



COURT OF APPEAL FOR ONTARIO

CITATION: Coburn v. Wilkie, 2016 ONCA 876

DATE: 20161121

DOCKET: C61086

MacPherson, Blair and Watt 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.

AND IN THE MATTER OF Lillian Coburn, a patient at
    Centre for Addiction and Mental Health, Toronto, Ontario

BETWEEN

Lillian Coburn

Applicant

(Appellant)

and

Dr. Treena Wilkie

Respondent

(Respondent in Appeal)

Anita Szigeti and Joanna Weiss, for the appellant

Kendra Naidoo, for the respondent

Heard: November 15, 2016

On appeal from the order of Justice Edward Belobaba of
    the Superior Court of Justice, dated September 1, 2015.

BY THE COURT:

[1]

Ms. Coburn appeals from the order of Justice Belobaba dismissing her
    appeal from an order of the Consent and Capacity Board. The Board had affirmed
    the finding of Dr. Wilkie that Ms. Coburn was incapable of consenting to
    treatment involving the administration of anti-psychotic and mood stabilizing
    medication for a diagnosed psychiatric ailment.

[2]

On her behalf, Ms. Szigeti argues that the appeal judge erred:

(a) in finding that the Board had applied
    the correct test for capacity; and,

(b) in failing to find that the
    Boards decision was unreasonable, both generally and because there had been a
    breakdown in the doctor-patient relationship between Ms. Coburn and Dr. Wilkie
    and her resident psychiatrist Dr. Cyr.

[3]

We would not give effect to these submissions.

The
    Legal Test for Capacity

[4]

There are two elements of the test for determining whether a person is
    capable with respect to treatment under s. 4(1) of the
Health Care Consent
    Act, 1996
, S.O. 1996, c.2 (the
HCCA
). A person is capable if
    the person is able (i) to understand the information that is relevant to making
    a decision about the treatment; and, (ii) to appreciate the reasonably
    foreseeable consequences of a decision or lack of decision.

[5]

This proceeding and the appeal turn on the second element of the test. It
    is not contested that Ms. Coburn is able to understand the information with
    which she has been provided concerning the treatment proposed by her team of
    psychiatrists at CAMH, Dr. Wilkie and Dr. Cyr. The issue is whether she is able
    to appreciate the reasonably foreseeable consequences of a decision to reject
    that treatment.

[6]

Doctors Wilkie and Cyr propose to treat Ms. Coburn with anti-psychotic
    medications and mood stabilizing medications for a mental condition they have
    diagnosed as schizoaffective disorder (bipolar type), manifesting itself 
    amongst other ways  in periods of delusion and paranoia. Ms. Coburn does not
    wish to undergo that treatment. She says that she has taken such medication
    before without benefit (the medical evidence is to the contrary), that she does
    not like the side effects, and that any symptoms she is displaying are the
    result of her various physical ailments (fibromyalgia and obstructive sleep
    apnea) and are not the result of a mental condition, as her physicians assert.

[7]

In its decision dated May12, 2015, the Board held that Ms. Coburn was
    not able to appreciate the consequences of her decision to reject the proposed
    treatment. Belobaba J. (the appeal judge) upheld the Boards decision.

The
    Test Applied

[8]

In support of her submission that the appeal judge erred in holding that
    the Board applied the proper test for capacity, Ms. Szigeti fastens upon a
    remark made by him to the effect that several sentences in the Boards
    reasons did not align with what was said by the Supreme Court of Canada in
Starson
    v. Swayze
, [2003] 1 S.C.R. 722. Quoting from
Starson
, at para.
    79, the appeal judge stated that while a patient must be able to recognize
    the possibility that he is affected by a mental condition, he does not have to
    agree with the attending physicians opinion regarding the cause of the
    condition. He then observed that the sentence in the Boards decision stating
    that LC is not able to appreciate there was any possibility she was suffering
    from any delusional or paranoid thinking misstated the legal requirement.

[9]

In Ms. Szigetis submission, having found this misstatement of the legal
    requirement, the appeal judge was required to hold that the Board had erred in
    law and therefore to set aside its decision.

[10]

We are not persuaded by this submission, for several reasons.

[11]

First, it is not clear to us that the isolated sentence referred to
    above misstates the proposition articulated in
Starson
. Indeed, it
    appears to track the first part of the
Starson
proposition cited by
    the appeal judge quite closely.

[12]

Secondly, although the isolated sentence makes no reference to Ms.
    Coburns right to disagree with the physicians, the comment by the Board was
    not made in that context. It was made in support of the inference that Ms.
    Coburn had no trust in the health practitioners at CAMH because she could not
    make the connection between her health issues and her mental health issues.  Nonetheless,
    the Board was clearly alive to the patients right to disagree because it based
    its distinction between this case and
Starson
on that very point
    (Professor Starson could appreciate the consequences of his decisions and was
    entitled to disagree and decline treatment, even if it may not have wise to do
    so; Ms. Coburn did not have the necessary appreciation to enable her to do so).

[13]

Finally, the appeal judge did not base his decision on the several
    sentences he referred to.  He based his decision on a review of the Boards
    reasons as a whole and was satisfied, having done so, that the Board had
    applied the proper test for capacity under s. 4(1) of the
HCCA
, in
    spite of the isolated misstatements that were identified.  We agree.

[14]

In a further submission, advanced during oral argument, Ms. Szigeti
    appeared to argue that the Board erred by applying the test in a more stringent
    fashion than that called for in
Starson
. The Board focussed too
    closely on the label mental condition, she contended, and too little on the
    fact that the symptoms Ms. Coburn was experiencing from her fibromyalgia and
    sleep apnea problems  fearfulness, anxiety, stress, irritability, loss of
    concentration, lack of sleep  can affect mood and behavioural patterns in the
    same way as a mental disorder diagnosed in the form of a particular label. Labelling
    should not determine the test.

[15]

Starson
sets a low threshold and makes clear that a patients
    refusal to acknowledge a mental illness is insufficient, on its own, to prove
    incapacity.  Here, Ms. Coburn was mindful of the fact that she was struggling
    with a number of symptoms that manifest themselves as mood or behavioural
    issues. Because she declined to accept their characterization under a mental
    condition label does not detract from the fact that she recognized them and
    their impact on her.  The Board was wrong, therefore, to hold that Ms. Coburn
    was unable to appreciate that she was suffering from a mental condition and to
    deprive her of her right to disagree with the doctors diagnosis and proposed
    treatment.

[16]

Ms. Szigeti worries that if the Board begins to parse each and every
    symptom exhibited by a patient to determine whether that symptom amounts to a
    mental condition, the Board will be returning to a pre-
Starson
environment where an uncooperative patient is required to show that he or she
    is on board with everything the doctors are saying.

[17]

We do not read the Boards decision as simply an exercise in labelling
    or as pointing towards any such result, however. As noted above, the Board found
    that Ms. Coburn was suffering from a delusional disorder and a mood disorder
    caused at least in part by a mental condition. Ms. Coburn did acknowledge that
    she was suffering from symptoms such as fearfulness, anxiety, stress, lack of
    sleep and irritability; but she denied that she was experiencing periods of
    delusion and paranoia.

[18]

While it is true that a patient need not agree with or accept a proposed
    treatment,
Starson
does not eliminate the distinction between physical
    and mental conditions and the appreciation of their consequences. The Court
    made it clear that a patient must be able to recognize the possibility that he
    or she is affected by a mental condition and to appreciate the consequences of
    the decision not to agree with a treatment proposal. As Major J. said on behalf
    of the majority, at para. 79:

While a patient need not agree with a particular diagnosis,
if it is demonstrated that he has a mental condition, the
    patient must be able to recognize the possibility that he is affected by that
    condition
.

As a result, a patient is not required to describe his mental
    condition as an illness, or to otherwise characterize the condition in
    negative terms. Nor is a patient required to agree with the attending
    physicians opinion regarding the cause of that condition.
Nonetheless, if the patients condition results in him being
    unable to recognize that he is affected by its manifestations, he will be
    unable to apply the relevant information to his circumstances, and unable to
    appreciate the consequences of his decision
.

[Emphasis
    added.]

[19]

Here, the Board arrived at its decision by following that very path. The
    Board specifically examined the evidence by asking itself Did the evidence
    establish that LC was unable to appreciate the reasonably foreseeable
    consequences of a decision or lack of decision about the treatment in
    question?  the second branch of the s. 4(1) test. This was the proper
    approach.

[20]

The Board accepted that Ms. Coburns symptoms could be attributable, in
    part, to her pain, sleep deprivation and her unhappiness at being in hospital. 
    After reviewing the record and the testimony of Dr. Wilkie, Dr. Cyr and Ms.
    Coburn, however, the Board determined that her symptoms were caused, at least
    in part as well, by her mental condition and that she was not able to
    appreciate that she was suffering from any delusional or paranoid thinking or
    that there was the possibility of any link between her symptoms, as manifested,
    and a mental condition. The Board found that Ms. Coburn was suffering from a
    delusional disorder and  a mood disorder that at least in part is caused by a
    mental condition although complicated by her sleep and pain issues. It
    concluded that:

Without being able to make the connection between the
    manifestations of mental disorder, and its effect on her, [Ms. Coburn] is
    unable to make a risk/benefit analysis of taking or not taking the medications
    designed to deal with these symptoms, a fact which renders her incapable of
    making decisions regarding treatment of her condition.

[21]

These findings were open to the Board on the record. Viewing its reasons
    as a whole, we are satisfied  as was the appeal judge  that the Board applied
    the proper test for capacity.

The
    Boards Decision was not Unreasonable

[22]

Ms. Szigeti also argues that the Boards decision was unreasonable
    because the evidence did not support a finding that Ms. Coburn was suffering
    from a mental condition. This argument overlaps with the former submissions,
    because it goes to the underpinnings of those submissions, and we reject it for
    similar reasons.

[23]

There is ample support in the record for the finding. Ms. Coburns
    denial that she is suffering from a mental condition is hardly dispositive. Indeed,
    as mentioned above, it is reflective of the problem. Nor does the fact that the
    treating physicians recognized that some of Ms. Coburns symptoms could flow
    from her various physical ailments preclude a diagnosis that she was also
    suffering from a mental condition manifesting itself in delusions and paranoia.

[24]

Dr. Cyr, one of Ms. Coburns attending psychiatrists, testified that Ms.
    Coburn was suffering from a mental condition known as schizoaffective disorder,
    characterized by both psychotic and manic symptoms and manifesting itself in
    persecutory delusions, difficulty sleeping and wide mood shifts. This
    schizoaffective disorder impaired her cognitive functioning. Dr. Cyr also
    testified that Ms. Coburns physical complaints could not explain all of her
    symptoms and that the burden of her symptoms was attributable to her mental
    condition and went beyond what would be expected of someone who was
    experiencing a normal reaction to stress. In her opinion, Ms. Coburn was unable
    to appreciate the reasonably foreseeable consequences of a decision regarding
    the proposed treatment. The Board was entitled to accept this evidence, as it
    did.

[25]

In the end, the Board determined that, unlike Professor Starson, Ms.
    Coburn was unable to appreciate the consequences of her decision to reject
    treatment. She was unable to evaluate the information provided to her by
    medical personnel. She was unable to appreciate that she was exhibiting
    continuous manifestations of paranoia and was at times delusional as distinct
    from simply experiencing pain as a result of her physical ailments such as
    fibromyalgia and sleep apnea, as she claimed. These findings were open to the
    Board on the record and were not unreasonable.

[26]

The Boards decision is entitled to deference.

The
    Doctor-Patient Relationship

[27]

Like the appeal judge, we do not think the record supports the ground of
    appeal that there had been a clear breakdown in the doctor-patient relationship.

[28]

As noted, the Board found that because of her inability to appreciate
    that there was any possibility she was suffering from any delusional or
    paranoid thinking, Ms. Coburn has absolutely no trust in the health
    practitioners at CAMH or in any doctors paid by OHIP. This undoubtedly explains
    the tension between her and her physician care-givers, but must not be uncommon
    in similar patient-doctor situations and cannot by itself establish a breakdown
    in relations.

[29]

Despite this state of affairs, it appears that there were extensive
    discussions between the doctors and Ms. Coburn, albeit sometimes tinged with an
    element of hostility on her part. There is nothing to indicate that Ms. Coburn
    failed to receive any necessary information regarding her proposed treatment as
    a result of these issues or that they in any way interfered with her ability to
    understand the information she received. She was simply unable to evaluate the
    impact of that information and to appreciate the consequences of refusing that
    treatment.

[30]

We would not give effect to this ground of appeal.

Disposition

[31]

For the foregoing reasons, the appeal is dismissed.

Released: November 21, 2016

J.C. MacPherson J.A.

R.A. Blair J.A.

David Watt J.A.


