Who can decide whether food and water can be withheld from a terminally ill person?

  • A mentally competent person can make that decision for himself
  • A Committee may be able to make that decision for another, but the decision may be overruled.

In Bentley v. Maplewood Seniors Care Society the patient signed a Statement of Wishes in 1991 setting out her wish that, if there was no reasonable expectation of her recovery from extreme physical or mental disability she be allowed to die and not kept alive by artificial means or heroic measures.  A second statement, done some time later, specified that she not be tube-fed.  The paperwork pre-dated the enactment of the Representation Agreement Act and advance directive legislation.  Although the Statement gave her husband and daughter the power to make health care decisions for her, she did not grant them the power to make personal decisions for her.

The patient became ill with Alzheimer’s disease.  Eventually she entered stage 7 of 7 and was largely non-reactive.  The patient opened her mouth when prompted with a spoon or glass.  Sometimes she would not open her mouth.  The doctors disagreed on whether this was a reflective behaviour or whether this was a decision made by the patient.

The patient’s husband and daughter applied for an order that food and drink be withheld.  Their application was denied.

The judge decided that providing food and water was personal care, not health care.  Adults have the right to accept or refuse personal care services, including food and water.  If the adult is incapable of consenting, a substitute decision maker can give or refuse consent. 

The judge noted that competency was not an all or nothing thing – a person may be incompetent for major decisions, but competent to deal with minor things.  He decided that the patient was capable of making the decision to accept food and water and was providing her consent by opening her mouth.  However, even if she were incapable of making a decision to accept sustenance, the judge was not satisfied that the BC legislature intended to allow the withdrawal of basic personal care that is necessary to preserve life, either based on previously expressed wishes or a substitute decision makers choice.  Withdrawing that care would be neglect within the meaning of the Adult Guardianship Act.

This case illustrates the problems of trying to navigate the bundle of enactments that apply to incompetent people and end of life decisions. 

Planning for the future is not a one time event.  You should revisit your plans every 5 years to ensure that you have done all you can to control your future.  We can help.  Contact us.

Read the case:  Bentley v. Maplewood Seniors Care Society

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