



COURT OF APPEAL FOR ONTARIO

CITATION: Fleischhaker v. Attwood, 2017 ONCA 927

DATE: 20171130

DOCKET: C62846

Sharpe, Epstein and van Rensburg JJ.A.

BETWEEN

Kevin Fleischhaker

Appellant

and

Dr. David Attwood

Respondent

Michael Davies, for the appellant

Jacquie Dagher, for the respondent

Heard and released orally: November 24, 2017

On appeal from the judgment of Justice Marc R. Labrosse
    of the Superior Court of Justice, dated September 30, 2016.

REASONS FOR DECISION

[1]

The Consent and Capacity Board found that the appellant was incapable
    with respect to treatment within the meaning of s. 4 of the
Health Care
    Consent Act
. The Boards order provided that the appellant was incapable
    with respect to treatment with psychotropic medication.

[2]

The evidence supported a finding that due to mental illness the
    appellant was incapable of appreciating the reasonably foreseeable consequences
    of a decision or lack of a decision respecting treatment.

[3]

The issue raised by the appellant at the hearing related to his concern
    regarding the side-effects of the drug Clozapine. The respondents evidence was
    that he considered that Clozapine might improve the appellants condition but
    that he did not propose to administer that drug. He was clear that he sought
    only to treat the appellant with the drug Abilify (or the generic
    Aripiprazole), and not Clozapine.

[4]

During the hearing, the Board limited the appellants proposed
    cross-examination of the respondent and introduction of material through
    cross-examination as to the side effects of Clozapine. The Board ruled that the
    proposed cross-examination and the material were irrelevant given the
    respondents proposed treatment of the appellant.

[5]

The appellant seeks a new hearing on grounds of denial of procedural
    fairness or, in the alternative, a narrowing of the order to provide for
    treatment by administration of Abilify.

[6]

During the hearing of this appeal, counsel for the respondent conceded
    that, given the position taken by the respondent before the Board, it would be
    open to this court to narrow the order to refer to Abilify.

[7]

While the appellant maintains his position that a new hearing should be
    ordered on grounds of procedural fairness, it is our view that if the order is
    narrowed, the mischief of the limitation imposed by the Board on the
    cross-examination and material regarding the side-effects of Clozapine is cured
    and a new hearing is not required.

[8]

In fairness to the Superior Court appeal judge, we note that it does not
    appear that the option of narrowing the order was argued before him.

[9]

Accordingly, the appeal is allowed in part and pursuant to s. 80 of the
Health
    Care Consent Act
, the order of the Consent and Capacity Board is amended
    by deleting psychotropic medication and substituting Aripiprazole.

Robert J. Sharpe
    J.A.

Gloria
    Epstein J.A.

K.
    van Rensburg J.A.


