In Adsett v. Labelle (Ont CA, 2024) the Ontario Court of Appeal considered the 'prior capable wish' argument, an attempt to restrict ordered treatment:
[3] The appellant’s argument before the Superior Court was that, for various reasons, the finding of incapacity should be quashed retroactively. The Superior Court appeal judge, Morgan J., characterized the appellant’s position as essentially this: to allow the appeal and find that the appellant was capable in October 2020 (and did not want to be treated with antipsychotic medication), would be a prior capable wish that a substitute decision maker would be required to follow were she found to be incapable in the future. Relying on this court’s decision in Dickey v. Alexander, 2016 ONCA 961, Morgan J. rejected the “prior capable wish” argument, concluding that the focus on appeal is the appellant’s “capacity at the time the Board’s hearing was made”: Dickey, at para. 10-11. Morgan J., again relying on Dickey, further found that any impact the finding of incapacity might have on a future substitute decision maker is speculative and “well beyond the currently visible horizon”.
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