“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,” writes Newbury.
“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," says the decision.
“The first step is going to be to determine how the ruling in Bentley, which determines that regular feeding and regular hydration represent basic personal support and not health care or medical treatment, is applied across the country,” says Scher.
“We know there are people in nursing homes across the land, including Ontario, where it’s an open question whether doctors are following that protocol. Families may be making requests of doctors to stop these measures of basic food and drink in a way that may be contrary to the law.”
“It is hard because these are difficult situations,” says Scher. “Everyone wants to do what’s best; everyone wants to follow their family members’ wishes, but it is important that doctors can spell out what is and isn’t permissible.”
“We must take care to ensure that all Canadians – particularly people who are senior or people with disabilities – are not subjected to neglectful conduct that deprives them of the basic necessities of life where they are otherwise open to and interested to receive those measures,” Scher tells AdvocateDaily.com. “It’s a delicate balance, but those rules must be respected.”
“Doctors and nurses need to understand the difference between say natural feeding and natural hydration and hydration through an I.V. and how those are respectively considered under the law,” he says. “Family members and lawyers must also be made aware of the rules so when they’re drafting a power of attorney or living will they understand what the rules are. Those measures then need to be taken into account in the regular day-to-day practice of nurses, doctors and lawyers.”
“We’ve seen problems in jurisdictions that legalize euthanasia and assisted suicide, and with certain practices of palliative sedation, for example. Once measures become accepted and condoned, it becomes very difficult to enforce and regulate those measures that are supposedly there to safeguard against abuses,” he says.
“We know these so-called safeguards have been significantly ignored with impunity in a great number of cases, so we need to be very careful to ensure that doesn’t happen with respect to these rules and ensure that measures and processes are clear, simple and subject to stringent oversight in a way that is respectful of human dignity.”
For more information contact:Hugh Scher, EPC legal counsel (Toronto): 416-816-6115 or firstname.lastname@example.org