Editor’s note. This was published by Advocate Daily on February 10.
Oral nutrition – like spoon feeding – should not be considered health care or medical treatment, but rather seen as basic personal care and support, says Toronto health and human rights lawyer Hugh Scher, who recently advanced this position at the Supreme Court of British Columbia.
In Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII), the family of an 84-year-old woman with advanced Alzheimer’s disease sought an order requesting that she no longer be given nourishment or liquids by staff members at The Maplewood Seniors Care Society, where the woman resides. The family stated it was their mother’s wish while she was mentally capable that she not be fed in her current condition, reads the decision.
The care centre, the Fraser Health Authority, and the Province of British Columbia opposed the petition, along with the intervenor, the Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition – BC, represented by Scher.
The B.C. court sided with the care centre, ruling the woman is capable of making the decision to accept oral nutrition and hydration and is “providing her consent through her behaviour when she accepts nourishment and liquids.”
The BC Supreme Court ruled spoon feeding is “a form of personal care, not health care,” and “withdrawing oral nutrition and hydration for an adult that is not capable of making that decision would constitute neglect within the meaning of the Adult Guardianship Act.”
The case is now heading to the B.C. Court of Appeal, and the Euthanasia Prevention Coalition is again intervening.
“The seniors’ care centre was wanting to feed her various pureed foods and desserts by spoon, not force feeding her, but if she took in the food, that was fine, but if she didn’t want it, they didn’t push it on her,” says Scher.
“She really liked her desserts so she was often keen about taking in the desserts so the question before the court was whether or not spoon feeding a person was health care, or whether it was basic personal support and basic personal care.”
“The difference is that health care could be withheld or withdrawn by way of an advance directive under the B.C. Health Care (Consent) and Care Facility (Admission) Act whereas basic personal care such as feeding is not something one could withdraw consent for in advance.”
The woman had prepared advance directive documents, but the Supreme Court considered them invalid due to lack of clarity and contradictions in the wishes, says the ruling.
“Our position on behalf of the Euthanasia Prevention Coalition is that there’s a wide body of policies both nationally and internationally that support the notion that oral nutrition and hydration – so spoon feeding and whatnot – are not properly considered health care or medical treatment, but rather are considered to be basic personal support or basic personal care,” says Scher.
“That is generally held to be the view in countries like Britain, Scotland, and in many parts of Canada. Our documentation will set out the various policies and what they state relative to this issue and the fact that there is a difference in the way that oral spoon feeding is considered, even relative to mechanical artificial feeding and artificial nutrition and hydration, which in some respects is considered to be a form of medical treatment, though others would say it is not.”
The case is one of several examples of end-of-life care issues stirring up heated debates across Canada, says Scher, who appeared at the Supreme Court of Canada on behalf of the coalition in Carter v. Canada (Attorney General) in the fall.
Another recent case saw a Winnipeg man charged with criminal negligence causing death and failing to provide the necessaries of life after the death of his 89-year-old mother. The man, who is accused of leaving his fallen, elderly mother on the floor of her home where she then died, says she did not want to continue her life.
“These cases open up the question as to how far does this end-of-life question really go?” says Scher. “Does it go to the point where we can just simply allow senior citizens to be left to lay and die on their floors at home after they’ve fallen, or are we to take appropriate care toward dignified living and dignified death by ensuring they receive appropriate palliative care, pain and symptom management, basic nutritional support and hydration in order to ensure they’re comfortable and treated where appropriate?
“Obviously, someone has the right to refuse medical treatment, but that’s somewhat different than somebody who’s willing to take in food, is agreeing to take in food but otherwise is going to be deprived of that,” says Scher.
“That raises a really serious prospect as to where we are going as society, I think, and what measures we’re prepared to accept and not accept as we consider people in vulnerable situations, whether they be terminally ill or not.”