Ruling says hospital can’t force anti-psychotic drug on patient after questionable schizophrenia diagnosis
By Joseph Brean
July 31, 2013
In a sharply worded ruling, the Court of Appeal said there was “no evidence” the woman ever agreed to medication, and overturned the Consent and Capacity Board’s “unreasonable” finding that the woman was mentally incapable of doing so.
“It certainly is a forceful ruling,” said Anita Szigeti, lawyer for the woman, Amy Anten. “It’s important for her personally. In my respectful submission, it’s also very important — and the court appears to have agreed by considering the matter on its merits — to give the Consent and Capacity Board, and also the first appellate level of reviewing court, some guidance on how to really weigh the evidence that goes to the heart of the Charter-protected right of the person against forced treatment.”
The judgment clarifies what kind of evidence to prove a person’s incapacity will withstand legal scrutiny, and it reinforces a patient’s right to refuse medication, which the Supreme Court of Canada upheld in 2003.
Ms. Szigeti also said despite that top-level legal guidance, a “pervasive paternalism” has revealed itself in medical institutions, such that now it is “absolutely commonplace for a physician to just give his or her opinion” that patients cannot make choices about their own treatment.
“You risk rubber-stamping a physician’s finding of incapacity, without ultimately a shred of evidence to support it,” she said.
The new ruling, released on Monday, found the anti-psychotic schizophrenia drug Risperidone appears to have been administered without Ms. Anten’s knowledge in orange juice “to improve her compliance” with the treatment regime. It was later injected with her knowledge.
It finds that Dr. Shree Bhalerao, a psychiatrist at Saint Michael’s Hospital, gave “confusing” testimony about his initial exam of her, and could not justify his decision to re-categorize her psychosis as schizophrenia, based on a sketchy history. The court was particularly critical of his explanation that the medical team “tried our best to assure her that [her delusions about people attacking her] weren’t happening, but again, I mean it’s her word against ours and we tried our best to alleviate that by using that kind of floor [sic] of medications.”
Ms. Anten, whose age is not specified but is older than 40, testified she did not believe she was ill when she was hospitalized in November 2009.
“I feel numb mentally and physically,” she testified. “I feel more angry and more depressed and I do start feeling as if people are harming me. Although I did before, but it appears from what [Dr. Bhalerao] said that I was being given medicine before I even realized it. So it could be as a result of this medicine entirely that I have made such, um, made such admissions that people were harming me but there was a particular patient who was here and she left recently about a half a week ago, and I believe she was harming me while I was sleeping.”
The ruling 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,” as the board put it.
“There was no evidence to support such a finding,” the court concluded. “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 court declined to order a new hearing, because Ms. Anten has been the subject of subsequent capacity hearings, with various outcomes. “In these circumstances, nothing would be gained by ordering a new hearing,” wrote Justice Marc Rosenberg for a three-judge panel.
Dr. Bhalerao’s counsel declined to comment.