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Mental Health - Capacity - General. SBJ v. Ali
In SBJ v. Ali (Div Court, 2023) the Divisional Court considered an appeal under s.80(1) of the Health Care Consent Act, 1996 from a decision of the Consent and Capacity Board, which found the appellant "not capable of consenting to treatment in the form of mood stabilizing and antipsychotic medication".
In these quotes the court considers 'capacity' issues:a. The Statutory Test
[14] Section 4(1) of the Health Care Consent Act 1996, S.O. 1996, c.2, Sch. A (“the Act”) sets out the test for capacity to consent to treatment:A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. [15] The test under s. 4(1) of the Act has two parts: 1) the ability to understand the information that is relevant to making a treatment, admission or personal assistance service decision, and 2) the ability to appreciate the reasonably foreseeable consequences of the decision.
[16] Under s. 4(2) of the Act, a person is presumed to be capable with respect to treatment. A diagnosed mental illness does not mean a person is incapable of consenting to treatment. It is important to recognize the context of proceedings such as this, which have been recognized as concerning matters of fundamental human rights and bodily autonomy. As the Court of Appeal has noted, “[f]ew medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects.”: See Fleming v. Reid, 1991 CanLII 2728 (ON CA), at pp. 21 and 22.
b. Judicial Interpretation of the Test for Capacity
[17] In Starson v. Swayze 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722, the Supreme Court of Canada considered the application of the test for capacity under the Act. The court found that the first branch of the test assesses an individual’s intellectual understanding of relevant information as it applies to their treatment. While an individual need not agree with a particular diagnosis, they must be able to recognize the possibility that [they are] affected by that condition: Starson at para. 79.
[18] The second branch considers the ability of an individual to evaluate the information and appreciate the consequences of their decision. It does not require that the individual choose a particular outcome as a result of the evaluation of the information. Capable individuals may make sub-optimal, even unreasonable decisions concerning treatment. The test is not the reasonableness of the choice, but the capacity to make that choice. The test balances the value of individual autonomy with the desirability of treatment and health: Starson at paras. 75-76.
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Issue 2: Did the Board misapply the second branch of the test by requiring that SBJ make a treatment decision that was in his best interests?
[40] The contours of the second part of the test for capacity to consent to treatment under the Act have been considered at the appellate level in Ontario. An individual who was able to understand side effects and the risks of medication was nevertheless found not be capable of consenting given his evidence that he was “perfectly fine” and not experiencing symptoms of a mental disorder: Murray v. Alatishe, 2019 ONCA 596 (CanLII) at para. 20. The Court of Appeal found that the Board received evidence that the appellant did not understand he could be affected by mental illness. It was reasonable for the Board to conclude that he could not appreciate the benefits of treatment and without that ability, could not assess the consequence of his treatment decision.
[41] In Gajewski v. Wilkie, the Court of Appeal upheld the Board’s finding of lack of capacity in circumstances where the evidence supported a finding that the appellant did not truly believe that he suffered from delusions. As a result, he was not able to apply the relevant information to his circumstances and was not able to appreciate the reasonably foreseeable consequences of taking or not taking the proposed medication.
[42] In B.L. v. Pytyck, 2021 ONCA 67 (CanLII), the Court of Appeal reviewed and reiterated the test from Starson as applied in Murray and in Gajewski, and several other decisions. The court in B.L. observed at para. 26 that “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 person’s 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.”
[43] Mr. McIntyre, for Dr. Ali, submits that the Board found that SBJ did not have an appreciation of the depth of his disorder, which is sufficient to meet the second branch of the test. It found that he denied or minimized those symptoms. This finding is supported by both the documentary and oral evidence of Dr. Ali.
[44] Ms. Perez submits that the Board erred by importing a best interest standard into the test for capacity during its credibility analysis. This included the Board’s observations (excerpted above) that SBJ was not “earnest” about his treatment and that he was engaged in “gamesmanship” with his treatment team. This portion of the reasons appears to import a finding of SBJ taking intentionally tactical positions during his treatment discussions. To the extent that the Board intended that SBJ was not capable of consenting to treatment if he made his decision for reasons other than “earnestly” wishing to become healthy, I agree with Ms. Perez that this would suggest a best interest approach and constitute an error on the part of the Board. That is not the test: SBJ may analyze the risks and benefits, including the potdo not read these portions of this paragraph in isolation. The Board framed the impugned observations about SBJ’s discussions with Dr. Ali as a credibility analysis and concluded that it was not incumbent on Dr. Ali to keep revisiting these issues with SBJ given its finding that he was playing games with Dr. Ali. The Board’s findings on the therapeutic relationship and SBJ’s engagement with Dr. Ali are entitled to deference. More importantly, the Board continued and made findings that that SBJ did not appreciate the depth of his disorder and minimized his conduct which included sexually inappropriate acts and violent behaviour arising from his mental disorder. These findings suggest that the Board was alive to the correct test and applied it as it continued with its reasons.
[46] Ms. Perez also submits that the Board’s reasons import a best interests standard in referring to the evidence about side effects as a “red herring” or as Ms. Perez aptly described it, an irrelevant matter, or a “distraction.” Side effects often play a role in any patient’s decision to consent to treatment. The “cost” of a given medication in the form of deleterious side effects may outweigh the benefits. Dr. Ali conceded there had been issues with side effects experienced by SBJ in the past, and that many of the medications he had been given had lethargy as a side effect. Side effects are thus a valid part of the calculus but given the Board’s findings,it was not indicative of error to describe the question of side effects as a “red herring.” Rather, it was a shorthand way of putting the question of side effects to one side and bringing the focus back, in the succeeding paragraph of the reasons, to the question of SBJ’s appreciation of the impact of his mental disorder on his behaviour, his symptoms and his current placement on a secure ward due to those symptoms and behaviours. I would not give effect to the submission that the portion of the Board’s reasons dealing with side effects indicates that the Board improperly applied a best interests standard or failed to apply the second branch of the test from the Act.
[47] Overall, the Board’s finding that SBJ failed to appreciate the nature of his disorder, based on the documentary and oral evidence, supports its reasonable conclusion that SBJ was not capable of consenting to treatment. . S.H. v. Prakash
In S.H. v. Prakash (Ont CA, 2023) the Court of Appeal considered the appellant's religious beliefs and his mental capacity in appeals from a Consent and Capacity Board ruling:[12] Counsel for the appellant makes a second argument. She contends that the CCB and the appeal judge failed to take into account Charter values, in particular, the right to freedom of religion, when applying the test for capacity laid down in s. 4(1) of the Act: see Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 55-56.
[13] There is no question that many, but not all, of the beliefs manifested by the appellant could properly be described as religious in nature. The sincerity of those beliefs is not questioned. The CCB concluded that the beliefs described by the appellant were a product of his mental condition. The medical evidence supported that finding. The appeal judge found no basis upon which to interfere with that finding. Nor do we.
[14] Neither the CCB, nor the appeal judge, expressly considered the argument that the court should factor the Charter values reflected in the right to freedom of religion into its application of the capacity test in s. 4(1) of the Act. It does not appear that this argument was expressly made in either venue.
[15] Both the CCB and the appeal judge appreciated, as is clear from their review of the evidence, that a significant component of the appellant’s belief system generating his resistance to treatment had a strong religious tone. However, both the CCB and the appeal judge were satisfied that the belief system and other conduct engaged in by the appellant was the product of a mental condition. That condition produced persecutory and religious delusions, grandiose delusions, poor insight, and tangential and disorganized thinking. The evidence of the appellant’s professed religious beliefs was a part of the broader picture of the appellant’s mental state developed in the clinical assessments of the appellant.
[16] The CCB found, and the appeal judge affirmed, that the appellant:. Suffered from a mental delusional disorder;
. The appellant’s beliefs and thought process were a manifestation of his mental condition;
. The appellant was unable to recognize that his thought process and beliefs were potentially a manifestation of his mental condition; and
. Because the appellant could not see that possibility, he could not engage in the cost/benefit considerations necessary to an appreciation of the reasonably foreseeable consequences of either taking or refusing the medication. [17] On the findings, the religious nature of some of the appellant’s beliefs and explanations for his conduct had no impact on the question of incapacity as defined in s. 4(1) of the Act. The appellant’s inability to appreciate that his beliefs and actions may be the product of a mental condition rendered him unable to appreciate the reasonably foreseeable consequences of taking or refusing the treatment. Characterizing the beliefs manifested as a consequence of his mental condition as religious could not affect the ultimate finding of incapacity once the court concluded the appellant was incapable, on account of his mental condition, of appreciating that his beliefs and conduct may be a manifestation of that mental condition.
[18] Counsel for the appellant correctly points out that Charter values can play a role in capacity determinations. The high value Canadian society places on the fundamental right to freedom of religion dictates that the CCB and the courts must proceed cautiously before characterizing a professed religious belief as a manifestation of a mental condition. The evidence must offer clear and cogent support for both the conclusion that the beliefs are a manifestation of a mental condition and the conclusion that the condition has rendered the individual incapable of recognizing that his beliefs may be the product of a mental condition. Decisions of the CCB demonstrate that it has regularly undertaken this analysis in the past: C.R. (Re), 2023 CanLII 24871 (Ont. CCB); G.S. (Re), 2021 CanLII 152914 (Ont. CCB); and E.P. (Re), 2013 CanLII 49102 (Ont. CCB). We are satisfied that that onus was met on this record. . S.H. v. Prakash
In S.H. v. Prakash (Ont CA, 2023) the Court of Appeal considered a further appeal from a Consent and Capacity Board ruling, the first being under the Health Care Consent Act, 1996 [s.81]:[2] The appellant was first found incapable of consenting to treatment with anti-psychotic medication in January 2021, and again when Dr. Aulak assessed him in August 2021. The January assessment was confirmed by the Consent and Capacity Board (“CCB”) in February 2021 and the August assessment was confirmed in September 2021. An appeal from the September 2021 CCB decision to a Superior Court Judge (“the appeal judge”) under s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996 c. 2, Sched. A (“the Act”) was dismissed in March 2022, with reasons provided by the appeal judge in June 2022. The appellant brings this appeal from the decision of the appeal judge pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under s. 18 of the Act, the appellant cannot be treated while this matter works its way through the court process.
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[4] Section 4(1) of the Act defines capacity with respect to treatment. A person is capable of consenting to treatment if that person is both able to understand the relevant information, and appreciate the reasonably foreseeable consequences of taking or refusing the proposed treatment. It is accepted that the appellant is able to understand the relevant information. The dispute is over whether he is able to appreciate the reasonably foreseeable consequences of a decision to take, or refuse to take, the medication. The appellant says he is capable of appreciating those consequences, but chooses for what he views as religious reasons, not to take the medication. The respondent contends that the appellant is not capable within the meaning of s. 4(1) of the Act.
[5] Section 4(2) of the Act presumes a person is capable of making treatment-related decisions. Before the CCB, the onus was on the respondent to demonstrate that the appellant was incapable of consenting to treatment.
[6] The CCB recognized Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, as the leading authority on the meaning of s. 4(1) of the Act. The CCB accepted the medical evidence before it and concluded that the appellant suffered from a delusional disorder. The CCB further found as a fact that the appellant “could not recognize his condition”. Applying the principles in Starson to the facts as found, the CCB held:[The appellant] was not able to recognize he displayed the manifestations of a mental condition, one consequence of which was his inability to apply information about treatment decisions to himself. As a result, he was not able to appreciate the consequences of giving or refusing consent to treatment of the delusional disorder from which he suffered. [7] In essence, the CCB concluded that, because the appellant was incapable of acknowledging a possible connection between his delusions and disorganized thought processes and his mental condition, the appellant could not apply the information provided to him concerning treatment to his circumstances and, therefore, could not appreciate the reasonably foreseeable consequences of accepting or rejecting treatment.
[8] The appeal judge accepted that there was a basis in the evidence for the CCB’s findings and, in particular, the finding that the appellant suffered from a delusional disorder which manifested itself in “religious delusions, persecutory delusions, delusions of reference, and tangential and disorganized thoughts leading to a flight of ideas”: at para. 46.
[9] The appeal judge, at para. 49, went on to conclude that:[A] sufficient evidentiary basis [existed] for the Board to conclude that he [the appellant] is unable to recognize that he is affected by manifestations of a mental condition. The condition afflicting the appellant does not prevent him from understanding that others attribute his delusions to a mental health condition, but it prevents him from being able to appreciate the possibility that this may be true. [10] The appeal judge further determined, at para. 52, that the CCB had properly applied the principles in Starson to the facts as found, holding:The Appellant’s inability to appreciate the possibility he was affected by the manifestations of the mental condition for which treatment was being proposed left the Board with no alternative but to conclude that he was incapable of making a reasoned decision to decline the recommended treatment. [11] Counsel submits that the appeal judge misapplied Starson by requiring, as a precondition to a finding of capacity, that the appellant appreciate that he suffered from delusions. We disagree. As quoted above, the appeal judge clearly understood the distinction between the ability to appreciate the possibility that certain conduct or beliefs were the manifestation of a medical condition and an acceptance of that diagnosis. The appeal judge, like the CCB, considered capacity by reference to the appellant’s ability to appreciate the possibility that his beliefs and conduct in issue were the product of a mental condition. . Palichuk v. Palichuk
In Palichuk v. Palichuk (Ont CA, 2023) the Court of Appeal cites statutory authority for the 'capacity' presumption:[47] This was critical to the application judge’s determination. Based on the respect for personal autonomy, our law presumes that a person is capable. This is reflected in s. 2 of the SDA, which provides:2(1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.
(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. This presumption is operative in related legislation.[3]
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