Starson v. Swayze: The Supreme Court Speaks Out (Not all That Clearly) on the Question of "Capacity"

Objectives: The decision in Starson v. Swayze interpreting the "understanding" requirement for capacity in the Ontario Health Care Consent Act (HCCA) provoked concern and criticism from psychiatric quarters. This article seeks to explain the decision and its implications for Ontario and other provinces.

Method: The majority and minority opinions in the Starson case, and 4 cases decided in Ontario since Starson, were closely analyzed. The literature on capacity was examined. The decision's constitutional implications were considered.

Results: Patients need not be able to understand that their condition constitutes an illness to be found capable of consenting to or refusing …