2013 ONSC 689, 2013 ONSC 689

CITATION : Gajewski v. Wilkie, 2013 ONSC 689 COURT FILE NO.: 03-18/12 DATE: 20130206 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Bartosz Gajewski, Appellant AND: Dr. Treena Wilkie, Respondent BEFORE: Pollak J. COUNSEL: Victoria Tucci , for the Appellant Nyranne Martin , for the Respondent HEARD: January 25, 2013 ENDORSEMENT [ 1 ] Mr. Bartosz Gajewski appeals the decision of the Consent and Capacity Board (the “Board”), dated February 8, 2012, confirming Mr. Gajewski’s incapacity to consent to treatment with antipsychotic medication, both orally and by injection.

The facts surrounding this Appeal have been carefully set out in the submissions of Respondent’s counsel and the submissions of Amicus Curiae , appointed by the court (with agreement from all parties) in order to assist and make submissions for the Appellant at this Appeal. [ 2 ] Specifically, the Appellant submits that the finding of the Board was patently unreasonable, as the Board: (

a) erred in concluding that Mr. Gajewski failed the first part of the capacity test, in the face of evidence of Dr. Wilikie that he understood the information; (

b) erred in failing to apply the proper statutory test in its review of the second part of the capacity test, by imposing an implicit requirement that the Appellant acknowledge his having a mental illness; and (

c) erred in failing to consider the Appellant’s concerns regarding the side effects of the medication. [ 3 ] Based on the alleged foregoing errors, the Appellant requests that this Court to set aside the decision of the Board. [ 4 ] The parties agree on the standard of review of the Board’s decision; namely, the standard of review for questions of fact or mixed law and fact is reasonableness, which is a deferential standard. [ 5 ] The Respondent submits that this Court should exercise deference with respect to the findings of fact, as the Board is in a better position to hear evidence and assess credibility.

Further, in this case, the conclusions of fact made by the Board were reasonable and within the range of acceptable and rational conclusions. Ultimately, as enunciated by the Supreme Court of Canada in Starson v. Swayze , 2003 SCC 32 , para. 5 , “the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence.” [ 6 ] The Appellant alternatively submits that the finding of incapacity by the Board was patently unreasonable as it failed to adhere to the capacity test outlined in Starson v. Swayze , 2003 SCC 32 , para. 78 .

This test involves the following two criteria: First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one.

This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. [ 7 ] The parties agree that the test for a finding of capacity pursuant to the Health Care Consent Act , 1996 , S.O. 1996, c. 2, Sched.

A, section 4(1) (the “ HCCA ”) is: 4(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. [ 8 ] Although the Appellant argues that the Board erred in finding that he failed both branches of the test, the parties agree that in order to support a finding of capacity pursuant to the HCCA , the Board would have had to conclude that the Appellant satisfied both branches of the test. [ 9 ] The Respondent submits that the Board considered the evidence regarding the Appellant’s cognitive ability to process, retain and understand the relevant information.

In this regard, the Respondent relies on the evidence of the doctors, and held that:

The evidence taken as a whole, including Mr. BG’s own testimony, amply supported the doctor’s conclusions concerning Mr. BG’s capacity. Mr. BG was unable to see that he was in fact suffering from serious manifestations of mental illness. He therefore was not able to evaluate information concerning the proposed types of medications as it related to his own circumstances, a fact which rendered him incapable to make a decision concerning them. [ 10 ] With respect to the criterion for the first part of the test, the Board stated that: The panel concluded that Mr.

BG’s distortion of his relationship with the victim, and his preoccupation with religion, both caused by his mental disorder , prevented him from processing, retaining and understanding the relevant information . [ 11 ] With respect to the second branch of the test, the Board outlined the criterion and held: Based on the documentary evidence and the testimony of the doctor and her patient, the panel was not convinced that the patient perceived any potential benefit from the psychiatric medications.

His evidence was consistently inconsistent on key points. [ 12 ] The evidence before the Board was that the Appellant’s belief about possible suffering from manifestations of a condition changed significantly between a time that he had previously been found to be capable pursuant to the relevant criteria to his new beliefs at the time that he was found not to be capable.

With this change , he believed that there was a 0% chance that he suffered from a delusional disorder; therefore, he did not believe that medication would have any effect on him as he did not believe that he could be affected by such a medical condition. [ 13 ] The Board held that the Appellant “viewed the world through the lens of his mental disorder, the nature of which prevented him from passing either of the branches of the test for capacity to consent to treatment.” Similarly: “Mr. BG’s fixed, false beliefs that Jehovah would intervene to prove the diagnosis of mental disorder false, and that Ms.

KN deserved punishment, acted in concert to prevent Mr. BG from either understanding relevant information about treatment, or applying it to his own circumstances.” [ 14 ] The Respondent submits that such conclusions of the Board (for example, that the Appellant was 100% certain that he did not suffer from a delusional disorder) were reasonable on the basis of the evidence before it. The Respondent further relies on the Appellant’s exclusive emphasis on potential side effects of the medication, with no corresponding indication that he placed any weight on the potential benefits.

This, it is submitted, is evidence of his inability to appreciate the factors that are relevant to treatment. [ 15 ] The Appellant relies on his evidence that “well, from what I understand about my disorder is that it waxes and wanes. So the medication would definitely impact the waxing part, so it would reduce the periods when the intensity of my delusions grows.” He further said “when it comes to mental disorder, yes, I do.

If I was to take the medication, it would impact positively on the waxing part of the delusions.” [ 16 ] On the basis of the totality of evidence that the Board considered, this Court finds that the conclusion of the Board was within the reasonable range of possibilities and finds that the Appellant has not established the errors of the Board as alleged. [ 17 ] Amicus Curiae made other submissions with respect to comments made by the Board in its decision. For example, Amicus Curiae referred to the following quote: “At the hearing, Mr.

BG read from a document which he had written regarding the side effects of the medications proposed by his physician. He had never taken any psychiatric medication, so he had no personal knowledge of the extent to which he might be adversely affected.” [ 18 ] Counsel submitted that the suggestion of the Board that the Appellant ought to experiment and determine if any side effects were to be actually experienced was unreasonable. [ 19 ] The issue before the Board was whether the requirements of the HCCA with respect to the Appellant’s capacity to make a decision with respect to his treatment were met.

The question of whether or not the perceived side effects had been proven is not relevant to the issue before this Court. [ 20 ] This Court finds that the decision of the Board was within the reasonable range of possibilities and dismisses this Appeal. Neither party has requested costs in this matter. Pollak J. Date: February 6, 2013