



COURT OF APPEAL FOR ONTARIO

CITATION: Barker v. Patel, 2018 ONCA 926

DATE: 20181121

DOCKET: C63509 / C64668

Rouleau, Paciocco and Nordheimer 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, as amended.

BETWEEN

Craig Barker

Applicant (Appellant)

and

Dr. Kiran Patel

Respondent (Respondent)

and

The Empowerment Council

Intervener

AND IN THE MATTER OF an
    application under subsection 32(1) of the
Health Care Consent Act, 1996
,
    S.O. 1996, c. 2, Schedule A, as amended.

BETWEEN

Justin Mitchell

Applicant (Appellant)

and

Dr. T. K. Banik

Respondent (Respondent)

and

The Empowerment Council

Intervener

Kelly Bryan, appearing as
amicus curiae
on the
    appeal of Craig Barker

Kathryn Hunt, for the respondent, Dr. Kiran Patel

Joanna Weiss and Sarah Latimer, for the appellant,
    Justin Mitchell

David Litwin and Adam Patenaude, for the respondent, Dr.
    T. K. Banik

Anita Szigeti and Meaghan McMahon, for the intervener,
    The Empowerment Council

Heard: October 26, 2018

On appeal from the order of Justice Peter J. Cavanagh of
    the Superior Court of Justice dated November 20, 2017, with reasons reported at
    2017 ONSC 6931, and the order of Justice Cory A. Gilmore of the Superior Court
    of Justice dated February 16, 2017, with reasons reported at 2017 ONSC 1123.

Nordheimer J.A.:

[1]

These two appeals were argued together as they raise a common issue with
    respect to the proper approach to ancillary treatment under s. 23 of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Sched. A (
HCCA
). For
    the reasons that follow, I would dismiss the appeals in part and allow them in
    part.

A.

Background

[2]

Both of the appellants were found incapable of consenting to treatment
    by decisions of the Consent and Capacity Board (the Board). They each
    appealed those findings to the Superior Court of Justice. Both of those appeals
    were dismissed. While there is a common issue between the two cases because of
    the issue surrounding s. 23 of the
HCCA
, there are factual differences
    between the two cases that I will explain briefly.

Craig Barker

[3]

Mr. Barker was 42 years old at the time of the hearing.
[1]
The respondent, Dr. Kiran Patel, was Mr. Barker's attending physician at the
    Centre for Addiction and Mental Health in Toronto ("CAMH").

[4]

Mr. Barker was arrested for assaulting a security guard at the
    University of Toronto. He was found unfit to stand trial. Mr. Barker was initially
    treated at the Waypoint Centre for Mental Health Care but was ultimately
    transferred to CAMH.

[5]

Mr. Barker was determined by Dr. Hartfeil (working under the supervision
    of Dr. Patel) to be incapable with respect to two classes of medication: (a)
    antipsychotic medication, orally or in injectable form; and (b) medication to
    combat antipsychotic medication side effects, orally or in injectable form.

[6]

Mr. Barker appealed this determination to the Board. The Board confirmed
    the determination.

[7]

The evidence before the Board showed that Mr. Barker denies that he
    suffers from a mental illness. He consequently refuses to accept treatment. The
    attending psychiatrist determined that Mr. Barker does suffer from a mental
    illness and that his mental illness would be ameliorated, if not resolved, by
    treatment.

[8]

The attending psychiatrist sought to treat Mr. Barker with antipsychotic
    medications to address the mental illness problem and also sought to treat Mr.
    Barker with any necessary medications to address side effects to the antipsychotic
    medication should such side effects materialize.

Justin Mitchell

[9]

Mr. Mitchell is 28 years old. He lives with his parents. Mr. Mitchell was
    diagnosed with schizophrenia and has a long history of treatment and hospital
    admissions.

[10]

On
    June 8, 2016, Mr. Mitchell was brought to the emergency department of the
    Brampton Civic Hospital by police after acting in an aggressive and threatening
    manner at home. He was assessed by a psychiatrist, Dr. El-Kholi, who described
    him as "poorly kept and quite disheveled", "paranoid with
    prominent delusional thinking", and with "impaired insight and poor
    judgment." She questioned his capacity to consent to treatment.

[11]

On
    June 15, 2016, Mr. Mitchell was assessed by the respondent, Dr. T.K. Banik. He
    noted that Mr. Mitchell had been "easily angered, frustrated, irritable,
    demanding, confrontational and verbally abusive towards staff." Mr.
    Mitchell had required anti-anxiety medication to control his behaviour and at
    times required seclusion.

[12]

Unlike
    Mr. Barker, Mr. Mitchell was aware that he suffered from a mental illness. However,
    Mr. Mitchell vacillated between accepting that medication would help his
    illness and denying that it would help. Mr. Mitchell appeared to relate his
    illness to issues with his parents, and living at home, although it appears
    that Mr. Mitchell had never sought to live elsewhere.

[13]

Dr.
    Banik determined that Mr. Mitchell was incapable of consenting to treatment
    because of "his inability to appreciate the reasonably foreseeable
    consequences of his treatment or lack of treatment." Dr. Banik sought to
    treat Mr. Mitchell with an injectable antipsychotic medication. Mr. Mitchell
    had received injectable antipsychotic medications in the past.

[14]

The
    Board confirmed the incapacity determination made by Dr. Banik.

B.

Analysis

[15]

Mr.
    Mitchells capacity to consent to primary treatment is not before us. That
    issue was resolved subsequent to the judgment under appeal. The sole matter Mr.
    Mitchell raises before us is the ancillary treatment issue.

[16]

Mr.
    Barker, however, appeals the reasonableness of the finding that he was
    incapable of consenting.  Like Mr. Mitchell, he also raises the ancillary
    treatment issue. Before addressing the common issue of ancillary treatment, I
    will begin with Mr. Barkers challenge to the Boards findings, confirmed on
    appeal, that he was incapable of consenting to the proposed primary treatment.

Incapacity

[17]

The
    test for incapacity under the
HCCA
is two-fold. As set out in
Starson
    v. Swayz
e
, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 78, the test
    requires, first, that a person must be able to understand the information that
    is relevant to making a treatment decision and, second, that a person must be
    able to appreciate the reasonably foreseeable consequences of the decision or
    lack of one. It was the second of these two requirements that was in issue.

[18]

The
    standard of review of this conclusion is reasonableness:
Starson
, at
    para. 88.

[19]

Mr.
    Barker has not established that the Boards decision, that he lacked the
    capacity to appreciate the foreseeable consequences of his treatment, was
    unreasonable. The Board had before it uncontradicted psychiatric evidence. The
    Board concluded that Mr. Barker was unable to appreciate the consequences of
    refusing treatment because he refused to acknowledge that he had a mental
    illness. In other words, while Mr. Barker appreciated that people with mental
    illnesses would benefit from treatment, he refused to apply that reality to
    himself because, in his mind, he did not have a mental illness.

[20]

The
    Board concluded that Mr. Barker lacked the capacity to consent to treatment. That
    finding was reasonable on the evidence that was before the Board. The
    reasonableness of that finding was sustained on appeal, with complete and
    thorough reasons by the judge on appeal. There is no basis for this court to
    interfere with that conclusion.

Section 23

[21]

The
    common issue that is raised in these appeals involves the operation of s. 23 of
    the
HCCA
. The first question that arises is whether, before necessary
    and ancillary treatment is administered, there must be, in addition to a
    finding that a person is incapable of consenting to the primary treatment, a
    separate finding that the person is also incapable of consenting to necessary
    and ancillary treatment.

[22]

I
    begin by setting out the wording of s. 23, which reads:

Authority to consent to a
    treatment on an incapable persons behalf includes authority to consent to
    another treatment that is necessary and ancillary to the treatment, even if the
    incapable person is capable with respect to the necessary and ancillary
    treatment.

[23]

Section
    23 is to be interpreted, first and foremost, based on the plain wording of the
    section with the words used in their grammatical and ordinary sense:
Rizzo
    & Rizzo Shoes Ltd. (Re)
,
[1998] 1 S.C.R. 27 at para. 21. What the
    plain wording of s. 23 provides is that, once a determination is made with
    respect to the incapacity of an individual to consent to treatment, the
    resulting authority to administer treatment carries with it the authority to
    administer another treatment that is necessary and ancillary to the primary
    treatment. No further or separate finding of incapacity is necessary for that
    authority nor is any separate order required. Indeed, s. 23 expressly provides
    that the authority results even if the incapable person is capable with
    respect to the necessary and ancillary treatment. In my view, the wording of
    the section could not be clearer.

[24]

This
    interpretation of s. 23 not only accords with the plain wording of the section,
    it also accords with common sense. Side effects from the primary treatment will
    often not be known until the treatment is administered. Different individuals
    may react differently to a given medication. Different individuals may tolerate
    side effects better than others. If not treated, side effects may undermine the
    efficacy of the primary treatment. Treating psychiatrists must have the ability
    to respond to these unknowns. On this point, I agree with Cavanagh J. where he
    said, at para. 45:

I agree with the respondent that
    health care professionals would be in a very challenging clinical situation if
    they are able to administer primary treatment to a patient who is incapable
    with respect to such treatment without the ability to address potentially
    harmful side effects through administration of ancillary treatment for side
    effects. Section 23 of the
HCCA
addresses this very circumstance.

[25]

The
    appellants acknowledge that s. 23 appears to provide authority to administer
    necessary and ancillary treatment, even if the person is capable of consenting
    to such treatment but nonetheless refuses to consent. The appellants urge us to
    find that, notwithstanding the language of s. 23, an additional assessment of
    incapacity is required before necessary and ancillary treatment can be
    authorized. They suggest that this additional assessment could be made at the
    time that the capacity for primary treatment is determined, if the evidence is
    available. Alternatively, they suggest that this assessment should be made at a
    separate hearing when the ancillary treatment issue actually arises. I would
    resist the appellants urgings in this regard.

[26]

Given
    the plain wording of s. 23, I do not agree that a separate finding, that the
    person is also incapable of consenting to necessary and ancillary treatment, is
    required.

[27]

A
    conclusion that a separate assessment of incapacity for necessary and ancillary
    treatment is required, carries with it a number of practical difficulties. For
    one, it will often not be apparent what ancillary treatment is necessary until
    the primary treatment is undertaken. To require a finding of incapacity in
    advance would engage the Board in a series of speculative analyses that would
    complicate and prolong the hearing on the principal issue and which may be
    entirely pointless. On the other hand, if the requirement for an incapacity
    determination was left to the time when the necessary and ancillary treatment
    becomes apparent, it would potentially greatly delay the administration of that
    treatment. Any such finding would be subject to appeal. I note that both of
    these cases have now been engaged on the issue of primary treatment for about
    two years. Indeed, we are told that Mr. Barker has yet to receive any of the
    treatment that was authorized some 22 months ago.

[28]

The
    intervener takes a different approach by inviting us to establish a very narrow
    definition of what ancillary treatments would properly be considered
    necessary such that s. 23 could apply. I would decline that invitation. The
    word necessary is a clear one. Treating physicians are in the best position
    of determining whether an ancillary treatment is necessary in individual cases
    and they still require the consent of the substitute decision-maker before
    administering such treatments. Further, this court should avoid setting down
    strict rules regarding a subject that may arise in a wide variety of situations
    and which will very much depend on the medical circumstances in existence at
    the time. Indeed, the various scenarios postulated by the intervener
    demonstrate this very point.

[29]

The
    bottom line is that, once a person is found to be incapable of consenting to
    treatment, treatment may be administered with the consent of a substitute
    decision-maker. The Legislature has determined that, as part of the overall
    scheme of the
HCCA
, the authority to consent to administering the
    primary treatment carries with it authority to consent to administering other
    treatment, if that other treatment is necessary and ancillary. That is the
    objective of s. 23. While there may be other avenues open to the incapable
    person to challenge the administration of any such treatment, that is not an
    issue that I have to address in these cases.

[30]

The
    second question, which inevitably overlaps with the first, involves the practice
    adopted in a number of cases whereby a person found incapable of consenting to
    the primary treatment will then, by virtue of that finding alone, also be found
    incapable of consenting to ancillary treatment. Indeed, in both of the cases
    before us, the Boards orders referred to both primary treatment and ancillary
    treatment.

[31]

The
    appellants contend that the Board erred in making a finding of incapacity with
    respect to ancillary treatment without engaging in a separate inquiry to
    determine whether the evidence would justify such a finding. The Board has
    apparently proceeded in this way in many cases. This practice is reflected, for
    example, in
Mladenovic v. Papatheodorou
, 2015 ONSC 754, where Pollak
    J. said, at para. 14:

The relevant jurisprudence holds
    that if a person is found incapable with respect to a primary treatment, they
    are also incapable with respect to its ancillary treatments, which include
    side-effect medications. The Respondent therefore submits that if the finding
    that Mr. Mladenovic is incapable with respect to treatment with antipsychotic
    medication is upheld, then pursuant to s. 23 of the
HCCA
he is also
    effectively incapable with respect to treatment with ancillary and side-effect
    medications. I agree with this analysis.

[32]

Unfortunately,
    Pollak J. does not identify the relevant jurisprudence to which she refers
    but, in any event, as I shall explain, I disagree with the conclusion that,
    pursuant to s. 23, a finding of incapacity for primary treatment carries with
    it a finding of incapacity for necessary and ancillary treatment. I do so
    because, in my view, it conflicts with the plain wording of s. 23. It follows
    that I disagree with Cavanagh J.s adoption of this approach in his decision in
    Mr. Barkers case, particularly his conclusion, on this point, at para. 47.

[33]

It
    follows from my conclusion with respect to the proper interpretation of s. 23
    that, absent unusual circumstances, it is unnecessary and inappropriate for the
    Board to make findings as to the persons capacity to consent to necessary and ancillary
    treatment. Rather, the Board should allow that issue to be addressed through
    the application of s. 23. That is not to say, however, that there will never be
    situations where the Board will need to consider necessary and ancillary
    treatments.

[34]

For
    example, where the issue of certain necessary and ancillary treatments is closely
    related to, and interwoven with, the primary treatment, the Board will
    appropriately consider any implications that the necessary and ancillary
    treatments might have on its conclusion on the issue of incapacity with respect
    to the primary treatment. This would not, however, involve a separate finding
    regarding capacity with respect to necessary and ancillary treatment. Section
    23 renders any such finding unnecessary.

[35]

In
    light of that conclusion, it was unnecessary for the Board to make findings
    about capacity to consent to necessary and ancillary treatments. The inclusions
    of findings of incapacity to consent to such treatments, in the orders, appear
    to have been made based solely on the fact that the treating physicians
    included the necessary and ancillary treatments in their capacity assessments
    on the primary treatments and without distinguishing between the two.  Indeed,
    I note that in the case of Mr. Barker, the Board said, in its reasons, that it
    did not address capacity for the side effects medication.  And yet, in both
    cases, the formal orders of the Board include the necessary and ancillary
    treatments in the affirmation of the physicians findings with respect to
    incapacity for the treatments collectively.
[2]
This result appears to be based on an erroneous interpretation of s. 23 that
    finds incapacity on the primary treatment to include incapacity for necessary
    and ancillary treatments.

[36]

The
    orders should not have gone beyond a finding of incapacity to consent to the
    primary treatments.  To the degree that the orders affirm a finding of
    incapacity for necessary and ancillary treatments, they are in error.  Both
    appeals must be allowed to that extent.

Mootness

[37]

Before
    concluding, I must address the argument advanced by Dr. Banik that Mr.
    Mitchells appeal is moot. Dr. Banik sought leave to file fresh evidence
    consisting of two subsequent orders of the Board, one of which (July 2017) found
    Mr. Mitchell to be capable of consenting to treatment and a later one (April
    2018) which found him once again incapable of consenting. Mr. Mitchell does not
    oppose the fresh evidence motion.

[38]

While
    I would grant leave to file the fresh evidence, I reject the argument that the
    appeal is moot such that this court ought not to entertain it. As I have
    already mentioned, the Boards original order provided authority both for
    primary treatment and ancillary treatment. The most recent order of the Board
    addressed only primary treatment. Consequently, it is not clear what effect the
    most recent order has on this second aspect of the original order. It is thus
    not clear that the issue raised by the original order regarding ancillary
    treatment is moot. Further, and in any event, the central issue is before us in
    Mr. Barkers appeal, so no judicial resources are conserved by finding the
    issue to be moot:
Borowski v. Canada (Attorney General)
,
[1989]
    1 S.C.R. 342, at paras. 34-39.

C.

Conclusion

[39]

The
    appeals are allowed and the orders finding incapacity regarding necessary and
    ancillary treatments are set aside. The appeals are otherwise dismissed. There
    will be no order as to costs.

Released: November 21, 2018

I.V.B.
    Nordheimer J.A.

I agree. Paul
    Rouleau J.A.

I agree. David
    M. Paciocco J.A.





[1]

Mr. Barker did not retain counsel for this appeal.
Amicus
    curiae

was appointed
    by order dated January 8, 2018.
Amicus curiae

also appeared for Mr. Barker
    on his appeal in the Superior Court of Justice.



[2]

I note, on this point, that the Boards order

appears to be based on a standard form.


