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Court of Appeal Says CCB Acted Reasonably
Published in the January 2008 issue of Litigation Notes - View Article
Synopsis: Court of Appeal upholds decision of Consent and Capacity Board on treatment incapacity and financial incapacity
Daniela Giecewicz was admitted to Oakville Trafalgar Hospital, after her lawyer alerted police to his concerns about her living conditions. Ms. Giecewicz was 77 years old and a widow. She was living in a nice house which she and her husband had purchased many years earlier, but which had fallen into substantial disrepair. The basement was flooded, there was no hydro and part of the ceiling in the bedroom had collapsed. Ms. Giecewicz had been living without heat for about three years and was using a pot as a urinal.
Ms. Giecewicz was given a psychiatric assessment and it was concluded that she should be admitted as an involuntary patient, because she would be subject to serious physical impairment if she were released back to her home. It was also found that she was incapable of making her own decisions with respect to treatment with antipsychotic and side-effect medications pursuant to the Health Care Consent Act and that she was not capable of managing her property within the meaning of the Mental Health Act. She appealed all three findings to the Consent and Capacity Board, where they were upheld. She then appealed the orders declaring her incapable of making treatment decisions and of managing her property to the Ontario Court of Appeal. She did not appeal her involuntary status and remained as an involuntary patient.
The appeal was based on the fact that the Consent and Capacity Board had allegedly not applied the correct legal test to the determination of capacity and that its decision was not reasonable in the circumstances. On the first point, Doherty, J. A., quoted the case of Starson v. Swayze where Justice Major of the Supreme Court of Canada explained the test for capacity found in s. 4(1) of the Health Care Consent Act:
“Capacity involves two criteria. 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. … Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision of 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.”
Justice Doherty then went on to review the Board’s Reasons and concluded that they had applied the right legal test. The doctor had testified and the Board had accepted that the Applicant could understand the information that is relevant to making a decision about treatment. However the Board found that she did not apply it to herself. She denied her delusional disorder. She said she did not need treatment and did not appreciate the benefits of taking medication or the risks of not taking it.
On the second ground of appeal Justice Doherty reviewed the evidence adduced before the Board. The Appellant had been involved for many years in legal proceedings against her neighbours and the city. She had spent a great deal of money on these proceedings and had been “singularly unsuccessful”. Her attending physician, Dr. Hastings, was of the opinion that the Appellant suffered from a disorder involving persecutory delusions and that the dispute with her neighbours had developed into an obsession which affected all aspects of her life. Justice Doherty referred to the three “common clinical indicators” of a person’s ability to appreciate the consequences of accepting or declining treatment, as described by Chief Justice McLachlin in the Starson case: 1) whether the person is able to acknowledge the fact that the condition for which the treatment is recommended may affect him or her; 2) whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life; and 3) whether the person’s choice is not substantially based on a delusional belief. He went on to say that Dr. Hastings’ evidence revealed two of the three indicators. Dr. Hastings had stated that the appellant was unable to acknowledge the fact that the condition for which he recommended treatment may affect her (the first indicator) and that her choice to refuse treatment was substantially based on her delusional belief system (the third indicator). Dr. Hastings’ evidence had been virtually unchallenged at the Board hearing and the Court of Appeal therefore concluded that the Board was acting reasonably in accepting his opinion.
The Appellant also argued that the Board’s decisions were unreasonable because there was no evidence that Dr. Hastings had explained the risks and benefits of the proposed treatment to the Appellant and no evidence had beenprovided at the hearing as to the effectiveness of the proposed treatment or the potential adverse side-effects. The Court of Appeal found that Dr. Hastings had in fact testified that he spoke to the Appellant about possible adverse side-effects but that she could not apply the information to her own situation because she did not accept that she suffered from a mental disorder. This was therefore not a case where it could be suggested that the Appellant’s lack of appreciation of the risks and benefits reflected the “physician’s failure to adequately inform the patient of the decision’s consequences” as was the case in Starson.
The Court also dismissed the Appellant’s argument that Dr. Hastings’ testimony at the Board did not describe the nature of the benefits of the proposed treatment or the specific potential adverse side-effects. The Court said that it was not necessary for the Board to have this information to make the decisions it was required to make. Justice Doherty stated: “It is not the Board’s task to weigh the risks and benefits of the proposed treatment or to make any determination as to the advisability of the treatment from a medical standpoint. The issue before the Board was the Appellant’s capacity to make the relevant decisions.”
Giecewicz v. Hastings [2007] ONCA 890 (CanLII)