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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
2018 CarswellOnt 22836 Ontario Consent & Capacity Board
CV, Re
2018 CarswellOnt 22836
IN THE MATTER OF the Mental Health Act R.S.O. 1990, chapter M.7
as amended
IN THE MATTER OF the Health Care Consent Act S.O. 1996, chapter
2, schedule A, as amended
IN THE MATTER OF CV A resident of MISSISSAUGA, ONTARIO
Elizabeth Harvie Presiding Member, Anita Johnston Member, Andrew
Skrypniak Member
Heard: September 10, 2018 Judgment: September 11, 2018
Docket: 18-2025-01, 18-2025-02
Counsel: Ms Deborah Corcoran, for CV
Dr. David Kantor, for himself
Subject: Public
Related Abridgment Classifications
Health law
VI Consent and capacity
VI.4 Capacity
VI.4.a To consent to treatment
Health law
VI Consent and capacity
VI.5 Community treatment order
VI.5.a Plan of treatment
Headnote
Health law --- Consent and capacity — Capacity — To consent to
treatment
Health law --- Consent and capacity — Community treatment order
— Plan of treatment
Table of Authorities
Cases considered by Elizabeth Harvie Presiding Member:
Starson v. Swayze (2003), 2003 SCC 32, 2003 CarswellOnt 2079,
2003 CarswellOnt 2080, 225 D.L.R. (4th) 385,
1 Admin. L.R. (4th) 1, 304 N.R. 326, [2003] 1 S.C.R. 722, 173
O.A.C. 210, 2003 CSC 32 (S.C.C.) — followed
Statutes considered:
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A
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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
Generally — referred to
s. 4(1) — considered
s. 4(2) — referred to
Mental Health Act, R.S.O. 1990, c. M.7
Generally — referred to
s. 1(1) “mental disorder” — referred to
s. 15(1) — referred to
s. 15(1.1) [en. 2000, c. 9, s. 3(2)] — referred to
s. 33.1(1) [en. 2000, c. 9, s. 15] — referred to
s. 33.1(2) [en. 2000, c. 9, s. 15] — referred to
s. 33.1(3) [en. 2000, c. 9, s. 15] — referred to
s. 33.1(4) [en. 2000, c. 9, s. 15] — referred to
s. 33.1(4)(a)(ii) [en. 2000, c. 9, s. 15] — referred to
s. 33.1(4)(b) [en. 2000, c. 9, s. 15] — referred to
s. 33.1(4)(c) [en. 2000, c. 9, s. 15] — considered
s. 33.1(4)(d) [en. 2000, c. 9, s. 15] — referred to
s. 33.1(4)(e) [en. 2000, c. 9, s. 15] — referred to
s. 39.1(6) [en. 2000, c. 9, s. 22] — referred to
Regulations considered:
Mental Health Act, R.S.O. 1990, c. M.7
General, R.R.O. 1990, Reg. 741
Form 1 — referred to
Form 3 — referred to
Form 45 — referred to
Elizabeth Harvie Presiding Member:
PURPOSE OF THE HEARING
1 CV was subject to a Community Treatment Order (”CTO”). His
physician who renewed the CTO had found him
incapable of consenting to treatment with two classes of
medications and a Community Treatment Plan (”CTP”). The
Consent & Capacity Board (the “Board”) convened at CV’s
request to review the finding of incapacity.
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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
DATES OF THE HEARING, DECISIONS AND REASONS
2 The hearing took place on September 10, 2018. The Decisions
were released the next day, on September 11,
2018. Counsel for CV requested written Reasons for Decisions
(”Reasons”) on September 12, 2018. The Reasons
(contained in this document) were released on September 18,
2018.
LEGISLATION CONSIDERED
3 The Health Care Consent Act (”HCCA”), including section 4
4 The Mental Health Act (”MHA”), including sections 1, 15(1),
15(1.1), 33.1, and 39.1
PARTIES & APPEARANCES
5 CV, the applicant, was represented by counsel, Ms. Deborah
Corcoran.
6 Dr. David Kantor, attending physician and health care
practitioner, represented himself.
7 Both parties attended the hearing.
PANEL MEMBERS
8 Ms. Elizabeth Harvie, lawyer and presiding member
9 Dr. Anita Johnston, psychiatrist member
10 Mr. Andrew Skrypniak, public member
PRELIMINARY MATTERS
Adding Application to Review CTO
11 The panel noted that CV had only applied to the Board to
review the finding that he was incapable of consenting
to treatment yet Dr. Kantor’s documentary materials indicated,
incorrectly, that CV was also contesting the validity
of the CTO. At Ms. Corcoran’s request and with Dr. Kantor’s
consent, the panel decided to also review whether the
CTO had been issued in accordance with the criteria set out in
section 33.1(4) of the MHA. Hence the hearing and
these Reasons for Decisions reviewed the finding of incapacity
and the renewal of the CTO. The panel subsequently
notified the Board of this change and a second file number was
assigned for the CTO review.
Grounds for Renewal of CTO
12 Dr. Kantor advised the panel that the grounds (under
subsection 33.1(4)(c)(iii) of the MHA) on which he was
relying for renewing the CTO were that CV was likely, because of
mental disorder, to cause serious bodily harm to
himself or to suffer substantial mental deterioration unless he
received continuing treatment or care and continuing
supervision while living in the community.
Incapacity to Consent to Treatment
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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
13 Dr. Kantor advised the panel that the finding of incapacity
to consent to treatment related to treatment with anti-
psychotic and mood stabilizing medications, and with a CTP.
THE EVIDENCE
14 The evidence at the hearing consisted of the oral testimony
of Dr. Kantor, MV, and CV and the following ten
Exhibits:
1) Letter to Consent and Capacity Board from Dr. Kantor, dated
September 7, 2018;
2) Consent and Capacity Board Summary (”Summary”), prepared by
Galina Semikhnenko, dated August 16,
2018;
3) Community Treatment Plan, signed by Dr. Kantor, dated April
23, 2018, and a letter from the Office of the
Public Guardian and Trustee, dated May 16, 2018;
4) Package of forms under the MHA including Forms 49, 50, 45,
48, dated various dates between April 23 and
May 17, 2018;
5) Discharge Summary Report from Trillium Health Partners Credit
Valley Hospital prepared by Dr. Domenic
Dimanno, dated January 8, 2014;
6) Progress Notes by Jessie-Lee Armstrong, various dates in 2015
(2 pages);
7) Psychiatric Progress Notes by Dr. Kantor, Jessie-Lee
Armstrong and Eda Pallotta, various dates in 2016, (12
pages);
8) Psychiatric Progress Notes by Dr. Kantor, various dates in
2017 (3 pages);
9) Psychiatric Progress Notes by Dr. Kantor, various dates in
2018 (9 pages); and,
10) Letter from employer, dated August 22, 2018.
15 The panel added hand-written page numbers to the lower left
corner of each page of Exhibits 6 through 9.
INTRODUCTION
16 CV was a 30 year old single man with no dependents. At the
time of the hearing he was in regular contact with
his parents and his sister. He lived alone in an apartment in
Mississauga and received mental health and other services
from Supportive Housing in Peel — Assertive Community Treatment
(”SHIP ACT”). CV was supported by the
Ontario Disability Support Program and he supplemented that
income with several hours of work every week at a
large retail establishment. CV had a diagnosis of
schizoaffective disorder and had experienced seven psychiatric
hospitalizations. He had been continuously found to be incapable
of making treatment decisions since a 2011 hospital
admission. CV’s mother had been his substitute decision maker
(”SDM”) for treatment decisions but in July 2016 that
role was assumed by the Office of the Public Guardian and
Trustee. CV had been on CTOs since November 1, 2016.
THE LAW
17 On any review of a CTO under the MHA and on any review of
incapacity to consent to treatment under the
HCCA, the onus of proof at a Board hearing is always on the
attending physician to prove the case. The standard of
proof is proof on a balance of probabilities. The Board must be
satisfied on the basis of cogent and compelling evidence
that the physician’s onus has been discharged. There is no onus
whatsoever on the applicant. The Board must consider
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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
all evidence properly before it. Hearsay evidence may be
accepted and considered, but it must be carefully weighed.
Community Treatment Orders
18 The criteria for issuing a CTO are set out in section 33.1 of
the MHA as follows:
(1) Community Treatment Order - A physician may issue or renew a
community treatment order with
respect to a person for a purpose described in subsection (3) if
the criteria set out in subsection (4) are met.
(2) Same - The community treatment order must be in the
prescribed form.
(3) Purposes - The purpose of a community treatment order is to
provide a person who suffers from a serious
mental disorder with a comprehensive plan of community-based
treatment or care and supervision that is
less restrictive than being detained in a psychiatric facility.
Without limiting the generality of the foregoing,
a purpose is to provide such a plan for a person who, as a
result of his or her serious mental disorder,
experiences this pattern: The person is admitted to a
psychiatric facility where his or her condition is usually
stabilized; after being released from the facility, the person
often stops the treatment or care and
supervision; the person’s condition changes and, as a result,
the person must be re-admitted to a psychiatric
facility.
(4) Criteria for order - A physician may issue or renew a
community treatment order under this section if,
(a) during the previous three-year period, the person,
(i) has been a patient in a psychiatric facility on two or more
separate occasions or for a
cumulative period of 30 days or more during that three-year
period, or
(ii) has been the subject of a previous community treatment
order under this section;
(b) the person or his or her substitute decision-maker, the
physician who is considering issuing or
renewing the community treatment order and any other health
practitioner or person involved in the
person’s treatment or care and supervision have developed a
community treatment plan for the person;
(c) within the 72-hour period before entering into the community
treatment plan, the physician has
examined the person and is of the opinion, based on the
examination and any other relevant facts
communicated to the physician, that,
(i) the person is suffering from mental disorder such that he or
she needs continuing treatment or
care and continuing supervision while living in the
community,
(ii) the person meets the criteria for the completion of an
application for psychiatric assessment
under subsection 15 (1) or (1.1) where the person is not
currently a patient in a psychiatric facility,
(iii) if the person does not receive continuing treatment or
care and continuing supervision while
living in the community, he or she is likely, because of mental
disorder, to cause serious bodily
harm to himself or herself or to another person or to suffer
substantial mental or physical
deterioration of the person or serious physical impairment of
the person,
(iv) the person is able to comply with the community treatment
plan contained in the community
treatment order, and
(v) the treatment or care and supervision required under the
terms of the community treatment
order are available in the community;
(d) the physician has consulted with the health practitioners or
other persons proposed to be named in
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CV, Re, 2018 CarswellOnt 22836
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the community treatment plan;
(e) subject to subsection (5), the physician is satisfied that
the person subject to the order and his or
her substitute decision-maker, if any, have consulted with a
rights adviser and have been advised of
their legal rights; and
(f) the person or his or her substitute decision-maker consents
to the community treatment plan in
accordance with the rules for consent under the Health Care
Consent Act, 1996.
19 The onus is on the attending physician to prove, on a balance
of probabilities, that all of the criteria for issuing
or renewing a CTO are met, and that they continue to be met at
the time of the Board’s hearing (s. 39.1(6) of the
MHA). If this onus is discharged, the Board may make an Order
confirming the issuance or renewal of the CTO. If
the onus is not discharged, the Board is required by law to
rescind the CTO.
Capacity to Consent to Treatment
20 Under the HCCA, a person is presumed to be capable to consent
to treatment (s. 4(2)) and the onus to establish
otherwise lies with the health practitioner. The test for
capacity to consent to treatment is set forth in section 4(1)
of
the HCCA, which states:
A person is capable with respect to a treatment, admission to a
care facility or a personal assistance service if
the person is able to understand the information that is
relevant to making a decision about the treatment,
admission or personal assistance service, as the case may be,
and able to appreciate the reasonably foreseeable
consequences of a decision or lack of decision.
21 In the seminal case of Starson v. Swayze, [2003] 1 S.C.R. 722
(S.C.C.), the Supreme Court of Canada reviewed
the law of capacity to consent to treatment. The Court noted
that the right to make one’s own treatment decisions is a
fundamental one that can only be displaced where it is
established that a person lacks mental capacity to do so. The
person’s “best interests” are not a consideration in determining
the question of capacity to consent to (or refuse)
treatment. Capable people have the right to take risks, to make
decisions which others consider unwise, and to make
mistakes. The presence of mental disorder should never be
equated with a lack of capacity.
ANALYSIS
22 After carefully considering the evidence, the submissions of
the parties, and the law, the panel unanimously
determined that the statutory criteria for renewing the CTO were
met in this case and therefore confirmed CV’s CTO.
The panel also unanimously determined that CV was not capable of
making treatment decisions, and confirmed the
finding of incapacity. Reasons for these Decisions are set out
below.
CTO
23 Many criteria of the CTO were proven by the documentary
evidence provided by Dr. Kantor and were not
contested. The panel found that CV had been the subject of a
previous CTO (33.1(4)(a)(ii)) (Exhibit 2, p. 2); that CV’s
SDM, and the health practitioners involved in the CTP had
developed a CTP for CV (33.1(4)(b)) (Exhibit 3, pp. 2-3);
that Dr. Kantor had consulted with the health practitioners who
were named in the CTP (33.1(4)(d)) (Exhibit 2, p. 2,
Exhibit 3, p. 2); that rights advice was provided both to CV and
the Public Guardian and Trustee who was the SDM
(33.1(4)(e)) (Exhibit 4, pp. 4-7); and that the SDM had
consented to the CTP (33.1(4)(f)) (Exhibit 3, pp. 2 and 4).
Section 33.1(4)(c) requires that the person being considered for
a CTP be examined by the physician within the 72-
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CV, Re, 2018 CarswellOnt 22836
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hour period before entering into the CTP. In this case, the Form
45 indicated that CV was examined by Dr. Kantor on
April 23, 2018 (Exhibit 4, p. 7). Also on April 23, 2018,
everyone named in the CTP signed the plan and agreed to
their obligations (Exhibit 3, p. 2). Accordingly, the panel held
that the evidence established that this criterion had been
satisfied. Based on their examination and any other relevant
facts communicated to them, the physician may issue a
CTO if certain criteria in section 33.1(4)(c) are satisfied.
Those criteria are discussed below.
Was CV suffering from mental disorder such that he needs
continuing treatment or care and continuing
supervision while living in the community?
24 The MHA defines “mental disorder” broadly as “any disease or
disability of the mind.” Dr. Kantor’s evidence
was that CV had schizoaffective disorder. (Exhibit 1, p.1) In
2014, Dr. Dimanno who had been CV’s attending
physician during a two month psychiatric hospitalization at
Credit Valley Hospital (”CVH”) noted on the discharge
summary he prepared that CV had been diagnosed with
schizoaffective disorder, bipolar type. (Exhibit 5, p. 6)
25 Dr. Kantor testified that he had been CV’s psychiatrist since
2016 and while he had never seen CV when he
was extremely unwell, he described CV as having a “fixed
delusional system” that was still intact on the day of the
hearing and still affecting his daily functioning. The delusions
were primarily that CV’s father had tormented CV by
planting listening and watching devices in his room at home and
later in CV’s apartment. Dr. Kantor’s evidence was
that CV believed his father’s spying was abuse and that it had
ruined his life and that these delusions had, in the past,
crippled CV and made him unable to function. Dr. Kantor
testified that Dr. Dimanno’s 2014 discharge summary
indicated that CV had also suffered from delusions that people
were gathering outside his house, following him, and
were speaking to him when he was at home alone in his bedroom.
(Exhibit 5, p. 1) At the time of the hearing, Dr.
Kantor stated that CV was stable and “doing quite well” but when
CV was unwell, he experienced paranoid delusions,
suicidal thoughts and gestures, auditory hallucinations, and
characteristic symptoms of hypomania/mania which
included racing thoughts, pressured speech and grandiose
ideation. (Exhibit 1, p. 1) Dr. Kantor testified that when CV
was on his medications, it was possible for him to put the
paranoid delusions behind him and to lead a normal life.
26 Dr. Kantor’s evidence was that CV’s mental disorder had
resulted in at least seven hospitalizations between
2010 and 2016. (Exhibit 1, p.1) The discharge summary prepared
by Dr. Dimanno in January 2014 (Exhibit 5) set out
the history of CV’s illness, hospitalizations and treatments up
to that point. In 2010, CV was twice hospitalized at
CVH with diagnoses of primary psychotic illness. He was treated
with anti-psychotic medication and was discharged,
in both instances, within a week. (Exhibit 5, p. 5) In early
August 2011, CV arrived at CVH in a paranoid state but
declined voluntary admission and was discharged home. Several
days later he called the police after trying to kill
himself, and the police brought him to CVH. Dr. Dimanno learned
from CV’s outpatient psychiatrist, Dr. Packer that
CV was being treated for schizophrenia at Humber River Regional
Hospital and had been prescribed anti-psychotic
medications. (Exhibit 5, p. 2) CV was admitted to CVH on an
involuntary basis and his mother was made his SDM.
Initially he did not respond to anti-psychosis therapy and
showed signs of mania. Improvement came with a change
in medications and he was discharged home 37 days later.
(Exhibit 5, pp. 2-3)
27 From September 2011 to January 2012, CV periodically attended
the Schizophrenia Program at CVH and he
continued to see Dr. Packer. (Exhibit 5, p. 3) Dr. Dimanno
learned from Dr. Packer’s staff that in the spring of 2013,
CV stopped going to appointments with Dr. Packer and stopped his
medication. (Exhibit 5, p. 3) At this time, CV was
studying at the University of Toronto but he had difficulty in
school and was smoking cannabis which had led to his
mental state deteriorating. (Exhibit 5, p. 3) CV was twice
hospitalized in 2013 and both instances were preceded by
CV not adhering to his medications. (Exhibit 1) Exhibit 5
indicated that in the fall of 2013, CV presented at CVH with
complaints that his room was bugged and he was hearing voices.
(Exhibit 5, p. 4) He was admitted as involuntary
patient and found incapable of consenting to treatment. He
improved somewhat with treatment though he continued
to experience auditory hallucinations and remained quite
paranoid. Shortly after that discharge, CV showed signs of
mental deterioration and Dr. Dimanno suspected he was not taking
his medication (Exhibit 5, p. 5) On November 6,
2013, CV returned to the ER because he felt suicidal. He
remained hospitalized on a voluntary basis for two months
until January 7, 2014 and his medications were re-initiated.
28 Dr. Kantor’s evidence was that CV was hospitalized for 30
days at Mississauga Hospital on July 28, 2015.
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(Exhibit 2, p.1) He did not have medical records from this
hospitalization. His evidence was that this hospitalization
was also preceded by CV not adhering to his medication regime.
(Exhibit 1, p. 1) Dr. Kantor first met CV and his
mother on March 3, 2016. The Psychiatric Progress Notes that Dr.
Kantor put into evidence indicated that at that
meeting CV acknowledged having discontinued his mood stabilizer
medication months earlier and weeks prior having
also unilaterally decreased the anti-psychotic medication. Based
on his review of CV’s history, “a serious risk of harm
to himself and/or others”, and CV’s presentation, Dr. Kantor
initiated a Form 1. He hoped that CV would be
hospitalized in order that treatment at therapeutic levels could
be reinitiated. (Exhibit 7, pp. 2-3) On March 4, 2016,
CV was hospitalized for ten days at Mississauga Hospital
(Exhibit 2, p. 1)
29 In September 2016, CV was reported to be demonstrating signs
of deterioration, specifically he had become
“preoccupied with ideas of past apparent abuse, and this kind of
preoccupation has typically been associated in the
past with relapse”. (Exhibit 7, p. 6) He was also found with
extra medication on hand though he said he was taking all
his medications as prescribed. CV also told Dr. Kantor that he
wanted to be discharged from the SHIP ACT team
because his various health professionals were not taking his
concerns about past “abuse” (Dr. Kantor’s italics)
seriously. (Exhibit 7, p. 6) When asked to talk about the nature
of the abuse, CV told Dr. Kantor that an example was
his father “had put a camera in my room” and “tons of [other]
stuff” but he was not ready to talk about it. On November
1, 2016, Dr. Kantor issued the first CTO.
30 On January 30, 2017 Dr. Kantor’s Psychiatric Progress Note
indicated that CV was mostly “rambling about
previously described delusional thoughts about his father
“abusing” him; his mother lying about his history” (Exhibit
8, p. 1) At the August 17, 2017 meeting with Dr. Kantor, CV
talked about having auditory hallucinations of voices
who were speaking at the behest of his father but he did not
wish to discuss what the voices were saying for fear that
he would be hospitalized or have his medication dosages raised.
(Exhibit 8, p. 2) He missed his scheduled
appointments with Dr. Kantor on January 8, 2018, March 6, 2018
and June 25, 2018. (Exhibit 8, pp. 1, 4, 7) The
Psychiatric Progress Notes from 2017 (Exhibit 7) and 2018
(Exhibit 8) consistently depict CV as having delusions,
exhibiting paranoia about the intentions of his treatment team,
his parents and his sister, denying that he had symptoms
of mental disorder (though admitting that he was “schizo”), and
seeking to reduce his medication dosages because he
doubted their effectiveness. Nonetheless, Dr. Kantor’s notes
during this period indicated CV was stable, appropriately
groomed and dressed, had a bright affect, was working part-time,
and managing on a day to day basis.
31 CV testified that he had schizoaffective disorder, delusions,
mood disorder and depression. He stated that he
understood these disorders could not be cured and were managed
through medication, and mentally training his brain
with exercise, study and good lifestyle habits. He testified
that he had received a lot of support from the SHIP ACT
team which he appreciated. He said that he planned — with or
without the CTO in place — to stay with the ACT team
for another 8 or 9 years until he finished university, and to
follow Dr. Kantor’s treatment recommendations. He did
not believe that he needed a CTO in order to execute this
plan.
32 Based on the evidence, the Panel concluded that CV was
suffering from mental disorder. Dr. Kantor’s evidence
was that CV had a long-standing, diagnosed mental disorder,
specifically schizoaffective disorder. This diagnosis was
supported by the discharge summary prepared by Dr. Dimanno in
2014. CV acknowledged in his testimony that he
had schizoaffective disorder. Dr. Kantor presented persuasive
evidence about CV’s symptoms of paranoid delusions
and auditory hallucinations. When CV’s psychosis had been
untreated in the past, he had experienced considerable
distress, had attempted suicide and was fearful that he would
take his own life. CV had been hospitalized on multiple
occasions when his mental status had deteriorated and he had
engaged in suicide ideation and attempts. Dr. Kantor’s
evidence, particularly the report by Dr. Dimanno and MV’s
testimony was persuasive that CV had become very unwell
in the past when he unilaterally reduced or stopped taking his
anti psychotic and mood stabilizing medications.
Significantly, CV had no hospitalizations since the CTO had been
issued in November 2016 and although he continued
to have some symptoms, he was stable which Dr. Kantor attributed
to the treatment he was receiving. The panel found
Dr. Kantor’s evidence to be clear and compelling that CV’s
mental disorder such that he required continuing treatment,
care and supervision while living in the community
Did CV meet the criteria for the completion of an application
for psychiatric assessment under section 15 (1) or
15(1.1) of the MHA?
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33 CV was not a patient in a psychiatric facility in the 72 hour
period that preceded the CTP and, as such, Dr.
Kantor was required to establish, on a balance of probabilities,
that CV met the criteria for an application for
psychiatric assessment. Dr. Kantor relied on the grounds that CV
was likely to cause serious bodily harm to himself
or to experience substantial mental deterioration (”Box B”
criteria in section 15(1.1) of the MHA).
Had previously received treatment for mental disorder of ongoing
or recurring nature
34 The preceding section referenced evidence presented about
CV’s seven hospitalizations between 2010 and 2016,
and his treatment by Drs. Packer, Dimanno and Kantor for
schizoaffective disorder in and out of hospital. As discussed
in the previous section, CV had been living in the community
under CTO’s since 2016. Based on this evidence, the
panel was satisfied that CV had previously received treatment
for mental disorder of an ongoing or recurring nature.
The panel held this criterion had been satisfied.
Had shown clinical improvement as a result of the treatment
35 Dr. Dimanno’s discharge summary from 2014 reported that
during both hospitalizations at CVH 2010, CV’s
psychosis was treated with anti-psychotic medication and
“improvements in symptoms occurred quite rapidly”.
(Exhibit 5, p. 5) In March 2011, while an outpatient under Dr.
Packer’s care at Humber River Regional Hospital, CV
was switched to another drug and his dosage increased. Dr.
Packer’s assistant Joyce advised Dr. Dimanno that CV did
“relatively well but his adherence to medication was an issue”
(Exhibit 5, p. 2) During the August 2011 admission,
Dr. Dimanno suspected an underlying mania in addition to
symptoms of schizophrenia and he was put on a new mood
stabilizing medication. Soon afterward, his pressured speech
subsided and CV himself reported that his thoughts were
no longer racing and he could better concentrate. With the
addition of a different anti-psychotic medication, CV
“demonstrated significant improvement in his psychotic symptoms.
CV met with his father and had a good discussion
with him, whereby he apologized.” His mother also felt that CV
had shown significant improvement. (Exhibit 5, p. 3)
Collateral information obtained from Dr. Packer by Dr. Dimanno
was that CV did well with treatment but deteriorated
when he did not. (Exhibit 5, p. 3) During the two month
hospitalization at CVH that started on November 6, 2013,
CV was (following a Board hearing where his involuntary status
and the finding of incapacity were upheld) treated
with mood stabilizing and anti-psychotic medications. Dr.
Dimanno reported that “he improved to the point that he
was made voluntary” but continued to have auditory
hallucinations and remained quite paranoid so SDM consent was
obtained for clozapine, an anti-psychotic medication which CV
then agreed to as well.
”[CV], subsequent to starting clozapine, started to make further
improvement whereby he did not dwell on his
paranoid thoughts with the same intensity as before. He also
appeared more organized, whereby he was able to
find himself an apartment to live. [CV] voiced that he wanted to
try living alone. He agreed that he needed the
medication and agreed to follow up with the writer for
monitoring. The writer did speak to the mother as well,
who felt that [CV] had made significant improvements from the
time he was admitted to hospital.” (Exhibit 5, p.
4)
36 Since his discharge from CVH on January 7, 2014, CV has
continued to be prescribed Clozaril (clozapine) and
Epival, anti-psychotic and mood stabilizing medications
respectively. Dr. Kantor’s letter to the board stated: “The
evidence is unequivocal that his medications at the prescribed
dosages have a markedly positive effect and that
continued use is necessary in order to maintain that effect.”
(Exhibit 1, p. 1) MV was also emphatic that treatment has
led to a “vast improvement” in her son’s symptoms. She described
CV as a different man when he was taking
medication.
37 Dr. Kantor’s Psychiatric Progress Notes indicate that CV has
frequently not agreed that his symptoms subsided
with treatment. One example, on March 3, 2016 (just before CV
was hospitalized), Dr. Kantor noted that CV had
discontinued the mood stabilizing mediation and had unilaterally
reduced his anti psychotic medication by eighty
percent. “Patient says that since lowering his medications he
has more control over his thoughts.” “He says there is
very little correlation between medication and my symptoms”.
(Exhibit 7, p. 2) More recently, on April 23, 2018, CV
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told Dr. Kantor that he wished to lower the clozapine dose and
to discontinue to Epival altogether since he doubted
its effectiveness. (Exhibit 9, p. 5) At the hearing, CV
testified that medication was required to help manage the
symptoms of schizoaffective disorder.
38 Dr. Dimanno’s opinion that CV had made significant and rapid
improvement when appropriately medicated
during multiple hospitalizations in 2010, 2011, and 2013 was
clear, convincing and uncontested. CV had been
prescribed clozapine and Epival since 2014 and since that time
the intensity of his delusions and auditory
hallucinations appeared to have subsided to some extent. The
evidence presented was that CV had not engaged in
suicide ideation or gestures when he was being treated. He had
found himself an apartment, and with support he had
lived alone successfully for several years. Since May 2015, he
had been employed part-time and was described by his
employer as reliable, punctual, hard-working, and always
pleasant. (Exhibit 10) In recent months, his mother testified
that CV had renewed a friendly relationship with his parents and
sister. Since 2014, he had been hospitalized twice
but this was because he was not taking his medication as
prescribed. His mother testified that “when he takes his
medication, he’s a beautiful soul. When he doesn’t take his
medication, he doesn’t talk to anyone”. Dr. Kantor’s
progress notes indicated that CV sometimes doubted the efficacy
of the medications he was supposed to take but the
evidence before the panel indicated that CV was alone in this
view. The clinical record of CV’s treatment over the
years persuaded the panel that, in fact, the medications had
helped CV. The panel concluded that the evidence
established that CV had shown clinical improvement and that it
was attributable to the treatment he had received.
Appeared to be suffering from same or similar mental
disorder
39 Dr. Kantor’s evidence was that CV was suffering from
schizoaffective disorder, the same disorder that he had
been diagnosed with by Dr. Dimanno in 2013 and had been
receiving treatment for several years before this hearing.
Dr. Dimanno noted in his discharge summary that CV’s
presentation in hospital on November 6, 2013 was similar to
his presentation on August 15, 2011 (Exhibit 5, p.4) The panel
concluded this criterion had been met.
History of mental disorder and current mental or physical
condition, person is likely to cause serious bodily harm to
himself or to suffer substantial mental deterioration
40 Dr. Kantor introduced MV as witness because she had direct
knowledge of CV’s mental deterioration and
suicide attempts. MV testified that CV became mentally ill eight
years ago when he was 22 years old. For the past
several years, CV lived in his own apartment. Prior to 2015, CV
lived at the family home with MV and his father. MV
testified that when CV was unwell and living at home, he locked
himself in his room and refused contact with
everyone. He was having suicidal thoughts but he rejected
others’ efforts to help him. His hygiene was poor. He was
not interested in food and lost a lot of weight. She tried to
feed him but he refused to eat. Four or five years ago he
had attended the University of Toronto Mississauga and tried to
live on campus but after he stopped taking his
mediation, he deteriorated badly and ended up in hospital. When
he did not take his medication, she stated that “he
gets very, very, very sick and calls or texts me to say ‘That’s
it, I’m done’. I call 911. It’s happened each time. It’s a
pattern.” She stated that in the past CV had become suicidal
“four or five times” when he stopped taking his
medication. She stated that if CV was in charge of taking his
own medication, there was a high risk he would stop and
in the past he had done exactly that. Years before the CTO, MV
had done her best to ensure that CV took his
medication. He sometimes allowed her to do this but she there
were also times when he did not allow her to supervise,
became avoidant, and took his medications only once or twice a
week. When CV was discharged from the hospital on
January 7, 2014, MV agreed with Dr. Dimanno and CV that she
would visit his apartment every day to watch him
take his medications until this responsibility was taken over by
the SHIP ACT team. MV testified that the last time
CV had revealed a strong interest in killing himself was during
his 2016 hospitalization when she noticed that he had
brought to the hospital a folder containing a detailed list of
28 ways to commit suicide. This incident was also described
by Ms. Armstrong. (Exhibit 6, p. 2) Asked to comment on Dr.
Kantor’s July 16, 2018 note that “He continues to
believe that his father abused him, including the use of
electronic devices planted in appliances in the patient’s
apartment,” (Exhibit 9, p. 8) MV denied that CV’s father abused
him or had ever monitored his son electronically.
They did not even have a key to CV’s apartment. She stated that
these thoughts were not surprising as they typically
appear when CV is not taking his medication. She could tell from
the way her son’s mind shifted from day to day if
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he was not adequately medicated on any particular day.
41 Dr. Kantor’s evidence was that:
”[CV] becomes severely mentally ill when not receiving adequate
treatment. He has undergone minimally seven
psychiatric hospitalizations, five of these occurring prior to
his involvement with the ACT team. Of the seven
hospitalizations, at least four were preceded by [CV] not
adhering to his medication regimen. This includes
attempting to hide the non-adherence. These four
hospitalizations include two in 2013, and one each in 2015 and
2016. Based upon hospital documentation, [CV] when most unwell
suffers paranoid delusions and behaviours
[e.g., believing that people are gathering outside his home;
being followed; concealing a large kitchen knife;
calling the police for help] of a severity that has led him to
experience suicidal thoughts and gestures.” (Exhibit
1)
42 In August 2011, according to Dr. Dimanno’s discharge summary
(Exhibit 5), CV made two visits to the ER
department at CVH in a paranoid and distressed state. On the
first visit, he reported that people had been gathering
outside his home, and following him but he did not know why. He
admitted wanting to hurt these people. He told ER
staff the same thing had happened to him a year earlier when he
had come to the hospital to find out why people were
following and watching him. He did not cooperate much with the
interview process but he told ER staff that Dr. Packer
had prescribed anti-psychotic medication and that he was taking
it as prescribed. CV was offered voluntary admission
which he declined. (Exhibit 5, p. 1) A few days later, CV
returned to the ER department, this time in police custody.
Earlier that day, he had inflicted “bilateral superficial
slashes to his upper arms”. (Exhibit 5, p. 1) On August 15,
2011,
he told Dr. Dimanno that people were against him but who could
not say who those people were. He believed he heard
voices in his bedroom which he felt were connected to his
parents and the people who he said were gathering outside
his house. He moved toward Dr. Dimanno in an intimidating
manner, which resulted in the interview being terminated.
He stated that he intended to continue with his prescribed
medication. CV’s father told Dr. Dimanno that his son had
taken a kitchen knife to his room which concerned his parents
very much. CV had stopped speaking to his father.
After losing his temporary job five months earlier, CV had
simply stayed home and was often on the computer. His
mental health deteriorated. His father never saw CV take the
pills prescribed by Dr. Packer. Dr. Packer’s assistant
disclosed to Dr. Dimanno that despite his saying otherwise, CV
was not taking the prescribed antipsychotic
medication. CV became verbally aggressive toward his father when
he was mentally unwell. (Exhibit 5, pp. 1-3) In
response to questions from the panel, Dr. Kantor testified that
while the cuts to CV’s arms were superficial, he
understood from CV that his thoughts were of suicide which Dr.
Kantor considered a more important indicator of risk.
43 After leaving Dr. Packer’s care and stopping his medication
in 2013, CV’s mental state deteriorated coincident
with a difficult school year. (Exhibit 5, p. 3) In the fall of
2013, (the evidence of when was unclear from Exhibit 5),
CV came to the hospital quite paranoid and expressed that he was
distressed about “body physical adjustors” who had
been harassing and being aggressive towards him for a couple of
weeks. He said his room was bugged and that he was
hearing voices from a recorder in his room. He gave rambling
answers and became fearful and teary talking about the
body adjusters and voices in his room. He did not believe these
were delusions resulting from mental illness and he
appeared to have no insight into his illness. (Exhibit 5, p. 4)
He said that he needed a lawyer because people were
following him. He was held on a Form 3 and found incapable of
consenting to treatment. (Exhibit 5, p. 4)
44 Within a month after being discharged, CV’s mental state
again deteriorated. He ceased communicating
appropriately with his care team led by Dr. Dimanno, his affect
was restricted and he began demonstrating paranoid
behaviours. Dr. Dimanno suspected CV was not taking his
medications although CV denied this. (Exhibit 5, p. 5)
Then on November 6, 2013 his mother brought CV back to CVH
seeking admission because he had been suicidal
earlier that day. Dr. Miula’s notes of her interview with CV
indicated that he was very disorganized, and could not
recall what was troubling him but said he was concerned that his
suicidal thoughts might return. He laughed without
comment when Dr. Miula pointed out that his blood levels
indicated he was probably not taking the mood stabilizing
medication that had been prescribed. Dr. Dimanno explained to CV
that his symptoms were exacerbated because he
had stopped his medications. “He voiced that there was more to
that, but did not elaborate”. He agreed to remain in
hospital in order to reinitiate his medications. (Exhibit 5,
p.5)
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45 Although Dr. Kantor said that did not have medical records of
CV’s hospitalizations at Mississauga Hospital in
2015 or 2016, his evidence was that both admissions occurred
because CV’s mental state had deteriorated after he had
stopped taking adequate dosages of his medications. Evidence for
this was provided through two Progress Notes
prepared on August 7 and 12, 2015 by SHIP case worker Jessie-Lee
Armstrong. (Exhibit 6) While CV was in hospital,
MV had visited her son’s apartment to collect his laundry. She
found approximately 20 days worth of medication
hidden in his pillowcase and other loose pills scattered around
his unit. (Exhibit 6, p. 1) She immediately reported this
discovery to Ms. Armstrong who documented it in the Progress
Note. (Exhibit 6) On August 12, 2015, MV reported
to Ms. Armstrong that when she had visited her son in hospital
she noticed that he had a folder containing detailed
information on how to commit suicide. (Exhibit 6, p. 2)
46 CV was hospitalized for ten days in March 2016 when he
admitted to Dr. Kantor that months before he had
discontinued his Epival, and weeks earlier he had decreased his
clozapine to 20 percent of the prescribed dosage. On
March 3, 2016, CV acknowledged to Dr. Kantor that his symptoms
“come and go” and that:
”When most unwell, he “hears things”. When asked about the
content of what he hears, he replied “I don’t want
to mention any of the words at this moment. I asked if he felt
safe at this time, he replied “I cannot answer that”.
He said that his mood is good. He denied suicide ideation. He
did say that the voices that he hears tell him to
carry out dangerous acts that he refused to discuss any further.
I asked why he is guarded he replied “numerous
reasons”.” (Exhibit 7, p. 2)
47 Based on this evidence, CV’s presentation and the history of
mental deterioration, Dr. Kantor completed a Form
1 on March 3, 2016. CV was subsequently hospitalized for 10 days
in order that he could be medicated appropriately.
(Exhibit 7, p. 4) Dr. Kantor’s evidence was that by September
2016, CV was again “demonstrating signs of
deterioration - preoccupied with ideas of past apparent “abuse”,
a preoccupation that was typically associated in the
past with relapse”. (Exhibit 7, p. 6) Dr. Kantor decided to
initiate a CTO. (Exhibit 7, p. 6) Since the CTO was issued
on November 1, 2016, there have been no further hospitalizations
or evidence of serious relapses though the
Psychiatric Progress Notes from late 2016 onwards (Exhibits 7,
pp, 8-11, Exhibits 8 and 9) indicated that CV’s fixed
delusional system remained intact.
48 CV testified that his father abused him but when asked to
describe the nature of the abuse he said he did not
want to because “it brings back symptoms of paranoia”. CV said
that whether or not his “schizoaffective disorder was
100% caused by my dad’s abuse”, he was no longer blaming his
father for his symptoms. He disputed his mother’s
testimony that his paranoia returns quickly when he does not
take his medication and said “she misjudges me because
I have been taking my medications every day for the past three
years”. He testified that the only time he had stopped
taking his medication was for a month after his discharge from
CVH in 2013. CV stated that he had not thought about
suicide since he was 22 or 23 years old. He had not experienced
any auditory hallucinations since March 2016 and he
had told the ACT team this.
49 The panel considered CV’s testimony that he had not
experienced suicidal thoughts since 2010. His mother
testified that he had been hospitalized 4-5 times for suicide
attempts and that there was a historical pattern of CV
contacting her for help when he was feeling suicidal or had
attempted suicide. Dr. Dimanno’s discharge summary
indicated that that CV was hospitalized following episodes when
he admitted to suicidal thoughts and gestures on at
least three occasions - in Aug 2011, in Nov 2013 and in August
2015. On balance the panel preferred the evidence
that CV had been at high risk for serious bodily harm to himself
on multiple occasions prior to the CTO being issued.
In this regard, the panel found MV’s testimony and the
documentary record compiled by Dr. Dimanno (which was
based on his personal knowledge as CV’s attending physician at
CVH and his review of CV hospital records) to be
highly credible.
50 The panel considered CV’s testimony that he had experienced
no auditory hallucinations since 2016. CV agreed
with Dr. Kantor that that he was not disputing the veracity of
his Psychiatric Progress Notes from 2016 through 2018.
Those notes indicated that CV was still hearing voices on Aug
17, 2017 (Exhibit 8, p. 2) and on January 29, 2018.
(Exhibit 9, p. 2) The January 29th note documenting CV’s
discussion with Dr. Kantor about his father playing “low-
frequency voices” was persuasive that CV was still hearing
voices in January and still perceived this delusion to be
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“electronic harassment” (italics added by Dr. Kantor in his
note). The panel accepted Dr. Kantor’s evidence that even
after the CTO had been in place for some time, CV remained
preoccupied by command hallucinations.
51 The panel found that the evidence offered by Dr. Kantor about
the history of CV’s mental disorder to be clear
and compelling. The panel was persuaded by MV’s testimony
describing CV’s symptoms of substantial mental
deterioration when he was not treated in the past. CV did not
challenge his mother’s evidence that he became unwell
when he was not medicated or her description of his symptoms
when unwell. He appeared to take issue only with her
opinion about the speed with which symptoms of mental
deterioration returned if had been medication non-adherent.
Dr. Kantor’s documentary evidence (Exhibit 5 and his progress
notes) was persuasive that when he was not being
treated or not receiving medication at the prescribed dosages,
CV became paranoid, the intensity of his delusions of
abuse by his father and of being harassed by other people
increased, he heard voices that denigrated him, and all this
led to him feeling distressed, fearful, hopeless and suicidal.
The panel was also persuaded by Dr. Kantor’s evidence
that before the CTO and before the support of the SHIP ACT team,
CV was unable or unwilling to take his medications
each day without his mother’s supervision. Based on the
foregoing, the panel concluded that the evidence established
that in the past when CV’s schizoaffective disorder was
untreated or inadequately treated, he had suffered substantial
mental deterioration and was likely to cause serious bodily harm
to himself. Evidence about his current mental
condition persuaded the panel that the same outcome would occur
if the CTO was not confirmed.
Consent of CV’s SDM has been obtained
52 Dr. Kantor had found CV incapable of consenting to his CTP.
Salvatore Maletta, Treatment Decisions
Consultant for the Office of the Public Guardian and Trustee
which was the SDM for CV signed the CTP on April 23,
2018. (Exhibit 3, pp. 2 and 4) Based on this evidence, the panel
found that this criterion had been satisfied.
53 Based on the foregoing evidence and analysis, the panel
concluded that Dr. Kantor had established, on a balance
of probabilities that CV met the criteria for an application for
psychiatric assessment on the grounds he was likely to
result in serious bodily harm to himself, or to experience
substantial mental deterioration (”Box B” criteria in section
15(1.1) of the MHA).
If CV did not receive continuing treatment or care and
continuing supervision in the community is he likely to
cause serious bodily harm to himself or to suffer substantial
mental deterioration?
54 Dr. Kantor testified to his opinion that if CV were not
subject to a CTO, he would fail to follow the prescribed
treatment. His evidence was that this outcome was inevitable
because CV lacked insight into his illness, did not believe
that he needed treatment, and his history in the mental health
system demonstrated a consistent and ongoing effort
over a period of years to avoid adequate treatment. This
included CV hiding his medication non-adherence, and
questioning the need for contact with his mental health team in
the community. (Exhibit 1)
55 MV testified that she believed if CV were in charge of his
own medication, there was a high risk that he would
stop taking it. The preceding section referenced evidence of
persistent medication non-compliance at a time when CV
was not compelled by a CTO to accept treatment. Starting in
early 2014, CV had been a service recipient of the SHIP
ACT team. (Exhibit 6) For two and one-half years before Dr.
Kantor issued the first CTO in November 2016, Dr.
Kantor’s evidence was that non-adherence was an issue even
though he was receiving some ACT team support with
his medication regimen. The Progress Notes indicate that in
August 2015, while CV was in hospital MV discovered
that her son had been hiding medications in his pillow case and
around his apartment. (Exhibit 6) In February, 2016
on taking over CV’s care, Dr. Kantor was advised by staff that
CV was believed to be taking only 20 percent of his
prescribed clozapine dosage. (Exhibit 7, p. 1) CV confirmed this
a few days later when he advised Dr. Kantor that he
had discontinued the Epival months earlier and significantly
decreased his clozapine dosage because he saw very little
correlation between his symptoms and the medication. (Exhibit 7,
p. 2) On March 31, 2016, days after his discharge
from Mississauga Hospital, Dr. Kantor wrote of his meeting with
CV: “He says that he takes the Epival only because
of the fear he will be hospitalized should he discontinue it.”
(Exhibit 7, p. 4) In September 2016, CV expressed to Dr.
Kantor that he wished to be discharged by the ACT team because
his concerns about his father and others spying on
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him had been neglected by the mental health professionals.
(Exhibit 7, p. 6) In December 2016, after the CTO was
issued, he told Dr. Kantor that he wanted his clozapine dosage
lowered. CV also said that the medication had, over
the years, “been a primary factor in not being able to complete
school and not being able to maintain meaningful
employment”. (Exhibit 7, p. 11) On January 30, 2017, CV asked
Dr. Kantor that the frequency of his visits with the
ACT team (when they observed him take his medication) be reduced
from thrice weekly to once weekly. Dr. Kantor’s
note indicted that he believed that this would lead to missed
dosages. (Exhibit 8, p. 1) In his testimony, Dr. Kantor
explained that he subsequently agreed with CV to reduce the ACT
team observational visits provided that CV accepted
medication in a long acting injectable form.
56 CV testified that if the panel did not uphold the CTO, his
plan was to continue to accept support from the SHIP
ACT team, and to follow Dr. Kantor’s treatment recommendations
for another eight or nine years until he was finished
university. He said that his mental disorder could be managed
with medication and by mental training his brain with
exercise, study and good lifestyle habits. He testified that if
he discontinued his medications, there was a risk which
he did not wish to take, of relapse. He explained that in years
past he had been skeptical that he required treatment for
mental disorder but he had changed his mind after receiving
“plenty of support”. CV said that if he did hear voices,
he would speak with the ACT team and talk to Dr. Kantor about
increasing his medication. When the panel asked how
he would know if he was getting ill since many people who hear
voices and have delusions do not recognize these as
symptoms of mental illness, CV repeated that he would seek out
support groups and the assistance of the ACT team.
When pressed by Dr. Kantor, CV said he would “100 percent most
likely stay with the team” CV was asked why he
wanted the CTO revoked given that his testimony was that he
planned to continue following it in all respects. He
answered that he wanted to be free to become his own decision
maker and “to attain personal growth”. He told the
panel that “we miss every shot we don’t take”.
57 Dr. Kantor’s submitted that up until the day of the hearing,
the evidence disclosed that CV had demonstrated a
consistent pattern of resisting medication. As recently as their
meeting on July 9, 2018, CV had said that he continued
to believe that the Epival “is completely unnecessary and that
if left up to himself, he would discontinue it” ...” (Exhibit
9, p. 8) CV also said that he wished to have his clozapine
dosage lowered from 250 mg to 150 mg. At another point,
CV stated that if it was left up to him he would gradually lower
his clozapine dosage until discontinued, and that he
would do this over a period of 6-8 years as he would be “cured”
(Dr. Kantor’s italics) after that time.
”Later in the session he said that he feels if he was to
discontinue clozapine now the chances are low that he
would relapse. He also said that he sees no need to be involved
with community mental health support in that if
left up to him, he would discontinue contact with the team. I
reminded him of my previously expressed opinion
(and expressed on a number of occasions [that without continuing
medication, he will, based on the nature of his
illness and his own history, inevitably relapse; and that his
involvement with the team in fact, has been a valuable
support to him and upon which he has relied in the past”.
(Exhibit 9, p. 8)
58 Dr. Kantor’s submission was that it did not matter whether CV
was being honest on the day of the hearing or
was trying to convince himself of something. He submitted that
the panel ought to consider that CV’s testimony was
contradicted by the rest of the evidence which indicated that it
was unlikely that CV would alter his behaviour.
59 The evidence demonstrated that with the support and
supervision provided by Dr. Kantor and the SHIP ACT
team under the CTO, CV had been able to remain in the community
without further hospitalizations. Absent treatment,
there was clear, compelling and cogent evidence that CV would
suffer deterioration with a significant worsening of
his symptoms. Past experience indicated that if CV discontinued
medication or did not adhere to the prescribed dosage,
and without close support and supervision by the SHIP ACT team,
he would experience an increase in the intensity
of his delusions and auditory hallucinations that were likely to
result in him suffering substantial mental deterioration
and causing serious bodily harm to himself and either outcome
would likely lead to him being admitted to hospital.
The panel considered CV’s testimony that his intention was to
continue to take his prescribed medication and to rely
on support from the ACT team. The panel agreed with Dr. Kantor’s
submission that regardless of whether or not CV
was being honest in this testimony, on balance the evidence
favoured the conclusion that absent the CTO, CV was
unlikely to remain medication adherent or to obtain social and
therapeutic benefit from an ongoing relationship with
the ACT team. The panel considered the evidence of: CV’s history
of medication non-adherence; his ongoing
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resistance to the CTO and to the prescribed medication dosages;
his expressed doubts about the usefulness of
medication; and finally, evidence that as recently as seven
weeks prior to the hearing, CV said that if it were left up to
him he would discontinue or reduce his medication and would
terminate his relationship with the ACT team. The
panel did not find CV’s explanation for why he had recently
changed his mind to be particularly credible. The panel
observed that CV repeated his key points word for word when he
was asked questions, and sometimes contradicted
himself. The panel found Dr. Kantor’s testimony and his
documentary evidence were consistent and credible. For all
these reasons, the panel preferred the evidence and submissions
of Dr. Kantor. The panel concluded that there was a
preponderance of evidence that CV was likely to experience
substantial mental deterioration and to cause serious
bodily harm to himself in the absence of continuing treatment or
care and continuing supervision in the community.
Was CV able to comply with the CTP?
60 Dr. Kantor’s evidence (Exhibit 2) was that CV was able to
access all the services that were required under the
CTP. CV received support from the SHIP ACT team which provided
community-based mental health support, and he
had been on a prior CTO. The panel found that CV was able to
comply with the terms of the CTP.
Was the treatment or care and supervision required by the CTO
available in CV’s community?
61 Dr. Kantor’s evidence (Exhibit 2) was that the treatment or
care and supervision required by the CTO were
available in CV’s community. There was evidence presented that
members of the SHIP ACT team visited CV
regularly, administered and monitored his medication intake,
provided social and other therapeutic support which CV
found helpful, and they monitored his mental and physical
condition. CV was also able to attend appointments with
Dr. Kantor. The ACT team were available to continue these
services. The panel concluded that the treatment or care
and supervision required by the CTO were available in CV’s
community.
Capacity to Consent to Treatment
Did the evidence establish that CV was unable to understand the
information relevant to making a decision about
the treatment in question?
62 Dr. Kantor’s evidence (Exhibit 1) indicated that he believed
CV was able to understand the information relevant
to making a decision about the proposed treatment of his mental
disorder. There was no evidence that indicated CV
was unable to understand the information provided to him about
treatment.
Did the evidence establish that CV was unable to appreciate the
reasonably foreseeable consequences of a decision
or lack of decision about the treatment in question?
63 Dr. Kantor testified that he had conducted a capacity
assessment at every meeting he had with CV for the past
three years while CV had been his patient. The most recent
capacity assessment was carried out on July 16, 2018.
(Exhibit 9, p. 8) Dr. Kantor found that CV was stable but he
continued to lack insight into his illness and need for
adequate treatment regarding the use of his psychotropic
medication regimen (anti-psychotic and mood stabilizing
medications), as well as the CTP. (Ex 9, p. 9) His evidence was
that CV did not accept that he required treatment for
a mental disorder because he did not recognize that that his
fixed delusional system was a symptom of that disorder
and that he was therefore incapable of appreciating the
consequences of a decision to accept or reject treatment. Dr.
Kantor was asked to explain on what basis he believed that CV
remained incapable of consenting to treatment as of
the day of the hearing given that he had last assessed CV’s
capacity on July 16, 2018. He replied that in his experience
and according to the research literature, it was very unlikely
that an individual with schizoaffective disorder who had
been repeatedly assessed over a nine year period and
continuously found to be incapable of making treatment
decisions
would suddenly gain insight into their illness. Further, the
literature indicated that fifty percent of people with
schizoaffective disorder lacked insight into their
condition.
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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
64 With regard to the information provided to CV, Dr. Kantor
testified that he had, as of previous occasions,
informed CV that he had schizoaffective disorder, and that he
required treatment which included anti-psychotic and
mood stabilizing medications and the support and monitoring
provided under a CTP in order to help with the
distressing thoughts and behaviours that led to him being
hospitalized on multiple occasions. Dr. Kantor’s evidence
was that he reviewed with CV the possible movement and metabolic
adverse effects of his medications. (Exhibit 9, p.
5) He further testified that it was his practice to provide
patients with information in a written form that movement
effects included tremors, restlessness, rigidity and the
metabolic effects included an increase in blood sugar,
cholesterol and weight gain. He testified that he did not
believe that CV was experiencing any of these adverse effects.
65 With regard to what Dr. Kantor told CV about the reasonably
foreseeable consequences of a decision to accept
treatment with psychotropic medications and the CTP, or lack of
a decision to accept Dr. Kantor’s treatment
recommendation, Dr. Kantor’s Psychiatric Progress Note of July
16, 2018 stated that:
”I reminded him of my previously expressed opinion [and
expressed on a number of occasions) that without
continuing medication he will, based upon the nature of his
illness and his own history, inevitably relapse; and
that involvement with the [ACT] team has in fact, been a
valuable support to him and upon which he has relied
in the past.” (Exhibit 9, p. 8)
66 According to Dr. Kantor’s Psychiatric Progress Notes, CV said
that he was aware that Dr. Kantor had explained
to him in the past that his psychiatric illness was not curable
and that he would require medication indefinitely. (Exhibit
9, p. 8) However, CV advised Dr. Kantor that he wished to
gradually lower his clozapine dosage over six to eight
years until discontinued. He also stated that he believed that
after that period of time he would be cured. “Regarding
Epival he continues to believe that it is completely unnecessary
and that if left up to himself, he would discontinue
it”. (Exhibit 9, p. 8)
67 Dr. Kantor’s evidence was that CV was unable to appreciate
the reasonable foreseeable consequences because
CV did not believe had a mental disorder or that he had symptoms
of a disorder. When questioned by the panel, Dr.
Kantor could not say for sure whether CV disagreed that he had
schizoaffective disorder or accepted that he had such
a disorder but denied that he experienced any symptoms. Dr.
Kantor testified that CV believed that the origin of his
problems was alleged abuse by his father though there was “not
an iota of evidence” of any abuse having occurred.
CV’s belief that he had been abused was a delusion or a “fixed
delusional system”. Dr. Kantor testified that it was
unrealistic to believe, as CV did, that his father had planted
listening and watching devices in his son’s room and
apartment. MV testified that CV’s father had not spied on CV,
and had not rigged up appliances to conduct surveillance
in his apartment. In fact she said, CV’s dad “had no problem”
with CV.
68 Dr. Kantor’s evidence was that: “As in the past, [CV] said
that he believes that abuse from his father is what led
to his schizoaffective symptoms and believes that because the
abuse has been eradicated, that it is only a matter of
time before the patient is cured” (Ex 9, p. 5) Dr. Kantor’s
Psychiatric Progress Notes of July 16, 2018 indicated: “He
continues to believe that his father abused him, including the
use of electronic devices planted in appliances in the
patient’s apartment”. (Exhibit 9, p. 8) Following his January
29, 2018 meeting with CV, Dr. Kantor wrote:
”Patient says that he hopes “in a few years” to come of off his
medication — “If you don’t try you don’t succeed”.
Patient said that within that timeframe he will be able to
function well without medication because more time
will have gone from when he last had contact with father, and
during which more time he will be continuing to
think positively. He says that he “made changes to my thought
processes”, saying that he is thinking “more
positive thoughts”. (Exhibit 9, p. 2)
69 On August 17, 2017, Dr. Kantor’s noted that: “[CV] says that
he agrees with the diagnosis of being “schizo”
but denies current symptoms. When asked what his symptoms were
he said “paranoia” and, as in the past, referred to
his father having persecuted him. He clearly does believe that
this persecution occurred.” (Exhibit 8, p. 2) At the same
meeting with Dr. Kantor, CV also disclosed about having heard a
male and female voice who were, he said, speaking
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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
at the behest of his father. “When asked to describe this
further, he said “If I talk about that I’ll be unfairly
treated”
for fear that he will be hospitalized and/or medication dosages
raised”. (Exhibit 8, p. 2) Dr. Kantor wrote of his March
31, 2016 meeting with CV:
”He does not believe that he requires Epival but will take it.
He was vague and contradictory about clozapine,
upon several occasions saying that it is only helpful with
sleep, but at other times stating that it helps his
symptoms of “schizoaffective” such as paranoia. He said that he
does believe that clozapine is at least partially
helpful. He says that he takes the Epival only because of the
fear that he will be hospitalized should he discontinue
it....He did not refer to adverse effects from medication and
none are apparent” (Exhibit 7, p. 4)
70 On hearing from Dr. Kantor that his mother and the ACT team
on January 30, 2017 that they believed he was
in a healthier mental state and level of functioning when he
took a higher dose of clozapine, CV responded that he
wished to lower the dosage because “I can take care of myself”.
(Exhibit 8, p. 1) On December 1, 2016, Dr. Kantor
wrote of that CV told him that day that he believed that
medication over the years had been a primary factor in him
not being able to complete school or maintain meaningful
employment. (Ex 7, p. 11)
71 In his oral testimony, CV acknowledged that he had been
diagnosed with schizoaffective disorder. He stated
that he was aware that there was no cure and that it must be
managed with medication, in his case, anti-psychotic and
mood stabilizing medications, and by mentally training one’s
brain, which he was doing through exercise, study and
other good habits. He denied that schizoaffective disorder could
be cured. He stated that management of the disorder
required that he take medication for the rest of his life. When
pressed to explain why he had consistently denied for
years the usefulness and effectiveness of mood stabilizing and
anti-psychotic medications and the CTP, but was now
saying that he accepted that these were necessary for lifelong
management of his mental illness, CV said simply that
he had changed his mind and suggested that had benefitted from
support from others (meaning presumably that this
support had allowed him to grow and see things differently). At
another point in his cross-examination he explained
the change as “everyone has doubts about the origin of their
mental illness”. Lastly he explained the change was due
to his realization that his disorder was “not 100% caused by
abuse that he suffered. He explained that whether or not
his schizoaffective disorder originated with his father’s abuse,
“I’m no longer blaming my father”. He was taking
responsibility for himself, he said. Dr. Kantor pressed CV to
clarify whether he believed the chance of relapse was
low if he stopped medication, as he had previously asserted to
Dr. Kantor at their meetings. CV replied that he could
not answer that question. Then after a brief pause he stated
that there was a high chance that symptoms would return
if he discontinued his medications.
72 Dr. Kantor submitted that CV’s testimony at the hearing was
belied by all the evidence of him having
consistently resisted anti-psychotic and mood stabilizing
medications and the CTP. He also submitted that a person’s
willingness to take medication was not synonymous with capacity.
Ms. Corcoran, counsel for CV, submitted that if
fifty percent of persons with schizoaffective disorder lack
insight into their illness, then it seemed that CV was one of
the other fifty percent who could “cross over” and regain
capacity.
73 The panel concluded that there was strong evidence indicating
that for years CV had believed that he had been
persecuted and harassed by his father who spying on him and that
he genuinely believed that this was the origin of the
distress and fear he experienced. Evidence from Dr. Kantor’s
2016 to 2018 Psychiatric Progress Notes (Exhibits 6, 7,
8 and 9) indicated that CV was preoccupied by this unrealistic,
delusional belief which he raised at most of his
meetings with Dr. Kantor. There was also reliable, consistent
and uncontroverted evidence that CV had long resisted
medication. He had a history of medication non-adherence. He had
tried repeatedly to have the dosages of his
medications reduced and to discontinue some medications. CV also
denied that medications had benefitted him. He
told Dr. Kantor that there was very little correlation between
medicine and his symptoms (Exhibit 7, p. 2) despite
persuasive evidence (contained in Dr. Dimanno’s discharge
summary, (Exhibit 5)) that CV’s symptoms had rapidly
improved when he was treated with appropriate doses and types of
medication. There was also evidence before the
panel that CV did not believe he needed treatment with
medication; that he could “cure himself” by avoiding being
surveilled by his father and thinking positively; and that he
“could take care of myself”. CV contradicted himself
sometimes too. The Psychiatric Progress Notes indicate that CV
had acknowledged he had schizoaffective disorder
(but denied having symptoms) and at other times he denied that
he had symptoms but simultaneously mentioned the
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CV, Re, 2018 CarswellOnt 22836
2018 CarswellOnt 22836
distress and damage that his father’s surveillance and
harassment had caused him. He was similarly contradictory
about the usefulness of the medication - sometimes saying that
clozapine was only helpful for sleep, and sometimes
saying it helped reduce paranoia. On March 31, 2016 he said that
Epival would keep him out of hospital (which
possibly showed that he appreciated its benefits) at the same
meeting with Dr. Kantor he said that he did not require
Epival (which definitively showed that he did not appreciate its
benefits). In short, there was a strong preponderance
of evidence that prior to the hearing, CV had almost
consistently doubted the usefulness of medication and had
resisted
it.
74 The panel carefully considered CV’s testimony acknowledging
that he had schizoaffective disorder, that there
was no cure, and that it could only be managed with medication.
The panel did not find credible CV’s responses to
the question of why he had changed his mind after years of
consistently doubting the usefulness of anti-psychotic and
mood stabilizing medications. The panel preferred the evidence
of Dr. Kantor which it found to be clear, cogent and
compelling. The panel accepted the evidence put forward by Dr.
Kantor which indicated that CV genuinely believed
that he was being surveilled and that this powerful delusion
rendered him incapable of recognizing the consequences
of accepting or declining to accept Dr. Kantor’s treatment
recommendations.
75 When questioned by the panel, Dr. Kantor could not say for
sure whether CV disagreed that he had
schizoaffective disorder or accepted that he had such a disorder
but denied that he experienced any symptoms. Dr.
Kantor testified that CV believed that the origin of his
problems was alleged abuse by his father though there was “not
an iota of evidence” of any abuse having occurred. CV’s belief
that he had been abused was part of a “fixed delusional
system”. Dr. Kantor testified that it was unrealistic to
believe, as CV did, that his father had planted listening and
watching devices in his son’s room and apartment. MV testified
that CV’s father had not spied on CV, had not rigged
up appliances to conduct surveillance in his apartment. He also
believed that when this surveillance or abuse had been
eliminated, and with the passage of time, the distress he felt
would dissipate, and he would be “cured”.
76 In the Starson v. Swayze case, the Supreme Court of Canada
made the following comments about the issue of
capacity:
”While a patient need not agree with a particular diagnosis, if
it is demonstrated that he has a mental
“condition”, the patient must be able to recognize the
possibility that he is affected by that condition....a patient
is not required to describe his mental condition as an
“illness”, or to otherwise characterize the condition in
negative terms. Nor is a patient required to agree with the
attending physician’s opinion regarding the cause of
that condition. Nonetheless, if the patient’s condition results
in him being unable to recognize that he is
affected by its manifestations, he will be unable to apply the
relevant information to his circumstances, and
unable to appreciate the consequences of his decision.” (at pp.
761-762 Emphasis added)
77 The Starson case did not require CV to agree with the
specific diagnosis of schizoaffective disorder but it did
require him to acknowledge that he was affected by the
manifestations of a mental disorder. Although there was some
inconsistency in how CV described his “abuse” experience, the
panel accepted the evidence that on balance CV did
not believe he had a mental disorder with manifestations or
symptoms. He believed instead in his delusion of abuse
which caused him distress and prevented him from being to
recognize how he could acquire lasting relief. The effect
of this was that CV denied having a mental condition or the
manifestations of a mental condition and so declined
treatment recommendations without appreciating the consequences
of his doing so. The panel accepted Dr. Kantor’s
evidence that:
[CV] does not appreciate the consequences of a decision to take
or not follow the prescribed treatment. The
evidence is unequivocal that his medications at the prescribed
dosages have a markedly positive effect and that
continued use is necessary to maintain that effect. Mr [CV] does
not believe that is the case. He also questions
the need for contact with his mental health team in the
community yet this is the only consistent means of support”
(Ex 1)
78 The panel concluded that as a result of his mental condition
CV lacked the ability to apply the relevant
http://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2003058162&originationContext=document&transitionType=DocumentItem&vr=3.0&rs=cblt1.0&contextData=(sc.Search)http://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2003058162&originationContext=document&transitionType=DocumentItem&vr=3.0&rs=cblt1.0&contextData=(sc.Search)
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CV, Re, 2018 CarswellOnt 22836
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information to his circumstances, and weigh the risks and
benefits of the medications and the CTP. CV was unable to
appreciate the consequences of his decision to forego treatment,
and was also unable to consistently consider the
benefits from treatment or consistently recall how he much he
had benefitted from treatment in the past. Dr. Kantor’s
evidence was that he had, in fact, responded very well to
antipsychotic medication. For all of these reasons, the panel
concluded that there was sufficient evidence presented to rebut
the presumption of capacity, and to find that CV did
not have the ability to appreciate the reasonably foreseeable
consequences of a decision or lack of decision about the
psychiatric treatment in question.
RESULT
79 For the foregoing reasons, the panel unanimously confirmed
CV’s CTO, and also for the foregoing reasons, the
panel confirmed the finding that CV was incapable of consenting
to treatment with anti-psychotic medications and
mood stabilizing medications and the CTP.
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