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Mental Health - Capacity to Make Treatment Decisions. Jawadi v. Maerov
In Jawadi v. Maerov (Ont CA, 2025) the Ontario Court of Appeal dismissed a further appeal, here brought against a dismissal of a first appeal to the Consent and Capacity Board.
Here the court considers capacity to make treatment decisions:[25] Under s. 4(1) of the HCCA, a person is capable with respect to a particular treatment if they are “able to understand the information that is relevant to making a decision about the treatment”, and “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” People are presumed to be capable with respect to treatment: HCCA, s. 4(2). When a physician’s finding of incapacity is under review by the Board, the physician bears the onus of displacing one or both of the two criteria for capacity under s. 4(1) on a balance of probabilities.
[26] On an appeal from a decision of the Superior Court in an appeal from a decision of the Board, “this court ‘steps into the shoes’ of the Superior Court of Justice and focuses on the tribunal’s decision under review”: B.L. v. Pytyck, 2021 ONCA 67, at para. 20. As Brown J.A. explained in B.L. v. Pytyck, at para. 22:The Board’s identification of the proper statutory test for capacity involves a question of law reviewable on the correctness standard. The Board’s application of the statutory test for capacity to the evidence to determine whether a person is capable is a question of mixed fact and law, reviewable on the deferential standard of palpable and overriding error, absent an extricable question of law in the Board’s analysis. [27] In this case, Dr. Maerov has never contended that Mr. Jawadi was incapable under the first prong of the s. 4(1) capacity test – that is, that Mr. Jawadi was unable to understand the information relevant to making a decision about the proposed treatment with antipsychotic medication. Rather, Dr. Maerov’s position throughout these proceedings is that the evidence established Mr. Jawadi’s incapacity under the second prong of the test – that is, that in May 2023, he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about Dr. Maerov’s proposal to treat him with antipsychotic medication.
[28] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 79, Major J. emphasized that “a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances”. He explained further: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. Professor Weisstub comments on this requirement as follows ...
Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.
As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.
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