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Digest: Bentley (Litigation guardian of) v. Maplewood Seniors Care Society


[2014] B.C.J. No. 181

British Columbia Supreme Court
B.M. Greyell J.

February 3, 2014.
(154 paras.)


   Health law — Health care professionals — Treatment, authorization for — Consent — Petition by Bentley and her family for declaratory relief resulting in withdrawal of provision of sustenance dismissed — Margot Bentley suffered from advanced Alzheimer's disease and was unable to speak, feed herself or recognize family — Petitioners sought withdrawal of provision of nourishment in accordance with Margot's previously expressed wishes — Court rejected notion Margot was incapable of consenting to receive nourishment — Margot opened mouth to accept food and liquids in manner that went beyond mere reflex — Alternatively, provision of nourishment by prompting constituted personal care rather than health care, and could not be withdrawn from incapable adult — Adult Guardianship Act, s. 1 — Health Care (Consent) and Care Facility (Admission) Act, ss. 1, 19(2) — Representation Agreement Act, ss. 1, 7, 9.

   Wills, estates and trusts law — Mental incompetency — Treatment — Consent — Petition by Bentley and her family for declaratory relief resulting in withdrawal of provision of sustenance dismissed — Margot Bentley suffered from advanced Alzheimer's disease and was unable to speak, feed herself or recognize family — Petitioners sought withdrawal of provision of nourishment in accordance with Margot's previously expressed wishes — Court rejected notion Margot was incapable of consenting to receive nourishment — Margot opened mouth to accept food and liquids in manner that went beyond mere reflex — Alternatively, provision of nourishment by prompting constituted personal care rather than health care, and could not be withdrawn from incapable adult — Adult Guardianship Act, s. 1 — Health Care (Consent) and Care Facility (Admission) Act, ss. 1, 19(2) — Representation Agreement Act, ss. 1, 7, 9.

   Petition by Margot Bentley, by her daughter as litigation guardian, and her husband and daughter, for declaratory relief requiring the Maplewood Seniors Care Society to no longer provide Margot with nourishment or liquids. Margot Bentley suffered from advanced Alzheimer's disease. She was unable to speak, unable to eat independently, and no longer recognized family members. She resided at Maplewood, a long-term care facility. The petitioners contended that when Margot was mentally capable, she expressed a strong wish that she not be given nourishment or liquids when she reached her current condition. Margot was diagnosed in 1999, and cited her experience working as a nurse as a basis for her stated desire not to live with severe dementia. The petitioners also relied on a statement to that effect signed by Margot in 1991, and a second undated signed statement, each of which specifically requested euthanasia in the event of mental deterioration, with her husband acting as her proxy in respect of medical decisions. The petition was opposed by Maplewood, the Fraser Health Authority, the Province, and a euthanasia prevention advocacy group with intervenor status. They submitted that cessation of nutrition and liquids would cause Margot discomfort and bring about her death through dehydration and starvation. They submitted that such conduct would constitute neglect under the Adult Guardianship law, and would violate criminal law, particularly the prohibition against assisted suicide. At issue was Margot's decision-making capacity, the legal authority to make a decision on her behalf to refuse sustenance, and the legality of a decision-maker refusing consent for sustenance on Margot's behalf.

HELD: Petition dismissed. Margot's limitations did not necessarily indicate decision-making incapacity. Margot was capable of indicating consent to nourishment or liquids, and indicated that consent by opening her mouth in acceptance when fed. The petitioners did not establish that Margot's behaviour was a mere reflex. Margot communicated a preference for certain foods and flavours, and refused to open her mouth after eating for awhile, indicating fullness. She also refused to open her mouth for the dental hygienist when prompted, indicating behaviour inconsistent with reflex. Given that Margot was capable of making the decision to accept or refuse nourishment, there was no need to seek substitute consent from another decision-maker or to consult her previously expressed wishes. Had Margot been found incapable of consenting to receiving sustenance, it was not established that reference to previously expressed wishes or substitute decision making could be relied upon to refuse basic personal care necessary to preserve life. Margot's previously signed statements did not constitute valid representation agreements or advance directives. Provision of nutrition and liquids by prompting was a form of personal or basic care rather than health care. Withdrawal of such sustenance for an incapable adult would constitute neglect within the meaning of the Adult Guardianship Act. Given the civil context, the Court had no ability to grant a declaration that caregivers would be immune from criminal liability for withdrawing sustenance or would be liable in the event of such withdrawal. The provision of nutrition and liquids to Margot was required to continue.

 

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