When we previously reported on the limited effect of the decision in the case of Cuthbertson v. Rasouli, we noted that we were representing the health authority in a case was set to be heard by the British Columbia Supreme Court in December which would provide guidance on whether the offering of food by spoon to a patient with advanced dementia falls within the definition of "health care" in the BC legislation. If it was found to be health care, it would affect requirements for consent and what could be addressed in advance directives. On February 3, 2014 Justice Greyell held that offering food on a spoon is an aspect of personal care and not health care.
In brief summary, the background to the hearing was that Mrs. Margot Bentley, an elderly woman with advanced dementia and a former nurse, had executed a statement of wishes prior to her Alzheimer's diagnosis (the "Statement of Wishes"). Mrs. Bentley's family interpreted an aspect of this Statement of Wishes to mean that it was Mrs. Bentley's wish that when she reached a certain cognitive state she no longer wanted to be offered food and liquids and should be allowed to die. Maplewood Seniors Care Society ("Maplewood"), the facility where Mrs. Bentley lives, and Fraser Health Authority ("FHA") maintained the position that despite advanced dementia Mrs. Bentley was choosing to open her mouth and eat and this choice must be respected. To refuse to offer food and liquids would constitute neglect under the Adult Guardianship Act. A second, more recent document, provided to the facility by Mr. Bentley, indicated that she wanted to be provided with "basic care", which arguably encompassed spoon feeding.
Mrs. Bentley by way of her daughter as her litigation guardian and Mrs. Bentley's husband and daughter as personal petitioners sought to have the Statement of Wishes interpreted by a Court. The family maintained that Mrs. Bentley's eating and swallowing actions were purely reflexive, that the second document was not reflective of Mrs. Bentley's wishes and that Maplewood and FHA were not respecting Mrs. Bentley's Statement of Wishes regarding her health care and her subsequent oral declarations to her family about her health care.
After a three day hearing on the issues Justice Greyell agreed with the Respondents and held that there is a distinction to be made between health care and personal care. Offering food on a spoon is personal care to which Mrs. Bentley is capable of consenting. Therefore, the statutory scheme for consent to health care is not engaged.
The Court also found that:
- Mrs. Bentley is not dying or in a vegetative state. Despite her advanced Alzheimer's disease, she has a discernible mental function. We note that this distinguishes this case from cases such as Rasouli and other such cases where there is a diagnosis of a minimally conscious or persistent vegetative state;
- Mrs. Bentley, without artificial assistance, accepts different types and amounts of food and liquids by hand on different days. The Court determined on the evidence that she is capable of consenting to being fed, is not exhibiting a reflex and is consenting to being fed. We note that these facts also distinguish this case from cases such as Rasouli where there is no capacity to consent and a feeding tube (clearly a medical intervention) was inserted by way of a medical procedure;
- Even if it was found that Mrs. Bentley is incapable of making the decision to eat, providing oral nutrition and hydration by prompting one to eat with a spoon or drink from a glass does not fall under the health care consent regime in the legislation but is a form of personal care in BC;
- In interpreting provisions of the Health Care (Consent) and Care Facility (Admission) Act the Court must look to relevant BC statutes rather than legislation of other Canadian jurisdictions as there are contradictory approaches to the definition of health care nationally. We note that this confirms our earlier comments on the Rasouli decision that the specifics of the Ontario legislation mean that decisions which focus on the Ontario legislation will have limited applicability in BC;
- Even if spoon feeding fell under the definition of health care, and Mrs. Bentley was not capable of making the decision, then substitute consent to cease offering her food must be sought from one of four sources outlined in the legislation. Here, none of the sources can be relied upon as no application for a personal guardian was made, Mrs. Bentley's documents do not constitute valid representation agreements or advance directives under the legislation, and any decision made by Mr. Bentley or Mrs. Bentley's daughter as a substitute decision maker to refuse consent to health care to preserve life is restricted by a provision in the legislation which states that there must be "substantial agreement" among the health care providers that the decision is medically appropriate, which in this case there is not;
- A capable adult is free to refuse to eat;
- There is a clear difference between health care and personal care in the legislation. The BC legislature did not clearly intend to provide that previously expressed wishes by an incapable person or decisions of a substitute decision maker to refuse personal care that is necessary to preserve life are valid in the way that the BC legislature provided that previously expressed wishes by an incapable person or a substitute decision maker to refuse health care that is necessary to preserve life are valid; and
- To withdraw feeding assistance to Mrs. Bentley would constitute neglect under the Adult Guardianship Act and therefore, the assistance with feeding that she is currently receiving must continue.
Note that this decision does not change the law in several aspects. This decision does not impact the established consent regime for health care decisions made by capable adults or on behalf of incapable adults. Offering food on a spoon or liquid from a glass was not found to constitute health care. It also does not affect the existing law surrounding validly executed representation agreements and advance directives, other than to emphasize that care must be taken to ensure that these documents are as clear as possible.
The full text of the reasons for judgment can be seen here.
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