Dr. Russel Fleming
Appellant
v.
Professor Scott Starson a.k.a.
Scott Jeffery Schutzman
Respondent
and
Schizophrenia Society of Canada,
Centre for
Addiction and Mental Health, Mental Health Legal
Committee and Mental Health Legal Advocacy
Coalition
Interveners
Indexed as: Starson
v. Swayze
Neutral
citation: 2003 SCC 32.
File
No.: 28799.
2003: January 15;
2003: June 6.
Present: McLachlin
C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and
Deschamps JJ.
ON APPEAL FROM THE
COURT OF APPEAL FOR ONTARIO
Physicians and surgeons ---- Medical
treatment -- Consent ---- Ontario Consent and Capacity Board -- Patient
refusing consent to proposed medical treatment for bipolar disorder --
Physicians finding patient not capable of making treatment decision --
Board's confirmation of incapacity overturned on judicial review -- Whether
reviewing judge properly applied reasonableness standard of review to
Board's finding of incapacity -- Whether reviewing judge correctly found
that Board misapplied statutory test for capacity -- Health Care Consent
Act, 1996, S.O. 1996, c. 2, Sch. A.
Since 1985 the respondent has
frequently been admitted to mental institutions in the United States and
Canada and has most often been diagnosed as having a bipolar disorder. His
recent admission to hospital arose after he was found not criminally
responsible for making death threats and the OntarioReview Board ordered
his detention for 12 months. The respondent's physicians proposed
treatment for his bipolar disorder that included neuroleptic medication,
mood stabilizers, anti-anxiety medication and anti-parkinsonian medication.
The respondent refused to consent to this medication and the attending
physician found him not capable of deciding whether to reject or accept the
proposed medical treatment. The Ontario Health Care Consent Act
permits a person to be treated without consent on grounds of lack of
capacity, defined as a lack of the ability "to understand the
information that is relevant to making a decision about the treatment
. . . and to appreciate the reasonably foreseeable consequences
of a decision or lack of decision". The respondent applied to the
Ontario Consent and Capacity Board for a review of the physician's decision
and the Board's confirmation of incapacity was subsequently overturned on
judicial review at the Superior Court. The Court of Appeal upheld the
findings of the reviewing
judge.
Held (McLachlin C.J. and
Gonthier and LeBel JJ. dissenting): The appeal should be
dismissed.
Per Iacobucci,
Major, Bastarache, Binnie, Arbour and Deschamps JJ.: The Health
Care Consent Act presumes a person is capable to decide to accept or
reject medical treatment; therefore, patients with mental disorders are
presumptively entitled to make their own treatment decisions. The
presumption of capacity can be displaced only by evidence that a patient
lacks the requisite elements of capacity provided by the Act. Capacity
involves two criteria: first, a person must be able to understand the
information that is relevant to making a treatment decision and second, a
person must be able to appreciate the reasonably foreseeable consequences
of the decision or lack of one. The legislative mandate of the Consent and
Capacity Board is to adjudicate solely upon a patient's capacity and the
Board's conception of the patient's best interests is irrelevant to that
determination. The question under review, namely the Board's determination
of capacity, is a question of mixed fact and law: the Board must apply the
evidence before it to the statutory test for capacity. In the absence of
any error of law, this question is relatively fact-intensive. Applying the
pragmatic and functional approach to this question, it is clear that
reasonableness is the appropriate standard of
review.
In this case, the reviewing
judge applied the proper standard of review and correctly held that the
Board's finding was unreasonable. The Board's determination of incapacity
turned on two findings: that the respondent was in "almost
total" denial of a mental disorder, and that he failed to appreciate
the consequences of his decision. A careful review of the evidence
demonstrates that there is no basis for either of these findings.
Although the patient did not conceive of the condition as an illness, he
was quite aware that his brain did not function normally. There was also
no evidence that the proposed medication was likely to ameliorate the
respondent's condition. Moreover, the respondent appreciated the intended
effects of the medication. The Board's conclusion that treatment would
improve his chances at future review board hearings is entirely
speculative. There was no basis for the Consent and Capacity Board to find
that a possible benefit of treatment would be the resumption of the
respondent's work as a physicist. Lastly, the respondent was never asked
at the hearing whether he understood the possibility that his condition
could worsen without treatment. Consequently, there is no support for the
Board's ultimate finding of
incapacity.
In addition, the Board
misapplied the statutory test for capacity. The interpretation of this
legal standard is a question of law. No deference is owed to the Board on
this issue and a correctness standard of review is to be applied. Although
the Board found the respondent failed to appreciate the risks and benefits
of treatment, it neglected to address whether the reasons for that failure
demonstrated an inability to appreciate those risks and benefits.
Furthermore, the Board's reasons indicate that it strayed from its
legislative mandate, which was to adjudicate solely upon the patient's
capacity. The wisdom of the respondent's treatment decision is irrelevant
to that determination. The Board improperly allowed its own conception of
the respondent's best interests to influence its finding of
incapacity.
Per
McLachlin C.J. and Gonthier and LeBel JJ. (dissenting): The
Consent and Capacity Board properly applied the law and nothing in its
reasons suggests that it strayed from the question of the respondent's
capacity to make medical decisions on his own behalf. The Board's
preliminary expression of sympathy for the respondent's actual situation
was merely an expression of concern and does not show that the Board
focussed on the respondent's best interests rather than on his
capacity.
The issue in this case is not whether the Board's conclusion
was the best conclusion on the evidence, but rather whether it is among the
range of conclusions that the Board could reasonably have reached. Only if
the Board's conclusion is unreasonable having regard to the whole of the
evidence can it be set aside. Here, the Board's conclusion that the
respondent lacked capacity to make treatment decisions was firmly anchored
in the evidence and cannot be characterized as unreasonable. The Board's
finding that the respondent's denial of his illness was "almost
total" is amply supported in the evidence. While the Board never
suggested that the respondent denied all his difficulties and symptoms, it
did suggest, entirely accurately, that the respondent did not see his
symptoms and difficulties as an illness or a problem relevant to the
proposals for treatment. The Board was entitled to conclude from the
evidence that the respondent was in denial about his mental illness
generally, and not just about the specific diagnosis. This denial was
compounded by the respondent's inability, because of his delusional state
to understand the information relevant to making a treatment decision, as
required by the Act. There was also ample evidence to support the Board's
finding that the respondent was unable to appreciate the foreseeable
consequences of treatment and refusing treatment because he lacked the
ability to appreciate (1) the possible benefits of the proposed medication;
(2) the fact that absent medication it is unlikely he will ever return to
his previous level of functioning and his condition may continue to
deteriorate; and (3) the relationship between lack of treatment and future
dispositions by the Review Board. Given the evidence and the Board's
application of the correct legal tests, there is no basis upon which a
court of judicial review can set aside the Board's decision.
Cases Cited
By
Major J.
Distinguished: R.
v. Owen, 2003 SCC 33; referred to: T. (I.) v. L.
(L.) (1999), 46 O.R. (3d) 284; Fleming v. Reid (1991), 4
O.R. (3d) 74; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; Re
Koch (1997), 33 O.R. (3d) 485; U.E.S., Local 298 v. Bibeault,
[1988] 2 S.C.R. 1048; Canada (Director of Investigation and
Research) v. Southam Inc., [1997] 1 S.C.R. 748;
Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and
Surgeons of British Columbia, 2003 SCC 19; Law Society of New
Brunswick v. Ryan, 2003 SCC 20.
By McLachlin C.J.
(dissenting)
R. v. Owen, 2003
SCC 33; Khan v. St. Thomas Psychiatric Hospital (1992), 7 O.R. (3d)
303.
Statutes and Regulations Cited
Criminal
Code, R.S.C. 1985, c. C-46, Part XX.1, s. 672.54 [ad. 1991,
c. 43, s. 4].
Health Care Consent Act, 1996,
S.O. 1996, c. 2, Sch. A, ss. 1, 4(1), (2), 10(1)(b), 21,
70(2), 71(3), 73(2), 75, 80(1) [am. 2000, c. 9, s. 48], (9),
(10).
Mental Health Act, R.S.O. 1990, c. M.7,
s. 20(1)-(5).
Statutory Powers Procedure Act, R.S.O.
1990, c. S.22, s. 15(1).
Authors
Cited
Berg, Jessica W., et al., Informed Consent:
Legal Theory and Clinical Practice, 2nd ed. New York: Oxford
University Press, 2001.
Hoffman, Brian F. The Law of
Consent to Treatment in Ontario, 2nd ed. Toronto: Butterworths,
1997.
Macklin, Ruth. "Some Problems in Gaining Informed
Consent from Psychiatric Patients" (1982), 31 Emory L.J.
345.
Noyes, H. Pierre, and Scott Starson.
"Discrete Anti-Gravity". Department of Energy, Stanford
University, SLAC-PUB-5429. California: Stanford University,
1991.
Roth, Loren H., Alan Meisel and
Charles W. Lidz. "Tests of Competency to Consent to
Treatment" (1997), 134 Am. J. Psychiatry
279.
Weisstub, David N. Enquiry on Mental Competency:
Final Report. Toronto: Queen's Printer for Ontario,
1990.
APPEAL from a judgment
of the Ontario Court of Appeal (2001), 201 D.L.R. (4th) 123, 146 O.A.C.
121, 33 Admin. L.R. (3d) 315, [2001] O.J. No. 2283 (QL), dismissing an
appeal from a judgment of the Superior Court of Justice (1999), 22 Admin.
L.R. (3d) 211, [1999] O.J. No. 4483 (QL). Appeal dismissed,
McLachlin C.J. and Gonthier and LeBel JJ.
dissenting.
Leslie McIntosh and
Diana Schell, for the
appellant.
Anita Szigeti,
as amicus
curiae.
Daphne G. Jarvis
I> and Barbara J. Walker-Renshaw, for the intervener
Schizophrenia Society of
Canada.
Written submissions only by
Janice E. Blackburn and James P. Thomson,
for the intervener Centre for Addiction and Mental
Health.
Marshall A. Swadron and Aaron A. Dhir, for the interveners Mental Health
Legal Committee and Mental Health Legal Advocacy
Coalition.
Solicitor for the
appellant: The Attorney General of Ontario,
Toronto.
Solicitors appointed
by the Court as amicus curiae: Hiltz Szigeti,
Toronto.
Solicitors for the
intervener Schizophrenia Society of Canada: Borden Ladner Gervais,
Toronto.
Solicitors for the
intervener Centre for Addiction and Mental Health: Paterson MacDougall,
Toronto.
Solicitors for the
interveners Mental Health Legal Committee and Mental Health Legal Advocacy
Coalition: Swadron Associates,
Toronto.
PARAGRAPH N
UMBERING
The reasons are published in the SCR by order of
precedence and the paragraph numbering included in those reasons has been
prepared accordingly. For this case, the reasons will be published in the
following order:
McLachlin C.J. (Gonthier and LeBel JJ.)
[paras. 1 to 60]
Major J. (Iacobucci, Bastarache, Binnie, Arbour
and Deschamps JJ.) [paras. 61 to 120]
CITATION
Before
publication in the S.C.R., this judgment should be cited using the neutral
citation: Starson v. Swayze, 2003 SCC 32. Once the judgment is
published in the S.C.R., the neutral citation should be used as a parallel
citation: Starson v. Swayze, [2003] x S.C.R. xxx, 2003 SCC
32.
THE CHIEF JUSTICE --
I. Introduction
1 The issue in this case is
whether the Ontario Consent and Capacity Board acted unreasonably in
finding that Scott Jeffery Schutzman (who prefers to be called
"Professor Starson" or simply "Starson") is incapable
by reason of mental illness of consenting to treatment under the Health
Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the
"HCCA"). I agree with Major J. that the test for capacity
requires more than mere intellectual ability, and I agree on the standard
of review applicable to the Board's decision. However, I do not agree that
the Board's conclusion that Professor Starson lacked capacity to decide
what treatment he should receive was unreasonable. Unlike my colleague
Major J., I conclude that the Board applied the law correctly and that
there was ample evidence before the Board to support a finding of
incapacity. I would therefore allow the appeal.
2 Professor Starson is an
exceptionally intelligent man who in earlier years did remarkable work in
physics and still counts leading physicists among his friends. He suffers
from long-standing mental illness. He has been in and out of mental
hospitals in the United States and Canada, since at least 1985. His
illness has led to erratic behaviour; his tendency to utter death threats
against acquaintances and strangers has repeatedly brought him into
conflict with the criminal law and is the reason for his current detention.
Professor Starson entertains delusions of varying severity. He talks about
plans to run the "Starson Corporation" from inside his current
inpatient unit; insists that he is "leading on the edge of efforts to
build a starship"; claims to be a world-class skier and arm-wrestler;
and has asserted that he is the greatest scientist in the world and
communicates with extra-terrestrials. While Professor Starson would not
agree, his illness appears to have progressed and his condition has
deteriorated.
3 Professor Starson has received
medication for his mental illness in the past. It successfully reduced his
delusions. But it had side effects that Professor Starson did not like.
The most serious of these was Professor Starson's complaint that the
medication dulled his mind and diminished his creativity. As a consequence
of his past experiences with medication, Professor Starson has set his mind
against all further treatment by medication. He categorically asserts that
"no benefits exist[] for medication", and refuses all treatment
except psychoanalysis.
4 Professor Starson's doctors
have told him that new medications are available which promise much better
results, with reduced negative side effects. They have also explained to
him that without medication, his condition is likely to continue to
deteriorate. Professor Starson, however, continues to refuse treatment by
medication. Professor Starson's doctors have concluded that in his present
condition, he does not understand the benefits of treatment with the new
medications, nor does he appreciate that without treatment his condition
will probably continue to deteriorate. Faced with this conclusion, which
would open the door to imposed medication, Professor Starson applied to the
Consent and Capacity Board for a determination that he is capable under the
HCCA and can therefore refuse treatment. The Board found that
Professor Starson is not capable. On appeal, Molloy J. set aside the
Board's decision as unreasonable. The Ontario Court of Appeal confirmed
her decision.
II. Standard of
Review
5 I agree
with my colleague Major J. that the Board's interpretation of the law is
reviewable on a standard of correctness. On the application of the law to
the facts, I agree that the Board's decision is subject to review for
reasonableness. The Legislature assigned to the Board the task of hearing
the witnesses and assessing evidence. Absent demonstrated
unreasonableness, there is no basis for judicial interference with findings
of fact or the inferences drawn from the facts. This means that the
Board's conclusion must be upheld provided it was among the range of
conclusions that could reasonably have been reached on the law and
evidence. As Binnie J. states in R. v. Owen, 2003 SCC 33 (released
concurrently), at para. 33: "If the Board's decision is such that it
could reasonably be the subject of disagreement among Board members
properly informed of the facts and instructed on the applicable law, the
court should in general decline to intervene." The fact that the
reviewing court would have come to a different conclusion does not suffice
to set aside the Board's
conclusion.
III. The Legal
Definition of Capacity
6 The HCCA confronts the
difficult problem of when a mentally ill person may refuse treatment. The
problem is difficult because it sets in opposition fundamental values which
we hold dear. The first is the value of autonomy -- the ability of each
person to control his or her body and consequently, to decide what medical
treatment he or she will receive. The second value is effective medical
treatment -- that people who are ill should receive treatment and that
illness itself should not deprive an individual of the ability to live a
full and complete life. A third value -- societal protection -- comes into
play in some cases of metal illness. Where the mentally ill person poses a
threat of injury to other people or to him-- or herself, it may be
justified to impose hospitalization on the basis that this is necessary in
the interests of public safety: see s. 672.54 of the Criminal Code,
R.S.C. 1985, c. C-46, which permits courts and Boards to impose
hospitalization on an accused person found not criminally responsible on
account of mental disorder, and ss. 20(1)-(5) of the Ontario Mental
Health Act, R.S.O. 1990, c. M.7, which permit the involuntary
hospitalization of mentally ill persons under certain circumstances.
Professor Starson was under a twelve-month hospital detention order
pursuant to these Criminal Code provisions at the time of the
application, having been found not criminally responsible for making death
threats. However, the application with which we are concerned did not rely
on public safety, so this value does not affect this appeal.
7 Ordinarily at law, the value of
autonomy prevails over the value of effective medical treatment. No matter
how ill a person, no matter how likely deterioration or death, it is for
that person and that person alone to decide whether to accept a proposed
medical treatment. However, where the individual is incompetent, or lacks
the capacity, to make the decision, the law may override his or her wishes
and order hospitalization. For example, young children generally lack
capacity to make medical decisions because of their age; thus their parents
or guardians, not they, decide what medical treatment they should receive.
Where mental illness deprives a person of the ability to make a decision
about medical treatment, the law may permit that person's wishes to be
overridden. This result flows from s. 4(1) of the HCCA.
8 There is no easy answer to the
question of when a mentally ill person should be held incapable of making
decisions concerning his or her medical treatment. Different societies
have drawn different lines at different times. The applicable law in
Ontario permits a mentally ill person to be hospitalized without consent on
grounds of public safety (Criminal Code and Mental Health
Act, supra) and lack of capacity (s. 4(1) HCCA),
defined as a lack of the ability "to understand the information that
is relevant to making a decision about the treatment . . . [and] to
appreciate the reasonably foreseeable consequences of a decision or lack of
decision". Moreover, as discussed in greater detail below, the
definition of capacity offered in the HCCA is broad; incapacity is
not confined to lack of rational ability to understand, but extends to lack
of ability to "appreciate" or judge.
9 The Ontario Legislature's
decision to permit a mentally ill person's decision to refuse treatment to
be overridden where public safety is not threatened reflects the value of
promoting effective medical treatment of people suffering from mental
illness. The HCCA's definition of capacity offers a way out of the
dilemma that is created when treatment for an illness is dependent on
consent, which in turn is not forthcoming because of the illness. The way
out of the dilemma lies in recognizing that the focus should be not only on
consent but on capacity to consent. The policy of the law is that
where a person, due to mental illness, lacks the capacity to make a sound
and considered decision on treatment, the person should not for that reason
be denied access to medical treatment that can improve functioning and
alleviate suffering. Rather, that person's incapacity should be recognized
and someone else appointed to make the decision for him or her.
10 At the same time, the
HCCA preserves the value of individual autonomy. Mental illness is
not conflated with incapacity. Mental illness without more does not remove
capacity and autonomy. Only where it can be shown that a person is unable
to understand relevant factors and appreciate the reasonably foreseeable
consequences of a decision or lack of decision can treatment be
imposed.
11 The
HCCA represents a careful and balanced response to the problem of
accommodating the individual autonomy of the mentally ill person and the
aim of securing effective treatment for mentally ill people. It says that
when a mentally ill person lacks the capacity to sufficiently understand
and appreciate his or her situation, authorized treatment may be imposed.
This response is doubtless influenced by increased appreciation of the
suffering and loss occasioned by non-violent mental illness, and the
ever-expanding treatment options available as our understanding of mental
illness increases. Whatever the explanation, the fact is that the
Legislature has chosen a test based on a nuanced conception of incapacity
that includes both the ability to understand and appreciate, to be applied
by the specialized Board. The courts must respect this choice.
12 Against this background, I
come to the test for incapacity. Section 4(1) of the HCCA
provides:
4. (1) A person is capable with respect to a
treatment, admission to a care facility or a personal assistance service if
the person is able to understand the information that is relevant to making
a decision about the treatment, admission or personal assistance service,
as the case may be, and able to appreciate the reasonably foreseeable
consequences of a decision or lack of decision.
13 I would summarize the four
important points as follows:
1. The
person ispresumed to be competent and the standard of proof for a finding
of incapacity is a balance of
probabilities.
2. The test relates to
the capacity or ability to understand and
appreciate,
not actual understanding and
appreciation.
3. The first component
of the test for capacity is that the person be "able to understand the
information that is relevant to making a decision about the treatment"
at issue.
4. The second component of
the test is that the person be "able to appreciate the reasonably
foreseeable consequences of a decision or lack of decision".
14 The second point, that the
test relates to a person's capacity or ability to
understand and appreciate, is reflected by the use of the word
"able" in relation to "understand" and
"appreciate". It means that a person cannot be found to lack
capacity on the basis of lack of information about his or her illness or
the fact that he or she holds contrary views to a prescribed diagnosis:
see Professor D.N. Weisstub, Enquiry on Mental Competency: Final
Report (1990), at p. 249.
15 While the difference between
ability to understand and appreciate and actual understanding or
appreciation is easily stated, it may be less easy to apply in practice.
Capacity is an abstract concept. The primary means of ascertaining
capacity or ability, in any context, is to look at what an individual in
fact says and does. It follows that it is not an error for the Board to
inquire into the actual understanding or appreciation of the person in
question. At the same time, the fact that the person's actual conclusion
does not agree with that of other people, for example medical experts, does
not in itself demonstrate lack of understanding or capacity. In this
connection, Professor Weisstub, supra, App. V, at pp. 421-22
states:
The test clearly refers to the
ability of the patient, although there is a strong feeling that the
distinction between actual understanding and the ability to understand
one's situation is merely a theoretical point. While it may generally be
true that actual understanding is an appropriate guide of the ability to
understand, the distinction could still be important, for example, for
patients who would be able to understand their situation if sedated
somewhat less, or, of course, for those who have not received complete
information about their situation.
16 The first component of the
test for capacity is that the person be "able to understand the
information that is relevant to making a decision about the treatment"
at issue. The person must be capable of intellectually processing the
information as it applies to his or her treatment, including its potential
benefits and drawbacks. Two types of information would seem to be
relevant: first, information about the proposed treatment; and second,
information as to how that treatment may affect the patient's particular
situation. Information relevant to the treatment decision includes the
person's symptoms and how the proposed treatment may affect those symptoms.
The patient must be able to acknowledge his or her symptoms in order to be
able to understand the information relevant to a treatment decision.
Agreement with a medical professional's diagnosis per se, or with
the "label" used to characterize the set of symptoms, is not,
however, required.
17 The second component of the
test is that the person be "able to appreciate the reasonably
foreseeable consequences of a decision or lack of decision". The
appreciation test has been characterized as more stringent than a mere
understanding test, since it includes both a cognitive and an affective
component: R. Macklin, "Some Problems in Gaining Informed Consent
from Psychiatric Patients" (1982), 31 Emory L.J. 345. To be
capable, a patient must be able not only to understand the relevant
information, but also to "appreciate the reasonably foreseeable
consequences of a decision or lack of decision": s. 4(1) HCCA.
"An understanding criterion focuses on a patient's ability to acquire
information, while appreciation focuses on the patient's ability to
evaluate information": Berg, et al., Informed Consent: Legal Theory
and Clinical Practice (2d ed. 2001), at p. 102. Appreciation seizes
upon the ability of the person who is able to understand the facts (the
first component) to weigh or judge and thus evaluate the foreseeable
consequences of accepting or refusing treatment (the second component).
Arbour J.A. (as she then was) described this distinction as follows in
Khan v. St. Thomas Psychiatric Hospital (1992), 7 O.R. (3d)
303(C.A.), at p. 314 (citing a Review Board's comment): "there are
situations where a person may understand in an intellectual sense the
subject-matter in respect of which consent is requested and further
understand the nature of the illness for which treatment is proposed and
understand the treatment proposed, but his or her ability to appreciate the
same as it relates to themselves may be impaired by the mental
disorder".
18 Commentators have identified
three "common clinical indicators" of a person's ability to
appreciate the consequences of accepting or declining treatment:
"whether the person is able to acknowledge the fact that the condition
for which treatment is recommended may affect him or her; whether the
person is able to assess how the proposed treatment and alternatives,
including no treatment, could affect his or her life or quality of life;
[whether] the person's choice is not substantially based on a delusional
belief": B. Hoffman, The Law of Consent to Treatment in Ontario
(2d ed. 1997), at p. 18. These indicators provide a useful framework for
identifying what "ability to appreciate" means in concrete
terms.
19 Like
understanding, appreciation does not require agreement with a particular
conclusion, professional or otherwise. A patient may look at the pros and
cons of treatment and arrive at a different conclusion than the medical
experts. Nor does it amount to a "best interests" standard. A
patient who is capable has the right to refuse treatment, even if that
treatment is, from a medical perspective, in his or her best interest. It
is crucial to guard against interpreting disagreement with a particular
diagnosis or proposed treatment plan as itself evidence of incapacity. But
just as it is important to protect patients' capable wishes to refuse
treatment, so is it important to ensure that patients who are not capable
of making treatment decisions receive appropriate
treatment.
IV. Application to the
Facts
20 The
Consent and Capacity Board, composed in this case of a psychiatrist, a
lawyer and a community member, heard from Professor Starson, two of his
physicians and his solicitor. It also read letters written by Professor
Starson's friends and acquaintances affirming their belief in his mental
capacity. Based on this evidence, the Board found: (1) "[C]lear and
cogent evidence was presented that the patient is suffering from a chronic
mental disorder, likely a bipolar disorder with psychotic features"
(TO-98/1320, January 24, 1999 at p.15); (2) Professor Starson's denial that
he has any type of mental illness "is almost total" (p.16); (3)
without acknowledgment that he has some type of mental disorder and that
his behaviour is being affected by that disorder, Professor Starson
"cannot understand the information provided to him . . . because he
cannot relate it to his particular disorder" (p.17); (4) Professor
Starson "cannot understand the potential benefits of the
medication" proposed (p.17), and "seems unable to appreciate that
efforts will be made to reduce the incidence of past side effects by using
more benign medications" (p. 18); (5) "[w]ithout some treatment,
it is unlikely [Professor Starson] will ever return to his previous level
of functioning" (p.17); to the contrary, "the literature is clear
that an untreated Bipolar Disorder is likely to result in further
deterioration over time" (p.17).
21 From all this, the Board
concluded that, despite Professor Starson's high level of cognitive
functioning, his manic and delusional symptoms prevent him from being able
to understand the relevant information and to appreciate the nature of his
condition and the reasonably foreseeable consequences of refusing the
proposed course of treatment.
22 The first question is whether
the Board applied the proper legal test. Here the Board was required to be
correct. In my view, it was. First, the Board's reasons make it clear
that it was considering Professor Starson's capacity, not the wisdom of his
decision to refuse treatment. The Board referred to Professor Starson's
actual understanding and acknowledgement. But this was in relation to the
ultimate question of whether he was able to understand his illness
and the benefits and disadvantages of medication. The Board reasoned that
the absence of understanding and acknowledgement of his condition rendered
Professor Starson unable to understand the factors relevant to making a
decision about treatment and unable to appreciate the consequences of lack
of treatment. This was not an error, as Molloy J. suggested ((1999), 22
Admin. L.R. (3d) 211 (Sup. Ct.) at para. 74). Rather, it followed the
accepted approach to ascertaining ability: see Hoffman, supra, at p.
18. As for the Board's preliminary expression of sympathy for Professor
Starson's actual situation, this should be taken for what it is -- an
expression of concern. It does not show that the Board focussed on the
wisdom of refusing treatment rather than on Professor Starson's
capacity.
23 The
remaining question is whether the Board's conclusion that Professor Starson
lacked capacity under s. 4(1) of the HCCA was unreasonable. The
issue here is not whether the Board's conclusion was the best conclusion on
the evidence. It is rather whether it is among the range of conclusions
that the Board could reasonably have reached. Only if the Board's
conclusion is unreasonable, having regard to the whole of the evidence, can
it be set aside.
24 It
is said that the Board acted unreasonably: (1) in concluding that Professor
Starson's denial of his illness was "almost total" and (2) in
concluding that Professor Starson lacked the ability to appreciate the
consequences of refusing treatment. These errors are said to render the
Board's ultimate conclusion of incapacity unreasonable. In fact, the
Board's conclusions on these matters find ample support in the
evidence.
A. Professor Starson's
Denial of his Illness
25 I turn first to the Board's
conclusion that Professor Starson's denial of his illness was "almost
total". Before addressing the question of what the Board found in
this respect and whether the record supported it, it should be pointed out
that a conclusion of denial or lack of acknowledgement of one's condition
is one of the three "common clinical indicators" of inability to
appreciate the consequences of accepting or declining treatment under s.
4(1) of the HCCA: Hoffman, supra. The Board properly
recognized thisand grounded its conclusions on Professor Starson's
incapacity in large part on his inability to acknowledge the condition for
which treatment was recommended.
26 With respect, Molloy J.,
whose conclusions were endorsed by the Court of Appeal and by my colleague
Major J., seems to have misunderstood the Board's assertion that Professor
Starson's denial of his illness was "almost total". Molloy J.
took this to mean that he did not accept that he had any mental problems of
any sort. Interpreting the phrase in this manner, Molloy J. concluded that
since the evidence shows some awareness of mental abnormality, the Board
erred.
27 The evidence
of Professor Starson's physicians, and in particular Dr. Swayze, was
that Professor Starson was in denial of his disorder. But this evidence
was not intended to convey that Professor Starson denied all aspects of his
mental illness. The Board acknowledged that Professor Starson was aware of
the fact that his mind functioned differently. Professor Starson
acknowledged in the Board hearing that he had "exhibited the symptoms
of these labels that you give". He realized that he had mental
problems and had difficulty dealing with others, and indeed was prepared to
accept psychotherapy to address these problems. What the Board found was
that he denied suffering from a mental disorder: "Despite overwhelming
evidence to the contrary he continues to deny that he has a mental
disorder". It reached this conclusion in the following context, at
pp. 16-17:
The patient's denial is almost total. He did concede when
questioned by Dr. Swayze, that he might have had some difficulties, but
these have not led to any threats towards others. This was contrary to the
evidence presented and his acknowledgment to Dr. Swayze when he was
questioned, was in contradiction to total denial in the past to both Dr.
Swayze and Dr. Posner of the presence of any disorder. Thus, even the
small concession to Dr. Swayze of some past difficulties when questioned
did not seem to be a significant acknowledgement of the existence of the
illness.
Accepting that a patient
"should not simply be deemed incapable because he or she does not
agree with the diagnosis," the Board correctly responded that
"the issue is more complex" and what is required is "that
the patient understand that he or she has a mental disorder of some type,
if the evidence establishes the presence of a disorder" (p. 16). It
was only then and in this sense, that the Board stated that "[t]he
patient's denial is almost total," expressly adding in the same
sentence that Professor Starson "did concede ... that he might have
had some difficulties, but [that] these have not led to any threats towards
others" (p.16).
28 The Board's appraisal,
including its conclusion of "almost total" denial of a mental
disorder, is fully supported by the record. The Board never suggested that
Professor Starson denied all his difficulties and symptoms; indeed, it
expressly acknowledged this. The Board did suggest, entirely accurately,
that Professor Starson did not see his symptoms and difficulties as an
illness or a problem relevant to the proposals for treatment.
29 I cite only a few excerpts
from the record to show that evidence existed upon which the Board could
reasonably have concluded Professor Starson was in denial about his mental
disorder. His doctors testified that:
Dr.
Swayze:
-"[H]is understanding was
that indeed, he did not and has not suffered from any psychiatric disorder,
particularly not from a mood or psychotic
disorder".
-Professor Starson
claims that "[h]e has no
disorder".
Dr. Posner:
-He
does not understand "that he has a mental
illness".
-He did "not
understand in any way, shape or form that he had a mental
illness...".
-He has exhibited a
"complete lack of understanding of him having his own mental
illness".
30 Professor Starson refused to
answer directly whether he was mentally ill or not. However, his evidence
at other points supports denial of mental illness: "I did have mental
problems 13 years ago that were difficult, almost impossible for me to
handle. What I differ on is that the cause of these problems was not a
mental illness". His medical charts indicated that, when asked about
his opinion as to whether he suffered from a disorder, he responded "I
have no opinions. You are a religion. I have the perfect scientific mind.
Only you people say I have an illness".
31 The Board was amply entitled
to conclude from this evidence that Professor Starson was in denial about
his mental illness generally, and not just about the specific
diagnosis.
32 This
denial was compounded by Professor Starson's refusal to acknowledge any
benefits of medication whatsoever, even in the abstract. Although I base
my opinion that the Board's conclusion was reasonable primarily on
Professor Starson's clear lack of appreciation of the foreseeable
consequences of refusing treatment, he also appears to have lacked the
ability to understand the information relevant to making a treatment
decision, as required by the HCCA. Like a cancer patient advised to
undergo chemotherapy or a diabetic advised to inject insulin, a mentally
ill patient advised to take antipsychotic medication must be able to
understand its benefits and drawbacks in order to be deemed capable of
making a treatment decision. This, in turn, requires a willingness to
consider, whether or not he or she chooses to follow, the scientific
evidence regarding its effectiveness. The record suggests that Professor
Starson not only refused to do this, but was in fact unable to because of
his delusional state.
33 By way of example, I cite the
following passages from the
record:
Dr.
Swayze:
-"We then attempted to
review, or I attempted to review the risks and benefits of those
medications and was, once again, quickly interrupted: All chemicals are
rejected with the understanding by myself that that inferred that there
were no medications which were amenable or appropriate for a bipolar
disorder or psychotic episode and that there was no consideration, that
those would be appropriate under any circumstances.
I've attempted
to focus on the issue of the benefit of those medications. "None
exist." Then canvass the area of risk involved in rejecting
medications and was told, in no uncertain terms, that once again the
medications were chemicals. They should be rejected and that there was no
risk of rejecting them, as they would, in fact, inflict injury upon any
person foolish enough to accept them". [Emphasis
added.]
Dr.
Posner:
-"I wanted to try to
appeal to his formerly objective side by explaining to him that two
patients [he said he knew who died from taking Haldol] does not make a
fact. Two patients are two observations. You know, in science, when we're
trying to gather data in psychiatry, when we're trying to gather data on
the effects and the mal-effects of neuroleptic medications or anything, we
look at population data, we look at collections of many different reports
of adverse side effects. And yes, you could find any medication at all
that had two deaths associated with -- although one might argue, so close to home -- he might have overemphasized those in his own mind.
But he shocke
d me to pieces on that one, metaphorically, that is and [he] explained
that Haldol was a toxic agent. It killed people. We killed people, he
went on, with Haldol. This was part of the religion or -- the religion of
psychiatry's way of... And he didn't really go on after that. We sort
of finished things up.
But it convinced me that not only did he not
understand in any way, shape or form that he had a mental illness, but that
it was impossible at this point to explore with him benefits of
medications obviously because that would be tied to an understanding of
the need to take them, or a treatment go. But also to explore in any
way side effects, negative adverse effects". [Emphasis
added.]
34 The Board
could reasonably have concluded from the evidence before it that Professor
Starson, despite his high intelligence in the area of physics, was unable
to understand the information relevant to a treatment decision involving
his mental health.
B.Professor
Starson's Inability to Appreciate the Consequences of Refusing
Treatment
35 Nor
did the Board err in its conclusion that Professor Starson lacked the
ability to appreciate the reasonably foreseeable consequences of accepting
or refusing treatment. Here again, Molloy J.'s analysis, with respect,
seems to misread the Board's conclusion as asserting that the proposed
medications promised a cure and Professor Starson's resumption of
scientific work, and then to argue that the record does not support this.
My colleague Major J. likewise emphasizes at para. 98 that it was unclear
whether the proposed treatment would "facilitate a `normal functioning
level'".
36 This,
with respect, misses the point. The issue is not the efficacy of the
proposed treatment or what would be in the patient's best interests, but
the capacity of Professor Starson to make decisions about treatment under
s. 4(1) of the HCCA -- whether Professor Starson is able "to
appreciate the reasonably foreseeable consequences of a decision or lack of
decision". As a practical matter, capacity hearings will arise when
doctors believe that treatment would improve a patient's functioning.
However, the issue in the hearing is not the merits of medication or other
treatment, but the patient's ability to understand and appreciate the
benefits and drawbacks of treatment or lack thereof.
37 There was ample evidence in
the record to support the Board's conclusion that Professor Starson was
unable to appreciate the reasonably foreseeable consequences of accepting
or refusing treatment. I cite some of the evidence
below:
Dr.
Swayze:
-"[He] does not
understand the ramifications on himself, does not appreciate that there are
treatment options which are legitimate, nor does he appreciate the risks of
rejecting those".
Dr.
Posner:
-"I feel he is not
capable to make consent -- to make treatment decisions on his own behalf in
any way, shape or form. Professor Starson cannot even be engaged in a
discussion of a mental illness as it pertains to him. He can't be engaged
in the use of medications as they pertain to
him".
-"[A]ll of the above
virtually rules out discussing the consequences or appreciating the
consequences of not taking
medications".
-"...Professor
Starson, despite the fact that he may be able to reiterate and he's got a
good memory, I don't have any doubt, CPS-like side effects, I don't believe
that he has any appreciation whatsoever of what those side-effects could
mean interms of him. And I don't think he has the ability to engage in a
discussion of any sort that would allow him to become more knowledgeable in
that area. I mean, at least argue on a rational basis. No, I don't think
he could do that. So I don't think he meets any of the sort of criteria
for capability of making treatment decisions and I don't think he's -- I
don't even think he's close on any of
them".
- "...I can say that
none of that intelligence [in physics] bears any -- has any role in his
understanding -- has not contributed to his understanding of mental
illness. In fact, in an indirect way, all that intelligence may be
reinforcing his delusional system. He may be using it to perpetuate
things. Maybe at a faster or more impressive rate than the average
delusional patient.
One of the things about delusions is that when
you develop these kinds of illnesses, you can't effectively evaluate what
happens on around you, so you begin to construct your own reality.
Sometimes you borrow it from the Bible, from science fiction, from whatever
source. Sometimes, especially if you're smart enough, if you've got enough
raw intelligence, you build it yourself, perhaps on a skeleton of something
else. And I think that's where the intelligence has gone. I don't
think it's certainly gone into understanding that he has a mental
illness". [Emphasis added.]
38 These medical conclusions
were well-founded in more particular evidence. The Board concluded that on
the evidence before it, Professor Starson was not able to appreciate the
consequences of deciding to refuse treatment because of his lack of ability
to appreciate three things: (1) the possible benefits of the medication;
(2) the fact that absent medication it is unlikely he will ever return to
his previous level of functioning and his condition may continue to
deteriorate; and (3) the relationship between lack of treatment and future
dispositions by the Ontario Review Board (under the Criminal Code,
Part XX.1). I will discuss each of these conclusions in turn, showing how
the evidence supported them.
39 The first finding is that
Professor Starson lacked the ability to appreciate "the possible
benefits" of treatment. The Board correctly framed the issue not in
terms of whether Professor Starson accepts that a particular treatment will
benefit him (as Molloy J. suggests) but whether he is able to appreciate
"the possible benefits" of treatment. The Board's reasons for
concluding that Professor Starson lacked this ability go back to his
inability to understand and acknowledge his condition. One cannot
appreciate the benefits of treatment unless one understands and appreciates
the need for treatment. As a result of this inability Professor Starson
simply cannot, to use the Board's phrase, "relate [the treatment] to
his particular disorder" (p. 17). There are two aspects here: the
ability to appreciate and the possible benefits of treatment. I have
already reviewed the evidence on lack of ability to appreciate treatment
matters. On the second aspect, Molloy J. correctly points out that the
record does not indicate promises by Professor Starson's doctors of a total
return to normal functioning. There was evidence before the Board showing
a reasonable prospect of improvement with the proposed treatment, with
fewer negative side effects. The fact that doctors did not guarantee a
cure did not make unreasonable the Board's conclusion that Professor
Starson was incapable of appreciating the reasonably foreseeable
consequences of treatment. There was ample evidence that the newer
medications might yield positive benefits with fewer negative side effects.
The following are unchallenged references to the evidence, as reproduced by
the Board:
-"Doctor Swayze
emphasized that there is a window of opportunity at last to treat the
patient" (p. 6).
-"[I]t was
[Dr. Swayze's] proposal to treat the patient with newer neuroleptic
(antipsychotic) medication which would produce less side effects than in
the past" (p. 7).
-"When it
was suggested that the patient was concerned that the medication would slow
down his brain, [Dr. Swayze] responded it was not his intention to blunt
the patient's thinking beyond what was required to stabilize his
condition" (pp.
7-8).
-"[O]ther than when Haldol
(an older neuroleptic medication) had been administered there had never
been an adequate trial of any other medication" (p.
9).
-Dr. Swayze "did not believe
that the medications would not help because there were volumes of evidence
in the literature o[n] the efficacy of treatment" (p. 8).
40 I conclude that the record
amply supports the Board's conclusion that Professor Starson was incapable
of appreciating the foreseeable benefits of treatment by more modern
medication.
41 Secondly, the Board concluded
that Professor Starson was unable to appreciate the likelihood that without
treatment his mental condition would worsen.
42 My colleague Major J.,
accepts that there was evidence before the Board from Dr. Posner supporting
this conclusion although he characterizes it as "scant": (para.
105). He also argues that the fact that Professor Starson was not
questioned on this at the hearing precluded the Board from concluding that
he did not appreciate the risks of non-treatment: (para. 105). With
respect, I cannot agree on either count.
43 Characterizing the evidence
as "scant" does not detract from the fact that the evidence was
before the Board and provided its inferences were reasonable, the Board was
entitled to rely on it. In fact, a review of the record shows that both
doctors who testified shared the view that without treatment, Professor
Starson's condition was likely to deteriorate, and that there was no
contrary evidence. I reproduce only some of the
evidence.
Dr.
Swayze:
- "I could only
characterize [this as] ... essentially an unremitting
disorder".
-"My worry is
that this [condition] will remain unremitting, that there will be
fluctuating degrees, however his baseline will not return, i.e. prior
degree of functioning and stability that likely has not been there since
the early '80s".
- "[T]his
charting is ominous. It would suggest to me a chronic, unremitting course
which likely would be a future for Professor Starson, should he not receive
treatment".
Dr.
Posner:
-"...I don't agree that
the disorder has been a steady psychotic state. In fact, it's been a
progressive psychotic state and there are a lot of very good pieces of
evidence to support
that".
-"What [this threat
to a hospital worker] means to me is that the illness has taken on another
dimension. If provocation of ... that objectively small or innocent of a
degree could have evoked that kind of explosion, that concerns me, because
ten or fifteen years ago, I don't believe it would
have".
-"[T]he literature
from bipolar disorder shows that untreated . . . mania ... can and often
does progress in severity, so it's not a question of maintaining the status
quo. If you sit still and do nothing, harm will happen at a physiologic
level, evidenced by the worsening of his state, as perceived by
others".
44 As
related by the Board, Dr. Posner testified that Professor Starson's
illness had been "steadily progressing" since 1994. Prior to
1994, the patient had produced a number of publications which
"appeared credible". After 1995, "there were questions as
to the validity of his references suggesting that his thinking had
changed". Dr. Posner felt that "the illness had progressed from
a hypomanic state to one of greater irritability". Dr. Posner
then stated that an individual "who could have made an enormous
contribution to society was now lost in a psychotic world" (pp.
8-9).
45 Dr. Posner
testified that colleagues had noted deterioration and that in general
"untreated bipolar disorder tends to deteriorate with time" (p.
9). This evidence, coupled with the evidence of Professor Starson's denial
of illness, provided an ample basis for the Board's conclusion that
Professor Starson was unable to appreciate the likelihood of deterioration
absent treatment. The fact that Professor Starson was not questioned
directly on the relationship between treatment and future deterioration
does not detract from the strength of this evidence. Because Professor
Starson denied any negative impact of his mental condition, questioning him
about further deterioration would have been pointless. It is clear on the
evidence that Professor Starson simply adheres to the view that he
continues to function well without medication, contrary to all the
objective evidence.
46 In addition to his
physicians' testimony, there is evidence from Professor Starson himself
supporting the Board's conclusion that he does not appreciate that failure
to receive treatment will likely result in prolonged hospitalization and
further deterioration of his mental condition. Professor Starson insisted
that, without treatment, he would "go back to [his] life even better
than it was before". He dismissed any suggestion that his
hospitalization could be prolonged by either the Consent and Capacity Board
or the Review Board as a "hypothetical situation that will not
occur". His unresponsiveness is palpable throughout the record; when
Dr. Swayze asked him about his manic symptoms, he replied: "they might
not be beneficial for somebody else, but no one is doing what I'm doing.
I'm leading the edge. I'm trying to define physics that will eventually
enable us to build a starship. Okay? That's what anti-gravity is all
about".
47 The
evidence supports the view that Professor Starson's delusional state had
rendered him unable to appreciate that, without the proposed treatment, his
mental condition will not improve, and will likely deteriorate. The Board
was entitled to take all of this evidence into account in reaching a
conclusion on whether or not Professor Starson, despite his intellectual
ability, lacks the ability to relate treatment information to his own
situation and to weigh the risks and benefits of treatment in a considered
fashion. The Board concluded, on the evidence, that he does not.
48 Finally, the Board found that
Professor Starson "seemed unable to relate the consequences [of no
treatment] . . . to future dispositions by the Ontario Review Board"
(p.17). While the evidence amply supported the Board's conclusion of
incapacity absent this consideration, this was a further indication of
Professor Starson's inability to appreciate the consequences of
refusing treatment. Given the pattern of escalating threats by Professor
Starson, the likelihood was that, without the proposed treatment, the
Review Board would be "more and more hesitant to release the patient
into the community" (p. 17). Yet, Professor Starson persisted in the
belief that he would continue to `beat the system' as he had previously
under Lieutenant-Governor's warrants (p. 17). This supported the
conclusion that Professor Starson was not able to appreciate how treatment
related to his life situation.
49 In summary, the Board had
before it ample evidence to support the conclusion that Professor Starson,
while he might have been highly intelligent, was unable, because of his
delusional state, to understand the information relevant to treatment or to
appreciate the benefits of the proposed newer medications; to appreciate
the likelihood of deterioration without treatment; and to appreciate his
future prospects under the Review Board, absent treatment. The Board's
conclusion was firmly anchored in the evidence and cannot be characterized
as unreasonable.
C. Whether the
Board Based its Decision on Professor Starson's "Best
Interests"
50 In addition to challenging
the Board's conclusions on the evidence, my colleague Major J. asserts that
the Board erred in that it did not base its conclusion on capacity, but on
its own view of what was in Professor Starson's best interests.
51 With respect, I must demur.
Nothing in the Board's reasons suggests that it strayed from the question
before it -- Professor Starson's capacity to make medical decisions on his
own behalf. The Board addressed the inquiry at the outset as one involving
the criteria "required for an individual to be capable with
respect to treatment" and then proceeded to inquire into
"capacity" (pp. 15-16, emphasis added.) The key to
capacity in this case, as discussed, was Professor Starson's ability to
appreciate the disorder, its consequences, and possible
treatments.
52 Pursuing this, the Board
discussed this question at length. Repeatedly it referred to the fact that
the evidence showed Professor Starson "cannot relate
[information] to his particular disorder"; that "the patient is
unable to weigh the possible benefits of the medication"; that
"the patient seemed unable to relate the consequences with
respect to future dispositions by the Ontario Review Board"; that
"[t]he patient seems unable to appreciate that efforts will be
made to reduce . . . side effects"; that "[h]e does not
appreciate the consequences of a decision to refuse medication"
(pp. 17-18, emphasis added.) After a brief discussion of outside evidence,
the Board then moved directly to its conclusion at p.
18:
"For the above reasons, the
Board confirmed that the patient is not capable with respect to the
treatment proposed by the attending physician...".
53 It is thus clear that the
Board was concerned with capacity throughout and that its conclusion was
driven by evidence relevant to capacity and that alone. Not once does the
Board refer to the best interests of the patient. As a preliminary matter,
before entering into its analysis, the Board stated that it viewed
Professor Starson's current situation with "great sadness" and
stated that "[u]fortunately, his potential has been disrupted time and
time again by admission to psychiatric facilities" (p. 15). But the
Board expressly recognized that this was preliminary to analysis as to
capacity, not part of that analysis. It began this brief passage with the
words: "Before commenting with respect to the specific criteria
required for an individual to be capable ..." (p. 15). With the
greatest of deference, this preliminary comment cannot be elevated to the
error of deciding the case on the basis of best interests instead of
capacity.
D.Summary
54 Having concluded the
analysis, it may be useful to summarize where my colleague and I agree and
where we part company.
55 On the facts, my colleague
Major J. and I agree that there was evidence that Professor Starson
suffered from serious mental illness; that he accepted he had symptoms of
mental illness which had created difficulties for him in the past and for
which he was prepared to accept psychotherapy; that he did not agree with
his physicians on the diagnosis of this illness; and that without the
proposed medical treatment, he might continue to deteriorate. We also
agree that Professor Starson did not wish to accept the proposed
medication-based therapy because of the effects of previous drug therapy,
in particular the fact that it dulled his intellectual
functioning.
56 On the
law, my colleague and I agree that it would be erroneous for a Board to
find incapacity simply because the patient does not accept the doctors'
diagnosis or because treatment is in the best interests of the
patient.
57 The
central differences between my colleague and me appear to be two: whether
there was evidence to support the Board's conclusion on capacity; and
whether the Board erroneously applied a best interests standard.
58 In my respectful view, the
evidence amply supports the Board's findings of Professor Starson's
inability to understand the information relevant to treatment and to
appreciate the reasonably foreseeable consequences of a decision or lack of
decision. Nor, in my view, did the Board erroneously apply a "best
interests" standard; rather it remained focussed on the question of
capacity throughout. Given this evidence and the Board's application of
the correct legal tests, I see no basis upon which a court of judicial
review can set aside its decision.
V.
Conclusion
59 I
conclude that the Board applied the law correctly and that its conclusion
that Professor Starson lacked capacity within the meaning of s. 4(1) of
the HCCA is amply supported by the evidence and is
reasonable.
60 I would
allow the appeal and restore the Board's
decision.
MAJOR
J. --
61 The adult
respondent, who prefers to be called Professor Starson, refused medical
treatment proposed by his psychiatrist for a bipolar disorder. The Consent
and Capacity Board of Ontario (the "Board") held that Professor
Starson lacked the capacity to make this decision.
62 The Board's ruling was
overturned on judicial review. The principal issues in this appeal are
whether the reviewing judge applied the appropriate standard of review to
the Board's decision, and whether she correctly interpreted the statutory
test for capacity provided by the Health Care Consent Act,
1996, S.O. 1996, c. 2, Sch. A (the "Act").
63 I have concluded that the
reviewing judge properly held that the Board's finding of the respondent's
incapacity was unreasonable, and that the Board misapplied the statutory
test. The Board placed primary importance on what it believed to be in the
respondent's best interests at the expense of failing to adequately
consider the critical aspect of this appeal, that is, whether Professor
Starson had the capacity to make up his own mind as to whether he wanted
medication or not.
64 This decision was made by him
when he was able to recognize that his condition required treatment. He
knew as well that the doctors were optimistic that new medication would
improve his condition although medication had been unsuccessful in the
past. His choice, which he was entitled to make, was to remain as he was
and to continue psychiatric therapy, in spite of his condition and the hope
of others. I would dismiss the
appeal.
I. Factual
Background
65 By
all accounts, Professor Starson is an extraordinarily intelligent and
unique individual. Although he lacks any formal training in the subject,
it is beyond dispute that his driving passion in life is physics. He has
published several papers in the field: see a paper co-authored with
Professor H. P. Noyes of Stanford University, entitled "Discrete
Anti-Gravity" (1991). Professor Noyes is said to have described the
respondent's thinking as "ten years ahead of his time". Although
the respondent is not by university training a professor, his peers in the
academic community allow him to use the title as recognition of his
accomplishments.
66 Unfortunately, since 1985 the
respondent has frequently been admitted to mental institutions in the
United States and Canada. He has most often been diagnosed as having a
bipolar disorder. Professor Starson has never caused physical harm to
himself or to others, with the exception of reacting against unwanted
forcible medication. His most recent admission to hospital arose after he
was found not criminally responsible for making death threats. The Ontario
Review Board (the "ORB") ordered his detention for 12
months.
67 The
respondent's physicians proposed treatment for his bipolar disorder. It
included neuroleptic medication, mood stabilizers, anti-anxiety medication
and anti-parkinsonian medication. He refused to consent to this
medication. The respondent acknowledges that he has mental health
problems, but will not agree that he suffers from an illness. He claims
that his full mental functioning is critical to his scientific pursuits.
He believes that all previous medication of a similar kind has
significantly dulled his thinking and thereby prevented his work as a
physicist. Although to him his life is generally very happy, medication
has invariably made him miserable in the past.
68 The attending physician found
Professor Starson not capable of deciding whether to reject or accept the
proposed medical treatment. Professor Starson applied to the Board for a
review of that decision. The Board's confirmation of incapacity was
subsequently overturned on judicial review at the Ontario Superior Court.
The Ontario Court of Appeal upheld the findings of the reviewing judge.
That decision is appealed by the chief psychiatrist of the hospital in
which Professor Starson currently
resides.
II. Relevant Statutory
Provisions
69 The
following statutory provisions are
relevant:
Health Care Consent
Act, 1996, S.O. 1996, c. 2, Sch.
A
4. (1) A person is capable
with respect to a treatment, admission to a care facility or a personal
assistance service if the person is able to understand the information that
is relevant to making a decision about the treatment, admission or personal
assistance service, as the case may be, and able to appreciate the
reasonably foreseeable consequences of a decision or lack of
decision.
(2) A person is presumed to
be capable with respect to treatment, admission to a care facility and
personal assistance services.
80.
(1) A party to a proceeding before the Board may appeal the Board's
decision to the Superior Court of Justice on a question of law or fact or
both.
(9) The court shall hear
the appeal on the record, including the transcript, but may receive new or
additional evidence as it considers
just.
(10) On the appeal, the court
may,
(a) exercise all the powers of the Board;
(b) substitute its
opinion for that of a health practitioner, an evaluator, a substitute
decision-maker or the Board;
(c) refer the matter back to the Board,
with directions, for rehearing in whole or in
part.
III. Judicial
History
70 The
Board based its decision (TO-98/1320, January 24, 1999) of the respondent's
incapacity to decide on the proposed medical treatment primarily on the
views of the attending psychiatrists, and "largely discounted"
evidence provided by his friends and colleagues, which contradicted the
evidence of the psychiatrists. The Board gave little weight to Professor
Starson's testimony. It ultimately held that despite cogent evidence of a
mental disorder, the patient is in "almost total" denial of his
illness. The Board noted that without an acknowledgement of illness, the
patient cannot relate information to his own particular disorder, and
therefore cannot understand the consequences of a decision to either refuse
or consent to medication. It also noted that the respondent failed to
appreciate the risks and benefits of a treatment decision. As a result,
the Board concluded that Professor Starson was incapacitated.
71 At the Ontario Superior Court
((1999), 22 Admin. L.R. (3d) 211), Molloy J. reversed the decision of the
Board. She held that its decision had to be reviewed on a standard of
reasonableness: see T. (I.) v. L. (L.) (1999), 46 O.R. (3d) 284
(C.A.). She found that the Board's conclusion that Professor Starson was
in total denial of his illness was unreasonable in light of the evidence.
In addition, there was no evidentiary foundation to support many of the
Board's findings that Professor Starson suffered from delusions. She
observed that the Board had unreasonably disregarded the evidence of
Professor Starson's friends and colleagues, that it drew insupportable
inferences in regard to Professor Starson's criminal activity based on
vague hearsay evidence, and that the factual foundation for the alleged
benefits of treatment was fundamentally flawed.
72 Molloy J. also held that the
Board failed to consider the extent to which Professor Starson's
psychiatric disorder and alleged delusions affected his ability to
understand information or appreciate the consequences of treatment. Such
failure, she said, amounted to a misapplication of the legal test for
capacity. Finally, she found that the Board had misapprehended Professor
Starson's reasons for rejecting the proposed treatment, and had ultimately
allowed its subjective assessment of Professor Starson's best interests to
improperly influence its decision. Molloy J. concluded that there was no
basis upon which the Board could reasonably find that the presumption of
Professor Starson's capacity had been displaced.
73 The Ontario Court of Appeal
((2001), 33 Admin. L.R. (3d) 315), unanimously agreed with the reviewing
judge. The court confirmed the standard of review as reasonableness, and
concluded that Molloy J. properly applied that standard. The court based
its agreement on three considerations in the record. First, the respondent
clearly recognized that he has mental problems. Second, no evidence was
led that demonstrated that any of his previous medications had helped him.
Third, and significantly, his refusal to accept treatment was based
primarily upon the detrimental effects of treatment on his scientific work.
The court decided that although the respondent's refusal to consent to the
proposed treatment might not objectively be in his best interests, there
was no evidentiary basis to find incapacity and so his decision to reject
treatment was one he was entitled to
make.
IV. Issues
74 The appeal raises the
following issues:
1 Did
the reviewing judge properly apply a reasonableness standard of review
to
the Board's finding of incapacity?
2 Did the reviewing judge
correctly find that the Board misapplied the statutory test for
capacity?
3 Did the
reviewing judge err in her approach to hearsay evidence?
4 Did the Court of Appeal err in
its refusal to admit new evidence?
V.
Analysis
A. The Health Care
Consent Act
75 The
right to refuse unwanted medical treatment is fundamental to a person's
dignity and autonomy. This right is equally important in the context of
treatment for mental illness: see Fleming v. Reid (1991), 4 O.R.
(3d) 74 (C.A.), per Robins J.A., at p.
88:
Few medical procedures can be more
intrusive than the forcible injection of powerful mind-altering drugs which
are often accompanied by severe and sometimes irreversible adverse side
effects.
Unwarranted findings of
incapacity severely infringe upon a person's right to self-determination.
Nevertheless, in some instances the well-being of patients who lack the
capacity to make medical decisions depends upon state intervention: see E. (Mrs.) v.
Eve, [1986] 2 S.C.R. 388, at p. 426. The Act aims to balance these
competing interests of liberty and welfare: see B. F. Hoffman, The Law
of Consent to Treatment in Ontario (2nd ed. 1997), at p. 3. Neither
party raised the constitutionality of the Act as an issue in this
appeal.
76 The
legislative mandate of the Board is to adjudicate solely upon a
patient's capacity. The Board's conception of the patient's best interests
is irrelevant to that determination. As the reviewing judge observed,
"[a] competent patient has the absolute entitlement to make decisions
that any reasonable person would deem foolish" (para. 13). This point
was aptly stated by Quinn J. in Re Koch (1997), 33 O.R. (3d) 485
(Gen. Div.), at p. 521:
The right
knowingly to be foolish is not unimportant; the right to voluntarily assume
risks is to be respected. The State has no business meddling with either.
The dignity of the individual is at
stake.
In this case, the only issue
before the Board was whether Professor Starson was capable of making a
decision on the suggested medical treatment. The wisdom of his decision
has no bearing on this determination.
77 The law presumes a person is
capable to decide to accept or reject medical treatment: s. 4(2) of the
Act. At a capacity hearing, the onus is on the attending physician to prove
that the patient is incapable. I agree with the Court of Appeal that proof
is the civil standard of a balance of probabilities. As a result, patients
with mental disorders are presumptively entitled to make their own
treatment decisions. Professor D. N. Weisstub, in his Enquiry on Mental
Competency: Final Report (1990), at p. 116 (the "Weisstub
Report"), notes the historical failure to respect this
presumption:
The tendency to conflate
mental illness with lack of capacity, which occurs to an even greater
extent when involuntary commitment is involved, has deep historical roots,
and even though changes have occurred in the law over the past twenty
years, attitudes and beliefs have been slow to change. For this reason it
is particularly important that autonomy and self determination be given
priority when assessing individuals in this
group.
The Board must avoid the error
of equating the presence of a mental disorder with incapacity. Here, the
respondent did not forfeit his right to self-determination upon admission
to the psychiatric facility: see Fleming v. Reid,
supra, at p. 86. The presumption of capacity can be displaced only
by evidence that a patient lacks the requisite elements of capacity
provided by the Act.
78 Section 4(1) of the Act
describes these elements as follows:
A
person is capable with respect to a treatment, admission to a
care
facility or a personal assistance service if the person is able
to understand the information that is relevant to making a decision about
the treatment, admission or personal assistance service, as the case may
be, and able to appreciate the reasonably foreseeable consequences of a
decision or lack of decision.
Capacity
involves two criteria. First, 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. There is no doubt that the respondent satisfied this
criterion. Second, 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. The Board's finding of incapacity was based
on their perception of Professor Starson's failure in this
regard.
79 Before
turning to an analysis of the reviewing judge's decision, two important
points regarding this statutory test require comment. First, a patient
need not agree with the diagnosis of the attending physician in order to be
able to apply the relevant information to her own circumstances.
Psychiatry is not an exact science, and "capable but dissident
interpretations of information" are to be expected: see Weisstub
Report, supra, at p. 229. While a patient need not agree with a
particular diagnosis, if it is demonstrated that he has a mental
"condition", the patient must be able to recognize the
possibility that he is affected by that condition. Professor Weisstub
comments on this requirement as follows (at p. 250, note
443):
Condition refers to the broader
manifestations of the illness rather than the existence of a discrete
diagnosable pathology. The word condition allows the requirement for
understanding to focus on the objectively discernible manifestations of the
illness rather than the interpretation that is made of these
manifestations.
As a result, a patient is not required to describe his
mental condition as an "illness", or to otherwise characterize
the condition in negative terms. Nor is a patient required to agree with
the attending physician's opinion regarding the cause of that condition.
Nonetheless, if the patient's condition results in him being unable to
recognize that he is affected by its manifestations, he will be unable to
apply the relevant information to his circumstances, and unable to
appreciate the consequences of his decision.
80 Secondly, the Act requires a
patient to have the ability to appreciate the consequences of a
decision. It does not require actual appreciation of those
consequences. The distinction is subtle but important: see L. H. Roth, A.
Meisel and C.W. Lidz, "Tests of Competency to Consent to
Treatment" (1997), 134, Am. J. Psychiatry 279, at pp. 281-82,
and Weisstub Report, supra, at p. 249. In practice, the
determination of capacity should begin with an inquiry into the patient's
actual appreciation of the parameters of the decision being made: the
nature and purpose of the proposed treatment; the foreseeable benefits and
risks of treatment; the alternative courses of action available; and the
expected consequences of not having the treatment. If the patient shows an
appreciation of these parameters -- regardless of whether he weighs or
values the information differently than the attending physician and
disagrees with the treatment recommendation -- he has the ability to
appreciate the decision he makes: see Roth, Meisel and Lidz, supra,
at p. 281.
81 However,
a patient's failure to demonstrate actual appreciation does not inexorably
lead to a conclusion of incapacity. The patient's lack of appreciation may
derive from causes that do not undermine his ability to appreciate
consequences. For instance, a lack of appreciation may reflect the
attending physician's failure to adequately inform the patient of the
decision's consequences: see the Weisstub Report, supra, at p. 249.
Accordingly, it is imperative that the Board inquire into the reasons for
the patient's failure to appreciate consequences. A finding of incapacity
is justified only if those reasons demonstrate that the patient's mental
disorder prevents him from having the ability to appreciate the
foreseeable consequences of the
decision.
B. The Decision of the
Reviewing Judge
82 Molloy J. reversed the
Board's decision on two bases: first, that the Board's finding of
incapacity was unreasonable based on the evidence before it, and second,
that the Board erred in its application of the statutory test for capacity.
The appellant agrees that the standard of review is reasonableness, but
then submits that the reviewing judge misapplied both the reasonableness
standard and the statutory test. I
disagree.
(1)Standard of
Review
83 The
accepted approach to judicial review was established in U.E.S., Local 298 v.
Bibeault, [1988] 2 S.C.R. 1048, and expanded upon in Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1
S.C.R. 748, and Pushpanathan v.
Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R.
982. In summary, the Court has adopted a pragmatic and functional
approach that supplants the earlier jurisdictional approach: see Dr. Q
v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19,
at para. 21. The pragmatic and functional approach requires a court to
weigh a series of factors in order to discern the standard of review
applicable to the particular issue under review. The factors to be
considered are the existence of a privative clause or statutory right of
appeal, the relative expertise of the tribunal; the purpose of the statute
and provision, and the nature of the question at issue: see
Pushpanathan, supra, at paras. 29-38, per Bastarache
J. As stated in Dr. Q, supra, at para. 26, those factors,
which may not necessarily be exclusive, should be considered in their
totality and not applied mechanically. Against this framework, we can
determine whether the appropriate standard of review in this case is
correctness, reasonableness or patent unreasonableness.
84 The question under review is
the Board's determination of capacity. This is a question of mixed fact
and law: the Board must apply the evidence before it to the statutory test
for capacity. In the absence of any errorin law, this question is
relatively fact-intensive: see Southam, supra, at paras.
35-37. Applying the pragmatic and functional approach to this question, it
is clear that reasonableness is the appropriate standard of
review.
85 On the one
hand, the Act provides a broad right of appeal to the Ontario Superior
Court on a question of fact or law or both: s. 80(1). The court is given
broad powers of review: it may exercise all the powers of the Board,
substitute its opinion for that of the Board, or refer the matter back to
the Board for rehearing: s. 80(10). As well, capacity hearings are
primarily adjudicative in nature. The Board's sole task is to determine
the patient's capacity to consent. This matter is important to a patient's
autonomy. Each of these factors counsels against a deferential standard of
review: see Dr. Q, at paras. 27 and 32.
86 On the other hand, the Board
is likely to enjoy some measure of institutional expertise with respect to
determinations of capacity. The Act does not specify any minimum
qualifications for Board members, apart from instances in which a member
sits alone: ss. 71(3) and 73(2). The statute merely stipulates that
members are to be appointed by the Lieutenant Governor in Council: s.
70(2). However, unlike the usual reviewing court, Board members are likely
to have acquired experience over the course of their appointments in
dealing with assessments of capacity. The Board is uniquely positioned to
hear the viva voce evidence of the patient and physicians. These
factors suggest that determinations of capacity should generally be
entrusted to the relative expertise of the Board: see Dr. Q,
supra, at paras. 29 and 38.
87 As well, a principal aim of
the Act is to facilitate treatment for incapable patients: s. 1. To
achieve this aim, determinations of capacity must be made expeditiously to
avoid delays in treatment. The Act ensures that the Board is well-suited
to this task. The Board is required to begin a hearing within seven days
of receiving an application and must decide the application by the day
after the hearing ends: s. 75. If a party requests reasons for the
Board's decision, the Board must provide such reasons within two business
days of the request. A court's de novo review of the Board's
findings would immeasurably delay the outcome of treatment decisions. Such
delay would frustrate the Act's purpose.
88 These countervailing factors
call for review of the Board's determination of capacity on a
reasonableness standard. The standard of reasonableness "involves
respectful attention, though not submission" to the Board's reasons:
see Law Society of New Brunswick v. Ryan, 2003 SCC 20, at para. 49.
An unreasonable decision is one that "is not supported by any reasons
that can stand up to a somewhat probing examination": see
Southam, supra, at para. 56.
89 The sole issue, then, is
whether the reviewing judge properly applied this standard. In my view, it
is clear that she did. Molloy J. expressly adverted to a reasonableness
standard at the outset of her reasons. Her analysis demonstrates that she
remained faithful to this standard throughout her decision. Indeed, the
appellant could not point to one instance in which the reviewing judge's
analysis was suggestive of a less deferential standard of review.
90 Moreover, the evidence amply
supports the reviewing judge's decision. The Board's determination of
incapacity turned on two findings: that the patient was in "almost
total" denial of a mental disorder, and that he failed to appreciate
the consequences of his decision. Putting aside, for the moment, the issue
of whether the Board properly applied the capacity test, a careful review
of the evidence demonstrates that there is no basis for either of the above
findings.
91 In my
view, the Board's reasons, as stated earlier, appear to be overly
influenced by its conviction that medication was in Professor Starson's
best interest. The Board arrived at its conclusion by failing to focus on
the overriding consideration in this appeal, that is, whether that adult
patient had the mental capacity to choose whether to accept or reject the
medication prescribed. The enforced injection of mind-altering drugs
against the respondent's will is highly offensive to his dignity and
autonomy, and is to be avoided unless it is demonstrated that he lacked the
capacity to make his own decision.
92 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.
(a)Acknowledgement of
Disorder
93 The
reviewing judge observed, at para. 31, that there is no support for the
Board's finding that Professor Starson's denial of his condition was
"almost total". As she noted, at para. 30, Professor Starson
expressly acknowledged before the Board that he displays symptoms of a
bipolar disorder:
I certainly have
exhibited the symptoms of these labels that you give. In, say, manic is a
fairly clear label. And certainly I have exhibited things that would be
considered manic.
Professor Starson
also stated that he had "mental problems 13 years ago that were
difficult, almost impossible to . . . handle". While he did not
believe that these problems were the result of mental illness, as
noted above he is not required to recognize his condition in such terms.
When asked by the attending physician whether the mental problems had been
resolved, Professor Starson answered "no", and that those are
problems that "through Dr. Posner, I will learn how to deal with . . .
once I work it out with Dr. Posner". He also stated that due to his
need for therapy, he would not leave the hospital at that time even if he
were permitted to do so. Finally, he acknowledged that his own perception
of reality differed from that held by others. This understanding was
confirmed, as Molloy J. noted at para. 32, by letters from the patient's
long-term friends.
94 It is true that Dr. Swayze
expressed the view that the respondent was in denial of his disorder. The
Board failed, however, to scrutinize the reasons for that view. Dr. Swayze
stated that he had great difficulty eliciting Professor Starson's opinion
regarding his condition. He ultimately inferred that he had no awareness
of the condition based upon the patient's statement that "[o]nly you
people say I have an illness". This statement demonstrates only that
Professor Starson did not accept the characterization of his uniquemental
functioning as an illness. The basis for the attending physician's
conclusion, therefore, was premised on a misapprehension of the relevant
legal test. In fact, Dr. Swayze later appeared to accept that Professor
Starson is aware that his mental functioning is not
normal:
His personal situation, his
ability to function in the community has been extremely hampered and in no
way has this disorder and its manifestations, which at times Professor
Starson seems to be quite comfortable and enthusiastic about, have not
been to benefit, they've only been to detriment. [Emphasis
added.]
An interesting question is how
Professor Starson could be "quite comfortable and enthusiastic"
about his disorder and its manifestations without being aware of its
existence.
95 As a
result, Molloy J. properly concluded that there was no reasonable basis
upon which the Board could decide that the patient was in almost total
denial of his condition. On the contrary, the evidence demonstrates that
although the patient did not conceive of the condition as an illness, he
was quite aware that his brain did not function
normally.
(b) Ability to Appreciate
Consequences of Treatment Decision
96 The Board also found that the
patient failed to appreciate both the benefits of treatment and the risks
of non-treatment. These are considered in
turn.
(i) Benefits of
Treatment
97 The Board
concluded that the patient failed to appreciate the foreseeable benefits of
treatment, which it defined as "improvement in his delusional state,
improved prospects before the Ontario Review Board [the "ORB"] in
the future, and a possible resumption of his goals in the scientific
field" (p. 18). These conclusions, as Molloy J. observes at para. 60,
are not supported by any basis in the record.
98 There was no evidence that
the proposed medication was likely to ameliorate Professor Starson's
condition. Dr. Swayze testified that it was "unclear" whether
treatment would facilitate a "normal functioning level", and that
treatment in the past had never enabled Professor Starson to function
adequately. Dr. Posner noted that in general, only 60 percent of
patients treated with neuroleptics respond favourably to new treatment.
The evidence does not suggest that Professor Starson would fall into that
category. He stated that medication attempts "have always been the
most horrible experiences of my life". The end goal of the proposed
treatment was to place Professor Starson on mood stabilizers. Both
Professor Starson and Dr. Swayze confirmed that he had tried different mood
stabilizers in the past. The respondent testified that he had "been
through all the treatment [and] it hasn't worked".
99 Furthermore, Professor
Starson appreciated the intended effects of the medication: "I've been
through these chemicals that they propose before -- and I know the effects
and what they want to achieve is slow down my brain, basically . . .
". The attending physician agreed that the purpose of the medication
was to slow down Professor Starson's brain to a normal
range:
If by that he refers to slowing
down (inaudible) speech, or racing thoughts, or intrusive thoughts, which
would be characteristic elements in a manic episode, then that is my
intention. If it is to blunt him beyond what would be put (inaudible) of a
normal range of mood and thought process without psychosis, then that is my
intent.
The respondent's stated
position on medication was that "should the individual think the medications are helping them, by all means then the individual should be on the
medications". As noted, however, his past experience led him to
believe that the medication would not help him. Although Professor Starson
did not believe the medication would affect his sense of reality, there was
no clear evidence, as the reviewing judge observed, with respect to the
nature and extent of Professor Starson's delusions or "as to what
delusions the medication would eliminate or control" (Molloy J., at
para. 61).
100 There
was also no evidence that treatment would improve the patient's prospects
before the ORB. The Board, as Molloy J. observed at para. 62, is not
suited to predict "the future determination of a wholly separate
administrative tribunal which must apply different criteria and a different
legal test". Neither Dr. Swayze nor the Board had even received the
ORB's reasons for decision. In these circumstances, the Board's conclusion
that treatment would improve Professor Starson's chances at future ORB
hearings is entirely speculative.
101 Most importantly, the Board
appears to have entirely misapprehended the respondent's reasons for
refusing medication. The Board acknowledged only that he had "some
antipathy to the medication as a result of suffering side effects in the
past" (p. 17). In Fleming v. Reid, supra, Robins
J.A. observed, at p. 84, that neuroleptic medication carries with it
"significant, and often unpredictable, short term and long term risks
of harmful side effects". Professor Starson clearly appreciated the
extent of these risks. However, it was the intended purpose of the
medication that he primarily objected to.
102 Professor Starson stated
that the medication's normalizing effect "would be worse than death
for me, because I have always considered normal to be a term so boring it
would be like death". The evidence indicates that the dulling effects
of medication transformed Professor Starson "into a
struggling-to-think `drunk'", a result that precluded him from
pursuing scientific research. Professor Starson stated unequivocally that
every drug he had previously tried had hampered his thinking. As a result,
there was no basis for the Board to find that a possible benefit of
treatment would be the resumption of his work as a physicist. The
evidence, in fact, suggests just the opposite. It is apparent from the
record that Professor Starson values his ability to work as a physicist
above all other factors. It is clear that he views the cure proposed by
his physicians as more damaging than his
disorder.
(ii) Risks of
Non-Treatment
103 The
Board also found that the respondent "does not appreciate the
consequences of a decision to refuse medication, that is the likelihood
that his mental disorder will worsen" (p. 18). There was speculation
that his condition had begun to deteriorate, but little evidentiary basis
to gage the validity of that speculation. Dr. Swayze noted that since
"manic episodes tend to resolve spontaneously, treated or
otherwise", he initially had believed that the patient's condition
would improve. He ultimately concluded that the record of Professor
Starson's prior hospitalizations would suggest "a chronic, unremitting
course", but he did not express a belief that the condition was
deteriorative.
104 Dr. Posner disagreed, and
stated that he felt the evidence suggests "a progressive psychotic
state". In contrast to Dr. Swayze, he noted that the literature
suggests that untreated mania "can and often does progress in
severity". Dr. Posner felt that the patient "is in control a
good, but not complete, percentage of the time". However, he observed
that Professor Starson had not published in journals in the three or four
years preceding the hearing, and that conversations with other
psychiatrists suggested that Professor Starson was relatively more
irritable than he had been in the past. As a result, he felt that the
patient's condition was likely to worsen. However, as Dr. Posner noted, it
was unclear whether medication could impede the condition's
deterioration.
105 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.
106 In summary, there was no
basis to find that Professor Starson lacked awareness of his condition or
that he failed to appreciate the consequences of treatment. In the absence
of these findings, there was no support for the Board's ultimate finding of
incapacity. As a result, Molloy J. correctly set aside the Board's
decision.
107 I
disagree with the conclusion of my colleague, McLachlin C.J. Her reasons,
with respect, appear to disregard the bulk of Professor Starson's
testimony. Absent is the candid acknowledgement by him of his mental
problems, his obvious appreciation of the intended purpose of the
medication, the admitted uncertainty by the doctors that treatment would
improve Professor Starson, the failure in the past of mood stabilizers,
which was the end goal of the proposed treatment (see para. 98), and his
rationale for refusing the medication.
108 The respondent recognized
the need for treatment as evidenced by his express request to remain in
hospital to work through his problems with Dr. Posner. Although McLachlin
C.J. accepts that the respondent was aware of his condition and its
manifestations, she concludes that his denial of illness renders him
incapable. The conclusion of his incapacity is founded on his disagreement
with the diagnosis of his physicians. In my respectful view, this was the
error the Board made. The conclusion of the Board adopted by McLachlin
C.J. from an appraisal of the patient's best interests rather than whether
the evidence established his capacity to
decide.
(2)The Board's
Misapplication of the Capacity Test
109 Although the above findings
are sufficient to dispose of the appeal, Molloy J. also observed that the
Board misapplied the statutory test for capacity. I agree with that
conclusion.
110 The
interpretation of the legal standard for capacity is a question of law:
see Southam, supra, at para. 35. No deference is owed to the
Board on this issue. As noted above, the broad statutory right of appeal
and adjudicative nature of the proceedings militate against deference.
Furthermore, courts clearly have relative expertise on general questions of
statutory interpretation. One of the stated purposes of the Act is to
provide for the consistent application of its rules: s. 1. Consistency
requires courts to ensure that individual panels do not diverge in their
interpretation of statutory provisions. Finally, this question of law has
broad application and need not be resolved anew on each appeal. A
correctness standard of review on this issue will not impede the
expeditious treatment of patients.
111 The Board found that
Professor Starson failed to appreciate the risks and benefits of treatment,
but neglected to address whether the reasons for that failure demonstrated
an inability to appreciate those risks and benefits. Molloy J.
observed, at para. 74:
The Board's . .
. conclusions appear to be based on its perception that Professor Starson
failed to understand the information or appreciate the consequences
as evidenced by his refusal to agree that he should have the recommended
treatment, rather than any evidence that his mental disorder prevented him
from being able to understand and appreciate. [Italics in
original.]
As noted above, a patient's
failure to recognize consequences does not necessarily reflect an inability
to appreciate consequences. It is critical that the Board determine
whether the reasons for a patient's failure to appreciate consequences
demonstrate that the patient is unable, as result of his condition, to
appreciate those consequences. In this case, the Board stated that the
patient failed to appreciate the consequences of treatment with regard to
future dispositions by the ORB. However, neither of the psychiatrists who
testified had discussed any of these possible consequences with the
patient. Professor Starson's perceived failure in this regard might have
simply reflected the psychiatrists' failure to inform him of the potential
consequences.
112 Furthermore, as noted
above, the Board's reasons indicate that it strayed from its legislative
mandate to adjudicate solely upon the patient's capacity. The Board stated
at the outset of its reasons that "it viewed with great sadness the
current situation of the patient" (p. 15), and later noted that
"his life has been devastated by his mental disorder" (p. 16).
Putting aside the fact that the respondent entirely disagreed with those
statements, the tenor of the comments indicate that the Board misunderstood
its prescribed function. The Board's sole task was to determine the
patient's mental capacity. The wisdom of Professor Starson's treatment
decision is irrelevant to that determination. If Professor Starson is
capable, he is fully entitled to make a decision that the Board, or other
reasonable persons, may perceive as foolish. The Board improperly allowed
its own conception of Professor Starson's best interests to influence its
finding of incapacity.
113 I conclude that Molloy J.
correctly decided that the Board misapplied the legal test for
capacity.
C. Evidentiary
Issues
114 The
appellant raises two other arguments: that the reviewing judge erred in
her approach to hearsay evidence, and that the Court of Appeal erred in its
refusal to admit new
evidence.
(1)Hearsay
Evidence
115 The
appellant argues that the reviewing judge wrongly interfered with the
Board's discretion to determine the weight of hearsay evidence regarding
previous threats made by the patient. This finding was tangential to the
reviewing judge's decision and had no bearing on her disposition of the
case. As a result, the issue is of no consequence to the outcome of the
appeal. In any event, there was no error in the reviewing judge's approach
to the hearsay evidence. As she observed, there is no doubt that such
evidence is admissible before the Board: see the Statutory Powers
Procedure Act, R.S.O. 1990, c. S.22, s. 15(1). Hearings must be
conducted in an expeditious manner to ensure that treatment decisions can
be made without undue delay. To fulfill that mandate, the Board will often
be forced to rely on hearsay evidence to become fully informed of a
patient's circumstances. The weight to be accorded to such evidence is
normally a matter that is left to the discretion of the Board.
Nonetheless, the Board must be careful to avoid placing undue emphasis on
uncorroborated evidence that lacks sufficient indicia of reliability, a
fact it failed in this case to
observe.
(2)New Evidence on
Appeal
116 The
appellant brought a motion before the Court of Appeal to hear new evidence.
The evidence concerned Professor Starson's current mental status and a
subsequent disposition order by the ORB. Section 80(9) of the Act provides
as follows:
The court shall hear the
appeal on the record, including the transcript, but may receive new or
additional evidence as it considers just.
117 The appellant provided this
Court with no details of the evidence that it sought to admit. As a
result, there is no measure to assess the Court of Appeal's decision to
reject it.
118 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.
119 Accordingly, on judicial
review under the Health Care Consent Act 1996, a court's task is to
determine the reasonableness of the Board's finding in relation to the
patient's capacity at the time of the hearing. New evidence relating to
the patient's deterioration after the time of hearing is irrelevant to that
determination. This is to be contrasted with the situation dealt with in
R. v. Owen, 2003 SCC 33, released concurrently, in which fresh
evidence of the deterioration of the mental condition of a person held not
criminally responsible on account of mental disorder was ruled properly
admissible on the issue of whether the individual should receive an
absolute discharge or be further detained as a significant risk to public
safety. In this case there is no issue of public safety. If a patient's
condition worsens after a capacity hearing, it is open to the attending
physician to make another finding of incapacity, which the patient can
again challenge before the Board. In light of the relative expertise of
the Board on factual determinations of capacity, and the expeditious manner
in which it is able to deal with hearings, the Board is clearly the most
appropriate forum for new evidence to be
examined.
VI.
Conclusion
120 The reviewing judge
properly held that the Board's finding of incapacity was unreasonable, and
that the Board misapplied the statutory test for capacity. There is no
basis to find that either of the courts below erred on the evidentiary
issues that were raised by the appellant. Accordingly, I would dismiss the
appeal.
Appeal dismissed,
MCLACHLIN C.J. and
GONTHIER and LEBEL JJ. dissenting.
Solicitor for the appellant: The Attorney General of O
ntario, Toronto.
Solicitors
appointed by the Court as amicus curiae: Hiltz Szigeti,
Toronto.
Solicitors for the
intervener Schizophrenia Society of Canada: Borden Ladner Gervais,
Toronto.
Solicitors for the
intervener Centre for Addiction and Mental Health: Paterson MacDougall,
Toronto.
Solicitors for the
interveners Mental Health Legal Committee and Mental Health Legal Advocacy
Coalition: Swadron Associates, Toronto.
The
official versions of decisions and reasons for decision by the Supreme
Court of Canada are published in the Supreme Court Reports (S.C.R.).
This site is
prepared and published by LexUM in partnership with
Supreme Court of Canada.