Canada: Caregivers Must Give Effect To Patients' Wishes In The 'Here And Now': Decision In Bentley V. Maplewood Seniors Care Society Upheld

Last Updated: March 10 2015
Article by Penny Washington and Elizabeth Allan

On March 3, 2015 the British Columbia Court of Appeal dismissed the appeal in Bentley v. Maplewood Seniors Care Society, upholding the chambers judge's decision.1

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 death.. 

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 patient.5

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 requirements.

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 Canada.

Footnotes

1. Our summary of the reasons for judgment at the trial level can be found here and full reasons for judgment at the Court of Appeal are indexed as 2015 BCCA 91 [Bentley].

2. Bentley at para. 14.

3. Ibid at para. 17.

4. Ibid at para. 18.

5. Ibid at para 18.  See also our case comment on Carter including the importance of consent here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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