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APPEAL FOR ONTARIO
B E T W E E N:
PROFESSOR SCOTT STARSON
aka SCOTT JEFFERY SCHUTZMAN
Professor Starson in
Anita Szigeti, amicus curiae, Respondent
- and -
DR. IAN SWAYZE and DR.
PAUL POSNER, Appellants
For the appellants
Heard: August 24, 2000
On appeal from the judgment of Madam
Justice Molloy dated November 26, 1999
BY THE COURT:
is an exceptionally intelligent man. His field of expertise is physics.
Although he has no formal qualifications in that field, he is in regular
contact with some of the leading physicists in the world. In 1991 he
co-authored an article entitled “Discrete Anti-Gravity” with Professor H.
Pierre Noyes, who teaches physics at Stanford University and is the Director
of the Stanford Linear Accelerator Center. Professor Noyes has described
Professor Starson’s thinking in the field of physics as being ten years
ahead of its time.
Professor Starson has a history of mental illness, dating back to 1985. He
has been diagnosed as suffering from a bipolar affective disorder. On
several occasions during the last 15 years he has spent time in mental
institutions. In November 1998 Professor Starson was found not criminally
responsible on account of mental disorder on two counts of uttering death
threats. In January 1999 the Ontario Review Board ordered that he be
detained at the Centre of Addiction and Mental Health (the Centre).
The appellants Dr.
Ian Swayze and Dr. Paul Posner are psychiatrists at the Centre. They
proposed to treat Professor Starson with mood stabilizers and with
anti-psychotic, anti-anxiety and anti-parkinsonian medication. Professor
Starson refused treatment. On January 20, 1999, the Consent and Capacity
Board (the Board) found that Professor Starson was not capable of making his
own decisions about treatment. Professor Starson appealed the Board’s
finding. In a thorough and well-reasoned decision dated November 26, 1998,
Molloy J. concluded that the Board’s finding was unreasonable and she set it
Dr. Swayze and Dr.
Posner appeal Molloy J.'s decision to this court. After much deliberation,
we have decided to dismiss the appeal. Because Molloy J.’s decision is so
comprehensive, and because we substantially agree with it, we will not
trammel on her work. Instead, we will restrict our observations to the
essence of our own reasoning.
The legal test for
determining whether a person is capable of making his or her own treatment
decisions is found in s. 4(1) of the Health Care Consent Act, 1996,
S.O. 1996, c.2 (the Act). It is a two-part test. A person is “capable with
respect to treatment” only if the person is both “able to understand the
information that is relevant to making a decision about the treatment” and
“able to appreciate the reasonably foreseeable consequences of a decision or
lack of decision”:
4. (1) A person is
capable with respect to 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.
Under s. 4(2) of
the Act, a person is “presumed to be capable with respect to treatment...”.
The onus therefore rested on the appellants to show, on a balance of
probabilities, that Professor Starson was incapable of making his own
treatment decisions because he did not meet either or both parts of the test
in s. 4(1).
contend that Molloy J. misapplied both the standard of review and the
statutory test in s.4(1). We disagree. The body charged with deciding
whether a person is capable with respect to treatment is the Board. It is a
specialized tribunal and its findings are therefore entitled to deference
from a reviewing court. As this court said in I.T. v. L.L. and T.C.
(1999), 46 O.R. (3d) 284, the appropriate standard of review is
reasonableness. This is the standard Molloy J. applied.
J.'s reasons show that she properly applied the two-part test in s. 4(1).
Her conclusion that the Board’s finding of incapacity was unreasonable is
not only amply supported by the evidence and her analysis of it, it is also,
in our view, correct. Like Molloy J., we are satisfied that Professor
Starson was both able to understand the information relevant to making a
decision about his treatment and able to appreciate the reasonably
foreseeable consequences of his decision to refuse treatment. Our
conclusion that Professor is capable with respect to treatment is supported
by three important considerations in the record.
Starson recognizes that he has mental problems. Unquestionably, he has a
deep distrust of psychiatry, which he likens to a religion. His reply to
the question whether he recognizes he is mentally ill was unresponsive but
logical: He answered that the question left him in a “catch 22” situation.
If he said “yes”, the authorities would say he must be treated for it; if he
said “no”, the authorities would say he must be treated because he lacks
insight into his illness.
distrust of psychiatry and his logical refusal to concede that he has a
mental illness, Professor Starson acknowledged in his evidence that he has
mental problems. He stated that when these problems first surfaced in the
mid-1980s they were “almost impossible” to handle. When asked whether these
problems have been resolved since that time, he replied: "No". At the very
least, Professor Starson acknowledged exhibiting the symptoms of the
“labels” Dr. Swayze puts on him, suggesting an ability to understand the
nature of his condition and its manifestations. In his own words, “I
certainly have exhibited the symptoms of these labels that you give ... and
certainly I have exhibited things that would be considered manic”. This is
not the testimony of a man who, as the appellants contend, is in "total
denial" of his illness. In fact, Professor Starson understands the benefit
of some treatment in his life. He simply prefers to work on his problems in
a therapeutic relationship with Dr. Posner, without taking psychiatric
medications. Any discussion about whether Professor Starson refers to
himself as suffering from a 'mental illness' is therefore simply a debate
important consideration is that the appellants led no evidence that any of
the many psychiatric medications forced on Professor Starson in the past had
ever actually helped him. While Professor Starson agreed that a person
should be on medication if that person thinks the medication is helping, he
did not think that the medications he had taken had helped him: “I’ve been
through all the treatment. It hasn’t worked”. The appellants did not
suggest otherwise. Indeed, Dr. Swayze admitted that none of the drugs
Professor Starson had received permitted him to function even “adequately”,
and that it was "unclear" whether they ever would. Moreover, according to
Professor Starson, the side effects of the treatments “have always been the
most horrible experiences of my life”.
The third and by
far the most important consideration, the consideration that lies at the
root of Professor Starson’s refusal to accept treatment, is his evaluation
of the consequences of treatment on his scientific work. The intended
effect of the psychiatric medications is to slow down Professor Starson's
thinking to more “normal” levels. The medication would slow his brain to
the point where he cannot pursue the one thing that gives his life meaning:
his scientific research. In his own words, eloquently expressed to the
Well, like all
psychiatrists that I’ve met before them, they all think the same way,
that the only thing they can do is to give you these chemicals – and
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, and to slow down my brain which means I can’t do what I’ve
been trying to do – or what I have been doing for 30 years and will be
successful at doing. And that would just be like worse than death.
reasons, the Board observed that "despite the patient's claim that he is
generally happy, his life has been devastated by his mental disorder". We
agree with Molloy J. that what the Board thinks would be best for Professor
Starson is irrelevant under the statute. Moreover, the Board's conclusion
is inconsistent with Professor Starson's own views. He claims: "...I
certainly have no regrets and I certainly consider myself to have had a
wonderful life and I'm still having a wonderful life and will go back to my
life even better than it was before".
Putting aside any
paternalistic instincts – and we think that neither the Board nor the
appellants have done so – we conclude that Professor Starson understood,
through the screen of his mental illness, all aspects of the decision
whether to be treated. He understands the information relevant to that
decision and its reasonably foreseeable consequences. He has made a
decision that may cost him his freedom and accelerate his illness. Many
would agree with the Board that it is a decision that is against his best
interests. But for Professor Starson, it is a rational decision, and not
one that reflects a lack of capacity. And therefore it is a decision that
the statute and s. 7 of the Canadian Charter of Rights and Freedoms
permit him to make.
The appeal is
“J.I. Laskin J.A.”
“S. Goudge J.A.”
Released: June 14,