Capacity considerations in psychiatric malpractice

Medical malpractice defendants routinely seek summary judgments against self-represented plaintiffs who do not deliver expert evidence.

In cases where self-represented plaintiffs are alleging psychiatric malpractice, the summary judgment motion must be used cautiously and only after a determination of capacity has been made.

The decisions in Tipu and Whitehead came to different conclusions on this important issue.

In Tipu v. Munchi et al., 2024 ONSC 5310, the plaintiff brought a medical malpractice action against several physician and hospital defendants.  The defendants brought motions for summary judgment.

In response, the plaintiff raised the issue of his capacity and his need for legal representation.  Justice Williams stayed the plaintiff’s action and ordered him to obtain a capacity assessment.

Justice Williams found that the plaintiff was a party under a disability pursuant to Rule 7 based on the factors set out in Costantino v. Costantino, 2016 ONSC 7279, and that he required a litigation guardian.

“A finding that a party is under a disability and requires a litigation guardian is not a punishment or a sanction. Such a finding is intended to ensure that the person’s interests are protected, and that the person does not take steps in the litigation process that may cause harm,” Justice Williams explained.

Without the careful consideration of his capacity by Justice Williams, the plaintiff’s medical malpractice action faced a high risk of being tossed out by way of summary judgment.

As a result of the decision in Tipu, the Public Guardian and Trustee was appointed as the plaintiff’s litigation guardian and can now direct the proceeding and instruct counsel on his behalf.  This is important in medical malpractice actions which are laden with complex issues of fact and law, and especially in cases involving self-represented litigants without capacity.

Many psychiatric malpractice actions launched by self-represented litigants are at risk of being dismissed by way of summary judgment, often without regard to the capacity of the plaintiff.

In Whitehead v. Ontario Shores Centre for Mental Health Sciences, 2024 ONSC 2566, the self-represented plaintiff alleged negligent psychiatric care arising from involuntary admission to an inpatient psychiatric facility in 2015.  The Consent and Capacity Board of Ontario upheld his involuntary status and incapacity in 2015.

At the time of his admission, the plaintiff was diagnosed with a cognitive and psychotic disorder, and his parents were designated as substitute decision-makers for psychiatric treatment and they consented to him receiving anti-psychotic intramuscular injections.  He was eventually released from the facility on a community order.

In 2021, the plaintiff commenced a medical malpractice action against the psychiatric facility and his psychiatrist at the time.

Despite his known history of incapacity, the plaintiff’s capacity to represent himself in the medical malpractice litigation was not considered when the defendants were successful on their motion for summary judgment.

“In light of Mr. Whitehead’s approach to the litigation, in particular his intention not to adduce expert evidence, summary judgment constitutes a timely, affordable and proportionate procedure.  I also note that summary judgment has been granted in numerous medical malpractice cases where plaintiffs had failed to adduce expert evidence,” the court held.

A cornerstone of our legal system is the protection of litigants who are incapable of making necessary decisions in a proceeding. As Justice Williams clearly espoused in Tipu, a finding that a party is under a disability and requires a litigation guardian is intended to ensure that the person’s interests are protected.