Starson v. Swayze

Starson v. Swayze
Collection
Supreme Court Judgments
Date
2003-06-06
Neutral citation
2003 SCC 32
Report
[2003] 1 SCR 722
Case number
28799
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Professional law
Notes
SCC Case Information: 28799
Decision Content
Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32
Dr. Russel Fleming Appellant
v.
Professor Scott Starson a.k.a. Scott Jeffery Schutzman Respondent
and
Schizophrenia Society of Canada, Centre for
Addiction and Mental Health, Mental Health Legal
Committee and Mental Health Legal Advocacy Coalition Interveners
Indexed as: Starson v. Swayze
Neutral citation: 2003 SCC 32.
File No.: 28799.
2003: January 15; 2003: June 6.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Physicians and surgeons –– Medical treatment — Consent –– Ontario Consent and Capacity Board — Patient refusing consent to proposed medical treatment for bipolar disorder — Physicians finding patient not capable of making treatment decision — Board’s confirmation of incapacity overturned on judicial review — Whether reviewing judge properly applied reasonableness standard of review to Board’s finding of incapacity — Whether reviewing judge correctly found that Board misapplied statutory test for capacity — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A.
Since 1985 the respondent has frequently been admitted to mental institutions in the United States and Canada and has most often been diagnosed as having a bipolar disorder. His recent admission to hospital arose after he was found not criminally responsible for making death threats and the Ontario Review Board ordered his detention for 12 months. The respondent’s physicians proposed treatment for his bipolar disorder that included neuroleptic medication, mood stabilizers, anti‑anxiety medication and anti‑parkinsonian medication. The respondent refused to consent to this medication and the attending physician found him not capable of deciding whether to reject or accept the proposed medical treatment. The Ontario Health Care Consent Act, 1996 permits a person to be treated without consent on grounds of lack of capacity, defined as a lack of the ability “to understand the information that is relevant to making a decision about the treatment . . . and . . . to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. The respondent applied to the Ontario Consent and Capacity Board for a review of the physician’s decision and the Board’s confirmation of incapacity was subsequently overturned on judicial review at the Superior Court of Justice. The Court of Appeal upheld the findings of the reviewing judge.
Held (McLachlin C.J. and Gonthier and LeBel JJ. dissenting): The appeal should be dismissed.
Per Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps JJ.: The Health Care Consent Act, 1996, presumes a person is capable to decide to accept or reject medical treatment; therefore, patients with mental disorders are presumptively entitled to make their own treatment decisions. The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act. Capacity involves two criteria: first, a person must be able to understand the information that is relevant to making a treatment decision and second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. The legislative mandate of the Consent and Capacity Board is to adjudicate solely upon a patient’s capacity and the Board’s conception of the patient’s best interests is irrelevant to that determination. The question under review, namely the Board’s determination of capacity, is a question of mixed fact and law: the Board must apply the evidence before it to the statutory test for capacity. In the absence of any error of law, this question is relatively fact‑intensive. Applying the pragmatic and functional approach to this question, it is clear that reasonableness is the appropriate standard of review.
In this case, the reviewing judge applied the proper standard of review and correctly held that the Board’s finding was unreasonable. The Board’s determination of incapacity turned on two findings: that the respondent was in “almost total” denial of a mental disorder, and that he failed to appreciate the consequences of his decision. A careful review of the evidence demonstrates that there is no basis for either of these findings. 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. Moreover, the respondent appreciated the intended effects of the medication. The Board’s conclusion that treatment would improve his chances at future review board hearings is entirely speculative. There was no basis for the Consent and Capacity Board to find that a possible benefit of treatment would be the resumption of the respondent’s work as a physicist. Lastly, the respondent was never asked at the hearing whether he understood the possibility that his condition could worsen without treatment. Consequently, there is no support for the Board’s ultimate finding of incapacity.
In addition, the Board misapplied the statutory test for capacity. The interpretation of this legal standard is a question of law. No deference is owed to the Board on this issue and a correctness standard of review is to be applied. Although the Board found the respondent failed to appreciate the risks and benefits of treatment, it neglected to address whether the reasons for that failure demonstrated an inability to appreciate those risks and benefits. Furthermore, the Board’s reasons indicate that it strayed from its legislative mandate, which was to adjudicate solely upon the patient’s capacity. The wisdom of the respondent’s treatment decision is irrelevant to that determination. The Board improperly allowed its own conception of the respondent’s best interests to influence its finding of incapacity.
Per McLachlin C.J. and Gonthier and LeBel JJ. (dissenting): The Consent and Capacity Board properly applied the law and nothing in its reasons suggests that it strayed from the question of the respondent’s capacity to make medical decisions on his own behalf. The Board’s preliminary expression of sympathy for the respondent’s actual situation was merely an expression of concern and does not show that the Board focussed on the respondent’s best interests rather than on his capacity.
The issue in this case is not whether the Board’s conclusion was the best conclusion on the evidence, but rather whether it is among the range of conclusions that the Board could reasonably have reached. Only if the Board’s conclusion is unreasonable having regard to the whole of the evidence can it be set aside. Here, the Board’s conclusion that the respondent lacked capacity to make treatment decisions was firmly anchored in the evidence and cannot be characterized as unreasonable. The Board’s finding that the respondent’s denial of his illness was “almost total” is amply supported in the evidence. While the Board never suggested that the respondent denied all his difficulties and symptoms, it did suggest, entirely accurately, that the respondent did not see his symptoms and difficulties as an illness or a problem relevant to the proposals for treatment. The Board was entitled to conclude from the evidence that the respondent was in denial about his mental illness generally, and not just about the specific diagnosis. This denial was compounded by the respondent’s inability, because of his delusional state to understand the information relevant to making a treatment decision, as required by the Act. There was also ample evidence to support the Board’s finding that the respondent was unable to appreciate the foreseeable consequences of treatment and refusing treatment because he lacked the ability to appreciate (1) the possible benefits of the proposed medication; (2) the fact that absent medication it is unlikely he will ever return to his previous level of functioning and his condition may continue to deteriorate; and (3) the relationship between lack of treatment and future dispositions by the Review Board. Given the evidence and the Board’s application of the correct legal tests, there is no basis upon which a court of judicial review can set aside the Board’s decision.
Cases Cited
By Major J.
Distinguished: R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33; referred to: T. (I.) v. L. (L.) (1999), 46 O.R. (3d) 284; Fleming v. Reid (1991), 4 O.R. (3d) 74; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; Koch (Re) (1997), 33 O.R. (3d) 485; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20.
By McLachlin C.J. (dissenting)
R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33; Khan v. St. Thomas Psychiatric Hospital (1992), 7 O.R. (3d) 303.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46 , Part XX.1, s. 672.54 [ad. 1991, c. 43, s. 4].
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 1, 4(1), (2), 10(1)(b), 21, 70(2), 71(3), 73(2), 75, 80(1) [am. 2000, c. 9, s. 48], (9), (10).
Mental Health Act, R.S.O. 1990, c. M.7, s. 20(1) to (5).
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15(1).
Authors Cited
Berg, Jessica W., et al. Informed Consent: Legal Theory and Clinical Practice, 2nd ed. New York: Oxford University Press, 2001.
Hoffman, Brian F. The Law of Consent to Treatment in Ontario, 2nd ed. Toronto: Butterworths, 1997.
Macklin, Ruth. “Some Problems in Gaining Informed Consent from Psychiatric Patients” (1982), 31 Emory L.J. 345.
Roth, Loren H., Alan Meisel and Charles W. Lidz. “Tests of Competency to Consent to Treatment” (1977), 134 Am. J. Psychiatry 279.
Weisstub, David N. Enquiry on Mental Competency: Final Report. Toronto: Queen’s Printer for Ontario, 1990.
APPEAL from a judgment of the Ontario Court of Appeal (2001), 201 D.L.R. (4th) 123, 146 O.A.C. 121, 33 Admin. L.R. (3d) 315, [2001] O.J. No. 2283 (QL), dismissing an appeal from a judgment of the Superior Court of Justice (1999), 22 Admin. L.R. (3d) 211, [1999] O.J. No. 4483 (QL). Appeal dismissed, McLachlin C.J. and Gonthier and LeBel JJ. dissenting.
Leslie McIntosh and Diana Schell, for the appellant.
Anita Szigeti, as amicus curiae.
Daphne G. Jarvis and Barbara J. Walker‑Renshaw, for the intervener the Schizophrenia Society of Canada.
Written submissions only by Janice E. Blackburn and James P. Thomson, for the intervener the Centre for Addiction and Mental Health.
Marshall A. Swadron and Aaron A. Dhir, for the interveners the Mental Health Legal Committee and the Mental Health Legal Advocacy Coalition.
The reasons of McLachlin C.J. and Gonthier and LeBel JJ. were delivered by
The Chief Justice (dissenting) —
I. Introduction
1 The issue in this case is whether the Ontario Consent and Capacity Board acted unreasonably in finding that Scott Jeffery Schutzman (who prefers to be called “Professor Starson” or simply “Starson”) is incapable by reason of mental illness of consenting to treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (“HCCA”). I agree with Major J. that the test for capacity requires more than mere intellectual ability, and I agree on the standard of review applicable to the Board’s decision. However, I do not agree that the Board’s conclusion that Professor Starson lacked capacity to decide what treatment he should receive was unreasonable. Unlike my colleague Major J., I conclude that the Board applied the law correctly and that there was ample evidence before the Board to support a finding of incapacity. I would therefore allow the appeal.
2 Professor Starson is an exceptionally intelligent man who in earlier years did remarkable work in physics and still counts leading physicists among his friends. He suffers from long-standing mental illness. He has been in and out of mental hospitals in the United States and Canada, since at least 1985. His illness has led to erratic behaviour; his tendency to utter death threats against acquaintances and strangers has repeatedly brought him into conflict with the criminal law and is the reason for his current detention. Professor Starson entertains delusions of varying severity. He talks about plans to run the “Starson Corporation” from inside his current inpatient unit; insists that he is “leading on the edge of efforts to build a starship”; claims to be a world-class skier and arm-wrestler; and has asserted that he is the greatest scientist in the world and communicates with extra-terrestrials. While Professor Starson would not agree, his illness appears to have progressed and his condition has deteriorated.
3 Professor Starson has received medication for his mental illness in the past. It successfully reduced his delusions. But it had side effects that Professor Starson did not like. The most serious of these was Professor Starson’s complaint that the medication dulled his mind and diminished his creativity. As a consequence of his past experiences with medication, Professor Starson has set his mind against all further treatment by medication. He categorically asserts that “no benefits exis[t] for medication”, and refuses all treatment except psychoanalysis.
4 Professor Starson’s doctors have told him that new medications are available which promise much better results, with reduced negative side effects. They have also explained to him that without medication, his condition is likely to continue to deteriorate. Professor Starson, however, continues to refuse treatment by medication. Professor Starson’s doctors have concluded that in his present condition, he does not understand the benefits of treatment with the new medications, nor does he appreciate that without treatment his condition will probably continue to deteriorate. Faced with this conclusion, which would open the door to imposed medication, Professor Starson applied to the Consent and Capacity Board for a determination that he is capable under the HCCA and can therefore refuse treatment. The Board found that Professor Starson is not capable. On appeal, Molloy J. set aside the Board’s decision as unreasonable. The Ontario Court of Appeal confirmed her decision.
II. Standard of Review
5 I agree with my colleague Major J. that the Board’s interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, I agree that the Board’s decision is subject to review for reasonableness. The legislature assigned to the Board the task of hearing the witnesses and assessing evidence. Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence. As Binnie J. states in R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33 (released concurrently), at para. 33: “If the Board’s decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene.” The fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board’s conclusion.
III. The Legal Definition of Capacity
6 The HCCA confronts the difficult problem of when a mentally ill person may refuse treatment. The problem is difficult because it sets in opposition fundamental values which we hold dear. The first is the value of autonomy — the ability of each person to control his or her body and consequently, to decide what medical treatment he or she will receive. The second value is effective medical treatment — that people who are ill should receive treatment and that illness itself should not deprive an individual of the ability to live a full and complete life. A third value — societal protection — comes into play in some cases of metal illness. Where the mentally ill person poses a threat of injury to other people or to him– or herself, it may be justified to impose hospitalization on the basis that this is necessary in the interests of public safety: see s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 , which permits courts and Boards to impose hospitalization on an accused person found not criminally responsible on account of mental disorder, and ss. 20(1) to 20(5) of the Ontario Mental Health Act, R.S.O. 1990, c. M.7, which permit the involuntary hospitalization of mentally ill persons under certain circumstances. Professor Starson was under a twelve-month hospital detention order pursuant to these Criminal Code provisions at the time of the application, having been found not criminally responsible for making death threats. However, the application with which we are concerned did not rely on public safety, so this value does not affect this appeal.
7 Ordinarily at law, the value of autonomy prevails over the value of effective medical treatment. No matter how ill a person, no matter how likely deterioration or death, it is for that person and that person alone to decide whether to accept a proposed medical treatment. However, where the individual is incompetent, or lacks the capacity, to make the decision, the law may override his or her wishes and order hospitalization. For example, young children generally lack capacity to make medical decisions because of their age; thus their parents or guardians, not they, decide what medical treatment they should receive. Where mental illness deprives a person of the ability to make a decision about medical treatment, the law may permit that person’s wishes to be overridden. This result flows from s. 4(1) of the HCCA.
8 There is no easy answer to the question of when a mentally ill person should be held incapable of making decisions concerning his or her medical treatment. Different societies have drawn different lines at different times. The applicable law in Ontario permits a mentally ill person to be hospitalized without consent on grounds of public safety (Criminal Code and Mental Health Act) and lack of capacity (s. 4(1) of the HCCA), defined as a lack of the ability “to understand the information that is relevant to making a decision about the treatment . . . and . . . to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. Moreover, as discussed in greater detail below, the definition of capacity offered in the HCCA is broad; incapacity is not confined to lack of rational ability to understand, but extends to lack of ability to “appreciate” or judge.
9 The Ontario legislature’s decision to permit a mentally ill person’s decision to refuse treatment to be overridden where public safety is not threatened reflects the value of promoting effective medical treatment of people suffering from mental illness. The HCCA’s definition of capacity offers a way out of the dilemma that is created when treatment for an illness is dependent on consent, which in turn is not forthcoming because of the illness. The way out of the dilemma lies in recognizing that the focus should be not only on consent but on capacity to consent. The policy of the law is that where a person, due to mental illness, lacks the capacity to make a sound and considered decision on treatment, the person should not for that reason be denied access to medical treatment that can improve functioning and alleviate suffering. Rather, that person’s incapacity should be recognized and someone else appointed to make the decision for him or her.
10 At the same time, the HCCA preserves the value of individual autonomy. Mental illness is not conflated with incapacity. Mental illness without more does not remove capacity and autonomy. Only where it can be shown that a person is unable to understand relevant factors and appreciate the reasonably foreseeable consequences of a decision or lack of decision can treatment be imposed.
11 The HCCA represents a careful and balanced response to the problem of accommodating the individual autonomy of the mentally ill person and the aim of securing effective treatment for mentally ill people. It says that when a mentally ill person lacks the capacity to sufficiently understand and appreciate his or her situation, authorized treatment may be imposed. This response is doubtless influenced by increased appreciation of the suffering and loss occasioned by non-violent mental illness, and the ever-expanding treatment options available as our understanding of mental illness increases. Whatever the explanation, the fact is that the legislature has chosen a test based on a nuanced conception of incapacity that includes both the ability to understand and appreciate, to be applied by the specialized Board. The courts must respect this choice.
12 Against this background, I come to the test for incapacity. Section 4(1) of the HCCA provides:
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.
13 I would summarize the four important points as follows:
1. The person is presumed to be competent and the standard of proof for a finding of incapacity is a balance of probabilities.
2. The test relates to the capacity or ability to understand and appreciate,
not actual understanding and appreciation.
3. The first component of the test for capacity is that the person be “able to understand the information that is relevant to making a decision about the treatment” at issue.
4. The second component of the test is that the person be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.
14 The second point, that the test relates to a person’s capacity or ability to understand and appreciate, is reflected by the use of the word “able” in relation to “understand” and “appreciate”. It means that a person cannot be found to lack capacity on the basis of lack of information about his or her illness or the fact that he or she holds contrary views to a prescribed diagnosis: see Professor D. N. Weisstub, Enquiry on Mental Competency: Final Report (1990), at p. 249.
15 While the difference between ability to understand and appreciate and actual understanding or appreciation is easily stated, it may be less easy to apply in practice. Capacity is an abstract concept. The primary means of ascertaining capacity or ability, in any context, is to look at what an individual in fact says and does. It follows that it is not an error for the Board to inquire into the actual understanding or appreciation of the person in question. At the same time, the fact that the person’s actual conclusion does not agree with that of other people, for example medical experts, does not in itself demonstrate lack of understanding or capacity. In this connection, Professor Weisstub, supra, App. V, at pp. 421-22 states:
The test clearly refers to the ability of the patient, although there is a strong feeling that the distinction between actual understanding and the ability to understand one’s situation is merely a theoretical point. While it may generally be true that actual understanding is an appropriate guide of the ability to understand, the distinction could still be important, for example, for patients who would be able to understand their situation if sedated somewhat less, or, of course, for those who have not received complete information about their situation.
16 The first component of the test for capacity is that the person be “able to understand the information that is relevant to making a decision about the treatment” at issue. The person must be capable of intellectually processing the information as it applies to his or her treatment, including its potential benefits and drawbacks. Two types of information would seem to be relevant: first, information about the proposed treatment; and second, information as to how that treatment may affect the patient’s particular situation. Information relevant to the treatment decision includes the person’s symptoms and how the proposed treatment may affect those symptoms. The patient must be able to acknowledge his or her symptoms in order to be able to understand the information relevant to a treatment decision. Agreement with a medical professional’s diagnosis per se, or with the “label” used to characterize the set of symptoms, is not, however, required.
17 The second component of the test is that the person be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. The appreciation test has been characterized as more stringent than a mere understanding test, since it includes both a cognitive and an affective component: R. Macklin, “Some Problems in Gaining Informed Consent from Psychiatric Patients” (1982), 31 Emory L.J. 345. To be capable, a patient must be able not only to understand the relevant information, but also to “appreciate the reasonably foreseeable consequences of a decision or lack of decision”: s. 4(1) of the HCCA. “An understanding criterion focuses on a patient’s ability to acquire information, while appreciation focuses on the patient’s ability to evaluate information”: Berg et al., Informed Consent: Legal Theory and Clinical Practice (2nd ed. 2001), at p. 102. Appreciation seizes upon the ability of the person who is able to understand the facts (the first component) to weigh or judge and thus evaluate the foreseeable consequences of accepting or refusing treatment (the second component). Arbour J.A. (as she then was) described this distinction as follows in Khan v. St. Thomas Psychiatric Hospital (1992), 7 O.R. (3d) 303 (C.A.), at p. 314 (citing a Review Board’s comment): “there are situations where a person may understand in an intellectual sense the subject-matter in respect of which consent is requested and further understand the nature of the illness for which treatment is proposed and understand the treatment proposed, but his or her ability to appreciate the same as it relates to themselves may be impaired by the mental disorder”.
18 Commentators have identified three “common clinical indicators” of a person’s ability to appreciate the consequences of accepting or declining treatment: “whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her; whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life; [whether] the person’s choice is not substantially based on a delusional belief”: B. F. Hoffman, The Law of Consent to Treatment in Ontario (2nd ed. 1997), at p. 18. These indicators provide a useful framework for identifying what “ability to appreciate” means in concrete terms.
19 Like understanding, appreciation does not require agreement with a particular conclusion, professional or otherwise. A patient may look at the pros and cons of treatment and arrive at a different conclusion than the medical experts. Nor does it amount to a “best interests” standard. A patient who is capable has the right to refuse treatment, even if that treatment is, from a medical perspective, in his or her best interest. It is crucial to guard against interpreting disagreement with a particular diagnosis or proposed treatment plan as itself evidence of incapacity. But just as it is important to protect patients’ capable wishes to refuse treatment, so is it important to ensure that patients who are not capable of making treatment decisions receive appropriate treatment.
IV. Application to the Facts
20 The Consent and Capacity Board, composed in this case of a psychiatrist, a lawyer and a community member, heard from Professor Starson, two of his physicians and his solicitor. It also read letters written by Professor Starson’s friends and acquaintances affirming their belief in his mental capacity. Based on this evidence, the Board found: (1) “[C]lear and cogent evidence was presented that the patient is suffering from a chronic mental disorder, likely a bipolar disorder with psychotic features” (TO-98/1320, January 24, 1999, at p.15); (2) Professor Starson’s denial that he has any type of mental illness “is almost total” (p. 16); (3) without acknowledgment that he has some type of mental disorder and that his behaviour is being affected by that disorder, Professor Starson “cannot understand the information provided to him . . . because he cannot relate it to his particular disorder” (p. 17); (4) Professor Starson “cannot understand the potential benefits of the medication” proposed (p. 17), and “seems unable to appreciate that efforts will be made to reduce the incidence of past side effects by using more benign medications” (p. 18); (5) “[w]ithout some treatment, it is unlikely [Professor Starson] will ever return to his previous level of functioning” (p. 17); to the contrary, “the literature is clear that an untreated Bipolar Disorder is likely to result in further deterioration over time” (p. 17).
21 From all this, the Board concluded that, despite Professor Starson’s high level of cognitive functioning, his manic and delusional symptoms prevent him from being able to understand the relevant information and to appreciate the nature of his condition and the reasonably foreseeable consequences of refusing the proposed course of treatment.
22 The first question is whether the Board applied the proper legal test. Here the Board was required to be correct. In my view, it was. First, the Board’s reasons make it clear that it was considering Professor Starson’s capacity, not the wisdom of his decision to refuse treatment. The Board referred to Professor Starson’s actual understanding and acknowledgement. But this was in relation to the ultimate question of whether he was able to understand his illness and the benefits and disadvantages of medication. The Board reasoned that the absence of understanding and acknowledgement of his condition rendered Professor Starson unable to understand the factors relevant to making a decision about treatment and unable to appreciate the consequences of lack of treatment. This was not an error, as Molloy J. suggested ((1999), 22 Admin. L.R. (3d) 211 (Ont. S.C.J.) at para. 74). Rather, it followed the accepted approach to ascertaining ability: see Hoffman, supra, at p. 18. As for the Board’s preliminary expression of sympathy for Professor Starson’s actual situation, this should be taken for what it is — an expression of concern. It does not show that the Board focussed on the wisdom of refusing treatment rather than on Professor Starson’s capacity.
23 The remaining question is whether the Board’s conclusion that Professor Starson lacked capacity under s. 4(1) of the HCCA was unreasonable. The issue here is not whether the Board’s conclusion was the best conclusion on the evidence. It is rather whether it is among the range of conclusions that the Board could reasonably have reached. Only if the Board’s conclusion is unreasonable, having regard to the whole of the evidence, can it be set aside.
24 It is said that the Board acted unreasonably: (1) in concluding that Professor Starson’s denial of his illness was “almost total” and (2) in concluding that Professor Starson lacked the ability to appreciate the consequences of refusing treatment. These errors are said to render the Board’s ultimate conclusion of incapacity unreasonable. In fact, the Board’s conclusions on these matters find ample support in the evidence.
A. Professor Starson’s Denial of his Illness
25 I turn first to the Board’s conclusion that Professor Starson’s denial of his illness was “almost total”. Before addressing the question of what the Board found in this respect and whether the record supported it, it should be pointed out that a conclusion of denial or lack of acknowledgement of one’s condition is one of the three “common clinical indicators” of inability to appreciate the consequences of accepting or declining treatment under s. 4(1) of the HCCA: Hoffman, supra. The Board properly recognized this and grounded its conclusions on Professor Starson’s incapacity in large part on his inability to acknowledge the condition for which treatment was recommended.
26 With respect, Molloy J., whose conclusions were endorsed by the Court of Appeal and by my colleague Major J., seems to have misunderstood the Board’s assertion that Professor Starson’s denial of his illness was “almost total”. Molloy J. took this to mean that he did not accept that he had any mental problems of any sort. Interpreting the phrase in this manner, Molloy J. concluded that since the evidence shows some awareness of mental abnormality, the Board erred.
27 The evidence of Professor Starson’s physicians, and in particular Dr. Swayze, was that Professor Starson was in denial of his disorder. But this evidence was not intended to convey that Professor Starson denied all aspects of his mental illness. The Board acknowledged that Professor Starson was aware of the fact that his mind functioned differently. Professor Starson acknowledged in the Board hearing that he had “exhibited the symptoms of these labels that you give”. He realized that he had mental problems and had difficulty dealing with others, and indeed was prepared to accept psychotherapy to address these problems. What the Board found was that he denied suffering from a mental disorder: “Despite overwhelming evidence to the contrary he continues to deny that he has a mental disorder”. It reached this conclusion in the following context, at pp. 16-17:
The patient’s denial is almost total. He did concede when questioned by Dr. Swayze, that he might have had some difficulties, but these have not led to any threats towards others. This was contrary to the evidence presented and his acknowledgment to Dr. Swayze when questioned, was in contradiction to total denial in the past to both Dr. Swayze and Dr. Posner of the presence of any disorder. Thus, even the small concession to Dr. Swayze of some past difficulties when he was questioned did not seem to be a significant acknowledgement of the existence of the illness.
Accepting that a patient “should not simply be deemed incapable because he or she does not agree with the diagnosis,” the Board correctly responded that “the issue is more complex” and what is required is “that the patient understand that he or she has a mental disorder of some type, if the evidence establishes the presence of a disorder” (p. 16). It was only then and in this sense, that the Board stated that “[t]he patient’s denial is almost total,” expressly adding in the same sentence that Professor Starson “did concede . . . that he might have had some difficulties, but [that] these have not led to any threats towards others” (p. 16).
28 The Board’s appraisal, including its conclusion of “almost total” denial of a mental disorder, is fully supported by the record. The Board never suggested that Professor Starson denied all his difficulties and symptoms; indeed, it expressly acknowledged this. The Board did suggest, entirely accurately, that Professor Starson did not see his symptoms and difficulties as an illness or a problem relevant to the proposals for treatment.
29 I cite only a few excerpts from the record to show that evidence existed upon which the Board could reasonably have concluded Professor Starson was in denial about his mental disorder. His doctors testified that:
Dr. Swayze:
- His understanding was that indeed, he did not and has not suffered from any psychiatric disorder, particularly not from a mood or psychotic disorder.
- Professor Starson claims that “[h]e has no disorder”.
Dr. Posner:
- He does not understand “that he has a mental illness”.
- He did “not understand in any way, shape or form that he had a mental illness . . .”.
- He has exhibited a “complete lack of understanding of him having his own mental illness”.
30 Professor Starson refused to answer directly whether he was mentally ill or not. However, his evidence at other points supports denial of mental illness: “I did have mental problems 13 years ago that were difficult, almost impossible for me to handle. What I differ on is that the cause of these problems was not a mental illness”. His medical charts indicated that, when asked about his opinion as to whether he suffered from a disorder, he responded “I have no opinions. You are a religion. I have the perfect scientific mind. Only you people say I have an illness”.
31 The Board was amply entitled to conclude from this evidence that Professor Starson was in denial about his mental illness generally, and not just about the specific diagnosis.
32 This denial was compounded by Professor Starson’s refusal to acknowledge any benefits of medication whatsoever, even in the abstract. Although I base my opinion that the Board’s conclusion was reasonable primarily on Professor Starson’s clear lack of appreciation of the foreseeable consequences of refusing treatment, he also appears to have lacked the ability to understand the information relevant to making a treatment decision, as required by the HCCA. Like a cancer patient advised to undergo chemotherapy or a diabetic advised to inject insulin, a mentally ill patient advised to take antipsychotic medication must be able to understand its benefits and drawbacks in order to be deemed capable of making a treatment decision. This, in turn, requires a willingness to consider, whether or not he or she chooses to follow, the scientific evidence regarding its effectiveness. The record suggests that Professor Starson not only refused to do this, but was in fact unable to because of his delusional state.
33 By way of example, I cite the following passages from the record:
Dr. Swayze:
We then attempted to review, or I attempted to review the risks and benefits of those medications and was, once again, quickly interrupted: All chemicals are rejected with the understanding by myself that that inferred that there were no medications which were amenable or appropriate for a bipolar disorder or psychotic episode and that there was no consideration, that those would be appropriate under any circumstances.
I’ve attempted to focus on the issue of the benefit of those medications. “None exist.” Then canvass the area of risk involved in rejecting medications and was told, in no uncertain terms, that once again the medications were chemicals. They should be rejected and that there was no risk of rejecting them, as they would, in fact, inflict injury upon any person foolish enough to accept them. [Emphasis added.]
Dr. Posner:
I wanted to try to appeal to his formerly objective side by explaining to him that two patients [he said he knew who died from taking Haldol] does not make a fact. Two patients are two observations. You know, in science, when we’re trying to gather data in psychiatry, when we’