Ms. Neto successfully appealed a decision of the Consent and Capacity Board (the “Board”) that had determined that she was not capable of consenting to the administering of several medications to treat bipolar affective disorder

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Capacity – Test – Right to refuse medical treatment – Mental health – Consent to treatment – Judicial review – Compliance with legislation

Neto v. Klukach, [2004] O.J. No. 394, Ontario Superior Court of Justice, February 10, 2004, Day J.

Ms. Neto is a 37-year old separated mother of one child. At the age of 15, Ms. Neto was diagnosed with manic depression and with the exception of a three-year span, she had been consistently taking the mood stabilizer Lithium.

On January 24, 2003, Ms. Neto was admitted to the Centre for Addiction and Mental Health in Toronto on her own accord to see Dr. Shugar, who had treated her previously. Upon attendance at the hospital Ms. Neto, was referred to the Emergency Department and a Form 1 Application for a Psychiatric Assessment under the Mental Health Act was executed. After execution of the Application Ms. Neto was transferred to the Emergency Assessment Unit of the hospital where she remained for two days until she was moved to the Acute Care Unit and placed under the care of Dr. Klukach.

Dr. Klukach found Ms. Neto incapable of making her own decisions with respect to treatment on the grounds that Ms. Neto refused to acknowledge that she had bipolar disorder or that she was manic. He took his medical opinion to the Consent and Capacity Board who held that Ms. Neto did not have the capacity to consent to treatment. While the Board found that Ms. Neto was able to understand the information relevant to making a decision about her treatment, two of the three-person Board found that she did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack thereof.

Ms. Neto appealed the decision of the Board to the Superior Court. In considering the decision of the Board, the court set out the statutory test of capacity, which is found at section 4(1) of the Health Care Consent Act, S.O. 1996, c. 2, Sch. A (the “Act”):

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.

The court then referred to Starson v. Swayze, [2003] 1 S.C.R. 722 (“Starson”), the leading judicial interpretation of the test for capacity. In Starson, the Supreme Court stated that the first branch of the test assesses intellectual understanding of relevant information as it applies to treatment. The second branch assesses the ability to evaluate, not just to understand, information. The court in Starson cautioned that capable individuals have a right to take risks and are presumed free to make decisions that are considered unreasonable. The test is not whether the choice by the patient appears reasonable or wise, but whether the patient is capable, within the meaning of the Statute, of making the decision.

The court applied the reasoning in Starson to the decision of the Board. In doing so, the court held that the Board erred on the first branch of the tests by requiring Ms. Neto to explicitly admit that she had a bipolar disorder and by disregarding her acknowledgement of her condition.

The court held that on the second branch of the capacity test, the ability to understand and appreciate, the Board’s function is not to determine what it thinks are in the best interests of the patient, and must avoid discounting the patient’s reported experiences of her illness and treatments because of the mental illness itself. While Ms. Neto may not experience delusions while taking antipsychotic medications, the evidence showed that Ms. Neto was capable of appreciating the foreseeable consequences of her decision not to take the proposed medications and her desire should have been respected.

After making these findings, the court held that the Board did not meet its onus in finding Ms. Neto incapable of consenting to treatment. The court found that the majority of the Board erred by requiring Ms. Neto to admit that she suffered from mental illness and by unreasonably concluding that she was not able to appreciate the consequences of a decision or lack of a decision regarding her treatment with the proposed medications. Ms. Neto had acknowledged her condition and was able to assess how treatment decisions affected her quality of life. Her opinions on these issues were not based on delusional belief. Since the Board did not meet its onus in establishing that Ms. Neto was incapable, Ms. Neto was presumed at law to have been capable of making her own decisions as to treatment and her appeal was granted.

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