Simon's Megalomaniacal Legal Resources

Mental Health - Consent and Capacity Board (CCB)

. B.V. v. Knox

In B.V. v. Knox (Ont CA, 2023) the Court of Appeal considered a second court appeal from a decision of the Consent and Capacity Board which upheld the appellant's "physician’s conclusion that she is incapable of consenting to treatment for antipsychotic medications and should be held under involuntary status".

In these quotes, the court considered whether the tribunal had breached procedural fairness by not appointing amicus curiae:

[18] The Board applied the correct test for capacity to consent to treatment. The Board has the discretion to direct the form of the hearing and limit both evidence and submissions to provide a fair, just, and expeditious hearing. The hearing had already been adjourned six times, and the Board made the discretionary decision to continue without a further adjournment to appoint amicus.

[19] The proceedings were not unfair. The Board outlined the procedure for B.V. She had access to counsel throughout the hearing. With Mr. Hiltz present, she was allowed equal time to provide evidence, cross-examine, and make submissions. Mr. Hiltz was asked if he wished to make submissions. All three panel members asked questions. The appellant was reminded multiple times to focus on the issues before the Board. She was warned that if she did not stop interrupting the proceedings, she would be placed on mute.

[20] The appointment of amicus is meant to assist the Board, and the decision to appoint amicus is discretionary. The Board was not required to appoint amicus, and there was no unfairness in declining to do so. There is also no evidence that the decision would have been different had amicus been appointed. Mr. Hiltz was present even after being discharged by B.V. She had access to his assistance throughout the hearing including while cross-examining Dr. Knox and making submissions. There is a presumption of capacity to retain and instruct counsel and B.V. wanted to represent herself.

. J.J. v. Okonkwo

In J.J. v. Okonkwo (Ont CA, 2023) the Court of Appeal considered a quite unusual and complex (further) appeal from a Superior Court appeal of a Consent and Capacity Board (CCB) decision that the appellant "was incapable with respect to treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”) and confirmed his involuntary status at the Grand River Hospital (“the Hospital”) under the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”)".

These quotes reflect both a remarkable persistent legal history, and the difficulty of considering res judicata in CCB matters (particularly appeals), given the never-ending evolution of medical conditions [see also below: Kozoubenko v. Gosk (Ont CA, 2023)]:

[1] The appellant has been involved in four hearings before the Consent and Capacity Board (“the Board”). After the last hearing, on October 5, 2022, the Board found that the appellant was incapable with respect to treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”) and confirmed his involuntary status at the Grand River Hospital (“the Hospital”) under the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). His appeal was dismissed by the Superior Court. He appeals to this Court alleging that following the first three hearings that ended in his favour, his subsequent illegal detention and recertification was an abuse of process. According to the appellant, because of his illegal detention, all further evidence collected on his recertification was also illegal. As a result, the Board had no jurisdiction to hold a hearing or make any decisions regarding his capacity or involuntary status.

....

[10] On this appeal, the appellant does not contest the October 4, 2022 panel’s factual findings undergirding its decisions that he was incapable to consent to treatment with antipsychotic medication and that he met the criteria for involuntary status. His appeal is limited to the aspect of the appeal judge’s decision addressing the Board’s exercise of its discretion under s. 41(2) of the MHA. Section 41(2) of the MHA reads as follows: “The Board by order may confirm the patient’s status as an involuntary patient if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were met at the time of the hearing of the application” (emphasis added).

[11] The appellant submits the appeal judge erred in law in concluding that the Board had properly exercised its discretion under s. 41(2) of the MHA by confirming his involuntary status when he had been subject to an abuse of process by the recommencement of the certification process in light of the previous Board decisions of September 1, 12, and 23, 2022. He submits that, once the September 1 hearing panel concluded that the Hospital had not met its burden and rescinded his involuntary status, as there were no new circumstances relevant to his capacity or involuntary status, he should have been immediately released and the Hospital and the Board had no further right to consider his case.

[12] We do not agree.

[13] As the appeal judge rightly noted, in the context of an administrative proceeding, abuse of process is a question of procedural fairness. It is a broad concept that applies in various contexts and is characterized by its flexibility. See Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 34, 38. The content of procedural fairness is to be decided in the specific context of each case, having regard to all the circumstances: Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at pp. 682-83.

[14] The abuse of process found by the September 23, 2022, panel did not continue into and taint the October 4, 2022, hearing on the merits. Nor were the issues of capacity and involuntary status rendered res judicata by the findings of the September 1 and 12 hearing panels. This is because, as noted by the October 4 hearing panel and the appeal judge, the new evidence and the “Box B” criteria were not considered previously, nor had there been a full consideration of the merits since the September 12 hearing.

[15] The October 4, 2022, hearing panel and appeal judge carefully reviewed the specific context of this case. As they concluded, the specific context of this case serves to distinguish the circumstances that resulted in the abuse of process finding on September 23, 2022, from those present at the October 4, 2022 hearing on the merits. These circumstances include, importantly, the new and recent evidence of the appellant’s serious and ongoing deterioration that resulted in escalating aggressive and threatening behaviour. Moreover, previous panels had not considered the “Box B” criteria of substantial mental deterioration. The new evidence of the appellant’s seriously deteriorating state was not available to be considered by the September 1 and 12 hearing panels and was not considered by the September 23 hearing panel that focused only on the abuse of process question.

[16] Further, Dr. Okonkwo’s sincere concern about the appellant’s deteriorating condition, and the propriety of the steps taken to ensure procedural fairness, further separate the previous panel decisions from the October 5, 2022 decisions, and undermine any suggestion of abuse of process. Dr. Okonkwo was in a position where he had to balance his obligations to his patient and to the public safety, with the appellant’s claim that he was entitled to be discharged. Given the timing of the Board’s September 23 reasons, Dr. Okonkwo tried but could not obtain timely legal advice, nor could he take any steps other than certification. We note that the appellant did not complain about nor characterize as illegal Dr. Okonkwo’s actions before the October 4 Board or the appeal judge. The appellant’s counsel acknowledged that Dr. Okonkwo did the best he could in these difficult circumstances. Rather, the appellant argued that the previous abuse of process finding tainted Dr. Okonkwo’s certification.

[17] In the face of the appellant’s severely deteriorated mental state, Dr. Okonkwo properly exercised his duty as attending physician and restarted the certification process. We see no error in the Board’s and appeal judge’s conclusions that Dr. Okonkwo’s actions, in the difficult and emerging circumstances of this case, did not amount to an abuse of process.

[18] In consequence, the appeal judge made no error in concluding that it was open to the Board to decline to exercise its jurisdiction in the circumstances of this case and to confirm the appellant’s involuntary status. There is no basis warranting appellate intervention.

. Kozoubenko v. Gosk

In Kozoubenko v. Gosk (Ont CA, 2023) the Court of Appeal illustrates some 'consent to treatment' legal procedures, especially involving the Health Consent and Capacity Board. This appeal was subsequently dismissed a moot as the medical treatment at issue became dated and would no longer have a "practical effect", a theme that the court emphasizes in the later paragraphs quoted:

[6] On October 29, 2018, Dr. Gosk determined that Mr. Kozoubenko was incapable of consenting or refusing consent to treatment with anti-psychotic medications, both oral and injectable. She concluded that Mr. Kozoubenko satisfied the first part of the two-part test set out in s. 4 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”): he had the ability to understand the information that was relevant to making a decision about the proposed treatment. However, she determined he did not satisfy the second part as he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

[7] Mr. Kozoubenko applied to the Board under s. 32(1) of the HCCA for a review of the finding of incapacity. On November 16, 2018 (while Mr. Kozoubenko was still an involuntary in-patient at CAMH), the Board confirmed Dr. Gosk’s finding. Briefly, the Board concluded that Dr. Gosk’s opinion was supported by the evidence as a whole, including Mr. Kozoubenko’s own testimony. The Board considered Mr. Kozoubenko’s evidence at the hearing that he had said he was prepared to take 2.5 mg of olanzapine, noting that his out-patient psychiatrist had increased the dosage to 5.0 mg in May 2018, only after numerous attempts to do so. While Mr. Kozoubenko had told a social worker and another psychiatrist at CAMH he was willing to take 2.5 mg of olanzapine, later he said he wanted fish oil and vitamins instead of olanzapine. According to the Board, Mr. Kozoubenko absolutely refused to take anti-psychotics at a level that would reduce his symptoms, and most of the time he refused to even take 2.5 mg of olanzapine.

[8] Mr. Kozoubenko appealed the Board’s decision to the SCJ pursuant to s. 80 of the HCCA. The appeal was initiated while he was still an in-patient at CAMH, was heard in March 2019, and was dismissed on June 6, 2019. Sanfilippo J. (the “Appeal Judge”) concluded that the Board had ample evidence to make its determination of incapacity as to treatment. The Appeal Judge found that the Board correctly interpreted the applicable capacity test under s. 4 of the HCCA. He also found that the Board had a reasonable basis to find that the appellant’s inability to appreciate the reasonably foreseeable consequences of a decision – the second branch of the capacity test – was not affected by the nature of his relationship with the treating physicians but rather by symptoms of his psychosis. He further found, in coming to its conclusions, that the Board appropriately weighed the appellant’s evidence against the record. The Board had corroborative evidence confirming the evidence and diagnosis of Dr. Gosk, including detailed records from Mr. Kozoubenko’s time in London. Ultimately, the Appeal Judge found the decision of the Board was reasonable and entitled to deference.[1]

[9] Mr. Kozoubenko filed a notice of appeal and certificate respecting evidence in this court on July 5, 2019. No further steps were taken by or on behalf of Mr. Kozoubenko to advance the appeal. On September 22, 2022, at the request of the respondent, amicus curiae was appointed to assist the court with respect to the appeal.

[10] Amicus filed a factum asking that the SCJ order be reversed, that the decision of the Board be quashed, and that this court make an order that Mr. Kozoubenko was capable at the time of his assessment and the Board review in October and November 2018 in respect of the specified psychiatric treatment, or alternatively that the matter be referred back to the Board for a new hearing.

....

[16] The determination of Mr. Kozoubenko’s capacity in 2018 was in respect of his consent to the specific treatment Dr. Gosk was recommending. Mr. Kozoubenko was discharged from CAMH in December 2018, and there is no ongoing treatment, nor any proposed treatment of Mr. Kozoubenko by Dr. Gosk or CAMH.

[17] Dr. Gosk contends that the appeal is moot because there is no live dispute between the parties: the decision sought to be appealed is the determination of Mr. Kozoubenko’s capacity in respect of a particular treatment that was proposed while he was an in-patient at CAMH. Now, five years later, Mr. Kozoubenko is not being treated at CAMH, nor is any treatment proposed. Dr. Gosk submits that, even if this court were to allow the appeal, it would be speculative in the circumstances of this case to conclude that Mr. Kozoubenko’s capacity to refuse anti-psychotic medication in 2018 would have any practical effect on any future treatment decision.

[18] Mr. Kozoubenko and amicus submit that the appeal should be heard because the appeal might have a practical effect on Mr. Kozoubenko’s rights. Amicus points to s. 21(1) of the HCCA, which requires a person’s substitute decision-maker (“SDM”) to give or refuse consent to treatment in accordance with a prior capable wish made by the person in similar circumstances. Amicus submits that, if this court were to allow the appeal and find that Mr. Kozoubenko was in fact capable in respect of his decision respecting treatment in the fall of 2018, this would constitute a prior capable wish that his SDM would be required to follow if he were found incapable with respect to future treatment.

[19] I accept that the appeal is moot because there is no longer a “live controversy” between Mr. Kozoubenko and Dr. Gosk. The question is whether the court should exercise its discretion to hear the appeal on the basis that a decision will have an effect on Mr. Kozoubenko’s rights.

[20] The mootness issue has been addressed in several cases in the context of appeals to the SCJ of Board orders respecting capacity to consent to treatment, where the argument was advanced that the appeal should be heard because it would have a practical effect on a former patient’s right to rely on a prior capable wish if they were found incapable in the future. In some cases, the appeal was dismissed as moot: see, e.g., Adsett v. Labelle, 2023 ONSC 2842; A.N. v. Guimond, 2020 ONSC 6751 and Giannoylis v. McIntyre, 2018 ONSC 547. In other cases, the appeal was permitted to proceed: see e.g., M.L. v. Meng, 2023 ONSC 4775; M.N. v. Klukach, 2004 CanLII 6325 (ON SC), 12 Admin L.R. (4th) 101 and Doherty v. Horowitz, 2016 ONSC 4457. The determination of whether an appeal of a Board decision respecting capacity, while moot, should be heard, requires a fact-specific evaluation of the circumstances to determine whether a decision on appeal will have a practical effect on the former patient’s rights.

[21] In Dickey v. Alexander, 2016 ONCA 961, this court dismissed as moot an appeal by a health practitioner from an SCJ order that had overturned an incapacity finding. The appellant argued that if the SCJ order were allowed to stand, it might be used in support of a “prior capable wish” and preclude the administration of drugs without the respondent’s consent. In declining to exercise its discretion to hear the appeal, the court noted that, while the determination that the respondent had capacity three years earlier might be evidence relevant to determining his capacity in a future instance, it was not clear it would be determinative. The court also noted that there are statutory mechanisms available to the parties in the event of a future incapacity finding: at paras. 11-12.

[22] The point of departure is the recognition that a person’s capacity to consent to treatment is time and treatment specific. The HCCA provides for a presumption of capacity and recognizes that capacity is assessed with respect to a particular treatment and may fluctuate over time: ss. 4(2) and 15. The Board’s decision is specific to the person’s capacity at the time of the hearing: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 118. This means that in respect of any future treatment, Mr. Kozoubenko will be presumed capable, and whether he has or lacks capacity to consent to any proposed treatment will have to be assessed at the time the treatment is recommended.

[23] The HCCA provides a detailed framework for addressing a person’s capacity to consent to treatment, including the standard for determining a person capable or incapable in respect of a particular treatment (s. 4), the procedure to review a finding of incapacity (s. 32), and how decisions are to be made by a person’s SDM and/or the health practitioner in the event of a finding of incapacity (ss. 20, 21 and 35), including recourse to the Board in the event that a person’s prior capable wish is unclear (s. 35), and the procedure to depart from a prior capable wish (s. 36).

[24] I have considered the circumstances of the present case. For the reasons that follow I am not persuaded that the determination of the appeal some five years after the 2018 incapacity finding would have a practical effect on Mr. Kozoubenko’s rights such that the appeal should be heard notwithstanding that it is moot.

....

[26] Second, capacity to consent to treatment must be determined afresh each time a new treatment is proposed. Whether or not the appeal is successful, any future treatment that is proposed would require the health practitioner to consider whether Mr. Kozoubenko is capable of consenting to that treatment at that time. In each case a new capacity assessment would have to be performed. Any subsequent opinion with respect to Mr. Kozoubenko’s capacity to consent to a particular treatment would also be subject to the review and appeal procedures provided under the HCCA.

....

[29] Finally, I note the significant period of time between the finding of incapacity, and its review and the SCJ appeal, and the proposed hearing of a further appeal in this court. The HCCA anticipates that decisions about a person’s capacity to consent to a specific treatment are to be made in real time – that is, when they will have practical effect. The appeal mechanisms under the Act anticipate that appeals will proceed expeditiously: s. 80. While an appeal is pending and until it has been finally determined, the ability to administer the proposed treatment is suspended: s. 18(3). Hearing a second appeal at this late stage, when there is no ongoing treatment relationship between Mr. Kozoubenko and CAMH, and no practical context for the operation of a prior capable wish, is inconsistent with the underlying approach of the legislation. In L.(L.) v. T.(I.) (1999), 1999 CanLII 19918 (ON CA), 46 O.R. (3d) 284 (C.A.), this court emphasized the importance of expeditious decision-making under the HCCA: at para. 21.

. SBJ v. Ali

In SBJ v. Ali (Div Court, 2023) the Divisional Court considered an appeal under s.80(1) of the Health Care Consent Act, 1996 from a decision of the Consent and Capacity Board, which found the appellant "not capable of consenting to treatment in the form of mood stabilizing and antipsychotic medication":

c. Jurisdiction of the Court on an Appeal from the Board

[19] Section 80(1) of the Act provides a right of appeal on a question of law or fact or both. Section 80(10) of the Act gives the court on appeal the power to:

a) exercise all the powers of the Board;

b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board; and

c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

. S.H. v. Prakash

In S.H. v. Prakash (Ont CA, 2023) the Court of Appeal considered a further appeal from a Consent and Capacity Board ruling, the first being under the Health Care Consent Act, 1996 [s.81]:

[2] The appellant was first found incapable of consenting to treatment with anti-psychotic medication in January 2021, and again when Dr. Aulak assessed him in August 2021. The January assessment was confirmed by the Consent and Capacity Board (“CCB”) in February 2021 and the August assessment was confirmed in September 2021. An appeal from the September 2021 CCB decision to a Superior Court Judge (“the appeal judge”) under s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996 c. 2, Sched. A (“the Act”) was dismissed in March 2022, with reasons provided by the appeal judge in June 2022. The appellant brings this appeal from the decision of the appeal judge pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under s. 18 of the Act, the appellant cannot be treated while this matter works its way through the court process.

....

[4] Section 4(1) of the Act defines capacity with respect to treatment. A person is capable of consenting to treatment if that person is both able to understand the relevant information, and appreciate the reasonably foreseeable consequences of taking or refusing the proposed treatment. It is accepted that the appellant is able to understand the relevant information. The dispute is over whether he is able to appreciate the reasonably foreseeable consequences of a decision to take, or refuse to take, the medication. The appellant says he is capable of appreciating those consequences, but chooses for what he views as religious reasons, not to take the medication. The respondent contends that the appellant is not capable within the meaning of s. 4(1) of the Act.

[5] Section 4(2) of the Act presumes a person is capable of making treatment-related decisions. Before the CCB, the onus was on the respondent to demonstrate that the appellant was incapable of consenting to treatment.

[6] The CCB recognized Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, as the leading authority on the meaning of s. 4(1) of the Act. The CCB accepted the medical evidence before it and concluded that the appellant suffered from a delusional disorder. The CCB further found as a fact that the appellant “could not recognize his condition”. Applying the principles in Starson to the facts as found, the CCB held:

[The appellant] was not able to recognize he displayed the manifestations of a mental condition, one consequence of which was his inability to apply information about treatment decisions to himself. As a result, he was not able to appreciate the consequences of giving or refusing consent to treatment of the delusional disorder from which he suffered.

[7] In essence, the CCB concluded that, because the appellant was incapable of acknowledging a possible connection between his delusions and disorganized thought processes and his mental condition, the appellant could not apply the information provided to him concerning treatment to his circumstances and, therefore, could not appreciate the reasonably foreseeable consequences of accepting or rejecting treatment.

[8] The appeal judge accepted that there was a basis in the evidence for the CCB’s findings and, in particular, the finding that the appellant suffered from a delusional disorder which manifested itself in “religious delusions, persecutory delusions, delusions of reference, and tangential and disorganized thoughts leading to a flight of ideas”: at para. 46.

[9] The appeal judge, at para. 49, went on to conclude that:

[A] sufficient evidentiary basis [existed] for the Board to conclude that he [the appellant] is unable to recognize that he is affected by manifestations of a mental condition. The condition afflicting the appellant does not prevent him from understanding that others attribute his delusions to a mental health condition, but it prevents him from being able to appreciate the possibility that this may be true.

[10] The appeal judge further determined, at para. 52, that the CCB had properly applied the principles in Starson to the facts as found, holding:

The Appellant’s inability to appreciate the possibility he was affected by the manifestations of the mental condition for which treatment was being proposed left the Board with no alternative but to conclude that he was incapable of making a reasoned decision to decline the recommended treatment.

[11] Counsel submits that the appeal judge misapplied Starson by requiring, as a precondition to a finding of capacity, that the appellant appreciate that he suffered from delusions. We disagree. As quoted above, the appeal judge clearly understood the distinction between the ability to appreciate the possibility that certain conduct or beliefs were the manifestation of a medical condition and an acceptance of that diagnosis. The appeal judge, like the CCB, considered capacity by reference to the appellant’s ability to appreciate the possibility that his beliefs and conduct in issue were the product of a mental condition.