Starson v. Swayze

(2001) 201 D.L.R. (4th) 123, 146 O.A.C. 121, 33 Admin. L.R. (3d) 315
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The respondent Starson was a physicist who was diagnosed with bipolar disorder and had intermittently received treatment in various mental institutions in the United States and Canada. Historically, he had used medication to regulate the condition. However, the side effects dulled Starson’s mind, and he refused further treatment, despite being informed his condition would deteriorate without medication. Upon remittance to a mental institution, the Ontario Review Board ordered that he be detained for 12 months. During this time, Starson’s continued refusals to take the medication led his doctor to conclude that Starson did not understand the implications of the medications or fully appreciate the effects that not taking the medications would have. Under section 4(1) of the Health Care Consent Act, 1996, S.O. 1996, this meant that medication could potentially be imposed against Starson’s wishes.

Starson applied to the Ontario Consent and Capacity Board for a review of the physician’s decison. The Board found that he suffered from delusions that prevented him from understanding and appreciating information relevant to his treatment, and concluded that he lacked the capacity to consent to or refuse treatment. Starson appealed to a review court, which overturned the board’s decision. The review court decision was appealed to the Supreme Court.

The Court found that the board inappropriately acted in consideration of Starson’s best interests. The board disregarded evidence of Starson’s acknowledgment of his condition, his stated interest not to continue medication to continue his work as a physicist, and the uncertain effects of the medication. Due to this error, the Board lacked the capacity to determine that Starson lacked the ability to consent. The Supreme Court reasoned that review boards should only assess the patient’s capacity to understand the relevant information necessary to make a decision regarding treatment, and assess the patient’s ability to reasonably foresee the consequences of making, or not making, that decision. The Court rejected the view that the Board could make a decision on the basis of the patient’s best interests.

In determining the scope of section 4(1), the Court clarified three main points. First, that the patient was to be presumed competent, and that the burden was on the doctor to demonstrate incapacity. Second, the patient must have the capacity to understand and appreciate the effects of the decision. Third, that in a judicial review of a board’s decision where public safety is not an issue, the Court should only examine the reasonableness of the finding in relation to the patient’s capacity at the time of the hearing, and should not admit new evidence.

In addition, the Court found that the patient was required to acknowledge his symptoms and the effect of the proposed treatment. The patient did not need to agree with the doctor’s diagnostic label or characterize the condition in negative terms. The Court determined that the patient had to be capable of weighing and evaluating the foreseeable consequences of accepting or refusing treatment, but did not actually have to actually appreciate those consequences. Furthermore, the Court found that if the patient’s failure to demonstrate actual appreciation of the consequences did not undermine their ability to appreciate the consequences, then they were capable of making a decision.

The dissent argued that the test was properly applied in examining whether Starson was ultimately able to understand his illness, based on the actual behaviors he exhibited. Additionally, the dissent found that the test of reasonability should examine whether the conclusion was among the range of conclusions which could have reasonably been reached. Starson did not explicitly recognize the existence of a mental condition, refused to objectively appreciate the benefits of the medication, and maintained delusions which incapacitated his judgment.

“As a result of its focus on the respondent's best interests, the Board disregarded clear evidence of his capacity. Professor Starson acknowledged that he suffered from a mental condition and appreciated the purpose of the proposed medication and the possible benefits suggested by the doctors. He had tried other treatments in the past to no avail. The evidence did not suggest that enforced treatment was likely to improve his condition. Professor Starson preferred his altered state to what he viewed as the boredom of normalcy. His primary reason for refusing medication was its dulling effect on his thinking, which prevented his work as a physicist. Although the Board found that he failed to appreciate the possibility that his condition could worsen, the respondent was never asked about this. Given that he acknowledged the negative impacts of his illness and the need for treatment, it was unreasonable to conclude without further inquiry that he was unable to appreciate that possibility.” Para 92.

“Putting aside this scant evidentiary basis, Professor Starson was never asked at the hearing whether he understood the possibility that his condition could worsen without treatment. The presumption, of course, is that a patient has the ability to appreciate the consequences of a treatment decision. The onus is not on Professor Starson to prove this ability. As noted above, Professor Starson was alert to the presence of a mental condition and the need to be in hospital to treat that condition. In light of his awareness of the need for treatment, it was unreasonable for the Board to conclude, without further inquiry, that the respondent failed to appreciate the possibility that his condition could worsen.” Para. 105.

“A patient's capacity may fluctuate over time. The Board's decision is specific to the patient's capacity at the time of the hearing. A finding that Professor Starson is capable may have an important effect on future treatment decisions. If he subsequently becomes incapacitated, the attending physician needs consent to treatment from his substitute decision-maker: see s. 10(1)(b) of the Act. If the substitute decision-maker knows of a prior capable wish that is applicable to the circumstances, consent must be given or refused in accordance with that wish: s. 21. Consequently, the Board's previous determination that Professor Starson was capable may be relevant to whether he had expressed wishes that are applicable to future circumstances. If so, he has the right to have that capacity recognized in law so that sufficient recognition may be accorded to any wishes expressed at that time.” Para. 118.

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