Endorsement
Introduction
Court File No.: CV-24-00719900
Date: 2025-01-27
Court: Superior Court of Justice – Ontario
Appellant: SI
Respondent: Dr. Jeanetta Viljoen
Before: Mark L. Koehnen
Counsel:
Naomi Sayers for the appellant
Sarah McLeod for the respondent
Heard: January 21, 2025
Background
[1] The appellant appeals from the decision of the Consent and Capacity Board dated May 6, 2024, which upheld the respondent Dr.’s decision that the appellant was incapable of consenting to treatment with antipsychotic drugs because the appellant failed to appreciate the foreseeable consequences of making or not making a decision.
[2] At the end of the oral hearing on January 21, 2025, I issued an order dismissing the appeal with reasons to follow. These are those reasons.
The Standard of Review
[3] The standard of review on appeal from the Consent and Capacity Board is not in dispute. The relevant standard is that for appeals from a judge where questions of law are reviewed on a standard of correctness, and questions of fact are subject to the standard of palpable and overriding error.
(Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 37; Housen v. Nikolaisen, 2002 SCC 33)
[4] In this case, 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.
(Starson v. Swayze, 2003 SCC 32, para 84; Gajewski v. Wilkie, 2014 ONCA 897, para 33; B.L. v. Pytyck, 2021 ONCA 67, para 22)
The Statutory Test for Capacity
[5] The test for capacity is set out in section 4 of the Health Care Consent Act, 1996, SO 1996, c 2, Sch A, s. 4, which provides:
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.
[6] That test involves two components: First, that the person is able to understand information relevant to making a decision. Second, that the person is able to appreciate the reasonably foreseeable consequences of a decision or a lack of a decision.
[7] The Board found that SI could understand information but could not appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Corroborative Evidence and the Evidence Act
[8] The issue on appeal concerns the need for corroborative evidence. Section 14 of the Evidence Act, RSO 1990, c E.23 provides, among other things, that a party opposite in interest to a patient in a psychiatric facility cannot obtain judgment “on the party’s own evidence, unless the evidence is corroborated by some other material evidence”.
[9] The question is whether the Board had evidence to corroborate that of the attending respondent physician, Dr. Viljoen, who found SI to be incapable by reason of being unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[10] The Board correctly identified the need for corroboration.
[11] The appellant submits that the Board erred in law in the nature of the corroborative evidence it relied on in upholding the respondent’s capacity finding. The appellant submits that the Board relied on the evidence of Dr. Banks, the on-call psychiatrist in the hospital who recorded in his consultation report that the symptoms SI presented included “positive and negative psychotic symptoms of schizophrenia.” Dr. Banks recorded in his notes with respect to SI that:
“at this time he does not appear capable, although I was not able to engage in in a fulsome capacity assessment to make this finding formally.”
[12] SI submits that doing so was erroneous because the Board is not entitled to rely on an incomplete assessment of capacity to corroborate Dr. Viljoen’s finding. SI submits that, at its highest, the evidence of Dr. Banks corroborates that SI may require treatment but it does not corroborate that SI does not appreciate the reasonably foreseeable consequences of a decision or a lack of a decision.
[13] The appellant underscores the limitations of the informal assessment of Dr. Banks to heighten the frailty of relying on it. The appellant notes that the informal assessment could not be relied upon as a decision about capacity because SI was not advised of his rights in relation to that assessment as required by the Mental Health Act. In addition, Dr. Banks’ assessment did not indicate whether the appellant was allowed to leave the emergency department and did not indicate whether SI was able to understand information or appreciate the consequences of a decision or lack of decision.
[14] I do not agree with the appellant’s submission. The practical effect of the appellant’s submission is to require two capacity assessments by different physicians before a patient could be given involuntary treatment.
Case Law on Corroboration
[15] This very point was addressed by DiTomaso J. in Farquhar-Lockett v. Jones, 2016 ONSC 346, paras 66-72. In that case, the appellant argued that none of the evidence at the hearing corroborated his alleged lack of capacity for treatment decisions.
[16] In dismissing the appeal, DiTomaso J. found that the corroboration the Evidence Act requires is evidence “that supports confidence in the word of the health practitioner” who made the finding of treatment incapacity but that not every portion of a witness’ evidence had to be corroborated. Even “vital and essential portions of evidence do not have to be corroborated.” As DiTomaso J. noted, “the relevant Evidence Act section does not contemplate requiring that a claim be proven by independent evidence.” DiTomaso J. expressly found that a second clinical opinion about treatment incapacity was not required to satisfy s. 14 of the Evidence Act.
[17] In J.C. v. Maldeniya, 2021 ONSC 8540, my colleague Sugunasiri J. came to a similar conclusion, holding that the Evidence Act does not require a second opinion to corroborate a conclusion on capacity. In coming to this conclusion, Justice Sugunasiri reasoned that a second opinion on capacity would reflect a conclusion of law, not evidence as understood by the Evidence Act. It is the factual underpinning of the conclusion on capacity that requires corroboration, not the conclusion on capacity itself.
The Board’s Corroborative Evidence
[18] When discussing the issue of corroboration, the Board’s decision refers to:
- The notes of Dr. Banks observing positive and negative psychotic symptoms of schizophrenia.
- Dr. Banks’s observation that SI “does not appear capable”.
Other passages of the Board’s decision refer to additional evidence which would also be corroborative of the respondent’s finding, namely:
- Medical history which showed that a previous psychiatric admission was initiated by a deterioration in his mental state after nonadherence to treatment.
- Previous positive responses to medication.
- A note from SI’s parents showing clinical improvement while on medication and deterioration after stopping medication.
[19] Even if the Board looked only at the evidence of Dr. Banks, that is sufficient to “support confidence in the word of the health practitioner.” Although Dr. Banks may not have completed a formal assessment, he noted psychotic symptoms and concluded that SI did not appear capable. That corroborates Dr. Viljoen’s evidence for purposes of section 14 of the Evidence Act.
[20] In the Farquhar case discussed earlier, the corroborative evidence was of a similar nature: the patient’s clinical history, the anti-psychotic medication used to treat him in the past; the manifestations of the mental condition; his past response to treatments; and his history of stopping treatment due to a lack of insight.
Other Issues
[21] The appellant’s factum suggested that there might be an issue about the propriety of his status as an involuntary patient. In response to questions from me during oral argument, appellant’s counsel made clear that this was not an issue being pursued as a ground of appeal but was included only to demonstrate the limitations of Dr. Banks’ “informal assessment”.
Date: January 27, 2025
Mark L. Koehnen