



COURT OF APPEAL FOR ONTARIO

CITATION: Murray v. Alatishe, 2019 ONCA 596

DATE: 20190712

DOCKET: C63429

Tulloch, Benotto and Huscroft JJ.A.

AND IN THE MATTER OF an appeal from a decision of the Consent
    and Capacity Board pursuant to the
Health Care Consent Act
, S.O. 1996,
    c. 2, Schedule A, as amended

AND IN THE MATTER OF JASON MURRAY, a patient at the St.
    Josephs Healthcare Hamilton  West 5th Campus, Hamilton, Ontario

BETWEEN

Jason Murray

Respondent (Appellant)

and

Dr. Yuri Alatishe

Applicant (Respondent)

Jason Murray, acting in person

Suzan E. Fraser, appearing as
amicus curiae

Janice E. Blackburn, for the respondent

Heard: May 21, 2019

On
    appeal from the order of Justice Patrick J. Flynn of the Superior Court of
    Justice, dated February 6, 2017, dismissing the appellants appeal from the
    decision of the Consent and Capacity Board, dated September 17, 2016, with
    reasons reported at 2016 CanLII 95333.

REASONS FOR DECISION

(1)

Introduction

[1]

The appellant, Mr. Jason Murray, appeals against an order of the
    Superior Court of Justice dated February 6, 2017, which dismissed his appeal
    from a decision of the Consent and Capacity Board, dated September 17, 2016,
    that found him incapable to consent to treatment.

[2]

The appellant is a 36 year old man. He has a college diploma, was
    gainfully employed for many years in a position of significant responsibility,
    and had a long-term girlfriend with whom he was very close. He has diverse
    interests in fishing, guiding, music, and filmmaking, and is passionate about
    sharing his views about contemporary political issues. As the Superior Court
    appeal judge found, he presents as articulate and engaging.

[3]

However, the appellant fell on hard times. He was first diagnosed with
    psychotic delusional disorder in 2013 and had been admitted to hospital on many
    occasions since 2013 as a result of his mental condition. Since 2015, the
    appellant has been the subject of inpatient court-ordered assessment concerning
    various criminal charges. He was found not criminally responsible on July 8,
    2016. He was detained in the forensic assessment unit of St. Josephs
    Healthcare Hamilton  West 5 Campus, until his first Review Board hearing.

[4]

On September 12, 2016, the respondent psychiatrist, Dr. Yuri Alatishe,
    found the appellant incapable of making treatment decisions with respect to antipsychotic
    medications, mood stabilizers, benzodiazepines and anticholinergic medications,
    among others. These medications are the proposed treatment prescribed to
    address the appellants psychotic delusional disorders, persecutory type, and
    potential side effects.

[5]

The appellant applied to the Board for a hearing. The hearing took place
    on September 16, 2016. The appellant insisted on self-representing at the
    hearing and the Board permitted the appellant to do so.

[6]

On September 17, 2016, the Board issued a decision that confirmed the
    respondents finding that the appellant was incapable of consenting to treatment
    with respect to medications pursuant to s. 4(1) of the
Health Care Consent
    Act, 1996
, S.O. 1996, c. 2, Sch. A (
HCCA
). The Board accepted
    that the appellant was able to understand the information that is relevant to
    making a decision about the treatment. However, it found that the appellant was
    not able to appreciate the reasonably foreseeable consequences of a decision or
    lack of decision about the proposed treatment. As the appellant failed to
    acknowledge that he suffered from a mental condition, he was unable to evaluate
    the potential benefits and risks of the proposed treatment.

[7]

Following the Boards decision, the appellant retained counsel. Counsel
    filed a notice of appeal to the Superior Court and submitted a factum on the
    appellants behalf. The appellant then terminated the retainer and acted in
    person on the Superior Court appeal. The Superior Court dismissed the appeal,
    ruling that the hearing was procedurally fair and that the Boards decision was
    reasonable.

[8]

The appellants grounds of appeal can be summarized as follows:

1.

The Consent and Capacity Board hearing was procedurally unfair;

2.

The Consent and Capacity Board decision was unreasonable; and

3.

Counsel who represented the appellant during his appeal to the Superior
    Court was ineffective.

[9]

The appellant has also sought to adduce fresh evidence. This evidence
    falls into four categories. The first category tends to show that the appellant
    understood the basic chemicals that the medications contain. The second
    category contains the appellants arguments about his three grounds of appeal.
    The third category pertains to the ineffective assistance of counsel claim. The
    fourth category tends to show that the appellant does not presently suffer from
    a mental condition.

[10]

In
    addition, the court has appointed
amicus curiae
to assist the court on
    the appellants behalf.
Amicus
has made submissions to the court on
    the first two grounds of appeal raised by the appellant, namely:

1.

The Consent and
    Capacity Board hearing was procedurally unfair; and,

2.

The Consent and Capacity Board decision was unreasonable.

[11]

The
    respondent psychiatrist, Dr. Yuri Alatishe, submits that the Superior Court
    correctly applied the law and reasonably dismissed the appellants appeal. He
    further submits that the Board made no errors in interpreting the legal test
    for capacity, properly applied that legal test to the evidence before it, and
    did not misapprehend the evidence.

(2)

Procedural Fairness

[12]

Section
    4(1) of the
HCCA
outlines a two-step test for capacity to consent to
    treatment:
Starson v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at
    para. 78. First, a person must be able to understand the information that is
    relevant to making a treatment decision. Second, a person must be able to
    appreciate the reasonably foreseeable consequences of the decision. This second
    element requires a person to be able to apply the relevant information to her own
    circumstances and to be able to weigh the foreseeable risks and benefits of a
    decision or lack thereof:
Starson
, at para. 78.

[13]

Amicus
submits that the hearing was procedurally unfair because the Board itself did
    not explain this two-step test for capacity to the appellant. Neither
amicus
nor the appellant challenges the correctness of the Boards decision to permit
    the appellant to self-represent. However,
amicus
submits that the fact
    that the appellant was unassisted by counsel made it incumbent on the Board to
    ensure the appellant understood the two-part test.
Amicus
argues that
    while the Board repeatedly told the appellant that the issue was about
    capacity, the Board never defined the test for capacity to the appellant, nor
    did the notice of hearing adequately inform the appellant of the applicable
    test.
Amicus
also submits that the Board did not comply with s. 8 of
    the
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, and that
    Board members interruptions of the appellant occasioned procedural unfairness.

[14]

We
    disagree. The Boards failure to explain the two-part test to the appellant did
    not undermine the appellants ability to know the case he had to meet. The
    Boards summary that the respondent completed was provided to the appellant,
    and this document clearly outlined the two-part test and how the respondents
    evidence applied to it. In the appellants fresh evidence, he states that he
    received the Boards summary document only five minutes before the hearing and
    did not have enough time to review it. It is clear from the evidence, however,
    that the appellant was able to adequately review the document. The appellant
    stated at the hearing that everyones had a chance to go over [the document].
    He also quoted from the last page of the summary when asking the respondent a
    question in cross-examination. In addition, the respondent outlined the
    two-part test in his opening submissions and he restated and explained the
    two-part test when the appellant cross-examined him. In these circumstances,
    the Board was not required to take additional steps to ensure the appellant
    understood the legal test.

[15]

Our
    finding that the appellant was able to adequately review the Boards summary document
    that the respondent completed leads us to reject the argument by
amicus
that the Board did not comply with s. 8 of the
Statutory Powers Procedure
    Act
. Section 8 provides as follows: [w]here the good character, propriety
    of conduct or competence of a party is an issue in a proceeding, the party is
    entitled to be furnished prior to the hearing with reasonable information of
    any allegations with respect thereto. It is unnecessary to decide whether the
    issue of incapacity put the good character, propriety of conduct or competence
    of the appellant at issue. Even assuming that it did, our finding that the
    appellant was able to adequately review the document prior to the hearing
    demonstrates that the Board complied with s. 8 because the appellant received
    reasonable information of the respondents allegations before the hearing
    commenced.

[16]

Finally,
    the Board members interruptions of the appellant did not occasion procedural
    unfairness. The Board members interrupted the appellant with questions that
    attempted to help him focus on the issue of capacity. The appellants comments
    in response to questions indicate that he understood the questions were an
    attempt to assist him. The interventions are consistent with the Boards duty
    to assist the appellant to focus on the relevant issues.

(3)

Reasonableness of the Boards Decision

[17]

The
    standard of review is reasonableness:
Starson
, at para. 88. Absent a
    legal error, the Boards decision is owed considerable deference on appeal.

[18]

The
    Board made no legal errors and reasonably concluded that the appellant was
    incapable with respect to treatment. The Board correctly stated the two-part test
    for capacity from s. 4(1) of the
HCCA
. The Board then applied that
    test to find that the appellant did not meet the second step, since he was not
    able to apply the relevant information to his circumstances to weigh the
    foreseeable risks and benefits of a decision.

[19]

We
    realize that this conclusion may be difficult for the appellant to accept. The
    appellant is very intelligent. It was uncontested before the Board that he was
    able to understand the information relevant to making a decision about the
    treatment. The appellant also did show an appreciation of the risks of the
    proposed medication.

[20]

However,
    a patient who does not recognize he is affected by a mental condition may not
    be able to recognize the potential benefits of treatment even if he does have a
    rational concern about side effects:
Gajewski v. Wilkie
, 2014 ONCA
    897, 123 O.R. (3d) 481, at para. 53. The appellant made clear in his evidence that
    he did not recognize that he could be affected by the manifestations of a
    mental condition. He stated that he was completely fine. Accordingly, it was
    reasonable for the Board to accept the respondents evidence that the appellant
    was unable to appreciate the consequences of his decision because he was unable
    to appreciate the potential benefits of the treatment.

(4)

Ineffective Assistance Claim

[21]

The
    appellant submitted considerable fresh evidence on the ineffective assistance
    of counsel claim. The court has admitted this evidence to evaluate the claim.

[22]

With
    respect to the appellants third ground of appeal, that the appellant received
    ineffective assistance of counsel,
amicus
submits that the appellant
    was adequately assisted by counsel. Furthermore,
amicus
points out
    that counsel who assisted the appellant was retained for a very limited purpose
    after the Boards decision was delivered and prior to the hearing of the
    Superior Court appeal. We are not persuaded that counsels conduct was
    ineffective. In any case, there was the no prejudice to the appellant. He was
    able to present his own arguments to the Superior Court. While he claims that
    his counsel did not advise him that he could present fresh evidence to the
    Superior Court, he has presented ample fresh evidence to this court. We agree
    with both
amicus
and the respondents submissions and would not give
    any effect to the appellants ineffective assistance of counsel argument.

(5)

Fresh Evidence

[23]

We
    agree with the proposed treatment of the appellants fresh evidence by
amicus
and the respondent. The first category evidence would not affect the result
    because the Board accepted that the appellant understood the information
    relevant to making a treatment decision. The second category evidence is
    properly argument and we have considered it as such. We have considered the
    third category evidence under the appellants ineffective assistance claim. The
    fourth category evidence tends to show that the appellant does not presently
    suffer from a mental condition. However, this evidence would not affect the
    result. As the Supreme Court held in
Starson
, at para. 119, a court
    reviewing a decision of the Consent and Capacity Board is not concerned with
    the patients present mental capacity. Instead, the focus of the appeal is the
    reasonableness of the Boards finding in relation to the patients capacity at
    the time of the hearing.

(6)

Disposition

[24]

In
    all the circumstances, we are not satisfied that the appellant has met his onus
    of demonstrating that the Board hearing was unfair, that the decision of the
    Board confirming the appellants incapacity was unreasonable, or that the
    appellant received ineffective assistance of counsel. Accordingly, the appeal
    will be dismissed without costs.

M. Tulloch J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


