Starson v. Swayze: the Supreme Court speaks out (not all that clearly) on the question of "capacity".

OBJECTIVES The decision in Starson v. Swayze interpreting the "understanding" requirement for capacity in the Ontario Health Care Consent Act (HCCA) provoked concern and criticism from psychiatric quarters. This article seeks to explain the decision and its implications for Ontario and other provinces. METHOD The majority and minority opinions in the Starson case, and 4 cases decided in Ontario since Starson, were closely analyzed. The literature on capacity was examined. The decision's constitutional implications were considered. RESULTS Patients need not be able to understand that their condition constitutes an illness to be found capable of consenting to or refusing treatment. The focus should be on their ability to understand that they are affected by the condition's manifestations. A patient's "best interests" are not relevant to the capacity determination. The majority opinion departed from the traditional role accorded to a patient's denial of illness in determining capacity. Contrary to the views of some commentators, the Court's discussion of the actual benefits and risks of the treatments prescribed for Starson had no bearing on the capacity issue. Three of the post-Starson cases examined complied with the Court's holding; one did not. The majority's distinction regarding what patients must be able to understand about their condition is likely not a "principle of fundamental justice" under the Canadian Charter of Rights and Freedoms (the Charter). The right of the capable patient to refuse treatment and the irrelevance of the patient's best interests likely do constitute such principles. CONCLUSIONS Patients in Ontario cannot be found incapable because they deny they are ill. Ability to recognize the manifestations of their condition suffices. This distinction is probably only binding in Ontario. The capable patient's right to refuse treatment and the irrelevance of the patient's best interests likely are binding throughout Canada.