Gajewski v. Wilkie

[2014] O.J. No. 6026
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The Appellant, Mr. Bartosz Gajewski, was detained at the Centre for Addiction and Mental Health (hereinafter CAMH) in Toronto after he was found to be suffering from a mental disorder at his trial on the charges of assault and attempted kidnapping. After his admission into CAMH, the doctor proposed antipsychotic medication and provided information to the appellant about the same. Although the appellant denied experiencing any delusions, he accepted that he had a false belief at the time of the commission of the offenses and agreed with the diagnosis. After his transfer to a minimum-security unit at CAMH, he came under the care of Dr.Wilkie and till December 2011 he acknowledged suffering from the disorder. However, the medication was not administered owing to high levels of liver enzymes in his
blood. After the liver condition was rectified and the discussion about starting the medication was taken up with the appellant, his view of his condition changed and he refused to consent for the antipsychotic medication. Therefore, in January 2012, Dr. Wilkie, in consultation with another doctor informed the appellant that he was incapable of consenting to the treatment after which he immediately requested for having a hearing before the board.
The board upheld that the appellant was incapable with respect to treatment with antipsychotic medication as the evidence supported the fact that he was unable to understand his condition and was also not in a position to evaluate information concerning the proposed types of medication. They based their conclusion upon sections 10(1) and 4(1) of the Health Care Consent Act, 1996 (hereinafter ‘the Act’). The appellant appealed the board’s decision to a superior court which was dismissed on the ground that there were no reversible errors in the board’s reasoning.
Thereafter the appellant approached the Court of Appeal for the reversal of the decision of the Superior Court, stating that the respondent did not adduce sufficient evidence and that the same was not corroborated. In addition to this, he contended that the timing of Dr. Wilkie’s assessment undermined its credibility. On the other hand, the respondent contended that the patient was incapable to understand the circumstance or take decisions and testified that the medication would diminish the intensity of the appellant’s delusions.
The Court considered the appellant’s contentions on the above-mentioned points according to sections 4(1) and 10(1) of the Act and Section 14 of the Evidence Act.

The Court assessed the case on two major issues, first whether the respondent doctor’s evidence was corroborated and, second whether the finding of incapacity by the board was reasonable. The Court applied the standard of review which was laid down under section 4(1) of the Act. For the first issue, the court relied upon section 14 of the Evidence Act and Anten v. Bhalerao, to state that a doctor’s finding of incapacity should be corroborated and in an appropriate case, it can be corroborated by a patient’s own evidence. The court noted that the appellant’s evidence was consistently inconsistent on key points. It further stated that Dr. Wilkie’s evidence ware supported with documents and Dr.pearce’s (second doctor) opinion. Although according to the precedent laid down in Starson v. Swayze, undue reliability cannot be placed on hearsay evidence, the court held that there was no evidence to suggest that Dr. Pearce’s evidence was unreliable. Therefore, the court concluded that the respondent doctor’s testimony was corroborated by a number of sources.
With respect to the second issue, the court noted that the injection of mind-altering drugs against the will of the patient is offensive to his dignity and can be done only if the patient lacks the capacity to make his own decision and in such a case, the physician has to prove such incapacity (Starson case). The court also noted that in order to determine the second branch of the decision (with respect to proving incapacity), the focus should be given to whether the patient was able to reasonably foresee the consequence of his decision or a lack of one. The fact that the appellant was unable to acknowledge the existence of his condition for which he is recommended medication thoroughly undermines his capacity to evaluate information (Giecewicz v. Hastings ) Considering all the above, the court agreed with the Board’s findings and held that the appellant was unable to apply relevant information to his circumstances and thus was not able to appreciate the consequences of not taking the proposed medication. It held that although the first branch which dealt with the appellant’s rational justification for refusing the treatment is not properly proven by the Board, the same is not an issue as was laid down in Starson. Further, with respect to the issue regarding ineffective assistance of the amicus, the court held that there was nothing in the record which gives rise to such concerns. Consequent to these findings, the court dismissed the appeal with no order as to costs.
2013 ONCA 499
2003 SCC 32, [2003] 1 S.C.R.
2007 ONCA 890, 288 D.L.R. (4th) 587

“In Starson, at para. 115, writing for the majority, Major J. cautioned that although hearsay was admissible before the Board, the Board "must be careful to avoid placing undue emphasis on uncorroborated evidence that lacks sufficient indicia of reliability". There is no evidence here, and the appellant has pointed to none, to suggest that Dr. Pearce's hearsay evidence was lacking in reliability.” Paragraph 40

“As stated by Major J. in Starson, at para. 91, ‘The enforced injection of mind-altering drugs against the respondent's will is highly offensive to his dignity and autonomy, and is to be avoided unless it is demonstrated that he lacked the capacity to make his own decision.’ As Starson illustrates, the Board must take care to ensure, in such a circumstance, that the attending physician has proven
that the patient fails the statutory test for capacity. The test is not whether the treatment is, in the Board's opinion, in the patient's best interests.” Paragraph 45.

“Given my conclusion on the second branch, I do not need to consider whether the Board erred with respect to the first branch of the test. I would note, however, that in both Starson and Giecewicz, the first branch was not at issue because it was accepted that the patients were intelligent and able to process, retain, and understand the relevant information.” Paragraph 54.

Health Care Consent Act, 1996,4(1): Capacity A person is capable with respect to a treatment, admission to or confined in 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, confining or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Health Care Consent Act, 1996, 10(1): No Treatment without consent (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent, or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1). Evidence Act, R.S.O 1990, Section 14: Actions by or against incapable persons, etc. An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party's own evidence unless the evidence is corroborated by some other material evidence: 1. A person who has been found, i. incapable of managing the property under the Substitute Decisions Act, 1992 or under the Mental Health Act, ii. incapable of personal care under the Substitute Decisions Act, 1992, or iii. incapable by a court in Canada or elsewhere. 2. A patient in a psychiatric facility. 3. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence. 2009, c. 33, Sched. 2, s. 32 (1).
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