2013 ONSC 4397, 2013 ONSC 4397

CITATION : Woods v. Dr. Baici, 2013 ONSC 4397 COURT FILE NO: 03-33/13 DATE: 20130627 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF AN APPEAL from a decision of the Consent and Capacity Board, Pursuant to the Health Care Consent Act , 1996, S.O. 1996, c.2,

Schedule A as amended AND IN THE MATTER OF Jo-Anne Woods a patient at CENTRE FOR ADDICTION AND MENTAL HEALTH - QUEEN STREET DIVISION Toronto, Ontario B E T W E E N: ) ) Jo-Anne Woods Appellant (Responding Party) - and - Dr. Wayne Baici Respondent (Moving Party ) ) ) ) ) ) ) ) ) ) )))))))) Jo-Anne Woods, in Person Allen Welman , amicus curiae Kendra A. Naidoo , for the Respondent (Moving Party) ) HEARD: June 24, 2013

Reasons for Decision FIRESTONE J. [ 1 ] The moving party (Respondent) Dr. Wayne Baici (“Dr. Baici”) brings this motion for an Order pursuant to s.19 of the Health Care Consent Act , 1996, S.O. 1996, c. 2,

Schedule A (“the Act ”) authorizing the treatment of Jo-Anne Woods (“Ms.Woods”) pending final resolution of her appeal from a March 22, 2013 Consent and Capacity Board (“the Board”) decision confirming her incapacity to consent to treatment with anti-psychotic and mood stabilizing medication. [ 2 ] Ms. Kendra A. Naidoo appeared and made submissions on behalf of the moving party. Mr. Allan Welman appeared as a micus curiae as ordered by Whitaker J. on May 27, 2013 and assisted and made submissions in opposition to the motion. This motion was originally scheduled for June 21, 2013.

After hearing submissions from a micus curiae , Ms. Woods and Ms. Kendra Naidoo, the matter was adjourned to June 24, 2013 to allow Ms. Woods and Mr. Welman ( amicus curiae ) an opportunity to prepare. [ 3 ] Dr. Baici was Ms. Woods’ attending psychiatrist from March 13 to March 27, 2013. Ms. Woods’ current attending psychiatrist is Dr. Shaheen Darani (“Dr. Darani”). [ 4 ] On February 28, 2013 Ms. Woods was admitted to the Center for Addiction and Mental Health (“CAMH”) under the authority of a Warrant of Committal.

Such hospitalization arose as a result of non-compliance with treatment, active symptomology, and lack of insight into the need for treatment. Ms. Woods’ current diagnoses are schizoaffective disorder and substance abuse disorder. Ms. Woods while at CAMH has refused to accept treatment by way of anti-psychotic and mood stabilizing medications. [ 5 ] The evidence before me discloses that while untreated at CAMH, Ms. Woods has exhibited affective lability, paranoia, and threatening behavior. This has necessitated either chemical restraint or locked seclusion on more than one occasion.

On one such occasion, locked seclusion was requested to prevent Ms. Woods from harming others and to protect Ms. Woods from the risk of retaliatory behaviour of co-patients. [ 6 ]

Section 19 of the Act sets forth the test on an interim motion such as this. Subsection 19(2) states that the court may make the order if it is satisfied that the following test has been met. (a) (

i) The treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person’s condition will not or is not likely to improve without the treatment, or (ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent deterioration or to reduce substantially its extent or its rate; (

b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her; (

c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (

a) and (b); and (

d) that the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal. [ 7 ] It is necessary to review the evidence before me on this motion to determine whether the criteria in s. 19(2) of the Act has or has not been met. [ 8 ] The Clinical

Summary completed by Dr. Shaheen A. Darani and Dr. Wayne Baici dated June 4, 2013, attached as exhibit “A” to the affidavit of Dr. Shaheen Darani, states in part as follows: Current Plan of Treatment, including Medication The current plan of treatment is to treat Ms. Woods with antipsychotic medications and, if there is an insufficient response, mood-stabilizing medications (collectively, the “Proposed Treatment”). Specific consent was obtained from Ms. Woods’ daughter, the substitute decision maker, Ms. Amber Woods-Smith, for paliperidone oral and IM olanzapine if she refuses oral form, with a plan to transfer to depot paliperidone sustenna up to therapeutic doses. Treatment Pending Appeal

Criteria for Treatment Pending Appeal under Health Care Consent Act, s. 19: In order to succeed on a motion for treatment pending appeal, the Court must be satisfied that the following criteria are met: 1. (

a) The treatment will or is likely to improve substantially the condition of the patient, and the patient’s condition will not or is not likely to improve without the treatment. Evidence that treatment will or is likely to improve substantially the patient’s condition: Based on file information, Ms. Woods has responded well to treatment in the past. For instance in October and November 2004, she was admitted to The Scarborough Hospital and treated with the antipsychotic medications risperdal Consta, and fluanxol and olanzapine, with improvement in her symptoms. In July 2012, Ms.

Woods was admitted to North York General Hospital, treated with antipsychotic medication, olanzapine, 10 mg daily, with improvement such that she settled and was appropriate for discharge. During an admission to Toronto East General Hospital in November 2006, Ms. Woods was described as someone who returned to relative stability in her mental state with treatment with antipsychotic medications. Based on her history, Ms. Woods is likely to improve substantially on the Proposed Treatment, within several weeks of treatment initiation.

Evidence that patient’s condition will not or is not likely to improve without treatment: Ms. Woods’ condition is not likely to improve without treatment. Ms. Woods has been in hospital since February 28, 2013 and has remained untreated due to her appeal of her CCB incapacity finding.

Despite the structure and containment of inpatient hospitalization, she has continued to evidence active symptoms, including affective lability, volatility, intrusive behaviour, pressured speech, disorganized thinking, perceptual disturbances, multiple delusions with somatic and persecutory themes, requiring periodic seclusion room placement and a higher level of monitoring in order to contain her risk to others. Further, she has continued to present as disheveled, malodorous, pacing the unit barefoot, despite staff support/encouragement to tend to her hygiene.

Furthermore, there is no historical evidence to suggest that Ms. Woods has improved in terms of her symptomatology while residing in the community, absent medication treatment. As a result of noncompliance with medication and poor insight into her illness, Ms. Woods has required repeated hospitalization since 1998 due to active symptoms and at times, aggressive behaviour. OR … 1. (

b) The patient’s condition will or is likely to deteriorate substantially or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate; 2. The benefit the patient is expected to obtain from the treatment outweighs the risk of harm to him or her.

Describe anticipated benefits and risk of treatment: The benefits of the Proposed Treatment include amelioration of active symptoms of her illness, including hallucinations, delusions, agitation, thought disorder, intrusive behaviour, and aggressive behaviour, as well as her level of functioning and self-care. It is the hope of the treatment team that with extended compliance with the Proposed Treatment, Ms.

Woods could enjoy increasing privileges on hospital grounds and in the community, move forward in the Ontario Review Board system, be safely reintegrated in to the community, participate in occupational/vocational activities, and experience improved interpersonal relationships with others.

The risks associated with the Proposed Treatment, include, but are not limited to, tardive dyskinesia, hyperprolactinemia, extrapyramidal side-effects (persistent movement disorders, muscle stiffness, restlessness, tremors), seizures, sedation/diminished alertness, neuroleptic malignant syndrome, sexual dysfunction, and metabolic syndrome. Describe why the anticipated benefits outweigh the risks of harm : Many of the above noted side-effects can be avoided or at least managed with side effect medications and close monitoring of the patient’s mental status by a psychiatrist.

Further, the more serious side-effects are generally quite rare. As such, given the patient’s current untreated illness (i.e. active symptomatology, which places herself and other at risk of harm, and at risk for further cognitive deterioration due to untreated psychosis), the anticipated benefits of the Proposed Treatment far outweigh the risks. 3. The treatment is the least restrictive and least intrusive treatment that meets the criteria of (

a) and (b). Describe why the treatment proposed is the least restrictive. Compare with alternative treatment options (if applicable): Given Ms. Woods’ extensive history of noncompliance with treatment while residing in the community (despite being placed on a Community Treatment Order), she would benefit from an injectable antipsychotic medication, to protect against the high risk of noncompliance. It is the treatment team’s opinion that this is the least restrictive option for treatment for Ms. Woods.

The benefit of this particular antipsychotic is that it allows for a longer period in between dosing, thus providing additional protection against noncompliance. Alternative options include other injectable antipsychotics, including clopixol, haldol, fluanxol, etc. These would provide similar benefit profile though confer greater risk of tardive dyskinesia and extrapyramidal side-effects. Ms. Woods’ illness, in the absence of the ability to treat with psychiatric medications, is currently being managed with the

structure and supervision afforded by a general forensic inpatient unit. Nursing staff on this unit monitor and assess Ms. Woods’ mental status and behaviour closely, and intervene as appropriate, to ensure the safety of both Ms. Woods and co-patients. Unfortunately, this form of management of Ms. Woods’ illness is insufficient, as she continues to exhibit active symptoms of her illness and behavioural dyscontrol, necessitating ongoing detention in hospital and restriction in her liberties.

Her symptoms are not likely to improve absent treatment with antipsychotic medications and/or mood stabilizing medications, including the Proposed Treatment. 4. The person’s condition makes it necessary to administer the treatment before the final disposition of the appeal. Describe additional risks and problems associated with delaying treatment: Ongoing untreated psychosis, confers elevated risk of harm to others around Ms. Woods. Based on her history, Ms. Woods has exhibited substantive decompensation, behavioural dyscontrol and aggressiveness, when ill and untreated in the community.

She has, as noted above, in her past psychiatric history, been directly threatening and assaultive to both family and members of the community when ill. As a result of her behaviour, she has required police intervention, instilled fear in others, and has sustained numerous detentions under the Mental Health Act and arrests by police. At the time of the index offences (i.e. threat bodily harm, possession of weapon for dangerous purpose) for which she was found Not Criminally Responsible on account of mental disorder, Ms. Woods was noted to be exhibiting symptoms of her illness and untreated.

In addition, ongoing untreated psychosis confers elevated risk of harm to Ms. Woods. Ms. Woods is likely to experience cognitive/intellectual impairment, if her psychosis is untreated for an extended period of time. Further, if left untreated, Ms. Woods is likely to experience extended detainment under the Ontario Review Board and involuntary inpatient hospitalization. A prolonged period without treatment may also negatively impact Ms. Woods’ response to treatment in the future and overall level of functioning. Completed by : Dr. Shaheen A. Darani and Dr. Wayne Baici Date : June 4, 2013 [ 9 ] Dr.

Darani is an active member of the medical staff at CAMH. He is the attending psychiatrist for Ms. Woods. At paragraph 13 of his affidavit sworn June 6, 2013 he deposes that the treatment with anti-psychotic and mood stabilizing medication is likely to substantially improve the condition. (In this paragraph the wrong name is used. Counsel for the moving party advised that this is a typographical error and that a further affidavit would be delivered correcting this error.) [ 10 ] At paragraphs 14 and 15 of his affidavit Dr. Darani states that Ms. Woods has responded well to anti-psychotic medication in the past.

Reference is made to three occasions in which anti-psychotic medication assisted her. Dr. Darani is of the opinion that based on Ms.

Woods’ history, within several weeks of initiating treatment she will achieve attenuation in her symptoms. (i.e. less intensive symptoms of psychosis, improvement in her level of disorganization and behavior and thinking, improvement in her level of agitation, lability, and behavioural dyscontrol) such that she can progress in the ORB system, transition towards living in the community, improve her interpersonal relationships with others, and participate in vocational-occupational program. [ 11 ] Conversely, it is Dr. Darani’s opinion that Ms.

Woods’ psychiatric condition is not likely to improve without such treatment. The doctor highlights the fact that Ms. Woods has been in hospital since February 28, 2013 and has remained untreated pending appeal. Despite her admission to the inpatient hospital, she has continued to evidence active symptoms, including affective lability, volatility, intrusive behaviour, pressured speech, and disorganized thinking. She has also experienced multiple delusions with somatic and persecutory themes, requiring periodic placement locked in seclusion to contain her risk to others. [ 12 ] There is, according to Dr.

Darani, no historical evidence to suggest that Ms. Woods has improved in terms of her symptomology while residing in the community absent medication. The longer she remains untreated the more the risk of negative impact on her treatment response increases, as does her risk of experiencing cognitive and intellectual impairments. [ 13 ] Regarding whether the benefits Ms. Woods was expected to obtain from the treatment will outweigh the risk of harm to her, it is Dr. Darani’s opinion that the expected benefits of the proposed treatment significantly outweigh the risk of harm to Ms. Woods.

Specifically, the benefits including amelioration of active symptoms and improvement in her level of functioning and self-care. Extended compliance with the proposed treatment will, as well, in the doctor’s opinion, create the opportunity for Ms.

Woods to experience significant improvement in her quality of life, including reintegration into the community, participation in occupational and vocational activities as well as improved interpersonal relationships with others. [ 14 ] While there are side effects associated with the proposed treatment, some of the side effects can be managed with side effect medication and close monitoring by a psychiatrist. Dr. Darani’s evidence is that the level of risk associated with the side effects does not outweigh the benefits Ms. Woods is expected to receive with the proposed treatment. [ 15 ] In Dr.

Darani’s opinion, Ms. Woods’ current condition makes it necessary to administer the proposed treatment before the final disposition of the within appeal. Currently, Ms. Woods’ quality-of-life in an untreated state is very poor. Ms. Woods has demonstrated considerable agitation and continues to be verbally abusive, threatening and aggressive in her behaviour. The longer, according to Dr. Darani’s opinion, she remains untreated the more the risk of negative impact on her treatment response increases and will increase, as will the risk of experiencing cognitive intellectual impairments. [ 16 ] Dr.

Baici, in his affidavit sworn June 6, 2013, concurs with the conclusions reached by Dr. Darani. [ 17 ] Amicus curiae argues that there is no evidence that Ms. Woods’ condition will “deteriorate substantially” or “deteriorate rapidly” such that it makes it necessary to administer the treatment before the final disposition of the appeal. Ms. Naidoo argues that because they

are relying on section 19(2) (a)(

i) and not 19(2)(a)(ii) of the Act , evidence of a substantial or rapid deterioration is not necessary in order to meet the test under section 19(2) (d). I agree with Ms. Naidoo’s

interpretation of section 19(2). [ 18 ] After reviewing the evidence in this case and hearing the submissions of counsel for Dr. Baici, amicus curiae and Ms. Woods, I am satisfied that the criteria under s.19(2) of the Act necessary for an order under section 19(1) have been met. [ 19 ] I therefore authorize and order the treatment of Jo-Anne Woods as set forth in the current plan of treatment contained in the clinical

summary dated June 4, 2013, pending the final disposition of her appeal of the decision of the Consent and Capacity Board dated March 22, 2013. [ 20 ] The moving party has also requested an order dismissing the appeal if the appellant or amicus curiae fail to comply with the timetable established by the endorsement of Justice Whitaker dated May 27, 2013, such that the appeal is not heard by August 27, 2013. [ 21 ] I am not willing to grant such an order especially given the fact that it is agreed between counsel that on consent amicus shall now have until July 12, 2013 (not June 27, 2013 as originally ordered) to deliver their factum and the responding party shall have until July 31, 2013 to deliver their factum. [ 22 ] I thank counsel for their submissions in this matter which were exceptional. ___________________________ FIRESTONE, J.

DATE: June 27, 2013 CITATION : Woods v. Dr. Baici, 2013 ONSC 4397 COURT FILE NO: 03-33/13 DATE: 20130627

ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF AN APPEAL from a decision of the Consent and Capacity Board, Pursuant to the Health Care Consent Act , 1996, S.O. 1996, c.2,

Schedule A as amended AND IN THE MATTER OF Jo-Anne Woods a patient at CENTRE FOR ADDICTION AND MENTAL HEALTH - QUEEN STREET DIVISION Toronto, Ontario B E T W E E N: Jo-Anne Woods Appellant (Responding Party) - and - Dr. Wayne Baici Respondent (Moving Party ) REASONS FOR DECISION FIRESTONE J.

Released: June 27, 2013