Caregivers Must Give Effect To Patients' Wishes In The 'Here And Now': Decision In Bentley V. Maplewood Seniors Care Society Upheld

On March 3, 2015 the British Columbia Court of Appeal dismissed the appeal in Bentley v. Maplewood Seniors Care Society, upholding the chambers judge's decision.1

The only issue on appeal was whether or not the chambers judge had erred in failing to make a declaration that the "prompting" of Mrs. Bentley to eat or drink by touching her lips with a spoon or glass constitutes a battery. The appellants did not appeal the chambers judge's other central findings in the case: that neither of Mrs. Bentley's written statements of wishes were sufficiently clear; that Mrs. Bentley was indeed consenting to the act of being fed; and, finally, his interpretation that the relevant legislation required her caregivers to continue to offer her food and liquids and did not permit substitute decision-makers to consent to the withdrawal of personal care such as oral feeding that would lead to her death..

Madam Justice Newbury (with Mr. Justice Lowry and Mr. Justice Chiasson concurring) summarized all the relevant findings of the chambers judge and held that he had found at various points throughout his reasons that Mrs. Bentley is consenting to being given food and water and that meant there was no battery:

In law, such consent is a complete defence to the very technical battery that might otherwise exist. This consent arises in the present, rather than in any previous written instruction, and as we have seen, Mrs. Bentley's previous written directives were not effective as a consent to the withdrawal of food and water.2 The respondents made it clear that if and when Mrs. Bentley refuses feeding by keeping her mouth closed, they would respect that decision and would not seek to intervene by medical means such as tube feeding. The distinction relied on by the chambers judge was that such medical interventions were clearly "health care" measures which Mrs. Bentley or her substitute decision maker could refuse in advance, while oral feeding was "personal care", which she could not.

The other ground of appeal was whether the chambers judge had improperly placed an onus on the petitioners to prove a lack of consent. The Court found that the chambers judge appropriately applied the presumption present in both statute and tort law that unless the contrary is demonstrated, an adult is presumed to be capable of making decisions. At the hearing before the chambers judge, the petitioners did not successfully rebut this presumption.3 The chambers judge preferred the...