May 8, 2015

The British Columbia Court of Appeal recently released its decision in Bentley v. Maplewood Seniors Care Society. The closely watched case involved a late-stage Alzheimer’s patient who was supposedly “consenting” to being fed. Her “consent” consisted of opening her mouth when a spoon or glass was placed on her lower lip. The case raises difficult questions about the extent to which people with advanced Alzheimer’s can consent to decisions about food at the end of their lives. The case is also a cautionary tale for those who write out “living wills” setting out their directions for when they lose capacity.

Margaret Bentley’s daughter and husband brought a petition in the British Columbia Supreme Court to order her care facility, Maplewood Seniors Care, to stop feeding her. The petitioners advanced that Mrs. Bentley had repeatedly told them, while she was capable, that she did not want be fed if she suffered from an irreversible physical or mental disability. The petitioners were also able to provide a signed statement of wishes Mrs. Bentley created in 1991. Mrs. Bentley had also asked that she be euthanized if ever she reached a point where she could no longer recognize her family (more on euthanasia here). When Mrs. Bentley was diagnosed with Alzheimer’s in 1999, she frequently told her family that she did not want to live as an incapable person. By the time the case reached trial, Mrs. Bentley had not spoken in years, made few physical movements, her eyes were almost always shut, and she no longer ate independently. Maplewood staff would feed her by placing a spoon or glass on her lower lip, and she would open her mouth to accept the food. If Mrs. Bentley did not open her mouth, as was sometimes the case, then the care attendant would try again.

The medical evidence presented to the court was mixed, but the trial judge, Justice Greyell, clearly favoured Maplewood’s experts. Mrs. Bentley’s long-time doctor testified that she was in a “vegetative state” and that opening her mouth was a “reflex and is not indicative of any conscious decision” to eat. However, according to a palliative care physician, opening her mouth was a nonverbal expression of Mrs. Bentley’s wish to eat. Mrs. Bentley was also examined by a capacity assessor, who reported that Mrs. Bentley had some means of communicating by accepting or refusing her food. The capacity assessor suggested that nurses stop trying to feed Mrs. Bentley if she refused to open her mouth on two consecutive attempts.

The petitioners did not seek to have Mrs. Bentley declared incapable under B.C. law. Instead, they focused their arguments on the common law right to refuse medical treatment and suggested that she was incapable of making the decision to accept food or drink. However, the court held that the petitioners had failed to rebut the presumption of capacity, and that Mrs. Bentley was therefore capable of making this decision.

The petitioners also argued that the provision of nutrition fell under “health care” in B.C.’s  Health Care (Consent) and Care Facility (Admission) Act (HCCCFA), which meant any decision regarding food was governed by Mrs. Bentley’s 1991 statement of wishes. The Supreme Court has previously ruled that Ontario’s Health Care Consent Act governs the withdrawal of artificial feeding. However, the B.C. trial court rejected that argument, holding that the provision of food and water was not “health care” under the HCCCFA. The court also held that Mrs. Bentley’s 1991 statement of wishes was invalid because it was unclear, and in any event, it failed to comply with a number of regulatory rules. Finally, the court held that B.C.’s  Adult Guardianship Act and Residential Care Regulation prohibited Maplewood from withdrawing food and water from Mrs. Bentley.

The petitioners chose only to appealed the lower court’s ruling that feeding Mrs. Bentley was not a form of battery. They argued that Mrs. Bentley was being “prodded” and “prompted” without consent, and her consent could not be inferred from her acceptance of food after the fact. The Court of Appeal rejected the petitioners’ argument. The Court of Appeal agreed with the respondents, who argued that there was no practical difference between the placing the spoon on Mrs. Bentley’s lower lip and eating; both were part of the same process. However, the Court of Appeal was clear that its decision was restricted to this narrow grounds of appeal.

The ruling suggests that even patients with severely limited mental and physical functioning can give directions that are contrary to their statement of wishes made before their diagnosis. It also underlines the importance of seeking legal advice when drafting a “living will,” which Mrs. Bentley unfortunately did not do. Even had Mrs. Bentley received proper legal advice, those reading the decision may be left wondering if a “living will” can ever clearly and unequivocally address every medical contingency that may occur in the future. It also leaves the reader wondering whether actions that may be done reflexively can be interpreted as “consent.”