Ruling confirms involuntarily hospitalized man received timely advice from rights adviser
The Ontario Court of Appeal held that a doctor did not violate his patient’s procedural rights under Ontario’s Health Care Consent Act, 1996 and the relevant regulation by finding him incapable of consenting to treatment with antipsychotic medication.
In Jawadi v. Maerov, 2025 ONCA 704, the Humber River Hospital involuntarily hospitalized the appellant patient on May 24, 2023, following a conflict with his parents.
On May 26, 2023, the respondent psychiatrist became the patient’s attending physician. The doctor provisionally diagnosed the patient with a schizoaffective disorder, bipolar type, upon determining that he lacked insight into the delusional nature of his beliefs.
The doctor told the patient about the diagnosis and provided a Form 33, which stated the finding that he was incapable of consenting to treatment with antipsychotic medication.
Later that day, a rights adviser met the patient and filled out a Form 50, stating that he had received rights advice and sought no review of the incapacity finding.
On May 30, 2023, the patient informed the doctor that he had changed his mind and wanted to bring an application before the Consent and Capacity Board. Thus, the doctor did not push through with the planned treatment.
After seeing the rights adviser again, on June 2, 2023, the patient applied for the Board’s review of the doctor’s incapacity finding and his involuntary admission.
On June 9, 2023, at the Board hearing, the doctor cancelled the Form 4 and explained that the patient no longer met the relevant criteria for involuntary admission.
On June 14, 2023, the Board confirmed the doctor’s incapacity finding. The Board determined that the patient met the test for incapacity, given that he rejected the possibilities that he had a mental condition and that treatment might help him.
Last Feb. 28, Justice Jennifer Penman of the Ontario Superior Court of Justice dismissed the patient’s appeal.
The patient and amicus had two main arguments. First, they alleged that the Board should have set aside the incapacity finding because the patient did not properly receive his statutory entitlement to timely rights advice. Second, they asserted that the evidence did not support the incapacity finding.
No rights breached
The Court of Appeal for Ontario dismissed the appeal without costs upon disagreeing with the patient’s and amicus’s arguments.
The appeal court rejected their argument that the patient’s informing the doctor of his intention to file an application with the Board triggered the doctor’s additional legal obligation to ensure that a rights adviser would provide the patient with fresh rights advice within the 48-hour window under s. 18(3)(a) of Ontario’s Health Care Consent Act, 1996 (HCCA).
Amicus alleged that the court should interpret s. 18(3) as implicitly including this further legal duty on the doctor’s part. The appeal court disagreed with amicus’s interpretation of s. 18(3).
The appeal court agreed with the Board’s and the Superior Court’s decisions finding no breach of the patient’s procedural rights under s. 18 of the HCCA and s. 15 of Ontario’s Regulation 741 under the province’s Mental Health Act, 1990 (MHA).
The appeal court ruled that a textual analysis did not support amicus’s proposed interpretation of s. 18(3). The appeal court pointed out that the HCCA does not explicitly tackle the delivery of rights advice to those deemed incapable.
The appeal court held that a contextual analysis also did not support amicus’s proposed interpretation of s. 18(3). The appeal court explained that the interpretation would contradict the legislative scheme’s overall structure, which sought to treat s. 18(3) as expanding procedural protections for psychiatric patients.
The appeal court called the policy justifications for amicus’s proposed interpretation of s. 18(3), alongside s. 15 of Regulation 741, debatable.
The appeal court noted that the doctor did not need to tell the patient about his right to apply to the Board at that point because a psychiatric patient who has triggered the 48-hour window in s. 18(3)(a) would do so by expressing their plan to file such an application.
Next, the appeal court found that the Board reasonably determined that the doctor was able to establish, on a balance of probabilities, that the patient had a mental condition.
The appeal court concluded that the Board correctly stated the applicable legal principles, was entitled to reach its factual findings about the patient’s beliefs, and made no palpable and overriding errors.
