Page 1

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Case Name:

Armstrong v. Coleman
AND IN THE MATTER OF an appeal from a
decision of the Consent and Capacity
Board Pursuant to the Health Care Consent
Act, 1996 S.O. 1996, chapter 2,
schedule A, as amended
AND IN THE MATTER OF Luke Armstrong a
patient at the Ontario Shores Centre
for Mental Health Sciences Whitby, Ontario
Between
Luke Armstrong, Appellant, and
Dr. Elizabeth Coleman, Respondent
[2015] O.J. No. 2480
2015 ONSC 2919
Court File No.: CV-14-515305
Ontario Superior Court of Justice
B.T. Glustein J.
Heard: May 4, 2015.
Judgment: May 12, 2015.
(97 paras.)
Counsel:
Anita Szigeti, for the Appellant.
Melanie De Wit, for the Respondent.

ENDORSEMENT
1

MASTER B.T. GLUSTEIN:--

Page 3

Nature of appeal and overview

1 The appellant, Luke Armstrong ("Armstrong"), appeals from the decision of the Consent and
Capacity Board (the "Board"), dated October 27, 2014, with reasons, dated November 12, 2014 (the
"Reasons"), that Armstrong was incapable of consenting to treatment with respect to antipsychotic
medication (oral and intramuscular) under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch.
A (the "Act").
2 The respondent, Dr. Elizabeth Coleman ("Dr. Coleman"), has been Armstrong's attending
psychiatrist since his admission to Ontario Shores Centre for Mental Health Sciences ("Ontario
Shores"). On September 3, 2014, Dr. Coleman found Armstrong incapable of consenting to
treatment with antipsychotic medication. Armstrong requested a Board hearing to review Dr.
Coleman's decision.
3 For the reasons that follow, I dismiss the appeal. The Board's decision was among the range of
conclusions that could reasonably have been reached on the law and evidence.
Facts
1)

Background

4 In November 2010, Armstrong was found not criminally responsible of a second degree murder
charge relating to the stabbing death of his mother in April 2010 (the "index offence"). He has been
detained on a secure forensic unit at Ontario Shores since January 2013 after he was transferred
from Waypoint Centre for Mental Health ("Waypoint"). Armstrong will remain under the
jurisdiction of the Ontario Review Board ("ORB") until such time as he no longer poses a
significant risk to the safety of the public and receives an absolute discharge from the ORB.
1b)
5

Evidence before the Board

I summarize the evidence before the Board.

1

i) Review of evidence from index offence until admission at Ontario

Shores

6 After the index offence, and prior to his arrival at Ontario Shores in January 2013, Armstrong
was assessed by several psychiatrists. His initial diagnosis was "Psychosis Not Otherwise
Specified" and was later changed to drug-induced (also referred to as "substance-induced" or
"cannabis-induced") psychosis.
7 During his initial assessment period at Waypoint (formerly known as Oak Ridge), Armstrong
received a series of ten intramuscular injections of antipsychotic medication for "detain and
restrain" purposes.
8 Before his discharge to Maplehurst Detention Centre on July 20, 2010 (where he stayed until
December 2010), Armstrong was not receiving antipsychotic medication. He received a very low
dose of antipsychotic medication (which Armstrong's counsel describes as "akin to a sleeping aid")
at the detention centre, but the order was discontinued in November 2010 as it was most often
refused.
9 No psychiatric medications were prescribed for Armstrong at Waypoint after his return from
jail, during his two years following his return from jail, nor upon discharge to Ontario Shores. On

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discharge from Waypoint, his diagnosis was that "his presentation seemed most consistent with a
drug-induced psychosis, as opposed to a primary psychotic disorder".
2

ii) Dr. Coleman's evidence before the Board about Armstrong's mental
condition at Ontario Shores

10 Upon admission to Ontario Shores, Armstrong was not receiving any medication since the
transfer information was that he was capable of consenting to treatment.
11

Dr. Coleman has treated Armstrong since his admission to Ontario Shores in January 2013.

12 Dr. Coleman gave the following evidence that Armstrong still exhibits psychotic symptoms.
Dr. Coleman's evidence was that:
1i)

Morgan "does have a lot of beliefs regarding conspiracy theories and unusual
connections which means businesses controlling monetary value of the public,
but whenever we try to explore these in depth, he just refers me to research the
knowledge that he knows rather than having a discussion about it, and tells me,
'We can't have a discussion until you do the research that I've done' [and] it's very
difficult for me to explore that to the point of understanding if they're fixed
delusions, because he won't allow me to go down that road";

1ii)

"He's concealed a number of things on the unit which could be considered

dangerous such as lighters";

1iii) Armstrong believes that "there was a document that he saw that triggered his
psychosis and that that was the cause [of the index offence], and he doesn't
accept that he was likely psychotic in the lead up to that experience and the
interpretation of what he saw";
1iv) Armstrong "suggested that if he doesn't see that document again, he wouldn't
become ill again";
1v)

Armstrong has been "aggressive to staff when they ... check on him, and verbally
abusive at those times";

1vi) While his continuing illness was not evident at times, at times it was more
evident to caregivers;
1vii) In prior group therapy, Armstrong was "disruptive or argumentative or disregards
or just doesn't go";
1viii) Armstrong "twice concealed an internet stick on the unit which he knows is
against policy";
1ix) "Sometimes he has quite a fatuous affect and he will ... behave in a way that
appears disinhibited, have a bit of an elated affect at those times. His thought
form is not as coherent as it is at other times";

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1x)

He is "extremely guarded and refuses to allow myself or any other member of the
team to really explore his mental state to any extent";

1xi) Armstrong continues to have psychotic symptoms, but when Dr. Coleman seeks
to explore those issues with Armstrong, "he will answer a question with a
question, he will defer the subject, he will suggest I go and research the topic, but
he won't answer my questions directly";
1xii) "Similarly, when we try to explore the index offence and the symptoms at depth,
he is guarded, he will defer from answering questions, he'll change the topic or
say he has nothing else to say on the matter. So it's incredibly difficult to explore
what I suspect are ongoing psychotic symptoms";
1xiii) Armstrong was guarded before being told of Dr. Coleman's decision that he was
incapable of consenting to his treatment;
1xiv) "[T]here's guardedness about issues around conspiracy theories and some odd
ideas that the teams are unable to explore in depth";
1xv) "There are concerns he may have ongoing or fluctuant psychotic symptoms at
times, that he's able to keep under the obvious radar because of his ability to
recognize that when we're asking about those, we're looking to explore the
degree of those beliefs and whether they're delusional or not. He often shuts
down and will not let us explore that";
1xvi) Armstrong has beliefs about conspiracies;
1xvii)

The discussions of conspiracy theories predate Dr. Coleman's decision of

incapacity for consent to treatment with antipsychotic medication;

(xviii) He has "delusional ideas that he believes are true rather than delusions";
and,

1xix) Armstrong has been "reviewing sites about conspiracy theories that would, to
me, suggest that there have been relations to [those] themes and his
preoccupation with those themes".
3

iii) Dr. Coleman's evidence before the Board about her decision that
Armstrong did not have capacity to consent to treatment with
antipsychotic medication

13 Upon his admission to Ontario Shores and up to the June 2014 ORB hearing, Dr. Coleman's
diagnosis was that Armstrong had substance-induced psychosis.
14 During the course of her treatment, Dr. Coleman questioned Armstrong's "capacity with
regards to consenting to treatment and an understanding of his illness and the possible consequences

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of a decision to take treatment and not to take treatment".

15 Dr. Coleman's evidence was that she had considered whether that diagnosis was accurate
before the ORB hearing, given that the conduct described at paragraph 12 above continued to exist
without any substance-induced cause.
16 Dr. Coleman's evidence was that "sometimes these diagnoses change with time and with
physician and with treatment team on the review of the information". Her evidence was that:
3

17

As we got to know Mr. Armstrong better and slowly with time, it's been a
fluctuating issue that's come up on a regular basis as to whether Mr. Armstrong
has capacity with regards to consenting to treatment and an understanding of his
illness and the possible consequences of a decision to take treatment and not to
take treatment.

Dr. Coleman stated that her decision was:

4

...also based on the fact that he has ongoing subtle symptoms that I think are also
psychotic in nature and they have been through the record, over time. He's also
shown lability of mood, some unusual thoughts. He's also had some thought
disorder symptoms that have waxed and waned. He's described odd comments
and unusual ideas that haven't been able to be fully explored, and that's been a
flavour throughout time, subsequent to that period when he was floridly
psychotic, and I think that adds to the diagnosis. I don't think that it's only, solely
based on the short period of time after the index offence.

18 At the ORB hearing, the panel questioned Dr. Coleman about why her diagnosis remained
substance-induced psychosis. Dr. Coleman's evidence was that:
5

Following his most recent Ontario Review Board this summer, discussion was
raised reviewing his diagnosis. Often diagnoses change with time in individuals
who have mental health difficulties, because only in retrospect can you apply
certain criteria for diagnoses.

During that hearing, it became clear that Mr. Armstrong actually met the criteria
for a diagnosis of schizophrenia rather than drug-induced psychosis. That was
some of the discussion held at the Ontario Review Board. As well, the discussion
of capacity was raised. It was clearly documented that over time, he didn't
recognize that he suffered from a primary psychotic illness that is recurrent.

So following this Review Board, we again endeavoured on the short period of

education with Mr. Armstrong, to no avail, and eventually I ... had a meeting with
him on the 3rd of September, which I went through the criteria very clearly and
at length, and found him incapable of consenting to treatment.

19 After the ORB hearing, Dr. Coleman decided that Armstrong was incapable of consenting to
treatment. Her evidence was that she was concerned that if Armstrong had "less structure" outside
Ontario Shores then "he may become more openly and floridly psychotic to the point where his risk
would increase so that he would engage in violence again".

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20 At Dr. Coleman's meeting with Armstrong on September 3, 2014, she "went through with
him ... the reasons for the diagnosis, the clinical documents that suggest the support for that
diagnosis, the nature of the diagnosis and why we felt that was the most appropriate diagnosis and
why there was more evidence. The reasons why we didn't agree with the initial diagnosis of a druginduced psychosis, I also explained to Mr. Armstrong".
21 Dr. Coleman's proposed treatment (as she stated to the Board) was "antipsychotic medication
in either an oral or injection form".
22 Dr. Coleman met with Armstrong to review the decision and "talked about a number of
benefits I thought Mr. Armstrong would have with the treatment" since "he would become more
open, and then as a result his insight would improve because he would recognize that change. We'd
then be able to work towards a relapse prevention plan and he would be more engaged with the
treatment team" and "the [reduction of] risk of relapse or significant worsening in symptoms is ... of
huge benefit to Mr. Armstrong and his progress forward".
23

Dr. Coleman added that with treatment:

2i)

I think there would be a lessening of his guardedness in response to his

engagement with the treatment team;

2ii)

he would become less fixed in his views about conspiracy theories and I think
that would show an improvement in his delusional ideas [which would] hopefully
show him some insight into the nature of his psychotic symptoms;

2iii) I think he would then engage more meaningfully with the team and his
rehabilitation, which he's not engaged in thus far; and,
2iv) very importantly, it would reduce the risk of relapse of his psychotic illness,
which is associated with a reduction in his risk of harm to others ... his risk will
only be managed in a competent way with treatment with antipsychotic
medication and only in this way can we manage the risk he poses to the
community and safely progress him through the system.
24 At the September 3rd meeting in which Dr. Coleman advised Armstrong of her decision and
the proposed treatment, Dr. Coleman's evidence was that the benefits and risks of treatment were
fully discussed. She said that Armstrong understood the information about the treatment but was not
capable of applying that information to himself:
8

We then went through, at length, the various benefits of treatment and risks,
further to support that. He met with the unit pharmacist, who also engaged with
him on a one-to-one basis to discuss the risks and benefits of treatment and we
further provided him with written material to supplement that information and
education. Despite all of this, he still remained incapable to consent to treatment.

So Mr. Armstrong is able to understand the information provided to him. He can

recognize that another individual who he believes might suffer from
schizophrenia would benefit from treatment with antipsychotic medication, but

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he does not apply that information to himself. He doesn't accept the diagnosis. So
he's able to understand the benefits, but he doesn't apply them to himself.
25 Dr. Coleman gave further evidence of the necessity for treatment, and her decision that
Armstrong could not apply the information he understands about the treatment to himself. Dr.
Coleman's evidence was that:
10

And therefore it's my view that only with treatment can we manage that risk. I've
had a lot of discussions with Mr. Armstrong over his time here and I've tried to
increase Mr. Armstrong's capacity to ... understand his illness and the ...
implications on decisions to treat or not to treat.

11

And I feel that although he ... is able to understand the information as it stands,
he is able to talk about other people with schizophrenia, but the main struggle is
applying it to himself and appreciating the nature of the benefits and
consequences if he were to take treatment or not take treatment.

12

... [Armstrong] doesn't recognize that he, himself, is at risk of becoming

psychotic based on his history and his diagnosis.

26 Dr. Coleman's evidence is that Armstrong is "unable to accept the risk associated with his
illness" as "he doesn't accept that he is at risk of becoming floridly psychotic again without
treatment" and "he doesn't accept that he is at risk to others if he is to become floridly psychotic
again".
27 When asked "what is it that gets in the way of his ability to apply the information to himself",
Dr. Coleman's evidence was that:
13

Mr. Armstrong has no insight into the nature of his illness. ... He refutes the
possibility that he suffers from a primary psychotic illness. He only thinks ...
[t]he only reason [he] became ill was because he used cannabis, in his view, and
he doesn't feel he's ever at risk of suffering a relapse.
4

iv) Armstrong's evidence at the hearing

28 Armstrong was frequently asked on cross-examination and by the Board whether he accepted
that he suffered from any symptoms of mental illness. He repeatedly denied having any such
symptoms.
29 On the first occasion, when asked "do you suffer from any symptoms of mental illness
today?", Armstrong said, "I don't believe so", and answered, "yes", when asked, "So you disagree
with Dr. Coleman in that regard?"
30 On the second occasion on cross-examination, Armstrong did not agree that he has symptoms
of paranoia when asked "[Dr. Coleman] said that you continue to have symptoms of paranoia. Do
you disagree with that?" Armstrong answered, "I wouldn't say paranoia. It's nothing like what I had
when I was first psychotic. I mean, that was something ... completely different" and "I experienced
nothing within this hospital that I first experienced when I was originally psychotic".
31

On the third occasion in cross-examination, Armstrong said "no" when asked directly "But

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you have no symptoms of mental illness today?"

32 On the fourth occasion, Armstrong had responded "sure" in response to the re-examination
question of "Is it possible that you're wrong and the doctor's right, and you're experiencing some
symptoms of some mental health condition that's affecting your behaviour? Is it possible?"
33 On a follow-up question to that re-examination question, the Chair asked "Mr. Armstrong,
help me understand. It's possible. Do you believe that that is the case?" Armstrong responded "No".
34 Armstrong acknowledged that he had symptoms of psychosis when he reacted to sodium
iodine as part of a CT scan in July 2014. He said that the first thing he did was "I talked to my ...
dad's girlfriend and you know, she just told me to ... relax. And it was about one a.m., so I passed
right out and then I woke up and I had no more symptoms of ... psychosis after that".
35 Armstrong said that his reaction to the CT scan was a concern to him that "this psychosis
might be on the way back". He was upset when the treatment team said that they would monitor
him more closely and he saw it as a "punishment".
36 Armstrong's evidence was that when he took olanzapine earlier, it might have been beneficial
"because I ... was psychotic at that time".
The Decision
37 The Board found that Armstrong did not have capacity to consent to treatment with
antipsychotic medication. The Board found that while Armstrong was able to understand the
information relevant to make a decision about the treatment, he was unable to appreciate the
reasonably foreseeable consequences of a decision or lack of decision about the treatment.
38

The Board found (Reasons, at pp. 11-13):

14

On a review of all the evidence the panel found that LA suffers from a mental
disorder or condition as that term is used in Starson. The panel accepted the
evidence of Dr. Coleman that LA suffers from schizophrenia. The symptoms that
treatment providers have observed convinced the panel that LA suffers from a
mental condition. We found that LA has been in a structured environment, has
not tested positive for illicit drugs during the past four hears [sic] of
hospitalization but continues to manifest psychotic symptoms and delusional
beliefs. Although LA firmly believes that illicit drugs, and a document, with the
words 'Federal Reserve' in its title, triggered his violent psychotic behavior, he
has ignored paranoid thoughts that have emerged since he has been drug free. His
guarded behaviour, labile mood, paranoid fears and delusional response to
sodium iodine are symptoms of a chronic mental condition which was managed,
previously, with antipsychotic medications, primarily olanzapine.

15

This evidence clearly demonstrated that LA lacks insight into his condition. First,
he refused to acknowledge that his behaviours were symptoms of a mental illness
or condition. ...

16

His insistence that he once suffered drug induced psychosis but is no longer at
risk because he is drug free, ignores the fact that despite being drug free for

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several years, he still harbours delusionary beliefs, paranoid fears, and labile
mood. These are symptoms of a mental disorder that he refuses to acknowledge
as a mental illness, or 'condition' as that term is used in Starson. His answers to
questions indicate that he does not understand the foreseeable risks of a relapse
and the violent behaviour that could result. He stated that if his delusions
returned he would run to the doctor for help. However, when his delusions
returned in July 2014, his first actions did not involve running to the doctor and
consulting his treatment team. When he consulted them and they informed him
that they would monitor him, he understood their response (to monitor the
situation) to be a form of punishment.
17

LA remains firm in his belief that his behaviours are not symptoms of any mental
disorder or condition that requires treatment. The delusional content to his beliefs
have not been explored because he won't discuss them. We found that because he
denies the symptoms of a mental disorder, is unable to recognize the possibility
that he is affected by that condition, he cannot apply the information he has
gathered to his own situation. While he freely acknowledged the benefits of
treatment to others, he thought it silly to consider it in relation to his own
situation because he believed that he did not suffer any symptoms of a mental
disorder. He stated that any benefits of treatment would be for the treatment
team. He saw nothing in it for him.

18

We conclude that LA is unable to apply the relevant information about his

disorder and the treatment to his circumstances. He lacks both an appreciation of
the benefits and an appreciation of the risks. We found that his inability to
appreciate the risks and benefits are the result of his disorder. Since he is unable
to weigh the foreseeable risks and benefits of a decision to accept or reject
treatment, we found that LA is incapable of consenting to treatment of a mental
disorder. Accordingly, we confirmed Dr. Coleman's finding that he is incapable
of consenting to treatment.

19

For the foregoing reasons, the panel unanimously found that at the time of the
hearing LA was incapable of consenting to treatment with anti-psychotic
medications.

20

[Emphasis in original]

2)

The applicable law

Analysis

1)
39

The relevant legislation

Section 10(1) of the Act provides:

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21

40

10(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,
1)

he or she is of the opinion that the person is capable with respect to

the treatment, and the person has given consent; or,

1)

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.

Section 4 of the Act defines capacity:

22

4(1) 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.
1i)

The standard of review

41 The standard of review for questions of law is correctness. For questions of mixed fact and
law (i.e., the application of the law to the facts before it), or questions of fact alone, the standard of
review is reasonableness (Masih v. Siekierski, 2015 ONSC 2877 (SCJ) ("Masih"), at para. 20, citing
Starson v. Swayze, 2003 SCC 32 ("Starson"), at para. 5).
42 The test for reasonableness does not require the reviewing court to agree with the decision of
the administrative board. In Starson, McLachlin C.J. (dissenting, but not on this point) held that "the
Board's conclusion must be upheld provided it was among the range of conclusions that could
reasonably have been reached on the law and evidence", and "the fact that the reviewing court
would have come to a different conclusion does not suffice to set aside the Board's conclusion" (see
Starson, at para. 5; and, Wright v. Coleman, 2015 ONSC 2744 (SCJ) ("Wright"), at para. 9).
43 McLachlin C.J. also adopted the language of Binnie J., in R. v. Owen, 2003 SCC 33, at para.
33, that "If the Board's decision is such that it could reasonably be the subject of disagreement
among Board members properly informed of the facts and instructed on the applicable law, the court
should in general decline to intervene" (Starson, at para. 5).
44 The concept of reasonableness is a "deferential standard" which allows an administrative
tribunal to have "a margin of appreciation within the range of acceptable and rational solutions."
The inquiry is into whether "the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law." If so, the decision is reasonable (Dunsmuir
v. New Brunswick, 2008 SCC 9 ("Dunsmuir"), at para. 55, as summarized in Wright, at para. 10).
45 Deference is owed to the decision-makers at the tribunal level, particularly those that make up
a tribunal of specialized experts (Dunsmuir, at para. 47).
46 A decision is unreasonable only if there is no tenable line of analysis within the reasons that
could reasonably lead the tribunal to a decision based on the evidence before it. The reasons are to
be taken as a whole. A reviewing court may not focus on one mistake or element of the decision that

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does not impact upon the decision as a whole, but rather, through a somewhat probing examination,
look to see whether any reasons support the decision (Law Society of New Brunswick v. Ryan,
[2003] 1 SCR 247 ("Ryan"), at paras. 47-48, 55-56).
47 The Board is a specialized expert tribunal, which is entitled to deference on matters within its
expertise, including determinations of capacity issues. The Board has heard the evidence and is in a
better position to assess the credibility of witnesses and make a finding on a question of fact (I.T. v.
L.L. (1999), 46 OR (3d) 284 (CA), at paras. 19-21).
5

iii) The test for capacity

48 Section 4 of the Act sets out a two-part test for capacity to consent to treatment. A person must
both be able to (i) understand the information that is relevant to making a decision, and (ii)
appreciate the reasonably foreseeable consequences of a decision or lack of decision.
49 A person is presumed capable with respect to treatment. Capacity can fluctuate over time, but
the relevant time is the time of the hearing (Masih, at para. 23, citing Starson, at para. 118).
50 The second branch of the test for capacity -- the ability to appreciate the reasonably
foreseeable consequences of a decision or lack of decision in respect of treatment -- is not met if
the person cannot apply the information about the proposed treatment to his or her own situation
(Masih, at para. 23, citing Khan v. St. Thomas Psychiatric Hospital (1992), 7 OR (3d) 303 (CA), at
314-15).
51 The patient is not required to accept the diagnosis, but must be able to acknowledge that he is
affected by a mental condition. Consequently, it is appropriate for a Board to consider whether the
patient appreciates that he or she is affected by the manifestations of a mental condition (Masih, at
para. 24, citing Starson, at para. 79).
52 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 (Starson, at para. 79).
53 A focus on "condition" refers to the broader manifestations of the illness rather than the
existence of a discrete diagnosable pathology. The patient must be able to understand the
objectively discernible manifestations of the illness rather than the interpretation that is made of
these manifestations (Starson, at para. 79).
1)

Application of the law to the present appeal

54 In the present case, there was no dispute before the Board that the first branch of the test for
capacity for treatment is met. Armstrong understands the information that is relevant to him making
a treatment decision.
55 The issue before the Board was the second branch of the test for capacity for treatment -- was
Armstrong able to appreciate the reasonably foreseeable consequences of a decision or lack of
decision?
56

Armstrong raises several grounds of appeal. Armstrong submits:

3i)

the Board required Armstrong to agree with Dr. Coleman's "specific and newly
revised diagnosis of schizophrenia";

Page 13

3ii)

the Board required Armstrong to agree that he "was necessarily psychotic at the
time of the hearing";

3iii) the Board required Armstrong to agree "that anti-psychotic medication would
benefit him more than it may harm him";
3iv) the Board failed to find that the incapacity decision of Dr. Coleman was
improperly influenced by the ORB as it constituted a major change in diagnosis
from the index offence;
2v)

the Board had no evidence before it about antipsychotic medication to be

administered by injection (also referred to as "intramuscular"), so it erred by
finding incapacity for such treatment or alternatively, the matter should be
returned to the Board with respect to administration of antipsychotic medication
by injection; and

2vi) The Reasons "are insufficient to meet [the Board's] legal obligation to provide
written reasons as to why and how it arrived at its decision to confirm the finding
of incapacity".
57

I address each of these issues below.

6

i) Ground 1: Did the Board misapply the legal test for capacity?

58 The first ground (set out at subparagraphs 56 (i) and (ii) above) is based on the submissions of
Armstrong that the Board misapplied the legal test for capacity by requiring Armstrong to agree (i)
with Dr. Coleman's "specific and newly revised diagnosis of schizophrenia", and (ii) that Armstrong
"was necessarily psychotic at the time of the hearing". I do not agree that the Board misapplied the
legal test for capacity.
59 As in Masih, "the Board asked the right question and articulated the correct legal test". "The
Board focused on ability, and accepted the respondent's evidence that the appellant could not
appreciate the consequences of a decision about treatment" (Masih, at para. 35).
60 Finally, as in Masih, "the Board found that the appellant's lack of insight prevented him from
recognizing his behaviours as being symptoms or manifestations of a mental disorder and from
being able to apply information about treatment to his own condition. The Board's decision was
amply supported by the evidence" (Masih, at para. 37).
61 The Board only required that Armstrong agree that he was affected by the manifestations of a
mental condition at the time of the hearing. Consequently, the Board applied the proper test.
62 The Board applied the Starson test and held that Armstrong did not recognize that he was
affected by the manifestations of a mental condition. The Board held (Reasons, at pp. 12-13:
23

His insistence that he once suffered drug induced psychosis but is no longer at
risk because he is drug free, ignores the fact that despite being drug free for
several years, he still harbours delusionary beliefs, paranoid fears, and labile

Page 14

mood. These are symptoms of a mental disorder that he refuses to

acknowledge as a mental illness, or 'condition' as that term is used in
Starson. His answers to questions indicate that he does not understand the
foreseeable risks of a relapse and the violent behaviour that could result. ...
24

LA remains firm in his belief that his behaviours are not symptoms of any
mental disorder or condition that requires treatment. The delusional content
to his beliefs have not been explored because he won't discuss them. We found
that because he denies the symptoms of a mental disorder, is unable to
recognize the possibility that he is affected by that condition, he cannot
apply the information he has gathered to his own situation. While he freely
acknowledged the benefits of treatment to others, he thought it silly to
consider it in relation to his own situation because he believed that he did
not suffer any symptoms of a mental disorder. He stated that any benefits of
treatment would be for the treatment team. He saw nothing in it for him.

25

We conclude that LA is unable to apply the relevant information about his

disorder and the treatment to his circumstances. He lacks both an
appreciation of the benefits and an appreciation of the risks. We found that
his inability to appreciate the risks and benefits are the result of his disorder.
Since he is unable to weigh the foreseeable risks and benefits of a decision to
accept or reject treatment, we found that LA is incapable of consenting to
treatment of a mental disorder. Accordingly, we confirmed Dr. Coleman's
finding that he is incapable of consenting to treatment.

26

[Emphasis added.]

63 Armstrong's counsel sought to rely on Armstrong's "sure" response on re-examination when

Armstrong was asked if it was possible he was "experiencing some symptoms of some mental
health condition that's affecting your behaviour". However, the Board was entitled to consider
Armstrong's response to the re-examination question in light of all the evidence on crossexamination (and on examination by the Board) that Armstrong denied having any such symptoms.
64 The proper legal test is whether a person can recognize that he or she is affected by the
manifestations of his or her condition. There was evidence on which a reasonable Board, having
heard the evidence and assessed credibility, could decide that Armstrong was not able to recognize
that he was affected by the manifestations. The Board was not required to accept a "sure" answer to
a general question about a "possibility" when Armstrong had on several occasions denied having
any such symptoms.
65 Further, Armstrong's counsel points to numerous answers to her questions at the hearing as
evidence that the Board's factual findings were unreasonable. The list of evidence upon which
counsel seeks to rely is extensive. However, the issue is not whether a different board may have
reached a different conclusion, or that a particular factual finding of the Board cannot be supported
or would not justify a finding of incapacity.
66 A decision is unreasonable only if there is no line of analysis within the reasons that could
reasonably lead the tribunal to a decision based on the evidence before it. A reviewing court may

Page 15

not focus on one mistake or element of the decision that does not impact upon the decision as a
whole, but rather, through a somewhat probing examination, look to see whether any reasons
support the decision. The reasons are to be taken as a whole (Ryan, at paras. 47-48, 55-56).
67 In the present appeal, the reasons taken as a whole demonstrate a "line of analysis within the
reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at
which it arrived" (Ryan, at para. 55). Armstrong's evidence, considered with Dr. Coleman's
evidence, permitted the Board to reasonably conclude that Armstrong was incapable of consenting
to treatment with antipsychotic medication because he could not apply the foreseeable
consequences to himself.
68 The Board was not requiring Armstrong to accept his diagnosis of schizophrenia or to accept
that he was necessarily psychotic at the time of the hearing. The Board was determining whether
Armstrong understood the objectively discernible manifestations of his condition rather than the
interpretation (Starson, at para. 79), and there was evidence for the Board to conclude that
Armstrong did not have such an understanding.
69 Dr. Coleman addressed the issue of whether Armstrong could "apply the benefits to himself"
since he recognizes the benefits for others "but does not apply that information to himself". The
Board had evidence from Dr. Coleman that "the main struggle is applying it to himself and
appreciating the nature of the benefits and consequences if he were to take treatment or not take
treatment", and that Armstrong was "unable to accept the risk associated with his illness" as "he
doesn't accept that he is at risk of becoming floridly psychotic again without treatment" and "he
doesn't accept that he is at risk to others if he is to become floridly psychotic again". The Board was
able to accept that evidence particularly in light of Armstrong's repeated statements that he did not
have any symptoms.
70 Dr. Coleman fairly stated that Armstrong did not agree with her diagnosis, but she was not
leading evidence to have the Board require that Armstrong accept her diagnosis or accept that he
was necessarily psychotic at the time of the hearing. The Board considered the proper legal test, i.e.,
whether Armstrong could understand the objective manifestations of his symptoms. The Board
found that he could not do so, based on evidence from Dr. Coleman and Armstrong. Consequently,
there was evidence upon which a reasonable Board could arrive at that decision.
7
71

ii) Ground 2: The Board did not require Armstrong to accept that
antipsychotic drugs would benefit him more than hurt him

This analysis addresses the ground raised at subparagraph 56 (iii) above.

72 There was evidence before the Board that Dr. Coleman discussed the risks and benefits of the
treatment decision with Armstrong. Such a process is consistent with the Starson approach that "in
practice, the determination of capacity should begin with an inquiry into the patient's actual
appreciation of the parameters of the decision being made" (Starson, at para. 80).
73 However, the Board did not require Armstrong to accept that antipsychotic medication would
benefit him more than hurt him. The Board does not make treatment decisions. It only decides the
issue of capacity for treatment, which is a process that starts with an explanation of the treatment
but does not require a decision by the Board as to the best method of implementing the treatment.
74

I accept the following argument as stated in the respondent's factum:

Page 16

27

[T]he Board does not make treatment decisions. Ultimately, it is the capable
patient or the substitute decision-maker of an incapable patient who weighs the
risks and benefits of a specific medication, and consents to, or refuses to consent
to treatment. The side effect profile of a specific proposed medication is a
relevant and often important consideration for the patient or substitute decisionmaker in making a treatment decision. The Board is not called upon to weigh the
side effect profile of a proposed treatment against the benefits of that
treatment. ... The Board's statutory role was limited to reviewing Dr. Coleman's
finding of incapacity to consent to antipsychotic treatment, and it was Mr.
Armstrong's father, the substitute decision-maker, who would be called upon to
make specific treatment decisions if Mr. Armstrong was incapable.

75 It is a capable patient or substitute decision-maker who must make the decision as to whether
antipsychotic medication would cause more benefit than harm. That decision requires the capacity
of the patient or, if incapable, the substitute decision-maker. The Board in the present appeal did not
impose any treatment, nor did it require Armstrong (or any substitute decision-maker if he is not
capable) to accept any particular treatment after considering the benefits and risks.
8
76

iii) Ground 3: Undue influence by the ORB

This analysis addresses the ground raised at subparagraph 56 (iv) above.

77 The issue on appeal is whether there was evidence upon which a reasonable Board could find
that Dr. Coleman was not improperly influenced by the questions of the ORB who reviewed Dr.
Coleman's diagnosis at the June 2014 hearing.
78 There was such evidence and, as such, there was a tenable line of analysis that could lead the
Board to find that there was no improper influence by the ORB.
79 Dr. Coleman testified that she considered revising her diagnosis and reassessing Armstrong's
capacity based on his ongoing symptoms of paranoia, guardedness and labile mood, but that the
clinical team had first attempted to educate and engage Armstrong to permit a collaborative
approach to treatment. Dr. Coleman's evidence was that during the course of that treatment, she
questioned Armstrong's capacity with regards to consenting and understanding his illness and the
possible consequences of a decision to take treatment and not to take treatment. It was "a fluctuating
issue that's come up on a regular basis".
80 Dr. Coleman fairly acknowledged that she again considered the issue after the ORB hearing,
when the panel members questioned her as to why her diagnosis remained as substance-induced
psychosis when Armstrong continued to demonstrate features of a primary psychotic illness. I agree
with Dr. Coleman's submission in her factum that:
28

This was entirely appropriate. The ORB's statutory mandate requires it to form an
independent opinion about the accused's treatment plan and progress. Where
there is a treatment impasse, the [ORB] must impose conditions to deal with the
lack of progress and seek out more effective remedies and explore alternatives as
necessary.

Page 17

29

(See also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric

Services), 2006 SCC 7.)

81 The Board referred to Armstrong's submission before it that "LA expressed the belief that Dr.
Coleman was pressured to change her diagnosis as a result of the ORB hearing and cited the interval
between the hearing and of the diagnosis of schizophrenia". The Board found Dr. Coleman's
evidence to be credible.
82 Consequently, there was evidence upon which a reasonable Board could have made its
decision.
9
83

iv) Ground 4: Consent to capacity for treatment by intramuscular

antipsychotic medication

This analysis addresses the ground raised at subparagraph 56(v) above.

84 Armstrong submitted that this court should either set aside the finding of incapacity for
consent to treatment by intramuscular (injection) antipsychotic medication or, at a minimum, adopt
the approach in Masih and send the matter back to the Board for determination on capacity to
consent to treatment by intramuscular antipsychotic medication. Armstrong submits the Board
"gratuitously add[ed] injectable medications to the category of anti-psychotics to be administered". I
do not agree.
85 At the hearing, Armstrong sought to rely on Masih, in which Matheson J. found that the Board
had properly applied the Starson test to the second requirement for capacity, and that "[t]he Board's
decision was amply supported by the evidence, with one exception regarding benzodiazepines"
(Masih, at para. 37).
86 In Masih, Matheson J. returned the matter of treatment with benzodiazepines to the Board,
since there was a "dearth of evidence" as to any discussion about that treatment, which Matheson J.
described as a "primary treatment" (Masih, at paras. 39-41 and 51(2)).
87 However, in Masih, Matheson J. considered the capacity for treatment of various classes of
"primary treatments" reviewed by the Board, not the proposed manner of administering those
primary treatments. Those "primary treatments" were: antipsychotic medication, mood stabilizing
medication, benzodiazepines and related side effect medication and lab tests. These were all
"primary treatments" which were the subject of the Board's decision of the patient's capacity to
consent to treatment (Masih, at paras. 38-40).
88 Matheson J. held that there was a "dearth of evidence" about the "primary treatment" of
benzodiazepines since there was no evidence as to the substance of the discussions about the risks
and benefits and no evidence about the actual benefits and risks and expected consequences of that
particular primary treatment (Masih, at paras. 39-40). Matheson J. held that "[s]ome evidence of the
benefits and risks and expected consequences is required" (Masih, at para. 39, citing Anten v.
Bhalerao, 2013 ONCA 499 ("Anten"), at para. 23).
89 However, the distinction between Masih is that in the present case, the "primary treatment" for
which capacity is at issue is antipsychotic medication (also considered as a "primary treatment"
category by Matheson J., in Masih, at para. 38). There was evidence in the present case that the
risks and benefits of the use of antipsychotic medication, as a proposed treatment, were discussed.
There was no evidence of such a discussion in Masih with respect to the "primary treatment" of

Page 18

benzodiazepenes.
90 If accepted, Armstrong's position would require the treating physician to discuss the various
modalities of administering a proposed treatment as a prerequisite to a finding of capacity to
consent to treatment. Such a position conflates the issue of informed consent with treatment. It is
clear from Starson and Masih that an analysis of capacity to consent begins with a discussion of the
foreseeable risks and benefits of a proposed treatment, but that does not require (nor was ordered
under Masih) a description of the various modalities in which a proposed "primary treatment" can
be administered (Masih, at para. 38).
91 Once the issue of capacity to consent to the proposed treatment is determined, the patient (if
capable) or the substitute decision-maker (if the patient is incapable) can provide informed consent
based on a full discussion of the modalities of the proposed treatment.
92 Consequently, I do not find that a review of all of the benefits and consequences of the various
modalities of administering a primary treatment (i.e., in the present case, differences in the risks and
benefits of administering antipsychotic medications orally as compared to injection) is required
under Starson or Anten (or under Masih). In the present appeal, it was not necessary for Dr.
Coleman to review with Armstrong the benefits and risks of the various means of administering the
"primary treatment" of antipsychotic medication, as a prerequisite to determining capacity to
consent to treatment. It is the benefits and risks of the proposed primary treatment of antipsychotic
medication that must be discussed.
93 In the present case, the Board had evidence that Dr. Coleman's proposed treatment was
"antipsychotic medication in either an oral or injection form". Consequently, the Board did not
"gratuitously add injectable medications to the category of anti-psychotics to be administered". The
Board had evidence that the benefits and risks of the primary treatment of antipsychotic medication
were reviewed by Dr. Coleman with Armstrong and as such the Board's decision on Armstrong's
capacity for treatment with antipsychotic medication was reasonable.
10

v) Ground 5: The sufficiency of the Reasons

94

This analysis addresses the ground raised at subparagraph 56(vi) above.

95

On this issue, I adopt the law as set out in Wright, at paras. 21-22:
30

The appellant also submits that the Board's reasons were insufficient in law. An
administrative tribunal is under an obligation explain its decision to the parties
and provide reasons that enable meaningful appellate review: Clifford v. Ontario
Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3d) 210.
The law obliges the decision maker to demonstrate 'why' it came to the decision
that it did, rather than simply set out 'what' the decision was: R. v. R.E.M., 2008
SCC 51, [2008] 3 S.C.R. 3.

31

In Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador

(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Supreme Court of
Canada analysed a tribunal's obligations when giving reasons. The tribunal is not
under an obligation to explain each and every part of its decision. Nor does it
need to point to each individual piece of evidence that formed the basis for its

Page 19

conclusion. Even if the reasons do not seem wholly adequate to support the
decision, the court must first seek to supplement them before it seeks to subvert
them. Importantly, at para. 18, the Court approved the principle that reasons 'are
not to be reviewed in a vacuum -- the result is to be looked at in the context of
the evidence, the parties submissions and the process.'
96 In the present case, as in Wright (at para. 22), the Reasons, "when looked at in the context of
the evidence, the parties' submissions, and the process ... provide sufficient explanation to
demonstrate to the parties why the [Board] concluded that the appellant was incapable and facilitate
meaningful appellate review."
Order and costs
97 For the above reasons, I dismiss the appeal. No costs were sought by either party and, as such,
I make no order as to costs.
MASTER B.T. GLUSTEIN