Briante v. Vancouver Island Health Authority

2014 BCSC 1511 Briante v. Vancouver Island Health Authority

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Briante v. Vancouver Island Health Authority, 2014 BCSC 1511 Date: 20140808 Docket: 09-4697 Registry: Victoria Between: Joseph Briante by his Litigation Guardian Carol Briante Plaintiffs And: Vancouver Island Health Authority doing business as Royal Jubilee Hospital and Dr. Helen Mary Ross and John-Marc Priest and Nurse Tami Hooff and Jane Doe Defendants - and - Docket: 09-4737 Registry: Victoria Between: Carol Briante and James Briante and Carter Hovey Plaintiffs And: Vancouver Island Health Authority doing business as Royal Jubilee Hospital and Dr. Helen Mary Ross and John-Marc Priest and Nurse Tami Hooff and Jane Doe Defendants Before: The Honourable Mr. Justice Bracken Corrected Judgment: The second page of the judgment was corrected on August 13, 2014 by adding two co-counsel for the defendants Reasons for Judgment Counsel for Josephs: R. W. Cameron and N. Mason Counsel for the Defendant Dr. Ross: D. Pilley and A. Turner Counsel for the Defendants Vancouver Island Health Authority, John-Marc Priest, Nurse Tami Hooff and Jane Doe: L. A. Slater and C. Alexander Place and Date of Trial/Hearing: Victoria, B.C. March 4 - 8, 2013 March 11 - 13, 2013 March 18 - 22, 2013 March 25 - 28, 2013 April 2, 2013 April 5, 2013 April 8 - 11, 2013 April 15 - 17, 2013 April 22 - 23, 2013 Place and Date of Judgment: Victoria, B.C. August 8,

2014 Nature of the Actions [1] On October 29, 2007 Joseph Briante's parents and sister took him to the Royal Jubilee Hospital in Victoria, B.C. because they were seriously concerned about his mental health. He was seen by a triage nurse upon his arrival and then referred to the Psychiatric Emergency Services section of the hospital. A psychiatric nurse and a physician interviewed him and he was then discharged approximately two hours later. Six days later while at his parents' home he stabbed and slashed his neck in a suicide attempt. As a result of the loss of most of his blood he suffered serious and irreparable brain damage. By his litigation guardian, Carol Briante, he sues the defendants for negligence. [2] In a related action heard at the same time, Joseph Briante's parents, Carol and James Briante, and their son in law, Carter Hovey, sue the defendants for damages for psychological injury arising from the trauma they experienced in witnessing the event. Background Facts [3] As a matter of convenience only, I will refer to Joseph and his parents by their given names. I mean no disrespect by doing so. [4] Joseph Briante ("Joseph") was born April 22, 1975 in Ontario. He attended school in Guelph and was designated an "Ontario Scholar" upon graduation from high school, a designation that required him to have an 80 per cent average in six academic courses. He attended the

University of Guelph and obtained a Bachelor of Science (Honours) in Physical Sciences. He was admitted to the faculty of law at Queen's University and began his studies there in September of 1999. [5] Joseph's time as an undergraduate student was not without difficulty. During his second year he sought assistance at the student medical clinic as a result of depression and was described Paxil, Prozac and Zoloft to relieve his depression. His grades slipped somewhat although he still passed all of the courses he took. His grades returned to their normal higher level the following year. [6] In the year of his graduation there was some indication that he was using illicit drugs and he had a discussion about his drug use with his parents. Around the same time, he advised his parents that he was homosexual. His parents gave him their full assurance of their love and support regardless of his sexual orientation. [7] In 2002 Joseph graduated with a law degree from Queen's University and was awarded a prize in Intellectual Property Law. He commenced articling at Gilbert's LLP in Toronto in September of that year and he was called to the Ontario Bar on July 17, 2003. He stayed on at Gilbert's through 2004 and early 2005. His salary was $102,500 plus bonuses in his last full year at Gilbert's. [8] He had experienced some bouts of depression in his undergraduate years at the University of

Guelph and had some counselling for what were described as mood swings while he was at Queen's. At Gilbert's he experienced a serious anxiety attack on February 15, 2005, and he advised his doctor that he had experienced a "complete collapse". While Joseph was a productive member of Gilbert's professional staff, a decision was made that he would not be kept on at the firm. It appears that decision was related to what was described as a personality conflict with one of the partners in the firm rather than his productivity or legal skill. Mr. Tim Gilbert, the senior partner of Gilbert's testified that there were no difficulties with Joseph's work and that he had excellent legal skills. Mr. Benjamin Gray, who was one of Joseph's colleagues at Gilbert's, described him as a "smart young lawyer" who did excellent work. [9] When he left Gilbert's, he decided to move to British Columbia and he was hired as an associate at the law firm of Fasken Martineau ("Faskens") in their Vancouver office. He worked in the intellectual property practice group from October 31, 2005. His salary was $90,000 per year plus bonuses. It appears that he fit in well at the firm and there were no problems with his work. Mr. Keith Spencer is a partner at Fasken's Vancouver office. He recommended to the firm's management that Joseph be hired to work in his practice group and he testified that Joseph was a

bright, intelligent person who seemed like he would fit in well and who was highly recommended by Mr. Tim Gilbert. Mr. Spencer had the office next to Joseph and said that he fit in well with the group and that he seemed happy and productive. He was described as having a somewhat "flamboyant" personality and that he was well received in the office and seemed well liked. Mr. Spencer said that Joseph's legal work was of good quality and that the clients of the firm liked him and said that responsibility for a file could be handed to him quite easily. Mr. Spencer believed Joseph had a good future with the firm and saw no issues that might hold him back. [10] On June 5, 2006, Joseph sent an email to a friend with a copy to many others across Canada and elsewhere including all of Fasken's offices. It appears it was sent to Joseph's entire address book of contacts. The email was entitled "Memo re Constructive tips for tolerance and respect in workplace". The memo was a broad critique of office management at Faskens and related to Joseph's sense that there was at least unofficial discrimination against gays within the firm. He gave no prior indication of dissatisfaction to any member of the firm or to members of the staff of the firm prior to sending the email. [11] Joseph's memo attracted significant and unwelcome attention to Faskens, including attention from the local media in

Vancouver. Mr. Spencer said his reaction upon first reading the memo was one of "utter shock". He said the memo was well written but the allegations it contained were completely inconsistent with what he believed about the culture of his law firm. He said that the firm has a casual, open door atmosphere and a system designed to consider and resolve any complaints from within the firm. He said the memo "went off like a bomb" among the partners and staff. [12] While the memo surprised Mr. Spencer and his partners and many members of the firm were no doubt upset about it, the management of Faskens reacted admirably. Mr. Spencer called upon the management group of the firm and the human resources department. The view of those who knew Joseph was that he was unstable mentally and representatives of the firm went to his home to talk to him. They provided him with information about the availability of counselling through the firms medical plan and did not ask him about or, as Mr. Spencer put it, cross-examine Joseph about the memo. They simply encouraged him to seek assistance and left matters be. [13] Three days later, on June 8, 2007, without any further action by management, Joseph submitted his resignation to Faskens and he left his employment. On July 1, 2006, Joseph withdrew his membership in the Law Society of British Columbia. There was nothing to suggest that he had taken

advantage of any counselling or assistance offered by Fasken's management through its benefits program. [14] Following his resignation from Faskens, Joseph took a job with a client of the firm, Mr. Rod Quin, who operated a computer software company. He was also an inventor and a fabricator of props for movie sets. He had invented a building tile that was said to be suitable for displaying images on buildings. The precise nature of his invention was not entirely clear from the evidence. Mr. Quin resided in a large modern style house in East Vancouver and Joseph was offered accommodation in a separate portion of that residence. He and Mr. Quin worked together on various projects at the same property. Joseph was still living and working there in October 2007. [15] Joseph also set up a web based business called "Hardcore Superstore Legal Management Corporation" with a friend named Theresa James. The stated purpose of the business was to assist clients in dealing with their lawyers on issues of communication and financial matters. The business was not intended to provide second opinions on legal issues. It does not appear that the business was particularly successful and it was more or less abandoned. [16] In 2006 he applied for re-instatement as a member of the British Columbia Law Society. Some questions arose for the Law Society respecting the nature of his Hardcore Superstore

business and he was asked for additional material. Those issues were not resolved prior to his decision to withdraw the application. It was never renewed. [17] On the afternoon of October 27, 2007, Joseph and Ms. Katie Emery, a friend of his, attended a play in Vancouver. She noted that at the intermission Joseph was slumped in his seat with his hands to his face. She said his eyes were wide open and he had a look of terror on his face. She asked him what was wrong but got no answer. She feared that he had just received some awful news or that something had happened to him while she had been away from her seat in the theatre. She continued to ask him questions but he did not respond. They left the theatre and walked back to her apartment. The walk was very slow and took about two hours. During the walk Joseph said nothing other than "Oh God" and she said he continued to look absolutely terrified. He calmed down and settled somewhat after they arrived at her residence and she invited him to accompany her to visit friends but he declined and chose to walk home. [18] Two or three days later Joseph called her from Victoria. She expected him to explain what had happened on the day they went to the play but he did not. She felt that he was still behaving oddly but ended the call without really knowing what was going on. A few days later she heard that he had been hospitalized. She

came to Victoria to see him and found out what had happened. She was able to visit him a few days later. [19] Joseph had visited his parents in Victoria from time to time after he moved to Vancouver. He had visited in August 2007 and the visit was pleasant and free of any unusual incident. He came again in October for another visit. On that occasion he brought with him a rolled up painting that he wanted to leave at the Chinese Cemetery in Victoria. He asked his parents to take him there. He seemed somewhat insistent about that and they thought his behaviour somewhat odd, but nothing more. The painting was one that someone had given him and while they suggested he might try to sell it they acceded to his request and drove him to visit the cemetery so he could leave the painting there. [20] Joseph then called unexpectedly about two weeks later on October 28, 2007, to say that he was coming to Victoria and asked to be picked up at the ferry terminal. His parents drove to the ferry terminal, picked him up and drove him to their residence in the Highlands area of Victoria. [21] The Highlands is a residential area that is somewhat remote area from the centre of Victoria. The properties in the area, including that of the Briantes, are large and rural in character. The Briante residence is close to old logging roads that are used by cyclists and hikers. At that time Christina Hovey,

Joseph's sister, and her husband, Carter Hovey, were also at the Briante residence. A friend of theirs rented a small cottage at the rear of the property. [22] On that visit Joseph's mother, Carol Briante ("Carol"), thought he looked thin and that he seemed tired and "flat". She said that he showed other behaviour that was not his normal behaviour. She thought that perhaps something was wrong but when she asked him about it, he said he was just tired. [23] Joseph stayed overnight and went to bed quite early. After he went to bed his parents talked about his appearance and both felt that something was wrong as they had never seen him like that before. Sometime around 1:00 a.m. Christina got up and found Joseph in the downstairs family room where he had a large fire going in the fireplace. She asked him what he was doing and he told her that he was burning some papers. She told him to stop and return to bed and she believed he did so. [24] The following day his parents had some appointments in Victoria and Joseph remained home with Christina. Christina is an operating room nurse working in Victoria. She was supposed to participate in a coaching session at the University of Victoria that day. Both Christina and her husband, Carter, are competitive triathletes and cyclists. Prior to leaving for the University she and Joseph decided to go for a walk. [25] During the walk, Joseph

said things that caused Christina serious concern. Christina said that Joseph was behaving oddly and that he was delusional and believed people were going to kill him. She felt that Joseph was in a state of serious mental instability. When they got back to the Briante residence, she telephoned a friend who is a nurse who works in the area of mental health and is someone she believed was knowledgeable about mental health issues. The friend she contacted told her that Joseph should be taken to the hospital as soon as possible. [26] A short while later James and Carol returned home and were told of what had happened. Carol said that her daughter seemed very frightened and emotional. They went into the house and spoke to Joseph. Carol said that he was crying uncontrollably and said that he did not know what was real or not real. He said that they had to get out of the house because someone was coming to harm them. He wanted to go to Quadra Island where Carter Hovey's family had property. [27] Carol said that she had never seen her son cry like he was then or behave that way before. She said that he seemed to be in "deep pain" as though someone close to him had died. Joseph could not explain why he was in that state but told them that Rod Quin was planning to have a Hallowe'en party and that "weird stuff was going to go on". He told them he believed he was going to be sacrificed at

that party. [28] The family knew they had to find Joseph some help. A decision was made to take Joseph to the Royal Jubilee Hospital in Victoria. The Victoria General Hospital is closer to the Briante residence but the family believed it would be better if Joseph went to the Royal Jubilee Hospital as they knew it had better psychiatric care facilities. Together, James and Carol, Christina and Joseph drove to the hospital. They had explained to Joseph their concerns about his health and he understood they were taking him to the hospital. He did not want to go but he did not resist. [29] James and Carol were aware that Joseph was gay and fully accepted that fact. While Joseph had been somewhat emotional about telling his parents he was gay, there was an immediate reassurance from all members of his family that his sexual orientation would not affect their relationship and it did not. [30] They were also aware that Joseph used drugs from time to time. He had started using marijuana when he was an undergraduate and he also had used cocaine on occasion as well as ecstasy and ketamine. Joseph believed that his use of drugs did not pose any serious problem for him. As his behaviour on October 29 was so abnormal, Carol asked him if he had taken any drugs. He told her that he had taken ecstasy and ketamine the previous Thursday which was October 25, although he was somewhat confused

about when he had taken the drugs. They had no reason to think he had taken drugs on October 29. [31] On the drive from their residence to the hospital Joseph told them that he would not stay overnight in the hospital, that he did not want to take any medication and that he intended to convince hospital staff that there was nothing wrong with him. He seemed more agitated but was no longer crying. The trip from their home to the hospital took about 30 or 40 minutes. [32] They arrived at the hospital just after 4:30 p.m. They went first to an admitting station where Joseph spoke with a triage nurse. He told the triage nurse that he was "having a nervous breakdown" and wanted to speak with someone. Carol went with Joseph to talk to the triage nurse and told the nurse that her son needed some help, and she then left him there to speak to the nurse on his own. Once he was finished he came back and sat down and a short while later the triage nurse took them to the Psychiatric Emergency Services department of the hospital which is located a short distance down a hallway and behind a locked security door. [33] The triage assessment form completed by nurse Jean-Marc Priest, the triage nurse stated: Patient has been through a difficult relationship and would like to speak to someone because he feels like he is having a nervous breakdown. The reason for the visit was stated as "nervous

breakdown" and the "tracking acuity" which I take to be the triage nurse's assessment of urgency was stated to be "R4 Less Urgent". [34] Before they left the emergency room waiting area Carter Hovey had arrived at the hospital in response to a call from Christina. Joseph became very emotional when Carter arrived and he held on to his arm and stayed very close to him. That was not normal behavior and was inconsistent with the relationship the two men had. [35] When they arrived in the Psychiatric Emergency Services, they sat in the waiting room for fifteen or twenty minutes. Joseph spoke briefly with a staff member and then sat down with his parents to wait. He seemed quiet and calmer than he had been earlier. He was directed by a staff member to go to the washroom and provide a urine sample in a small vial that she gave him. He left the waiting area for that purpose and came back a few minutes later, placed the vial in the place directed, sat down with his parents again and continued waiting. [36] When Joseph's name was called he went into an enclosed office with a female. It is clear from the evidence that the female was psychiatric nurse Tami Hooff. The office is designed so that the occupants can be observed through a glass window. Carol could see the nurse but Joseph's back was to her and she could not see his face. She said that Joseph and Ms. Hooff spoke for a period of

time she estimated to be between 15 and 30 minutes. When Joseph came out he sat and waited and seemed very calm. He did not make any movement to leave the area. He did not say what he and Ms. Hooff had discussed. He was not upset or crying as he had been earlier. [37] Christina said that while they were in the emergency room waiting area, she wanted something to drink and went to the Tim Horton's outlet in the hospital. When she came back, Joseph and her parents had already gone to the Psychiatric Emergency Services area. She and Carter waited for a few minutes and then asked the triage nurse if they could go to that area. A short while later a woman came out to escort them to the area. She says that occurred perhaps 15 minutes after they arrived at the hospital. She said it could have been longer but she was certain it was not as long as 40 minutes after they arrived. [38] The timing is important because Christina believes the woman who escorted her to the psychiatric emergency services area of the hospital was the defendant Ms. Hooff. She said on the short walk from the emergency room waiting area she asked the woman if she was Joseph's nurse and the woman said she was. She said she tried to give her information but the woman said she could not talk to her about her brother. Christina felt that the woman was not interested in listening to her and said that the woman told her

she had already done her report. She said that she told the woman that Joseph was delusional and paranoid and that he said he had lights on him and was being monitored by cameras. She also said that he told her he had taken drugs and that he feared his employer was going to kill him. She said that she had never seen Joseph in that state before. She said she did not see the woman take any notes of the conversation and she did not see where she went after they arrived at the Psychiatric Emergency Services waiting room. [39] Christina also said that the woman clearly understood what Christina told her because she was very assertive when she was telling her about Joseph. Christina said that the woman told she had already done the interview with Joseph and her report was already done. [40] When Christina got to the psychiatric services area, her parents were waiting with Joseph. She saw Joseph get up and go to the bathroom but she could not say if he took or returned a vial with a urine sample. It was her understanding that he had not yet seen a nurse or a doctor. Those activities took place before Joseph had seen Ms. Hooff, and while I accept that Christina tried to tell someone about her observations of Joseph, I am not able to conclude that it was Ms. Hooff she tried to tell. [41] Christina and Carter stayed for a short while longer but left the hospital for home before Joseph

had seen the doctor. By that time she knew that Joseph had been asked to provide a urine sample and she believed he had provided one. She also confirmed that Joseph told her that he was not going to stay overnight at the hospital. She did not think there was any purpose in staying at the hospital and she and Carter left. [42] A short while later, the defendant Dr. Ross came to the Psychiatric Emergency Services area to interview Joseph. She spoke first with Ms. Hooff and reviewed with her the conclusions she had reached in her assessment of Joseph. She then spoke privately with Joseph. During her interview with Ms. Hooff, Dr. Ross made notes of their discussion on the physician assessment and treatment record. She made additional notes on that document as she talked with Joseph. [43] During her interview of Joseph, Dr. Ross formed the opinion, consistent with that of Ms. Hooff, that Joseph would benefit from seeing a psychiatrist but concluded that there was no need to admit him to hospital. She decided he could be safely released with a referral to an outpatient service known as Urgent Short Term Assessment and Treatment ("USTAT"). She advised Ms. Hooff of her decision and they again spoke briefly. Ms. Hooff then spoke to Carol and James to advise them of the decision. Joseph was given some printed information respecting the service and he and his parents left the hospital at

approximately 7:30 p.m. [44] Carol and James Briante were surprised and disappointed at the decision not to admit Joseph to hospital or not to at least have him immediately assessed by a psychiatrist. They did not feel that Ms. Hooff was prepared to listen to the concerns they had or the observations they had made of their son. She said that Ms. Hooff had come to talk to them and opened the conversation by saying that she understood they wanted to talk to her. She told them that she was not at liberty to tell them anything about Joseph because of privacy issues. [45] Carol said she told Ms. Hooff about Joseph's expressed fear that his employer was going to kill him and that he said he was going to be sacrificed on Hallowe'en. She told Ms. Hooff Joseph was delusional. She told Ms. Hooff that Joseph was a lawyer and that he was skilled in manipulation and that he was going to try and fool the hospital staff about his mental health. She said Ms. Hooff asked her, in spite of the privacy issues, whether she was aware of Joseph's use of drugs, and she said she was aware he had taken some drugs on Thursday. She told Ms. Hooff about his mood swings, his crying and that at one point earlier in the day when the sun came out he had exclaimed that " everything was going to be all right - the sun is shining!" [46] Carol also said that she told Ms. Hooff about Joseph's fear that people were

going to try and kill him and that he was going to be "sacrificed". She said that he believed there were cameras and lights on him. Christina said that she told Ms. Hooff " my brother is going to try and trick you." Ms. Hooff did not recall receiving any of that information. [47] Carol said that Ms. Hooff told her that Joseph was reacting to pressure that was created by the loss of his job at Faskens and the situation that he found himself in working for Rod Quin in exchange for free accommodation and little or no income. Carol Briante said that she questioned the decision and pointed out that the job loss at Faskens was more than one year earlier. James also questioned the decision but they both felt the decision had been made and would not be changed. The evidence of Carol and James is that at that point Joseph had still not seen Dr. Ross but he waited patiently and seemed calm. When Christina and Carter left, he was not upset and he remained calm. [48] Carol said that a few minutes later a female, dressed in green hospital scrubs, came to the area and spoke with Joseph. That person was undoubtedly Dr. Ross and she spoke to Joseph for about five or ten minutes. The Briantes thought she was a doctor but assumed she was not a psychiatrist. She did not speak with the Briantes. Joseph then returned to where they were sitting. He had some papers in his hand and seemed calm. On the

drive home he remained calm and more normal. They went out for something to eat and Joseph behaved normally although more quiet than he usually was. He tended to avoid conversation and there was little or no discussion about the hospital. [49] James and Carol Briante and Christina and Carter Hovey were very surprised that Joseph was not admitted to hospital. They believed, based on their long and close relationship with him, that he was experiencing a serious mental health issue. They did not understand what was happening to him and they felt that the staff at the hospital was not interested in helping him. They remained highly concerned about Joseph. They believed the urine sample Joseph had provided at the hospital was clear and did not reveal any use of drugs. In fact, Joseph had filled the sample vial with water and returned it to the nurse for analysis. If it had been analyzed before Joseph left the hospital, they were not told. [50] Ms. Hooff did receive the results of the test and knew what Joseph had done. She believed that she received that information soon after he had left the hospital but there was some uncertainty about when she received the results from the lab. She recorded the information but did nothing further. She did not consider the information relevant and it did not cause her to reconsider her conclusions. She did not report the matter to Dr. Ross. [51]

Through the rest of the following week Joseph was quiet, although he did experience periods of time when he expressed fear that Rod Quin was planning to kill him or that there were helicopters spying on them. He was unusually concerned about safety and wanted all of the doors of the house to be kept locked. He was concerned about himself and the other members of the family at the residence. He expressed fear to his parents and Carol described him as very clingy to them and he wanted to be with them constantly. He sought reassurance from his parents that they would always be there and that he would be safe with them. [52] Needless to say, Joseph's family remained concerned about him. They were worried that he might have access to drugs and James asked Christina to search his room and backpack for drugs. She did so but found nothing. On one occasion all of the garden tools from the yard and front deck were found in a small room where the water heater is located. The family believed Joseph had gathered them up and put them there but he did not tell anyone he had done so. [53] On another occasion the family had gone out for dinner to celebrate James' birthday. There were some things that seemed odd or inappropriate to them but nothing particularly serious. He wanted to drive home and did so, although he drove in a much more aggressive manner than usual. When they arrived home he

went outside and walked around the house to ensure the house was secure. The same night he gathered all of the keys for the cars at the property and kept them. Carol also found him burning papers in the fireplace later that night. She got the car keys from him and he went downstairs to his room. [54] The next morning Carter noticed that someone had removed the cover from the hot tub and as no one else admitted to doing it, he assumed Joseph had removed the cover. Carter invited Joseph to join him and a friend for brunch at a restaurant but Joseph declined the invitation. Carol and James had decided that they should take Joseph back to the hospital as they were still very concerned about his behaviour. Later the same morning, Carol, James and Joseph left the residence for a walk. The walk normally takes about 45 minutes on a trail and old logging road. They walked single file from the house to the logging road. While on that part of the trail Joseph asked to use the cell phone. He was given the phone and he then walked back the trail but was still in sight. He had the phone to his ear and then he suddenly threw the phone into the bushes and then said he was going back to the house. [55] Carol was very concerned as she felt instinctively that something was seriously wrong. She and James followed him but Joseph moved very quickly and reached the house before they did. Carter and

his friend had returned to the house to retrieve a forgotten item and arrived almost at the same time. Carol told Carter outside the residence that they felt they had to take Joseph back to the hospital. When Carol followed Joseph into the house, the first thing she saw was blood on the floor. The family dog was upset and whining. Carol called out to Joseph and asked where he was. She said that he answered in a clear voice and said "Mom - I am down here". [56] When she and Carter went downstairs, the doors were closed. They opened them and found Joseph with his face covered in blood. He had cut himself on both sides of his neck and his arm and he was holding a knife to his throat. He told them to go away and said "let me finish this". Carol screamed and called out to call 911. Carter's friend did so. Carter tried to persuade Joseph to put the knife down but Joseph cut himself again across the left side of his neck and soon after he collapsed on the floor. Carter and James were trying to hold him down but he was still struggling with them. He had cuts to his neck on both sides and in the centre of his throat. There was a considerable amount of blood and they applied towels to try and stop the bleeding. Carol could hear gurgling in the back of Joseph's throat and she began mouth to mouth resuscitation in an attempt to clear his airway to ensure he was able to breathe normally. At

one point he said they should let him die. He said that he hated them all. Carol said that he did not seem to be in pain. [57] Carol is a retired nurse and could see that the cuts were very deep. She saw only the cuts on his neck at that time although there were some cuts on his abdomen as well. Two ambulance crews arrived as well as two police officers in response to the 911 call. Joseph was stabilized and taken to hospital. By the time he left he did not seem responsive and just seemed to be staring and was passive. Carol and James did not know if he was alive. She spoke with one of the police officers and then went to the Victoria General Hospital where Joseph had been taken. There she was told that he had lost almost all of his blood volume and that he had cut his carotid artery. He was taken to surgery and then to intensive care. [58] Joseph remained in hospital at the Victoria General Hospital until January 30, 2008, when he was discharged. Carol visited him every day. It was clear early on that he had significant cognitive difficulties. Initially he could not write his name or tell time. He came home to a different residence as the Briantes' sold their home to Christina and Carter and bought a different residence. His parents assisted him in his recovery and rehabilitation. They spent, and still spend many hours each week assisting him. [59] There is no dispute that as a

result of damage to his brain from an almost total loss of blood volume, Joseph suffered significant damage. He has severe cognitive impairment and has limited memory and his mental ability is very limited. It is clear that he will never fully recover his mental ability, nor will he ever be able to pursue a career. There is some dispute as to whether there is any occupation or form of employment that is open to him. He will likely never live completely independently of assistance. He will need support, financial and otherwise, for the rest of his life. His parents will likely fulfil the majority of his needs so long as they are able and after that the responsibility will fall to others. He will never be able to work as a lawyer or any similar profession again. Psychiatric Emergency Services ("PES") [60] PES was established through a large financial contribution made by two Victoria families. It is an emergency department that specializes in psychiatric care. The purpose is to provide prompt assessment of patients who arrive at the hospital with mental health issues. Once assessed, a patient is referred to the appropriate service, either as an in-patient or an out-patient. The services that are available begin with an assessment by a registered psychiatric nurse ("RPN") and then a further assessment by an emergency room physician. The emergency room physician can refer the

patient to an on-call psychiatrist who may see the patient and make a decision as to whether the patient should or can be admitted to hospital or referred to an out-patient service. [61] The PES Policy and Procedure Manual outlines the manner patients are processed upon arrival at PES. In paras. 6 and 7 under Admissions protocol, the manual describes the process in this way: 6. Patients arriving in the psychiatric emergency room area will be assessed by a mental health and addiction services clinician. The MHAS clinician will discuss their findings with the responsible ER physician. The MHAS clinician should be prepared to comment on the requirement for emergency psychiatric consultation, deferred urgent psychiatric consultation or other disposition.

7. Patients will usually be directly assessed by the emergency room physician before an emergency psychiatric consultation is requested. Requests for consultation should normally be by direct physician to physician contact. [62] If a psychiatric consultation with the patient takes place and the patient is admitted to short stay beds in PES or to a psychiatric bed in the hospital, the psychiatrist assumes responsibility as the "Most Responsible Physician". I note in passing that the concept of most responsible physician is discussed in Manary v. Strban, 2013 ONCA 319. [63] If a patient is not admitted but discharged from PES, the discharge may be with a recommendation to an out-patient service such as follow-up by the Mental Health and Addiction Services Program, a family physician or some other community based resource. [64] One such out-patient service is the Urgent Short Term Assessment Services and Treatment program ("USTAT"). It is a service a patient may be referred to for faster access to a psychiatric consultation and related mental health services. In fact, Joseph was referred to USTAT by Dr. Ross at the conclusion of his visit to PES on October 29, 2007. Carol received a call from someone at USTAT to schedule an appointment but not until after November 4, 2007, the day Joseph was hospitalized. [65] There are also four short term psychiatric hospital beds available as

part of PES. Those beds are intended for patients that do not require the full services of a hospital bed but who will benefit from some treatment and observation. Patients stay for no longer than 72 hours in those beds before transfer or discharge. A short stay bed was available at PES the night of October 29, 2007. [66] As might be expected, the clinicians at PES deal with a wide variety of people with mental health problems. The range is from a person who is simply upset to those who are brought to the hospital in custody under the Mental Health Act of British Columbia, R.S.B.C. 1996, c.

288. The staff at PES also deals with people who are frequent users of its service as a result of chronic mental illness. [67] The staff of professionals who work at PES is made up of registered nurses, registered psychiatric nurses, emergency room physicians and psychiatrists. Typically, each shift consists of at least one registered psychiatric nurse ("RPN") and each shift generally has three people on staff. An emergency room physician is available in the emergency department and there is a psychiatrist on call or, at times, actually present at PES. [68] PES is located behind a locked security door and can be reached by a hallway from the emergency department of the hospital. There is a large oval shaped waiting room in PES and a nursing station that is surrounded by glass. There are some tables and chairs as well as an outdoor balcony for those using the waiting room. There are three interview rooms used for speaking with patients and a private office space for nurses and physicians to speak with each other. [69] The on-duty RPN is the "most responsible nurse" for any given patient. When a new patient arrives at the emergency room the first professional they contact is the triage nurse. In the case of Joseph Briante, the triage nurse was Jean-Marc Priest. If the triage nurse assesses the patient as requiring the services of PES, he calls or in some way sees to the patient

moving from the emergency room waiting area to PES. Once at PES, the RPN is responsible to observe and speak with the patient as a means of assessing the patient's situation and gathering sufficient information to provide to the emergency room physician. The primary object of the assessment is to determine what the patient wants and needs. An initial diagnosis is made by the RPN that is then communicated to the emergency room physician. [70] A nursing diagnosis does not allow the RPN to make decisions about a patient's treatment but only to make recommendations to the emergency room physician and to advise the patient on resources that are available. The RPN cannot authorize an involuntary patient admission under the Mental Health Act as only a physician has that power. [71] After arriving at PES, a patient is asked some introductory questions and then is asked to provide a urine sample and given a small vial and directed to a washroom where the sample can be provided and returned to a receptacle at the nursing station. It is then sent to the hospital laboratory for analysis. Every patient is asked to provide a sample, although not everyone complies and the hospital cannot compel the patient to comply. [72] Once the initial formalities are completed, the RPN interviews the patient. The interview normally takes about 15 to 20 minutes. The purpose is to try and determine the

patient's situation and to calm and reassure the patient. The RPN normally asks a series of standard questions and provides the patient with advice about what will happen and how long it will take. The interview is conducted in private with only the RPN and the patient present in the room. Once the interview is completed, the RPN enters her notes into the hospital computer system as an initial clinical profile. [73] Once the initial interview is complete, the RPN contacts the emergency room physician who attends at PES to interview the patient and to make a decision on the appropriate treatment. If the physician feels it to be necessary, the patient is referred to the on-call psychiatrist who then attends at PES to see the patient. If the emergency room physician feels that the situation allows for the patient to be discharged or referred to outpatient services, the patient will be given the necessary information and discharged. The Evidence of Ms. Tammy Hooff [74] Ms. Hooff is a Registered Psychiatric Nurse. She graduated from her training program in 2004 and began work in Powell River as a psychiatric nurse. Her responsibility was to interview and assess patients and to provide information for doctors and other nurses. In January 2005 she began working at Royal Jubilee Hospital in Victoria which is operated by the Vancouver Island Health Authority ("VIHA") as it was known at

that time. She commenced work on the psychiatric emergency services ("PES") and has done so since that time. [75] On October 29, 2007, she was working a shift that commenced at 3:00 p.m. and ended at 11:00 p.m. Around 5:00 p.m. she was introduced to Joseph. She learned that he had arrived with his parents and that his family was concerned about his behaviour. She understood he was in some kind of mental crisis and he had come to the hospital seeking treatment. She was aware from her search of hospital records on the computer that he had not been treated at the hospital prior to that day. [76] She first saw him sitting in the waiting room with his mother. She noticed that he appeared distressed but was not crying. She approached him and asked to see him privately and he complied. She invited him to go into a private room where she spoke with him for what she believed to be about 30 minutes. She made a few handwritten notes while she spoke with him that she used later to enter information into the initial clinical profile on the computer. Her handwritten notes were destroyed once the information had been entered into the hospital computer system. [77] She said that Joseph asked her if the information she was receiving from him would be a permanent record and she said he was concerned about who would have access to the information. He did not want the information he was providing

to be shared with his parents. Ms. Hooff said that Joseph told her that he did not think he needed to be at the hospital but his parents were concerned about him. She said that Joseph was initially reluctant to discuss his situation with her, but as the interview progressed he became more open. The interview began at 6:12 p.m. [78] Joseph told Ms. Hooff that he had been treated for depression for a period of about two years when he was at university and that he had experienced some anxiety about the disclosure of his sexual orientation. He had never before been in a psychiatric hospital or treatment facility. He described his work and living situation and she was aware that he had been a practising lawyer but was not working as a lawyer at that time. She was aware that he had not been kept on at a law firm in Toronto and that he was working with Rod Quin for what he described to Ms. Hooff as "sweat equity". When she explored that issue further, he told her that he was in "artistic collaboration" with Mr. Quin and that they were living and working in the same place. [79] Ms. Hooff recalled that Joseph told her that he had feelings of being controlled and possibly monitored. She asked him to explain further and he said that when he was in his room at the Quin residence, he felt that he was being monitored by the lights but that he understood the lights were really part of the

security alarm system. She found it odd that he told her he was "living in an art project" although when he explained what he and Rod Quin were working on, it seemed to make sense to her. He told her about leaving his law firm in Toronto and his employment as an associate lawyer in Vancouver. He said that he had left that position but she said he was not forthcoming with information about the details of leaving that positon. [80] Joseph also told Ms. Hooff about his use of drugs. She said that he said that he had started using cocaine in law school and also had used ketamine and ecstasy in a social or recreational setting. He also used marihuana on occasion. He denied any use of intravenous drugs. Ms. Hooff said that Joseph told her he had been using drugs casually over a period of about 10 years. As a result she concluded that he had at least some dependence on drugs because of the length of time he had used them. In the initial clinical assessment form that she entered into the hospital computer she categorized his use of ecstasy and ketamine as heavy because of the nature of the drugs and the length of time he had used it. She categorized his use of cocaine and marihuana as moderate and indicated that he was dependent on each of the drugs he admitted using. She said he did not think that his use of drugs was a problem. [81] Ms. Hooff described Joseph as well groomed and

neatly dressed, facts that she took as an indication he was able to care properly for himself. Other factors that she noted were that while he was anxious at first, as he became more comfortable she found him to be more cooperative with her. She considered his cognitive abilities and she found his memory, insight, judgment and concentration to be limited. She said that she felt at least some of the limitation was due to his use of drugs and that he seemed not to appreciate why his parents were sufficiently concerned about him to bring him to the hospital. [82] In assessing Joseph, Ms. Hooff concluded that while he had low moods, there was no evidence of a serious depression, nor did she find any psychosis. She was aware that Joseph's family felt that he was delusional but she said she did not see anything that could justify an involuntary admission to hospital under the Mental Health Act. Based on what he had told her, she did not believe he would stay voluntarily even if she felt he should. [83] The initial clinical assessment form that Ms. Hooff completed shows that she was aware of at least some of the concerns of Joseph's family. The history portion of the assessment indicates that Joseph was described by his family as "delusional and emotionally labile" and he had been having up and down moods for about a month. There are other details in the report that indicate at least

some information came from Joseph's parents. [84] She knew that Joseph's parents and his sister Christina were very concerned about him and wanted to give her information respecting their concerns. However, she did not speak with them and did not see it as a vital part of her assessment. She said that Joseph had made it clear he did not want her to reveal what he had told her to his parents. She seemed to believe that the patient confidentiality rules she was bound by prevented her even from speaking with Joseph's parents about his situation even if all she wanted to do was gather information rather than reveal it. As a result, most of the information about Joseph's situation known to his family never was known by Ms. Hooff or Dr. Ross. Ms. Hooff never asked Joseph if she could have his permission to speak to his family about any aspect of his history or condition, although he did give permission to reveal the decision to refer him to USTAT instead of an immediate referral to the on-call psychiatrist. [85] At the conclusion of her interview of Joseph, Ms. Hooff reached the conclusion that his mental health issues were the result of his drug use; in particular she thought he was in some stage of withdrawal from his admitted use of drugs a few days earlier. In the initial clinical assessment she concluded: RECOMMENDATIONS This man is currently experiencing a crisis concerning his

employment and living situation, he may possibly have been in an intimate relationship with the same man, he has been experiencing financial stress and feelings of isolation, he reports long standing substance abuse though not considered a direct suicide risk the pt is presenting as vulnerable and may lack insight into the role that substance use contributes to his current situation. He may benifit (sic) with USTAT counselling in order to support and explore same. [86] The interview with Joseph began at approximately 6:12 p.m. and ended at approximately 6:30 p.m. Other information appears to have been entered at 7:54 p.m. It is not clear from the evidence when Ms. Hooff prepared the clinical assessment, or whether she started it then left it briefly and returned to it later. [87] Once her interview had ended, Dr. Ross, an emergency room physician, came to PES and spoke with Ms. Hooff about Joseph. Dr. Ross reviewed the information that Ms. Hooff had obtained from Joseph and discussed his situation with Ms. Hooff. Ms. Hooff told her that she did not feel that Joseph could be admitted on an involuntary basis and that she felt that she did not consider him to be a risk to himself or to others. She felt he would benefit from seeing someone but felt that a referral to USTAT was the most appropriate course of action. [88] Ms. Hooff conceded that her role as the initial contact with

the patient is a highly important role. She also conceded that it was her responsibility to obtain the necessary background information and that the emergency room physician would rely heavily on the information she obtained. At her examination for discovery she said that had spoken to his family only after a decision had been made to discharge Joseph. Her memory was somewhat uncertain in this area, but it is clear that Ms. Hooff at no time spoke to Carole, James or Christina at sufficient length to learn the full details of what they had observed of Joseph's behaviour and why they were concerned about him. [89] At her examination for discovery Ms. Hooff testified that she recalled that a social worker had been in attendance at PES that day and that the social worker had obtained background information from Joseph's family. She even identified the social worker by name. In fact, no social worker was present or spoke to Joseph's family that day. In her evidence at trial, Ms. Hooff agreed that in that respect her memory was wrong. [90] Hospital records show that at 4:50 p.m. Joseph and his parents arrived at PES. At 4:55 p.m. he provided what was supposed to be a urine sample. The sample appears to have been analyzed by 6:12 p.m. and was clearly known to be water rather than urine at 6:50 p.m. when Ms. Hooff noted in the hospital record that Dr. Ross had discharged Joseph, that

he was appreciative of that decision and that the urine sample was not suitable for analysis as it was water. She said by the time she was told the sample was water, Joseph and his parents had already left. She did not tell Dr. Ross about the result of the urine test and told no one else. She said that it was not relevant as the decision to discharge Joseph had already been made and the result of the test did not affect her decision. [91] Ms. Hooff's memory at her examination for discovery and trial is somewhat inconsistent on this point. At discovery, she was not sure when she received a call from the lab about the urine test, whether Joseph was still at the hospital or whether she told Dr. Ross about the result. At trial she was firm in her evidence that the result of the urine test was not known to her until after Joseph had left the hospital. She was also sure that she had not told Dr. Ross about the test result. [92] Ms. Hooff agreed that it was important to know if a patient is under the influence of drugs as any symptoms of mental disorder could be caused or made worse by substance abuse. That was the reason a urine sample was always requested from patients when they arrived at PES. While Joseph was forthright with Ms. Hooff about his use of drugs, she was unsure if he was affected by any drugs at the time she spoke to him and thought that he might be in withdrawal from

drugs. [93] Ms. Hooff knew that even though she placed considerable reliance on Joseph's own description of his problem, individuals experiencing psychiatric difficulties can often lack insight into their own mental health. She also knew that Joseph's parents were highly concerned about him, and Joseph told her so as well. She knew that he was in frequent close contact with his parents and his sister and that the concern they felt was new and unusual and well outside the norm. She knew that he had arrived in Victoria to visit his parents recently and unexpectedly. She also knew that his behaviour was different from anything they had experienced previously. She was aware of the triage nurse's notes that said Joseph had been through a difficult relationship and that he wanted to see someone as he felt he was having a nervous breakdown. [94] When Ms. Hooff spoke to Carol after a decision had been made not to admit Joseph to hospital, Ms. Hooff knew that Carol did not agree with that decision. She also agreed that there was no prior history that could be reviewed and considered in making a decision. Ms. Hooff was referred to the PES policy manual and agreed that one of the criteria for admission to hospital is an indication of a "first break" or first presentation psychosis. [95] Ms. Hooff acknowledged that she was aware of Joseph's employment situation, particularly the fact that

he was no longer practising as a lawyer, and the related financial pressures, and that his living situation created something of a crisis for him. She agreed that these problems were getting worse and that she felt Joseph should not return to Vancouver, at least not to the residence he had been living in. She agreed as well that the stress arising from financial difficulties, work problems and relationship issues are all risk factors of suicide. She said that is especially true if drug use is also present and the patient lacks insight into the problems arising from drug use, which was the situation Ms. Hooff believed Joseph was in at the time of the assessment. [96] In her clinical assessment, Ms. Hooff wrote that Joseph's memory, insight into his own behaviour, judgment and concentration were all limited. She knew that he wanted to see someone at the hospital to help him with his problem and that his mother and family wanted him to see a psychiatrist. [97] Once Ms. Hooff finished her interview with Joseph, she notified the emergency department of the hospital and Dr. Ross came to PES to speak with Joseph. Before doing so, Dr. Ross met with Ms. Hooff. Ms. Hooff had completed her nursing diagnosis and she told Dr. Ross the results of that diagnosis and they discussed her observations of Joseph during the assessment. The nursing diagnosis conducted by Ms. Hooff is like a

"differential diagnosis" conducted by a physician where a conclusion is reached based on a process of eliciting information from the patient, making observations, and any diagnostic test results. The process begins with a consideration of the most serious condition that might exist and then through a process of elimination a diagnosis is reached. Often a psychiatric nurse also makes recommendations for referral or treatment of the patient. [98] Ms. Hooff knew from past experience that Dr. Ross would rely heavily on her assessment, diagnosis and recommendations about Joseph and would likely accept her recommendations. She knew it was important to be complete and accurate and as thorough as possible in the information she provided in the initial clinical profile. She agreed that delusions may differ in degree and that a delusion of a patient that someone would kill him is a serious delusion that the emergency room physician would like to know. The Evidence of Dr. Ross [99] Dr. Ross is an emergency room physician who works at both the Royal Jubilee and Victoria General hospitals. She graduated from medical school in 1996 and completed a residency as an emergency room physician at Queen's University in 2001. During that part of her training she spent a four-week rotation in psychiatry. She said that she generally saw one or two patients with mental health issues during her

residency. She has worked in Victoria since 2001. [100] Dr. Ross works 10 to 18 shifts each month and sees patients at both the Royal Jubilee and Victoria General hospitals who have mental health issues. There is no specialized psychiatric service at the Victoria General and she said that she sees fewer psychiatric patients at that hospital. At the Royal Jubilee hospital she typically sees one or more psychiatric patients each shift. [101] She said that she has a vague recollection of Joseph. She was unaware of what had happened after October 29, 2007 until she was served with a Writ of Summons and Statement of Claim in this action. She started her shift on October 29, 2007 at 3:00 p.m., and there were two or three physicians on duty in the emergency department that day although the start times of the individual shifts are staggered. Typically a physician is notified of a patient waiting in PES by either an electronic communication or by taking the file from a stack of waiting files in the emergency department. She cannot recall how Joseph's file came to her attention. [102] She knows Ms. Hooff and has worked with her at the Royal Jubilee Hospital for three or four years. She believes her to be a competent and reliable psychiatric nurse. When she arrived at PES she met privately with Ms. Hooff and was advised of the information that Ms. Hooff had obtained from Joseph and her

assessment of him. It is common for the psychiatric nurse in PES to make recommendations to the emergency room physician as to a course of action, although any decision is the responsibility of the physician. [103] Dr. Ross had only the brief record from the triage nurse and the treatment record with Joseph's name, address and birthdate on it when she met with Ms. Hooff. She was aware from that documentation that Joseph had used the expression "nervous breakdown" when he spoke to the triage nurse. To Dr. Ross, the words indicated emotional angst or something in a patient's life that was causing distress. [104] Dr. Ross said she understood the psychiatric nurse was responsible for the initial assessment of the patient and to gather any information that may be of assistance in assessing the patient. She expected that the psychiatric nurse would receive and consider any collateral information. She expected the psychiatric nurse to conduct a more extensive interview than the emergency room physician and she said that only rarely at the Royal Jubilee Hospital did the emergency room physician interview family or friends. However, she also noted that collateral information is not necessary for every patient. She said that, for example, when presented with a patient who was obviously suicidal, not much more information would be required at the assessment stage as a referral to a

psychiatrist would be automatic. Also, if a patient is forthcoming and the psychiatric nurse has already conducted an interview, she would not seek out collateral information. She said that the psychiatric nurses generally gather all of the necessary background information and that their assessments are of good quality. [105] When Dr. Ross arrived at PES, she met with Ms. Hooff and they had a discussion about Joseph. Dr. Ross took notes of what was said on the treatment record. Ms. Hooff told her that Joseph was a 32-year-old homosexual male who left a relationship the previous day and wanted to talk with someone. She told her that he had said he used the drugs ketamine and ecstasy in the past few days and that she believed he had a significant substance abuse problem and Ms. Hooff believed that to be the main issue. [106] Dr. Ross was not certain if Ms. Hooff or Joseph advised her that Joseph had said he felt like he was in a "conceptual art project", but she was aware that he had said that and she explored what he meant by that expression. She recalled that he had also spoken of being monitored and she recalls a discussion about the security system that was present at Rod Quin's residence where Joseph lived. She felt because of his description of the security system, Joseph's fears were at least partly based in reality. She said that Ms. Hooff likely used the words

"delusional" and "psychotic" but only to express that she did not believe Joseph was either delusional or psychotic. [107] The concepts of delusion and psychosis were explained by Dr. Ross. She said a delusion is a false but firmly held belief by a patient, often with intense conviction, that is outside the patient's normal cultural background and despite obvious contrary evidence. A psychosis is a loss of touch with reality and can present with a constellation of symptoms. A person experiencing a psychosis does not necessarily also experience delusions. Dr. Ross also described a hallucination as a misperception of any of the five senses. [108] Dr. Ross also said that there is a distinction between a first episode of psychosis and a recurrence of chronic psychosis. The difference is that with an episode of chronic psychosis, there is a history of how such an episode affected the patient, whereas with a first episode psychosis, there is no historical information that can be used to predict how the psychosis will affect them. With a first episode psychosis or a "first break" psychosis, as it is often referred to, Dr. Ross said that she would want the patient to see a psychiatrist on an emergent basis the same day. [109] When Dr. Ross was asked if she had been told that Joseph's family believed him to be delusional, she said she had not been told as, if she had been, she would

have written it down because she would want to explore it further. She believed she would recall if that information had been given to her. She does not recall Ms. Hooff saying anything about Joseph's family or that she had spoken to them or received information from them. She did not recall being told that Joseph might try to trick or fool her as to his true situation. Again, she said had she been told that she would have written it down on the treatment record. She does not recall any discussion with Ms. Hooff about a recommended disposition. [110] When she left Ms. Hooff, Dr. Ross went to the waiting room and called Joseph's name. He came into the interview room with her and she spoke to him for about 15 or 20 minutes. She wrote notes while they talked. She recalled him as personable and likeable and she said he appeared well dressed and clean cut. She said that she was able to carry on a sensible, coherent conversation with him. She said he was an obviously intelligent man. She described his mood as "wounded" but he was even in temperament and not "up and down". She asked him a series of questions intending to find out what Joseph's condition was. She was attentive to his thought process and thought content and she looked for obsessions or overvalued ideas. She assessed his judgment and insight and asked questions to see if he was experiencing any delusions at that moment.

She explored what he meant by the words "conceptual art project" and his concern about being monitored, and she received what seemed to her to be reality based explanations. [111] As a result of her observations of Joseph and his responses to her questions, Dr. Ross was satisfied that Joseph was not delusional or psychotic. She noted those conclusions on the treatment record. She said that she asks every patient she sees in PES whether they ever get so angry that they might hurt someone else or whether they have ever felt that they might end their life. By the answers Joseph gave her, she was satisfied that he did not have thoughts of self-harm or that he might hurt someone else. She said that it is impossible to conclude with absolute certainty that a patient is not delusional, but based on her assessment and the information she received from Ms. Hooff she concluded that Joseph was experiencing a crisis based on his current circumstances. She diagnosed a "situational crisis" and was satisfied that he did not meet the criteria for admission to hospital and concluded that he did not need to see a psychiatrist on an emergent basis that day. [112] Dr. Ross said that Ms. Hooff did not tell her that Joseph believed his employer was trying to kill him or that he would be sacrificed on Hallowe'en. She said she would have written that down had she been told. She was not told by anyone

that the urine sample Joseph had given to PES was water. She would have questioned the reliability of the information Joseph provided had she known, although she said that could have been consistent with trying to hide drug use as well. Either way she would have explored it further. [113] She was aware of Ms. Hooff's opinion that substance abuse was a significant part of Joseph's problem, although she did not feel that it was as serious an issue as Ms. Hooff did. In her view Joseph was more of a chronic social user of illicit drugs and this was a factor in his situation. She felt that the issues of concern were his living situation and resulting financial issues as well as the career change that he had experienced in leaving the practice of law. He told her that he did not want to return to the practice of law but wanted to work in a different occupation. [114] Dr. Ross knew that a psychiatrist was on call and that whoever was on call would have come to the hospital to see Joseph had she made the request. She believes she would have asked Joseph if he wanted to see a psychiatrist during her interview with him. In the end, Dr. Ross was satisfied that Joseph was not at risk to himself or to others and noted that he was "not suicidal" and "not homicidal" on the treatment record. Clearly she considered both issues. In her opinion Joseph did not meet the criteria for an involuntary

admission to hospital under the Mental Health Act. [115] Following her interview with Joseph, Dr. Ross spoke again with Ms. Hooff. After a brief discussion it was decided that Joseph would be referred to USTAT which Dr. Ross believed would result in an opportunity for Joseph to consult with a psychiatrist within one or two weeks, and Joseph was discharged home. Dr. Ross knew that his parents were supportive and she expected that he would return to Vancouver briefly and then return to Vancouver Island. The Expert Opinion Evidence of Joseph on Standard of Care Dr. Adam Oster [116] Joseph presented several expert reports. The first report was authored by Dr. Adam Oster and he was called for cross-examination. Dr. Oster was tendered as an expert emergency room physician to give opinion evidence on the standard of care of an emergency room physician. [117] Dr. Oster received his medical degree in 2001 at the University of Calgary. He commenced a residency as an emergency room physician that year and his residency was completed in Calgary area hospitals in 2006. He has been a staff emergency room physician in Calgary since then. He acts as an instructor to emergency room doctors during their residency as emergency room physicians. In his practice he sees perhaps as many as four patients with mental health problems per eight-hour shift. [118] Dr. Oster prepared two reports dated

September 6, 2012 and January 16, 2013, setting out his opinion on the standard of care of an emergency room physician. He said that the process of diagnosis in an emergency department involves gathering history, interviewing the patient, reviewing lab results, meeting with the nurse to compare assessments, and arriving at a treatment plan or disposition (discharge or referral/review with a psychiatrist). An emergency room physician must form a differential diagnosis including the worst case scenario as well as the most likely scenario. [119] He said that when there is any indication of delusions or reason to consider a psychotic disorder, that the appropriate standard of care requires a psychiatric consultation. Further, such symptoms also require the physician to seek collateral information from friends and family. He said that in this case there were three issues that should have caused Dr. Ross to seek further information and a psychiatric consult: 1. Joseph's reference to being in a "conceptual art project"; 2. His recent history of rapid deterioration from high functioning as a lawyer; 3. That Dr. Ross had a different opinion than Nurse Hooff (situational crisis versus drug-induced psychosis or bipolar mood disorder). [120] Without clarification on these issues, it was impossible to form the required differential diagnosis. Collateral information was available and would

have caused Dr. Ross to reformulate the differential diagnosis to include a delusional or psychotic disorder, which would have meant a psychiatric consult. Further, if known to Ms. Hooff or Dr. Ross, Joseph's manipulation of the urine test results further indicated a need for more information from the family. [121] Dr. Oster said that in Joseph's case, where there are potential delusional symptoms and where there is a history of rapid deterioration, it is the standard of care of the emergency room physician to seek out collateral information so as to gain greater insight into the patient's situation. In the context of Joseph's presentation, the fact that he manipulated the urine sample was essential information that the nurse should have provided to Dr. Ross as soon as it was available. However, the fact that Joseph intended to trick hospital staff was not essential information. [122] While it was reasonable for Dr. Ross to assume that any collateral information obtained by Ms. Hooff would be shared with her, it is difficult to ascertain whether it would have appeared to Dr. Ross that all essential information was shared in this case. If Ms. Hooff inadvertently did not share collateral information, Dr. Ross should have made inquiries. [123] In Dr. Oster's opinion, it was not reasonable for Dr. Ross to rule out psychosis. The "conceptual art project" comment suggests delusions.

Diagnosis of situational crisis was inconsistent with potentially delusional symptoms. Dr. Ross should have obtained collateral information and determined whether other delusions were present. He noted the difference of opinion between Ms. Hooff and Dr. Ross' assessment and felt that further inquiries should have been undertaken before Joseph was discharged. [124] Dr. Oster said that a patient with psychotic symptoms should not be discharged without psychiatric consultation, an opinion with which Dr. Ross agreed. Dr. Oster felt that in Joseph's case, the assessment was simply incomplete. It is not the role of the emergency room physician to manage a psychiatric patient as an outpatient without a formal diagnosis. It was not reasonable to discharge Joseph as psychosis could not be ruled out and the diagnosis was therefore incomplete. [125] In his report of January 16, 2013, he said that the information from the family was essential for a proper assessment. The family was available, and such information may be the only method available to obtain clear and unbiased information on the patient. He said at p. 2: ... in my opinion in cases such as Mr. Briante's when there are potential delusional symptoms expressed by the patient and when there is a history of a rapid deterioration in a normally high functioning individual to the point of being brought into the ED by his family, it is

standard of care to seek out such collateral information to get additional perspective and insight ... prior to making a diagnosis and disposition decision. [126] Dr. Oster agreed that it was reasonable for Dr. Ross to assume that the information obtained by Nurse Hoof from Joseph's family would be conveyed to her. However, he was unable to answer the question of whether it appeared Ms. Hooff actually provided all of the essential information that Dr. Ross needed for an evaluation. He noted that it is the standard of care for Ms. Hooff and Dr. Ross to have an open discussion at some point, and that it is usually not documented. In his response to Dr. Wanger's report, he says that the conversation between the psychiatric nurse and physician can take many forms. What is critical is that ultimately all relevant data, including collateral history, is obtained. [127] He said that an emergency physician should not discharge a patient who has psychotic symptoms, or a paranoid delusional patient, without a psychiatric consultation. While it is appropriate for an emergency physician to discharge patients when a low risk underlying alternative diagnosis cannot be ruled out, this was not the case for Joseph. The essential issue is not that psychosis could not be ruled out, but that the assessment was incomplete. [128] Dr. Oster also pointed out that the standard of care for an emergency

physician is different from that of a psychiatrist. Where a patient has psychotic symptoms, especially new ones, it is not open for the emergency physician to manage the patient as an outpatient without a formal diagnosis. It is not the role of the physician to discharge a potentially psychotic patient in order to observe how symptoms evolve. This falls clearly outside the professional expertise of an emergency room physician. He said that any patient displaying psychotic symptoms requires a psychiatric consult, and this is especially the case with new symptoms. [129] Dr. Oster said that it was not reasonable to discharge Joseph where psychosis could not be ruled out entirely. The potential delusional thoughts should have been explored by getting collateral information from the family. In Dr. Oster's opinion, Joseph remained largely undiagnosed at the end of Dr. Ross' assessment and therefore further information gathering was critical: He said that in his opinion one of the paramount principles of the emergency physician is to consider the most serious diagnosis first and to "remain highly suspicious ... until ample compelling evidence makes them very unlikely". It is outside the scope of practice of an emergency physician to predict, without psychiatric consultation, the risk that psychotic features may present to the patient or others. Dr. Garry Feinstadt [130] Dr. Feinstadt

obtained his degree in medicine in 1972. He practised as a resident in family medicine in Vancouver and was certified in family practice by the College of Family physicians in Canada in 1979 and was made a Fellow of the College in 1985. He has been in full-time practice as a family physician since 1973. He is associated with the faculty of medicine at the University of British Columbia in Vancouver and has responsibility for teaching and evaluating medical students, residents and foreign medical graduates. Since 2006 he has worked as a locum in several rural communities of British Columbia and in that role he has worked in emergency departments of smaller hospitals. [131] Dr. Feinstadt relied on a review of the hospital records of October 29, 2007, the PES policy manual, and an appended statement of facts and assumptions provided by counsel for Joseph. He assumed that Joseph was brought to hospital by his parents, that the triage nurse reported his reason for coming as a "nervous breakdown", that the reason his parents brought him in (according to Ms. Hooff), was delusional paranoia and labile emotions. He assumed that Joseph had no previous psychiatric history and that he had used drugs such as ketamine, ecstasy, and cocaine for several years. He assumed further that Joseph's cognitive status was fully oriented and that he was moderately socially withdrawn. [132] He said that

the diagnosis made by Dr. Ross was that Joseph was experiencing a situational crisis and that he was not suicidal or homicidal and was not psychotic. Dr. Feinstadt also assumed that Dr. Ross did not routinely obtain additional information from family members and that she and her colleagues at the Royal Jubilee Hospital typically relied on the psychiatric nurse to provide any concerns and to obtain necessary additional information from the family. [133] Dr. Feinstadt said that the reasonable and prudent physician would have understood the need to gather whatever information was available from accompanying family or friends. Where there was an assessment by a psychiatric nurse, the physician is required to elicit additional information, especially where there may be altered levels of consciousness due to drugs or the presence of psychosis. This information would assist the physician in determining the need for immediate psychiatric consultation and possibly admission. In this case, the list of differential diagnoses would have included psychosis, and in the circumstance, immediate psychiatric consultation would be required. In Dr. Feinstadt's opinion, the failure to obtain such collateral information would be a breach of the standard of care of a physician providing emergency care in British Columbia in 2007. [134] He did not agree that it was reasonable for Dr. Ross to expect

Ms. Hooff to convey all relevant information. It was his opinion that the physician cannot simply passively receive information from the nurse and assume that there is no further relevant or essential information. The physician has a responsibility to actively elicit information including collateral information from the nurse. It is the physician who ultimately must make the decisions on care, and as such must ensure she has all the necessary information. In this case, if the psychiatric nurse has not had time to complete her assessment, then the patient should remain until the assessment is completed and the nurse and physician have had adequate time to review the patient. [135] When he was asked whether it was reasonable for Dr. Ross to rule out psychosis based on the information she had, Dr. Feinstadt responded by reiterating the importance of obtaining collateral information in order to make a full assessment. He said that Dr. Ross should have obtained information from the family, and also should have obtained a psychiatric consultation given the history of depression, the other factors that were present, and the information that she would have obtained from the family. [136] He said that a reasonable physician would have a list of differential diagnoses and that it is essential to rule the most serious of those out before a patient is discharged. He gave an example of a

patient with chest pain, which could be acute coronary syndrome. The reasonable physician would rule this out prior to relying on the primary diagnosis. In this case the best way to rule out psychosis was to refer Joseph for a psychiatric consultation. [137] He agreed that a physician's "sense" of the patient's situation based on her observation of the patient and the information provided by the patient is a valuable tool for the emergency room physician, however he says it would not be used to rule out a particular diagnosis. Where psychosis was one of the possible outcomes of the differential diagnosis, it was not reasonable for Dr. Ross to find that Joseph was not suffering from psychosis without obtaining the collateral information. She has the responsibility to obtain that information from any available sources including the family or the psychiatric nurse. [138] Dr. Feinstadt said that in some contexts, such as where a patient has an established psychotic disorder, an emergency physician could reasonably discharge a patient with psychotic symptoms to be managed as an outpatient. However in this context, where Ms. Hooff identified a possible drug-induced psychosis, it would be a first break psychosis. In such a case, the reasonable and prudent physician would have obtained a psychiatric consultation. [139] Dr. Feinstadt said that in his opinion it was not reasonable to

discharge Joseph, even if psychosis could not be ruled out entirely, without obtaining information from the family, and without a psychiatric consultation. It would not be reasonable for the physician to discharge the patient to see how the symptoms progress. [140] Dr. Feinstadt's opinion on this matter appears to be based, in the circumstances of this case, on at least some factors that were not known to Dr. Ross on assessment. However, he nevertheless concluded that Dr. Ross did not have sufficient information to rule out a diagnosis of psychosis and to safely discharge Joseph. He said she did not have enough information to conclude that he could safely be discharged from the hospital. [141] On cross-examination, Dr. Feinstadt agreed that he assumed Dr. Ross would have seen the initial clinical assessment prepared by Ms. Hooff before Joseph was discharged, an assumption that does not appear to be correct on the evidence. He also agreed that even with a new patient, sometimes the patient will speak clearly and rationally and not show any symptom of an underlying psychosis or psychiatric problem, and the patient will not be referred to a psychiatrist on an emergent basis. However, he said that type of an assessment would normally take him at least 40 to 60 minutes to complete. Dr. Ian A. Gillespie [142] Dr. Gillespie is a medical doctor and a psychiatrist. He received his

medical degree from the University of British Columbia in 1971 and interned at the University Hospital and Vancouver General Hospital. He completed his psychiatric residency training at the University of British Columbia from 1971 to 1973 and he then took further training in psychiatry at the Mayo Graduate School of Medicine in Rochester, Minnesota from 1974 to 1976. He returned to British Columbia as a psychiatrist at Royal Jubilee Hospital in Victoria and has been practising in Victoria for the past 37 years. [143] Dr. Gillespie sees patients referred from a family physician or from the emergency department of the hospital. He is also engaged in the private practice of psychiatric medicine in Victoria. He is a past president of the British Columbia Medical Association and has been the medical director and psychiatric director of Royal Jubilee Hospital. [144] Dr. Gillespie interviewed Joseph on September 25, 2012, and had a full medical and personal history drawn from his interview with Joseph, his review of medical records and reports and Joseph's personal and family history obtained from his parents. [145] He said that as a psychiatrist he worked regularly on call in the emergency room at Royal Jubilee from 1976 until 2004. He did not recall working with Ms. Hooff or Dr. Ross. He then discussed how the emergency room functions at the hospital and noted that it is a busy

facility and that psychiatric nursing staff were recruited in response to budget cuts in the face of increased psychiatric case load. He suggested that because there is no robust emergency service for patients with addiction, that these patients are more likely to face negative reactions: they are viewed as causing their own difficulties and as an unnecessary burden, although I note that view is contrary to one expressed in the PES policy manual. [146] Dr. Gillespie said there is a pressure at the hospital to discharge patients early, as the population has increased but the number of available beds has decreased. He noted that some patients should be admitted on assessment, but also notes that patients with paranoid conditions are among the most difficult to assess. [147] He said that: [w]hen a patient is brought to the Emergency Department by two very concerned parents, their observations need to be taken into account in making the differential diagnosis and decisions in treatment. In the records, I can find no information that documents the obtaining of such a collateral history. There appears to be a failure to obtain relevant data and to record it. [148] Dr. Gillespie also noted that it was unclear what Dr. Ross and Ms. Hooff said to each other in their discussions before and after Dr. Ross spoke to Joseph. However, Dr. Gillespie said that it was clear from the interview of

Joseph that he was having "severe and terrifying psychiatric symptoms of a days' duration and the family had multiple reasons to be concerned about his mental state". He said that Joseph's parents were credible observers. He said that severe psychotic anxiety and insomnia are indicators of a high risk of suicide. In Dr. Gillespie's opinion, Joseph was experiencing those symptoms, along with paranoid persecutory delusions. He also had sought treatment for depression twice in the past. His history also suggests prior periods of manic episodes or hypomania. [149] At p. 19 of his report dated December 7, 2012, he noted the sequence of events on October 29, 2007 as he understood the facts. In his summary he made certain assumptions respecting the time of some of the events, particularly the length of time that Joseph spent with Ms. Hooff and Dr. Ross. He says that the record does not make clear how long the nurse and physician spent assessing the patient, obtaining collateral history, and consulting with each other. He expressed concern that the assessment time was fairly short, and notes that there was no documentation of history from family, informed consent discussion (with family) about the recommendations, the possible treatment options and associated risks. [150] Dr. Gillespie said in his report at p. 20 that there was a "critical lack of attention spent on collateral history"

and no documentation of his prior history of any treatment for depression and not much detail about his history of substance abuse, or enough questions about whether suicide risk was present. He suggested that it is good practice for the person taking a urine sample to check for warmth and colour (though he notes in a busy practice this is not always possible). He expressed concern that there is no documentation as to whether a referral for psychiatric consultation was considered and why it was not requested. He said: Even in the absence of a known/disclosed history of previous psychiatric treatment, sudden changes in the behaviour and mental state of a highly educated thirty-two-year-old man warrant more attention to determining the cause. [151] He suggested the minimum standard of care for pre-treatment of psychiatric patient is: - a complete clinical history; - complete physical exam; - administration of laboratory tests; - disclosure of sufficient information to the patient to obtain informed consent, including information about the risks and benefits of both treatment and of no treatment; - thorough documentation of all treatment decisions, informed consent information, pertinent patient responses, and all other relevant treatment data. [152] Upon his review of Joseph's hospital records from his stay from November 4, 2007 to January 31, 2008, he noted that Dr. Ingram and

Dr. Barale treated Joseph for a provisional diagnosis of psychotic depression and substance abuse, with possible underlying personality disorder. Possible psychotic symptoms resurfaced on December 18, 2007, so his medication was increased. Dr. Gillespie was of the opinion that as those symptoms were resurfacing almost two months after the incident of self-harm, that there was likely an existing bipolar disorder and not drug-induced psychosis. [153] He is of the opinion that there was available evidence leading up to the incident of self-harm that Joseph's thinking was becoming increasingly disorganized and that he was displaying clear delusional thinking and manic behaviour. A further complicating factor was his substance abuse which can produce psychosis like states and make a definitive diagnosis difficult. Dr. Gillespie said this emphasizes the need for knowing the results of the drug screen and the need for psychiatric consultation. [154] Dr. Gillespie emphasized the importance of a complete assessment of the patient that is documented accurately and contemporaneously. He expressed these concerns regarding the MHAS profile completed by Nurse Hoof: - that the alert box directs to destroy clinical records, which he says should be accessible to future treating physicians and the patient; - that the profile was completed after the patient was discharged and treated; - that the

profile is "self-reviewed" for accuracy; - that there is no indication whether the treating physician saw the profile or the information contained in it was communicated to her, but that the profile contains critical content for informed clinical decision making; - that the profile indicates a pre-occupation with Mr. Briante's relationship with Mr. Quinn (sic) "bordering on the voyeuristic" that detracts from focus on his mental state: whether there are delusions and what type. [155] On the basis of history provided by Joseph and a review of hospital records, Dr. Gillespie's opinion is that Joseph was clearly experiencing " a psychosis with paranoid persecutory delusional ideas present." Dr. Gillespie notes that this is a psychiatric emergency whereby the patient's behaviour is unpredictable. He says that delusional patients may try to appear normal in an effort to avoid hospitalization, which is why it is essential to consider collateral history, credibility of other informants, and the mental health and employment background of the particular patient, before making a differential diagnosis. In his opinion Joseph should have been seen by a psychiatrist prior to discharge, noting that it is not safe to treat a patient with this amount of distress outside hospital. [156] While Dr. Gillespie had the advantage of considerably more information than either Ms. Hooff or Dr. Ross, and

as a result might have seen the situation in "perfect hindsight", he said that in his opinion a proper differential diagnosis of Joseph on October 29, 2007 would be: - substance-induced psychotic disorder, with delusions; - manic episode and major depression; - bipolar disorder; - substance-induced mood disorder; - major depressive disorder, recurrent, with psychotic features; - psychotic disorder due to medical condition; - unrecognized head injury. [157] He said that his provisional diagnosis would be substance-induced psychotic disorder with delusions. He says further evaluation would consider bipolar disorder, and whether this was linked to attention deficit disorder. [158] Dr. Gillespie's treatment plan for Joseph would have been to have a complete neurological physical exam, possibly neuroimaging; urinalysis; if delusional thinking is confirmed, involuntary hospitalization; treatment of anxiety and sleep disturbance, possibly antipsychotics; during hospitalization, observation and further history from all sources to modify treatment. [159] His prognosis on recovery if such treatment was pursued was that " In the large majority of these cases, the patient will recover fully." He caveats this with the note that recovery depends on the root cause of the condition. For example, if the psychosis was drug-induced, recovery depends on the patient's success in overcoming

addiction. If psychosis was for psychiatric causes, recovery will depend on the patient's insight and adherence to treatment, as well as the family's ability to recognize his behaviour. [160] Dr. Gillespie said that patients with psychiatric conditions similar to Joseph will, if treated properly, go on to have productive lives. He said most patients would be able to return to employment, and may even be more productive if the disorder was treated. However, prolonged illicit drug use may have caused brain damage that will limit functional capacity. He says that it is impossible to determine in Joseph's case whether he had any such brain damage prior to November 2007. [161] Dr. Gillespie emphasized throughout his reports that collateral information provided by the family is essential information to make an accurate diagnosis. It was not reasonable for Dr. Ross to expect that Ms. Hooff was conveying all important information; the onus is on the physician to obtain direct collateral history when assessment information seems incomplete or unclear. For example, the fact that Joseph intended to trick hospital staff was, in Dr. Gillespie's opinion, essential information, as was the fact that he manipulated the urine sample. [162] Dr. Gillespie said it was not reasonable for Dr. Ross to rule out psychosis in the absence of a differential diagnosis. She had an incomplete history lacking

collateral information. The fact that Ms. Hooff thought drug-induced psychosis/ bipolar mood disorder was a possible diagnosis should have prompted Dr. Ross to obtain more information. It was not reasonable to rule out psychosis without a psychiatric referral. [163] He said it is not open for an emergency room physician, without a psychiatric referral, to decide whether or not a patient with psychotic symptoms can be managed on an outpatient basis. In such a case there should be an immediate psychiatric consultation. This is due to the unpredictable behaviour of such a patient. He said Joseph's parents are credible and they should have had an opportunity to speak directly with the physician. [164] Nor was it reasonable for Dr. Ross to conclude that the psychotic features present were not of a nature to place Joseph in danger at the time, without having taken a collateral history or obtaining a psychiatric referral. He also is of the opinion, based on the PES policy manual, that Joseph met the criteria for admission at least to a short stay bed to allow for further observation. [165] Dr. Gillespie says it was not within the standard of care of an emergency room physician practising at Royal Jubilee to make a USTAT referral for Joseph rather than seek an immediate psychiatric referral. He should have been put in a short stay bed for further observation. He said that Joseph

exhibited much of the criteria for admission to such a bed, but none of the criteria for exclusion. Also, the presence of persecutory ideas described by Joseph warranted further observation in PES; outpatient care was not an option, even if his psychosis was drug-induced. [166] It is Dr. Gillespie's opinion that when a patient has a differential diagnosis that includes a first break psychosis, the patient requires direct admission to Eric Martin Pavilion, or at a minimum, a psychiatric consultation. In Mr. Briante's case a short term stay was likely required, and he may have required longer admission. The physician also has a responsibility to obtain direct collateral history when assessment information appears incomplete. [167] On more general matters, Dr. Gillespie said that deinstitutionalization of the mentally ill has led to a health care focus on persons with severe and persistent problems to meet budgetary constraints. While drug addicted patients can often be managed on an outpatient basis, this was not the case for Joseph, who was presenting as a "first break" psychosis. The same goes with patients with bipolar disorder: only stable, chronic patients should be managed as out patients. [168] Further, Joseph's drug use did not sufficiently explain his rapid decline and psychiatric presentation. His presentation required further observation, at least on a short stay

basis. That was a decision for the psychiatrist to make, not Dr. Ross or Ms. Hooff. [169] Dr. Gillespie's opinion is that a psychiatrist would have had further observation, collateral history, and a review of laboratory results before a disposition would be made. Further, if in doubt, a psychiatrist should choose the safest option, which may be admission. Finally, he notes that Joseph's unwillingness to disclose symptoms suggested paranoid ideation which may point to involuntary admission as the proper response. Evidence of Jamie Swift [170] Ms. Swift is a registered psychiatric nurse who has practised in British Columbia since 2003. She has extensive experience in a variety of hospital settings and she teaches at a private college that provides candidates with certification as a psychiatric nurse. She was asked to provide an opinion on the standard of care of a psychiatric nurse practising in a unit such as PES in British Columbia in October 2007. [171] Ms. Swift's opinion is based on the standard of care required by the College of Registered Psychiatric Nurses of British Columbia. In its publications, the College sets out standards for the various duties involved in patient care, specifically with regard to: assessment, planning, implementation, and evaluation. She also referenced the College's code of ethics. She said that the standards within these documents must be

followed throughout the nursing process. After assessment, a nurse will develop a "nursing diagnosis", which is distinct from a medical diagnosis. This is important to ensure the treating physicians achieve an accurate medical diagnosis. [172] She said that Ms. Hooff's documentation is missing "substantial data, assessment, intervention, and implementation of her care". Ms. Swift believes that Ms. Hooff's record of care is incomplete, and that this likely reflects an incomplete assessment. In her opinion, the incomplete assessment affected the treating physician's decision whether to recommend further psychiatric consultation or to admit Joseph to hospital. [173] In particular, Ms. Swift noted that Ms. Hooff recognized that Joseph was experiencing delusions that appeared to be paranoid delusions but she failed to fully explore that issue. She said that Ms. Hooff recognized Joseph lacked insight and judgment as to his own illness, and also recognized that psychotic features were unknown. This should have caused Ms. Hooff to ask more questions as it is an indication of a possible psychotic break. Further exploration by the nurse on these issues would have assisted the treating physician. [174] Finally, Ms. Swift noted that there are several inconsistencies and missing information within Ms. Hooff's record. For example, she reports no history of mental illness but then also

reports a history of depression, and reports only minor anxiety whereas elsewhere she reported that the patient is "distressed". She noted that Ms. Hooff reported a medical not a nursing diagnosis: drug-induced psychosis. This is beyond her ability to practice under the four core standards of an RPN. She said that Ms. Hooff's nursing diagnosis and recommendations are not consistent with the data, interview and assessment she provided. Further, she did not do a thorough suicide assessment, and did not accurately document her assessment and interview. This reflects a poor assessment that appears to have affected the assessment and treatment options by the physician. [175] She said that a proper assessment would have included a thorough mental status examination. This would have considered any perceptual disturbances, thought process and content, cognitive functions, and Joseph's judgment and insight. A nursing diagnosis would then be made that considered things such as: level of anxiety, risk for suicide, or disturbed thought process. Ms. Hooff's information failed to provide sufficient data on areas such as thought content with respect to delusions and psychosis. Ms. Swift said that on the facts available to Ms. Hooff, a proper nursing diagnosis might be: "altered thought process", which would have assisted the treating physician in deciding whether to make a psychiatric

referral. [176] She further said that collateral information is very important when delusions or psychosis is being considered. She said that is a requirement of the College standards, which defines the nursing process as a therapeutic relationship in collaboration with the client or family, as well as "data collection with the client and, whenever possible, with the family." Standards According to the College [177] Ms. Swift attached to her report the College's published nursing standards. I have summarized some relevant portions: The RPN must collect, analyze and synthesize data from all available sources, which should be organized according to a chosen nursing model, and then used to formulate actual and potential nursing diagnoses. Pertinent data includes ability to remain safe, physical, emotional health status, drug use and relationships. Data should be validated with the client and whenever possible, the family. The nursing diagnosis should conform to an accepted classification system. The RPN should develop a psychiatric nursing care plan based on the nursing diagnosis. The plan must acknowledge the client's right to participate in care decisions, and whenever possible incorporate observations by the client and family in developing the plan. It must also incorporate observations by other members of the health care team. This aspect involves consultation with the client

to determine his participation in the plan, involving the family to determine resources and their participation, and consultation with the family to verify diagnosis. The key factor is communication with both family and the health care team. Finally it requires recording of goals and expected outcomes. The RPN carries out the planned interventions in assisting the client achieve optimal health. The nursing care plan is implemented and priorities are modified on an ongoing basis. The nurse must provide consistent support and reassurance on an ongoing basis, to the client, and whenever possible, to the family. Selected interventions will be based on the highest probability of acceptability and effectiveness to the client and/or family. The RPN must observe and evaluate the client's health status in accordance with the plan of care. This is an ongoing function, and involves evaluation of the effectiveness of the plan of care, and recommending changes. It requires discussion of the client's progress with the client and family whenever possible. The family and client are involved in the continual revision of the plan. The fundamental responsibility of the RPN is to assist clients to achieve and maintain optimal mental health, alleviate suffering, and promote mental health. The RPN must respect an individual's uniqueness regardless of sex or lifestyle and must respect the

independence of a client, including holding in confidence all information shared and using professional judgment in sharing information. A RPN must respect a competent person's legal and moral right to refuse treatment. [178] Ms. Swift attached portions of a textbook that sets out the proper way to conduct a mental status examination. The key element is that the nurse must be nonjudgmental and must consider not only what is said but also what is not said, and consider the way that the patient presents. [179] Ms. Swift provided the opinion that Ms. Hooff failed to adequately delve into the mental status examination, in particular to ask enough questions to determine Joseph's judgment and insight, when she knew such insight was limited. She also was aware that his thought content appeared to contain paranoid delusions that needed to be further explored. She also concluded that a detailed suicide assessment was not completed. [180] She said that the standards of practice require the nurse to "establish a therapeutic relationship" and to plan care in collaboration with the patient or family. She says that psychiatric nurse practices of care are highly regulated, as decisions of the nurse affect not only the patient but also how the physician makes decisions. The standards ensure that the physician has all of the information properly presented and documented "in order to reach the

most accurate medical diagnosis". The Evidence of Dr. Barale [181] Dr. Barale is a consulting psychiatrist practising in British Columbia. He is a Fellow of the Royal College of Physicians and Surgeons of Canada. He has practised psychiatry since 1997 and has worked as an emergency room physician at hospitals in South Africa and Saskatoon, Saskatchewan. He was a consultant to the brain injury program of the Vancouver Island Health Authority from 2006 to 2010. [182] Like Dr. Gillespie, Dr. Barale had the benefit of assessing Joseph after his injuries. He had access to full information from the medical records and reports, as well as a complete personal and psychiatric history of Joseph that was obtained from Joseph's patients. [183] Dr. Barale assessed Joseph on November 14, 2007, after speaking with his family. His said that prior to his attempted suicide Joseph's family had noticed his increasingly erratic behaviour, labile mood, and fearful and delusional statements. Joseph reported that he had been having hallucinations for the past year and had also used street drugs. Based on the information he learned, Dr. Barale formed the opinion that Joseph was experiencing the "passivity phenomena": that is, he had the sense of someone trying to control him. Dr. Barale's initial diagnosis was bipolar disorder in the depressed phase with psychosis. He also considered psychosis, and

noted the presence of polysubstance dependence. [184] On review of the clinical profile and hospital notes from October 29, 2007, he said that there was sufficient evidence available from Joseph and his family to make a provisional diagnosis of psychosis. His comments about feeling controlled are evidence of the passivity phenomena. He said that Ms. Hooff clearly suspected this was more than a situational crisis, in that she noted the need to rule out drug-induced psychosis and bipolar mood disorder. The comment she made that there was no "other" paranoia or delusional thought content clearly indicates that Ms. Hooff felt that Joseph's thought content was delusional. In Dr. Barale's opinion Joseph was presenting in a psychotic state. [185] As to treatment, had Joseph been further assessed by a psychiatrist, Dr. Barale is of the opinion that he would have at least been prescribed antipsychotic medication, and more likely would have been admitted for assessment and treatment. [186] He said that prognosis is unpredictable and varies from patient to patient, but the majority of bipolar patients achieve some stability of mood and resolution of psychotic symptoms. Given Joseph's high level of functioning in the past, his prognosis would likely have been good if he had used mood stabilizing medications and had psychotherapeutic support. He could have returned to some prior gainful

employment and a relatively normal social life. [187] Dr. Barale said that in his opinion there is no doubt Joseph should have been further assessed by a psychiatrist, based on the collateral history from parents and his distinctly abnormal thought content. His persecutory thoughts could never be attributed to a situational crisis; they are flags for a serious mental illness. [188] Dr. Barale said that prior to his self-injury Joseph's life had become increasingly chaotic and dysfunctional, and that had he received adequate treatment he would likely have "regained stability" and returned to a career related to his legal training. [189] Dr. Barale said that the incident of self-injury could likely have been avoided by admission to a psychiatric unit, on either an involuntary or voluntary basis. Had closer attention been given to the concerns of Joseph's family, there would have very likely been a full psychiatric assessment. He said that when there is any doubt as to a patient's diagnosis, the better course in the emergency room is to "over react", as "the psychotic state is a highly unpredictable one and one which can lead to tragic consequences quite rapidly". [190] Dr. Barale did not agree that Dr. Ross's decision to refer Joseph to USTAT was reasonable. He said that although passivity phenomena could be "situational", which may occur in relation to psychosis due to street

drugs, the behaviour of someone experiencing passivity phenomena cannot be predicted. Such a person could rapidly deteriorate regardless of the cause of the experience. Dr. Barale would have tried to persuade Joseph to stay for further observation, or if necessary he would have certified him under the Mental Health Act for "imminent deterioration", for his own protection or the protection of others. [191] He believed that a more prudent management of Joseph's presentation would have seen him admitted, even if only overnight to further assess and gather more collateral history. This would have allowed for a more definitive diagnosis. He said that just because Joseph's presentation was likely due to drug abuse does not reduce the seriousness of his reported experiences. Polysubstance dependence is often concurrent with mental illness such as bipolar disorder and one cannot assume that symptoms are entirely related to substance abuse. A clinician should therefore err on the side of caution. [192] He said that as Joseph had never been assessed in Victoria, the depth and severity of his psychopathology was unknown. He noted that Joseph initially told the triage nurse at the hospital that he was having a nervous breakdown, and he said that Joseph could not be adequately assessed in the context of psychotic symptoms over the short time he was in hospital. [193] He agreed with Dr.

Pawliuk, an expert called by the defendants, that Dr. Ross could not be expected to be familiar with the subtleties of psychosis including the nature of passivity phenomenon. He said that bipolar illness is a serious medical illness, and noted that it carries a high suicide rate and a degree of morbidity. These patients spend more time in a depressed state than manic state. He notes that 60% of bipolar patients have an associated substance dependence disorder. [194] He said that patients with mental health issues as well as addictions are not commonly managed as outpatients even if they are psychotic. However, patients who are "known entities" because their patterns of behaviour and risk to community have been assessed and documented over time can sometimes be safely treated outside of a hospital. By contrast, Joseph was presenting for the first time, and the serious nature of the potential diagnoses appropriate to him carried a high risk of self-harm or harm to others. Therefore, he required admission and further assessment. [195] Dr. Barale's said that usually a full understanding of a patient's psychotic symptoms takes time and rapport to learn and most psychotic patients can hide the extent of their symptoms at first. Joseph's level of education made him even more likely to hide his symptoms, as it made him very aware of how abnormal such symptoms were. He said: "It is

doubtful there is such a thing as 'mild psychotic symptoms' in someone presenting for the first time. Psychotic symptoms are inherently unstable and liable to rapid and unpredictable changes." [196] Dr. Barale holds the opinion that given the clinical information that was available, he would have admitted Joseph for further assessment. The admission would likely have necessarily been on an involuntary basis. He said he would have explained his concerns to Joseph and told him that his thinking was not clear and needed admission due to his distress, and that he was possibly deteriorating and was at risk of self-harm or harm to others. He pointed out Ms. Hooff's note that Joseph was "vulnerable", and said that the potential for a patient's imminent deterioration is grounds for admission, even if attributable to substance abuse. [197] He said that in his opinion psychotic individuals have a poor adherence to taking medication. However, he notes that in this particular case Joseph could have been educated as to the reason for such medication, on the basis that it would improve his sleep, relieve his anxiety and potentially clear his thinking. This would improve the chances he would take the medication, at least for a while, which may have been enough to avoid the attempt on his own life. [198] Dr. Barale's attached his notes of his consultation with Joseph on November 14, 2007,

which include a history of the events that led to self-harm, past psychiatric history, social history, and a mental status exam. The consultation includes family reports of his erratic behaviour before self-harm, as well as Joseph's report of the circumstances of his departure from Faskens and his decline in functioning from that point on. [199] Dr. Barale noted that his clinical impression is that Joseph's self-harm was motivated by a psychotic state "which was the culmination of years of street drug use and, quite possibly, a cycling mood disorder". He considered bipolar disorder, and noted that Joseph was severely depressed and psychotic with some limited insight. The Defence Expert Evidence on Standard of Care Dr. George Pawliuk - Psychiatrist [200] Dr. Pawliuk is a psychiatrist practicing in Victoria. Dr. Pawliuk received his medical degree from the University of British Columbia in 1985 and took his training in psychiatry at the University of Western Ontario from 1995 to 2000. He was made a Fellow of the Royal College of Physicians of Canada as a specialist in psychiatry in 2000. He has worked at Royal Jubilee Hospital since 2000 providing inpatient and outpatient care and on-call psychiatric service. [201] In reaching his opinion, Dr. Pawliuk made several assumptions about the operation of PES. He began by noting that PES is not an inpatient ward. It has four short stay

beds available if needed. PES nurses are well-trained, and typically a patient will first see the psychiatric nurse, who will ask for a urine sample and then complete a detailed interview. Dr. Pawliuk said that he expects the nurse to gather collateral information. [202] After the nurse's assessment she will take the patient's chart to the emergency room physicians. There is little information in this chart and the clinical profile is not completed until later. The emergency room physician gets most information about the patient from a conversation with the psychiatric nurse before interviewing the patient. The nurse may suggest a differential diagnosis and treatment options. [203] The emergency room physician then interviews the patient in a less detailed but more focused way, and then makes a decision about disposition and discusses it with the nurse following the interview. Only a psychiatrist can admit a patient to the psychiatric ward, although the emergency room physician can certify a patient under the Mental Health Act if the necessary criteria for admission are met. The nurse then completes the clinical profile. [204] Dr. Pawliuk noted that the material showed that Dr. Ross reviewed Joseph's chart but did not see his clinical profile because it had not yet been completed. Dr. Ross learned from Ms. Hooff that Joseph was 32 years old, homosexual, and wanted outpatient

counselling to help with the end of a relationship. He had quit his job and was having an artistic collaboration with his employer. Sometimes he felt controlled and watched, and said he felt that he was part of a "conceptual art project" and that he was "living in a movie script". He was with his parents and had good support. Ms. Hooff knew he had a history of drug abuse. [205] Dr. Ross and Ms. Hooff discussed whether Joseph's odd comments about a "conceptual art project" could be delusions. Ms. Hooff said she did not think he had delusions and she said that she believed the most significant issue for Joseph was his history of drug abuse that he did not want to disclose to his parents. Dr. Ross then interviewed Joseph in an attempt to determine whether he had delusions. Ms. Hooff did not provide any collateral information from Joseph's parents to Dr. Ross. [206] When Dr. Ross met Joseph, she found him to be clean cut, focused, and organized. She performed a mental status exam and found him calm and cooperative. She thought he was candid, and he said that he believed his parents were overreacting. During her interview, Dr. Ross did not find him homicidal or suicidal. She concluded he was in a situational crisis and was not psychotic or delusional. Joseph expressed a desire for counselling to Dr. Ross but he said that he did not want to see a psychiatrist. Dr. Ross thought he

would benefit from seeing a psychiatrist but did not think he met the criteria for involuntary admission to hospital under the Mental Health Act. Dr. Ross decided on a USTAT referral, and discussed this with Ms. Hooff. Dr. Ross never knew about the manipulated urine test. [207] If Dr. Ross had sought a psychiatric referral, the only psychiatrist on call that night was Dr. Pawliuk and he was the psychiatrist who would have been called to see Joseph. By the time he did speak with Joseph, the clinical profile would have by then been complete and available for review. Dr. Pawliuk would also have been informed about the results of the urine test. Thus, Dr. Pawliuk would have had more information available to him than what Dr. Ross knew, specifically: that Joseph's parents said that he thought his employer was going to kill him, and that he was emotionally labile; that he felt his movements were being controlled; that Ms. Hooff did not think Mr. Briante was delusional or psychotic, but that staff at USTAT should rule out the possibility of drug-induced psychosis or bipolar mood disorder. [208] Dr. Pawliuk is of the opinion that a USTAT referral was consistent with the standard of care expected of an emergency room physician. He said that the passivity phenomena described by Dr. Barale occurs when a patient feels that his physical movements are being controlled by someone else. These

symptoms are associated with illnesses such as schizophrenia but are no longer specific to that disorder. The symptoms can occur in the context of a drug-induced psychosis, and such a case can be considered "situational" in that the symptoms only occur in the drug-induced context. Situational crises are common in substance abuse. He therefore disagrees with Dr. Barale that the passivity phenomena can never be attributed to a situational crisis, and says that it is not necessarily indicative of a serious mental illness. [209] Dr. Pawliuk was also provided the opinion that drug addictions can be managed on an out-patient basis even when a patient is psychotic. He believes that it was reasonable to refer Joseph to USTAT because they have experts in addictions. Further, an emergency room physician cannot be expected to have familiarity or expertise with passivity phenomena. On that point he said: Finally, given the standard of care I expect for an emergency room physician practicing in the Royal Jubilee Hospital, I would not expect Dr. Ross to have any expertise or familiarity with passivity phenomena. One would have to complete a psychiatry residency to have any expertise or familiarity with passivity phenomena. [210] Dr. Pawliuk's said that his opinion would not change even if he considered not only the information known to Dr. Ross, but also the clinical information known to Ms.

Hooff as it was described in the clinical profile. This includes the Briante family's statements that Joseph was "delusional" and that he was experiencing "paranoia and labile emotions", as well as Ms. Hooff's recognition of "no other delusional content other than when describing his current relations with Mr. Quinn (sic)". [211] Dr. Pawliuk said that in his opinion, Joseph was "experiencing neither suicidal nor homicidal ideation". He said that Joseph displayed mild psychotic symptoms, with no auditory hallucinations and his thought content was organized. Therefore, a USTAT referral was sufficient to address his concerns and as a consultation with someone from USTAT would occur soon after the visit to the hospital he felt comfortable with the disposition and noted that Joseph could return to emergency room in the interim period if it was necessary to do so. [212] Dr. Pawliuk said that if Joseph had been referred to him for a consultation on October 29, 2007, he would not likely have admitted him to hospital. He said that upon his review of the material he believed that Joseph was likely capable of refusing or consenting to treatment and that after discussing admission it is likely Joseph would have refused to accept a voluntary admission. [213] In the circumstances of Joseph's case, Dr. Pawliuk does not believe he could have legally admitted Joseph on an involuntary basis. He

said that he would have discussed antipsychotic medication with Joseph and he suspected that Joseph may well have refused such treatment. He then would have discussed a USTAT referral and he believes Joseph would have been comfortable with that option because another psychiatric assessment would occur. He would have advised Joseph to return to the hospital emergency department if his symptoms worsened. [214] Finally, Dr. Pawliuk noted that as many as 75% of psychotic individuals do not take their antipsychotic medication as prescribed, and non-adherence is correlated with early resistance to medication and drug abuse. As Joseph was strongly opposed to medication and had abused illicit drugs just a few days earlier, Dr. Pawliuk doubted he would have taken any antipsychotics if prescribed. [215] Thus, in Dr. Pawliuk's opinion, the decision of Dr. Ross to refer Joseph to USTAT on an outpatient basis was a reasonable one in all of the circumstances, given the model of triage used at the Royal Jubilee Hospital and at PES, in particular. Based on the available information, including information that was not available to Dr. Ross, Dr. Pawliuk concluded Joseph would not have met the requirements for an involuntary admission to hospital under the Mental Health Act and he would not likely have agreed to a voluntary admission. As a result, Dr. Pawliuk believed that a referral to USTAT was

an appropriate decision in all of the circumstances and within the standard of care of an emergency room physician. The Evidence of Dr. Karen Wanger [216] Dr. Wanger is certified as an emergency medicine specialist by the Royal College of Physicians and Surgeons of Canada and has practiced as a staff emergency room physician in Vancouver since 1991. As such she typically sees several patients with acute mental health problems each shift. She received her medical degree at McGill University Medical School in 1985 and took her emergency medicine residency in Los Angeles California from 1988 to 1991. [217] Dr. Wanger was asked to assume the same facts as Dr. Pawliuk in assessing Dr. Ross' performance in assessing Joseph. [218] Dr. Wanger said that she is familiar with the model of psychiatric assessment employed by the Royal Jubilee Hospital, where the psychiatric nurse is extensively relied upon by the emergency room physician to gather pertinent information before the physician conducts her own exam. She said that, in her opinion, it improves care to mental health patients as emergency room physicians do not have time to conduct the necessary lengthy interviews and collection of collateral information for these patients. She believes it is an efficient model. [219] She said that under such a model the assessment of the patient is a "team effort". It is expected that the nurse

will give all important information to the physician after her assessment and collection of collateral information. The physician will then interview the patient and come to a disposition, often again discussing it with the nurse. Dr. Wanger said it was reasonable for Dr. Ross to expect Ms. Hooff to give her all available information to her during their initial discussion. [220] Dr. Wanger says that Dr. Ross's independent assessment of Mr. Briante was reasonable and consistent with the standard of care expected of an emergency room physician. She said emergency room psychiatric assessment is similar to the assessment of a patient's physical complaints; the goal is to identify if there are immediate threats, less urgent threats, or long term problems, and then form a plan of action. An urgent threat would be suicidal or homicidal ideation. Less critical but still important would be new presentations of disorders or psychosis without suicidal or homicidal ideation. To determine the level of urgency, the emergency room physician and the psychiatric nurse must ascertain whether there is a threat to life or injury. [221] In this case, Dr. Ross interviewed Joseph and discussed the case with Ms. Hooff, who had already completed her assessment of Joseph. There were no overt signs of psychosis and he said he had no suicidal or homicidal ideation. Presence of psychosis is important for

treatment planning. Overt signs of psychosis or "command hallucinations", which are difficult to hide, might indicate urgency. Other forms of psychosis, which are more common, are not an immediate threat but should be identified to inform treatment. In this case, Dr. Wanger said in her opinion it was reasonable for Dr. Ross to focus her interview on the "oddities" of what Joseph had said to Ms. Hooff. [222] Dr. Wanger noted Dr. Ross' observations of Joseph; that he was cleanly dressed, organized and properly focused. She says these are important indicators of a lack of psychosis. Patients experiencing hallucinations or delusions are often distracted by them and that distraction is normally observable during an interview. Dr. Ross' note that Joseph was "focused and organized" shows that she did not see any of these signs. Further, such patients may have difficulty with daily tasks, so that his being cleanly dressed and well groomed was also relevant. Most importantly, a physician's sense of whether or not there is psychosis is often an intuitive and overall general sense of the patient, rooted in experience. [223] Dr. Wanger said it was reasonable for Dr. Ross to conclude that Joseph was suffering from a situational crisis in the absence of signs that he was suffering from something more serious. There were no symptoms of depression or bipolar disorder related to her during the

interview; he was forthcoming with information; there were no signs of psychosis. He had a number of situational stressors in his life, and he seemed to be in control of those stressors in that he was residing with his parents and had strong support from them and Christina and Carter Hovey. [224] Dr. Wanger said that Dr. Ross' referral to USTAT was reasonable, even if psychotic features could not be completely ruled out. He had a plan to manage his problems and was not presenting as a danger to himself or others. She further noted that in most communities out-patient psychiatric treatment is not as readily available as that provided by USTAT; usually it can take six weeks to three months, and resources are overwhelmed. There is currently a gap in care for patients requiring urgent but not emergent psychiatric care. [225] Dr. Wanger did not believe it was necessary for Dr. Ross to insist or try to persuade Joseph to see a psychiatrist that evening. In fact, she felt it may have been counterproductive as he did not seem to be a danger to himself or others and it is important to maintain the emergency room as a safe place for the patient to return. [226] In Dr. Wanger's opinion the physician must balance the responsibility to protect the community with the responsibility to provide the best care to the patient and to respect his rights. She stated that to be certifiable under s.

22 of the Mental Health Act, the patient must "predictably pose a danger to himself or to others in the short term to the extent that he should be held against his will". In Dr. Wanger's opinion, Joseph did not demonstrate such a danger. [227] Dr. Wanger's opinion is that Dr. Ross' assessment of Joseph was reasonable and consistent with the standard expected of an emergency room physician. She also said that in her opinion it was reasonable and in keeping with the requisite standard of care for Dr. Ross to expect that Ms. Hooff had sought and obtained all important collateral information that was available. She said that the model employed at PES is to have a psychiatric nurse make the initial assessment and gather all of the necessary collateral information. She said that model is in place in other British Columbia hospitals and that it is an effective and efficient way of assessing a patient with mental health issues. She said that: Having a well-trained and experienced psychiatric nurse do an initial assessment and pull together the pertinent information, aids the EP during his or her subsequent independent exam. Final plans are usually discussed between the physician and psych RN and agree to as a team. This is a very efficient model. [228] In Dr. Wanger's opinion it was appropriate for Dr. Ross to rely on Ms. Hooff's summary of her assessment of Joseph and to expect that

all of the available and relevant information had been given to her. The Evidence of Dr. Ronald A. Remick [229] Dr. Remick is a consultant psychiatrist in the Department of Psychiatry at St. Paul's hospital in Vancouver, British Columbia. He has held that position since 1992. He received his medical degree from George Washington University Medical School in 1974 and was qualified as a Fellow of the Royal College of Physicians and Surgeons of Canada in 1978. He has authored over 200 articles in professional journals in the field of psychiatry and lectured extensively. He has conducted extensive research in psychiatric pharmaceuticals. [230] Dr. Remick said that he too is familiar with the model used by PES in which the emergency room physician relies extensively on the psychiatric nurse to obtain documentation. He said that the model is well known and has been used for several decades in British Columbia, especially in urban settings with a high volume of patients. Its rationale is that it is more cost effective for scarce medical resources, and because of the nurses' experience in conducting such assessments, they are competent and capable. An emergency room physician may not deal with many patients with psychiatric problems in any given month whereas a psychiatric nurse will work with such patients each working day. [231] In Dr. Remick's opinion it was reasonable and within

the standard of care for Dr. Ross to expect that when Ms. Hooff was describing her assessment, that she was conveying all of the available and important information, including collateral information. Further, he said that from his review of the record, it appeared that Ms. Hooff did provide all of the important information. [232] Dr. Remick said that when an emergency room physician assesses a patient who presents with mental health issues she is trying to determine several things: first, is this a life or death situation? Second, does this patient need psychiatric inpatient care? Typically a patient who requires admission is one with acute suicidal intent or one who is psychotic and does not have the insight to care for himself on his own. The third question for a physician to determine is what are the urgent or emergency services required at that point in time, including whether further observation or information was necessary. He said that in his opinion Ms. Hooff provided the essential information as to whether this was a life or death situation; whether Joseph was suicidal or severely psychotic; and whether there were family or outpatient resources that could assist him. [233] Dr. Remick also is of the opinion that Dr. Ross' assessment of Joseph was reasonable and consistent with the standard of care of an emergency room physician. He said that it was clear from Ms.

Hooff's assessment that Joseph was not suicidal, something Joseph confirmed to Dr. Ross. As such, the focus on whether he required inpatient treatment was properly on whether he was psychotic and if so whether these symptoms could be managed on an outpatient basis. Dr. Remick said it was reasonable for Dr. Ross to focus on the oddities of Joseph's speech. [234] Dr. Remick said that the information obtained showed no evidence of psychosis in Joseph. He said that psychosis is an abnormal thought process that presents either in content such as hallucinations and delusions or form such as disorganized thinking patterns. There was no apparent evidence of delusions or hallucinations and Joseph's thinking pattern appeared organized, logical and coherent. Thus, Dr. Ross's impression that Joseph was in a situational crisis was reasonable based on the information available to her. [235] Dr. Remick believes that a referral to USTAT was reasonable in circumstances where the emergency room physician's concluded that Joseph was in a situational crisis. The fact that he was likely to be seen again within a week or two would determine whether the perceived issues he had were resolving or, alternatively, if the oddities in his speech were actually signs of a progressing mental illness. [236] In Dr. Remick's opinion it was not necessary for Dr. Ross to insist or try to persuade Joseph to see a

psychiatrist that evening. As there was no evidence of a life or death situation there was no need for further inpatient care. Further, Dr. Ross looked for signs or symptoms of psychosis and did not think they were present. Finally, even if there were psychotic symptoms that did not require immediate psychiatric evaluation and/or inpatient care; his presentation a lack of behavioural deterioration. [237] Dr. Remick said that Joseph did not satisfy the criteria for certification under the Mental Health Act. While he did have a mental disorder, he did not fit the criterion that he required care or supervision in a hospital setting to prevent mental or physical deterioration or for the protection of himself or others. There was no evidence he needed protection as he was not suicidal, and there was no evidence he was deteriorating. Dr. Remick said that Dr. Ross' care and assessment of Joseph met the standard he would expect of an emergency room physician. The Evidence of Dr. John Ward [238] Dr. Ward is a specialist in emergency medicine and internal medicine. He has been an emergency room physician at St. Paul's hospital in Vancouver, British Columbia since 1995. He received his medical degree from the University of Toronto in 1983 and completed his internship at St. Paul's Hospital in 1984. He then was a resident in internal medicine from 1984 to 1986 and became Chief Resident of

internal medicine at Vancouver General Hospital in 1987. He is a Fellow of the Royal College of Physicians and Surgeons of Canada in internal medicine, haematology and is a Certificant of the College of Family Physicians of Canada in emergency medicine. He is an Assistant Professor of medicine at the University of British Columbia and has conducted research and authored numerous articles published in the professional journals. [239] Dr. Ward was asked to make certain assumptions, essentially the same assumptions as Drs. Pawliuk, Wanger and Remick were asked to make. He reviewed the records of the Royal Jubilee Hospital and the Mental Health and Addiction Services Records. He began his report with a comment on the model of care in place at PES. [240] Dr. Ward said that having psychiatric nurses perform primary assessment and gather collateral information is very common in emergency rooms across British Columbia, including St. Paul's Hospital in Vancouver. He believes that model provides better care to patients, as proper psychiatric assessment is time consuming, and the system used at PES allows the psychiatric nurse to spend more time with an individual patient; time that the emergency physician does not have. Further, Dr. Ward believes that psychiatric nurses are better at comprehensive and reliable assessment of psychiatric patients than many physicians, as they are

specifically trained in it and are doing such assessments all the time. In his report at p. 6, Dr. Ward said: I would trust the assessment of a good psychiatric nurse more than that of any physician who doesn't work primarily with psychiatric patients. Dr. Ward also believes it was reasonable for Dr. Ross to expect that when Ms. Hooff was describing her assessment, she was conveying all important information, including any collateral information. [241] He said that in his opinion, Dr. Ross' assessment of Joseph was reasonable and within the standard of care. She knew Ms. Hooff, she had worked with her on prior occasions and she believed Ms. Hooff to be competent. Therefore, there was no reason not to trust the reliability of her assessment. Nevertheless, the onus was on Dr. Ross to ensure the assessment was accurate, which she did do. Secondly, Dr. Ward said that an emergency physician's main responsibility is to be sure the patient is not a danger to himself, and that he can care for himself. Dr. Ross confirmed that Joseph was not homicidal and explored his potentially paranoid and psychotic thoughts by observing that he was well groomed and his thought processes were organized, and that he had a plan for the future. Dr. Ward said those are not the characteristics of a floridly psychotic individual. [242] Further, Dr. Ross' assessment suggested an absence of psychosis. Joseph

did not display the characteristic disorganized thought pattern, auditory hallucinations or manic behaviour. The vague paranoid ideation that he did express was not itself an indication for certification under the Mental Health Act; as it was not a major voiced complaint, and it did not appear pervasive. It is common to discharge paranoid patients if they are not at risk of self-harm or harm to others. [243] The diagnosis of a situational crisis was reasonable. Further, Dr. Ward said that the issue is not whether Dr. Ross made a reasonable diagnosis; rather, the issue is whether she should have appreciated that he was at a high risk for suicide. The information that was available to her did not suggest that Joseph was at any risk on that day. Dr. Ward noted that: Assessment of suicidality is fraught with difficulty there is no foolproof method of identifying who will actually try to kill themselves. [244] On October 29, 2007 Joseph denied feeling suicidal, he had no history of prior suicide or attempts at self-harm, he showed enthusiasm at the suggestion that he try counselling and he had strong family support. The fact that six days transpired between the time Joseph was seen and the time he attempted suicide suggests he truly was not suicidal on October 29, 2007. [245] Dr. Ward also believes that the USTAT referral was a very reasonable plan for Joseph. There were concerns

about his personal life and he wanted help with those issues. The referral allowed for further psychiatric evaluation, and the expected one week follow up was a reasonable time frame. The follow up needed for a patient presenting in a situational crisis will vary; in Joseph's case, the fact that he denied suicidal ideation, and was making plans for the future, was not overtly psychotic, and given that he had supportive family, the referral period of approximately one week was reasonable. The fact that psychotic features could not be ruled out entirely does not change the opinion: he was not overtly psychotic. It was not clear whether Joseph truly thought he was being monitored, and even if he did, the thoughts did not appear to be dictating any change in his behaviour. While his concerns related to real and obvious stressors, it is beyond the scope of emergency room practice to make conclusive, all-encompassing diagnoses in patients, only to try and ensure to the best of the physician's ability that patients are safe to discharge. [246] Dr. Ward said that it was not necessary for Dr. Ross to try to persuade Joseph to see a psychiatrist. He did not meet the criteria for certification under the Mental Health Act as he did not have an overt mental disorder and he did not say anything to Dr. Ross to suggest that he was a danger to himself or others. [247] In Dr. Ward's opinion, the

assessment of Joseph conducted by Dr. Ross was thoughtful, comprehensive and one that would exceed the standard of many similar assessments conducted in emergency rooms in British Columbia. The Evidence of Andrew Janiec [248] Mr. Janiec is a qualified psychiatric nurse licenced to practice in British Columbia. He has Bachelor of Science degree in nursing and has worked as a psychiatric nurse since 1995. He has worked as the patient care coordinator on the Psychiatric Assessment Unit at Vancouver Hospital. He has overseen the care of and provided for a wide range of mental health conditions in adults. He was asked to provide an opinion as to whether the standard of care Ms. Hooff provided to Joseph met the standard of care required by a competent psychiatric nurse. [249] Mr. Janiec noted from his review of the file materials that Ms. Hooff found Joseph to be well groomed, cooperative, anxious, and vague in responses. He was oriented, his speech was somewhat pressured, and he was mildly suspicious. His affect was fatigued and congruent to topic. He denied hallucinations; he reported no homicidal or suicidal ideations. Ms. Hooff asked Joseph questions intended to determine if he was suicidal or homicidal and his responses satisfied her that he was neither. She also made inquiries to see if he was delusional or psychotic and his responses did not indicate he was either delusional

or psychotic. [250] Mr. Janiec noted that Joseph told Ms. Hooff that he did not want to be admitted to hospital and that he would prefer to see a psychologist. Ms. Hooff thought he was experiencing a crisis as to his living and employment situation as well as a relationship issue. He also had long standing substance abuse and he lacked insight as to its adverse role in his health. Mr. Janiec assumed that Ms. Hooff met with Joseph's family who told her they were concerned about him and he was delusional and emotionally labile and had "up and down moods", and that he had rehearsed what to say to the medical team when he got to the hospital. [251] Mr. Janiec noted that Ms. Hooff told Dr. Ross that he was homosexual, had left a relationship the day before, had recently quit his job and had moved in with his business partner in an "artistic collaboration". She also told Dr. Ross that Joseph felt he was being used, that he was in a "conceptual art project" that she believed his relationship might be intimate, and that he thought his movements were being monitored. She said he was now staying with his parents in Victoria. She told Dr. Ross that Joseph had a history of drug use, and the drugs he used were ketamine and ecstasy and that he had last used those drugs a few days earlier. She told Dr. Ross that Joseph had said he had normal sleep and appetite. [252] Ms. Hooff and Dr. Ross

discussed the "oddities" of his speech and whether these were delusions. Ms. Hooff said she did not think they were delusions and Joseph's most significant problem was drug abuse. She told Dr. Ross he did not want to see a psychiatrist. Dr. Ross did her own assessment and did not think Joseph was delusional, psychotic, suicidal, or homicidal and decided to refer him to USTAT. [253] Mr. Janiec concluded that Ms. Hooff conducted an appropriate intake assessment and documented the encounter accordingly. He commented that Ms. Hooff was an experienced nurse and had been working at her present position for several years. He said that she did a mental status exam that included an exploration of his unusual ideas; she explored his drug use, and she did a suicide assessment. She suggested appropriate resources and then documented her care in a full and coherent manner. In Mr. Janiec's opinion her conduct reflected the standard of care appropriate for a licensed psychiatric nurse. [254] Mr. Janiec also noted that it is common practice to complete the initial clinical profile after the patient was discharged and there was nothing unusual about how she documented her record. It appeared from the material that Joseph was cooperative with Ms. Hooff and appeared to speak openly to her. She was unable to detect any psychotic symptoms or attempts at coercion. [255] Mr. Janiec said that

delusional ideas are difficult to conceal during a mental status exam unless the patient is unwilling to discuss them. Joseph discussed his ideas openly and had a rational explanation for his more unusual thoughts. Mr. Janiec said that Ms. Hooff's findings were consistent with the conclusion of Dr. Ross. [256] It is Mr. Janiec's opinion that Ms. Hooff's actions were consistent with good practise standards and professional judgment. She used the information to identify symptoms and planned appropriate interventions. He did not believe she made a formal diagnosis which is the role of the physician. She gave an opinion on what she thought his care needs were and she appropriately identified that he needed support as to drug use that was affecting his life. He had the right to refuse treatment. [257] Mr. Janiec also said that in his opinion the concerns of Joseph's family did not warrant certification under the Mental Health Act. There was no information that Joseph harboured any ideas of self-harm. Mr. Janiec also said there were protective factors: he assumed Joseph or his family was given a crisis line to call as Ms. Hooff said she did (although Carol denied that) and his family was there to support him. She could not compel him to see a psychiatrist against his wishes, as that would be counter therapeutic and not in keeping with her standard of practice to respect his autonomy.

Mr. Janiec said: there are people who live on the streets and make life style choices that can lead to poor outcomes but the mental health laws do not have the power to force these people to live by our values. Without indication of self-harm there was no reason to recommend certification under the Mental Health Act. [258] Mr. Janiec was not clear as to whether the discovery of the manipulated urine sample occurred before or after discharge. However, in Mr. Janiec's view a urine sample is essentially a doctor's order and the decision to discharge before it was available rested with the treating physician. [259] That the family told Nurse Hooff that Mr. Briante had rehearsed what to say was not significant in Mr. Janiec's opinion. He said that in his experience, families have expressed similar concerns as a means of venting their dissatisfaction with a system that is unable to force someone to get psychiatric help against their will. [260] Mr. Janiec said that in his opinion, the unpredictable nature of mentally ill patients poses a significant challenge to those who have the responsibility to provide care and it was his opinion that Ms. Hooff's assessment and recommendations respecting Joseph were within the standard of care of a psychiatric nurse in British Columbia. Were the Defendants Negligent? [261] There was no suggestion that the defendants did not owe a duty of care to

Joseph when he attended at the hospital on October 29, 2007, and I need not say more on that issue. The claim against Jean-Marc Priest, the triage nurse was not pursued at trial. Standard of Care [262] Josephs' experts were unanimous: Joseph's presentation and symptoms at the time he attended PES should have triggered a call for a psychiatric consult. Certainly, hindsight tells us that Joseph should not have been discharged without an assessment by a specialist. However, that alone does not support a finding of negligence. As stated in Ganger (Guardian ad litem of) v. St. Paul's Hospital, [1997] B.C.J. No. 1454 (C.A.), " it is important to distinguish an error in judgment from breach of a duty of care" (para. 157), as doctors and other medical practitioners cannot be expected to be "right all the time. The standard of care is not perfection" (para. 159). [263] The question is, was Joseph's discharge simply an error in judgment -- and therefore not negligent -- or was it a breach of the defendants' duty of care? In order to answer this question, I must determine the standard of care that applies to a specialized psychiatric emergency service, and compare it to the treatment Joseph received. [264] The traditional standard of care for a physician is simply stated: the doctor is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent

practitioner of the same experience and standing. If they hold themselves out as a specialist, a higher degree of skill is required: Crits v. Sylvester, [1956] O.R. 132 at 143 (C.A.). That standard applies equally to other medical professionals; a psychiatric nurse must meet the standard of care expected of a normal, prudent psychiatric nurse, and so on. [265] Within the doctor's overall duty to the patient there are a number of specific duties, each with its attendant standard of care. These include the duty to assess; the duty to diagnose; the duty to communicate (with other treating medical practitioners); and the duty to refer. [266] The standard of care in an assessment requires that the physician obtain a thorough history and avail him or herself of all available and useful equipment, facilities, tests and information. A thorough history requires that the doctor canvass all readily available collateral information. [267] The importance of collateral information in making a diagnosis and determining a course of treatment cannot be understated. In Wade v. Sisters of Saint Joseph of the Diocese of London, [1978] O.J. No. 413 (S.C. H.Ct.J.), Mr. Wade attended the emergency department complaining of a severe and sudden headache, accompanied by nausea, dizziness, numbness, and photophobia. The defendant doctor diagnosed him with a migrainous headache following a short

examination. Mr. Wade died two weeks later of the subarachnoid haemorrhage that had in fact caused his earlier headache. If it had been caught at that stage his chances of survival would have been greatly increased. The doctor noted that Mr. Wade's symptoms required "more care and additional information in the taking of his history" along with further testing or referral to the on-call neurologist. The judge held "It was not sufficient to simply discharge the patient armed with some pain-killing medication ". [268] The doctor on cross-examination had agreed that a patient's history was an important factor in diagnosis, but he had failed to obtain a fulsome history, either from Mr. Wade or from his wife, who had brought him to the hospital and had repeatedly indicated to the doctor that she was worried, as she had never seen Mr. Wade with symptoms of this sort. (While the defendant had concluded that Mr. Wade had a history of migrainous headaches; there was no evidence of such a history in his medical records and his wife indicated that he did not suffer from migraines.) The court concluded that, while an erroneous diagnosis alone does not determine liability, the physician must "avail himself of the scientific means and facilities open to him for the collection of the best factual data upon which to arrive at his diagnosis," and must accurately obtain a patient's history before

a misdiagnosis can be taken to be simply an error in judgment. [269] In Borglund v. Fraser Valley Health Region, 2006 BCSC 1338, the court found that the defendant doctors fell below the standard of care of reasonable emergency room doctors in "failing to ask questions necessary to rule out a serious underlying cause when Joseph was capable of providing informative responses". Similarly, in Hewlett v. Henderson, 2006 BCSC 300, the court found the defendant liable in part because he "failed to use all available sources of information including the ambulance crew report and a more probing discussion of Joseph's history and symptoms with Joseph and his wife" (para. 75). [270] Collateral information assumes a particularly important role in the assessment and diagnosis of patients who present with psychiatric concerns. In his opinion, Dr. Gillespie emphasized that collateral information is often necessary for accurate diagnosis in cases where the patient may attempt to present as "okay" in order to avoid hospitalization. Dr. Feinstadt, too, gave the opinion that collateral information is essential in circumstances where the patient presents with limited insight. [271] The doctor also has a duty to diagnose, using the information obtained in the assessment; in doing so, the doctor should produce a differential diagnosis. As explained in Matthews Estate v. Hamilton Civic Hospitals

(Hamilton General Division), [2008] O.J. No. 3972 (Sup. Ct. J.), the process of making a differential diagnosis "requires a specific consideration of the severity of the outcome of the possible diagnoses and giving priority to the diagnosis with the most severe outcome" (para. 124); see also Adair Estate v. Hamilton Health Sciences Corp., [2005] O.J. No. 2180 (Sup. Ct. J.), endorsing this "worst first" approach to differential diagnosis: Scott v. Mohan, [1993] A.J. No. 592 (Q.B.); Zazelenchuk v. Kumleben, 2007 ABQB 650 at para. 145; and Paniccia Estate v. Toal, 2011 ABQB 326. [272] Where the patient is seen by a treatment team -- nurses, doctors, or other medical practitioners, all working together -- there is also a duty on each person in the team to communicate diligently with the other medical professionals. The treatment team must take care in comparing notes and make certain that things do not slip through the cracks; elements of treatment or assessment should not be overlooked because each member of the team thinks the other has completed the task. [273] Finally, a medical practitioner has a duty to refer or consult with a specialist whenever a reasonably prudent physician would consider it necessary in the circumstances. In particular, a referral should be made, or a consultation sought, whenever the doctor approaches the bounds of their own competence or professional

experience. In Lurtz v. Duschesne, [2003] O.J. No. 1540 (Sup. Ct. J.), the court commented that referral "is indeed almost mandatory for a doctor with little knowledge in a particular area, and who has made a differential diagnosis [related to that area], to seek the opinions of specialist(s)" (para. 154). [274] The standard of care at PES must take into account the fact that it exists as a specialized service, meant to provide a centralized intake for patients presenting with emergency psychiatric or addiction issues. In holding itself out as a specialized service, PES must meet an elevated standard of care. Patients who attend at PES have the right to expect it to operate in a manner designed to alleviate the particular difficulties associated with psychiatric treatment. [275] All of the experts are in agreement that the diagnosis and treatment of psychiatric patients is a particularly difficult task, and requires a specialized approach. For example, because there are generally few physical symptoms or objective tests available to help with the diagnosis of psychiatric disorders, the physician must instead rely on self-reporting from the patient. Clearly, however, a patient who is suffering from a psychiatric disorder can be an unreliable reporter. As a result, any available collateral information should be considered. Further, diagnosis and treatment generally requires a

specialized practitioner, as patients will often present with symptoms or issues beyond the experience or skill of a general or emergency room practitioner. [276] Taking all this into account, I am satisfied that the standard of care for a specialized psychiatric emergency service requires that the treatment team take the following steps. [277] First, the treatment team -- psychiatric nurse and emergency room doctor, in this case -- must obtain a thorough patient history, with specific reference to all available sources of collateral information. Where the patient attends with family members, friends, or other persons who may have relevant information about the patient's mental state and presentation, it should be routine practice to interview each of those persons to determine the source of their concerns. [278] A question arose in this case as to who was responsible for obtaining that collateral information, as Dr. Ross indicated that she always relies on the psychiatric nurse to provide her with such information. A number of the experts (including Dr. Wanger, Dr. Remick, and Dr. Ward) indicated that the use of psychiatric nurses to perform the primary assessment and gather collateral information is common in emergency rooms across British Columbia. Dr. Ward, for example, indicated that this practice provides "better care" to patients as the nurse has more time to spend with

the patient and the nurse has more specific psychiatric training than the emergency room physicians. [279] While I accept that, theoretically, this model could provide better care for patients, it can only do so where the information gathered by the nurse and the conclusions the nurse draws from that information are fully communicated to the doctor, and the doctor considers those factors in his or her assessment and diagnosis. In this case a review of the file indicates that the collateral information that Ms. Hooff gathered was not sufficiently detailed nor was it sufficiently discussed with Dr. Ross. Certainly, Dr. Ross was not aware of the details of the parents' concerns. In her testimony she indicated that if she had known that information she would likely have called for a psychiatric consult. [280] No doubt, as Drs. Wanger, Remick and Ward all stated, the model used in PES where the initial consultation with a patient is conducted by the psychiatric nurse is more cost effective and places a lower burden upon the emergency room physician. However, the practical application of the model has evolved in PES to a system where the psychiatric nurse conducts a nursing diagnosis that is then communicated to the physician. While the physician conducts her own independent assessment, the information she has received from the nurse to a large degree establishes the parameters of

the assessment. As well, if this case is an example, by concentrating her attention on a nursing diagnosis the psychiatric nurse is distracted from the task of gathering, documenting and communicating all of the relevant and available background information about the patient. [281] I am satisfied that Ms. Hooff failed to meet the standard of a reasonably competent psychiatric nurse in several ways. She not only failed to solicit available collateral information from family members that she knew were present at PES and who were keen to provide information to her. Information was available from Carol and James as well as Christina Hovey. Carol was frustrated by what she felt was a simple reluctance on the part of Ms. Hooff to listen to her concerns about Joseph's behaviour. When Ms. Hoof met with Joseph she very quickly reached the conclusion based on what he told her, that he had a history of drug abuse and that he had used drugs a few days before October 29, 2007. [282] Ms. Hooff was aware that Joseph was, or had been a practising lawyer and that he had left the profession relatively recently. She concluded that his departure from the legal profession was a significant factor in the anxiety he was feeling even though it occurred months earlier. In addition, she appears to have concluded that the relationship Joseph had with Rod Quin was likely an intimate relationship. Yet

there is no evidence of any kind to support that conclusion, not in her notes of his conversation or in anything she was told. No doubt, the recent collapse of an intimate relationship is something that may well result in mental health issues, but there is no indication of what, if any, evidence Ms. Hooff had in support of her conclusion. [283] Ms. Hooff knew that the standard practice of obtaining a urine sample had been followed and that Joseph had taken the sample vial he was given to the washroom and returned it full of liquid. It was sent to the lab for analysis and she was at some point advised that it was water. Yet she did nothing. She did not notify Dr. Ross or make any effort to contact Joseph or his parents. I accept that it is possible Joseph had left the hospital by the time the analysis was drawn to her attention but at least Dr. Ross should have been promptly advised. [284] I conclude that Ms. Hooff failed to meet the required standard of care of a psychiatric nurse practising in British Columbia with respect to the care she provided to Joseph. [285] Turning now to the actions of Dr. Ross, I conclude that there is an onus on the emergency room physician, as the person ultimately responsible for the patient, to ascertain that a complete collateral history is available for the purposes of assessment. This duty may initially be met by a thorough discussion with the

psychiatric nurse. However, if the assessment seems incomplete or unclear in some way, the onus is on the physician to obtain a direct collateral history. Where clarification is necessary, the doctor cannot rely on another practitioner's information, but must make further inquiries in order to attempt to rule out more dangerous diagnoses. [286] Having reviewed the information received from the psychiatric nurse the physician should carry out a differential diagnosis for the patient, highlighting any areas of concern. Best practices would have both parties record these in the chart at the time of assessment, rather than after discharge. [287] The PES process requires a collaborative assessment. Both the psychiatric nurse and the emergency room physician must ensure that they communicate all pertinent information and work together to obtain a thorough assessment. The nurse should share all relevant information obtained during the assessment, including any nursing diagnosis; the doctor must take all this into account in making her or his own assessment. In particular, the physician should consider whether there is some discrepancy between the information obtained in her assessment and the nurse's assessment, or between their conclusions. [288] The emergency room physician must call for a psychiatric consult in all cases where the patient is possibly experiencing emergent psychotic

or delusional symptoms. A consult should also be sought in cases where the psychiatric nurse and emergency physician have some discrepancy in their assessments or remain uncertain as to the explanation for concerning elements of the patient's presentation. These are each warning flags that raise the possibility of serious mental illness, warranting assessment by a specialist. [289] Due to the particular difficulties associated with psychiatric diagnosis and treatment, the emergency room physician should err on the side of calling for a consult. In Bergen Estate v. Sturgeon General Hospital District No. 100 (1984), 52 A.R. 161 (Q.B.), a case involving a failure to diagnose appendicitis, the court commented that there would be "no criticism levied for, in essence, being on the safe side" (para. 10). I think that reasoning applies with equal strength in the context of PES. There can be no criticism where the emergency room physician errs on the safe side in uncertain cases and calls for a psychiatric consult. [290] In this case, Dr. Ross was familiar with Ms. Hooff and believed her to be reliable. The model of practice at PES is set up so that much of the groundwork is delegated to the psychiatric nurse and staff who work in the PES unit. Once the psychiatric nurse concludes the patient is ready to see the physician that fact is communicated to the emergency department where the

physician is engaged in normal emergency room duties. She has very little information available to her before her consultation with the psychiatric nurse. [291] During her initial contact with the psychiatric nurse, most of the information is communicated orally, as the clinical profile is prepared after the physician has completed her consultation and left the area to return to the emergency room. The physician assumes that all of the available information has been gathered and communicated to her. She then conducts her own assessment. [292] That assessment is influenced by the information given to her by the psychiatric nurse. In this case, Dr. Ross was told that Joseph was a lawyer with a history of drug use as well as recent use. She knew he did not want the fact of his drug use to be shared with his parents who were present. She knew he had left his profession and was looking for a change of career. She was told that he had left a relationship that Ms. Hooff had concluded was probably an intimate relationship. She knew that he had told the triage nurse that " he has been through a difficult relationship and wanted to speak with someone because he feels like he is having a nervous breakdown." No information was given to her about his fear of being sacrificed on Hallowe'en, or that he feared being killed. No detailed information was given to her about the behaviour that

caused him to attend the hospital. [293] Was it reasonable for Dr. Ross to rely on only the information given to her by Ms. Hooff? The defence experts who are all familiar with the PES model say that it was. They say that the PES model creates a team effort whereby each of the members of the team has a particular, and limited, role. Dr. Ross' role was to interview and assess the patient and decide whether a psychiatric consult should be arranged on an emergent basis. She knew there was an on-call psychiatrist available and that if requested he would attend. [294] In my view, Dr. Ross followed the model that was in place. She interviewed Joseph and assessed his condition. She found him to be intelligent, articulate, well groomed and dressed and responsive to her questions. He confirmed much of the information that Ms. Hooff had provided and Dr. Ross saw nothing that she felt warranted an emergency consult with a psychiatrist. She was unaware of critical information known to the members of Joseph's family that would have most likely caused her to request a consult from the on-call psychiatric specialist. [295] Looked at in that light, it is clear that Dr. Ross followed a routine that she had no doubt followed on many prior occasions. She relied on Ms. Hooff to provide her with the information she needed. She assumed, from past experience dealing with Ms. Hooff that she would do

so. [296] The PES model in place puts emphasis on efficiency, particularly cost efficiency in processing patients. The model maximizes the time the emergency room physician has for her normal duties, but in many ways minimizes the time for investigation, analysis and assessment of a patient. While I find it difficult to fault Dr. Ross for doing what was expected of her by the administration of the hospital she worked in, her obligation was broader than the PES model. [297] As I have already commented, a significant danger of the PES model in place at the Royal Jubilee Hospital is that the role of the psychiatric nurse might evolve to a diagnostic role, with the emergency physician deciding whether she concurred or disagreed with the conclusion of the nurse. The role of the physician is not so limited. [298] In this case, I find that Dr. Ross breached the duties described above. First, as to the assessment, it is clear from the evidence that neither the psychiatric nurse nor the emergency room physician had obtained a sufficiently thorough patient history at the time of the decision to discharge. Information available from Joseph's family would have clarified the concerns that arose from his presentation and likely made clear that he was experiencing delusional symptoms. [299] There was some indication in the testimony of the personal defendants that they do not put much time

into or weight on the collection of collateral information. Ms. Hooff initially said that a social worker had interviewed the family, although she later admitted that the chart notes indicated that she herself had likely done so and no social worker was involved with Joseph on October 29, 2007. I also note that while Ms. Hooff told Joseph that information he was giving her was confidential -- and that she would not share it with his family -- she would not have needed to breach his confidentiality in order to obtain collateral information. Her role was to gather information from the family not provide information to them. It appears she did neither. [300] She did not need to tell his family what Joseph had said, but instead discuss their own observations and concerns in the period prior to his entry to the emergency room. It should have been obvious by their presence that they had at least some information to offer. [301] Dr. Ross was clear that she relies on the psychiatric nurse to provide her with any relevant information and does not seek out collateral information herself. Yet, she indicated that had she been made fully aware of the parents' concerns, she would likely have called for a psychiatric consult. Dr. Ross should have sought out additional information from the collateral sources she knew were readily available in order to better address the concerns arising from

Joseph's presentation. [302] It must have been clear to her that Joseph's parents were concerned enough to bring him to the hospital. Her assessment of Joseph did not support the level of concern the members of Joseph's family obviously felt. Ms. Hooff's suggestion to Dr. Ross that Joseph's problems were at least in part related to his drug use should have caused her to inquire as to the results of the testing of his urine sample. If the results were not available she should have waited for them. [303] I also accept Joseph's submission that the defendants breached the duty to communicate diligently. In addition to the failure to adequately communicate about the collateral history, it appears that Ms. Hooff and Dr. Ross did not adequately discuss the discrepancy between their respective assessments of Joseph. As Dr. Gillespie noted in his report, the charting in the case makes it more difficult to assess who knew what and what information was in fact available; it is not clear how much time either party spent with Joseph, how much time they spent discussing matters with each other, or even what exactly they discussed (their testimony on this point was at times conflicting). [304] It is clear, however, that Ms. Hooff had some concern about the possibility that Joseph was suffering from an emergent psychiatric condition. She made a note in the clinical profile to rule out

drug-induced psychosis and bipolar mood disorder, a note which she says was meant to alert USTAT clinicians to the possibility that he would present with those issues in the future. Whatever the purpose of the note, it indicates that she had identified psychosis as a possible concern arising from Joseph's presentation. [305] There is no indication in the record that Dr. Ross was aware of this diagnosis or the discrepancy in comparison with her diagnosis of situational disorder. Because Ms. Hooff prepared the chart after Dr. Ross had already made the decision to discharge, it is somewhat difficult to know what information Dr. Ross had. However, the communication between the psychiatric nurse and the emergency room physician was not sufficient. If Ms. Hooff had identified psychosis or bipolar disorder as possible issues arising from her assessment, Dr. Ross should have been made aware of that fact and taken it into account in her own assessment and diagnosis. [306] In addition, there is no record indicating that Dr. Ross made a differential diagnosis. In the circumstances I find that to be a breach of the duty of care. There were symptoms, including the expression of possible delusions and a rapid decline in functioning of a well-educated young man, that should have lead a reasonable and prudent physician to include delusional disorder or psychosis in the differential diagnosis.

If Dr. Ross did identify these as concerns, she appears to have ruled out the most serious diagnostic possibilities without further investigation and without recording the basis for doing so. [307] In the circumstances, I also find that a reasonably prudent physician would have found it necessary to call for a psychiatric consult. Even where it appears that there may be other explanations for the patient's symptoms, an emergency room physician does not have the necessary experience to rule out a significant psychiatric issue based simply on intuition or on the patient's own presentation. Nor does an emergency room physician have the expertise to safely discharge a patient who may be suffering from delusions or psychosis for out-patient treatment. Dr. Oster, Dr. Feinstadt, and Dr. Gillespie all agreed that it was not reasonable to discharge a patient who had expressed delusional thoughts without, at the very least, calling for a psychiatric consult. More extensive observation and evaluation were necessary prior to making any decision on diagnosis or discharge. [308] I conclude that the defendants breached the standard of care applicable to treatment providers operating in a specialized psychiatric emergency service. As I have found Ms. Hooff liable in negligence, it follows that her employer, the defendant VIHA is vicariously liable. I turn now to the issue of apportionment of

fault. Apportionment [309] Pursuant to section 4(1) and 4(2) of the Negligence Act, RSBC 1996 C. 333, where 2 or more persons are found at fault, the court must determine the degree to which they are found at fault. In Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505 the court set how apportionment should be analyzed at paras. 45 and 46: 45 In my view, the test to be applied here is that expressed by Lambert, J.A. in Cempel, supra, and the court's task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each. 46 Fault or blameworthiness evaluates the parties' conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care. Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm. [310] In Cempel v. Harrison Hot Springs Hotel Ltd., [1997] B.C.J. No. 2853 (BCCA) Lambert J.A. said: The Negligence Act requires that the apportionment must be made on the basis of "the degree to which each person was at fault". It does not say that the apportionment should be on the basis of

the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, "fault" means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances. [311] The fault or blameworthiness of Ms. Hooff lies in her failure to obtain critical information about Joseph's condition that was available to her. I find that she was aware that the members of Joseph's family wanted to provide more information to her and she did not listen to them. She reached a conclusion that Joseph's situation arose to a significant degree from drug use and his living situation. She concluded that he did not want his parents to be aware of his drug use and that he was also concerned for professional reasons. In reaching that conclusion she failed in her duty. [312] Dr. Ross' fault or blameworthiness is that she was presented with a patient who to all appearances was well organized as to thought and showed no sign of delusion or psychosis. Nevertheless, she knew that he had been brought to the hospital by members of his family who were highly concerned about his behaviour. While she was entitled to rely on the information Ms. Hooff provided, I find that the inconsistencies in what she saw of

Joseph's condition and what must have been the concerns of his parents, obliged her to do more than simply accept Ms. Hooff's conclusions. Had she inquired about the results of the urine sample and learned that it was water, she no doubt would have made further inquiries. The inconsistencies facing her should have caused her to make inquiries of Joseph's parents or at least question Ms. Hooff about her concerns in an effort to obtain more information. She did neither. [313] Clearly, the ultimate responsibility for assessment and treatment of Joseph lies with the physician. However, given the PES model I find that it was the job of the RPN to collect all collateral information and provide it to the emergency room physician. Ms. Hooff failed to properly carry out that task. Had she done so critical information about Joseph's history would have been obtained from his family and Dr. Ross would have been aware of that information. Dr. Ross' should have made her own inquiries but primarily the fault lies with Ms. Hooff. I find that had Dr. Ross known the detail of Joseph's history, she would have made a referral to the on-call psychiatrist that evening. [314] I apportion the degree of fault 80% to Ms. Hooff and 20% to Dr. Ross. Contributory Negligence [315] Counsel for Dr. Ross made a submission that Joseph should perhaps bear some of the fault. Obviously all of the harm was

self-inflicted in the sense that he harmed himself. The thrust of the submission on contributory negligence, however, is that if Joseph used illicit drugs over a period of several years with knowledge of the potential harm, then he should bear some of the fault. While it can perhaps be said there was some awareness that the use of drugs had the potential for harm, the evidence in this case does not support a finding of contributory negligence. Causation [316] Given my finding that Ms. Hooff and Dr. Ross failed to meet the required standard of care in completing their respective assessments of Joseph, the next issue is whether their negligence was actually the cause of the harm that Joseph inflicted upon himself. Joseph, having proven the existence of a duty of care and a breach of that duty by the defendants, must also prove the negligence caused the harm. The defendants argue Joseph has failed to do so. [317] The law is clear that proof a defendant is negligent is not sufficient to make the defendant liable for the loss incurred. Joseph must prove on a balance of probabilities that the defendant caused the injury. Athey v. Leonati, [1996] 3 S.C.R. 458; Clement v. Clement, 2012 SCC 32 at para.

6. Causation is a factual inquiry and is assessed using the "but for" test; that is, Joseph must establish that but for the defendant's negligence the injury to Joseph would not have occurred. Ediger v. Johnston, 2013 SCC 18 at para. 28; Clement at paras. 8 and 13; Resurface Corp. v. Hanke, 2007 SCC 7. [318] In Clements the court summarized the current state of the law on causation in this way at para. 46: [46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada: (1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for" the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant's negligence caused her loss. Scientific proof of causation is not required. (2) Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury,

because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [319] Joseph submits that but for the negligent assessments conducted by Ms. Hooff and Dr. Ross, they would have concluded by way of a properly conducted differential diagnosis that he was experiencing a "first break" psychosis. He submits that the evidence establishes that such a diagnosis should result in a consultation with a psychiatrist and very likely an admission to hospital. Joseph submits the resulting treatment would have prevented the harm. [320] A "first break" psychosis is a first episode of psychosis or a "break" with reality and it is treated as an emergency because there is no history of prior episodes to rely upon. In her evidence, Dr. Ross agreed that a "first break" psychosis is of greater concern than an episode of chronic psychosis because there is no prior knowledge of how such an episode will affect the patient. As a result, in Dr. Ross' view, such a patient should see a psychiatrist on an emergent basis. Had she diagnosed Joseph as experiencing a first break psychosis, she would have wanted him to see a psychiatrist the same night. [321] Joseph acknowledges that it cannot be known with any certainty what would have happened if he had seen a psychiatrist on October 29, 2007. However, he submits

that a psychiatric consultation that night would have resulted in the on-call psychiatrist recognizing his symptoms as a "first break" psychosis and, coupled with the observations of the family about his persecutory delusions and erratic emotions Joseph would have been admitted to hospital that same night rather than being discharged. [322] The opinion evidence of Drs. Gillespie and Barale support Joseph's submission. In his report of December 7, 2012, Dr. Gillespie noted that Joseph was experiencing a psychosis with "paranoid persecutory delusional ideas present." He went on to state that: It is not safe to treat an individual experiencing a first episode of psychosis who is in this amount of stress (especially with paranoid features) outside the hospital. Inpatient observation and psychiatric consultation are indicated before further decisions about level of treatment and discharge are made." [323] Dr. Barale's opinion is similar. In his report of February 25, 2013, he said that Joseph should have been admitted for further assessment. He said there was sufficient information available from Joseph and his parents to make at least a provisional diagnosis of psychosis and said that had Joseph been assessed by a psychiatrist that evening there was little doubt that he would have at least been prescribed antipsychotic medication or have been admitted for further assessment and

treatment. Dr. Barale said that when a patient presents with a first episode of psychosis their symptoms are "inherently unstable and liable to rapid and unpredictable changes." [324] Dr. Barale believes that Joseph would likely have been admitted to hospital on an involuntary basis and he said that an admission on that basis would have been justified because of the distressed state he was in and that the deterioration of his mental health had been rapid and that all psychotic states create a potential danger of harm to himself or others until it has been otherwise demonstrated. This is so, in Dr. Barale's opinion, whether or not his distress resulted from substance abuse. [325] Another factor emphasized was the presence of Joseph's parents, his sister and her husband in his life. The evidence is clear that they are supportive and were concerned about him. It was their concern that resulted in Joseph being at the hospital on October 29, 2007. Joseph argues that even if Joseph had been discharged after consulting with the on-call psychiatrist, the PES policy manual calls for family involvement in the assessment, diagnosis and treatment. Had Joseph's parents been given proper information about his condition, it was submitted that they would have been able to monitor his situation and react promptly to any change. They also would have been able to oversee the administration of any

prescribed medication. [326] Joseph says that had a proper diagnosis been made of his situation, he could have received treatment to reduce or eliminate the risk of self-harm. The treatment options were a voluntary or involuntary admission to hospital, observation by qualified specialists, even physical restraint if necessary, and suitable anti-psychotic medication. There would also have been an opportunity to engage the other members of Joseph's family in his care. [327] Joseph also relies on Ediger v. Johnston, 2013 SCC 18. In that case an obstetrician was found negligent in attempting a forceps delivery without first ensuring that a surgical option was immediately available if required. The trial judge applied the "but for" test and found that while she could not be certain the negligence of the obstetrician caused the harm, the only reasonable inference to be drawn from the evidence was that it did. Thus, the plaintiff had satisfied the burden of proof that the negligence of the obstetrician caused the resulting brain damage. The Court of Appeal reversed on the ground the finding of causation was not supported by the evidence. [328] At the Supreme Court of Canada, the Court restored the trial judge's decision and held that it was not necessary for causation to be proved to a level of scientific certainty; " the trier of fact may, upon weighing the evidence, draw an

inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff's theory of causation." In that case, there was clear evidence to support the plaintiff's theory that the harm was caused by the obstetrician's negligence. At para. 41 the court said: [41] As we have described, the trial judge found that Dr. Johnston failed to meet the standard of care applicable to mid-level forceps procedures because he failed to arrange for surgical back-up that would be immediately available to deliver Cassidy by C-section upon the onset of bradycardia. Dr. Johnston does not dispute that he breached the standard of care. He argues that the trial judge erred in finding causation because Cassidy failed to show that her injury would have been avoided if he had satisfied the standard of care. As we explain below, the trial judge did not err. She found that the standard of care required Dr. Johnston to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the severe damage to the baby that results when bradycardia persists. The evidence shows that Dr. Johnston did not take such precautions and, in our view, the trial judge made no error in finding that Dr. Johnston's failure to have back-up immediately available caused Cassidy's injury. [329] Joseph's submission on causation is that had he been

referred to the on-call psychiatrist on October 29, 2007, rather than discharged, he would not have attempted suicide. That submission assumes, largely on the opinions of Drs. Gillespie and Barale, that the on-call psychiatrist would have admitted him to hospital either voluntarily or involuntarily pursuant to s. 22 of the Mental Health Act or that the combined result of counselling and medication would have been effective even if he had been discharged. That submission also places reliance on the opinions given by Drs. Oster and Feinstadt on the issue of the standard of care. [330] Dr. Ross provided the expert report of Dr. Pawliuk on the issue of causation. Dr. Pawliuk was the on-call psychiatrist who would have seen Joseph on October 29, 2007 had Dr. Ross referred him. [331] Dr. Pawliuk made several factual assumptions. He assumed that he would have had Ms. Hooff's computer generated clinical assessment available, something Dr. Ross did not have. He assumed that he would also have been aware that Joseph had substituted water in place of the urine sample he was asked to provide. He assumed that he would have known what Joseph's parents had observed his emotions to be labile and that Joseph believed that his movements were monitored and controlled and he had expressed to his parents the fear that his employer Rod Quin was going to kill him. Finally, he assumed that Ms. Hooff

did not consider Joseph to be delusional or psychotic and that he would have presented to Dr. Pawliuk in much the same way that he did to Ms. Hooff and Dr. Ross. He was aware that Joseph had been referred to USTAT. [332] In response to the opinion of Dr. Barale that Dr. Pawliuk would have admitted Joseph to hospital even though he did not want to be admitted Dr. Pawliuk said: If I had been consulted on the evening of October 29, 2007 it is likely I would not have admitted Mr. Briante to hospital. After I completed my assessment, I would have decided whether Mr. Briante had the capacity to consent to and to refuse treatment. I believe I would have concluded that he had this capacity. [333] Dr. Pawliuk went on to say that he would have discussed with Joseph the advantages of an admission to hospital in that it would allow further assessment and an earlier commencement of treatment. He said he would have considered whether he could admit Joseph on an involuntary basis had he refused to be admitted and Dr. Pawliuk believes he would not have been able to do so. He would have discussed with Joseph the proposed referral to USTAT and advised him to return to hospital if his symptoms worsened. [334] Dr. Pawliuk said that he would have discussed starting Joseph on antipsychotic medication and encouraged him to take the medication as prescribed, although he was not confident he would

actually take it. His opinion is based on studies that estimate as many as 75% of individuals with mental health problems do not take their medication as prescribed and he said that non-adherence to a program of medication is common among patients with a history of substance abuse. [335] There is some support for Dr. Pawliuk's assumption that Joseph would not agree to be admitted to hospital. His comments to his parents and sister on the drive to the hospital clearly indicate that he did not want to stay in hospital nor did he want to take any medication. His comments were sufficient to cause Carol Briante to make a comment suggesting that he would take street drugs but not drugs prescribed by a doctor to help him. There is also evidence that he said he would attempt to convince the clinicians who saw him to believe that he was well. Dr. Barale agreed that it was likely Joseph would have to be admitted to hospital on an involuntary basis. [336] Dr. Remick gave opinion evidence on the effectiveness of antipsychotic medication. He said that such medication must be used for three to four weeks and perhaps longer before it can be determined if it is effective or ineffective. As noted above, Dr. Remick has conducted research and written articles in the professional journals on the effectiveness of anti-psychotic medication. [337] Thus, for Joseph's submission on causation to

succeed, it must be proven that Dr. Pawliuk as the on-call psychiatrist would have either admitted Joseph to hospital as an involuntary admission, something he did not think he could do on the facts as he believed them to be, or, persuade Joseph to stay in hospital on a voluntary basis, something he did not think Joseph would likely do. Alternatively, he would have to convince Joseph to start on a program of antipsychotic drugs; again something Joseph told his parents he did not want to do, and to discontinue any use of illicit drugs. The medication, even if properly taken, would have to be effective sufficiently to prevent Joseph's suicide attempt six days later. [338] It is not possible to say with certainty what Dr. Pawliuk would have done had Joseph been referred to him on October 29, 2007, rather than discharged. Dr. Pawliuk was not called for cross-examination so his opinion, even though it was based on certain assumptions, was not challenged. Nevertheless, can it be said that but for Dr. Ross' failure to refer Joseph to the on-call psychiatrist, Joseph would not have attempted suicide on November 4, 2007? The mere possibility that her failure to refer him caused the harm is not enough. [339] Joseph argues that the very risk of harm that in fact occurred was the risk contemplated by Ms. Hooff and Dr. Ross when assessing if Joseph was at risk to harm himself or others. In

St-Jean v. Mercier, 2002 SCC 15, Joseph argued that because the defendant had created a risk of harm and the resulting harm was within the ambit of that risk, there should be a reversal of the burden of proof or a presumption of causation. The court commented on that submission at para. 116 where the court said: [116] The Court of Appeal appropriately said that it is insufficient to show that the defendant created a risk of harm and that the harm subsequently occurred within the ambit of the risk created. To the extent that such a notion is a separate means of proof with a less stringent standard to satisfy, Snell, supra, and definitely Laferrière, supra, should have put an end to such attempts at circumventing the traditional rules of proof on the balance of probabilities. There may be a misapprehension of what I said in Laferrière, supra, at p. 609: "In some cases, where a fault presents a clear danger and where such a danger materializes, it may be reasonable to presume a causal link, unless there is a demonstration or indication to the contrary" (emphasis added). This is merely a reiteration of the traditional approach on presumptions, and does not create another means of proof in Quebec civil law in the establishment of the causal link. The Court of Appeal correctly interpreted this passage as pertaining to presumptions within the traditional rules of causation. [340] The

same point was made by Garson J., as she then was, in Seatle v.Purvis, 2005 BCSC 1567 at para. 173 where she said: [173] The plaintiffs contend that causation can be established where, as in Levitt and Webster, the defendant's actions materially increased the risk of harm to the plaintiff, even if it is not known whether the harm was an actual result of the breach of the standard of care. They submit that Dr. Purvis' failure to call in Dr. Thomas materially increased the risk of oxygen deprivation to the infant plaintiff because Dr. Thomas may have been able to facilitate the birth faster, or perform another procedure. In Snell Sopinka J. soundly rejected the notion that proof only of the defendant's breach of the standard of care causing a material increase in risk is sufficient to prove causation: (at ¶ 26 quoted above.) [341] It is clear that causation cannot be inferred particularly where the defendants have called evidence on causation. Moore v. Castlegar & District Hospital (1998), 49 B.C.L.R. (3d) 100; Borglund v. Fraser Valley Health Region, 2006 BCSC 1338. There must be a "substantial connection" between the negligent conduct and the injury. Snell v. Farrell, above. The defendants submit that where it is impossible to know if the outcome would have been more favourable had Joseph been referred to the on-call psychiatrist on October 29, 2007, all they can say is that

the outcome for Joseph might have been better, not that it would probably have been better. (See: Seatle v. Purvis, above at para. 145). [342] A further complication in applying the "but for" test in the circumstances of this case is the nature of the harm. As was pointed out in Ganger (Guardian of) v. St. Paul's Hospital, [1997] B.C.J. 1454 (BCCA), at para 157: All who are called upon to predict human behaviour recognize the near impossibility of doing so with any confidence. If an attempt at suicide may be said to establish an error in judgment on the part of anyone charged with assessing the risk of that very event who does not anticipate it, then errors in judgment are endemic in the assessment of the risk of suicide. The evidence is clear that an error in the assessment of the risk of an attempt at suicide is as likely as not. Even the best judgment of a skilled psychiatrist will frequently be wrong. [343] Following Joseph's discharge from hospital, he returned home to his parents' residence. While his behaviour was still concerning to his parents, they waited for a call from USTAT. In the days following October 29, 2007 Joseph displayed unusual behaviour but the evidence of family members is that his behaviour did not cause them to take him back to the hospital. However, on the night of November 3, 2007, his behaviour became more bizarre and on the morning of November 4,

2007, Joseph's parents concern was at a level where they believed they should take him back to the hospital. His attempt on his own life occurred later that morning. [344] Applying the "but for" test to the difficult and tragic facts of this case, I am not able to conclude that but for the negligence of Ms. Hooff and Dr. Ross that resulted in Joseph's discharge from hospital without a consultation with the on-call psychiatrist, Joseph would not have attempted to take his own life. The best that can be said is that such a referral might have made a difference. Given the evidence of Dr. Pawliuk and notwithstanding the opinions of Drs. Gillespie and Barale, I am not able to find that had Joseph seen the on-call psychiatrist that on October 29, 2007, that he would have been admitted to hospital. [345] Further, I cannot find that a consultation with a psychiatrist before his discharge would have prevented his loss. One can speculate that it could have or might have made a difference, although not easily in light of Dr. Pawliuk's opinion. I find that it is not possible to say that it is more probable that not that a consultation with a psychiatrist on October 29, 2007, would have prevented Joseph from attempting to take his own life. In the result, I find that Joseph has failed to prove the negligence of Ms. Hooff and Dr. Ross caused Joseph's harm. On that finding the action and the related action #09 4737 must be dismissed. [346] Costs may be spoken to if necessary. "J. K. Bracken, J." The Honourable Mr. Justice Bracken