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British Columbia Patients’ wishes have to be respected, disappointed daughter says

Katherine Hammond holds a photo of her 82-year-old mother Margaret Bentley as she stands for a photograph at her home in Ladner, B.C., on Tuesday February 4, 2014. Bentley has advanced Alzheimer's and her daughter lost a court battle to have a judge honour her mother's living will by ordering a stop to spoon feeding.

DARRYL DYCK/THE GLOBE AND MAIL

Living wills must be specific or risk being disregarded, according to a B.C. court judgment that rejected a daughter's attempt to end the spoon feeding of her immobilized and unresponsive mother.

Margaret Bentley has advanced Alzheimer's disease, but before her illness became severe, she made two "statements of wishes" – living wills. Her daughter, Katherine Hammond, said her mother's intentions were very clear that she did not want to be kept alive by "artificial or heroic means," and the family argued in court that this includes spoon feeding.

But Justice Bruce Greyall of B.C.'s Supreme Court concluded that by sometimes opening her mouth for the food, Mrs. Bentley is consenting, and her instructions do not apply.

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Ms. Hammond said the judge's ruling has left the family shocked and devastated that her mother's wishes are not being honoured.

"Patient's rights need to be respected," she said. "Doctors have to be supported without fear of litigation in honouring their patient's wishes. I think these are huge issues for all of us, not just my poor mom."

Kieran Bridge, the lawyer who represented Ms. Hammond and her father, said the decision sets an "extremely high" bar for how judges interpret living wills. "Anyone who has a living will, in light of this decision, should speak with his or her lawyer soon," he said. "The precedent it seems to set is a very high threshold for the amount of certainty and clarity that's required in someone's living will. Otherwise, the court will say it's just not sufficiently clear there and it can't be implemented."

Ms. Hammond and her father, John Bentley, brought the case to court after battling with the Maplewood House and the Fraser Health Authority over Mrs. Bentley's care since 2011.

Justice Greyall found that spoon feeding was "personal care" and not "health care," a decision that sets a precedent for future right-to-die cases.

Justice Greyall found health care cannot be provided without the consent of the patient. If a patient is unable to give it, a representative or a living will is consulted.

But personal care is different, Justice Greyall ruled, and cannot be denied through a representative or a living will. That means that even if Mrs. Bentley was found incapable of giving consent, her family still lacked the authority to refuse permission.

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"I do not believe many people would consider eating with a spoon or drinking from a glass, even when done with assistance, artificial," he wrote. "While heroic measures may be a commonly used expression, it does not communicate with any degree of clarity what a particular adult considers heroic."

Justice Greyall went on to say that the medical community commonly believes that help with eating and drinking is not extreme or interventionist.

Rob Gordon of Simon Fraser University, who co-wrote the legislation on living wills in B.C., said people who have them "had better go to a notary, or a lawyer, and redraft their documents."

He said the decision requires a level of precision not previously spelled out.

"It's fairly clear that unless those documents were completed precisely to the letter, and that there is no ambiguity in the documents, then otherwise the documents would not be safe," he said. "For a judge to decide that somebody at stage 7 Alzheimer's disease is capable of making decisions, on the basis of whether or not they make choices about food, seems to me to be highly problematic."

The case is one of several in British Columbia challenging laws on the right to die.

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Last month, the Supreme Court of Canada agreed to take another look at the right to assisted suicide after the B.C. Supreme Court struck down Canada's laws against it. Justice Lynn Smith ruled the legal, social and medical context around assisted suicide had changed since Canada's high court upheld the laws against it in the Sue Rodriguez case in 1993.

Quebec is expected to approve legislation this month to set the legal terms for euthanasia. The law would allow terminally ill, mentally competent patients to exercise their right to die under medical and legal guidelines.

Mrs. Bentley's family attempted to move her into a palliative-care facility earlier in the year, but Maplewood staff had been advised to contact police to prevent that.

Fraser Health said "Mrs. Bentley's comfort and care remains our primary focus, and we are confident that we can work together with her family to achieve this in a manner that, as far as legally possible, respects her expressed wishes for her final days."

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