Conway v. Jacques et al., (2002) 159 O.A.C. 236 (CA)

• Judge: Sharpe, Cronk, and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 24, 2002
• Jurisdiction: Ontario
• Citations: (2002), 159 O.A.C. 236 (CA)

Conway v. Jacques (2002), 159 O.A.C. 236 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JN.032

Paul Martin Conway (appellant/respondent in appeal) v. Dr. I. Jacques (respondent/appellant in appeal) and Frances Conway (respondent/respondent in appeal)

(No. C36001)

Indexed As: Conway v. Jacques et al.

Ontario Court of Appeal

Sharpe, Cronk, and Gillese, JJ.A.

June 17, 2002.

Summary:

In 1996, Conway, a mental patient, was declared incapable of giving or refusing consent to treatment. Later a treating doctor requested Conway's mother, as a substitute decision maker, to consent to treatment. The mother refused, based on Conway's wishes stated before 1996. The doctor applied to the Ontario Consent and Capacity Board for a determination of whether the mother had complied with the statute (Health Care Consent Act, S.O. 1996, c. 2). The Board found that Conway's wishes, stated prior to 1996, were not applicable to later circumstances because, inter alia, his condition had deteriorated and more effective medication was available. Conway appealed.

The Ontario Superior Court allowed the appeal and set aside the Board's order. See [2001] O.T.C. 106. The treating doctor appealed.

The Ontario Court of Appeal allowed the appeal and restored the order of the Board.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The Ontario Consent and Capacity Board found that a mental patient's stated prior wishes, when he was capable, were not applicable to later circumstances (such as, a changed medical condition and improved available treatment) - The Ontario Court of Appeal stated that the standard for judicial review was whether the Board's decision was unreasonable - See paragraph 40.

Administrative Law - Topic 9118

Boards and tribunals - Judicial review - Curial deference to decisions of tribunals - The Ontario Consent and Capacity Board found that a mental patient's stated prior wishes, when he was capable, were not applicable to later circumstances (such as, a changed medical condition and improved available treatment) - The Ontario Court of Appeal stated that the decision of the Board on an appeal to the courts was to be accorded judicial deference - See paragraph 34.

Persons of Unsound Mind - Topic 1436

Treatment - Consent - Substitute decision maker - Review of decision by board - The Ontario Consent and Capacity Board found that a mental patient's stated prior wishes, when he was capable, were not applicable to later circumstances (such as, a changed medical condition and improved available treatment) - The Ontario Court of Appeal upheld the Board's decision - See paragraphs 27 to 40.

Cases Noticed:

L.L. v. I.T. (1999), 126 O.A.C. 227; 46 O.R.(3d) 284 (C.A.), refd to. [para. 20].

Fleming v. Reid (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 29].

Statutes Noticed:

Health Care Consent Act, S.O. 1996, c. 2, sect. 21 [para. 4].

Counsel:

Robert G. Coates, for Paul Martin Conway;

Rosalyn Train and Diana Schell, for Dr. I. Jacques;

Peter F. Haber, for Frances Conway.

This appeal was heard on April 24, 2002, by Sharpe, Cronk and Gellese, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., with Cronk and Gellese, JJ.A., concurring, released the following decision on June 17, 2002.