Sep 11, 2020

Starson v Swayze, 2003 SCC 32

Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722

CONTENT WARNING: This post contains discussions of psychiatric hospitals, involuntary detention, forced treatment, bipolar disorder and schizophrenia.

Background.

Professor Starson (born Scott Jeffery Schutzman) was, by all accounts, a brilliant self-taught physicist. He had frequently been in and out of mental institutions in the US and Canada since 1985. He has been diagnosed with different mental disorders but most often with bipolar disorder. At the time of this case, he had most recently been admitted to hospital after being found not criminally responsible for making death threats and the Ontario Review Board ordered his detention for 12 months. Starson’s physicians proposed a treatment including multiple types of medication. He refused to take it.

The attending physician found him not capable of deciding whether to reject or accept the proposed medical treatment. The Ontario Health Care Consent Act (“HCCA”) permits a person to be treated without consent if they lack capacity. Starson appealed to the Ontario Consent and Capacity Board for a review of the physician’s decision. The Board confirmed the physician’s decision, but was overturned by the Superior Court of Justice on Judicial Review. The supervising physician appealed up to the appeal to the Supreme Court.

Verdict: Appeal dismissed. The findings of the Superior Court were upheld. The Board misapplied the statutory test for capacity and improperly substituted its own opinion of Starson’s best interests. Starson had the capacity to make his own decisions regarding his healthcare.

Why was this case important?

This case was a landmark decision because it affirmed, in the highest court in Canada, the right of an individual to refuse medical treatment even if a medical professional thinks it is not in their best interest to do so. The only thing that matters is if they have the capacity to appreciate the consequences of their refusal.

The Consent and Capacity Board’s mandate is to judge individuals solely on their capacity to accept or reject treatment. In this case, not only did they stray from this mandate by deciding to act in Starson’s best interests, they also misinterpreted the test for capacity in the HCCA.

Capacity to consent to or refuse treatment.

Capacity is narrowly defined in section 4(1) of the HCCA. A person is presumed capable to decide to accept or reject medical treatment. The attending physician must prove the patient is incapable. This must be done on a balance of probabilities, meaning they must convince the judicial actor that it is more likely true than not. As a result, patients with mental disorders are presumptively entitled to make their own treatment decisions.

Capacity involves two criteria:

  • A person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information.
  • A person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.
  • To satisfy these criteria, a patient does not need to agree with the diagnosis of their physician in order to apply the relevant information. Psychiatry is not an exact science and differences in opinion are possible and expected. A patient needs to only demonstrate that they have a mental “condition” and be able to recognize the possibility he is affected by that condition. They do not need to agree this condition is an “illness” or otherwise view it in negative terms.

    The patient also needs to have the ability to appreciate the consequences of a decision. That does not mean they need actual appreciation of those consequences. They only need to understand the nature of the proposed treatment, the benefits and risks, alternative courses of action, and the expected consequences of not having the treatment. If they appreciate these parameters, regardless of how their evaluation of the information might vary from the physician’s, they have the ability to appreciate the decision.

    Impact and aftermath.

    According to CanLII, Starson v Swayze has been cited by over 1600 court and tribunal cases, including 208 courts and 47 appeal courts. The majority of the remaining cases took place at provincial Consent and Capacity Boards.

    The decision was viewed by many in the legal community as a victory for Starson and other psychiatric patients, but by May 2005 Professor Starson had been continuously held against his will in Ontario psychiatric hospitals for nearly seven years without treatment. Starson's psychiatrists could involuntarily detain him but were unable to administer medication until the Supreme Court resolved the capacity issue.

    The BC Schizophrenic Society (BCSS) questions whether the decision really was a victory for Starson. Starson's mental health deteriorated without treatment after 2003. He developed paranoid delusions and his weight plummeted to 118 pounds. Fearing Starson's death was imminent, his psychiatrist once again assessed him as incapable of consenting to treatment. The Ontario Consent and Capacity Board confirmed this and Starson was administered antipsychotic medication. At this point he began to recover.

    You can read more of the BCSS' analysis of the case, and the laws surrounding it, here.