Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 11 - Evidence

OTTAWA, Wednesday, March 22, 2000

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-2, to facilitate the making of legitimate medical decisions regarding life-sustaining treatments and the controlling of pain, met this day at 3:34 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, our witness today is the Honourable Senator Sharon Carstairs, who is far more accustomed to dealing with this committee than am I, as she was chairman of the committee for a number of years.

Hon. Sharon Carstairs: Thank you very much, Madam Chairman.

Honourable senators, the purpose of the Medical Decisions Facilitation Act is to facilitate the making of medical decisions by patients through the protection of health care providers from criminal liability when they act in accordance with their patients' wishes. More specifically, the bill would clarify the law by protecting health care providers when they withhold or withdraw life-sustaining treatment at the request of the patient, or administer pain-relieving medication to alleviate physical pain without the intention to cause death.

This bill also provides for the Minister of Health to establish national guidelines and to promote education and training in the areas of life-sustaining medical treatment, the controlling of pain and palliative care.

Bill S-2 is the third bill of its kind to be introduced in the Senate in recent years.

On November 27, 1996, I introduced Bill S-13, to amend the Criminal Code (protection of health care providers). That bill died on the Order Paper with the federal election call in May 1997.

[Translation]

In the last session of Parliament, Senator Thérèse Lavoie-Roux introduced Bill S-29, which had the same general purpose as Bill S-13, namely the protection of patients and health care providers.

Bill S-29 died on the Order Paper with the prorogation of Parliament in September of last year. In my view, Bill S-2, the proposed Medical Decisions Facilitation Act, incorporates the best of both Bill S-13 and Bill S-29.

[English]

However, the basis of this bill is much broader than the work of Senator Lavoie-Roux and myself. Bill S-2 begins with a preamble. It is important that I read that preamble:

WHEREAS the Special Senate Committee on Euthanasia and Assisted Suicide, appointed on February 23, 1994, addressed in its proceedings the medical practices of the withholding and withdrawal of life-sustaining treatment and the provision of treatment to alleviate suffering that might result in the shortening of life;

AND WHEREAS, in its report entitled Of Life and Death dated June 6, 1995, the Committee recognized the existence of uncertainty within the medical profession and public of Canada regarding the legal consequences of these medical practices;

AND WHEREAS the Committee unanimously recommended that the Criminal Code be amended to allow health care providers to carry out these medical practices in certain cases without the fear of incurring criminal liability in order to ensure that the wishes of patients are honoured and respected;

AND WHEREAS the Committee unanimously recommended that the department of government responsible for the protection and promotion of the health of Canadians, in cooperation with the provincial authorities and associations of health care professionals, establish guidelines regarding these medical practices;

AND WHEREAS the Committee unanimously recommended increased public education and improved training of health care professionals in respect of these medical practices;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

This bill, therefore, is the direct result of the work of the Special Senate Committee on Euthanasia and Assisted Suicide and all the senators who partook in that committee. Of course, the special Senate committee was not the first to make these recommendations. The Canadian Medical Association has advocated the clarification of the criminal law in both areas since 1992. The Law Reform Commission of Canada recommended the criminal law be clarified in both areas in 1983. One should ask: Why is this bill necessary?

The special Senate committee recognized that Canadian courts have held that there is a common-law right of patients to refuse to consent to medical treatment or to demand that treatment, once commenced, be withdrawn. Cases such as Mallette v. Shulman, Nancy B. v. Hôtel-Dieu de Québec, and Rodriguez specifically recognized this right, even though the consequence of withholding or withdrawing life-sustaining treatment is death. However, the committee heard evidence from a wide variety of witnesses who testified as to the confusion that exists among health care providers and the general public regarding the patient's right to refuse to consent to medical treatment or to demand that treatment, once commenced, be withdrawn.

Dr. Ted Boadway, Director of Health Policy at the Ontario Medical Association, perhaps said it best in his testimony to the Special Senate Committee on Euthanasia and Assisted Suicide when he said:

In reality, however, the common law is not sufficiently clear to be well understood by practitioners or the general public, nor is it completely generalizable from one case to the next, thus leaving enough ambiguity in the minds of practitioners that they are uncertain of their obligations and possible legal liability for either failing to treat or treating.

Similarly, the committee recognized that the Criminal Code does not prohibit palliative care, even if it hastens the death of the patient, so long as the care is carried out in accordance with generally accepted medical practices. However, it heard evidence from many witnesses who testified that many health care providers are hesitant to provide adequate palliation and pain control because they fear criminal liability where the treatment may shorten the life of the patient, even though the intent is not to cause death. For these reasons, the special Senate committee felt that a clarification of the criminal law was necessary.

How does this bill meet the intention to clarify the criminal law? Clause 2 of the bill provides that no health care provider is guilty of an offence under the Criminal Code by reason only that the health care provider administers medication, with the intention of alleviating or removing the physical pain of a person, even though there is a risk that doing so might shorten the life of that patient.

The special Senate committee used the broader terminology "alleviation of suffering," but the wording of clause 2 narrows the scope and excludes situations where medication might be administered to alleviate emotional or psychological suffering.

However, clause 2 would not provide protection where another ground of criminal liability, such as criminal negligence, might exist. Furthermore, clause 2 specifically does not apply to situations where there is also an intention to cause death, sometimes called mercy killing.

Subclause 3(1) of the bill provides that no health care provider is guilty of an offence under the Criminal Code by reason only that they withhold or withdraw life-sustaining medical treatment from a competent person who requests the treatment to be withheld or withdrawn.

Subclause 3(2) clarifies the circumstances where a request is valid under subclause 3(1). An advance written directive made under the laws of a province will always take precedence. In the absence of an advance written directive, under the laws of a province, an informal written directive or a request made orally or by signs made at any time is a valid request if it is made in the presence of at least one witness.

Subclause 3(3) provides that a substitute request can come from a proxy, legal representative or spouse, only if the patient is incompetent and did not while competent make a valid request. Under Bill S-2, the substitute request for an incompetent person would most often be made by the person most intimately associated with the patient. However, the core of the bill supports the patient's right to make their own health care decisions in a free and informed manner.

Most provinces in Canada have provincial laws for advance directives or living wills. Under these provincial laws, a competent person can appoint a proxy to make health care decisions on their behalf in case they become incompetent to make these decisions on their own. The health care proxy is most often the person they are most intimately associated with, such as a spouse or a family member, and who they can trust to carry out their wishes.

If a patient, before they become incompetent, appointed a proxy in a living will or an advance directive, then that person would make the substitute health care decisions. If there was no proxy appointed by the person but there was a legal representative, then they would make the decisions. In both these cases, the proxy or the legal representative is almost always the person most intimately associated with the patient. In no circumstances will the health care provider make the substitute request. As well, the bill requires a witness to any request for the withholding or withdrawal of life-sustaining treatment.

Clause 6 of Bill S-2 is the most obvious example of the merging of Bill S-13 and Senator Lavoie-Roux's Bill S-29. Bill S-29 provided for the establishment of national guidelines for pain control and the withholding and withdrawal of life-sustaining treatment.

Clause 6 of the bill provides for the Minister of Health to establish national guidelines in consultation with provincial authorities and associations for the withholding and withdrawing of life-sustaining medical treatment, for the controlling of pain and for palliative care. This is because our health care delivery system is provincial and the federal government cannot make guidelines unilaterally. It must work with the provinces.

[Translation]

The bill allows for the Minister of Health to promote and encourage public education and training of health care professionals in controlling pain and palliative care. The bill further provides for the investigation, research and monitoring of the frequency and conditions of requests for the withholding and withdrawal of treatment.

The special Senate committee recognized the importance of national guidelines in these areas. Numerous witnesses before the committee recommended increased education and training for health care providers in palliative care and pain control. Almost all of the witnesses who appeared before the special Senate committee agreed that more research was necessary in these areas.

[English]

Clause 4 sets out the definitions which are similar to those found in the final report of the Special Senate Committee on Euthanasia and Assisted Suicide. For example:

"Competent" means capable of understanding the nature and consequences of the decision to be made and capable of communicating this decision.

That definition is found at page 13 of "Of Life and Death."

"Free and informed consent" means the voluntary agreement by a person who in the possession and exercise of sufficient mental capacity, as defined by an appropriate medical professional, makes an intelligent choice as to treatment options. It supposes knowledge about the consequences of having or not having the treatment and about possible alternatives. The consent must be free from coercion, duress and mistake.

That definition is found at page 15 of "Of Life and Death."

The report goes on to state:

The Committee has defined withholding life-sustaining treatment as not starting treatment that has the potential to sustain life -- for example, not instituting cardiopulmonary resuscitation (CPR); not giving a blood transfusion; not starting antibiotics; or not starting artificial hydration or nutrition....Withdrawing life-sustaining treatment is stopping treatment that has the potential to sustain life. Examples include removing a respirator or removing a gastric tube supplying artificial hydration and nutrition.

That is found at page 37 of "Of Life and Death."

The definition of health care provider recognizes that palliative care and pain control is often carried out by a nurse or other person acting on the directions of a doctor.

The objective of Bill S-2 is to implement the unanimous recommendations of the Special Senate Committee on Euthanasia and Assisted Suicide. Health care decisions are currently being made in hospitals and long-term care facilities across the country in a legislative vacuum. Even now, people who are not able to make their own health care decisions are having these decisions made for them. However, there are currently no legislative safeguards or national guidelines surrounding the issues of palliative care, pain control or the withholding or withdrawal of life-staining treatment.

Bill S-2 would put into effect certain safeguards, such as requiring there be a witness present who is not a health care provider, as well as the health care provider and the patient or substitute decision-maker, when a request for the withdrawal or withholding of life-staining medical treatment is made. It would also provide for research and education, as well as the creation of national guidelines in the areas of palliative care, pain control or the withholding or withdrawal of life-staining treatment.

If this has not been achieved in the bill as drafted, amendments are in order and are welcome. What I hope to achieve by this bill is to make for greater clarity in our system as it presently exists. If an amendment comes forward to provide that greater clarity, then I would be the first to support it.

I welcome your questions, honourable senators.

Senator Poy: Senator Carstairs, clause 2 of Bill S-2 mentions physical suffering but excludes situations where medication might be administered to alleviate emotional or psychological suffering. Can you explain that, please?

Senator Carstairs: When we originally drafted the first bill -- I had a great deal of help and certainly did not do it alone -- that was where the greatest number of concerns were raised. People thought it went too far, that there was not an ability to clearly define emotional suffering and psychological suffering. I felt, therefore, that it would be wiser to start with the notion of physical pain. My thinking was that if we dealt adequately with that and with changes to the Criminal Code and then there were pressures in the future to include emotional and psychological suffering, we could certainly move forward. I felt we had to take it one step at a time, and the concept of physical pain was the first step.

Senator Poy: If a person has a living will, does that negate the effect of Bill S-2? If you already have a living will, you know exactly what you want; it is written down. Do we then not need Bill S-2?

Senator Carstairs: No. First, not every Canadian has access to living-will legislation. At the present time, seven provinces have passed legislation, although two have not yet proclaimed it and a couple of others will proclaim it this year. New Brunswick has not yet introduced legislation but has indicated to me that they will be introducing it.

Second, the living will or advance directive works hand in hand with this legislation because one says, "This is what I want," and the other says, "This is how you can obtain it." Although the living will is there to say, "This is what I want," there are no guarantees that the physician will feel sufficiently protected to do the things that the patient has asked that physician to do.

The other thing that disturbs me greatly is that there is no connection or no protocol between one province's advance directives and another province's advance directives. If I have an advance directive from Manitoba, which I do, and I happen to be travelling in Quebec, which has very progressive advance directive legislation, I have no knowledge that they will fulfil my advance directive from Manitoba because of their concerns that I do not have a Quebec advance directive.

One of the other Senate committee recommendations was that a protocol be developed, but at this point in time no protocol has been developed.

Senator Beaudoin: I am glad that we are interested in giving effect to the 1994-95 report of our committee. I have always said that we should do something with our unanimous conclusions, which is obviously the purpose of this bill.

The two most important clauses are clauses 2 and 3. In that sense, why have you chosen to amend the Criminal Code indirectly rather than directly? In bills, we amend directly either the civil code, the common law or the criminal law. In this case we are dealing with the criminal law because this is where we have jurisdiction. There are already many sections on this subject in the Criminal Code, but you have chosen an indirect way of amending it. This may be a good approach, but it will depend on what the courts will say. You give many powers to the courts in that sense. Why have you made that choice instead of the other choice, which is more usual?

Senator Carstairs: Some of you were in the Senate when I introduced Bill S-13, and you may recall that I did take the Criminal Code route. In the subsequent bill, I moved away from that, and I would like to explain in some detail why I made that decision. There are two reasons.

First, I think it is very important to have a preamble to this bill.

There is an ongoing argument among legal draftsmen as to whether there should or should be a preamble. We are beginning to see more and more legislation with preambles. The reason for those preambles, I would suggest, is that the draftsmen want those making judgments in the future to be able to put the bill in context -- the change in context.

Unfortunately, if we had used the Criminal Code route in this case, the preamble would have disappeared. It would have become literally null and void. It would no longer have been there. That was part of the reason we decided to proceed the way we did. I felt that having a preamble and setting the context was extremely important.

The second reason, of course, is clause 6, for which I took the concept and the ideas primarily from Senator Lavoie-Roux's bill. Clause 6 provides for national guidelines. That could not be achieved as an amendment to the Criminal Code. In order to have clause 6 in the bill, we had to find a drafting method that would make both the preamble and clause 6 possible. Therefore, we took a look at other legislation, such as the Firearms Act, the Tobacco Act and the Young Offenders Act, which are all examples of the use of the criminal law power in Canada where the acts are stand-alone and are not amendments to the Criminal Code but have the effect of amending the criminal law.

Peter W. Hogg, in Constitutional Law in Canada, confirms the constitutionality of using the criminal law power to create stand-alone acts. I asked our Senate parliamentary counsel to contact James Ryan, who is an experienced legislative drafter, to ask his opinion with respect to having a stand-alone bill. I have his response to that question. If senators wish, it can be distributed to everyone. I am more than pleased to table his letter.

Senator Beaudoin: It may be easily reconciled because if the Criminal Code is indirectly amended, saying something that is positive in itself -- and this is, I think, the purpose of clauses 2 and 3 -- is quite compatible with our system of legislation.

The second question deals with clause 6. It is very important. I remember that Senator Lavoie-Roux was very impressed by the fact that we must respect the federal and province jurisdictions. Obviously, there is no problem when we are in criminal law, but when we consider health, it is another story. The law varies from one province to another.

Yesterday, we heard from the Barreau du Québec and we discussed the situation in Quebec. It is not exactly the same as in other provinces, but it is similar. We must involve the provinces because it would be unconstitutional if we did not.

My only concern with this clause is whether it is precise enough for guidelines. We will coordinate, collaborate and negotiate guidelines, but will those guidelines exist somewhere? They will be in the law. They will be in legal documents, and after collaborating with all the provinces and after the participation of provinces in their own fields, such as wills, mandates, et cetera, we will need to come to some conclusions.

What do you intend to do in that respect? Will we add something to the bill? Will we ask the provinces to legislate in their field? I think the second decision would be the good one. We should invite the provinces to do something in their own field so that we will never be accused of encroaching on provincial authority.

Senator Carstairs: Of course, you have identified the dilemma. The federal government cannot impose guidelines on the provinces. What it can do, and what we have attempted to do with this bill, is to give to the Minister of Health a mandate to negotiate and to consult with provincial authorities and associations so that a national framework can be established, which is not easily achievable thing.

National guidelines on palliative care has been ongoing for some years. My understanding is that we are coming very close to achieving those national guidelines. These guidelines are related to the issue of federal-provincial relations and are not easily achievable.

We felt that we had gone as far as we possibly could in this clause to give a power to the federal Minister of Health to negotiate and to try and bring the parties together, but if the parties will not come together, then of course we will never achieve national guidelines. However, one hopes that by giving the minister the legislative authority to convene these meetings and discussions that such guidelines will be forthcoming. That is as far as we can go. Health is a provincial jurisdiction.

Senator Beaudoin: There will still be some different views. For example, the Barreau du Québec made a good presentation yesterday when one considers that the Civil Code was amended profoundly in 1994. There are many articles in the Civil Code on this issue. In the other provinces the common-law principles are there, plus legislation, and it will continue that way.

I believe that we should do what you suggest in clause 6, but there is nothing wrong with the fact that things may vary from one province to another or from one system of law to another system of law. We have two systems, but the way the bill is drafted, such a possibility does exist.

Senator Carstairs: Just to be clear for the other members of the committee, the Barreau du Québec appeared before our committee yesterday, which is the Subcommittee on "Of Life and Death" studying the unanimous recommendations of the report of the Special Senate Committee on Euthanasia and Assisted Suicide. The Barreau du Québec appeared before us specifically on the issue of advance directive legislation in the Province of Quebec.

I also wish to add that this is not the only mandate we have given to the Minister of Health. We have also given him an education mandate and a research mandate, both of which are within his ability and power to do without any reciprocal agreement from the provinces. He can conduct national education programs. He already does that in a number of areas with respect to national health issues.

Senator Buchanan: At his peril, in many instances.

Senator Fraser: Senator Carstairs, I do not have the benefit of having worked on the original committee, so I am new to this subject, which has very troubling aspects. I suspect that everyone around this table agrees with what you are fundamentally trying to do with this bill, but clearly we want to keep it as circumscribed as possible. We are not in the business of mandating widespread euthanasia.

I am concerned that in the bill I do not find any safeguards to ensure that massive, perhaps life-threatening, pain control would be administered, or life-staining treatment would be withdrawn, to ensure that these things would not happen in cases where the person might recover. We can all imagine -- and perhaps some of us have seen -- situations in which a person was in such a terrible condition and, indeed, at risk of death that they wanted whatever relief was available and as fast as possible. If that he meant pulling out the tubes, okay. However, what if that person did recover or there was at least a reasonable chance of recovery if this very difficult treatment was persevered with? I do not see any protection here for cases like that.

Senator Carstairs: The ultimate protection is a charge of murder against the individual who has done something that is totally unjustified. That option always exists. If something is done by an inappropriate action and without proper consent, then such a charge can be laid. There is no question about that. The difficulty in putting safeguards in the legislation is that safeguards must be provided by the provinces through their guidelines as to how this can be done. We cannot establish national guidelines or even put the guidelines in the bill if we do not have the unanimous consent of the provinces. That is because medical practice, as it is practised in hospitals, in extended care homes and in seniors' institutions throughout our country, are governed not by the federal government but by the provincial governments.

Senator Fraser: I understand that. However, we are setting up specific and detailed rules pertaining to the conduct of various actors in these cases. When setting up safeguards, I do not see why we could not also add a clause to the effect that a competent physician must testify that this person's case is, in light of current medical capacity, irreversible, and that the person is not likely to have anything like a normal quality of life.

Senator Carstairs: We talk about free and informed consent in a number of places in the bill. Free and informed consent is an integral part of this legislation. In order to make free and informed consent, the patient, or in certain cases the proxy, must be given the knowledge upon which they can make that decision.

As to your specific request that the physician have a requirement, that requirement would have to be provided through a college of physicians and surgeons. By the way, the requirements of these colleges have no legal effect. They run strictly an ethical system. They cannot enforce anything because they do not have the authority. The other route to follow would be through the committees within hospitals themselves, which committees could easily be established and which, hopefully, would be established. It disturbs me to some degree that they are not presently established.

In Canada at the present time, we have a system in which patients are being removed from respirators and other forms of equipment on a daily basis. We do not know whether those patients have given free and informed consent for such removal because there is no present provision to ensure that they have given such free and informed consent. That is, in part, what I am attempting to do with this legislation.

I have enclosed in the binder provided to senators copies of the chapters from "Of Life and Death" that specifically led to the unanimous agreement which is the basis of Bill S-2. It is important that you read those chapters, because without that background it is very difficult to understand all of the testimony the committee heard, as well as the conclusions that we reached unanimously.

Senator Fraser: I want to be very sure I understand what you are saying, senator. Are you arguing that it would be ultra vires for us to include such a clause in the bill?

Senator Carstairs: I am saying that we cannot establish guidelines for the practice of medicine in any province in Canada. When I say "we," I mean the federal authority.

Senator Fraser: Would such a certification be part of the practice of medicine?

Senator Carstairs: Yes.

Senator Andreychuk: Senator Fraser talked about safeguards. Your bill is not restricted just to those people in terminal situations, is it? As I understand it, it also deals with the alleviation of pain.

Senator Carstairs: The bill itself does not make that change. Interestingly enough, a group that will appear before you and that has sent to me their amendment tries to clarify that point further. It is a very interesting amendment and one which the committee should seriously consider. It talks about life-threatening situations.

Senator Andreychuk: Your bill deals with pain alleviation, not life-threatening situations.

Senator Carstairs: We did not include that in our report. However, there are some examples. I can think of one in particular, which is called total sedation practice. A total sedation situation is one in which a patient is actually made comatose by giving them pain medication in such great quantities that they are rendered unconscious. Total sedation practices are used in two specific cases.

Dr. Keon, for example, verified yesterday that he uses a total sedation practice after cardiac surgery. He uses it because without that total sedation the patient would not remain sufficiently quiet for the heart to repair itself. When the doctors feel that has been done, then the medication is gradually removed and the patient, of course, becomes conscious.

The other time it is used is in cases where the pain is severe at the time of death. The patient is allowed to go into this unconscious state.

I like the amendment that came forward from this particular group.

Senator Roche: Senator Carstairs will recall that I approached this bill on second reading from a supportive position. However, I am concerned about an issue many people have raised concerning the bill -- that is, the slippery slope argument. I see this bill as strengthening good palliative care, which care allows a person who is going to die to die in comfort and dignity to the extent possible.

However, some see this as opening the door to assisted suicide and are afraid that, by dint of repetition, this treatment might become common in cases that are not life threatening.

I will come in a moment to a suggested amendment on that particular point, but I believe that there is in the country, among certain communities watching the progress of this bill, a concern that there is insufficient clarity with respect to the limitations of who would get this treatment.

I wonder if Senator Carstairs would make a comment of general nature, giving reassurance to those who may be questioning what might happen, indicating that there would be sufficient limitation in law so as not to open the door to assisted suicide just because we want to alleviate the pain and suffering of those who are dying.

Senator Carstairs: There is no question that this is an area of grave concern. It was an area of very grave concern to the members of the original committee because that was not what we wanted to occur. However, we heard from a number of people who indicated on a number of occasions that by virtue of the fact that we had no legislation, we already had that slippery slope and we needed the legislation to make sure that the slippery slope not only did not escalate, but, in fact, retrenched. Without the clarity of the law -- and maybe this bill is not sufficiently clear -- we could easily find ourselves hurtling down that slippery slope.

We heard testimony from many people who, in essence, stated that euthanasia and assisted suicide were going on in hospitals on a daily basis throughout this country with no guidelines and no law.

Senator Roche: Thank you for that. The chairman of the committee will probably be giving this area very full treatment as time goes on.

Under clause 2, the main clause of the bill, treatment will be provided to the person who is the object of the help. Do you think, Senator Carstairs, that it would help in clarifying everything you said above if we had an amendment to define who this person is? The words that I would suggest -- and I want to know what your reaction would be -- are that this person is a person for whom death is imminent and unavoidable. Would you give your assent to the qualifications of the person with those words, "for whom death is imminent and unavoidable"?

Senator Carstairs: It is not up to me to give consent. This committee would determine that.

Senator Roche: Would you give your support, then?

Senator Carstairs: If we are talking about the principle of what you are saying, I see it as a friendly amendment, such as the one proposed by the group I just mentioned. If it could clarify the bill, if it could limit the bill to those we most want to impact upon, then clearly we should do that.

Senator Roche: Would you give your personal support to this friendly amendment?

Senator Carstairs: Yes.

Senator Roche: Madam Chair, what is the time period and the range of witnesses the committee is intending to call on this bill?

The Chairman: The committee intends to call witnesses from as broad a range as possible. Senator Carstairs has indicated that she does not want this bill to continue any further before the committee until the Subcommittee on "Of Life and Death" has made its report in June. At that point, we would then consider witnesses, and we will certainly have a broad range appear before us.

Senator Roche: Have you constructed such a list?

The Chairman: No.

Senator Cools: On that point, how does one go about constructing the list? How do we propose that the committee will construct the list of witnesses?

The Chairman: I suggest that we make suggestions to the clerk of the committee, and the steering committee will look at them all.

Senator Carstairs: I think Senator Cools' question is very important. People have written me in support of this legislation. I have also had people write who are not supportive. I have given both sets of names to the clerk because the committee must hear from a balanced group of people on this piece of legislation. I am particularly concerned that the committee hear from the disabled community. They have very serious concerns about this legislation, and I think those concerns need to be addressed.

Senator Joyal: I was in Paris two weeks ago, and I had the rare opportunity to be there when the special task force formed under the French government in 1983 to study ethics and medical practice issued its report on euthanasia.

In that report, many principles are discussed. The issue is discussed in a European context. I would like to suggest -- and I have informed Senator Carstairs accordingly -- that the report be translated and circulated among the members of this committee because the very first points I wish to make are well discussed in the report. They are related to principles.

I should like to commend Senator Carstairs, Senator Lavoie-Roux and the members of the special Senate committee who studied this difficult issue. There is no doubt that the main principles at stake are life and the sanctity of life.

We on this committee, the Standing Senate Committee on Legal and Constitutional Affairs, in the past years have had many discussions on many pieces of legislation concerning the implications of the protection of life in Canadian society. It is important to me that the "whereases" in the preamble of the bill reaffirm fundamental principles that preside over the implementation of the bill. We should not, in any way, let people believe, in whatever is their responsibility regarding the implementation of this bill if it is adopted, that the first and foremost thing is the protection of life. If we have to transgress that principle by allowing a certain kind of medical treatment to take place, it should be under very exceptional circumstances. The objectives should be very well circumscribed and the essential elements to achieve that decision should be well understood by everyone. If there are principles or values to be stated, they should be in the bill. That is generally the objective.

Since we will have further discussions later on this year about this bill, I would ask Senator Carstairs to reflect on whether some "whereases" should be added, with some reference to the fact that in our country we follow the principle of the protection of life. To me, this is very important. As Senator Andreychuk has said, we should not signal in any way that we are opening exceptions that are too wide with respect to the interpretation of that fundamental principle.

The Chairman: Senator Joyal, how large is this report that you would like translated?

Senator Carstairs: First, let me answer that question. I have already sent the report to translation for my subcommittee. I will make sure that you are given sufficient copies to distribute to all members of your committee, Madam Chair.

The Chairman: We will distribute it to every member of the committee. We will distribute copies of the original committee report of "Of Life and Death" to the entire committee for their study before we revisit this issue.

Senator Joyal: Would Senator Carstairs consider an addition to the "whereases", restating the fundamental principles that everyone involved in the implementation of this bill should keep in mind in the decisions that might lead to the objective of the bill, which is to alleviate the suffering of a patient who may be terminally ill?

Senator Carstairs: Yes, absolutely. That is an excellent suggestion. I will look into some wording myself to see if I can bring an amendment to all of you and get one of you to move it. That is a positive suggestion.

[Translation]

Senator Joyal: It would be simpler for me to address the committee in French. As far as the bill is concerned --

[English]

How much does the bill cover?

[Translation]

I had somewhat the same reaction as my colleagues when I read clause 2. The impression I was left with is that we are casting the net very wide. If our starting position is that a fundamental principle, namely the right to life, is being transgressed, then it is important to spell out clearly what this transgression entails. The primary aim of the bill was to alleviate the suffering of terminally ill people, not the suffering of people who are merely ill, albeit perhaps in terrible pain. There is a fundamental difference between the two situations. In the first case, the death of the person is imminent and unavoidable; in the second instance, the person is in terrible pain. It is not exactly the same thing.

It is important to clearly define the two situations which clause 2 seeks to address. There are important religious principles at issue here. Some religious groups believe that suffering is the road to redemption. At one time, people who were experiencing terrible pain were told that their suffering would guarantee their salvation. Perhaps I am mocking the religious teachings of the time. However, we did at one time live according to these precepts. This is one aspect of the issue in particular that the bill seeks to address. We must be mindful of the religious or moral implications of a bill of this nature. The Senate committee that examined euthanasia understood this clearly. The French task force report that I alluded to and that was released two weeks ago was also mindful of these implications. It is important that clause 2 be a reflection of these principles and that we debate this issue.

[English]

This is fundamentally important and Canadians will have to live with that legislation. We hope it will improve the conditions of Canadians, who will all face death some day and who might have to live in an unbearable condition of suffering. They should understand exactly what we are doing under clause 2. I welcome further debate on clause 2.

The Chairman: People certainly do not want their caregivers to suffer later on for what the caregivers may have done to help them.

That really was not a question, Senator Joyal, but Senator Carstairs might like to respond.

Senator Carstairs: There is an issue in clause 2 that is very difficult to understand, and physicians do not understand it. Clause 2 states, "in dosages that might shorten the life of the patient." The 1994-95 committee that authored the report and the current committee studying the report have asked witnesses what evidence there is to indicate that these medications actually do shorten life. The answer is that they do not know. They do not think these medications shorten life at all. They believe that patients are given opiates in small dosages, and then gradually those opiates are increased. As the patients are titrated -- which is the medical term -- the body adjusts to the quantity of medication that it is absorbing. Therefore, they are not sure. They are believing less and less that these medications shorten life. You may well hear from witnesses who suggest that we remove that phrase from the bill altogether.

They do know, however, that there are some conditions in which opiates seem to have a greater effect than others: for example, patients who have respiratory problems. Apparently, opiates do not work well with these conditions as they can slow down breathing. To slow down breathing for someone who has an extreme respiratory condition may shorten his or her life.

It is, I have to tell you, a very grey area. That is why I insisted that it be left in the drafting, even though others might say it is no longer necessary and it could be removed. I do not want to take the chance in this legislation of not thoroughly covering all of the bases in this circumstance.

We want to make sure, however, that anything we do to amend this clause does not limit adequate pain treatment for people who may not be dying but who still need adequate pain treatment.

It is a very difficult area. I do not want to deny that in any way.

Senator Buchanan: The most recent case in Canada with respect to clause 2 is the so-called Morrison case in Nova Scotia. Did the committee research this case?

Senator Carstairs: The committee did not because the committee was not, quite frankly, in existence at the time of the Morrison case. However, a physician who is the head of family medicine at Dalhousie University spoke to the committee about the Morrison case.

There is a distinct difference here. What Dr. Morrison gave her patient at the very end was potassium chloride. Potassium chloride is a heart-stopping medication. It is not a medication covered under this piece of legislation.

Senator Joyal: Last summer, I read a report which I think was in The Globe and Mail to the effect that the Dutch government was introducing legislation dealing with euthanasia. Apparently, it is the first Western country to take an initiative in that regard. For the benefit of us all, it would be important to look at that legislation and consider the way they have circumscribed the elements of it. As Senator Nolin has said, the question of consent is an essential element. I do not want to spend my time discussing this matter since I believe that Senator Nolin may approach it. Our researchers should look into that legislation to study the various steps taken.

The Chairman: If Senator Carstairs does not have a copy of the legislation to which you refer, Senator Joyal, we will attempt to obtain it in a form that we can all understand.

Senator Carstairs: I do not have a copy of the bill, Madam Chair. However, it is important for you to know that that legislation has been in force and effect in Holland for some time. They did not actually amend their criminal code, but they are now looking to amend it.

During our original work in 1994-95, we held a long conference call with the people in Holland. In the report of the committee there is a detailed development of the Dutch experience, which I think members of the committee may want to read.

Senator Andreychuk: There have been some reports out of Holland about the difficulties with that legislation. If we will be talking about that legislation, we should obtain the three-year findings they compiled.

In your presentation, Senator Carstairs, you said that the special Senate committee recognized that the Criminal Code does not prohibit palliative care even if it hastens the death of a patient, so long as the care is carried out in accordance with generally accepted medical practices. However, your committee heard evidence from many witnesses who testified that many health care providers are hesitant to provide adequate palliation and pain control because they fear criminal liability where the treatment may shorten the life of a patient, even though the intent is not to cause death. That seems to be the essence of the bill. Am I correct in that?

Senator Carstairs: Absolutely.

Senator Andreychuk: Having said that, the dilemma I have with clause 2 is that it is not against the Criminal Code now. Palliative care, even if it hastens death, is not prohibited so long as it is carried out in accordance with generally accepted medical practices.

Clause 2 of the bill then states that no health care provider is guilty of an offence by reason only that the health care provider, for the purposes of alleviating the pain of a person, but not to cause death, administers medication. We do not say according to what practices. In my opinion, that seems to be the rub because the definition of what is acceptable is left wide open and the clause itself is left wide open for interpretation. If that is the case, then in my opinion it is left to the courts to become doctors. I approve of your statement, senator, but the bill leaves out the accepted proviso of "accepted medical practices." Different people are saying, "It sounds like euthanasia," which is a judgment call, not a medical call.

Senator Carstairs: Doctors indicated to us their feelings of great insecurity about giving their patients adequate amounts of pain medication. That is very interesting. Physicians who work consistently in palliative care, such as Dr. Elizabeth Latimer, who appeared before us yesterday, have no concerns at all because they do this on a daily basis. Dr. Latimer gives adequate amounts of pain medication to her patients. She really does not worry, certainly from the testimony she gave to us, about any legal liability.

The doctors who are worrying about the legal liability are those who do not deal with this issue on as nearly a frequent basis. Usually, they have had no training in palliative care. No clear guidelines have been developed for them as to what they can or cannot do. Thus, they err on the side of giving less pain medication, rather than giving adequate amounts of pain medication, because they are not convinced that there is a legal liability. There is a clear practice benefit. They know what they can do, but they hold back because they do not think the Criminal Code is sufficiently clear on this matter.

Honourable senators, we heard horror stories in 1994-95 about the number of Canadians who were dying in excruciating pain because their doctors would not give them adequate amounts of pain medication. We also learned that at that point -- and we are trying to get to the bottom of it now -- perhaps only 5 per cent or 6 per cent of Canadians had access to palliative care. The rest did not have access. Thus, the rest are being treated by their family physicians, or perhaps their specialist physician, and that specialist physician feels uncomfortable about providing adequate amounts of pain medication because of what they perceive might be a legal liability question. This is in spite of the fact that the Minister of Health, who appeared before our committee, said that they should not be concerned about that because they can provide that kind of care.

Clearly, this is why the CMA has been advocating for this change since 1992. When they came before our committee, again they advocated the need for change in the legislation. I am not talking about this bill. Let me be very clear. I am talking about the need for clarity in the existing legislation.

Senator Andreychuk: I now understand why I am receiving so many letters from people. What do you judge clause 2 against? It is not judged against accepted medical practices; it will be something in the future. I presume that the courts or departments of justice will determine this point. You quite rightly point out in your bill, senator, that clause 6 is where you might define all those generally accepted practices. However, clause 6 gives me no comfort because it is really only pious invocation to the provinces. That is how I see it. Consequently, that conundrum is left. At some point we will want to look at that.

As I understand it, the essence of this bill is to help health care providers do their job. I agree with that. I have the problem as to which standard we are now using.

In clause 2, senator, you have gone to great lengths to express that this measure is to avoid emotional and mental suffering. From my years in practice, and having heard many doctors testify, I have been told that virtually in all cases emotional and psychological pain have physical sides to them. Thus, you have not accomplished what you had intended by dropping those two elements.

Senator Carstairs: We have treated the physical side of their pain. What I did not want to do in this legislation was to broaden it to an even greater degree at this point. After all, what is emotional pain? One of the reasons I came to the conclusion I did was because of the study done on the woman in Holland.

She was allowed to be assisted in her suicide only because of her emotional suffering. She had no physical pain whatsoever, at least none that was diagnosed, but she was allowed assisted suicide in that country because of her emotional pain. I did not want to go down that way, quite frankly. That is why I limited the bill to physical pain.

Senator Andreychuk: I should like to touch on the area of proxies and the non-medical person. In my experience, we put child advocates into the legal system in North America -- and I am sure Senator Pearson would be interested in this -- in order to hear the child's voice in a courtroom. However, we very soon found out that those persons came with their own attitudes about the child's needs and we quickly stopped listening to the child's voice.

My fear here is that we will get someone other than a medical person to be a witness in the room. In the first little while, that may be a very competent, caring person but, very quickly, we will get what I call semi-professional people who will always be available around a hospital to assist. I would like some assurance that this is not where we will go.

Senator Carstairs: As we move to more advance directive legislation in the provinces, there are very clear definitions on what and who the proxies are.

One reason I did not want the physician to be the proxy was that physicians come from a vested interest, too. Clearly, the physician will explain to the patient the benefits and disadvantages of a particular type of treatment, but should he or she then be the same person who acts as the proxy for this patient? My view was, no, that another voice is needed.

One would assume that in most cases where an individual had a family member, that family member would be the proxy. We know that with homeless people, for example, there is no other person, but I still did not want the doctor alone to be making that decision on behalf of the patient. I wanted another person.

I agree with Senator Andreychuk. We may often end up with a person who has vested interests, but, for lack of a better phrase, two heads are better than one.

Senator Nolin: Senator Carstairs, thank you for your bill. It is long overdue that we look into the study made in 1994-95. I was just new in this institution when that committee was under way. I had a problem at that time and I still have that problem. It is more a technical problem than a philosophical problem.

I conducted my own field investigation when you were studying the question five or six years ago. I talked to doctors and patients and was told that this is done every day in the system. People are going through this every day, and we need to protect these people.

My concern is consent, of course, and the safeguards to be used. Senator Fraser hit the nail on the head. We will not reach a conclusion today because we will hear more witnesses. The only reason you do not have a more elaborate safeguard in your bill, Senator Carstairs, is because of the constitutional problem.

Senator Carstairs: Yes.

Senator Nolin: The person who taught me this area of constitutional law was Senator Beaudoin. I learned that when there is a clear jurisdiction, ancillary powers come with it. A law may appear to breach a provincial or other jurisdiction, but given the main jurisdiction, surrounding powers come with it.

We may hear from the experts that we can amend and include safeguards in this bill. I am referring, basically, to clause 3.

Senator Moore: Clause 2 deals with administering something. The other deals with taking away or withdrawing something.

Senator Nolin: The first one is more medical. The other relates to the civil law. Do you agree? In your bill, senator, you define "free and informed consent." That is a civil matter. What is "free"? What is "informed"? How? We must address that. I cannot agree to a law that waits for a province to fill in the hole, if there is a hole in our system. We cannot withhold the implementation of a law that waits for the province to fill the gap. Rather, we can do it do ourselves because we have the power to do it.

You may have already answered this, but my question is whether you mind if we introduce or accept amendments to build into this bill safeguards to ensure that consent, written consent, is still valid.

Senator Carstairs: Absolutely.

Senator Nolin: We want to safeguard that the advance directives are given, free and informed, by the patient. We want to ensure that there is "un délai de carence," a period of grace, and we want to be sure about all the proxy issues.

Senator Joyal: For mentally ill people and abandoned people, who will say yes?

Senator Nolin: You will not have any problem if this committee looks into amendments to build in safeguards that were thought to be impossible for constitutional reasons.

Senator Carstairs: Clearly, honourable senators, I have never believed this bill was carved in stone. One of the problems that we all have as individual senators is that we initiate an idea or an idea is initiated for us. We go to our legal drafts people within the Senate. They are hard-working, diligent people, but there are only two of them. We ask them to get some other opinions and they do get them.

We then face the particular difficulty of amending the Criminal Code. That is why I left this matter for a number of years after our initial report. The Department of Justice has stacks of legal drafters and a great number of lawyers. I would have much preferred this bill to be drafted, quite frankly, by the government and not by a lone senator.

Senator Joyal: Yet an outstanding senator.

Senator Nolin: If you want your bill, you do something.

Senator Carstairs: I introduced Bill S-13 and it died on the Order Paper. I had hoped that it would tweak the government to respond but it did not. Senator Lavoie-Roux introduced her bill and it died on the election call. That also did not tweak the government to respond. Then I thought we would go forward with this bill to see if we could once again tweak the government to respond.

If the government introduced a bill tomorrow, or at any time during your deliberations, I would be delighted to withdraw my bill. We could then make their bill the best that it could be.

I am not naive about the process. Even if we are successful in getting the bill through the Senate, it faces an enormous hurdle in the other place if, in fact, the Minister of Justice does not want it.

Senator Nolin: You do not have the problem with safeguards to guarantee the validity of the consent and the freedom to make such a decision.

Senator Carstairs: No.

The Chairman: There are also the hurdles that all senators' private bills face in the other place.

Senator Cools: Senator Carstairs, do you have any idea why the government has been so tardy in responding to the recommendations? If they do not like some of the recommendations, that is okay, but why has the government been so tardy in responding to the special Senate committee's study? Why have they been so tardy in doing whatever is required to meet the problems that you are addressing?

Senator Carstairs: Their official position, Senator Cools, is that there is no need for this legislation because adequate palliation can be given at the present time and withholding and withdrawing can be done at the present time. They feel that there is no need to change the Criminal Code.

Personally, I feel that there is simply not the political will. They know that this is an extremely controversial topic -- there is no question about that -- and they would prefer not to have to deal with it.

Senator Cools: Certainly, the government could do a lot more on the issue of providing or attempting to cause to provide more and sufficient palliative care. From what I have been led to believe, the issues seem to turn on that. Why can we not persuade the government to take the requisite action to meet the problem, which, as I understand it, is the proper provision of adequate and sufficient palliative care for those in need?

Senator Carstairs: Senator Cools, that is why there are two thrusts going on at the present time. One is this piece of legislation, but the other is the subcommittee of the Social Affairs Committee that is updating the report on "Of Life and Death," only on the unanimous sections of that report. Palliative care and the adequate provision of palliative care is a large part of that report.

I cannot speak for the other members of the committee, but I want a strong report in June that asks the very question that you are asking -- that is, why are we still not doing enough in this area?

Senator Cools: Those were my questions. I just think that if the need is so great and so vast, it should be answered.

I wanted to thank you, Senator Carstairs, for clarifying the difference in the situation with Dr. Morrison. In that instance, an injection of potassium chloride was administered. There is no accident or the element of chance with the administration of such a lethal injection.

Senator Buchanan: She was acquitted.

Senator Carstairs: She was never brought to trial.

Senator Buchanan: That case went before a pretty competent judge.

Senator Cools: In your introductory remarks, you cited a Dr. Ted Boadway, Director of Health Policy at the Ontario Medical Association. This is found at the second page of your remarks. You quoted him as saying:

Senator Carstairs, has any insight been given into what, why or where there is this lack of clarity? Is it possible to bring this clarity to physicians and practitioners without having to resort to exceptional legislation?

Senator Carstairs: In terms of the medical association -- and Dr. Boadway was speaking for them -- there was no other way to do it, except in legislation. They have tried, for example, through statements on ethics for practising physicians. The CMA has just come out with a new document on ethics that they attribute to the Standing Senate Committee on Legal and Constitutional Affairs. They state, "You were the stimulus which drove us to do this." However, there is still the reality that many doctors fear the legal liability question.

Senator Cools: The last paragraph of clause 6, paragraph (c), states:

How, constitutionally, can the Minister of Health be a superintendent over what at first glance is clearly the jurisdiction of the Attorney General of Canada? The questions of termination of life and criminal matters or exemptions from criminal matters are clearly the purview of the Attorney General and not the Minister of Health.

Senator Carstairs: We did not ask for exemptions. There was a total lack of knowledge about what is presently happening in Canada. We hear all this anecdotal evidence of the fact that treatment is withdrawn, treatment is withheld and treatment is not provided. I received a horror story in a letter the other day from a woman regarding DNR orders -- that is, "do not resuscitate" orders. They are very narrow and are supposed to mean only that should someone go into cardiac arrest, that person is not to be resuscitated. They are being used by some hospitals, according to her, anecdotally, to provide no treatment at all. In other words, if they have a DNR on their chart, they stop treating the patient, period. That is not what a DNR order is supposed to do. It is absolutely critical that we do research in this area, not from a criminal perspective, but from a knowledge perspective. That is what I was aiming for in that particular paragraph.

Senator Pearson: I am totally in favour of what you are trying to do with this bill, Senator Carstairs. Like all other members of the committee, I am wondering if there is anything that we can do to ensure that the bill will work as you intend it to work.

The question I have came from the comments of Senator Joyal regarding adding something to the preamble and whether the principles of the sanctity of life are represented.

In terms of legislation in this domain, we have to look forward to the future. One of the issues that has arisen is that it will be more and more difficult to know whether a condition is terminal. With the cloning of pigs, and so on, it is possible that life might be extended for 200-400 years. I am not sure how long. That may seem to some to be an irrelevant issue at the moment, but I think it is relevant to what we are saying. We do not want to make it more difficult for people to determine when a situation is terminal. They find it difficult enough as it is now to determine whether someone's condition is terminal. I might say that I have friends alive today, much to their delight and mine, who were considered terminal eight years ago.

The intention of this measure is to enable the giving of adequate medication and to respect the wishes of the patient. We do not want that to become so tangled in definitions that we do not know what to do.

Senator Carstairs: I agree. In the cases of Nancy B. and Quinlan, their respirators were removed. Nancy B. died within hours of the respirator having been removed. That is what the doctors thought would happen with Ms Quinlan. In fact, she went on living for years, not connected to a respirator, to which her family had determined they did not want her connected. Although we like to think of medicine as being an exact science, it is not. Most physicians agree that it is not an exact science.

Senator Moore: When I read the bill, senator, clause 2 really jumped out at me. I am struggling with the subject raised by Senator Andreychuk about generally accepted medical practices. I have been sitting here asking myself: Who or what is the authority for setting the limits of the medication that is to be administered by the caregiver? Whose call is that? Is it the caregiver's, acting under orders of the physician? I do not know if that can be defined here or not. Is it question of practising medicine? I do not know. I wonder about that.

I am looking at the clause which provides that the caregiver would not be guilty of an offence under the code. That still would not prevent a civil action. If you are seeking to provide protection, perhaps the bill does not do the job. I have asked myself if this clause is really helpful or necessary and if we can do without it.

Senator Carstairs: Senator Moore, we cannot do without it, unless we are willing to allow thousands of patients in this country to die in incredible pain. Judging by the testimony we heard, I believe there are thousands of such people.

Senator Moore: What about clause 3?

Senator Carstairs: You referred specifically to clause 2 which has to do with pain relief.

Senator Moore: Yes.

The Chairman: Senator Moore, "health care provider" is defined in clause 4. The bill is very specific as to who they would be.

Senator Carstairs: I think you should be aware, senator, that to some degree there are safeguards.

Senator Moore: A number of times, they are not nurses.

Senator Carstairs: I am talking about within the system itself.

Senator Nolin: Clause 2 is not such a big problem. The problem is with clause 3.

Senator Carstairs: Senator Moore addressed specifically the area of medication. It is important for him to understand that if medication is given, it can only be prescribed by the physician. It can be given by others, but it can only be prescribed by a physician. There are strict limits as to how much can be prescribed.

One of the issues I wanted to know more about involved the operation of a morphine pump with which the patient constantly self-injects. I found out that in a hospital setting a buzzer goes off if they start giving themselves too much medication. In a non-hospital setting, they are only entitled to receive so much at any given time. Those types of processes are put into place in order to provide guarantees.

There is no protection in a unique situation that, unfortunately, is perhaps not all that unique. I refer to a situation in which a patient goes through incredible pain because they have decided to commit suicide. Thus, they withhold their medication and collect it until they can take it all in one dose. I know of no way to protect from that happening.

Senator Joyal: Senator Carstairs, earlier a question was asked about a practice developing in the medical world whereby if someone has reached a particular age and suffers from such a disease or an accident, then treatment is withheld. Let me give you an example.

If you are 80 years old, break your hip and arrive at the hospital, you will be put on the waiting list for treatment. In fact, you will be confined. As a result, because of the limited number of care facilities and people available, you will end up dying from this broken hip.

We all know that with the baby boomers there will be an overcrowding of hospital services in the years to come. That will make the situation more and more repetitive. Have you addressed such a situation?

Senator Carstairs: We did not go into that in any detail. A few witnesses talked about it in passing.

The United Kingdom has very clear rules. In that country, you cannot have a transplant if you are over a certain age. You cannot have certain other treatments if you are over a certain age. They simply will not pay for them. If they have control over the organs, which they do on the public health side of things, they will not allow you to have one of those organs.

When a similar decision was taken here with a handicapped Down's syndrome child, the case went to court. They did not want to give the child a liver transplant. The court decided that the child should have a liver transplant, stating that such a determination had nothing to do with the child's mental capacity whatsoever.

Limiting health care expenditures is an area of grave concern. I do not want to get into a federal-provincial discussion here, but there is no question that our per capita costs on health care have declined. Yet, we have an increasingly aged population and there will be a crunch. That is why free and informed consent must be a critical part of any decision that is made. I am referring to the free consent of the patient, not of the so-called medical hierarchy or the medical system.

Senator Joyal: Regarding free and informed consent, there are, of course, people in our society who do not have relatives or families. We can mention people who are mentally ill and have been abandoned by their families in medical institutions, or people who are homeless, who live in shelters and are not known to have any relatives or caring people. If we are to address the issue of free and informed consent for such people, should the bill not take into account the capacity to have a caring person give the consent in place of the relative or the affected patient?

Senator Carstairs: That is why we have mentioned the proxy, and the proxy appointed under the laws of a particular province.

Yes, there are vulnerable people. There are homeless people and mentally challenged people. There are the physically disabled or, as one of my friends likes to say, the physically less-abled -- I like that expression much better -- many of whom have been abandoned by those who would normally care for them.

That is why we support associations which are sometimes made a proxy, associations for community living, for example, that represent these individuals.

We can only do the best we can.

I would suggest to you, Senator Joyal, that right now, unfortunately, there is no guarantee of any free and informed consent.

Senator Beaudoin: To a certain extent, we have some guidelines in clause 4 of the bill. For example, "free and informed consent" is defined, "health care provider" is defined, and "life-sustaining medical treatment" is defined. Nothing precludes us in any legislation from a certain lexicon or certain definitions.

I have learned from my experience with the first committee that the most important thing at the beginning is to have a lexicon. You may discuss ad vitam aeternam what is withholding, withdrawal, sedation, et cetera, but if there is no accord on the principles or the definition, we are discussing for nothing. If one field of study is subject to that, it is the one with which we are dealing now.

I have had many discussions with many people who say there is no difference between euthanasia and the withdrawal of an instrument at the request of the person who is competent. Very intelligent people say that, and I am scandalized all the time. I give them a copy of the report and tell them to read it. Sometimes they read it and they do not agree with the definitions. Therefore, we cannot go very far.

This bill probably should be amended to add many more definitions than the four that are in clause 4. One of them, of course, is "withdrawal of instruments," which is very important in relation to clause 3, and the other is "withholding of treatment." We have already "life-sustaining medical treatment."

To answer the question of my colleague Senator Nolin, I think that it is not impossible to have guidelines in a bill. It is difficult because we do not have to invade the provincial field, but with some imagination we may do something in this regard.

The Supreme Court said this in the case of Sue Rodriguez. They were divided five to four. In our committee, we were divided five to two on euthanasia and four to three on assisted suicide. It was very close. Things have evolved since that time.

My impression is that we need more guidelines, more definitions, and perhaps some kind of a lexicon at the beginning of such a bill.

I agree with Senator Joyal that we should have a paragraph on the value of life, et cetera. The bill is very interesting but, like anything, it may be improved. We have to think more about this issue, but that is why a subcommittee was formed to study the 1994-95 report. I understand that it is only after the report of the subcommittee that we will resume our work on this bill. If that is the case, I think we are moving in the right direction.

Senator Carstairs: If I can just add to that, Senator Beaudoin, all of the definitions here come from the special study on euthanasia and assisted suicide. We only included the definitions that we thought were relative to the bill. If the bill is amended, then more definitions will be needed. I would recommend that you use the lexicon from that special study.

Senator Joyal: In relation to Senator Beaudoin's point and my previous point, would it not be possible in the preamble to reaffirm the responsibility of the medical people not to be selective in offering medical services to people who are old or who are in a physical condition where they might be tempted to withhold treatment? This is important. If there should ever be legislation in Canada to deal with that issue, we should make it very clear that we do not want to open the door to that practice.

Senator Carstairs: I am open to all suggestions and all amendments. I would caution you to remember that medical practice is not governed by the federal government. Medical practice is governed by the provincial governments. I want you to always bear that in mind in any changes or additions that you may want to make to the bill.

Senator Poy: Senator Carstairs, I am thinking of the case of someone who is dying but who is mentally incompetent. In a case like that, would the decision be made by a family member, even if the family may not want that person to stay alive? In such a case, would the court appoint a proxy?

Senator Carstairs: In many cases where individuals are mentally incompetent, they are represented by a public trustee because the family has opted out of their lives long before this particular situation has entered into it.

That does not necessarily guarantee a lack of controversy. There was the Sawatsky case in Manitoba just a year and a half ago in which the public trustee imposed a "do not resuscitate" order, and the wife asked the courts to have it removed.

If you are looking for a guarantee of non-controversy, no guarantee exists. All we can do is try and set the rules as clearly as possible. In most cases, a family member who has been intimately involved in this person's life is, in my view, the best person to make this decision. If a person has been competent, I firmly recommend advance directives. I have one and that is why I have one. That is partly because I like to make my own decisions and partly because I wish to remove my husband and my children from the burden of making those decisions. That, to me, is the strength of the advance directive -- I am not putting them in a difficult situation.

I was put in that difficult situation for both my mother and my father. It is not something I would wish on any other human being. It is not easy to make the decision to turn off that machine.

Senator Nolin: I have a question of Senator Beaudoin. Does he agree that we can introduce, in a federal bill, some provincial jurisdiction material?

Senator Moore: I do not know about that.

Senator Beaudoin: We cannot legislate directly.

Senator Nolin: With our clear authority and jurisdiction in criminal matters, we could introduce the matter of safeguards. You raise a valid question because provincial jurisdiction already covers what we do with someone who is asked to give a consent and is not able to do it properly. Now, the question is this: Does such jurisdiction include termination? That is why I believe we have that authority and that is why I ask the question.

Senator Beaudoin: With respect to the matter of life and death, obviously the federal authority always has had a very generous power. The tendency of the jurisprudence is in favour of Parliament when death is involved.

Senator Nolin: That is why we will need to dig a larger hole in the area of safeguarding consent and who said what and who has the authority to say what.

Imagine that I have a written, general proxy from my mother. That already exists in the province of Quebec. Someone could question the validity of a general proxy. We need to cover that eventuality. The intent is good, but we will need to open a chapter of civil law to do things properly. We must do that properly. That is why I asked Senator Carstairs if she wanted that.

The Chairman: Thank you, Senator Carstairs. You have given us much food for thought.

Senator Carstairs: Thank you all. Clearly, this is an issue about which I feel passionate. I suppose I do, as do we all, come to this room with my own life experiences. Part of my life experience was, quite frankly, the report that we completed in June of 1995.

The other life experience was in May of 1980, when I realized my father was in a coma. I was in Winnipeg and I asked the doctors if it was the right time for me to come home. I was told, yes, I should come home. I stopped at the hospital to see him and then I went to visit my mother, who was also very seriously ill and died later the same year. She said to me, "Sharon, you go to the hospital and you do the right thing." That was the guidance I was given.

As Senator Buchanan knows, I am the second youngest of six children. I am not sure why I was given this particular order, but I was.

Senator Buchanan: It is because your mother knew that you would do the right thing.

Senator Carstairs: I think I was given the order because I was closest, of all the children, to my father, and my mother said, "She will go and do the right thing for her father."

The Chairman: Thank you once again, senator.

The committee adjourned.

Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs

Issue 11 - Evidence

Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs