On appeal by two daughters of a decision of the Ontario Consent and Capacity Board directing them to consent to withholding medical treatment for their mother, the Court found that the Board had erred in law in its determination as to whether the daughters had complied with the principles for substitute decision making by withholding their consent. The Board also erred in law by ignoring the legislative purpose of the Health Care Consent Act, 1996. Finally, the Board assumed, in the absence of evidence, that the mother’s death would be prompt if there were no further recourse to intensive care.

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Adult in need of protection – Withholding medical treatment – Substitute decision maker – Power of attorney – Scope of authority – Compliance with legislation – Judicial review – Evidence – Standard of review – Correctness

Scardoni v. Hawryluck, [2004] O.J. No. 300, Ontario Superior Court of Justice, February 5, 2004, Cullity J.

The appellants’ mother suffered from advanced Alzheimer’s disease and was incapable of making decision respecting her personal care. Her daughters, the appellants, were appointed her attorneys for personal care. Following an admission to intensive care for aspiration pneumonia, the mother’s physician discussed with the appellants a proposal to withhold further treatment in intensive care and instead keep her as comfortable as possible with painkillers and sedatives. The appellants refused to consent and the physician applied to the Consent and Capacity Board (the “Board”) who disagreed with the appellants’ belief that treatment was in their mother’s best interest and directed them to consent. The appellants sought an appeal of the Board’s decision.

The Health Care Consent Act, 1996, S.O. 1996, c.2 (the “Act”) deals with circumstances in which consent to a patient’s treatment must be obtained and provided, the persons who may give that consent when a patient lacks capacity, and the principles that such persons must observe when determining whether to give or refuse consent. A decision to withdraw or withhold treatment would be considered “treatment” and would require consent.

Section 21 of the Act sets out the principles that govern the decision of a substitute decision-maker to give or refuse consent. Section 21(2)(a) gives consideration to the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable. Section 21(2)(b) gives consideration to any wishes expressed by the incapable person with respect to treatment. Both represent legislative acceptance of the value to be attributed to a patient’s individual autonomy and the right to medical self-determination. If a substitute decision-maker has not complied with section 21, the Board is entitled to override the decision to refuse consent.

The appellants’ evidence before the Board was that their mother believed, as a Roman Catholic, in the sanctity of human life and her habitual use of the expression “where there’s life there’s hope” stemmed from her religion and expressed her wish to consent to treatment. Rather than rejecting the evidence of the appellants with respect to their mother’s beliefs, the Board considered whether justification for those beliefs could be found in the teachings of the Roman Catholic Church. This approach ignored the legislative purpose of section 22(2)(a) and misinterpreted its meaning. This was a mistake of law to which the standard of correctness applies. As well, to discount the belief expressed in the maxim “where there’s life there’s hope” on the basis that any hope was negligible, ignored the consideration that it is the fact, and not the correctness of the belief which should be given weight and significance. In sum, the Board ignored, misapprehended or confused the fundamental differences between the personal, subjective factors to be considered under those provisions.

Finally, some of the Board’s factual conclusions had no basis in the evidence. For example, the Board mistakenly believed that the mother had suffered cardiac arrests and received CPR in intensive care. It was essential for the Board to have a clear and comprehensive understanding of the medical evidence in order to properly balance the necessary factors required to reach its decision.

In the circumstances, the appeal was allowed and the Board’s decision was set aside.

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