The only issue on appeal was whether or not the chambers judge
had erred in failing to make a declaration that the
"prompting" of Mrs. Bentley to eat or drink by touching
her lips with a spoon or glass constitutes a battery. The
appellants did not appeal the chambers judge's other central
findings in the case: that neither of Mrs. Bentley's written
statements of wishes were sufficiently clear; that Mrs. Bentley was
indeed consenting to the act of being fed; and, finally, his
interpretation that the relevant legislation required her
caregivers to continue to offer her food and liquids and did not
permit substitute decision-makers to consent to the withdrawal of
personal care such as oral feeding that would lead to her
Madam Justice Newbury (with Mr. Justice Lowry and Mr. Justice
Chiasson concurring) summarized all the relevant findings of the
chambers judge and held that he had found at various points
throughout his reasons that Mrs. Bentley is consenting to
being given food and water and that meant there was no battery:
In law, such consent is a complete
defence to the very technical battery that might otherwise
exist. This consent arises in the present, rather than in any
previous written instruction, and as we have seen, Mrs.
Bentley's previous written directives were not effective as a
consent to the withdrawal of food and water.2
The respondents made it clear that if and when Mrs. Bentley
refuses feeding by keeping her mouth closed, they would respect
that decision and would not seek to intervene by medical means such
as tube feeding. The distinction relied on by the chambers
judge was that such medical interventions were clearly "health
care" measures which Mrs. Bentley or her substitute decision
maker could refuse in advance, while oral feeding was
"personal care", which she could not.
The other ground of appeal was whether the chambers judge had
improperly placed an onus on the petitioners to prove a lack of
consent. The Court found that the chambers judge appropriately
applied the presumption present in both statute and tort law that
unless the contrary is demonstrated, an adult is presumed to be
capable of making decisions. At the hearing before the
chambers judge, the petitioners did not successfully rebut this
presumption.3 The chambers judge preferred the expert
opinions and other evidence submitted by the respondents that Mrs.
Bentley was exercising some choice in accepting oral feeding and
was not merely acting in a reflexive manner.
The Court acknowledged in the decision that Alzheimer's is a
terrible disease and that Mrs. Bentley has a loving family who is
trying to honour her wishes. The Court went on to recognize
that it is a very difficult situation in which her family finds
themselves. However "it is a grave thing...to ask or
instruct caregivers to stand by and watch a patient starve to
death. It should come as no surprise that a court of law will
be assiduous in seeking to ascertain and give effect to the wishes
of the patient in the 'here and now', even in the face of
prior directives, whether clear or not" (emphasis in
original).4 The Court specifically commented that this
finding is consistent with the Supreme Court of Canada's recent
decision of Carter v. Canada (Attorney General) to the
effect that when assisted suicide is legalized, it must be
conditional on the clear consent of a capable
The Court of Appeal did make the following comments of interest
to those trying to plan for the future:
[I]f nothing else, [the chambers judge's] analysis shows
that persons who wish to make provision for their care and
decision-making in their declining years should not only record
their wishes clearly, but also obtain legal advice as to what
exactly can be accomplished by so-called "living wills",
representation agreements, advance directives and related
appointments. The Legislature has prescribed extensive
substantive and formal requirements relating to each of these in
order to protect not only the person in care but also her
caregivers. Assuming compliance with the Charter, it
is not open to a court of law to suspend or ignore such
Finally, the court noted that the constitutional challenges to
the applicable legislative provisions had not yet been argued as
the parties had agreed to adjourn that portion of the petition. It
remains to be seen if those challenges will be pursued or if the
petitioners will seek a further appeal to the Supreme Court of
1.Our summary of the reasons for judgment at
the trial level can be found
hereand full reasons for judgment at the Court of
Appeal are indexed as
2015 BCCA 91[Bentley].
5.Ibidat para 18.
See also our case comment onCarterincluding the importance of consent
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