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REVIEW BOARDS - Orders - Dispositions - Detention in custody in hospital

Friday, February 16, 2018 @ 8:36 AM  


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Appeals by Ohenhen and Kalra from the detention orders with community privileges imposed on them by the Ontario Review Board. Both appellants had improved with medication and treatment. There was concern that they would stop treatment if released. Both appellants had been found incapable of consenting to treatment under the Health Care Consent Act. Neither had the capacity to consent to the relevant treatment, primarily because each lacked insight into his medical condition. Instead, both appellants had substitute decision-makers who had been consenting to the relevant medical treatments, and who were willing to continue to do so. At issue was whether an accused who had been found not criminally responsible on account of a mental disorder and incapable of consenting to his own treatment under the Health Care Consent Act, could fulfill the consent requirement for the condition regarding psychiatric or other treatment under s. 672.55(1) of the Criminal Code.

HELD: Appeals allowed. The appellants were capable of fulfilling the s. 672.55(1) consent requirement. A Board could include a condition regarding psychiatric or other treatment as part of a disposition under s. 672.54 of the Criminal Code when the accused had been found incapable under the relevant provincial legislation of consenting to the treatment referenced by the condition. An accused could be able to consent to the condition even if unable to consent to the treatment referred to within that condition. To consent to the condition, the accused must understand all information relevant to the operation of the condition and appreciate the reasonably foreseeable consequences of agreeing to the condition. The nature of the s. 672.55(1) condition suggested that an accused would not require the same level of capacity to consent to the condition as they would to consent to the treatment plan referred to by the condition. By leaving the standard for capacity to consent to the condition unstated in s. 672.55(1), Parliament intended for a general standard to apply, meaning that capacity would be assessed according to the nature of the specific condition regarding treatment. The capacity required to consent to a s. 672.55(1) condition differed from that required to consent to the treatment referred to by that condition. A person who lacked capacity to consent to treatment did not necessarily lack the capacity to consent to the s. 672.55(1) condition.

Ohenhen (Re), [2018] O.J. No. 392, Ontario Court of Appeal, D. Watt, M.H. Tulloch, G.I. Pardu, M.L. Benotto and L.B. Roberts JJ.A., January 26, 2018. Digest No. TLD-Feb122018010