Tuesday, March 3, 2015

Great News: Appeal dismissed in BC normal feeding case.

Hugh Scher
This article was published by Advocate Daily on March 3, 2015.

By Hugh Scher, EPC Legal Counsel

The British Columbia Court of Appeal has dismissed a request from the family of an 83-year-old woman that their mother no longer be given nourishment or liquids by staff members at the nursing home where she resides, says Toronto health and human rights lawyer Hugh Scher.

In Bentley v. Maplewood Seniors Care Society 2015 BCCA 91, Justice Mary Newbury agreed with a lower court judge, ruling that the woman, who has advanced Alzheimer’s disease, is exercising her consent when she opens her mouth to accept food and water, despite her family’s position that it was her wish while she was mentally capable that she not be fed in her current condition.

The Euthanasia Prevention Coalition (EPC) and EPC – BC, represented by Scher and Geoff Cowper QC, were intervenors in the case at trial and on appeal.
“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 coalition also advanced its position at the Supreme Court of British Columbia, which previously ruled that oral nutrition should not be considered health care or medical treatment, but rather seen as basic personal care and support. The court found the woman is capable of making the decision to accept oral nutrition and hydration and is “providing her consent through her behaviour when she accepts nourishment and liquids.”

The Supreme Court ruled spoon-feeding is “a form of personal care, not health care,” and “withdrawing oral nutrition and hydration for an adult that is not capable of making that decision would constitute neglect within the meaning of the Adult Guardianship Act.”

The woman had prepared advance directive documents, but the Supreme Court considered them invalid due to lack of clarity and contradictions in the wishes.

The case is one of several examples of end-of-life care issues stirring up heated debates across Canada, says Scher, who appeared at the Supreme Court of Canada on behalf of the  coalition in Carter v. Canada (Attorney General), 2015 SCC 5 in the fall.

Links to more information about the Bentley case:

For more information contact:
Hugh Scher, EPC legal counsel (Toronto): 416-816-6115 or hugh@sdlaw.ca

1 comment:

Jule Koch said...

THANK YOU, THANK YOU!!! Thanks to all who worked to save Mrs. Bentley's life. I was just heartsick with fear for her because of my own mom, who passed away last year at the age of 90. She too had Alzheimer's and we spoon-fed her for the last few years of her life. My mom clearly demonstrated that the court was correct to say that by opening her mouth and swallowing, Mrs. Bentley was demonstrating her choice to live. Up until a few months before she died, Mom would always open her mouth and swallow, but then suddenly she started to refuse all food. No amount of coaxing could get her to open her mouth, but if she occasionally did open it, she would not swallow and the food would just fall out of her mouth or she would spit it out. When Mom died the only medication she was on was Vitamin D. We treasured every moment of her life and continued to learn from her up until the day she died. She has left us a legacy of courage that will take us through many dark places.