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Criminal - NCR - Treatment. Hamblett (Re)
In Hamblett (Re) (Ont CA, 2026) the Ontario Court of Appeal allowed an NCR appeal from decision of the ORB.
Here the court considered NCR ORB decisions regarding treatment choices:[15] The Board drew a distinction between a treatment impasse and a case that is difficult to treat. This distinction is not easy to draw and is not relevant to whether an independent assessment is necessary in this case. The exercise of the Board’s supervisory role is not contingent on a breakdown in the relationship between the treatment team and the patient – an “inability for a patient and team to work together”, as Dr. Bouskill put it. It was incumbent on the Board to address the clear lack of progress in treating the appellant and to seek out more effective treatment opportunities: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326 at para. 42. . Adsett v. Labelle
In Adsett v. Labelle (Ont CA, 2024) the Ontario Court of Appeal considered the 'prior capable wish' argument, an attempt to restrict ordered treatment:[3] The appellant’s argument before the Superior Court was that, for various reasons, the finding of incapacity should be quashed retroactively. The Superior Court appeal judge, Morgan J., characterized the appellant’s position as essentially this: to allow the appeal and find that the appellant was capable in October 2020 (and did not want to be treated with antipsychotic medication), would be a prior capable wish that a substitute decision maker would be required to follow were she found to be incapable in the future. Relying on this court’s decision in Dickey v. Alexander, 2016 ONCA 961, Morgan J. rejected the “prior capable wish” argument, concluding that the focus on appeal is the appellant’s “capacity at the time the Board’s hearing was made”: Dickey, at para. 10-11. Morgan J., again relying on Dickey, further found that any impact the finding of incapacity might have on a future substitute decision maker is speculative and “well beyond the currently visible horizon”.
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