2017 ONSC 987, 2017 ONSC 987

CITATION : Bufalino v. Shukla, 2017 ONSC 987 COURT FILE NO.: 56817/16 DATE: 2017/02/09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) Vincent Bufalino ) ) ) R. Browne, for the Appellant Appellant ) ) ) - and - ) ) ) Dr. Neeraj Shukla ) ) ) D. Lambe, for the Respondent ) Respondent ) ) ) HEARD: February 7, 2017 The Honourable Mr. Justice J. R. Henderson ENDORSEMENT ON APPEAL INTRODUCTION [ 1 ] This is an appeal by Vincent Bufalino (“Bufalino”) from the decision of the Consent and Capacity Board ("the Board"), dated September 3, 2016, confirming the underlying finding of the respondent, Dr.

Shukla, that Bufalino is not capable of consenting to treatment in accordance with s.4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2 (“ HCCA ”). [ 2 ] At the hearing on September 2, 2016, the Board heard two requests from Bufalino, namely a request to review Bufalino’s involuntary status at the hospital, and a request to review Dr. Shukla’s finding that Bufalino does not have capacity to consent to treatment. In its decision, the Board confirmed both the involuntary status and Dr.

Shukla’s finding of incapacity. [ 3 ] In the present proceeding in this court, Bufalino only appeals the Board’s confirmation that he does not have capacity to consent to treatment. Specifically, Bufalino submits that the Board erred in deciding that Bufalino is not able to appreciate the reasonably foreseeable consequences of his decision or lack of decision.

THE BACKGROUND FACTS [ 4 ] Bufalino is a 29-year-old single male. He has a university education. He has had no history of psychiatric illness. He has been involuntarily detained at the St. Catharines General Hospital since August 22, 2016. At the relevant time, he had been living with his grandmother, and he had been working part-time for his uncle at a sandwich shop. [ 5 ] On August 22, 2016, Bufalino was taken to the emergency department at the St. Catharines General Hospital by his parents. He was seen by the emergency room physician who signed a Form 1, and then he was seen by a psychiatrist, Dr. Warsi.

On August 24, 2016, Mr. Bufalino was seen by another psychiatrist, Dr. Unoh, who signed a Form 3, Certificate of Involuntary Admission. Thereafter, Dr. Shukla became Bufalino’s attending psychiatrist at the hospital. [ 6 ] All of the psychiatrists had some direct interaction with Bufalino, but they also relied upon a collateral history from Bufalino's parents, Joe and Anna Bufalino, both of whom testified at the Board hearing. [ 7 ] In

summary, the collateral history provided by the parents was that, in the months leading up to his hospitalization, Bufalino was becoming increasingly withdrawn. He believed that he was being monitored by the government and the Mafia by the use of listening devices. [ 8 ] Further, his parents told the psychiatrists that in the two months prior to his admission, Bufalino had taken two trips to Cuba, both on short notice. After the first trip his mother said that he came back increasingly isolated and uncommunicative.

He avoided her and would not talk to her. [ 9 ] At some point Bufalino chose to communicate with his parents only in writing so as to avoid the listening devices. He also appeared overly protective and paranoid, telling his father that he was, “here to protect you from everybody". [ 10 ] Prior to taking his second trip to Cuba, Bufalino did not inform his family or his employer of his intended trip.

His mother contacted him on his cell phone after his grandmother had reported him missing, and only then did Bufalino tell her that he was at the airport on his way to Cuba. [ 11 ] During his second trip to Cuba, Bufalino contacted his family in order to obtain financial assistance for a return flight, which the family provided. When he was picked up at the airport, Bufalino informed his family that he refused to go into any elevator.

His parents told Bufalino they would be taking him to the hospital, and Bufalino said he was relieved as he said that he would be safe in the hospital. [ 12 ] The collateral history also included the fact that Bufalino owned three firearms that Bufalino's father said were not properly stored and secured. Bufalino’s father believed that Bufalino owned these firearms “for protection”. [ 13 ] Dr. Warsi and Dr. Unoh did not testify at the Board hearing, but their consultation notes were introduced as evidence at the hearing in the

summary provided by Dr. Shukla. [ 14 ] In Dr. Warsi’s note, he referenced some of the collateral history received by Bufalino’s parents. With respect to Dr. Warsi’s own observations, he stated that Bufalino continued to be “quite bizarre”. He said that Bufalino was pacing, looking at the cameras, and believing that he was part of an interrogation. [ 15 ] Dr. Unoh relied upon the collateral history from Bufalino’s parents and upon Dr. Warsi’s brief observations. Dr. Unoh observed that Bufalino was very guarded and suspicious.

She wrote that his “affect was suspicious”, and his “thought content was difficult to assess”. [ 16 ] In making their notes, I accept that both Dr. Warsi and Dr. Unoh were concerned about Bufalino’s possible voluntary or involuntary admission to hospital, not about Bufalino’s treatment plan. [ 17 ] Dr. Shukla testified in person at the Board hearing and provided a written

summary for the Board. Dr. Shukla relied upon the collateral history provided by the family, as well as the observations of Dr. Warsi and Dr. Unoh. [ 18 ] In

summary, Dr. Shukla wrote in his

summary note that collateral sources informed him that Bufalino had checked his home for bugging devices; that Bufalino thought the Mafia was after him; and that he had booby trapped his home. His mother said that Bufalino was preoccupied with conspiracy theories and natural disasters. [ 19 ] With respect to Dr. Shukla’s own observations, he said that Bufalino has been guarded and spoke as little as possible. Bufalino denied any psychiatric complaints. He was refusing to take Risperdal. Dr. Shukla diagnosed “delusional disorder, persecutory type”. [ 20 ] Then, on August 29, 2016, Dr.

Shukla signed the Form 33 that notified Bufalino that Dr. Shukla had found that he is not mentally capable of consenting to treatment under the HCCA . [ 21 ] Thereafter, Bufalino delivered his application to the Board for a review of both his involuntary status and Dr. Shukla’s finding that he does not have capacity to consent to treatment. The two applications were heard together by the Board.

THE LAW [ 22 ] Section 4(1) the HCCA reads as follows, "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, as the case may be, and able to appreciate the reasonably foreseeable consequences of the decision or lack of decision." [Emphasis added.] [ 23 ] Clearly, the definition of capacity set out in s.4(1) has two elements. The first element is not an issue in this appeal as it is agreed

that Bufalino is able to understand the information that is relevant to making a decision. The second element, the ability to appreciate thereasonably foreseeable consequences of the decision or lack of decision, is the substantive issue on this appeal. [24] The law presumes that a person is capable of deciding whether to accept or reject treatment, as set out in s.4(2) of the HCCA.Further, at a capacity hearing the onus is on the attending physician to prove, on a balance of probabilities, that the patient does not havecapacity. See the case of Starson v.

Swayze, 2003 SCC 32 , [2003] 1 S.C.R. 722 at para. 77. [25] As to the standard of review, I find that the substantive issue in this case, whether a person has capacity to consent to treatment,is a question of mixed fact and law, and that the appropriate standard of review is that of reasonableness. I also accept that the Board is aspecialized tribunal to which deference must be paid. [26] However, Bufalino also raises some issues of procedural fairness. I find that with respect to the allegations of proceduralunfairness or breach of natural justice, the standard of review is that of correctness.

See the decisions in Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, Newfoundland and Labrador Nurses’ Union v.Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , [2011] 3 S.C.R. 708, and Mission Institution v.

Khela, 2014SCC 24. [27] Regarding the way in which a physician, or the Board, should approach the question of whether a patient is able to appreciate thereasonably foreseeable consequences of the decision, I rely on the analysis set out in Starson at paras. 75-81. [28] In particular, the following passages from Starson are useful: 79. ...First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information tohis own circumstances….While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental“condition”, the patient must be able to recognize the possibility that he is affected by that condition… 80. …In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters ofthe decision being made: the nature and purpose of the proposed treatment; the foreseeable benefits and risks of treatment; thealternative courses of action available; and the expected consequences of not having the treatment.

If the patient shows an appreciationof these parameters — regardless of whether he weighs or values the information differently than the attending physician and disagreeswith the treatment recommendation — he has the ability to appreciate the decision he makes: …. 81. …Accordingly, it is imperative that the Board inquire into the reasons for the patient’s failure to appreciate consequences.

A findingof incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents him from having the ability toappreciate the foreseeable consequences of the decision. [29] The Starson analysis has been nicely summarized by the Ontario Court of Appeal in the case of Giecewicz v.

Hastings, 2007ONCA 890 at paras. 18-21. [30] Thus, I find that in deciding whether a patient is able to appreciate the reasonably foreseeable consequences of his/her decision,the Board must consider whether the patient is able to acknowledge the fact that the condition for which the treatment is recommendedmay affect his/her decision, whether the patient is able to assess how the proposed treatment, and the alternatives, could affect his/herlife or quality-of-life, and whether the patient's decision is based upon the patient's delusional belief.

THE POSITIONS OF THE PARTIES [31] Bufalino raises both procedural issues and substantive issues in this appeal. [32] Regarding procedural issues, Bufalino submits that there has been a breach of procedural fairness because the Chair of the Boardwas present at the hearing only by video link; because counsel was given late notice of the Board hearing; because a package ofdocuments was delivered very late to counsel for Bufalino; because the Board relied upon the hearsay evidence of Dr.

Warsi and Dr.Unoh; and because of perceived bias from the Chair against counsel for Bufalino. [33] Regarding the substantive issues, Bufalino's counsel takes the general position that the decision of the Board was unreasonablebecause the evidence presented by Dr. Shukla was insufficient to prove on a balance of probabilities that Bufalino is not able toappreciate the reasonably foreseeable consequences of his decision. In particular, counsel submits that Dr. Shukla did not conduct aproper capacity assessment of Bufalino; that Dr. Shukla did not have any meaningful conversation with Bufalino; that Dr.

Shukla reliedheavily on the collateral history from Bufalino's parents; and that Dr. Shukla did not discuss the risks and benefits of the proposedmedical treatment with Bufalino. [34] Further, Bufalino’s counsel submits that both Dr. Shukla and the Board relied upon Bufalino’s refusal to engage with Dr. Shuklaas evidence that he suffered from a mental disorder that interfered with his ability to appreciate the reasonably foreseeable consequences. [35] Counsel for Dr. Shukla submits that there has been no procedural unfairness. Further, counsel for Dr.

Shukla submits that Dr.Shukla had to make his decision based upon limited information primarily because Bufalino did not engage with Dr. Shukla. Thus, Dr.Shukla was required to rely, in part, upon the collateral history and upon the observations of other physicians, which counsel submits isreasonable. PROCEDURAL FAIRNESS [36] I find that there has not been any breach of procedural fairness in the proceedings before the Board.

[ 37 ] The use of a video link is specifically authorized by s.5.2(1) of the Statutory Powers Procedure Act , R.S.O. 1990, c. S.22.

Therefore, the Board is entitled to use its discretion in arranging for the Chair, or any of the members, parties or witnesses to appear by video link. [ 38 ] Further, s.5.2(2) states that “The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the parties significant prejudice.” Therefore, the onus is on the party who does not wish to have an electronic hearing to prove significant prejudice. [ 39 ] In the present case, the use of a video link was not disputed at the hearing, and therefore this court must presume that there was no prejudice to Bufalino. [ 40 ] Moreover, it is imperative that voluntariness and capacity hearings before this Board be arranged in a timely manner.

Given the logistics of assembling a panel, the parties, and the witnesses, it is reasonable to expect that the Board would convene by video link in order to effect an expeditious hearing. [ 41 ] Regarding the alleged late delivery of documents and late notice of the hearing, I accept that the hearing was convened quickly and that all parties were attempting to assemble their cases and understand the opposing cases very quickly. In that respect, I note that the Chair asked counsel for Bufalino at the commencement of the hearing if there were any objections to Dr.

Shukla’s documents being entered as an exhibit, or if there were any preliminary matters to be raised, and in both cases counsel for Bufalino said “No”. [ 42 ] Regarding the use of the hearsay evidence, counsel for Bufalino raised an objection to the fact that Dr. Warsi and Dr. Unoh were not present. Counsel for Bufalino stated that they should be present at the hearing for the purpose of cross-examination.

In response, the Chair asked counsel for Bufalino if he was seeking an adjournment so that he could summons these two doctors, and again counsel for Bufalino said “No”. [ 43 ] I find that the Board is entitled to receive hearsay evidence in its discretion. I also find that the Board proceeded fairly in the present case by asking counsel for Bufalino if he wished an adjournment to summons the witnesses who were not present.

In my view, there was no procedural unfairness in this approach. [ 44 ] I will add that, although there was no procedural unfairness, I agree that the extent to which the Board relied upon hearsay evidence is a matter that may be relevant when this court considers the reasonableness of the substantive decision of the Board. [ 45 ] Finally, counsel for Bufalino raises a concern that the Chair may have had a bias against him because of an exchange between counsel and the Chair at the start of the hearing in which counsel referred to a particular case, but counsel did not have a copy of that case for the Board. [ 46 ] In my view, that exchange between the Chair and counsel arose naturally at the start of the hearing.

It is apparent that the Board had a general rule that counsel should provide copies of all case decisions upon which counsel relied. It is also apparent that counsel for Bufalino was not expecting the issue that arose, and did not readily have a copy of the case available. [ 47 ] Although the Chair expressed her displeasure, this exchange was nothing more than an isolated ruling in which the Chair disagreed with the approach taken by counsel. In my view, the Board conducted the hearing in a procedurally fair manner.

THE CAPACITY ISSUE [ 48 ] It is well recognized that the right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy. See the Starson case at para. 75 . Therefore, as discussed in Starson , in deciding whether a patient has the capacity to consent to treatment, the Board must make a diligent inquiry into the patient’s actual appreciation of the parameters of the decision being made.

It is imperative for the Board to understand the decision being made, and the patient’s appreciation of the consequences of the decision. [ 49 ] In that respect, I have three concerns about the capacity case that was presented to the Board by Dr. Shukla. First, I am concerned about the limited factual basis for Dr. Shukla’s finding that Bufalino did not have capacity. Second, there is little evidence that Dr. Shukla or anyone attempted to explain the proposed treatment, and its consequences, to Bufalino. Third, both Dr.

Shukla and the Board have used Bufalino’s failure to provide an explanation for his refusal of treatment as evidence of a mental disorder. [ 50 ] Regarding the factual basis for the finding of incapacity, in making his capacity decision I find that Dr. Shukla relied primarily on the collateral history provided by Bufalino’s parents. Both of Bufalino’s parents, and to some extent his brother, provided a collateral history of unusual and/or paranoid behaviour. I accept that it is reasonable for Dr. Shukla to consider the collateral history in his assessment of Bufalino. Further, it is reasonable for Dr.

Shukla to find that the allegation by Bufalino’s parents that he believed he was being monitored by listening devices is evidence of delusional behaviour. However, this collateral history, in my view, should properly be used as a foundation for further investigation. [ 51 ] In the present case, Dr. Shukla had very little factual evidence, beyond the collateral history, upon which to base his diagnosis of “delusional disorder”. That is, there is no evidence from Dr. Warsi or Dr. Unoh that suggested delusional behaviour. The only reference to “delusion” was from Dr.

Unoh, who appeared to reference the collateral history. [ 52 ] Both Dr. Warsi and Dr. Unoh made note of their observations that Bufalino acted as if he was being watched and that he believed he was being interrogated while he was at the hospital. In fact, Bufalino was being watched and interrogated at the hospital. This was not delusional behaviour. [ 53 ] Further, Dr. Warsi also observed that Bufalino paced, and looked at the cameras in the hospital. Dr. Unoh noted that his behaviour was suspicious and that he was restless.

These observations may indicate that Bufalino was troubled, but they do not suggest delusion, nor a mental disorder.

[ 54 ] Dr. Unoh specifically wrote, “I was unable to assess his judgment, capacity , and insight...”. [Emphasis added.] [ 55 ] Dr. Shukla was not able to engage Bufalino in any meaningful conversation, noting that Bufalino spoke “as little as possible”. [ 56 ] In

summary, I find that Dr. Shukla’s diagnosis was based almost entirely on the collateral history presented by Bufalino’s family. The observations of Bufalino and the conversations with him at the hospital offer very little corroboration of the history. Thus, the factual basis for the finding of incapacity is extremely limited.

I accept that it is possible to make a finding of incapacity based solely upon a collateral history in some cases; however, in the present case, the limited factual basis for the finding must be considered in the context of the other concerns. [ 57 ] Regarding the second concern, I find that there is no evidence whatsoever that Dr. Shukla or anyone explained to Bufalino the proposed medical treatment, the pros and cons of the proposed treatment, or any alternatives. At the hearing, Dr. Shukla testified that the proposed treatment included psychotherapy and medication. However, Dr.

Shukla provided no evidence that he ever told Bufalino the specifics of the proposed treatment, the possible consequences, or the alternatives. [ 58 ] On this appeal, on this point, the only evidence that counsel could find was a note written by Dr. Shukla on September 2, 2016, four days after Dr. Shukla signed the Form 33, to the effect that Bufalino “is refusing Risperdal M-tab, 0.5 mg PO Q12H”. [ 59 ] It must be remembered that the onus is on Dr. Shukla to prove to the Board that Bufalino is not able to appreciate the reasonably foreseeable consequences of his decision (to refuse treatment). In my view, Dr.

Shukla cannot do so if there is no evidence that the treatment, the consequences, or the alternatives were ever explained to Bufalino. That is, Bufalino cannot appreciate the consequences if he has not been fully informed of the treatment. It is incumbent on the attending doctor to explain the treatment, the consequences, and the choices to his patient. [ 60 ] As an aside, I accept that the treatment may in fact have been explained to Bufalino, but that Dr. Shukla simply failed to call that evidence at the Board hearing.

Unfortunately, without evidence that the doctor explained the treatment, the consequences, and the choices to his patient , it is impossible for a Board to find that the patient is not able to appreciate the reasonably foreseeable consequences of the decision. [ 61 ] Finally, the third concern is that Dr. Shukla and the Board appeared to use Bufalino’s failure to explain his decision to refuse treatment as evidence of a mental disorder. Standing alone, this is improper reasoning. [ 62 ] In that respect, I refer to the facts in the Starson case.

In Starson , Professor Starson had a history of a diagnosed mental disorder and a history of psychiatric treatment. He had experienced the effect of psychotropic medications. Professor Starson chose to refuse any further medications because, in his view, the medications sedated him such that he could not properly conduct his scientific research.

The Supreme Court of Canada found that Professor Starson was able to appreciate the reasonably foreseeable consequences of his decision, and therefore found that he had capacity to refuse treatment. [ 63 ] In the present case, the Board found that Bufalino’s case was unlike the Starson case. At page 19 of the Board’s decision, the Board wrote, “Unlike Professor Starson, VB did not have a lengthy history of admissions for and treatment of mental disorder. He was 29 years of age. This was his first admission. VB did not assert that he suffered from any side effects from medications.

In addition, VB did not engage in discussions with his doctor to have a full interaction to explore the scope and nature of his mental condition.” [ 64 ] In my view, Bufalino is entitled to remain silent. Bufalino is not required to explain his refusal of treatment. [ 65 ] I accept that often a patient does not provide an explanation for refusing treatment, and I accept that the Board may comment upon the absence of an explanation.

Further, I accept that silence can corroborate the diagnosis in some cases, if other evidence supports a diagnosis of a mental disorder. [ 66 ] However, the failure to provide an explanation for refusing treatment cannot be the foundation for a diagnosis of a mental disorder.

Bufalino can choose to remain silent for any number of reasons that have nothing to do with a mental disorder. [ 67 ] In the present case, I find that the Board erred at page 19 of its decision when it wrote, “We concluded that VB’s failure to engage in discussions was more likely than not linked to the persecutory delusions which he revealed to his mother...”. [ 68 ] In

summary, because of these three concerns, I find that the Board’s decision confirming Dr. Shukla’s finding that Bufalino does not have capacity to accept or reject treatment is not reasonable. The decision should be set aside. [ 69 ] Because of the lack of evidence in this case, in my view, it is appropriate for a re-hearing by a new panel of the Board on the issue of whether or not Bufalino is able to appreciate the reasonably foreseeable consequences of his decision to refuse treatment. CONCLUSION [ 70 ] In

summary, I find that there has been no procedural unfairness. However, I find that the Board’s decision that Bufalino does not have capacity to accept or reject treatment is not reasonable, and should be set aside. [ 71 ] I hereby order that a new hearing is to be held by a different panel on the issue of whether or not Bufalino is able to appreciate the reasonably foreseeable consequences of his decision to refuse treatment.

_____________________________ J. R. Henderson, J. Released: February 9, 2017 CITATION : Bufalino v. Shukla, 2017 ONSC 987 COURT FILE NO.: 56817/16 DATE: 2017/02/09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: Vincent Bufalino Appellant - and – Dr. Neeraj Shukla Respondent ENDORSEMENT ON APPEAL J. R. Henderson, J.

Released: February 9, 2017