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No Bias in Consent and Capacity Board Decision
Published in the December 2008 issue of Litigation Notes - View Article
Synopsis: Ontario Superior Court of Justice dismisses an appeal from the Consent and Capacity Board’s decision with respect to treatment incapacity and finds that the Board properly exercised its discretion in curtailing cross-examination
The Ontario Superior Court of Justice recently considered an appeal from a decision of the Ontario Consent and Capacity Board (“CCB” , which confirmed a finding that a patient in a psychiatric facility was incapable of consenting to treatment with psychiatric medications. Lewis Markowitz is an individual who suffers from Huntingtons’ Chorea and a psychotic disorder and dementia secondary to that diagnosis. The manifestations of his illness are cognitive deficits, physical and verbal aggression, irritability and paranoid ideation. Mr. Markowitz was found not criminally responsible on account of mental disorder with respect to criminal charges of assault and failure to comply and was ordered by the Ontario Review Board to be transferred to the Centre for Addiction and Mental Health (CAMH).
When Mr. Markowitz arrived at CAMH he was assessed by a psychiatrist who found that he had no awareness of his diagnosis or the need for treatment, that he was “marginally competent to make decisions regarding his treatment” and that it was highly likely that in the near future he would be no longer capable of making decisions. He was subsequently assessed by another psychiatrist who found him incapable of making treatment decisions.
Subsequently Dr. Rootenberg became his attending physician and he testified that he tried to meet with Mr. Markowitz on several occasions and to discuss proposed medications and their side effects. He described Mr. Markowitz as “steadfast that he does not have any mental illness or in fact, medical illness that needs treatment of any kind” and that Mr. Markowitz was dismissive with him when he tried to discuss the proposed treatment and either curtailed the conversation or terminated the interview.
Mr. Markowitz applied to the CCB for a review of the finding of incapacity. When the finding of incapacity was upheld, Mr. Markowitz appealed to the Ontario Superior Court of Justice. It was alleged: 1. that the CCB misapprehended the test for capacity in Section 4 of the Health Care Consent Act, 1996; 2. that the CCB erred in failing to consider whether changes had occurred between the time of Mr. Markowitz’s admission and the finding of incapacity; 3. that the finding of incapacity was based primarily on the fact that the Appellant would not consent to treatment; and 4. that the CCB demonstrated a reasonable apprehension of bias by not allowing a full cross-examination of the doctor.
The Court considered the test for capacity as described in the case of Starson in the Supreme Court of Canada and found that the CCB had applied the proper test. Section 4 of the Health Care Consent Act, 1996 contains a two part test. For a person to be capable, he or she must firstly be able to understand the information that is relevant to making a decision about the treatment and secondly must be able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Dr. Rootenberg was of the opinion that the Appellant failed both parts of the test. The CCB considered that the doctor had not met the onus of establishing that Mr. Markowitz failed the first part of the test, but found that because of his inability to accept that he suffers from a mental disorder, he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision. The Court found that the CCB had properly analyzed the evidence and had applied the right test.
With respect to the second point, the Appellant had relied on the case of Boimier v. Swaminath, in which the Court referred to a lack of evidence concerning the patient’s condition during the month prior to a finding of incapacity and concluded that Dr. Swaminath had declared Mr. Boimier incapable primarily because he refused to take antipsychotic medications, rather than by reason of any actual change in his condition. In this case, however, the Court referred to the finding by the first psychiatrist who examined Mr. Markowitz and concluded that his condition was likely to deteriorate and that he would be found incapable. Dr. Rootenberg described the Appellant’s condition as a deteriorating one with poor prognosis and that without treatment the psychiatric manifestations would worsen. Consequently the Court concluded that it was not unreasonable for the CCB to have found that the patient’s condition had in fact deteriorated between the initial assessment and the ultimate finding of incapacity.
On the question of whether the incapacity was based on a refusal to accept treatment, the Court agreed that a refusal to accept treatment cannot be equated with incapacity and that considerations of what may or may not be in the best interests of the patient are not relevant to a finding of incapacity. However, in this case, the Court was satisfied that the CCB had applied the right criteria and reached the right conclusion as to the reasons for the Appellant’s incapacity.
With respect to the reasonable apprehension of bias point, the Court referred to section 10.1 of the Statutory Powers and Procedures Act which permits cross- examination of witnesses “reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceedings”. In this case, Dr. Rootenberg had been cross-examined with respect to the length and frequency of his interviews with Mr. Markowitz. This cross-examination apparently went on for eight pages of transcript and was then curtailed by the CCB. The Court found that cross-examination is permitted to the extent that it is “reasonably required for a full and fair disclosure of all matters relevant to the issues”. However the CCB was entitled to terminate cross-examination which was repetitious or irrelevant. In this case, the Court concluded that the CCB had properly exercised its discretion in this regard.
Markowitz v. Rootenberg, 2008 CanLII 65589