Superior Court Reverses Incapacity Finding

TORONTO - February 10, 2004 - In a decision that follows the Supreme Court of Canada's decision in the case of Starson v. Swayze, the Honourable Mr. Justice Gerald Day of the Superior Court of Justice has reversed a finding of the Consent and Capacity Board and has found Maria Neto capable with respect to her own treatment decisions.

The case began with a hearing in January 2003 before the Consent and Capacity Board. Ms. Neto had challenged the finding by her attending physician, Dr. John Klukach, that she was incapable with respect to treatment of a mental illness. Ms. Neto was represented before the Board by Marshall Swadron.

The Board was divided in its decision. The minority member of the three-person panel found Ms. Neto's rejection of anti-psychotic medications to be reasonable. The majority of the Board, however, found that Ms. Neto's refused to recognize that she suffered from a mental illness. It held that this refusal, coupled with her refusal even to consider the benefits of newer versions of the anti-psychotic medications (she had suffered adverse reactions to older versions of the same medications) amounted to incapacity.

The appeal to the Superior Court of Justice was heard in November 2003. Marshall Swadron again appeared for Ms. Neto, assisted by Mercedes Perez. Mr. Justice Day reversed the Board's decision and found Ms. Neto capable. The Court held that the majority's insistence that Ms. Neto consider newer anti-psychotic medications amounted to a "best interests" approach rejected by the Supreme Court in the Starson decision. Mr. Justice Day noted the evidence before the Board that the newer anti-psychotic medications were capable of producing the same adverse reactions as the older versions, albeit with reduced severity and frequency. He further found the majority of the Board's finding that Ms. Neto was in complete denial of her condition to be unreasonable based on the evidence before it.

The decision in Ms. Neto's case was particularly important as it established her capable wish to be free of anti-psychotic medications should their use be proposed in the future. A person's known capable wishes must be followed in the event of future incapacity subject to very limited exceptions. Mr. Justice Day's decision in Neto v. Klukach is reported on Quicklaw at [2004] O.J. No. 394 (S.C.J.).