2013 ONSC 2974, 2013 ONSC 2974

CITATION : L.C. v. Dr. Duff, 2013 ONSC 2974 COURT FILE NO.: 03-009/13 DATE: 20130522 SUPERIOR COURT OF JUSTICE – ONTARIO IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board pursuant to the Health Care Consent Act , S.O. 1996 c.2,

Schedule A as amended AND IN THE MATTER OF L.C., A patient at ST. JOSEPH'S HEALTH CENTRE - TORONTO RE: L.C. , Appellant AND: DR. DUFF , Respondent BEFORE: Stinson J. COUNSEL: L.C. , in person James Carlisle as amicus curiae Kendra A. Naidoo, for the respondent HEARD: May 15, 2013 ENDORSEMENT [ 1 ] This is an appeal pursuant to s. 80 of the Health Care Consent Act, 1996 , S.O. 1996 c.2. It was brought by L.C, who seeks to set aside a decision of the Consent and Capacity Board (the "Board") dated January 18, 2013. L.C. was an involuntary patient at St. Joseph's Health Centre in Toronto ("St. Joseph's").

Her attending physician, the respondent, Dr. Duff, had found her incapable to consent to certain treatment and had also issued a certificate of involuntary admission. L.C. applied to the Board under s. 32(1) of the Health Care Consent Act, 1996 , and s. 39 of the Mental Health Act , R.S.O. 1990, c. M.7 for a review of those determinations.

In its decision dated January 18, 2013, and for the reasons expressed in its reasons for decision dated January 24, 2013, the Board confirmed L.C.'s involuntary status and confirmed the finding that she was incapable of consenting to treatment with antipsychotic, benzodiazepine, and mood stabilizer medication. [ 2 ] At the hearing before the Board on January 18, 2013, L.C. was represented by counsel, Mr. Alastair Campbell. L.C. attended for part but not all of the hearing before the Board. On that day, her counsel confirmed that he had instructions to proceed with the hearing in her absence.

At one point in the proceeding before the Board, L.C attended and gave evidence on her own behalf. She then left the hearing room. [ 3 ] Subsequent to the decision of the Board and the release of its reasons for decision, L.C. served a notice of appeal to this court. By endorsement made March 6, 2013, Whitaker J., lead administrative judge of the Estates List, made an order that amicus curiae be appointed to assist in preparing a factum for Ms. L.C. so that the case could move forward to a hearing before this court and also to assist in presenting the issues on appeal to the court at the hearing.

In due course, Mr. James Carlisle was appointed as amicus curiae , and he subsequently met with L.C. and prepared and filed a factum. [ 4 ] I have described the foregoing history because, on the occasion of the appearance before me on May 15, 2013, the individual who appeared in person to argue the appeal on her own behalf denied that she was L.C. She asserted that her name was L.L., and that she was born in 1981. She said that the person known as L.C. died in 1995. She also denied that she was present at the hearing before the Board, or that she had ever met Mr.

Carlisle prior to the attendance before me. [ 5 ] Through her counsel, the respondent Dr. Duff, who has been L.C.'s treating psychiatrist for more than twelve years, confirmed that the individual appellant before the court was indeed L.C. She further confirmed that the individual before the court had been present for a portion of the hearing before the Board. For his part, Mr.

Carlisle advised the court that he had previously met with the individual appellant before the court to discuss the pending appeal, prior to filing his factum. [ 6 ] During her submissions to the court, the appellant indicated that she had other lawyers acting on her behalf. Upon enquiry of counsel, I was advised that, to their knowledge, none of those individuals is involved in L.C.'s current appeal. [ 7 ] The medical evidence contained in the appeal record indicates that L.C. has a lengthy history of schizophrenia, coupled with paranoid delusions.

These include delusions about having died in 1995, together with a chronic preoccupation about lawyers who she believes are working for her. Her history also includes delusional ideas about her health, leading to refusal to follow up on medical signs and symptoms.

[8] Based upon the assurances of counsel that the appellant before the court was L.C., the same individual who appeared beforethe Board at its hearing on January 18, 2013, and in light of the medical evidence just mentioned, I concluded that the individualappellant was Dr. Duff’s patient, L.C., that she was the same person who had appeared before the Board and that it was appropriate toproceed with the hearing. I therefore received submissions from L.C., from amicus curiae and from counsel for Dr. Duff.

At theconclusion of the hearing, I reserved my decision. analysis Standard of Review [9] A party before the Board has a statutory right of appeal to this court. On appeal, the standard of review for questions of lawis correctness, for questions of mixed fact and law, or questions of fact alone, the standard of review is reasonableness. "An unreasonabledecision is one that 'is not supported by any reasons that can stand up to a somewhat probing examination' …." (Starson v. Swayze, 2003SCC 32 , [2003] S.C.J.

No. 33 (S.C.C.) at para. 88.) Absent such demonstrated unreasonableness, there is no basis for judicialinterference with the findings or inferences of fact made by the Board. [10] The issues on this appeal are largely factual, or questions of mixed fact and law. Accordingly, the standard of reviewapplicable in this case is reasonableness. This means that I should only intervene with the Board's conclusions if they are unreasonableand untenable.

The grounds of appeal [11] In his submission on behalf of the appellant, amicus asserted that the Board's decision was unreasonable, that itmisapprehended the evidence or displayed a lack of appreciation or disregard for the evidence. For her part, the appellant submitted thatshe was not present at the hearing before the Board so it could not have seen evidence of her mental illness manifested in her testimony,since she gave none. She further argued that she is not the person called L.C. L.C. died in 1995 and the appellant's name is L.L. She doesnot suffer from any mental illness. She further submitted that Dr.

Duff's testimony was all lies and a fraud. I will deal with each of thesesubmissions in turn. (

a) The Board's decision was unreasonable [12] The Board heard extensive evidence from Dr. Duff. She has been L.C.'s psychiatrist for 13 years. She also has dealt withL.C.'s two brothers who had been her substitute decision makers. During the course of her testimony, Dr. Duff reviewed her extensiveinteractions with L.C. over the years. She also reviewed L.C.'s psychiatric admission history, recounting a history of paranoid delusionsand auditory hallucinations. She was diagnosed in 1997 with paranoid schizophrenia. She has an extensive history of hospital admissionsrelating to mental illness. [13] According to her evidence and the

summary she prepared for the Board hearing, Dr. Duff completed the certificate ofinvoluntary admission because she was of the opinion that L.C. met the conditions prescribed by s. 20(1.1) of the Mental Health Act. Shenoted that L.C. had previously received treatments for her mental disorder. She further noted that, when not treated, that disorder resultedin substantial mental deterioration. Dr. Duff noted L.C.'s well documented history of stopping her medications and then relapsing withincrease psychosis, disappearing for delusional reasons and becoming aggressive, disorganized and paranoid.

She described her as a veryvulnerable woman who does not have the skills to care for herself in a safe manner without supervision. [14] Dr. Duff also observed that L.C. had shown clinical improvement as a result of treatment in that she always improved onmedication and her psychosis became more circumscribed. The disorder that L.C. suffered from at the time of Dr. Duff's completion ofthe certificate of involuntary admission was the same life long illness for which L.C. had been previously hospitalized. [15] Dr. Duff also was of the opinion that Ms. L.C. was not capable with respect to treatment.

She observed that while L.C. wasable to understand the information presented, she did not believe that it was applicable to her. She denied any schizophrenia. Dr. Dufffurther noted that L.C. was not able to appreciate the reasonably foreseeable consequence of a decision or lack of decision regardingtreatment. Because she did not believe she had any mental disorder, she did not appreciate there might be any benefit to takingmedication. She was unable to appreciate that the delusions she experiences will increase if she is not on medication.

She was unable torecognize and appreciate that her delusional thoughts diminish when she is on medication. She does not appreciate that a decision to stopmedication will likely result in further deterioration. On this basis, in Dr. Duff’s opinion, the s. 4(1) Health Care Consent Act criteria forcapacity for treatment were not satisfied and therefore L.C. was not capable in relation to treatment. [16] Lastly, Dr. Duff was of the opinion that L.C. was not suitable for admission as an informal or voluntary patient.

She reachedthis conclusion because L.C. stated she wanted to be in the hospital not for treatment and care but only to have a Board hearing so shecould be "released from St. Joseph's". In Dr. Duff's opinion, if L.C. were to remain as a voluntary patient, she might decide to leave thehospital and then would likely disappear. On this basis, Dr. Duff concluded that L.C. was not suitable for admission as a voluntarypatient and thus the reminder of the Mental Health Act s. 20(1.1) criteria were satisfied. [17] The foregoing evidence from Dr. Duff was not contradicted by any opposing medical evidence.

The Board also heard fromMs. L.C. and observed her presentation. [18] In my view, the evidence given by both Dr. Duff and L.C. at the hearing, combined with the documentation that accompaniedDr. Duff's assessment of and interactions with L.C., provided a clear and cogent body of evidence on which the Board could reasonablyrely in deciding to uphold Dr. Duff's finding of incapacity. Having heard, assessed and weighed the evidence, the Board found that L.C.displayed clear symptoms of a mental disorder. It further found that because of her complete lack of insight into her illness, L.C. was

unable to appreciate the benefits of taking antipsychotic medication or the consequences of not taking it. The Board thus concluded that L.C. was unable to appreciate the reasonably foreseeable consequences of the decision or lack of decision and was not capable with respect to the proposed treatment. The Board further concluded on the evidence that the criteria for involuntary admission under s. 20(1.1) the Mental Health Act were also established [ 19 ] In my view, the Board's decision on both issues was reasonable and based on clear, cogent and compelling evidence, As summarized above.

Each of the requisite criteria had a basis in the evidence before the Board. The Board made no demonstrable error of fact or law in confirming Dr. Duff's finding that L.C. was not capable of consenting to treatment with antipsychotic, mood stabilizer, benzodiazepine, and side effect medications to treat her mental illness. Similarly, the Board made no error of fact or law in confirming Dr. Duff's finding that L.C. met the criteria for involuntary admission. It follows that this ground of appeal fails. (

b) Misapprehension, lack of appreciation or disregard of the evidence [ 20 ] I see no basis in the record before me to support the argument that the Board misapprehended the evidence. The reasons for decision of the Board reflect a thorough review and evaluation of the evidence. Nor is there any ground to suggest that the Board lacked an appreciation of or disregarded any of the evidence. To the contrary, the Board's decision is fully supported by and consistent with the evidence. I therefore see no basis for judicial interference with the Board's findings on this ground. (

c) Personal submissions of the appellant [ 21 ] With respect to the specific submissions of the appellant, I do not accept her arguments that she was not present at the hearing before the Board. Firstly, her presence at the Board hearing was confirmed by Dr. Duff, who knows her well. Secondly, the appellant's assertion that she was not present before the Board is consistent with and a further reflection of the mental illness described by Dr.

Duff with which she has been diagnosed. [ 22 ] In relation to the assertion of the appellant that she is not the person called L.C. and that L.C. died in 1995, once again, this is consistent with the evidence of Dr. Duff as to the symptoms of L.C.'s mental illness. I do not accept this submission from the appellant. [ 23 ] Finally, the appellant argued that Dr. Duff's testimony was all lies. The Board heard and assessed the evidence as it was required to do. It plainly found Dr. Duff's testimony to be credible and reliable, as it was also entitled to do.

On their face, those conclusions were reasonable and I see no basis upon which to interfere with the Board's findings of credibility. conclusion and disposition [ 24 ] In my view, the reasons for decision of the Board reflect that it carefully considered and weighed all of the evidence. The Board's decision was reasonable and based upon and supported by clear, cogent and compelling evidence. The Board was entitled to reach the conclusions it did in upholding Dr. Duff's finding of incapacity and upholding the certificate of involuntary admission.

In the face of the evidence before the Board and the submissions of amicus curiae and counsel for the respondent, I cannot accede to the other submissions made on behalf of the appellant. [ 25 ] The appeal must therefore be dismissed, and the findings and disposition by the Board must be upheld. ___________________________ Stinson J. Date: May 22, 2013