Starson v. Swayze, 2003-2008: appreciating the judicial consequences.

1. Introduction When the Supreme Court of Canada decided Starson v. Swayze (1) in 2003, the clinicians, advocacy groups, and scholars clustered around the topic of illness in Canada predicted substantial changes. The SCC 6:3 majority took Scott Starson's statement that he had manageable mental problems (2) as sufficient sign of an ability to understand and appreciate his condition. The dissent found Starson's statements on the phenomena as showing a lack of understanding and appreciation of the severity and quality of his condition. Two divergent visions clashed over the capacity test found in Ontario's Health Care Consent Act (3) at the centre of the case's most contentious issue. The majority's interpretation lowered the statutory test significantly. To many civil libertarians and to psychiatric survivors, the majority opinion represented a victory. (4) This would allow more capacity findings in future, and less involuntary treatment. To many psychiatric workers, to people recovering from illness, and to family caregivers, the same lowering of the threshold for capacity would manifest itself socially in more people with untreated disorders detained, ironically, in hospital, (5) and a greater burden on the care giving family. Six years later, none of these predictions has come true in the courts. (6) A survey of 13 cases influenced by Starson SCC in Ontario, Quebec, and Nova Scotia between 2004 and the present (7) show that some courts have indeed followed the Starson SCC ratio where the facts are similar, or even easier to decide. These patients show far more, or even less, awareness of their symptoms than Starson did and could either pass a harder test than the one set by the majority, or scarcely need testing to fail the standard. Their clearer positions mean that no borderline facts test the majority ratio. Yet far more cases quietly diverge from the ratio in practice. A group of 4 cases finds incapacity among its patients by distinguishing the patients from Starson. However, a closer look suggests that these patients have an understanding level like Starson's. The courts appear to be working hard to distinguish Starson's facts in order to recast the Starson SCC ratio as a higher test. Finally, the largest group of 6 cases, begun almost immediately after Starson SCC, follows the dissent in practice. These courts found incapacity in patients by looking very closely at the dissonance between the symptoms the patients could identify and the severity of symptoms presenting in fact. In short, they use a higher test standard as reasoned by McLachlin C.J. for the dissent. Why do so many courts quietly follow the dissent's test standard? We may find the answer by closely reading the central commentators on capacity testing whose work informed the Ontario test. Both sides of Starson SCC rely on these commentators for authority to varying degrees. A review of the commentators on capacity testing suggests that McLachlin C.J.'s higher test standard derives from a more detailed synthesis of authorities on capacity tests than is present in the majority's reading of the same commentators. 2. Facts Scott Starson (formerly Schutzman) was born in 1956. He has had multiple hospitalizations dating from the early 1980s. During these admissions, psychiatrists repeatedly assessed him with a psychotic form of bipolar disorder. Although Starson is not formally educated as a physicist, his autodidact theories earned him a welcome among some academic scientists, who gave him the honorific of Professor. By the 1980s he was unemployed, yet co-publishing some articles in physics. In the late 1990s he was arrested for uttering death threats, as he had done many times before. (8) In 1998 he was found not criminally responsible for uttering more death threats, and was held in the Centre for Addiction and Mental Health site in Toronto. There, he refused neuroleptic medication but accepted talk therapy with Dr. …

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