Starson v. Swayze et al., (2003) 304 N.R. 326 (SCC)

JudgeMcLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
CourtSupreme Court (Canada)
Case DateJanuary 15, 2003
JurisdictionCanada (Federal)
Citations(2003), 304 N.R. 326 (SCC);2003 SCC 32;[2003] 1 SCR 722;225 DLR (4th) 385;304 NR 326;1 Admin LR (4th) 1;[2003] CarswellOnt 2079;JE 2003-1132;[2003] SCJ No 33 (QL);122 ACWS (3d) 938;173 OAC 210;[2003] ACS no 33

Starson v. Swayze (2003), 304 N.R. 326 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2003] N.R. TBEd. JN.014

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)

(28799; 2003 SCC 32; 2003 CSC 32)

Indexed As: Starson v. Swayze et al.

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

June 6, 2003.

Summary:

Since 1985, Starson had frequently been admitted to mental institutions in the United States and Canada. He had most often been diagnosed as having a bipolar disorder. His most recent admission to hospital arose after he was found not criminally responsible for making death threats and the Ontario Review Board ordered his detention for 12 months. Starson's doctors proposed treatment for his bipolar disorder, which included neuro­leptic medication, mood stabilizers, anti-anxiety medication and anti-parkinsonian medication. Starson refused to consent to the treatment. The Ontario Consent and Capacity Board found that Starson lacked the capacity to make his own decision about the treat­ment. Starson appealed from the Board's decision.

The Ontario Superior Court, in a decision reported at [1999] O.T.C. 9, allowed the appeal and quashed the Board's decision. Two psychiatrists who had proposed the treatment for Starson appealed.

The Ontario Court of Appeal, in a decision reported at 146 O.A.C. 121, dismissed the appeal. The chief psychiatrist at the hospital where Starson resided appealed.

The Supreme Court of Canada, McLachlin, C.J.C., Gonthier and LeBel, JJ., dissenting, dismissed the appeal.

Administrative Law - Topic 624

The hearing and decision - Evidence and proof - Hearsay evidence - Starson's doc­tors pro­posed treatment for his bipolar disorder - Starson refused to consent to the treat­ment - The Ontario Consent and Capa­city Board found that Starson lacked the capacity to make his own decision about the treatment - Starson appealed - The reviewing judge allowed the appeal and quashed the Board's decision - The Supreme Court of Canada rejected an argument that the reviewing judge had wrongly interfered with the Board's discre­tion to determine the weight of hearsay evidence - Hearsay evidence was admis­sible before the Board - However, the Board had to be careful to avoid placing undue emphasis on uncor­roborated evi­dence that lacked sufficient indicia of reliability, a fact that it failed to observe in this case - See paragraph 115.

Administrative Law - Topic 3202

Judicial review - General - Scope or stan­dard of review - Starson's doctors pro­posed treatment for his bipolar disorder - Starson refused to consent to the treat­ment - The Ontario Consent and Capacity Board found that Starson lacked the capac­ity to make his own decision about the treatment (Ontario Health Care Consent Act, s. 4(1)) - Starson appealed from the Board's deci­sion - The Supreme Court of Canada held that, applying the pragmatic and functional approach, the Board's deter­mination of capacity was to be reviewed on a standard of reasonableness - See paragraphs 83 to 88.

Administrative Law - Topic 3202

Judicial review - General - Scope or stan­dard of review - Starson's doctors pro­posed treatment for his bipolar disorder - Starson refused to consent to the treat­ment - The Ontario Consent and Capacity Board found that Starson lacked the capac­ity to make his own decision about the treatment - Starson appealed from the Board's deci­sion - The Supreme Court of Canada held that the interpretation of the legal standard for capacity in s. 4(1) of the Ontario Health Care Consent Act was a question of law and the standard of review of the Board's decision on that issue was correct­ness - See paragraphs 109 to 110.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evi­dence (incl. new evidence) - At issue was the admissibility of new evidence on a review or appeal from a determination of the Ontario Consent and Capacity Board with respect to whether a person had the capacity to consent to medical treatment - The Supreme Court of Canada stated that "on judicial review under the [Ontario] 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 ... 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" - See paragraphs 116 to 119.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See both Adminis­trative Law - Topic 3202 ].

Persons of Unsound Mind - Topic 1403

Treatment - General principles - Consent - Competence - Starson's doctors pro­posed treatment for his bipolar disorder, which included neuroleptic medication, mood stabilizers, anti-anxiety medication and anti-parkinsonian medication - Starson refused to consent to the treatment - The Ontario Consent and Capacity Board found that Starson lacked the capacity to make his own decision about the treatment (Ontario Health Care Consent Act, s. 4(1)) - Starson appealed - The reviewing judge allowed the appeal and quashed the Board's decision - The Supreme Court of Canada held that the reviewing judge had properly applied the reasonableness stan­dard of review to the Board's finding of incapacity and had properly held that the Board's finding of incapacity was unrea­sonable - The Board had placed primary importance on what it believed to be in Starson's best interests and failed to ade­quately consider whether Starson had the capacity to choose whether he wanted the medication - As a result of its focus on Starson's best interests, the Board disre­garded clear evidence of his capacity - There was no basis for the Board's find­ings that Starson was in "almost total" denial of a mental disorder and that he failed to appreciate the consequences of his decision - See paragraphs 89 to 92.

Persons of Unsound Mind - Topic 1403

Treatment - General principles - Consent - Competence - Starson's doctors pro­posed treatment for his bipolar disorder, which included neuroleptic medication, mood stabilizers, anti-anxiety medication and anti-parkinsonian medication - Starson refused to consent to the treatment - The Ontario Consent and Capacity Board found that Starson lacked the capacity to make his own decision about the treatment - Starson appealed - The reviewing judge allowed the appeal and quashed the Board's decision - The Supreme Court of Canada held that the reviewing judge had correctly decided that the Board had mis­applied the test for determining capacity in s. 4(1) of the Ontario Health Care Consent Act - The court stated that 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 ... 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" - The Board had improperly allowed its own conception of Starson's best interests to influence its finding of incapacity - See paragraphs 109 to 113.

Persons of Unsound Mind - Topic 1403

Treatment - General principles - Consent - Competence - Section 4(2) of the Ontario Health Care Consent Act provided that "A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services" - The Supreme Court of Canada stated that the law presumed that a person was capable to decide to accept or reject medi­cal treatment and that, at a capacity hear­ing, the onus was on the attending physi­cian to prove that the patient was incapable on the civil standard of a balance of prob­abilities - The presumption of capacity could be displaced only by evidence that the patient lacked the requisite elements of capacity provided by the Act - See para­graph 77.

Persons of Unsound Mind - Topic 1403

Treatment - General principles - Consent - Competence - Section 4(1) of the Ontario Health Care Consent Act provided that "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" - The Supreme Court of Canada stated that "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 ... 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" - See paragraph 78.

Persons of Unsound Mind - Topic 1403

Treatment - General principles - Consent - Competence - The Supreme Court of Canada commented on two important points regarding the test in s. 4(1) of the Ontario Health Care Consent Act for capa­city with respect to treatment decisions - The court stated that "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 ... 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 ... 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. 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 ... 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" - See paragraphs 79 to 81.

Persons of Unsound Mind - Topic 1403

Treatment - General principles - Consent - Competence - [See both Administrative Law - Topic 3202 and Administrative Law - Topic 3345.1 ].

Persons of Unsound Mind - Topic 1404

Treatment - General principles - Drug therapy - [See first and second Persons of Unsound Mind - Topic 1403 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Administrative Law - Topic 3345.1 ].

Cases Noticed:

R. v. Owen (T.) (2003), 304 N.R. 254; 173 O.A.C. 285 (S.C.C.), refd to. [para. 5]; dist. [para. 119].

Khan v. St. Thomas Psychiatric Hospital et al. (1992), 52 O.A.C. 166; 7 O.R.(3d) 303 (C.A.), refd to. [para. 17].

L.L. v. I.T. and T.C. (1999), 126 O.A.C. 227; 46 O.R.(3d) 284 (C.A.), refd to. [para. 71].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 75].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273; 31 D.L.R.(4th) 1; 13 C.P.C.(3d) 6; 31 D.L.R.(4th) 1, refd to. [para. 75].

Eve v. Mrs. E. - see Eve, Re.

Koch, Re (1997), 27 O.T.C. 161; 33 O.R.(3d) 485 (Gen. Div.), refd to. [para. 76].

Syndicat national des employés de la com­mission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 83].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 83].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 83].

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170 (S.C.C.), refd to. [para. 83].

Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207 (S.C.C.), refd to. [para. 88].

Statutes Noticed:

Health Care Consent Act, S.O. 1996, c. 2, Sch. A, sect. 4(1), sect. 4(2) [para. 69].

Authors and Works Noticed:

Berg, Jessica W., et al., Informed Consent: Legal Theory and Clinical Practice (2nd Ed. 2001), p. 102 [para. 17].

Hoffman, Brian F., The Law of Consent to Treatment in Ontario (2nd Ed. 1997), pp. 3 [para. 75]; 18 [paras. 18, 22].

Macklin, Ruth, Some Problems in Gaining Informed Consent from Psychiatric Patients (1982), 31 Emory L.J. 345, generally [para. 17].

Roth, Loren H., Meisel, Alan, and Lidz, Charles W., Tests of Competency to Consent to Treatment (1997), 134 Am. J. Psychiatry 279, pp. 281, 282 [para. 80].

Weisstub, David N., Enquiry on Mental Competency: Final Report (1990), pp. 116 [para. 77]; 229 [para. 79]; 249 [paras. 14, 80, 81]; 250, note 443 [para. 79]; 421, 422 [para. 15].

Counsel:

Leslie McIntosh and Diana Schell, for the appellant;

Anita Szigeti, as amicus curiae;

Daphne G. Jarvis 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.

Solicitors of Record:

The Attorney General of Ontario, Toronto, Ontario, for the appellant;

Hiltz Szigeti, Toronto, Ontario, appointed by the Court as amicus curiae;

Borden Ladner Gervais, Toronto, Ontario, for the intervener, Schizophrenia Society of Canada;

Paterson MacDougall, Toronto, Ontario, for the intervener, Centre for Addiction and Mental Health;

Swadron Associates, Toronto, Ontario, for the interveners, Mental Health Legal Committee and Mental Health Legal Advocacy Coalition.

This appeal was heard on January 15, 2003, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on June 6, 2003, including the following opinions:

McLachlin, C.J.C., dissenting (Gonthier and LeBel, JJ., concurring) - see para­graphs 1 to 60;

Major, J. (Iacobucci, Bastarache, Binnie, Arbour and Deschamps, JJ., concur­ring) - see paragraphs 61 to 120.

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204 practice notes
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