DATE: 20010614 DOCKET: C33406

COURT OF APPEAL FOR ONTARIO

CARTHY, LASKIN and GOUDGE JJ.A.

B E T W E E N:

PROFESSOR SCOTT STARSON aka SCOTT JEFFERY SCHUTZMAN

Professor Starson in person Anita Szigeti, amicus curiae

Respondent

• and -

DR. IAN SWAYZE and DR. PAUL POSNER

Janice Blackburn For the appellants

Appellants

Heard: August 24, 2000

On appeal from the judgment of Madam Justice Molloy dated November 26, 1999

BY THE COURT:

1Professor Starson 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.

2Unfortunately, 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).

3The 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 aside.

4Dr. 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.

5The 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.

6Under 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).

7The appellants 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), 1999 19918 (ON CA), 46 O.R. (3d) 284, the appropriate standard of review is reasonableness. This is the standard Molloy J. applied.

8Further, Molloy 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.

9First, Professor 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.

10Despite his 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 over semantics.

11The second 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”.

12The 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 Board:

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.

13In its 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".

14Putting 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.

15The appeal is dismissed.

“J.J. Carthy J.A.”