Bentley et al. v. Maplewood Seniors Care Society et al., (2015) 368 B.C.A.C. 188 (CA)

• Judge: Newbury, Lowry and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 11, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 368 B.C.A.C. 188 (CA);2015 BCCA 91

Bentley v. Maplewood Seniors Care Soc. (2015), 368 B.C.A.C. 188 (CA);

    633 W.A.C. 188

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MR.020

Margaret Anne Bentley, by her Litigation Guardian Katherine Hammond, John Bentley and Katherine Hammond (appellants/petitioners) v. Maplewood Seniors Care Society, Fraser Health Authority and Her Majesty the Queen in Right of the Province of British Columbia (respondents/respondents)

(CA041600; 2015 BCCA 91)

Indexed As: Bentley et al. v. Maplewood Seniors Care Society et al.

British Columbia Court of Appeal

Newbury, Lowry and Chiasson, JJ.A.

March 3, 2015.

Summary:

Bentley was 83 years old. She was in the final stage of Alzheimer's Disease. She had not spoken since 2010 and did not appear to recognize anyone. In 1991, Bentley had signed a document, requesting that if the time came when there was "no reasonable expectation of my recovery from extreme physical or mental disability", she be "allowed to die and not be kept alive by artificial means or 'heroic measures'." She also requested "no electrical or mechanical resuscitation of my heart when it has stopped beating", "no nourishment or liquids", and that she be "euthanized" in the event she was unable to recognize members of her family due to mental deterioration. She named her husband or failing him, one of her daughters, to serve as her "proxy for the purpose of making medical decisions" on her behalf should she become unable to do so. Bentley was a patient at Maplewood House, a care facility. She could no longer eat independently. The Maplewood staff had been assisting her with eating and drinking by placing a spoon or glass on her lower lip. When she opened her mouth to accept nourishment or liquid, the care attendant placed the nourishment or liquid in her mouth and Bentley swallowed it. If she kept her mouth closed despite a couple of attempts, the care attendant made no attempt to force her to accept nourishment or liquid. Bentley's family filed a petition seeking declaratory relief that would prohibit the respondents from giving Bentley food and water, with the result that she would die within a few weeks. One of the declarations sought was that prompting her to eat by holding a spoon or glass to her mouth constituted battery at common law.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 165, declined to make such a declaration. The petitioners appealed only the aspect of the chambers judge's order related to the question of consent in relation to the tort of battery. They argued that the chambers judge erred by failing to address whether Bentley had consented to the process of "prodding" and "prompting" that preceded her being fed by Maplewood and that the chambers judge erred by placing the onus on the petitioners to prove a "clear refusal of consent".

The British Columbia Court of Appeal dismissed the appeal. The chambers judge did not fail to address the question of Bentley's consent to the "prompting" that preceded her being fed by her caregivers. He clearly found that she was consenting when she opened her mouth to receive food or water. The court could not say that the chambers judge erred in inferring Bentley's consent to being fed, or in rejecting the claim of battery.

Persons of Unsound Mind - Topic 1403

Treatment - General principles - Consent - Competence - See paragraphs 9 to 19.

Torts - Topic 3191

Trespass - Assault and battery - Battery - What constitutes - See paragraphs 9 to 19.

Torts - Topic 3200

Trespass - Assault and battery - Defences - Consent - See paragraphs 9 to 19.

Torts - Topic 3210

Trespass - Assault and battery - Burden of proof - See paragraph 17.

Cases Noticed:

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, refd to. [para. 9].

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 2015 SCC 5, refd to. [para. 18].

Statutes Noticed:

Adult Guardianship Act, R.S.B.C. 1996, c. 6, sect. 3(1), sect. 44 [para. 7].

Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, sect. 3(1), sect. 16, sect. 18(2), sect. 19(1), sect. 19(2) [para. 7]; sect. 19.8 [para. 18].

Representation Agreement Act, R.S.B.C. 1996, c. 405, sect. 3(1)(b), sect. 9(3) [para. 7].

Counsel:

K.A.G. Bridge, for the appellants;

D.A. Strebchuk, for the respondent, Maplewood Seniors Care Society;

P.A. Washington and E.J. Allan, for the respondent, Fraser Health Authority;

D.G. Cowper, Q.C., for the intervenors, Euthanasia Prevention Coalition and Euthanasia Prevention Coalition - BC.

This appeal was heard on February 11, 2015, at Vancouver, B.C. before Newbury, Lowry and Chiasson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Newbury, J.A., on March 3, 2015.