On February 3, 2013, the British Columbia Supreme Court issued a decision in Bentley v. Maplewood Seniors Care Society.1 The ruling received significant media attention2 as it pertained to end of life decision-making.
The daughter of Margot Bentley had brought a petition to the BC Court seeking a declaration that her mother not be given nourishment or liquids, as she had previously expressed that wish in a written statement. The court declined to make that declaration and found that Mrs. Bentley must continue to be fed by staff at the long-term care home in which she resides.
Margot Bentley, a retired nurse, is in the seventh (and final) stage of Alzheimers. She is essentially immobilized, has not spoken since 2010 and cannot recognize her family members. She also cannot feed herself and is being fed by spoon and glass by staff at the care home. In 1991 she signed a “statement of wishes” that provided in part:
If at such time the situation should arise that there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by artificial means or “heroic measures.”
I hereby absolve all who follow these instructions to be free of any legal liability. In particular, I would request the following instructions to be carried out:
B. No nourishment or liquids. [emphasis added]
The document went even further, providing that “[i]n the event that mental deterioration is such that I unable to recognize the members of my family, I ask that I be euthanized.”
The statement also designated Mrs. Bentley’s husband, John Bentley as her “proxy”, and named her daughter Kathy as alternate proxy. The document was signed by Mrs. Bentley in the presence of two witnesses.
Following her diagnosis with Alzheimers in 1999, Mrs. Bentley repeatedly told family members of her wishes as set out in the written statement. She was reassured by the fact that she had put those wishes in writing.
In the summer of 2013, Mrs. Bentley’s daughter, Kathy complained that Mrs. Bentley was being fed against her clearly expressed and capable wishes. The local health authority refused the family’s request to stop feeding Mrs. Bentley and even threatened to apply to be appointed guardian for Mrs. Bentley if the family persisted.
Kathy then brought a petition to court and sought a declaration that Mrs. Bentley not be given nourishment or liquids, on the basis that Mrs. Bentley had expressed strong wishes to that extent while capable. That petition was heard by Justice Greyell.
In reviewing the facts and the applicable statutes, Justice Greyell declined to make the declaration sought. In his decision, which provides a thorough review of the relevant capacity law, Justice Greyell reviewed all the possible grounds on which he could make such a declaration, finding throughout that there was no legal basis for such.
First, Justice Greyell considered whether Mrs. Bentley was capable of making a decision about assisted feeding, or whether a substitute decision-maker ought to make that decision on her behalf. The court was provided with videos of Mrs. Bentley eating as well as expert evidence on the issue. The respondents asserted that Mrs. Bentley was deciding to eat, and that she showed preferences for some foods over others and at times refused food. Her family asserted that any eating on the part of Mrs. Bentley was simply a reflex.
Justice Greyell found, relying on the evidence as well as the legal presumption of capacity, that Mrs. Bentley was capable of deciding whether to eat or drink. She was, in accepting food and drink, making her own capable decisions, according to the judge.
With a finding that Mrs. Bentley is capable to make feeding decisions, there was no legal basis for any party to make that decision on her behalf. As a result, the court ordered that the home was to continue feeding Mrs. Bentley, as she herself was consenting to the assistance with feeding.
The enquiry could have ended there but Justice Greyell continued to consider whether, even if Mrs. Bentley lacked capacity to make a feeding decision, there would be other grounds on which to stop feeding her.
Justice Greyell found that assistance with feeding was a personal care decision, and not health care, and that Mrs. Bentley’s family members are not authorized by the statement of wishes, or statute, to act as personal care decision-makers.
Much of the analysis focused on the “statement of wishes” and whether it authorized Mrs. Bentley’s husband or daughter to act, and whether it provided direction on what decisions were to be made. Justice Greyell found that the “statement of wishes” did not comply with the legislative requirements for a representation agreement or advance directive, and as a result did not authorize Mrs. Bentley’s family members to act on her behalf, and also did not set out enforceable direction on how to act.
On an issue raised by the respondents, Justice Greyell found that the care home was required by the agency’s governing legislation to continue feeding Mrs. Bentley.
In sum, the decision unequivocally found that Mrs. Bentley must continue to be provided assistance with feeding, such that even if Mrs. Bentley ceases to have capacity to consent to assisted feeding, the care facility must continue to feed her.
While Justice Greyell ultimately ruled that Mrs. Bentley’s capacity prevents others from making feeding decisions on her behalf, much of the decision focused on the enforceability of the “statement of wishes.” Although Mrs. Bentley likely believed at the time that she was preparing a document that would see her wishes respected and protect her family members when they enforced those wishes, the document itself is unenforceable, according to the court. The court referred to the formal and substantive requirements for a representation agreement and advanced directive, set out in BC statute and found that the document did not comply with the requirements for either document. The statutes in BC set out very strict requirements for substitute decision-making. This decision drives home the message that those individuals who seek to have their wishes respected by family members and care providers should be sure to prepare documents with the assistance of a lawyer.
This is no doubt a frustrating decision for Mrs. Bentley’s family members who simply wish to respect her consistent and clearly stated capable wishes.
It would be unsurprising if this decision was appealed as the family members have expressed disappointment with the ruling, and it addresses an issue that receives significant public attention.
1. 2014 BCSC 165