Date: 20040922
Docket: T-2117-03
Citation: 2004 FC 1304
Ottawa, Ontario, this 22nd day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
THOMAS POWELL
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to ss. 18(1)(a) and 18.1(3)(a) and (b) of the Federal Courts Act, R.S. 1985, c. F-7 to review a decision ("Decision") of the Commissioner of the Correctional Service of Canada ("Commissioner") which prevents Mr. Powell, the incarcerated Applicant, from receiving a medical prescription for clonazepam ("Clonazepam") which he says he requires to properly treat his anxiety and panic disorders.
BACKGROUND
General
[2] The Applicant has been a federal inmate since May, 2001, and is serving a sentence of 9.5 years for a variety of offences. He is currently incarcerated in Bath Institution, a low-medium security facility in Bath, Ontario under the authority of the Commissioner.
[3] The Applicant asks this Court to compel Correctional Service of Canada ("CSC") to allow a particular sedative to be prescribed for him. He argues that CSC has a legal duty to prescribe the drug Clonazepam (or Rivotril) and that it erred in adopting policies that have prevented its doctors from doing so.
[4] The Applicant has suffered from acute anxiety and panic disorder since April 4, 1987, when he was 29 years old. At that time he experienced his first blackout. His symptoms include episodic agoraphobia, panic, anxiety, hyperventilation, insomnia, and heart palpitations. He continues to suffer from this debilitating disorder today.
[5] Between 1987 and May, 2001, the Applicant was treated by numerous medical doctors and psychiatrists for his mental illness. He claims that the preferred medication chosen by these nine or more different doctors to treat him was a class of benzodiazepines that includes Clonazepam.
[6] He says that, despite the prescription of Clonazepam for over 13 years to treat his illness, he was quickly denied this medication upon entering federal custody at Millhaven Institution in May, 2001, which he says led to a suicide attempt in July, 2001.
[7] The Applicant says that the doctors prescribed Clonazepam for his problems despite the side effects and despite the possible hazards of long term use. He says that there are individuals for whom long term use is appropriate. The Applicant says he has been told by both CSC and non-CSC doctors that he is one of those individuals for whom long term use is appropriate.
[8] The Applicant says the Decision to terminate any Clonazepam use by federal inmates was made pursuant to a rule outlined in a CSC "Formulary". This Formulary provides for a "discontinuation schedule... where the continued use of bezodiazepines is not indicated." It also dictates that clinicians should endeavour to use the lowest benzodiazepine doses that are therapeutic and treat for the briefest period of time as indicated by the patient's own clinical condition.
History of Incarceration
[9] On June 5, 2000, the Applicant committed the offences of kidnapping with a firearm, sexual assault with a weapon (firearm), forcible confinement, uttering death threats (two counts), use of a firearm while committing an offence, pointing a firearm at a person (two counts) and possession of a prohibited firearm.
[10] He was arrested on the same day that he was charged with the offences listed above and placed in custody at the Whitby Jail, a facility operated by the Province of Ontario.
[11] On June 29, 2000, he was admitted to the Forensic Assessment Unit of the Whitby Mental Health Centre so that an assessment could be made of his fitness and criminal responsibility. He was seen by Dr. Jonathan Rootenberg and a social worker, Ms. Gina Turco. Dr. Rootenberg concluded that the Applicant was fit to stand trial and was criminally responsible for the offences for which he had been charged.
[12] The Applicant was returned to the Whitby Jail on July 28, 2000. He remained there until his trial in May 2001.
[13] On May 9, 2001, the Applicant was convicted of the nine charges listed above and given a net sentence of seven years and eight months.
[14] Following his conviction, he became a federal inmate and was transferred to Millhaven Institution. He remained there until December 2001.
[15] The Applicant was transferred to Joyceville Institution in December 2001, and remained there until May 2003, when he moved to Bath Institution.
Rivotril, Clonazepam and Benzodiazepines
[16] Prior to his incarceration, the Applicant had been taking Clonazepam (Rivotril) for many years. Rivotril is the trade name for the drug known by the scientific name "Clonazepam." Clonazepam is one of a class of anxiolytic, sedative and hypnotic psychotherapeutic drugs known as benzodiazepines.
[17] According to Dr. Oliver, a psychiatrist at the Regional Treatment Centre in Kingston, Ontario and employee of CSC, benzodiazepines have many possible adverse side effects including, but not limited to the following:
(a) a generalized sedative effect, e.g. fatigue or drowsiness;
(b) behaviour dyscontrol with irritability and impulsivity; paradoxical agitation - insomnia, hallucinations, nightmares, euphoria, rage and violent behaviour; most likely in patients with a history of aggressive behaviour or unstable emotional behaviour, e.g. borderline personality disorder;
(c) confusion and disorientation, particularly following combination with other drugs;
(d) depression;
(e) enhancement of the effects of alcohol and other drugs;
(f) death, when taken in combination with other drugs, such as alcohol and barbiturates.
[18] Dr. Oliver expressed the view that benzodiazepines are generally contraindicated for inmates in correctional facilities and potentially detrimental where inmates have a history of aggressive behaviour, drug and alcohol abuse, drug dependence or a history of self-medication.
[19] Long-term use of benzodiazepines may lead to adverse effects such as decreased concentration, memory impairment and impaired cognitive processes, as well as addiction.
Use of Clonazepam Prior to Incarceration in Federal Institutions
[20] Prior to the Applicant's incarceration, he was treated by several physicians, many of whom prescribed Clonazepam.
[21] In his affidavit, the Applicant claims that Clonazepam greatly helped his symptoms and enabled him to lead a more normal life free of serious effects. However, the record discloses that the Applicant repeatedly complained of anxiety attacks during the time that he was treated with Clonazepam. On several occasions, he even stated that Clonazepam was not helping him. There is also evidence, discussed below, that the Applicant abused Clonazepam.
[22] On admission to the provincial Whitby facility in 2001, the Applicant told Ms. Turco that he had seen Dr. Sagi of the Oshawa General Hospital "for three years and that nothing changed and I was getting worse." Dr. Sagi had prescribed Clonazepam.
[23] In May 2000, the Applicant had visited a Dr. Rajendra in Whitby and told him that he was taking one milligram of Clonazepam three times a day but felt that it was "not the answer." The Applicant reported several panic attacks every day at this time, during which he became dizzy, hyperventilated and had palpitations and chest discomfort. He stated that previously he had taken six to eight milligrams of Clonazepam a day.
[24] The Applicant told Ms. Turco that "[t]hey had been trying to take me off Rivotril [clonazepam] in the past." As noted below, he also told Ms. Turco that he had started drinking again because of the anxiety attacks.
[25] The Health Care Record respecting his treatment at the Whitby facility shows that the Applicant complained on August 18, 2000, of feeling dizzy and anxious, and that he was upset that he had been on the same medication for 13 years. The medication was "not helping and he wanted something else." On August 24, 2000, when he was still being treated with Clonazepam, he complained of anxiety, of not sleeping and said that "nothing is working." On September 19, he again complained of a lot of anxiety.
Abuse of Alcohol and Drugs
[26] The Applicant has a long history of abusing alcohol and drugs, including benzodiazepines. He has been diagnosed repeatedly with alcohol and drug abuse and dependence disorders.
[27] He was convicted of driving with more than 80 milligrams of alcohol in his blood in March, 1987.
[28] On his admission to the provincial Forensic Assessment Unit of the Whitby Mental Health Clinic on June 29, 2000, the Applicant told Dr. Jonathan Rootenberg that three or four weeks previously he had taken more pills than he should have. He also told Dr. Rootenberg that he had written his own prescriptions for Clonazepam. He also told Gina Turco, a social worker, that he had attempted suicide in the past by overdosing on prescription medication.
[29] At the same time, the Applicant told Dr. Rootenberg that he had been drinking "pretty well every day, at least for the last few months." He gave the same information to Ms. Turco, adding that his drinking was "out of hand" and he was not sure how much he consumed. He stated that he had been drinking on the morning of the events which led to his conviction. He told both Dr. Rootenberg and Ms. Turco that he started drinking again because of the anxiety attacks. He was being treated with Clonazepam during this time.
[30] Dr. Rootenberg received information from Dr. Sagi who had treated the Applicant from March 1990 to January 1991. Dr. Sagi believed that, at the time of the Applicant's last visit in 1991, the Applicant had minimized his alcohol use. Dr. Sagi discussed with the Applicant the need to curtail his drinking in order to deal more effectively with his anxiety symptoms. Dr. Sagi also believed that the Applicant engaged in medication seeking behaviour.
[31] Dr. Rajendra reported to Dr. Rootenberg that the Applicant had told him that, in the past, he had drunk excessively.
[32] Dr. Rootenberg diagnosed the Applicant as having alcohol abuse and benzodiazepine dependence in addition to panic disorder with agoraphobia.
[33] In interviews with a CSC psychologist in or about November 2001, the Applicant admitted that, as a result of his anxiety disorder, he began drinking in 1987 and borrowed large amounts of money from friends for alcohol. He further admitted that he became seriously addicted to alcohol after his panic attacks started. He had spent long hours at bars, had driven while intoxicated and had been involved in brawls.
[34] The psychologist administered two screening tests to the Applicant, one for drug abuse and one for alcohol abuse. His scores indicated a problem with both.
[35] The Applicant was interviewed by a registered psychiatric nurse on his admission to the Regional Treatment Centre at Kingston in July, 2001. The nurse's notes indicate that he stated he had a long history of panic/anxiety disorder and that he was being treated with benzodiazepines and was self-medicating with alcohol. According to the notes he admitted abusing both substances.
[36] On cross-examination, the Applicant denied making any such statements.
[37] Ten days later, after admission to the federal Regional Treatment Centre ("RTC"), the Applicant was examined at the doctor's clinic at the RTC in Kingston and admitted that he had been drinking heavily prior to his incarceration.
[38] On August 12, 2001, the Applicant admitted to a registered psychiatric nurse at RTC that he had had an "out of control addiction to Benzo's on the street."
[39] On October 28, 2002, Dr. Oliver diagnosed the Applicant as having "generalised anxiety disorder with panic" and a "history of prescribed drug dependence/abuse (benzodiazepine)."
[40] On December 31, 2002, during his third visit to the RTC, the Applicant asked to see Dr. Michelle Boyd. Her notes indicate that the Applicant told Dr. Boyd that he had a long history of panic disorder and generalized anxiety which he self-medicated with alcohol and excessive use of prescription drugs.
[41] Dr. Boyd diagnosed the Applicant as having generalized anxiety disorder and substance dependence disorder (alcohol and benzodiazepines).
Medical Treatment at Federal Institutions
[42] While in custody at federal institutions, the Applicant was admitted to the CSC Regional Treatment Centre on three separate occasions:
(a) from 20 July 2001 to 31 October 2001;
(b) from 11 February 2002 to 25 March 2002; and
(c) from 13 November 2002 to 28 May 2003.
[43] The Applicant was first admitted to the RTC on July 20, 2002, because of anxiety and possible suicidal ideation. On admission he denied any suicidal intent or thoughts.
[44] The Applicant made episodic and inconsistent complaints of anxiety and panic. RTC staff placed him on sleep watch and suicide watch. His complaints of constant overwhelming and debilitating anxiety and insomnia, however, were inconsistent with his observed demeanour and level of functioning on the ward. The progress notes demonstrate that the Applicant was observed to sleep well and to interact with peers.
[45] During his first admission, the Applicant was managed effectively with Effexor XR and a small dose of Nozinan hs, a sleep agent. Effexor is one of a class of relatively new anti-depressants, the Serotonin/Noradrenaline Reuptake Inhibitors ("SNRI"). This drug appeared to be effective in mitigating the Applicant's panic as he reported no further panic attacks when on the medication at therapeutic levels.
[46] The Applicant admitted to feeling much better when on Effexor, stating that he had experienced a marked reduction in anxiety and an improvement in his mood and that he was able to interact well with peers and staff. This improvement was also noticed by nursing staff.
[47] The Applicant was discharged from RTC on October 31, 2001, with a continuing prescription for Effexor. Notwithstanding his improvement, the Applicant took himself off Effexor.
[48] The Applicant was re-admitted to RTC on February 11, 2002, complaining of nervous tension.
[49] Again, the progress notes reveal episodic and inconsistent complaints of anxiety and panic. Dr. Oliver observed that one incident of alleged panic was not accompanied by the usual symptoms associated with panic such as increased heart rate and diaphoresis. His complaints of overwhelming and debilitating anxiety were inconsistent with his observed demeanour and level of functioning.
[50] During his second admission to RTC, the Applicant was managed with Remeron, another SSRI. He complained of side effects, so this medication was replaced with Doxepin which he found acceptable. The Applicant was generally relaxed and coped well on the unit. He was discharged on March 25, 2002.
[51] The Applicant was admitted to the RTC for a third time on November 13, 2002. He was restarted on Remeron and his anxiety disorder was managed effectively with that drug. His complaints of constant, overwhelming and debilitating anxiety and insomnia were once again inconsistent with his observed demeanour and level of functioning on the ward.
[52] The Applicant was discharged from RTC on May 28, 2003.
[53] Both Effexor and Remeron were successful in mitigating the Applicant's panic when he was at RTC. However, the Applicant declined them or demanded other medications, specifically Clonazepam (Rivotril). Effexor and Remeron do not provide the sedative side effect that is associated with benzodiazepines.
CSC Policy on Benzodiazepines
[54] Benzodiazepines are listed in the CSC Formulary and are available for prescription by CSC physicians and psychiatrists.
[55] The Formulary is prepared under the direction of the regional Pharmacy and Therapeutics Committee. It is intended for use as a guide for physicians to the selection of drugs for the treatment of patients in CSC institutions in Ontario. The Formulary is intended to reflect the current clinical judgment of the institutional physicians and psychiatrists.
[56] However, for the reasons discussed above, benzodiazepines are generally not recommended for long-term treatment of anxiety/panic in any patient. The CSC Formulary provides for a discontinuation schedule for inmates who come from the provincial penitentiary system where the continued use of benzodiazepines is not indicated.
[57] The Formulary does not prohibit physicians from prescribing benzodiazepines. These drugs are sometimes prescribed on a short-term basis, depending on the needs and history of a particular inmate. Physicians are free to prescribe them if, in their professional judgment, they are clinically indicated.
[58] The Formulary calls for physicians treating patients who are receiving other kinds of benzodiazepines to change to Clonazepam. Thereafter, physicians are expected to gradually reduce the dosage of Clonazepam according to a schedule, unless there are clinical reasons not to do so.
Reduction of Clonazepam (Rivotril)
[59] Upon admission to Millhaven Institution in May, 2001, the Applicant was still on Clonazepam. The clinical notes from Millhaven reveal that D. Heurder, a Registered Nurse, explained the CSC tapering policy for benzodiazepines to the Applicant on May 25, 2001.
[60] Dr. Oliver testified that the reduction was probably overseen by Dr. Jonathan Standley or another CSC physician.
[61] The Applicant expressed concerns about the reduction of Clonazepam and it was reviewed with him again on May 29 and June 4, 2001. Dr. Oliver was asked to assess his medications.
[62] Dr. Oliver reviewed the Applicant's circumstances on June 7, 2001. He noted that the Applicant had been treated with benzodiazepines only and with Sinequan, a sedative, for sleep. He wrote that the Applicant "needs to be on an SSRI."
[63] On all three admissions to RTC, the Applicant sought treatment with benzodiazepines, especially Clonazepam. Dr. Oliver considered benzodiazepines to be inappropriate and potentially detrimental based upon his clinical assessments of the Applicant and the information contained in the Applicant's medical files.
[64] Based on his clinical assessments and the materials from the files, Dr. Oliver understood as follows:
(a) the Applicant had a long history of substance abuse, addiction and dependence, and exhibited medication seeking behaviour;
(b) he had a history of increased use of Rivotril in the community, of up to six to eight mg per day, of writing his own prescriptions and of drinking at the same time;
(c) he offended while on alcohol and benzodiazepines;
(d) the Applicant sought Rivotril, and other drugs and medications such as olanzepine and benadryl, for their sedative characteristics.
[65] The Applicant's desire to be sedated and removed from reality was medically alarming to Dr. Oliver.
[66] CSC physicians treated the Applicant with SNRIs which alleviated his symptoms of anxiety.
Current Functioning
[67] Records indicate that the Applicant successfully completed several courses while at Joyceville Institution.
PERTINENT LEGISLATION
[68] The principal statutory criteria relevant to the Applicant's case are contained in ss. 85 to 87 of the Corrections and Conditional Release Act and describe the non-discretionary legal duty owed by the Commissioner to the Applicant:
| 85. In sections 86 and 87,
"health care" means medical care, dental care and mental health care, provided by registered health care professionals;
"mental health care" means the care of a disorder of thought, mood, perception, orientation or memory that significantly impairs judgment, behaviour, the capacity to recognize reality or the ability to meet the ordinary demands of life;
"treatment" means health care treatment.
86. (1) The Service shall provide every inmate with
(a) essential health care; and
(b) reasonable access to non-essential mental health care that will contribute to the inmate's rehabilitation and successful reintegration into the community.
(2) The provision of health care under subsection (1) shall conform to professionally accepted standards.
87. The Service shall take into consideration an offender's state of health and health care needs
(a) in all decisions affecting the offender, including decisions relating to placement, transfer, administrative segregation and disciplinary matters; and
(b) in the preparation of the offender for release and the supervision of the offender. |
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85. Les définitions qui suivent s'appliquent aux articles 86 et 87.
« _soins de santé_ » Soins médicaux, dentaires et de santé mentale dispensés par des professionnels de la santé agréés.
« _soins de santé mentale_ » Traitement des troubles de la pensée, de l'humeur, de la perception, de l'orientation ou de la mémoire qui altèrent considérablement le jugement, le comportement, le sens de la réalité ou l'aptitude à faire face aux exigences normales de la vie.
86. (1) Le Service veille à ce que chaque détenu reçoive les soins de santé essentiels et qu'il ait accès, dans la mesure du possible, aux soins qui peuvent faciliter sa réadaptation et sa réinsertion sociale.
(2) La prestation des soins de santé doit satisfaire aux normes professionnelles reconnues.
87. Les décisions concernant un délinquant, notamment en ce qui touche son placement, son transfèrement, son isolement préventif ou toute question disciplinaire, ainsi que les mesures préparatoires à sa mise en liberté et sa surveillance durant celle-ci, doivent tenir compte de son état de santé et des soins qu'il requiert. |
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[69] This basic legal duty is expanded upon in Commissioner's Directive 800, which states that inmates shall receive essential health care, which includes care "provided in response to disturbances of thought, mood, perception, orientation or memory that significantly impairs judgment, behaviour, the capacity to recognize reality or the ability to meet the ordinary demands of life. This includes the provision of both acute and long-term mental health care services."
[70] The prescription of medications is described in s. 25 ofCommissioner's Directive 805:
Medications shall be prescribed only when clinically indicated and shall never be used for disciplinary or control purposes. The clinician shall prescribe hypnotic or sedative medication only when there is evidence that the inmate's sleep is disturbed and only in exceptional circumstances.
ISSUES
[71] The Applicant indicates that the primary issue in this application is whether the Commissioner's indiscriminate policy prohibiting the prescription of Clonazepam (Rivotril) to the Applicant, as evidenced by the Formulary, CD 805, and other material filed in support of the application, violates the Applicant's ss. 7 and 12 Charter rights and has resulted in a denial of natural justice, thus causing the Commissioner to lose jurisdiction of the matter.
[72] Specifically, the Applicant submits that the grounds of the application are that the impugned Decision of the Commissioner:
a) violates the common law duty to act fairly;
b) violates the Applicant's right under s. 7 of the Charter of Rights and Freedoms not to be deprived of the security of his person except in accordance with the principles of fundamental justice;
c) violates the Applicant's right under s. 12 of the Charter of Rights and Freedoms not to be subject to cruel and unusual treatment or punishment;
d) is contrary to the explicit provisions of the Corrections and Conditional Release Act, S.C. 1992 c. 20, ss. 85 to 87; Commissioner's Directive 800, ss. 1, 2, and 13; Commissioner's Directive 805, s. 25; and Commissioner's Directive 850, ss. 6 to 8.
e) has no foundation or justification in law; and
f) has resulted in an on-going denial of natural justice, causing the Commissioner to lose jurisdiction over the matter.
[73] The Respondent raises the following issues:
a) whether the CSC officials are proper respondents to this application;
b) whether the application should be dismissed on the basis that the Applicant improperly seeks judicial review of several decisions;
c) whether the application should be dismissed as untimely;
d) whether CSC policies prohibit the prescription of benzodiazepines to inmates or contravene the Corrections and Conditional Release Act.
e) whether benzodiazepines are medically indicated for the Applicant and whether, if they are, this Court should make that prescription.
ARGUMENTS
Applicant
General
[74] The Applicant says that Dr. R.N. Oliver treated him for the first time at Millhaven Institution on June 7, 2001. By that time, the Applicant had been informed by the nursing staff, prior to any psychiatric evaluation, that his use of Clonazepam would be quickly tapered off.
[75] Dr. Oliver had not yet reviewed the Applicant's medical records from May 25 to June 7, 2001 when he made the decision to confirm the discontinuance of Clonazepam.
[76] The Applicant says that the issues turn on whether the Commissioner, in formulating and implementing the policy against the prescription of Clonazepam:
(a) acted without or beyond her jurisdiction;
(b) failed to observe a principle of natural justice or other duty that she was required by law to observe; or
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record.
[77] The Applicant takes issue with the fact that the policy of reducing his prescription for Clonazepam while at Millhaven Institution in 2001 occurred before he saw a psychiatrist and at the direction of nursing staff. The Applicant points out that Dr. Oliver did not review his CSC medical file prior to confirming this reduction and rapid elimination of Clonazepam as a medication for the Applicant's illness.
[78] The Applicant points out that the evidence of Dr. Oliver is incorrect in terms of his assertion that the Applicant "consistently declined" alternate medications. From July 2001 to the present, the Applicant has tried numerous medications, although he has discontinued many because of the side effects or because they were ineffective in alleviating the symptoms of his illness.
[79] The Applicant takes issue with the reasons given by Dr. Oliver regarding the reason Clonazepam should not be prescribed for him. He notes that several different CSC doctors and medical staff have given him several different explanations describing the impugned policy. They include the view that Clonazepam is subject to extortion and is sold and used illicitly by some inmates. The Applicant says he was also informed by three CSC doctors that he should be prescribed Clonazepam and that he will certainly receive it from non-CSC doctors when he is released from CSC custody.
[80] The Applicant points out that both Dr. Oliver and Dr. Dallal concur that the policy as outlined in the Formulary regarding Clonazepam is a prescriptive rule with "firm restrictions."
[81] The Applicant has willingly tried numerous different drugs, including Effexor, Paxil, Busparon, Olanzapine, Benadryl, Remeron, Nozzanon, Celexan, Elival, Propranolol, and Serequel. However, none has alleviated his episodic symptoms of intolerable anxiety, panic attacks, heart palpitations, insomnia, and all-consuming fear.
[82] The result to the Applicant of the Commissioner's decision to proscribe the use of Clonazepam has been, and continues to be, the inability of the Applicant to take any programs or educational classes on his correctional plan (as they involve interacting with other inmates), or even taking his food in the meal line. He says he avoids contact with other inmates if he can and he rarely sleeps more than two hours per night.
Standard of Review
[83] The Applicant says that the Decision or policy of the Commissioner does not meet the standard of review of correctness. The Commissioner enacted the indiscriminate Formulary in contravention of s. 86 of the CCRA, which dictates that every inmate in CSC's custody "shall" receive "essential health care."
[84] The Commissioner's Directive 805, which Dr. Oliver admits is binding on him, clearly dictates that "Medications shall be prescribed only when clinically indicated and shall never be used for disciplinary or control purposes. The clinician shall prescribe hypnotic or sedative medication ONLY when there is evidence that the inmate's sleep is disturbed and only in exceptional circumstances." There are no qualifications to this blanket and indiscriminate policy.
[85] The Applicant says that Clonazepam was prescribed for him for over 13 years and was essential to the alleviation of his episodic anxiety and panic disorders, characterized in part by agoraphobia and sleep disturbances. The Applicant says he has been informed by nine doctors that he qualifies for long term benzodiazepine use.
[86] The Applicant also says that the impugned Decision of the Commissioner has resulted in nearly three years of panic, anxiety, sleep disturbances, and other debilitating symptoms that are preventing the Applicant from engaging in productive rehabilitation.
[87] This is why the Applicant says that the Decision of the Commissioner has deprived him of the security of his person in contravention of s. 7 of the Charter.
[88] He also says that the Decision of the Commissioner is cruel and unusual treatment and punishment in contravention of s. 12 of the Charter.
[89] The Applicant has repeatedly requested CSC medical staff to prescribe Clonazepam and has filed grievances to that effect. These alternate remedies have been unsuccessful.
[90] The Applicant says the Decision of the Commissioner has resulted in a denial of natural justice in that his individual medical needs have been ignored completely in favour of an arbitrary Formulary that is followed rigidly by CSC medical staff. This denial has resulted in the Commissioner losing jurisdiction over the matter.
Respondents
Parties
[91] The Respondents say that the Applicant improperly names three decision-makers as Respondents. They should be removed from the style of cause.
[92] The Commissioner of the Correctional Service of Canada, the Warden of Bath Institution and the Warden of the Regional Treatment Centre (Ontario) are not proper respondents to this application.
[93] The Respondents point out that the Applicant purports to attack a Decision or decisions made by these three officers. It is trite law that a federal board whose actions or recommendations are the subject of judicial review is not a proper respondent (Yeager v. Canada (Correctional Service) (2000), 189 F.T.R. 196 (T.D.))
[94] In his Notice of Application, the Applicant seeks judicial review "in respect of the refusal of the Commissioner of Correctional Services of Canada ("CSC") and various CSC staff members, including the health care staff and medical contract personnel at the Regional Treatment Centre (Ontario) and Bath Institution to provide the Applicant with proper medical care."
[95] The Applicant says that his application is brought to quash the Decision of the Commissioner of the Correctional Service of Canada which prevents the Applicant from receiving a medical prescription for Clonazepam.
[96] It is therefore apparent that the Applicant has named these officers as Respondents on the basis that they made decisions affecting the Applicant's medical treatment.
[97] The Respondent therefore requests an Order deleting all Respondents other than the Attorney General of Canada from the style of cause.
The Applicant Challenges More Than One Decision
[98] The Respondents say that the Applicant improperly challenges several policy and treatment decisions made by many different officials. The application is confusing and prejudicial and should be dismissed on this basis alone.
[99] Unless the Court orders otherwise, an application for judicial review should be limited to a single order in respect of which relief is sought (Rule 302, Federal Court Rules, 1998, SOR/98-106).
[100] The Applicant does not identify the single order in respect of which he seeks relief. He makes reference to several decisions. It is impossible to know which of these is in issue.
[101] In his Notice of Application, the Applicant refers to the refusal of the Commissioner and various CSC staff members to provide the Applicant with proper medical care. He does not identify when and under what circumstances the Commissioner refused to provide medical care. Nor does he identify the decision or decisions made by other CSC staff members.
[102] In the first paragraph of his Memorandum of Fact and Law, the Applicant refers to "the decision" of the Commissioner that allegedly prevents the Applicant from receiving a medical prescription for Clonazepam but does not provide particulars. The Respondent denies that the Commissioner has made any such decision.
[103] At para. 5 of his Memorandum, the Applicant alleges that the Commission has a policy which has directly affected the health and welfare of the Applicant, that there is no legal foundation or justification for this policy, and that it exceeds the powers conferred on the Commissioner by statute.
[104] At para. 11 of his Memorandum, the Applicant refers to a decision made by unidentified CSC medical staff under the direction of the Commissioner's policy to terminate "any benzodiazepine use by federal inmates" pursuant to the Formulary.
[105] Again, at paras. 15 and 16 of his Memorandum, the Applicant appears to attack a treatment decision or decisions made by Dr. Oliver in May, 2001.
[106] At para. 19, the Applicant refers to the Commissioner's decision to prohibit the use of Clonazepam without saying when and in what circumstances that decision was made.
[107] That the Applicant is improperly attempting to challenge two or more decisions is starkly apparent when paras. 22 and 23 of the Applicant's Memorandum are compared.
[108] In para. 22, the Applicant frames the issue as being whether the Commissioner made various legal and jurisdictional errors in formulating and implementing the policy against the prescription of Clonazepam.
[109] In para. 23, the Applicant challenges two other "decisions," the reduction of Clonazepam by nursing staff before the Applicant was seen by a psychiatrist and the confirmation of this reduction by Dr. Oliver before he reviewed the Applicant's medical file.
[110] In paras. 24 and 25, the Applicant appears to challenge various treatment decisions made by many different CSC physicians.
[111] In para. 26, the Applicant asserts that the "decision or policy" of the Commissioner does not meet the standard of correctness
[112] The Respondents conclude that the Application is confusing and prejudicial. It is impossible to know which decision or decisions are under review, to determine whether judicial review of the decisions is time-barred, and to ensure that the Court has a complete record of all of the evidence respecting each decision.
[113] It is not clear whether the Applicant challenges a decision to adopt a policy, the scope of a policy, the application of a policy or specific clinical decisions. It is impossible to know who made these decisions and when they made them.
[114] This confusion as to the decision(s) under review causes further problems. First is the issue of time limits. An application for judicial review must be brought within 30 days of the decision or order being made. It is impossible to determine whether this limit has been met and it appears that judicial review is time-barred. Second is the issue of evidence. Although the Respondents have provided extensive evidence concerning the Applicant's medical treatment and the medical issues respecting benzodiazepines, the evidence is necessarily of a general nature. The record respecting specific clinical decisions may be very different from the record respecting policy decisions. It is impossible to be certain that all relevant evidence is before the Court.
[115] For these reasons, the Respondents say that the Court should not exercise its discretion to permit the Applicant to challenge more than one decision. Indeed, the application as formulated should be dismissed since it is confusing and prejudicial.
[116] The decisions the Applicant seeks to challenge cannot be regarded collectively as a "matter" and be reviewed on that basis. The Applicant attacks separate and distinct policy and clinical decisions made by a variety of people on a variety of grounds. Unlike the Krause decision, there is neither a general decision that governs all others or a continuing series of consistent decisions (Krause v. Canada, [1999] 2 F.C. 476 (C.A.)).
[117] This does not mean that the Applicant is without a remedy. If the Applicant wishes to challenge the application of the CSC policies, the proper way to do so is to seek judicial review of a particular treatment decision that the Applicant believes has been dictated by the policies. The Applicant has not done this. Even if he had, every decision to which he refers was made well before the expiry of the limitation period for commencing judicial review.
CSC Policy Does Not Prohibit the Prescription of Clonazepam
[118] The Applicant's case appears to rest on the proposition that the Commissioner of the CSC has adopted policies that prohibit CSC physicians and psychiatrists from prescribing Clonazepam for the Applicant. For that reason, according to the Applicant, the policies contravene the statutory duty of the CSC to provide essential health care to inmates and violate his constitutional rights to security of the person and freedom from cruel and unusual punishment.
[119] The Respondents say that the proposition underlying the Applicant's case is mistaken. The CSC policies do not prohibit the prescription of Clonazepam. CSC physicians and psychiatrists may prescribe it to inmates. They have not done so for the Applicant because its use is contraindicated for him and there are other more effective treatments available. This is a medical decision that is not amenable to judicial review. There are no grounds for this Court to make orders in the nature of mandamus or prohibition.
[120] The Applicant's assertion that CSC physicians have discontinued his treatment with Clonazepam because CSC policy prohibits the prescription of that drug is not borne out by the evidence.
[121] The drug Formulary is a guide to the selection of drugs for the treatment of patients in CSC institutions, not a direction. Its use is strongly encouraged but not required.
[122] Clonazepam is listed in the Formulary and is therefore recognized for use in CSC institutions. CSC institutional clinicians may prescribe Clonazepam in appropriate cases according to the clinical needs of an inmate. These drugs are sometimes prescribed on a short-term basis depending upon the needs and history of a particular inmate.
[123] The Formulary provides for a discontinuation schedule for inmates received from provincial penitentiaries where the continued use of benzodiazepines is not indicated. The corollary is that, where it is indicated, it may be prescribed.
[124] This discontinuation schedule is consistent with good medical practice. The risks associated with the prolonged use of benzodiazepines are described in the recommendations of professional associations of psychiatrists and in the scientific literature.
[125] Those risks include decreased concentration, memory impairment and impaired cognitive processes, addiction and pharmacological tolerance and behavioural disinhibition, resulting in impulsive and assaultive behaviours.
[126] Based on research they carried out in 2000, Dr. Dallal and colleagues at the Archambault Penitentiary recommended that clinicians should endeavour to use the lowest dose of benzopdiazepines that are therapeutic and treat for the briefest period of time. They also recommended that clinicians avoid prescribing benzodiazepines to a patient with a current or prior history of substance abuse of dependence.
[127] Nor does Commissioner's Directive 805 prohibit the prescription of Clonazepam. The directive again recognizes the significance of professional medical opinion in stipulating that medications shall only be prescribed when clinically indicated. Again, there is no evidence in this case that the medication the Applicant seeks is clinically indicated.
[128] The requirement in the directive that hypnotics or sedatives be prescribed only when there is evidence that the inmate's sleep is disturbed does not assist the Applicant. If indeed the Applicant's sleep was consistently disturbed - as he alleges but which is not shown on the record - then physicians could prescribe benzodiazepines if clinically indicated.
The CCRA Does Not Compel the Prescription of Clonazepam
[129] Subsection 86(1) of the CCRA states only that the CSC has a duty to provide essential health care. It does not compel the Commissioner or a particular CSC physician to prescribe Clonazepam.
[130] Health care provided by the CSC in accordance with this subsection must conform to professionally accepted standards. In other words, physicians must exercise their professional clinical judgment.
[131] The Respondents say that there is simply no evidence on the record to show that the judgment of Dr. Oliver or any other CSC physician did not conform to professionally accepted standards.
[132] In any event, the exercise of professional medical judgment is not reviewable under ss. 18.1(4) of the Federal Courts Act. This Court is concerned with legal error not clinical judgment.
Clonazepam is Not Clinically Indicated
[133] The CSC physicians treating the Applicant have not prescribed Clonazepam because, in their professional medical judgment, they do not believe that it is necessary or appropriate for his condition.
[134] Dr. Oliver's judgment was that Clonazepam was contraindicated for the Applicant and that its use could be disastrous. He reached this conclusion based on his clinical assessments and on the Applicant's long history of substance abuse, his history of abuse of Clonazepam and alcohol, the fact that he committed the offences for which he is incarcerated while on Clonazepam, and his desire to be sedated.
[135] On cross-examination he did not agree that the Applicant was a good subject for long-treatment with Clonazepam.
[136] In Dr. Oliver's opinion, the Applicant could be more effectively treated with Effexor and Remeron, the SNRIs.
[137] There is no evidence on the record to show that this medical opinion is incorrect, unreasonable or inconsistent with accepted standards of medical practice. In particular, there is no evidence that any physician, whether employed by the CSC or engaged exclusively in private clinical practice, would today prescribe Clonazepam for the Applicant.
[138] There is an insufficient medical foundation for the Applicant's claim that only benzodiazepines are effective in alleviating his symptoms. His own complaints contradict this assertion. He has a history of drug and alcohol abuse and has exhibited drug-seeking behaviour and a desire to be sedated. He has been diagnosed with drug dependence disorder.
[139] The Applicant's history of treatment with benzodiazepines for 13 years does not provide a compelling justification for their renewed prescription.
[140] The record demonstrates, first, that benzodiazepines did not alleviate his symptoms and, second, that other treatments, unknown to medicine when the Applicant was first treated by physicians, have had equal or greater benefit.
[141] There is evidence that one or more of those physicians tried to switch the Applicant to other drugs. There is no information to show that those physicians were aware of the Applicant's drug dependency and would have continued to prescribe Clonazepam had they known about that dependency.
[142] The Applicant's claims of continuous panic, anxiety, sleep disturbance and inability to function are not borne out by the evidence. Dr. Oliver testified that while at RTC the Applicant was observed to have a good sleep pattern with no significant sleeping disorder. His anxiety attacks were not consistent with true panic attacks.
[143] Where those symptoms have occurred sporadically they have been alleviated effectively by modern anti-depressants which the Applicant has discontinued.
[144] The medical consensus is that continued prescription of benzodiazepines will expose the Applicant to unnecessary risks. The risks are unnecessary because there is a variety of treatment options available to the Applicant.
[145] For these reasons there is no legal foundation for an order compelling the CSC to treat the Applicant with benzodiazepines.
No Violation of the Charter
[146] The Respondent's position is that the Commissioner did not violate s. 7 of the Canadian Charter of Rights and Freedoms. In particular, he did not violate the Charter by establishing policy regarding the use of prescription drugs within federal penitentiaries.
[147] There is no deprivation of the security of the Applicant's person. No person, whether or not an inmate in a federal institution, has a right to the prescription of a specific drug. The prescription of drugs must always be a function of professional medical judgment.
[148] It cannot be a violation of the Charter for CSC or its physicians to refuse to prescribe a drug that is not clinically indicated for the Applicant and that may have serious adverse consequences for the Applicant and others, especially where the Applicant's complaints can be effectively alleviated safely with other drugs.
[149] Similarly, there is no cruel or unusual treatment in this case within the meaning of s. 12 of the Charter. Effective treatment is available to the Applicant. There is no evidence that the Applicant has been denied required or adequate care (Kelly v. Canada, [1996] F.C.J. No. 880 (T.D.)).
ANALYSIS
Style of Cause
[150] At the hearing of this matter in Kingston on June 1, 2004, the Applicant concurred with the Respondent's position regarding the style of cause and formally made application for an amendment to remove all parties other than the Attorney General of Canada. The Court agreed with this position and agreed to grant the amendment.
Merits
[151] The Applicant believes he requires Clonazepam to help him with his physical and mental problems. He believes that it is not being prescribed for him because there is a prohibition or indiscriminate blanket policy against its use in the federal prison system. He says that this has prevented those responsible for his health needs from assessing his drug requirements fully and from prescribing the Clonazepam that has been prescribed for him by doctors in the past.
[152] The Applicant says that the evidence for this prohibition or policy against the use of Clonazepam for inmates can be found in the CSC Formulary and the Commissioner's Directive 805.
[153] The difficulty with this position is that the Commissioner's Directive itself makes it clear that there is no blanket prohibition and the evidence on the record (apart from uncorroborated allegations made by the Applicant himself in his affidavit) makes it abundantly clear that the Applicant's medical needs have been repeatedly assessed unfettered by any policy or prohibition but taking into account his medical history, his current condition, the dangers of long term use of benzodiazepines, the effectiveness of alternative drugs, and the particular dangers of prescribing Clonazepam for him.
[154] The fact that the Applicant may have been prescribed Clonozepam in the past does not mean that he is automatically entitled to it now. No doctor in recent times, with a full knowledge of his history, has prescribed it for him. The medical information on the record makes it very clear why Clonazepam is not favoured by the CSC and why it would be inappropriate to prescribe it for the Applicant in his present state.
[155] Applicant's counsel made it clear at the hearing that this review application pertains to the prohibition or policy against prescribing Clonazepam to federal inmates.
[156] From my review of the record I have to conclude that there is no blanket prohibition and that the Applicant's medical needs as regards Clonazepam have been assessed in an unfettered way and through the exercise of professional clinical judgment.
[157] There is no acceptable evidentiary basis to support the Applicant's allegations and the remedies he seeks.
ORDER
THIS COURT ORDERS that
1. The Style of Cause is amended to remove all named Respondents except the Attorney General of Canada.
2. The Application is dismissed.
3. The Respondent shall have the costs of the Application.
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JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:T-2117-03
STYLE OF CAUSE:THOMAS POWELL
- and -
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:Kingston, Ontario
DATE OF HEARING:June 1, 2004
REASONS FOR ORDER : The Honourable Justice Russell
APPEARANCES:
Mr. Philip CaseyFOR APPLICANT
Mr. J. Sanderson GrahamFOR RESPONDENT
Ms. Alexis HannaFOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Philip CaseyFOR APPLICANT
Barrister & Solicitor
11 Princess Street
Suite 203
Kingston, Ontario
K7L 1A1
Department of Justice CanadaFOR RESPONDENT
East Memorial Building
234 Wellington Street
Ottawa, Ontario K1A 0H8