Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342

In Centre for Addiction and Mental Health v. Ontario, the ONCA considered the interpretation of ‘consent’ in the context of s. 672.62 of the Criminal Code, which provides that – where an accused has been found unfit to stand trial and has been ordered to undergo treatment according to s. 672.58 – the consent of the person in charge of the hospital in question is required. Justice Blair overturned the hearing judge on the question of whether the consent requirement had been met in the circumstances – it had not – and further considered the constitutionality of s. 672.62, an issue before the court for the first time on appeal. Blair J.A. held that the s. 672.62 requirement complies with society’s notions of procedural fairness and is not unconstitutionally vague or arbitrary.

Mr. Brian Conception, accused of sexual assault, was found mentally unfit to stand trial. Justice Mary Hogan of the Toronto Mental Disorder Court issued a treatment order requiring Mr. Conception to submit “forthwith” to 60-days’ anti-psychotic treatment at Oak Ridge, a facility affiliated with the Centre for Addiction and Mental Health (CAMH), notwithstanding the hospital’s declared inability to accommodate him until six days later. CAMH appealed the decision, arguing it had not given the requisite consent.  

The decision clarifies the law on what Blair J.A. called “a recurring theme” in Ontario courts: the tension between judges’ desire to avoid interim jail time for mentally unfit accused on their way treatment, and the hospitals’ refusal to give consent due to bed shortages. Recognizing the hearing judge’s legitimate exasperation with a system suffering a scarcity of resources, Blair J.A. allowed the appeal. He accepted the hospital authorities’ power to determine priority of treatment in an environment where, among those patients waiting for a bed, there might well be others like Mr. Conception. Noting that “[s. 672.58] orders are… not intended to be… for the medical benefit of the unfit accused in the broad sense”, Blair J.A. held that the s. 672.62 consent requirement does not offend principles of fundamental justice. The decision makes the point that policy decisions concerning the allocation of psychiatric hospital resources are beyond the competence of the courts.

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Radostina Pavlova

Tony Drake

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Temoin v Martin, 2012 BCCA 250

In this case, the British Columbia Court of Appeal considered the issue of whether the Supreme Court of British Columbia has the power to order a psychiatric examination of a person who appears to be incapable of managing his or her own affairs when the person in question will not voluntarily undergo examination. The Court of Appeal agreed with the Supreme Court judgment that the court does in fact have the power to order an assessment under its “parens patriae jurisdiction”, which gives the court control over vulnerable persons incapable of protecting themselves. However, the court stressed that the presumption of mental fitness under the Patients Property Act remains intact and the court must only order medical assessments in exceptional circumstances. 

The plaintiff, Lynne Temoin, had concerns that her father, Llewellyn Martin, was unfit to manage his finances or create a will due to dementia and sought an order declaring that he was incapable of managing his own affairs. A psychiatric examination of Mr. Martin confirmed that he did not have the capacity to make a will but did not assess his ability to manage his own affairs. As Mr. Martin refused to undergo such an assessment, the court was unable to make a declaration of incapacity under the Patients Property Act, which presumes a patient fit to manage his affairs unless two medical examinations provide evidence to the contrary. Justice Neilsen held that the Act contains a legislative gap regarding the court’s ability to order a patient to undergo psychiatric examination and thus looked to the legislature’s intent to determine the proper course of action. He reasoned that the purpose of the Act is to protect the autonomy of capable individuals by ensuring a rigorous protocol for declaring a patient unfit to manage his or her own affairs. However, he maintained that the Act does not adequately protect those mentally incapable individuals who refuse to undergo examination or do not have access to a physician. In these circumstances, the Act fails to protect the autonomy and wellbeing of these patients and thus falls out of line with its legislative objectives. The court held that in these exceptional circumstances, a party may request a court-ordered psychiatric examination of the individual in question. However, the moving party must meet a high evidentiary threshold to rebut the Patients Property Act presumption of fitness. Furthermore, the court stressed that its parens patriae power must be exercised very cautiously in order to maintain the Act’s objective of protecting free choice. Ultimately, the court concluded that Ms. Temoin had not discharged this burden of proof and declined to order Mr. Martin to undergo a medical examination.

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Maeve Clougherty

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Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482

In Rasouli v. Sunnybrook Health Sciences Centre, the Ontario Court of Appeal held that the removal of life support when it is no longer medically indicated is a form of "treatment" requiring the consent of the patient under the Health Care Consent Act.

The respondent (represented by his litigation guardian) developed bacterial meningitis after surgery to remove a benign brain tumour, which left him reliant on life support for survival. According to medical consensus, there was no hope for recovery, and the life support measures were no longer medically beneficial or indicated. The appellants, the respondent's attending physicians, sought to remove the respondent from life support and begin palliative care. They argued that a patient's consent is not required when a doctor withdraws treatment that is not medically indicated or necessary, because such withdrawal does not constitute "treatment".

The Court held that the removal of life support constitutes "treatment" under the Act, and therefore requires the consent of the substitute decision maker, or of the Consent and Capacity Board. The Court reasoned that, in this case, the withdrawal of life support would necessitate the immediate administration of palliative care, in contrast to other situations involving the removal of treatment and future administration of pallitaive care, in which there may be a time gap of indeterminate length, such as the withdrawal of chemotherapy that has failed to benefit a cancer patient. Thus, the Court analyzed the withdrawal of life support and subsequent administration of palliative care as one "treatment package" or one “plan of treatment” under Section 2.1 of Act. Treating physicians must therefore obtain consent to the entire treatment package, either from the substitute decision-maker as per s.21 of the Act, or from the Board, as per s.37.

June 29, 2011
Link to Decision

Webnesh Haile

Prevost v. Ali, 2011 SKCA 50

In Prevost v. Ali, the Saskatchewan Court of Appeal found that internet research done by the patient does not constitute the "outside information" necessary to negate a doctor's disclosure obligation.

The exemption for the disclosure obligation comes from Ferguson v. Hamilton Civic Hospitals, which states that outside information may negate a doctor's duty to disclose if the patient is “properly informed by or from some person or source.” As stated in Ferguson, at the heart of that analysis is the question of whether “the patient is subjected to the procedure, he or she has been properly informed by or from some person or source."

In Prevost, Jackson J.A., writing for a unanimous court, refused to apply this reasoning to a situation where the patient has conducted their own research over the internet, and it is impossible to verify the material researched, the patient’s comprehension of the material, or the material’s influence over the patient’s decision to accept the surgery. The doctor admitted that he never discussed the risks of surgery with the patient. Consequently, Justice Jackson held that the patient was not properly informed as per the Ferguson test and upheld the damage award at trial.

April 20, 2011
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Leo Elias & Liam Oster
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