The approach taken by Canadian courts in deciding whether to honour the medical treatment decision of a patient who is mentally-ill is in need of reform. In Starson v. Swayze (2003 SCC 32), the Supreme Court of Canada identifies autonomy, effective medical treatment, and societal protection as three conflicting values that are affected by the Health Care Consent Act [HCCA]. Where an individual’s refusal of treatment is overturned on grounds of incapacity, effective medical treatment and societal protection take precedence, and individuals may be denied the exercise of their autonomy. Interference is restricted however, by a test used to determine whether a patient is capable and thus legally autonomous. According to the Court, “the HCCA preserves the value of individual autonomy” as only truly incapacitated individuals will have treatment imposed upon them. Indeed, courts have set a low threshold in upholding patient autonomy: they measure capacity to understand, and not actual understanding of (1) relevant information and (2) the reasonably foreseeable consequences of a decision. I argue that the test adopted by courts is neither theoretically sound nor consistently applied. As a result, it unjustly deprives mentally ill individuals of effective medical treatment. The existing approach should thus be amended to allow for more robust role for the principle of effective medical treatment.
In order to truly protect individual autonomy, the principle must be operationalized in a meaningful way. The distinction between autonomy and self-determination illustrates some of the challenges that courts face toward this end. Namely, where individuals are unable to benefit from highly relevant medical information, their autonomy is not meaningfully protected by the preservation of their right to self-determination. The test for capacity should thus be revised to ascertain actual understanding, as opposed to mere capacity to understand. Presently, sound medical opinion can be ignored on the basis of a mentally ill patient’s expressed wishes, even where that individual manifestly does not in fact understand anything about their circumstances. This is particularly troubling in light of the fact that before proceeding with treatment of fully capable individuals, doctors must typically procure informed consent; capacity to give consent does not suffice.
To deny necessary treatment to patients on the basis of a mere capacity to understand is functionally equivalent to carrying out a medical procedure without informed consent. In both cases, an act or omission with potentially deleterious effects occurs despite uncertainty as to the patient’s actual wishes were they aware of the risks involved. Where (1) a patient does not understand his situation, and (2) the consequences of refusal would not be tolerated by a reasonable person, the right to effective medical treatment should not be cast aside lightly.
Despite the laudatory aim of maximizing autonomy, the present test is both inconsistent in theory and problematic in practice. First, the test is theoretically unsound as it is only applied upon a patient’s refusal of treatment. If, for example, Mr. Starson would have accepted treatment, his decision to do so would have been no more or less autonomous than his refusal. Yet under the current approach his acceptance would have muted all further inquiry into his capacity. It is thus wrong to suggest that the test respects the principle of autonomy, as many patients are likely treated “voluntarily” despite not having had actual knowledge of the content of their decisions. In other words, anytime a de facto incapable patient accepts treatment, his autonomy is violated with his best interests in mind. The proper question is thus when, and not if, autonomy is justifiably set aside in favour of effective medical treatment.
Second, the test posits a principle of autonomy that does not acknowledge that some information is reasonably necessary to make a truly autonomous decision. This creates risk that mentally ill patients will be arbitrarily denied important health care services. To conceive of autonomy in the medical context as the freedom to act without some actual appreciation of consequences obviates the principles of informed consent and effective medical treatment. Moreover, it discards the fiduciary obligations that arise from the doctor-patient relationship that, in other contexts, allow carefully regulated incursions into individual autonomy. While autonomy cannot simply be abandoned, an obligation to maximize patients’ appreciation of the consequences of refusal should be found. If a patient persists in his refusal after being reasonably informed, his will must be respected. In ambiguous situations, however, decision-makers should not escape the responsibility to provide effective treatment by reflexively deferring to vague notions of autonomy.
It will sometimes be impossible to render patients cognizant of their circumstances. In such cases, the right to effective medical treatment should be open to evaluation against the principle of autonomy. Such an approach would be consistent with existing practices in analogous situations. Informed consent, for example, can be imputed where it cannot be given on the basis of an objective test which asks “whether the average prudent person in the plaintiff’s position, informed of all material risks, would have foregone treatment” (Reibl v. Hughes, [1980] 2 S.C.R. 880 at 889). While this clearly violates the principle of autonomy in favour of a reasonably ascertainable best interest standard, it ensures treatment where consent cannot be procured in a meaningful way. A similar test can be devised to ensure that mentally ill patients are not excluded from the benefits of our health care system.
Proceeding with treatment against individuals’ wishes on the basis of their best interest would never be uncontentious. Some authors deny that the principle should be used at all. Eike-Henner W. Kluge, for example, suggests that best interest is a discriminatory principle because it is an abstract notion that is not applied consistently. The same criticism, however, can be made of autonomy: it is almost impossible to satisfactorily define, much less apply, the principle of autonomy. Tellingly, despite insisting that autonomy is a foundational principle that must be respected, Kluge does not grapple with its definition. Moreover, while Kluge alludes to historical examples of atrocities done in the name of someone else’s best interest, autonomy lends itself to similar analysis. The principle is tied to individualism, which is not itself value-neutral. Inaction that perpetuates injustice has often been rationalized on the basis that individuals, uniquely responsible for their own condition, are not deserving of aid. Decisions made on the basis of another’s best interest must certainly be approached with appropriate respect for individual autonomy. In the context of health care, however, it is irresponsible to bind patients to the consequences of their uninformed decisions without minimal consideration of their best interests.
The ethical and legal complexities of substituted decision-making cannot be explored via reference to cognitive ability alone. The law should thus create space to evaluate salient medical factors that ensure effective treatment in ambiguous situations. The present approach to the problem has two major flaws. First, it bogs down the analysis in autonomy. Particularly in the context of borderline incapacity or youth, autonomy is an abstract and contentious concept that does not offer useful guidelines to decision-makers. Instead of providing clarity, it unnecessarily removes questions from their medical context and places them in a highly philosophical realm. Second, it diminishes the legitimate role of best interest in influencing decisions. Best interest directs care where the patient is capable, or factually incapable but acquiescent to treatment. It should likewise play a role in determining treatment of legally capable, but factually incapacitated patients. To treat an individual who is factually incapable as autonomous is to deny basic medical reality in the name of a poorly understood principle of dubious utility. We must not deny treatment to patients on the basis of decisions made with incomplete information. The law should evolve to better reflect the existing commitment to informed consent and the principle of effective medical treatment.
McGill Journal of Law and Health 