In February 2015, the Supreme Court of Canada struck down a blanket ban on physician-assisted suicide in Carter v Canada. In light of this landmark case and the reality of our country’s rapidly aging population, questions of end-of-life care and patient autonomy have been pushed to the forefront of Canada’s political and legal scene. Less than a month after the Carter decision, the British Columbia Court of Appeal released Bentley v Maplewood Seniors Care Society, a judgment that applied the common law tort of battery to the so-called “right to die”. The court in Bentley grappled with such thorny topics as how to effectively honour an individual’s wishes once she loses most cognitive capabilities, what legal steps she must take to avoid potential ambiguity in her intentions, and if caregivers are legally required to let their patients die. Though this decision did not concern physician-assisted suicide, its subject matter is essentially an operationalization of the same broad principles – and all the ethical challenges they import.
The Trial Court Decision
In 2013, Mrs. Margaret Bentley’s family filed a petition to the Supreme Court of British Columbia, seeking a declaration that would prevent the staff at Maplewood Seniors Care Society from giving her food and water. Mrs. Bentley is an 83-year-old woman suffering from the seventh stage of Alzheimer’s disease. She has not spoken since 2010 and no longer recognizes family members.
Through her work as a nurse, Mrs. Bentley had seen how Alzheimer’s patients descend into “vegetative” states. As a result, in 1991, she wrote and signed a “Statement of Wishes” requesting that if she were ever in a state where there was “no reasonable expectation of [her] recovery from extreme physical or mental disability”, she be “allowed to die and not kept alive by artificial means or ‘heroic measures’”. The Statement, signed in the presence of two witnesses, appointed her husband to serve as her “proxy for the purpose of making medical decisions” should she lose the mental faculties required for legal consent. At the Maplewood Seniors Care Society, where Mrs. Bentley has lived since 2009, her disease has progressed to the point where she cannot feed herself without manual assistance. Her family argued that the Maplewood caregivers’ manual feeding contradicts Mrs. Bentley’s statement.
The BC Supreme Court upheld the common law presumption, encoded in such legislation as the BC Representation Agreement Act, that every adult is capable of making decisions about personal and health care. Only when an adult is proven to be incapable of consent will decision-making power transfer to another person. Based on expert testimony, the trial judge found that Mrs. Bentley still had the capacity to consent to being fed, and that opening her mouth and accepting food from a caregiver was a behavioural manifestation of consent. Furthermore, even if she had been unable to consent, the judge’s finding that feeding constitutes “personal care” as opposed to “health care” means that advance directives have no binding force. Personal care directives fall outside the narrow circumstances in the Health Care (Consent) and Care Facility (Admissions) Act that permit refusal of health care. Third, the judge found the Statement of Wishes to be too ambiguous to force the caregivers at Maplewood to stop feeding Mrs. Bentley, especially in light of a later statement that used slightly different wording. Finally, the judge ruled that even if there could be a substitute decision-maker, he wouldn’t have the legal authority to make a decision care providers believe would be medically inappropriate.
Of the multiple reasons for which the trial judge dismissed the original petition, Mrs. Bentley’s family appealed on the grounds that he did not properly consider the tort of battery. They argued that the Maplewood caregivers’ “prodding” of Mrs. Bentley’s mouth with a spoon at mealtimes constituted non-trivial contact. The only defense to the tort of battery is, of course, consent. As with consent defined in the legislative context, consent in the tort of battery is presumed for all adults.
In looking specifically at this tort, the Court of Appeal again found that Mrs. Bentley had the capacity to consent, and that by opening her mouth, she was communicating approval to be fed. Furthermore, it ruled that consent in the context of battery could not be delegated or communicated in advance: it arises in the present. The Court of Appeal affirmed the lower court’s dismissal of the petition, finding consent and thus no actionable tort of battery.
What might the Bentley appeal decision, employing the same reasoning as the trial court, mean for “right to die” cases? In maintaining a restrictive definition of advance consent in decisions on medical care (which, in itself, is narrowly defined and contrasted with personal care), the BC Court of Appeal invoked subtle policy arguments. The court noted that “[i]t is a grave thing to ask or instruct caregivers to stand by and watch a patient starve to death.” It cloaked this concern in the existing BC legislative framework: in particular, within the Adult Guardianship Act that would characterize Maplewood’s staff as neglectful should they withdraw personal care assistance. This concern is undoubtedly legitimate: if the line between “personal care” and “medical care” collapses, and patients can give valid consent to be left to starve, will personal caregivers be responsible for overseeing this slow and painful process?
Furthermore, this question of advance consent takes the discussion far beyond the parameters of Carter, where the patient in question had full mental capacity. The Court of Appeal noted that “consent in the here and now” is the proper mechanism to give full expression to patient autonomy. The question thus arises about how the issue of a “right to die”, or – more narrowly – physician assisted suicide, will apply to individuals suffering from diseases that affect cognitive functioning. How will the autonomy of these patients be meaningfully protected? The Court of Appeal underlined that Bentley is not a constitutional case, and it limited its discussion to the narrow tort of battery. However, the legal questions surrounding advance consent and how provinces will adapt their current “medical decision-making” legislative webs to the post-Carter era remain open.