



COURT OF APPEAL FOR ONTARIO

CITATION: Ferencz v. Vissers, 2016 ONCA 552

DATE: 20160711

DOCKET: C61861

Rouleau, Hourigan and Pardu 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

BETWEEN

Dr. Joseph Ferencz

Appellant

and

Ian Vissers

Respondent

Janice Blackburn, for the appellant

Russell W. Browne, for the respondent

Heard: July 4, 2016

On appeal from the order of Justice Jane A. Milanetti of
    the Superior Court of Justice, dated February 9, 2016, allowing an appeal from
    the decision of the Consent and Capacity Board, dated March 20, 2015.

ENDORSEMENT

[1]

The appellant, Dr. Joseph Ferencz, appeals from
    an order setting aside a decision of the Consent and Capacity Board,
    determining that the respondent, Ian Vissers, was incapable with respect to medical
    treatment, within the meaning of s. 4(1) of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Schedule A
.

A.

Facts

[2]

The respondents attending physician, Dr. Usha
    Parthasarathi, determined that the respondent was incapable of consenting to, or
    refusing, specified medications and blood testing, and served him with a Form
    33 under the
Mental Health Act
, R.S.O. 1990,
    c. M.7. The respondent applied to the Consent and Capacity Board to review the
    finding of incapacity.

[3]

Under s. 75(2) of the
Health Care Consent Act, 1996
,
a
    hearing must be convened within seven days after the Board receives a patients
    form requesting that the Board review a finding of incapacity.

[4]

At the outset of the hearing before the Board, the
    appellant advised the Board that Dr. Parthasarathi was on vacation, and that he
    was covering for her on the psychiatric unit. The appellant had been the attending
    physician for the respondent years earlier. Neither the respondent nor his
    counsel objected to the absence of Dr. Parthasarathi. She had made detailed
    clinical notes, which the appellant submitted at the hearing. He testified that
    he agreed with her opinion that the respondent was incapable of consenting to
    treatment.

[5]

The three-person panel of the Board unanimously
    confirmed the finding of the respondents treatment incapacity.

[6]

The respondent appealed to the Superior Court of
    Justice and raised the issue of procedural fairness for the first time on
    appeal. The appeal judge ordered a new hearing on the basis that the Board should
    have had the respondents current attending physician before it to give testimony.

[7]

The appellant now appeals that order.

B.

Analysis

(1)

Did the appeal judge err in holding that
    fairness required that the respondents attending physician give oral evidence
    at the hearing?

[8]

The appeal judge found that fairness required
    that the attending physician give evidence before the Board:

While I acknowledge that Mr. Vissers counsel
    made neither complaint nor objection to Dr. Ferenczs role (when asked if there
    were any preliminary issues), an objection is now being raised on Mr. Vissers
    behalf. This entire process is about him. The decision is one that is of
    fundamental importance to him. He should thus have the opportunity to hear what
    the doctor who actually found him incapable currently would say, and be in a
    position to ask her questions through counsel.



I find that the preliminary concern about the
    absence of Mr. Vissers current treating physician causes me to find that the
    matter should be sent back to the Board for a hearing
de novo
at a date and time when Dr. Parthasarathi is available to give
    testimony.

[9]

In our view, the appeal judge erred in setting
    aside the decision of the Board on a basis raised for the first time on appeal.
    See
M.M. v. De Souza
,
    2016 ONCA 155, at para. 25. The hearing might well have unfolded in a different
    fashion or been adjourned for a short time had the objection to the evidence of
    Dr. Ferencz been raised at that time, but it was not.

[10]

Furthermore, before the Board, the burden of proof
    rests with the health care practitioner to prove incapacity on a balance of
    probabilities. If the Board is at any time unsatisfied with the evidence of a
    health care practitioner because he or she is not knowledgeable enough about
    the patient, it may conclude that the statutory presumption of capacity under
    the
Health Care Consent Act, 1996
has not been displaced. That did not occur in this case. The Board
    was in the best position to weigh the evidence of Dr. Ferencz, knowing
    that he was not the physician who signed the Form 33.

(2)

Was the Boards decision reasonable?

[11]

Section 4(1) of the
Health Care Consent Act, 1996
describes
    the elements of capacity as follows:

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

[12]

The respondent was detained as a result of a
    verdict that he was not criminally responsible on account of mental disorder on
    a charge of uttering threats to cause death. He has a long history of mental
    illness and has been diagnosed with schizophrenia. The Board reviewed his
    medical history and condition and concluded, citing the correct test from
Starson v. Swayze
, 2003 SCC 32, [2003]
    1 S.C.R. 722, that the respondent was unable to appreciate the reasonably
    foreseeable consequences of a decision or lack of a decision regarding the
    treatment proposed.

[13]

As the Board noted, the court held in
Starson
, at para. 79
:

[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.

[14]

In the present case, there was an ample basis in the record before the
    Board to enable it to conclude that the respondent was incapable with respect
    to the proposed treatment. The Boards decision was reasonable.

[15]

Accordingly, the decision of the appeal judge is set aside, and in its
    place there will be an order confirming the decision of the Board of March 20,
    2015, determining that the respondent was incapable with respect to the
    proposed treatment as of the date of the hearing.

[16]

There will be no order as to costs.

Paul Rouleau J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


