act, 1996. B.B. sought the following relief:

3. The decision of the Board confirming the Community Treatment Order (CTO) issued against the Appellant be quashed and that, in its place, the court find that the conditions and grounds for issuing the CTO had not been met at the time of the hearing.
4. The decision of the Board finding the Appellant incapable with respect to the Community Treatment Plan and antipsychotics medications generally be quashed and that, in its place, the court find the Appellant capable with respect to the proposed treatments.

10Subsection 80(1) of the Health Care Consent Act provides that 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. The court has very broad powers on appeal. Pursuant to s. 80(10), the court may exercise all the powers of the Board, substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker, or the Board, or refer the matter back to the Board with directions, for a rehearing in whole or in part.

11Because this case involves a statutory appeal from an administrative decision-maker, the standard of review is correctness for questions of law, and palpable and overriding error for questions of fact and mixed fact and law. Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 99 Admin. L.R. (6th) 171, at para. 29; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 33, 36-52. The Supreme Court of Canada explained the meaning of a palpable and overriding error this way:

An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result… As Morissette J.A. so eloquently put it … “a palpable and overriding error is in the nature not of a needle in the haystack, but of a beam in the eye. And it is impossible to confuse these last two notions”…. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see. [Emphasis in original and internal citations omitted.] Hydro-Québec v. Matta, 2020 SCC 37, [2020] 3 S.C.R. 595, at para. 33.

12The Court of Appeal for Ontario put it this way:

A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte-Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.” Farsi v. Da Rocha, 2020 ONCA 92, 444 D.L.R. (4th) 197, at para. 35.

The Board did not commit a palpable and overriding error when it confirmed that B.B. lacked capacity to consent to treatment

13B.B. submits that the Board made a palpable and overriding error when it determined that B.B. was not capable of consenting to the community treatment plan. I disagree.

14Under Ontario law, a person is presumed to be capable with respect to treatment: Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 4(2). This preserves the value of individual autonomy. A diagnosis of mental disorder is not to be conflated with incapacity and, without more, does not remove capacity and autonomy. The law is clear that a person may be incapable with respect to some treatments and capable with respect to other treatments. A person can also be incapable with respect to a treatment at one time and capable with respect to that same treatment at another time. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 15.

15Under Ontario law, only where it can be shown that a person is unable to understand relevant factors and appreciate the reasonably foreseeable consequences of a decision (or lack of a decision), can treatment be imposed. Starson v. Swayze, 2003 SCC 32, 1 S.C.R. 722, at para 10. The onus to disprove capacity rests on the physician. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 4(2). The test for capacity is set out in s. 4 of the Health Care Consent Act:

A person is capable with respect to a treatment…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.

16The leading case on s. 4 of the Health Care Consent Act remains the Supreme Court’s decision in Starson. In Starson, Major J. explained that the physician must provide evidence of the nature and purpose of the proposed treatment, the foreseeable benefits and risks associated with the treatment, and the expected consequences for the patient if the patient does not follow the treatment. M.S. v. Legault, 2022 ONSC 4035, at para. 18.

17However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine their ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences.

18The Board correctly stated the test to be applied when it reviewed Dr. Pittman’s finding and concluded that B.B. was not able to appreciate the reasonably foreseeable consequences of a decision, or lack of a decision, about treatment with antipsychotic medication and the community treatment plan. Dr. Pittman’s factum well-summarized the evidence before the Board, which included that:

a. On February 27, 2024, Dr. Pittman assessed B.B. and concluded that she displays “disorganized thinking and behaviour; bizarre delusional thought content; and agitation and anger,” that she “believes that she has various “gifts” including being able to know the future, that she is a “medium”, that she can understand conspiracies going around her, and that she is “seeing visions” that other people do not see.” b. B.B. does not believe that she has a mental illness and has repeatedly said that she does not need antipsychotic medication, that it does not help in any way, and that because of this, she does not want to continue to take medication. B.B. has also maintained that that she would stop medication and follow-up if she were not on a community treatment order. c. B.B. denies that she has any symptoms of psychosis. B.B. has indicated that she would not require readmission if she did not take her medication or did not receive follow-up in the community. d. When Dr. Pittman visited B.B. again shortly before the hearing, on April 18, 2024, B.B. told Dr. Pittman that “she was hearing the voice of the film star she believed sent her money and monitored her.” Dr. Pittman concluded that there had been no change in B.B.’s mental condition or in her capacity with respect to treatment since February 27, 2024, and it was very unlikely that B.B. regained capacity between the April 18, 2024 visit and the hearing. e. Dr. Pittman advised B.B. that it is her clinical opinion that: i. if B.B. does not receive supervision in the community, she will suffer a mental deterioration; and ii. B.B. would be readmitted to hospital if she was not medication compliant due to a mental deterioration.

19I do not accept B.B.’s submission that Dr. Pittman provided insufficient information to B.B. about the risks and benefits of the community treatment plan. It is clear from Dr. Pittman’s notes and testimony that she provided information to B.B. about the risks and benefits of the treatment. The Board was entitled to accept that evidence as sufficient.

20In my view, there was a significant amount of evidence before the Board that B.B. was unable to appreciate the likely consequences of her own treatment decisions, as a result of her inability to recognize that she displayed the manifestations of a major mental condition, and that she could not apply to herself the information that Dr. Pittman provided to her about treating such a condition. The Board was entitled to accept this evidence and did not commit a palpable and overriding error in reaching its conclusion.

The Board did not commit a palpable and overriding error when it confirmed that B.B. would likely suffer substantial mental deterioration if she did not receive continuing care

21B.B. submits that the Board committed a palpable and overriding error when it held that she would likely suffer substantial mental deterioration if she did not receive continuing treatment or care and continuing supervision while living in the community. I disagree.

22Subclause 33.1(4)(c)(iii) of the Mental Health Act, R.S.O. 1990, c. M.7 provides as follows:

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

(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,

(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 ….

23The Board concluded that Dr. Pittman had demonstrated that B.B. met the test set out in s. 33.1(4)(c)(iii):

BB displayed similar symptoms each time she as hospitalized. We concluded she did suffer from a chronic mental condition that required ongoing treatment to manage its symptoms. BB needed ongoing supervision because without it she would, as previously, discontinue treatment.

Absent ongoing treatment with antipsychotic [medications], it was probable that BB would suffer substantial mental deterioration. Her apprehension by police in February 2022 was the result of BB having discontinued treatment, resulting in a “substantial mental deterioration.”

24In my view, there was abundant evidence before the Board to support this conclusion. This evidence included the following:

a. B.B. displayed similar symptoms each time she was hospitalized; b. B.B. had previously discontinued treatment without supervision in the community; c. B.B. did not think she suffered a mental condition; d. B.B. would discontinue treatment if the choice was up to her; e. If B.B. discontinued treatment, there would be similar consequences to what had happened previously, namely her substantial mental deterioration; f. Even while on a community treatment order and receiving treatment with antipsychotic medications, B.B. remained symptomatic; g. On April 18, 2024, a few days before the hearing, B.B. continued to express symptoms of her illness, including delusional beliefs and denying she suffers from a mental illness; h. B.B. denied suffering from a mental illness, while simultaneously endorsing auditory hallucinations, which are a symptom of this illness; i. At the Board hearing, B.B. became overwhelmed. She began screaming and swearing, eventually leaving the hearing. B.B. returned in the same agitated condition, her screaming and swearing precluding anyone else from being heard. The hearing proceeded in her absence.

25In my view, there was ample evidence before the Board to support its conclusion that B.B. met the test in s. 33.1(4)(c)(iii), and indeed, all of the criteria in s. 33.1(4)(c). I do not accept B.B.’s submission that the Board lacked “concrete evidence,” that it erred by considering “dated evidence,” or that the evidence it relied on was “historical and vague with little to no context.” B.B. is essentially asking me to reweigh the evidence before the Board, which is not my function. The Board did not commit a palpable and overriding error in concluding that B.B. met the test in s. 33.1(4)(c)(iii).

The Board did not commit a palpable and overriding error in confirming that Dr. Pittman consulted with the appropriate health practitioners

26B.B. submits that the Board erred in its conclusion that Dr. Pittman complied with s. 33.1(4)(d), which provides that:

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

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

27I do not accept this submission.

28The community treatment plan considered by the Board was signed by Dr. Pittman, by a representative of the Grand River Hospital, by the Waterloo Wellington community treatment order coordinator, and by B.B.’s substitute decision-maker. As stated, Dr. Pittman assessed B.B. on February 27, 2024, and signed the community treatment plan on that date. On its face, the community treatment plan certainly appears to comply with s. 33.1(4)(d).

29B.B. objects that the representative of the Grand River Hospital signed the community treatment plan 49 days before Dr. Pittman signed the form. B.B. relies on several cases, including G.A. v. Kantor, 2022 ONSC 4434. Those cases do not assist B.B. because they concern situations where the treating physician signed the community treatment plan prior to examining the patient to be made subject to the plan. That is very different than this case, where the early signature is by a party to the community treatment plan who is not the treating physician.

30There is nothing in the Mental Health Act that prevented the representative of the Grand River Hospital from signing early. In addition, Dr. Pittman herself is authorized to sign on behalf of the Grand River Hospital, as she was a member of the relevant committee.

31In my view, it was open to the Board to conclude, based on the evidence before it, that Dr. Pittman met the test in s. 33.1(4)(d). The Board did not make a palpable and overriding error in making this finding.

The Board did not commit an error in concluding that B.B.’s substitute decision-maker properly consented to the community treatment plan

32B.B. submits that even if she was incapable of consenting to the treatment plan, the Board erred in concluding that her substitute decision-maker provided consent to the treatment in accordance with the requirements of the Health Care Consent Act. I disagree.

33Clause 31.1(4)(f) of the Mental Health Act provides that:

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

(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.

34Section 20 of the Health Care Consent Act provides that if a person is incapable with respect to treatment, consent may be given or refused on her behalf by a substitute decision-maker. In this case, there is no dispute that B.B.’s mother was her properly authorized substitute decision-maker. Section 21 outlines the applicable principles for giving or refusing consent. For the purposes of this case, the most relevant principles are found in ss. 21(1) and (2):

21 (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish. [Emphasis added.]
2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests.

(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable; (b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and (c) the following factors:

1. Whether the treatment is likely to, i. improve the incapable person’s condition or well-being, ii. prevent the incapable person’s condition or well-being from deteriorating, or iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.
2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

35Therefore, if B.B.’s mother knew of a wish applicable to the circumstances that B.B. expressed while capable and after attaining 16 years of age, B.B.’s mother shall give or refuse consent in accordance with the wish. This is known as a prior capable wish.

36B.B. submits that Board erred in law in finding that B.B.’s mother provided proper consent, because Dr. Pittman did not document or have a specific recollection of asking B.B.’s mother whether she was aware of whether B.B. had expressed a prior capable wish. I do not accept B.B.’s submission that this raises a question of law. I find that the question of whether the Board was satisfied that B.B.’s mother provided consent in accordance with the requirements of the Health Care Consent Act is a question of mixed fact and law.

37The Board correctly identified the applicable provisions of the statute and correctly identified the requirements of those provisions. The Board correctly answered the question of law. The Health Care Consent Act does not require that the physician ask the substitute decision-maker whether the person expressed a prior capable wish in every circumstance. K.S. v. Neszt, 2024 ONSC 4414, at paras. 32-35. The text, context, and the purpose of the Health Care Consent Act do not require such an approach. Consent must only be obtained in accordance with the rules and principles spelled out in the Health Care Consent Act. The Board committed no legal error.

38The Board then applied the legal standard to the evidence before it. The Board had the following evidence before it:

a. B.B.'s mother has been her substitute decision-maker for community treatment plans since her first community treatment order was entered into on October 21, 2019; b. B.B.'s substitute decision-maker has had discussions with several physicians since 2019 regarding providing substitute consent for B.B., including with a family educator from the Canadian Mental Health Association in 2020, “all making sure that [B.B.'s substitute decision-maker] knew her role and responsibilities as substitute decision maker”; c. Dr. Pittman has had approximately half a dozen conversations with B.B.'s substitute decision-maker since 2022; d. Dr. Pittman has interviewed B.B. about a dozen times. B.B. has never indicated or expressed that she may have a prior capable wish; e. Other members of B.B.'s community treatment team have seen her “dozens” of times. They try to see her weekly and their reported encounters are reported at team meetings, which Dr. Pittman attends; f. There is no evidence that B.B. ever asserted a prior capable wish applicable to the community treatment plan; g. Dr. Pittman did not find any information in B.B.’s records that led her to think that B.B. may possibly have a prior capable wish; h. There was nothing reported by any member of B.B.'s treatment team to suggest that she may have a prior capable wish applicable to the community treatment plan; i. When B.B.'s substitute decision-maker provided consent to the community treatment plan on February 27, 2024, Dr. Pittman understood and believed that this was in accordance with the rules for consent in the Health Care Consent Act; j. Following this issue being raised, Dr. Pittman explicitly inquired of B.B.'s substitute decision-maker whether she was aware of any prior capable wish expressed by B.B. applicable to the community treatment plan and the substitute decision-maker confirmed that she was not aware of any prior capable wish; k. As of the date of the hearing, Dr. Pittman understood and believed that the consent to the community treatment plan had been given in accordance with the rules for consent in the Health Care Consent Act.

39In my view, it was open to the Board to conclude based on this evidence that B.B.’s substitute decision-maker had provided consent in accordance with the applicable principles set out in the Health Care Consent Act. The Board did not commit a palpable and overriding error. I see no reason to interfere with the Board’s decision not to exercise its discretion to revoke the community treatment order where the criteria were satisfied at the time of the hearing.

Mootness

40The respondent submitted that the appeal was moot. I prefer to deal with the appeal on the merits and therefore, will not determine whether the appeal is moot and, if it is, to determine whether there are special circumstances that justify hearing the appeal.

41However, it is imperative that appeals from the Board be heard in a timely way. Subsection 80(8) of the Health Care Consent Act mandates that “The court shall fix for the hearing of the appeal the earliest date that is compatible with its just disposition.” In this case, the notice of appeal was issued on May 1, 2024, but the parties did not submit a requisition to attend Civil Practice Court until August 29, 2024, and did not appear there until September 10, 2024. The CPC appearance was only days before the community treatment order was set to expire.

42Counsel advised that they had trouble securing a spot at CPC, which led to the delay. In the future, it is essential that counsel make clear to court staff that they need to attend CPC to address an appeal from the Board. Extra space should be found to accommodate these cases at CPC, if that is necessary. If counsel have difficulty securing an immediate spot at CPC, they should request an urgent case conference with a judge. Ideally, that case conference would take place within a few days of the request.

Conclusion and Costs

43The appeal is dismissed.

44If the parties are not able to resolve the costs of this appeal, Dr. Pittman may email her costs submission of no more than three double-spaced pages to my judicial assistant on or before October 24, 2024. B.B. may deliver her responding submission of no more than three double-spaced pages on or before October 31, 2024. No reply submissions are to be delivered without leave.

Robert Centa J.