Shabow v. Abouhassan, 2026 ONSC 3557

Shabow v. Abouhassan, 2026 ONSC 3557

COURT FILE NO.: CV-26-26057

DATE: 20260617

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wisam Shabow

Appellant

– and –

Russlan Abouhassan

Respondent

E. Oghenejakpor, for the Appellant

Russlan Abouhassan – Self-Represented

HEARD: June 2, 2026

DECISION ON APPEAL

HEBNER J.:

1The appellant, Mr. Shabow, is a 48-year-old man who lives with his mother and brother in Windsor. He was diagnosed with schizoaffective disorder around 2018. He has been subject to several community treatment orders (“CTO”) with the most recent issued on July 10, 2025, and renewed on December 22, 2025. The respondent, Dr. Abouhassan, is the appellant’s treating physician. He developed the community treatment plan (“CTP”) that forms the basis of the CTO at issue.

2Dr. Abouhassan, in reviewing the CTO, concluded that the appellant was incapable of consenting to treatment for his mental disorder and that all statutory requirements for renewal had been met. The appellant challenged those findings and a hearing before a panel of the Consent and Capacity Board (“the Board”) took place on January 12, 2026. The Board confirmed Dr. Abouhassan’s finding and the renewal of the CTO.

3The appellant appealed the decision of the Board and requests that this court rescind the finding of incapacity. This is my decision on the appeal.

Background

4The appellant was first hospitalized in 2006, when he was diagnosed with a psychotic illness. In 2018, he was diagnosed with schizophrenia and placed on a CTO. That order remained in place until 2023, when it lapsed and the appellant stopped taking his medication. His condition subsequently deteriorated, leading to a return of psychotic symptoms and his re-admission in June 2025 to Windsor Regional Hospital. He was later transferred to the Toldo Neurobehavioural Institute, where he came under the care of the respondent.

5After an assessment in June of 2025, the respondent issued a CTO on July 10, 2025. When the order was approaching expiry in December of 2025, the respondent conducted the further assessment that is the subject of this appeal, and the hearing took place on January 12, 2026. The appellant was represented by his current counsel at the hearing, and a transcript was filed.

6The respondent gave evidence at the hearing. He said that he did not speak to the substitute decision maker (“SDM”) himself to ensure their consent prior to renewing the CTO, but that he had met with the family previously and they were “well aware and on board.” He said:

We discussed that Wisam has an illness that requires treatment. Wisam lacks insight into his illness. He has stated that he would not take the mediation if he did not have to under the guise of a CTO. And we felt that if he did not take his medication there would be deterioration, including potential rehospitalization and worsening of this illness. … The family was updated about the fact that no changes to his treatment plan were made at the last appointment… And the family was advised that Wisam would have an opportunity to contest this.

7Dr. Abouhassan did not file material at the appeal but attended in person and I gave him an opportunity to speak. He fairly said that he himself did not speak to the SDM, but that the case worker had spoken to them on December 17. He said the case worker relayed to him that the family is aware that the plan was to renew the CTO and the family was in favour. When he spoke of the “family”, Dr. Abouhassan confirmed that included the SDM.

8The case worker’s notes taken at a meeting with the SDM on December 17, 2025, read:

This writer met with SDM Eliya and Khalik (brother) at their family business. We discussed the CTO and the need for Wisam to stay on his medication. Both brothers shared how Wisam was able to keep it together for a while before he lost control and ended up back in hospital. Overall, they are both happy with how he is now and want to make sure he stays on a CTO and on his medication.

The Issue

9The issue on appeal is a narrow one and is framed in the appellant’s factum thusly:

What must follow where the evidence shows that a physician did not personally consult with the substitute decision maker in developing a Community Treatment Plan (“CTP”), signing that plan, or confirming a Community Treatment Order (“CTO”).

Jurisdiction

10The jurisdiction of this court to hear the appeal is found in s. 48 of the Mental Health Act, R.S.O. 1990, c. M.7 and s. 80 of the Health Care Consent Act 1996, S.O. 1996, c. 2, Sched. A (“HCCA”). Those provisions read:

48 (1) A party to a proceeding under this Act before the Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both.

80 (1) 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.

11The powers of this court on appeal are set out in s. 80(10) of the HCCA:

(10) On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

Standard of Review

12The standard of review for appeals from the Board is set out in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. The Board’s interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, the Board’s decision is subject to review for reasonableness: J.S. v. Dr. Suzanne Legault, 2017 ONSC 5809, at para. 46.

13The issue before me is a question of law, therefore I will apply the standard of review of correctness.

Legal Framework

14The Mental Health Act, in s. 33.1(4) sets out the requirements that must be satisfied before a physician issues or renews a CTO:

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

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(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,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(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,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

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

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(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. 2000, c. 9, s. 15.

15According to s. 33.1(11), a CTO expires six months after it is made unless it is renewed or terminated. A CTO may be renewed for six months (s. 33.1(12)), and a renewal can only take place if “the criteria set out in subsection (4) are met” (s. 33.1(13)).

Consent Required

16The consent required is set out in the HCCA in s. 10(1):

10 (1) A health practitioner who proposes treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

17The elements of the required consent are set out in s. 11:

11 (1) The following are the elements required for consent to treatment:

1. The consent must relate to the treatment.

2. The consent must be informed.

3. The consent must be given voluntarily.

4. The consent must not be obtained through misrepresentation or fraud.

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and

(b) the person received responses to his or her requests for additional information about those matters.

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.

2. The expected benefits of the treatment.

3. The material risks of the treatment.

4. The material side effects of the treatment.

5. Alternative courses of action.

6. The likely consequences of not having the treatment.

(4) Consent to treatment may be express or implied.

Discussion

18The appellant asserts that compliance with the consent requirement in s. 33.1(4) of the Mental Health Act was not satisfied. He argued that the physician is required to speak to the SDM to confirm their consent on each renewal of the CTO.

19In its decision, the Board expressly considered all of the statutory requirements for renewal of a CTO set out in s. 33.1(4). It specifically stated the following about subsection (f):

Had WS or his substitute decision-maker consented to the CTP in accordance with the rules for consent under the Health Care Consent Act, 1996?

Counsel argued that Dr. Abouhassan could not have been satisfied that the SDM had provided informed consent to treatment with the CTP as he had not spoken to him directly prior to renewing the CTO. The panel considered the provisions of s. 33.1(4) (c) namely that, “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…” Where the person who is subject to the proposed CTO is found to be mentally incapable of consenting to the treatment of a mental disorder, the physician must be satisfied that informed consent to the proposed treatment has been obtained from the SDM. There is no statutory requirement that the physician meet with or speak directly to the SDM. Although this would undoubtedly be good clinical practice, the failure to do so is not fatal to a finding that informed consent had been provided by the SDM. The relevant information on which Dr. Abouhassan was entitled to rely included, his lengthy clinical history with WS, the fact that he had assessed him on September 19 and December 15, 2025 and found that he continued to be mentally incapable of consenting to the treatment of a mental disorder, the fact that the treatment proposed in prior CTPs and the SDM were the same (antipsychotics) and that he had received and reviewed clinical notes from CMHA workers, dated December 17 and 19, 2025. The first of these clinical notes confirmed that there had been contact with the SDM.

This statutory criterion would have been more easily satisfied had Dr. Abouhassan called or met with the SDM on December 15, 2025. That being said, the panel found that when considering the entirety of the evidence it was sufficient to support a finding that Dr. Abouhassan had been satisfied that the SDM was consenting to the treatment proposed in the CTP dated December 15, 2025, prior to renewing the CTO on December 22, 2025.

20The Board found the consent requirement had been satisfied by the following facts:

1. The respondent’s lengthy history with the appellant.

2. The fact that the respondent had assessed the appellant on September 19 and December 15, 2025, and found that he continued to be mentally incapable of consenting to treatment.

3. The fact that the treatment proposed (antipsychotics) in prior CTPs and the SDM were the same.

4. The fact that the respondent had received and reviewed clinical notes from CMHA workers dated December 17 and 19.

21The Board did not address the specific elements of consent as set out in s. 11(3) of the HCCA.

22Consent to treatment is crucial. It is a fundamental right in a free and democratic society such as Canada. The Mental Health Act sets out the requirement that consent be obtained both at the time of the initial CTO and at every renewal thereafter. The HCCA sets out the specific elements of information that must be provided to the SDM for consent to be satisfied. It seems to me that, before concluding consent to treatment had been given by a SDM, those elements must be addressed to ensure that the consent is informed in accordance with the legislation.

23There is no evidence that the elements set out in the HCCA were discussed with the SDM before consent was obtained to renew the CTO. The respondent did not speak to the SDM – a case worker did. Best practice would be for the treating physician to speak directly to the SDM to provide the information and obtain consent. I am cognizant of the fact that physicians in the mental health field are incredibly busy and for that reason I cannot fault the respondent for having the case worker obtain consent. However, if that obligation is delegated to the case worker, their notes should be very clear that the SDM received the information set out in the legislation such that consent was given and that it was fully informed.

24Here, the notes of the case worker did not address the following:

• Whether the CTP was discussed with the SDM.

• Whether the SDM was given the information required under s. 11(3) of the HCCA.

25Given these omissions, the Board could not have been satisfied that the SDM had provided informed consent.

26It is my view that the Board erred in law in failing to apply the test for consent set out in s. 11 of the HCCA.

Remedy

27The appellant requests an order that the CTO be revoked. I am not prepared to grant that remedy given the evidence of the respondent before the Board that failure to follow the CTO could result in a degradation of the appellant’s condition such that he would have to be hospitalized again. The respondent said, in the appeal before me, that without treatment, the appellant will eventually become a threat to himself or others.

28Given that, I find the appropriate remedy is to refer the matter back to the Board with directions for a re-hearing. However, the next scheduled review is to take place within the next month or two. Accordingly, it is unlikely that a re-hearing can be held before the next review, and I find a re-hearing to be unnecessary. In any event, the Board is directed to, at the upcoming review, address the issue of consent by taking into account the requirements set out in s. 11 of the HCCA.