The British Columbia Court of Appeal recently ruled on a case involving an Alzheimer’s patient and her ability to give consent. It looked at a number of questions that will be raised as Canadians come to grips with the recent Carter decision of the Supreme Court of Canada (Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII)). Mrs. Bentley had signed a document stating that she be allowed to die and not kept alive by artificial means or heroic measures if she suffered from extreme physical or mental disability. At the time of the court hearing, Mrs. Bentley was 83 years old in in advanced dementia. Her nursing home fed her by holding a spoon to her mouth and “prodding” her to eat. Her family was upset by this, and argued that this treatment amounted to battery. Battery at law is any non-trivial unwanted contact, but consent is a defence.
The Court of Appeal upheld a chambers judge’s decision that Mrs. Bentley’s capacity to consent was not an all or nothing concept and that her consent in the “here and now” could be presumed from her eating when prodded by staff. The judge wrote that “Mrs. Bentley’s previously expressed wishes are not valid in the face of her current consent.” He further found that if, in the alternative, Mrs. Bentley was not capable of giving consent, then a personal representative could make the decision, but only if feeding and hydration were defined as health care. Under B.C. law, these matters fell under personal care, and there is no guidance as to who the representative should be and the extent of their powers. The Court of Appeal’s consideration of consent, how it is expressed, how long it lasts, and how it can change with circumstances and time, are all valid questions as society looks at the other side of the equation: physician assisted death.