Bentley v Maplewood: Consenting to Live
The common law tort of battery is defined as any “non-trivial contact.” In medical malpractice, an action for battery may be brought where medical treatment is given without the consent of the patient. In Bentley v Maplewood, 2015 BCCA 91 [Bentley], the British Columbia Court of Appeal (“BCCA”) had to decide whether attendants in a nursing home “prodding” a patient with Alzheimer’s to eat and drink constituted “battery” (Bentley, para 10). The BCCA concluded that the patient was capable of, and indeed had provided, consent, giving the nursing home a full defence for battery.
While the case briskly dealt with the main issue at hand, it also raised questions on end-of-life care and advance directives when dealing with Alzheimer’s disease and dementia. These implications are particularly significant in light of the recent Supreme Court of Canada (“SCC”) decision in Carter v Canada (Attorney General), 2015 SCC 5 [Carter], which struck down the prohibition on physician-assisted suicide earlier this year.
Facts and Issues
Mrs. Bentley used to be a nurse. Through this job, Mrs. Bentley saw how Alzheimer’s affected her patients. She often told her family she did not want that to happen to her. In 1991, Mrs. Bentley signed a document, in the presence of two witnesses, indicating that if she were to suffer from “extreme physical or mental disability” with “no reasonable expectation” of recovery, then she should be “allowed to die and not be kept alive by artificial means or ‘heroic measures’” (Bentley, para 2). She also requested, that, under such circumstances, she not be given any “nourishment or liquids” (Bentley, para 2).
At the time of this case, Mrs. Bentley was 83 years old. She has had Alzheimer’s since at least 1999, if not earlier. She has lived in Maplewood, a care facility run by the respondents in this case, since 2009. Mrs. Bentley is in the seventh and final stage of Alzheimer’s. She has not spoken since 2010. She is unable to recognize anybody and has lost basic psychomotor skills. This means she cannot eat by herself. To assist, the staff at Maplewood place a spoon or glass on her lower lip. If she does not open her mouth, the attendant may “prod” her, sometimes repeatedly (Bentley, para 10). If, despite numerous attempts, Mrs. Bentley does not open her mouth, the attendant will not force the nourishment on her.
Mrs. Bentley’s family members – the petitioners in this case – were distressed at the thought that they were not following Mrs. Bentley’s wishes as laid out in the 1991 document. They filed a petition to the Supreme Court of British Columbia (“BCSC”) seeking to prohibit the respondents, Maplewood, from giving Mrs. Bentley food and water. One of their arguments was that an attendant prompting Mrs. Bentley to eat or drink constituted battery at common law. While this is the only issue for the BCCA to deal with, it spends a considerable portion of its decision untangling the “thicket” of statutes and regulations which guided the chambers judge’s decision, in order to determine the nature of consent (Bentley, para 5).
The Issue of Consent: The Chambers Judge’s Decision
All branches that make up the “thicket” of provincial legislation share a common feature—the presumption that every adult is capable of making decisions about his or her personal care and health care (see, for example, s 3(1) of the Health Care Consent and Care Facility Act, RSBC 1996, c 181 [HCCCFA]).
According to the chambers judge, Mrs. Bentley’s family failed to rebut this presumption. Mrs. Bentley’s capacity to consent, according to legislation, is not an “all or nothing concept” (Bentley v Maplewood Seniors Care Society, 2014 BCSC 165, para 43 [Bentley, BCSC]). She may be incapable of making some decisions but fully capable of making others. Mrs. Bentley’s actions – in showing preference for some food over others, in refusing food when she is presumably full – indicate an adult capable of making a decision on whether she wants to eat or not. While these actions may run counter to her prior written wishes, the chambers judge emphasized that “Mrs. Bentley’s previously expressed wishes are not valid in the face of her current consent” (Bentley, para 7).
The chambers judge explored the alternative – that Mrs. Bentley was not capable of giving consent. In this alternative, substitute consent could be given by a representative. This would only be the case, according to statute, if feeding Mrs. Bentley was defined as “health care.” The chambers judge found that oral nutrition and hydration more aptly fell under “personal care” rather than “health care,” using the definition within the HCCCFA.
When feeding is defined under “personal care,” there is no guidance as to who a substitute decision-maker should be and what their authority should consist of. The chambers judge noted that the written wishes of the adult incapable of making the personal care decision should be consulted. However, in Mrs. Bentley’s case, there is another layer of complexity—an additional set of instructions.
In 2011, Mr. Bentley found another document written by Mrs. Bentley, stating a slightly modified set of advance directives. In this document, Mrs. Bentley confirmed that she wished to “be allowed to die” should a physical illness render her “incapable of rational existence,” and that she did not want to be kept alive by “artificial means” (Bentley, BCSC, para 9). However, she went on to say that she would accept “basic care” under such circumstances. This would presumably include being given food and water (Bentley, BCSC, para 9).
It was unclear whether this document was written before or after the 1991 document, and as such there was confusion as to which document constituted Mrs. Bentley’s true wishes. With little guidance from written documents and with no representative allowed to refuse consent to personal care on Mrs. Bentley’s behalf, the chambers judge concluded that withdrawing food and water from someone who was incapable of making that decision themselves was paramount to “neglect” under the Adult Guardianship Act, RSBC 1996, c 6 (Bentley, para 7).
Thus, in the alternative that Mrs. Bentley is incapable of consenting to being fed, the chambers judge found that the attendants cannot withdraw nutrition and hydration from Mrs. Bentley anyway.
Feeding as Battery: The Issue Before the BCCA
The issue before the BCCA arose from an additional argument raised by Mrs. Bentley’s family in front of the chambers judge—that prodding Mrs. Bentley to eat constituted battery. Consent is a defence to battery. As such, and with the groundwork for consent laid out by the chambers judge, the BCCA explored a brief analysis of this issue. The petitioners brought forward three claims for this appeal. The first was that the chambers judge failed to address whether Mrs. Bentley had consented to being “prodded” by Maplewood attendants when feeding her.
The BCCA found that the chambers judge did in fact address this through his primary analysis that Mrs. Bentley’s actions reflected her consent to being fed. (This also dismissed the third ground of appeal brought by the petitioners.)
The second (and, in this order, last) ground of appeal brought by the petitioners is that the chambers judge erred in putting the onus on Mrs. Bentley to prove a refusal of her consent rather than on Maplewood to prove that she was consenting. The BCCA noted that the chambers judge did emphasize the statutory presumption of an adult being capable of making medical decisions. However, since the chambers judge found that Mrs. Bentley did appear to be capable of making this decision and was consenting, the BCCA concluded that the chambers judge did not err in this respect.
Commentary: Capacity to Ask for Life vs. Death
The scope of this appeal was narrow, turning on the issue of consent as a defence to battery. However, it raises some interesting questions in light of the recent and momentous SCC decision in Carter. Both cases emphasized the importance of consent. In Carter, the individual seeking to end her life must be a competent adult who “clearly consents to the termination of life and has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” (Carter, para 127). The individual must be fully informed, and free from coercion or duress.
The emphasis in Carter was that the individual seeking physician-assisted death must be shown to have “decisional capacity” (para 115). This decisional capacity is, of course, dependent on what the decision is. Choosing whether to be fed would require less capacity than choosing to end one’s life. The emphasis in Bentley, as with Carter, was given to the “wishes of the patient in the ‘here and now’” (Bentley, para 18).
The BCCA did not examine, and indeed had no need to examine, Mrs. Bentley’s directives for physician-assisted death. These sorts of examinations tend to involve drawing lines in the sand while the tide is coming in. The BCCA cautioned that it is a “grave thing … to ask or instruct caregivers to stand by and watch a patient starve to death,” and they are right (para 18). However, in the case of Mrs. Bentley, there was no question that her directives were given when she was capable and lucid.
Especially in unique cases involving dementia, it is hard to say whether nonverbal cues are an actual indication of consent, or simply reflex, as one of the experts before the chambers judge believed. The wishes of the patient in the “here and now” may not be reflective of the beliefs and directives he or she gave before the disease struck, as in Mrs. Bentley’s case. Carter does not highlight how these advance directives may be respected in cases where the patient continues to live but is unable to continue affirming her request for death.
It is unfortunate that Mrs. Bentley’s family members feel they cannot fulfill Mrs. Bentley’s directives for how she wishes to live and die. Particularly compelling is a line from Mrs. Bentley’s second written statement: she writes that, in the event of an uncertain situation, her medical attendants be reminded that she “fear[s] degradation and indignity far more than death” (Bentley, BCSC, para 9).
However, the line drawn in Bentley was reasonable: the respondents made it clear that they would not force tube feeding on Mrs. Bentley should she completely refuse being spoon-fed. And what is made even clearer from Bentley – and what is emphasized repeatedly in Carter – is the importance of absolute clarity. Mrs. Bentley’s wishes were muddled by multiple written directives and unclear language.
This clarity is important because there will always be a higher test for consent to death than for consent to life. Bentley shows this – opening one’s mouth for food can be seen as consent to being fed, and to being kept alive. Opening one’s mouth for poison, however, cannot necessarily be seen as consent to die. A high level of capacity is required to ask for death. Much less capacity is required to ask for life.