The Court dismissed an appeal from a decision of the Consent and Capacity Board which had confirmed a finding of incapacity in respect of specified psychiatric treatment of the Applicant. The Court found the Board’s decision was entirely reasonable on the facts before it

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Best interest of incompetent adult – Adult in need of protection – Mental health – Consent to treatment – Substitute decision maker – Judicial review – Standard of review – Reasonableness simpliciter

Thompson v. Grant, [2005] O.J. No. 36, Ontario Superior Court of Justice, January 10, 2005, S.E. Greer J.

The Appellant had been diagnosed as having paranoid schizophrenia. The Consent and Capacity Board held a hearing in respect of the Appellant’s psychiatric treatment. The Board heard evidence from the Appellant’s father, the Respondent health practitioner and a member of the Community Treatment Order Team to which the Appellant had been referred. The Appellant had been living at a treatment facility since 2002 which each of these individuals thought had helped her emotionally. However, the Appellant’s medical records showed that her condition had deteriorated and the Board found that the Applicant was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding her treatment.

The Appellant had a statutory right of appeal from the Board to the Superior Court of Justice on questions of law or fact or both, under section 80(1) of the Health Care Consent Act, 1996. The Court relied on authority which held that the standard of review in these matters on questions of law is correctness, and on questions of fact or mixed fact and law, the standard is one of reasonableness. Since there were no legal issues raised at the Board’s hearing, the appeal was factual in nature, and the Court held that the standard to be applied to the Board’s decision was reasonableness. The Court found that the Board was a specialized tribunal entitled to deference on matters within its expertise, which included factual determinations of capability issues. The Board was in the best position to assess the evidence before it and come to an informed conclusion as to the Applicant’s condition.

The preponderance of factual evidence before the Board was held to be sufficient for the Board to make the findings that it did. The Board was aware that the Applicant did not like the side effects she suffered from taking the antipsychotic drugs. The Board had sufficient evidence before it to show that the Applicant was incapable of understanding the true nature of her illness or to understand that the treatment, in the past, had helped her.

In the result, the Board’s decision was entirely reasonable on the facts before it and the appeal was dismissed.

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