Appeal Court says St. Michael’s Hospital wrong to administer antipsychotic drugs without consent

A glimmer of hope appeared last week in the battle to restore the fundamental right of Canadian citizens to choose to give or withhold consent to medication.

A panel of judges in Ontario’s highest court has just overturned previous rulings that permitted a doctor to administer antipsychotic drugs to a patient without her knowledge and against her will.

According to an article in the National Post, this ruling “reinforces a patient’s right to refuse medication,” which the Supreme Court of Canada upheld in 2003. Given the flood of similar cases received by Seniors at Risk, this right to withhold consent has been routinely trampled by our publicly funded doctors, hospitals and nursing homes, often with the aggressive support of lawyers and judges, which this case chillingly demonstrates.

When Amy Anten was hospitalized in November 2009 for treatment of lupus, staff at St. Michael’s Hospital in Toronto began secretly “slipping an antipsychotic drug (risperidone) into her orange juice” without her knowledge. Later, after she was injected with risperidone, she noticed side effects, asked questions and strenuously objected that the harmful side effects outweighed any potential benefit.

Consent and Capacity Board criticized by three-judge panel

Ontario has a Consent and Capacity Board (CCB) whose job is to arbitrate disputes about whether a patient’s right to informed consent (or that of the person’s substitute decision maker) are being respected. In January 2010, Amy Anten went to the CCB asking them to stop Dr. Shree Bhalerao, the St. Michael’s Hospital doctor who apparently authorized the secret administration of the drug, from exerting his will against her wishes.

The three Ontario Court of Appeal judges were unanimous in finding that the 2010 Consent and Capacity Board (CCB) Order issued by North York lawyer, Karen Lindsay-Skynner, was “unreasonable”. The CCB’s Lindsay-Skynner had ruled in favour of the doctor, stating that the woman was mentally incapable of consenting to or refusing medication. The CCB Order was appealed to the Ontario Superior Court, but the appeal was dismissed on February 14, 2012 by Ontario Superior Court judge, Carole J. Brown.

The Court of Appeal decision released on Monday (July 29, 2013) noted that the drug (also known by its brand name Risperdal and other generic names) was administered “to improve her compliance” with the treatment regime.

The Court of Appeal justices criticized the Consent and Capacity Board for finding that,”as a result of her illness, Ms. Anten was unable to appreciate that medication would benefit her, and that she was unable to compare her fears of side-effects with, ‘the fact that without treatment the psychosis would continue unabated’ “.

Justice Marc Rosenberg, writing for the Ontario Court of Appeal panel, noted that the Consent and Capacity Board’s findings regarding the benefits of treatment were fundamentally flawed. Justice Rosenberg wrote, “Both of these findings depended on evidence that treatment with the antipsychotic drug would indeed provide a benefit [to Ms. Anten]. There was no evidence to support such a finding. To the contrary, while there was unchallenged evidence from [Ms. Anten] of the side-effects of treatment, [Dr. Bhalerao] offered no evidence of any benefit.”

The Consent and Capacity Board was also criticized by the Appeal Court panel for stating that Ms. Anten had agreed to take the drug. The Appeal Court found, “there was no evidence to support the finding that [Ms. Anten] had ever agreed to take the medication.”

“Collateral” evidence, hearsay in medical records found to be unreliable

In his testimony, Dr. Shree Bhalerao, director of medical psychiatry at St. Michael’s Hospital, stated there was “a fair amount of collateral evidence” of Ms. Anten’s mental illness from the “nursing home, the general internal medicine people, the social workers… as well as material in the [medical] chart from the nursing staff.”

Justice Rosenberg writes, “While hearsay may well be admissable on this type of hearing… there must be some basis for finding that the evidence is sufficiently reliable. This testimony from [Dr. Bhalerao] was so lacking in detail that it provided no basis upon which the Board [CCB] could make a reasonable decision.”

Charter-protected right of the person against forced treatment

Upon learning the Appeal Court’s decision, Anita Szigeti, the lawyer for Ms. Anten, felt that the  ruling would help enforce the Charter-protected right of the person against forced treatment. This Charter right includes the right to refuse treatment, including medication.

In an interview with the National Post, Ms. Szegeti said that, a “pervasive paternalism”  exists in medical institutions, and that it is “absolutely commonplace for a physician to just give his or her opinion” that patients are incapable of making decisions about their medical treatment.

Ms. Szegeti offered this caution regarding the Consent and Capacity Board and other lower courts sanctioning the “pervasive paternalism” in medical institutions.

“You risk rubber-stamping a physician’s findings of incapacity, without ultimately a shred of evidence to support it,” Anita Szegeti, lawyer for Amy Anten, National Post

It is indeed a relief to see that at least four members of the legal profession – Justices Laskin, Rosenberg and Tulloch, the three Ontario Court of Appeal panel judges, and Toronto lawyer Anita Szegeti, understand, respect and defend our Charter right to refuse consent to medication against doctors who can make hasty, unsubstantiated or inappropriate decisions in prescribing. These four individuals are shining examples of the legal profession who are to be commended for their exemplary ethics and considered judgement – and to be congratulated for taking a principled stance in respect of our fundamental Charter rights.

 

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5 Comments »

  1. COURT SAYS HOSPITAL WRONG… The psychiatrist was “making parts of [her symptoms] up.”*

    They can force you to take the drugs by saying your desire not to take them is proof you medically need to take them.

    Compliance is a big word in seniors care and only applied to the poor, all seniors under the poverty level, needing care: almost entirely women for both categories.

    In Alberta, if a senior needs to access government subsidized accommodation, not a nursing home but just independent living subsidized accommodation, she must be examined by a doctor who must respond to the questioon “Is applicant compliant”. This question is on the admission and request for housing forms which must be filled out by a doctor.

    As soon as you exercise your right to choice and adamant desire not to take a drug or course of treatment you are charted as difficult and non-compliant. These are buzz words, code words, for anti-psychotic, mood altering and neuroleptic medication dosing. If a nurse or care aide in a setting charts that you refused X consistently which they have decided you should take, the very refusal to take X is proof you are non-compliant.

    As you can see here. Further, nurses and care aides can say anthing they want to a doctor who does not even need to see the patient to prescribe.

    *The National Post article says “the psychiatrist who diagnosed her with schizophrenia admitted he was “making parts of [her symptoms] up.” The Judge’s Decision also makes note of this.

    Comment by rb — August 9, 2013 @ 2:24 am

  2. COURT SAYS HOSPITAL WRONG… In this CBC interview, Dr. Shree Bhalerao says the term “excited delirium” as applied to adverse reaction from tasering was ***INVENTED BY POLICE***.

    http://www.youtube.com/watch?v=VQYnw1Vn_Fw

    Dr. Shree, who has a proponderance of negative patient reports on the doctor rating site Rate Your MD, admitted to the court for this present case that he was “making parts of [her symptoms] up.”

    Takes one to know one.

    http://www.nationalpost.com/m/wp/news/blog.html?b=news.nationalpost.com/2013/07/31/ruling-says-hospital-cant-force-anti-psychotic-drug-on-patient-after-questionable-schizophrenia-diagnosis&pubdate=2013-07-31

    Comment by rb — August 9, 2013 @ 11:27 am

  3. COURT SAYS HOSPITAL WRONG… The medical establishment is confused. They are confusing the well-being of the patient with the well-being of over-worked, under-staffed hospital workers. In extreme cases (when there is an actual risk of physical harm), the anti-psychotic drug is, indeed, administered in the patient’s best interests. However, nine times out of ten, the drug is being administered with the best interests of the workers in mind, not the patient. It’s all about being compliant and not making any complaints. As soon as the patient starts asking questions or making complaints, he or she is prescribed anti-psychotic meds. Then, when the patient refuses the medication, suddenly the patient is diagnosed as “schizophrenic” and committed under the Mental Health Act. In one case, the elderly client’s adult daughter was threatened by the doctor to be committed under the Mental Health Act because she didn’t want her mom (who was not suffering from dementia) to take olanzapine! This is power-tripping, not health care. Once committed, the doctors can administer harmful anti-psychotic drugs with impunity, no matter what the patient or her family says. Patients are being committed, not because they have a bona fide mental illness, but because they are not “compliant.” The medical establishment knows full well that anti-psychotic drugs are being prescribed “off-label” like never before. Yet, when confronted on an individual case, they claim the patient is mentally ill. We need to get back to putting the medical well-being of the patient first.

    Comment by David Dickinson — August 12, 2013 @ 4:08 pm

  4. COURT SAYS HOSPITAL WRONG… If prison officials tried following the medical establishment’s tactics by drugging non-compliant prisoners, there would be an uproar and class-action lawsuits. There is little question in my mind that the courts would find such behaviour to be unconstitutional. How odd that law abiding seniors are afforded less respect than convicted criminals!

    Comment by David Dickinson — August 12, 2013 @ 4:12 pm

  5. COURT SAYS HOSPITAL WRONG… What is the legal authorization for this Ontario based consent and capacity board? Where are the CCB records kept and how are they authorized for veracity and authenticity? How does the public view these CCB records? When does this CCB meet and how does a member of the public attend these meetings? Is there an agenda posted ahead of the CCB meetings? When are the CCB minutes mandated for filing? What penalties are there for CCB members, say for malfeasance or incompetency?
    How many academic studies are there of the morphology of this Ontario CCB entity? How does it compare to the other provincial CCBs ( if in fact they exist )?
    One hopes that the answers to the above are not like the non-answers heard in the recent Ontario Wasiuk case: Privacy, Privacy, privacy eradicates all culpability!!
    Any responses are appreciated!!

    Comment by Ross Bobak — August 14, 2013 @ 11:07 am

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