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Superior Court Considers Form “G”

Published in the October 2006 issue of Litigation Notes - View Article

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In a decision released in October, the Ontario Superior Court of Justice considered whether or not substitute decision makers had complied with the principles for substitute decision making as prescribed by the Health Care Consent Act of Ontario.

Mrs. Eva Bourgoin was a patient at the Brantwood Lifecare Centre in Burlington Ontario and was incapable of making her own treatment decisions. Her attending physician was Dr. Brian Taylor, Medical Director of Brantwood. Mrs. Bourgoin’s substitute decision makers (“SDMs”) were her daughter, Mrs. Marsden and Mrs. Marsden’s husband. In the summer of 2005, Mrs. Bourgoin experienced heart problems and Dr. Taylor wished to treat her with Aspirin and Plavax. The Marsdens refused. Dr. Taylor made an application to the Consent and Capacity Board, commonly known as a “Form G” application. Such applications are made pursuant to section 37 of the Health Care Consent Act, (“HCCA”), which permits a health practitioner to apply to the Consent and Capacity Board in circumstances where he or she believes that the SDMs are not complying with section 21 of the HCCA. Section 21 provides that in giving or refusing consent to a treatment, the SDMs must take into account any prior capable wishes made by the patient and if there are no such prior capable wishes, must act in the patient’s best interests.

The Consent and Capacity Board considered that the SDMs were not acting in Mrs. Bourgoin’s best interests by refusing the administration of Aspirin and Plavax and ordered them to comply. They refused to do so, which, pursuant to S. 37 of the HCCA, results in their being replaced by another SDM. In this case there was not another family member capable of acting as SDM and the responsibility fell to the Public Guardian and Trustee (“PGT”). The PGT authorized treatment with Aspirin and Plavax.

Subsequently, Dr. Taylor concluded that Mrs. Bourgoin suffered from high blood-pressure and wanted to treat her with the hypertension medication, Norvasc. Dr. Taylor sought the consent of the PGT with respect to the administration of Norvasc, but was informed that its authority related only to the administration of Aspirin and Plavax and that the Marsdens remained SDMs with respect to all other treatments. Dr. Taylor therefore asked Mr. and Mrs. Marsden for their consent to the administration of Norvasc and they again refused. Dr. Taylor again applied to the Consent and Capacity Board.

The Marsdens, who represented themselves, sought to bring a number of preliminary motions. One related to whether or not Dr. Taylor was in fact the attending physician for Mrs. Bourgoin. and the Board concluded that he was, as the Marsdens had not taken the appropriate steps to have him replaced. Another related to the standing of counsel appointed by the PGT to represent Mrs. Bourgoin and the Board concluded that the counsel had standing. The Board concluded that the Marsdens had not complied with Section 21 of the HCCA, in that they had led no evidence to establish that Mrs. Bourgoin did not suffer from hypertension or that Norvasc was not an appropriate medication. They took the position that Mrs. Bourgoin had expressed a prior capable wish in the sense that she had stipulated that Mr. and Mrs. Marsden should be her SDMs. They took the position that this gave them the right to do anything that a capable person would have the right to do. Since a capable person can refuse a medication even if it is in the patient’s best interest to take it, so can an SDM refuse treatment against medical advice. This was rejected by the Board, which ordered the Marsdens to authorize treatment with any hypertension medication recommended by Dr. Taylor.

The Marsdens appealed to the Superior Court of Justice. The Superior Court also had preliminary issues to consider. The Marsdens sought to introduce fresh evidence which related to healthcare issues which had arisen after the hearing before the Board. The Court considered that the test to the introduction of fresh evidence had not been met and this request was refused. In addition, before the matter could be heard by the Court Mrs. Bourgoin passed away. Although this might have made the appeal moot, all parties felt that there were issues of sufficient importance that they should be heard by the Court and the Court agreed.

The Court considered the standard of review of tribunal decisions and concluded that the standard was reasonableness. The Court concluded that the Board’s decision had been reasonable in concluding that Dr. Taylor was Mrs. Bourgoin’s attending physician and in concluding that Mr. and Mrs. Marsden had not been acting in Mrs. Bourgoin’s best interests in refusing the administration of hypertension medications. However, Dr. Taylor’s Form G application had specifically referred to Norvasc as the treatment that he wanted to administer, whereas at the hearing, a request was made for authority to administer hypertension medication generally and this is what the Board authorized. The situation was somewhat complicated by the fact that Mr. and Mrs. Marsden had walked out of the hearing and were not there to hear or rebut this amended request. Because the Marsdens had not had notice of Dr. Taylor’s intention to treat Mrs. Bourgoin with anything other than Norvasc, the Court concluded that it would have substituted the Board’s decision with a decision ordering the Marsdens to consent to treatment with Norvasc alone.