B., C. v. Sawadsky

B., C. v. Sawadsky Collection Decisions of the Court of Appeal Date 2006-10-12 Docket numbers C43851 Judges Doherty, David H.; Blair, Robert Ashley; LaForme, Harry Smith Subject Civil Decision Content DATE: 20061012 DOCKET: C43851 COURT OF APPEAL FOR ONTARIO DOHERTY, BLAIR and LaFORME JJ.A. B E T W E E N : C.B. Appellant Paul Dollak, for the appellant - and - DR. BRUCE VERNON SAWADSKY and SUNNYBROOK AND WOMEN’S HEALTH SCIENCES CENTRE Respondents Barbara Walker-Renshaw, for Sunnybrook and Women’s College Health Sciences Centre Ronald Slaght, Q.C. and Rebecca Jones, for Dr. Bruce Vernon Sawadsky Daniel Guttman, for the Attorney General of Ontario, intervenor Heard: June 7, 2006 On appeal from the judgment of Justice A. Karakatsanis of the Superior Court of Justice dated June 17, 2005. LaFORME J.A.: [1] The appellant appeals from a decision of the Superior Court of Justice dismissing her civil action against the Respondents – Dr. Sawadsky and Sunnybrook Hospital. The action arose because the appellant had been detained at Sunnybrook for a psychiatric assessment under the Mental Health Act, R.S.O., 1990, c. M.7 (“MHA”). [2] While at Sunnybrook, Dr. Sawadsky[1] examined the appellant and applied for a psychiatric assessment, ordering her detention for up to 72 hours. She was assessed and released, all within four and one-half hours. There was a follow-up appointment three days later, which the appellant attended. She did not attend a further appointment. Doctors diagnosed the appellant as suffering from paranoid delusions. [3] The appellant brought an action against Dr. Sawadsky and Sunnybrook claiming the detention was unlawful and seeking damages for false imprisonment and various Charter breaches. The trial judge dismissed the action, finding that the detention was lawful since Sunnybrook and Dr Sawadsky had complied with the applicable provisions of the MHA. [4] The trial judge also dismissed the appellant’s Charter challenge to the MHA, finding that the Charter does not extend the same level of procedural protections to people brought to a hospital pursuant to the MHA as to those being criminally investigated by police. [5] The appellant also filed an amended Notice of Constitutional Question on the appeal, challenging the constitutional validity of the MHA. The Attorney General for Ontario intervenes pursuant to s. 109(5) of the Courts of Justice Act. However, the appellant abandoned this issue in oral argument. [6] For the following reasons, I conclude that this appeal must be dismissed. The trial judge was correct in holding that the appellant’s right to counsel was not violated by the provision of a written notice of her right to counsel. BACKGROUND [7] On May 22, 2003, at the request of the appellant’s daughter, a Justice of the Peace issued a Form 2 under s. 16 of the MHA. Acting under the authority of the Form 2, police officers attended at the appellant’s home in the early afternoon of May 26, 2003, took custody of the appellant and escorted her to Sunnybrook for examination by a physician. [8] The appellant was registered at emergency at around 1:30 pm. Dr. Sawadsky examined the appellant at around 4:00 pm, and at 4:30 pm, he detained her under a Form 1 for further assessment. Another doctor examined the appellant at around 5:30 or 6:00 pm and released her under s. 20(1) of the MHA. The appellant was told she was free to go but was asked to return three days later for a follow up appointment. She returned to Sunnybrook on May 29 at around 1:30 pm, and was examined. [9] The Form 1 completed by Dr. Sawadsky authorized the detention of the appellant for up to seventy-two hours. When a Form 1 is executed, the MHA requires the attending physician to provide the patient with written notice of the application for psychiatric assessment, including the reasons for the detention and the individual’s right to retain and instruct counsel without delay. It is common practice to use a Form 42 to provide that notice. [10] Dr. Sawadsky testified at trial that although he had no specific recollection of giving the appellant a Form 42, he believes that he did, based on his routine practice of doing so and his obligations to his patient. The appellant testified that she did not receive the Form 42. She also testified that she felt compelled to return for the follow up appointment on May 29. ISSUES [11] The issues raised by the appellant in this appeal amount to the following two assertions: 1. The trial judge erred in finding that the detention of the appellant was not unlawful; and 2. Dr. Sawadsky and Sunnybrook violated several of the appellant’s Charter rights, namely ss. 7, 8, 9 and 10(a), (b) and (c). ANALYSIS [12] Where, as in this case, the examining physician concludes that a psychiatric assessment is warranted, s. 38.1 of the MHA requires that written notice of the right to counsel be given to the patient: 38.1(1) The attending physician of a person who is the subject of an application for assessment under section 15…shall promptly give the person a written notice of the application or order. (2) The notice shall state the reasons for the detention and shall indicate that the person has the right to retain and instruct counsel without delay. [13] As already noted, the common practice is to use a Form 42 to provide that notice. A Form 42 is a two-page document that includes the sentence: “You have the right to retain and instruct a lawyer without delay”. (i) Unlawful Detention [14] The trial judge concluded that the appellant’s detention on May 26, 2004, under the MHA was lawful. The appellant argued that the trial judge erred in doing so. In support of her conclusion she made the following findings of fact: · In the circumstances, the appellant was seen “forthwith” by Dr. Sawadsky; · The appellant was given the Form 42 required by the MHA; · The appellant was notified “promptly” of the decision to detain the appellant for psychiatric assessment; and · Upon her release on May 26, the appellant was invited to return for a further examination but was not detained beyond the initial psychiatric assessment. [15] The effect of those findings is that the respondents complied with the material parts of the MHA. Unless the trial judge made palpable and overriding errors in arriving at those findings, the appellant’s argument that the detention was unlawful must fail. She did not, and I can find no basis upon which to interfere with the findings of fact made by the trial judge. [16] The evidence before the trial judge was that Dr. Sawadsky saw the appellant two and one-half hours after she arrived at Sunnybrook. The events took place in a busy emergency room during the SARS crisis in Toronto. Dr. Sawadsky also testified that patients brought into the emergency room under the MHA are a priority. It was open to the trial judge to conclude, in these circumstances, that the examination took place “forthwith”, as required by s. 18 of the MHA. [17] The evidence of the appellant and Dr. Sawadsky conflicted as to whether or not the appellant was given a Form 42. The trial judge made credibility assessments and favoured the evidence of Dr. Sawadsky. She was entitled to do so and preferred the evidence of Dr. Sawadsky to that of the appellant. The trial judge accepted Dr. Sawadsky’s belief that based on his usual practice and his obligations to his patients; he gave the appellant the Form 42. Her conclusion that the appellant received the Form 42 was reasonable and supported by the evidence. [18] Upon determining that an application for an assessment was necessary, Dr. Sawadsky was required by s. 38.1 of the MHA to notify the appellant “promptly” of the detention. The evidence at trial was that Dr. Sawadsky examined the appellant by 4:00 pm and he gave her the Form 42 notifying her of the detention immediately after completing the Form 1, at about 4:30 pm. Again, the conclusion that the appellant was notified “promptly” was available to the trial judge on the evidence. [19] As to the length of the detention, I again find no basis for interfering with the trial judge’s findings. The appellant testified that she felt compelled to return for a follow up examination on May 29, 2003. However, considering the evidence in its totality, including the evidence of the nurse who arranged a taxi ride home for the appellant after the examination on May 26, the trial judge found that it was not reasonable for the appellant to have felt that she was under a compulsion to return three days later. I would not interfere with the finding that the detention did not continue beyond the initial assessment. [20] In my view, the trial judge did not err in holding that the respondents complied with the MHA. The appellant’s arguments that the detention was unlawful cannot succeed. (ii) Charter [21] The remaining grounds of appeal relate to alleged violations of ss. 7, 8, 9, and 10(a), (b) and (c) of the Charter. Given my conclusion that the appellant was not unlawfully detained under the MHA, the appellant’s arguments based on ss. 9 and 10(c) of the Charter must also fail. [22] I am unable to agree with the appellant that there was a violation of her right against unreasonable search and seizure guaranteed by s. 8 of the Charter. The questions put to the appellant by Dr. Sawadsky in his examination of her under the authority of the Form 2 did not constitute a search or seizure. There was no expectation of privacy between the appellant and the doctors, and the questioning was not unreasonable in the circumstances. [23] I agree with the trial judge that the appellant was informed promptly of the reasons for her detention. There is no basis therefore for finding a breach of s. 10(a) of the Charter. This then leaves the appellant’s contention that there was a violation of her s. 10(b) right. [24] A person’s s. 10(b) right to counsel only arises upon arrest or detention. Under the MHA scheme, and in circumstances such as those in this case, an “attending physician” is required to give the person a written notice of the order (i.e. Form 42). Once again, Form 42 requires the reasons for the detention and indicates that the person has the right to retain and instruct counsel without delay. Aside from the requirement of the attending physician to give the notice, he or she is also required to assess the person who has originally been detained by the police. [25] In her statement of claim, the appellant advanced two arguments in support of her contention that the respondents had violated her s. 10(b) Charter rights. First, that Sunnybrook and Dr. Sawadsky were obligated to advise the appellant of her right to counsel immediately upon her arrival at the hospital. And second, that the defendants did not comply with the requirement in the MHA, to advise the appellant in writing of her right to counsel immediately upon the execution of the Form 1. [26] With respect to the first argument, there does not appear to be any evidence as to what the appellant was told about her right to counsel upon her arrival at Sunnybrook. However, s. 33 of MHA makes it clear that the appellant remained in the custody of the police who took her to the hospital until she was assessed by a physician.[2] [27] The police are not a party to these proceedings. The appellant has not alleged that they did not comply with their obligations under s. 10(b), and there is no evidence as to what, if anything, the police did to advise the appellant of her right to counsel or facilitate contact with counsel. [28] It appears from the trial judge’s reasons that a submission was made that the defendants had the same s. 10(b) obligation to the appellant that police officers have to those detained in the criminal law context. For example, counsel argues that Dr. Sawadsky and Sunnybrook were obligated, like police officers, to tell the plaintiff that she had the right to access free legal advice over the telephone. [29] The trial judge concluded that the Charter requirement for criminal purposes - that police must orally inform a detainee of the right to counsel and the opportunity to access free legal advice - does not apply in the circumstances of detention pursuant to the MHA. She held that: “… the procedural protections set out in the MHA meet the Charter obligations for a detention under the MHA”. [30] While there is certainly merit to the comprehensive analysis of the trial judge on this issue, respectfully, she should not have addressed it in this case. Any issue as to the nature of any s. 10(b) right in this case as compared to that in the criminal context was not part of the pleadings and was not the subject matter of any evidence.[3] Without proper pleadings and the relevant evidence, this issue should not have been considered at trial and cannot be properly addressed on this appeal. [31] Similarly, the question of whether this appellant understood the right to counsel was likewise not raised in the pleadings or in the evidence. It is not suggested that if she received written notice, she did not read it or could not understand it. As I have previously concluded, her case on s. 10(b) stands or falls on the assertion that she did not get the written notice as required under the MHA. [32] I fully appreciate that in the context of this case there are several difficult issues lurking just below the surface in connection with this issue. All of these issues, and no doubt some others, depend upon the degree to which the mental health context requires a different configuration of the right to counsel than does the criminal law context. Nevertheless, while the different contexts will have to be considered, if and when these issues arise, they simply are not properly raised in this case. [33] I would, however, make one observation as to the nature of the obligation imposed by s. 10(b) of the Charter on those who detain persons for assessment under the MHA. Section 38.1 places an obligation on the attending physician to provide certain documentation to the patient. That documentation must include notice of the right to counsel. Insofar as s. 10(b) of the Charter may impose additional obligations to advise patients of their right to counsel and/or to facilitate contact with counsel, those obligations should not be placed on the attending physician. [34] In my view, it could do real potential harm to the doctor/patient relationship to impose a police-like obligation on the attending physician to advise his or her patient of the right to counsel and other information pertaining to the exercise of that right. Therefore, to the extent that s. 10(b) may impose additional obligations beyond s. 38.1 of the MHA, those obligations should fall on the institution and not the attending physician. DISPOSITION [35] I would dismiss the appeal. Each of Dr. Sawadsky and the Hospital are awarded their costs of the appeal in the amount of $15,000 inclusive of disbursements and GST. The Attorney General for Ontario did not seek costs of the appeal and none will be ordered. RELEASED: “OCT 12 2006” “H.S. LaForme J.A.” “DD” “I agree Doherty J.A.” “I agree R.A. Blair J.A.” [1] Dr. Sawadsky is a family practitioner who, at the relevant time, was practicing as an emergency physician at Sunnybrook. [2] Section 33 provides: A police officer or other person who takes a person in custody to a psychiatric facility shall remain at the facility and retain custody of the person until the facility takes custody of him or her in the prescribed manner. See also s. 16(3) of the MHA. [3] The Statement of Claim is limited to the immediacy of the written right to counsel prescribed by the MHA, which the appellant argues was not given and thus violated her s. 10(b) Charter rights.