J.A. v. Benassi, 2025 ONSC 674
CITATION: J.A. v. Benassi, 2025 ONSC 674
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision
of the Consent and Capacity Board,
pursuant to the Health Care Consent Act,
S.O. 1996, chapter 2, schedule A, As amended
BETWEEN:
J.A.
Appellant
– and –
DR. PAUL BENASSI
Respondent
J.A., appearing in person
Ikenna Aniekwe, Amicus Curiae
Sarah Rosales Zelaya, for the Respondent
HEARD: January 27, 2025
On appeal from the decision of the Consent and Capacity Board dated May 21, 2024
L. BROWNSTONE J.
1JA[*] appeals the May 21, 2024, decision of the Consent and Capacity Board (the “CCB” or “Board”) confirming the respondent’s finding that JA was incapable of consenting to treatment with antipsychotic medications. The Board found that JA lacked the ability to appreciate the reasonably foreseeable consequences of any decision, or lack of decision, regarding the proposed treatment.
2Amicus curiae was appointed and argues that the Board committed reversible errors. It asks the court to substitute its opinion for that of the respondent and find that the presumption of capacity was not displaced.
3The respondent asks that the appeal be dismissed.
4For the reasons that follow, I dismiss JA’s appeal.
JA’s Adjournment Request
5JA had counsel at the CCB hearing, but not on this appeal. In September 2024, as the appeal was not moving forward, the respondent asked the court to appoint amicus curiae. The court did so, and scheduled the January 28, 2025, date for the hearing.
6At the outset of the appeal hearing, JA asked for an adjournment so that he could appoint counsel and have time to prepare. He was under the impression that a March date had been scheduled. Neither counsel for the respondent, nor amicus curiae, nor the court was aware of any such date. Counsel believed JA may have been thinking of other proceedings with respect to the March date.
7The respondent opposed JA’s request for an adjournment. In its view, the matter was urgent. JA has been hospitalized without treatment for months and, in the respondent’s submission, has deteriorated significantly. The delay that would be occasioned by an adjournment would result in significant prejudice. Amicus urged the court to consider JA’s request to obtain counsel.
8In considering the adjournment request, I note that JA has taken no steps since the May 2024 CCB hearing to obtain appeal counsel. JA’s counsel at the hearing advised him promptly that she does not take on appeals of this kind. It is not a question of faulting JA for not having taken steps, but I must consider that failure as a factor in his request for an adjournment. I consider it unlikely that he will be able to retain counsel in a timely way, given that no such efforts have been made to date. This matter has been outstanding for eight months, and both parties need a decision. In addition, amicus was appointed because JA did not have his own counsel. Amicus was present and prepared to make oral submissions. He had already provided comprehensive and helpful written argument to the court. Those materials argue that the CCB made several errors. In that respect, although amicus is of course not JA’s counsel, I am confident the arguments about the potential CCB errors are cogently and squarely presented to the court.
9In light of these factors, I determined that the interests of justice favour proceeding with the appeal and denied JA’s request for an adjournment.
Background facts
10JA has had a history of mental illness since at least 2020. At that time, his family noted a marked change in his behaviour, affect, and cognition and a decline in his ability to attend to his activities of daily living. They observed that he was neglecting his personal hygiene and cleanliness, was increasingly withdrawn, inappropriately smiling, and exhibiting some paranoia and grandiosity.
11In 2020, JA was charged with sexual assault. In 2021, he was charged with aggravated assault, assault with a weapon, and possession of a weapon dangerous to the public peace. JA was originally found unfit to stand trial but regained his fitness after being treated with antipsychotic medication from February 19 to March 26, 2021, under a treatment order issued pursuant to the Criminal Code. He was found not criminally responsible with respect to the 2021 offences on August 24, 2021.
12The Ontario Review Board subsequently issued a disposition order, which was a hospital detention order that allowed JA to reside in the community. He lived in the community under that order from December 2022 to December 2023. Unfortunately, in the fall of 2023, JA began exhibiting signs of gradual mental decompensation. Once again, this included grandiose thinking, neglect of grooming and cleanliness, irritability, and behavioral changes. When his outpatient team confronted him, JA left the community and went to a different city. The police found him and took him to CAMH under a form 49 warrant of committal.
13Once admitted to CAMH, JA continued to show signs of mental decompensation. JA maintained he did not suffer from any mental disorder and did not acknowledge any past or current symptoms of mental illness.
14On April 16, 2024, the respondent assessed JA and issued a Form 33 under the Mental Health Act, R.S.O. 1990, c. M. 7, finding JA to be incapable of consenting, or refusing to consent, to the treatment of a mental disorder.
15JA applied to the Board to review the respondent’s finding.
Decision of the Board
16The CCB found that “[t]here was clear, cogent and compelling evidence that JA lacked an ability to appreciate the reasonably foreseeable consequences of any decision, or lack of decision, regarding the proposed treatment.” The Board found that JA saw no potential risks of not engaging in treatment, as he felt there were no underlying symptoms to treat. The Board found that the evidence demonstrated there were real and imminent risks to JA if he did not engage in treatment. It confirmed the respondent’s finding that JA was not mentally capable of consenting, or refusing to consent, to treatment of a mental disorder with antipsychotic medications.
17The Board clearly articulated that a person is presumed to be capable to consent to treatment under s. 4(2) of the Health Care Consent Act, 1996, S.O. 1996, c.2, Schedule A, referring to the presumption as a “bedrock medical and legal principle”. The Board stated that the onus to establish JA was not capable rested with the respondent, on a balance of probabilities.
18A person may be found incapable on either branch of the test set out in s. 4(1) of the Act, which provides:
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.
19The respondent argued before the Board, and the Board found, that JA was able to understand the information relevant to making a decision about his treatment. The first portion of the test was not in issue.
20The Board moved on to consider the second branch of the test, whether JA was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the treatment in question. In considering this issue, the Board referred to Starson v. Swayze at paras. 78 and 79, which, after setting out the text of s. 4(1) provide:
…Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard.
79 Before turning to an analysis of the reviewing judge’s decision, two important points regarding this statutory test require comment. 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. Professor Weisstub comments on this requirement as follows (at p. 250, note 443):
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.
As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that 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.
21The Board specifically instructed itself not to become engaged in a “best interests” analysis. It stated:
The panel remained cognizant of the obligation to not become engaged in a best interest's analysis. The right of JA to make autonomous treatment decisions had to be balanced against his need not to be deprived of necessary and effective treatment for the symptoms of mental disorder that he suffered from. The State was entitled to intervene in the making of these treatment decisions only when the symptoms of the mental disorder JA suffered from deprived him of the ability to appreciate the reasonably foreseeable consequences of a decision, or lack of decision, regarding treatment.
22The Board later stated:
The presumption of capacity is of fundamental importance. It must be afforded a robust and meaningful interpretation. Patients need not agree with their treating physicians. They are free to understand and articulate their symptoms in a manner that the physician may not. The importance of respecting the autonomy of patients to make their own treatment decisions cannot be overstated. That being said, there are situations where individuals, as a result of suffering from the symptoms of a mental disorder, will be unable to appreciate the manifestations of that mental disorder in their own beliefs and actions. These individuals are vulnerable and often at risk of suffering adverse outcomes. It is in these situations that the presumption of capacity must give way and intervention is appropriate.
JA was entitled to hold his own views regarding whether he suffered from a mental disorder and the treatment being proposed by Dr. Benassi. That being said, these views were unsupported by the objective, medical evidence and had a distinct, delusional content….
23The Board went on to provide specific examples that supported its conclusion. It found that the respondent had provided clear, cogent, and convincing evidence that JA suffered form a mental disorder, likely schizophrenia, and that he had experienced the slow re-emergence of symptoms of psychosis since December 2022.
24The Board distinguished the case before it from the facts in Starson, where Professor Starson acknowledged he suffered from a mental disorder and was aware there was medication that could assist with the symptoms. Professor Starson weighed the costs and benefits of treatment, and preferred not to be treated. In the case of JA, the Board found there to be “clear, cogent and compelling evidence that JA lacked an ability to appreciate the reasonably foreseeable consequences of any decision, or lack of decision, regarding the proposed treatment.” It provided examples in support of this conclusion.
25The Board stated:
JA was a vulnerable individual. He had no insight into the fact that over a period of months he had suffered the gradual re-emergence of symptoms of psychosis. This mental disorder rendered him unable to appreciate the manifestations of these symptoms in his own beliefs and behaviours. He saw no potential risks to not engaging in treatment, as he believed there were no underlying symptoms to treat. There were real and imminent risks to JA if he did not engage in treatment with antipsychotic medications on a timely and consistent basis. In these circumstances, the presumption of capacity had to yield to a need for treatment to ensure that JA was able to avoid unnecessary suffering.
26The Board therefore confirmed the respondent’s finding that JA was not mentally capable of consenting, or refusing consent, to treatment of a mental disorder with antipsychotic medications.
Standard of Review
27A party has a statutory right of appeal from a CCB decision on a question of law or fact or both: s. 80(1) Health Care Consent Act. As such, the normal appellate standards apply: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at para. 37. Pure questions of law are reviewable on a correctness standard. Questions of fact are reviewable on the standard of palpable and overriding error. Questions of mixed fact and law are also reviewable on the standard of palpable and overriding error, unless there is an extricable question of law, which is reviewable on the correctness standard: Hausen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Position of the parties and amicus curiae
28JA presented his views to the court. It was clear that JA is of the view that the Board erred in its decision. JA denied ever being asked whether he understood the benefits or consequences of not being treated. He expressed serious concerns about being forced to have treatment and considered that to be a human rights offense. JA expressed the view that it was an egregious offense for anyone to say that he would be violent if not medicated and referred to his right to remain silent at all times. JA left part way through the hearing; the court was advised he left the room and did not wish to return.
29Amicus curiae and the respondent agree on the law that governs the CCB hearing, and agree that the CCB properly and carefully set out the law. They disagree on whether the CCB properly applied the law.
30In amicus's view, the decision under review contains errors of law that are reviewable on a correctness standard. In the alternative, if not reviewable on a correctness standard, the error rises to the level of a palpable and overriding error. Amicus agreed that the board had correctly set out the governing law. However, counsel argued that the Board had incorrectly applied the test. Amicus argued that JA clearly acknowledged the manifestations of his condition, and provided his own interpretation and reasons for them. For example, with respect to his lack of hygiene and self-care, JA stated that he had never been a very neat person. With respect to grandiosity about his business, he acknowledged that he had overstated matters. With respect to his disengagement with the treatment team, he acknowledged that he had disengaged with them simply because he did not agree with their proposed treatment. In addition, he did engage with some treatment, CBT, which he would not have done if he had not acknowledged that he required some treatment. In amicus's submission, the Board committed an error because rather than focusing on JA's response, it was focusing on the fact that JA did not agree with the respondent’s interpretation. According to Starson v. Swayze, JA did not have to do so, as it is well established that psychiatry is not an exact science. In amicus's submission, JA had agreed with the objectively discernible manifestations of his condition.
31Further, JA's opposition to treatment with antipsychotics was based on legitimate concerns about their side effects. JA, being a person specifically and particularly concerned about fitness, was extremely concerned with the side effects about weight gain. Further, he expressed concern about potential effects on his future fertility. Amicus argued that the respondent failed to provide the requisite information for JA to make a decision about treatment. The Board failed to address why it did not feel it was important that JA was concerned about fertility and weight gain.
32Amicus also pointed to paragraph 81 of Starson, in which a patient's failure to demonstrate actual appreciation does not inexorably lead to a conclusion that he lacks capacity. If the attending physician failed to adequately inform the patient of the consequences, that does not mean the patient is not able to appreciate the consequences. Therefore, the Board was required to inquire into the reasons for the failure to appreciate the consequences. Those reasons must demonstrate that the disorder prevents JA from having the ability to appreciate the foreseeable consequences of the decision.
33Amicus submitted that JA recognized the possibility that he was affected by the condition, even if he has a different reason for his manifestations than that proffered by the respondent.
34The respondent submitted that the standard of review is palpable and overriding error, and that the board decision does not contain such an error.
35In the respondent’s submission, Starson is clear about the need for a connection between a patient’s recognition of symptoms and the fact that those symptoms are due to a mental condition, if not a specific diagnosis. An alternate explanation for a symptom is a rejection of there being a mental condition, as it means there is no possibility that the symptoms are due to a condition .Because JA denied he had any symptoms, he could not recognize the possibility that he was affected by them.
36The respondent notes that the Board had before it reports from treating physicians indicating that JA minimized reports of his behavior and told them his family was lying. The documentation clearly reflected a denial of symptoms. JA indicated he was not neglecting himself and wholeheartedly disagreed with that suggestion in his evidence before the Board. Further, JA could not recognize the possibility that his disengagement from treatment was due to a condition or illness.
37The respondent agrees with amicus’s submission that it is important that JA had sufficient information to be able to weigh the consequences of consenting to or refusing treatment. The respondent points to the record, where the respondent indicated he could not engage with JA in a discussion about alleviating the side effects of weight gain because JA said he would not take the medications. Because of JA’s refusal to engage, written materials were provided to him. Further, in the respondent’s submission, a concern about side effects is not enough on its own to show that the patient recognized the benefits and consequences of a decision about treatment. In his evidence before the Board, JA did not acknowledge benefits of treatment or consequences if he did not take it.
Analysis
38Beginning with standard of review, I do not accept amicus’s argument that, although the Board correctly stated the legal principles, it failed to apply them, thus amounting to an error in law: Housen at para. 27. In my view, the complaints raised about the Board’s decision are about the application of the legal test to the facts. They are properly characterized as complaints of “mixed fact and law” and attract the standard of review of palpable and overriding error.
39A palpable and overriding error is one that is obvious and plainly seen, and is determinative of the case: Hausen at para. 5, Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 SCR 729 at para. 33.
40I will review the errors raised, which I have referred to above and which amicus summarized as follows.
a. The Board ignored the Appellant's acknowledgement of the "broader manifestations" of his mental condition, and fixated on whether or not he accepted the doctor's label or "opinion of the cause of that condition".
b. The Board considered the Appellant's disagreement with, or refusal to accept, the labels or the doctor's opinion as being coterminous with failure to acknowledge the "broader manifestations of the illness".
c. The Board delved into a best interest analysis as exemplified in its questioning of the doctor and betrayed some form of bias towards treatment and a discounting of the appellant's legitimate concerns around side effects
d. As a consequence of (c) above, the Board failed to recognize the doctor's failure in his obligation to provide relevant information to the appellant, (specifically as it relates to the side effects he had concerns about) that would help adequately guide his ability to appreciate the consequences of his decision.
e. The Board Equated the existence of JA’s mental disorder to be coterminous with a lack of capacity.
41With respect to the first two complaints, I find the Board carefully considered the actual manifestations of JA’s condition. It did not focus on the cause of the manifestations, or any labels of those manifestations. Rather, the Board focused on the fact of the manifestations and JA’s refusal to acknowledge them.
42The Board noted JA’s deviation from his baseline function reported by family members and found JA displayed a lack of insight. For example, after being admitted to CAMH, JA stated: "I felt being mistreated and I am being punished. I have been doing great with them and taking care of myself, passing the drug tests and I don't understand why this is happening to me." JA disputed previously being diagnosed with schizophrenia, and previously suffering from symptoms of psychosis. He stated he was not a terribly neat person, but was always clean and showered, testifying “I'm a guy, I'm not the most neatest guy in the world and, you know, but it's not associated with any kind of like -- anything that Dr. Benassi is saying. I mean, nothing -- it's not that I'm neglecting myself, or anything like that, I wholeheartedly disagree, I mean, I shower every day…”
43I reject the submission that JA acknowledged the manifestations of his condition. I find there was clear evidence to support the Board’s conclusions that JA did not acknowledge the manifestations of his condition. This was the proper legal question for it to focus on. I find the Board appropriately focused on the symptoms and the condition of JA, and not on any labels. This situation is unlike the facts in Starson, where Professor Starson clearly stated “I certainly have exhibited the symptoms of these labels that you give . . . and certainly I have exhibited things that would be considered manic.” (para. 93.)
44In the case of JA, there was ample evidence before the Board that JA was “in almost total denial of his condition.” JA not only rejected the opinion or label of the respondent, which he was entitled to do, he denied having the reported manifestations. The Board properly focused on whether JA was able to appreciate the possibility that his conduct was the manifestation of his condition, rather than on whether JA accepted the diagnosis: S.H. v. Prakash, 2023 ONCA 459 at para. 11.
45I also reject the argument that the Board delved into the “best interests” test. There is simply no hint of this in the decision. Amicus raised a concern that the Board had asked questions of the respondent at the end of his testimony but did not do so with JA. The questions the Board asked of the respondent were about the respondent’s medical opinion and the expected trajectory of JA’s condition. The Board is entitled to ask questions to seek clarification. Counsel for both parties were present. JA testified after the respondent’s evidence was completed. There was no obligation on the Board to ask JA any questions. There was nothing procedurally unfair in the manner in which the hearing was conducted or questions were asked. I fully reject amicus’s submission that the rule in Browne v Dunn (1893), 1893 CanLII 65 (FOREP), 6R. 67 (H. L.) has any application in this situation and required the Board to question JA. The Board is not a party to the proceedings. It was not seeking to impeach anyone’s credibility. It was evaluating the evidence before it, and seeking clarification where necessary.
46Amicus argues that the respondent failed to provide relevant information to JA about the side effects of the medication: Starson, SS. v. Mottaghian, 2021 ONSC 137 at para. 23. A patient’s failure to appreciate the consequences of a treatment decision may reflect the physician’s failure to provide adequate information: Starson at para. 81.
47The evidence revealed that the respondent attempted to engage JA in a discussion about medications, but JA was unreceptive and not participatory. JA was aware of the possible side effects regarding weight gain and fertility. The respondent was unable to engage JA in a discussion about how these side effects could be managed, because JA did not want to discuss the possibility of medications. JA was provided with written information.
48There is no doubt that the concern about weight gain was of particular importance to JA. Based on the evidence before it, the Board was entitled to find that the appellant’s fixation on this concern, even if the concern itself was legitimate, made it impossible for the respondent to be able to discuss how those concerns might be mitigated. I note that JA was aware of the side effects; he was simply not aware of how they might be mitigated. I do not find the Board erred in its analysis of this issue. I do not find JA was not provided with material information that would have affected his ability to appreciate the consequences of his decision.
49Nor do I accept the submission that the panel conflated the fact that the respondent had diagnosed JA with schizophrenia with its decision that he lacked capacity. The Board carefully reviewed the facts before it and applied the proper legal test to those facts. It did not rely on the diagnosis as a basis for determining JA lacked capacity. It carefully considered the specific manifestations exhibited by JA – the very questions it was required to consider – in coming to its conclusion.
50There is no basis upon which to interfere with the Board’s decision.
51The appeal is dismissed. There shall be no costs.
L. Brownstone J.
Date: January 30, 2025
[*] As is usual in an appeal of this nature where the facts and subject matter are highly personal, the appellant’s name has been anonymized to protect his privacy.