The Respondent (“Starson”) was admitted to hospital after being found not criminally responsible for making death threats, whereupon the Ontario Review Board ordered his detention for 12 months. At that time, Starson refused medical treatment proposed by his psychiatrist for his bipolar disorder. The Consent and Capacity Board of Ontario (the “Board”) held that Starson lacked the capacity to refuse treatment. The Ontario Superior Court overturned the finding of incapacity and the Court of Appeal upheld this finding. The majority of the Supreme Court of Canada dismissed the appeal, finding that the Board misapplied the statutory test for capacity and improperly allowed its own conception of Starson’s best interests to influence its finding. The Board’s finding of incapacity could not be upheld.

Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Adult in need of protection – Mental health – Substitute decision maker – Right to refuse medical treatment – Capacity – Test – Judicial review – Standard of review – Reasonableness

Starson v. Swayze, [2003] S.C.J. No. 33, Supreme Court of Canada, June 6, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

The statutory test for capacity is provided by the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the “Act”). The test is outlined as follows:

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.

The right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy and is equally important in the context of treatment for mental illness. The Supreme Court of Canada held that unwarranted findings of incapacity severely infringe a person’s right to self-determination but that in some instances, the well-being of patients who lack the capacity to make medical decisions must depend on state intervention.

The Act presumes that a person is capable to decide to accept or reject medical treatment and that the onus is on the attending physician to prove that the patient is incapable. The Supreme Court of Canada agreed with the Court of Appeal that the standard of proof should be the civil standard of a balance of probabilities. In reviewing capacity, the court held that capacity involved two criteria. First, the person should be able to understand the information relevant to making a treatment decision and second, the person should appreciate the reasonably foreseeable consequences of the decision or lack of one. The Act required a patient to have the ability to appreciate the consequences of his or her decision to refuse treatment, but did not go so far as to require an actual appreciation of those consequences.

The Supreme Court of Canada followed the pragmatic and functional approach to the standard of review as explicated in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19. The question for review in this case was the Board’s determination of capacity, which was held to be a question of mixed fact and law. The Board was required to apply the evidence before it to the statutory test for capacity, and in the absence of any error in law, the question became fact-intensive. The appropriate standard of review was reasonableness.

The reviewing judge’s decision that there was no reasonable basis upon which the Board could decide that Starson was in almost total denial of his condition was upheld.

There was no evidence that the proposed medication was likely to ameliorate Starson’s condition, and Starson gave evidence that he appreciated the intended effects of the medication. The Board had entirely misapprehended Starson’s reasons for refusing the medication, by acknowledging only that he had some antipathy to the medication as a result of suffering past side effects. However, it was Starson’s evidence 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”. Starson resisted the medication in part because it would preclude him from pursuing his scientific research as a physicist.

The Board had also found that the Respondent did not appreciate the consequences of his decision to refuse medication. However, Starson was never asked at the hearing whether he understood the possibility that his condition could worsen without treatment. This had the effect of shifting the onus to Starson to prove this ability, which was incorrect. There was no basis to find that Starson lacked awareness of his condition or that he failed to appreciate the consequences of treatment, and so there was no support for the Board’s ultimate finding of incapacity.

The Supreme Court of Canada also upheld the finding of the reviewing judge that the Board had misapplied the statutory test for capacity. The interpretation of the legal standard for capacity is a question of law. As a result, no deference was owed to the Board on this issue, and the broad statutory right of appeal and adjudicative nature of the proceedings militated against deference. A correctness standard of review was applied. The Board erred in law in straying from the legislative mandate to adjudicate solely based on the patient’s capacity, evidenced by its statement that it viewed with great sadness the current situation of the patient and indicating that his life had been devastated by this mental disorder. Putting aside the fact that Starson entirely disagreed with those statements, the tenor of the comments indicated that the Board misunderstood its prescribed function. The sole task of the Board was to determine the patient’s mental capacity and the wisdom of Starson’s treatment decision was irrelevant to that determination.

The majority also held that the Board’s decision was specific to the patient’s capacity at the time of the hearing, and a later finding that Starson was capable might effect future treatment decisions.

On judicial review under the Act, 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 the hearing is irrelevant. This should be contrasted with the situation dealt with in R. v. Owen 2003 SCC 31, 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 was 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.

The majority dismissed the appeal.

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