Vous êtes sur la page 1sur 4

Ethical Implications of the Starson Case

(Paul Raymont, February 11, 2008)

Scott Starson (Schutzman) has been diagnosed with a bipolar disorder that combines
symptoms of manic depression and schizophrenia. He has been in and out of psychiatric
facilities since 1985. In 1998, he was charged with issuing death threats against tenants
in his Toronto apartment building, and later threatened to kill the police officer who
transported him to a jail. He was later found not guilty by reason of his mental illness.
He was detained in a psychiatric hospital (Penetanguishene and later the Royal Ottawa
Hospital) on the grounds that he posed a threat to others. In December, 1998, he was
declared to be incapable of making his own treatment decisions. In 1999, Starson
appealed to Ontario’s Consent and Capacity Board. The Board upheld the claim that he
was not capable (competent). Starson appealed to the Ontario Superior Court, which
overturned the Board’s finding (Nov. 26, 1999). On June 14, 2001, the Ontario Court of
Appeal upheld, unanimously, the Superior Court’s ruling, accusing Starson’s doctors of
being “paternalistic”.

Two of those doctors, Dr. Posner and Dr. Swayze (of the Centre for Addiction and Mental
Health) appealed this result to the Supreme Court of Canada. On June 6, 2003, the
Supreme Court (by a 6-3 decision) upheld the Ontario Court’s verdict. As a result,
Starson, while still detained (since he is believed to pose a threat to others), is capable to
make decisions about his own treatment. He refuses to take the medications
recommended by his doctors.

According to the Board, Starson’s life was devastated by his disorder. His mother, Jeanne
Stevens, agrees. She supported Drs. Posner’s and Swayze’s appeal. She says, “My son
thinks he’s an immortal space alien, yet the law says he is sane enough to refuse the
medication that will make him sane.” While Starson is not known to have physically
attacked anyone (except when he perceived that medication was being forced upon him),
his behaviour is provocative. This has led his mother to worry that he may be harmed by
other people in the psychiatric hospital. Asks Stevens, “Who will pick up the gauntlet
and do the honourable thing for my son…? Who will see that the right thing is done and
he receives the proper treatment so necessary for his well-being?”

Starson rejects the prescribed medications because he believes they are a form of
“chemical warfare” that will slow him down and make him “normal”. Starson said that
this “would be worse than death for me, because I have always considered normal to be a
term so boring it would be like death.” He regarded his previous prolonged experience
with psychiatric medication (Haldol) as intolerable. He says that the medication dulled
him to the point where he could no longer pursue his work in physics.

Starson has co-authored publications in physics. Pierre Noyes, a physics professor at


Stanford University, says that Starson has done “exciting” work that has stimulated some
of his own thinking about the theory of relativity. Starson has not published a significant
scientific paper since the mid-1980’s, but he believes that his research is the sole source

1
of meaning in his life. It is this dimension of his life that would, he believes, be
extinguished by medication.

Starson’s doctors believe that his condition is deteriorating, and that he will not be able to
continue to make worthwhile contributions in physics. There is some possibility, though,
that he can return to a fruitful research career if he accepts medication. Accordingly, Dr.
Posner reacted to the Supreme Court decision by saying a man “who could have made an
enormous contribution to society was now lost in a psychotic world.” Echoing this
sentiment, Starson’s mother, Stevens, said, “I’m devastated because I’ve lost my son, and
my son has lost his dreams. I think the ruling is insane.”

In explaining the Supreme Court ruling, Justice Major does not deny that it may well not
be conducive to Starson’s best interests. That is, if we were to act solely on the basis of
the duty of beneficence, we may agree with Stevens that her son should be compelled to
take his medication. However, adds Major, one’s “conception of the patient’s best
interests is irrelevant to [the determination of capacity]” (para. 76; cf. para.63, Starson v.
Swayze). He adds that the respect for, and presumption of, capacity does not derive
primarily from concern for another’s best interests. Instead, it derives from the duty to
respect another person’s autonomy. Says Major, “The right to refuse unwanted medical
treatment is fundamental to a person’s dignity and autonomy” (para. 75, Ibid.). Also,
“Unwarranted findings of incapacity severely infringe upon a person’s right to self-
determination” (para. 75, Ibid.). One’s right to autonomy must be respected even at the
cost of one’s well-being. As Major says,

The right knowingly to be foolish is not unimportant; the right voluntarily to


assume risks is to be respected. The State has no business meddling with either.
The dignity of the individual is at stake. (para. 76, Ibid.)

Finally, Major says, “The enforced injection of mind-altering drugs against the
respondent’s will is highly offensive to his dignity and autonomy, and is to be avoided
unless it is demonstrated that he lacked the capacity to make his own decision” (para. 91,
Ibid.).

Okay, but didn’t Starson clearly lack this capacity? That’s what the Consent and Capacity
Board ruled in 1999. The standard for capacity is set forth in Ontario’s Health Care
Consent Act (HCCA). According to it,

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.

The Consent and Capacity Board held that since Starson was in “almost total” denial of
his illness, he could not pass this test. After all, if he does not acknowledge that he is ill,

2
how can he possibly relate any of the information that he receives to his own condition,
and see it as a possible treatment for that condition? If I’m not sick, why would I need
medicine, or think of any drug as a possible treatment for me? Starson has objected that
this standard is a Catch-22: if he admits that he’s ill, the Board will take that as
confirming that he’s ill; but if he denies that he’s ill, the Board will take that as proof that
he’s ill. Nevertheless, the Board concluded that since Starson did not acknowledge his
illness, he could not understand the consequences of a decision to accept or refuse
treatment, or appreciate the risks and possible benefits of any proposed treatment.

The Supreme Court disagreed, noting that he did recognize that he had an abnormal
mental condition, and adding that he need not identify this in negative terms (e.g., as a
disease). In other words, it is enough that Starson demonstrates an awareness of his
abnormal characteristics; he needn’t take them to be symptoms of an illness.

According to the Supreme Court, the doctors and the Board illegitimately substituted a
concern to promote Starson’s best interests for what should have been their real goal
(namely, ascertaining whether he met the HCCA’s two-prong test for capacity). Also, the
Court noted that Starson did seem to demonstrate an understanding of his current
condition (and even occasionally considered his condition to be an illness), and that
Starson knew what would be the foreseeable consequences of accepting the treatment
(namely, that the medications would ‘slow’ his thinking or ‘racing thoughts’). The Court
added that an improvement in his condition could not be held forth by the doctors as a
foreseeable consequence of accepting the medications (one that Starson failed to
appreciate), for the doctors could not demonstrate that Starson really would get better if
he accepted the treatment. In fact, previous pharmacological interventions had failed to
improve his condition.

Postscript:

In 2005, while in the Brockville Psychiatric Hospital (the Royal Ottawa Hospital’s
forensic facility) Starson began to refuse to eat or drink. This self-destructive behaviour
was based on paranoid delusions according to which his doctors and nurses were trying to
poison him. His doctors believed that he was in danger of dying in a matter of days. On
that basis, they wanted to compel him to take an anti-psychotic medication (with his
mother’s approval).

On Feb. 16, 2005, the Consent and Capacity Board authorized the doctors to do so, ruling
that Starson was not capable of making treatment decisions. No lawyer for Starson was
present at the Board’s hearing since Starson had elected to represent himself. He appealed
to the Ontario Superior Court, but the Court dismissed his appeal on May 10, 2005
because Starson had failed to meet a deadline for submitting a document. Since Starson
was now legally incapable of deciding about his treatment, his mother acquired the power
to decide what treatment he would receive. With her approval, the doctors immediately
began to administer an anti-psychotic medication to Starson in injectable form.

3
Although he previously rejected such treatment, he complied with it after it was initiated.
When asked (in early June, 2005) by an Ottawa Citizen reporter about his forced
treatment, Starson replied, “It’s in my interests.”

As of 2006, Starson, now fifty years old, had been incarcerated for eight years. Each year,
a panel of the Ontario Review Board (ORB) met to review Starson’s case. Their job was
to decide whether he should remain committed to a psychiatric facility or whether he
could be released (by deciding whether he still posed a threat to himself or others).

On August 16, 2006 an ORB panel was told that Starson had made much progress, was
still taking his medication, and showed few signs of symptoms. His psychiatrist, Dr. Neil
McFeely, said that while Starson’s “insight in the need to take the medicine is somewhat
limited,” the doctor was confident that Starson would continue taking the medication in
order to stay out of hospitals. The ORB panel later decided that Starson could be
transferred to a supervised group home in Toronto. An Ottawa Citizen reporter said that
after the ORB hearing, Starson agreed that he would continue taking his medication and
said, “I recognize that I exhibit all the symptoms that they attribute to mental illness.”

Note that these developments in 2005 and 2006 do not affect the Supreme Court’s verdict
in 2003, for the subsequent finding of incapacity was based on new symptoms and a new
threat to his well-being, features that were not present at the time of the Court’s 2003
ruling.

You may find the full text of the Supreme Court’s decision at:

http://csc.lexum.umontreal.ca/en/2003/2003scc32/2003scc32.html

Other helpful internet sources are:

http://www.news.utoronto.ca/inthenews/archive/2005_06_11.html

http://www.cbc.ca/thecurrent/2003/200306/20030606.html

Other sources consulted for this note:

The Toronto Star (Dec. 16, 2001)


The Globe and Mail (June 7, 2003)
The Ottawa Citizen (May 18, May 19, August 18, 2005 and August 17, 2006)