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Right to die legal debate takes another turn in B.C.

Margot Bentley appeal to stop feeding denied by B.C. court

The lawyer for a family that claims their Alzheimer’s-afflicted mother is being fed against her will in a nursing home says there are grounds to take a B.C. Court of Appeal decision on the case to the Supreme Court of Canada.

Vancouver lawyer Keiran Bridge says 83-year-old Margo Bentley, who lives in an Abbotsford, B.C., care home, left written instructions that if she became terminally incapacitated she did not want to be kept alive by artificial means, including receiving “nourishment or liquids.”

Bentley is in the final stage of Alzheimer’s disease first diagnosed in 1999. She does not recognize anyone, is unresponsive and requires someone to perform all basic needs.

As a retired nurse who used to take care of dementia patients, Bentley anticipated this, said Bridge. She told her family verbally and in writing she did not want to be kept alive.

But her caregivers have been feeding her with a spoon, which her husband and daughter, her legal guardians, argued first in B.C. Supreme Court and later in the Appeal Court that this violates her express wishes.

The court in its decision Tuesday sided with the home and the Fraser Health Authority that Bentley’s living will-type instructions were not conclusive and that by opening her mouth to accept food and drink, she signalled she was giving consent.

But Bridge told Yahoo Canada News despite a unanimous ruling by the three Appeal Court justices, he believes the case could still reach Canada’s highest court.

Neither the B.C. Supreme Court nor the Appeal Court explained why they dismissed his argument that repeatedly putting a spoon to her lips when she didn’t first open her mouth constituted battery (a form of assault under common law).

"The trial judge didn’t cite any case authority and the Court of Appeal has now citied no case authority for the approach they’ve taken," Bridge said in an interview Wednesday. "So it’s an appealable point because no legal precedent has been citied for what they’ve done."

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The Supreme Court of Canada rarely agrees to hear cases that were subject to unanimous rulings at the appeal court level but Bridge said he is weighing an application if the family agrees.

“I haven’t had a chance to sit down with them and discuss it but it’s going to be considered,” he said.

Case shares common principle with Supreme Court right-to-die case

The issues in the Bentley case are not directly tied to Supreme Court’s recent decision to strike down Criminal Code bans on assisted suicide and euthanasia – known as the Carter case – but both raise the principle of personal autonomy, said Bridge.

In Carter, the high court found competent adults have the right to choose to end their lives and get help doing so if necessary.

"That’s a very powerful principle," said Bridge. "It’s been recognized at all levels of court in Canada and the Supreme Court of Canada in the Carter case reinforced that"

The Carter decision came down days before the B.C. Court of Appeal heard the arguments in the Bentley case. Bridge said he’d cited the same cases as the high court used to back its decision as part of his written argument submitted before the February hearing.

The Appeal Court made a passing reference to the Carter ruling but seemed to use it to bolster its position that Margot Bentley’s consent to starve was not clear-cut because she took nourishment when coaxed.

It rejected Bridge’s argument that repeated “prodding” by caregivers could not be interpreted after the fact as Bentley consenting to be fed because battery had already occurred.

"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," Justice Mary Newbury wrote.

“It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death. It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not.”

Bentley may have changed her mind, says anti-euthanasia advocate

And those wishes seemed to have changed since Bentley issued her instructions in the early 1990s, said Dr. Margaret Cottle, vice-president of the Anti-Euthanasia Coalition, which intervened in the case.

"It’s about that you’re allowed to change your mind," Cottle said in an interview.

Despite her experiences caring for dementia patients herself, which prompted her living-will instructions, Bentley may have chosen in the end to keep on living, said Cottle. But her condition made it impossible to communicate that wish, leaving the living will as the only guide.

"Is that [living will] allowed to trump your Charter right to life when you get there and you actually do decide in your own little way that you do want to live?" Cottle asked.

Bentley was not being force-fed, Cottle went on. Presenting the spoon to her is a normal procedure when feeding unresponsive dementia patients.

"They don’t pry her jaws open with pliers or anything like that," she said, noting evidence showed Bentley had favourite food and she stopped eating when she was full.

A court ruling in favour of the family would have had serious implications for the care of seniors, Cottle said.

"Can you imagine the chaos in nursing homes and care homes across Canada that are already understaffed now if they were able to just say, oh well, she really doesn’t want to eat … that we just send people there to starve them to death?" she said.

Bridge said there’s no doubt a person’s old written instructions are invalid if they change their mind later.

"The question is does Margot Bentley have that capacity?” he asked. “The indication is she doesn’t."

All the more reason to err on the side of life, said Cottle, who with her family looked after her father at home as he succumbed to dementia a year ago.

"When you’re not competent to make the decision we put the protection of the law over you so that no one can kill you," she said. "That’s in Carter, too."

Meanwhile, Margot Bentley’s family is watching her go through the last ugly stages of her disease.

"She has increasing muscle rigidity," said Bridge. "She’s in a fetal position and if you lie her flat on her back she remains curled up, with her feet in the air and so on.

"Her hands are curled up in a claw. She has her eyes closed. She’s absolutely unresponsive. She hasn’t said anything for five years.

"She knew what was coming and she made as clear as could be that she did not want to end up in that situation. And there she is today."