Focus On

MENTAL INCOMPETENCY - Treatment - Consent

Wednesday, November 15, 2017 @ 8:23 AM  


Lexis Advance® Quicklaw®
Appeal by the physician from an appellate ruling finding a Community Treatment Order (CTO) invalid. The respondent, SS, was a 63-year-old woman diagnosed with paranoid schizophrenia. She had a history of multiple hospitalizations dating back to 2007. In April 2015, the respondent was hospitalized for six days and found incapable of consenting to psychiatric treatment with anti-psychotic medication and a Community Treatment Plan (CTP) that facilitated issuance of the CTO. The appellant was the respondent's monitoring physician. He did not sign the CTP within 72 hours of the treatment of the respondent, instead signing it four days later. The Consent and Capacity Board (Board) found that the respondent was incapable of consenting to treatment. The Board considered the validity of the CTO and found it sufficient that the issuing physician signed the CTP within 72 hours of the examination, even though other participants, including the appellant, signed past the time limit. On appeal, the Superior Court of Justice held that all participants in the CTO were required to sign the CTP within the 72-hour period for it to be valid. The appellant appealed.

HELD: Appeal allowed. The Board's initial decision was reasonable and correct. The Board's decision turned on interpretation of the criteria governing the exercise of discretion to issue a CTO. Under s. 33.1(4) of the Mental Health Act, the focus was on the physician issuing the CTO. The Board correctly interpreted the provision to find that the obligations of other care providers were not included within its scope. The 72-hour requirement was designed to ensure that the physician’s medical findings were fresh when the CTP was entered into by the physician. A requirement that other participants in the CTP sign it within 72 hours did not further that purpose, and had the potential to frustrate it. There was no basis to the respondent's other submissions in favour of finding the CTO invalid.

S.S. v. Kantor, [2017] O.J. No. 5613, Ontario Court of Appeal, K.M. Weiler, K.M. van Rensburg and G. Huscroft JJ.A., October 31, 2017. Digest No. TLD-November132017006