Watch where you wave that Wand

March, 12, 2012 | 1 Comment


  1. Dr Healy
    You raise the important issue of informed consent. The Canadian Medical Protective Association (CMPA) basically the malpractice insurer, has issued a handbook devoted completely to this issue and it includes informed refusal. In Canada, every competent adult has the right to refuse treatment even if it means death or disability and must not be coerced into accepting it. All potential risks and outcomes must be explained in full.
    Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 is the definitive case in Canada on informed refusal. An appeal was made to the Supreme Court, in effect to force the respondent to take psychotropic medications. The brief review of the circumstances reads as follows:
    “Since 1985 the respondent has frequently been admitted to mental
    institutions in the United States and Canada and has most often been diagnosed as having
    a bipolar disorder. His recent admission to hospital arose after he was found not
    criminally responsible for making death threats and the Ontario Review Board ordered
    his detention for 12 months. The respondent’s physicians proposed treatment for his
    bipolar disorder that included neuroleptic medication, mood stabilizers, anti-anxiety
    medication and anti-parkinsonian medication. The respondent refused to consent to this
    medication and the attending physician found him not capable of deciding whether to
    reject or accept the proposed medical treatment. The Ontario Health Care Consent Act,
    1996 permits a person to be treated without consent on grounds of lack of capacity,
    defined as a lack of the ability “to understand the information that is relevant to making
    a decision about the treatment . . . and . . . to appreciate the reasonably foreseeable
    consequences of a decision or lack of decision”. The respondent applied to the Ontario
    Consent and Capacity Board for a review of the physician’s decision and the Board’s
    confirmation of incapacity was subsequently overturned on judicial review at the
    Superior Court of Justice. The Court of Appeal upheld the findings of the reviewing
    The Supreme Court, in this case, found for the patient stating that he was capable of making decisions about his own care.
    “Per Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps JJ.: The
    Health Care Consent Act, 1996, presumes a person is capable to decide to accept or
    reject medical treatment; therefore, patients with mental disorders are presumptively
    entitled to make their own treatment decisions. The presumption of capacity can be
    displaced only by evidence that a patient lacks the requisite elements of capacity
    provided by the Act. Capacity involves two criteria: first, a person must be able to
    understand the information that is relevant to making a treatment decision and second,
    a person must be able to appreciate the reasonably foreseeable consequences of the
    decision or lack of one. The legislative mandate of the Consent and Capacity Board is
    to adjudicate solely upon a patient’s capacity and the Board’s conception of the patient’s
    best interests is irrelevant to that determination.”
    On consent, the CMPA states “A physician may be liable in assault and battery when no consent was given at all, when the treatment went beyond or deviated significantly from that for which the consent was given, or if consent to treatment was obtained through serious or fraudulent misrepresentation in what was explained to the patient.” Material risk is defined thus: “A risk is thus material when a reasonable person in what the
    physician knows or should know to be the patient’s position would be likely to attach
    significance to the risk or cluster of risks in determining whether or not to undergo the proposed therapy.”
    Now, if we apply all of the above to psychotropic medications that the physician either does know has material risks (such as suicide) or dismisses them as “rare” or “insignificant”, we would have lawyers salivating.
    “Our courts have repeatedly affirmed that good intentions of the physician cannot be substituted for the will of the patient.”

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