Public Guardian for Nunavut v R. A., 2019 NUCJ 7

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Public Guardian for Nunavut v R. A., 2019 NUCJ 07 Date: 20190613 Docket: 10-18-280-GRD Registry: Iqaluit Applicant: Public Guardian for Nunavut -and- Respondent: R. A. ________________________________________________________________________ Before: Mr. Justice Paul Bychok Counsel (Applicant): M. Rasmussen Counsel (Respondent): S. Siebert Location Heard: Iqaluit, Nunavut Date Heard: December 13 th , 2018 & March 15 th , 2019 Matters: Contested Guardianship Application REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. TABLE OF CONTENTS I. INTRODUCTION .. 4 II. BACKGROUND .. 4 A. Guardianship and Trusteeship Act 5 III. THE PARTIES’ POSITIONS . 5 A. The Public Guardian . 5 B. Mr. A. 6 IV. ISSUES . 6 V. R. A. 7 VI. THE PSYCHOLOGICAL OPINIONS . 11 A. Dr. George Stones and Dr. Monty Nelson . 11 VII. ANALYSIS . 12 A. Did Mr.

A. give informed consent to participate with the psychologists in the preparation of their reports? 12 B. Is the current battery of psychological assessment tools culturally appropriate to Nunavut? 14 C. As an adult, is Mr. A. in need of a guardian? . 15 D. Would the appointment of a guardian substantially benefit Mr. A.? . 17 VIII. CONCLUSION .. 17 I.

INTRODUCTION [ 1 ] The freedom to live our lives as we choose – subject, of course, to the laws of the land – is a basic right enjoyed by all Canadians. [1] Every adult is presumed at law to be capable of making his or her own decisions concerning their financial affairs and

well-being. [2] Debilitating illness and mental incapacity, though, exist. In these cases, the law provides that another person may apply to the court to be appointed as guardian for the stricken individual. [ 2 ] In Nunavut, guardians and guardianship applications are governed by the procedures in the Guardianship and Trusteeship Act. The Act provides various safeguards to ensure that the subject person’s autonomy is not infringed without just cause. Judges must act with care and the utmost caution before depriving a person of their autonomy. This case features a guardianship application where the respondent, R.

A., says he does not need a guardian. Mr. A.’s estranged mother supports the Public Guardian’s application. [3] II. BACKGROUND [ 3 ] This application has been brought by Nunavut’s Public Guardian to be appointed guardian for Mr. A. I heard the application in Iqaluit on December 13, 2018. Mr. A. testified by telephone. Counsel advised the Court that Dr. George Stones – who performed a psychological assessment on Mr. A. – was not available to testify. After hearing the submissions of counsel, I adjourned the hearing to March 15, 2019. I ordered Dr. Stones to appear at the hearing. I note that Dr.

Stones’ report was dated February 7, 2018, and was somewhat dated. I also ordered the preparation of a second psychological assessment. The hearing was adjourned to March 15, 2019, for completion. [ 4 ] In the interim, the Court received a second opinion prepared by Dr. Monty Nelson. Dr. Nelson assessed Mr. A. on January 19, 2019. [ 5 ] At the March 15th hearing, Dr. Nelson and Dr. Stones testified. Counsel argued their respective positions, and I reserved my decision. These are my reasons for decision. A.

Guardianship and Trusteeship Act [ 6 ] The Public Guardian has brought this application pursuant to s. 7 of the Guardianship and Trusteeship Act . Section 7(1)(

b) of the Act empowers the Court to make a guardianship order if it is satisfied that the person: (

i) is an adult, (ii) is in need of a guardian because the person (

A) is not able, by himself or herself or with assistance, to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or (

B) is not be able by himself or herself or with assistance, to appreciate the reasonably foreseeable consequences of a decision referred to in clause (

A) or a lack of such a decision, and (iii) will substantially benefit from the guardianship order. [4] [ 7 ] Among other things, the application must be supported by a report prepared by a medical practitioner or registered psychologist. The report must canvass the three prerequisites outlined in the preceding paragraph. The report must also address the subject’s “present and future physical, mental, social, vocational, residential and educational needs”. The report must also report on the subject’s preference as to who might be appointed as his guardian. [5] [ 8 ] The Act also empowers the Court to request a second psychological opinion, which I did here. [6] III. THE PARTIES’ POSITIONS

A. The Public Guardian [ 9 ] The Public Guardian asserts that Mr. A. meets the legislative prerequisites for the appointment of a guardian. In doing so, the Public Guardian relies upon the psychological assessments prepared by both Dr. Stones and Dr. Nelson. I shall refer to those reports in a moment. The Public Guardian has stepped in because there is no one else in a position or willing to act. B. Mr. A. [ 10 ] Mr. A. opposes the application. He says he does not need a guardian. [ 11 ] At the December 13th hearing, Mr.

A.’s lawyer stated that the Court ought to have “much more clear and compelling evidence [beyond Dr. Stones’ report] that Mr. A. understood what this process was all about”. [7] Counsel stated that there are “significant concerns with whether or not informed consent” was obtained from Mr. A.; and, whether the Court can rely on Dr. Stones’ report. To that end, she continued, “we should know exactly what was said to Mr. A., what was – what were his responses, and what were [sic] his level of understanding”. [8] [ 12 ] Mr.

A.’s lawyer also expressed two further concerns: (1) that the Public Guardian had not shown that Dr. Stones’ psychological assessment criteria were culturally appropriate in the circumstances, and (2) the Public Guardian had failed to show that Mr. A. is not able to make informed decisions with the assistance of others. [9] IV. ISSUES [ 13 ] This application poses several issues for the Court to decide: 1. Did Mr. A. give informed consent to participate with the psychologists in the preparation of their reports? 2. Is the current battery of psychological assessment tools culturally appropriate to Nunavut? 3.

Is Mr. A. in need a guardian? and, 4. If the answer to issue 3 is yes, would the appointment of a guardian substantially benefit Mr. A.? V. R. A. [ 14 ] This application is unusual because the subject of the application, Mr. A., opposes the appointment of a guardian. Therefore, I think it is important that I first provide some important information about Mr. A. and his circumstances. [ 15 ] Mr. A. possess certain abilities as described by Dr.

Stone including the ability to • Communicate verbally and be understood; • Hear and understand communication from others; • Make [his] needs known; • Read; • Write; • Recall information from an hour ago;

• Recall information from 24 hours ago; • Recall information from a week ago; • Wash [his] hands and face; • Shower; • Bathe; • Brush or comb [his] hair; • Brush teeth; • Dress himself and feed himself; and • He is fully aware of time. [10] [ 16 ] Mr. A. testified by telephone. He is a 28-year-old Inuk. He is from Pangnirtung. He was a premature baby and was hospitalised as an infant in Montreal and Ottawa.

He suffered neglect and abuse at home and he was moved at age four to the care of his maternal grandparent. [ 17 ] As an adolescent, he moved to Iqaluit with his Aunt Lucy where he started to use insolvents around age 12 or 13. His father committed suicide sometime around 2008 or 2009. Mr. A. is reported to have been deeply affected by his father’s suicide. [ 18 ] Mr. A. is currently living at ‘I Have a Chance’ group home in Stoney Plain, Alberta, and is subject to a temporary guardianship order. [ 19 ] Mr. A.’s adult life has been one of chronic homelessness and continuing, serious mental health difficulties.

Mr. A. has a long history of mental illness and hospitalisation. For example, he was admitted to the Selkirk Mental Health Centre in Manitoba from March through May 2011 (where he was diagnosed with paranoid schizophrenia). He was again admitted in December 2014 through to February 2015 after he attempted to hang himself. In July 2015, and from June 28 to July 22, 2017, he was again admitted to Selkirk owing to a diagnosis of schizophrenia and cannabis use disorder. In 2012, he was sent to the Waypoint Centre for Mental Health Care in Penetanguishene, Ontario.

In 2015, he was transported to the Royal Ottawa Hospital where he was treated for his schizophrenia. [ 20 ] Mr. A. told the court in December “it’s regretful” that he was placed in I Have a Chance. He said “it hurts and they mistreat me”. He said he is not happy living there. [11] I asked Mr. A. how the staff mistreated him. Our exchange is instructive: THE COURT: You told me, when you were answering Ms. Siebert’s questions, that the people where you are staying mistreat you. How do they mistreat you? A. And so much [INDISCERNABLE] it’s just like now, so I have – like they’re bad people.

And I’ve been to [INDISCERNABLE] and like they – they’re bad people. THE COURT: All I understood was bad people and I heard you say that twice. Why are they bad people? And can I ask you please to speak louder because I’m having a lot of trouble hearing you. A. Some of the [INDISCERNABLE] there are bad and in some ways – sometimes they are good. Sometimes they are bad like [INDISCERNABLE] argument in there just a little bit for some reason. THE COURT: Ms. Siebert, can you help me? I’m not able to understand him. MS. SIEBERT: … He’s asked you

A. All right. MS. SIEBERT: - what they are doing to mistreat you. So can you give an example to the judge of a time that you were mistreated? A Sometimes [INDISCERNABLE] arguing here and there for some other reasons [INDISCERNABLE]. MS. SIEBERT: Can you say that again? A. Sometimes they end up arguing a little bit and then [INDISCERNABLE]. MS. SIEBERT: So I got first of that that sometimes you start arguing a little. What are you arguing about? A. Certain things, like – or I don’t know, nothing major. MS. SIEBERT: Okay. So you’re arguing a little, and what do they do to mistreat you when that’s happening? A.

You can in tone [sic] and stuff and being like – what you call that? Using attitude and stuff. MS. SIEBERT: So I got the first part of that. So, using a tone. What else? A. And attitude and that sort of thing. MS. SIEBERT: Their attitude. Okay, is there anything else that they do that you think is mistreatment? A. No, not really. [12] [ 21 ] There was no other evidence before the Court that Mr. A. has been hurt or mistreated by staff at the residence. Indeed, Dr. Nelson stated that Mr. A. “is very well cared for in his current care structure and with the staffing he receives”. [13] I was told, though, that Mr.

A. had recently assaulted his favourite staff person at the residence. [ 22 ] Mr. A. testified that he had called the Men’s’ Shelter just the day beforehand and had spoken to Dale. Mr. A. said he called to find out if he could stay there if he returned to Iqaluit. His lawyer tried to clarify that conversation: Q. Dale? A. That was who was answering a couple of times and I asked him if my – like am I allowed in there, and they were, like, yeah, yup, sort of thing, something like that. Q. Okay.

A. There’s list of names that are not allowed there. My name is not on the list. [ 23 ] However, there is also evidence is that Mr. A. is banned permanently from both the Men’s Shelter and the mental health facility in Iqaluit because of his past violent behaviour. [14] [ 24 ] Similarly, Mr. A. told the Court he would actively look for a job with the help of friends and family if he is allowed to return to Iqaluit. However, there is evidence that his family has disowned him, and he has a weak support network in Iqaluit. [15] [ 25 ] As Mr.

A. disagrees with the opinions of the two psychologists, we need to examine briefly the basis for their two assessments. [ 26 ] I will not recite in detail the litany of medical and legal problems which have plagued Mr. A. over the years. I will refer to an extract from each psychological opinion to provide insight into his issues. The following two extracts are taken from Dr. Stones’ report: In December 2014 R. was readmitted to Selkirk following a suicide attempt (attempted hanging).

Upon admission, his behaviour was disorganized, he claimed magical powers, including the ability to read minds and convert water into wine. Response to medication was complicated by negative side effects that included akathisia (chronic restlessness) and sialorrhea (excessive drooling). Destruction of property was noted, with R. smashing a fire sprinkler resulting in extensive damage. The intake diagnosis was acute schizophrenia, Paranoid type, and neuroleptic-induced akathisia.

With a change in medication, his behaviour gradually stabilized and R. was discharged to Iqaluit, where he lived at the men’s mission and was a community client of Akausisarvik. [16] [ 27 ] Mr. A. has a long and documented history of failing to take his prescribed medications as Dr. Stone’s report articulates: Discharge back to Iqaluit [from Selkirk] occurred in mid-July 2017, with R. attending Akausisarvik on an outpatient basis since then.

Current medications, administered by Akausisarvik personnel, include: Palperidone 50 mg/0.5 ml every 4 weeks (a long acting antipsychotic agent); Olanzapine ODT 5 mg tablet 1-2 per day as needed. Medication noncompliance is a serious concern. Currently, R. is compliant but only because it is a requirement of his participation in the day program at Akausisarvik. R. relies on the program for a number of his physical and emotional needs; in particular, he is served daily meals at Akausisarvik. As reported by staff, R.’s insight into his condition is poor.

R. does not believe that he requires medication and his history demonstrates noncompliance and swift psychiatric decompensation when not under directed care. [17] VI. THE PSYCHOLOGICAL OPINIONS A. Dr. George Stones and Dr. Monty Nelson [ 28 ] The Court had the benefit of both Dr. Stones’ and Dr. Nelson’s reports and their court testimony. I note that both Dr. Stones and Dr. Nelson are experienced clinical psychologists with many years of experience in assessing Nunavummiut. Dr. Stones’ administered six standardized psychometric tests to Mr. A. during his clinical interview. [18] Dr.

Nelson administered nine tests during his clinical interview. [19] Two of these tests were identical or substantially similar. Between them, the two psychological opinions are based on the results of 13 different standardized clinical tools. I will refer in my analysis only to the key pieces of their evidence and opinions pertinent to the issues before the Court. VII. ANALYSIS A. Did Mr. A. give informed consent to participate with the psychologists in the preparation of their reports? [ 29 ] The Act required the Public Guardian to give notice to Mr.

A. of the application with a copy of the psychologist’s report, and to

explain the application and proceedings to him. [20] The explanation requirement may be satisfied if the applicant – in this case the Public Guardian – “explains the matter to the best of his or her ability, whether or not the person receiving the explanation understands it”. [21] I am satisfied the Public Guardian complied with these requirements. On the evidence before the Court, I am satisfied that Mr. A. understood both the purpose and potential outcomes of the application. [ 30 ] The Act is necessarily silent on the issue of consent.

This is so because the vast majority of cases involve persons who are incapable of providing informed consent. Mr. A.’s case is challenging because he is capable of some discernment and able, with structure and assistance, to “function reasonably well in some areas”. [22] [ 31 ] The Canadian Code of Ethics for Psychologists guides psychologists in the exercise of their professional responsibilities.

The following guidelines pertaining to consent are relevant here: 1.16 Seek as full and active participation as possible from others in decisions that affect them, respecting and integrating as much as possible their opinions and wishes. 1.22 Accept and document oral consent, in situations in which signed consent forms are not acceptable culturally or in which there are other good reasons for not using them. 1.33 Seek to use methods that maximise understanding and ability to consent of persons of diminished capacity to give informed consent, and that reduce the need for a substitute decision maker. [23] [ 32 ] Dr.

Nelson testified as follows on the consent issue: … we basically, like I said, have to spend as much time as necessary to ensure the, the client understands what, what we’re doing. And it was clear to me that R. did because right away he wanted me to ensure that I wrote a good report about him so that he didn’t have a guardian. So that, to me, indicated he knew that this was about reviewing his decision-making capacity. [24] [ 33 ] Dr. Stones testified that he did not make any notes of his interaction with Mr. A. Dr.

Stones addressed the consent issue as follows: In terms of the consent thing, it’s a bit of a tautology with, with these cases, in that the individuals that we see are already … in a, pre- selected population, a clinical population. And having an individual sign a consent form, whether it’s in Inuktitut or whether it’s in English, that they don’t likely understand what they’re signing would be in my estimation an ethical breach. It’s, it’s a meaningless document. So, so I’m not sure that there is a way, an easy way, to, to ensure that, that somebody understands all the nuances. [25] [ 34 ] In Dr.

Stones’ opinion, Mr. A. “understood the gist of what was happening, but not likely the long-term implications of it”. [26] It is impossible to reconcile the second part of this view with Mr. A.’s keenness to have Dr. Nelson write a “good report”. I accept Dr. Nelson’s conclusion on this point. [ 35 ] It is true that neither psychologist kept detailed notes of this part of their interaction with Mr. A. Had they kept detailed notes; it may have helped to alleviate any concerns regarding Mr. A.’s informed consent to participate in the assessments.

Nevertheless, I am satisfied on the evidence before the Court, that Mr. A. participated willingly, and to the extent possible, understood why the assessments were being done.

B. Is the current battery of psychological assessment tools culturally appropriate to Nunavut? [ 36 ] In her oral submissions, Mr. A.’s counsel referred to Ewert v Canada , a decision of the Supreme Court of Canada. [27] In Ewert , the majority of the Supreme Court ruled that Correctional Services Canada had violated the rights of its Indigenous inmates by using psychological and actuarial assessment tools which, possibly, are culturally biased. Counsel urged this Court to make a similar finding respecting the psychological assessment tools used in Mr. A.’s case. [28] [ 37 ] I cannot do so.

To my query whether Ewert featured the same psychological assessment tools as in the present case, counsel replied: “They are not”. Nor did either party call any evidence respecting this point. The evidence before the Court, however, does indicate clearly that both Dr. Stones and Dr. Nelson were aware of, and culturally sensitive to, issues facing Inuit who suffer from mental illness. [ 38 ] In the absence of relevant evidence and focused argument, this Court is not able to impugn the integrity of the approaches taken by the two psychologists. [ 39 ] Alternatively, Mr.

A.’s counsel urged the Court to take ‘judicial notice’ of “the common-sense principle that standardized testing is not always culturally appropriate and relevant”. [29] Significantly, counsel was unable to cite any legal authority to support this proposition. [ 40 ] Standardized psychological testing and case specific opinions are areas of specialist expertise. These mental health assessments lie outside the general easily proven area of common knowledge. In my view, the Court cannot take judicial notice that Dr. Stones and Dr. Nelson used culturally biased assessment tools when assessing Mr.

A. [ 41 ] On the basis of their testimonies, I am satisfied that both Dr. Stones and Dr. Nelson exhibited cultural sensitivity in their dealings with Mr. A. I find that their assessments are reliable, and may be relied upon by this Court. C. As an adult, is Mr. A. in need of a guardian? [ 42 ] Can Mr. A., with or without assistance, make informed s. 7 decisions? Mr. A. testified that he does not want or need a guardian. But, as I noted in paragraphs 19-27 above, his understanding of his situation in Iqaluit is objectively unfounded. [ 43 ] On this issue, each psychologist opined ‘no’; Mr. A. is not capable.

This is part of what Dr. Stones said: … it is our conclusion that Mr. A. requires the intervention of an adult guardian. … Mr.

A. displays diminished capacity in the following areas and abilities: making informed healthcare decisions, including issuing an advanced-care direction regarding end of life decisions; managing daily affairs (including ensuring safe adequate shelter, nutrition); understanding the implications of applying for any license, permit, financial credit or legally binding contractual arrangement; consenting to marriage; managing personal finances, including bill payment; identifying potentially unsafe situations and self-protection in potentially dangerous situations; and last, caring for a dependent.

Left to his own devices, Mr. A. is at serious risk of harm, either intentionally or through misadventure. Based upon his documented history, family support is poor. Medication non-compliance, when not under direct care, is also a significant concern. [30] [ 44 ] This is what Dr. Nelson said, in part:

The situation with R. is quite concerning. Despite nearly a decade of documentation of struggles, repeated attempts to control his behaviours, and the involvement of numerous professionals over the years, he continues to struggle. He shows no evidence of being able to make judgements in his best interests. Decision-making capacity, such as in an area regarding being able to make health care-related decisions requires numerous cognitive skills. First of all, an individual needs to be able to understand information and process it.

R. has very limited language comprehension, and struggles with retaining new information. Therefore his skill is very weak in this area. Furthermore, an individual must be able to appreciate the significance of information relevant to themselves. This requires insight as well as executive functioning (particularly self-management and self-regulatory processes). As R. has no insight into his needs, and very poor impulse control, he becomes frustrated with those he feels are providing him with inappropriate and unnecessary structure and treatment.

Therefore, this Is also a cognitive skill that is a significant weakness for him. Reasoning (to make good choices) is also essential…R. becomes bored quickly, needs frequent redirection to the task at hand, and does not feel that there are any consequences to any of his decisions…He demonstrates little or no abstract reasoning nor understanding of the consequences of his actions, and no sense of his own agency in orchestrating some of the difficulties he has had. [31] [ 45 ] Dr.

Nelson’s conclusion bears repeating: Ultimately, R. continues to lack decision-making capacity as he is a victim of a severe mental illness (schizophrenia). Although he may deny or be unaware of his current issues, and although he may only wish to follow his own desires and to regain control of his life, it is felt that R. is fundamentally out of control. Despite his wishes to make his own decisions, he deserves and requires the intensive mental health and residential supports that he cannot effectively arrange on his own.

His mental illness means that he cannot advocate for his own needs as he does not realistically know what his needs are. His ability to determine trustworthy individuals is also disturbed. If left to his own devices, R. would ultimately once again render himself as homeless and receiving no treatment.; his history shows that this type of situation would ultimately put himself and those around him at risk. [32] [Emphasis added] [ 46 ] I agree with the Public Guardian that it is significant that both assessments were conducted while Mr. A. was receiving considerable assistance.

First, at the time the Stones Assessment was conducted, Mr. A. was receiving some assistance with his decision making as he was an outpatient at the Akausisarvik Mental Health Treatment Centre day program … Secondly, the more recent Nelson Assessment was conducted while Mr. A. was residing in a group home administered by I Have a Chance Support Services Ltd (IHAC). At IHAC, Mr. A. has significant Assistance with his decision making as the group home is staffed 24 hours a day, 7 days a week. [33] [ 47 ] Notwithstanding all the assistance he was receiving at the time, Mr. A. continued to struggle.

It is particularly troubling that Mr. A. does not believe he needs medication. [34]

[ 48 ] In my view, Mr. A. clearly requires the assistance of a guardian. D. Would the appointment of a guardian substantially benefit Mr. A.? [ 49 ] Mr. A.’s personal circumstances are tragic. He suffers from major mental illness and is not capable of appreciating that fact. The evidence before the Court established that Mr. A. is estranged from his family. He has no support network. Realistically, there is no one available to provide Mr. A. with the assistance he desperately needs to function safely in society. In these circumstances, Mr.

A. – whether he subjectively appreciates it or not – will benefit substantially from the appointment of a guardian who will ensure his safe accommodation and attend to his regular medication needs. VIII. CONCLUSION [ 50 ] Mr. A. needs assistance in obtaining a safe and structured residential environment with ready and supervised access to appropriate medical care. Therefore, I grant the Public Guardian’s application for a five-year guardianship order for Mr. A. [ 51 ] However, Mr. A.’s circumstances do not call for a comprehensive order. The evidence shows that Mr.

A. is able to function in certain areas with assistance. The limitations this Court places on his personal autonomy ought to reflect that reality. [ 52 ] This Court orders that the Public Guardian for Nunavut be appointed guardian for R. A. pursuant to

section 7 of the Act. For that purpose, the guardian is empowered to: 1. decide where R. A. is to live, temporarily or permanently, in accordance with section 11(2)(

a) of the Act; and 2. consent to any type of health care on behalf of Mr. A., in accordance with section 11(2)(

j) of the Act. [ 53 ] The Government of Nunavut shall pay the costs and disbursements of this application as required. The office of the Public Guardian for Nunavut shall draft the Order. [ 54 ] The Order will be in place for five years. The Act provides for a review within three to five years. [35] However, in the circumstances of this case, I wish to reassess Mr. A.’s circumstances and possible progress one year from now. I direct that the Public Guardian for Nunavut prepare a progress report for the Court’s consideration at that time. Dated at the City of Iqaluit this 13th day of June, 2019 ___________________ Justice P. Bychok Nunavut Court of Justice