This week’s B.C. Supreme Court decision about Margot Bentley had me scrambling through my living will — my Healthcare Representation Agreement — and on the phone to my lawyer.
And I am sure I’m not the only one moved to ensure that because of some oversight or vague phrasing my wishes on just how I shuffled off this mortal coil would be betrayed only to be left in the hands of faceless bureaucrats as a result of Justice Bruce Greyell’s shocking decision.
Margot Bentley is an 82-year-old woman who was diagnosed with Alzheimer’s in 1999 and is now in the seventh or final stage of the disease and living in an Abbotsford care home. The former nurse cannot verbally communicate.
She cannot recognize any of her family members. She cannot manage any of her toilet needs. And she is being kept alive by assisted feeding where she is prompted to open her mouth by being poked on her lips with a spoon or glass.
This is clearly not the state of existence Bentley had in mind when she wrote her “statement of wishes” in 1991. Excerpts were included in Greyell’s 30-page judgment where Bentley explicitly asked that she receive “no nourishment of liquid” and to be euthanized if she was “unable to recognize the members of my family.”
However the Justice denied the family’s request to stop her feeding and let her slip away. He concluded Bentley was capable of making decisions and providing her consent to feeding through her behaviour and, as a result of a second document written by Bentley after 1991, her decision regarding feeding was unclear.
How the judge got there based on the evidence provides a cautionary tale for the rest of us.
Bentley’s case was taken to court by her daughter Katherine Hammond acting as her litigation guardian and Margot’s husband John Bentley.
The respondents to the case raised by the family included the Maplewood Seniors Care Society, Fraser Health Authority and the Province of B.C. As well, there were two interveners, two Euthanasia Prevention Coalitions.
As you read through Greyell’s decision it is obvious that respondents mounted a more effective case than Bentley’s family.
That is not my view alone; it is also the view of SFU’s Dr. Rob Gordon. Among his other credentials he is a Distinguished Fellow of the Canadian Centre for Elder Law at UBC. He was also the lead author in the provincial legislation that revamped and modernized our laws around issues of living wills and elder care that went into effect in 2000.
He says the “judge came to the wrong conclusion based on insufficient evidence.” For starters, the respondents put up two experts on Alzheimer disease and behaviour, a medical doctor and a senior social worker.
As well, they produced an affidavit from a clinical nurse specialist in gerontology. The family put up Bentley’s family doctor who the Justice noted was not an expert in that area. To make matters worse, the Justice said the doctor’s view that Bentley was in a “vegetative state” was “neither useful nor accurate.”
Gordon says that although the conclusion was “wrong” and the judgment was a “shocking betrayal” of Margot Bentley’s wishes, she was the “author of her own misfortunes.” That second document written after her 1991 Statement of Wishes not only said “I fear degradation and indignity far more than death,” it also included what Gordon calls a “fatal” phrase: “I accept basic care however.”
Greyell took that to mean “personal care,” which in this province is different from “health care” and includes issues such as diet and assisted feeding where it is consensual and done in the manner it is.
To deny that, the Justice ruled, would put the care home at legal risk. Stopping feeding would, he concluded, be “medically and ethically inappropriate” and “amount to neglect.”
There will likely be an appeal of this decision. Meanwhile, when planning your living will or updating it, make sure your lawyer reads Greyell’s judgment and is familiar with the current legislation on the matter so that what is happening to Margot Bentley and her family doesn’t happen to you and yours.
