Terrible decision by Ontario court in food and fluids case.

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

Several weeks ago the Euthanasia Prevention Coalition announced our intention to intervene in the Cement case, which was being heard by the Ontario Consent and Capacity Board. The Consent and Capacity Board is a judicial body that was established under the Ontario Health Care Consent Act to determine the course of treatment when a substitute decision maker disagrees with a proposed course of treatment that is being proposed by a hospital/doctors.

The Cement case concerns Hannah Cement, a 62 year-old woman with Down Syndrome and dementia, who is a life-long member of an Orthodox Jewish community and family. The substitute decision makers for Hannah, her family, refused to consent to a course of treatment that was comprised of the withdrawal of all treatment and care, including food and fluids and providing only comfort care.
 
John Campion, was the lawyer who represented the Euthanasia Prevention Coalition. EPC was granted a limited intervention standing based on our concerns related to the physicians defining food and fluid as medical treatment.

Donate toward the cost of the Euthanasia Prevention Coalition court intervention. (Link).

The substitute decision makers were willing to negotiate the level of care for Hannah but they were not willing to consent to the withdrawal of nutrition, hydration or ventilation.

The decision by Lora Patton, the Judge in this case, stating the following:

• No further antibiotics will be offered in the event of and for the treatment of aspirations although these may be offered as required for comfort measures to relieve discomfort; 
• No dialysis will be offered;
•  No vasopressors will be offered; 
• No CPR and no mechanical ventilation will be offered; 
• Feeding will cease if any of the above treatments are required but for the operation of this order. 
• All investigations and other interventions will cease. 
• Comfort measures consisting of the administration of medications to ease suffering, pain, shortness of breath, anxiety, nausea, or any other symptoms, including bacterial infections, will be provided.

Patton ordered that the decision must be implemented by April 5, 2019.

This decision undermines the clear and unified wishes of the substitute decision makers (her family), it ignores the position of her life-long faith tradition, it will result in her dying by dehydration, and it is based on a discriminatory premise that Hannah's clear wishes cannot be ascertained because she has Down Syndrome.

I hope that this decision will be appealed and I hope that the Euthanasia Prevention Coalition will once again be given intervention standing in this case to argue why nutrition and hydration does not constitute a form of medical treatment, but rather normal care.

The significance of the Cement case.

This is a precedent setting case in Canada concerning the definition and provision of assisted feeding.

In 2014, the Euthanasia Prevention Coalition intervened in the Bentley spoon feeding case. In February 2015, the BC Supreme court, in the Bentley case, decided that:

Oral nutrition – like spoon feeding – should not be considered health care or medical treatment, but rather seen as basic personal care and support.

The British Columbia Court of Appeal decided not to hear an appeal of the Bentley decision establishing the precedent that spoon feeding is not medical treatment.
 
If food and fluids are defined as medical treatment, then food and fluids can be withdrawn in the same manner as withdrawing or withholding any type of medical treatment.

For Hannah Cement, the withdrawal of fluids will cause her to die by dehydration.

CARP is now a pro-euthanasia advocacy group.

By Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

Susan Eng

The Canadian Association of Retired Persons (CARP) under the leadership of Moses Znaimer, the former owner of CITY TV, has officially become an advocacy group promoting unfettered euthanasia.

According to an article by Gloria Galloway in the Globe and Mail, Susan Eng, the long-time Executive Vice President of CARP was fired by Moses Znaimer based on her neutral position on euthanasia and assisted suicide and replaced by Wanda Morris, the former CEO of Dying With Dignity. According to the article:

The woman who has been the public face of Canada’s leading seniors organization for the past eight years says she has been dismissed by media mogul Moses Znaimer, who is also the organization’s president, because she insisted on taking a neutral approach to the emotionally charged issue of assisted dying. 

Susan Eng was told on Tuesday that she was no longer needed as the executive vice-president of advocacy at CARP Canada. She then learned on Wednesday that she was being replaced by Wanda Morris, the head of Dying with Dignity Canada, which advocates for access to physician-assisted dying and against unnecessary barriers when safeguards are being imposed to protect the vulnerable. 

... “The only reason he fired me was so that they can put out an official position for CARP saying that they want to insist on assisted dying on demand,” said Ms. Eng, a Toronto lawyer and former chair of the city’s police services board.

Znaimer has been promoting a radical pro-euthanasia position for some time. He his written one-sided propaganda articles urging "euthanasia on demand." Znaimer also wrote an article misconstruing the Bentley case in BC, a case that concerned the issue of whether normal feeding is medical treatment. 

Many seniors are members of CARP to enjoy the travel, insurance and other benefits that are obtained through a CARP membership. Many seniors will now not renew their CARP membership or seeking an alternative organization to attain similar benefits.

Canadian seniors need to know that purchasing a membership in CARP is actually supporting a euthanasia advocacy group.

The CARP media release stated:

A New Vision of Aging for Canada, Chairman, President and CEO Moses Znaimertoday announced that Susan Eng has departed CARP effective immediately. 

Moses has also announced that Wanda Morris has been appointed as CARP’s new Vice President of Advocacy and COO. 

Most recently, Wanda was CEO of Dying With Dignity Canada (DWD Canada) where she led a strategic campaign for legislative change leading up to the Supreme Court of Canada’s decision in the ground-breaking Carter v. Canadacase for the right-to-die with dignity.

Dying With Dignity also changed its position while under the leadership of Wanda Morris. Historically, Dying With Dignity officially supported assisted suicide but opposed euthanasia. Dying With Dignity is now a radical supporter of euthanasia.

Last year Dying With Dignity lost its charitable status based on the fact that had become a political lobby group and their purpose ceased being charitable. It is possible that Znaimer hired Morris because Dying With Dignity was unable to continue paying her a competitive salary.

Directives from Supreme Court must be enforced.

This article was published by Advocate Daily on March 31, 2015.

Hugh Scher

Many Canadians do not recognize the full extent to which existing rules around end-of-life decision-making are not serving as appropriate barriers to inappropriate conduct, says Toronto health and human rights lawyer Hugh Scher.

Concerning cases around end-of-life care decisions continue to crop up across Canada, says Scher, noting it is unclear whether directives from prior court rulings are being respected and enforced.

In one recent case, a Toronto physician and hospital were sued by a family who alleged a “do not resuscitate” (DNR) order was unilaterally placed on an elderly patient at Toronto East General Hospital against their wishes, reports the Toronto Star.

The Star reports the statement of claim, which seeks $1.2 million in damages for four of Canh Luong’s family members, alleges Dr. Alvin Chang and Toronto East General committed “wrongful death, abuse of power, negligence and breach of fiduciary duties.”

The statement of claim, says the Star, alleges Chang was negligent in preferring “his own opinion over that of the plaintiffs with respect to the code status of Luong,” for failing to consult them before making the change, and for failing “to provide Luong with the necessaries of life.”

Scher, who is not involved in the Luong case but who has been involved in other such cases, says clear rules and meaningful consequences for those who go against the established guidelines are needed.

“If we are not able to stop the most basic abuses relative to DNR orders or end-of-life care measures now, expanding those practices presents serious dangers,” says Scher. “The Supreme Court of Canada made it clear in Rasouli that doctors should not be acting unilaterally with regard to the withholding and withdrawal of treatment including end-of-life decision-making measures and that consent to treatment or refusing treatment – particularly where it forms part of an ongoing treatment plan – is required from the patient or substitute decision-maker.”

Scher says, 

“Doctors who act against that consent or without it are acting without lawful authority and in my view, are running afoul of the law as established by the Supreme Court of Canada.”

In Carter, released in February, the Supreme Court struck down the ban on doctor-assisted suicide in specific cases. The court gave the federal government 12 months to craft legislation to respond to the ruling, with the ban on doctor-assisted suicide standing until then.

The Carter decision risks creating a culture of permissiveness with regard to all end-of-life matters, says Scher, and real consequences are required for those that break or ignore the law. Without them, all Canadians are put at serious risk in health care settings across the country, Scher states.

For more information contact:

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

Scher, has acted as counsel to The Euthanasia Prevention Coalition in several high-profile end-of-life files including Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII); Bentley v. Maplewood Seniors Care Society 2015 BCCA 91; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII); Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2015 SCC 5.

• Clear rules and consequences needed concerning right to receive food and water.
• Appeal dismissed in BC normal feeding case.
• BC Supreme court sides with nursing home in spoon feeding case.
• BC Supreme court decides that normal feeding is basic personal care.

Clear rules and consequences needed concerning the right to receive food and water.

This article was published by Advocate Daily on March 30, 2015.

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.

The Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition – 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 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.

Questions remain as debate begins on assisted suicide.

This article was published by Advocate Daily on March 4, 2015.

Hugh Scher

As Parliament considers the implications of the landmark Supreme Court decision striking down the ban on assisted suicide, it must consider implementing the “notwithstanding clause” if it intends to protect vulnerable Canadians, says Toronto human rights and constitutional lawyer Hugh Scher.

The high court weighed in on the controversial topic in its much-anticipated ruling Feb. 6, which addressed a constitutional challenge to Canada’s assisted suicide law heard Oct. 15, 2014. It struck down the ban on providing a doctor-assisted suicide to mentally competent people experiencing an "irremediable'' condition, illness or disability and who are experiencing subjectively intolerable physical or psychological suffering.

The SCC gave Parliament one year to change the law so the present ban on assisted suicide remains in place.

The case began with a lawsuit filed by the British Columbia Civil Liberties Association in 2011, seeking to allow assisted suicide and euthanasia under certain circumstances.

The Euthanasia Prevention Coalition, represented by Scher, intervened in the case throughout, in Carter v. Canada (Attorney General), 2015 SCC 5; Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII).

While the Supreme Court matter has concluded, Canadians are now faced with a new chapter full of questions and concerns related to the incoming law, says Scher.

“Given that the Supreme Court appears to be opening up the idea of euthanasia and assisted suicide, the question remains as to whether or not any level of safeguards can be implemented to prevent abuses,” Scher tells AdvocateDaily.com. 

“Many groups are urging the federal government to implement the notwithstanding clause, which enables the government to override a court ruling – including a Supreme Court ruling – under the Charter of Rights and Freedoms in circumstances where Parliament is of the view that the court ruling effectively undermines a substantive policy objective that is considered of paramount concern to Parliament.  

“I can see no more significant concern for Parliament than the preservation and protection of life and protection against abuse of the vulnerable,” Scher says.

The Supreme Court weighed in on the matter in its previous 5-4 decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, 1993 CanLII 75 (SCC), where the court found a British Columbia woman with ALS could not have a doctor assist her to commit suicide. The majority ruled the prohibition on doctor-assisted suicide didn't violate Rodriguez's rights under the Canadian Charter of Rights and Freedoms, or that any such infringements were justified as there was no halfway measure that could meet Parliament’s legitimate objective to protect the vulnerable and promote life.

“If Parliament is to act and impose restrictions, limitations and so-called safeguards to attempt to protect Canadians and prevent abuses, then it must be afforded a level of sovereignty and independence to do its own investigation and to implement measures that it believes are essential to meet that objective,” says Scher. 

“The suggestion is made by many that the Supreme Court ruling sets down a set of criteria that will ultimately be the end with respect to the circumstances of euthanasia or assisted suicide in Canada. The reality is that it’s hard to imagine under our constitutional model how those limits could be maintained without being extended,” he says. 

“The basis for the limits themselves are founded upon a perception of disability asrepresenting an undignified and devalued way of life. Each of the criteria set down by the court are based upon different elements of disability, whether it be the existence of an irremediable medical condition or disability, the existence of physical and psychological suffering which is often associated with certain disabilities, and even the question around competence and capacity to consent, which involves an assessment of the level of intellectual capacity, reasoning and voluntariness – all of which are assessed based onvarious degrees of ability or disability.”

Referring to A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, Scher says the criteria set out by the Supreme Court will almost certainly be challenged moving forward.

In A.C., says Scher, the Supreme Court extended the ability for minors to consent to or refuse medical treatment, even where that decision would result in the death of the minor.

“Given that decision, it is difficult – indeed, almost impossible – to understand how the same inevitable result would not occur with regard to euthanasia or assisted suicide.”

The same concern arises, says Scher, with regard to the application of these criteria relating to people with dementia, Alzheimer's, or other conditions involving significant mental health concerns.

“There will be a significant push to allow people, by advance directive, to effectively permit euthanasia or assisted suicide to be implemented without care or concern for any of the safeguards that either the court or the government may attempt to implement,” he says. 

“This would be completely contrary to the ruling of the court, which requires an assessment of capacity, consent and voluntariness at the time of the act. However, it appears that inevitably, this fundamental rule and safeguard will become eroded as the push continues to allow greater and greater personal autonomy. This creates a significant and inevitable risk to all Canadians.”

Further, “one might question the likely inability of any manner of safeguard to protect Canadians from potential abuse once euthanasia is legalized, and whether it is even worth the endeavour to attempt to spend the next year canvassing all so-called safeguards that ultimately are likely to fall by the wayside as the scope of people to whom euthanasia and assisted suicide is offered becomes wider and wider,” says Scher. Indeed, it appears evident that the need for safeguards is largely being pursued as a means to immunize and protect doctors from prosecution, rather than to protect vulnerable people.

Such challenges, says Scher, have “lead some to believe that the most philosophically consistent position is to maintain an outright ban of euthanasia and assisted suicide, recognizing the inability to regulate these practices by way of any manner of so-called safeguards without seeing the inevitable expansion to a wider and wider group of Canadians.

“Others have suggested perhaps the better alternative is to do away with any manner oflimitation and simply maintain a right to die for all Canadians, regardless of their circumstances. This would effectively treat all Canadians equally without differentiating based upon factors such as age or level of disability.”

The ideas reflect the most extreme positions on the issue, says Scher, but others including Scher feel that no middle ground exists.

“It will fall to Parliament to take hold of its Parliamentary sovereignty to create a complete ban on these practices by invoking the notwithstanding clause in the event that the government is to remain true to its core principles of the protection of the vulnerable and the preservation of life,” says Scher.

“In the event that the government is to attempt to seek out some middle ground catalogue of safeguards, this will inevitably require a commitment to universal palliative care as a basic human right across the country, a requirement for psychological assessment of capacity and voluntariness, and clear and accessible judicial oversight to determine whether the criteria put in place are actually being met and followed by those doctors charged with the responsibility to carry out the practice of killing patients.”

It will also be imperative, says Scher, 

“for Parliament to ensure that the conscience rights of doctors are respected across the country by not compelling physicians to engage in practices of euthanasia or referrals for euthanasia that they fundamentally believe to be contrary to their Hippocratic Oath, basic professional obligations and potentially their own religious beliefs.”

A failure to recognize and respect the rights of doctors to freely exercise their own conscience would create an imbalance relative to competing constitutional rights, says Scher.

“Such a process would create a hierarchy of constitutional rights that is disrespectful of our constitutional tradition and the requirement to balance competing values within our constitutional order,” says Scher.

As Canadians move forward in a post-Carter world, Scher says heated debates around assisted suicide aren’t likely to wane across the country.

The Euthanasia Prevention Coalition, represented by Scher, recently intervened in another high-profile case involving end-of-life care.

In Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII), the family of an 83-year-old woman with advanced Alzheimer’s disease sought an order requesting that she no longer be given nourishment or liquids by staff members at The Maplewood Seniors Care Society, where the woman resides.

The family stated it was their mother’s wish while she was mentally capable that she not be fed in her current condition, but the B.C. court sided with the care centre, ruling the woman is capable of making the decision to accept oral nutrition and hydration. The Supreme Court agreed, and the case was recently heard at the B.C. Court of Appeal, which upheld the lower court ruling and highlighted the serious concern about caregivers starving patients to death:

“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,” wrote Justice Mary 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.

Another recent case saw a Winnipeg man charged with criminal negligence causing death and failing to provide the necessaries of life after the death of his 89-year-old mother. The man, who is accused of leaving his fallen, elderly mother on the floor of her home where she then died, says she did not want to continue her life.

“We’re already seeing examples of what the next stage may look like as we consider cases where families move towards starving and dehydrating family members as an assertion of their claims to autonomy and choice,” says Scher. “I certainly hope our society has not devolved to the point where harmful acts of neglect that deprive others of the basic necessities of life can be considered proper or ethical care or medical treatment of Canadians.”

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:

• BC Court sides with nursing home in Spoon Feeding case.
• BC Supreme Court rules normal feeding is basic personal care.
• If spoon feeding is no longer a right, I will be afraid for my life.
• Spoon feeding is basic care.

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

The case of a BC woman who is being fed normally, to be decided today.

By Alex Schadenberg

Executive Director - Euthanasia Prevention Coalition

The Euthanasia Prevention Coalition (EPC) hopes that the BC Court of Appeal will dismiss the case of a BC woman, who is living with dementia and being fed normally. Mrs. Bentley is not being fed by a feeding tube, she is being fed orally and continues to swallow normally. 

On February 3, 2014; Justice Greyall of the BC Supreme Court decided that Normal Feeding is basic personal care and not medical treatment in the Bentley case. The court recognized that there is an obligation to provide basic personal care, whereas medical treatment is optional.

EPC intervened in this case because we agree that normal feeding by spoon and cup to be basic normal care. Mrs. Bentley willing eats and swallows normally. The decision by Justice Greyall was correct. EPC also recognizes that people who require assisted feeding will be negatively affected if Greyall's decision is overturned.

The Bentley family argued that Justice Greyall erred in his decision. They stated that normal feeding by spoon and cup is a form of medical treatment and Mrs Bentley's is being fed against her prior wishes which they define as "assault and battery."

The family wants normal feeding to be discontinued. Mrs Bentley would die from dehydration.

In August 2013, the family of Mrs Bentley launched a lawsuit against Fraser Health and the BC government ordering that feeding by spoon and cup be discontinued. The Bentley family defined normal feeding as medical treatment.

It is interesting that, in August 2013, the Bentley family claimed that Mrs Bentley was living with "end stage" dementia and yet in December 2014 she continues to be fed normally.

For more information contact:

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

Dr Will Johnston, Chair EPC - BC (Vancouver): 604-220-2042 or willjohnston@shaw.ca

Alex Schadenberg, EPC Executive Director (London): 519-851-1434 or info@epcc.ca

BC Supreme Court sides with nursing home in spoon feeding case.

This article was published by Advocate Daily on February 10, 2015.

Hugh Scher

(Link to the EPC factum)

Oral nutrition – like spoon feeding – should not be considered health care or medical treatment, but rather seen as basic personal care and support, says Toronto health and human rights lawyer Hugh Scher, who recently advanced this position at the Supreme Court of British Columbia.

In Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII), the family of an 84-year-old woman with advanced Alzheimer’s disease sought an order requesting that she no longer be given nourishment or liquids by staff members at The Maplewood Seniors Care Society, where the woman resides. The family stated it was their mother’s wish while she was mentally capable that she not be fed in her current condition, reads the decision.

The care centre, the Fraser Health Authority, and the Province of British Columbia opposed the petition, along with the intervenor, the Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition –  BC, represented by Scher.

The B.C. court sided with the care centre, ruling 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 BC 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 case is now heading to the B.C. Court of Appeal, and the Euthanasia Prevention Coalition is again intervening.

“The seniors’ care centre was wanting to feed her various pureed foods and desserts by spoon, not force feeding her, but if she took in the food, that was fine, but if she didn’t want it, they didn’t push it on her,” says Scher. “She really liked her desserts so she was often keen about taking in the desserts so the question before the court was whether or not spoon feeding a person was health care, or whether it was basic personal support and basic personal care." 

“The difference is that health care could be withheld or withdrawn by way of an advance directive under the B.C. Health Care (Consent) and Care Facility (Admission) Act whereas basic personal care such as feeding is not something one could withdraw consent for in advance.”

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

“Our position on behalf of the Euthanasia Prevention Coalition is that there’s a wide body of policies both nationally and internationally that support the notion that oral nutrition and hydration – so spoon feeding and whatnot – are not properly considered health care or medical treatment, but rather are considered to be basic personal support or basic personal care,” says Scher. 

“That is generally held to be the view in countries like Britain, Scotland, the United States and in many parts of Canada. Our documentation will set out the various policies and what they state relative to this issue and the fact that there is a difference in the way that oral spoon feeding is considered, even relative to mechanical artificial feeding and artificial nutrition and hydration, which in some respects is considered to be a form of medical treatment, though others would say it is not.”

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) in the fall.

Another recent case saw a Winnipeg man charged with criminal negligence causing death and failing to provide the necessaries of life after the death of his 89-year-old mother. The man, who is accused of leaving his fallen, elderly mother on the floor of her home where she then died, says she did not want to continue her life.

“These cases open up the question as to how far does this end-of-life question really go?” says Scher. “Does it go to the point where we can just simply allow senior citizens to be left to lay and die on their floors at home after they’ve fallen, or are we to take appropriate care toward dignified living and dignified death by ensuring they receive appropriate palliative care, pain and symptom management, basic nutritional support and hydration in order to ensure they’re comfortable and treated where appropriate?

“Obviously, someone has the right to refuse medical treatment, but that's somewhat different than somebody who’s willing to take in food, is agreeing to take in food but otherwise is going to be deprived of that,” says Scher. “That raises a really serious prospect as to where we are going as society, I think, and what measures we’re prepared to accept and not accept as we consider people in vulnerable situations, whether they be terminally ill or not.”

More information about the Bentley case contact Hugh Scher EPC Legal Counsel at: (416) 816-6115 or hugh@sdlaw.ca.

Links to more information about the Bentley case:

• BC Supreme Court rules normal feeding is basic personal care.
• If spoon feeding is no longer a right, I will be afraid for my life.
• Spoon feeding is basic care.

The Bentley "spoon feeding" case has been appealed to the BC Court of Appeal.

By Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

On February 3, 2014; the Euthanasia Prevention Coalition (EPC) was elated when Justice Greyall of the BC Supreme Court decided that Normal Feeding is basic personal care and not medical treatment in the Bentley case. 

The Bentley family has appealed the decision to the BC Court of Appeal arguing that Justice Greyall erred in his decision. They are arguing that normal feeding by spoon and cup is a form of medical treatment and Mrs Bentley's is being fed against her prior wishes which they define as "assault and battery."

The Bentley case concerns a woman living at the Maplewood Care Facility in Abbotsford BC. Mrs Bentley is living with dementia. She is being fed normally by spoon and drinks from a cup. Her family claims that she would not have wanted to live this way. The family wants normal feeding to be discontinued and that Mrs Bentley be allowed to die from dehydration.

In August 2013, the family of Mrs Bentley launched a lawsuit against Fraser Health and the BC government ordering that feeding by spoon and cup be discontinued. The Bentley family defined normal feeding as medical treatment. They claimed that feeding was being imposed on Mrs Bentley against her prior wishes and that it constituted a form of "assault and battery."

Mrs Bentley is not being fed by a feeding tube and she is not being forced fed.

It is interesting that, in August 2013, the Bentley family claimed that Mrs Bentley was living with "end stage" dementia and yet in December 2014 she continues to be fed normally.

EPC intervened in the Bentley case. We argued that normal feeding by spoon and cup is not medical treatment but rather constitutes normal care and a basic necessary of life.

The EPC is once again seeking to intervene in the Bentley case. The EPC intervention, among other arguments, will prove that normal feeding is recognized internationally as basic care and not medical treatment.

If normal feeding is redefined as medical treatment, then people with dementia will be at risk of family members deciding to stop feeding or hydrating them, even when they are still eating normally. EPC believes that people should have the right to be fed normally. 

Links to more information:

• BC court rules that normal feeding is basic personal care.
• Spoon feeding is basic care.
• If spoon feeding is no longer a right, I will be afraid for my life.

The Ethics of Food and Drink: Starvation is not Mercy.

B

Wesley Smith

y Wesley Smith - Published in the Weekly Standard, (Link)

July 28, 2014 edition.

Should the law compel nursing homes to starve certain Alzheimer’s patients to death? This is not an alarmist fantasy, but a real question, soon to be forced by advocates of ever-wider application of assisted euthanasia. The intellectual groundwork is already being laid for legislation or court orders requiring nursing homes, hospitals, and other facilities to withhold spoon feeding from dementia patients who, though they take food and drink willingly, once requested the withholding of life-prolonging measures in an advance medical directive.

Consider the Bentley case in Canada. A lawsuit was filed in 2013 in British Columbia by the family of an Alzheimer’s patient named Margot Bentley. Bentley had signed an advance directive instructing that she be refused life-sustaining treatment—or be euthanized—if she became unable to recognize her children.

Bentley is now in that lamentable condition. But she doesn’t need life-sustaining treatment like a respirator or feeding tube, and she willingly takes food and water by mouth. Moreover, euthanasia is illegal in Canada. Thus, there is no legal way of making sure she dies immediately.

Margot Bentley

Bentley’s family thinks this is unjust and asked a court to order her nursing home to starve her to death. The trial court refused, in part because Bentley’s advance directive did not specifically reject spoon-feeding. The case is now on appeal. Of all the current litigation aimed at undermining the sanctity of human life, this may be the most dangerous. If successful, it would open the door to what I call VSED-by-proxy. Let me explain.

Suicide itself is not illegal, and patients have long enjoyed the right to refuse medical treatment, even if their refusal hastens death. For decades, moreover, courts have deemed artificial nutrition and hydration to be medical treatment. Removing or withholding unwanted feeding tubes and respirators is a routine part of contemporary medical practice. But euthanasia advocates want more. They argue that people who don’t require medical treatment to remain alive also have a “right to die.”

Already, Oregon, Washington, and Vermont allow assisted suicide: Doctors may prescribe lethal drugs for patients expected to die within six months. Some activists urge that elderly people who are “tired of life,” those with disabilities, and the chronically ill should also have a legal means of obtaining help to end their lives. Here’s how the assisted-suicide advocacy organization Compassion & Choices makes the case in one of its booklets:

Some call us because they feel overwhelmed by the symptoms of chronic and progressive illnesses that fill their days with misery and suffering. There are also those who may not be seriously ill but are simply “done.” After eight or nine decades of life, they want information about ways to gently slip away in a peaceful and dignified manner.

Regardless of their clinical circumstances, these individuals share a common desire to maintain autonomy over their own end-of-life decisions. They want to die as they have lived, making the important decisions that affect their lives with collaboration and support from trusted healthcare providers, family members and other caregivers.

People like these are prime candidates for suicide by voluntary starvation, known in euthanasia parlance as “voluntarily stopping eating and drinking” (VSED). A person commits VSED by refusing all sustenance. To ensure that death is not impeded, the suicidal person leaves instructions explicitly refusing any medical intervention to nourish them. Because VSED can cause agonizing symptoms, advocates suggest that the suicidal person find a sympathetic doctor or hospice to provide pain relief.

(It is important to distinguish here between VSED and the point in the process of dying when a patient naturally stops taking food and drink. This is not suicide, and starvation is not the cause of death. Indeed, in such cases it is medically inappropriate to force food upon the patient.)

But what about a Margot Bentley —someone suffering from dementia, who eats and drinks willingly, but who once signed an advance directive calling for the withholding of treatment? Some bioethicists—reflecting the mix of utilitarianism and autonomy-worship that predominates in the field—have leapt to support VSED-by-proxy. Writing in the May-June 2014 Hastings Center Report, Paul T. Menzel and M. Colette Chandler-Cramer argue for allowing people to use an advance directive to order themselves starved if they become incompetent:

Such directives are .  .  . arguably already legal. They follow logically from the intersection of two existing legal rights: directives for refusing life support and VSED. The principle behind [advance medical directives] is that people do not lose their rights when they become incompetent; someone else just has to exercise those rights for them. 

The driving element behind VSED is that forcing people to ingest food is as objectionable an intrusion on bodily integrity, privacy, and liberty as imposing unwanted medical treatment. Thus, if incompetent people do not lose their rights to refuse life-saving treatment, then people do not lose their right to VSED when incompetent either.

This is rank sophistry. Even today, the courts do not deem spoon-feeding to be medical treatment. It is basic, humane care—no different ethically from turning a patient to prevent bed sores or providing hygiene. Just as an advance directive instructing that a patient not be kept clean should be disregarded, so should an order to starve a patient.

Second, VSED is suicide. Legally requiring nursing homes to commit VSED-by-proxy would be forcing them to kill—and to kill cruelly. A legal regimen that did this would drive many doctors and nurses out of medicine.

Third, even in the states where assisted suicide is legal, the person being helped by a doctor to die has to be capable of making decisions. Demented patients are incompetent.

Finally, in cases such as Bentley’s, the patient is not being force-fed. She is taking nourishment willingly.

Some ethicists are dismissing this last objection. Thaddeus Mason Pope in the Spring 2014 Journal of Clinical Ethics argues that Margot Bentley should be starved because she is now incompetent and thus is legally unqualified to change her mind about dying.

Starvation As The New "Death With Dignity"

By Wesley Smith, First Things - May 30, 2014 (Link to the original article).

Wesley Smith

Self-starvation has become the latest craze among the “death with dignity” crowd. This has been coming on for some time. Removing feeding tubes from cognitively disabled people who can’t swallow has been allowed for decades, under the right to refuse unwanted “medical treatment.” But what about people who can eat and drink by mouth? Assisted suicide advocates argue that it isn’t fair that they can’t die too.

So, activists promote a form of “self-deliverance” that they call “voluntary stopping eating and drinking,” (VSED), by which suicidal people declare their wish to starve to death. As a matter of respecting autonomy, doctors won’t force feed these suicidal people. Some even agree to facilitate the death by helping palliate the potential agony that can be associated with starving and dehydrating.

Some bioethicists even argue that nursing homes and hospitals should be legally required to starve patients who can eat and drink, if they have serious dementia and have ordered their starvation deaths in an advance medical directive. In Canada, a lawsuit has already been filed, and I consider it the most important—and dangerous—litigation in bioethics today.

The case involves Margo Bentley, a woman from British Columbia. A believer in assisted suicide, Bentley signed an advance directive instructing that she be refused life-sustaining medical treatment and even be euthanized if she had Alzheimer’s and could no longer recognize her children. Bentley is now in that condition, but she doesn’t require life support—so there is no treatment to withdraw—and willingly accepts food and water by mouth, meaning that the conditions of her directive aren’t met. And as for euthanasia, it’s illegal in Canada. Thus, there is no immediately available legal way to make her dead even though that is what she clearly wanted.

BC court rules normal feeding is basic personal care.

Link to the Court Decision.

The BC Supreme Court rendered a significant decision in favour of protecting vulnerable people at risk of significant abuse by way of the withholding normal feeding of fluids and food in the case Bentley v Maplewood Seniors Care Society.

Basic personal care

There has been some confusion about the Bentley "feeding" case. Mrs Bentley is being fed by spoon. She does not require a feeding tube. She effectively swallows her food.

Mrs. Bentley is living at the Maplewood Seniors Care home. Care-givers testified that she shows preferences to certain food and she prefers to eat her dessert.

The Euthanasia Prevention Coalition (EPC) intervened in the Bentley case. We are pleased with this clear and well thought out decision. 

EPC argued that a world-wide consensus recognizes that fluids and food received orally does not constitute medical treatment but rather basic personal care. The court endorsed our submission.

The court clearly decided that normal feeding by spoon and cup is not healthcare but is rather basic personal care under the BC Health Care Consent law.

The court reviewed the regime of consent requirements and advance directives and determined that no such directive was applicable in the circumstances of this case. The court further decided that the withholding of fluids and food in these circumstances would represent neglect that is prohibited by law.

The court concludes as follows:

1. Mrs. Bentley is capable of making the decision to accept oral nutrition and hydration and is providing consent through her behavior when she accepts nourishment and liquids;
2. The assistance with feeding that she is currently receiving must continue;
3. The provision of oral nutrition and hydration by prompting with a glass or spoon is a form of personal care, not health care within the meaning of the HCCCFA Act;
4. Neither the 1991 Statement of Wishes nor the Second Statement of Wishes constitute a valid representation agreement or advance directive;
5. Even if Mrs. Bentley was found incapable of making the decision to accept oral nutrition and hydration, I am not satisfied that the British Columbia legislature intended to allow reference to previously expressed wishes or substitute decision makers to be relied on to refuse basic personal care that is necessary to preserve life;
6. 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.

For more information contact:
Hugh Scher, (Toronto) EPC Legal Counsel: (416) 816-6115 – hugh@sdlaw.ca
Dr Will Johnston, (Vancouver) EPC-BC Chair: (604) 220-2042 – willjohnston@shaw.ca
Alex Schadenberg, (London) EPC Executive Director: (519) 851-1434 – info@epcc.ca

Links to more information:
BC court decision in the Bentley feeding case.
Spoon feeding is basic care.
If spoon feeding is no longer a right, I will be afraid for my life.