laws2003

Starson v. Swayze SCC 2003 Consent to treatment for mental illness

Introduction:
    Disability studies are expanding the concept of disability out from a medical model of suffering and misfortune to a social model of empowerment.[1] The voices of the disabled are speaking up against the oppressors and surfacing on the public agenda.[2] Supreme Court decisions are part of the public agenda and help to define the law and thus the rules of behaviour in our society. Closely related to this is the question of who is defined as a ‘legal person’, and thus who is granted a voice in the courts and the law and thus who has legal rights?[3] These court defined rules apply to disabled persons, as well as, to others. Legislation is another source of law that applies to those of us with disabilities. Disabled people are becoming ‘legal persons’ through legislation[4] and “legislative action to end discrimination experienced by disabled persons.”[5]
    In the recent Supreme Court of Canada case Starson v. Swayze,[6] the court continued the expanding recognition of individual rights[7][8] to the mentally ill. The debate in the Starson v. Swayze is a very difficult one for me as I have faced this debate in my own life. In this paper I want to examine this case and will explore this debate between civil liberties and professional and family concern for the mentally ill.[9] The questions are: Do medications help one with mental illness? And, are we allowed to refuse this help if we find the medications cause harmful side effects?
    First, I will look at the debate in the Starson v. Swayze case and elaborate the involuntary treatment debate on the issues of facts and law that the court found itself debating.[10] Then I will look at the doctrine of consent to treatment and involunatry treatment. Then I will explore legal and medical views of the individual. This will lead to a discussion of the indeterminancy of medical and legal ideologies in psychiatry. Then a brief conclusion will suggest what I think is a recent trend in Supreme Court decisions. I will also be closing with my view on Starson v. Swayze.
The Starson case
    Scott Starson had been taking medication for treatment for bi-polar disorder. He found the side effects unbearable. He refused to take the medication any further.[11] His doctor found him incompetent to decide treatment. He appealed to the Ontario Consent and Capacity Board for a ruling on his capacity. They agreed with the doctor that he was incompetent. He appealed in court, the Ontario Consent and Capacity ruling on his capacity to refuse treatment and won his appeal. The doctor appealed in the next level of court. The Ontario Appeals Court also ruled in Starson’s favour. The case was appealed up to the Supreme Court. The Supreme Court concluded in a majority decision that he was capable of understanding that he had an illness.[12] Thus, he is or was legally competent to make his own decision regarding treatment. He understood his illness and understood what was available for him for treatment. The Court, in its decision in Starson v. Swayze, differed on the issue of his appreciating his illness.[13] He needs to have capacity to appreciate his illness before he can have capacity to consent to treatment. The Court opinion also differed on whether the Ontario Consent and Capacity Board was using a ‘best interests’ assessment.[14] The minority disagreed that he appreciated his illness and found Starson incompetent.[15] The minority felt the Ontario Consent and Capacity Board’s assessment of capacity was reasonable and did not use a ‘best interests’ assessment.[16] The majority of the court felt the Ontario Consent and Capacity Board should have assessed his capacity to consent to treatment based on his appreciation of his mental problems and his awareness of the treatment, not on the wisdom of his decision.[17] It is the Ontario Consent and Capacity Board, who should have appreciated Starson’s reasons for not wanting medication.[18] The court believed that there was no evidence that the proposed treatment would help Starson.[19] In fact, the review board acted in what they thought Starson’s best interests were rather than strictly assessing his ability to decide treatment.[20] In this assessment of Starson’s decision about treatment, rather than just assessing his capacity to make a decision, the Board stepped into unreasonableness. This is where the Ontario Consent and Capacity Board voided Starson’s rights.
    There are other categories involving incapacity that effect the mentally ill, such as the incapacity to manage property.[21] I am only focusing on capacity to refuse treatment in this paper as that is the issue in Starson v. Swayze.
Doctrine of consent to treatment: the law in this area
    The law grants implied consent to treatment for an unconscious person.[22] Medical treatment depends on informed consent.[23] Adequate information about the treatment and illness is one aspect of consent to treatment. [24] There are other aspects.
    According to L.E. Rozovsky, the law of consent to treatment has seven criteria to measure for valid consent.[25]
1. The patient must be legally competent to consent to treatment.
2. The patient must possess the mental capacity to authorize care.
3. The patient must receive a proper disclosure of information from the care-giver.
4. The authorization should be specific to the procedure to be performed.
5. The patient should have an opportunity to ask questions and to receive answers.
6. The authorization obtained should be free of undue influence and coercion.
7. The authorization obtained should be free of misrepresentation of material information.
Involuntary treatment and its dimensions
    I will explore Rozovsky’s second criteria concerning mental incapacity in this section. The law “presumes that the individual is mentally capable of authorizing treatment”, although there is a part of the doctrine of the law of consent to treatment that can find the patient mentally incompetent.[26] Thus, the finding of mental incompetence means that the patient is incapable of deciding consent to treatment on their own.[27] At this point, the doctrine of parens patriae will be used to allow the courts or a substitute decision-maker to act for the patients best interests.[28] At the same time, the finding of mental incapacity seems to occur often in psychiatry’s treatment with medications.
Insanity is often treated with medications. Doctors assume medications are in the patients’ best interests. Nevertheless, some patients like Scott Starson, the respondent in Starson v. Swayze, refuse to take medication,[29] because of unwanted side effects or because they feel the medications cloud their minds. Starson says he can not think clearly while under the influence or treatment of medications.[30] His mother disagrees.[31] At one point, in his hospitalization he was involuntarily injected with medications.[32] This was treatment without his consent and this type of treatment is coerced care.
    Coercive care seems widespread in regards psychiatric medication. Coercive care here, means being forced to take medications against one’s will. The forcing of medications on patients in treatment is a critical civil liberties debate.[33] In a way it is our legal codes concerning the mentally ill, that makes it this way.
    The arguments doctors make concerning incapacity and medications are also examples of coercive care. The doctors’ argument about deciding to use anti-psychotic medications claims that an insane mind can not choose what is best. But, that once the medications return one to sanity one can then choose. The tricky part of this argument, says that the insane must continue to use medications or risk losing the ability to choose and thus to consent to treatment or non-treatment. This argument is what I regard as psychological coercion. Based on this reasoning, one can never choose not to take medications because one must be considered competent to make a decision and one needs to be on medication to be considered competent.
    Doctors and philosophers, as well as lawyers and judges have looked at this issue.[34] Coercive care is what Torbjörn Tänssjö, a Swedish philosopher looked at in his recent book: Coercive Care, the ethics of choice in health and medicine.[35] Tänssjö says the solution to coercive care is using John Stuart Mill’s concepts of utilitarianism and anti-parentalism to create legal rules that a treatment professional can follow.[36] In order to conclude that these legal rules are what is needed, he studied European, American, Canadian, Australian and Japanese laws and medical practices.[37] Utilitarian concerns for the public’s safety and the patient’s safety seem to justify treatment with medications that may also harm the individual. However, Utilitarians also believe that the individuals should be free from interference. Forced care should not happen. The state or doctor acting like the patient’s parent is a metaphor for caring for the patient’s safety[38] and interfering. I agree with Tänssjö, in that I think that the law assumes that a patient is the best one to decide on treatment.[39] There should be “respect for the autonomy of the individual in decisions about medical care”.[40] By taking out the parentalism in health care, we add responsibility rather than dependency.[41]
    Thomas Szasz is a leading critic of the psychiatric health system. Szasz questions care and our motivations in caring for someone. Are doctors always acting in the patient’s best interests?[42] Szasz sees the problem of dependency in adults to be an ages old problem that we solve these days by psychiatry. He feels that some illnesses are in fact not diseases at all but are a way we use to handle economically dependent adults these days.[43]
    However, not all ‘involuntary treatment’ is coercive treatment. There is a fine line between manipulation and persuasion. Tänssjö, the philosopher, explores this subtle difference.[44]
    Involuntary treatment happens after a finding of incapacity, Rozovsky’s second criteria in the doctrine to consent to treatment. The law views incapacity as the inability to appreciate the treatment or non-treatment, and/or appreciate the illness.[45][46] A doctor assesses the patient’s capacity to make consent, and this can then be appealed to the Ontario Consent and Capacity Board and then to the courts.[47] The Starson v. Swayze case in the Supreme Court, is a result of Starson’s successful appeal of the Ontario Consent and Capacity Board decision concerning incapacity. That appeal was then counter appealed until it reached the Supreme Court.
    The debate around involuntary treatment in psychiatric practice typically finds the lawyer arguing for civil liberties of the patient to refuse treatment and the doctor arguing for treatment in the best interests of the patient.[48][49] The ruling in Starson v Swayze illustrates this debate in that the court ruled for Starson’s rights against the doctor’s claim that Starson needed treatment. The law has two models it can use in this debate. One model gives autonomy to the patient to ‘decide treatment’ on their own. The other model uses the parens patriae doctrine to decide in the patients’ best interests. To further look at this debate, I want to illustrate the differences between legal individualism and medical individualism. Then, briefly tie in my experience with the debate.
Legal individualism and medical individualism
    While individual rights are a basis of our modern legal system,[50] legal and medical scholars view the individual in different ways.
    A scholar studied in the Introduction to private law relationships course, Steven Lukes suggests the concepts of individuality in the liberal state are:
1. Inherent dignity of individual
2. Autonomy
3. Privacy
4. Political rights[51]
To which we added in class ‘justice’ as a final point.[52]
    A scholar in psychotherapy, Raymond Barglow, defines individuality broadly, admitting that individuality has no clearly defined, or agreed upon characteristics.[53] Barglow represents in this section a medical view of the concept of individuality. He sees five points in a definition of individuality:
1. Boundary
2. Centered subjectivity
3. Ethics
4. Recognition
5. Identification[54]
    Comparing these views shows that autonomy could be the same as boundary, centered subjectivity and/or identification. Justice could match with ethics. However, where did privacy go in the medical view? Is it boundary?
    In my understanding, the legal view developed from philosophy, whereas the psychotherapy view bases itself on the hypothetical psychoanalytic model of the human developed in treating the mentally ill.
    The medical model also depends on the ‘expert’, the doctor deciding health matters. The medical model favours the legal parens patriae doctrine. The doctor is considered objective and neutral in the decision. The studies of disability was a task of medical sociologists in the past although this is changing with more disabled people contributing to the general knowledge and study.[55] The medical community feels it has the best interests of the patient in mind and is always the best community to decide health matters. In Starson, the courts ruled against this model and granted more autonomy to those of us with mental illness to decide our own lives.
    However, there are broader differences between medicine and law that affect the mentally ill, that function on liberty in a different way not just affecting autonomy. When the law finds someone ‘not guilty by reason of insanity’, we might believe as law students that the person is bound to held at a mental hospital indefinitely. In the case of Emerson Bonnar, in 1964 in New Brunswick, a doctor labeled Emerson as intellectually challenged in court.[56] Emerson had bungled a purse snatching and admitted the crime.[57] Ruled unfit to stand trial he was committed on a Lieutenant-Governor’s Warrant and spent 16 years in a hospital.[58] This was for a crime that, “would have resulted at worst in a 30-day custodial sentence at a local jail”.[59] When a person walks off the street and into a hospital as a voluntary patient, the term of hospitalisation is not as long as 16 years. Hospital stays for insanity can, in some cases, be only for a few weeks.[60] This seems on the surface to show that medicine is the better tool to deal with the mentally disabled in terms of liberty.
    Then again, in my own experience one could plead guilty to a serious criminal charge but tell the judge that one had been involved in a hospital therapy program and plea bargain with a guilty plea one’s total freedom. On the other hand, one could be placed into a hospital by one’s parents and find one’s self coerced into staying for months and months, and then persuaded to take medication for the rest of one’s life. Here, we are starting to see the rainbow of shadings in law and medicine. This also starts to add colour to the Starson v. Swayze case, because Starson was also involuntarily hospitalized[61] so both liberty and autonomy are at issue in his life.
    The problem of disabilities as seen by either the medical or legal view of individualism is seen as something wrong with the individual or at least a disabled person deviating from some normal functioning.[62] In fact, Law and Medicine are social systems and it is up to the new field of disability studies to point out the social construction of disability[63] and the faults with these professional social systems.
Conclusions
    There is nothing reasonable about mental illness. I believe taking medications is important in the medical treatment of mental illness. Starson would agree that, if I am helped, by taking medication, then I should take medication.[64] Even if the Supreme Court has now ruled that I am not legally obliged to take medications, I will continue to do so.
    I feel the medical model of individuality is wrong and is not easy to understand. The medical model as reflected in Starson v. Swayze showed that doctors only see their own point of view and are arrogantly riding modern medicine’s ‘cure everything’ perspective. Can the legal model really claim any more power when facing the facts of insanity? Insanity in the legal model affecting liberty accuses the insane of not knowing or appreciating reality.[65] The best therapy for insanity is to learn more about insanity. To manage insanity legally, and medically, one must come to appreciate insanity not reality.
    Insanity in the legal model affecting consent to treatment can go two ways. The courts or legislation can invoke the parens patriae doctrine or they can allow autonomy for the mentally ill. In Starson v. Swayze the majority had allowed Scott Starson his autonomy to control his own treatment. The court has ruled against the parentalism of the medical ‘expert’ model and returned rights of autonomy to the mentally ill.
    However, the Supreme Court did something all together else, in Starson v Swayze, than I am writing about. In this case, they ruled against medication. In this way of seeing the decision in Starson v. Swayze the court did again what they did when they denied Harvard University a life form patent.[66] They ruled against, capitalist health care and profiteering biotechnology companies. I think in these rulings the court was acting in concert with the concurrent health care reform debate. I will be watching for more intersections between law and medicine in the future in the hopes of supporting not civil liberties but health for all and socialist not-for-profit medicine.

Footnotes

1. C. Barnes, G. Mercer, & T. Shakespeare, Exploring disability: a sociological introduction (Cambridge, UK: Polity, 1999) at 2.
2. Ibid. at 11.
3. C.D. Stone, Should Trees Have Legal Standing? Towards Legal Rights for Natural Objects (1972) 45 S. Cal. L. Rev. at
          450-501, in M. J. Mac Neil, et al. ed., Introduction to Private Law Relationships, 3rd ed. (North York, ON: Captus Press
          Inc., 1989-1999) at 107.
4. R. M. Levy, Leonard S. Rubenstein, The Rights of People with Mental Disabilities (Carbondale, IL: Southern Illinois University
          Press, 1996) at 1.
5. Barnes, supra note 1 at 11.
6. Starson v. Swayze, 2003 SCC 32. <http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2003scc032.wpd.html> (Cited June
          2003).
7. Stone, supra note 3 at 107.
8. Sir H. S. Maine, Ancient Law (London: Oxford University Press, 1931) at 149, 229, in M. J. Mac Neil, et al. ed., Introduction
          to Private Law Relationships, 3rd ed. (North York, ON: Captus Press Inc., 1989-1999) at 33.
9. M. A. Peszke, Involuntary Treatment of the Mentally Ill, the problem of autonomy (Springfield, IL: Charles C. Thomas
          Publisher, 1975) at 5.
10. Starson v Swayze, supra note 6 at para 84.
11. O’Neill, J., The patient who won’t take his medicine (Ottawa, ON: The Ottawa Citizen, June 6, 2003) at A1-2.
12. Starson v Swayze, supra note 6 at para 107.
13. Ibid. at par. 107.
14.   Ibid. at para 53.
15. Ibid. at para 58.
16. Ibid. at para 53.
17. Ibid. at para 112.
18. Ibid. at para 101.
19. Ibid. at summary.
20. Ibid. at para 108.
21. B. F. Hoffman, The Law of Consent to Treatment in Ontario 2nd. ed. (Toronto, ON: Butterworths Canada Ltd., 1997) at 60.
22. The St. John Ambulance, First Aid, First on the Scene Activity Book (Ottawa, ON: St. John’s Ambulance, 2000) at Exercise
           1-2.
23. L. E. Rozovsky, The Canadian Law of Consent to Treatment, 2nd ed. (Markham, ON: Butterworths, 1997) at 1.
24.   Ibid. at 3.
25. Ibid. at 3.
26.   Ibid. at 6.
   27. Ibid. at 50-54.
28.   LA Forest, in Re: Eve (1986), 31 D.L.R. (4th) 1 (S.C.C.) in M. J. Mac Neil, et al. ed., Introduction to Private Law
             Relationships, 3rd ed. (North York, ON: Captus Press Inc., 1989-1999) at 182.
29. O’Neill, supra note 11.
30. Ibid.
31. Ibid.
32. Ibid.
33. Levy, supra note 4 at 102-103.
34.   Peszke, supra note 9 at vii.
35. T. Tänssjö, Coercive Care, The ethics of choice in health and medicine (New York, NY: Routledge, 1999)
36. Ibid. at 2-5.
37. Ibid. at viii.
38. T. Szasz, Cruel compassion (Toronto, ON: John Wiley & Sons, Inc., 1994) at x.
39. Robins, in Malette v. Schulman et al. (1990) 72 O.R. (2nd) 417 (O.C.A.) in c M. J. Mac Neil, et al. ed., Introduction to
         Private Law Relationships, 3rd ed. (North York, ON: Captus Press Inc., 1989-1999) at 43.
40. Tänssjö, supra note 35 at 17.
41. Ibid. at viii.
42. Szasz, supra note 38 at 2.
43.   Ibid. at xii.
44. Tänssjö, supra note 35 at 9-10.
45. Starson v. Swayze, supra note 6 at para 8.
46. Rozovsky, supra note 23 at 8.
47. Starson v. Swayze, supra note 6 at para 68.
48. Peszke, supra note 9 at vii and 7.
49. E. R. Saks, Refusing Care: Forced Treatment and the Rights of the Mentally Ill (Chicago, IL: University of Chicago Press,
         2002) at 5.
50. S. Lukes, Excerpts from The Basic Ideas of Individualism (Oxford: Basil Blackwell, 1973) at 45, 49, 52, 55, 59, 62, 66, 79-80, 83-84, 87, in M. J. Mac Neil, et al. ed., Introduction to Private Law Relationships, 3rd ed. (North York, ON: Captus Press Inc., 1989-1999) at 34-36.
51. Ibid. at 34-36.
52. N. Sargent, LAWS 2003 lectures #4 (Ottawa, ON: Carleton University ITV, summer 2003).
53. R. Barglow, The Crisis of the Self in the Age of Information: computers, dolphins and dreams. (New York, NY: Routledge,
         1994) pg. 64.
54. Ibid. at 64.
55. Barnes, supra note 1 at 3.
56. H. Savage, C McKague, Mental Health Law in Canada (Toronto, ON: Butterworths, 1987) at 32.
57. Ibid. at 31.
58. Ibid. at 32.
59. Ibid. at 32.
60. E. F. Torrey, Surviving Schizophrenia, A Manual for Families, Caregivers and Consumers (New York, NY: Harper & Row,
         1983) as excerpted at <www.mentalhealth.com/book/p40-sc03.html> (Cited July 6, 2003) at the chapter Treatment of
         Schizophrenia.
61. O’Neill, supra note 11.
62. Barnes, supra note 1 at 40.
63. Ibid. at 40.
64. Starson v. Swayze, supra note 6 at para 99.
65. Criminal Code of Canada R.S. 1985,c C-46, s. 16 (1).
66. D. Yourk, Harvard Mouse can’t be patented (Toronto, ON: The Globe and Mail Online Edition, December 5, 2002)
        <http://www.globeandmail.com> (Cited February 2, 2003).

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