A psychiatric patient (“SMT”) was unsuccessful in having the Court overturn a decision of the Consent and Capacity Board where the Court found that it was not unreasonable for the Board to find that SMT was incapable with respect to treatment based on the evidence before it

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Mental health – Substitute decision maker – Adult in need of protection – Capacity – Compliance with legislation – Judicial review – Standard of review – Correctness – Charter of Rights and Freedoms

S.M.T. v. Abouelnasr, [2008] O.J. No. 1298, Ontario Superior Court of Justice, March 14, 2008, M. L. Lack

SMT was a 50-year-old male who had suffered a brain injury in a motor vehicle accident. This injury led to a change in personality and a psychotic disorder. In 2001, SMT was charged with a number of criminal offences and found unfit to stand trial on those charges. Since that time, he was a patient at the Whitby Mental Health Centre. On November 28, 2005, the Board found that SMT was not capable with respect to treatment for anti-psychotic and other medication and his sister was appointed the substitute decision maker. SMT continually resisted the provision of intra muscular injections of anti-psychotic medication. In September, 2007, he applied to the Board to review the findings of incapacity with respect to treatment and involuntary status.

The Court held that the standard of review in considering the decision of the Board was correctness on questions of law and reasonableness on questions of fact and mixed questions of fact and law.

With respect to the findings of incapability, the Court noted that the law presumes that a person is capable of making decisions. The onus was, therefore, on the Board and the attending physician, to prove on the balance of probabilities, that SMT was not capable. The Court noted that SMT had a well documented history of hallucinations of seeing ghosts and monkeys. After reviewing the evidence from SMT’s attending psychiatrist that he continued to suffer from hallucinations, the Court held that it was open to the Board on the evidence to make a finding of incapability and that this finding was not unreasonable. The Court further affirmed the Board’s decision that the involuntary admissions were appropriate and that the use of restraints in administering injections of anti-psychotic medications were necessary.

The Court did not accept SMT’s arguments that the provisions of the Health Care Consent Act infringed his rights under section 7, 12 and 15 of the Charter. With respect to section 7, the Court noted that there was no issue that the forcible injection of anti-psychotic drugs into one’s body on a non-consensual basis engages the right to security of the person. However, the Court reviewed the decision in Fleming v. Reid (1991), 4 O.R. (3d) 74 which held that the provisions of the Act authorizing such treatment furthered the purpose of the Act of promoting the autonomy of capable persons to consent or refuse treatment and protecting the welfare of persons who would benefit from treatment but who were incapable of giving consent.

The Court rejected SMT’s argument that he was subject to discrimination contrary to section 15 of the Charter noting that there was simply no evidence that people with mental illness subject to forcible treatment pursuant to substituted consent are treated differently than other groups of incapable persons upon receiving treatment on substituted consent. The Court also rejected SMT’s arguments that provision of treatment in a forcible manner violated section 12 in that it constituted cruel and unusual punishment. The Court concluded that such treatment was not so grossly disproportionate to what is appropriate in the incapable person’s particular circumstances as to outrage standards of decency or to shock the conscience of the community.

In the result, SMT’s appeal was dismissed.

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