Executive Summary: Key Legal and Evidentiary Issues

• Statutory appeal under s. 80 of the Health Care Consent Act from a Consent and Capacity Board decision confirming incapacity to consent to psychiatric treatment (antipsychotics, mood stabilizers, anxiolytics).
• Central dispute over whether a seven-day gap between the psychiatrist’s last formal capacity assessment and the hearing was sufficiently contemporaneous given that capacity can fluctuate.
• Challenge to the Board’s reliance on clinical and social work notes as corroborative evidence of persistent lack of insight, and whether this amounted to improper delegation of the capacity assessment function.
• Application of the Starson v. Swayze capacity test, particularly the distinction between mere disagreement with diagnosis and an inability to recognize the manifestations of one’s mental condition and appreciate consequences.
• Use and weighing of hearsay evidence in the Board’s reasons, and whether any misstatements in a social worker’s note created palpable and overriding factual error.
• Determination of the proper standard of review on a statutory appeal (correctness for law, palpable and overriding error for fact/mixed fact and law, and reasonableness) within the Vavilov framework.

Background and facts of the case

Darrell Bruder is a 64-year-old single man who became involved with the mental health and justice system after criminal proceedings raised concerns about his fitness to stand trial. He was admitted on August 11, 2025, to the Southwest Centre for Forensic Mental Healthcare under the care of psychiatrist Dr. Ashley Malka, pursuant to a court-ordered assessment of fitness. During this initial assessment period, Mr. Bruder was not prescribed medication but required seclusion on multiple occasions because of his behaviour. He was found unfit to stand trial on August 15, 2025. Following that finding, he began treatment under a court-ordered treatment regime starting September 4, 2025. That order remained in place until November 5, 2025, when it expired. While under the treatment order, he showed modest improvement when another antipsychotic medication, Ziprasidone, was added, but his level of insight into his condition did not change. After the treatment order expired, Mr. Bruder refused further psychiatric medication and has not accepted treatment since November 5, 2025. In the days and weeks following cessation of medication, staff observed deterioration in his mental status, including ongoing delusional content and the need for renewed seclusion. Against this background, on October 30, 2025, Dr. Malka made a formal finding that he was incapable with respect to proposed treatment in three medication classes: antipsychotics, mood stabilizers, and anxiolytics. The core of her opinion was that he remained unable to appreciate the reasonably foreseeable consequences of either accepting or refusing the proposed treatments.

Proceedings before the Consent and Capacity Board

Mr. Bruder challenged the incapacity finding before the Consent and Capacity Board, the specialist tribunal for health-care consent and capacity disputes in Ontario. The Board heard the matter by videoconference on November 20, 2025. The evidence included the oral testimony of Dr. Malka, her contemporaneous chart notes, nursing and clinical entries, and a social worker’s note. The Board accepted that Mr. Bruder met the first branch of the statutory capacity test—he understood information about his proposed treatment. However, it concluded that he failed the second branch: he could not appreciate the reasonably foreseeable consequences of his treatment decisions or non-decisions. In doing so, the Board recognized several key legal principles: the presumption of capacity in s. 4(2) of the Health Care Consent Act; the onus on the health practitioner to prove incapacity on a balance of probabilities with cogent and compelling evidence; and the need to admit but carefully weigh hearsay evidence. The Board placed primary weight on Dr. Malka’s oral evidence and written charting, which documented a persistent lack of insight from August 2025 onward, together with deterioration after medication refusal in early November. It also relied on recent entries: for example, a nursing note on November 13 recording “no insight into psychiatric illness or need for medication,” seclusion on November 12, and a November 18 social work note that he continued to deny mental illness and express his usual delusional content. Overall, the Board found it more likely than not that he remained incapable as of the hearing date, particularly because he could not recognize that he was affected by the manifestations of his mental condition and could not weigh the consequences of treatment refusal.

Legal framework for capacity and appeals

The Health Care Consent Act sets out the statutory test for capacity to consent to treatment. A person is capable if they can understand the information relevant to making a treatment decision and can appreciate the reasonably foreseeable consequences of making, or failing to make, that decision. There is an express presumption of capacity, and the onus is on the health practitioner to displace it. The Supreme Court’s decision in Starson v. Swayze elaborates that disagreement with a diagnosis or refusal of treatment does not, by itself, amount to incapacity. Instead, once a mental condition is established, the patient must be able to recognize at least the possibility that they are affected by the condition’s manifestations so that they can apply treatment information to their own circumstances and appreciate the potential consequences. The Court in Starson also stressed that “best interests” are not part of the legal test for capacity; capable individuals have the right to make unwise or risky decisions, and the mere presence of mental disorder does not equate to incapacity. On the appellate side, s. 80 of the Health Care Consent Act provides a statutory appeal from the Board to the Superior Court of Justice. Applying the framework from Canada (Minister of Citizenship and Immigration) v. Vavilov, the court treats such an appeal using ordinary appellate standards: questions of law are reviewed for correctness, findings of fact and mixed fact and law for palpable and overriding error, and where reasonableness review is engaged, the court looks at whether the tribunal’s decision is justified, intelligible, and transparent in light of the record and applicable legal constraints.

Issues raised on appeal

On appeal, Mr. Bruder argued that the Board’s decision should be set aside and that his capacity should be restored. He advanced several grounds, both legal and evidentiary. First, he said the Board erred by accepting a seven-day gap between the psychiatrist’s last formal capacity assessment (November 13) and the November 20 hearing, given the principle that capacity can fluctuate. In his view, the statute’s requirement that capacity be assessed “at the time of the hearing” effectively demanded a contemporaneous assessment on or very close to the hearing date, especially in psychiatric cases. Second, he submitted that the Board misapprehended or placed undue weight on a November 18 social worker’s note, treating it as if it were a formal capacity assessment contrary to the statutory assignment of capacity evaluations exclusively to health practitioners. Third, he argued that the Board failed to properly scrutinize hearsay and did not insist on sufficient corroboration, resulting in palpable and overriding factual errors. He relied heavily on Starson to argue that mere disagreement with diagnosis and treatment, or “dissident” views about psychiatry, should not be equated with incapacity, and asserted that the Board had drifted into assessing his perceived best interests rather than strictly applying the legal test. Vavilov was invoked to frame the standard of review and to support his contention that the Board’s reasons were not reasonable in light of the record.

Response of the health practitioner and defence of the Board’s decision

On behalf of the respondent, Dr. Malka, it was argued that the Board correctly applied the statutory test and that its decision fell squarely within a range of reasonable outcomes. The respondent emphasized that the statute speaks to capacity “at the time of the hearing,” but does not require a same-day or last-minute capacity assessment in every case. Where there is a long-standing, consistent lack of insight over several months, as reflected in repeated clinical and nursing observations, a seven-day interval between the last formal assessment and the hearing is not, by itself, fatal. The respondent further submitted that the Board did not improperly treat the social worker’s note as a capacity assessment. Rather, it relied primarily on the psychiatrist’s expert evidence and used the nursing and social work entries as corroborative and proximate evidence of persistent lack of insight. Any imprecise phrasing in the social worker’s note—such as stating that he “denied he required treatment”—was characterized as minor and immaterial to the overall outcome, given the broader evidentiary record documenting fixed delusional beliefs, denial of mental illness, and deterioration after treatment refusal. With respect to the Starson test, the respondent argued that the Board expressly differentiated between mere disagreement with diagnosis and a deeper inability to recognize the manifestations of one’s condition. The Board was said to have expressly acknowledged the presumption of capacity, the two-stage test, and the patient’s right to make unwise decisions, and to have grounded its findings strictly in the appreciation branch of the test rather than in best-interest reasoning.

Application of the capacity test and contemporaneity requirement

In assessing the “seven-day gap” argument, the Superior Court accepted that capacity can fluctuate and that the statute requires a determination of capacity as of the hearing date. However, the court concluded that the Board’s handling of this requirement was legally sound. The Board had expressly recognized the risk of fluctuation and expressly framed its task as deciding whether Mr. Bruder was capable at the time of the hearing. It acknowledged that there had been no reassessment after November 13, but it relied on a constellation of evidence: continuous lack of insight since August 2025; deterioration following the lapse of the court-ordered treatment and consequent refusal of medication; seclusion on November 12; a nursing note on November 13 documenting ongoing lack of insight; and a November 18 social work entry reporting continued denial of mental illness and persistence of delusional content. From this, the Board concluded it was more likely than not that the incapacity persisted through to November 20. The judge held that the statute does not mandate a day-of-hearing capacity assessment in every case and that, in circumstances where the record shows enduring lack of insight and very recent corroboration consistent with that trajectory, a seven-day interval does not amount to an error of law.

Use of clinical notes, hearsay, and the Starson framework

The court also addressed the challenge to the Board’s reliance on the social worker’s November 18 note and other clinical entries. It found that, read fairly and in context, the Board did not treat the social worker’s note as a formal capacity assessment, but as corroborative evidence supporting the psychiatrist’s opinion. The Board had explicitly recognized that hearsay can be admitted but must be weighed carefully, and its reasons showed that it anchored its findings primarily in the psychiatrist’s oral testimony and contemporaneous charting. The nursing and social work entries were used to bolster recency and consistency, not to replace the statutory role of the health practitioner. Even if one isolated the specific line “he denied he required treatment” and treated it as imprecise, the court held that nothing turned on it in light of the broader record of persistent denial of mental illness, lack of insight, and deterioration after refusal of medication. Turning to Starson, the court noted that the Board had accurately set out the capacity test, including that a patient need not label their condition as an “illness” or agree with their doctor’s diagnosis, and that capable individuals may make unwise choices. The Board focused on the appreciation branch: it found that Mr. Bruder was unable to recognize that he was affected by the manifestations of his condition and, therefore, could not apply treatment information to his situation or weigh the consequences of refusal. The appellate judge rejected the argument that the Board had impermissibly equated capacity with best interests or punished dissenting views about psychiatry. Instead, the Board relied on his sustained inability to recognize the possibility that he was affected by his condition’s manifestations, which is a permissible route to finding lack of appreciation under Starson.

Outcome and implications of the decision

Having reviewed the Board’s reasons under the applicable appellate standards, the court concluded that the Board committed no error of law and no palpable and overriding error of fact or mixed fact and law in confirming the incapacity finding. The decision displayed the hallmarks of a reasonable outcome: it correctly identified the governing test and presumptions, recognized capacity fluctuation, tied its conclusions to contemporaneous clinical and testimonial evidence, and provided reasons that were justified, intelligible, and transparent. Any minor misstatements in collateral notes did not undermine the reliability of the result. Accordingly, the appeal was dismissed and the Board’s November 20, 2025 decision confirming that Mr. Bruder is incapable with respect to treatment in the classes of antipsychotic medications, mood stabilizers, and anxiolytics was upheld. In practical terms, this means that substitute decision-making under the statutory regime will continue to govern those treatment decisions. The successful party in this appeal is the respondent, Dr. Ashley Malka, whose professional incapacity finding and the Board’s confirmatory decision were sustained. The court did not fix any specific amount for costs or other monetary relief in this endorsement; instead, it invited short written costs submissions if the parties could not agree, and indicated that in the absence of such submissions it would assume the issue had been resolved, so no total amount of costs or damages can be determined from this decision.