



COURT OF APPEAL FOR ONTARIO

CITATION: Othen v. Robertson, 2016 ONCA 268

DATE: 20160413

DOCKET: C60868

Sharpe, Juriansz and Roberts JJ.A.

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

BETWEEN

Lawrence Othen

Applicant (Appellant)

and

Dr. David Robertson

Respondent (Respondent in Appeal)

Lawrence Othen, in person

DArcy J. Hiltz, as
amicus


Alexandra V. Mayeski, for the respondent

Heard: April 8, 2016

On appeal from the judgment of Justice Stephen E.
    Firestone of the Superior Court of Justice, dated January 23, 2015.

ENDORSEMENT

[1]

In our view, the Superior Court appeal judge did not err in dismissing
    the appeal from the decision of the Consent and Capacity Board that the
    appellant was incapable of consenting to treatment with antipsychotic
    medications.

[2]

Amicus
argues that the appeal judge erred by considering the
    subsequent decision of the Board changing the appellants status to that of an
    involuntary patient.

[3]

We disagree.

[4]

Evidence of the appellants post-hearing status was referenced by the
    appeal judge only as background information. In our view, he properly assessed
    the issue of capacity to consent to treatment on the basis of the record before
    the Board when it made that determination and his assessment was not materially
    influenced or affected by what transpired at the subsequent hearing.

[5]

The
amicus
submits that the Boards decision that he lacked
    capacity to consent was unreasonable.

[6]

We disagree.

[7]

As the Board found, and the Superior Court appeal judge confirmed, there
    was clear evidence that the appellant suffers from a mental disorder and that
    he refused to acknowledge that he was affected by that mental disorder. The
    Board found that the respondent did not prove that the appellant was incapable
    of understanding the information relevant to making a decision about the treatment.
    However, the Board found that the respondent had demonstrated that the
    appellant was not able to appreciate the reasonably foreseeable consequence of
    a decision or lack of decision.

[8]

In our view, there was ample evidence to support that determination. Dr.
    Hauck testified that repeated attempts had been made to discuss treatment with
    the appellant but the appellants delusions rendered him incapable of
    understanding the information relevant to the treatment decision. Dr. Hauck
    explained that, due to his illness, the appellant:

(1)

Did not acknowledge any sort of
    understanding of a mental health diagnosis;

(2)

Did not understand the proposed
    treatment or the consequences of accepting or refusing treatment; and

(3)

Any choices the appellant made
    were on the basis of his delusional beliefs.

[9]

Finally, we do not agree that the appellant was denied a fair hearing.
    Any curtailment in the cross-examination of Dr. Hauck was on matters tangential
    to the issues before the Board.

[10]

For
    these reasons, the appeal is dismissed.

Robert
    J. Sharpe J.A.

G.R.
    Juriansz J.A.

L.B.
    Roberts J.A.


