This article was published by Advocate Daily on March 30, 2015.
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| Hugh Scher |
Top British Columbia courts have made it clear that oral nutrition should not be considered health care or medical treatment and instead be seen as basic personal care and support. But, how the directive will be applied and enforced across Canada remains to be seen, says Toronto health and human rights lawyer Hugh Scher.
In Bentley v. Maplewood Seniors Care Society 2015 BCCA 91, the British Columbia Court of Appeal 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.
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.
“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 case has seen national media attention, with Scher appearing on outlets including Global News, CTV and Lawyers Weekly, and he says with the appeal concluded, it’s time to look forward at how the ruling will take shape across the country.
“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.”
There are a number of international policies and provisions in places such as the U.S. and Scotland, says Scher, that also consider foods and fluids to be personal support and not health care, but the issue now is how to determine whether the rules are being respected.
“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.”
The case is just one example of how end-of-life care issues are igniting debates across Canada, says Scher, who has intervened on behalf of the coalition in several high-profile cases on the subject, including Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341 and Carter v. Canada (Attorney General), 2015 SCC 5.
In Rasouli, the Supreme Court of Canada dismissed an appeal that would have permitted doctors to unilaterally end life support for a man without the consent of his family or a substitute decision-maker.
In the decision, the court ruled that under Ontario's Health Care Consent Act, treatment cannot be confined to something that doctors consider to be of medical benefit to the patient and that doctors could not unilaterally terminate life support measures that form part of an ongoing plan of treatment without consent from the patient or their substitute decision-maker.
The case involves 61-year-old Hassan Rasouli, who has been living on a ventilator for several years since since 2010. Doctors at Toronto's Sunnybrook hospital have said there is no therapeutic hope of a clinical recovery, but his wife refused consent to end life support and Rasouli continues to live and remains responsive to his family and others. Physicians involved in the case argued that consent was not required because withdrawal of life support does not provide any medical/clinical benefit to the patient, but the courts disagreed.
The Canadian Bar Association (CBA) is also weighing in on the topic, having passed a resolution at its mid-winter meeting saying it will lobby governments to put systems in place to clarify the rules around end-of-life decision-making.
In an interview with Law Times, Scher said he supports the resolution, and was pleased to see it did not wade into the territories of assisted suicide or euthanasia, since the Supreme Court already dealt with the matter in Carter.
The result in Carter also prompted action from the Canadian Medical Association, which pledged to help draft new guidelines for end-of-life care that provide practical guidance to Canadian physicians while respecting individual members’ views and providing the patient’s perspective on this issue.
“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.”
An educational program is needed for health-care practitioners across the country to clarify the rules, says Scher.
“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.”
Clear and established consequences for breaking the yet-to-be determined rules are also crucial, adds Scher.
“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 hugh@sdlaw.ca
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