The Applicants, Mr. and Mrs. Marsden, applied for judicial review of the Ontario Consent and Capacity Board (the “Board”) decision. The Board held that Dr. Taylor, the Respondent, was allowed to administer anti-hypertension medication generally to the Applicants’ incapacitated mother. The Court held that the proper standard of review of the Board’s decision was simple reasonableness. It allowed the Applicants’ appeal in part.

28. November 2006 0

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Adult in need of protection – Mental health – Substitute decision maker – Consent to treatment – Judicial review – Compliance with legislation – Parties – Death of a party – Evidence – Standard of review – Reasonableness simpliciter

Marsden v. Taylor, [2006] O.J. No. 4045, Ontario Superior Court of Justice, October 2, 2006, M.J. Quigley J.

The Applicants were substitute decision-makers (“SDMs”) for Mrs. Marsden’s mother, Mrs. Bourgoin, pursuant to a Power of Attorney granted to them. Mrs. Bourgoin was a patient at a nursing home, Brantwood, at the relevant time. The Applicants opposed the administration of anti-hypertension medications to Mrs. Bourgoin by Dr. Taylor, and in particular a drug called Norvasc. They explained that they wanted to see Mrs. Bourgoin’s rights as a vulnerable person protected. They insisted that the involvement of the family in the decision-making process of an incapable person must be part of the protection of those rights. They argued that was one of the main purposes of the legislation in permitting the appointment of SDMs for incapable persons. They also believed that they had a legal right, as Mrs. Bourgoin’s SDMs, to override virtually any and all medical and other treatment decisions Dr. Taylor or other professional staff at Brantwood would make.

The Board held that Dr. Taylor had the legal obligation as Medical Director of Brantwood to continue to care for Mrs. Bourgoin. It concluded that Dr. Taylor could treat her not only with Norvasc, but with hypertension medications generally. The Applicants appealed this decision to the Ontario Superior Court of Justice.

The Court decided that the proper standard of review of the Board’s decision was simple reasonableness. It explained that the Board was dealing with mixed questions of fact and law that lie within the core competency of the Board. The Court also explained that given the Board’s jurisdiction to make its decision, as well as its expertise in these matters, deference must be accorded to the Board.

The Court considered four issues. First, whether it was reasonable for the Board to decide that Dr. Taylor had an ongoing ability to propose treatment for Mrs. Bourdoin. The Court explained that this was a finding of fact and the Board was entitled to deference. The Court concluded that Dr. Taylor had a continuing legal obligation as Medical Director of Brantwood to serve as Mrs. Bourgoin’s attending physician unless and until a substitute physician was appointed in a legally and binding manner.

With regard to whether the Marsdens had failed to comply with the principles of substitute decision making, the Court held that the Board acted in accordance with established case law and with the framework of the Act. The Applicant’s contention, that because they had power of attorney they can make all the decisions in regards to Mrs. Bourgoin’s care was rejected because this would render every decision by an attorney unreviewable. The Court concluded that the Board’s decision was reasonable and ought not to be interfered with.

With regard to whether the Marsdens could be compelled to consent to the proposed medical treatment, the Court held that their interpretation of the Act was flawed and unfounded. The Court concluded that it should not interfere with Board’s decision as it was reasonable.

In considering whether the applicants could challenge the treatment plan, the Court explained that it is important to consider the purposes that underlie the Act. The Court explained that the Act strives to achieve balance between the wishes of SDMs and healthcare professionals respecting the treatment of incapable persons. It explained that had the Board simply decided that Dr. Taylor could treat Mrs. Bourgoin with Norvasc, it would have been a reasonable decision. However, the Court disagreed with the Board’s decision that Dr. Taylor may treat Mrs. Bourgoin with anti-hypertension medication generally. It explained that the Marsdens had no notice that the Board might consider authorizing the use of medications other than Norvasc. As a result, they did not have an opportunity to put their evidence before the Board on their views respecting the effect on Mrs. Bourgoin when treated with anti-hypertension medications other than Norvasc. The Court therefore concluded that the Board’s decision on this issue was not reasonable. It would have referred the matter back to the Board for further consideration on the use of general hypertension medication, with notice to the SDMs and providing them full opportunity to appear and make submissions.

Shortly after the conclusion of the hearing, and before the Court rendered its decision, Mrs. Bourgoin passed away. This gave rise to further procedural issues.

In the result, the Court allowed the Applicants’ appeal in part.

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