Providing Consent to Personal Care

October 6, 2015 Noah Weisberg Capacity, Elder Law, Estate Planning, Ethical Issues, Guardianship, Health / Medical Tags: , , , , , , , , 0 Comments

A recent decision arising from the British Columbia Court of Appeal addresses the ability of an elderly Alzheimer’s patient to provide consent to personal care decisions without speaking.

Bentley v. Maplewood Seniors Care Society involves a petition brought by Margaret Bentley’s daughter and husband to prevent Maplewood, the care facility in which Margaret has been a patient since 2009, to cease providing food and water to Margaret.

At the time of the hearing, Margaret was an 83-year-old woman who had been afflicted with Alzheimer’s Disease since at least 1999.  Consequently, Margaret would sit “…slumped over in a chair or in bed most of the time, with eyes closed.  She has not spoken since 2010 and does not appear to recognize anyone”.

Margaret’s family relied on evidence from as far back as 1991, including a living will (otherwise referred to as an advance directive), expressing Margaret’s wishes that, amongst other things, if there was no reasonable expectation of recovery from extreme physical or mental disability, she be allowed to die (and not be provided with nourishment or liquids).  Interestingly, Margaret was a nurse in earlier years, who had experience with patients in ‘vegetative’ states due to Alzheimer’s Disease.  Accordingly, one may think that these decisions were well thought out.

Maplewood argued that Margaret opened her mouth to accept nourishment or liquid.  Should Margaret keep her mouth closed, as she did when at the dentist, or keep her teeth clenched, they would respect her decision and not attempt to feed her by means of a feeding tube or any other medical means.

The lower Court Judge considered various evidence from general practitioners, finding it significant that Margaret “…indicates preferences for certain flavours and eats different amounts at different times…”, and that the petitioners (family), had not established that Margaret’s behaviour was a mere reflex.

Importantly, the family did not seek to have Margaret declared incapable.  Therefore, the Court found that Margaret consented to being given food and water by holding a spoon or glass to her lips.  This did not amount to prodding and prompting.  Since Maplewood did not go further when Margaret kept her mouth closed, their actions were within the scope of Margaret’s consent.

Noah Weisberg

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