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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