On December 12, 2025, the Ontario Superior Court of Justice released its decision in Ohenhen v. Klukach, 2025 ONSC 6985, a significant ruling on the interpretation of treatment capacity and bodily autonomy under Ontario’s Health Care Consent Act, 1996 (HCCA). Lisa Leinveer of Perez Procope Leinveer LLP represented the appellant, who successfully appealed a decision of the Consent and Capacity Board (the “Board”) related to his capacity to consent to treatment.
The appeal arose after the Board upheld a psychiatrist’s finding that Julius Ohenhen was incapable of consenting to (or refusing) treatment with antipsychotic medication. Although the Board accepted that Mr. Ohenhen understood the basic information about his treatment, it concluded that he could not appreciate the reasonably foreseeable consequences of stopping the medication. Justice Akazaki overturned the Board’s decision and declared Mr. Ohenhen capable of consenting to treatment. In doing so, the Court made several important statements about patient autonomy and the proper interpretation of capacity under the HCCA.
Under section 4(1) of the HCCA, a person is capable of consenting to treatment if they can understand information relevant to making treatment decisions and are “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” The first branch concerns a patient’s ability to understand the nature, purpose, risks, benefits, and alternatives to treatment. The second branch concerns whether the patient has the ability to appreciate the possible consequences flowing from the decision.
The Court also emphasized section 4(2) of the HCCA, which provides that a person is presumed capable of making treatment decisions. Justice Akazaki noted that one of the purposes of the legislation is to enhance patient autonomy, including the right to refuse treatment, even where others may believe that decision to be unwise or foolish.
A central issue on the appeal was whether the Board improperly treated Mr. Ohenhen’s disagreement with his physician’s diagnosis as evidence of incapacity. Mr. Ohenhen believed it was unlikely that he would relapse if he gradually reduced and eventually stopped taking medication. However, he acknowledged the possibility that he could deteriorate and testified that he would return to treatment if that happened.
Justice Akazaki found that this was enough to satisfy the second branch of the capacity test. The Court stated that “The appreciation of the reasonably foreseeable consequences of treatment cessation refers to a patient’s openness to the possibility of negative outcomes, even if the patient disagrees with the physician about the likeliness of such outcomes.”
The Court further held that a patient is not incapable simply because they reject a physician’s view of their illness or treatment needs. Rather, the question is whether the patient can appreciate that adverse consequences may occur. As Justice Akazaki explained, “The principle of patient autonomy underlying the Act respects the individual’s right to hold a view that is contrary to the weight of medical opinion about diagnosis and treatment.”
The decision also contains important comments regarding the standards of review on appeals from the Consent and Capacity Board. Although the Board correctly stated the legal test for capacity, the Court found that it misapplied the legal standard in practice. Justice Akazaki held that this amounted to an extricable error of law reviewable on a correctness standard.
Another significant aspect of the ruling is the Court’s emphasis that capacity is a point-in-time determination. Justice Akazaki recognized that Mr. Ohenhen’s condition could worsen in the future, but stressed that the relevant question was whether he was presently capable while stable and medicated. The Court stated that “capacity is a point-in-time determination. He is currently capable. The Act does not serve as a prophylactic for prevention of anti-social behaviour. Its purpose is not to keep the citizens of Ontario docile or pliable.”
The Court also criticized the Board for focusing too heavily on Mr. Ohenhen’s past criminal behavior and his refusal to accept that schizophrenia caused it. Justice Akazaki found that this distracted from the proper legal inquiry into Mr. Ohenhen’s present ability to appreciate the consequences of treatment decisions while stable at the time of the hearing.
Importantly, the Court rejected the idea that non-medical motives for taking medication could establish incapacity. Mr. Ohenhen testified that he remained compliant partly because he feared police involvement and incarceration. Justice Akazaki recognized this concern as rational, noting that “the perception of a speedy track back to incarceration is not an illegitimate motive for a Black individual in Ontario society.”
This decision is a significant affirmation of bodily autonomy and the right of capable patients to make treatment decisions others may view as risky. It reinforces the principle that treatment capacity under Ontario Law turns on a patient’s present ability to understand and appreciate the possible consequences, regardless of any dispute. Essentially, if you can appreciate your life and its complexities, then it’s your right to decide how to live it.