Starson V. Swayze, 2003-2008: Appreciating the Judicial Consequences (Canada) - Health Law Journal

Starson V. Swayze, 2003-2008: Appreciating the Judicial Consequences (Canada)

By Health Law Journal

  • Release Date: 2009-01-01
  • Genre: Health & Fitness
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Starson V. Swayze, 2003-2008: Appreciating the Judicial Consequences (Canada) Health Law Journal Book Review Score: ★★★★★ 5/5 stars

1. Introduction When the Supreme Court of Canada decided Starson v. Swayze (1) in 2003, the clinicians, advocacy groups, and scholars clustered around the topic of mental illness in Canada predicted substantial changes. The SCC 6:3 majority took Scott Starson's statement that he had "manageable" "mental problems" (2) as sufficient sign of an ability to understand and appreciate his condition. The dissent found Starson's statements on the phenomena as showing a lack of understanding and appreciation of the severity and quality of his condition. Two divergent visions clashed over the mental capacity test found in Ontario's Health Care Consent Act (3) at the centre of the case's most contentious issue. The majority's interpretation lowered the statutory test significantly. To many civil libertarians and to psychiatric survivors, the majority opinion represented a victory. (4) This would allow more capacity findings in future, and less involuntary treatment. To many psychiatric workers, to people recovering from mental illness, and to family caregivers, the same lowering of the threshold for capacity would manifest itself socially in more people with untreated mental disorders detained, ironically, in hospital, (5) and a greater burden on the care giving family.

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