Fleming v. Reid and Gallagher, (1991) 48 O.A.C. 46 (CA)

• Judge: Robins, Grange and Carthy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Friday June 28, 1991
• Jurisdiction: Ontario
• Citations: (1991), 48 O.A.C. 46 (CA);1991 CanLII 2728 (NS CA);1991 CanLII 2728 (ON CA);4 OR (3d) 74;82 DLR (4th) 298;[1991] OJ No 1083 (QL);28 ACWS (3d) 238;48 OAC 46

Fleming v. Reid (1991), 48 O.A.C. 46 (CA)

MLB headnote and full text

Russell Fleming (applicant/respondent) v. George Reid by his litigation guardian, the Public Trustee (respondent/appellant)

Russell Fleming (applicant/respondent) v. Kenneth Gallagher (also known as Kenneth Gallacher) by his litigation guardian, the Public Trustee (respondent/appellant)

(Nos. 357/90; 356/90)

Indexed As: Fleming v. Reid and Gallagher

Ontario Court of Appeal

Robins, Grange and Carthy, JJ.A.

June 28, 1991.

Summary:

Reid and Gallagher were found not guilty of criminal offences by reason of insanity. Both were therefore involuntary patients at a psychiatric facility pursuant to the Criminal Code. They were diagnosed as schizo­phrenics. Their doctor, who was also the director of the institution, felt both patients were not competent to consent to psychiatric treatment but would benefit from neuroleptic drug treatment. The patients' guardian re­fused to consent to the drug treatment because, while mentally competent, both patients had refused to take these drugs believing them to be nonbeneficial or harm­ful. The doctor applied under s. 35a(1) of the Mental Health Act for an order authoriz­ing the proposed psychiatric treatment, notwithstanding the guardian's refusal of consent. A review board set up under s. 30 of the Act upheld the doctor's decision and issued an order author­izing the treatment. Reid and Gallagher appealed, arguing that the statutory scheme allowing such an order deprived them of their right to security of the person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.

The Ontario District Court, per Tobias, D.C.J., in a decision reported (1990), 73 O.R.(2d) 169, dismissed the appeal. Reid and Gallagher appealed again.

The Ontario Court of Appeal allowed the appeal and set aside the treatment orders issued by the review board. The court also declared ss. 35a and 35(2)(b) of the Mental Health Act inoperative insofar as the sec­tions empowered the "review board to auth­orize the psychiatric treatment of incompe­tent patients involuntarily confined in psy­chiatric facilities contrary to the refusal of the patient's substitute decision maker to consent to such treatment on the basis of the patient's prior competent wishes".

Civil Rights - Topic 1396

Security of the person - Health care (incl. mental health) - Drug treatment for the mentally ill - A doctor recommended neuroleptic drug treatment for two invol­untary incompetent psychiatric patients - The patients' guardian refused to consent to treatment because both patients had, while competent, refused the drugs - A review board, pursuant to ss. 35(2)(b)(ii) and 35a of the Mental Health Act, author­ized administration of the drugs, notwith­standing the guardian's decision and the patients' prior wishes - The Ontario Court of Appeal set aside the review board's order, holding that the statutory provisions, to the extent they permitted the order, were contrary to s. 7 of the Charter and could not be justified under s. 1.

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure contrary to fundamental justice - [See Civil Rights - Topic 1396].

Civil Rights - Topic 8348

Charter - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - [See Civil Rights - Topic 1396].

Persons of Unsound Mind - Topic 1404

Treatment - Drug therapy - [See Civil Rights - Topic 1396].

Cases Noticed:

In the Matter of Guardianship of Richard Roe (1981), 421 N.E. 2d 40, refd to. [para. 29].

Malette v. Shulman (1990), 37 O.A.C. 281; 72 O.R.(2d) 417 (C.A.), refd to. [paras. 32, 49].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, appld. [para. 40].

R. v. Rogers (1990), 61 C.C.C. (3d) 481 (B.C.C.A.), refd to. [para. 42].

Eve, Re (1986), 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273; 31 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 48].

Beson and Beson v. Director of Child Welfare et al., [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 49].

Reference Re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 69 B.C.L.R. 145; 36 M.V.R. 240; 18 C.R.R. 30; 24 D.L.R.(4th) 536, refd to. [para. 54].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 60]; sect. 7 [paras. 6, 39 et seq.].

Mental Health Act, R.S.O. 1980, c. 262, sect. 1(c) [para. 8]; sect. 1(g) [paras. 5, 9]; sect. 1a(1) [paras. 13, 14]; sect. 1a(6) [paras. 15, 16, 17, 21, 23, 50]; sect. 1b(1), sect. 1b(4), sect. 1b(5), sect. 1c [para. 14]; sect. 30 [para. 5]; sect. 33f [para. 22]; sect. 35(1)(b) [paras. 5, 10]; sect. 35(2) [para. 11]; sect. 35(2)(a) [para. 50]; sect. 35(2)(b)(i) [paras. 6, 11]; sect. 35(2)(b)(ii) [para. 6 et seq.]; sect. 35(2)(b)(iii) [para. 12]; sect. 35(5) [paras. 16, 18, 21]; sect. 35a [para. 6 et seq.]; sect. 35a(1) [paras. 18, 20, 21, 24]; sect. 35a(2) [para. 18]; sect. 35a(4) [paras. 20, 52]; sect. 35a(11) [para. 22]; sect. 35b [para. 5]; sect. 35c [para. 3].

Authors and Works Noticed:

Breggin, Brain Damage Dementia and Persistent Cognitive Dysfunction Associ­ated with Neuroleptic Drugs: Evidence, Etiology, Implications (1990), 11 Journal of Mind and Behaviour 425, generally [para. 29].

Brooks, The Right to Refuse Antipsychotic Medications: Law and Policy (1987), 39 Rutgers Law Rev. 340, generally [para. 29].

Dorland's Illustrated Medical Dictionary (26th Ed. 1981), p. 887 [para. 29].

Kemna, Current Status of Institutionalized Mental Health Patients' Right to Refuse Psychotropic Drugs (1985), 6 Journal of Legal Medicine 107, generally [para. 29].

Moonasar, Neuroleptic Malignant Syn­drome (1986), 79 South Med. J. 331, generally [para. 29].

Counsel:

Carla McKague and Anne Molloy, for the appellants;

Rosalyn Train, for the respondent;

Elizabeth Goldberg, for the Attorney Gen­eral for Ontario, intervenor.

This appeal was heard of February 4, 5 and 6, 1991, before Robins, Grange and Carthy, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Robins, J.A., and released on June 28, 1991.