Jocelyn Downie examines the case of spoon feeding Ms. Bentley through a legal lens.

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Margot Bentley, a former nurse living in BC, is in a state of advanced Alzheimer’s Disease.  According to media reports, her daughter (Katherine Hammond) has requested that, consistent with Ms. Bentley’s clear prior written wishes (“no nourishment or liquids”), spoon feeding be stopped.  Fraser Health Authority has refused to either stop the spoon feeding or, in the alternative, to permit a transfer of Ms. Bentley to a facility or to her daughter’s home where her wishes will be respected.

Ms. Bentley, her family, and Fraser Health seem caught in a terrible convergence of confusion and controversy.  In an effort to work through the impasse that seems to exist between Fraser Health and Ms. Hammond, I offer the following brief analysis of the law as it applies to this case.  As this analysis shows, it is important for individuals in BC to complete “representation agreements” if they want their wishes with respect to health and personal care to be followed once they become incompetent.

Do the care providers have a duty to spoon feed Ms. Bentley? Fraser Health appears to have taken the position that they have a legal duty under the Criminal Code to provide the necessaries of life, food constitutes a necessary of life, therefore they have a legal duty to spoon feed Ms. Bentley.  However, they seem to have neglected the fact that the Criminal Code duty to provide necessaries of life is limited – failure to meet this duty only constitutes an offence under the Criminal Code if it is done “without lawful excuse.” Absence of consent or, even more pointedly, the explicit refusal of the necessaries of life through a clear and explicit instruction directive (as is the case here), is arguably a lawful excuse.  As noted by the Ontario Court of Appeal in Malette v. Shulman (a case involving an unconscious Jehovah’s Witness woman given a blood transfusion against her prior expressed wishes):

“The doctor cannot be held to have violated either his legal duty or professional responsibility towards the patient or the patient’s dependents when he honours the Jehovah’s Witness card and respects the patient’s right to control her own body in accordance with the dictates of her conscience. The onus is clearly on the patient.”

Fraser Health also appears to have taken the position that not to spoon feed Ms. Bentley would constitute neglect under the Adult Guardianship Act.  However, the Act creates a duty for Fraser Health to determine whether Ms. Bentley is in need of support and assistance and, if so, to take steps – none of which include spoon feeding her without consent from her or from a legally authorized substitute decision-maker.  It does not create a duty to spoon feed.

In sum, Fraser Health has a duty to offer and provide spoon feeding but not to force it or to spoon feed without consent from (or against the wishes of) a patient or her legally authorized substitute decision-maker.

Do the care providers need consent in order to spoon feed Ms. Bentley? Yes.  It has been reported that to feed Ms. Bentley, her care providers must touch or prod her mouth with a spoon and insert the spoon and scrape the food off into her mouth.  Under the common law on battery, as summarized by the Ontario Court of Appeal in Malette v. Shulman:

“The right of a person to control his or her own body is a concept that has long been recognized at common law. The tort of battery has traditionally protected the interest in bodily security from unwanted physical interference. Basically, any intentional nonconsensual touching which is harmful or offensive to a person’s reasonable sense of dignity is actionable.”

It is important to note here that, even if Ms. Bentley lacks decision-making capacity, touching in direct contravention of her clear prior written wishes would likely be considered by courts to be “harmful or offensive to a person’s reasonable sense of dignity”.  Therefore, the care providers in this case need consent to spoon feed Ms. Bentley.

Do the care providers have a legally valid consent to spoon feed Ms. Bentley?

From Ms. Bentley?  Arguably not.  It appears that Ms. Bentley is not currently capable of providing a legally valid consent to spoon feeding.  An adult is generally presumed to have the capacity to make health and personal care decisions.  However, this presumption is rebuttable where there is evidence of lack of capacity and, in this case, would appear to have been rebutted by the involved health care professionals with respect to the decision to eat.  Ms. Bentley’s doctor is reported to have concluded that “she doesn’t have the ability to make choice [sic]” and that opening her mouth and swallowing is mere reflex.  Significantly, Fraser Health also appears to have conceded that Ms. Bentley does not have the necessary decision-making capacity; in the course of dealing with Ms. Hammond, they are reported to have indicated that if she attempted to move Ms. Bentley from the care facility they would go to court to seek guardianship.  Since she would have to be incapable for a guardian to be appointed by the court, we can reasonably infer from this that Fraser Health believes that Ms. Bentley is incapable of making health and personal care decisions.

Furthermore, Ms. Bentley did not give consent to spoon feeding through any advance directive (indeed, quite the opposite as she explicitly rejected “nourishment and liquids” in her 1991 advance directive).

From Ms. Bentley’s daughter?  No.  Ms. Hammond has explicitly rejected spoon feeding on behalf of her mother.

From Fraser Health?  No.  Fraser Health has no decision-making authority with respect to Ms. Bentley.  It has been reported that, in explaining its position on this case, Fraser Health has referred to the Adult Guardianship Act.  However, under this Act, Fraser Health must determine whether Ms. Bentley is in need of “support and assistance” and, if she is, it may inform the Public Trustee and Guardian or investigate “to determine if the adult is abused or neglected and is unable, for any of the reasons mentioned in section 44 [in the Act], to seek support and assistance.”  If Fraser Health determines that Ms. Bentley is neglected and unable to seek support and assistance for herself, it may then prepare a “support and assistance plan” and apply to the court for an order authorizing the provision of services set out in the plan.  The Act does not give Fraser Health the authority to consent on Ms. Bentley’s behalf or to touch Ms. Bentley without a court order or a consent from a legally authorized substitute decision-maker.

From the care providers? No. Care providers cannot provide consent on behalf of a patient.  They must, except in certain limited circumstances that do not apply here (e.g., emergency, operation of a public health statute), have consent from a legally authorized substitute decision-maker or a court order.

The Court? Not yet.  The court has the authority to order a care provider to spoon feed Ms. Bentley through its parens patriae jurisdiction to act to protect those who are not capable of protecting themselves, if it considers this appropriate.  The court also has the authority to appoint a “committee of the patient” under the Patients Property Act to make decisions (including about health and personal care) on behalf of Ms. Bentley.  The person appointed would then have the legal authority to consent to or to refuse spoon feeding on behalf of Ms. Bentley.  The court also has the authority to make any order it “thinks is appropriate and in the best interests of the patient” under the Adult Guardianship Act.

So, to resolve the impasse in this case it appears that Fraser Health could: a) stop spoon feeding Ms. Bentley; b) go to court and seek an order to feed her; or c) ask the court to appoint a “committee of the patient” and then seek consent from that person.

If Fraser Health continues to spoon feed, Ms. Bentley’s family could: a) go to court to seek the appointment of a “committee of the patient” (whose decisions would be binding on Fraser Health); b) ask the court to find that spoon feeding constitutes “health care” for the purposes of the Health Care (Consent) and Care Facility (Admission) Act and direct Fraser Health to approach Ms. Bentley’s “temporary substitute decision maker” under this Act (her spouse) and follow his instructions; c) ask the court to exercise its parens patriae jurisdiction or its authority under the Adult Guardianship Act and order Fraser Health to stop spoon feeding Ms. Bentley; or d) launch a civil action against Fraser Health and the care providers alleging battery.

This case, while obviously of great significance to Ms. Bentley and her family, also has significant lessons for us all.  For those living in BC who wish to ensure that their wishes are followed if they become incompetent, the lesson is to complete a “representation agreement” in addition to an advance directive and to make sure that any advance directive meets the requirements for validity set out in the Health Care (Consent) and Care Facility (Admission) Act. For those living in other parts of the country, the lesson is to get clear on the provisions of the relevant provincial or territorial legislation on decision-making for incompetent persons and meet the validity requirements for advance directives.

Further information and useful links can be found at http://eol.law.dal.ca. (here and here)

Jocelyn Downie is a Professor of Law and Medicine at Dalhousie University, Halifax, Canada