euthanasia: bc court of appeal rejects family\'s bid to let their mother die: read decision here

by:Lepu     2019-11-10
A family that has lost its efforts to kill the mother is considering whether to seek permission to appeal to the Supreme Court of Canada after the BC appeals court made a \"disappointing\" decision on Tuesday.
\"The judgment will be carefully reviewed and then with my family and (lawyer)
Kieran Bridge, so there is no decision at this time, \"said Catherine Hammond, 83, daughter.
Margo Bentley, one year old
Hammond said she did not think the court recognized her mother\'s very clear instructions that she wanted to be euthanasia if she reached the point where she had been there for several years.
The decision of the BC Court of Appeal was written by Judge Mary Newbury, who said: Bentley is a former nurse with Alzheimer\'s disease for 16 years.
She lives in the Abbotsford nursing home operated by the Maplewood elderly care association, although she has signed and witnessed 1991 \"wish statements\" that provide that she wishes to retain all nutrition, but she is still fed if she is unable to identify family members because of this mental illness.
Nursing staff in nursing homes have been extending Bentley\'s life. feeding her.
Although Bridge argued that tapping her mouth to let her open it constituted a battery that she did not agree with and did not agree with, Newbury said that Bentley sometimes opened her mouth to accept food, this does not mean that she is mentally incapable of making the decision.
\"The judge agrees with the lower court that Bentley is communicating her consent through her actions and that the nursing home is under an obligation under the law to provide personal care.
The court said that, under a provincial regulation called the adult custody act, the withdrawal of such assistance was similar to neglect.
While Bentley is no longer an active, creative person her husband and children know, Newbury says she agrees with Fraser Health lawyer Penny Washington, \"It is essential to respect and take care of the LadyBentley is now.
Hammond, who is also a nurse, said that the goal of health care is always to protect and sustain life and that more attention needs to be paid to hospice care because \"Both are equally important in many ways.
\"Date: 20150303 date: appellant (Petitioners)AndRespondents(Respondents)
Date of appeal: Order of the Supreme Court of British Columbia dated February 3, 2014 (
Vancouver Case No. : 2014 BCSC 165S135854). [1]Mrs.
Margo Bentley, 83year-
An old woman who has been suffering from Alzheimer\'s since she was at least 1999 years old.
She is now in the seventh and final stages of this terrible disease, meeting the following criteria: at this stage all language abilities are lost.
There is usually no speech at all-only words that are difficult to understand, and rare occurrences of words and phrases that seem to be forgotten.
The mainland of urine needs the assistance of washing and feeding.
Basic mental motor skillsg.
With the progress of this stage, the ability to walk is lost.
The brain can no longer seem to tell the body what to do.
Common rigid and developmental neuroreflex is often present. Mrs.
Most of the time, Bentley sat in a chair or bed with his eyes closed.
She has not spoken since 2010 and does not seem to know anyone. [2]
Earlier, madam.
Bentley is a nurse.
In this capacity, she saw patients who were in a \"plant state\" due to Alzheimer\'s disease.
She told her family that she did not want this to happen to her and, in fact, on 1991, she signed a document that was witnessed by two people, demanding that if there is \"no reasonable expectation for my recovery from extreme physical or mental disabilities\", she \"is allowed to die, without being held alive by human means or \"heroic measures.
She also asked for \"no electricity or mechanical recovery when my heart stops beating\", \"no nutrition or liquid\", if she could not recognize her family because of her mental deterioration, she will be \"euthanasia \".
At the end of the directive, she named her husband, or let him down, one of her daughters, if she could not act as an \"agent for making a medical decision\" on her behalf \". (Para. 19. )[3]
Starting at 2009, madam.
Bentley is a patient at Maplewood House, a nursing facility run by the Abbotsford defendant Maplewood Elderly Care Association.
The staff wake her up every day, dress her up, make sure she is clean, put her in a chair or bed, undress her every night and go to bed.
When dining, the following situations occur:
Bentley can no longer eat independently.
Maplewood\'s staff has been helping her eat and drink by placing a spoon or glass on her lower lip.
When she opens her mouth to receive nutrition or liquid, the caregiver puts nutrition or liquid into her mouth
Bentley swallowed it.
She closed her mouth despite the prompt and the paramedics would try again.
If she closed her mouth despite several attempts, the caregiver would not force her to receive nutrition or liquid. [At para. 19. ][4]Mrs.
Bentley has a loving family and she wants to express her wishes to them directly in the 1991 documents I mentioned.
To this end, on August 2013, they filed a petition with the Supreme Court of BC for declaratory relief against the respondent from giving her wife
She will die in a few weeks, which is inevitable.
One of the claims sought was to cover her mouth with a spoon or glass to prompt her to eat to form a common law battery.
The chamber judge refused to make such a statement, and this aspect of his order was the sole subject of the appeal. [5]
However, the battery did not play a prominent role in the lawyer\'s arguments at trial or in the judgment of the trial.
Instead, the focus is on the various interrelated regulations and regulations that came into force in BC on 2000, after a long period of consultation and discussion, rationalizing and clarifying the rights of the elderly and othersterm care.
These regulations include, R. S. B. C. 1996, c. 405; the R. S. B. C. 1996, c. 6; the, R. S. B. C. 1996, c. 181 (the “”); the , R. S. B. C. 1996, c. 383; the , S. B. C. 2002, c.
75 and its regulations; the , R. S. B. C. 1996, c. 70; and the R. S. B. C. 1996, c. 180. [6]
It is important to briefly explain why, in this age of patient autonomy and physical integrity, the chambers judge found that he was unable to give any relief required by these regulations.
If nothing else, his analysis suggests that those who wish to be prepared for their care and decision --
In the years of their decline, not only should their wishes be clearly recorded, but they should also be obtained about so-
Called \"living will\", agreement of representation, advance instruction and related appointment.
The legislature provides for a wide range of substantive and formal requirements related to each item in order to protect not only the caregiver, but also her caregiver.
If complied with, the court cannot suspend or ignore these requirements. (
Although the petitioner raised a constitutional challenge to some of the above laws, they did not challenge them in the courts below or in this court. )[7]
After a three-day hearing on February 3, 2014, the chamber judge issued his reasons on 2013, with an index of 2014 BCSC 165.
Here is a summary of his most important findings of facts and legal conclusions.
The emphasis is on me.
The lady\'s decision is entirely possible.
Bentley predicts that she will make the future for herself through her \"agent\", as she stated in her wish statement, which is different from the decision she is currently making.
It is clear from the above provisions that the Legislature clearly considers the possibility of side-by-side challenging the adult\'s ability, provided that her way of communication.
In fact, madam.
Bentley can communicate her decisions and preferences through non-communication.
The means of language, such as when to choose to accept and when to refuse food, does not mean that she is mentally incapable of making this decision.
In the affidavit, the petitioner stated that they no longer saw it in the Lady
Bentley is an active and creative person they know as wives and mothers.
I am grateful that Alzheimer\'s disease has brought many changes to my wife.
Including severe cognitive and physical disabilities.
However, I agree with [counsel]
Fraser Health Bureau
Who claims that it is essential to respect and care for the LadyBentley is now.
Evidence presented by the Lady
Bentley\'s limitation, for example, is that she no longer knows her family, does not speak, and has very limited physical activity, which helps me understand her current condition. . [Paras. 54-
6. key supplements. ]
. . . . . . Express preference for certain flavors and eat different amounts at different times.
Instead of communicating through behavior, this is the only way Lady
Bentley can communicate. [Para. 59; emphasis added. ]
: Although it can be seen from the words claiming to appoint her husband, or her daughter, \"as my agent, in the event that I become incompetent and unable to make such a decision for myself, make a medical decision on my behalf\"
Bentley wants her \"representative\" to have the right to make a health care decision.
In addition, it is not clear whether Mrs.
Bentley wants her \"representative\" to have the standard or broader powers, and therefore, this uncertainty makes the court exercise the power to think that despite the flaws in this document, but it is not appropriate for it to be a valid statement agreement. . [Paras. 101-2; emphasis added. ]
Although the petitioner believes
When the 1991 statement of wishes is seen as a whole, it is clear that Bentley\'s refusal to agree means \"no nutrition or liquid.
The document states that when \"there is no reasonable expectation of my recovery from extreme physical or mental disabilities, I am instructed to allow me to die, do not use the means or \"heroic measures\" to maintain life.
\"It is not clear what is the relationship between the items listed in-
E has the previous instructions.
The items listed may be examples of Mrs.
Bentley is considered \"artificial\" or \"hero\", but it is also possible that she does not want to provide the \"artificial\" or \"hero\" method of the listed items.
The items listed are unlikely to exist separately and have nothing to do with the previous instruction, as the previous instruction outlines the trigger event. .
I don\'t believe a lot of people would consider eating with a spoon or drinking with glass, even with the help of \"manual.
While \"heroic measures\" may be a common expression, it is not clear what a particular adult thinks \"hero\" is. As Ms.
According to Duthie\'s clinical ethics consultation report, the consensus in the medical community is that the assistance of oral nutrition and hydration is neither artificial nor heroic. I find that ). [Paras. 110-12. ]
If an adult has neither a Personal Guardian nor a representative who has the right to make a personal care decision, it is not clear from whom consent must be obtained.
Advance instructions must not contain instructions relating to personal care;
The scope of pre-orders is limited to health care (, s. 19. 2(1)).
There is no statutory personal care alternative consent system like the interim alternative decision maker system in health care.
I think that when an adult is unable to make a personal care decision, there is no personal guardian and there is no representation, the common law principle of personal autonomy and physical integrity requires that service providers should at least consult with friends and family of adults, who are most eligible to know what adults want, and any written wishes recorded by adults. [At paras. 123-4. ][8]
The judge of the chamber thus concluded his conclusion: The petition was dismissed in full. [9]
As mentioned, madam.
Bentley\'s family did not appeal the findings and conclusions of the vast majority of the chambers judges.
In fact, their grounds of appeal only deal with the issue of consent in relation to the common law battery infringement, which may be defined as any \"non-Trivial contact” (
See 2000 SCC 24, in the first paragraph. 16. )
Of course, consent is a defense of the battery. [10]
The reason for the appeal is: I stopped to note the contention of the Fraser Health Authority that the application for batteries cannot be raised by the petition as a matter of procedure.
While this may be correct, it is not pressed in the argument and does not need to be considered now. [11]
Obviously, at least the first and third reasons depend on whether or not the lady
Bentley agreed to get food and water (
For this reason, it was \"urged \"(Mr. Bridge’s word)
Or \"provided \"(Mr.
Strebchuk\'s words)
Food and drinks when a spoon or glass is placed on her lips.
The petitioner claimed that the judge did not find her consent to do so. [12]
With all due respect, in his reasons, he did suggest this discovery in different places. At paras. 57-
He refused, for example.
Evidence from Mrs. Edson.
Bentley doesn\'t work mentally, prefer a doctor.
O\'Connor sees her as \"capable of making this decision \".
The court went on to discuss its clear \"discovery\", I . E.
Bentley \"currently has the ability to decide to eat and drink and . . . . . . \". (Para. 60; my emphasis. )
As we have seen, the judge admitted that this conclusion effectively determined the case, but he continued to explain why, even if he found the lady
Bentley was unable to make a decision and the outcome of the petition would not be any different. (Para. 61. )[13]
The trial judge again made the decision of consent in paragraph 1.
153, as we can see, he stated his first conclusion there:
When she received nutrition and liquid, Bentley was able to take oral nutrition and hydration through her behavior decisions. [Emphasis added. ][14]
In this case, I cannot agree that the chambers judge did not resolve the lady\'s issue.
Bentley agreed to the \"tip\" before she was fed by her caregiver \".
He clearly found that she agreed when she opened her mouth to receive food or water.
Legally, such consent is a complete defense of a very technical battery that might otherwise exist.
This consent appears in the present, not in any previous written instructions, as we have seen, Madam
Bentley\'s prior written instructions are invalid with consent to the withdrawal of food and water. [15]
Sir, in his oral statement
Bridge, on behalf of the petitioner, also argued that the judge should not infer
Bentley agreed to be prompted that, from the fact of being prompted, she ate or drank until she was full or chose not to eat or drink at any given time.
The lawyer described the analysis of the court as \"reasoning \". [16]As Ms.
However, Washington noted that,
Bentley puts the spoon on her lips to eat, and this artificial way cannot be distinguished from the actual process of putting food or water in her mouth. Ms.
Washington stressed that if the time comes,
Bentley closed his mouth.
Like she did when she was visited by a dental therapist now)
Or her teeth are clenched and the respondent will respect her decision and try to feed her by feeding her esophagus or any other \"medical\" means.
Doing so will cross the line between personal care and health care and will raise many ethical and legal issues that need not be addressed here. [17]
The petitioner\'s second grounds of appeal relate to the burden of proof.
The petitioner submits that the judges of the chamber asked them to prove that \"consent was expressly refused\" rather than to ask the respondent Maplewood to prove that consent was defended.
Indeed, the chambers judge imposed the statutory presumption contained in the at s. 3(1)(b), the at s. 3(1)and the at s. 3(1)
Unless proved on the contrary, adults are presumed to have the ability to make decisions on individuals and health care-a presumption inherent in tort law.
However, I do not see any indication that it is his duty to prove it to the petitioners
Bentley refused to agree to feed.
He gave careful consideration to the evidence, in particular to the expert\'s opinion, and found that the petitioner had not fulfilled his presumed duty to refute his wife.
Whether Bentley accepts or refuses to eat or drink. (Para. 59. )
He then found the answer at all the facts she agreed.
I do not agree with this last ground of appeal. [18]
In conclusion, I stress again that the appeal is narrow in scope and that the chambers judge has no conclusion as to the documents executed by the Lady
Bentley appealed the applicability of the various statutes, or the determination of her wishes.
I recognize that the situation of my wife is very difficult.
Bentley\'s family found themselves and I appreciate their disappointment that they were unable to comply with what they thought was her wish and what they thought was still her wish.
However, it is a serious matter to ask or instruct the caregiver to stand by and watch the patient starve to death.
It is no surprise that even in the face of prior instructions, the court will endeavor to seek to determine and fulfil the wishes of the patient, whether it is clear.
This is consistent with the principle of patient autonomy also reflected in the regulations mentioned earlier (
S in particular. 19. 8 of the )
In many judicial decisions, including 2015 SCC 5, the court stressed that when assisting in the legalization of suicide, it must be conditional on the patient\'s \"express consent. (Para. 127. )[19]
I cannot say that the trial judge in this case made a mistake in inferring his wife.
Bentley agreed to be fed or refused a claim for the battery.
Thanks to all the lawyers for their help, I will dismiss the appeal.
\"Madam judge Newbury,\" I agree: \"Dear sir.
Judge Lowry, \"I agree,\" Dear Mr. Lowry.
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