



COURT OF APPEAL FOR ONTARIO

CITATION: M.M. v. de Souza, 2016 ONCA 155

DATE:  20160225

DOCKET: C60350

Simmons, LaForme and Huscroft JJ.A.

IN THE MATTER OF an application under subsection 32(1) of the
Health
    Care Consent Act
,
1996
, S.O. 1996, c. 2, Schedule A, as amended.

BETWEEN

M.M.

Appellant

and

Dr. Darina de Souza

Respondent

M.M., acting in person

Mercedes Perez, appearing as
amicus curiae

Paul J. Davis, for the respondent

Heard: December 7, 2015

On appeal from the order of Justice David G. Stinson of
    the Superior Court of Justice, dated April 10, 2015, with reasons reported at
    2015 ONSC 2362, dismissing an appeal from a decision of the Consent and
    Capacity Board, dated October 21, 2014, with reasons reported at 2014
    CarswellOnt 17250.

Huscroft J.A.:

[1]

The Consent and Capacity Board confirmed Dr. Darina de Souzas finding that
    the appellant was incapable of consenting to treatment for a mental disorder and
    confirmed her involuntary status. The appellant appealed the Boards finding of
    incapacity, but not her involuntary status. The Boards decision was upheld by
    the appeal judge and the appellant now appeals to this court.

[2]

I have concluded that the Boards decision concerning the capacity of
    the appellant to make treatment decisions is reasonable, as the appeal judge
    concluded.

[3]

Accordingly, I would dismiss the appeal for the reasons that follow.

Background

[4]

The appellant has been diagnosed with paranoid schizophrenia. She has
    been hospitalized several times as a result of her mental disorder prior to the
    admission at issue and has taken antipsychotic medication previously. She
    presented at the emergency room of her local hospital five times in the two
    months preceding the admission that triggered this proceeding.

[5]

On October 8, 2014, staff at the appellants dental office called police
    in response to her loud, profane, and aggressive behaviour. The police took the
    appellant to the hospital. Her treating psychiatrist, Dr. de Souza, found that she
    was incapable of consenting to treatment and incapable of managing her property
    and completed a Certificate of Involuntary Admission.

[6]

The appellant asked the Board to review Dr. de Souzas findings of
    incapacity as well as her committal to involuntary status.

Decision of the Board

[7]

The Board found that the appellant suffers from a mental disorder,
    paranoid schizophrenia. The Board found, further, that although she understands
    information concerning her diagnosis and treatment, the appellant is unable to
    apply this information to her circumstances. She lacks insight into her
    condition as a result of her disorder. The appellant considers she does not
    have a mental disorder and does not acknowledge that her behaviours are
    symptoms of a disorder that have affected her various relationships.

[8]

The Board rejected the appellants testimony about how she weighs a
    decision to accept or reject treatment and found that she is unable to weigh
    the benefits against the risks. Accordingly, the Board concluded that the
    appellant was incapable of consenting to treatment of a mental disorder.

[9]

The Board concluded that it was not established that the appellant was
    unable to understand the information relevant to, or to appreciate the
    consequences of, a decision or lack of decision concerning the management of her
    property. Accordingly, the Board found that the appellant was capable of
    managing her property.

[10]

Finally, the Board found that the appellants condition improved when
    she took medication and that the criteria for involuntary status in s. 20(1.1)
    of the
Mental Health Act
,

R.S.O. 1990, c. M.7, were satisfied.
    As a result, the Board confirmed the appellants involuntary status.

Decision of the Appeal Judge

[11]

The appeal judge held that the Board properly considered the appellants
    ability to appreciate, weigh, and apply information to her circumstances and
    that the Board correctly understood and applied the statutory test for
    incapacity. He held, further, that the evidence supported the Boards
    conclusion that the appellant lacks insight into her disorder; does not
    recognize that her behaviours are a symptom of that disorder; and is unable to
    appreciate that treatment will improve her behaviours. The appeal judge upheld
    the Boards decision that the appellant was incapable of consenting to
    treatment.

Analysis

The standard of review

[12]

The
decision of the Board applying the law to
    the evidence is subject to review on a standard of reasonableness:
Giecewicz
    v. Hastings
, 2007 ONCA 890, 288 D.L.R. (4th) 587, at para. 13, leave to
    appeal refused [2008] S.C.C.A. No. 97.

[13]

The respondent invited the court to revisit the standard of
    review for decisions of the Board on questions of law involving its home
    statute and related statutes, given developments since
Starson v. Swayze
,
    2003 SCC 32, [2003] 1 S.C.R. 722, including
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190. It is not necessary to do so for purposes of
    this appeal.

Is the Boards decision concerning the appellants capacity
    to make treatment decisions about antipsychotic medication reasonable?

[14]

The
    test for capacity to make treatment-related decisions is set out in s. 4(1)
    of the
Health Care Consent Act, 1996
, S.O. 1996, c. 2, Sched. A
:

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.

[15]

In her testimony before the Board, Dr. de Souza conceded that the first
    part of the test was satisfied: the appellant is able to understand the
    information relevant to making decisions about her treatment. The question
    before the Board concerned the second part of the test  the appellants
    ability to appreciate the reasonably foreseeable consequences of a decision
    about being treated with antipsychotic and side effects medications.

[16]

Amicus
submits that there is a complete absence of factual
    foundation to establish the benefits to the appellant of taking antipsychotic
    medication. Further, the evidence before the Board demonstrated that the
    appellant had the ability to appreciate the reasonably foreseeable consequences
    of treatment with antipsychotic medication and that she refused to take antipsychotic
    medication because of its side effects.

[17]

I do not accept this submission.

[18]

First, it was not necessary for the Board to have testimony concerning
    the benefits or side effects of proposed treatment. The Board is tasked with
    making decisions on the question of capacity, not on the advisability of a
    proposed treatment regime from a medical perspective:
Giecewicz
, at para. 43
.

[19]

Second, although the appellant apprehended negative side effects from
    treatment with antipsychotic medication, it does not follow that she has the
    capacity to make the treatment decision concerning that medication. Dr. de
    Souza testified that the appellants insight into her disorder is impaired and
    that the appellant does not believe that she is suffering from a mental disorder.
    It is foreseeable that a decision to refuse antipsychotic treatment would
    result in intensification of delusions, thought disorder, and disorganized
    behaviour.

[20]

Dr. de Souzas evidence was corroborated by the appellants evidence in
    addition to
consultation reports from the appellants five
    visits to the ER. Although the authors of these reports did not testify, the
    Board is permitted to rely on hearsay evidence in determining whether or not
    Dr. de Souzas evidence was corroborated:
Starson
, at para. 115;
Anten v. Bhalerao
, 2013 ONCA 499, 366 D.L.R. (4th) 370,
at para. 32;
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, s. 15. The Board also had evidence from
    additional sources, including letters from the appellants father and sister.

[21]

In these circumstances, the question is not whether
    there was any evidence supporting the Boards decision but, instead, whether
    the Board reached a reasonable decision given that evidence.

[22]

The Board found that the appellant lacks insight into her condition
    as a result of her disorder and is unable to weigh the benefits against the
    risks of antipsychotic medication because she does not recognize the past
    benefits or the anticipated benefits of the treatment.
As Justice Major explained
    in
Starson
, at para. 79: [I]f the patients condition results in
    [her] being unable to recognize that [s]he is affected by its manifestations,
    [s]he will be unable to apply the relevant information to [her] circumstances,
    and unable to appreciate the consequences of [her] decision.
The
    appellants testimony before the Board demonstrated the problem. She both
    acknowledged and denied that she suffers from a mental disorder. She refused to
    accept the views of family and treatment providers and blamed others for her
    difficulties.

[23]

In short, the Boards conclusion that the appellant is not able to appreciate
    the consequences of her decision to accept or reject treatment is supported by
    the record and is reasonable. There is no basis for this court to interfere
    with it.

Is the Boards decision concerning the appellants
    capacity to make treatment decisions about side effects medications reasonable?

[24]

Amicus
submitted that the Boards decision does not
    support the conclusion that the appellant
is incapable of
    consenting to treatment with side effects medications
as well as antipsychotic medications, and is
    unreasonable on that account. This argument was not raised before the Board or
    before the appeal judge.

[25]

In general, this court will not
    entertain new issues on appeal save in exceptional circumstances:
Sawdon
    Estate v. Sawdon
, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 75.
Amicus
failed to demonstrate any such circumstances and, as a result, I would not entertain
    this argument.

Disposition

[26]

Accordingly, I would dismiss the appeal. I would make no order as to
    costs.

Released: February 25, 2016
    GH

Grant
    Huscroft J.A.

I
    agree Janet Simmons J.A.

I
    agree H.S. LaForme J.A.


