March 04, 2015 - 8:27 AM
VANCOUVER - Family members of an 83-year-old woman with late-stage Alzheimer's disease have lost their latest legal challenge to force a care home to stop providing food to honour what they say were her last wishes.
The lawyer representing the family says the decision strikes at the heart of ongoing debates about end-of-life care and patients' decision-making rights.
Margaret Bentley's family argued her care home's decision to feed her violated a living will she wrote more than 20 years ago, which said she did not want to be kept alive artificially if her health deteriorated beyond the possibility of recovery.
The B.C. Court of Appeal released a unanimous ruling Tuesday that concluded caregivers at the Maplewood Home in Abbotsford, B.C., were not feeding Bentley against her will and that care could continue.
The case was originally filed in B.C. Supreme Court in 2013 by Bentley's husband, John Bentley, and daughter, Katherine Hammond.
The family argued the woman was being fed without her consent and against her directions, as outlined in a legal document signed in 1991.
Court documents reveal that as a nurse, Bentley had seen patients in vegetative states due to Alzheimer's disease and told her family not to allow the same to happen to her.
Justice Mary Newbury concluded that despite being unable to speak or recognize family members, Bentley is still capable of deciding whether to accept or refuse what she's being given to eat and drink.
"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," Newbury wrote for the three-judge Appeal Court panel.
"It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death."
Bentley was diagnosed with Alzheimer's disease in 1999 and has lived at Maplewood Home since 2009.
"Essentially, she's very rigid," Kieran Bridge, a veteran health lawyer who took the family's case pro bono in 2013, said in an interview.
"She doesn't communicate in any way. ... She sits with her eyes closed and curled up in a fetal position with stiff muscles and her hands in a claw-like position."
Bridge said caregivers attempt to feed Bentley by "prodding" her with a spoon, sometimes repeatedly, until she opens her mouth.
He described the treatment as battery, defined as unlawful and unprompted forceful physical contact.
The Appeal Court dismissed that description, accepting evidence that care home workers would not force her to accept either food or drink if Bentley kept her mouth closed.
Bridge says Bentley's situation raises important legal issues related to end-of-life care and might warrant attention from the Supreme Court of Canada. He stopped short of committing to filing an appeal in the country's highest court, saying he would wait for further instructions from Bentley's family.
A spokesman for the Euthanasia Prevention Coalition, which was an intervener in the case, applauded Tuesday's judgment, saying a successful appeal would have set a dangerous precedent forcing health-care providers to "sit back and watch patients starve to death."
"This is a clear situation of a patient who has made a clear choice to receive food and fluids and where she has not done so that decision has been respected," said Hugh Scher, a longtime human-rights lawyer and spokesman for the organization.
He commended the judge's decision to place more value on decisions made in the present over those from the past.
"It's important because it re-emphasizes the significance of consent at the time," said Scher.
Bentley is the adopted daughter of the late Charles Tysoe, a former B.C. Appeal Court judge.
News from © The Canadian Press, 2015