“King of Canada” Challenges the Constitutionality of the Health Care Consent Act in D’Almeida v. Barron

A few weeks ago the Ontario Court of Appeal (“OCA”) released its decision in D’Almeida v. Barron, 2010 ONCA 564, regarding a patient’s capacity to make treatment decisions. The OCA dismissed the appeal of Mesbur J.’s decision to uphold the Consent and Capacity Board’s (“the Board”) determination that the appellant, Stanley D’Almeida, is incapable of making treatment decisions regarding anti-psychotic and side effect medication. The decision consists of a review of the Board’s decision regarding Mr. D’Almeida’s capacity, as well as an analysis of the constitutionality of the Health Consent Act, 1998, S.O. 1996, (“the Act”). This post will concentrate on the latter issue.

For the purposes of analysing the Board’s decision, a few points regarding Mr. D’Almeida’s condition need to be disclosed. At one point in time Mr. D’Almeida was diagnosed with schizophrenia, though his current diagnosis is delusional disorder and narcissistic personality disorder. Mr. D’Almeida believes that there is a plot to kill him because he is the King of Canada. According to his current physician, Dr. Stanley Barron, Mr. D’Almeida believes that he is not mentally ill, and thus does not require medication. His parents ultimately consented to treatment on Mr. D’Almeida’s behalf. Once he was started on anti-psychotic medicine, Mr. D’Almeida’s behaviour improved and he was able to move through the privilege levels of the where centre he was staying. Despite his progress, Mr. D’Almeida continued to believe that he is the King of Canada. Of particular significance to the OCA was Dr. Barron’s opinion that Mr. D’Almeida did not believe his improvement to be connected to the medication, but was the result of his own doing.

The consent and capacity issue arose in April 1998 when Mr. D’Almeida was remanded to a mental health centre for assessment after he threatened a judge. His psychiatrist at the time, Dr. Julian Gojer, found that he was incapable of consenting to treatment. That decision was confirmed by the Board in May 1998. That same month, Mr. D’Almeida was discharged from the centre since the assessment was complete. In July 1998, Dr. Gojer reaffirmed his finding of incapacity. Until he had exhausted all appeals of the incapacity decision in 2005, Mr. D’Almeida was not being treated with any medication for his condition. In 2005, Dr. Barron, began treatment with the consent of Mr. D’Almeida s parents. Mr. D’Almeida applied twice to the Board to have the incapacity decision reviewed, and both times he was once again found to be incapable of making treatment decisions. Mesbur J.’s dismissal of Mr. D’Almeida’s appeal of the second decision was before the OCA in this case.

Even Kings have Limits: The OCA Rejects the Challenge to the Test for Capacity

One of the arguments raised by Mr. D’Almeida was that the test for capacity in s. 4(1) of the Act is unconstitutional because “it is so vague that its application results in a deprivation of liberty that does not accord with the principles of fundamental justice.” Whenever the argument of “void for vagueness” is made, the claimant is in essence arguing that the law does not clearly circumscribe the line between acceptable and unacceptable behaviour. In this case, Mr. D’Almeida was arguing that the line circumscribing his autonomy in s. 4(1) was not clearly drawn. His argument is difficult to swallow based on the absence of any precedent and substantive arguments to support his position. Section 4(1) of the Act states:

A person is capable with respect to a treatment…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.

Mr. D’Almeida’s argument flies in the face of precedent  since s. 4(1)  essentially replicates the test for capacity that was established with “reasonable precision”  by the SCC in Starson v. Swayze, 2003 SCC 32 (“Starson”). In Starson, Major J., writing for the majority, held that

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information…Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

This test does not require the person to surrender to doctors and agree with medical opinion or diagnosis.

According to Major J. in Starson, all that is required is the person in question recognizes that he or she may be affected by a particular condition. Unless the key threshold of recognition is met, the person cannot apply the relevant information and make informed decisions. The Starson test seems to address the catch 22 that Jocelyn Downie and Elaine Gibson in Health Law at the Supreme Court of Canada identified. According to Downie and Gibson’s analysis of the case, the patient in Starson was in a catch 22 situation because if he acknowledged his condition, then treatment would be the only logical conclusion. However, if he denied the illness, then he would be seen as incapable of making treatment decisions.

Ultimately, the OCA held that s. 4(1) meets the test for vagueness established in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4.  In that case, the SCC held that

A law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and “analysis”; “does not sufficiently delineate any area of risk”; or “is not intelligible”. The law must offer a “grasp to the judiciary”…Certainty is not required.

The Starson test clearly draws the line between capacity and capacity. In the absence of abilities to understand the relevant information and appreciate the consequences of treatment choices, a person’s personal autonomy cannot be wholly respected.

The OCA’s decision in this case is uncontroversial and is basically a restatement of the law on capacity. Nonetheless, it cannot be denied that Mr. D’Almeida’s challenge of s. 4(1) does appeal to one’s sense of personal autonomy. According to Mr. D’Almeida, “It’s not really freedom to be out there all zombied up with medication. I’m a free man. I was born free and I want to be free. It’s not acceptable to me.” While one can certainly emphasize with his desire for total personal autonomy, the need to protect vulnerable members  of society justifies the state of the law.