In reasons for judgment released today in Bentley v.Maplewood Seniors Care Society, 2015 BCCA 91, The British Columbia Court of Appeal has upheld Mr. Justice Greyell’s decision dismissing a petition brought by Margaret Anne Bentley’s family seeking declarations requiring the care facility she was in to discontinue providing food and water to her.
I have written about Mr. Justice Greyell’s decision in greater depth in my previous post here, but in a nutshell Mrs. Bentley is suffering from the final stages of Alzheimer’s disease, and is incapable of communicating, walking, meeting her own care needs, or eating. She is offered nutrition by staff placing a spoon to her mouth. If she opens her mouth, she is given the food. If not, she is prompted a second time, but if she still does not accept the food, the staff do not attempt to force her to eat. Based on her communications at a time when she was clearly capable of making her own decisions, her family were of the view that she would not wish to be kept alive on this basis.
In the Supreme Court of British Columbia, Mr. Justice Greyell applied the presumption that a person is capable of making his or her own personal care decisions, and found that the family had not rebutted the presumption that Mrs. Bentley, despite her limitations, was capable of deciding whether to eat and drink when she either opened her mouth or kept her mouth closed when prompted.
Mr. Justice Greyell also considered whether British Columbia’s substitute decision making statutes authorized a substitute decision maker to make a decision to refuse personal care necessary to preserve life, and concluded, that in contrast to health care in some circumstances, the legislation did not allow a substitute decision maker to refuse personal care if doing so would cause the person to die.
The family members who had petitioned the Court appealed on the following grounds:
A. The learned Chambers Judge erred in law by failing to address whether [Mrs. Bentley] had consented to the process of “prodding” and “prompting” that precedes her being fed by Maplewood.B. The learned Chambers Judge erred in law by placing the onus on [Mrs. Bentley] to prove a “clear refusal of consent”, rather than placing the onus on Maplewood to prove consent by [Mrs. Bentley] to being “prodded” and “prompted”.C. The learned Chambers Judge erred in law by failing to find that, in the absence of consent to the process described above, a battery is committed by Maplewood when it prods and prompts [Mrs. Bentley].
A person commits the tort of battery if he or she touches another in a non-trivial manner without the other’s consent.
Madam Justice Newbury for the Court of Appeal rejected all three grounds, finding that Mr. Justice Greyell did at least implicitly find that she was consenting, communicating her consent through her behaviour in accepting or not accepting nutrition. She also rejected the argument that the Mr. Justice Greyell placed the onus on the Petitioners to prove that Mrs. Bentley did not consent.
The Court of Appeal decided this case on the relatively narrow grounds that the evidence supported Mr. Justice Greyell’s finding that Mr. Bentley is consenting to the provision to her of food and water. The Court of Appeal did not expressly decide whether the balance of his reasons deciding that Mrs. Bentley’s family could not require the care facility to stop providing her with nutrition in this manner even if she were incapable of deciding whether to accept the provision of food and drink.
Madam Justice Newbury wrote at paragraph 18:
 In closing, I emphasize again that the scope of this appeal was a narrow one and that none of the chambers judge’s conclusions regarding the documents executed by Mrs. Bentley, the applicability of the various statutes to them, or the determination of her wishes was appealed. I recognize the terribly difficult situation in which Mrs. Bentley’s family find themselves and I appreciate the disappointment they must feel in being unable to comply with what they believe to have been her wishes and what they believe still to be her wishes. It is a grave thing, however, 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. This is consistent with the principle of patient autonomy that is also reflected in the statutes referred to earlier (see especially s. 19.8 of the HCCCFA Act), and in many judicial decisions, including Carter v. Canada(Attorney General) 2015 SCC 5, where the Court emphasized that when assisted suicide is legalized, it must be conditional on the on the “clear consent” of the patient. (Para. 127.)