An individual (“Conway”) held in mental health facilities after being found not guilty of a criminal offence by reason of insanity was successful in his appeal from the decision of the Consent and Capacity Board (the “Board”) that he was not capable of contenting to treatment with psychotropic medications

Administrative law – Mental health – Consent to treatment – Substitute decision maker – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Test – Judicial review – Standard of review – Correctness – Reasonableness simpliciter

Conway v. Jacques, [2005] O.J. No. 400, Ontario Superior Court of Justice, February 4, 2005, M.K. Fuerst J.

The issue before the Court was whether the Board’s finding that Conway was incapable of consenting to treatment involved an error in law or was an unreasonable decision.

The Public Guardian and Trustee became the substitute decision-maker for Conway in late 2003. It consented to Conway being treated with a variety of medications suggested by Conway’s psychiatrist. Conway applied to the Board to review the psychiatrist’s finding of incapacity after learning that one of the recommended anti-psychotics had become available in injectable form.

The Court followed Starson v. Swayze, [2003] 1 S.C.R. 722 in finding that the legal standard of capacity is a question of law, and so the Board’s interpretation of the law is reviewable on a correctness standard, while a reasonableness standard of review applies to the Board’s application of the law to the facts.

The Court identified an error in law in the Board’s approach to the application of the statutory test for capacity to consent to treatment, at paragraph 51:

The Board specified, however, that in deciding whether the attending physician had met his onus to establish incapacity, it would consider three matters in turn: the “effect” of the prior Board and judicial decisions, the “understanding test”, and the “appreciation test”. Even before it turned to the “understanding” and “appreciation” components of the capacity test, the Board considered and decided the “effect” of prior decisions. This approach represents an error in law.

The Board was required to consider Conway’s capacity at the time of the hearing, not the prior decisions. This error was compounded by incorrect interpretations of the previous judicial decisions. The appellate courts had made no findings about Conway’s capacity, but the Board represented these decisions as having clearly concluded that Conway did not have the capacity to consent to treatment.

In addition, the Board erred in taking into consideration whether Conway had remained the same or had deteriorated since 2000. This was irrelevant to the question of his capacity at the time of the Board hearing in March 2004.

The Court concluded that the Board erred in its interpretation of the legal standard for capacity such that the Board’s decision had to be set aside. The question of Conway’s capacity was referred back to the Board for rehearing by a fresh panel.

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