Court Rejects Invalid Capacity Assessment

TORONTO – December 3, 2002 – The Superior Court of Justice has just released reasons for decision in the case of Daugherty v. Stall. This case involved an appeal from a decision of the Consent and Capacity Board, which found the appellant, Mr. Daugherty incapable of managing property.

Mr. Daugherty was admitted to St. Joseph’s Health Centre as a general medical patient after suffering a stroke and an intra-cranial haemorrhage. The attending physician asked the respondent psychiatrist to assess Mr. Daugherty’s capacity to manage property. He did so, and found Mr. Daugherty incapable of managing property. On April 9, 2002, the respondent completed a Form 21 certificate of financial incapacity under the Mental Health Act. The Form 21 stated that the respondent examined Mr. Daugherty on April 8, 2002. However, the doctor’s order form declaring Mr. Daugherty a psychiatric as well as a medical admission was completed on April 9, 2002. As a result of the Form 21, the Public Guardian and Trustee became legally responsible for managing Mr. Daugherty’s property.

At the Board hearing, Mr. Daugherty's counsel Aaron Dhir brought a preliminary motion, arguing that the Board lacked jurisdiction on the basis of an invalid Form 21 (and thus an invalid Form 24). He argued that the capacity evaluation was unlawful, as it was conducted before Mr. Daugherty was declared a psychiatric patient on April 9, 2002. He further argued that given Mr. Daugherty was not a psychiatric patient, any assessment respecting his capacity to manage property should have been done under the Substitute Decisions Act. However, there was no record in the chart indicating that Mr. Daugherty was afforded the protections afforded under the Substitute Decision Act, including the right to be informed of the right to refuse the assessment.

The Board dismissed the preliminary motion and proceeded to find Mr. Daugherty incapable. In reasons released today, Mr. Justice Gerald Day quashed the decision of the Board and declared the Form 21 invalid. The decision represents Superior Court of Justice authority for the following propositions:

1. an individual must be a psychiatric patient before an evaluation of his or her capacity to manage property may be conducted under the Mental Health Act;

2. the issue of whether or not an individual is a psychiatric patient within the meaning of the Mental Health Act is not an issue that falls within the expertise of the Board. Rather, it is an issue of jurisdiction and thus a standard of review of correctness, not reasonableness, is applicable;

3. in order to be considered a voluntary psychiatric patient under the Mental Health Act, an individual must give his or her informed consent to such an admission. Further, it is essential that this consent be documented in the medical records;

4. uncorroborated hearsay evidence from a physician that an individual consented to an admission as a voluntary patient is insufficient to remedy medical records that do not document the individual’s consent; and

5. a physician cannot rely on findings, assessments or impressions obtained from unlawful assessments (i.e. assessments not made in accordance with statutory requirements) in subsequent lawful assessments.

Note: Mr. Justice Day’s decision is now reported in the Estates and Trusts Reports as Daugherty v. Stall (2002), 28 E.T.R. (2d) 8 (Ont. S.C.J.) and on Quicklaw as [2002] O.J. No. 4715 (S.C.J.).