The Supreme Court of Canada at the Limits of Decisional Capacity
| Author | Sheila Wildeman |
| Pages | 241-292 |
241
The Supreme Court of Canada at the Limits
of Decisional Capacity
sheila wildeman
A. INTRODUCTION
In this paper, I address the theme of choosing and refusing treatment by ex-
ploring some challenges registered in the Canadian jur isprudence on treatment
decision-making at the limits of decisional capacity. I take as my dual focus E.
(Mrs.) v. Eve () and Starson v. Swayze (). In Eve, the Court excavates
and delimits its parens pa triae powers to make orders in the interests of those
lacking decisional capacity, in answer to a mother’s request to authorize steril-
ization of her mentally disabled daughter. In Starson, the Court addresses the
legal conditions (as framed by Ontario’s health care consent legislation) for de-
termining whether an individual — in this case an intellectually g ied individ-
ual involuntarily held in the forensic psychiatric system —is capable of deciding
about a proposed medical intervention. Both these cases by necessity press and
exceed the dominant autonomy-centred regimes for regulating treatment deci-
sion-making, forcing a modicum of self-reexivity into those regimes by requir-
ing us to th ink more deeply about the nat ure and limits of, a nd principles that
should hold sway in the absence of, autonomy-based claims to respect for treat-
ment choice. Additionally, these cases raise implicit questions about the scope
and limits of the courts’ own institutional capacity to make informed, respon-
sive judgments about individuals’ decisional capacity and the parameters of sub-
stitute-decision making —and about possible means of enhancing or enabling
[] S.C.R. [Eve].
[] S.C.R. [Starson].
242 HealthLawattheSupremeCourtofCanada
that capacity, for instance, through increased attention to the relationships and
administrative processes that might precede judicial involvement.
Eve and Starson together constitute the totality of the Supreme Court’s
jurisprudence on capacity to make treatment decisions and on third-party au-
thorization of proposed medical interventions in the lives of adults. However,
it may be objected from the start that it is inappropriate to class the two cases
together, given the marked divergence of the issues they raise and of the sources
of law on which they draw. Indeed, it is typical for legal commentators as well
as courts to point out that the central issues in play in such cases as Eve and
Starson are prone to be, but must not be, confused. at is, the assessment of
decisional capacity is an inquiry grounded in and guided by the principle of
respect for autonomy, and is rendered illegitimate by any insistence that the
subject’s putative decision align with social consensus about, or assessor opin-
ion about, the subject’s best interests. In contrast, the imperatives animating
the analysis of third-party authorization of medical interventions in the lives of
those incapable of making such decisions proceed not from the commitment to
autonomy, but from the duty to advance the best interests of the non-autono-
mous, in accordance with a conception of inherent dignity attaching to all per-
sons. Where a person has never possessed decisional capacity (and so lacks any
relevant prior capable wishes or values), any attempt to cast an intervention as
voluntary or as proceeding from the subject’s interest in autonomy (as what the
subject “would have chosen, if capable”) is open to the charge that it is a mere
legal ction, lending an air of legitimacy to an otherwise unstructured, purely
subjective act of the surrogate’s imagination.
An initial response to such concerns about bring ing together Eve and
Starson in a paper exploring the limits of decisional capacity is that in each
of these cases the primary issue (best interests in Eve, capacity in Starson) is
I am not addressing the case B.(R.) v. Children’s Aid Society of Me tropolitan Toronto, []
S.C.R. , i n which parental religious con siderations are displaced in a decision conc erning
an infant’s health c are. at case is addre ssed in Jocelyn Downie’s art icle in this collection.
For a recent discussion of the pri nciples underpinning best interest s-based substitute
decision-making , referencing the philosophica l debates on the criteria for personhoo d
and disting uishing the principle of respe ct for human dignity from t hat of respect for
autonomy, see Norman Cantor, Making Medical De cisions for the Profoundly Mentally
Disabled (Cambridge, MA: MI T Press, ) c. at –.
See
ina, notes –.
e Court in Eve is not forma lly concerned with asses sing Eve’s best interests, but rather
with setting li mits to its parens patria e jurisdiction; however, the latter i ssue is necessarily
bound up with the former, as I dis cuss below.
The Supreme Cour t of Canada at the Limits o f Decisional Capacit y 243
haunted by its “other” (capacity in Eve, best interests in Starson). at is, in
Eve, the Court’s judgment on the inherent limits of its parens pat riae jurisdic-
tion follows upon— with a marked uneasiness that betrays an impetus toward
erasure —the prior issue of Eve’s ability to make a decision about sterilization.
Starson, on the other hand, is squarely directed at the issue of capacity to make
treatment decisions, and the reasons of both the majority and dissent expressly
reject any infusion of this inquiry w ith concerns about the subject’s best inter-
ests. Nonetheless, the decision arguably exposes the intransigence of best in-
terests-based considerations in capacity assessment as the Court grapples with
how to deal with background information (proceeding from and valenced in
accordance with medical knowledge) about the condition of the subject and the
likely consequences of the decision.
A further reason for bringing these cases together is that t hey reveal dier-
ent dimensions of a problem posed to the courts, and to administrative decision-
makers, by disputes involving decisions about proposed medical interventions.
at is, both disputes about capacity to make such decisions and disputes about
the legality of third-party authorization rai se concerns about how to identify or
articulate, and how to appropriately resolve, conicts of values and perspectives
among persons involved in such disputes. In best interests-based decision-mak-
ing, what constitutes an interest worth identifying and prioritizing turns upon
the ranked values and experience-based assumptions of those participating in
and adjudicating the dispute, and the resolution of such disputes may attract
the charge that a given perspective or value-set was inappropriately discounted.
In capacity assessment, such conicts pose a risk that the subject’s evaluative
or experiential bases of choice are not simply devalued but rendered opaque or
invisible to those assessing decisional capacity, so increasing the likelihood of a
determination of incapacity. us the question arises in any case of declared in-
capacity whether it is most justied to characterize that judgment as reecting
the subject’s inability to formulate recognizable reasons or the assessor’s failure
to recogni ze the subject’s reasons .
It is important to acknowledge in this way the complexity of the eld that
an adjudicator enters in resolving the sorts of disputes in play in Eve and Starson.
Indeed, while the Supreme Court sits at the apex of authority in interpreting the
common law and statutory norms for resolving disputes about decisional cap-
acity and/or best interests, there remain a host of competing sites of knowledge
(values, perspectives)—represented, for instance, by family members, doctors
or other health care workers, and subjects of decision— actively and routinely
engaged in structuring and, ordinarily, resolving such disputes. In those rare
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