TREATMENT PENDING INCAPACITY APPEALS

Section 18 of the Health Care Consent Act, 1996 ("HCCA") provides that where a patient appeals a finding of incapacity, either to the Consent and Capacity Board ("CCB"), or following a CCB decision to a court, treatment "must not begin" until the appeal is finally disposed of. Earlier this year, the Ontario Superior Court considered the interpretation of this section in S.D. v. Barron, [2008] O.J. No. 2945 (S.C.J.).

The appellant patient had been found incapable in 1998 and had challenged that finding, unsuccessfully, all the way to the Supreme Court of Canada. Following the dismissal of the appeals, treatment was commenced pursuant to substitute consent. The patient subsequently applied for a further review of the finding of incapacity, as allowed by s. 32(5) of the HCCA, arguing that section 18 prohibited his ongoing treatment while his review application was outstanding.

The Court disagreed with the appellant, finding that section 18 applies only during the period in which the original finding of incapacity is under review, but once that appeal process is concluded, it does not apply to any later statutory reviews of that original finding. Once the appeal process is concluded and has confirmed the finding of incapacity, treatment may begin with substitute consent. This decision clarifies that the ongoing treatment authorized by substitute consent is not subject to suspension, should the incapable patient choose to exercise his or her statutory right to pursue a further review of the finding of incapacity.

RESTRAINT TO FACILITATE TREATMENT IS "TREATMENT" TO WHICH SUBSTITUTE MAY CONSENT

In S.M.T. v. Abouelnasr, [2008] O.J. No. 1298 (S.C.J.), the Superior Court considered for the first time whether restraint is "treatment" under the HCCA. The appellant S.M.T. had been previously found incapable with respect to treatment and was admitted as an informal inpatient at a psychiatric facility. Following deterioration in his condition, his status changed to involuntary. The patient applied to the CCB for a review of his involuntary admission and when the CCB confirmed the admission, the patient appealed that decision. On the appeal, the patient challenged the constitutionality of the use of restraints for the purpose of treating incapable persons.

The Court held that the scheme set out in the HCCA for the administration of treatment to incapable persons under substitute consent provides procedural safeguards sufficient to protect the rights of incapable patients, as guaranteed by Canadian Charter of Rights and Freedoms. In particular, the Court held that the definition of "treatment" in the Act, which includes "anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose", includes by implication the use of restraints, if necessary to administer treatment safely to incapable persons, and provided that his or her substitute decision maker has consented to treatment.

CONDITIONAL DISCHARGES FOR FORENSIC PATIENTS UNDER ORB JURISDICTION

In R. v. Coles, [2007] O.J. No. 4564 (C.A.), the patient appealed an Ontario Review Board (ORB) disposition that provided for community living under a detention order, arguing that the ORB had erred in failing to consider whether the appellant could be conditionally discharged subject to a condition that she continue the medication regime that she had recently commenced.

The Court affirmed that where a not criminally responsible ("NCR") accused seeks a conditional discharge from a forensic psychiatric facility, the ORB should consider whether the NCR accused might consent to any treatment conditions thought by the Board to be reasonable and necessary in the interests of the accused, as set out in s. 672.55(1) of the Criminal Code. However, the Court found that failing to make that inquiry was not fatal to the ORB’s disposition in this case, since it was not germane to the appellant’s circumstances, given that she had been found incapable of consenting to treatment and was undergoing treatment pursuant to substitute consent. In that circumstance, such a condition would serve no useful purpose. The Court upheld the ORB’s disposition as it was reasonably supported by the evidence before it at the time of the hearing.

The ORB’s obligation to consider whether a discharge subject to conditions is the least onerous and least restrictive disposition was also before the Court of Appeal in R. v. Runnals, [2008] O.J. NO. 463 (C.A.). The appellant patient had argued that the ORB has a duty to consider a conditional discharge even where no party to the hearing advances this as an option. The ORB had not explicitly addressed the potential availability of a conditional discharge in its reasons, and failed to inquire into whether the appellant would consent to conditions requiring him to take his medications and abstain from alcohol and illicit substances. The Court held that following the decision of the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute) (1999), 135 C.C.C. (3d) 129, "the Board is required to specifically inquire into the availability and propriety of a conditional discharge", and that the Board’s failure to do so in this case was an error of law. The appeal was therefore allowed and the matter was referred back to the Board for a new hearing.

The Coles and Runnals decisions affirm the ORB’s duty to consider the least onerous and least restrictive disposition for the accused, and to not merely choose between recommended dispositions advanced by the parties to the hearing.

The Court of Appeal recently considered whether the ORB may issue a conditional discharge that provides the Hospital with ongoing authority to remain involved in approving the accused’s accommodation in the community. In R. v. Capano, [2008] O.J. No. 1712 (C.A.), the accused appealed the ORB’s disposition directing him to be detained at the minimum secure unit of a forensic psychiatric facility, subject to a condition, among others, that the accused could live in the community at the discretion of the person in charge of the Hospital in accommodation approved by the Hospital.

The self-represented appellant argued that he should have been absolutely discharged. The amicus curiae appointed to represent the accused’s interests argued that the Board had erred in law by declining to conditionally discharge the appellant with a term that would allow the appellant’s treatment team to remain involved in any decision as to where the accused could safely reside.

The Court of Appeal held that in order "to ensure the continued authority of the Hospital to alter the appellant’s community living arrangements or to compel his return to the Hospital – should either option become necessary due to deterioration in the appellant’s condition – a detention disposition was required." This decision affirms the appropriateness of a detention order where the evidence supports the Hospital retaining authority to approve the accused’s living arrangements in the community, consistent with an earlier Court of Appeal decision on the same point: Brockville Psychiatric Hospital v. McGillis, [1996] O.J. No. 3430 (C.A.)

All of the decisions discussed in this Bulletin may be accessed free of charge at: www.canlii.org.