Starson
v. Swayze:
An
Exploration of Canada’s
Orwellian Mental Health Laws
Jessica Murray
June
21, 2010
The world
of literature is saturated with frightening delves into dystopian realities
where the state controls the individual’s thoughts through various means,
voiding dissent of the intellectual garden which it requires to flower into the
highest form of human intellect: criticism. While such concerns are only
cursory to the case of Starson v.
Swayze, they are deeply relevant to any general conclusions drawn from the case
itself. A state that attempts to determine whether or not an individual, free
or not, is capable of making its own decisions is not just illiberal but drunk
on the elixir of paternal authority, itself in need of treatment and absolutely
deserving of the scathing, sobering critique that follows.
There is but one axiom of legal liberalism, which is that
the one and only justification for infringing upon the rights of the sovereign
individual is to prevent it from doing harm to others. This does not explicitly
deny the principle of beneficence, but it does, legally, place it as
subservient to free will; no matter how much harm an individual may place upon
herself or how outlandish her behaviour may appear to others, so long as she is
of no threat to others then the state
has no business meddling in her affairs. An individual’s capability to
understand the consequences of its actions is of absolutely no consequence
within this legal framework and is not a question that should even be seriously
entertained; the individual’s absolute sovereignty over itself renders such
propositions as preposterous, unbecoming of a free and civilized society and
fit for nothing other than contemptuous dismissal as backwards and despotic.[1]
This case is so riddled with absurdity that it is
difficult to know where to begin in tackling it, so let me begin at the
beginning, which is as good a place to begin as anyone can begin to expect of
any place to begin. Let us refer to the patient by his given name, Scott; he
would not oppose this, although there is some contention over further labels as
they may or may not apply to him. Scott was diagnosed with bipolar disorder
some time ago and since then has been found not
criminally responsible for a series of violent threats made against various
people, the ruling coming about by account of his mental illness. He was
consequently confined at the Queen Street Mental Health Centre in Toronto, under the care
of Dr. Paul Posner who diagnosed a set of prescriptions for Scott that he
refused to take.[2]
If our legal system was fully consistent with the tenets
of legal liberalism then the case would end here as a rather uninteresting
statement of the individual’s right to make independent decisions, no matter
how loudly or passionately the doctors may plead with him to do what is in the
best interests of his own well-being, which is something that Mills would have
actually encouraged.[3]
The initial ruling that found Scott not criminally responsible for uttering
death threats explicitly stated that because Scott was deemed a threat to
others due to his criminal record and mental disorder he could therefore never
be released so long as he refused to take the medication[4],
which is clearly consistent with the aforementioned single axiom of legal
liberalism. So, from the liberal perspective, the ideal situation would have
been for Scott to simply refuse treatment and remain institutionalized
indefinitely. If he is allowed to refuse medication then he remains
indefinitely incarcerated and if he accepts medication, and is possibly released
afterwards, then he is presumably no longer a threat upon release. The rights
of others to be protected from Scott are consequently not a relevant
consideration in the determination of whether or not Scott should be forced to
take the medication. In her dissenting report on the eventual final ruling in
the case, Chief Justice Beverly McLachlin of the Supreme Court of Canada comes
to a similar conclusion, albeit through a different argument. [5]
However,
our legal system is unfortunately not fully consistent with the tenets of legal
liberalism. A deeply illiberal law entitled the Health Care Consent Act
was passed in Ontario in the 1990s that provides doctors with the ability to
overrule the individual if it is somehow determined that the individual is
incapable of making treatment decisions. This is not the place to outline the
history of the legislation, although I will say that the legislation ironically
stems from a bill passed by the Ontario Liberal Party[6]
and was then amended by the Ontario NDP[7]
before it was reviewed and rewritten by the Progressive Conservative Party of
Ontario.[8]
The relevant section of the act is 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. 1996,
c. 2, Sched. A, s. 4 (1)
(2) A person is presumed to be
capable with respect to treatment, admission to a care facility and personal
assistance services. 1996, c. 2, Sched. A, s. 4 (2).
(3) A person is entitled to rely
on the presumption of capacity with respect to another person unless he or she
has reasonable grounds to believe that the other person is incapable with
respect to the treatment, the admission or the personal assistance service, as
the case may be. 1996, c. 2, Sched. A, s. 4 (3).” [9]
A person that is not capable is called “incapable”; the
implication is that those labelled as “incapable” no longer have the right to
refuse treatment. As Scott refused treatment and his doctors felt that
treatment was necessary for his well-being, Dr. Ian Swayze of the Queen Street
Mental Health Centre attempted to use the aforementioned legislation to
forcibly inject Scott with anti-psychotics by declaring him incapable of
consenting to treatment, an egregious affront upon his liberty which Scott
promptly appealed to the Ontario Consent and Capacity board, which correctly ruled
against him.[10]
The board’s ruling against Scott was based partially upon
his own statements and partially upon the expertise of his doctors. The initial
ruling gravitated around whether or not Scott was able to understand the nature
of his illness; in her dissenting report on the eventual ruling, Chief Justice McLachlin
carefully explains that the board ruled against Scott because it found that he
is in “almost total”[11]
denial of his mental illness and that this denial, combined with a series of
topically delusional statements, logically implies that he is unable to
understand the information relevant to making a decision about his treatment,
specifically information pertaining to whether or not he has a mental illness,
which renders him “incapable” under the law.[12]
McLachlin demonstrates this by pulling out a section of the initial ruling
where Dr. Posner recalls a discussion he had with Scott where Scott not only
denies that he has an illness but accuses the doctor of plotting to kill him
through injecting him with drugs as a part of a massive conspiracy by drug
companies and psychiatrists.[13]
While I do not see the argument outlined explicitly in the case, the inference
I’m drawing is that if Scott truly was able to understand the nature of his
illness then he would have recognized that the paranoid thoughts he was having
were the result of his illness and he would not have acted upon them. As he did
act upon them, the board ruled that he could not truly understand the nature of
his illness. In his report on the majority ruling, John Major notes that
because Scott was not questioned about the relationship between refusing
treatment and the possibility of a future deterioration in his condition, the
assumption that he is capable of understanding this point is not challenged by
the evidence. [14]
This is a
very dangerous place for the law to meddle in and it is perhaps more
appropriate to cite the opinion of Orwell on this point than it is to cite the
opinion of Mills; allow me to demonstrate this point by intersecting these two
pillars of liberalism in the form of a question: even if a panel of the best
doctors in the world were to unanimously agree that Scott is incapable of
thinking in a way deemed capable by the law, how could the court ever be sure
that their unanimous decision is not somehow in error? What if there is a giant international conspiracy by
the remnants of IG Farben to perform heinous experiments on the mentally ill,
and what if a collection of covertly trained CIA psychiatrists is not just in
on it but actually driving it? What if Scott truly was a potential victim? Who could possibly be so arrogant as to
declare that another is incapable of understanding the consequences of his own
decisions, let alone declare that he, himself, is capable of determining whether or not another is
capable of understanding the consequences of his own decisions? It is the idea
of lending credibility to this kind of thinking that is deeply concerning. If
this absurd logic is allowed to remain within this law, it could be applied
elsewhere. Might some woman somewhere be deemed incapable of determining
whether or not she can provide sexual consent to her husband, legitimizing rape
under the law? Might the elderly be deemed incapable of refusing euthanasia if
they are sufficiently ill? Might the political dissident be deemed incapable of
speaking freely for simply dissenting on the grounds that the presence of
dissent proves that she lacks the ability to understand why she shouldn’t be
dissenting? This is a slippery slope, indeed!
Scott appealed
the decision by the board and won. This decision was then appealed by the
doctors, but Scott won again. Finally, the case was taken up by the Supreme
Court of Canada, which once again ruled in Scott’s favour in a 6-3 decision
carried by justices Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps,
with justices McLachlin, Gonthier and LeBel dissenting. The dissenting side of
the report was written by the Chief Justice, Beverly McLachlin; the majority
decision was written by John Major. The primary question before the Supreme
Court was not whether or not Scott should have been ruled incapable but whether
or not the Consent and Capacity Board reached a reasonable conclusion in its
interpretation of the law.[15]
At least
one observer has suggested that the majority ruling in this case was that that
the conclusion that the board reached was not a reasonable one because there
was not enough evidence in the case to come to the ruling that it came to.[16]
However, despite the fact that John Major did explicitly use language of that
nature at least once in the case,[17]
what characterizes the majority ruling is actually a rejection of the
previously discussed logical implication for reasons that are not discussed and
are frankly somewhat difficult to comprehend. In writing his majority report,
John Major simply ignores the time that Scott accused the doctors of trying to
kill him by injecting him with the medication in question and instead focuses
solely on Scott’s own words in an attempt to prove that, while he did not
accept that he was mentally ill, he certainly accepted that he was different
and that this is sufficient to demonstrate that he was capable.[18]
After he’s ignored the conflicting evidence, he claims that there isn’t any.[19]
The implication is that the majority did not feel that the opinions of the
doctors were remotely relevant, which could only be the case if it denied the aforementioned
implication. Yet, the assumption is
that Scott is capable so this is, technically, the wrong approach to take in
the case. The law states that “A person is entitled to rely on the presumption
of capacity with respect to another person unless he or she has reasonable
grounds to believe that the other person is incapable” [20],
so the court should have been examining whether or not the evidence that
suggests that Scott is incapable is
valid, not presenting evidence that Scott is capable because it’s assumed
that he’s capable unless there is evidence that suggests otherwise. The dissenting report did precisely
this by examining evidence that was provided by the doctors that suggested that
Scott was incapable; the majority report completely ignored the central issue
of the case. After the majority denied the implication that the initial ruling
was based upon, it tackled the question of whether Scott was able to appreciate
the benefits of treatment in a way that completely isolated the question from
the question of whether or not he was able to understand the relevant
information to make a treatment decision. In truth, if the goal is to discard
the initial ruling, this is an
unnecessary task because if it is accepted that Scott was able to understand
the relevant information then the initial ruling collapses under the denial of
the aforementioned implication; that the majority continues on by analyzing the
issue of whether or not Scott was able to appreciate the benefits of treatment actually
suggests a profound lack of understanding of the initial ruling.[21] Nonetheless, the majority makes the same
basic legal error in presenting positive evidence of Scott’s ability to
appreciate the consequences of his decision, ignoring the fact that this is the
null hypothesis and does not require
evidence and ignoring the evidence that suggests otherwise to the point that
it’s not even mentioned. The advanced argument was that Scott did not want to
take the medication because he
understood that it would hamper his thinking and prevent him from proving that
Einstein’s Theory of Relativity was wrong[22],
which would certainly be a task that would require every ounce of brain power
available to him.[23]
The
majority decision in this case appears to have been rooted very strongly in the
theory of classical legal liberalism to the point that it made several basic
legal errors and misapplied the law in a noble attempt to ensure that Scott’s
“natural right”[24]
to refuse treatment was not hampered by illiberal legislation, while the
dissenting decision correctly deduced that such a “natural right” should have
been legally denied to him. While the decision was just, it was technically
wrong and this may very well be the reason that the Chief Justice, who is
generally known for her libertarian views[25],
took an uncharacteristic stance. In her dissenting report, McLachlin says the
following about the Health Care Consent
Act:
“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.”[26]
The courts did not
respect this choice.
Cursory
Endnote
This is where you stop
grading the paper and start reading for fun.
Yes, I’ve used an 11-point
font to fit the paper into 7 pages. It’s readable, so I think getting upset
about this would be ridiculous. Although, it’s perhaps not so readable;
flesh-kincaid statistics are 32.9 and 16.7. I’m not your average first-year student. The
truth is that I’m not a first-year student at all.
I didn’t cite Devlin because
I don’t like his take on Mills at all.
Now, I held back rather
substantially within the essay. I’d like to tell you what I really think,
1)
The law should be rewritten, but
not struck down. The only time that anybody should be deemed incapable of
refusing treatment is if they are in a “vegetative state” and literally
incapable of communicating at all. Whether
medication is effective in controlling mental illness does not strike me as a
valid metric in determining whether or not the mentally ill should be allowed
to re-integrate into society; unless they are monitored at such an extreme
level that they’d might as well remain incarcerated anyways, there’s absolutely
no way to know that they’re actually taking their medication and it’s no secret
that many mental “ill” patients get off of their medication at the soonest
possible opportunity, which is completely understandable because they view the
medication as destroying their individualistic nature, the core of who they
are. Scott’s lack of enthusiasm for taking the medication is far from unique.
As a society, we have a weird belief that magic pills will solve all of our
problems. Bipolar Disorder is not erectile dysfunction. Instead of medicating
the atypical down into the mundane, we should be providing the mentally unique
(which I think is a better term than mentally ill) with the opportunity to
explore their eccentricities in safe and isolated communities where they are
neither oppressed by doctors looking to destroy their individuality nor a
threat to the well-being of the neurotypical. The line between genius and
insanity does not exist and we should never forget that this is the case.
Perhaps Scott never built his star ship, and perhaps it was never particularly
likely that he was ever going to. However, if left to explore his uniqueness
instead of forced to conform to what is declared to be “normal”, he may have
perhaps left us with some writings that future generations may have found some
value within, as many questionably sane people have throughout various
disciplines, from the bizarre mathematics of Cantor to the at least stimulating
writings of Nietzsche. This case reminds me somewhat of the case of Alan
Turing, who was forced to take female hormones as a “treatment” for
homosexuality and eventually committed suicide at the age of 41 as a tragic result.
We should be encouraging eccentricity, not conformity.
2)
The Capacity and Consent Board
should have very strict legal definitions attached to it. In addition to at
least one legal expert to avoid the kind of problems that came out of this
case, it should consist of at least four qualified psychiatrists that are not familiar with the case or any of the
doctors involved with it to maintain absolute objectivity and to eliminate
conflicts of interest.
3)
While the law is ridiculous, the
Chief Justice made the more compelling argument in the context of the
ridiculous law. She did her research – she looked up what it means for a
patient to be incapable and she listened to the opinions of the doctors, not
the opinion of the patient. John Major’s arguments are not convincing at all
and strike me as little more than amateurish sophism designed to push his own
political views; he seems to have manipulated the evidence to justify his
opinion, not based his opinion upon the evidence. Epic Fail. Whether somebody
is capable of understanding something or not is a purely scientific question,
not a legal one and cannot be deduced by spin doctoring statements made by the
patient. It certainly cannot be arrived at by ignoring everything the doctors
say! Only the scientists are capable of making this deduction and they were
unanimous on the point – Scott was incapable. It is important to point out that
Scott displayed a willingness to be dishonest in his statements when he stated
that admitting to being ill is a catch-22, which itself displayed at least a
lack of understanding of the law; it is not the case that if he admitted to
being ill that the doctors would have forced treatment on him, it is the case
that if he admitted to being ill then the court would have deduced that he was
able to understand the nature of his condition. That statement itself was an
indication of extreme paranoia. This is not the point; the point is that by
stating that the decision is a catch-22, he displayed that he’s willing to
state whatever he needs to state to avoid medication. He was stating his clear
intention to lie to achieve his aims. His testimony should consequently be
stricken from the record altogether as that of an unreliable witness; only the
views of the doctors should have been consulted in the ruling. Given all of
this, it is ironically likely the case that Justice Major made his decision
based upon a misguided application of the principle of beneficence, being
concerned that the medications were likely not in Scott’s best interests at
all. This decision did not uphold the draconian law, which should have forced
Scott to take the medication (and eventually did).
4)
Not only did this decision not
uphold the law, it was a fundamentally anti-scientific decision at that, which
is an increasingly worrying strain of thought in our society in general.
Science will cease to exist if it is forced to report to tribunals that will
overturn and manipulate its findings to further political or philosophical
agendas. A capable judge should have the maturity to understand when she is in
her area of expertise and when she is not and consult experts in the field when
that is the case. Justice McLachlin displayed this maturity; Justice Major did
not.
Might the
court be deemed incapable of understanding the information that is relevant to
making a decision?
[2] Bernadette
McSherry, “Opening
Minds, Not Closing Doors: Rethinking Mental Health Laws”, http://www.law.monash.edu.au/Frmhl/Fdocs/Fbmcs-educate08-openingminds.pdf
at 2
[4] Ari Greenwald, “Law and Ethics in Medicine: Competency and Mental
Illness” (2003) 81 University
of Toronto Medical
Journal 16 at 16
[6] Mental Health Act, R.S.O. 1990, c. M-7
[7] Consent to Treatment Act, S.O. 1992, c. 31
[8] Health Care Consent Act, S.O. 1996, c. 2 schedule A
[9] Health Care Consent Act, S.O. 1996, c. 2 schedule A, s.4
[10] Bernadette McSherry, “Opening Minds, Not Closing Doors: Rethinking
Mental Health Laws”, http://www.law.monash.edu.au/Frmhl/Fdocs/Fbmcs-educate08-openingminds.pdf
at 3
[16] Fighting For The Right To Refuse Treatment, 2005, Ottawa Citizen,
June 11,
http://www.canada.com/ottawa/ottawacitizen/news/story.html?id=b5bd867f-db9e-40e2-a52b-013173bd39a8
[20] Health Care Consent Act, S.O. 1996, c. 2 schedule A, s.4(3)
[22] Bernadette McSherry, “Opening Minds, Not Closing Doors: Rethinking
Mental Health Laws”, http://www.law.monash.edu.au/Frmhl/Fdocs/Fbmcs-educate08-openingminds.pdf
at 2
[25] Joseph Masciulli, Mikhail A. Molchanov & W. Andy Knight, The
Ashgate Research Companion to Political Leadership (Burlington, VT:
Ashgate Publishing Company, 2009) at 388
[26] Starson v. Swayze,
[2003] 1 S.C.R. 722 at para 11, 2003 SCC 32
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/starson.html
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/starson.html