Which “self” should prevail if the future “self” is a different person? That is the question raised in Bentley v. Maplewood Seniors Care Society, a case about a woman who wished that her future self be allowed to die in the event of certain health circumstances, and her family’s attempts to uphold her wishes.
Margot Bentley used to be a nurse who worked with patients with Alzheimer’s disease. After receiving her own diagnosis of early Alzheimer’s, she told her family and executed a written document that if the time came when there was “no reasonable expectation” of her recovery from extreme physical or mental disability, that she be allowed to die. She included a list of measures to be withheld, including nourishment and liquids. Ten years later she was in the final stage of the disease. She lived at a care facility and required assistance with virtually all activities of daily living, including feeding. In 2013 her family applied to the Supreme Court of British Columbia to prevent the care home from feeding her, as was Bentley’s wish.
The judge dismissed the family’s case because, among other reasons, Bentley was not dying; there was confusion around validity of documents; adults are allowed to change their minds even after making written instructions; and, Bentley’s behaviour (opening her mouth to accept food) suggested she was capable of making the decision to accept oral nutrition and hydration. The Court was not convinced that opening her mouth was a mere reflex.
The family appealed some parts of the decision, and the B.C. Court of Appeal dismissed the case on March 3, 2015. The Court demonstrated a preference for respecting the wishes of the “present self” over the “past self”:
“ It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not.”
Although this case is not binding in Ontario it would most likely be considered if a similar issue were to arise. However, our laws governing advance directives differ and it is entirely possible that a judge in Ontario would reach a different conclusion should the same issue be litigated here.
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