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Ethical Implications of the Starson Case
(Paul Raymont, February 11, 2008)Scott Starson (Schutzman) has been diagnosed with a bipolar disorder that combinessymptoms of manic depression and schizophrenia. He has been in and out of psychiatricfacilities since 1985. In 1998, he was charged with issuing death threats against tenantsin his Toronto apartment building, and later threatened to kill the police officer whotransported 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 OttawaHospital) on the grounds that he posed a threat to others. In December, 1998, he wasdeclared to be incapable of making his own treatment decisions. In 1999, Starsonappealed to Ontario’s Consent and Capacity Board. The Board upheld the claim that hewas not capable (competent). Starson appealed to the Ontario Superior Court, whichoverturned 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 MentalHealth) appealed this result to the Supreme Court of Canada. On June 6, 2003, theSupreme 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 tomake decisions about his own treatment. He refuses to take the medicationsrecommended by his doctors.According to the Board, Starson’s life was devastated by his disorder. His mother, JeanneStevens, agrees. She supported Drs. Posner’s and Swayze’s appeal. She says, “My sonthinks he’s an immortal space alien, yet the law says he is sane enough to refuse themedication that will make him sane.” While Starson is not known to have physicallyattacked 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 byother people in the psychiatric hospital. Asks Stevens, “Who will pick up the gauntletand do the honourable thing for my son…? Who will see that the right thing is done andhe 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 thatthis “would be worse than death for me, because I have always considered normal to be aterm so boring it would be like death.” He regarded his previous prolonged experiencewith psychiatric medication (Haldol) as intolerable. He says that the medication dulledhim 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 atStanford University, says that Starson has done “exciting” work that has stimulated someof his own thinking about the theory of relativity. Starson has not published a significantscientific paper since the mid-1980’s, but he believes that his research is the sole source1
 
of meaning in his life. It is this dimension of his life that would, he believes, beextinguished by medication.Starson’s doctors believe that his condition is deteriorating, and that he will not be able tocontinue 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 anenormous contribution to society was now lost in a psychotic world.” Echoing thissentiment, Starson’s mother, Stevens, said, “I’m devastated because I’ve lost my son, andmy 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 totake his medication. However, adds Major, one’s “conception of the patient’s bestinterests 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 torespect another person’s autonomy. Says Major, “The right to refuse unwanted medicaltreatment 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 thecost of one’s well-being. As Major says,The right knowingly to be foolish is not unimportant; the right voluntarily toassume 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 therespondent’s will is highly offensive to his dignity and autonomy, and is to be avoidedunless 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 CapacityBoard ruled in 1999. The standard for capacity is set forth in Ontario’s Health CareConsent Act (HCCA). According to it,
A person is ‘capable’ with respect to a treatment, admission to a care facilityor a personal assistance service if the person is
able to understand 
theinformation that is relevant to making a decision about the treatment,admission or personal assistance service, as the case may be, and
able toappreciate
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 needmedicine, or think of any drug as a possible
treatment for me
? Starson has objected thatthis standard is a Catch-22: if he admits that he’s ill, the Board will take that asconfirming that he’s ill; but if he denies that he’s ill, the Board will take that as proof thathe’s ill. Nevertheless, the Board concluded that since Starson did not acknowledge hisillness, he could not understand the consequences of a decision to accept or refusetreatment, or appreciate the risks and possible benefits of any proposed treatment.The Supreme Court disagreed, noting that he did recognize that he had an abnormalmental condition, and adding that he need not identify this in negative terms (e.g., as adisease). In other words, it is enough that Starson demonstrates an awareness of hisabnormal characteristics; he needn’t take them to be symptoms of an illness.According to the Supreme Court, the doctors and the Board illegitimately substituted aconcern 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, theCourt noted that Starson did seem to demonstrate an understanding of his currentcondition (and even occasionally considered his condition to be an illness), and thatStarson knew what would be the foreseeable consequences of accepting the treatment(namely, that the medications would ‘slow’ his thinking or ‘racing thoughts’). The Courtadded that an improvement in his condition could not be held forth by the doctors as aforeseeable consequence of accepting the medications (one that Starson failed toappreciate), for the doctors could not demonstrate that Starson really would get better if he accepted the treatment. In fact, previous pharmacological interventions had failed toimprove his condition.
Postscript
:In 2005, while in the Brockville Psychiatric Hospital (the Royal Ottawa Hospital’sforensic 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. Onthat basis, they wanted to compel him to take an anti-psychotic medication (with hismother’s approval).On Feb. 16, 2005, the Consent and Capacity Board authorized the doctors to do so, rulingthat 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 appealedto 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 Starsonwas 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
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