2013 ONSC 2537, 2013 ONSC 2537

CITATION : Puri v. Papatheodorou, 2013 ONSC 2537 COURT FILE NO.: 03-05/13 DATE: 20130515 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Neetie Puri, Appellant AND: Dr. Papatheodorou, Respondent BEFORE: Carole J. Brown J. COUNSEL: Catherine Currie, for the Appellant Nyranne Martin, for the Respondent HEARD: April 29, 2013 reasons for decision [ 1 ] The appellant, Neetie Puri ("Ms. Puri") appeals the decision of the Consent and Capacity Board (" the Board"), dated January 12, 2013. [ 2 ] At the scheduled hearing of the appeal on April 18, 2013, counsel for Ms.

Puri, Catherine Currie, sought to introduce fresh evidence which was, only in part, before this Court. I adjourned the hearing to April 29, 2013, peremptory on both parties, in order to allow the appellant to bring a proper motion. The Motion to Admit Fresh Evidence [ 3 ] The appellant, Ms. Puri, brings this motion to admit fresh evidence on the appeal. The appellant seeks to admit two additional documents, one of which was available at the time of the Board hearing, and one which was only generated on April 17, 2013.

The first document is entered in evidence attached to the affidavit in support of the motion for fresh evidence. The second document is not attached to any affidavit, although reference is made to it in the affidavit. The affidavit further appends a COTA Case Management Application form, completed on April 10, 2013 by a COTA caseworker, a list of COTA Mental Health Case Management services and a real estate listing, which places the appellant's condominium for sale. [ 4 ] Ms.

Currie, on behalf of the appellant, submits that the first document sought to be adduced as fresh evidence, a CAMH Initial Assessment dated December 23, 2012, is relevant to the issues on appeal as it indicates that the patient admitted herself to the hospital voluntarily, demonstrating that she had insight into her condition, which should have been considered by the Board. The appellant submits that while it was available at the time of the hearing, it was not produced as the appellant had not contemplated that the respondent would be unaware of how the appellant came to hospital. Ms.

Martin, on behalf of the respondent, submits that there was evidence before the Board indicating that the appellant had come to CAMH voluntarily.

The record before the Board does indeed indicate this. [ 5 ] The appellant's counsel argues that the first document clarifies a point raised during the Board hearing relevant to the outcome and demonstrates that the Board ought to have recognized as insight on the part of the appellant the fact that the appellant sought care for her mental illness by coming of her own volition to a hospital specializing in treating mental illness. [ 6 ] I note that the document does not indicate, on its face, that the appellant was admitted voluntarily, or otherwise.

It is not clear from the document sought to be admitted that the appellant came to CAMH herself, voluntarily and, in this regard, does not add anything to the record that was before the Board. It cannot be concluded, based on this document, that she admitted herself voluntarily based on her "insight" into her condition. I do note that the record that was before the Board clearly indicated that the appellant was admitted voluntarily and thereafter her status was changed to involuntary, given her indication that she would not remain voluntarily, and given the assessment by the medical team.

I do note further that the document indicates that all information on admission was obtained from the appellant's parents, as she was, at the time of admission, "mute" or not speaking. It further indicates that, with respect to risk symptoms, she displayed self-harm behaviours such as hitting herself, and also displayed evidence suggesting psychotic behaviour.

The assessment form indicates, with respect to the "Mental Status Examination" conducted at the time of admission, that, in appearance, the appellant was "Unkempt malodorous, dirty clothes, no jacket, sunglasses, oversized hat, scarf covering face." In "affect", the assessment indicated that they were “unable to assess, patient mute". With respect to risk symptoms/history, it further indicates that the appellant hits herself when agitated. [ 7 ] Thus, the document, on its face, does not clearly indicate that the appellant came to hospital voluntarily.

It does, however, provide additional evidence of psychotic behaviour and risk of serious physical impairment at the time of admission. [ 8 ] The second document is an e-mail from a caseworker, Melissa Levett, with what is described as a plan for treatment by COTA Health, completed by her after having met with the appellant on April 17, 2013 on a referral from her lawyer, Ms. Currie. COTA Health is described, in the document, as a not-for-profit mental health and social service organization which offers community-based mental health support services on a voluntary basis.

The e-mail comprising six paragraphs sets forth, in general terms, goals to be achieved to assist Ms. Puri to reintegrate into the community upon release from hospital. The goals

identified include housing, mental health/physical health and financial. [9] It indicates that she would be returned to her residence, although this appears to have been written prior toinformation contained in the affidavit in support of this motion indicating that her condominium had been listed for sale by herparents, who are her powers of attorney, and conditionally sold. The e-mail further indicates that she would be assisted incompleting applications for Toronto Community Housing and CASH, both of which are subsidized housing facilities.

It furthernotes that the appellant has scheduled an appointment to meet a new family doctor and indicates that she would be willing toparticipate in further assessment of her mental health and follow treatment recommendations made.

Finally, it indicates that shewould be assisted in obtaining financial aid. [10] The e-mail indicates that case management services of this nature would be offered "on a voluntary basis", as long asthere is an identified need for case management services and she can be safely supported in the community". [11] I note that the Case Management Application Form, attached to the affidavit in support of this motion, andparticularly in support of the admission into evidence of the COTA e-mail, indicates that the caseworker who completed theapplication form states that "I believe she is capable to make her own decisions and deserves to have a proper assessment anddiagnosis." [12] Based on the evidence before me, the caseworker is not a psychiatrist or psychologist, and without credentials to makesuch an assessment herself.

I further note, from this evidence, that no assessment or diagnosis has presently been undertaken. Itis further clear from the application that neither CAMH, nor the appellant's present psychiatrist at CAMH, have beenconsulted. Indeed, the form indicates that her present psychiatrist at CAMH, Dr. Diaz, "will not be psychiatrist outsideinstitution – do not share information." The Law and Analysis [13] The jurisdiction of this Court, pursuant to the Health Care Consent Act, s. 80(9), is to hear the appeal on the evidence,both documentary and viva voce, that was originally before the Board.

The Court may receive new or additional evidence as itconsiders just. The four criteria to admit new and/or additional evidence, as set out by the Supreme Court of Canada in R. vPalmer, (SCC), [1980] 1 S.C.R 759 ,relied on by both parties is as follows: 1. The evidence should not be admitted if by due diligence it could have been adduced at trial; 2. The evidence must be relevant, and bear upon a decisive or potentially decisive issue; 3. The evidence must be credible; and 4.

The evidence, when taken with the other evidence adduced at trial, could reasonably be expected to have affected the result. [14] The appellant argues that the fresh evidence will assist this appellate court in determining the issues of voluntarinessand capacity, and the foundation of risk of serious impairment. The appellant relies on the case of R. v Palmer, supra, withrespect to the above-noted four-part test for admission of fresh evidence on appeal.

She further relies on the case of Sengmueller vSengmueller, 1994 CanLll 8711 (ONCA) at paragraph 10 for the proposition that, where the evidence did not exist at the time ofthe original hearing, but is necessary to deal fairly with the issues on appeal and that to decline to admit the evidence could leadto a substantial injustice in the result, it should be admitted. [15] Ms. Currie argues that the items of fresh evidence sought to be admitted relate to voluntariness and capacity, and thefoundations of risk of serious physical impairment.

She submits that the documents evidence the appellant's insight into hercondition from the beginning and her willingness to seek help to integrate into the community as of the present time. [16] The appellant submits that the e-mail from Ms. Levett of COTA containing the outline of services to be offered, whichwas clearly not in existence at the time of the Board hearing, and was only created, with the assistance or referral of her lawyer, the day prior to the original scheduled appeal, is relevant and demonstrates the appellant's understanding of her condition andher capacity to accept help in the community. Ms.

Currie submits that this information was not discoverable until the appellantfully understood her own situation vis-à-vis her family and what CAMH could and could not offer her. [17] Ms.

Martin, on behalf of the respondent, argues that the evidence should not be admitted, that it does not establishwhat it is purported to establish and does not add anything to the evidence already before the Board; that the first document, theCAMH Initial Assessment form, does not, on its face, indicate voluntary admission, although another piece of evidence before theBoard at the time of the hearing does; that the second document sought to be admitted does not, in fact, constitute evidence thatthe appellant is willing to receive psychiatric treatment or psychiatric follow-up and does not reflect input from the hospitalclinical team.

The respondent argues that the two sets of materials sought to be introduced demonstrate that the appellant cameto hospital as a result of significant concerning behaviour in the community, that the appellant's condominium has beenconditionally sold and she may have nowhere to live at present, and that she still has no current medication or psychiatric follow-up pursuant to the e-mail from the COTA caseworker, Ms. Levett. The respondent argues that none of this documentationsought to be admitted as fresh evidence is relevant to the determination of the issues before this Court on appeal. [18] Ms.

Martin, on behalf of the respondent submits that the first set of materials, namely the CAMH MultidisciplinaryInitial Assessment of the applicant dated December 23, 2012 was clearly available at the time of the hearing. She argues that thefirst document does not indicate that the appellant came to the hospital voluntarily, but does provide additional evidence ofserious physical impairment suffered by the appellant while in the community. The respondent further argues that she hadintroduced as an exhibit at the hearing documentary evidence indicating that the appellant had come to the hospital voluntarily.Ms.

Martin argues that the new evidence sought to be admitted will not add anything.

[ 19 ] The respondent further submits that securing community support through a caseworker at COTA does not reflect the appellant's willingness to receive psychiatric treatment or psychiatric follow-up.

The respondent notes that the COTA application, appended to the affidavit, does not reflect any input from the hospital clinical team and specifically states that the CAMH psychiatrist will not be her psychiatrist outside the hospital and information should not be shared with him. [ 20 ] The respondent argues that while the documentation sought to be introduced at the motion for fresh evidence demonstrates that the appellant came to the hospital as a result of significant concerning behaviour in the community, it does not address the issues before this Court on appeal.

However, it does demonstrate that she presently has no current medication or psychiatric follow-up, may have nowhere to live at present and may have financial issues to deal with. The respondent submits that the issues for determination on appeal are whether the Board erred in finding that the appellant was incapable of consenting to treatment and whether she met the statutory requirements for involuntary hospitalization as of the date of the hearing.

The respondent argues that new evidence bearing on the patient's circumstances which has come to light subsequent to the hearing is irrelevant to the Court's determination on appeal. [ 21 ] Further, the respondent argues that the appellant seeks a hearing de novo , which would run contrary to the role of the court on appeal, and relies, in this regard on Starson v Swayze , [2003] SCJ No 33 , 2003 SCC 32 , [2003] 1 S. C.

R. 722 . [ 22 ] I find, based on the materials before me, that the fresh evidence sought to be admitted does not meet the Palmer test, nor does it meet the guidelines set forth in Sengmueller, supra . While the evidence appears credible, the first document could have been admitted at the Board hearing. I do not accept the appellant's submission that the evidence of the respondent regarding the status of admission was unanticipated, and that it was for this reason that the initial assessment form was not put before the Board.

Moreover, the Board did have evidence of the fact that the appellant was admitted on a voluntary basis, such that this additional evidence adds nothing. Moreover, the issue before the Board was whether, at the time of the hearing, the conditions for involuntary status continued to be met. Based on the record on appeal, all evidence regarding the change in status from voluntary to involuntary was before the Board. [ 23 ] I do not find the fresh evidence is relevant, nor that it bears upon a decisive or potentially decisive issue.

I do not find, for the reasons that I have cited above, that the documents, when taken with other evidence adduced at the hearing, could reasonably be expected to have affected the result. I do not find that the evidence sought to be adduced is necessary to deal fairly with the issues on appeal nor that to decline to admit the evidence could lead to a substantial injustice.

The issues before the Board at the hearing, were to determine whether the applicant met the second branch of the capacity test, namely whether she was capable of making treatment decisions applicable to herself and of consenting to treatment, and whether, at the time of the hearing, the conditions for involuntary status continued to be met. As indicated above, with respect to the issue of voluntariness, there was evidence before the Board of her voluntary admission, from which insight or the lack thereof could have been considered and no further evidence need be admitted in that regard.

With respect to the second document sought to be admitted, I do not find this to be of assistance to the considerations under appeal, but rather it is a piece of evidence, which, while it may be a good resource for Ms. Puri when she ultimately seeks to reintegrate into the community, is not of assistance or relevant to the issues on appeal. Indeed, in the case of the second piece of evidence, I find it to be vague with respect to a plan, provides no actual assessment of her present circumstances or condition and only indicates what COTA will, on a voluntary basis, be able to provide to her.

Moreover, it demonstrates that the appellant may not be able to return to her residence, may end up in a shelter, does not have current medical or psychiatric plans in place and may be in an unstable position were she to be released forthwith from hospital. As previously indicated, I do not find the evidence sought to be adduced relevant to the issues before the Court on appeal. Further, I find the evidence to be more supportive to the respondent than the appellant. [ 24 ] Based on all of the foregoing, I dismiss the appellant's motion to admit fresh evidence. The Appeal [ 25 ] The appellant, Neetie Puri ("Ms.

Puri"), appeals the decision of the Consent and Capacity Board ("the Board") dated January 12, 2013 (written reasons released January 29, 2013) regarding confirmation of the appellant's involuntary status pursuant to s. 20(5) of the Mental Health Act , R.S.O. 1990, c. M. 7, as amended and the appellant's incapacity with respect to treatment.

The appellant submits that (1) the Board erred in finding that the requirements for involuntary status pursuant to the Mental Health Act were met, and that, in confirming said status, the Board erred in misapprehending the evidence properly before it; and (2) the Board erred in finding the appellant incapable with respect to treatment using anti-psychotic psychotic medications (oral and intramuscular), anti-side effect medications, associated bloodwork, anti-cholinergic medications and benzodiazepine, and erred in its assessment of the evidence related thereto. The Facts [ 26 ] The appellant, Ms.

Puri, was, at the time of the hearing, 33 years old, single and without children. She was living on her own in a Toronto condominium, was unemployed and was being supported financially by her family. Her parents reside in New York City and her sister resides in Toronto. Her last employment was as an Assistant Service Officer for a government agency in mid-2011.

She had also taken some nursing courses, but had not completed a degree. [ 27 ] Her past health history included laparoscopic adjustable gastric band (lap band) surgery in 2011 and a previous psychiatric admission to Scarborough General Hospital in September of 2011. At that time, she had presented with paranoid delusions, similar to those reported by her family during the December 23, 2012 admission to CAMH, was diagnosed with schizophrenia and was placed on a Form 3 due to risk of serious physical impairment and a Form 33, and prescribed medications.

Her mother, who was appointed her SDM, disagreed with the diagnosis. Ms. Puri refused treatment and also refused referral for outpatient services. She appealed the Forms. She was ultimately discharged and discontinued all medications. [ 28 ] Ms. Puri's family brought her to the CAMH Emergency Department on December 23, 2012 due to their concerns

about her ability to care for her basic needs and due to the fact that she had been mute for over a week and was engaging in bizarre, paranoid behaviours. [ 29 ] Ms. Puri was diagnosed with schizophrenia, paranoid type. Treatments prescribed included the use of anti-psychotic medications, both oral and intramuscular, associated bloodwork and use of anti-side effect medications to treat possible side effects, namely anti-cholinergic medications and benzodiazepines. Dr. Lynch, who conducted the assessment, advised Ms.

Puri that she suffered from a psychiatric disorder, advised her of the prescribed treatments, and advised her with respect to the expected outcomes with and without treatment. Ms. Puri denied having psychosis, insisted that she suffered from depression and that she needed behaviour modification treatment or "talk therapy". [ 30 ] On December 25, 2012, Ms. Puri was assessed by Dr. Goldbloom, who admitted her on a Form 3 Certificate of Involuntary Admission. This was subsequently renewed on January 7, 2013 by the Respondent, Dr. Papatheodorou. [ 31 ] On December 27, 2012, Ms.

Puri was assessed with respect to capacity by Dr. Josée Lynch, who found that Ms. Puri passed the first branch of the capacity test, but failed the second branch. Accordingly, Dr. Lynch found Ms. Puri to be incapable with respect to the proposed treatment. [ 32 ] Ms. Puri applied for a review of her involuntary status and the finding of incapacity regarding treatment. The Consent and Capacity Board hearing took place on January 11, 2013. Ms. Puri was represented by counsel. The Board Hearing [ 33 ] The evidence before the Board included (

i) the CCB

Summary re: Involuntary Status, prepared by Dr. Lynch and Dr. Papatheodorou dated January 10, 2013; (ii) the CCB

Summary re: Capacity, prepared by Dr. Lynch and Dr. Papatheodorou dated December 28, 2012; (iii) a letter from Ms. Puri's parents dated December 21, 2012, (iv) an e-mail from Ms. Puri's parents to Dr. Papatheodorou dated January 3, 2013; (

v) a Form 4 under the Mental Health Act (MHA), issued by Dr. Papatheodorou dated January 7, 2013; and (vi) a Form 33 under the MHA issued by Dr. Lynch dated December 27, 2012. Viva voce testimony was given by both Ms. Puri and Dr. Papatheodorou . [ 34 ] Dr. Papatheodorou gave evidence, both oral and documentary, regarding his observations and assessment of Ms. Puri and collateral clinical information from clinicians and medical staff at CAMH who had also observed and assessed her, information obtained from members of Ms.

Puri's family, the finding of incapacity and the finding with respect to her involuntary status. With respect to the finding of incapacity, he relied on and deferred to the clinical notes of Dr. Lynch, who had made the finding of incapacity. With respect to the Form 4 Certificate of Involuntary Admission, he relied on and deferred to the clinical notes of Dr. Goldbloom who had undertaken that assessment. [ 35 ] At the hearing, Dr. Papatheodorou testified that, from the time of Ms. Puri's admission, he had approached her approximately every couple of days for 5 to 10 minutes to assess her.

He indicated that she had refused to meet with him and routinely terminated the assessment.

He testified that she gets very angry, tells him that he is harassing her or tells him that his children are terrible, walks away, then returns shouting or screaming at him. [ 36 ] He testified regarding his concerns for her physical well-being, including his concern that she had not had any follow- up from her bariatric surgery, despite indications that such follow-up is essential and also gave evidence that she had been requesting double portions of food, which is not recommended, given the surgery. [ 37 ] With respect to the capacity and involuntary assessments, Dr.

Papatheodorou deferred to Doctors Lynch and Goldbloom who conducted those assessments and to their progress notes contained in the clinical summaries. [ 38 ] Dr. Papatheodorou gave evidence that he met with Ms. Puri's mother and sister on December 31, 2012 and received written documentation from the family, who reported that Ms. Puri showed a lack of ability to care for herself in the community, which caused them concern as she had previously been hospitalized for mental health issues. [ 39 ] The CCB

Summary with respect to Ms. Puri's admission, which was in evidence before the Board, indicates as follows: Ms. Puri was brought to the CAMH emergency department by her family due to concerns about her ability to care for her basic needs. At the time, she had not spoken in over a week and was engaging in bizarre paranoid behaviours. According to her mother and sister, Ms. Puri would stand in one spot for hours at a time, staring ahead blankly. She refused to sleep on her back, instead choosing the floor. She was wearing a towel around her genitals at night due to fears of being assaulted.

She had been letting taps run continuously, and caused a flood in her apartment resulting in approximately $6000 worth of damage. Her landlord had recently found her wandering around outside in clothing that was not appropriate for the cold weather, and also once found her sleeping by the garbage. She had also not been tending to her hygiene, showering once a month, and only with prompting. Ms. Puri has shared with her family that she felt her mind was being controlled by "an unidentified institution" that communicated with her through deprecating voices.

She has spoken to her family about laser surveillance and satellite surveillance. She has stated that her computer has been hacked into. The patient has also been difficult to keep in touch with, due to not answering the phone or e-mail due to worries about a tap. This has made her family worry further, given how disorganized her behaviour has become and her high degree of dependence on her family to provide her with food, pay for her shelter, and help her with cleaning (she has not cleaned her condo in over a year).

Her family stated that her condo has become a safety hazard due to its state of squalor, and her lighting of incense sticks placing her at high risk of fire. Given these safety concerns, the patient's family brought her to CAMH for treatment. [ 40 ] These notes are corroborated by observations of the medical team and by nursing notes contained in the

Summary. The observations of the medical staff include the following: Since her admission on the Early Psychosis Unit, the patient has engaged minimally with staff. She refuses treatment. She states

that everything is a "misunderstanding" and denied all psychotic symptoms. She continues to refuse to sleep on a bed, instead spending the whole night sitting up in a chair.

She constantly wears large and dark sunglasses, a tattered hat and multiple scarf [ sic ] because she "doesn't want the people to see her" but refuses to elaborate. [ 41 ] The nursing notes dated January 3 to January 10 indicated that the appellant had, persistently over this time, verbally abused staff making such statements to staff as "I hope your kids die"; calling the dietary staff "fucking black bitch"; stating that all the night nurses are "lazy bitches"; calling a nurse "an old hag", "an old douche bag" and "an ugly hag".

The notes further indicate that the appellant wanders the hallways late at night and in the early morning hours, has been found asleep in the hallway, sitting in a chair, has barricaded the door of her room with a weighted chair so that the nurses cannot enter. There is indication that, on January 8, 2013, she complained of chest pain, became increasingly agitated and escalated during a short interview, had refused to be seen by a nurse practitioner and demanded to see a doctor. Despite the chest pain, she refused to accept any attendant care by the nurses.

The nurses notes further indicate that she has requested double portions of food, as well as requesting staff to purchase a pizza for her, despite her restrictions arising from the bariatric surgery, and has become verbally abusive when such is denied to her. [ 42 ] The notes of Dr. Lynch, who conducted the Capacity Assessment indicate that, when asked about her insistence on wearing large sunglasses and a worn and/or tattered hat, she stated that "these are things I am not willing to talk about". When further challenged, she indicates that she is allowed to be quirky and refuses to discuss it further.

She advised Dr. Lynch that she had been sleeping on the floor and on a chair because "too many people slept in that bed, including men, and who knows what they do in there" and refuses to elaborate. With respect to the issues of psychosis and depression, the appellant confirmed a lack of motivation, lack of energy and poor concentration and described her mood as "angry". Dr.

Lynch's notes indicate that she discussed her diagnostic impressions with the patient regarding psychosis, either as part of schizophrenia or schizoaffective disorder, informed her of the indicated treatment (antipsychotic medications) and the anticipated outcomes with treatment and without treatment. Dr. Lynch shared her concern that her mental state would continue to deteriorate without treatment, and the longer psychosis goes untreated, the longer it takes to respond to medications.

She noted the appellant's functional impairment over the previous year regarding her lack of ability to gain employment, her lack of ability to look after her apartment and hygiene, as examples of consequences of her illness being untreated. [ 43 ] Dr. Lynch notes that while the patient understood the information provided, she did not accept that she had psychosis, but insisted that she only had depression and that medications would not be helpful. She wanted to be treated with "talk therapy" for her depression and refused to discuss other alternatives.

She did not believe that non-treatment would result in any negative consequences and requested that their meeting come to an end because Dr. Lynch was "too powerful" and that it was "toxic for me to be around her". Dr. Lynch's assessment was that "due to her lack of insight into her condition, she is not able to appreciate the consequences of treatment versus non-treatment of her psychosis. She is not capable of consenting to treatment of her psychosis.” [ 44 ] The correspondence from the appellant's parents, dated December 21, 2012, and addressed "To Whom It May Concern", enumerate their concerns regarding Ms.

Puri which are consistent with the medical notes and records summarized above. There is no evidence to indicate when these notes were provided to CAMH. The letter indicates that Ms. Puri: (

i) was showing "no mental capacity to take care of herself, property, hygiene, surroundings, etc. due to unexplained mind control phenomena"; (ii) had "not slept in a bed for more than a year, as if getting commands from someone.

She has been sitting on a chair 24/7 or at times in a shut closet…"; (iii) had "not been to the shower more than once a month"; (iv) had "not touched a family member… thinking that they will also be trapped by an unidentified institution"; (v) "shared that the unidentifiable group might give her multiple life-threatening diseases"; and (vi) had no income or ability to pay her bills resulting in accumulation of debt. [ 45 ] Ms. Puri testified as follows. She refuted the evidence of Dr. Papatheodorou and her family and also denied the accuracy of the hearsay evidence from her family as relayed by Dr.

Papatheodorou . She denied having any mental disturbance, although she admitted to depression. She admitted that during her episodes of depression she has low levels of energy, doesn't like to cook, doesn't feel like cleaning, doesn't clean her apartment, doesn't like to go out. She admitted her apartment was messy, but not dirty. She admitted that if she were to be treated for depression in the hospital she would stay as a voluntary patient, but not if she were treated for psychosis.

With respect to the concerns about her ability to take care of herself and, particularly, her failure to follow-up after the bariatric surgery despite indications by the surgeon that this was essential, she indicated that it is her right to decide whether she wants to follow-up with treatment or not. She denied all of the observations and instances of psychotic behaviour and other instances noted by doctors, nurses and her parents. It was clear from reading the transcript that she often avoided direct answers, obfuscated and changed answers during cross-examination.

The Findings of the Board [ 46 ] Based on the evidence given at the hearing, the Board found that the Appellant was incapable of making decisions regarding her treatment. [ 47 ] The Board held, on a balance of probabilities, that the Appellant "did have a "mental disorder". [ 48 ] The Board found as follows: As NP lacked the ability to consider the possibility that she was experiencing a mental condition the manifestations of which may be reduced with treatment, she was unable to weigh the risks and benefits of the proposed treatment in light of her own circumstances.

She was, in other words, unable to consider the decision about treatment in the context of her current condition and evaluate the choices available to her. Given our finding that NP was unable to acknowledge the possibility of Dr. Papatheodorou 's diagnosis, we could find no basis to agree with her counsel's argument that NP could weigh the risks and benefits of treatment and simply wanted to explore other

means of treatment. The panel did not accept this

interpretation of the evidence. We did not find that NP was, in fact, weighingthe risks and benefits of treatment but had determined that she had no need for the treatment because she had no condition forwhich the treatment may benefit. [49] Given the foregoing, the panel held that NP was not capable of making decisions about the proposed treatment. [50] With respect to the issue of her involuntary status, the Board found that Ms. Puri's level of disorganization, verballyabusive behaviour and lack of ability to care for herself could result in her serious physical impairment unless she remained inhospital.

The Board further found as follows: It was Dr. Papatheodorou's evidence that NP was not suitable for voluntary status. When questioned about a statement made byDr. Goldbloom on December 25, 2012 that indicated NP's willingness to remain in hospital as a voluntary patient (Exhibit 1,page 5), Dr. Papatheodorou explained that NP was only willing to stay voluntarily if she were being treated for depression. Giventhat she had been presenting with symptoms that were psychotic and not depressive in nature, he did not believe that NP wouldremain in hospital as a voluntary patient.

NP also testified that she would only remain in hospital as a voluntary patient if shewere being treated for depression. [51] Based on the above, the panel held that NP was not suitable to be a voluntary patient and that the criteria forinvoluntary status were established on a balance of probabilities. The Issues [52] The issues on appeal are as follows: 1. The standard of review and burden of proof applicable at the hearing before the Board; 2. Whether the Board failed to require corroboration of Dr. Papatheodorou's evidence pursuant to s.14 of the Evidence; 3.

Whether the Board made findings of fact on the basis of no or insufficient evidence; 4. Whether the Board erred in finding that the statutory requirements for a finding of involuntary status under the MHA weremet; 5. Whether there was evidence to support the Board's finding that Ms. Puri was incapable of making treatment decisions. [53] The parties were in agreement with respect to the Court's jurisdiction and powers on appeal, the standard of reviewapplicable to the Board, the statutory requirements for involuntary admission and the statutory test for treatment capacity. The Law and Analysis.

The Applicable Standard of Review and the Legislative Scheme The Standard of Review [54] A party before the Board has a broad statutory right of appeal to the Superior Court of Justice from Board decisions onquestions of law, fact or both. Section 80(1) of the HCCA provides that the Court may exercise all the powers of the Board, substitute itsopinion for that of the Board, or refer the matter back to the Board for rehearing. As recognized by Major J. in Starson v.

Swayze, 2003SCC 32, the Board, as an expert tribunal, is subject to some deference. [55] The Supreme Court of Canada has held that the standard of review on questions of law before the Board is correctness whilethe application of the law to the facts is to be reviewed on a reasonableness standard. [Starson v. Swayze, supra, paras. 5, 84, 88, 110].The Board’s conclusion must be upheld provided it is among a range of conclusions that could reasonably have been reached on the lawand evidence: Starson v. Swayze, supra; New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (Dunsmuir).

The question isnot how this Court would decide the case, but whether the Board’s decision was reasonable: Conway v. Jacques, (2002) (ON CA), 214 D.L.R. (4th) 67, 159 O.A.C. 236, (Ont.

C.A.), Khosa v Canada (Minister of Citizenship & Immigration), 2009 SCC12. [56] In Dunsmuir, supra, para. 47, the Supreme Court defined reasonableness as follows: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range ofacceptable and rational solutions … In judicial review, reasonableness is concerned mostly with the existence of justification,transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within arange of possible, acceptable outcomes which are defensible in respect of the facts and law. [57] With respect to the application of the reasonableness standard to Board decisions, the Court of Appeal for Ontarioacknowledged in Giecewicz v.

Hastings, 2007 ONCA 890, para. 13, that “the reasonableness inquiry dictates respect for the expertiseand advantaged position of the Board.…it also, however, demands a somewhat probing examination of the reasons offered by the Boardfor its conclusion. That examination must ensure that the reasons taken as a whole provide a line of analysis, supported by the evidencethat can reasonably justify the Board’s conclusion.” [58] The applicable standard of review and power of this Court on appeal are not contested by the Respondent. The Legislative Scheme

[ 59 ] Pursuant to s.4 of the Health Care Consent Act , 1996, S.O. 1996, Ch 2, s.4 , (“ the HCCA ”), a person is capable with respect to treatment if the person is (1) able to understand information relevant to making the decision about the treatment; and (2) able to appreciate the reasonably foreseeable consequences of a decision or lack of one. [ 60 ] The determination involves two criteria. First, while a person need not agree with a particular diagnosis, she must be able to recognize the possibility that she is affected by the condition.

This requires the cognitive ability to process, retain and understand the relevant information. Second, the patient must be able to apply the relevant information to her circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof: Starson v. Swayze , supra , at para. 87 . If a patient’s condition results in her being unable to recognize that she is affected by its manifestations, she will be unable to apply the relevant information to her circumstances and unable to appreciate the consequences of her decision: Starson v. Swayze , supra , at 79-81.

The Burden of Proof [ 61 ] The applicable burden of proof under the HCCA rests with the health practitioner on a balance of probabilities. There is a presumption of capacity that must be rebutted by the Respondent. Evidentiary Issues Was the Evidence Corroborated? [ 62 ] The Evidence Act , R.S.O. 1990, c.E.23, s.14, requires that, in proceedings involving incapacity, a decision cannot be based on the party’s own evidence, unless corroborated by some other material evidence.

While the Evidence Act does not define what constitutes corroboration, Canadian jurisprudence recognizes that, both at common law and under statute, corroborative evidence is evidence from a source extraneous to the witness whose evidence is to be corroborated that is relevant to a material fact in issue, and that tends to show that the witness whose evidence needs corroboration is telling the truth: Repe v. State Farm Automobile Insurance Company , 2011 ONCA 341 (Can LII). Corroboration is not a term of art, but a matter of common sense: R. v. Warkentin et al , [1997] 2 SCR 355 .

In the context of Board hearings, a treating physician’s evidence may be corroborated by the patient’s evidence: T(L), Re , 2004 Carswell Ont. 833 (ON CCB) . [ 63 ] The appellant submits that the Board failed to require corroboration of Dr. Papatheodorou 's evidence as required pursuant to s.14 of the Evidence Act . Dr. Papatheodorou submits that there was ample corroborating evidence before the Board.

The Board relied, in making its decision, on evidence from multiple sources including the clinical notes and records that were adduced in evidence, the contents of which are admissible as proof of the statements contained therein. The Board also relied on hearsay evidence of the appellant's family, as reported to Dr. Papatheodorou , and as contained in the transcripts and exhibits. [ 64 ] The Board's Rules of Practice acknowledge the admissibility of hearsay evidence, as follows: at the hearing, the Board may admit any evidence relevant to the subject matter of the preceding.

The Board may receive any facts agreed upon by the parties without proof or evidence. The Board may direct the form in which evidence shall be received. Moreover, the Supreme Court of Canada, in Starson v Swayze , [2003] S.C.J. No. 33 , 2003 SCC 32 , [2003] 1 S.C.R. 722 , clearly confirmed the admissibility of hearsay evidence at Consent and Capacity Board hearings, citing s.15(1) of the Statutory Powers Procedures Act . The Supreme Court of Canada stated: … The Board will often be forced to rely on hearsay evidence to become fully informed of the patient's circumstances.

The weight to be accorded to such evidence is normally a matter that is left to the discretion of the Board. [ 65 ] The Board, in its decision, recognized its power and limitations to consider hearsay evidence, stating as follows: It has long been established that it is within the power of the Board to consider hearsay evidence. The authorities, however, have established that it would not be wise for a panel to rely solely on hearsay evidence and that the hearsay evidence that is admitted should be balanced with direct testimony from the attending physician. [ 66 ] The evidence of Dr.

Papatheodorou was corroborated by the clinical notes and records, which contained the notes and assessments of Doctors Goldbloom and Lynch regarding the assessments of involuntary status and incapacity, the nurses notes contained in the CCB

Summary, and the other documentary evidence adduced at the hearing. The Board also took into account the evidence of Ms. Puri which the Board weighed and with respect to which it made findings of credibility, as it is entitled to do. The Board found, based on its observations of the witnesses and their testimony given, that it preferred the evidence of Dr. Papatheodorou to that of Ms. Puri. The Board's reasons were adequate, reasonable and, read as a whole, in the context of the evidence before the Board, indicate clearly the reason for which the Board decided as it did.

Was There Evidence to Support the Board's Finding of Incapacity [ 67 ] The two-part test regarding incapacity is set forth at paras. 59 and 60, above. While the Board found that Ms.

Puri satisfied the first part of the test, they held that she did not satisfy the second part of the test. [ 68 ] The Health Care Consent Act [HCCLA], s.4 (1), codifies the statutory requirements for treatment capacity, and provides as follows: A person is capable with respect to a treatment (…) if the person is able to understand the information that is relevant to making a decision about the treatment (…) and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. [ 69 ] The first branch of the capacity test requires the ability to understand the information relevant to making treatment decisions.

This requires the cognitive ability to process, retain and understand the relevant information. The second branch of the capacity test requires the ability to appreciate the reasonably foreseeable consequences of the decision. This requires a person

to have the ability to apply the relevant information to his or her circumstances and the ability to weigh the foreseeable risks and benefits of a decision. There is a statutory presumption of capacity. [ 70 ] While Dr. Lynch was of the opinion that Ms. Puri met the requirements of the first branch of the test, namely she understood the information provided, Dr.

Lynch concluded that she did not meet the second branch of the test as she did not appreciate the reasonably foreseeable consequences of her decision and, indeed, refused to believe that she suffered from psychosis. [ 71 ] Based on the evidence before it, the Board found, on a balance of probabilities, that Ms. Puri failed the second branch of the capacity test. The Board's finding is a question of mixed fact and law and, accordingly, is entitled to deference. [ 72 ] While the appellant submits that the Board erred in taking judicial notice of two facts, namely (

i) that anti-psychotic medications were safe and would be of benefit to her; and (ii) their untreated psychosis would continue unabated over time, or worsen, the Respondent submits that this argument falsely assumes that the Board's decision was based on these positions and that the Board took judicial notice of such positions.

I do not find these considerations to have been in issue, persuasive or determinative of the issues before the Board. [ 73 ] Pursuant to the decision in Starson v Swayze , supra ., the second branch of the capacity test is met where the individual is able to apply the information concerning the proposed treatment to his or her own situation and to weigh the foreseeable risks and benefits of the decision. The Board was required to review the finding of incapacity with regard to consent to treatment, having regard to the capacity test.

The issue before the Board was not the efficiency or benefit of the treatment to Ms. Puri, but, pursuant to Starson v Swayze , supra. , Ms. Puri's ability to "consider the possibility that she was experiencing a mental condition, the manifestations of which may be reduced with treatment". As observed by McLachlin C.

J. of the Supreme Court of Canada in Starson , supra. , at paragraph 36: The issue is not the efficacy of the proposed treatment or what would be in that patient's best interests, but the capacity of Professor Starson to make decisions about treatment under section 4 (1) of the HCCA – whether Professor Starson is able "to appreciate the reasonably foreseeable consequences of a decision or lack of decision". [ 74 ] The finding of incapacity was made by Dr. Lynch. Her detailed progress note from December 27, 2012 was reproduced within the Clinical Summaries dated December 28, 2012 and January 10, 2013. Dr.

Papatheodorou clearly indicated in his testimony that he deferred to the capacity assessment of Dr. Lynch as set out in her notes. It was Dr. Lynch's clinical opinion that Ms. Puri failed the second branch of the capacity test, and the Board agreed with the evidence on this point. Dr. Lynch's progress note records the information upon which she relied in coming to her conclusion regarding the assessment. [ 75 ] Dr. Lynch's progress note dated December 27, 2012 indicates her diagnostic impression of psychosis NOS ("not otherwise specified"), either consistent with schizophrenia or schizoaffective disorder.

Her note indicates that she informed Ms. Puri of the indicated treatment and the expected outcomes with and without treatment. She shared her concern that Ms. Puri's mental state would continue to deteriorate without treatment. She referenced Ms. Puri's history of functional impairment over the past year, including a lack of ability to gain employment and to look after her apartment and her hygiene, as examples of her illness being untreated. [ 76 ] It is also of note that throughout her extensive examination and cross-examination, Ms.

Puri consistently denied that she suffered from anything but depression for which she sought only "talk therapy". While she acknowledged that her doctor believed she had psychosis, she denied that she did, in fact, have anything other than depression. Her evidence, throughout, was that she did not need medications for psychosis, as she did not have psychosis and all she needed was "talk therapy". She stated that she did not want to take any medication for the psychotic symptoms because she was not psychotic. [ 77 ] I am satisfied that there was sufficient evidence, not only from Dr.

Papatheodorou, but from the exhibits before the Board; from the clinical notes and records and the summaries of Doctors Lynch and Goldbloom, the nursing notes, and hearsay evidence of the parents, as well as from Ms. Puri herself to satisfy the second part of the two- step test regarding incapacity, as found by the Board. The Board properly assessed the evidence and made findings of fact based thereon, and properly applied the law. The Board’s reasons clearly demonstrate this. There is no basis on which to overturning the Board's decision.

Whether the Board erred regarding the finding of involuntary status [ 78 ] The Mental Health Act , R.S.O. 1990,

chapter M. 7, as amended, s.20(5) codifies the statutory requirements for involuntary admission under "Box A", which is the provision under which the appellant was admitted. The attending physician must be of the opinion that the patient is suffering from a mental disorder of a nature or quality that likely will result in (

i) serious bodily harm to the patient, (ii) serious bodily harm to another person, or (iii) serious physical impairment of the patient, unless the patient remains in the custody of a psychiatric facility; and that the patient is not suitable for admission or continuation as an informal or voluntary patient. With respect to the third criterion, the evidence of impairment must establish the likelihood and not merely the possibility of physical impairment: S. D. (Re), 2005 CanLll 57906 (ON CCB). [ 79 ] The Certificate of Renewal of Involuntary Status, signed on January 7, 2013, indicates that Ms.

Puri was suffering from a mental disorder of a nature or quality that likely will result in "serious physical impairment of the patient" and that the patient is not suitable for continuation as an informal or voluntary patient. Counsel for the Appellant submits that the Board erred in finding that the criteria for involuntary admission had been satisfied in the case of Ms. Puri. [ 80 ] The psychiatric notes dated December 25, 2012, of Dr. D.

Goldbloom, who conducted the involuntary status assessment, indicate that the appellant was admitted for "lack of competence to care for herself, malodorous, refusing to speak, and not dressed appropriately for the weather. Family reported she was fearful, leaving her apartment at night insufficiently dressed, and found sleeping by the garbage by her superintendent." The notes indicated that "the family provided collateral evidence suggesting disorganized and catatonic behaviour, and responding to internal stimuli. Her parents provided a note documenting inability for the patient to care for

herself". The psychiatric notes further indicate that "she was admitted to the Scarborough Hospital for 10 days in 2011 with severe deterioration in behaviour, paranoid ideation and possible auditory hallucinations. According to the discharge

summary, she also felt that snakes have been inside her and that she had felt sexually assaulted in her apartment when alone. She was placed on a Form 3 which was overturned by a review board and found incapable of consent to treatment. Her mother acted as her SDM and refused antipsychotic treatment." [ 81 ] The notes of Dr. Goldbloom indicate further: On interview today, she presents as an overweight South Asian female, dressed with reflective sunglasses, hat and scarf. She prefers to be addressed as "Amy". She was using the computer but agreed to talk with me.

Her affect was constricted and her mood was "depressed". Her thought form was logical. She denied active delusions or hallucinations. She denied suicidal or homicidal ideation. She was oriented. She feels that she is depressed in the context of dropping out of school several years ago and losing her job in a call center a number of years ago. She feels overwhelmed and unable to cope. She believes that she needs cognitive behavioural therapy for depression. She does not feel she needs medication. For the moment she is willing to remain in the hospital for assessment and treatment considerations.

Her insight and judgment are impaired. [ 82 ] His assessment was that "in the context of both her severe behavioural compromise and her lack of insight/minimization, she needs to be detained involuntarily for further assessment and treatment. [ 83 ] Finally, the "Current Plan of Treatment, Including Medication" indicated that "It is our medical opinion that Ms. Puri suffers from Schizophrenia, paranoid type. Our treatment recommendations involve continued inpatient stay and initiation of treatment.

Treatment would include the use of antipsychotic medications both oral and intramuscular, as well as associated blood work and use of anti-side effect medications to treat possible side effects, namely anti-cholinergic medications and benzodiazepines." [ 84 ] The Box A conditions indicated that the evidence supporting likely serious medical impairment included (

i) the patient's level of disorganization, which renders her unable to provide and prepare food for herself, (ii) concerns regarding the bariatric surgery, and her failure to follow up, with possible complications including gastric ulcers/constrictions in the stomach and even death, (iii) the level of disorganization and squalor in her condominium; (iv) her inability to adequately fund herself in order to pay basic rent; (viii) repeated confrontations with staff in the hospital which would put her at risk of physical assault in the community. [ 85 ] The notes further indicate that "Ms.

Puri informs us that if made voluntary she would leave the hospital as she does not believe that she suffers from psychosis and does not trust the treatment team. She also has a history of non-adherence to treatment which results in her abruptly discontinuing care. Her paranoid mental state precludes her from engaging with the team and makes it highly likely that she would leave against medical advice". [ 86 ] The evidence before the Board, satisfied the Board that, on a balance of probabilities, Ms.

Puri suffered from a mental disorder of a nature or quality that likely would result in serious physical impairment, unless she remained in the custody of the psychiatric facility, and that she was not suitable for voluntary status. The evidence before the Board, which it reviewed in detail with its reasons, was sufficient to make the finding that it did. Such a finding is a question of mixed fact and law and is accorded deference. The finding was reasonable, based on all of the evidence before the Board.

There is no basis on which to overturn the Board's decision. [ 87 ] I find, on all of the evidence before the Board, the transcripts, and the submissions of the parties, and having considered the relevant caselaw, that there is no basis on which to overturn the decision of the Board regarding capacity and involuntary status. The appeal is dismissed, and the decision of the Board is upheld. Costs [ 88 ] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline.

The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement. ______________________ Carole J. Brown J. Date: May 15, 2013