19811
COMMENTS – COMMENTAIRES
Sterilization of the Mentally Retarded Adult:
the Eve Case
A recent appellate decision from Prince Edward Island is an
excellent example of the confusion that can result when a court is
asked to consider novel issues in the protection of life area with-
out adequate analysis of the legal context in which these issues
arise. In Re Eve’ Mrs. E. applied for an order that her mentally
retarded, twenty-four-year-old daughter, Eve, be declared mentally
incompetent pursuant to the provincial Mental Health Act,2 that
Mrs. E. be appointed the committee or guardian of Eve’s person,
and that Mrs. E. be authorized to consent to sterilization of Eve
by means of a tubal ligation. The application was denied at first
instance, and the result of the appeal from this decision is not clear.
Eve had not been represented by counsel at the application
before the trial judge. She was represented at the appeal,2 a but her
counsel must have been puzzled as to the effect of the three rather
different judgments that resulted. The conflict in the judgments and
the confusion in the classification of the legal issues involved
derive from a failure to distinguish the issues clearly and to appre-
ciate their significance in relation to the order sought. These
issues are:
1) Is purely contraceptive sterilization lawful?
2)
If it is, is there any authority in statute or the common law which
would allow substituted consent from a third party to such an
operation on a retarded adult?
‘After delivering its judgment on 31 July 1980, the Court issued supple-
mentary reasons on 9 January 1981: (1980, 1981) 115 D.L.R. (3d) 283 (P.E.I.S.C.,
in banco), rev’g (1979) 10 R.F.L. (2d) 317 (P.E.I.S.C.) per C.R. McQuaid J.
[See “Afterword”, infra.] The case is now on appeal to the Supreme Court
of Canada.
On 11 August 1981 leave was given, pursuant to Rule 60 of the Rules of
the Supreme Court of Canada, for the Consumer Advisory Committee of the
Canadian Association for the Mentally Retarded to intervene as persons
interested in the appeal. On 4 September 1981 leave was also given, pursuant
to the same Rule, for The Public Trustee for the Province of Manitoba to
intervene.
2R.S.P.E.I. 1974, c. M-9 (as am.).
2a On 10 January 1980 Chief Justice Nicholson appointed the Official Trustee
to be guardian ad litem of the person of Eve and third party to the proceed-
ings. Counsel for the Provincial Minister of Justice appeared at trial and on
the appeal to assist the Court, but took no position on the ultimate disposition
of the case.
McGILL LAW JOURNAL
[Vol. 26
3) Do the courts have jurisdiction to authorize such an operation on
such a person?
Since most of the authorities cited in the trial court and in the
appellate court refer to the situation of retarded minors, the follow-
ing examination of these three questions will also consider the use-
fulness of this analogy.
I. The legality of the operation: the question of benefit and the
standard of general medical approval
The legality of contraceptive sterilization should no longer be
in doubt. Earlier concerns regarding the legality of the procedure
have long since been shown to be without foundation. Ten years
ago the Canadian Medical Protective Association felt it “should
be left for decision by the individual doctor faced with the patient
requesting the operation, to be decided just as he would decide
about any other request for non-essential treatment.”3 Unfortunate-
ly, the earlier confusion has been inadvertently resurrected in the
judgments of three Canadian courts which refer to section 45 of the
Criminal Code,4 a section which provides a defence to criminal
responsibility for performing surgical operations. That section re-
quires that there be a benefit, but, as a full analysis makes clear,5
it deals only with the situation where the patient is not capable of
consenting. It was intended to apply where there was a danger
to life or limb and the physician or other person performing the
operation has to act quickly. The requirement of a benefit is a safe-
guard which ensures that the physician will only perform an opera-
tion on a person incapable of giving consent in order to preserve
life or limb. It is the seriousness of the threat which constitutes
the operation a benefit.
3 Sexual Sterilization for Non-Medical Reasons (1970) 102 Can. Med. Assn
J. 211: see also Starkman, The Control of Life: Unexamined Law and the
Life Worth Living (1973)
11 Osgoode Hall L.J. 175, 177. With respect to a
recommendation in the Report of the Royal Commission on the Status
of Women (1970), the Hon. John Munro, then Minister of Labour, speaking
for the Government of Canada, stated that “[,tihe Minister of Justice would
take
is a matter for medical discretion
and that sterilization performed by a qualified medical practitioner at the
request of his patient does not engage the criminal responsibility of the
practitioner. Therefore, it is considered that no action is required to clarify
the criminal law in respect of sterilization.” See Debates of the House of
Commons, First Session, Twenty-ninth Parliament (2 April 1973), 2817. See
also Devlin, Samples of Lawmaking (1962), 94.
that sterilization
the position
4 R.S.C. 1970, c. C-34.
5 See Starkman, A Defence to Criminal Responsibility for Performing
Surgical Operations: Section 45 of the Criminal Code (1981) 26 McGill L.J. 1048.
1981]
COMMENTS – COMMENTAIRES
The confusion which has been introduced by the courts on this
question stems from two mistaken beliefs. One is that section 45
of the Criminal Code is not limited to situations where the patient
is incapable of giving consent to an operation. The other, related
one is that there must be some sort of benefit where consent is
given. A third could be suggested, that is the assumption that the
structure of the Code provides no general guidance on the question
of sterilization of mentally retarded persons. In his judgment in
Morgentaler v. The Queen, Laskin C.J.C., writing for the minority,
was of the view that the application of section 45 also extends to
situations where the patient is capable of giving consent.6 This
view was necessary for the minority opinion in Morgentaler, that
section 45 afforded a defence to a charge of procuring an illegal
abortion, a view rejected by Dickson J., writing for a majority
of the Court. On the question of the application of the section,
Dickson J. was only prepared to acknowledge that “[s]ection 45
may be available as an answer to a charge arising out of a surgical
operation performed on an unconscious patient …
.”7 The minority
view implies that operations done with consent are illegal unless
the conditions (including a benefit) in section 45 are met, whereas
the comment in this issue which explains section 45 demonstrates
that as a general rule the Criminal Code assumes the legality of
operations agreed to by patients which meet with the general
approval of physicians.8 The minority view in Morgentaler resur-
rects the old concern that purely contraceptive sterilization may
not satisfy the requirement of a benefit.
The case of Cataford v. Moreau9 in the Quebec Superior Court
involved a claim for damages. Mrs. Cataford became pregnant and
gave birth to an eleventh child after a tubal ligation by Dr Moreau,
who gave assurances that she would have no more children. The
judgment of Desch~nes CI. did not examine directly the judgment
of the minority in Morgentaler because in the latter case the defence
of section 45 had been declared by the majority to be unavailable
in the circumstances. However, Desch~nes C.J. in effect brought in
the minority view by quoting the instructions of Hugessen A.C.J.
to the jury in what is known as the first Morgentaler case.10 In
6 [1976] 1 S.C.R. 616, 642 et seq.
7Ibid., 676 (emphasis added).
8 Supra, note 5.
9 [1978] C.S. 933, 7 C.C.L.T. 250 (hereinafter cited to C.S.).
10 Ibid., 936. The charge to the jury by Mr Justice Hugessen was delivered
in French and was only reported in translation: R. v. Morgentaler (No. 5)
(1973) 14 C.C.C. (2d) 459, 461 (Que. Q.B., Crown Side) (cited hereinafter to
this translation).
McGILL LAW JOURNAL
[Vol. 26
that case Hugessen A.C.J. wrongly assumed that section 45 was
applicable to the situation where the patient was capable of con-
senting, and that a benefit was therefore required. His contribution
was to add that the word benefit required “that the physician him-
self make a judgment independent of that of the patient, and decide
that the-operation which the latter is asking for is really for her
good.”” In Cataford, Desch~nes C.J. approved this interpretation
and went on to make an independent judgment as to whether there
was a benefit:
Dans le present cas, compte tenu de l’ge des parties, du nombre de
leurs enfants, de leur situation 6conomique et sociale, il fait peu de
doute que toutes les autres circonstances de l’esp~ce, pour citer le langage
de l’article 45 C.Cr., conduiraient h la conclusion que l’intervention a d6
pratiqude pour le bien de la demanderesse. 12
It would seem to follow from this approach that, if the physi-
cian is not to risk criminal liability, operations must be shown to be
beneficial before they are performed. This view is not accepted,
either by the medical profession or the law. Age-parity formulae,
in conjunction with socio-economic criteria, have traditionally been
used by hospitals in considering applications for sterilizations, but
they need not be. They have no foundation in law, and the attempt
to import them into the law serves only to confuse the issue.
In Re Eve, C.R. McQuaid J., the judge at first instance, concluded
that the legality of the operation in Cataford depended on it being
voluntarily submitted to by the patient, with informed consent,
and on it being found to be for the benefit of the patient having
regard to his or her health, or otherwise justifiable within the socio-
economic context. 3 Even so McQuaid J. said that he “would not
interpret this decision [Cataford] as going so far as to say that
purely contraceptive sterilization is necessarily legal, even with con-
sent, in all circumstances.”‘ 4 Presumably this is because it might
not be beneficial in all circumstances. Both McQuaid J. at trial and
MacDonald J. in the appellate court were of the opinion that section
45 did not apply to the sterilization of retarded persons. This con-
clusion was correct, but not for the reason given by MacDonald J.,
that “this section is only intended to apply to cases where consent
can be given by the person involved or in cases of emergency or
necessity”. 15 This conclusion enabled the judges to consider the
“Supra, note 10, 461.
12Supra, note 9, 936.
13 Supra, note 1, 324.
14 Ibid.
15 Supra, note 1, 305.
19811
COMMENTS – COMMENTAIRES
question of sterilization of retarded adults without the encumbrance
of what must have appeared to them to be the rather nebulous
guidance offered by section 45. However, the incorrect reasoning
by which they reached this result left them without an authoritative
and useful framework within which to consider the question at
hand. That framework is implied by the presence of section 45 in
the Code, and becomes clear once the structure and evolution of
the Code are understood.
II. The assumptions in the Criminal Code
Although it is so obvious that it is generally overlooked, the
common law defence in what is now section 45 was made explicit
in the extremely concise English Draft Code of 1879, and subse-
quently in The Criminal Code, 1892,1” only because it was thought to
represent a very serious departure from the general common law
right to self-determination, a right so fundamental that it was
thought unnecessary to make it explicit in the Draft Code. This
right is assumed in the Draft Code and in our Criminal Code. It was
made explicit in article 204 of Stephen’s Digest,17 a work by the
principal draftsman of the English Draft Code which preceded the
Draft Code and which is, in the 1887 edition, along with the Draft
Code and Burbidge’s A Digest of the Criminal Law of Canada,8 a
source of our Criminal Code.’9 Articles 204 and 205 (the latter of
which is the precursor of our section 45), together with their illus-
trations and Stephen’s comments, are statements of the common
law on these questions by a great authority. They make a number
of matters clear and leave others unresolved. What is clear is that:
– There is a fundamental right to self-determination;
– A patient may consent to a surgical operation;
– Substituted consent may be given to a surgical operation upon a
child in one’s care who is too young to give consent;
– Where as a result of an accident or other occurrence a person is
either unconscious or crazed and therefore incapable of giving con-
sent to a surgical operation, it is not a crime to perform an operation
on him to save life or limb, without his consent and in spite of his
resistance.
What is not dealt with is whether:
16 S.C. 1892, c. 29.
17A Digest of the Criminal Law (1877).
18 (1890).
19 See the speech by Sir John Thompson, Minister of Justice, Debates of
the House of Commons [,j Dominion of Canada, Second Session, Seventh
Parliament (12 April 1892), 1311 et seq.
McGILL LAW JOURNAL
[Vol. 26
– Substituted consent may be given to a surgical operation upon a
is not capable of
retarded adult in one’s care where that adult
giving consent.
At this point, it is only fair to state that there is no evidence that
in the evolution of the Code any consideration was given to the
possibility of drawing a distinction between operations with thera-
peutic and with non-therapeutic aims. The reason for this omission
is simple: the operations which we now identify as clearly or
arguably non-therapeutic
(e.g., purely contraceptive sterilization,
removal of organs for transplant, cosmetic surgery where there is
no disfigurement) are comparatively recent developments. For
example, male sterilization by vasectomy was not done until nearly
the end of the nineteenth century. While no doubt operations were
generally assumed to have a therapeutic aim, this was not a con-
dition of their legality. The only concern expressed was that they
should not be performed without consent or, where the patient
was unconscious or raving, unless there was a threat to life or
limb. As the above distinction was not made, it is not a criterion
used by our criminal law, and it is therefore not correct to suggest
that the aim of an operation (therapeutic or non-therapeutic)
is
relevant to identifying the persons who may validly consent to it.20
Of course, provinces can by statute prevent classes of persons from
giving effective consent to particular operations, such as minors
who wish to donate organs for transplant; but this would not pre-
clude a successful defence of valid consent by, for example, a capable
minor where a person is charged with an offence under the Criminal
Code requiring the absence of consent.21 It is the Code’s assumption
of the legality of operations agreed to by patients which meet with
the general approval of physicians and which are not expressly pro-
hibited by law, that has permitted our criminal law to keep pace
with new medical developments. By this standard the operations
referred to above are lawful; what is in question is whether they
can be performed on persons who lack capacity to consent.
20 This suggestion is made in Somerville, Medical Interventions and the
Criminal Law: Lawful or Excusable Wounding (1980) 26 McGill L.J. 82, 92.
The point of this article is not clear: it appears to be largely speculation on
different interpretations of s. 45 of the Criminal Code. A systematic exposi-
tion of s. 45 based on authority is to be found in Starkman, Preliminary
Study on Law and the Control of Life (an unpublished manuscript, prepared
for the Law Reform Commission of Canada in 1974): see also Starkman,
supra, note 5.
21 See Starkman, supra, note 3, 179.
1981l
COMMENTS – COMMENTAIRES
III. Substituted consenti the background and the standard of
general medical approval again
Stephen’s statement in his Digest that consent may be given to
a surgical operation upon a child in one’s care who is too young
to give a consent is one of the few references to the operation of
substituted consent in the criminal law2 2 This principle is part of
our criminal law because the Code expressly preserves common law
defences. However, it was not mentioned in the Draft Code and is
omitted from the Criminal Code. Possibly, like the principle of self-
determination, it was thought too self-evident to need expressing.
There is no reason to believe that article 205 of the Digest and, sub-
sequently, section 45 of the Criminal Code were intended to apply
to retarded persons except under circumstances applicable to per-
sons generally, that is, where an accident or some other occurrence
renders the patient either unconscious or crazed. This seems clear
from the illustrations to article 205 and from the fact that no
reference is made in the article to substituted consent. Nor is
there any reason to believe that the statenent regarding substituted
consent where a child is too young to give consent was intended
to apply to retarded adults whose mental age is the equivalent of
a child’s.
If the background to our criminal law provides no express
guidance on the question of substituted consent to operations on
retarded persons, can it help us at all with the problem? That our
Code assumes a physician-approval standard rather than a benefit
standard as a condition of the legality of operations should alert
us to further implications for the question with which we are con-
cerned. In 1970 the Canadian Medical Protective Association ack-
for purely
nowledged
contraceptive sterilization, “so that doctors should not use those
words to themselves: they should think in terms of ‘reasons’ and
then they should weigh their patient’s reasons for wishing the
operation to decide if they, the doctors, feel those reasons are
valid. 23 This advice is implicit recognition that traditional notions
of appropriate circumstances for surgical intervention are not
conditions precedent to the legality of the operation.
there was no medical
that
indication
The Canadian Medical Protective Association was aware that the
operation had already gained the general approval of physicians,
and was concerned to see that it was not being performed on
demand, without physicians weighing the patients’ reasons for their
22 Supra, note 17, art. 204.
2 Supra, note 3, 211.
McGILL LAW JOURNAL
[Vol. 26
request and deciding whether they are valid. No criteria for validity
are provided, but some physicians and hospitals have used age-
parity formulae, in conjunction with psychological and socio-eco-
nomic criteria. However, despite approval of contraceptive steriliz-
ation, there would appear to be no general approval by physicians
for the performance of this operation on retarded persons. The
status of the subject of the operation as a retarded person raises
additional questions to be considered by physicians in the process
of gaining general approval. It seems clear that such approval
would be an important factor in the process of making a legal
determination as to whether substituted consent could be valid
in these cases. As we shall see, on the basis of this lack of approval,
legislation may be needed to clarify the status of this and some
other modern operations on persons incapable of giving consent 3
a
There are a number of operations currently being performed
that are of doubtful legality from the point of view of the criminal
law. Examples are purely contraceptive sterilization of mentally
retarded persons who are not capable of giving consent, and ex-
perimentation on, as well as the taking of skin and bone marrow
for transplant from, very young children. Some physicians approve
of these procedures being done. Of these operations, only con-
traceptive sterilization on those under sixteen has been expressly
prohibited by the civil law. This was done by a regulation under
The Public Hospitals Act of Ontario 4 after it was revealed that
an unusually large number of sterilizations had been performed
in Ontario on persons under sixteen years of age (sixteen is the
age of consent to medical care). At the same time Ontario appointed
an Interministerial Committee on Medical Consent to consider
this and other related questions, and the Committee prepared a
“Draft Act ‘ 25 which contained safeguards for minors and mentally
incompetent adults from whom replaceable tissue such as skin and
bone marrow may currently be taken without any protection from
23a Even if there were general approval by physicians, whether substituted
consent could be valid in these cases remains a question of law, which might
be answered in the negative for reasons of public policy. This should be
compared with situations not involving substituted consent, where general
physician approval has been the standard of legality for operations, in the
absence of express legislative prohibitions. In practice, physicians have not
been prosecuted for performing operations that have not yet gained general
medical approval, and this is consistent with Stephen’s comment on articles
204 and 205 in his Digest.
24R.S.O. 1970, c. 378, 0. Reg. 986/78, cont’d indefinitely by 0. Reg. 241/80.
25 See Options on Medical Consent – Part 2 (December, 1979), 1-18.
19811
COMMENTS – COMMENTAIRES
The Human Tissue Gift Act, 1971.26 The “Draft Act” would also
have brought all cases of substituted consent to medical experimen-
tation that carries either a risk of serious harm or a significant risk
of harm to the subject under formal provincial committee review. In
other words, the Interministerial Committee urged the provincial
government to act in these areas of doubtful legality where, in the
absence of either general medical approval or public scrutiny, in-
dividual physicians continue to act. Not all these practices would
have been covered by the “Draft Act”. Most experimentation would
not have been reviewed by the provincial committee. The “Draft Act”
did not become a government bill, and it is understood that there
was criticism of the “Draft Act” ‘s criteria for sterilization of the
mentally incompetent. This criticism may have reflected the feeling
that in fact there may be no appropriate criteria. This certainly
seems true in connection with minors. With adults it would seem
to depend on whether the analogy with the reasons advanced by a
capable adult requesting that the operation be performed on him
or herself is a reasonable one. Of course, the analogy may only be
valid where the reasons resemble those that might be given by a
capable adult, and in that event it may be that the retarded person
has sufficient understanding to give his own valid consent.
Occasionally the medical profession itself takes the initiative
to clarify the legal status of an operation. An example is the Human
Tissue Gift Acts in the common law provinces,F where recognition
was sought through the enactment of provincial legislation for the
medically-approved practice of taking organs from living donors
for transplant. At the same time, there was agreement on a prohibi-
tion against all minors’ donations of non-regenerative tissue, regard-
less of the competence of the would-be donors. There is good reason
to believe that even before the enactment of this legislation these
operations, like contraceptive sterilization, were not illegal, and
that if an adult makes such a gift outside the Acts, the taking of
the organ does not automatically
invite criminal liability for
assault?8 Unlike the uncertain case of contraceptive sterilization,
26S.O. 1971, c. 83: see also Starkman, Consent and the Human Tissue Gift
Acts: a Rationale for Change (1980) 1 Health Law in Canada 5.
27See Human Tissue Gift Act, R.S.B.C. 1979, c. 187; The Human Tissue
Act, 1971, S.N. 1971, No. 66 (as am.); Human Tissue Gift Act, R.S.N.S. 1979,
c. H-25; The Human Tissue Gift Act, 1971, S.O. 1971, c. 83; Human Tissue
Gift Act, R.S.P.E.I. 1974, c. H-14; The Human Tissue Gift Act, R.S.S. 1978, c.
H-15. See also Human Tissue Gift Ordinance, O.Y.T. 1980, c. 14.
28 See Starkman, “Human Organ and Blood Donations: Criminal Law
Structure re the Decision-Making Process” in Canadian Hospital Association,
Papers from the 1979 Second National Conference on Health and the Law
(1980), 99, 101.
McGILL LAW JOURNAL
[Vol. 26
the Acts’ restriction of the ability to give valid consents to adults
who are mentally competent to consent probably precludes the
possibility of substituted consent to organ donations from living
mentally incompetent persons as well as from living minors, though
under certain circumstances those acting on these invalid consents
are protected. The Acts in effect permit physicians to weigh their
adult patient’s reasons for wishing to donate an organ, since there
are no medical indications for the removal of an organ for trans-
plant. The other surgical operations described above, when perform-
ed on retarded persons who are not capable of giving consent, re-
main of doubtful legality and are open to challenge in the courts,
a process which has already begun with the results we are seeing.
This analysis stresses the great weight traditionally given by the
law to general medical approval. What must be equally evident by
this point is the onus on the medical profession to articulate with
some precision what it approves and the criteria of that approval,
in order that the law may develop with medical science and tech-
nology. This is not an easy task; but it is an indispensable one, just
as this apparently interminable explanation is indispensable to an
understanding and appreciation of the issues in the Eve case.
IV. The decisions in the Eve case
Examination of the third issue raised at the beginning of this
comment, whether the courts have jurisdiction to authorize a purely
contraceptive sterilization operation on a retarded adult, also pro-
vides a reprise of the confusion surrounding the Court’s considera-
tion of the other issues. MacDonald J. was of the opinion that the
appeal before him was on this issue alone.29 He pointed out that the
trial judge did not in his order declare Eve mentally incompetent
pursuant to the Mental Health Act of the province, and did not
appoint a committee for her.30 MacDonald 1. found that there had
been no appeal on the failure to include these declarations in the
order, and since the only matter addressed by counsel on the appeal
was the jurisdiction issue, he was of the opinion that the specific
question of whether Mrs. E. should be authorized to consent to
sterilization on Eve should not be dealt with by the Court. He
considered that the novelty of the application, the issue of inter-
ference with rights over one’s body, and the fact that Eve was not
represented on the original application in the trial court were
additional reasons why the specific question of sterilization should
29 Supra, note 1, 297.
30 Ibid.
19811
COMMENTS – COMMENTAIRES
not be dealt with before Eve’s counsel had “every opportunity to
make whatever representation he wishes to make on her behalf,
including the calling of further evidence if desired.”3′ 1 The other
two judges did not agree. They considered that the substance of
Mrs. E.’s application was a request for clarification from the Court
on whether she could give a valid consent to sterilization under the
circumstances, and they authorized sterilization or hysterectomy
despite the omissions in the order of the trial judge. Campbell J.
thought that these omissions could easily be rectified, provided Mrs.
E. took the necessary steps to have herself appointed as committee
for Eve.32 Large 3. granted an order declaring Eve a mental incompe-
tent and appointed Mrs. E. committee of the person and estate of
Eve 3 Counsel in this case might well be excused for any uncertainty
he might have entertained as to the actual order of the appellate
Court, in view of the differing judgments. What is perhaps more
important at this point is that the reasons given for the orders
authorizing sterilization or hysterectomy be examined in order to
eliminate, as far as possible, confusion in future cases of this kind.
V. The Chancery jurisdiction and the wardship analogy
The most useful approach is to examine the assertions made to
justify these orders. Principal among these is that the Court has
authority to sanction sterilization of a retarded adult by virtue
of its Chancery jurisdiction and by analogy to wardship jurisdiction
over minors. As Holdsworth points out, the Crown had the preroga-
tive of wardship of the lands and person of those of unsound
mind: later there was an express delegation of the Crown’s powers
and duties over those of unsound mind to the Chancellor himself:
By virtue of this express delegation the Chancellor appoints the com-
mittee for the lunatic, and is under the duty of seeing that the committee
duly administers the lunatic’s property. This jurisdiction had nothing
whatever to do with the jurisdiction exercised by him as the judge of the
court of Chancery.
“Unsoundness of mind gives the court of Chancery no jurisdiction
whatever. It is not like infancy in that respect. The court of
Chancery is by law the guardian of infants whom it makes its wards.
The court of Chancery is not the curator either of the person or the
estate of a person non cornpos mentis, whom it does not, and
cannot make its ward … . It can no more take upon itself the
management or disposition of a lunatic’s property, than it can the
management or disposition of the property of a person abroad, or
3′ Ibid.: see pp. 296-300 generally.
32 Ibid., 320.
33 Ibid., 294.
McGILL LAW JOURNAL
[Vol. 26
confined to his bed by illness. The court can only exercise such
equitable jurisdiction as it could under the same circumstances have
exercised at the suit of the person himself, if of sound mind.”
It was through the control exercised by the Chancellor, as the delegate
of the crown, over the lunatic’s committee, that the rules as to the
management of the property of lunatics have grown up. The underlying
principle of these rules is the interest of the lunatic 3 4
In the Eve case Campbell J. acknowledged that the Court’s juris-
diction over minors and the mentally handicapped was rarely
resorted to in matters affecting the person, as distinct from the
property, of incompetents 35 He also acknowledged that minors and
persons declared mentally incompetent are two” quite distinguish-
able groups6 Nevertheless, he claimed to find authority for his
order consenting to the sterilization of Eve in English cases in-
volving the wardship jurisdiction over minors. In one of those cases,
Re X (a Minor) Lord Denning M.R. observed that “[t]he jurisdiction
of the court in regard to wards of the court is derived from the
Court of Chancery. ’37 But as we have already seen, the court’s juris-
diction over those of unsound mind is of different origin. In Upper
Canada, this origin was expressly recognized in a statute enacted
to ensure that the Court of Chancery would have the same power
and authority as the Lord Chancellor in England over the care and
custody of lunatics, idiots and persons of unsound mind 8 Thus
the Prince Edward Island Supreme Court’s jurisdiction in this
regard has nothing whatever to do with any jurisdiction it may
have over minors. It seems clear that the appellate court’s dis-
cussion of the English wardship cases was for the purpose of justi-
fying its purported jurisdiction to make an order consenting to
sterilization. Yet an order of this nature was refused by Madam
Justice Heilbron in Re D (a Minor),39 a case involving an eleven-
year-old girl which is the only reported English case in which such
an order was sought. In light of the result in Re D (a Minor), Large
J. found it necessary to distinguish the latter case from the case
before him;40 but it seems clear that the English case is in fact
34A History of English Law, 7th ed. (rev. 1956), Vol. 1, 475-6 (footnote
omitted), citing Beall v. Smith (1873) L.R. 9 Ch. 85, 92 per James L.J.
3.Supra, note 1, 312.
36 Ibid., 316-7.
37 [1975] Fain. 47, 57, [1975] 1 All E.R. 697, 703 (C.A.).
389 Vict., c. 10: its purpose was explained by Kellock J. in Wright v.
Wright [1951] S.C.R. 728, 737-8. I am indebted for this reference to Weir,
“Mental Incompetency Applications” in [1963] Special Lectures of the Law
Society of Upper Canada 13, 15.
39 [1976] Fam. 185, [1976] 1 All E.R. 326.
40 Supra, note 1, 292-3.
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COMMENTS – COMMENTAIRES
helpful not as authority for any disposition of the Eve case but as
a warning against ordering sterilization on the advice of so-called
experts. In fact, these English cases merely confirm that the English
court, as the inheritor of the Crown’s obligation as parens patriae,
will exercise its wardship jurisdiction in the best interests of the
minor. This result is not at all helpful for the analysis of the Eve
case, particularly since there seems to be no doubt that the Prince
Edward Island Supreme Court has inherited the Crown’s parens
patriae obligation and authority over those of unsound mind .40 The
English cases do emphasize that the parens patriae jurisdiction is
concerned with matters relating to the person of the subject, for
example, surgical operations, as well as with matters relating to the
subject’s property, and as Campbell J. was concerned to find authori-
ty for the Court’s jurisdiction over matters related to the person
of Eve, he may have considered that the wardship analogy permitted
such a conclusion.4 1
VI. Parens patriae and the modem statutes
Parens patriae has been defined as “the state’s sovereign power
of guardianship over persons under disability, such as minors and
incompetent persons”.42 Specific legislation dealing with matters
historically within this prerogative has been passed in England and
in Canada. Thus provincial Child Welfare Acts 43 may provide for
Crown wardship as well as children’s aid society wardship; and
Mental Incompetency Acts 44 may provide a court process for the
formal determination of mental incompetency or mental infirmity.
While the remaining scope of the courts’ parens patriae jurisdic-
tion may not be entirely clear, it reasonably can be said to
extend
in these matters, where
is not expressly given by statute. For the
such jurisdiction
purpose of the Eve case,
the old
irrelevant whether
to a supervisory
jurisdiction
it
is
40a See the Chancery Jurisdiction Transfer Act, S.P.E.I. 1974, c. 65, s. 9(1).
This Act transferred, inter alia, the parens patriae jurisdiction vested in the
Court of Chancery under the Chancery Act, R.S.P.E.I. 1951, c. 21, s. 3 to the
Supreme Court of Prince Edward Island: See note 44, infra.
41Ibid., 316-20.
42 Black’s Law Dictionary, 4th ed. (rev. 1968), 1269.
43The Child Welfare Act, R.S.M. 1970, c. C-80 (as am.); Child Welfare Act,
R.S.O. 1970, c. 64 (as am.); Children’s Protection Act, R.S.P.E.I. 1974, c. C-7
(as am.).
44 See, e.g., Patients Property Act, R.S.B.C. 1979, c. 313; The Mental Health
Act, R.S.M. 1970, c. M-110; The Mental Incompetency Act, R.S.O. 1970, c. 271;
Mental Health Act, R.S.P.E.I. 1974, c. M-9 (as am. by Chancery Jurisdiction
Transfer Act, S.P.E.I. 1974, c. 65, s. 5.)
McGILL LAW JOURNAL
(Vol. 26
wardship jurisdiction over minors exists in Prince Edward Island,
as Eve was not a minor. The majority of
the appellate
court held that the Mental Health Act of the province con-
tained statutory provisions for the appointment by the court
of a committee of the person of Eve.4 5 MacDonald J. thought that
the applicable provisions of the Act were intended only to apply
to persons in need of guardianship if they were possessed of real
and personal property; and that while being declared incompetent
under the Act meant that the individual was unable to manage his
property, it did not necessarily mean that he was incapable of
giving valid consent. 46 There are no convincing reasons to impose
such a limitation on the court’s jurisdiction. However, MacDonald
J.’s observation points out the need to consider that what may be
involved is mental infirmity rather than mental incompetency, and
this possibility is also recognized in provincial mental incompetency
statutes. For example, The Mental Incompetency Act of Ontario
makes provision for management and administration of the estate
of a person who is “not declared to be mentally incompetent, but
who is proved to the satisfaction of the court to be, through mental
infirmity arising from disease, age or other cause, or by reason of
habitual drunkenness or the use of drugs, incapable of managing
his affairs.147 Under this Act persons can be appointed by the court
to exercise any of the powers of a committee of the estate as the
court might direct, and these persons are “subject to the jurisdic-
tion and authority of the court as if they were the committees of
the estate of a mentally incompetent person so declared.”‘4 8 The
statutory recognition of a court-approved alternative to a declara-
tion of mental incompetency was the culmination of attempts by the
courts to deal with difficult situations where the subject could not
be declared mentally incompetent, yet was clearly mentally infirm 9
This long-standing problem sheds some light on the question of
45Supra, note 1, 294 per Large J., 316 per Campbell J.
46 Ibid., 299-300.
47R.S.O. 1970, c. 271, s. 39(1).
48S. 39(4).
49 See, e.g., the reference to the Court of Chancery protecting adults who.
have not been found to be lunatics, on the principles on which the Court
protected improvident persons, in Sherwood v. Sanderson (1815)
19 Ves.
Jun. 280, 288-9, 34 E.R. 521, 524 per Eldon L.C. (cited by Holdsworth, supra,
note 13, 474, n. 2). See also Bird v. Lefebvre (1792) 4 Bro. C.C. 100, 29 E.R.
798 (Ch.), in which interest from a fund in Court belonging to the plaintiff
was ordered paid to his wife “for the maintenance of himself and his family,
he being in a state of mind, which though not amounting to lunacy, was of’
too great imbecility, in consequence of a paralytic stroke, to do legal acts.”
19811
COMMENTS – COMMENTAIRES
whether the court has jurisdiction to authorize sterilization of a re-
tarded adult.
VII. The standard for capacity
The judicial decisions show that it was often difficult to obtain
the equivalent of what would now be a declaration of mental in-
competency. There were other procedures for taking care of the
individuals involved and their property. However, the important
point is that for the most part mentally infirm people remained
potentially capable of giving valid consent to surgical procedures.
What had to be determined was their ability to understand the
nature of the procedure and to appreciate the likely consequences.
This approach is illustrated by one of the leading cases on the
question of capacity to make a will, where it was confirmed that
provided the testator knew the nature and effect of a will, under-
stood the extent of the property of which he was disposing, appre-
ciated the claims of relatives and others to which he ought to give
effect, and was able to balance these claims against his property,
he had testamentary capacity –
even where he had at former times
been of unsound mind, had been confined in a lunatic asylum, and
after being discharged from the asylum, remained subject to cer-
tain fixed delusions. A statement by Chief Justice Cockburn in this
connection shows the attitude of the courts:
It may be here not unimportant to advert to the law relating to un-
soundness of mind arising from another cause –
namely, from want of
intelligence occasioned by defective organization, or by supervening
physical infirmity or the decay of advancing age, as distinguished from
mental derangement, such defect of intelligence being equally a cause
of incapacity. In these cases it is admitted on all hands that though the
mental power may be reduced below the ordinary standard, yet if there
be sufficient intelligence to understand and appreciate the testamentary
act in its different bearings, the power to make a will remains. 50
It is true that the purpose for determining testamentary capacity
is different from the purpose for determining capacity to consent
to a surgical procedure. The importance of the former is related
solely to the validity of an attempted transmission of wealth, and
not to the justification for what might otherwise be an assault. How-
ever, if a rational will was considered to be a better disposition than
any that could be made by the law itself, so a rational consent by
the subject was considered to be a better consent than any that
5OBanks v. Goodfellow
(1870) L.R. 5 Q.B. 549, 566. See also Starkman,
The Control of Life and the Mentally Retarded: Protection of Rights for
Community Living (paper presented at the Third World Congress on Medical
Law, University of Ghent, Belgium, 20 August 1973).
McGILL LAW JOURNAL
[Vol. 26
could be made by a third party. The fact is that there are very few
reported cases dealing with the capacity of mentally infirm persons
to consent to surgical procedures. Situations involving the trans-
mission of wealth by will have attracted more litigation. But
there is no reason to believe that the basic test of understanding
and appreciation does not apply in both instances, with variations
depending on the nature of the transaction under consideration by
the subject. This means that careful inquiry must be made of a
retarded adult’s understanding of the proposed procedure and his
appreciation of its likely effects. If it is true that a high percentage
of retarded adults are able to meet this test, then the search for a
valid consent ends with the subject, and the remaining problem is
one of making sure that the consent obtained is free from duress.
In the Eve case MacDonald J. stated that, despite considerable
evidence that Eve was incompetent, he had serious concerns as to
whether a proper assessment of Eve had been made.5′ In light of the
principles described above, MacDonald J.’s rejection of the subjective
test of incapacity applied by a psychiatrist who testified
in
the case (to the effect that if Eve were his daughter he would
approve of the operation), and his concern for the degree of certainty
a court must have of a person’s inability to give an informed consent
before it intervenes to speak for that person, seem to point to the
need to distinguish between tests for mental incompetency and tests
for determining whether a mentally infirm person can give a valid
consent to a particular surgical procedure.
VIII. The court as medical consultant
Judicial willingness over the years to accept that subjects often
could not be found mentally incompetent, even though they were
clearly infirm of mind, was apparently not brought to the attention
of the appellate court in the Eve case as an acceptable precedent.
Its approach was to seek to declare Eve mentally incompetent and
to appoint a committee whom it authorized to approve the proposed
sterilization or hysterectomy. Did the Court have jurisdiction to
authorize such operations? Apart from statute, such jurisdiction
could only be based on parens patriae or the principles on which
51 Supra, note 1, 300.
It should be noted that medical testimony at the trial was to the effect
that Eve had undergone extensive psychological testing fifteen years earlier,
but that extensive testing had not been repeated. The appellate factum of
the Provincial Minister of Justice stated that Eve suffers from extreme
expressive aphasia, a non-inheritable condition in which the afflicted person
is unable to communicate outwardly thoughts or concepts which they might
perceive.
1981]
COMMENTS – COMMENTAIRES
Chancery protected the mentally infirm. The Court based its claim
to the necessary jurisdiction on parens patriae. As discussed earlier,
it appears that there is in fact no authority in either of these sources
for the Court’s claim to jurisdiction to authorize the operations.l “a
The committee of a person declared mentally incompetent, like the
parent or guardian of a minor, can act only in accordance with the
law and, as we have already seen, the legality of the operation in
the circumstances depends on the factors already discussed. If the
Court or committee had the power to circumvent the process of
general physician approval, which is an important factor in de-
termining the validity of substituted consent, their decisions could
conflict with general medical practice and thus depart from the
basis of the Criminal Code’s defence to criminal responsibility for
performing surgical operations. General medical practice is almost
certainly the basis for the defence to civil liability as well. The
Court in Eve sought to take the place of Parliament and the pro-
vincial legislature in granting an order for the authorization of an
operation in circumstances which do not have the general approval
of physicians, and which are of considerable concern to Canadian
physicians and others.52 The performance of a hysterectomy under
these circumstances gives particular cause for concern. Both the
Law Reform Commission of Canada and Ontario’s Interministerial
Committee on Medical Consent have examined this area and it
seems apparent that legislation will be required to provide for
review of some current practices. The problem is that thus far
physicians cannot agree on basic criteria for such operations and,
as a result, those responsible for the preparation of legislation are
unable to develop a comprehensive statutory approach to the prob-
lem. The absence of legislation does not mean, as Campbell J.
stated it did, that “the Courts are left to wallow in a judicial vacu-
um. ‘5 3 It means that the suggested list of criteria for sterilization
nla For a recent decision in the United States to this effect, see Eberhardy
v. Circuit Court of Wood County 294 N.W. 2d 540 (Ct Apps Wisc. 1980)
(petition to Wisconsin Supreme Court for review granted 10 September 1980,
300 N.W. 2d 77: see also, contra, In re Grady 426 A. 2d 467, 480 (N.J. 1981),
wherein the Court acknowledged that “the weight of authority is against
ust.)
5 2 A paper entitled “The Dependent Adults Act”, which was circulated
publicly in Alberta by the provincial Department of Health and Social
Development before the enactment of The Dependent Adults Act by S.A. 1976,
c. 63, contained a note (at p. 16) that “medical treatment must be in the best
interests of the dependent adult as an individual, not the best interests
of society. This is not a provision to give effect to consents to experimental
surgery, or involuntary sterilization.”
53 Supra, note 1, 315.
McGILL LAW JOURNAL
[Vol. 26
of a retarded person considered by the Court in Eve was only and
merely that, a suggested list, not one concluded after consultation
with and approval by the medical profession and after due con-
sideration by Parliament and the provincial legislature.
What the Eve case has shown is that there is a great deal of
work to be done before laws dealing with questions such as this
can be developed which will recognize the need to protect the
integrity of the person as well as the need to make available to
incompetent and infirm persons any surgical procedures that may
be advisable. While the courts have historically found ways of acting
where the subjects could not be found mentally incompetent, the
court is not an appropriate forum for settling medical practice.
The increasing tendency in the United States to refer these matters
to the courts has seen those courts embark on a course of ad hoc
decision-making which in turn only encourages more frequent re-
course to the courts by hospitals and physicians who seek protec-
tion for their decisions.
Conclusion
This comment has shown that our law and its evolution do pro-
vide some guidance both for judges and lawmakers. When Camp-
bell J. asks rhetorically whether we can refuse the mentally retarded
their substituted right to choose, we are in a position to reply that
–
–
–
they may be capable of choosing for themselves;
if someone else must give consent, there may be a conflict
between what that person finds convenient and what is advis-
able for the subject;
the validity of someone else’s consent is uncertain as long as
the legality of the performance of the procedure under such
circumstances remains uncertain.
Our reply points to the need for better articulation of these issues
by physicians and careful consideration by the legislatures. In the
meantime, it should be remembered that the question why the oper-
ation should be performed on retarded adults when most non-
retarded adults do not request it has not yet been satisfactorily
answered. One might also ask why retarded minors have been steri-
lized when physicians would not perform the operation on non-
retarded minors who are irresponsible or promiscuous. In the back-
ground is an all-too-recent experience with involuntary sterilization,”
an experience which enjoins us to approach these current concerns
55For a brief account of this experience, see Starkman, supra, note 2.
54 Ibid., 319.
19811
COMMENTS – COMMENTAIRES
with great care. The testimony of experts played a major role in the
enactment of provincial involuntary sterilization statutes (now re-
pealed), ostensibly for eugenic purposes. If legislators accept the
necessity of a careful evaluation of expert testimony, a point insisted
upon by MacDonald J. in his judgment,56 they will be better prepared
to deal with these issues than were their predecessors in Alberta
and British Columbia who were responsible for the earlier statutes
dealing with this surgical operation.
Afterword
After I had written this comment, I received a copy of an adden-
dum to notes of judgment which was issued by the appellate Court
on 9 January 1981 in response to the application of counsel to the
Court for clarification and further direction. The addendum stated
that the judges were unanimously of the opinion that the Court has
jurisdiction to authorize the sterilization of a mentally incompetent
person for non-therapeutic reasons, that this jurisdiction originates
from the parens patriae jurisdiction over individuals who are un-
able to look after themselves, and that it gives the Court authority
to make the individual a ward of the Court.5 7
The majority of the Court thought there was sufficient evidence
before the trial judge to warrant the sterilization of Eve, and
ordered that she be made a ward of the Court pursuant to the
parens patriae jurisdiction for the sole purpose of facilitating and
authorizing her sterilization. They then authorized her sterilization
by a competent medical practitioner, and reserved their approval
of the method of sterilization to be followed pending further sub-
missions of counsel as to the medically preferred surgical procedure.
Finally, the Court adjourned the application in order to allow coun-
sel time in which to make further representations.57 a
56Supra, note 1, 285 et seq., passim.
7 Ibid., 321.
57a On 22 January 1981 Large J. ordered that “a duly qualified and competent
medical practitioner be authorized to perform a hysterectomy operation” on
Eve after the expiration of the time for appeal to the Supreme Court of
Canada from the order. The order was made after hearing counsel for the
parties as to the appropriate method of sterilization, and after reading the
affidavit of the applicant dated 16 December 1980. The affidavit stated that
three physicians had been consulted and had recommended hysterectomy
rather than tubal ligation. Their opinions were attached to the affidavit and
reveal to some extent the process of decision making in these matters. Two
of the physicians had given evidence for the applicant at the trial. One, a
general practitioner, stated simply that a hysterectomy would look after
McGILL LAW JOURNAL
[Vol. 26
The matters dealt with in the addendum have been examined in
the course of the comment. The major departure in the addendum
is the majority’s abandonment of the Mental Health Act’s statutory
procedure for the appointment of a committee in favour of making
Eve a ward of the court for the sole purpose of having her sterilized.
The majority had already attempted to justify their finding of
jurisdiction to authorize sterilization by reference to the old ward-
ship jurisdiction over minors, and they subsequently appear to have
decided that the statutory procedure for determining mental in-
competency or mental infirmity could be ignored altogether. The
addendum has made the decision in Eve even less supportable.
With respect, the facts and the law are that:
1)
2)
retarded adults are not children;
the old wardship jurisdiction pursuant to parens patriae,
which has been largely superseded by Child Welfare Acts,
applied to children, not adults;
the parens patriae jurisdiction over persons of unsound mind
is limited to supervisory jurisdiction over the committee ap-
pointed under the Mental Health Act; and
there is no authority in either common law or statute for
any jurisdiction in the Court to make the order set out in
the addendum.
3)
4)
These points would seem adequate grounds for appeal in view of
section 41 of the Supreme Court Act.58
Bernard Starkman*
Eve’s painful periods and the concern about conception. The second, a
psychiatrist, based his recommendation on the advantage in managing Eve’s
personal hygiene and the modest advantage in preventing disorders of the
uterus, especially cancer. The third physician was a specialist in obstetrics
and gynecology who was consulted on the matter by the general practioner.
The specialist mentioned Eve’s long menstrual cycle and painful periods, but
added that she was receiving contraceptive medications which had produced
a regular cycle without problems. He also mentioned consulting with the
psychiatrist and reading his notes regarding the need for Eve’s mother to
help manage Eve’s personal hygiene, and thought that “this aspect has been
improved by the contraceptive pill”. He then concluded that “considering
all things”, including the painful periods, he was inclined to agree with the
psychiatrist that Eve would be better off with a hysterectomy.
5SR.S.C. 1970, c. S-19. Leave to appeal to the Supreme Court of Canada
was granted by the Prince Edward Island Supreme Court on 29 May 1981.
Notice of appeal was filed on 18 June 1981.
* Special Adviser, Medical-Legal Policy, Department of Justice, Ottawa. The
views expressed in this comment are not necessarily those of the Depart-
ment of Justice.
