CITATION: S.S. v. Valoo, 2026 ONSC 1216

COURT FILE NO.: CV-25-00750017-0000

DATE: 20260227

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the

Consent and Capacity Board,

pursuant to the Mental Health Act R.S.O. 1990, c. M.7 and the Health Care Consent Act,

S.O. 1996, c.2, Sch. A,

As amended

BETWEEN:

S.S.

Appellant

– and –

Dr. Kineta Valoo

Respondent

Mercedes Perez, Amicus curiae for the Appellant

Holly Pellatt, Sarah Rosales Zelaya, for the Respondent

HEARD: February 19, 2026

REASONS FOR JUDGMENT

MERRITT J.

OVERVIEW

1S.S.¹ appeals the August 19, 2025 decision of the Consent and Capacity Board confirming the Respondent Dr. Kineta Valoo’s finding that S.S. is incapable of making treatment decisions.

2The Respondent was S.S.’s psychiatrist at the Centre for Addiction and Mental Health.

3The CCB confirmed Dr. Valoo’s finding of treatment incapacity with respect to both antipsychotic medication and electroconvulsive therapy (“ECT”).

4The Notice of Appeal was filed in S.S.’s name only. Amicus curiae was appointed and argues that the Board committed reversible errors.

5For the reasons that follow the appeal is dismissed.

BACKGROUND FACTS

6S.S. was 59 years old at the time of the assessment and they are currently 60 years old. They were first diagnosed with a psychotic illness in the early 1990s and received psychiatric care and antipsychotic treatment between the early 1990s and 2017 including 10 hospital admissions.

7S.S.’s current diagnosis is treatment-refractory schizophrenia.

8On October 6, 2017, S.S. was found not criminally responsible on account of mental disorder in relation to a charge of Arson - Disregard for Human Life. The offence arose in the context of S.S.’s suicide attempt. They have been under the jurisdiction of the Ontario Review Board since that time.

9S.S. was initially granted a Conditional Discharge by the ORB and was followed in the community by the outpatient forensic team from Waypoint Centre for Mental Health Care. In May 2018, S.S. was exhibiting breakthrough symptoms of psychosis as they had stopped taking their prescribed oral antipsychotic medication.

10On December 10, 2018, the ORB issued a new Detention Order disposition and S.S. was admitted to Waypoint. The next day, they were found incapable to consent to antipsychotic treatment, and the Public Guardian and Trustee was deemed to be their substitute decision-maker.

11While at Waypoint, S.S. was generally compliant with receiving antipsychotic medications of Aripiprazole and Paliperidone administered though long-acting injections.

12In September 2019, S.S. challenged a finding of incapacity to consent to antipsychotic treatment. The CCB upheld the finding.

13While S.S. was at Waypoint, their symptoms improved but did not resolve entirely. S.S.’s symptoms improved sufficiently so that on July 13, 2021 they were able to be transferred from a maximum secure facility at Waypoint to a general (minimum) secure unit at CAMH.

14At the time of the CCB hearing, S.S. continued to be detained on a general (minimum) secure forensic unit at CAMH pursuant to a disposition order of the ORB.

15The following is a summary of the evidence before the CCB.

16S.S. was adherent with the same two injectable antipsychotic medications throughout their detention at both Waypoint and at CAMH - a period of almost 7 years between December 2018 and August 2025.

17These medications continued to attenuate S.S.’s symptoms, but overall therapeutic progress remained limited. S.S. was described as having “treatment-resistant schizophrenia”.

18During this time S.S. was described as having “made limited therapeutic progress”, as “prominently symptomatic” and as having exhibited “little change” in their mental state”. Antipsychotic treatment was thought to have resulted in “minor improvements in their ability to engage with members of their healthcare team and utilize off-unit passes”.

19S.S. continued to struggle with both positive and negative symptoms of schizophrenia including “an elaborate and pervasive system of delusional beliefs, “chronic paranoia”, “poor motivation to engage in meaningful activities, amotivation and asociality”.

20One longstanding and pervasive somatic delusion involved S.S.’s belief that they possessed both male and female reproductive organs and had self-impregnated with twins. S.S. also displayed chronic paranoia and fear, including beliefs that they were being sexually abused by hospital staff and that their food was being poisoned.

21Between S.S.’s transfer to CAMH in July 2021 and August 12, 2025 there was no formal or detailed assessment of their capacity to consent to antipsychotic medications.

22Dr. Valoo described a formal assessment as involving “a detailed discussion about proposed treatment, anticipated risks, anticipated benefits, and how that information applies to the individual”. Dr. Valoo said that that S.S.’s capacity was assessed on an ongoing basis.

23On July 8, 2025, S.S.’s treatment team at CAMH held a case conference, which included a bioethicist, to assess whether additional interventions were warranted in the context of S.S.’s treatment-refractory schizophrenia. The team reached a consensus that ECT should be added to the treatment plan.

24Dr. Lee is a psychiatrist from the ECT clinic at CAMH who was consulted in July, 2025 about ECT treatment for S.S. Dr, Lee met with S.S. and attempted to provide information about the potential risks, benefits, and consequences of ECT to S. S. but was unable to engage them in a discussion. Dr. Lee conducted a chart review and concluded that a trial of ECT was warranted in order to improve S.S.’s psychotic symptoms, and opined that S.S. was incapable of consenting to ECT treatment.

25On August 8, 2025, SS started refusing one of the antipsychotic medications aripiprazole due to a concern that they were pregnant and that this medication is unsafe during pregnancy. S.S. has held a long-standing but false belief that they are pregnant.

26S.S. has consistently refused to speak to psychiatrists at CAMH including Dr. Valoo, with one exception on August 12, 2025.

27On August 12, 2025, S.S. agreed to meet with Dr. Valoo for the purpose of conducting a formal assessment of their capacity with respect to both antipsychotic medications and ECT. During the assessment, S.S. independently identified that symptoms of psychosis may include hallucinations, delusions, and paranoia, but adamantly denied any possibility that they have previously been or are currently affected by any of those symptoms.

28S.S. left the meeting before the conversation was finished. During the meeting S.S. interrupted Dr. Valoo every time that the doctor attempted to provide information about documented observations of psychotic symptoms including paranoia and somatic delusional beliefs. S.S. said that antipsychotic treatment had not helped them, does not provide any benefit and its absence would not negatively affect them.

29When Dr. Valoo raised the topic of ECT treatment, S.S. declined to speak further and said that they were happy with their “brain algorithm”, did not want to be “reset” and referenced the film One Flew Over the Cuckoo’s Nest. Dr. Valoo was unable to provide education about advancements in modern ECT because S.S. refused to continue the conversation.

30At the end of the meeting on August 12, 2025 Dr. Valoo found that S.S. did not have the capacity to consent to treatment with antipsychotic medication or ECT. She stated that, as a direct result of their schizophrenia, S. S. was unable to appreciate that they were experiencing active and chronic symptoms of psychosis and therefore unable to appreciate the foreseeable consequences of a treatment decision for either of the proposed treatments. Dr. Valoo contacted the PGT and obtained verbal and written consent for the temporary use of restraint as needed for the injectable antipsychotic medications and for 15 sessions of ECT.

31S.S. challenged both findings of incapacity and the CCB held a hearing on August 19, 2025.

CCB Hearing and Decision

32On August 19, 2025, a Board hearing was held before Senior Lawyer and Presiding Member, Jane Anweiler. S.S. was represented by counsel, D’Arcy Hiltz. Dr. Valoo was represented by hospital counsel, Sarah Rosales Zelaya. The evidence before the CCB consisted of the documentary and oral evidence produced by Dr. Valoo.

33At the hearing, Dr. Valoo proposed to continue treating S.S. with the same two antipsychotics they had been receiving for many years, in addition to an acute course of ECT.

34The first branch of the capacity test, which assesses whether an individual is able to understand the information relevant to making a decision about a proposed treatment, was not in contention during the hearing. Rather, Dr. Valoo relied on the second branch of the capacity test— assessing whether an individual is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision—to support her findings that S.S. was unable to consent to treatment by antipsychotic medication or ECT.

35Dr. Valoo gave evidence that S.S. was able to understand the symptoms of schizophrenia, as well as the role of antipsychotic medication in treating the illness.

36Dr. Valoo gave evidence that S.S’s condition directly impacted their ability to appreciate the consequences of a treatment decision regarding the antipsychotic medication.

37She testified that S.S’s refusal to receive their antipsychotic injection, starting on August 8th, 2025, was due to their somatic delusions about being pregnant and the fear that the treatment might harm their babies. S.S. denied that they were affected by schizophrenia or any of its manifestations. Dr. Valoo testified that when she asked S.S. why they had been accepting the antipsychotic medications thus far, S.S. said that they had been “forced by the PGT” and that they did not believe the medications were helping them at all. Dr. Valoo also testified that S.S, was unable to appreciate the possible consequences of refusing treatment with antipsychotic medication, such as severe deterioration or functional impairment.

38Dr. Valoo gave evidence that S.S. consistently refused to engage in any discussion about ECT, and that they were provided with leaflets of information on ECT on multiple occasions in order to mitigate their refusal to discuss the treatment option, but that they consistently refused these as well. Dr. Valoo said that, notwithstanding their adamant refusals to accept the information, there was no reason to believe that S.S. would not have been able to understand the information.

39With regard to the second branch of the capacity test, Dr. Valoo testified that S.S.’s somatic delusions directly affected their ability to appreciate the consequences of a decision regarding treatment with ECT. She provided evidence that S.S. had inquired about the safety risks of administering ECT to a pregnant person with a nurse in July, which raised concerns for Dr. Valoo about the same delusional beliefs that led to S.S. refusing their antipsychotic treatment.

40Dr. Valoo testified that because of S.S.’s ongoing, persistent psychotic symptoms and the treatment-refractory nature of their illness, there was a risk that they would experience further deterioration in their mental health without additional intervention. It was Dr. Valoo’s clinical opinion that S.S.’s inability to recognize that they were affected by symptoms of schizophrenia rendered them unable to appreciate the potential consequences of a treatment decision with ECT.

41The CCB confirmed Dr. Valoo's finding of treatment incapacity with respect to both antipsychotic medication and ECT.

42The CCB concluded that S.S. met the first branch of the capacity test: they were able to understand the relevant information respecting the diagnosis and recommended treatments (both with respect to antipsychotic medication and ECT).

43The CCB determined that S.S. failed the second branch of the capacity test: they were unable to appreciate the reasonably foreseeable consequences of treatment decisions respecting both antipsychotics and ECT.

44The CCB accepted Dr. Valoo’s evidence that S.S.’s delusions directly impacted their ability to apply information to their own circumstances and to appreciate the consequences of a treatment decision.

45The CCB accepted that S.S.’s antipsychotic medication had been effective at attenuating their symptoms, and that S.S. began refusing this treatment as a direct result of their somatic delusion that they were pregnant and that the treatment would harm their babies.

46The CCB confirmed Dr. Valoo’s finding that S.S. was unable to appreciate the consequences of a treatment decision regarding ECT. The panel held that S.S.’s refusal to engage in capacity assessments did not prevent Dr. Valoo from making a finding of incapacity. They were satisfied that S.S.’s complete denial of their illness and its symptoms, as well as their somatic and paranoid delusions about the impact of treatment on their unborn twins and to their brain algorithms, were sufficient to establish that S.S. did not have the capacity to consent to ECT.

47The CCB found that S.S. “did not recognize even the possibility that they suffered from a psychotic illness, and had been clear that they had never and were not currently experiencing a psychotic illness” and as a result were unable to apply the relevant information to their specific circumstances.

48The CCB also found that S.S. was incapable with respect to both recommended treatments because their somatic delusions relating to the impact of antipsychotic and ECT treatments on both their pregnancy and, with respect to ECT, on their "brain algorithms", resulted in a lack of insight into the benefits of the proposed treatments.

ANALYSIS

49CCB decisions are subject to a statutory right of appeal to the Superior Court of Justice on questions of law or fact or both. The powers on appeal under s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. (the “Health Care and Consent Act”) are very broad. On appeal, the court may:

1. Exercise all the power of the Consent and Capacity Board;

2. Substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker, or the Board; or

3. Refer the matter back to the Board, with directions, for rehearing in whole or in part.

50The standard of review on questions of mixed fact and law is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, at para. 35; B.L. v. Pytyck, 2021 ONCA 67 at para 22; Starson, at paras. 5, 84, 88 and 110; Vavilov, at paras. 36, 37.

51An error is “palpable” when it can be plainly seen: Housen at paras. 5-6. An error is overriding when it goes to the very core of the outcome of the case: Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 SCR 352at paras. 38-39.

52The Board’s determination of capacity is a question of mixed fact and law. The Board must apply the evidence before it to the statutory test for capacity: Starson v. Swayze, 2003 SCC 32, at para 84.

53In civil and administrative matters, the standard of proof is the civil standard of a balance of probabilities. The evidence must be strong and unequivocal where either the issues, or the consequences for the individual, are very serious. Determinations respecting treatment capacity implicate fundamental liberty and autonomy rights. The onus is on the physician to prove incapacity on the basis of clear, cogent and compelling evidence: Gligorevic v. McMaster, 2012 ONCA 115, at para. 60; Starson, at para. 77.

54The tendency to conflate mental illness with incapacity has deep historical roots. Capable individuals have a right to make unwise and foolish treatment decisions and to voluntarily assume the risks associated with those decisions. A patient’s “best interests” are irrelevant when determining capacity: Starson at paras. 75 to 77 and Gligorevic at para. 8.

55A person is presumed to be competent: Health Care Consent Act, s.4(2).

56Section 4(1) of the Health Care Consent Act provides as follows:

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.

57The test under s. 4(1) relates to the capacity or ability to understand not actual understanding and appreciation. To have capacity under s. 4(1) a person must be able to:

1. understand the information that is relevant to making a decision about the treatment; and

2. appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Starson v. Swayze 2003 SCC 32, [2003] 1 SCR 722 at para 13.

58The CCB concluded that S.S. met the first branch of the capacity test: they were able to understand the relevant information respecting the diagnosis and recommended treatments (both with respect to antipsychotic medication and ECT).

59The CCB determined that S.S. failed the second branch of the capacity test; they were unable to appreciate the reasonably foreseeable consequences of treatment decisions respecting both antipsychotics and ECT. The CCB’s conclusion turned primarily on its finding that S.S. “did not recognize even the possibility that they suffered from a psychotic illness, and had been clear that they had never and were not currently experiencing a psychotic illness” and as a result were unable to apply the relevant information to their specific circumstances. In addition, the CCB concluded that S.S. was incapable with respect to both recommended treatments because their somatic delusions relating to the impact of antipsychotic and ECT treatments on both their pregnancy and, with respect to ECT, on their “brain algorithms”, resulted in a lack of insight into the benefits of the proposed treatments.

60The second branch of the test for capacity requires the patient to be able to apply the relevant information to their circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof: Starson, at para. 78.

61Where a person is unable to recognize that they are affected by the manifestations of a mental condition, it is unnecessary to embark on any further analysis regarding the second branch of the capacity test: Landry v Strike, 2020 ONSC 6832, at paras 8-9; Starson, supra, at para 79.

62The patient need not agree with a diagnosis, but they must recognize the possibility of being affected by a mental condition – ‘condition’ refers to the broader manifestations of the illness. If a patient’s condition renders them incapable of recognizing the manifestations, the patient will be unable to apply the relevant information to his circumstances and unable to appreciate the consequences of their decision: Starson, at para. 79.

63A finding of incapacity is justified if the patient’s mental disorder prevents them from having the ability to appreciate the foreseeable consequences of the decision: Starson, at para. 81.

64The Health Care Consent Act does not require actual appreciation of the consequences of a decision. Rather it requires a patient to have the ability to weigh the foreseeable risks and benefits and the ability to appreciate their decision: Starson, at para. 80.

65A person must be able to appreciate and weigh all of the parameters. A partial appreciation is not sufficient to satisfy the s. 4(1) test: Pararajasinham v Druss 2016 ONSC 1135, at para 19. SS v Mottaghian, the court found that the while the Appellant understood the risks of taking medication, she could not appreciate the potential benefits of taking it because she did not recognize the possibility that she had the symptoms the medication was intended to address, thus rendering her incapable: 2021 ONSC 137 at para. 40.

66If an individual refuses to permit a doctor to explain the consequences of a treatment decision to a patient, this cannot, in itself form the basis to challenge a finding of incapacity that is otherwise supported by the evidence: Snell v. Head, 2018 ONSC 1516, at para. 30; Landry, at para. 7; P.R. v. Legault, 2015 ONSC 7716, at paras. 18 and 19.

67I agree with the submissions of Amicus curiae that S.S. benefitted from the statutory presumption of capacity. The onus to prove that they were incapable rested entirely with Dr. Valoo and S.S. had a “right to remain silent”.

68Amicus curiae submits that S.S. did not receive information from Dr. Valoo respecting documented observations of their specific psychotic symptoms, raising an issue as to whether they failed to appreciate the manifestations of their mental illness, or whether they were unable to appreciate.

69Amicus curiae submits that S.S. was not incorrect that there had been no significant benefits from the many years of receiving the antipsychotic medication and therefore S.S. decision not to have further treatment was not without objective merit.

70Amicus curiae submits that Dr. Valoo did not discharge her onus to prove that S.S. lacked the ability to appreciate rather than having simply failed to appreciate.

71Dr. Valoo was unable to conduct a formal capacity assessment or to provide education about the advancements in ECT because S.S. refused to engage. Amicus curiae submits that Dr. Valoo only speculated that S.S.’s reference to being happy with their “brain algorithm” and not wanting to be “reset” reflected somatic delusions.

72Amicus curiae submits that is was not cogently clear on the evidence whether S.S. simply failed to appreciate the reasonably foreseeable consequences of an ECT treatment decision, or whether they were unable to appreciate.

73For the reasons that follow I do not find that the CCB made a palpable and overriding error in finding that S.S. lacked capacity with respect to both the antipsychotic medication and ECT treatments.

74The CCB correctly identified the correct legal test for capacity in s. 4(1), the presumption of capability in s. 4(2) the onus of proof on Dr. Valoo and the standard of proof (i.e. balance of probabilities and cogent and compelling evidence).

75As set out above, the CCB found that the first branch of the test was met: S.S. was able to understand information relevant to making a decision.

76With respect to the second branch of the test the CCB found that SS did not have capacity to appreciate the consequences of a treatment decision with antipsychotic medication. In coming to this conclusion the CCB found that SS adamantly denied even the possibility that they had suffered from a mental disorder and as a result was unable to apply the information provided to them to their own circumstances.

77The evidence supported the CCB’s finding that S.S. did not acknowledge the possibility that they had a mental condition and were unable to recognize that they were affected by the objective manifestations of it.

78As set out above, where a person is unable to recognize that they are affected by the manifestations of a mental condition, it is unnecessary to embark on any further analysis regarding the second branch of the capacity test.

79Amicus curiae submits that Dr. Valoo did not provide evidence that she explained to S.S. that their delusions were not real and therefore we do not know if S.S. was unable to recognize that they are affected by manifestations of their mental condition because they lack the capacity to do so or simply because they did not have the information necessary to do so.

80Amicus curiae did not refer me to any case in which the CCB or court enquired into whether the reason that the patient was unable to recognize that they are affected by manifestations of their mental condition was a result of a lack of capacity to do so or a result of not having the necessary information to do so.

81The situation with treatment decisions is not analogous. If a person has capacity to understand treatment decisions but simply lacks the information necessary to do so, an inference can be drawn that, if they had the necessary information, they would be able to weigh the foreseeable risks and benefits and appreciate their decisions regarding treatment.

82It does not follow that if a person has capacity to understand that they are affected by manifestations of their mental condition (such as delusions) and has necessary information to do so (such as their delusions that they are not pregnant are not real because they were born male and are not physically capable of impregnating themselves), that they will therefore appreciate they are affected by manifestations of their mental condition. It may well be that they continue to believe that their delusions are real and that they are not suffering from manifestations of their mental condition. Having the information does not necessarily assist them in this regard.

83In the absence of any case law supporting the proposition that the CCB ought to have enquired into the cause of S.S.’s failure to appreciate that they are affected by the manifestations of their mental condition, I do not find that the CCB erred in not doing so.

84I do not find that the CCB erred in failing to enquire whether S.S. did not appreciate that they are affected by delusions because they lacked necessary factual information as opposed to lacking capacity to do so.

85I do not find that the CCB erred in finding that S.S. was unable to recognize that they are affected by manifestations of their mental condition.

86In this case, once the CCB accepted Dr. Valoo’s evidence that S.S. was not able to recognize that they are affected by any symptoms of schizophrenia, the CCB applied that finding of fact to the law and did not make any palpable and overriding error in doing so.

87The CCB found that S.S.’s somatic delusions directly impacted their ability to appreciate the consequences of a treatment decision. The CCB held that S.S.’s belief that they were pregnant hindered their ability to appreciate the consequences of taking anti-psychotic medication. The CCB correctly focused on S.S.’s ability to weigh the foreseeable risks and benefits and the ability to appreciate their decision and did not base its decision on whether S.S. actually appreciated the consequences of a decision. The CCB found that “SS’s ability to appreciate the consequences of treatment by anti-psychotic medication was further hindered by SS’s somatic delusions regarding the potential impact of anti-psychotic medication on their unborn twins.”

88The record before the CCB amply supports the factual findings that S.S. suffered from the delusional belief that both the medication and the ECT treatment would harm their pregnancy.

89The CCB also found that S.S. condition rendered them unable to apply the relevant information about ECT to their own circumstances. The CCB said that the uncontradicted evidence was that SS did not accept even the possibility that they suffered from a mental illness. This lack of insight was further exacerbated by SS’s somatic delusions relating to the impact of ECT on both their pregnancy and possibly on their “brain algorithms”. The CCB made no palpable and overriding error in holding that S.S.’s inability to recognize that they were affected by the manifestations of a mental illness and was therefore unable to apply the relevant information about ECT to their own circumstances and weigh the foreseeable consequences of treatment.

90Amicus curiae submits that S.S.’s view that the medication did not help was objectively true and demonstrates that S.S. did appreciate the consequences of treatment and therefore had an ability to apply the necessary information to their particular circumstances and an ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. As set out above a partial appreciation is not sufficient to satisfy the s. 4(1) test.

91The CCB was not persuaded by the argument that S.S. believed that they had not benefited from medication. The CCB made no palpable and overriding error in finding that the evidence demonstrated the medications had in fact attenuated S.S.’s symptoms to the point where they could be transferred from a maximum security setting at Waypoint to a general psychiatric ward at CAMH.

92The CCB also rejected the argument that S.S.’s capacity to consent to antipsychotic medication had not been assessed for the many years at CAMH prior to them refusing the antipsychotic treatment on August 8, 2025. The CCB accepted Dr. Valoo’s evidence that there had been informal assessments by the treatment team that continued to reflect S.S.’s incapacity to consent to antipsychotic medication since the time of their transfer to CAMH in July of 2021. The CCB made no palpable and overriding error in applying these facts to the law as set out in Snell, that a refusal to be assessed does not preclude findings of incapacity.

93The evidence in the record supports these factual findings and CCB made no palpable and overriding errors in this regard.

94The appeal is dismissed without costs.

Merritt J.

Released: February 27, 2026

CITATION: S.S. v. Valoo, 2026 ONSC 1216

Footnotes

1. 1As 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 their privacy. Disclosure of the Appellant’s name and personal information would be an affront to their dignity.