



COURT OF APPEAL FOR ONTARIO

CITATION: B.L. v. Pytyck, 2021 ONCA 67

DATE: 20210203

DOCKET: C68537

Lauwers, Hourigan and Brown
    JJ.A.

In the
    matter of an appeal from a decision of the

Consent
    and Capacity Board

Pursuant
    to the
Health Care Consent Act
,
1996
, S.O. 1996, c.
    2, Sched. A,

As
    amended

And in
    the matter of

B.L.

A
    patient at

Ontario
    Shores Centre for Mental Health Sciences

Whitby,
    Ontario

BETWEEN

B.L.

Applicant/Appellant (Appellant)

and

Dr. Jennifer Pytyck

Respondent (Respondent)

Ken J. Berger, for the appellant

Jessica R. Szabo, for the respondent

Heard: January 22, 2021 by video conference

On appeal from the order of Justice David
    L. Corbett of the Superior Court of Justice, dated June 16, 2020, with reasons
    reported at 2020 ONSC 3766, dismissing an appeal from the decision of the
    Consent and Capacity Board, dated August 14, 2019.

BROWN J.A.:

I.        OVERVIEW

[1]

By decision dated August 14, 2019, the Consent
    and Capacity Board (the Board) confirmed the finding of the appellant B.L.s
[1]
treating psychiatrist that he was incapable of consenting or
    refusing consent to treatment, specifically antipsychotic medications, both
    oral and injectable: 2019 CanLII 92439. B.L. appealed the Boards decision to
    the Superior Court of Justice; the appeal judge dismissed his appeal. B.L. now
    appeals to this court.

[2]

For the reasons set out below, I would dismiss the
    appeal.

II.       THE APPELLANTS CONDITION

[3]

B.L. is 37 years old. He has been diagnosed with
    schizophrenia. That diagnosis is not in dispute on this appeal.

[4]

In 2013, B.L. was admitted to the Ontario Shores
    Centre for Mental Health Sciences (Ontario Shores) under the jurisdiction of
    the Ontario Review Board after being found not criminally responsible for
    striking his father with a cricket bat. He remained at Ontario Shores until
    January 2017, when he was discharged to a group home. After a deterioration in
    his condition following a change in medication, B.L. was re-admitted to Ontario
    Shores in May 2017, where he remains today.

[5]

Twice in 2013 B.L. was found incapable of
    consenting to treatment with antipsychotic medication; both times the Board set
    aside the finding.

[6]

The respondent psychiatrist, Dr. Pytyck, has treated
    B.L. since 2015. At the August 2019 CCB hearing, Dr. Pytyck testified that B.L.
    is extremely high functioning when properly treated, but his condition
    deteriorates quickly without adequate antipsychotic medication.

[7]

From January 2017 to August 2018, B.L. changed the
    dose and type of his medication multiple times after discussing side effects
    and other concerns with Dr. Pytyck. B.L. has not taken any antipsychotic
    medication since August 2018.

[8]

Prior to the August 2019 Board hearing, B.L. had
    not taken prescribed medication for about one year. According to Dr. Pytyck, during
    that time B.L.s condition had deteriorated markedly: he exhibited social
    withdrawal, odd interpersonal behaviours, extreme sensitivity to light and
    sound, signs of paranoia, irritability, and disorganization of thought. In the
    month before the Board hearing, Dr. Pytyck noted a dramatic deterioration in
    B.L., including the emergence of delusional beliefs.
[2]
In her opinion, as of the time of the hearing, B.L. was quite
    overtly psychotic.

[9]

The appeal judge, at para. 20 of his reasons,
    summarized B.L.s testimony before the Board as follows:

In his testimony, [B.L.] presented as
    described by [Dr. Pytyck]: intelligent, focused on the legal test of capacity
    and in particular, with demonstrating that he had gone through the process of
    weighing risks and benefits of taking antipsychotic medication. He also
    testified in manner that corroborated [Dr. Pytycks] description of him as
    delusional. He believes that he is suffering because of UV rays, gamma rays,
    and lack of oxygen, and that his somatic complaints are real. He attributes
    these complaints to phenomenon such as climate change, and he believes that his
    antipsychotic medication makes these things worse. At most, in his view, the
    anti-psychotic medication masks the reality of these afflictions, leading him
    to fail to take steps to protect himself, thus afflicting him further.

[10]

At the Board hearing, Dr. Pytyck testified that for
    many years B.L. had conflated his somatic preoccupations with the side effects
    from his antipsychotic medication. In 2013 and 2014, when he was taking very
    low doses of antipsychotic medication, B.L. reported very high levels of
    somatic side effects. When adequately medicated, B.L. did not complain to the
    same degree.

[11]

On his part, B.L. denies that his somatic
    complaints are related to his mental illness. He denies that his medication can
    relieve him from his delusional suffering. Subjectively, he believes that he
    does suffer from physical complaints, that these complaints are worsened by his
    antipsychotic medication, but that one effect of the medication is to dull him
    mentally, so that he forgets about his complaints and then fails to protect
    himself against the negative effects of climate change.

III.      THE DECISION OF THE BOARD

[12]

Section 4(1) of the
Health Care Consent Act,
    1996
, S.O. 1996, c. 2, Sched. A (the Act), establishes a two-branch test
    for determining a persons capacity to consent to treatment. A person is
    capable with respect to a treatment if the person is able to:

(i)

Understand the information that is relevant to
    making a decision about the treatment; and

(ii)

Appreciate the reasonably foreseeable
    consequences of a decision or lack of decision.

[13]

Before the Board, there was no dispute that B.L.
    satisfied the first branch of the test. The issue was whether B.L. was able to
    appreciate the reasonably foreseeable consequences of a decision or lack of
    decision.

[14]

The Board acknowledged the proper approach to apply
    to the issue of B.L.s capacity to consent to treatment, stating, at pp. 12-13
    of its reasons:

In assessing the evidence and submissions of
    counsel, I was mindful of the court's caution, in
Starson v. Swayze
[2003]
    1 S.C.C. 722, that it is not the Board's function to interfere with a capable
    person's rational choices, however foolish. Capable people have the right to
    take risks and make decisions that may be considered unreasonable. The test is
    not whether the choice by the patient appears reasonable or wise, but whether
    the patient is capable of consenting, within the meaning of the statute.

Further, in
Starson
, the court cautioned
    that the Board must avoid the error of equating the presence of a mental
    disorder with incapacity. People suffering from mental disorders are vulnerable
    to interference with their personal autonomy and are at risk of having their
    decisions regarding treatment not being taken seriously.



Although a person need
    not agree with the doctor's diagnosis, nor even agree that he or she suffers
    from a mental condition, in order to be found capable, if it is demonstrated
    that he or she has a mental condition, the person must also be able to recognize
    the possibility that he or she is affected by that condition. In that regard,
    it was said in
Starson
that if
    the patient's 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.]

[15]

In confirming Dr. Pytycks finding that B.L. was
    not capable of consenting to treatment, the Board made several key findings,
    including:

·

At the time of the hearing, B.L. suffered from a
    mental illness, namely schizophrenia: at pp. 7-8;

·

B.L. had been more than amply educated about
    his illness and the benefits and risks of medications: at p. 8;

·

Although B.L. was able to acknowledge that he
    had been diagnosed with schizophrenia, he was unable to appreciate that he was
    experiencing paranoia and delusions and that his symptoms were likely those of
    a psychotic illness: at pp. 13-14;

·

B.L. lacked the ability to appreciate that he
    was affected by symptoms of mental illness or, at a minimum, was unable to
    appreciate the extent to which his symptomatology governed his behaviour: at p.
    14;

·

B.L.'s paranoid delusions about UV rays, gamma
    rays, and carbon dioxide levels interfered with his ability to evaluate how the
    treatments being proposed would likely affect him. B.L. was making his
    decisions in the context of a belief that his fears about UV rays were
    warranted and not delusional. It was his view that the medication would not
    likely address these concerns and it was the very delusions from which he
    suffered which interfered with his ability to rationally weigh the potential
    benefits of the proposed treatment: at p. 14;

·

Although B.L. held an honest belief about the
    adverse effects of the medication, the sincerity of B.L.'s beliefs did not
    overcome the preponderance of evidence pointing to B.L.'s inability to
    appreciate the consequences of his treatment choices: at p. 14;

·

B.L. likely overestimated the side effects of
    the medications and likely conflated his somatic delusions and the adverse
    effects of the medication: at p. 15;

·

B.L.'s refusal to take the antipsychotic
    medication was not primarily because of its negative effects, but because of
    his inability to appreciate the connection between his thoughts and conduct and
    the return of his psychotic symptoms and the connection between medication
    adherence and improvement of symptoms: at p. 15;

·

B.L. was not able to appreciate that taking
    therapeutic doses of the medication had improved his condition to the extent
    that he had been able to leave the hospital and live in a group home for a
    while: at p. 15;

·

B.L.s decision to decline medication was
    dictated by the delusions from which he suffered: at p. 15;

·

B.L. was unable to consider medication as an
    option in the future, regardless of what he sometimes said, because, in B.L.'s
    view, he was not suffering from psychotic symptoms, and the measures he took to
    protect himself were a rational response to real, not delusional concerns: at p.
    15;

·

B.L.s evidence revealed a singular focus on the
    medications negative effects: at p. 16;

·

B.L. had not undertaken a cost/benefit analysis
    regarding the medication because he was unable to appreciate that his behaviour
    flowed from symptoms of a psychotic illness and that the illness was clouding
    his ability to recognize the benefits of medication: at p. 16; and

·

On the totality of the evidence, although B.L.
    apprehended the negative effects of treatment with antipsychotic medication, he
    was unable to appreciate its benefits. His symptomatology, including his
    paranoia and delusions, prevented him from having the ability to evaluate the
    relevant information as it applied to his own circumstances: at p. 16.

[16]

The Board concluded, at p. 17, that:

BL was unable to appreciate the correlation
    between his behaviour and psychotic symptoms, which the antipsychotics served
    to reduce. Absent an ability to make a connection between a mental disorder and
    its effects on him and an inability to connect his improvement to medication
    adherence, he did not have the ability to evaluate the information or to weigh
    the benefits of the proposed treatments against their risks. Consequently, in
    my opinion, it had been proven that BL was incapable to consent to treatment
    with respect to antipsychotics.

IV.     THE DECISION OF THE APPEAL JUDGE

[17]

In dismissing B.L.s appeal from the Boards
    decision, the appeal judge stated, at para. 33:

In my view the Board was correct in finding
    that a patient must be able to appreciate the objectively reasonable material
    risks and benefits of medication before that patient can perform a meaningful
    costs/benefits analysis. The Board reasonably applied this standard to the
    facts, as it found them to be, and concluded that [B.L.] does not have capacity
    to consent to antipsychotic medication.

V.      ISSUES ON APPEAL

[18]

B.L. submits that the Board misapplied the
    second branch of the capacity test in s. 4(1) of the Act to the facts of his
    case. B.L. contends that the evidence demonstrated that he actually appreciates
    the parameters of his treatment decision because he is cognizant of: the nature
    and purpose of the proposed treatment; the foreseeable benefits and risks of
    the treatment; the alternative courses of action; and the expected consequences
    of refusing treatment. While he may weigh or value the parameters differently
    than Dr. Pytyck, he has the ability to appreciate the decision he made.

[19]

B.L. further argues that his decision to refuse
    treatment was based on his understanding of environmental impacts on his own
    health, an understanding justified by scientific literature. In support of this
    submission, B.L. included in his book of authorities several publications from
    the World Health Organization (WHO) on various environmental issues. Dr.
    Pytyck objects to the inclusion of the articles on the grounds that: (i) they were
    not before the Board or the appeal judge; (ii) they are not relevant to a decisive
    issue on this appeal; and (iii) B.L. has not brought a proper motion for leave
    to file fresh evidence.

VI.     THE STANDARD OF REVIEW

[20]

When reviewing a decision of the Superior Court
    of Justice regarding the decision of an administrative tribunal, such as the
    Board, this court must determine the standard of review that applies to the
    tribunals decision, apply that standard to the decision of the tribunal, and determine
    if the appeal court applied the standard properly. In so doing, this court
    steps into the shoes of the Superior Court of Justice and focuses on the
    tribunals decision under review:
Agraira v. Canada (Minister of Public
    Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at
    paras. 45-46;
Longueépée v. University of Waterloo
, 2020 ONCA 830, at
    paras. 47-48.

[21]

The Act provides a right of appeal from a
    decision of the Board to the Superior Court of Justice on questions of law or
    fact, or both: s. 80(1). As the appeal judge correctly observed, at para. 23:

Where there is a statutory right of appeal
    from an administrative decision, without a privative clause, the court
    scrutinizes the administrative decision on the basis of appellate standards of
    review. See:
Canada (Minister of Citizenship and Immigration) v. Vavilov
,
    2019 SCC 65, para. 37.

[22]

The Boards identification of the proper
    statutory test for capacity involves a question of law reviewable on the
    correctness standard. The Boards application of the statutory test for
    capacity to the evidence to determine whether a person is capable is a question
    of mixed fact and law, reviewable on the deferential standard of palpable and
    overriding error, absent an extricable question of law in the Boards analysis:
Starson

v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at para.
    84;
Gajewski v. Wilkie
, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33.

VII.    ANALYSIS

[23]

As I understand B.L.s position on this appeal,
    he submits that the Board erred in law by applying the wrong legal standard to
    its assessment of the evidence and, as well, that the Boards findings were
    based on a misapprehension of the evidence.

The alleged error of law

[24]

The appeal judge recorded, at para. 5, that B.L.
    had conceded the Board had applied the correct legal test when assessing his
    capacity to consent to treatment. However, on this appeal B.L.s counsel
    submits that the Board and appeal judge in fact applied the wrong legal test.
    As I understand the submission, B.L. argues that the Board incorrectly applied
    an objective standard of reasonableness, or a kind of best interests test,
    when assessing B.L.s ability to appreciate the reasonably foreseeable
    consequences of a decision to take or refuse medication, instead of determining
    the issue based solely on B.L.s subjective appreciation of the consequences.

[25]

I see no such error by the Board. With respect,
    B.L.s submissions overlook an important element of the legal test as
    articulated by the Supreme Court in
Starson
. As the Board pointed out
    in its reasons, at p. 13, in
Starson
the Supreme Court stated, 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. Professor Weisstub comments on this requirement as follows:

Condition refers to the broader
    manifestations of the illness rather than the existence of a discrete
    diagnosable pathology. The word condition allows the requirement for
    understanding to focus on the objectively discernible manifestations of the
    illness rather than the interpretation that is made of these manifestations.

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.]

[26]

Accordingly, the
Starson
test for
    capacity in respect of the ability to appreciate the reasonably foreseeable
    consequences of a decision or lack of decision includes a requirement to
    consider whether a persons condition results in an inability to recognize that
    he or she is affected by its manifestations, thereby rendering the person unable
    to apply the relevant information and appreciate the consequences of his or her
    decision. This aspect of the legal test has been repeated and applied by this
    court in several cases:
Giecewicz v. Hastings
, 2007 ONCA 890, 288
    D.L.R. (4th) 587, at paras. 18-21, leave to appeal refused, [2008] S.C.C.A. No.
    97;
DAlmeida v. Barron
, 2010 ONCA 564, 103 O.R. (3d) 250, at paras.
    24-26, leave to appeal to S.C.C. refused, (2011) 284 O.A.C. 400;
Gajewski,
at
    paras. 47-53; and
Murray v. Alatishe
, 2019 ONCA 596, at para. 20.

[27]

The Board applied the correct legal test, as is
    apparent from the portion of its reasons reproduced at para. 14 above.

The alleged misapprehension of the evidence

[28]

B.L. submits, in effect, that the Board
    misapprehended the evidence because it was not prepared to accept the way he
    balanced the costs and benefits of taking antipsychotic medication in his
    circumstances.

[29]

With respect, I cannot accept this submission.
    The record demonstrates that the Board understood the evidence and made no
    palpable and overriding error in applying the correct legal standard to that
    evidence.

[30]

The factual findings made by the Board,
    enumerated in para. 15 above, are fully supported by the evidentiary record.
    Its conclusion based on that evidence, reproduced at para. 16 above, displays
    no misapprehension of the evidence.

[31]

The WHO publications that B.L.s counsel asks
    this court to consider do not alter that conclusion. That most people have some
    concerns about the impact of environmental conditions on their health does not
    alter the Boards task, which is to assess B.L.s ability to appreciate the
    reasonably foreseeable consequences of a treatment decision in light of his
    mental illness, his capacity to understand the symptoms and effects of his
    mental illness, the benefits of medical treatment in B.L.s specific
    circumstances, and the risk of medical treatment in those circumstances. The
    record shows that is what the Board did.

[32]

Accordingly, I see no basis to interfere with
    the Boards decision.

VIII.   DISPOSITION

[33]

For the reasons set out
    above, I would dismiss B.L.s appeal.

Released: PL  FEB 03 2021

David
    Brown J.A.

I
    agree. P. Lauwers J.A.

I
    agree. C.W. Hourigan J.A.





[1]
At the appellants request, in these reasons his initials are used
    instead of his full name.



[2]
Details of the evidence can be found at pp. 6-7 of the Boards reasons: 2019
    CanLII 92439. A description of B.L.s behaviour at the Board hearing is found
    at p. 11 of those reasons.


