Court File and Parties

COURT FILE NO.: CV-24-00720136-0000 DATE: 20241106 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.F. AND: Dr. Ronald Leung

BEFORE: J.T. Akbarali J.

COUNSEL: Theodore Nemetz, for the appellant Nicole Fielding, for the respondent

HEARD: November 1, 2024

Endorsement

Overview

[1] The appellant, J.F., appeals from a decision of the Consent and Capacity Board dated April 23, 2024, which confirmed that J.F. was not capable of consenting to treatment with anti-psychotic medication. The specific issue raised on appeal is whether J.F. was unable to appreciate the reasonably foreseeable consequences of a treatment decision or lack of one.

Brief Background

[2] J.F. has a history of diagnosis with schizophrenia and multiple prior hospital admissions for mental health treatment. Prior to the admission that is the subject of this appeal, J.F. had been admitted to St. Michael’s Hospital form June 24, 2023 to August 16, 2023. J.F. had been exhibiting reclusive, disorganized behaviour, hyper-religious behaviour, he was observed to be responding to internal stimuli, and his ability to maintain his hygiene and food intake had declined. As a result, his mother obtained a Form 2. J.F. was determined to be incapable of consenting to treatment with anti-psychotic medications, and was discharged subject to a Community Treatment Order (“CTO”), with his mother acting as his substitute decision-maker.

[3] In October 2023, pursuant to a Power of Attorney, J.F. appointed his father to be his substitute decision maker. His father withdrew consent to the CTO. J.F. was thereafter not treated with anti-psychotic medication. He was then living at his father’s home.

[4] About four to five weeks before the admission to hospital that is the subject to this appeal, J.F. left his father’s home. His family did not know where he had gone.

[5] On April 3, 2024, J.F., then 26 years of age, was admitted to Michael Garron Hospital (“MGH”). He was suffering from a significant injury to his feet and had developed gangrene. There was concern he would require amputation of both legs below the knee; ultimately eight of his toes were amputated.

[6] Upon arrival at MGH, J.F. reported that he had taken the subway in Toronto to Warden Station without shoes on because they would not fit his feet. He reported walking along the beach, falling into the water, and wetting all of his clothes. He reported using bags, towels, and a backpack as shoes to try to protect his feet. He reported eventually climbing over a fence and ending up in someone’s backyard. He indicated that he then saw someone sitting in a car and asked them to call EMS.

[7] Given the seriousness of his injury, and the consequences of amputation, coupled with J.F.’s prior psychiatric history, J.F.’s orthopedic team sought an opinion from Dr. Leung as to whether J.F. was capable of consenting to treatment. Dr. Leung did not at that time assess J.F.’s capacity; he advised the orthopedic team that the physician proposing treatment must conduct the capacity assessment. However, he did meet with J.F. at that time, and found him to be calm, guarded, and displaying no sign of responding to internal stimuli. Much of the behaviour J.F. had displayed during past mental health admissions was not present while J.F. was at MGH. In particular, J.F. was not aggressive, nor responding to internal stimuli. Dr. Leung noted, however, that there were concerns that an underlying mental illness had led to J.F.’s feet being injured in such a way that surgical amputation of his toes was required.

[8] The evidence indicates that a foot infection would initially present with red, swollen, hot and painful feet. Only after prolonged exposure would the tissue begin to die, and turn black. It is at that point that the nerves begin to die, and the pain actually decreases. Significant portions of J.F.’s feet were black and gangrenous, which generally would require prolonged exposure, likely a week or weeks, rather than days. There was concern because J.F. was not able to rationally explain the serious injury to his feet.

[9] Dr. Leung met with J.F. again after the surgery, on April 9, 2023, to follow-up. He indicated that J.F. continued to be calm, and not responding to internal stimuli. He also continued to be guarded.

[10] Over the weekend of April 13-14, J.F.’s family came to visit J.F. in hospital, and expressed concerns about J.F.’s mental and physical health. They provided additional information about J.F.’s history. As a result, on April 15, 2023, Dr. Leung conducted an assessment of J.F. and issued a Certificate of Involuntary Admission based on what is known as “Box B criteria,” that is, patients who are incapable of consenting to treatment and meet specified criteria.

[11] J.F. applied to the Consent and Capacity Board (the “CCB” or the “Board”) to review his involuntary status and the finding of incapacity of consent to treatment.

The Board’s Decision

[12] The parties agree that the Board correctly instructed itself as to the law.

[13] The Board noted that the onus of proof rests with the attending physician, on a balance of probabilities, to satisfy the Board that the conditions for involuntary status continue to be met at the time of the Board’s hearing. The Board concluded that it had to be satisfied based on clear, cogent, and compelling evidence that the physician’s onus has been discharged. If the onus is not discharged, the Board is required to rescind the Certificate of Involuntary Admission.

[14] The Board directed itself to consider all of the evidence properly before it, including hearsay evidence which it noted it may accept and consider, but had to carefully weigh.

[15] The Board referred itself to s. 20(1.1) of the Mental Health Act, R.S.O. 1990, c. M.7, which sets out the Box B criteria. It then proceeded to review each of the criteria.

[16] The only criterion in issue in this appeal is the capacity to consent to treatment. With respect to this criterion, the Board noted s. 4(2) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. (“HCCA”), which presumes that a person is capable to consent to treatment. It noted that s. 4(1) of the HCCA prescribes the test for capacity to consent to treatment as follows:

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 … and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[17] The Board noted that the first branch of the test for capacity to consent to treatment, the ability to understand, was met in this case. Dr. Leung’s opinion was that J.F. had the ability to understand.

[18] The focus was, therefore, on the second branch of the test, that is, whether J.F. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question.

[19] The Board reviewed the history of J.F.’s prior hospital admissions and found that there was ample evidence that J.F. suffered from a mental disorder. It noted that, on prior occasions, treatment with antipsychotic medication resulted in significant improvement in J.F.’s condition. The Board concluded that J.F. suffered from schizophrenia.

[20] The Board reviewed Dr. Leung’s assessment of J.F. on April 15, 2020, which was expanded on in his oral evidence. It noted that J.F. denied suffering from schizophrenia, was unable to provide an explanation for his past hospitalizations, or the good response he had had to anti-psychotic medications in the past.

[21] The Board noted that, unlike J.F.’s behaviour during past admissions, J.F. was not aggressive or violent, and displayed no overt signs of psychosis or violence. It also noted that J.F. was guarded, and that the explanation he had provided for the injury to his feet had not been logical or rational. The Board noted Dr. Leung’s evidence that J.F.’s guardedness was a symptom of an underlying thought disorder consistent with schizophrenia.

[22] The Board referred to J.F.’s evidence, during which he acknowledged that his past behaviour was unusual, and that he was aggressive, and guarded. He denied that any of his past admissions were influenced by having psychotic symptoms, but attributed his behavior to being hardheaded.

[23] The Board observed that J.F.’s evidence was rambling and provided much more detail than necessary. It was satisfied that J.F. did not believe he had suffered from mental health issues in the past, and therefore could not be suffering from a mental illness during the current admission.

[24] The Board concluded that J.F. was unable to recognize the symptoms of his mental illness and unable to acknowledge the possibility that he suffered from a mental disorder.

Issue on Appeal

[25] The sole question on this appeal is whether the Board erred in concluded that J.F. was incapable of consenting to treatment.

Analysis

Standard of Review

[26] The parties agree that, as a statutory appeal, the appellate standard of review applies. Questions of law are reviewed on a correctness standard, while findings of fact may only be overturned where there is palpable and overriding error: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37; Housen v. Nikolaisen, 2002 SCC 33.

[27] As the Court of Appeal held in B.L. v. Pytyck, 2021 ONCA 67, at para. 22:

The Board’s identification of the proper statutory test for capacity involves a question of law reviewable on the correctness standard. The Board’s application of the statutory test for capacity to the evidence to determine whether a person is capable is a question of mixed fact and law, reviewable on the deferential standard of palpable and overriding error, absent an extricable question of law in the Board’s analysis: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 84; Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33.

Legal Principles Relevant to Capacity

[28] The parties agree on the relevant law regarding incapacity to consent to treatment. In Starson v. Swayze, 2003 SCC 32, the Supreme Court of Canada considered the test for incapacity in s. 4 of the HCCA. At para. 13, the Court summarized four important points:

a. The person is presumed to be competent and the standard of proof for a finding of incapacity is a balance of probabilities;

b. The test relates to the capacity or ability to understand and appreciate, not actual understanding and appreciation;

c. The first component of the test for capacity is that the person be able to understand the information that is relevant to making a decision about the treatment at issue;

d. The second component of the test is that the person be able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[29] As I have noted, it is the last of these points that is in issue in this appeal.

[30] Of the ability to appreciate the reasonably foreseeable consequences of a decision or lack thereof, the Supreme Court of Canada wrote, at para. 18, that three common clinical indicators of a person’s ability to appreciate the consequences of accepting or declining treatment are: (i) whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her; (ii) whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life, and (iii) whether the person’s choice is not substantially based on a delusional belief. The Court found that “these indicators provide a useful framework for identifying what ‘ability to appreciate’ means in concrete terms.”

[31] The Court also underscored that “the right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy”: Starson, at para 75. The Board’s mandate is to adjudicate on capacity only; its conception of a patient’s best interests is irrelevant: Starson, at para. 76. It is an error to equate the presence of a mental disorder with incapacity: Starson, at para. 77.

[32] With respect to the second element of the test for incapacity, the Court identified two important points, at para. 79:

First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and “capable but dissident interpretations of information” are to be expected: see Weisstub Report, supra, at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition.

[33] The Court went on to quote from Professor Weisstub with approval, at para. 79:

Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.

[34] It went on to explain that a patient need not describe his mental condition as an illness, or describe it negatively. A patient need not agree with the physician’s opinion regarding the cause of the condition. “Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision”: Starson, at para. 79.

Did the Board err in confirming the finding that J.F. was incapable of consenting to treatment?

[35] J.F. argues that, having identified the proper test for incapacity, the Board failed to apply it. This is a mixed question of fact and law. J.F. has not identified an extricable question of law, so the standard of review to apply in this case is that of palpable and overriding error.

[36] The Board’s review of the evidence indicates that it was aware of key facts, including that many of the manifestations of J.F.’s mental condition that were present at earlier hospitalizations were not present during the current hospitalization.

[37] However, it also reviewed the evidence which established that certain manifestations of J.F.’s mental condition continued to be present, including guardedness, which was a symptom of an underlying thought disorder. J.F. accepted that he was guarded, but attributed it to other causes (hard-headedness in the past, and dealing with the amputation of his toes during the current hospitalization). He did not acknowledge that his guardedness was a possible manifestation of a mental condition.

[38] The Board noted J.F.’s inability to provide an explanation for the injury to his feet that was logical or rational, and J.F.’s rambling answers to questions, both of which were consistent with an underlying thought disorder. J.F., in his evidence, denied having “disorganized thinking.”

[39] Counsel for J.F. points out that the Board’s reasons record that J.F. refused to acknowledge he suffered from any mental illness. J.F. argues that he is not required to accept any particular diagnosis; I agree. However, the issue was not that J.F. did not accept that he has a mental illness. The issue is broader: J.F. did not accept the possibility that he had any manifestations, in the past or during the current admission, that could be related to a mental condition.

[40] Rather, J.F. recognized some, but not all, of the manifestations of a mental condition in his behaviour. Those did recognize he attributed definitively to other causes besides a mental condition. His specific denial of disorganized thinking, and the specific evidence of his underlying thought disorder, from both his and Dr. Leung’s testimony, was evidence before the Board that supported its conclusion that J.F. did not acknowledge that he may be affected by manifestations of a mental condition.

[41] Although at certain points in its reasons, the Board appears to focus on J.F.’s denial of having a mental illness rather than his refusal to acknowledge that he may be affected by manifestations of a mental condition, reading its reasons as a whole, and considering the relevant law and the evidence before the Board, I am not convinced that it erred in its analysis.

[42] In conclusion, I see no palpable and overriding error in the Board’s determination that J.F. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment, and therefore, it did not err in concluding that J.F. was incapable to consent to treatment.

[43] It follows that the appeal must be dismissed.

[44] As is usual in appeals from the Board, no costs are sought nor awarded.

J.T. Akbarali J. Date: November 6, 2024