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Feb. 19, 1997
Mother Launches Appeal In Electric-Shock Case
Provisions of the new Health Care Consent Act called unconstitutional
By Rudy Plateil
Toronto - A woman whose refusal of electric-shock treatment for her schizophrenic daughter was overturned by a provincial board has launched a court appeal, contending that provisions of the new Health Care Consent Act are unconstitutional.
The mother has appealed to the Ontario Court of Justice to reverse a ruling by the Consent and Capacity Board that will allow doctors at the Clarke Institute of Psychiatry in Toronto to administer electro-convulsive therapy to her 35-year-old daughter.
The daughter has been in and out of hospital care for more than a decade partly because of her periodic refusals to take medication.
The mother, a former biochemist researcher who under the act was named "substitute decision maker" for her daughter, had consented to ECT in earlier admissions but felt this time that her daughter needed only medication.
However, the doctor went to the board, which reversed the mother's decision on the grounds that she "did not properly consider the principles" in the act.
The mother's appeal, which also seeks to have the daughter identified in court proceedings only by her initials, A.M., contends that provisions of the act that allow the board to overturn the mother's decision infringe on constitutional rights "to life, liberty and security of the person."
Suzan Fraser, the mother's lawyer, said in an interview that there should be a very limited number of circumstances in which authorities can override the decision of a person or a substitute decision maker.
"We suggest that the power given to the board in this legislation is too broad," Ms. Fraser said.
The criteria under the act, passed in March of 1996, go "far beyond what the government said it was doing when it said it was going to put treatment decisions back in the hands of families," Ms. Fraser said.
Michael Bay, chairman of the consent board, said he cannot comment on the case.
The appeal contends that the board member hearing the case was wrong in fact and law in accepting the doctor's testimony that the mother had been influenced by threats from her daughter.
He also accepted the doctor's testimony that the mother felt that if ECT were not used, her daughter would be kept in hospital longer.
In an interview, the mother said it was "utter nonsense" that she feared her daughter. "First, she only threatens to leave home, and second, when she is psychotic, I do not consider seriously what she says," the mother said.
As for the suggestion that she did not want her daughter home, the mother said "that is ridiculous. I love my daughter and I want her home, but I do not want her to have ECT."
The daughter had been receiving injections of Fluanxol, an anti-psychotic drug. But the doctor told the Board that the medication alone would not be enough without ECT.
However, the mother said she believed the medication would be sufficient this time because with each hospital stay her daughter had required fewer shock treatments.
The issue of consent previously came under the Mental Health Act, but in 1992 the New Democratic Party government passed the Consent to Treatment Act. It did not come into force until April of 1995, a few months before the Progressive Conservative government of Mike Harris was elected. The Tories reviewed the new act and brought in changes effective last March as the Health Care Consent Act.
Ms. Fraser said that under the Mental Health Act the decision of a substitute decision maker required a signed statement by an outside psychiatrist, and under the Consent to Treatment Act the mother's decision would have been final.
But Ms. Fraser said that in attempting to restrict state intervention, the new act has gone beyond the old one in giving the board the right to overturn the decisions of the substitute decision maker.