A.M. v. Benes, (1999) 126 O.A.C. 216 (CA)

• Judge: Abella, Laskin and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 10, 1999
• Jurisdiction: Ontario
• Citations: (1999), 126 O.A.C. 216 (CA)

A.M. v. Benes (1999), 126 O.A.C. 216 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. NO.039

In The Matter Of an application under section 37(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A;

And In The Matter Of an appeal under section 37(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A.

A.M. (appellant/respondent on appeal) v. Dr. Catherine Benes (respondent/appellant on appeal)

A.M. (respondent/respondent on appeal) v. The Attorney General of Ontario (intervenor/appellant on appeal)

(Court File Nos. C31005; C31972)

Indexed As: A.M. v. Benes et al.

Ontario Court of Appeal

Abella, Laskin and Moldaver, JJ.A.

November 10, 1999.

Summary:

M.'s daughter was admitted to a hospital suffering from schizophrenia. M., who was her daughter's substitute decision-maker (SDM) under the Health Care Consent Act, refused to consent to electro-convulsive therapy (ECT) for her daughter. Benes, the daughter's physician, applied to the Consent and Capacity Board under s. 37 of the Act for a review of the SDM's decision. The Board found that M. had not complied with her obligations under s. 21 of the Act and directed her to consent to the administration of ECT and anti-psychotic medication. M. appealed. She alleged that s. 37(3) of the Act, by purporting to authorize the substitu­tion of the Board's opinion for that of the SDM, violated the patient's rights under s. 7 of the Charter.

The Ontario Court (General Division), in a decision reported at 80 O.T.C. 85, held that: although the patient had long since been discharged from the hospital, making the appeal moot, it would exercise its discretion to hear the case; s. 36 of the Act, which permitted the Board to depart from the prior capable wish of a patient in limited cir­cumstances, did not violate s. 7 of the Char­ter or, alternatively, was saved by s. 1 of the Charter; the proper test on a s. 37 review of an SDM's treatment decision was a best interests test, not a good faith test and s. 37 was not unconstitutional because it permitted the substitution of the Board's opinion as to the best interests of incapable patients found to have expressed no applicable prior capable wishes. However, the court held that s. 37 was unconstitutional because constitutional rights of an incapable patient with respect to prior capable wishes were jeopardized be­cause the Act did not affirmatively and clearly require that the SDM be informed at an early stage of: the criteria to be applied by the SDM in making a substitute decision respecting a proposed treatment; the criteria to be applied by the Board in determining whether the SDM had decided in compliance with the Act; and the powers of the Board to override an SDM's treatment decision. The court deferred the declaration of invalidity for two years on certain terms and condi­tions. The Attorney General for Ontario and Dr. Benes appealed. M. cross-appealed.

The Ontario Court of Appeal allowed the appeals and dismissed the cross-appeal. Section 37 did not violate s. 7 of the Charter and the appeal judge should not have not have decided the administrative law issues after determining that they were moot.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms -Denial of liberty - What constitutes - [See Persons of Unsound Mind - Topic 1433 ].

Civil Rights - Topic 1393

Security of the person - Health care (incl. mental health) - Consent to medical treat­ment - Section 21(2) of the Health Care Consent Act set out a list of factors to be considered by a substitute decision-maker (SDM) in deciding an incapable person's best interests - Section 10(1)(b) of the Act stated that "A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act" - The Ontario Court of Appeal held that s. 10(1)(b) did obligate health practitioners to ensure that SDMs under­stood the requirements of s. 21 when deciding whether consent to a proposed treatment should be given or refused - See paragraphs 16 to 23.

Civil Rights - Topic 1393

Security of the person - Health care (incl. mental health) - Consent to medical treat­ment - [See Persons of Unsound Mind - Topic 1433 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - A substitute decision-maker (SDM) under the Health Care Consent Act refused to consent to electro-convulsive treatment for her daughter - The daughter's physician applied to the Consent and Ca­pacity Board for a review - The Board found that the SDM had not complied with her obligations under the Act and directed her to consent to the treatments - The SDM appealed - The daughter left the hospital without receiving ECT treatments - The appeal judge held that, had the ad­ministrative law issues not been rendered moot by the daughter's discharge, he would have remitted the matter to the Board for a rehearing - The Ontario Court of Appeal held that the judge should have refrained from deciding the administrative law issues - Further, the Board's decision was eminently reasonable - Thus, there was no basis in fact or law for ordering a rehearing - See paragraphs 28 to 30.

Persons of Unsound Mind - Topic 1433

Treatment - Consent - Substitute decision maker - Considerations - Best interests - Section 21(2) of the Health Care Consent Act set out a list of factors to be con­sidered by a substitute decision-maker (SDM) in deciding an incapable person's best interests - Section 37(3) of the Act permitted a correctness standard of review and allowed the Consent and Capacity Board to make its own determination of what was in an incapable person's best interests where there were no known prior capable wishes - An SDM submitted that s. 37(3), because it did not require the Board to defer to SDM decisions made reason­ably and in good faith, violated s. 7 of the Charter (liberty or security interests) - The Ontario Court of Appeal disagreed - See paragraphs 31 to 48.

Persons of Unsound Mind - Topic 1436

Treatment - Consent - Substitute decision maker - Review of decision by board - [See Persons of Unsound Mind - Topic 1433 ].

Cases Noticed:

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 17].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 21].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to [para. 22].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658; 13 Admin. L.R.(2d) 1, refd to. [para. 22].

Allsco Building Products Ltd. v. United Food and Commercial Workers Inter­national Union, Local 1288P (1999), 245 N.R. 67; 216 N.B.R.(2d) 1; 216 R.N.-B.(2e) 1; 552 A.P.R. 1 (S.C.C.), refd to. [para. 22].

Winko v. Forensic Psychiatric Institute (B.C.) et al. (1999), 124 B.C.A.C. 1; 203 W.A.C. 1; 135 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 22].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 29].

Statutes Noticed:

Health Care Consent Act, S.O. 1996, c. 2, sect. 10(1)(b) [para. 18]; sect. 21(2) [para. 36]; sect. 37(3) [para. 1].

Authors and Works:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 21].

Counsel:

Susan Metzler, for the appellant, Benes;

Suzan E. Fraser, for the respondent, A.M.;

Lori Sterling, for the appellant, Attorney General of Ontario;

Allan Chapnik, for the incapable person.

These appeals and cross-appeal were heard on September 15-16, 1999, by Abella, Las­kin and Moldaver, JJ.A., of the Ontario Court of Appeal. The Court of Appeal deliv­ered the following judgment on November 10, 1999.