Lewis Markowitz (the “Appellant”), appealed the decision of the Consent and Capacity Board (the “Board”) confirming the finding of a physician that the Appellant was incapable of consenting to treatment within the meaning of the Health Care Consent Act, S.O. 1996, c. 2 (“HCCA”). Pursuant to section 80 of the HCCA, the Appellant sought an Order quashing the decision of the Board and an Order finding the Appellant capable to consent to or refuse treatment, or, alternatively, an Order remitting the matter to the Board for a new hearing on the issue of capacity, with directions.

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Test Consent to treatment – Mental health – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter – Natural justice

Markowitz v. Rootenberg, [2008] O.J. No. 5029, Ontario Superior Court of Justice, December 11, 2008, S.G. Himel J.

The facts which gave rise to the appeal are as follows:

On September 27, 2006, the Appellant was found not criminally responsible on account of mental disorder on criminal charges of assault and failure to comply. Following the finding of not criminally responsible, he was ordered by the Ontario Review Board to be transferred to the Centre for Addiction and Mental Health (“CAMH”).

According to his treating physician, Appellant suffered from a psychotic disorder and dementia secondary to a diagnosis of Huntington’s Chorea. The manifestations of the condition included cognitive deficits, physical and verbal aggression, irritability and paranoid ideation.

It was alleged that the Appellant assaulted a fellow patient and a staff member at CAMH. As a result of these incidents, Dr. Siu, the physician on duty, examined the Appellant, reviewed his record and wrote a lengthy clinical note finding the Appellant incapable of consenting or refusing consent to treatment. The proposed treatment consisted of anti-psychotic and benzodiazepine medications to treat the psychiatric symptoms and the agitation.

The Appellant applied to the Board to review the finding of Dr. Siu. The Board upheld the finding of incapacity and the Appellant appealed the Board’s decision to the Ontario Superior Court of Justice.

Section 80 of the HCCA provides that a party may appeal to the Superior Court of Justice from decisions of the Board on questions of fact or law or both. The Court has broad powers: it may exercise all the powers of the Board, substitute its opinion for that of the health practitioner, or refer the matter back to the Board with direction for rehearing in whole or in part.

The Court noted on this appeal that the determination of capacity with respect to treatment is a question of fact and law. The Board must apply the statutory test for capacity to the evidence. The standard of review of a Board decision in the absence of an error of law is reasonableness: Starson v. Swayze, [2003] 1 S.C.R. 722 (“Starson”). Reasonableness of the decisions taken as a whole, is satisfied if a decision is supported by a tenable explanation.

Capacity hearings are primarily adjudicative in nature and a determination is relatively fact-sensitive. The Board is uniquely positioned to hear the testimony of the patient and the physician and to assess the evidence while applying its expertise.

The relevant statutory provisions for the test of capacity are set out in section 4 of the HCCA. This section was interpreted by the Supreme Court of Canada in Starson, and the following criteria for capacity were set out at paragraph 78 of the decision:

First a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard.

There is a presumption that a person is capable of deciding whether to accept or reject treatment. The Board must be satisfied upon clear, cogent and compelling evidence that the medical practitioner discharged the onus.

In Ontario, under the HCCA, capacity to make treatment decisions involves an ability to understand information that is relevant to making a decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. While the Board found that the Appellant understood information relevant to making the decision, he did not appreciate the reasonably foreseeable consequences of such decision.

A patient does not have to agree with a specific diagnosis of the physician in order to be able to apply relevant information to his circumstances. Further, patient’s failure to demonstrate actual appreciation of the decision does not automatically lead to a finding of incapacity. A lack of appreciation may be due to the attending physician’s failure to adequately inform the patient of the consequences of the decision.

In this case, the Board stated these principles correctly and was entitled to reach the conclusion that the Appellant, by reason of his condition, was unable to appreciate the benefits of treatment and the risks of non-treatment and, thereby, lacked the ability to appreciate the reasonably foreseeable consequences of his treatment decision. The Board did not consider what was in the best interests of the patient, a factor irrelevant on the determination of capacity.

There was sufficient evidence before the Board upon which it could rely to determine what changes had occurred between the Appellant’s admission to CAMH, when he was found to be “marginally competent”, but highly likely to “no longer be capable of making decisions” in the near future, and Dr. Siu’s eventual finding of incapacity.

The Board properly permitted cross-examination of the physician on the extent of interviews with the Appellant and prevented counsel from conducting questioning which it deemed either repetitious or irrelevant. There was no denial of natural justice.

The Board’s decision was upheld.

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