In an earlier post, we talked about the case of Margaret Bentley, an 82 year old woman with advanced Alzheimer’s disease, whose family had initiated litigation to prevent her care home from force-feeding her. Earlier this week, the Supreme Court of British Columbia released its 44-page decision in the case.
In summary, the BC Supreme Court found that:
- The Health Care (Consent) and Care Facility (Admission) Act (the “HCCCFA Act”) makes it clear that health care must not be provided without obtaining consent.
- Mrs. Bentley was capable of making the decision to accept nourishment and assistance with feeding and demonstrated her consent through her behavior, by accepting food and liquids.
- Even if Mrs. Bentley was not capable of making the decision to accept assistance with feeding, this type of assistance is not “health care” within the meaning of the HCCCFA Act, and is instead considered a form of personal care or basic care. Accordingly, the procedures in the HCCCFA Act for obtaining consent to health care did not apply.
- Even if assistance with feeding was considered a form of health care, the health care could not be refused under the HCCCFA Act. Since Mrs. Bentley had no personal guardian, no representative and no adequate instruction in an advance directive, Mrs. Bentley’s temporary substitute decision maker (her husband or children) would be authorized to give or refuse consent on Mrs. Bentley’s behalf. However, where the health care is necessary to preserve life (as it was in this case), the decision to refuse consent can only be made if it is medically appropriate. There was no substantial agreement among Mrs. Bentley’s health care providers that the decision to refuse consent would be medically appropriate, so Mrs. Bentley’s substitute decision maker would not have legal authority to refuse consent to the health care.
- Withdrawing oral nutrition and hydration for an adult that is not capable of making that decision, would amount to neglect within the meaning of the Adult Guardianship Act.
More information on the decision can be found in several recent news articles, including this article in the National Post. As expected, commentary on the decision indicates that there are mixed opinions as to whether the right decision was reached.
The parties appealed to the BC Court of Appeal. The outcome of that decision is discussed in a separate article found here: