Superior Court Strikes Down Board Decision

BARRIE - February 4, 2005 - The Honourable Madam Justice Michelle Fuerst of the Superior Court of Justice has today struck down a decision of the Consent and Capacity Board that found Paul Conway incapable with respect to treatment.

Mr. Conway is held at the maximum-secure Oak Ridge division of the Mental Health Centre Penetanguishene under a disposition order of the Ontario Review Board. His detention was featured recently in the documentary film Torture and Freedom shown at the Rendezvous With Madness film festival.

Mr. Conway has a history of severe adverse reactions to traditional anti-psychotic medications. He was, until 1996 considered capable in his refusal of these medications. In 1996, however, Dr. Ian Jacques found Mr. Conway incapable in respect of all psychiatric treatment. As his substitute decision-maker, Mr. Conway's mother refused psychotropic medications based on his prior capable wishes. Dr. Jacques applied to the Consent and Capacity Board to challenge Mrs. Conway's refusal on the basis that Mr. Conway's prior capable wishes did not contemplate newer, atypical anti-psychotic medications.

The Board found that Mrs. Conway was not fulfilling her duties as substitute decision-maker in 1996. The Ontario Court General Division remitted the matter back to the Board in 1998, with direction that it consider whether a prior capable wish was applicable. The Board reconsidered the case in 2000 and and found that the prior capable wish not to receive traditional anti-psychotic medications did not apply to atypical anti-psychotics. The Superior Court of Justice then reversed the Board on this issue. Dr. Jacques appealed to the Ontario Court of Appeal and the Board's decision was reinstated in 2002. An application by Mr. Conway's mother for leave to appeal to the Supreme Court of Canada was refused in September 2003.

The above set the stage for Mr. Conway's challenge in early 2004 of the finding that he was incapable in respect of treatment. This was the first occasion on which he had challenged the finding of incapacity since it was made in 1996. The Consent and Capacity Board comprised of lawyer Gordon Michener, psychiatrist James Wilkes and community member Sandra Meagher convened to hear the application on March 23, 2004. The Board concluded that Mr. Conway was incapable in respect of treatment. It based its decision on a finding of fact that the Board had previously found Mr. Conway incapable and that the Court of Appeal and ultimately the Supreme Court of Canada had confirmed this finding. It then held that as Mr. Conway's condition had not improved since 1996, he remained incapable.

Swadron Associates was retained to represent Mr. Conway in the appeal from the Board's March 23, 2004 decision to the Ontario Superior Court of Justice. The appeal was heard by Madam Justice Fuerst in Barrie on January 20, 2005. On appeal, the Court held that the Board had erred in finding that the Court of Appeal and the Supreme Court of Canada had ruled on the issue of Mr. Conway's capacity when no such rulings had been made. The actual issue before those courts was whether Mr. Conway had expressed a prior capable wish applicable to atypical anti-psychotic medications.

Madam Justice Fuerst further held that the test of capacity was to be applied as of the date of the hearing, not in comparison to any prior finding. Finally, she held that the Board had substituted the second branch of the capacity test (whether the person is able to appreciate the reasonably forseeable consequences of a treatment decision) for the first branch (whether the person is able to understand the information relevant to making a decision), in effect asking the same question twice. The Board's decision was quashed and referred back with direction that a new hearing to be held within 60 days.

Marshall Swadron and Lisa Romano represented Mr. Conway on the successful appeal. Lise Favreau of the Ministry of the Attorney General represented Dr. Jacques. The case is now reported on Quicklaw as Conway v. Jacques, [2005] O.J. No 400 (S.C.J.). Please click here for the full text.