Last week, my partner Suzana Popovic-Montag blogged on James v James, in which Justice Faieta held that a 79-year-old woman was capable despite the unusual decisions she had made regarding the management of her $11 million estate. His decision was based on the test for capacity set out in the 2003 case of Starson v Swayze, which shows that capacity is not assessed based on what others deem to be rational.
Scott Starson had an electrical engineering degree and worked multiple jobs while maintaining a deep interest in physics. Having a history of mental illness, he was diagnosed with bipolar disorder and had repeatedly been hospitalized. While detained at the Centre for Addiction and Mental Health in 1999, Starson was prescribed mood stabilizers and anti-psychotic medications, which he refused to take. The Consent and Capacity Board noted that he was unwilling to acknowledge his mental illness and therefore could not make the decision to remain unmedicated.
Starson appealed the CCB decision, and the case came before Justice Molloy at the Ontario Superior Court. Her Honour ultimately found that the CCB’s decision about what was in Starson’s “best interest” was beyond their scope, and that Starson was capable of making decisions about his medical treatment.
Drs. Posner and Swayze appealed Justice Molloy’s decision, but the Court of Appeal, in a unanimous decision, upheld it. The Court found that Starson was aware of his mental health issues and was refusing treatment due to a fear that it would impact his cognition.
This would prove to be a controversial decision within the psychiatric community as Starson remained detained and continued to refuse treatment. The decision was appealed to the Supreme Court of Canada, which heard the case in 2002. The Supreme Court came to a 6-3 decision, upholding the decision of the lower Courts. Justice Major wrote “Although the patient did not conceive of the condition as an illness, he was quite aware that his brain did not function normally. There was also no evidence that the proposed medication was likely to ameliorate the respondent’s condition.”
The decision relied upon the Health Care Consent Act, which gives the following definition for capacity:
- The person is “able to understand the information that is relevant to making a decision about the treatment” at issue.
- The person is “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.
Although Starson wouldn’t accept his diagnosis, he was aware of the ways his illness affected him and was therefore able to analyze the potential consequences of treatment. This case ultimately shows that clear evidence must be given for incapacity, and a person’s denial of their mental illness cannot be used as a criterion for incapacity.
Thanks for reading