IN THE MATTER OF the Mental Health Act R.S.O. 1990 ......CV, Re, 2018 CarswellOnt 22836 2018 CarswellOnt 22836 2018 CarswellOnt 22836 Ontario Consent & Capacity Board CV, Re 2018 CarswellOnt

CV, Re, 2018 CarswellOnt 22836

2018 CarswellOnt 22836

2018 CarswellOnt 22836 Ontario Consent & Capacity Board

CV, Re


IN THE MATTER OF the Mental Health Act R.S.O. 1990, chapter M.7 as amended

IN THE MATTER OF the Health Care Consent Act S.O. 1996, chapter 2, schedule A, as amended

IN THE MATTER OF CV A resident of MISSISSAUGA, ONTARIO

Elizabeth Harvie Presiding Member, Anita Johnston Member, Andrew Skrypniak Member

Heard: September 10, 2018 Judgment: September 11, 2018

Docket: 18-2025-01, 18-2025-02

Counsel: Ms Deborah Corcoran, for CV

Dr. David Kantor, for himself

Subject: Public

Related Abridgment Classifications

Health law

VI Consent and capacity

VI.4 Capacity

VI.4.a To consent to treatment

Health law

VI Consent and capacity

VI.5 Community treatment order

VI.5.a Plan of treatment

Headnote

Health law --- Consent and capacity — Capacity — To consent to treatment

Health law --- Consent and capacity — Community treatment order — Plan of treatment

Table of Authorities

Cases considered by Elizabeth Harvie Presiding Member:

Starson v. Swayze (2003), 2003 SCC 32, 2003 CarswellOnt 2079, 2003 CarswellOnt 2080, 225 D.L.R. (4th) 385,

1 Admin. L.R. (4th) 1, 304 N.R. 326, [2003] 1 S.C.R. 722, 173 O.A.C. 210, 2003 CSC 32 (S.C.C.) — followed

Statutes considered:

Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A

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Generally — referred to

s. 4(1) — considered

s. 4(2) — referred to

Mental Health Act, R.S.O. 1990, c. M.7

Generally — referred to

s. 1(1) “mental disorder” — referred to

s. 15(1) — referred to

s. 15(1.1) [en. 2000, c. 9, s. 3(2)] — referred to

s. 33.1(1) [en. 2000, c. 9, s. 15] — referred to




s. 33.1(4)(a)(ii) [en. 2000, c. 9, s. 15] — referred to

s. 33.1(4)(b) [en. 2000, c. 9, s. 15] — referred to

s. 33.1(4)(c) [en. 2000, c. 9, s. 15] — considered

s. 33.1(4)(d) [en. 2000, c. 9, s. 15] — referred to

s. 33.1(4)(e) [en. 2000, c. 9, s. 15] — referred to


Regulations considered:

Mental Health Act, R.S.O. 1990, c. M.7

General, R.R.O. 1990, Reg. 741

Form 1 — referred to



Elizabeth Harvie Presiding Member:

PURPOSE OF THE HEARING

1 CV was subject to a Community Treatment Order (”CTO”). His physician who renewed the CTO had found him

incapable of consenting to treatment with two classes of medications and a Community Treatment Plan (”CTP”). The

Consent & Capacity Board (the “Board”) convened at CV’s request to review the finding of incapacity.



DATES OF THE HEARING, DECISIONS AND REASONS

2 The hearing took place on September 10, 2018. The Decisions were released the next day, on September 11,

2018. Counsel for CV requested written Reasons for Decisions (”Reasons”) on September 12, 2018. The Reasons

(contained in this document) were released on September 18, 2018.

LEGISLATION CONSIDERED

3 The Health Care Consent Act (”HCCA”), including section 4

4 The Mental Health Act (”MHA”), including sections 1, 15(1), 15(1.1), 33.1, and 39.1

PARTIES & APPEARANCES

5 CV, the applicant, was represented by counsel, Ms. Deborah Corcoran.

6 Dr. David Kantor, attending physician and health care practitioner, represented himself.

7 Both parties attended the hearing.

PANEL MEMBERS

8 Ms. Elizabeth Harvie, lawyer and presiding member

9 Dr. Anita Johnston, psychiatrist member

10 Mr. Andrew Skrypniak, public member

PRELIMINARY MATTERS

Adding Application to Review CTO

11 The panel noted that CV had only applied to the Board to review the finding that he was incapable of consenting

to treatment yet Dr. Kantor’s documentary materials indicated, incorrectly, that CV was also contesting the validity

of the CTO. At Ms. Corcoran’s request and with Dr. Kantor’s consent, the panel decided to also review whether the

CTO had been issued in accordance with the criteria set out in section 33.1(4) of the MHA. Hence the hearing and

these Reasons for Decisions reviewed the finding of incapacity and the renewal of the CTO. The panel subsequently

notified the Board of this change and a second file number was assigned for the CTO review.

Grounds for Renewal of CTO

12 Dr. Kantor advised the panel that the grounds (under subsection 33.1(4)(c)(iii) of the MHA) on which he was

relying for renewing the CTO were that CV was likely, because of mental disorder, to cause serious bodily harm to

himself or to suffer substantial mental deterioration unless he received continuing treatment or care and continuing

supervision while living in the community.

Incapacity to Consent to Treatment



13 Dr. Kantor advised the panel that the finding of incapacity to consent to treatment related to treatment with anti-

psychotic and mood stabilizing medications, and with a CTP.

THE EVIDENCE

14 The evidence at the hearing consisted of the oral testimony of Dr. Kantor, MV, and CV and the following ten

Exhibits:

1) Letter to Consent and Capacity Board from Dr. Kantor, dated September 7, 2018;

2) Consent and Capacity Board Summary (”Summary”), prepared by Galina Semikhnenko, dated August 16,

2018;

3) Community Treatment Plan, signed by Dr. Kantor, dated April 23, 2018, and a letter from the Office of the

Public Guardian and Trustee, dated May 16, 2018;

4) Package of forms under the MHA including Forms 49, 50, 45, 48, dated various dates between April 23 and

May 17, 2018;

5) Discharge Summary Report from Trillium Health Partners Credit Valley Hospital prepared by Dr. Domenic

Dimanno, dated January 8, 2014;

6) Progress Notes by Jessie-Lee Armstrong, various dates in 2015 (2 pages);

7) Psychiatric Progress Notes by Dr. Kantor, Jessie-Lee Armstrong and Eda Pallotta, various dates in 2016, (12

pages);

8) Psychiatric Progress Notes by Dr. Kantor, various dates in 2017 (3 pages);

9) Psychiatric Progress Notes by Dr. Kantor, various dates in 2018 (9 pages); and,

10) Letter from employer, dated August 22, 2018.

15 The panel added hand-written page numbers to the lower left corner of each page of Exhibits 6 through 9.

INTRODUCTION

16 CV was a 30 year old single man with no dependents. At the time of the hearing he was in regular contact with

his parents and his sister. He lived alone in an apartment in Mississauga and received mental health and other services

from Supportive Housing in Peel — Assertive Community Treatment (”SHIP ACT”). CV was supported by the

Ontario Disability Support Program and he supplemented that income with several hours of work every week at a

large retail establishment. CV had a diagnosis of schizoaffective disorder and had experienced seven psychiatric

hospitalizations. He had been continuously found to be incapable of making treatment decisions since a 2011 hospital

admission. CV’s mother had been his substitute decision maker (”SDM”) for treatment decisions but in July 2016 that

role was assumed by the Office of the Public Guardian and Trustee. CV had been on CTOs since November 1, 2016.

THE LAW

17 On any review of a CTO under the MHA and on any review of incapacity to consent to treatment under the

HCCA, the onus of proof at a Board hearing is always on the attending physician to prove the case. The standard of

proof is proof on a balance of probabilities. The Board must be satisfied on the basis of cogent and compelling evidence

that the physician’s onus has been discharged. There is no onus whatsoever on the applicant. The Board must consider



all evidence properly before it. Hearsay evidence may be accepted and considered, but it must be carefully weighed.

Community Treatment Orders

18 The criteria for issuing a CTO are set out in section 33.1 of the MHA as follows:

(1) Community Treatment Order - A physician may issue or renew a community treatment order with

respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

(2) Same - The community treatment order must be in the prescribed form.

(3) Purposes - The purpose of a community treatment order is to provide a person who suffers from a serious

mental disorder with a comprehensive plan of community-based treatment or care and supervision that is

less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing,

a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder,

experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually

stabilized; after being released from the facility, the person often stops the treatment or care and

supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric

facility.

(4) Criteria for order - A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a

cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or

renewing the community treatment order and any other health practitioner or person involved in the

person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has

examined the person and is of the opinion, based on the examination and any other relevant facts

communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or

care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment

under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while

living in the community, he or she is likely, because of mental disorder, to cause serious bodily

harm to himself or herself or to another person or to suffer substantial mental or physical

deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community

treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment

order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in



the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or

her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of

their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in

accordance with the rules for consent under the Health Care Consent Act, 1996.

19 The onus is on the attending physician to prove, on a balance of probabilities, that all of the criteria for issuing

or renewing a CTO are met, and that they continue to be met at the time of the Board’s hearing (s. 39.1(6) of the

MHA). If this onus is discharged, the Board may make an Order confirming the issuance or renewal of the CTO. If

the onus is not discharged, the Board is required by law to rescind the CTO.

Capacity to Consent to Treatment

20 Under the HCCA, a person is presumed to be capable to consent to treatment (s. 4(2)) and the onus to establish

otherwise lies with the health practitioner. The test for capacity to consent to treatment is set forth in section 4(1) of

the HCCA, which states:

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.

21 In the seminal case of Starson v. Swayze, [2003] 1 S.C.R. 722 (S.C.C.), the Supreme Court of Canada reviewed

the law of capacity to consent to treatment. The Court noted that the right to make one’s own treatment decisions is a

fundamental one that can only be displaced where it is established that a person lacks mental capacity to do so. The

person’s “best interests” are not a consideration in determining the question of capacity to consent to (or refuse)

treatment. Capable people have the right to take risks, to make decisions which others consider unwise, and to make

mistakes. The presence of mental disorder should never be equated with a lack of capacity.

ANALYSIS

22 After carefully considering the evidence, the submissions of the parties, and the law, the panel unanimously

determined that the statutory criteria for renewing the CTO were met in this case and therefore confirmed CV’s CTO.

The panel also unanimously determined that CV was not capable of making treatment decisions, and confirmed the

finding of incapacity. Reasons for these Decisions are set out below.

CTO

23 Many criteria of the CTO were proven by the documentary evidence provided by Dr. Kantor and were not

contested. The panel found that CV had been the subject of a previous CTO (33.1(4)(a)(ii)) (Exhibit 2, p. 2); that CV’s

SDM, and the health practitioners involved in the CTP had developed a CTP for CV (33.1(4)(b)) (Exhibit 3, pp. 2-3);

that Dr. Kantor had consulted with the health practitioners who were named in the CTP (33.1(4)(d)) (Exhibit 2, p. 2,

Exhibit 3, p. 2); that rights advice was provided both to CV and the Public Guardian and Trustee who was the SDM

(33.1(4)(e)) (Exhibit 4, pp. 4-7); and that the SDM had consented to the CTP (33.1(4)(f)) (Exhibit 3, pp. 2 and 4).

Section 33.1(4)(c) requires that the person being considered for a CTP be examined by the physician within the 72-

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hour period before entering into the CTP. In this case, the Form 45 indicated that CV was examined by Dr. Kantor on

April 23, 2018 (Exhibit 4, p. 7). Also on April 23, 2018, everyone named in the CTP signed the plan and agreed to

their obligations (Exhibit 3, p. 2). Accordingly, the panel held that the evidence established that this criterion had been

satisfied. Based on their examination and any other relevant facts communicated to them, the physician may issue a

CTO if certain criteria in section 33.1(4)(c) are satisfied. Those criteria are discussed below.

Was CV suffering from mental disorder such that he needs continuing treatment or care and continuing

supervision while living in the community?

24 The MHA defines “mental disorder” broadly as “any disease or disability of the mind.” Dr. Kantor’s evidence

was that CV had schizoaffective disorder. (Exhibit 1, p.1) In 2014, Dr. Dimanno who had been CV’s attending

physician during a two month psychiatric hospitalization at Credit Valley Hospital (”CVH”) noted on the discharge

summary he prepared that CV had been diagnosed with schizoaffective disorder, bipolar type. (Exhibit 5, p. 6)

25 Dr. Kantor testified that he had been CV’s psychiatrist since 2016 and while he had never seen CV when he

was extremely unwell, he described CV as having a “fixed delusional system” that was still intact on the day of the

hearing and still affecting his daily functioning. The delusions were primarily that CV’s father had tormented CV by

planting listening and watching devices in his room at home and later in CV’s apartment. Dr. Kantor’s evidence was

that CV believed his father’s spying was abuse and that it had ruined his life and that these delusions had, in the past,

crippled CV and made him unable to function. Dr. Kantor testified that Dr. Dimanno’s 2014 discharge summary

indicated that CV had also suffered from delusions that people were gathering outside his house, following him, and

were speaking to him when he was at home alone in his bedroom. (Exhibit 5, p. 1) At the time of the hearing, Dr.

Kantor stated that CV was stable and “doing quite well” but when CV was unwell, he experienced paranoid delusions,

suicidal thoughts and gestures, auditory hallucinations, and characteristic symptoms of hypomania/mania which

included racing thoughts, pressured speech and grandiose ideation. (Exhibit 1, p. 1) Dr. Kantor testified that when CV

was on his medications, it was possible for him to put the paranoid delusions behind him and to lead a normal life.

26 Dr. Kantor’s evidence was that CV’s mental disorder had resulted in at least seven hospitalizations between

2010 and 2016. (Exhibit 1, p.1) The discharge summary prepared by Dr. Dimanno in January 2014 (Exhibit 5) set out

the history of CV’s illness, hospitalizations and treatments up to that point. In 2010, CV was twice hospitalized at

CVH with diagnoses of primary psychotic illness. He was treated with anti-psychotic medication and was discharged,

in both instances, within a week. (Exhibit 5, p. 5) In early August 2011, CV arrived at CVH in a paranoid state but

declined voluntary admission and was discharged home. Several days later he called the police after trying to kill

himself, and the police brought him to CVH. Dr. Dimanno learned from CV’s outpatient psychiatrist, Dr. Packer that

CV was being treated for schizophrenia at Humber River Regional Hospital and had been prescribed anti-psychotic

medications. (Exhibit 5, p. 2) CV was admitted to CVH on an involuntary basis and his mother was made his SDM.

Initially he did not respond to anti-psychosis therapy and showed signs of mania. Improvement came with a change

in medications and he was discharged home 37 days later. (Exhibit 5, pp. 2-3)

27 From September 2011 to January 2012, CV periodically attended the Schizophrenia Program at CVH and he

continued to see Dr. Packer. (Exhibit 5, p. 3) Dr. Dimanno learned from Dr. Packer’s staff that in the spring of 2013,

CV stopped going to appointments with Dr. Packer and stopped his medication. (Exhibit 5, p. 3) At this time, CV was

studying at the University of Toronto but he had difficulty in school and was smoking cannabis which had led to his

mental state deteriorating. (Exhibit 5, p. 3) CV was twice hospitalized in 2013 and both instances were preceded by

CV not adhering to his medications. (Exhibit 1) Exhibit 5 indicated that in the fall of 2013, CV presented at CVH with

complaints that his room was bugged and he was hearing voices. (Exhibit 5, p. 4) He was admitted as involuntary

patient and found incapable of consenting to treatment. He improved somewhat with treatment though he continued

to experience auditory hallucinations and remained quite paranoid. Shortly after that discharge, CV showed signs of

mental deterioration and Dr. Dimanno suspected he was not taking his medication (Exhibit 5, p. 5) On November 6,

2013, CV returned to the ER because he felt suicidal. He remained hospitalized on a voluntary basis for two months

until January 7, 2014 and his medications were re-initiated.

28 Dr. Kantor’s evidence was that CV was hospitalized for 30 days at Mississauga Hospital on July 28, 2015.



(Exhibit 2, p.1) He did not have medical records from this hospitalization. His evidence was that this hospitalization

was also preceded by CV not adhering to his medication regime. (Exhibit 1, p. 1) Dr. Kantor first met CV and his

mother on March 3, 2016. The Psychiatric Progress Notes that Dr. Kantor put into evidence indicated that at that

meeting CV acknowledged having discontinued his mood stabilizer medication months earlier and weeks prior having

also unilaterally decreased the anti-psychotic medication. Based on his review of CV’s history, “a serious risk of harm

to himself and/or others”, and CV’s presentation, Dr. Kantor initiated a Form 1. He hoped that CV would be

hospitalized in order that treatment at therapeutic levels could be reinitiated. (Exhibit 7, pp. 2-3) On March 4, 2016,

CV was hospitalized for ten days at Mississauga Hospital (Exhibit 2, p. 1)

29 In September 2016, CV was reported to be demonstrating signs of deterioration, specifically he had become

“preoccupied with ideas of past apparent abuse, and this kind of preoccupation has typically been associated in the

past with relapse”. (Exhibit 7, p. 6) He was also found with extra medication on hand though he said he was taking all

his medications as prescribed. CV also told Dr. Kantor that he wanted to be discharged from the SHIP ACT team

because his various health professionals were not taking his concerns about past “abuse” (Dr. Kantor’s italics)

seriously. (Exhibit 7, p. 6) When asked to talk about the nature of the abuse, CV told Dr. Kantor that an example was

his father “had put a camera in my room” and “tons of [other] stuff” but he was not ready to talk about it. On November

1, 2016, Dr. Kantor issued the first CTO.

30 On January 30, 2017 Dr. Kantor’s Psychiatric Progress Note indicated that CV was mostly “rambling about

previously described delusional thoughts about his father “abusing” him; his mother lying about his history” (Exhibit

8, p. 1) At the August 17, 2017 meeting with Dr. Kantor, CV talked about having auditory hallucinations of voices

who were speaking at the behest of his father but he did not wish to discuss what the voices were saying for fear that

he would be hospitalized or have his medication dosages raised. (Exhibit 8, p. 2) He missed his scheduled

appointments with Dr. Kantor on January 8, 2018, March 6, 2018 and June 25, 2018. (Exhibit 8, pp. 1, 4, 7) The

Psychiatric Progress Notes from 2017 (Exhibit 7) and 2018 (Exhibit 8) consistently depict CV as having delusions,

exhibiting paranoia about the intentions of his treatment team, his parents and his sister, denying that he had symptoms

of mental disorder (though admitting that he was “schizo”), and seeking to reduce his medication dosages because he

doubted their effectiveness. Nonetheless, Dr. Kantor’s notes during this period indicated CV was stable, appropriately

groomed and dressed, had a bright affect, was working part-time, and managing on a day to day basis.

31 CV testified that he had schizoaffective disorder, delusions, mood disorder and depression. He stated that he

understood these disorders could not be cured and were managed through medication, and mentally training his brain

with exercise, study and good lifestyle habits. He testified that he had received a lot of support from the SHIP ACT

team which he appreciated. He said that he planned — with or without the CTO in place — to stay with the ACT team

for another 8 or 9 years until he finished university, and to follow Dr. Kantor’s treatment recommendations. He did

not believe that he needed a CTO in order to execute this plan.

32 Based on the evidence, the Panel concluded that CV was suffering from mental disorder. Dr. Kantor’s evidence

was that CV had a long-standing, diagnosed mental disorder, specifically schizoaffective disorder. This diagnosis was

supported by the discharge summary prepared by Dr. Dimanno in 2014. CV acknowledged in his testimony that he

had schizoaffective disorder. Dr. Kantor presented persuasive evidence about CV’s symptoms of paranoid delusions

and auditory hallucinations. When CV’s psychosis had been untreated in the past, he had experienced considerable

distress, had attempted suicide and was fearful that he would take his own life. CV had been hospitalized on multiple

occasions when his mental status had deteriorated and he had engaged in suicide ideation and attempts. Dr. Kantor’s

evidence, particularly the report by Dr. Dimanno and MV’s testimony was persuasive that CV had become very unwell

in the past when he unilaterally reduced or stopped taking his anti psychotic and mood stabilizing medications.

Significantly, CV had no hospitalizations since the CTO had been issued in November 2016 and although he continued

to have some symptoms, he was stable which Dr. Kantor attributed to the treatment he was receiving. The panel found

Dr. Kantor’s evidence to be clear and compelling that CV’s mental disorder such that he required continuing treatment,

care and supervision while living in the community

Did CV meet the criteria for the completion of an application for psychiatric assessment under section 15 (1) or

15(1.1) of the MHA?



33 CV was not a patient in a psychiatric facility in the 72 hour period that preceded the CTP and, as such, Dr.

Kantor was required to establish, on a balance of probabilities, that CV met the criteria for an application for

psychiatric assessment. Dr. Kantor relied on the grounds that CV was likely to cause serious bodily harm to himself

or to experience substantial mental deterioration (”Box B” criteria in section 15(1.1) of the MHA).

Had previously received treatment for mental disorder of ongoing or recurring nature

34 The preceding section referenced evidence presented about CV’s seven hospitalizations between 2010 and 2016,

and his treatment by Drs. Packer, Dimanno and Kantor for schizoaffective disorder in and out of hospital. As discussed

in the previous section, CV had been living in the community under CTO’s since 2016. Based on this evidence, the

panel was satisfied that CV had previously received treatment for mental disorder of an ongoing or recurring nature.

The panel held this criterion had been satisfied.

Had shown clinical improvement as a result of the treatment

35 Dr. Dimanno’s discharge summary from 2014 reported that during both hospitalizations at CVH 2010, CV’s

psychosis was treated with anti-psychotic medication and “improvements in symptoms occurred quite rapidly”.

(Exhibit 5, p. 5) In March 2011, while an outpatient under Dr. Packer’s care at Humber River Regional Hospital, CV

was switched to another drug and his dosage increased. Dr. Packer’s assistant Joyce advised Dr. Dimanno that CV did

“relatively well but his adherence to medication was an issue” (Exhibit 5, p. 2) During the August 2011 admission,

Dr. Dimanno suspected an underlying mania in addition to symptoms of schizophrenia and he was put on a new mood

stabilizing medication. Soon afterward, his pressured speech subsided and CV himself reported that his thoughts were

no longer racing and he could better concentrate. With the addition of a different anti-psychotic medication, CV

“demonstrated significant improvement in his psychotic symptoms. CV met with his father and had a good discussion

with him, whereby he apologized.” His mother also felt that CV had shown significant improvement. (Exhibit 5, p. 3)

Collateral information obtained from Dr. Packer by Dr. Dimanno was that CV did well with treatment but deteriorated

when he did not. (Exhibit 5, p. 3) During the two month hospitalization at CVH that started on November 6, 2013,

CV was (following a Board hearing where his involuntary status and the finding of incapacity were upheld) treated

with mood stabilizing and anti-psychotic medications. Dr. Dimanno reported that “he improved to the point that he

was made voluntary” but continued to have auditory hallucinations and remained quite paranoid so SDM consent was

obtained for clozapine, an anti-psychotic medication which CV then agreed to as well.

”[CV], subsequent to starting clozapine, started to make further improvement whereby he did not dwell on his

paranoid thoughts with the same intensity as before. He also appeared more organized, whereby he was able to

find himself an apartment to live. [CV] voiced that he wanted to try living alone. He agreed that he needed the

medication and agreed to follow up with the writer for monitoring. The writer did speak to the mother as well,

who felt that [CV] had made significant improvements from the time he was admitted to hospital.” (Exhibit 5, p.

4)

36 Since his discharge from CVH on January 7, 2014, CV has continued to be prescribed Clozaril (clozapine) and

Epival, anti-psychotic and mood stabilizing medications respectively. Dr. Kantor’s letter to the board stated: “The

evidence is unequivocal that his medications at the prescribed dosages have a markedly positive effect and that

continued use is necessary in order to maintain that effect.” (Exhibit 1, p. 1) MV was also emphatic that treatment has

led to a “vast improvement” in her son’s symptoms. She described CV as a different man when he was taking

medication.

37 Dr. Kantor’s Psychiatric Progress Notes indicate that CV has frequently not agreed that his symptoms subsided

with treatment. One example, on March 3, 2016 (just before CV was hospitalized), Dr. Kantor noted that CV had

discontinued the mood stabilizing mediation and had unilaterally reduced his anti psychotic medication by eighty

percent. “Patient says that since lowering his medications he has more control over his thoughts.” “He says there is

very little correlation between medication and my symptoms”. (Exhibit 7, p. 2) More recently, on April 23, 2018, CV



told Dr. Kantor that he wished to lower the clozapine dose and to discontinue to Epival altogether since he doubted

its effectiveness. (Exhibit 9, p. 5) At the hearing, CV testified that medication was required to help manage the

symptoms of schizoaffective disorder.

38 Dr. Dimanno’s opinion that CV had made significant and rapid improvement when appropriately medicated

during multiple hospitalizations in 2010, 2011, and 2013 was clear, convincing and uncontested. CV had been

prescribed clozapine and Epival since 2014 and since that time the intensity of his delusions and auditory

hallucinations appeared to have subsided to some extent. The evidence presented was that CV had not engaged in

suicide ideation or gestures when he was being treated. He had found himself an apartment, and with support he had

lived alone successfully for several years. Since May 2015, he had been employed part-time and was described by his

employer as reliable, punctual, hard-working, and always pleasant. (Exhibit 10) In recent months, his mother testified

that CV had renewed a friendly relationship with his parents and sister. Since 2014, he had been hospitalized twice

but this was because he was not taking his medication as prescribed. His mother testified that “when he takes his

medication, he’s a beautiful soul. When he doesn’t take his medication, he doesn’t talk to anyone”. Dr. Kantor’s

progress notes indicated that CV sometimes doubted the efficacy of the medications he was supposed to take but the

evidence before the panel indicated that CV was alone in this view. The clinical record of CV’s treatment over the

years persuaded the panel that, in fact, the medications had helped CV. The panel concluded that the evidence

established that CV had shown clinical improvement and that it was attributable to the treatment he had received.

Appeared to be suffering from same or similar mental disorder

39 Dr. Kantor’s evidence was that CV was suffering from schizoaffective disorder, the same disorder that he had

been diagnosed with by Dr. Dimanno in 2013 and had been receiving treatment for several years before this hearing.

Dr. Dimanno noted in his discharge summary that CV’s presentation in hospital on November 6, 2013 was similar to

his presentation on August 15, 2011 (Exhibit 5, p.4) The panel concluded this criterion had been met.

History of mental disorder and current mental or physical condition, person is likely to cause serious bodily harm to

himself or to suffer substantial mental deterioration

40 Dr. Kantor introduced MV as witness because she had direct knowledge of CV’s mental deterioration and

suicide attempts. MV testified that CV became mentally ill eight years ago when he was 22 years old. For the past

several years, CV lived in his own apartment. Prior to 2015, CV lived at the family home with MV and his father. MV

testified that when CV was unwell and living at home, he locked himself in his room and refused contact with

everyone. He was having suicidal thoughts but he rejected others’ efforts to help him. His hygiene was poor. He was

not interested in food and lost a lot of weight. She tried to feed him but he refused to eat. Four or five years ago he

had attended the University of Toronto Mississauga and tried to live on campus but after he stopped taking his

mediation, he deteriorated badly and ended up in hospital. When he did not take his medication, she stated that “he

gets very, very, very sick and calls or texts me to say ‘That’s it, I’m done’. I call 911. It’s happened each time. It’s a

pattern.” She stated that in the past CV had become suicidal “four or five times” when he stopped taking his

medication. She stated that if CV was in charge of taking his own medication, there was a high risk he would stop and

in the past he had done exactly that. Years before the CTO, MV had done her best to ensure that CV took his

medication. He sometimes allowed her to do this but she there were also times when he did not allow her to supervise,

became avoidant, and took his medications only once or twice a week. When CV was discharged from the hospital on

January 7, 2014, MV agreed with Dr. Dimanno and CV that she would visit his apartment every day to watch him

take his medications until this responsibility was taken over by the SHIP ACT team. MV testified that the last time

CV had revealed a strong interest in killing himself was during his 2016 hospitalization when she noticed that he had

brought to the hospital a folder containing a detailed list of 28 ways to commit suicide. This incident was also described

by Ms. Armstrong. (Exhibit 6, p. 2) Asked to comment on Dr. Kantor’s July 16, 2018 note that “He continues to

believe that his father abused him, including the use of electronic devices planted in appliances in the patient’s

apartment,” (Exhibit 9, p. 8) MV denied that CV’s father abused him or had ever monitored his son electronically.

They did not even have a key to CV’s apartment. She stated that these thoughts were not surprising as they typically

appear when CV is not taking his medication. She could tell from the way her son’s mind shifted from day to day if



he was not adequately medicated on any particular day.

41 Dr. Kantor’s evidence was that:

”[CV] becomes severely mentally ill when not receiving adequate treatment. He has undergone minimally seven

psychiatric hospitalizations, five of these occurring prior to his involvement with the ACT team. Of the seven

hospitalizations, at least four were preceded by [CV] not adhering to his medication regimen. This includes

attempting to hide the non-adherence. These four hospitalizations include two in 2013, and one each in 2015 and

2016. Based upon hospital documentation, [CV] when most unwell suffers paranoid delusions and behaviours

[e.g., believing that people are gathering outside his home; being followed; concealing a large kitchen knife;

calling the police for help] of a severity that has led him to experience suicidal thoughts and gestures.” (Exhibit

1)

42 In August 2011, according to Dr. Dimanno’s discharge summary (Exhibit 5), CV made two visits to the ER

department at CVH in a paranoid and distressed state. On the first visit, he reported that people had been gathering

outside his home, and following him but he did not know why. He admitted wanting to hurt these people. He told ER

staff the same thing had happened to him a year earlier when he had come to the hospital to find out why people were

following and watching him. He did not cooperate much with the interview process but he told ER staff that Dr. Packer

had prescribed anti-psychotic medication and that he was taking it as prescribed. CV was offered voluntary admission

which he declined. (Exhibit 5, p. 1) A few days later, CV returned to the ER department, this time in police custody.

Earlier that day, he had inflicted “bilateral superficial slashes to his upper arms”. (Exhibit 5, p. 1) On August 15, 2011,

he told Dr. Dimanno that people were against him but who could not say who those people were. He believed he heard

voices in his bedroom which he felt were connected to his parents and the people who he said were gathering outside

his house. He moved toward Dr. Dimanno in an intimidating manner, which resulted in the interview being terminated.

He stated that he intended to continue with his prescribed medication. CV’s father told Dr. Dimanno that his son had

taken a kitchen knife to his room which concerned his parents very much. CV had stopped speaking to his father.

After losing his temporary job five months earlier, CV had simply stayed home and was often on the computer. His

mental health deteriorated. His father never saw CV take the pills prescribed by Dr. Packer. Dr. Packer’s assistant

disclosed to Dr. Dimanno that despite his saying otherwise, CV was not taking the prescribed antipsychotic

medication. CV became verbally aggressive toward his father when he was mentally unwell. (Exhibit 5, pp. 1-3) In

response to questions from the panel, Dr. Kantor testified that while the cuts to CV’s arms were superficial, he

understood from CV that his thoughts were of suicide which Dr. Kantor considered a more important indicator of risk.

43 After leaving Dr. Packer’s care and stopping his medication in 2013, CV’s mental state deteriorated coincident

with a difficult school year. (Exhibit 5, p. 3) In the fall of 2013, (the evidence of when was unclear from Exhibit 5),

CV came to the hospital quite paranoid and expressed that he was distressed about “body physical adjustors” who had

been harassing and being aggressive towards him for a couple of weeks. He said his room was bugged and that he was

hearing voices from a recorder in his room. He gave rambling answers and became fearful and teary talking about the

body adjusters and voices in his room. He did not believe these were delusions resulting from mental illness and he

appeared to have no insight into his illness. (Exhibit 5, p. 4) He said that he needed a lawyer because people were

following him. He was held on a Form 3 and found incapable of consenting to treatment. (Exhibit 5, p. 4)

44 Within a month after being discharged, CV’s mental state again deteriorated. He ceased communicating

appropriately with his care team led by Dr. Dimanno, his affect was restricted and he began demonstrating paranoid

behaviours. Dr. Dimanno suspected CV was not taking his medications although CV denied this. (Exhibit 5, p. 5)

Then on November 6, 2013 his mother brought CV back to CVH seeking admission because he had been suicidal

earlier that day. Dr. Miula’s notes of her interview with CV indicated that he was very disorganized, and could not

recall what was troubling him but said he was concerned that his suicidal thoughts might return. He laughed without

comment when Dr. Miula pointed out that his blood levels indicated he was probably not taking the mood stabilizing

medication that had been prescribed. Dr. Dimanno explained to CV that his symptoms were exacerbated because he

had stopped his medications. “He voiced that there was more to that, but did not elaborate”. He agreed to remain in

hospital in order to reinitiate his medications. (Exhibit 5, p.5)



45 Although Dr. Kantor said that did not have medical records of CV’s hospitalizations at Mississauga Hospital in

2015 or 2016, his evidence was that both admissions occurred because CV’s mental state had deteriorated after he had

stopped taking adequate dosages of his medications. Evidence for this was provided through two Progress Notes

prepared on August 7 and 12, 2015 by SHIP case worker Jessie-Lee Armstrong. (Exhibit 6) While CV was in hospital,

MV had visited her son’s apartment to collect his laundry. She found approximately 20 days worth of medication

hidden in his pillowcase and other loose pills scattered around his unit. (Exhibit 6, p. 1) She immediately reported this

discovery to Ms. Armstrong who documented it in the Progress Note. (Exhibit 6) On August 12, 2015, MV reported

to Ms. Armstrong that when she had visited her son in hospital she noticed that he had a folder containing detailed

information on how to commit suicide. (Exhibit 6, p. 2)

46 CV was hospitalized for ten days in March 2016 when he admitted to Dr. Kantor that months before he had

discontinued his Epival, and weeks earlier he had decreased his clozapine to 20 percent of the prescribed dosage. On

March 3, 2016, CV acknowledged to Dr. Kantor that his symptoms “come and go” and that:

”When most unwell, he “hears things”. When asked about the content of what he hears, he replied “I don’t want

to mention any of the words at this moment. I asked if he felt safe at this time, he replied “I cannot answer that”.

He said that his mood is good. He denied suicide ideation. He did say that the voices that he hears tell him to

carry out dangerous acts that he refused to discuss any further. I asked why he is guarded he replied “numerous

reasons”.” (Exhibit 7, p. 2)

47 Based on this evidence, CV’s presentation and the history of mental deterioration, Dr. Kantor completed a Form

1 on March 3, 2016. CV was subsequently hospitalized for 10 days in order that he could be medicated appropriately.

(Exhibit 7, p. 4) Dr. Kantor’s evidence was that by September 2016, CV was again “demonstrating signs of

deterioration - preoccupied with ideas of past apparent “abuse”, a preoccupation that was typically associated in the

past with relapse”. (Exhibit 7, p. 6) Dr. Kantor decided to initiate a CTO. (Exhibit 7, p. 6) Since the CTO was issued

on November 1, 2016, there have been no further hospitalizations or evidence of serious relapses though the

Psychiatric Progress Notes from late 2016 onwards (Exhibits 7, pp, 8-11, Exhibits 8 and 9) indicated that CV’s fixed

delusional system remained intact.

48 CV testified that his father abused him but when asked to describe the nature of the abuse he said he did not

want to because “it brings back symptoms of paranoia”. CV said that whether or not his “schizoaffective disorder was

100% caused by my dad’s abuse”, he was no longer blaming his father for his symptoms. He disputed his mother’s

testimony that his paranoia returns quickly when he does not take his medication and said “she misjudges me because

I have been taking my medications every day for the past three years”. He testified that the only time he had stopped

taking his medication was for a month after his discharge from CVH in 2013. CV stated that he had not thought about

suicide since he was 22 or 23 years old. He had not experienced any auditory hallucinations since March 2016 and he

had told the ACT team this.

49 The panel considered CV’s testimony that he had not experienced suicidal thoughts since 2010. His mother

testified that he had been hospitalized 4-5 times for suicide attempts and that there was a historical pattern of CV

contacting her for help when he was feeling suicidal or had attempted suicide. Dr. Dimanno’s discharge summary

indicated that that CV was hospitalized following episodes when he admitted to suicidal thoughts and gestures on at

least three occasions - in Aug 2011, in Nov 2013 and in August 2015. On balance the panel preferred the evidence

that CV had been at high risk for serious bodily harm to himself on multiple occasions prior to the CTO being issued.

In this regard, the panel found MV’s testimony and the documentary record compiled by Dr. Dimanno (which was

based on his personal knowledge as CV’s attending physician at CVH and his review of CV hospital records) to be

highly credible.

50 The panel considered CV’s testimony that he had experienced no auditory hallucinations since 2016. CV agreed

with Dr. Kantor that that he was not disputing the veracity of his Psychiatric Progress Notes from 2016 through 2018.

Those notes indicated that CV was still hearing voices on Aug 17, 2017 (Exhibit 8, p. 2) and on January 29, 2018.

(Exhibit 9, p. 2) The January 29th note documenting CV’s discussion with Dr. Kantor about his father playing “low-

frequency voices” was persuasive that CV was still hearing voices in January and still perceived this delusion to be



“electronic harassment” (italics added by Dr. Kantor in his note). The panel accepted Dr. Kantor’s evidence that even

after the CTO had been in place for some time, CV remained preoccupied by command hallucinations.

51 The panel found that the evidence offered by Dr. Kantor about the history of CV’s mental disorder to be clear

and compelling. The panel was persuaded by MV’s testimony describing CV’s symptoms of substantial mental

deterioration when he was not treated in the past. CV did not challenge his mother’s evidence that he became unwell

when he was not medicated or her description of his symptoms when unwell. He appeared to take issue only with her

opinion about the speed with which symptoms of mental deterioration returned if had been medication non-adherent.

Dr. Kantor’s documentary evidence (Exhibit 5 and his progress notes) was persuasive that when he was not being

treated or not receiving medication at the prescribed dosages, CV became paranoid, the intensity of his delusions of

abuse by his father and of being harassed by other people increased, he heard voices that denigrated him, and all this

led to him feeling distressed, fearful, hopeless and suicidal. The panel was also persuaded by Dr. Kantor’s evidence

that before the CTO and before the support of the SHIP ACT team, CV was unable or unwilling to take his medications

each day without his mother’s supervision. Based on the foregoing, the panel concluded that the evidence established

that in the past when CV’s schizoaffective disorder was untreated or inadequately treated, he had suffered substantial

mental deterioration and was likely to cause serious bodily harm to himself. Evidence about his current mental

condition persuaded the panel that the same outcome would occur if the CTO was not confirmed.

Consent of CV’s SDM has been obtained

52 Dr. Kantor had found CV incapable of consenting to his CTP. Salvatore Maletta, Treatment Decisions

Consultant for the Office of the Public Guardian and Trustee which was the SDM for CV signed the CTP on April 23,

2018. (Exhibit 3, pp. 2 and 4) Based on this evidence, the panel found that this criterion had been satisfied.

53 Based on the foregoing evidence and analysis, the panel concluded that Dr. Kantor had established, on a balance

of probabilities that CV met the criteria for an application for psychiatric assessment on the grounds he was likely to

result in serious bodily harm to himself, or to experience substantial mental deterioration (”Box B” criteria in section

15(1.1) of the MHA).

If CV did not receive continuing treatment or care and continuing supervision in the community is he likely to

cause serious bodily harm to himself or to suffer substantial mental deterioration?

54 Dr. Kantor testified to his opinion that if CV were not subject to a CTO, he would fail to follow the prescribed

treatment. His evidence was that this outcome was inevitable because CV lacked insight into his illness, did not believe

that he needed treatment, and his history in the mental health system demonstrated a consistent and ongoing effort

over a period of years to avoid adequate treatment. This included CV hiding his medication non-adherence, and

questioning the need for contact with his mental health team in the community. (Exhibit 1)

55 MV testified that she believed if CV were in charge of his own medication, there was a high risk that he would

stop taking it. The preceding section referenced evidence of persistent medication non-compliance at a time when CV

was not compelled by a CTO to accept treatment. Starting in early 2014, CV had been a service recipient of the SHIP

ACT team. (Exhibit 6) For two and one-half years before Dr. Kantor issued the first CTO in November 2016, Dr.

Kantor’s evidence was that non-adherence was an issue even though he was receiving some ACT team support with

his medication regimen. The Progress Notes indicate that in August 2015, while CV was in hospital MV discovered

that her son had been hiding medications in his pillow case and around his apartment. (Exhibit 6) In February, 2016

on taking over CV’s care, Dr. Kantor was advised by staff that CV was believed to be taking only 20 percent of his

prescribed clozapine dosage. (Exhibit 7, p. 1) CV confirmed this a few days later when he advised Dr. Kantor that he

had discontinued the Epival months earlier and significantly decreased his clozapine dosage because he saw very little

correlation between his symptoms and the medication. (Exhibit 7, p. 2) On March 31, 2016, days after his discharge

from Mississauga Hospital, Dr. Kantor wrote of his meeting with CV: “He says that he takes the Epival only because

of the fear he will be hospitalized should he discontinue it.” (Exhibit 7, p. 4) In September 2016, CV expressed to Dr.

Kantor that he wished to be discharged by the ACT team because his concerns about his father and others spying on



him had been neglected by the mental health professionals. (Exhibit 7, p. 6) In December 2016, after the CTO was

issued, he told Dr. Kantor that he wanted his clozapine dosage lowered. CV also said that the medication had, over

the years, “been a primary factor in not being able to complete school and not being able to maintain meaningful

employment”. (Exhibit 7, p. 11) On January 30, 2017, CV asked Dr. Kantor that the frequency of his visits with the

ACT team (when they observed him take his medication) be reduced from thrice weekly to once weekly. Dr. Kantor’s

note indicted that he believed that this would lead to missed dosages. (Exhibit 8, p. 1) In his testimony, Dr. Kantor

explained that he subsequently agreed with CV to reduce the ACT team observational visits provided that CV accepted

medication in a long acting injectable form.

56 CV testified that if the panel did not uphold the CTO, his plan was to continue to accept support from the SHIP

ACT team, and to follow Dr. Kantor’s treatment recommendations for another eight or nine years until he was finished

university. He said that his mental disorder could be managed with medication and by mental training his brain with

exercise, study and good lifestyle habits. He testified that if he discontinued his medications, there was a risk which

he did not wish to take, of relapse. He explained that in years past he had been skeptical that he required treatment for

mental disorder but he had changed his mind after receiving “plenty of support”. CV said that if he did hear voices,

he would speak with the ACT team and talk to Dr. Kantor about increasing his medication. When the panel asked how

he would know if he was getting ill since many people who hear voices and have delusions do not recognize these as

symptoms of mental illness, CV repeated that he would seek out support groups and the assistance of the ACT team.

When pressed by Dr. Kantor, CV said he would “100 percent most likely stay with the team” CV was asked why he

wanted the CTO revoked given that his testimony was that he planned to continue following it in all respects. He

answered that he wanted to be free to become his own decision maker and “to attain personal growth”. He told the

panel that “we miss every shot we don’t take”.

57 Dr. Kantor’s submitted that up until the day of the hearing, the evidence disclosed that CV had demonstrated a

consistent pattern of resisting medication. As recently as their meeting on July 9, 2018, CV had said that he continued

to believe that the Epival “is completely unnecessary and that if left up to himself, he would discontinue it” ...” (Exhibit

9, p. 8) CV also said that he wished to have his clozapine dosage lowered from 250 mg to 150 mg. At another point,

CV stated that if it was left up to him he would gradually lower his clozapine dosage until discontinued, and that he

would do this over a period of 6-8 years as he would be “cured” (Dr. Kantor’s italics) after that time.

”Later in the session he said that he feels if he was to discontinue clozapine now the chances are low that he

would relapse. He also said that he sees no need to be involved with community mental health support in that if

left up to him, he would discontinue contact with the team. I reminded him of my previously expressed opinion

(and expressed on a number of occasions [that without continuing medication, he will, based on the nature of his

illness and his own history, inevitably relapse; and that his involvement with the team in fact, has been a valuable

support to him and upon which he has relied in the past”. (Exhibit 9, p. 8)

58 Dr. Kantor’s submission was that it did not matter whether CV was being honest on the day of the hearing or

was trying to convince himself of something. He submitted that the panel ought to consider that CV’s testimony was

contradicted by the rest of the evidence which indicated that it was unlikely that CV would alter his behaviour.

59 The evidence demonstrated that with the support and supervision provided by Dr. Kantor and the SHIP ACT

team under the CTO, CV had been able to remain in the community without further hospitalizations. Absent treatment,

there was clear, compelling and cogent evidence that CV would suffer deterioration with a significant worsening of

his symptoms. Past experience indicated that if CV discontinued medication or did not adhere to the prescribed dosage,

and without close support and supervision by the SHIP ACT team, he would experience an increase in the intensity

of his delusions and auditory hallucinations that were likely to result in him suffering substantial mental deterioration

and causing serious bodily harm to himself and either outcome would likely lead to him being admitted to hospital.

The panel considered CV’s testimony that his intention was to continue to take his prescribed medication and to rely

on support from the ACT team. The panel agreed with Dr. Kantor’s submission that regardless of whether or not CV

was being honest in this testimony, on balance the evidence favoured the conclusion that absent the CTO, CV was

unlikely to remain medication adherent or to obtain social and therapeutic benefit from an ongoing relationship with

the ACT team. The panel considered the evidence of: CV’s history of medication non-adherence; his ongoing



resistance to the CTO and to the prescribed medication dosages; his expressed doubts about the usefulness of

medication; and finally, evidence that as recently as seven weeks prior to the hearing, CV said that if it were left up to

him he would discontinue or reduce his medication and would terminate his relationship with the ACT team. The

panel did not find CV’s explanation for why he had recently changed his mind to be particularly credible. The panel

observed that CV repeated his key points word for word when he was asked questions, and sometimes contradicted

himself. The panel found Dr. Kantor’s testimony and his documentary evidence were consistent and credible. For all

these reasons, the panel preferred the evidence and submissions of Dr. Kantor. The panel concluded that there was a

preponderance of evidence that CV was likely to experience substantial mental deterioration and to cause serious

bodily harm to himself in the absence of continuing treatment or care and continuing supervision in the community.

Was CV able to comply with the CTP?

60 Dr. Kantor’s evidence (Exhibit 2) was that CV was able to access all the services that were required under the

CTP. CV received support from the SHIP ACT team which provided community-based mental health support, and he

had been on a prior CTO. The panel found that CV was able to comply with the terms of the CTP.

Was the treatment or care and supervision required by the CTO available in CV’s community?

61 Dr. Kantor’s evidence (Exhibit 2) was that the treatment or care and supervision required by the CTO were

available in CV’s community. There was evidence presented that members of the SHIP ACT team visited CV

regularly, administered and monitored his medication intake, provided social and other therapeutic support which CV

found helpful, and they monitored his mental and physical condition. CV was also able to attend appointments with

Dr. Kantor. The ACT team were available to continue these services. The panel concluded that the treatment or care

and supervision required by the CTO were available in CV’s community.

Capacity to Consent to Treatment

Did the evidence establish that CV was unable to understand the information relevant to making a decision about

the treatment in question?

62 Dr. Kantor’s evidence (Exhibit 1) indicated that he believed CV was able to understand the information relevant

to making a decision about the proposed treatment of his mental disorder. There was no evidence that indicated CV

was unable to understand the information provided to him about treatment.

Did the evidence establish that CV was unable to appreciate the reasonably foreseeable consequences of a decision

or lack of decision about the treatment in question?

63 Dr. Kantor testified that he had conducted a capacity assessment at every meeting he had with CV for the past

three years while CV had been his patient. The most recent capacity assessment was carried out on July 16, 2018.

(Exhibit 9, p. 8) Dr. Kantor found that CV was stable but he continued to lack insight into his illness and need for

adequate treatment regarding the use of his psychotropic medication regimen (anti-psychotic and mood stabilizing

medications), as well as the CTP. (Ex 9, p. 9) His evidence was that CV did not accept that he required treatment for

a mental disorder because he did not recognize that that his fixed delusional system was a symptom of that disorder

and that he was therefore incapable of appreciating the consequences of a decision to accept or reject treatment. Dr.

Kantor was asked to explain on what basis he believed that CV remained incapable of consenting to treatment as of

the day of the hearing given that he had last assessed CV’s capacity on July 16, 2018. He replied that in his experience

and according to the research literature, it was very unlikely that an individual with schizoaffective disorder who had

been repeatedly assessed over a nine year period and continuously found to be incapable of making treatment decisions

would suddenly gain insight into their illness. Further, the literature indicated that fifty percent of people with

schizoaffective disorder lacked insight into their condition.



64 With regard to the information provided to CV, Dr. Kantor testified that he had, as of previous occasions,

informed CV that he had schizoaffective disorder, and that he required treatment which included anti-psychotic and

mood stabilizing medications and the support and monitoring provided under a CTP in order to help with the

distressing thoughts and behaviours that led to him being hospitalized on multiple occasions. Dr. Kantor’s evidence

was that he reviewed with CV the possible movement and metabolic adverse effects of his medications. (Exhibit 9, p.

5) He further testified that it was his practice to provide patients with information in a written form that movement

effects included tremors, restlessness, rigidity and the metabolic effects included an increase in blood sugar,

cholesterol and weight gain. He testified that he did not believe that CV was experiencing any of these adverse effects.

65 With regard to what Dr. Kantor told CV about the reasonably foreseeable consequences of a decision to accept

treatment with psychotropic medications and the CTP, or lack of a decision to accept Dr. Kantor’s treatment

recommendation, Dr. Kantor’s Psychiatric Progress Note of July 16, 2018 stated that:

”I reminded him of my previously expressed opinion [and expressed on a number of occasions) that without

continuing medication he will, based upon the nature of his illness and his own history, inevitably relapse; and

that involvement with the [ACT] team has in fact, been a valuable support to him and upon which he has relied

in the past.” (Exhibit 9, p. 8)

66 According to Dr. Kantor’s Psychiatric Progress Notes, CV said that he was aware that Dr. Kantor had explained

to him in the past that his psychiatric illness was not curable and that he would require medication indefinitely. (Exhibit

9, p. 8) However, CV advised Dr. Kantor that he wished to gradually lower his clozapine dosage over six to eight

years until discontinued. He also stated that he believed that after that period of time he would be cured. “Regarding

Epival he continues to believe that it is completely unnecessary and that if left up to himself, he would discontinue

it”. (Exhibit 9, p. 8)

67 Dr. Kantor’s evidence was that CV was unable to appreciate the reasonable foreseeable consequences because

CV did not believe had a mental disorder or that he had symptoms of a disorder. When questioned by the panel, Dr.

Kantor could not say for sure whether CV disagreed that he had schizoaffective disorder or accepted that he had such

a disorder but denied that he experienced any symptoms. Dr. Kantor testified that CV believed that the origin of his

problems was alleged abuse by his father though there was “not an iota of evidence” of any abuse having occurred.

CV’s belief that he had been abused was a delusion or a “fixed delusional system”. Dr. Kantor testified that it was

unrealistic to believe, as CV did, that his father had planted listening and watching devices in his son’s room and

apartment. MV testified that CV’s father had not spied on CV, and had not rigged up appliances to conduct surveillance

in his apartment. In fact she said, CV’s dad “had no problem” with CV.

68 Dr. Kantor’s evidence was that: “As in the past, [CV] said that he believes that abuse from his father is what led

to his schizoaffective symptoms and believes that because the abuse has been eradicated, that it is only a matter of

time before the patient is cured” (Ex 9, p. 5) Dr. Kantor’s Psychiatric Progress Notes of July 16, 2018 indicated: “He

continues to believe that his father abused him, including the use of electronic devices planted in appliances in the

patient’s apartment”. (Exhibit 9, p. 8) Following his January 29, 2018 meeting with CV, Dr. Kantor wrote:

”Patient says that he hopes “in a few years” to come of off his medication — “If you don’t try you don’t succeed”.

Patient said that within that timeframe he will be able to function well without medication because more time

will have gone from when he last had contact with father, and during which more time he will be continuing to

think positively. He says that he “made changes to my thought processes”, saying that he is thinking “more

positive thoughts”. (Exhibit 9, p. 2)

69 On August 17, 2017, Dr. Kantor’s noted that: “[CV] says that he agrees with the diagnosis of being “schizo”

but denies current symptoms. When asked what his symptoms were he said “paranoia” and, as in the past, referred to

his father having persecuted him. He clearly does believe that this persecution occurred.” (Exhibit 8, p. 2) At the same

meeting with Dr. Kantor, CV also disclosed about having heard a male and female voice who were, he said, speaking



at the behest of his father. “When asked to describe this further, he said “If I talk about that I’ll be unfairly treated”

for fear that he will be hospitalized and/or medication dosages raised”. (Exhibit 8, p. 2) Dr. Kantor wrote of his March

31, 2016 meeting with CV:

”He does not believe that he requires Epival but will take it. He was vague and contradictory about clozapine,

upon several occasions saying that it is only helpful with sleep, but at other times stating that it helps his

symptoms of “schizoaffective” such as paranoia. He said that he does believe that clozapine is at least partially

helpful. He says that he takes the Epival only because of the fear that he will be hospitalized should he discontinue

it....He did not refer to adverse effects from medication and none are apparent” (Exhibit 7, p. 4)

70 On hearing from Dr. Kantor that his mother and the ACT team on January 30, 2017 that they believed he was

in a healthier mental state and level of functioning when he took a higher dose of clozapine, CV responded that he

wished to lower the dosage because “I can take care of myself”. (Exhibit 8, p. 1) On December 1, 2016, Dr. Kantor

wrote of that CV told him that day that he believed that medication over the years had been a primary factor in him

not being able to complete school or maintain meaningful employment. (Ex 7, p. 11)

71 In his oral testimony, CV acknowledged that he had been diagnosed with schizoaffective disorder. He stated

that he was aware that there was no cure and that it must be managed with medication, in his case, anti-psychotic and

mood stabilizing medications, and by mentally training one’s brain, which he was doing through exercise, study and

other good habits. He denied that schizoaffective disorder could be cured. He stated that management of the disorder

required that he take medication for the rest of his life. When pressed to explain why he had consistently denied for

years the usefulness and effectiveness of mood stabilizing and anti-psychotic medications and the CTP, but was now

saying that he accepted that these were necessary for lifelong management of his mental illness, CV said simply that

he had changed his mind and suggested that had benefitted from support from others (meaning presumably that this

support had allowed him to grow and see things differently). At another point in his cross-examination he explained

the change as “everyone has doubts about the origin of their mental illness”. Lastly he explained the change was due

to his realization that his disorder was “not 100% caused by abuse that he suffered. He explained that whether or not

his schizoaffective disorder originated with his father’s abuse, “I’m no longer blaming my father”. He was taking

responsibility for himself, he said. Dr. Kantor pressed CV to clarify whether he believed the chance of relapse was

low if he stopped medication, as he had previously asserted to Dr. Kantor at their meetings. CV replied that he could

not answer that question. Then after a brief pause he stated that there was a high chance that symptoms would return

if he discontinued his medications.

72 Dr. Kantor submitted that CV’s testimony at the hearing was belied by all the evidence of him having

consistently resisted anti-psychotic and mood stabilizing medications and the CTP. He also submitted that a person’s

willingness to take medication was not synonymous with capacity. Ms. Corcoran, counsel for CV, submitted that if

fifty percent of persons with schizoaffective disorder lack insight into their illness, then it seemed that CV was one of

the other fifty percent who could “cross over” and regain capacity.

73 The panel concluded that there was strong evidence indicating that for years CV had believed that he had been

persecuted and harassed by his father who spying on him and that he genuinely believed that this was the origin of the

distress and fear he experienced. Evidence from Dr. Kantor’s 2016 to 2018 Psychiatric Progress Notes (Exhibits 6, 7,

8 and 9) indicated that CV was preoccupied by this unrealistic, delusional belief which he raised at most of his

meetings with Dr. Kantor. There was also reliable, consistent and uncontroverted evidence that CV had long resisted

medication. He had a history of medication non-adherence. He had tried repeatedly to have the dosages of his

medications reduced and to discontinue some medications. CV also denied that medications had benefitted him. He

told Dr. Kantor that there was very little correlation between medicine and his symptoms (Exhibit 7, p. 2) despite

persuasive evidence (contained in Dr. Dimanno’s discharge summary, (Exhibit 5)) that CV’s symptoms had rapidly

improved when he was treated with appropriate doses and types of medication. There was also evidence before the

panel that CV did not believe he needed treatment with medication; that he could “cure himself” by avoiding being

surveilled by his father and thinking positively; and that he “could take care of myself”. CV contradicted himself

sometimes too. The Psychiatric Progress Notes indicate that CV had acknowledged he had schizoaffective disorder

(but denied having symptoms) and at other times he denied that he had symptoms but simultaneously mentioned the



distress and damage that his father’s surveillance and harassment had caused him. He was similarly contradictory

about the usefulness of the medication - sometimes saying that clozapine was only helpful for sleep, and sometimes

saying it helped reduce paranoia. On March 31, 2016 he said that Epival would keep him out of hospital (which

possibly showed that he appreciated its benefits) at the same meeting with Dr. Kantor he said that he did not require

Epival (which definitively showed that he did not appreciate its benefits). In short, there was a strong preponderance

of evidence that prior to the hearing, CV had almost consistently doubted the usefulness of medication and had resisted

it.

74 The panel carefully considered CV’s testimony acknowledging that he had schizoaffective disorder, that there

was no cure, and that it could only be managed with medication. The panel did not find credible CV’s responses to

the question of why he had changed his mind after years of consistently doubting the usefulness of anti-psychotic and

mood stabilizing medications. The panel preferred the evidence of Dr. Kantor which it found to be clear, cogent and

compelling. The panel accepted the evidence put forward by Dr. Kantor which indicated that CV genuinely believed

that he was being surveilled and that this powerful delusion rendered him incapable of recognizing the consequences

of accepting or declining to accept Dr. Kantor’s treatment recommendations.

75 When questioned by the panel, Dr. Kantor could not say for sure whether CV disagreed that he had

schizoaffective disorder or accepted that he had such a disorder but denied that he experienced any symptoms. Dr.

Kantor testified that CV believed that the origin of his problems was alleged abuse by his father though there was “not

an iota of evidence” of any abuse having occurred. CV’s belief that he had been abused was part of a “fixed delusional

system”. Dr. Kantor testified that it was unrealistic to believe, as CV did, that his father had planted listening and

watching devices in his son’s room and apartment. MV testified that CV’s father had not spied on CV, had not rigged

up appliances to conduct surveillance in his apartment. He also believed that when this surveillance or abuse had been

eliminated, and with the passage of time, the distress he felt would dissipate, and he would be “cured”.

76 In the Starson v. Swayze case, the Supreme Court of Canada made the following comments about the issue of

capacity:

”While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental

“condition”, the patient must be able to recognize the possibility that he is affected by that condition....a patient

is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in

negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of

that condition. Nonetheless, 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.” (at pp. 761-762 Emphasis added)

77 The Starson case did not require CV to agree with the specific diagnosis of schizoaffective disorder but it did

require him to acknowledge that he was affected by the manifestations of a mental disorder. Although there was some

inconsistency in how CV described his “abuse” experience, the panel accepted the evidence that on balance CV did

not believe he had a mental disorder with manifestations or symptoms. He believed instead in his delusion of abuse

which caused him distress and prevented him from being to recognize how he could acquire lasting relief. The effect

of this was that CV denied having a mental condition or the manifestations of a mental condition and so declined

treatment recommendations without appreciating the consequences of his doing so. The panel accepted Dr. Kantor’s

evidence that:

[CV] does not appreciate the consequences of a decision to take or not follow the prescribed treatment. The

evidence is unequivocal that his medications at the prescribed dosages have a markedly positive effect and that

continued use is necessary to maintain that effect. Mr [CV] does not believe that is the case. He also questions

the need for contact with his mental health team in the community yet this is the only consistent means of support”

(Ex 1)

78 The panel concluded that as a result of his mental condition CV lacked the ability to apply the relevant

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information to his circumstances, and weigh the risks and benefits of the medications and the CTP. CV was unable to

appreciate the consequences of his decision to forego treatment, and was also unable to consistently consider the

benefits from treatment or consistently recall how he much he had benefitted from treatment in the past. Dr. Kantor’s

evidence was that he had, in fact, responded very well to antipsychotic medication. For all of these reasons, the panel

concluded that there was sufficient evidence presented to rebut the presumption of capacity, and to find that CV did

not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the

psychiatric treatment in question.

RESULT

79 For the foregoing reasons, the panel unanimously confirmed CV’s CTO, and also for the foregoing reasons, the

panel confirmed the finding that CV was incapable of consenting to treatment with anti-psychotic medications and

mood stabilizing medications and the CTP.

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IN THE MATTER OF the Mental Health Act R.S.O. 1990 ......CV, Re, 2018 CarswellOnt 22836 2018 CarswellOnt 22836 2018 CarswellOnt 22836 Ontario Consent & Capacity Board CV, Re 2018 CarswellOnt