



COURT OF APPEAL FOR ONTARIO

CITATION: Wakeling v. Kolla, 2015 ONCA 881

DATE: 20151211

DOCKET: C60461

Weiler, Pardu and Benotto JJ.A.

In the matter of an appeal from a decision of the
    Consent and Capacity Board from a hearing of an application under section 32(1)
    of the
Health and Consent Act, 1996
S.O. 1996, c. 2, Sch. A, as
    amended

BETWEEN

Andrew Wakeling

Appellant

and

Dr. Nathan Kolla

Respondent

DArcy J. Hiltz, for the appellant

Kendra Naidoo, for the respondent

Heard and released orally: December 9, 2015

On appeal from the judgment of Justice
Suhail
    A.Q. Akhtar
of the Superior Court of Justice, dated April 30, 2015.

ENDORSEMENT

[1]

The appellant appeals the dismissal of his appeal by a Superior Court Appeal
    Judge from the decision of the Consent and Capacity Board that he is a person
    who is incapable of consenting to treatment.

[2]

In coming to its conclusion that the appellant was incapable of
    consenting to treatment, the findings of the Board included the following:

·

the appellant was suffering from a schizoaffective disorder;

·

the appellants symptoms included paranoid delusions, auditory
    hallucinations and manic symptoms;

·

the appellant did not believe he had any manifestations of mental
    illness;

·

the appellants inability to recognize that he was affected by
    the manifestations of a mental illness meant he was unable to appreciate the
    consequences of his decision to refuse medication.

[3]

The Board upheld the finding of a medical practitioner that the
    appellant was incapable of consenting to treatment with antipsychotics, mood
    stabilizers, side effects medications and benzodiazepines.

[4]

The Superior Court Appeal Judge dismissed the appellants appeal from
    the Boards decision.

[5]

On the initial appeal and before us, the appellant raises three grounds
    of appeal. They relate to the sufficiency of the Boards reasons, whether the
    Boards decision was supported by the evidence and was reasonable and whether
    the Board understood and applied the correct test for capacity to consent.

[6]

In relation to the first ground of appeal, the sufficiency of the
    reasons, the appellant points out several acknowledged clerical or
    typographical errors. The two errors do not render the reasons unintelligible
    and had no impact on the result. In assessing the sufficiency of the Boards
    reasons, the reviewing judge was entitled to have regard to the entirety of the
    record as he did. The Boards chain of analysis was clear and the reviewing
    judge did not err in dismissing this ground of appeal.

[7]

In relation to the second and third grounds of appeal, we see no error
    in the Superior Court Appeal Judges reasons and would dismiss the appeal on
    these grounds for the reasons he gave.

[8]

The appellant further submits that his inability to recognize that he
    was affected by the manifestations of a mental illness did not relieve the
    Board from considering whether he should be able to refuse treatment because of
    the side effects of the medication. He argues that there is no evidence that
    the appellant was incapable with respect to side effect medication in general
    such as general medication for mood or benzodiazepine.

[9]

In his submissions before the Board the appellant did not ask the Board
    to separate treatment respecting medications as he is now doing. Nor was this
    argument made on the initial appeal. The appellant has provided a decision of a
    Board that appears to indicate that an individual who is incapable of
    consenting to treatment must nevertheless be given information respecting side
    effect medication.

[10]

That
    is not the situation here. The appellant was given information with respect to
    side effect medication but he said the benefits of the medication would not be
    applicable to him because he does not have an illness. The Board found the
    appellant was incapable with respect to all of the proposed medication and the
    record supports this conclusion.

[11]

Viewed
    as a whole the Boards decision was reasonable and the reviewing judge did not
    err in dismissing the appellants appeal. Accordingly, the appellants appeal
    is dismissed.

Karen M. Weiler J.A.

G. Pardu J.A.

M.L. Benotto J.A.


