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Supreme Court of Canada's “Beautiful Mind”

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 International Journal of Law and Psychiatry 32 (2009) 315–322

Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

Supreme Court of Canada's “Beautiful Mind” case☆

John E. Gray ⁎, Richard L. O'Reilly
University of Western Ontario, Canada

a r t i c l e i n f o a b s t r a c t

Keywords: The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric
Treatment refusal treatment involved a self described “professor” who had been referred to as “Canada's Beautiful Mind”. He
Treatment capability had been found not criminally responsible on account of mental disorder for uttering death threats. While
Liberty considered incapable of making a treatment decision by psychiatrists and a review board, three levels of
Supreme Court of Canada
court, including the SCC, found him to be capable. “Professor” Starson therefore continued to refuse
treatment for his psychosis and spent over seven years detained because he refused the treatment required
to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is
not permitted in some other Canadian provinces, and in many other countries.
This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant
Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision
and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson,
human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their
relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian
and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to
refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a
mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by
law, be provided is not justifiable in a caring democratic jurisdiction.
© 2009 Elsevier Ltd. All rights reserved.

1. Introduction
The Supreme Court of Canada's (SCC) first case involving capacity and
the refusal of psychiatric treatment for a detained psychiatric patient,
Starson v. Swayze,1 generated considerable professional and public
interest. It involved a 47 year-old self described “professor” who had
been referred to as “Canada's Beautiful Mind.”2 The phrase “Beautiful
Mind” refers to the title of a book and film about Nobel laureate Professor
John Forbes Nash Jr., who was treated for schizophrenia.3 “Professor”
Starson spent over seven years detained because he refused the
treatment required to become well enough to be released.4 This refusal
of treatment is permitted under Ontario law, although it is not permitted
in some other Canadian provinces, and in many other countries.
☆ An earlier version of the article was presented at the International Congress of Law
and Mental Health, Paris, France, 2005.
⁎ Corresponding author. 2761 Shoreline Drive, Victoria BC, Canada V9B 1M7. Tel.: +1
250 386 3864; fax: +1 250 386 3874.
E-mail address: jegray@shaw.ca (J.E. Gray).
1
Starson v. Swayze SCC 32 (2003) [“Starson, S.C.C. decision”].
2
Sue Bailey, Supreme Court to Hear Case of Canada’s “Beautiful Mind”. Ottawa Citizen,
(19 April 2002).
3 5
S. Nasar, A Beautiful Mind: a Biography of John Forbes Nash Jr. (Simon & Shuster:
1998); R. Howard, A Beautiful Mind. Motion Picture, (Universal Studios: 2001).
4
R. v. Starson O.J. No. 940 (Ont. C.A.) [2004], para. 2 and para. 4.
This article describes Starson's situation, Ontario's law with respect
to consent to treatment, and Canadian constitutional and criminal law
relevant to the issues raised by the Starson SCC decision. It provides an
analysis of the findings of the Consent and Capacity Board that
addressed Mr. Starson's case, and the courts' findings in reviewing that
decision. Implications from Starson's case are analyzed in relation to
human rights and comparative law pertaining to involuntary patients'
refusal of treatment, especially their relevance to the Canadian Charter
of Rights and Freedoms, and laws in some other countries.
2. Canadian law
The Canadian Constitution divides the powers of governing between
the federal and provincial/territorial governments.5 The provinces and
territories legislate matters of mental health care, including issues of
involuntary admission and consent to treatment. By contrast, the federal
government has jurisdiction over criminal law. The Criminal Code allows
a judge anywhere in Canada to order psychiatric treatment without
consent to restore an accused person to fitness to stand trial. However,
the Criminal Code does not authorize treatment for persons found Not
Criminally Responsible on Account of Mental Disorder (NCRMD).6 Such
Constitution Act, 1867 (U.K.), 30 and 31 Vict., c.3 reprinted in R.S.C. 1985, App . II, No. 5.
6
Criminal Code, R.S.C. 1985, c. C-46, s. 672.62(2) (forced treatment for fitness); s.
672.55(1) (consent required for NCRMD).

0160-2527/$ – see front matter © 2009 Elsevier Ltd. All rights reserved.
doi:10.1016/j.ijlp.2009.06.005
316 J.E. Gray, R.L. O'Reilly / International Journal of Law and Psychiatry 32 (2009) 315–322
treatment may or may not be provided depending upon provincial law.
Regardless of which government enacts a law, all laws are subject to the
Canadian Constitution, and a Court of competent jurisdiction may strike
down and render invalid any law, or part of it, that fails to conform with
the Constitution.7 A declaration of invalidity may result if it is
determined that the law violates a right guaranteed in the Canadian
Charter of Rights and Freedoms8 and is not “saved” by s. 1 of the Charter
which provides that Charter rights are guaranteed: “… subject only to
such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.”
The Starson case did not involve a Charter challenge; however,
comments about the impact of the Charter were raised during the
court cases and by legal commentators.9 This type of case could easily
have become a Charter challenge. Due to section 1 of the Charter, laws
in other democratic countries can help in discerning if the infringe-
ment of a right is justified.
3. Starson's situation
Scott Jeffery Schutzman, a.k.a. Scott Starson was born January 13,
1956. Starson graduated in 1976, with a degree in Electrical
Engineering. He worked for an international electrical engineering
company becoming its national sales manager and was an accom-
plished athlete.10
In the late 1980s he became very interested in physics. He became
a good friend and collaborator with an internationally respected
Stanford University physicist and was second author with him on a
paper titled “Anti-Gravity” in 1991.
In 1985, at age 29, Starson had his first admission to a psychiatric
hospital. In the ensuing 18 years he had 21 admissions, most of them
involuntary, to hospitals in Canada and the United States. The
symptoms included grandiose delusions, harassment and threats of
harm to others. The diagnosis was bipolar disorder, although more
latterly, schizoaffective disorder.11 He has not worked since the late
1980s. In 1993 he changed his name to Starson because “I needed a
scientific name and I spent five or six years working out a name that I
would consider to be a totally scientific name and that's when I came
to the name Starson”.12 He insists on being called “Professor” Starson,
although he has never been a member of a University or College
faculty. His writings on theoretical physics were, according to his
mother, produced while he was on medication before 1998.13
Prior to 1998, Starson had a criminal record dating from May 1987,
including “11 various charges which involved charges of uttering
threats and harassing phone calls”14 and many of these resulted in
psychiatric hospitalization. In 1998 Starson was again charged with
two counts of uttering death threats and was found unfit to stand trial.
He refused medication but under the Criminal Code the judge may
direct “ …on the basis of the testimony of a medical practitioner, that a
specific treatment should be administered to the accused for the
purpose of making the accused fit to stand trial”15. Pursuant to the
7 satisfied that the incapable person, if capable, would probably
Constitution Act, 1982, s. 52(1), being schedule B to the Canada Act 1982 (U.K.),
1982, c . 11.
8
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter].
9 17
Ronald Sklar, Starson v. Swayze: The Supreme Court Speaks Out (Not All That Clearly)
on the Question of qCapacityq, 52 Canadian J. Psychiat, 390–396 (2007).
10
Unless otherwise referenced all biographical material is taken from Christina
Spencer, In the Name of Freedom. MD Canada: September/October 38-52 (2003).
11
R. v. Starson O.R. B.D. No 1841 (2005) at para 11.
12
In the Matter of The Health Care Consent Act, S.O. 1992, Chapter 31 and in the Matter
of Scott Starson aka Professor Starson aka Scott Schutzman; January 24, 1999; TO-98/
1320 at 142 [Starson, C.C.B. decision].
13
Jennifer O'Neill, The Patient Who Won’t Take His Medicine, Ottawa Citizen, June 6
(2003).
14
Supra, note 11, at para. 9.
15
Criminal Code, R.S.C. 1985, c. C-46, s. 672.58; see also s. 2 re definition of “unfit to
stand trial”.
Criminal Code, the Court may “direct that treatment be carried out…
without the consent of the accused or a person who, according to the
laws of the province where the disposition is made, is authorized to
consent for the accused.”16 Starson responded to the compulsory
treatment to the point that he became fit to stand trial.
At the trial Starson was found Not Criminally Responsible on
Account of Mental Disorder (NCRMD) and came under the jurisdiction
of the Ontario Review Board (ORB). He was returned to hospital for
further treatment but refused to take medication as he was no longer
under a court order, or any other authority, to do so. In December 1998
Starson's psychiatrist found him incapable to consent to treatment.17
That finding of incapacity was confirmed by Ontario's Consent and
Capacity Board (CCB) in January 1999,18 but rejected on appeal to the
Superior Court of Justice (November, 1999),19 the Ontario Court of
Appeal (June 2001)20 and ultimately the Supreme Court of Canada,
(June 2003),21 five years after the initial finding. Under Ontario law,22
but not that in other provinces,23 treatment could not ordinarily be
given while the matter was under court appeal. Starson's history
following the SCC decision in 2003 that allowed him to continue to
refuse treatment is described later in this article.
4. Capacity and refusal of treatment under Ontario law
Whether an involuntary psychiatric patient is admitted to a
psychiatric hospital under the Ontario Mental Health Act24 or pursuant
to a disposition order under the Criminal Code,25 capacity to consent to
treatment is governed by the provisions of Ontario's Health Care
Consent Act (HCCA).26 Further, no distinction is made between
voluntary patients who consent to admission and may discharge
themselves at any time and involuntary patients who are admitted
without consent and must be detained until they improve enough to
meet the discharge criterion. The test of capacity that applies to all
patients is whether or not “the person is able to understand the
information that is relevant to making a decision about the treat-
ment… and able to appreciate the reasonably foreseeable conse-
quences of a decision or lack of decision”27.
Involuntary psychiatric patients subject to the Ontario Health Care
Consent Act can (and do) refuse the treatment necessary to terminate
their detention under three provisions:
(1) A patient, whether voluntary or involuntary, who is determined
to be capable with respect to treatment has an absolute right to
refuse treatment (this was the situation with Starson).
(2) An incapable patient with a wish not to be treated that was
expressed when the patient was capable, cannot be treated if the
wish is applicable to the present circumstances. The patient's
substitute decision-maker (SDM) must refuse treatment on an
incapable patient's behalf, in accordance with the patient's prior
capable wish even if the SDM knows it will result in serious
psychological or physical harm or prolonged loss of freedom.
There is an exception to this general rule: the CCB can give
“permission to consent to the treatment despite the wish if it is
16
Ibid, s. 672.62(2).
Supra, note 12.
18
Ibid.
19
Starson v. Swayze, 22 Admin. L.R. (3d) 211, [1999] O.J. No. 4483 (Ont. S.C.J.), (1999).
[Starson, Superior Court decision].
20
Starson v. Swayze, 201 D.L.R. (4th) 123, 33 Admin. L.R. (3d) 315, [2001] O.J.
No. 2283 (Ont. C.A.) (2001) at para. 14 [Starson, Court of Appeal decision].
21
Supra, note 1.
22
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. s. 18. [HCCA].
23
Involuntary Psychiatric Treatment Act, S.N.S. 2005, c. 42, s. 79(4).
24
R.S.O. 1990, c. M.7.
25
Supra, note 15, s. 672.54.
26
Supra, note 22.
27
Ibid., s. 4(1).
 J.E. Gray, R.L. O'Reilly / International Journal of Law and Psychiatry 32 (2009) 315–322
give consent because the likely result of the treatment is
significantly better than would have been anticipated in
comparable circumstances at the time the wish was expressed”.28
When Starson was found capable to refuse psychiatric medica-
tion including new anti-psychotics, the ruling had the effect of
crystallizing a “prior capable wish.” Thus, even if Starson
became incapable his SDM would be required to refuse consent,
if his wish continued to apply to the circumstances; even
though the SDM was strongly of the view that anti-psychotic
medications would help Starson,
(3) Where an incapable patient has not expressed a capable wish
applicable to the circumstances, treatment can still be refused if
the SDM considers this to be in the “best interests” of the
person although the substitute decision-maker's decision can
be reviewed by the Board pursuant to s. 37 of the HCCA.29
5. Starson's Consent and Capacity Board hearing (hearing and
decision January, 1999)
Once a physician had declared Starson to be incapable, Starson
applied to the CCB for a review of that decision. Treatment cannot be
started once the patient has applied for a review.30 The panel of the
CCB that hears the review usually consists of a lawyer (who chairs the
hearing), a psychiatrist, and a member of the general public.
Evidence that Starson had a mental illness, including delusions
that could interfere with his ability to understand and appreciate the
consequences of treatment was before the Board and was summarized
by the Chief Justice of the Supreme Court of Canada in her dissenting
reasons as follows: “He talks about plans to run the ‘Starson
Corporation’ from inside his current inpatient unit; insists that he is
‘leading on the edge of efforts to build a starship’; claims to be a world-
class skier and arm-wrestler; and has asserted that he is the greatest
scientist in the world and communicates with extra-terrestrials.”31
Based on all the evidence, the CCB's decision was that Starson was
not capable with respect to the proposed treatment. In so finding, the
Board held that “clear and cogent evidence was presented that the
patient is suffering from a chronic mental disorder, likely a bipolar
disorder with psychotic features.”32 The Board also characterized
Starson's denial of his mental illness as “almost total”33 and noted
that:
If the patient cannot acknowledge that he has some type of
mental disorder and that his behaviour is being affected by the
mental disorder, he cannot understand the information provided
to him. He cannot understand this information because he cannot
relate it to this particular disorder.
In the Board's opinion as well, the patient cannot understand the
potential benefits of the medication.34
The Board further held that “Without some treatment, it is unlikely
he will ever return to his previous level of functioning and he may, as
suggested by Dr. Posner, continue to deteriorate.”35. The Board
concluded that Starson was incapable of making a treatment decision
in relation to the treatment recommended that included anti-
psychotic medication.36
28
Supra, note 22, s. 36(3).
29
See Conway v. Jacques, 59 O.R. (3d) 737 (Ont C.A.), (2002) considering this section.
30
Supra, note 22, s. 18.
31
Supra, note 1, para. 2.
32
Supra, note 12, at para 15.
33
Ibid., at 16.
34
Ibid., at 17.
35
Ibid., at 17.
36
Ibid, at 18–19.
317
6. Ontario Superior Court (Heard July, 1999. Decision
November, 1999)
Starson appealed the decision of the CCB to the Ontario Superior
Court of Justice. Justice Molloy reviewed the Board's findings and
concluded that the Board's decision should be set aside as unreasonable.
Justice Molloy concluded that the Board's decision was unreasonable
in finding that Starson had no understanding of his mental condition, in
relying on hearsay evidence and in finding that Starson had delusions
that others were trying to harm him because it was based on conjecture
rather than evidence. The Board, she said, also misapprehended
Starson's reasons for refusing treatment and disregarded the letters of
friends and colleagues supporting Starson. The Board did not correctly
apply the test for capacity, by failing to consider the extent to which
Starson's psychiatric disorder affected his ability to understand or
appreciate the consequences of treatment; that is, the Board instead
focused on actual understanding and appreciation rather than “ability”
to understand and appreciate; and the Board's determination that
Starson did not appreciate the consequences of treatment and non-
treatment was based on conclusions about alleged benefits of the
proposed medication, the factual foundation for which was fundamen-
tally flawed.37
Justice Molloy therefore set aside the Board's decision. This meant
that Starson was capable with respect to treatment, at the time of the
CCB hearing. It is worth noting that Justice Molloy also held that the
party alleging incapacity has a burden of proof that is “more than” the
normal civil standard of “balance of probabilities”.38
Following the Court's decision, Starson continued to refuse treatment.
He did not improve nor continue his scientific work as he predicted.
Instead he deteriorated and became threatening to staff and others and
was transferred for a period to a high security forensic facility.39
7. Court of Appeal of Ontario (Heard August, 2000. Decision
June, 2001)
Starson's physicians appealed Justice Molloy's decision to the
Ontario Court of Appeal. The Court dismissed the appeal and
confirmed Starson's capacity to refuse the anti-psychotic treatment.
The Court of Appeal agreed with the reasoning of the Superior Court
and was not blind to the implications of its decision, noting: “He has
made a decision that may cost him his freedom and accelerate his
illness.”40
The Court of Appeal also refused to allow new evidence, as the
statute allows. The Court of Appeal, however, stated that the burden of
proving incapacity is on a balance of probabilities rather than on an
“enhanced” standard.41 Starson, continued to refuse treatment.
8. Supreme Court of Canada (Heard January, 2003. Decision
June, 2003)
The Court of Appeal's decision was appealed further and heard by
the Supreme Court of Canada in January of 2003. The Court's decision
was released on June 6, 2003, four years after the initial lower court
hearing. The Supreme Court of Canada did allow interveners to make
submissions at the hearing, but did not allow any new evidence.
The Supreme Court was split. The six-judge majority confirmed
Starson's capacity, affirming the reasoning of the courts below. The
majority held that the Board's findings that Starson was in “almost total”
denial of his mental illness and that he failed to appreciate the
37
Starson v. Swayze 22 Admin. L.R. (3d) 211, [1999] O.J. No. 4483 (Ont. S.C.J.) (1999),
at para. 27 [Starson, Superior Court decision].
38
Ibid, at paras 16 and 20.
39
Supra, note 11, para 16.
40
Starson v. Swayze 201 D.L.R. (4th) 123, 33 Admin. L.R. (3d) 315, [2001] O.J. No. 2283
(Ont. C.A.) (2001), at para. 14 [Starson, Court of Appeal decision].
41
Ibid., at para. 6.
318 J.E. Gray, R.L. O'Reilly / International Journal of Law and Psychiatry 32 (2009) 315–322
consequences of his decision to refuse treatment had no evidentiary
basis. Importantly, however, the majority of the Court confirmed that the
burden of proving incapacity is the “balance of probabilities” standard
rather than an “enhanced” standard as suggested by Justice Molloy.42
The minority opinion, written by the Chief Justice and supported
by two other justices, held that the Board was correct to uphold the
treating psychiatrist's determination that Starson was incapable of
refusing the proposed treatment. The dissenting judges held that the
Board's findings were reasonable and fully supported by the
evidentiary record. The dissent also addressed the majority's argu-
ments and disagreed that the Consent and Capacity Board had applied
a “best interests” standard rather than looking at Starson's capacity to
understand and appreciate consequences.
We are concerned that reviewing courts may have been unduly
influenced by the perception that compulsory psychiatric treatment is
dangerous and, in any context, highly offensive to individual
autonomy, as articulated in the 1991 decision of the Ontario Court of
Appeal, Fleming v. Reid. The SCC quoted Fleming v. Reid as follows:
Few medical procedures can be more intrusive than the forcible
injection of powerful mind-altering drugs which are often accom-
panied by severe and sometimes irreversible adverse side effects.43
The SCC majority also cited the Court of Appeal as their authority
on side effects:
In Fleming v. Reid, supra, Robins J.A. observed, at p. 84, that neuroleptic
medication carries with it “significant, and often unpredictable, short
term and long term risks of harmful side effects.”44
A more balanced view of these medications is one presented to the
U.S. Supreme Court:
The overwhelming preponderance of data supports a high benefit
to risk ratio for the medications and a safety record commensurate
with other powerful pharmacological agents.45
Perhaps the reviewing courts and Starson himself should have
heeded the words of the real “Beautiful Mind”, Nobel laureate
Professor John Nash. Nash was an involuntary patient who resisted
treatment with all legal means. However, when he was finally
compelled to take medication he wrote:
“In these interludes of, as it were, enforced rationality I did suc-
ceed in doing some respectable mathematical research”.46
9. Implications of treatment refusal for Starson
For the five years prior to the 2003 SCC decision Scott Starson's
refusal of treatment appeared to be related to his continued
incarceration, his continuing psychotic symptoms and his lack of
scientific work. On learning of the 2003 SCC's decision Starson's
mother, his substitute decision-maker, was quoted as saying “I don't
think it's a very humane judgment. It's a disaster…they have
destroyed his life and his dreams.”47 Since the SCC decision his
mother's predictions have come true.
42
Supra, note 1, at para. 77.
43
Fleming v. Reid, 4 O.R. (3d) 74 (Ont. C.A.) (1991) per Robins J.A. at 88; the decision
was cited in the Starson SCC decision, supra, note 1, at para. 75.
44
Supra, note 1, at para 101.
45
Supreme Court of the United States, State of Washington v. Walter Harper, paper for
the American Psychiatric Association and the Washington State Psychiatric Association
as Amici Curiae, at 16.
46
John F. Jr. Nash, Autobiography, in Tore Frängsmyr, ed., Les Prix Nobel, The Nobel
Prizes (1994) (Stockholm: Nobel Foundation, 1995), online: Nobelprize.orghttp://
nobelprize.org/nobel_prizes/economics/laureates/1994/nash-autobio.html.
47
Tracey Tyler, Bright Mind, No ‘Bright Future’ Toronto Star, 7 June, at A4. (2003).
Starson insisted that without the medication that “dulled his
mind” he would get back to his scientific work, but that did not occur.
Starson also claimed that his not being quickly released from hospital
was a “hypothetical situation that will not occur.”48 However, he was
not released. Instead of making autonomous decisions and enjoying
the freedoms guaranteed by the Charter, he was continuously detained
in an inpatient forensic psychiatric unit and deteriorated as his
psychiatrists in 1999 had predicted.49
An ORB 2005 review reported, two years following the SCC de-
cision, that:
…he continued to be psychologically intimidating, threatening and
abusive, including threats to kill his attending psychiatrist. There
was a legitimate medical concern due to his severe psychotic
condition . . . [From] September 2003 . . . until May 2005 he
continued to experience florid delusions and command hallucina-
tions, some voices telling him to distrust his caregivers and others
telling him to do the opposite. [Starson] continued to be verbally
aggressive and assaultive to staff and treating people in a “rude,
abrupt, condescending arrogant and intolerant” manner exhibiting
antisocial personality traits. He continued to have grandiose
thoughts of being the Director of NASA, the creator of the CN
Tower and was romantically involved with Joan Rivers. In May 2004
there was a bout of depression and suicidal thoughts.50
Things got even worse for Scott Starson.
Mr. Starson began to think that the hospital was poisoning his
food and that he should not eat his food because Chester, his
imagined son, would be tortured if he ate too much food. His
health deteriorated to the point where his weight dropped to 118
pounds and he was lying on his bed in an almost catatonic state
with florid hallucinations. He had to be sent to the local general
hospital for intravenous fluids. By February of 2005 the accused
was suffering from electrolyte imbalance with low potassium
levels and a rapidly deteriorating physical state.51
Medical experts said he would soon die if he was not treated with
anti-psychotic medication. Starson's psychiatrist found him incapable
of consenting to, or refusing treatment and this finding was upheld by
the CCB.52 Although Starson attempted to appeal the CCB finding to
the Court, the Court did not give leave, in essence confirming his
incapability. Presumably since his previous wishes were not applic-
able to these new circumstances his mother consented to his
compulsory treatment with anti-psychotic medication.
His improvement with injectable Haldol was significant according
to the ORB which reported:
The accused's concentration level has improved. He has abandoned
his bed and attends with staff into the Brockville community and
the hospital grounds. Although he has lost a fair amount of his
paranoid thinking, particularly his grandiosity, he still retains some
grandiose ideas. His a weight has increased to 160 pounds from 118
pounds in the space of just over 2 months.53
In the following year, in August 2006, the ORB found him to still
meet the NCRMD criterion but there had been considerable improve-
ment as shown by these excerpts from the ORB report:54
48
Supra, note 1, at para 46.
49
Supra, note 12, at 40 and 92.
50
Supra, note 11, at para. 17.
51
Supra, note 11, para 18.
52
In the Matter of The Health Care Consent Act, S.O. 1996, Chapter 31 and in the Matter
of Professor S., a patient at Brockville Psychiatric Hospital Brockville Ontario, Reasons for
Decision. February 16, KI-05-4875 (2005).
53
Re Schutzman, O.R.B.D. No. 1841 (2005) (Ontario Review Board, para 20.).
54
Re Schutzman, O.R.B.D. No. 2852 (2006) (Ontario Review Board).
 J.E. Gray, R.L. O'Reilly / International Journal of Law and Psychiatry 32 (2009) 315–322
Dr. McFeeley testified …Since May of 2005 the accused has been
on anti-psychotic medication which has transformed him both
mentally and physically. He no longer has florid delusions or
hallucinations since shortly after the treatment began. The
accused was transferred to the minimal open forensic ward,
Oxford I, because he was well enough for this.
Despite some residual symptoms the ORB concluded:
A disposition will therefore follow which transfers the accused to
the Centre for Addiction and Mental Health in Toronto in its
minimum secure unit with the privilege of living in the
community in accommodation approved by the person in charge.
These improvements in Starson's symptoms, functioning and legal
situation appear directly related to the effect of “forced” psychotropic
medication which he had bitterly opposed.
The 2007 yearly review by the ORB indicated that Scott Starson
maintained his improvement since starting on medication in 2005 but
needed more improvement before he could be released uncondition-
ally. Excerpts from the 2007 report55 include: “The past six to seven
months…[he] has resided on unit 1–2 on the medium secure forensic
unit without difficulty.” “He describes his mood as “low”. “Mr Starson
reports working many hours on physics equations.” “Over the course
of the Christmas holidays he spent several days visiting her [his
mother] in her home.” “Mr Starson acknowledges that he requires
anti-psychotic medication and may require medication for the balance
of his life.” The ORB altered the conditions so that he could move from
the hospital and “live in the community in accommodations approved
by the person in charge.”
Scott Starson was indeed discharged under the ORB order to the
community, in July, 2007. His 2008 ORB hearings56 also reported,
however, that in October, 2007 he decompensated but was success-
fully treated in hospital, returning to the community after two
months. In March 2008 he did not report for his anti-psychotic
injection, was apparently decompensating, was re-hospitalized and
was found to be psychotic, delusional and grandiose. A month later he
was discharged back to the community. It was noted by the ORB that
he had applied to the CCB to contest his incapability, presumably so
that he could once again refuse treatment under Ontario law.57
10. Legal implications for Ontario
There are four aspects of the Supreme Court of Canada decision
that may be particularly important for future legal proceedings
respecting a patient's capacity to consent to treatment in Ontario,
some of which, it has been argued, extend to other provinces.
10.1. Burden of proof
In civil proceedings the burden of proof is generally proof “on a
balance of probabilities”, and this standard is also specified in the
mental health legislation of Manitoba.58 By contrast, the Ontario
legislation does not specify the burden that must be met. In the
Starson case, Justice Molloy held that the standard was “clear and
cogent” evidence; a standard higher than the “balance of probabil-
ities” test but not as high as “beyond a reasonable doubt”.59 Justice
Molloy reasoned that an enhanced standard was appropriate to avoid
55
Re Schutzman,] O.R.B.D. No. 2852 (2007) (Ontario Review Board).
56
Re Schutzman, [O.R.B.D]. No. 867 and 1206, file 2852 (2008). (Ontario Review
Board).
57
See J. E. Gray, M. A. Shone and P. F. Liddle, Canadian Mental Health Law and Policy,
2nd ed. (NexisLexis, Canada: 2008) at 230.
58
Mental Health Act, S.M. 1998, c. 36, C.C.S.M., c. M110, s. 57.
59
R. v. Oakes 1 S.C.R. 103, 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321 (S.C.C.) (1986) at para.
32.
319
individuals being subject to unwanted psychiatric treatment. The
converse argument, not considered by the Court, is that a standard
that is too high may lead to indefinite detention due to continuing
illness and symptoms for the patient. However, the Ontario Court of
Appeal and the SCC both affirmed that the appropriate test was proof
on a “balance of probabilities”. Because the burden of proof was not an
issue specifically raised by the appeal, the Court's pronouncements are
considered obiter dicta (i.e. comments made in passing) and are not
necessarily binding on other courts faced with this issue. Never-
theless, most legal scholars would consider this pronouncement
binding in Ontario and persuasive for the courts of other provinces.
10.2. The manner of adducing evidence and “best interests”
The reasons in the Starson case also provide telling statements
about how evidence should be presented to the Board when a
patient's capacity is at issue. The majority of the Supreme Court held
that the Board was overly concerned with Starson's best interests,
when their focus should have been on his capacity. It should be noted
that the dissenting decision disagreed. The majority's view suggests
that a tribunal making a capacity determination should be cautious in
making expressions of concern for the patient, lest the courts interpret
these comments as evidence of a Board's improper application of best
interests, which play no part in capacity determination in Ontario.60
10.3. The nature of evidence before the Board
Justice Molloy considered that much of the evidence of the
physicians was “hearsay” as it came from third parties. She also noted
that the patient's medical chart was not before the Board.61 The SCC
commented:
Hearings must be conducted in an expeditious manner to ensure
that treatment decisions can be made without undue delay. To
fulfill that mandate, the Board will often be forced to rely on
hearsay evidence to become fully informed of a patient's
circumstances. The weight to be accorded to such evidence is
normally a matter that is left to the discretion of the Board.
Nonetheless, the Board must be careful to avoid placing undue
emphasis on uncorroborated evidence that lacks sufficient indicia
of reliability, a fact it failed in this case to observe.62
This finding suggests that, where possible, medical records should
be formally entered as “exhibits” in the process and using witnesses
directly might also be useful, although the costs in time and
inconvenience may be prohibitive.
10.4. Denial of illness and capacity
Some had thought that a patient who denied they had an illness,
for which a treatment was being proposed, as did Starson, could not
pass the understanding and appreciation capability test. However,
Sklar's opinion of the SSC ruling is that “… in Ontario, the Board
cannot base a finding of incapacity on a patient's denial of his or her
illness.”63 This is because the SSC wrote that “[A] patient is not
required to describe his mental condition as an “illness”, or to
otherwise characterize the condition in negative terms. Nor is a
patient required to agree with the attending physician regarding the
cause of that condition.[Only] if the patient's condition results in him
being unable to recognize that he is affected by its manifestations,
[will he] be unable to apply the relevant information to his
60
Supra, note 9 at 393.
61
Supra, note 37, paras. 37 and 41.
62
Supra, note 1, para. 115.
63
Supra, note 9, at 393.
320 J.E. Gray, R.L. O'Reilly / International Journal of Law and Psychiatry 32 (2009) 315–322
circumstances, and unable to appreciate the consequences of his
decision.”64
11. Starson implications for other Canadian provinces/territories
Since there was no Charter challenge in Starson some authors have
concluded that findings of the SCC were binding only in Ontario and
other provinces' Mental Health Acts were unaffected.65 On the other
hand Sklar contends that the right to refuse treatment and the
irrelevance of the patient's best interests likely are binding throughout
Canada66 even though the SCC did not address treatment refusal.
However, there are very considerable differences in the purposes and
provisions of Mental Health Acts which can be critical to a Charter
analysis. For example, the purpose of committal in the British
Columbia Act is to provide treatment: indeed the need for psychiatric
treatment is included as a necessary committal criterion.67 This is not
the case in Ontario where the purpose is “prevention of danger and
not compulsory treatment”68 (treatment is a “private” mater).
Treatment refusal is consistent with the Ontario purpose but not
with the British Columbia purpose. Exercising great prudence in
importing provisions from different legislative schemes and a careful
Charter analysis of the effects of treatment refusal on involuntary
patients, who have been admitted without consent and who can
refuse the treatment that will restore their liberty (see below), would
seem warranted before provinces adopt Ontario law, even as
construed by the SCC.
12. Clinical/legal implications (advance directives)
Ontario's legislative scheme, which recognizes prior capable
wishes to refuse treatment that are applicable to the circumstances,
poses a particular challenge. For subsequently incapable patients, the
substitute decision-maker must refuse treatment even if he/she
knows that the refusal will seriously harm the patient and keep them
indefinitely detained. Furthermore, if a person expresses a prior
capable wish not to be treated and becomes incapable but they change
their mind and want treatment, they cannot have it. This is because
their decision-maker is bound by the previous competent wish not to
be treated. This wish in practice is an “advance directive.”
An advance directive is really advance consent. To be valid an
advance directive must conform to the requirements for valid
informed consent. The problem with the Ontario Health Care Consent
Act (HCCA) is that “wishes” do not have to be in writing, nor require
evidence that they were informed nor made when the person was
capable and may therefore “incorrectly” result in a person's continued
suffering and detention. However, there is a section of the HCCA that
allows a substitute decision-maker or a health care practitioner to
apply to the CCB where a patient's previously expressed wish is not
clear, or is applicable to the circumstances.69 Failing that, absolute
refusal and resulting harms to self or others including indefinite
detention are permitted. Various methods of addressing the issue of
treatment refusal that will result in harm to the patient or others have
been developed by other provinces and other countries (discussed
below).
Despite these procedural protections to ensure that advance
directives are valid, the essence of an advance directive for an
64
Supra, note 1, para. 79.
65
Simon A. Brooks, Richard L. O'Reilly and John E. Gray, CPA Advisory. Implications for
Psychiatrists of the Supreme Court of Canada Starson v. Swayze Decision CPA Bulletin,
August: 28, (2003).
66
Supra, note 9, at 390.
67
McCorkell v. Riverview Hospital (Director),] B.C.J. No. 1518 (1993) at para 45.
68
Khan v. St. Thomas Psychiatric Hospital, 87 D.L.R. (4th) 289, 52 O.A.C. 166, 7 O.R. (3d)
303, 70 C.C.C. (3d) 303 (C.A.); leave to appeal to S.C.C. refd (1992), 93 D.L.R. (4th) vii,
59 O.A.C. 240, 10 O.R. (3d) xv, 75 C.C.C. (3d) vii.., at 293 (D.LR.) (1992).
69
Supra, note 22, s. 35(1).
involuntary patient is that treatment can be refused. Starson's case,
among others, illustrates the effects. In contrast, in the U.S., “PAD
[Psychiatric Advance Directive] give clinicians broad discretion over
whether to carry out patient's advance directives”.70 However, as Dr
Paul Appelbaum has noted in a U.S. State Supreme Court ruling, the
state cannot prohibit advance directives not to be treated.71 He
warned: “If large numbers of patients were to complete advance
directives such as Nancy Hargrave's, [who has paranoid schizophrenia
and multiple admissions], declining all medications, hospitals might
well begin to fill with patients whom they could neither treat nor
discharge.”72 This would of course gladden the heart of Dr. Thomas
Szasz who has been promoting advance directives because he is
convinced that they can be used to stop all involuntary admission and
treatment.73
13. Implications for the legal rights of detained patients
13.1. Charter of Rights and Freedoms
In many countries, legal rights are enshrined in a constitution, bill
of rights or case law. In Canada, the Canadian Charter of Rights and
Freedoms performs this function. This analysis while specific to the
Canadian context may resonate with the situations in other countries.
As has already been noted, the Starson decision did not involve a
Charter challenge to Ontario's mental health legislation. Had such a
challenge been pursued, the most important sections potentially
applicable to the rights of involuntary patients to refuse the treatment
necessary for their release are ss. 7, 9 and 12 of the Charter. However,
even if it can be demonstrated that a law violates one of these sections,
it may nevertheless be valid as a reasonable limit prescribed by law in
a democratic country, under s. 1 of the Charter.
13.1.1. Section 7 — fundamental justice
Section 7 of the Charter reads as follows: “Everyone has the right to
life, liberty, and security of person and the right not to be deprived
thereof except in accordance with the principles of fundamental
justice.” The two rights implicated by involuntary detention and
compelled treatment of a psychiatric disorder are “liberty” and
“security of the person”. However, s. 7 of the Charter does not prohibit
all violations or limits on “liberty” and “security of the person”. Rather,
limits are permitted if they are in accordance with the principles of
fundamental justice. The principles of fundamental justice have been
defined as the “fundamental tenets of the legal system” and are
related to due process of both a procedural and substantive nature.
Numerous courts have found that the state may deprive a person with
a mental disorder of their “liberty”, by involuntary admission, because
the deprivation has been found to be in accordance with “fundamental
justice”.74
Rights are not absolute and a balance must be struck. Where an
involuntary patient is admitted and deprived of their liberty in
accordance with the Charter, the question is how to minimize the loss
of liberty. Psychiatric treatment may interfere with the “security of
person” but treatment not only ameliorates the symptoms of mental
illness (that are the basis for committal in the first place) it is almost
70
Jeffrey W. Swanson, S. Van McCrary, Marvin S. Swartz, Richard A. Van Dorn and Eric
B. Elbogen Overriding Psychiatric Advance Directives: Factors Associated with Psychia-
trists' Decisions to Preempt Patients' Advance Refusal of Hospitalization and Medication,
31 Law Hum. Behav. 77–90 (2007).
71
Hargrave v. Vermont 340 F. 3d 27 (2003).
72
Paul S. Appelbaum, Psychiatric Advance Directives and the Treatment of Committed
Patients 55 Psychiat. Serv. 751–763 (2004).
73
Thomas Szasz , The Psychiatric Protection Order for the qBattered Mental Patientq, 327
Brit. Med. J., 1449–51 (2003).
74
See e.g. McCorkell v. Riverview Hospital (Director), B.C.J. No. 1518 (1993); Starnaman
v. Penetanguishine Mental Health Centre, O.J. No. 1958 (Ont. Ct. Gen. Div.)), aff'd (1995),
24 O.R. (3d) 701 (Ont. C.A.) (1994).
 J.E. Gray, R.L. O'Reilly / International Journal of Law and Psychiatry 32 (2009) 315–322
invariably the only means of regaining their liberty. Further, in some
provinces one of the criteria for involuntary admission is “need for
psychiatric treatment”.75 If treatment is not provided, the reason for
admission/detention becomes illogical and not in accord with the
purpose of the law.76
As the Starson decision made plain, courts are very concerned about
the intrusive nature of forced psychiatric treatment. Starson's continued
detention, and that of others, however, shows that without compulsory
treatment the right to liberty is seriously compromised.77 The evidence
and legal arguments that have been used to successfully defend
involuntary committal against a section 7 challenge could, in large
part, be used to defend compulsory treatment for involuntarily detained
patients. Even if the courts found that compulsory treatment of
involuntary patients (under a mental health act or the Criminal Code)
infringed section 7, the law can be “saved” if it has reasonable limits “as
can be demonstrably justified in a free and democratic society”.
13.1.2. Section 12 — cruel or unusual treatment or punishment
The Charter, section 12 reads: “Everyone has the right not to be
subject to any cruel and unusual treatment or punishment.” Prior to
the development of anti-psychotic drugs, it was not unusual to have a
person with an acute psychosis in seclusion for extended periods.
Today, with treatments readily available, that is certainly very unusual
and arguably cruel. This was the factual scenario before the Court in
Sevels v. Cameron78 where the Court, following 404 days seclusion of
a man with untreated psychosis, determined that treatment could still
not be administered in the circumstances based on Ontario law but
commented:
…it surely cannot be the intended result of the application of the
Charter of Rights and Freedoms that persons who are entrapped in
the cage of their mental illness and who are medically diagnosed
as chronically unable by the nature of their disease to give or
refuse informed consent with respect to treatment, whether or
not they are from time to time able to function in other aspects of
their lives, be for prolonged periods caged and warehoused in
mental health facilities where the key to their necessary and
involuntary seclusion is available with relatively little likelihood of
substantial risk.79
When people with a severe mental illness are “for prolonged
periods caged and warehoused” when less restrictive alternatives
(psychiatric treatment) are available, that is arguably “cruel and
unusual punishment or treatment.”
13.1.3. Section 2 — fundamental freedoms
Section 2 (b) reads “Everyone has the following fundamental
freedoms…
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication”.
Scott Starson's multiple delusions interfered with his freedom of
thought to the point that he could not do his scientific work. Indeed he
had been excused from criminal culpability on a number of occasions
because his mental illness controlled his thoughts so much so that he
was found Not Criminally Responsible on Account of Mental Disorder.
Because of his untreated delusions he nearly starved to death. The
drugs that could restore his and others fundamental freedom of
thought are not “mind controlling” but “mind restoring”. If the state
75
See e.g. Mental Health Act, R.S.B.C. 1996, c. 288, s. 22(3)(c)(i); Mental Health
Services Act, S.S. 1984–85–86, c. M-13.1, s. 24(2)(a)(i); Manitoba Mental Health Act,
supra note 63, s . 17(1)(b)(ii).
76
See L. E. Rozovsky, The Canadian Law of Consent to Treatment 3rd Ed. (Butter-
worths, Toronto: 2003) at 70.
77
Supra, note 57 at 226-232, 242–248.
78
O.J. No. 2123 (Ont. Ct. (Gen. Div.) (1994).
79
Ibid., at para. 15.
321
keeps people detained because of an illness interfering with their
freedom of thought, yet permits them to refuse the treatment required
to restore that freedom of thought that could be inconsistent with
section 2 of the Charter.
13.1.4. Section 15 — equality rights
Section 15 of the Charter provides that “Every individual is equal
before and under the law and has the right to equal protection and
equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour,
religion, sex, age, or mental or physical disability.”
It could be argued that since a voluntary capable psychiatric
patient can refuse treatment, the law must allow involuntary capable
patients or incapable patients with a capable advance directive, to
refuse treatment in order to treat the two groups equally. Indeed that
is the current Ontario law. Canadian courts, however, have approached
equality cases with a view to determining if substantive, rather than
merely formal equality is achieved under the law. There are
fundamental inequalities between voluntary and involuntary patients
regarding consent and the effects of treatment refusal. Voluntary
patients consent to be admitted to the hospital, consent to treatment
and if they refuse treatment they are free to discharge themselves at
any time. By contrast, involuntary patients are admitted against their
will, without their consent, even if they are capable of making that
decision. They cannot discharge themselves — they will only be
released when they no longer meet admission criteria. If they refuse
treatment, their right to liberty is usually denied for much longer
periods than if they receive treatment. Thus, the equality argument for
providing a right to refuse treatment for involuntary patients breaks
down.
14. Canadian comparison's with Ontario's law
Laws concerning the refusal of the treatment necessary to restore
an involuntary patient's liberty, whether through capability defini-
tions or advance directives, are significantly different among Canadian
jurisdictions. Some provinces allow an override of a capable person's
wishes by a review panel (Alberta, New Brunswick),80 or by the
admission authorizing treatment (British Columbia, Newfoundland
and Labrador)81 or by requiring a previous expressed wish to be
followed except if serious harm to the person or others is likely
(Manitoba, Nova Scotia).82 Saskatchewan, Nova Scotia and New-
foundland and Labrador83 do not involuntarily admit a person who is
able to fully understand and make an informed decision about
treatment. The federal Criminal Code does not permit a person found
unfit to stand trial, capable or not, to refuse treatment, despite refusal
being allowed under a provincial Act.84 Given these significant
differences among Canadian jurisdictions it would seem unwise to
assume there exists a right to refuse treatment for all involuntary
patients until the SCC rules specifically on that issue.
15. International comparisons with Ontario's law
In assessing Ontario's law that involuntary patients may refuse to
consent to treatment, an examination of how other democratic
countries address this issues can be helpful. If, for example, few
80
Mental Health Act, S.A. 1988, c. M-13.1, as am., s. 29(2); Mental Health Act, R.S.N.B.
1973, c. M-10, as am., s. 30.3(6.2).
81
Mental Health Act, R.S.B.C. 1996, c. 288, as am., s. 8; Mental Health Care and
Treatment Act, S.N.L. 2006, c. M-9.1, s. 35(1).
82
Mental Health Act S.M. 1998, c. 36 as am., 28(4)(b)(ii); Involuntary Psychiatric
Treatment Act S.N.S. 2005, c. 42, s. 18.
83
Mental Health Services Act, S.S. 1984–85–86, c. M-13.1, s. 24(2)(a)(ii); Involuntary
Psychiatric Treatment Act S.N.S. 2005, c. 42, s. 18(2); Mental Health Care and
Treatment Act, S.N.L. 2006, c. M-9.1, s. 17(1)(b)(ii)(B).
84
Supra, note 6.
322 J.E. Gray, R.L. O'Reilly / International Journal of Law and Psychiatry 32 (2009) 315–322

democratic countries allow involuntary patients to refuse treatment, 16. Conclusion

this would be a factor relevant to determining if the Ontario, or other
schemes, are demonstrably reasonable and justified (to use the
language of s. 1 of the Charter).
As Gostin85 and Davidson86 discuss, European countries, including
those on the British Isles, must adhere to certain European rights codes and
courts can strike down (invalidate) mental health laws that do not. Newly
passed laws must comply. On treatment refusal, the recently amended
England and Wales Mental Health Act 2007 continues to allow treatment for
a capable patient who “has not consented to it but that, having regard to the
likelihood of its alleviating or preventing a deterioration of his condition,
the treatment should be given.” As a protection the “registered medical
practitioner concerned shall consult two other persons who have been
professionally concerned with the patient's medical treatment…” 87
Northern Ireland is similar.88 The Irish Mental Health Commission states
“The Mental Health Act, 2001 brings Irish mental health law into line with
the European Convention for the Protection of Human Rights and
Fundamental Freedoms” .89 The Act authorizes treatment for those who
are “unwilling [capable]” where two consulting psychiatrists agree.90 Other
European countries have similar provisions.91 These Acts also do not appear
to allow an involuntary patient to refuse treatment by virtue of having an
advance directive not to be treated.
In South Australia, as an example of an Australian jurisdiction, a
physician may authorize treatment in the short term “notwithstand-
ing the absence or refusal of consent to the treatment”.92 For longer-
term treatment a board makes the decision on a best interests test.93
Similarly, in New Zealand the treating physician authorizes treatment
without consent but in the patient's best interests for less than one
month whereas for longer than one month a psychiatrist, appointed by a
tribunal, authorizes it.94 Even in the U.S., Appelbaum has observed that
some courts limit the right to refuse only to inappropriate medication.95
By not admitting involuntary capable patients some Mental Health
Acts, Scotland for example, overcomes the clinical, ethical and cost
problems of holding people who cannot be treated. The potential
problem with this approach is that a low level of capability might
exclude dangerous people. How would Starson fare under the new
Scottish mental health act, non-criminal provisions? It seems likely
that he could not be admitted or treated because the courts' found that
Starson had the ability to understand and appreciate proposed
treatment. This would appear to exclude him from admission in
Scotland where there is a requirement for admission that the “…
ability to make decisions about the provision of medical treatment is
significantly impaired”.96 In contrast with three Canadian provinces
diminished capability criteria he may well have been admitted and
treated because the level of understanding required is “fully”, a higher
level than Ontario.97
The Supreme Court of Canada's ruling on the correct approach to
determining treatment incapability in Ontario produced a nuanced
change in how physicians and tribunals in Ontario should operate. It
has been suggested that the findings have some relevance in other
provinces but we disagree. However, the effects of the decision on
Scott Starson, Canada's “Beautiful Mind”, who was found to be capable
by courts, were devastating. For seven years he refused medication for
his psychotic symptoms. Not only was his liberty denied, he did no
scientific work and his psychosis worsened to the point that he would
have died were it not for forced anti-psychotic medication. Despite
judicial pronouncements on the horrors of forced injectable medica-
tion, for Starson it had very positive results.
The overriding issue is whether it is constitutionally, ethically and
clinically correct for laws to allow a person with a mental illness, who is
detained by the state because of it, to refuse the treatment that is his or
her only hope for regaining liberty. We argue that treatment refusal for
involuntary patients violates guaranteed rights of liberty, equality and
the prohibition against unusual punishment and treatment. A number
of approaches in Canada to placing reasonable limits on the harms
resulting from treatment refusal for detained patients have been
developed to address the problems illustrated by Starson and others98
under Ontario law. Many democratic countries prohibit treatment
refusal for capable patients, with appropriate safeguards, and this
appears to satisfy European rights codes. This is also the law in Australia
and New Zealand. Methods other than an outright prohibition of
treatment refusal that are in use in some Canadian and foreign
jurisdictions include not admitting patients as involuntary patients who
are fully capable of consenting to admission and treatment and
requiring substitute decision-makers to follow best interests when
the competent wishes of the patient would result in significant harm to
the person or others. Our conclusion is that there are merits in all these
approaches, or a combination of them, in order for detained patients to
regain their health and liberty. A “Beautiful Mind” incarcerated for
seven years and almost dying in a psychiatric hospital due to untreated
delusions is not, surely, a policy respectful of human dignity.
Acknowledgements
The authors acknowledge the assistance of Barbara Walker-
Renshaw and Cara Zwibel, health lawyers with the Toronto office of
Borden Ladner Gervais LLP, who reviewed an earlier draft of this paper.
Ms. Walker-Renshaw was co-counsel for the Schizophrenia Society of
Canada, in its intervention in the Starson v. Swayze appeal before the
Supreme Court of Canada.

85
Lawrence O. Gostin, Human Rights of Persons With Mental Disabilities. The European
Convention on Human Rights, 23 Int. J. Law Psychiat. 125–159 (2000).
86
Laura Davidson, Human Rights vs. Public Protection English Mental Health Law in
Crisis, 25 Int. J. Law Psychiat., 491–515 (2002).
87
Mental Health Act, 1983, am. by Mental Health Act 2007 c. 20, s. 58(3)(b) and 58(4).
88
Mental Health Act s. 63. Northern Ireland.
89
Mental Health Commission website http://www.mhcirl.ie/acthome.htm.
90
Mental Health Act 2001, s. 60.
91
WHO Resource Book on Mental Health, Human Rights and Legislation. World Health
Organization, 2005, at 47, e.g. Portugal.
92
Mental Health Act, 1993, No. 59 of 1993, South Australia, s. 18.
93
Mental Health Act, 1993, No. 59 of 1993, South Australia, s. 20. See also Mental
Health Act 1986 (Vic.) ss. 8, 12(2); Mental Health Act 2007 (N.S.W.) s. 29, s. 84; Mental
Health Act 2000 (Queensland) s. 517; Mental Health Act 1996 (W.A.) s. 109; Mental
Health Act 1996 (Tas.) s. 32.
94
Mental Health (Compulsory Assessment and Treatment) Act 1992 (N.Z.), 1992/46,
(Reprinted 2003) as at 17 November 2003, s. 57, 58, 59.
95
P. S. Appelbaum, Almost a Revolution (Oxford University. Press, New York: 1994), at 129.
96
Mental Health (Care and Treatment) (Scotland) Act 2003 asp 13, s. 36(4)(b).
97
Mental Health Services Act, S.S. 1984–85–86, c. M-13.1, s. 24(2)(a)(ii); Involuntary
Psychiatric Treatment Act S.N.S. 2005, c. 42, s. 18(2); Mental Health Care and
98
Treatment Act, S.N.L. 2006, c. M-9.1, s. 17(1)(b)(ii)(B). Supra, note 57, at 226–235.

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