



COURT OF APPEAL FOR ONTARIO

CITATION: K.M. v. Banik, 2021 ONCA 481

DATE: 20210630

DOCKET: C68652

Doherty, Benotto and Brown JJ.A.

IN THE
    MATTER OF Appeal from a decision of the

Consent
    and Capacity Board,

Pursuant
    to the
Mental Health Act
,

R.S.O.
    1990, chapter M.7,

As
    amended,

IN THE
    MATTER OF 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

K.M.

Appellant (Appellant)

and

Dr. Tapan Banik

Respondent (Respondent)

Eyitayo F. Dada, for the appellant

Jennifer L. Hunter and Ashley Boyes,
    for the respondent

Heard: June 25, 2021 by video conference

On
    appeal from the order of Justice Andrew A. Sanfilippo of the Superior Court of
    Justice, dated August 11, 2020, with reasons reported at 2020 ONSC 4829,
    affirming a decision of the Consent and Capacity Board, dated April 14, 2020,
    with reasons dated April 21, 2020.

REASONS FOR DECISION

[1]

The appellant appeals the decision of the Superior Court which dismissed
    his appeal from the Consent and Capacity Board decision affirming his Community
    Treatment Order.

Facts

[2]

The appellant K.M. was diagnosed with schizophrenia. The respondent Dr. Tapan
    Banik is his treating psychiatrist. On January 31, 2020, the appellants mother
    called the police because his behaviour gave her concern for his well-being. The
    appellant had  six times before  been admitted to Brampton Civic Hospital as
    a psychiatric patient and discharged on a Community Treatment Order. Once his
    Community Treatment Order was revoked, the appellant had refused to see his
    doctor or take injections of the prescribed anti-psychotic medicine and had
    decompensated as a result. The police brought the appellant to Brampton Civic
    Hospital where he was admitted as an involuntary psychiatric patient.

[3]

The respondent examined the appellant on February 3 and 4, 2020 and
    determined that the appellant was unable to appreciate the reasonably
    foreseeable consequences of treatment or lack of treatment and was not capable
    of consenting to treatment of his mental disorder with anti-psychotic
    medications. On February 4, the respondent informed the appellant of his
    determination and prepared a Community Treatment Plan for the appellant based
    on his determination that the appellant was incapable of giving or refusing
    consent to the Plan. Under the Plan, the appellant would be given community
    support by the Peel Assertive Community Treatment Team (ACT team).

[4]

The Plan required the appellant to present himself to the ACT team one
    to three times every week for medication compliance and to receive monthly
    injections of anti-psychotic medication. The appellants mother agreed to act
    as his substitute decision maker and consented to the appellant resuming
    treatment with antipsychotic medication. The respondent issued the Community Treatment
    Order on March 5, 2020. The appellant was discharged on March 20, 2020. The
    appellant applied to the Consent and Capacity Board to review the respondents
    finding of incapacity and the issuance of the Community Treatment Order.

Decision of the Consent and
    Capacity Board

[5]

The Consent and Capacity Board recognized that the onus is on the
    physician who issued the Community Treatment Order to establish on a balance of
    probabilities that the appellant lacked the capacity to consent to treatment.
    The Board followed the test in s. 4(1) of the
Health Care
    Consent Act, 1996
, S.O. 1996, c. 2, Sched. A,

which
    provides:

Capacity

4
(1) A person is capable with respect to a treatment, admission to or
    confining in 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, confining or personal assistance service, as the case
    may be, and able to appreciate the reasonably foreseeable consequences of a
    decision or lack of decision.

[6]

The Board was satisfied that the appellant was unable to appreciate the
    reasonably foreseeable consequences of a decision or lack of decision about his
    treatment. The Board relied on the evidence with respect to his readmissions to
    hospital due to non-compliance, his refusal of injections, his aggressive
    conduct when not being medicated, his inability to appreciate the severity of
    his mental condition and his inability to recognize incontrovertible facts.

[7]

The Board affirmed the Community Treatment Order.

Decision of the Superior Court

[8]

On appeal to the Superior Court, the appellant argued that:

(1) the Board had erred in finding that he was unable to
    appreciate the reasonably foreseeable consequences of a decision or lack of
    decision about the recommended treatments; and

(2) the Board erred in confirming the validity of the Community
    Treatment Plan.

[9]

The court rejected the appellants argument that, in applying the test
    for finding the appellant capable to consent, the Board incorrectly required
    the appellant to accept, acknowledge or appreciate that he suffered from a
    mental illness. The court found that the Board correctly identified and
    interpreted the two-part test for capacity to consent to treatment under s.
    4(1) of the
Health Care Consent Act
as
    explained in
Starson v. Swayze
, 2003 SCC 32,
    [2003] 1 S.C.R. 722.

[10]

On
    the first part of the test, the Board had found the appellant was able to
    understand the information relevant to making a treatment decision. On the
    second part of the test, the Board had found the appellant unable to appreciate
    the reasonably foreseeable consequences of a decision or lack of a decision
    about the recommended treatments based on the two criteria laid down in
Starson
, at para. 79. The Board accepted the
    respondents evidence that the appellant had a mental condition and that the
    condition deteriorated when untreated. The Board also found the appellant
    believed he did not have a mental health condition at all. It was not merely
    that he disagreed with the respondents diagnosis of the condition, he disputed
    that he had any mental health issues. He was also unable to appreciate that his
    condition improved with treatment and deteriorated when he discontinued
    treatment.

[11]

The
    court was satisfied that the evidence of the respondent as well as the
    appellant supported the Boards findings. The court found that it was open to
    the Board to reject the appellants submission that the respondent did not
    provide him with the necessary information to make a treatment decision.

[12]

On
    the second issue, the appellant submitted that the Board erred in finding the
    Community Treatment Plan compliant with the statutory requirements in ss.
    33.1(4) of the
Mental Health Act
, R.S.O. 1990,
    c. M.7, which sets out the criteria for a Community Treatment order as follows:

33.1 (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 persons 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
.

[13]

The
    court examined each criterion and concluded each had been complied with. In
    addition, the court rejected the appellants submission that the Board erred in
    finding the appellant likely to suffer substantial mental deterioration if he
    did not receive treatment while living in the community. The court held that
    the fact that the appellant could cope in the community for some time before
    deteriorating did not mean his deterioration was not substantial. The court
    also held that the Board did not err in concluding that the appellant was able
    to comply with the Community Treatment Plan, including the requirement to meet
    with the ACT team up to three times a week, despite the COVID-19 pandemic. This
    argument was not raised before the Board, and the court found no evidence to
    support the appellants argument that he was unable to attend treatment during
    the pandemic.

[14]

The
    Superior Court of Justice dismissed the appeal, finding no palpable and
    overriding error in the Boards decision.

Issues on this appeal

[15]

The
    appellant raises the same issues on appeal to this court and relies on the same
    submissions made to the Superior Court. In oral submissions, the appellant
    focused on the second part of the
Starson
test
    and the evidence that the appellant was able to appreciate the benefits of
    treatment.

Analysis

[16]

The
    second part of the
Starson
test is that the
    patient must be able to recognize the
possibility

that he is affected by the condition: at para 79
    (emphasis added). The appellant submits that his testimony discloses that he
    admitted the manifestations of his situation and consequently this provision is
    satisfied.

[17]

We
    do not accept this submission. The evidence before the Board was the appellant
    denied he had a mental health condition at all and explained his conduct in
    barricading himself in his room because he didnt really want to talk to [any]
    one, didnt really want to eat and just wanted to lay in [his] stuff. He
    explained his prior admissions as related to domestic issues. The Board
    considered the whole of the appellants evidence. It was open to the Board to
    accept the respondents evidence that the appellant had been floridly
    psychotic with symptoms including delusions or persecutions, withdrawal and
    isolation, lack of self-care, auditory hallucinations, paranoid delusions and
    disorganization of thought. There was evidence for the Board to conclude that
    he does not recognize the possibility that he is affected by his illness.

[18]

The
    appellant also submits that he was able to appreciate the benefits of treatment
    as demonstrated by his history of taking antipsychotic medication and following
    previous Community Treatment Plans. However, this ignores that evidence that
    the appellant discontinued treatment, decompensated as a result and was
    re-admitted to hospital. Upon resuming treatment, he improved and was able to
    be discharged. This has been the pattern since 2012. There was evidence before
    the Board to conclude that he did not appreciate the benefits of his treatment.

[19]

Nor
    did the Board misapply the test by requiring the appellant to agree with the
    respondents diagnosis or characterize his condition in negative terms. The
    Board recognized that he did not have to agree with the diagnosis.

[20]

Contrary
    to the appellants argument, the evidence showed the respondent explained the
    benefits and potential side effects of antipsychotic medication to the appellant
    and it was open to the Board to reject the appellants evidence in this regard.

[21]

Finally,
    the court did not refuse to consider the COVID-19 issue but found no evidence
    that the pandemic had impaired the appellants ability to attend treatment or
    the health professionals ability to treat the appellant.

[22]

We
    see no reason to interfere with the decision of the Superior Court which upheld
    the decision of the Consent and Capacity Board.

Conclusion

[23]

Despite the able submissions of counsel for the appellant, the
    appeal is dismissed. No costs were requested, and none are ordered.

Doherty
    J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.


