The British Columbia Supreme Court issued a wise and compassionate decision in the case of ailing senior Margot Bentley last week — one that clearly demonstrates how people like her can be protected under a well-crafted law that allows others the right to assisted suicide.
Bentley is in the final stages of dementia — a heartbreaking and tragic place to be. Her husband and daughter wanted staff at the Abbotsford care home where she lives to stop giving her food and water, and let her die. They said that a “living will” she made many years ago, along with another document she wrote when she was diagnosed with dementia, stipulated she didn’t want to be kept alive by artificial means and that included no nourishment or liquids.
The care home and the Fraser Health Authority quite rightly argued that to deprive Bentley of food and water would cause her to suffer, would lead to her death by starvation and dehydration, and contravened B.C.’s Adult Guardianship Act, as well as the law against assisted suicide.
Judge Bruce Greyell issued an impressively reasoned judgment that could serve as a model for any legislators pondering what a future assisted-suicide law might look like. Greyell found that food and drink do not constitute health care; they fall into the category of personal care. Since Bentley must be fed with a spoon, to withdraw her food would be neglect.
He noted that while she can no longer speak, she communicates through behaviour. In one instance, when she’d had enough of her chicken and potatoes, she refused to open her mouth for the spoon, but when her caregiver offered her dessert, she opened her mouth. Nor would she open her mouth for a dental hygienist.
Thus, Greyell was scrupulous about making the discernment of Bentley’s wishes paramount over her family’s interpretation of them.
Greyell noted that Bentley’s living will and the other document were vague, and it is possible that when Bentley wrote she didn’t want nourishment, she was referring only to tube feeding. “I do not believe many people would consider eating with a spoon or drinking from a glass, even when done with assistance, ‘artificial.’ While ‘heroic measures’ may be a commonly used expression, it does not communicate with any degree of clarity what a particular adult considers ‘heroic,’ ” Greyell wrote.
He also highlighted problems with her living will: “An advance directive cannot appoint a decision-maker who can give or refuse consent to health care for an adult upon future incapacity.” He wrote that people can change their minds, and Bentley consented to live by showing a desire for food.
“It is entirely possible that the decisions Mrs. Bentley predicted she would make for herself in the future through her ‘proxies’ … as set out in her statements of wishes are different than the decisions she is currently making. All adults are entitled to change their minds subsequent to creating written instructions, which is one of the risks associated with written instructions for the future. This court must consider the possibility that Mrs. Bentley’s previously expressed wishes are not valid in the face of her current consent,” Greyell wrote.
He also noted that “despite her cognitive and physical disabilities, Mrs. Bentley is not dying.” He wrote that he agreed it is important “to respect and care for the person that Mrs. Bentley is now.”
The fact that she is not actively dying makes calling this a “right-to-die” case ridiculous.
The Bentley case is vastly different from that of someone who has ALS, cancer or some other terminal disease that does not affect mental capability, and who has unwaveringly expressed a wish in his or her current state to die. Legislation needn’t be the slippery slope to a free-for-all of euthanasia that those opposed fear will happen, nor should it ever give a third party the right to decide someone else should die.
The law can be written so that it respects and cares for people in Bentley’s situation, erring on the side of life and of uncertainty, while also respecting and caring for those who, fully cognizant of their own hopeless situations, do want to choose how and when they will die.
