The Consent and Capacity Board acting pursuant to the Health Care Consent Act, 1996, S.O. 1996, in conducting a hearing to determine whether a substitute decision maker is acting in the best interests of the patient, does not have an obligation to call witnesses which could have been called by the substitute decision maker represented by counsel at the hearing. Short reasons of the Board dealing with the prior capable wish of the patient will be considered sufficient by the Court on an appeal where the Court is not prevented from a meaningful review of the correctness of the Board’s decision. An oversight on the part of the Board in failing to make a decision as to incapacity of the patient where the incapacity was largely conceded by the substitute decision maker, is unlikely to succeed as a ground of appeal of the Board’s decision that the substitute decision maker was not acting in the best interests of the patient.

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Failure to provide reasons – Adult in need of protection – Capacity – Best interest of incompetent adult – Substitute decision maker – Treatment plans – Compliance with legislation – Hearings – Witnesses – failure to call

Grover v. Grover, [2009] O.J. No. 1496, Ontario Superior Court of Justice, April 14, 2009, P.B. Hockin J.

This was an appeal pursuant to s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996, from a decision of the Consent and Capacity Board (the “Board”). The Board required the Appellant, Ms. Grover, a substitute decision maker, to consent to the withdrawal of life support from her mother, Mrs. Grover, who was 81 years of age at the time and suffered a brain stem stroke.

Mrs. Grover’s medical history was a complicated one and included two earlier strokes. The third brain stem stroke was a significant medical event and, when its effects were added to the level of disability she suffered from the two earlier strokes, she was left in a non-communicative state and functionally, a quadriplegic. From the time of Mrs. Grover’s transfer from the nursing home to the hospital, life support measures, including the continuous use of a ventilator and endotracheal tube, were in place to sustain her.

Mrs. Grover’s principal treating physician was Dr. Butler. Dr. Butler consulted the Appellant and her siblings on two treatment plans for Mrs. Grover. The first plan involved the withdrawal of life support and if Mrs. Grover was unable to breathe on her own or adequately, she would receive palliative care to prevent discomfort. If she was able to breathe on her own, she would receive nutrition and hydration and, at some point, be transferred from the hospital to a long term care facility.

The second treatment plan was described as the full treatment care plan. It required a surgical tracheostomy and the insertion of a gastrojejunostomy tube to Mrs. Grover’s stomach and small bowel by which she would receive her nutrition. Mrs. Grover’s life expectancy in the event the second plan was followed was less than a year and she would be at risk at all times from complications. Her life expectancy was shorter if the first plan was to be followed.

Evidence on appeal included the evidence of a neurologist who opined that if the second treatment plan was followed, it was possible for Mrs. Grover to experience some physical or mental improvement if she could avoid complications; however, his view was that there had been no improvement at the time of the hearing.

The Appellant’s view was that the second plan, to extend the life of her mother, should be carried into effect, but the view of her siblings was that Mrs. Grover would not wish her life prolonged in the circumstances following her third stroke. Dr. Butler’s recommendation was palliative care only. Dr. Butler met with the Appellant twice more but her view did not change. Dr. Butler was concerned that the Appellant’s decision was based on what she wanted for her mother rather than what her mother would want for herself in the circumstances. Dr. Butler’s view was that Ms. Grover, as the substitute decision maker for Mrs. Grover, was not acting in her best interest and made an application to the Board, under s. 37(1) for a determination that Ms. Grover, in refusing the first plan, failed to comply with s. 21 of the Health Care Consent Act.

The evidence presented before the Board was that 16 days before Mrs. Grover suffered a brain stem stroke, she expressed the wish that in the event she became “seriously ill with a life threatening condition” the level of care should include “everything possible to cure my illness and prolong my life including heroic measures”. The issue of law and fact before the Board was whether this wish was “applicable to the circumstance” and if it was not, what were Mrs. Grover’s “best interests” as between the two treatment plans described by Dr. Butler. The Board concluded that Mrs. Grover’s wish was not applicable to the circumstances and that the first treatment plan was in her best interests. The Appellant appealed this decision.

The Appellant’s first submission before the Court of Appeal was that the Board’s reasons were so inadequate as to prevent the Court from reviewing properly the correctness of its decision.

The Court concluded that although little time was spent by the Board on the prior capable wish made by Mrs. Grover, the Court concluded that it was not prevented from a meaningful review of the correctness of the Board’s decision. The Court noted that the important issue in dispute was whether the level of care Mrs. Grover wished applied to her circumstances after her third stroke. The Court concluded that on a fair reading of the reasons, the Board found the wish did not apply because when it was made, Mrs. Grover did not take into account the nature and extent of the medical result to her from an event as devastating as her third stroke turned out to be. On the basis of this statement, the Court concluded that it was able to undertake a meaningful review of the correctness of the decision.

The second ground of appeal was that the Board failed to take into account and fully consider Mrs. Grover’s wish for full resuscitation and heroic measure at the time when she was capable. The Appellant argued that the Board was required to call the physician who interviewed Mrs. Grover when this wish was expressed to explain the circumstances of the interview, to review the transfer documentation that travelled with Mrs. Grover from the nursing home to the hospital, and to hear the evidence of other treating physicians. The Appellant argued that since none of this was done, the Board’s failure to inquire into readily available evidence was unreasonable and that, in the result, its decision, in law, was in error.

The Court disagreed noting that Ms. Grover was represented by counsel and could have called these witnesses. In the Court’s view, it was not for the Board to intervene at any point for the purposes of securing this evidence on its own. In any event, the Court concluded that the Board had in mind, through the other medical witnesses and Ms. Grover, Mrs. Grover’s wish for prolongation of her life by heroic measures including resuscitation. Ultimately, the Court concluded that the record on the prior wish included sufficient and relevant evidence and that it was taken into account by the Board.

The third ground of appeal was that the Board failed to find a lack of capacity in Mrs. Grover with respect to the second treatment plan. The Court concluded that this was clearly an oversight, but in any event, there was a clear finding of a lack of capacity which had to apply to both treatment plans. Indeed, in argument, Mrs. Grover’s general lack of capacity to treatment was conceded by the Appellant.

Thus, the Board’s decision that Mrs. Grover’s prior capable wish was not applicable to the circumstances was reasonable both in fact and in law and the Court concluded that the decision would stand.

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