J.O.S. v RCMP et al, 2023 ABKB 266

Court of King’s Bench of Alberta Citation: J.O.S. v RCMP et al, 2023 ABKB 266 Date: 20230504 Docket: 2313 00135 Registry: Ft. McMurray Between: J. O. S. Appellant - and - RCMP, Mental Health Review Panel Board, Dr. Ogunsona, Fort McMurray Hospital and Psychiatric Ward Employees, and Mental Health Act Respondents Restriction on Publication Identification Ban – By Court Order, the identity of the Appellant must not be disclosed in the course of these proceedings. NOTE: This judgment is intended to comply with the identification ban.

Pursuant to the common law authority of the court, any publication of information related to the Appellant that may tend to identify her is prohibited. _______________________________________________________ Endorsement of Decision of the Honourable Justice Avril B. Inglis _______________________________________________________ Recent procedural history and current appeal [ 1 ] The Appellant has asked to be referred to only as J, and as such that is how she will be named throughout this decision. [ 2 ] J has repeatedly been admitted as a patient to the Northern Lights Health Centre in Fort McMurray, Alberta.

She is regularly treated by Dr. Ogunsona. [ 3 ] On December 7 th , 2022, Dr. Ogunsona declared J to be incompetent to make treatment decisions; she appealed this determination to the Review Panel on December 19 th who refused to vacate Dr. Ogunsona’s declaration. [ 4 ] Prior to releasing J from the Health Centre on January 10 th , 2023, Dr. Ogunsona filed a Community Treatment Order (“CTO”) pursuant to s 9.1 of the Mental Health Act , RSA 2000, c M-13 (“the Act ”). On that same date, another doctor, Dr. Ambersano, of the same facility performed a second exam and confirmed the same conclusion as Dr.

Ogunsona. [ 5 ] The CTO care plan states that J must receive antipsychotic medication by injection once per month, attend appointments with her psychiatrist, be reassessed for mental health and medication effectiveness, as well as participate with ongoing community support. [ 6 ] J does not consent to the CTO, and she appeared to oppose the CTO in front of the Mental Health Review Panel (the Panel) pursuant to s 37(1) of the Act . The Panel upheld Dr. Ogunsona’s Order on February 2 nd , 2023. [ 7 ] J appeals that decision to King's Bench, pursuant to s 43(1) of the Act . Respondents’ Evidence

Dr. Ogunsona [ 8 ] An appeal of the Panel’s decision is a rehearing on its merits s 43 (4). Rather than rely on transcripts from the hearing, the Respondents led vivo voce evidence from Dr. Ogunsona. [ 9 ] Dr. Ogunsona told the Court that he had known J for a minimum of three to four years while she was receiving ongoing sporadic care from himself and his colleagues. His initial broad statement was that it is difficult to manage J in the hospital and in the community. J’s care formally transferred to him as her psychiatrist in 2019. [ 10 ] Dr.

Ogunsona said J is diagnosed with paranoid schizophrenia, and that she is not voluntarily compliant with treatment for that illness. He described her condition as a chronic mental illness characterized by J being “out of touch with reality” and with suspicion of the world and people around her. She has been subject to previous CTOs, which have been cancelled by the Panel. [ 11 ] Based on the medical records and the Doctor's own recollection, Dr. Ogunsona started his specific evidence with J’s admission to the hospital in March 2020.

She was brought to the hospital by the police after having been verbally aggressive in a grocery store in the community. She was alleging a conspiracy theory that was not otherwise described for the Court and called the people in the store pedophiles. She was physically aggressive, which was also not described for the Court. [ 12 ] J was initially at the hospital against her will pursuant to a Form 1 detention that was placed on her at the time by another doctor at the hospital.

A Form 1 detention pursuant to s 2 of the Act requires that a psychiatrist must see the patient within the first 24 hours to determine if the patient needs to stay in the hospital for longer than that. If a psychiatrist agrees with the first admission certificate, they may confirm a 30-day detention for the purposes of treatment according to s 8 of the Act . [ 13 ] Dr. Ogunsona attended to J as her psychiatrist at that time.

He had worked with J when she was in the hospital previously, but on March 25 th , 2020, he determined it was not necessary to admit her to the hospital under the Act but instead discharged her. [ 14 ] Dr. Ogunsona made a different decision when J presented at the hospital on June 29 th , 2020. At that time, he said that she was not cooperative or communicating, she was accusatory and assaultive. He understood that she had shown aggression to the RCMP, and he had concerns about public safety. On that day, he did sign an admission certificate to admit her into the hospital for 30 days for further treatment. Dr.

Ambersano signed that second admission certificate agreeing with Dr. Ogunsona. J was detained at the hospital until July 4 th . [ 15 ] This cycle repeated with admissions for J on July 17 th and July 22 nd , 2020. J was admitted by a different doctor on July 17 th , and his admission notes indicate: This is a 32-year-old female brought in on a Form 10 with a paranoid behavior. She states that people were trying to kill her and her family, and that people have stolen her car. She was not logical and assaulted an officer. She also states that the RCMP are nazi's, murders, and pedophiles. [ 16 ] Dr.

Ogunsona stated that J was not more ill over the course of these repeated admissions, but he determined that it was most expedient to admit her for treatment. Over the course of his evidence, Dr. Ogunsona made it clear that in his medical opinion, J required a monthly antipsychotic injection of 400 milligrams of Abilify Maintaina to manage her illness, in particular her aggressive behavior.

Without it a cycle of admission to the hospital continued. [ 17 ] On August 5 th , 2020, J was escorted off the hospital grounds after receiving her injection and refusing any other supports or treatment; but she was brought back by the RCMP on another Form 10 warrant later that same evening. Dr. Ogunsona said J was experiencing delusions of persecution and attacked him that night by yelling at him, charging at him a few times, and eventually she struck him across his face. He said this incident was unprovoked.

His evidence was that J was far more psychotic at that point in time than she had been before. [ 18 ] Dr. Ogunsona described a cycle in the hospital where the antipsychotic injection would be provided to J and then there would be a period of time waiting for her to settle down from the agitation and aggression she showed when experiencing unmedicated psychosis. She repeatedly refused treatment in the hospital and avoided engaging with others including medical staff on the unit. [ 19 ] On August 19 th , 2020, Dr.

Ogunsona completed a Form 11 certificate of incompetence pursuant to the Act declaring that J had no decision-making capacity regarding her own medical treatment and the Office of the Public Guardian became her decision-maker. [ 20 ] J remained hospitalised from the time. The RCMP brought her to the Northern Lights again on August 5 th , 2020 until she was transferred to the Alberta Hospital and eventually released from there on May 18 th , 2021. [ 21 ] On October 15 th , 2022, J was apprehended by the Fort McMurray RCMP again on a Form 10 warrant. Dr.

Ogunsona described that she had relapsed and was quite psychotic. He went through the process of certifying her incompetence to make her own medical decisions again. Again, she appealed her detention to the Panel, her detention was upheld for the purposes of treatment. She was eventually discharged to go home on November 17 th , 2022, with a plan for her to receive her ongoing antipsychotic medication through Street Connect or pharmacy of her choice. [ 22 ] J was returned to the hospital on December 4 th , 2022, again by the RCMP. The two-stage certificate for detention under the Act was completed once again.

J appealed her detention in the hospital again on December 6 th . The detention at that time was upheld by the Panel on January 10 th , 2023. Eventually Dr. Ogunsona was satisfied to cancel the Detention Order and shift J to this CTO. Dr.

Ambersano was the second opinion psychiatrist to comply with the requirements of the Act. He again agreed with Dr. Ogunsona. [23] It was Dr. Ogunsona’s opinion that J at that time met all of the conditions required by the Act for a CTO. Dr. Ogunsona notedthat it is very restrictive to keep people in the hospital, and that a CTO to maintain J’s medication levels in the community would allowher to live as freely as possible while still receiving necessary care. In his opinion, the alternative was to keep J in the hospitalindefinitely. [24] Dr.

Ogunsona described the basis for J’s CTO as her schizoaffective disorder which included negative manifestations in hermood and significant paranoid experiences which includes a fear of others. He observed her at times to have neglected herself when shewas not under medical care including losing weight and being disheveled. Further, he said that J can manage a job and her own financesand maintaining a living situation only if she is treated.

Without treatment he said that these aspects of her life deteriorate, and she cannotkeep a job; she becomes aggressive leading to police intervention; her personal care is not managed, and she has, in the past, experiencedhomelessness, he says, due to non-participation in her treatment. These are the factors that lead the Doctor to opine that J will likelysuffer negative effects if she is not subject to a CTO. [25] When asked directly by counsel, Dr. Ogunsona was not able to say whether the mental health conditions that are affecting J inthis way were inherited or caused by trauma.

He did say that her illness meets the definition of a mental disorder pursuant to the Act,however, did not refer to that definition specifically. [26] Finally, Dr. Ogunsona said that without treatment J will believe that she is being assaulted by police or others, and thatsupport systems are “out to get her” because of her paranoia. He said her belief system doesn't necessarily change but her behavior ismore manageable when she is receiving medication. When she is unmedicated she is more likely to cause harm by assaulting others dueto her delusions because the medications suppress her delusions.

The Appellant’s records [27] As well, the Respondents filed substantial medical records related to J’s admissions for mental health treatment and hercurrent diagnoses. The medical records were admitted under the rule of Ares v Venner, (SCC), [1970] S.C.J. No. 26. forproof of the truth of their contents. Counsel acknowledged that admissibility of those records does not determine the weight given to thecontents of those records. [28] Counsel drew the Court’s attention to the records in particular to highlight the circumstances of some of J’s admissions to thehospital.

These records support the versions of events leading to J’s treatment as described by Dr. Ogunsona. As noted later in thisdecision, J does not dispute these incidents, merely states her defence of her actions. Terms of the CTO [29] The terms of the CTO require that J receive a monthly injection, she attends an outreach support agency twice a month andhopefully, but not necessarily, attend Dr. Ogunsona’s clinic once a month. Dr. Ogunsona was not convinced that J can comply with thoseconditions. Without understanding her own illness, J remains at risk of the consequences already described.

The Doctor described theterms of the CTO as minimal treatment which is far less restrictive of J is freedom and liberty than detention in the hospital. J’s evidence and argument [30] J represented herself in the courtroom. She appeared to be an intelligent and attentive person. The court procedure wasexplained to her and with some reminders she followed it. She was respectful and well-spoken throughout her time in court when she wascross examining Dr. Ogunsona, when she was giving her own evidence, and when she was ultimately advocating for herself during herclosing argument.

She was reminded that she had counsel when she appeared before the Panel and was entitled to have counsel at thishearing; but she firmly refused, citing no desire or interest in legal counsel for the proceedings. She conducted herself reasonably well inthe courtroom, with only a few interruptions that are common when hearing from a litigant who was not familiar with the court process.She was notably assertive of her own independence and control of the space around her.

For example, when counsel approached her toask if they could help her find a particular document in the records J firmly told counsel to do her job and leave her alone. [31] Her cross examination of Dr. Ogunsona was quite effective. She took the time to question him about his qualifications as apsychiatrist. She asked questions about his immigration status which appeared to relate to his education but ultimately those questionsand their intent were unclear. [32] Prior to her own evidence, she properly put to Dr. Ogunsona what her explanation was for striking him as he had previouslydescribed for the Court.

She suggested to him that he had told her he would exercise control over her whether she liked it or not and thatis why she attacked him, self-defence. The Doctor denied that he said those things to her, and specifically said that the physical assaultagainst him by her was unprovoked. [33] J gave evidence on her own behalf. First, she addressed the issue of a mental disorder. She discussed her theory of onesymptom. In particular, the assertion of hearing something that someone else does not, as a sign of schizophrenia.

She said thatexperience does not mean someone has a mental disorder, it can be triggered by trauma, anger, or stress. [34] Next, she admitted that she did in fact attack Dr. Ogunsona. She said that she was angry and was held hostage in the hospitaland the Doctor stated, “I will do whatever I want with you whether you like it or not.” She described that as a threat and said, quitesimply, “so I attacked him.” She indicated that many doctors have said those same things to her and the RCMP did as well. She describedtelling the police that they should not arrest her and should not touch her.

[ 35 ] She did not deny the incident described as being aggressive in the grocery store but explained that she had been asserting her own rights. [ 36 ] She agreed that at one point when dealing with the RCMP she told them to fuck off and leave her alone, and also called those officers pedophiles. [ 37 ] J described that she is able to get jobs. She said that people, which appear to mean her well, don't have to be medicated to work, fly or eat in a restaurant.

She stated quite simply that if she has an illness, she will seek her own medical care. [ 38 ] Then J described the impact of being subjected to both Detention Orders and CTOs in the past. She said the conduct of people who have participated in these Orders were psychotic and satanic. She equated her periods of detention as being in a concentration camp and mentioned Nazis. She indicated that she has been sexually assaulted and drugged and strapped to her own bed. In 2020, when she was on a CTO, she described that she was terrorized both in and out of her home.

Notably, she used the same incendiary language in court as she used at times of her admissions in past years. It appears her belief system and state of mind have remained consistent. [ 39 ] J described other incidents in her life. She said there was a time in high school where she was drugged by other students and implied that was when these problems started for her.

Ultimately, she says that it is the actions of the medical system which equate to mental abuse that have caused her physical, emotional, and social health to deteriorate. [ 40 ] Under cross examination, she flatly denied being schizophrenic or having a schizoaffective disorder. She stated, instead, that she has cancerous brain cells. She did not explain how those cancerous brain cells were not shown in the brain scans done in the hospital. She simply described seeing a doctor in another city in 2016.

She said she does not need the prescribed injections, she will not consent to them, and said that she did not wish to be treated as an experiment. She said that being forced to be Dr. Ogunsona’s patient is abusive. [ 41 ] She was asked about incidents that resulted in police involvement at the grocery store and at a bank. Both of her explanations were somewhat rambled, but it was clear that she agreed that she behaved aggressively, but described her own behavior as being defensive to the behavior of others present. While no evidence was put before the Court by Dr.

Ogunsona on this point, J was asked about a time when her car was impounded, and J described police shooting at her with three bullets which occurred in April 2020. She said that the owner of the towing company had attacked her and abused her, and that she had to defend herself against him as well. When asked about attacking a nurse in the hospital J simply said that she was held hostage and was defending herself. The Act’s requirements for a Community Treatment Order [ 42 ]

Section 9.1(1) of the Act sets out the requirement of a CTO: Community treatment order 9.1(1) Two qualified health professionals, one of whom must be a psychiatrist, may, in accordance with the regulations, issue a community treatment order with respect to a person if (

a) in the opinion of the 2 qualified health professionals, (

b) one or more of the following apply: (

A) within the immediately preceding 3-year period the person has on 2 or more occasions, or for a total of at least 30 days, been a formal patient in a facility, (

B) been in an approved hospital or been lawfully detained in a custodial institution where there is evidence satisfactory to the 2 qualified health professionals that, while there, the person would have met the criteria set out in

section 2(

a) and (

c) at that time or those times, or (

C) both been a formal patient in a facility and been in an approved hospital or lawfully detained in a custodial institution in the circumstances described in paragraph (B); (

i) the person has within the immediately preceding 3-year period been subject to a community treatment order; (ii) in the opinion of the 2 qualified health professionals, the person has, while living in the community, exhibited a pattern of recurrent or repetitive behaviour that indicates that the person is likely to cause harm to others or to suffer negative effects, including substantial mental or physical deterioration or serious physical impairment, as a result of or related to the mental disorder, if the person does not receive continuing treatment or care while living in the community, (iii) a review panel has ordered a board to issue the community treatment order under

section 41, (

a) the 2 qualified health professionals, after separate examinations of the person by each of them within the immediately preceding 72 hours, are both of the opinion that the person is, within a reasonable time, likely to cause harm to others or to suffer negative effects, including substantial mental or physical deterioration or serious physical impairment, as a result of or related to the mental disorder, if the person does not receive continuing treatment or care while living in the community, (

b) the treatment or care the person requires exists in the community, is available to the person and will be provided to the person, (

c) in the opinion of each qualified health professional, the person is able to comply with the treatment or care requirements set out in the community treatment order, and

(

d) either (

i) consent to the issuing of the community treatment order has been obtained, (

A) if the person is competent, from the person, or (

B) if the person is not competent, in accordance with section 28(1), or (

i) consent to the issuing of the community treatment order has not been obtained but in the opinion of the issuing qualified health professionals • the person has, while living in the community, exhibited a history of not obtaining or continuing with treatment or care that is necessary to prevent the likelihood of negative effects to the person, including substantial mental or physical deterioration or serious physical impairment, as a result of or related to the mental disorder, or harm to others, and • a community treatment order is reasonable in the circumstances and would be less restrictive than retaining the person as a formal patient.

(2) A community treatment order must (

a) be in the prescribed form, (

b) identify the issuing qualified health professionals, (

c) set out the dates on which and the places where the examinations referred to in subsection (1) took place, (

d) set out the facts on which the issuing qualified health professionals formed the opinions referred to in subsection (1), (

e) set out the treatment or care referred to in subsection (1)(c), (

f) identify the person who is responsible for the supervision of the community treatment order and any reporting [ 43 ] A CTO expires six months after the day it is issued unless it is renewed or cancelled. [ 44 ] If a person does not comply with a CTO, a qualified health professional, if they are satisfied that the person subject to the order has been informed of the lack of compliance and the possible consequences, may issue an order of apprehension that authorizes a peace officer to take the person into custody and convey them to the medical facility for examination. [ 45 ] The Act defines “mental disorder” as: (

a) a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs (

i) judgment, (ii) behaviour, (iii) capacity to recognize reality, or (iv) ability to meet the ordinary demands of life, but does not include a disorder in which the resulting impairment is persistent and is caused solely by an acquired or congenital irreversible brain injury. Conclusion Consideration of Respondents’ Argument [ 46 ] Counsel for the respondents say it is unclear if the onus is on the Doctor to establish on balance of probabilities that J meets the criteria for CTO under s 9 of the Act .

However, it is appropriate that the same burden applies in this appeal as it did with the Board, as this proceeding is specifically dictated by the Act as a hearing de novo . The burden of proof, of balance of probability, rests with the Respondents. [ 47 ] Without having conceded the onus and burden of proof, counsel argue that Dr. Ogunsona has nonetheless met it and this application to vacate the CTO should be dismissed.

Counsel described that the Doctor's evidence meets all of the required criteria for CTO: • Two qualified health professionals, in this case both of whom are psychiatrists have the opinion that: o within the immediately preceding 3-year period J has on two or more occasions, or for a total of at least 30 days, been a formal patient in a facility, o And, in this case, also J has both been a formal patient in a facility and been in an approved hospital or lawfully detained in a custodial institution in the circumstances (and only one of these is required).

• Also, J has within the immediately preceding 3-year period been subject to a community treatment order; • In the opinion of the two Doctors, J has, while living in the community, exhibited a pattern of recurrent or repetitive behavior that indicates that she is likely to cause harm to others AND to suffer negative effects herself, including substantial mental or physical deterioration or serious physical impairment, as a result of or related to the mental disorder, if J does not receive continuing treatment or care while living in the community, • a review panel has ordered a board to issue the community treatment order under

section 41, • the treatment or care J requires exists in the community, is available to her and will be provided to her, in the opinion of each qualified health professional, the person is able to comply with the treatment or care requirements set out in the community treatment order, and • J’s consent has not been obtained, but in the Doctors’ opinion J has while living in the community exhibited a history of not obtaining or continuing with treatment or care that is necessary to prevent the likelihood of negative effects to her, including substantial mental or physical deterioration or serious physical impairment, as a result of or related to the mental disorder, or harm to others, and • a community treatment order is reasonable in the circumstances and would be less restrictive than retaining J as a formal patient. [ 48 ] On the face of the evidence led, including the collateral medical history present in the medical records, all the conditions of the Act have been well made out in this case except one (possibly two).

It is a condition precedent to the rest of the provisions of the section. Decision [ 49 ] In response to decisions of this Court and the Court of Appeal ( JH v Alberta (Minister of Justice and Solicitor General ), 2019 ABQB 540 and JH v Alberta (Minister of Justice and Solicitor General ), 2020 ABCA 31 ) , the Act was amended in 2021.

The amendment changed the definition of mental disorder: “mental disorder” means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality, or ability to meet the ordinary demands of life, but does not include a disorder in which the resulting impairment is persistent and is caused solely by an acquired or congenital irreversible brain injury. (emphasis added) [ 50 ] This new definition is narrower than before and specifically excludes patients who have a persistent mental disorder that is caused by brain injury. Dr.

Ogunsona was specifically asked the cause of J’s mental disorder and he was not able to state whether it was an organic illness or caused by trauma. Further, while he did not use the word “persistent” it is apparent from his evidence and the medical record that aptly describes J’s condition. The evidence in court and her medical records show that her state of mind has remained unchanged and stable despite treatment. [ 51 ] The Board’s decision on February 2, 2023, made the following specific notation of the presenting Psychiatrist’s (Dr.

Ogunsona) evidence: “The Applicant’s current mental disorder is not one in which the resulting impairment is persistent and caused solely by an acquired, or congenital, irreversible brain injury.” There is nothing in the lengthy medical record noting that. In the face of Dr. Ogunsona’s evidence before this Court, it is impossible to make that same finding. [ 52 ] There is another questionable required factor in the evidence before this Court: whether or not J is able to comply with the treatment set out in the CTO.

In her evidence about the RCMP coming to J’s home during the last CTO, some force has been applied in the past. That suggests that she did not in fact comply. This decision does not turn on that factor. [ 53 ] In the

article by Fraser Gordon, “The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act : A Potential Gap in Care for ‘Persistent’ Mental Disorders?” (August 13, 2020), the author noted that this new restriction on the definition of mental disorder may well create gaps for those that have traumatic-based brain injuries that are not treatable, for whom there are no community supports in place. Notably, the definition was narrowed in response to a decision about a detention order, not a CTO.

However, the definition remains the same for both types of orders. [ 54 ] Ultimately, while it appears to this Court that J does suffer from a mental disorder, it has not been proved by the Doctor to meet this aspect of the exact definition of the Act . J would most definitely benefit from the support the CTO provides her, but without meeting the specific requirements of the statute, a CTO is not available for this patient. [ 55 ] The Act does not explain what steps can be taken by health care providers for patients that suffer from mental disorders that are persistent and caused by a brain injury.

It is unfortunate that J may well be one of the people who is faced with a gap in strong supportive care due to the change in the legislation, even if that change was not driven by CTOs but Detention Orders. I note that J may, at any time, consent to treatment similar to the CTO. That is probably in her best interest, however improbable based on her evidence in court. [ 56 ] The appeal is granted, and the CTO is vacated. Heard on the 26 th day of April, 2023. Dated at the City of Ft. McMurray, Alberta this 4 th day of May, 2023.

Avril B. Inglis J.C.K.B.A. Appearances: J S Self-Represented Jessie Larter for the Dr. Ogunsona Janice Colobong for Alberta Health Services for the Respondents