In a recent judgement, JS v. Gelber et al., 2022 ONSC 2088, released on April 5, 2022, the Honourable Justice Koehnen ruled that Ontario’s health care system “cannot be permitted to use its own inefficiency in meeting statutory requirements as a basis for depriving vulnerable patients of statutory rights”.

In this case, the appellant (JS) appealed two decisions of the Consent and Capacity Board (the “Board”). The Honourable Justice Koehnen allowed the appeal on capacity to manage property and dismissed the appeal on capacity to consent to treatment. The facts of the case in respect to the issue allowed on appeal are as follows:

• On June 30^th, 2021 JS was found incapable of managing his own property pursuant to section 54 of the Mental Health Act (“MHA”). By August 12^th, 2021, JS was well enough to be released back into the community.

• Pursuant to section 57(1) of the MHA, a patient in a psychiatric facility in respect of whom a certificate of incapacity has been issued must be reassessed within 21 days of discharge to determine whether the patient remains incapable of managing his or her property. Since JS’s initial capacity assessment was more than 21 days old, Dr. Zalan, a Respondent, was obliged to conduct a further assessment before JS could be discharged.

• Dr. Zalan did so and determined that JS remained incapable and issued a Notice of Continuance, which continued the finding of incapacity to manage property. A patient’s rights upon a finding of incapacity to manage property or a Notice of Continuance are set out in s. 59 of the MHA.

• Dr. Zalan advised JS of his right to advice when he issued the Notice of Continuance. JS then asked to speak with a Rights Advisor. JS was, however, discharged from the hospital on August 12, 2021 before a Rights Advisor spoke with him. As a result, JS did not complete the relevant form to launch an appeal from the Notice of Continuance before he was discharged from the hospital.

• JS was later readmitted to North York General Hospital. During his re-admission, JS received rights advice about the Notice of Continuance that Dr. Zalan had issued on August 12, 2021. In response, JS indicated that he wanted to challenge the Notice of Continuance and completed and filed appeal forms with the Board on this same day.

• The Board concluded that it did not have jurisdiction to hear JS’ appeal because of the interplay between the definition of patient pursuant to the MHA and the Board’s past jurisprudence on the issue.

• The Board noted that the definition of patient is a person who “is” under care and held that, for the Board to have jurisdiction, JS had to have filed the appeal before he was discharged from the hospital on August 12, 2021.

Justice Koehnen held that the appropriate standard of review when an issue of procedural fairness is raised is correctness. When analyzing the proper approach to the statutory interpretation of the MHA, Justice Koehnen held that by focusing exclusively on the definition of patient, the Board lost sight of the need to read the wording of section 60 harmoniously with the overall scheme of the MHA: which is one that contains a mandatory obligation to make a Rights Advisor promptly available to a patient, pursuant to section 59. Accordingly, by limiting its analysis to the definition of “patient”, Justice Koehnen held that the Board had undermined the very scheme it was intended to enforce – the protection of vulnerable patients and their statutory rights.

This case serves as an eye-opening example of the complex statutory and administrative procedures that a vulnerable person believed to be incapacitated may encounter.

Thank you for reading,

Nicole Cianci