Thompson v Ontario (Attorney General), 2016 ONCA 676

Posted By Liam Harris

Background

In 2000, the Ontario legislature introduced a series of amendments (Brian’s Law) to the Mental Health Act and the Health Care Consent Act, broadening the criteria for civil committal and creating a community treatment order (“CTO”) regime in Ontario. Motivated by the murder of media personality Brian Smith by a man suffering from untreated schizophrenia, the CTO regime is a form of compulsory psychiatric treatment imposed on individuals fulfilling prescribed criteria by their doctors. Patients, usually suffering from schizophrenia or related disorders, are ordered to comply with their treatment plan and face the possibility of involuntary hospitalization if they fail to agree to or to comply with the order.

CTO regimes and other forms of out-patient committal have attracted considerable legislative attention in recent decades. As mental health systems shift away from large-scale institutionalization, community treatment is seen by some as a favorable middle ground that provides people with the assistance they require without subjecting individuals to onerous involuntary detention. Detractors, however, point out that attaching the looming threat of committal to treatment plans risks broadening the scope of forced treatment. The delicate balance that needs to be struck between individual autonomy and enthusiasm for treatment in this type of regime invites constitutional scrutiny.

The Application

The application in this case, brought on behalf of Karlene Thompson by the Empowerment Council, challenged the CTO regime as an unjustifiable infringement of various Charter rights, primarily under section 7. The application judge found the scheme constitutional.

The central issues before the Ontario Court of Appeal included whether the applications judge misapplied the principles of fundamental justice, failed to properly consider the purpose of the legislation, or erred in his analysis of ss. 9, 10, 12 and 15 of the Charter.

The Appeal

The Principles of Fundamental Justice

The Court of Appeal affirmed the trial judge’s finding that the impugned provisions were not arbitrary, overbroad nor grossly disproportionate. In coming to this conclusion, the Court placed a great deal of emphasis on the fact that the CTO scheme is only applied following a highly specific assessment of a patient’s condition and treatment needs, a factor tied to the public health and public safety goals of the legislation. The personalized assessment process was found to minimize any risk that the application of CTOs would be arbitrary, overly broad or grossly disproportionate.

The Court also endorsed the trial judge’s refusal to delve too deep into the policy rationale of the scheme in light of contradictory evidence. The Court held that the available evidence reasonably supported legislative action and did not support a finding of arbitrariness, overbreadth or gross disproportionality.

The Legislative Purpose

The appellants submitted that the purpose of Brian’s Law was to protect public safety, and as such could not be constitutionally valid since there was no correlation between mental illness and violence. The Court of Appeal rejected this argument on the basis that the public safety purpose cannot be viewed in isolation from the purpose to improve mental health treatment.

The CCLA argued that improved treatment could not be a valid legislative objective because the treatment offered in the form of a CTO is coerced, in the sense that if a patient does not consent they face involuntary committal. The Court found this argument insupportable, distinguishing the effects of forced treatment from the purpose of improved treatment.

Further, they noted that coerced treatment can be a valid legislative objective in some circumstances and that since individuals subject to the CTO will meet the criteria for involuntary committal, the less restrictive CTO scheme does not amount to improperly coerced consent.

Other Sections of the Charter

The appellants’ arguments related to ss. 9, 10 and 12 replicated their section 7 arguments and were quickly dismissed by the Court of Appeal.

The Court of Appeal also agreed with the application judge that Brian’s Law was not discriminatory against those with mental disabilities for the purpose of s. 15(1). The detailed personal assessment provided for in the CTO scheme was held to be the “antithesis” of discrimination in the sense that nothing about the orders are based on presumed characteristics and the patient’s views are given priority in the assessment. The fact that this assessment process itself may be informed by discrimination in its application was rejected for a lack of factual basis.

Commentary

Thompson provides a strong endorsement of the constitutionality of CTO schemes. The fact that orders are issued further to an individualized assessment, and purport to serve not only the interests of the broader community but also of the patient, appears to have insulated the legislation from constitutional violation. However, CTOs continue to generate controversy across Canada as provincial health systems grapple with whether and how to approach their implementation. Amid a rapidly growing number of CTOs in effect in Ontario, some experts warn against potential abuses. This case may move the discussion around CTOs from the constitutional rights of patients to the design and implementation of the scheme.

Personal Health Data Breaches in Hopkins v Kay, 2015 ONCA 112

Posted By Jey Kumarasamy

Overview

The Ontario Court of Appeal’s decision in Hopkins v Kay involved a proposed class action proceeding against a hospital for the unauthorized access of personal health information by its employees.

The health information of the respondent, Erkenraadje Wensvoort, was improperly accessed by employees at the Peterborough Regional Health Centre (“hospital”). She was one of the 280 patients who were notified by the hospital, as required by Ontario’s Personal Health Information Protection Act (“PHIPA”), that the privacy of their personal health information had been breached. The respondent feared that her ex-husband, who had hurt her in the past, had orchestrated the breach in an attempt to locate her.

As a result, the respondent brought forward a common law claim for intrusion upon seclusion against the hospital and some of its employees.

The appellants sought to have the action dismissed on the grounds that PHIPA is an exhaustive code, which precludes the Superior Court from entertaining any causes of actions external to it, including those found in the common law.

The motion judge dismissed the appellants’ motion and allowed the respondent to bring her claim in the Superior Court.

The issue on appeal was whether the respondent is precluded from bringing a common law claim for intrusion upon seclusion in the Superior Court on the basis that PHIPA creates an exhaustive code. The Information and Privacy Commissioner of Ontario (“Commissioner”), who is responsible for the administration and enforcement of PHIPA, intervened in support of the respondent’s position.

Court of Appeal’s decision

The Court of Appeal concluded that PHIPA does not preclude a common law claim for intrusion upon seclusion. Their analysis centered on whether there was a legislative intention to create an exhaustive code with regards to PHIPA.

As there was no such explicit intention stated in PHIPA, the Court turned to the three factors listed by Cromwell J.A. in Pleau v Canada that should be considered when determining whether the legislature intended to create an exhaustive code.

First, the Court assessed whether “the process for dispute resolution” established in PHIPA is consistent with exclusive jurisdiction. To this extent, the Court recognized that the Act contains a “comprehensive set of rules about the manner in which personal health information may be collected, used, or disclosed across Ontario’s health care system.” However, the sections regarding the resolution of disputes give much discretion to the Commissioner, and the language (e.g. s. 57(4)(b) and s. 71) specifically contemplates the possibility that certain complaints related to personal health information may be the subject of a procedure that falls outside the scope of PHIPA.

Second, the Court looked at the “essential character” of the claim and asked whether the court’s assumption of jurisdiction would be consistent with the PHIPA scheme. The respondent’s claim for intrusion upon seclusion was based on the common law tort recognized in Jones v Tsige, and does not depend on PHIPA. The Court did not accept the appellants’ argument that allowing the respondent to pursue this cause of action would effectively amount to a circumvention of the statutory restrictions and limitations contained in PHIPA. Instead, the Court held that the respondent’s burden was higher now as a result of the additional elements required by a Jones v Tsige claim. The Court did acknowledge, however, that proof of actual harm is not required under the common law claim, unlike under PHIPA. Additionally, the alleged difference in the limitation periods of the two causes of actions was held to be insignificant in practice.

Finally, the Court assessed the Act’s capacity to afford “effective redress”. The Court once again highlighted the informal and discretionary nature of the review procedure under PHIPA, especially the Commissioner’s prerogative, pursuant to s. 57(4), to not review a complaint for any reason he or she considers appropriate. At this stage, the Court gave significant weight to the Commissioner’s own submission that “granting him exclusive jurisdiction over individual claims would impair his ability to focus on broader issues.” This, along with the Court’s own determination that the review procedure reflects a statutory focus on systemic issues, led the Court to postulate that it is plausible that many complaints of merit would never result in an order from the Commissioner.

Thus, the Court concluded that there was no legislative intention to create an exhaustive code and confer exclusive jurisdiction on the Commissioner.

Conclusion

The frequency and severity of personal health data breaches seem to be following a dangerous trend in Canada. The privacy commissioners of both British Columbia and Alberta have recently reported that health workers “snooping” on private data is among the most common breaches, and that “improper access of health information is becoming an epidemic.” In this context, the Court’s decision in Hopkins v Kay is a significant one. Allowing civil actions to be commenced outside the regime established by PHIPA for breach of personal health information in Ontario increases the legal options available to plaintiffs and potentially increases the legal risk for health information custodians.

Revisiting Hamilton Health Sciences Corporation v. D.H.

Posted By Chris Laliberté

When illness threatens to steal a child from their community, tensions can reach their limits as time runs out. Parents, doctors, social services, and others clash over how best to care for someone too young to comprehend what is happening to them. In the past, courts have grappled with complex issues where religious freedoms conflicted with life-saving operations, compelling parents to withhold consent. In the fall of 2014, the Ontario Court of Justice had these cases in mind as Justice Edward J. was tasked with deciding whether an eleven year-old First Nations girl (J.J.), suffering from acute lymphoblastic leukemia (ALL), would be taken into custody for chemotherapy treatment. The decision in this tragic case concerned a child’s capacity to consent to care, the applicability of Aboriginal rights claims to traditional practices, and whether parents choosing alternative treatments in good faith can be deemed to be endangering their child.

Trial Decision

The girl at the center of this case, J.J., was diagnosed with A.L.L. on August 13, 2014. She began chemotherapy treatment with the hospital (applicant), whose doctors estimated a 90% chance that J.J. would be cured. D.H., J.J.’s mother and the respondent in this case, pulled her daughter out of treatment to pursue a traditional alternative in keeping with their Six Nations heritage. The hospital, fearing that J.J. would almost certainly die without chemotherapy, filed an application under ss. 40(4) of the Child and Family Services Act (CFSA) to have her brought into the hospital’s care by court order. Justice Edwards J, presiding, had to decide whether the court served as the proper forum to decide this case, and whether D.H. has a valid Aboriginal right to practice traditional medicine pursuant to s. 35 of the Constitution Act, 1982.

Justice Edward J. found that the court was the proper forum to hear the claim, and that the Health Care Consent Act would not override the CFSA, consistent with the rulings in Children’s Aid Society of Toronto v. L.P. and Children’s Aid Society of Ottawa v. C.S. and J.S.. In deciding whether there was reasonable grounds to believe J.J was a child in need of protection for the purposes of the CFSA, the judge relied on the Van der Peet test to determine whether the practice of traditional medicine qualified as an Aboriginal right pursuant to s. 35 of the Constitution. Finding that the Six Nations and Haudenosaunee cultural practice of traditional medicines satisfied the test, and that s. 35 falls outside the scope of s. 1 of the Charter, Justice Edward J. concluded that D.H. had a constitutional right to pursue traditional treatments for J.J. As a result, the court ruled that J.J. was not a child in need of protection, dismissing the application.

Discussion

This case has only further obfuscated the already murky intersection between religious or traditional beliefs and the capacity of a child to consent or withhold consent to medical care. It is worthy of note that the court’s focus is only on the child’s capacity to consent to medical procedures, with no attempt to grapple with the child’s capacity to understand and apply the beliefs or traditions that would compel them to seek alternatives. Although the law purports the purpose to serve the best interests of our most vulnerable, children especially, courts seem reluctant to interfere with parental agency where actions are taken out of genuine concern for the child’s well-being, even if the associated risk is higher.

Further, the judge may have erred in the application of the Van der Peet test, allowing concerns regarding the erosion of Aboriginal rights to result in what the Court of Appeal may have deemed an overbroad accommodation. Justice Edward J. finds that the practice of traditional medicine qualifies as an Aboriginal right, but in the conclusion equates this with the pursuit of alternative treatments. The judge also never inquired into or specified which traditional treatments were protected under s. 35, a potentially erroneous application of Van der Peet that grants Six Nations peoples the right to practice alternative medicine generally, rather than those medicinal practices developed within their own traditions. Where a restrictive application may have limited the s. 35 right to the practice of medicinal traditions unique to Six Nations cultures, Justice Edward J.’s analysis extends the right to both practice and receive any form of alternative health treatment.

Rather than Appeal the decision, however, the Attorney General of Ontario collaborated with each of the parties to set a more promising precedent. In Justice Edward J’s clarification of his reasons for judgement, he recognized the Haudenosaunee peoples’ right to practice traditional medicine as in conjunction with, rather than in opposition to, all social and health services available to them. This clarification flows from the joint submission of the parties that J.J., whose cancer returned in March of 2015, would undergo chemotherapy treatments to supplement the traditional Haudenosaunee medicine she had been receiving. Through respectful discussion, all parties arrived at the most equitable and effective approach to the heart of this issue: J.J.’s best interest for a happy, fulfilling life. Perhaps a matter more of policy than of law, the example set by the Government of Ontario’s response to this case should guide other provinces to engage in dialogue and co-operation with First Nations communities as we continue down the path towards reconciliation.

To read more about this case and this topic, check out some of our other blog posts: How We Talk About Medicine: Pushing the Boundaries and Aboriginal Self-Determination and Institutional Healthcare: Building Trust and Collaboration.

Administering care without consent in F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria)

Posted By Jennyfer Pelletier

On January 4th 2015, the appellant was hospitalized due to convulsions caused by alcohol withdrawal. The appellant, 49, is a married father who has been struggling with an alcohol consumption problem for many years. During his hospitalization, the Court of Quebec authorized a motion for confinement in an institution to last until May 21st 2015.

At the end of January, the appellant’s situation improved and, while he remained in the hospital, he left the emergency unit. On February 10th 2015, Dr. Tourian, the appellant’s psychiatrist, stated in a report that the patient required housing in a care unit that would be equipped to manage his condition and potential deterioration. The appellant, however, manifested a desire to go home. Dr. Tourian believed the appellant was inapt and incapable of providing consent. Consequently, a month later, he instituted a motion at the Superior Court seeking an authorization for care that would authorize the hospital and the appellant’s psychiatrists, or any delegated physician or nurse, to administer medications and place the appellant in a care unit.

Superior Court

On March 18th 2015, the Honourable William Fraiberg found that the appellant was incapable of providing his consent pursuant to article 16 of the Civil Code of Quebec (CCQ). He allowed the respondents, the appellant’s psychiatrists as well as other doctors and nurses, to put in place a treatment program that would last 36 months.

Court of Appeal

The appellant appealed on three grounds: 1) the trial judge erred in refusing to postpone the hearing, 2) the trial judge appeared partial and 3) the trial judge erred in granting the authorization as the requirements set out in articles 16 and 12 of the CCQ were not satisfied. On July 6th 2015, the appellant was successful on all three grounds and the Court of Appeal ordered a new trial.

This summary will focus on the third ground of appeal as it relates to substantive health law. This ground of appeal illustrated the court’s interpretive framework when dealing with a request for authorization of care without consent. The Court of Appeal held that a motion for authorization to administer care is examined while keeping in mind the following:

  • Every person is inviolable and is entitled to the integrity of his person (article 10 CCQ)
  • No person may be made to undergo care except with his consent (article 11 CCQ)
  • No one can force a person capable of giving consent to receive care, even if that care is in their best interest and its refusal may lead to their death
  • Where a person is capable of providing consent, no one can intervene in their choice of treatment
  • The use of article 16 requires a judge to determine whether he or she is in the presence of a person who is incapable of giving consent and is refusing treatment

The Court of Appeal then elaborated on a two-step test to determine if the requirements of articles 16 and 12 of the CCQ are satisfied. The first step requires determining whether the patient is competent pursuant to article 16 of the CCQ. There is no presumption of inaptitude to consent simply because someone is subject to psychological or psychiatric treatments. To conclude that a patient is incompetent, a judge must find that the patient is (1) inapt to consent and (2) is categorically refusing treatment.

(1) To determine whether a person is inapt to consent, the following questions should be asked:

  • Does the person understand the nature of their condition?
  • Do they understand the goal of treatment?
  • Do they understand the risks of treatment, as well as the risks of not following the treatment?
  • Is their capacity to understand affected by their condition?

(2) To determine that someone is categorically refusing treatment:

    • There must be proof that the person is refusing the treatment for which the authorization is sought
    • If a treatment has not been offered yet, there cannot be a categorical refusal

If one of these two conditions is not met, the judge must reject the request.

If both conditions in the first step are met, the judge proceeds to the second step. Pursuant to article 12 of the CCQ, the judge must ask the following questions:

  • Is the treatment required, and if so, is it sufficiently described?
  • Do the benefits outweigh the negative consequences?
  • How long should the authorization be granted for?

Whether treatment is required must be determined in the sole interest of the patient while taking into account, as far as possible, any wishes they may have expressed.

In the present case, the Court of Appeal held that, even if the trial judge concluded that the appellant was inapt, he could not find that the appellant is categorically refusing treatment as it was revealed, through Dr. Tourian’s testimony, that the appellant has been taking the prescribed medication. Dr. Tourian testified that anti-psychotics were not required for the moment, but could be in the future. However, the court referred to recent jurisprudence stating that it is not in the tribunal’s power to act in a preventive manner. Hence, the analysis attempts to protect patients’ autonomy by providing a rigid framework and clearly defined parameters.

Bentley v Maplewood: the Right to (be Left to) Die?

Posted By Colleen Morawetz

In February 2015, the Supreme Court of Canada struck down a blanket ban on physician-assisted suicide in Carter v Canada. In light of this landmark case and the reality of our country’s rapidly aging population, questions of end-of-life care and patient autonomy have been pushed to the forefront of Canada’s political and legal scene. Less than a month after the Carter decision, the British Columbia Court of Appeal released Bentley v Maplewood Seniors Care Society, a judgment that applied the common law tort of battery to the so-called “right to die”. The court in Bentley grappled with such thorny topics as how to effectively honour an individual’s wishes once she loses most cognitive capabilities, what legal steps she must take to avoid potential ambiguity in her intentions, and if caregivers are legally required to let their patients die. Though this decision did not concern physician-assisted suicide, its subject matter is essentially an operationalization of the same broad principles – and all the ethical challenges they import.

The Trial Court Decision

In 2013, Mrs. Margaret Bentley’s family filed a petition to the Supreme Court of British Columbia, seeking a declaration that would prevent the staff at Maplewood Seniors Care Society from giving her food and water. Mrs. Bentley is an 83-year-old woman suffering from the seventh stage of Alzheimer’s disease. She has not spoken since 2010 and no longer recognizes family members.

Through her work as a nurse, Mrs. Bentley had seen how Alzheimer’s patients descend into “vegetative” states. As a result, in 1991, she wrote and signed a “Statement of Wishes” requesting that if she were ever in a state where there was “no reasonable expectation of [her] recovery from extreme physical or mental disability”, she be “allowed to die and not kept alive by artificial means or ‘heroic measures’”. The Statement, signed in the presence of two witnesses, appointed her husband to serve as her “proxy for the purpose of making medical decisions” should she lose the mental faculties required for legal consent. At the Maplewood Seniors Care Society, where Mrs. Bentley has lived since 2009, her disease has progressed to the point where she cannot feed herself without manual assistance. Her family argued that the Maplewood caregivers’ manual feeding contradicts Mrs. Bentley’s statement.

The BC Supreme Court upheld the common law presumption, encoded in such legislation as the BC Representation Agreement Act, that every adult is capable of making decisions about personal and health care. Only when an adult is proven to be incapable of consent will decision-making power transfer to another person. Based on expert testimony, the trial judge found that Mrs. Bentley still had the capacity to consent to being fed, and that opening her mouth and accepting food from a caregiver was a behavioural manifestation of consent. Furthermore, even if she had been unable to consent, the judge’s finding that feeding constitutes “personal care” as opposed to “health care” means that advance directives have no binding force. Personal care directives fall outside the narrow circumstances in the Health Care (Consent) and Care Facility (Admissions) Act that permit refusal of health care. Third, the judge found the Statement of Wishes to be too ambiguous to force the caregivers at Maplewood to stop feeding Mrs. Bentley, especially in light of a later statement that used slightly different wording. Finally, the judge ruled that even if there could be a substitute decision-maker, he wouldn’t have the legal authority to make a decision care providers believe would be medically inappropriate.

The Appeal

Of the multiple reasons for which the trial judge dismissed the original petition, Mrs. Bentley’s family appealed on the grounds that he did not properly consider the tort of battery. They argued that the Maplewood caregivers’ “prodding” of Mrs. Bentley’s mouth with a spoon at mealtimes constituted non-trivial contact. The only defense to the tort of battery is, of course, consent. As with consent defined in the legislative context, consent in the tort of battery is presumed for all adults.

In looking specifically at this tort, the Court of Appeal again found that Mrs. Bentley had the capacity to consent, and that by opening her mouth, she was communicating approval to be fed. Furthermore, it ruled that consent in the context of battery could not be delegated or communicated in advance: it arises in the present. The Court of Appeal affirmed the lower court’s dismissal of the petition, finding consent and thus no actionable tort of battery.

Discussion

What might the Bentley appeal decision, employing the same reasoning as the trial court, mean for “right to die” cases? In maintaining a restrictive definition of advance consent in decisions on medical care (which, in itself, is narrowly defined and contrasted with personal care), the BC Court of Appeal invoked subtle policy arguments. The court noted that “[i]t is a grave thing to ask or instruct caregivers to stand by and watch a patient starve to death.” It cloaked this concern in the existing BC legislative framework: in particular, within the Adult Guardianship Act that would characterize Maplewood’s staff as neglectful should they withdraw personal care assistance. This concern is undoubtedly legitimate: if the line between “personal care” and “medical care” collapses, and patients can give valid consent to be left to starve, will personal caregivers be responsible for overseeing this slow and painful process?

Furthermore, this question of advance consent takes the discussion far beyond the parameters of Carter, where the patient in question had full mental capacity. The Court of Appeal noted that “consent in the here and now” is the proper mechanism to give full expression to patient autonomy. The question thus arises about how the issue of a “right to die”, or – more narrowly – physician assisted suicide, will apply to individuals suffering from diseases that affect cognitive functioning. How will the autonomy of these patients be meaningfully protected? The Court of Appeal underlined that Bentley is not a constitutional case, and it limited its discussion to the narrow tort of battery. However, the legal questions surrounding advance consent and how provinces will adapt their current “medical decision-making” legislative webs to the post-Carter era remain open.