



COURT OF APPEAL FOR ONTARIO

CITATION: Conway v. Darby, 2013 ONCA 538

DATE: 20130904

DOCKET: C54751

Weiler, Epstein and Lauwers JJ.A.

IN THE MATTER OF an appeal from a decision of the
    Consent and Capacity Board, pursuant to the
Health Care Consent Act, 1996
,
    S.O. 1996, c. 2, Schedule A, as amended

AND IN THE MATTER OF Paul Conway, a patient at St.
    Josephs Health Care Hamilton

BETWEEN

Paul Conway

Appellant

and

Dr. Padraig L. Darby

Respondent

Paul Conway, in person

Joseph Di Luca and Erin Dann,
amicus curiae

Janice E. Blackburn, for the respondent

Heard: August 27, 2013

On appeal from the decision of Justice Kevin Whitaker of
    the Superior Court of Justice, dated November 14, 2011.

ENDORSEMENT

[1]

In 1984,
the
    appellant, Paul Conway, was found not guilty by reason of insanity on a charge
    of sexual assault.  Since then, Mr. Conway has been detained in various
    psychiatric facilities.  He has never been treated with anti-psychotic
    medication.

[2]

In 2005 Mr.
    Conway was transferred to the Centre for Addiction and Mental Health in Toronto
    (CAMH) where the respondent, Dr. Padraig Darby, became his treating
    physician.

[3]

In June
    of 2007, Dr. Darby found Mr. Conway incapable of consenting to being treated
    with anti-psychotic medication pursuant to the provisions of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Schedule A, as amended
.  Mr. Conway applied to the Consent
    and Capacity Board to review that decision under s. 32 of the Act.  In July
    2007, the Board, comprised solely of Mr. Theodore Nemetz, confirmed Dr. Darbys
    decision.  Mr. Conway appealed and ultimately the matter was sent back to the same
    Board for further cross-examination of Dr. Darby.

[4]

The
    resumed hearing took place before Mr. Nemetz in the fall of 2009.  The Board,
    in its decision released November 24, 2009, again affirmed Dr. Darbys finding
    that Mr. Conway was incapable with respect to treatment.  Mr. Conways further
    appeal from the Board's decision was dismissed by Whitaker J.  Mr. Conway
    appeals that decision.

[5]

Before
    this court Mr. Conway, assisted by Ms. Dann, made submissions on his own
    behalf.   Mr. Conway argues that he has been denied the right to counsel of his
    choice and that the Board erred in finding that he had been appropriately diagnosed
    with a psychosis. The relief Mr. Conway seeks is an order that he has capacity
    to consent to treatment or an order that the matter be re-heard before a
    differently constituted Board.

[6]

At the outset of his
    submissions, Mr. Di Luca suggested that Mr. Conways circumstances have changed
    such that
no live controversy
    exists that affects the rights of the parties. The matter is therefore moot.

[7]

Mr.
    Conway has been transferred out of CAMH and is
currently a
    patient at St. Josephs Health Care in Hamilton
under the care of a different treatment team.  The
    medical professionals now assisting Mr. Conway have introduced a new treatment
    program for him that does not involve pharmacology. Mr. Conway is cooperating
    with this new program and the evidence is overwhelming that the program is
    having a positive effect on him. No one is proposing any treatment that
    involves Mr. Conways being medicated.  And, given the improvement in Mr.
    Conways condition, it is unlikely that any anti-psychotic medication will be
    recommended in the near future.  It follows that Mr. Conways capacity to
    consent to medication is no longer in issue.

[8]

There is
    no disagreement over the proposition that this case is now moot, nor do the
    parties argue that we should, in any event, exercise our discretion and hear
    the matter.

[9]

The only
    debate involves the effect of our disposing of the case as being moot on Mr.
    Conways on-going rights to resist the administration of medication.

[10]

We agree
    with Mr. Di Luca that Mr. Conway would suffer no prejudice if we were to quash
    the appeal as moot.  Although s. 32(5) of the Act prevents Mr. Conway from
    applying for a review of a finding of incapacity for a period of six months
    after the final disposition of an application for review,  if we were to quash
    the appeal as moot, Whitaker J.s decision to uphold the Boards finding of
    incapacity would constitute the final disposition of an application for
    review of a finding of incapacity pursuant to s. 32(5) of the Act. see:
K.M.
    v. Shammi,
2012 ONSC 1102. Over six months have gone by since that decision
    so that, in the event of pharmacological treatment with antipsychotic
    medication again being prescribed, the door is open to Mr. Conway to apply for
    a review of any finding of incapacity to consent to any such treatment.

[11]

As well,
    we note that s. 32(5) of the Act also gives the Board jurisdiction to grant
    leave to Mr. Conway to make a new application even within the six months if
    there has been a material change in circumstances that would justify
    reconsideration of Mr. Conways capacity.  It was agreed by the parties that if
    there were a change in Mr. Conways current treatment circumstances noted above,
    he would clearly qualify for leave.

[12]

The
    issues Mr. Conway and
amicus
raise are important but given the change
    in Mr. Conways circumstances relating to his treatment plan, they have become
    academic.

[13]

Accordingly
    the appeal is quashed as moot.

K.M. Weiler J.A.

G. Epstein J.A.

R. Lauwers J.A.


