2023 QCCA 1100, 2023 QCCA 1100

Centre intégré universitaire de santé et de services sociaux de l'Ouest-de- l'Île-de-Montréal (Douglas Mental Health University Institute) c. I.A. 2023 QCCA 1100 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030381-230 (500-17-123631-239) DATE: September 6, 2023 CORAM: THE HONOURABLE STÉPHANE SANSFAÇON, J.A. FRÉDÉRIC BACHAND, J.A. LORI RENÉE WEITZMAN, J.A. CENTRE INTÉGRÉ UNIVERSITAIRE DE SANTÉ ET DE SERVICES SOCIAUX DE L ’ OUEST-DE-L ’ ÎLE-DE-MONTRÉAL (DOUGLAS MENTAL HEALTH UNIVERSITY INSTITUTE) APPELLANT – Plaintiff v. I. A. RESPONDENT – Defendant and D. G.

IMPLEADED PARTY – Impleaded party JUDGMENT WARNING: Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P. ”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a matter regarding authorization for care to be identified (art. 16 C.C.P. ). [ 1 ] The appellant, the Centre intégré universitaire de santé et de services sociaux de l’Ouest -de-l’Île-de-Montréal (Douglas Mental Health University Institute), appeals a judgment rendered on January 19, 2023, by the Superior Court (the Honourable Mark Phillips), dismissing its application for authorization to treat the respondent.

The application failed primarily on the issue of categorical refusal. The judge also found that the evidence of incapacity was insufficient and that the beneficial effects of the proposed treatment had not been shown to outweigh its adverse effects. *** [ 2 ] The respondent is a 36-year-old man who was diagnosed with schizophrenia in 2003, at 17 years of age. He has been on medication since then. For the past 12 years, the respondent was taking olanzapine, an oral antipsychotic drug and his condition was stable.

He chose to stop taking this medication in the spring of 2022. [ 3 ] The respondent lives with his mother, the impleaded party. She called the police on November 11, 2022, when her son suddenly became violent with her, striking her twice on the back.

According to a police report filed by the appellant, she did not wish to press charges but expressed fear for her safety, particularly because of her son’s worsening behaviour since he ceased taking his medication some six months prior. [ 4 ] The mother gave the police examples of her son’s recent behaviour including shouting in the backyard until losing his voice, being outside with knives for no apparent reason, and destroying cushions in the home with knives. She also told the police that she had found a pointy piece of glass that her son kept on his bedside table.

The police officer who spoke to the respondent that evening described him as hallucinating, murmuring to himself, and relating that he hears voices. [ 5 ] That night, the respondent was brought to the Douglas Mental Health University Institute (“Douglas”) and a confinement order was issued by the Court of Québec on November 15, 2022.

That order was based on a clinical psychiatric examination conducted on November 12 and 13, 2022, which described the respondent as being in a disorganized mental state, exhibiting erratic and threatening behaviour, denying delusions and hallucinations, and having poor insight. [ 6 ] At the expiry of the confinement order on November 23, 2022, the respondent agreed to remain at the Douglas but maintained his refusal to take medication. On or about December 24, 2022, his father took him out of the Douglas and brought him back to his

mother’s home. An application for forced treatment was filed on January 12, 2023, accompanied by two reports of the respondent’s psychiatrist, Dr. David Bloom. [ 7 ] In a first report dated November 25, 2022 , Dr. Bloom notes that antipsychotic medication had kept the respondent stable in the past but that since he stopped taking it, he had become much more psychotic. He describes the respondent as hallucinated, mistrustful, and increasingly aggressive, but notes that he has not exhibited aggressive behaviour since his admission to the Douglas.

He states that the respondent has no insight into his condition and is unfit to consent to treatment due to his mental illness. [ 8 ] In his follow-up report dated January 6, 2023 , Dr. Bloom reiterates his opinion regarding the respondent’s incapacity to provide informed consent and confirms that he completely refuses to take his medication. He indicates that since returning to his mother’s home, the respondent is in a “precarious state” because he is not medicated and that “our experience with him is that this could put him at risk for violence”. [ 9 ] Nevertheless, Dr.

Bloom notes that the respondent had been well-behaved while at the Douglas, without exhibiting any active aggression, or suicidal or self-harming behaviours, and that he was able to eat and to socialize to a certain degree with the other residents. [ 10 ] At the hearing held two weeks later, Dr. Bloom testified that he had predicted a relapse of symptoms once the respondent stopped taking his medication and that this is precisely what he noted during the summer months of 2022. He described the respondent having hallucinatory behaviour, becoming increasingly disorganized and not being as assiduous in his hygiene.

These behaviours increased by the fall of 2022 when the respondent’s family reported other symptoms, culminating in his aggressive behaviour in November 2022. [ 11 ] Dr. Bloom also testified that he did not understand the sudden change in respondent’s attitude about taking his medication in the spring of 2022. He explained that it was very difficult to have a conversation with the respondent about the risks and benefits of medication because it would be a “one-way conversation”.

In fact, due to his illness, the respondent was not very expressive, and had limited speech and “impoverished thinking”. [ 12 ] According to Dr. Bloom, without the proposed medication, the respondent’s condition would likely worsen to the point of aggressive behaviour, increased symptoms and rehospitalization. [ 13 ] The respondent also testified at the hearing. He does not believe that he has a mental illness. He denies any deterioration in his condition since he ceased taking his medication and feels that since then, he is much calmer.

Specifically regarding the incident leading to the police involvement in November 2022, he claims that nothing happened, adding that “everything is calm, no problem, everything is fine”. He does not understand “the point of all this”, and feels that after so many years on medication, he has had enough. *** [ 14 ] The judge dismissed the application based on the absence of proof that the respondent had categorically refused to take the recommended medication. Although the respondent confirmed his refusal to be medicated, the judge noted that Dr.

Bloom was unaware of the respondent’s reason for refusing and this led him to conclude “that the issue of the medication has yet to be discussed in depth between the doctor and the patient.” The judge concluded that in the absence of meaningful exchanges between the respondent and his psychiatrist, the refusal of the respondent did not meet the test for forced treatment. [ 15 ] Although the judge concluded that this finding was sufficient to dismiss the application, he nevertheless addressed the other relevant criteria for authorizing treatment, which he also found had not been established.

First, he noted that the respondent’s lack of capacity to consent had not been established conclusively. Second, he concluded that the benefits of treatment did not clearly outweigh the adverse effects, noting that the incidents of violence dated back two months, whereas the respondent’s behaviour since his hospitalization raised no cause for concern. He reasoned as follows: The Court is also of the view that it was not clear that the benefits outweigh the adverse effects of treatment.

The proposed plan, based on a very reasonable group of antipsychotic medications, the choice of which was more than adequately explained by Dr. Bloom, could indeed be expected to procure benefits. It was also put into evidence that, apart from weight gain, there had been no obvious issues with side effects, at least not of the neurological variety. That said, [the respondent] explained that the medication made him angry and that he has felt better since he has stopped. No rebuttal evidence was offered by the plaintiff to either refute or otherwise put such a fact into context.

Without further analysis of that issue it is difficult to conclude that the benefits outweigh the risks, particularly given [the respondent’s] stable condition for the last month with no new issues of psychotic symptoms. It is true that Dr. Bloom referred to the risk of his becoming aggressive has occurred in the autumn of 2022, including hospitalization. Reference was made to police reports and to a decision of the Court of Quebec on an application for garde en établissement (Exhibits P-2 and P-3). However, Dr.

Bloom also pointed out that [the respondent] was remarkably polite with staff during his hospitalization and even engaged in some social interaction with his peers. In short, the Court cannot base its judgment today on facts, troubling though they are, that go back two months and that have not recurred, despite [the respondent] now having returned to live with his mother shortly before Christmas. [ 16 ] The judge concluded by leaving open the possibility of a future application based on additional evidence supporting the need for treatment. *** [ 17 ] In F.D. c.

Centre universitaire de santé McGill (Hôpital Royal Victoria) , [1] the Court sets out the list of factors to address in order to decide an application for forced treatment, beginning with a reminder that every person is inviolable and entitled to his or her integrity and self-determination, and that, in general, no one can be subjected to treatment without their consent. [ 18 ] As stated in F.D ., art. 16 C.C.Q places the burden on the applicant to establish two essential conditions, without which a judge cannot order treatment: (

i) incapacity to consent; and (ii) categorical refusal. Only once both conditions are met will the judge review the

proposed care plan according to the criteria set out in art. 12 C.C.Q . The judge must then consider two further questions, each one requiring further analysis: (iii) whether the care is required and, if so, whether the proposed treatment is described with sufficient precision; and (iv) whether the beneficial effects to be derived from the treatment outweigh the adverse effects. [ 19 ] If all four criteria are established, then the judge must ask what the duration of the order for treatment should be and finally address any outstanding conclusions sought. *** [ 20 ] The appellant raises several grounds of appeal.

It submits that the judge committed a palpable and overriding error in finding a lack of evidence of the respondent’s categorical refusal to accept treatment. In the alternative, it argues that he erred in failing to exercise his discretion , pursuant to art. 268 C.C.P., to allow the deficiency in the evidence of categorial refusal to be remedied. It further argues that the judge committed a palpable and overriding error in concluding that the evidence did not establish that the respondent was unfit to consent to treatment.

Finally, the appellant submits that the judge committed a palpable and overriding error in concluding that the benefits of treatment did not outweigh the adverse effects . [ 21 ] Without endorsing all the judge’s findings, the Court concludes that the appellant has failed to establish that he committed a reviewable error in finding that, at the time of the hearing and based on the record as it then stood, the beneficial effects of the proposed treatment had not been shown to outweigh the adverse effects.

Because the criteria to be examined on an application for authorization of treatment are cumulative, this conclusion must lead to the dismissal of the appeal. [ 22 ] On the issue of benefits vs adverse effects, the appellant refers to all the elements presented to the judge at the hearing. More specifically, it argues that over the past 10 years, the respondent has never complained of side effects other than weight gain and that he had been stable between 2010 and 2022 while being continuously treated with antipsychotic medication.

It contends that the evidence demonstrates the existence of risks associated with an interruption of treatment such as “pharmacoresistance”, and a deterioration of the respondent’s cognitive functions, as well as the disorganized, suspicious and hallucinatory state of the respondent upon his admission to the Douglas in November 2022. Finally, it stresses that according to the testimony of Dr.

Bloom, the proposed treatment would prevent the risk of psychotic relapses and of a deterioration of the respondent’s condition and avoid a potential rehospitalization. [ 23 ] Ultimately, the appellant invites the Court to review the evidence, reassess the benefits and adverse effects, and come to a different conclusion than that of the judge.

This is not the Court’s role. [ 24 ] Regarding the benefits and adverse effects of the proposed treatment, the judge accepted that it “could indeed be expected to procure benefits” and recognized that there were “no obvious issues with side effects, at least not of the neurological variety”. However, after considering the respondent’s testimony, as he was required to do pursuant to art. 23 para. 2 C.C.Q. and 391 C.C.P. , the judge pointed out that the medication made him angry and that he felt better since he stopped taking it.

The judge also noted that those assertions were not contradicted by any rebuttal evidence, and although the respondent’s mother was in the courtroom, she was not called as a witness to offer any further insight into her son’s behaviour, whether before his hospitalisation or since returning home, several weeks before the hearing. [ 25 ] The judge also accepted the testimony of Dr. Bloom that the respondent actually did better than expected while he was at the Douglas, exhibiting polite behaviour in his interactions with staff and his peers, and an absence of any aggressivity.

The very disturbing behaviour that was the catalyst for the respondent’s hospitalization and for the application for forced treatment had not reoccurred and, notably, the evidence is silent with respect to the significance of the respondent’s improved behaviour on the analysis of benefits and adverse effects. [ 26 ] In its closing argument at the hearing, the appellant focused on the precariousness of the respondent’s situation and the potential difficulties that might result from reintroducing medication after a prolonged period without it. [ 27 ] The judge addresses this concern in concluding that the evidence as presented was insufficient to authorize forced treatment: “Mere speculation as to the hypothetical recurrence of such behaviour it is not enough, […] to make an order forcing [the respondent] to take medication that he does not want.

That said, there may well come a day when such an order will be warranted, […] but today is not that day”. [2] [ 28 ] In short, on this issue, the judge did precisely what he was required to do; he considered whether the evidence established that the beneficial effects of the treatment outweighed its adverse effects, and he found the proof to be lacking on this question. Had the mother testified to contradict the respondent’s assertions and had Dr.

Bloom offered an explanation for the respondent’s unexpected stable situation at the Douglas and the absence of any psychotic symptoms during the two months preceding the hearing, despite his refusal to take medication, the judge’s conclusion may well have been different. Furthermore, should the appellant’s condition warrant a new application for forced treatment, such evidence may lead to a different result.

However, it cannot be said that the judge committed a palpable and overriding error in his assessment of the proof as presented. *** [ 29 ] While it is not necessary to examine the other grounds of appeal, the Court nonetheless wishes to add that it has serious misgivings about the judge’s analysis of categorical refusal and of incapacity. [ 30 ] On the question of categorical refusal, it would appear that the judge equates the fact that Dr. Bloom could not explain or did not know the respondent’s reasons for refusing treatment with the absence of meaningful exchanges about the proposed treatment.

However, the mere fact that Dr. Bloom did not know the reasons for the respondent’s refusal does not support the judge’s conclusion that no meaningful discussions had occurred. On the contrary, the evidence strongly suggests that that the respondent categorically refused to take any medication at all, despite Dr. Bloom repeatedly providing him with information about his treatment.

[ 31 ] On the finding of insufficient evidence of the respondent’s incapacity, the judge does not explain why he disagrees with the expert’s uncontested testimony. It is thus difficult to understand his cursory conclusion that “despite his lack of insight, the [respondent’s] lack of capacity to consent to care was not established conclusively”. FOR THESE REASONS , THE COURT : [ 32 ] DISMISSES the appeal; [ 33 ] WITHOUT legal costs, given the nature of the matter. STÉPHANE SANSFAÇON, J.A. FRÉDÉRIC BACHAND, J.A. LORI RENÉE WEITZMAN, J.A.

Mtre Stéphanie Brunet Mtre Rachel Bélanger CIUSSS DE L’OUEST-DE-L’ÎLE-DE-MONTRÉAL For the Appellant Mtre Michèle Gravel-Turgeon Mtre Simon Lacoste AIDE JURIDIQUE DE MONTRÉAL For the Respondent Date of hearing: July 4, 2023