Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 8 - Evidence - May 4, 2016
OTTAWA, Wednesday, May 4, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 2:02 p.m. to examine the subject matter of Bill C-14, An Act to amend the Criminal Code and make related amendments to other Acts (medical assistance in dying).
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, colleagues, invited guests, members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today we begin our hearings for our pre-study of Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).
To start things off we have the Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould. Joining her at the table from the Department of Justice are William Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada; Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector; Laurie Wright, Assistant Deputy Minister, Public Law and Legislative Services Sector; Joanne Klineberg, Senior Counsel, Criminal Law Policy Section; and Jeanette Ettel, Senior Counsel, Human Rights Law Section, Public Law and Legislative Service Sector.
The minister has agreed to be with us today, and we've done a rejigging of the schedule. Once the minister's 90 minutes are complete and she departs, the Minister of Health will then take over and make her presentation. We're going to ask officials from both Justice and Health to remain once the ministers have departed so that committee members may have an opportunity to get into greater detail.
Minister, welcome. We appreciate you being here, and the floor is yours.
Hon. Jody Wilson-Raybould, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you for that introduction. I certainly want to acknowledge you, Mr. Chair, and all honourable senators around the table. It is my pleasure to be here, and I look forward to engaging in discussion.
I wanted to provide some opening remarks and again thank you for providing me the opportunity to speak to Bill C-14, which as we know responds to the Supreme Court of Canada's unanimous decision in Carter v. Canada last year. The bill introduces a federal framework around medical assistance in dying.
Medical assistance in dying is a complex and deeply personal issue. In crafting this new law, the Supreme Court of Canada recognized in Carter that Parliament is called upon to consider and carefully weigh many diverse and important interests, including respecting personal autonomy, protection of the vulnerable, and ensuring that the decriminalization of medical assistance in dying does not interfere with suicide prevention, respect for Canadians with disabilities and promoting well-being more generally.
Bill C-14 would establish criminal law rules regarding medical assistance in dying that address eligibility, procedural safeguards, and the framework for a monitoring system. The proposed legislation would reenact sections 14 and 241(b) of the Criminal Code so that it would continue to be a crime to assist another person to die or to cause another person's death with their consent, except if either of these actions were done in accordance with the rules for medical assistance in dying as set out in this bill.
Bill C-14 would exempt physicians and authorized nurse practitioners from criminal liability if they provide medical assistance in dying to an eligible person in accordance with the procedural safeguards in the legislation. It would also exempt others who might be involved in this process, such as pharmacists who fill out the prescription for medication. Importantly, the bill also includes a parliamentary review five years after coming into force.
The government chose this approach after thoroughly considering the full range of potential options for medical assistance in dying in terms of the regime. As noted in our legislative background paper, which I tabled at second reading, this included analyzing and comparing regimes from other jurisdictions, including Quebec's legislation, certain American states, several European countries, and the country of Colombia, among others.
The government also relied on the consultations conducted in this country, including the work of the special joint committee, the external panel, the Provincial-Territorial Expert Advisory Group, and Quebec's multi-year study that informed the development of its own legislation in that province. We also engaged and consulted with a wide array of stakeholders.
With the benefit of all this evidence and knowledge, which exceeds even the detailed record that was before the court in the Carter case, the government has thoughtfully addressed this issue.
Bill C-14 would allow for greater flexibility than the laws that exist in the United States that are limited to terminally ill patients. At the same time, it does not go as far as some of the more permissive regimes in European countries. As the court noted in Carter, complex regulatory regimes such as this are better created by Parliament than by the courts. It is a fair, practical and balanced approach.
In terms of eligibility, I am aware that Bill C-14 would take a different approach than that suggested by the majority report of the special joint committee. Some have raised questions about whether Bill C-14 would comply with the Carter decision and the Charter of Rights and Freedoms, and I would like to address those concerns.
The bill was deliberately drafted to respond to the factual circumstances that were the focus of the Carter case, where the court only heard evidence about people with late-stage incurable illnesses who were in physical decline and whose natural deaths were approaching. The Supreme Court said that a complete prohibition on medical assistance in dying in the Criminal Code was a violation of Charter rights for persons in those circumstances.
Accordingly, our government has decided that issues that were beyond the circumstances and evidence considered by the court in Carter, including eligibility of people under 18, advance requests, and mental illness as a sole basis for the request should be studied further and are not included in Bill C-14. This further study is warranted as these complex issues raise distinct legal, ethical and practical dimensions that the Supreme Court of Canada did not consider.
In terms of so-called mature minors, we are mindful of the evidence heard at the special joint committee that more study is needed. Given the irrevocable nature of the procedure and the fact that minors can be particularly vulnerable by virtue of their age, especially when they are seriously ill, a cautious approach is warranted at this time.
In terms of advance requests, when a person would be unable to confirm their wishes at the time that the medical assistance in dying would be provided, the risks of error and abuse increase. The Supreme Court of Canada recognized in its 2011 J.A. decision that a person cannot consent in advance to sexual activity that would take place when they are unconscious. The court noted that the person would not be able to withdraw consent if they subsequently had changed their mind. The same concerns, I would submit, arise with respect to advance requests for medical assistance in dying where the person cannot expressly confirm or withdraw their consent.
In practical terms, in the very few jurisdictions where advance requests for medical assistance in dying are allowed, few physicians are willing to perform medical assistance in dying under those ethically difficult circumstances. Further study of this complex issue, which was not addressed in the court decision in Carter, is warranted.
With respect to mental illness as the sole basis for the request, this issue is especially complex. First, I want to emphasize that the bill does not discriminate against people with mental illness. They would have the right to apply for medical assistance in dying on the same terms as all other Canadians and would able to access it if they met all of the eligibility criteria. However, our government is mindful that allowing assisted dying for persons solely on the basis of a diagnosis of mental illness could harm efforts to promote well-being and discourage suicide more generally.
If mental illness is permitted as the sole basis for medical assistance in dying being provided, and if eligibility was not restricted to persons whose deaths have become reasonably foreseeable, it would be difficult to limit eligibility at all, on any principled basis. For example, it would be arbitrary to permit access to medical assistance in dying for people with mental illness alone but to then exclude persons with severe, but non life-threatening, physical disabilities or persons who live with other forms of suffering.
Highly permissive assisted dying regimes tend to privilege personal autonomy above all other rights and interests, which is not consistent with the Charter nor good public policy. Parliament's task, as noted by the Supreme Court of Canada, is to:
. . . weigh and balance the perspective of those who might be at risk in a permissive regime against that of those who seek assistance in dying.
In order to meet this challenge, we must carefully consider all of the relevant interests at stake, not simply autonomy on its own. By focusing on the factual circumstances in Carter, Bill C-14 respects all of these rights and interests. The Supreme Court of Canada noted in Carter that a complex regulatory regime designed by Parliament would receive a high degree of deference from the courts. I am confident that the fair and balanced approach in this bill will withstand Charter scrutiny.
Because the purpose of the legislation requires that a person's death be reasonably foreseeable, it provides health care practitioners with flexibility to take into account all of the person's medical circumstances. By defining the term "grievous and irremediable medical condition,'' the bill ensures that all competent adults who are in decline while on a path towards their natural death would be able to attain medical assistance in dying whether or not they suffer from a fatal or terminal condition.
The legislation also contains the phrase "without a prognosis necessarily having been made as to the specific length of time that they have remaining,'' which signals that eligibility does not depend on a person having a certain number of weeks or months left to live, as in certain American jurisdictions, but only that their death be reasonably foreseeable.
Finally, I want to emphasize the importance of having a legislative response in place by June 6, 2016, when the court's declaration of invalidity expires. Without a new law in place on June 6, the parameters of the Carter decision would apply, but the scope of the decision is uncertain in several respects and, as a result, there would be uncertainty as to how it would be applied in practice. Assuming for a moment that the Carter decision was read down, sections 14 and 241(b) of the Criminal Code — so that, except for medical assistance in dying, these criminal laws would be in force — significant uncertainty would still remain.
First, in the medical community, there is no common understanding of what a grievous and irremediable medical condition is. As such, it would be difficult for a patient who would be eligible under Bill C-14 to access medical assistance in dying. Without a clear federal law in place, physicians who may otherwise be willing to provide medical assist assistance in dying could refuse to do so because of the uncertainty.
As well, failing to define the Carter parameters in federal legislation could lead to a wide variation of how eligibility is applied, not only between provinces or regimes but within them. Access in rural and remote areas would be negatively affected, not only because physicians may be unwilling to provide medical assistance in dying in such an uncertain legal environment, but also because under the Carter decision nurse practitioners are allowed to provide assistance.
Second, the current interim court approval process will end as of June 6. Outside of the province of Quebec, there would, therefore, be no legally binding framework to govern medical assistance in dying. In other words, there would be no mandatory procedural safeguards to prevent abuses and to protect vulnerable persons.
Guidelines published by medical regulators are not binding nor are they uniform, which further risks creating a patchwork across Canada. This could pose serious public safety risks. For instance, a patient could both request and receive medical assistance in dying on the same day. Without going through an exhaustive list of risks, needless to say it would be irresponsible to let June 6 come and go without a federal law in place.
As the court made clear in Carter, the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards. Bill C-14 provides a responsible and balanced framework that limits those risks and puts in place those safeguards.
I would welcome the opportunity to discuss the bill and, certainly, to contribute to your study of this legislation. The approach that we took in Bill C-14 responds to the Carter decision with sensitivity on all of the issues that were before the court in that case, and creates a responsible and fair legal framework to permit medical assistance in dying across Canada for the first time in our country's history. This is, has been and will continue to be a transformational discussion.
Thank you for allowing me to make some opening remarks. I look forward to questions.
The Chair: Thank you, minister. We will begin questions with the committee's deputy chair, Senator Jaffer.
Senator Jaffer: Minister, thank you for your presence here today. You certainly are not new to Senate hearings. You have often appeared at the Human Rights Committee hearings, but now you are here in a different role, so we welcome you.
Minister, I want first a clarification of the remarks you made. You said that you looked at the Carter decision, but although it says Carter, it really applies to circumstances of Gloria Taylor. Are you saying that you looked at the specific circumstances of the health of Gloria Taylor and that that was the basis of your decision, not the Carter decision?
Ms. Wilson-Raybould: Thank you for the question, senator. It's indeed a pleasure to be back before you.
We read carefully the decision in Carter. As I said in my remarks, we put forward Bill C-14 to respond to the specific circumstances as articulated in Carter.
Throughout the decision, in many different places, the court referred to Gloria Taylor and people like her. Our legislation responds to individuals who are approaching the end of their lives and suffering from a grievous and irremediable medical condition, where death is reasonably foreseeable. I am confident that our legislation responds to Gloria Taylor and also responds to Kay Carter's circumstances.
Senator McIntyre: Thank you, minister, for your presentation and for being here.
As you know, the Supreme Court, in both the Rodriguez and Carter decisions, were very much concerned with the issue of procedural safeguards on medical aid in dying. So were Parliament's joint committee and the Provincial- Territorial Expert Advisory Group. The bill addresses those concerns. As a matter of fact, I note that there are a number of procedural requirements that Bill C-14 introduces to safeguard the medical aid in dying process.
Minister, my question has to do with federal safeguards as opposed to provincial and territorial safeguards. That said, if you are satisfied that a province or territory enacts safeguards that are substantially equivalent to the federal safeguards, would the federal law apply in that province or territory? Likewise, if you're not satisfied, how would the federal law apply in those respective jurisdictions?
Ms. Wilson-Raybould: Thank you for the question, senator.
Bill C-14 is an exercise of the criminal law power. In advance of introducing this proposed legislation, I had the opportunity, as did my colleague the Minister of Health, to speak with our counterparts in the provinces and territories. I had the opportunity to speak to all of the Attorneys General on this matter.
The consensus was that the provinces and territories were looking for federal leadership with respect to medical assistance in dying. We reviewed all of the reports that you referenced, sir, and reviewed in great detail the recommendations of the special joint committee in terms of safeguards.
Within Bill C-14, we have put in place those safeguards — requiring two medical practitioners, requiring two independent witnesses — and the additional safeguards that are articulated in this piece of legislation, all of which will apply in each jurisdiction across the country in terms of what needs to be addressed by medical practitioners in order to, one, determine eligibility and, two, to provide the necessary safeguards to ensure that we are doing as much as we can to protect the vulnerable.
The provinces and territories, having to comply with the criminal law, will have the ability to institute and work with their medical regulators and others to provide the space that they deem appropriate within their own jurisdictions.
Senator Cowan: Welcome, minister. You were kind enough after the bill had been introduced to ask me to come to see you. I expressed at that time my concern that the bill was too narrow and that it didn't meet the threshold of Carter and the requirements of the Charter of Rights and Freedoms.
You said, in your opening statement, that the bill was deliberately drafted to respond to the factual situation in Carter. Then, in response to a question from Senator Jaffer, you said it referred to the specific circumstances of Carter and Taylor. With respect, minister, it seems to me that it is entirely the role of the court to respond to the specific circumstances before the court. That's what a judge does, but the role of Parliament, it seems to me, is different. I refer you to the resolution that was passed in December 2015 to set up the joint committee that you referred to. It talks about consulting with Canadians and experts and making recommendations on the framework of a federal response on physician-assisted dying that respects the constitution, the Charter of Rights and Freedoms and the priorities of Canadians.
It seems to me that our task, as legislators, and your task, as minister, is to produce a broader response and not one that simply responds to the specific circumstances or the factual situation before the court. Perhaps you could comment on that.
Ms. Wilson-Raybould: Thank you, senator, for the question, and it's an important question.
I'll preface my comments by saying that this is an incredibly difficult, very emotional and sensitive issue. I certainly recognize all of the reports and acknowledge the work of the special joint committee that presented their recommendations and, beyond that, presented to our country the ability and the mechanisms to actually engage in a national conversation about death.
I'll repeat what I had indicated. This is a transformational shift. This is a paradigm shift in terms of the discussion that we're having. Maybe it's appropriate, at this point, to acknowledge the lives of Gloria Taylor and Kay Carter and, before those two individuals, Sue Rodriguez who I believe have brought us to this place where we, in this country, are having this conversation.
To your question, in terms of thinking about the Supreme Court of Canada's decision in Carter, the court was clear on two things: one, that complete and outright prohibition on medical assistance in dying is unconstitutional, violating section 7 of the Charter. The second thing they said, as you quite rightly point out, is that it is up to Parliament to put in place an appropriate complex regulatory regime. We have benefited from an incredible amount of diverse input that we've received, right across the country, from experts, from individual citizens, that have contributed toward this discussion. The input has been very diverse. This is the balance that we, as government, looked at in terms of drawing up and putting forward proposed legislation that would find the balance between personal autonomy and respecting the decision in Carter.
Senator Cowan: With respect, minister, what we're talking about is the threshold — I call it the threshold — in Carter, and we're also talking about the Charter of Rights and Freedoms. Do you have an opinion that you can release to us that will confirm that this bill meets not only the threshold of Carter but also would preclude, so far as is reasonable, challenges under the Charter of Rights and Freedoms?
Surely none of us want to put another Carter or Taylor through this agony, ordeal. The courts were obviously bound by the facts of the cases in front of them, but we're not bound by that. Surely it's up to us, as legislators, to anticipate future Carter and future Taylor challenges and to meet those and to put the kind of robust regime in place, without being restricted to the factual situation in Carter and Taylor. Wouldn't you agree?
Ms. Wilson-Raybould: I think we, as parliamentarians, have an incredible task, and, now, the government has put forward our proposed response that we will substantively debate these issues.
To your question in terms of the background or the thinking behind Bill C-14, I was very pleased, as minister, to be able to table, at second reading, an explanatory paper that gets at, senator, those questions that you're asking in terms of the considerations that we, as a government, went through in terms of looking at Carter, in terms of balancing the diversity of interests out there, from personal autonomy to ensuring that we create the space and protection of the vulnerable, which is what the decision spoke about.
Also included within that explanatory paper, we spoke about Charter considerations. I would encourage all Canadians to read that, to understand the thinking that went into the decision.
Senator Cowan: That's not an opinion. That's a background paper.
Senator White: Thanks to the minister for being here this afternoon.
I wonder if the minister could map out what a five-year review is going to look like. Are we talking about a complete review of the legislation and possible redrafting? I've seen some five-year reviews in the past, and I wasn't always pleased with where we ended up. Do we actually have a prescribed formula of what a five-year review would look like?
Ms. Wilson-Raybould: That's a good question. Thank you, senator.
We have no predetermined formula for how that five-year review will be undertaken. By putting that in there, we have recognized that this conversation we're having is not going to stop with the passage of Bill C-14. A number of areas, as you're aware, require more study. We've committed in the preambular language to have more study on those issues. We recognize that we want to be responsive to the law that will be put in place and that we ensure that we acquire and monitor the system or the law as it unfolds to be able to be responsive to the evidence we gather and to the dialogue that will continue in the country in terms of how our regime is working or how it can be improved.
Senator White: Thank you for the response.
My second question is around the term "nurse practitioner.'' I worked in the North for many years where we had a lot of nurse practitioners. I was on a couple of provincial websites trying to see what authorities they have. Their authorities seem to be derived, when it comes to things found in this bill, around a requirement to have a physician approve or provide some level of approval for their actions. This bill certainly seems to give them more power than what I could find on the Ontario website in terms of nurse practitioners.
Is there a reason we have nurse practitioners included in this bill? Is there a necessity for them in the bill?
Ms. Wilson-Raybould: In terms of nurse practitioners, Minister Philpott and I considered the safeguards required within the bill and the recommendations of the special joint committee. We recognized the need to ensure access to medical assistance in dying across the country and that, as you pointed out, in more remote areas communities sometimes don't have the benefit of a doctor let alone two doctors in place. There are substantial nurse practitioners trained in the jurisdictions where they practice that have a direct relationship those communities, live within the communities a lot of the time, and would be able to provide medical assistance in dying to address the access issues. We also recognize in terms of the various jurisdictions that they would be able to determine how nurse practitioners are trained or what involvement nurse practitioners could have.
Senator Joyal: Thank you for the opportunity to convey to you personally my preoccupations.
I was very much disturbed by the statement made by the Quebec Minister of Health, Gaétan Barrette, who appeared on French CBC Sunday morning and made comments that challenge the constitutionality of the government bill, to put it in neutral terms. The reason is that the Carter decision opened the door to physician-assisted dying but with no reference to foreseeable death.
By introducing in the bill the criteria of foreseeable death, you limit Carter extensively by opening the door of physician-assisted death only to people whose foreseeable death is predictable on the basis of a doctor's prognosis. That was never included in Carter. On that basis, you open the door to a challenge because section 7 clearly recognizes for all Canadians the accessibility to physician-assisted dying of the person in a terminally ill condition or the person in a condition of intolerable suffering.
My contention, when I read the bill, is that since you limit the right recognized in section 7, the bill would be open to the Oakes test by the Supreme Court or by any Canadian court to see if your limit is reasonable in a free and democratic society — section 1 of the Charter. By alleging section 1, as you know, you are open to the three fundamental questions of the Oakes test. I'm sorry if I'm using an arcane word around the table, but you are a lawyer and will certainly understand, and your advisers would certainly know what I'm talking about.
When the court looks into your bill, they will ask three questions. The first question is: What's the purpose of the bill? They will look into the "Whereas'' section of the bill and into your public statements made here or in the other house or other comments you may have made. When I read the "Whereas'' section of the bill, I see that the sixth one deals with an objective of the bill that contradicts Carter. Carter recognized physician-assisted suicide, and you want to exclude that in your bill.
Your bill is in clear contradiction of the interpretation of the Supreme Court. When the court asks the second and the third question, your bill will not survive the test. In my opinion, that's the main —
The Chair: Senator, we're not going to have time for an adequate response.
Minister?
Ms. Wilson-Raybould: I certainly appreciate the conversation we're able to have on this.
I'm confident that this bill not only responds to Carter but will withstand constitutional challenges. The purpose or the object of this bill is to ensure that we provide medical assistance in dying in this country that ensures that we respect personal autonomy while also ensuring the protection of vulnerable peoples.
This was what the court asked us as parliamentarians to do. We considered the diversity of perspectives. In terms of the public policy discussions and decisions that were made, we are providing in this piece of legislation the ability for persons who meet the eligibility criteria to have a peaceful passage to death.
While I recognize there are Charter considerations, I would submit to you, senator, that it would meet the Oakes test, given the discussions we've had and the diversity of voices we've heard.
Senator Plett: I want to continue what Senator White started regarding nurse practitioners. I am going to be a little more explicit than he was. Nurse practitioners, in fact, are unable to prescribe narcotics in parts of the country. There are limitations on which diagnostic tests they can do. They are not allowed to do CT scans or MRIs. There are limitations to where they can even order an ultrasound or an x-ray. Yet you are saying that because of logistics and because they might be in the North, we will give them that.
I have two questions. First, will you allow them, then, to prescribe drugs in the North and do X-rays that they cannot do now but they can assist somebody in dying?
My second question is on the independent medical opinion that is needed. Again, I've spent a good part of my life in some of these small communities that you are referring to. In many of these communities, nurses, or even doctors if they have doctors, live together in one house, maybe even one apartment, because of what they have there. Now, if two nurses live together, how much of an independent opinion is it when one nurse says to the other one, "I believe this person is eligible to die''?
Ms. Wilson-Raybould: I appreciate the comments and questions and recognize my previous answer with respect to nurse practitioners. Nurse practitioners are defined in the legislation. They certainly are under the laws of the provinces and territories in which they practice, so the extent of their practice will be determined by those jurisdictions.
To your question about remote communities and two nurse practitioners living in the same house, we have put in place safeguards in the legislation that insists that there is independence with respect to those two opinions. That is a situation that would have to be looked at in individual circumstances.
Senator Plett: Let's just hope it works out.
William Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice Canada: Senator, if I may, I have two points to underline further what the minister said.
One, this is creating an exemption under the criminal law. Where a nurse practitioner is involved, it would only be because the province has authorized them as defined in the statute to have that scope. That is entirely a decision for the provinces to make. But the nature and scope, as you indicated, there are differences in terms of what are currently authorized for nurse practitioners.
Second, like physicians, they are a regulated profession. We would expect the regulatory bodies to be involved in this, the provinces and territories, as they are now in regulating the scope and nature of the practice of nurse practitioners and doctors. It will be their administration and regulation that will ensure that the rules are followed.
If a nurse practitioner acts outside of this, they're committing an offence under the Criminal Code. There's a limited exemption created where the rules and processes are followed. If a nurse practitioner is not authorized by the province to do this but does it anyway, they've committed an offence under the Criminal Code that is specifically set out in the provisions of the code. In that sense, it's not as though it is intended to open up a free-for-all. It's within a regulated profession.
Senator Batters: Thanks for being here, minister. Welcome to our committee.
I would like to speak about the preamble wording. In your opening statement it sounded like you have a significant concern in making sure that people who have mental illness are properly protected. That has always been one of my primary concerns about this particular matter.
When I look at the way the bill is drafted regarding the provisions about eligibility for medical assistance in dying, as you refer to it, and "grievous and irremediable medical condition,'' the first paragraph of the preamble refers to just grievous and irremediable medical condition. When you go to the definition that's provided of grievous and irremediable medical condition, that's where it brings in the issue of physical or psychological suffering.
You have to go to the preamble in order to obtain your government's assertion that psychological suffering as a sole basis is excluded from this bill. But having it in a preamble is a poor way to draft a piece of legislation because it doesn't have the necessary force of law.
So you have that significant concern about these issues. When you testified before the House of Commons committee earlier this week, you indicated your clear indication that this would be something to conform with Carter and to have as its intended purpose of medical assistance in dying to give competent adults who are on a path toward their natural death the choice of a peaceful passing.
If that is your real intention here, why would you have that in the preamble and why would you be studying the issues of mature minors and mental illness, which clearly Canadians do not want? They have indicated that loud and clear. It's just not a good way to draft a piece of legislation.
Ms. Wilson-Raybould: Thank you for the question, senator.
In terms of the eligibility criteria that are laid out in this piece of legislation, we sought to further define what "grievous and irremediable'' means. Those are the four elements that you referenced in your question.
All of those elements need to be read together based on the entirety of the circumstances for the individual patient that is requesting medical assistance in dying. That patient could have a mental illness, but that mental illness cannot be the sole basis upon which medical assistance in dying is provided. It needs to be considered in the totality of the patient's circumstances.
In terms of mature minors, in terms of mental illness as a sole basis and in terms of advance directives, we put that language into the preamble because there needs to be more study on those issues. Those three issues were not dealt with, as you know, senator, in the Carter decision. We have had an incredible diversity of opinion around those particular issues and want to be able to engage in substantive study to understand the risks and the benefits around those particular issues in terms of medical assistance in dying.
It was put in the preamble in part to show our commitment to looking at those issues in more detail, as we heard quite loudly and clearly from many Canadians.
Senator Batters: Also, if you intend to have safeguards in place to deal with people who may have a very serious physical illness but also have a mental illness, why wouldn't you have in place a longer waiting period so perhaps they could actually consult a psychiatrist, which takes so long in so many places in Canada? Why wouldn't you require a psychiatrist's approval? Why would you simply allow, just like anyone else, two nurses to provide approval, assess competency and administer the assisted suicide?
Ms. Wilson-Raybould: Again, senator, I appreciate the question.
The reality of all of the circumstances built into the eligibility criteria, particularly around "grievous and irremediable,'' is that we wrote into the legislation a degree of flexibility to ensure or to provide medical practitioners with the ability, based upon their relationship with their patient, based upon the understanding of all of their medical circumstances in their totality, to make that determination. I imagine this is something that Minister Philpott will be speaking about more when she presents before the committee.
From my understanding, physicians, if there is some uncertainty, may, as a normal course of their business, refer that out for further —
Senator Batters: But it's not required. If you wanted that, why not require —
The Chair: Sorry.
Senator Boisvenu.
[Translation]
Senator Boisvenu: Thank you very much for being here today. I know that this topic is very complex and very complicated, as it calls on on both social and moral values. I think that you show a lot of courage in undertaking the study of this bill with us.
In Quebec, there was a vast consultation on the right to die that led to a very broad consensus, and Quebec adopted a bill based on that. Obviously in Quebec we are going to pay great attention to Bill C-14 and its effects.
There is a lawyer in Quebec who is very active in this area, Mr. Jean-Pierre Ménard, who is the spokesperson for the Quebec Bar on this file, and he is quite critical of Bill C-14. I would like to hear your opinion about two of his concerns.
Mr. Ménard's first criticism is about the fact that the Supreme Court provides access to medical assistance in dying in cases where Bill C-14 does not. This is a very serious criticism, concerning persons suffering from grievous and irremediable medical conditions, but who are not about to die imminently.
Mr. Ménard's other criticism concerns the very vague, uncertain, elastic — those are his terms — notion of "reasonably foreseeable natural death.'' He suggests that the words "reasonably foreseeable natural death'' be struck from Bill C-14. Basically, that concept could apply to anyone, because everyone's death is foreseeable: one week, two weeks, 10 years, 20 years. And so I would like to hear your opinion on these two criticisms expressed by Mr. Ménard.
[English]
Ms. Wilson-Raybould: Thank you, senator, for the questions. I will just say as an aside that I am learning French, so I appreciate your questions.
To the first one about the purpose of this legislation, the legislation was put forward as a result of many discussions and after hearing from many diverse groups. As you said, it's a very complex and challenging issue. It was the decision that we ensure that we provide that balance between personal autonomy and vulnerability, and ensure that we provide a peaceful passage for those individuals who are approaching death and who want to access medical assistance in dying.
That was the decision and it was subject to much debate in terms of what that appropriate balance is right now. We made the decision that it was to provide that peaceful passage toward death.
In terms of the discussion around "reasonably foreseeable,'' on its own, proposed subsection (d), as you write rightly point out, everybody's death is reasonably foreseeable. However, in terms of the way that we've drafted our definition around "grievous and irremediable,'' all of those elements need to be read together in the totality of the circumstances. We purposely drafted it that way to put in place flexibility for medical practitioners to make the determination of reasonable foreseeability on their own accord, based on the individual relationship that they have with their patients.
Further, we did not put a particular time frame around what "reasonably foreseeable'' is, as they have in other jurisdictions, to provide that degree of flexibility. We thought that 6 to 12 months on one side was somewhat arbitrary. On the other side, if there were no time limit, or having all of the elements read together, it would open it up to be much broader.
We provided the ability and placed confidence in medical practitioners to make determinations for themselves.
Senator Eaton: Thank you, minister. I applaud your courage, and I'm sorry you were given such a short timeline to get this through.
The preamble states:
Whereas it is desirable to have a consistent approach to medical assistance in dying across Canada . . . .
Well, we know Quebec has its own law. How difficult do you think it will be to get all provinces and territories on the same page so people don't go from province to province "shopping'' to see where it would be easier to get assisted medical death?
Ms. Wilson-Raybould: Thanks for the question, senator.
I have had the benefit of engaging with and will continue to engage with my counterparts in the provinces and territories in terms of this particular piece of legislation. From the conversations I have had with my counterparts, the provinces and territories were looking for federal leadership with respect to this issue.
I want to acknowledge the tremendous amount of work that the Province of Quebec has undertaken over many years to put in place their end-of-life legislation. I recognize that different regulatory frameworks may be developed in particular provinces, and there may be different approaches in terms of medical assistance in dying or in terms of regulating medical practitioners and the like in different provinces.
Senator Eaton: Can they go much wider than you've gone in this bill? Could one province say, "Yes, we will look at mental illness and underage,'' or will the federal law take care of that?
Ms. Wilson-Raybould: This is an exercise of the criminal law power — a federal power — and all of the provisions that are contained in Bill C-14, if it goes through, will be applicable to all of the provinces and territories. That is for the eligibility criteria as well as the safeguards that are in place; all provinces and territories will have to comply with those.
The Chair: Minister, I know it's always difficult for governments to step back once they've made a public declaration, but I'm curious about what consideration was given to asking for an extension from the court in terms of the time for consideration of such significant legislation. It seems to me that if, at the same time, the request for extension had been accompanied by a request for an assessment of the constitutionality of the legislation, I think a court would have been receptive to that kind of a request.
We're hearing concerns now, as Senator Joyal mentioned, from the Minister of Health in Quebec, the Carter family, the bar in Quebec and others. I understand that the government is using time allocation, effectively closing off second reading debate in Parliament. We have to assume that the same will happen at committee and at third reading.
I understand the time frame set by the court, but why wasn't there an attempt and why can't you'll still make an attempt to see if more time consideration could be given to the impacts of this legislation and its constitutionality?
Ms. Wilson-Raybould: I appreciate both questions, and I'm pleased to be able to respond to them, senator.
On the first point, we did apply for an extension of the 12-month period of the Supreme Court's deadline. We asked for six months and we received four months, hence the deadline of June 6. The court did indicate that it was an extraordinary step to take to increase the amount of time for a government to put in place a framework. That extraordinary step was taken by the court because there was an intervening federal election that provided a little more time for our government to put in place that federal framework. We are committed to ensuring that we have that in place and are working very hard to do that.
In terms of a reference to the Supreme Court of Canada around the constitutional validity of this particular piece of legislation, it is my and this government's commitment, and I believe it incumbent upon all parliamentarians, to respond to what the Supreme Court of Canada asked us to do. They threw it back into our court to put in place a law around medical assistance in dying. I believe that if I were to ask or put in place a reference to the Supreme Court of Canada, the Supreme Court of Canada would hit that ball right back at us and ask us to do our jobs as parliamentarians: weighing the diversity of perspectives that exist in this country; ensuring that we fulfill our obligations and roles to find that right balance; ensuring that we uphold the Carter decision with a tremendous amount of respect for the Supreme Court of Canada; and put in place the best approach for Canada. That, in my respectful view, is fulfilled by Bill C-14.
The Chair: We have time for a question from Senator Lankin.
I understand, minister, you're going to have to depart briefly and then return?
Ms. Wilson-Raybould: Yes. My apologies, senators. I'm needed back in the house for a vote. My officials will still be here, though.
Senator Lankin: Thank you.
I appreciate how difficult this task is and I appreciate the sensitive balance that the government is attempting to strike. I feel a bit like my old days at policy discussions, where I said, "I generally support this, but it just doesn't go far enough.'' I'm in that camp right now.
I'm eager to understand the government's concerns that led them to place restrictions on access for certain Canadians. People have spoken a lot about "reasonably foreseeable'' and you've spoken to that a fair bit.
I'm going to go to the issue of advance directives. I come from a family where there's genetic Alzheimer's. I worry about this myself. For many Canadians and seniors, dementia of various types is a real-life issue that people deal with.
I'm able to give an advance directive with respect to a living will directive of "do not resuscitate.'' In many ways, do-not-resuscitate orders can be a medically assisted method of dying. We make these orders when we are competent and judged to be competent.
While I recognize your cautious approach on this, I honestly don't understand all of the issues at play that give you cause for concern and a feeling that you need to review it further. So I would like you to explain that. Beyond what's in the explanatory background paper, what bothers you? What keeps you up at night about that particular issue?
I also would like to know why on that issue, reasonable and foreseeable; you would need five years to review? Maybe it's a shorter period of time to delve into those issues. Maybe the five years is about the monitoring system, compliance monitoring, some of the other mechanisms of the bill, but not maybe these difficult issues that many Canadians want to see in place for their own access.
Ms. Wilson-Raybould: Thank you for those questions, senator, and I hope that I can answer each of them.
There is a five-year review of the legislation, and, as you know, there isn't a time frame around the studies. We are committed to having one or more independent studies on those difficult issues that raise a lot of questions for Canadians in terms of how we can ensure that people are providing that consent.
We are, as we all know, talking about death and sanctioning medical assistance in dying and what is the appropriate framework for us to put in place. The balance is always at top of mind.
You ask what keeps me up at night. We all have our own personal reflections, personal experiences, our own values, who we are as human beings and our appreciation of life and wanting to ensure that our relatives are comfortable. You mentioned Alzheimer's. Without getting too personal, I had a grandfather that suffered from Alzheimer's for 16 years. The thoughts that have gone through my mind, not just with respect to my grandfather, but I know everyone around the cabinet table provided their own reflections and thoughts with respect to their own personal experiences.
We're talking about a transformational shift in our country in terms of discussions around death and dying. The safeguards that we put in this legislation are to ensure that when that final step is taken that we, as much as we can, protect vulnerable people.
If we're thinking about advance directives and having an understanding and clarity at the time when medical assistance in dying is going to be provided, an individual has to have that conscience and understanding and thoughtfulness to know that they are providing informed consent.
One can sign on to an advance directive, and 10 years later there isn't necessarily a confirmation that that is still the desire that the person would have if they had gone down a road into dementia or, in terms of Alzheimer's, they weren't able to assess or understand the nature of the decision that they were making.
All that said, these are really difficult issues, and the feedback that we received was that we need to have more study around them. We need to ensure that we weigh all of the benefits and the risks, and that's what we're committed to doing in terms of these more difficult issues.
As you say, senator, advance directives have been raised a substantial amount, but with something as black and white, we need to ensure that we put the protections in place so that the vulnerable are protected.
The Chair: Thank you, minister.
As the minister departs, we will resume with Justice officials until the minister returns. I believe they were all introduced earlier. If there is anyone else, please speak up.
What I'm going to do, with the committee's concurrence, is start a new list, because the list I have for the second round of questions dealt with questions to the minister. So I think it would be appropriate for anyone who wishes to ask questions of the officials that we will set a separate list for that.
We'll begin with the deputy chair, Senator Jaffer.
Senator Jaffer: Thank you for your presence here today.
I want to talk further about the advance directives, and I'm sure you have looked at other countries. I understand that the Belgium government after every five years reassesses the directives or goes back to see if they still want to give that directive. Can you give us an idea from a technical aspect what kind of work was done so that the advance directives were not considered?
Mr. Pentney: With the studies that were done by the provincial and territorial advisory committee and the federal external panel and followed by the special joint committee work, clearly one of the considerations was whether people who are subject to advance directives should be included in the legislation. It's fair to say that the evidence heard and explored by all of those bodies indicated that advance directives in respect of ordinary medical treatment, outside the medical assistance in dying, present a series of complexities. Although they're quite common, they're not uniform across the country and present a series of challenges. It's also recognized that many jurisdictions don't permit it and that where it is permitted, as you said in Belgium, there is a requirement to renew the advance directive every five years.
I would also say that Canada is unique in doing this in that we have a federal criminal law power, and this is an exercise of the federal criminal law power. Health is a shared jurisdiction, but as has already been indicated by the minister and as the senators would know, a significant amount of the work to give effect to this and regulate and implement it will involve provincial regulations. The rules and roles around advance directives are not set by criminal law.
In our discussions with them, the provinces and territories wanted to know what the federal law would be, other than Quebec which is engaged in a long study, so they could do their planning. As has been noted previously, we've done this, notwithstanding the request made at the Supreme Court, under a deadline.
There was a series of considerations in terms of whether or not and how the government would include advance directives at the end. As you'll see from the bill, the decision was that right now this transformational change being brought before Parliament and put before Canadians is limited to competent adults. But recognizing that issues around advance directives are very much alive and in question and will require a complex set of reviews and studies including with the provinces and territories and regulatory authorities, the decision was made to put the bill before Parliament as it stands and to make a solemn commitment to launch independent studies.
Senator Jaffer: In our provinces we have representation agreements that set out different things as to what measures to take if somebody becomes very ill. From what I understand you to say, will the provinces look at advance directives?
Mr. Pentney: As indicated in the preamble, the federal government will launch the studies, but there will be active discussion with provinces, territories, regulators and others in respect of each of those three topics. Although they would be federally led studies, they would involve, as did the federal external advisory panel and the special joint committee, you would expect to engage a lot with provincial and territorial regulators because provincial rules establish what, where and when advance directives are allowed. That varies across provinces right now. Also, provincial rules and regulators will be responsible for giving effect to this. If there were a shift in the federal legislation, they would be deeply involved in administering that. All of that points to the need to work carefully with a number of experts, including the provinces, territories and provincial regulators, to assess this.
Senator McIntyre: My question has to do with reasonable and mistaken belief in section 245 of the Criminal Code. I draw your attention to clauses 2, 3, and 6 of the bill. As you know, clause 2 exempts individuals from culpable homicide and aid in dying in a situation of reasonable but mistaken belief. Clause 6 proposes to amend section 245 of the code to exempt physicians, nurse practitioners and persons assisting them.
That said, I note that the proposed amendment to section 245 does not include the provision concerning reasonable but mistaken belief. Why is it that the amendment to section 245 does not include reasonable but mistaken belief, or perhaps we should have a separate clause?
Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Section 245 is presently in the Criminal Code. It's the offence of administering or causing to be administered a noxious substance to a person.
In the court ruling in Carter, the Supreme Court said only two sections of the Criminal Code were really at the core of the prohibition against medically assisted dying: sections 14 and 241(b). They did not identify this offence as being one that really stands in the way of medical assistance in dying. Nonetheless, we looked at the wording of the offence, and it's technically possible that it might apply to the circumstances of medical assistance in dying. It is extremely unlikely that this offence would ever be charged.
It's merely out of an abundance of caution that the exemptions were provided for section 245, not replicating the entirety of the regime of exemptions but just those simple basic ones.
The other way I can complete the answer is to say that the provision on reasonable but mistaken belief is actually a codification of a very long-standing principle of the common law. That principle was included in the legislation to give physicians, nurse practitioners and all other providers absolute confidence that if they were acting in good faith but happened to make a mistake while behaving reasonably, they could still benefit from the exemption. Even if that had not been stated in the other sections, that principle of the common law would still be available. It's still there in the rare likelihood that there ever would be a charge under section 245.
Senator McIntyre: Bill C-14 creates a new offence for forgery. As you know, a forgery offence already exists in the Criminal Code at section 366, if I'm not mistaken.
I have two questions. Why is a new forgery offence in Bill C-14 when section 366 already exists? And in the case of the new forgery offence, death may result, yet punishment is less for this offence than for the existing forgery offence under section 366.
The new forgery offence included in Bill C-14 is a hybrid offence, so the Crown can proceed either summarily or by indictment. If it proceeds by indictment, the maximum is 5 years of imprisonment and if it proceeds summarily, it's 18 months in prison. Why do we have this double status for forgery since forgery already exists under section 366 of the Code?
Ms. Klineberg: Thank you for the question.
On the first part about why it's there when there is an existing general forgery offence in section 366, the answer is that it's not legally necessary that there be a distinct offence for forgery in relation to the documents related to medical assistance in dying. However, it was thought to be beneficial to bring to everyone's attention the importance of these documents and the importance of maintaining the integrity of these documents and to signal to enforcement authorities that this is a distinct form of wrongdoing that they should keep in mind if ever it comes to their attention.
In terms of why the punishments would be different from the broader and more general forgery offence, there might be circumstances of forgery that are on the lower end of the scale of seriousness. Not every incident of forgery might directly lead to the death of a person in a wrongful circumstance. It's contemplating situations that are still serious that we want to bring to the attention of participants in medical assistance in dying.
Should be there a case where a document is forged, it might be forged by the medical practitioner or the nurse practitioner. Certainly they could be subject to the charges related to murder or assisting a person to die by suicide if they've engaged in any wrongdoing.
Senator Baker: I suppose you could say that my question is outside the bounds of this bill, but it has been raised by Senator Lankin: advance directives.
In Canada, I think every province has legislation now. Perhaps one or two do not have legislation regarding advance directives. There is no overlap with federal jurisdiction. It's entirely provincial, involving end-of-life situations, palliative care, going right down to palliative sedation, which would make somebody unconscious until death.
I'm wondering about advance directives, as they stand. I note, Mr. Pentney, that you raised the question. You said that perhaps it's prevented in that this legislation involves competent adults. Every piece of legislation on advance directives involves competent adults and end-of-life care. So the question on the mind of someone who knows a lot about advance directives would be: What is preventing the province from incorporating this particular bill we're talking about into their jurisdiction of advance directives?
It's a legal question. You don't have to answer it if you don't wish to.
Mr. Pentney: I would be happy to, senator.
This is an exercise of the federal criminal law power. A province can act within the box that's created in terms of an exemption from otherwise criminal activity.
Senator Baker: End of life activity, palliative care.
Mr. Pentney: Authorized and consented to by a competent adult. That's the limit right now in the bill. If the bill is adopted as it stands, that will be the limit of the exemption for criminal activity, and the province simply cannot expand beyond that.
To the extent that a province tried to exercise its jurisdiction to allow an exemption under the Criminal Code for an individual —
Senator Baker: You're saying it's an exemption.
Mr. Pentney: That's technically what Bill C-14 creates. It reproduces a general criminal prohibition and says that where medical assistance in dying is provided in accordance with the rules set out in the criminal law, it is not a crime. The only exemption that's allowed now is for a competent adult.
Senator Baker: Right now, every province has legislation involving competent adults that outlines a procedure for end-of-life procedures in palliative care which involves, as Senator Lankin has pointed out, certain procedures that would bring on death. She's correct in that.
You're saying, definitively, that you don't know of anything that would exempt the provinces from continuing on with their advance directives involving this very same thing, the very same subject matter. Or would you say there is a legal point here that may be visited down the road?
Mr. Pentney: I'm saying that the bill before this committee creates a limited exemption from otherwise criminal activity. It limits the scope of that exemption to a situation where a competent adult, who is competent at the time of the request, has authorized the request and the other safeguards are triggered.
You may wish to explore this with health officials in terms of how it will relate, but in terms of the exercise of the criminal law power, an adult has to be competent at the time of the request under the bill that's before the committee now in order to qualify for the exemption.
Senator Baker: That's what an advance directive is.
Thank you. Good answer.
Senator Plett: I guess this is a follow-up on what I asked earlier. When I spoke earlier about nurse practitioners, both the minister and you, Mr. Pentney, indicated that some of this fell under provincial jurisdiction and that the provinces would make decisions. Then Senator Eaton asked the question of whether the federal government was the top body and whether the provinces needed to comply with federal legislation, and I got the impression that you said yes. I'm hoping that you won't shuffle this off to the provinces and, rather, will answer this on behalf of the federal government. It's with regard to conscientious objection.
In paragraph 132 of the Carter decision, the Supreme Court expressly recognizes the need for balance between Charter rights of patients and those of physicians and allied health professionals; for example, conscientious objection. Again, to date, the answers we've received from the minister are that you're going to allow the provinces to decide this.
I believe, and I'm sure many others do too, that we're crossing a legal and ethical divide here, and we are talking about the Canadian Charter. What harm would there be in making this protection for physicians explicit in this legislation?
Mr. Pentney: Well, thank you for the question. Maybe I can start, and Laurie can supplement the answer.
The Supreme Court in Carter recognized, among other things, that health is an area of shared jurisdiction. There are aspects of it that can be addressed by the federal government and others that can be addressed by the provincial government. They acknowledge that the issue of conscience rights is something that will need to be considered as it goes ahead.
The second element of the answer, I think, is that nothing in the bill compels any medical practitioner to provide this. The bill creates an exception in the criminal law and an authorization, but does not compel.
The third element would be that the rules about what medical practitioners must do and how they must do it in terms of professional practice are provincial rules. It's simply not within the scope of the federal criminal law power to prescribe those areas of activity, and there are other Supreme Court of Canada decisions involving efforts by the federal government to regulate health care that have determined there are limits on the scope of federal powers.
The last part of this would be that whether or not there is anything in this or other legislation, under the Canadian Charter of Rights and Freedoms, physicians, nurses, nurse practitioners and you and I have conscience and freedom of religion rights that are guaranteed by the Charter and would apply, as I say, whether or not this is here.
Because the federal law doesn't compel anyone to do anything in that sense in terms of medical practitioners, it wasn't viewed as impinging on the conscience rights of physicians. The government has certainly recognized those are important considerations, and we know there is active consideration and discussion going on in provinces and territories around it.
Senator Plett: Again, this is probably provincial jurisdiction, but we know very well that in abortion laws, for example, people that do have conscientious objection to this have been either let go from their positions or they get involved. What's preventing this from going in exactly the same direction, and why would we not want to guarantee them that they will not have to take part, nor will they have to refer them to anything other than a government website?
Mr. Pentney: Again, I think that nothing in the bill compels medical practitioners, in that sense, to participate or to do anything.
Senator Plett: Unless the provinces tell them to.
Mr. Pentney: As I said, I think the other examples you're referring to relate to the nature and scope of provincial decisions around regulatory expectations for doctors and nurse practitioners.
Senator Joyal: I would like to come back to the issue of balance between the objectives stated in the preamble and the impact of the Carter decision. I think the bill fails because it doesn't recognize that what is included in Carter is, essentially, assisted suicide.
The Quebec law is essentially a terminally ill law. Carter never gave the terminally ill the right to access physician- assisted death. By excluding assisted suicide from the bill, in my opinion you would have to allege under section 1 of the Charter that, in a free and democratic society, it is allowed to exclude assisted suicide.
But in the middle of paragraph 6 of the preamble states that the bill "strikes the most appropriate balance between the autonomy of persons who seek medical assistance in dying'' — the persons to whom Senator Lankin referred — "on the one hand, and the interests of vulnerable persons in need of protection and those in society, on the other.'' In other words, you assimilate, in your reasoning, people who look for suicide assistance as vulnerable persons.
In my opinion, it fails. No court will recognize that the objective of this bill meets the criteria of Carter. Because you limit this bill to foreseeable death of terminally ill people and count on the Quebec legislation, I think you go much below what Carter states. That's where it is going to fail. And you know it will be challenged very soon if Parliament decides to adopt it without removing the criteria that you have added to Carter to limit the scope of Carter. That's where I feel the explanation you give is defective.
Mr. Pentney: Thank you, senator. I will start and maybe my colleagues will wish to supplement.
First, as the minister noted, this represents a seminal change in the law in Canada authorizing physician-assisted dying as an important legislative choice. In doing that, the government certainly did pay careful attention to Carter. A careful reading of Carter would indicate, as the minister said, that a complete prohibition on physician assistance is a violation of section 7. Second, a complex regulatory regime is better designed by Parliament than by the courts. Third, it would be up to Parliament to decide whether to take up that obligation and to try to create a complex regulatory regime. Fourth, if they did so, a great deference would be shown. The court drew the distinction between an absolute blanket ban, which it said is not a complex regulatory regime. On the other hand, a complex regulatory regime, they acknowledge in black and white, will be given deference.
A careful reading of Carter has to include the number of references to the situation of Ms. Taylor and people like her. The culminating and core paragraphs of Carter are 126 and 127. I'll quote from paragraph 126:
To the extent that the impugned laws deny the s. 7 rights of people like Ms. Taylor they are void by operation of s. 52 . . . .
In paragraph 127, they set out the definition of "grievous and irremediable'' and then state:
The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.
Next, the courts that have interpreted Carter since in the individual applications, and I quote Justice Perell in Ontario in the case of A.B. There are publication bans on the names around these individuals, but to quote him on his interpretation of the scope of Carter, he says it refers to:
. . . a grievous medical condition connotes that the person's medical condition greatly or enormously interferes with the quality of that person's life and is in the range of critical, life-threatening, or terminal.
Justice Martin in Alberta, again quoting Carter and giving effect to it in a case before the court:
I have no difficulty in concluding that ALS is a grievous and irremediable medical condition. It is widely understood to be a progressive and ultimately terminal disease that has no cure.
In all of those circumstances, the government has decided that it will focus first on this step, on people who are heading towards death. It has neither chosen a time limit of weeks or months, as is either in perhaps the Quebec legislation, depending on how you interpret end of life, but definitely in the American; nor the alternative of simply leaving it open ended, that a person who is suffering and by virtue of the suffering should have access to it.
I would again commend the legislation to honourable senators.
The grievous and irremediable condition is defined by four things, culminating in "death has become reasonably foreseeable.'' By virtue of all of those circumstances, the government has decided that is the policy choice that it wants to put before Canadians and before Parliament, and that is the choice it will defend.
I think on any interpretation of Carter, it does not forbid that, and so it puts it back to Parliament to determine whether that is a limit that ought to now be put in place. That's the clear choice that's before the court. It's not simply compliance with Carter but it has to be compliance with the Charter, and ultimately it will be the question of whether or not this decision for Canada represents a reasonable limit prescribed by law in a free and democratic society.
Senator Batters: Ms. Klineberg, in providing us with a briefing on this bill this week, you described some requirements that the federal government has included in this bill. You detailed the two different types of assisted dying. First of all, there is euthanasia, where lethal injection would be administered by a medical practitioner, and secondly, medical-assisted suicide, where a prescription is written by a medical practitioner and then the patient would take that prescription medication themselves.
For the euthanasia situation, the Liberal government bill indicates that the doctor or nurse practitioner would determine the patient consent initially, and then they would have to reconfirm that consent right before that doctor or nurse practitioner would administer that lethal injection.
But for assisted suicide, the determination of patient consent would be determined initially when they're given the prescription. It's possible that the patient could keep that prescription without using it for, I don't know, three years. There's no requirement to re-determine consent.
Given that, I put it to you that this arrangement basically does provide Canada with advance request or advance directive. In a situation that could so drastically change where we're dealing with very vulnerable people who could be harmed, potentially killed — no one may ever know about those circumstances — why would such a wide open situation be allowed contrary to the government's intent voiced in the preamble that advance directives would not be allowed under this legislation?
Ms. Klineberg: There are several aspects to that question, and I'll do my best to answer them.
First, in terms of the ability of a person to obtain a prescription for the purposes of self-administering a substance to cause their own death, it is still the person who, when the time comes, would be self-administering the substance. They would have to have some degree of ability to do that for themselves, so it's still their choice when they take that action to do it.
In that sense it's not an advance request in the way in which that term is used when we're talking about advance directives. The patient is still the one responsible for taking the action. They take the action at a later point than the point at which they receive the substance, but it's still their choice at every step of the process. There's nothing in their level of ability to make the decision for themselves that changes.
The Chair: Ms. Klineberg, I have to interrupt. I've just been advised that the Minister of Health is standing and waiting. I didn't recognize her and I apologize.
I'm going to ask you to expand on that later because we're going to ask you to remain until the Minister of Justice returns, and senators who have not yet posed their questions will have an opportunity later to do so.
Senators, now joining us is the Honourable Jane Philpott, Minister of Health Canada. Also at the table from Health Canada is Simon Kennedy, Deputy Minister.
The minister is with us for approximately an hour. After that, Mr. Kennedy will be joined at the table by his colleagues from Health Canada. We're jumping all over the place today because of the ministers' requirements to be in the house. We are asking officials from Justice to stay. The Minister of Justice will return later on.
I should mention the other officials from Health Canada: Abby Hoffman, Assistant Deputy Minister, Strategic Policy Branch; Helen McElroy, Director General, Health Care Programs and Policy Directorate, Strategic Policy Branch; and Sharon Harper, Manager, Continuing Care Unit, Strategic Policy Branch.
Minister, thank you for being here. I apologize for keeping you cooling your heels, but you now have the opportunity to make your opening statement.
Hon. Jane Philpott, P.C., M.P., Minister of Health: Thank you very much, Mr. Chair and honourable committee members. I'm very pleased to be here today to speak on the subject of medical assistance in dying. I haven't had the opportunity to meet all of you in person, but it's a real honour to appear at this committee and to respond to your questions and concerns.
As you may know, earlier this week I had the opportunity to present and answer questions from the House of Commons Standing Committee on Justice and Human Rights, and I would like to take the opportunity today to reiterate some variation on those comments before taking your questions.
I'm also aware that the Minister of Justice has presented earlier today and will be coming back. There are many areas, as you know, that she has a particular ability and expertise to speak to. I will be using this time to speak to questions that may relate to my Health portfolio and will be pleased to answer your related questions.
As you know, last year the Supreme Court of Canada declared that the Criminal Code prohibitions on assisted dying were unconstitutional, and now the Senate has the opportunity to review the proposed government legislation that will amend the Criminal Code to allow medical assistance in dying.
Some of you may know that I'm a family doctor. I've had countless conversations with people at the end stages of their lives. I can tell you, as you probably very well know yourselves, that conversations about the end of life can be incredibly challenging, yet it's such an important conversation for us to have, whether it's with our patients, our loved ones, or whether it is as a society having a conversation about what we would desire at the end of our lives.
They are difficult conversations sometimes for health care providers because in some cases their education may not have adequately prepared them for discussing, let alone providing, the support that patients desire at the end of life.
First and foremost in our consideration of these matters was our responsibility to protect the most vulnerable in society, and our proposed legislation will do this, while at the same time respecting the decision of the court.
[Translation]
We want those Canadians to know that we understand their concerns and that we believe that the safeguards put in place in this bill will mean that the rights of the most vulnerable will be protected.
[English]
We have heard from others who feel that the proposed legislation doesn't go far enough, who would like to see eligibility expanded in certain areas. We would like to thank these Canadians as well for speaking up on behalf of people who are suffering.
As we strive to meet the needs of Canadians at the end of life, we encounter a system that can sometimes frustrate attempts to respect personal autonomy.
[Translation]
We all want a system where respect for individual autonomy is the cornerstone of all policies. We also want a system where the rights of the most vulnerable will be respected and protected. This bill is an important piece of the puzzle, so that Canadians have access not only to a good life, but also to a good death.
[English]
It's about empowering patients to take control of their own narrative and ensuring that Canadians can receive compassionate care as they approach the end of life.
As you know, we listened to Canadians and stakeholders before we developed this legislation. As the Minister of Justice has no doubt articulated, we reviewed the proposed legislation very closely to ensure its consistency with the Charter. We looked closely at the Carter decision to ensure that individuals in those circumstances would have access to the care they needed to alleviate suffering, including the option of medical assistance in dying.
Our commitment as a government was to respond to the Carter decision. That necessitates changes to the Criminal Code that will protect health care professionals as they support patients in their decision making.
At the same time, we are committed to taking the time required to address additional questions that are more complex where we believe that more time and study is needed.
[Translation]
As an example, the bill sets a minimum eligibility age of 18, which is the age of majority in most provinces and territories. This approach seems appropriate to us in light of the unique and irreversible character of such a decision.
We know that the capacity to make decisions on health is not related strictly to age, and that depending on the province the right to refuse medical treatment or to consent to it may be obtained as early as at 14 years of age, for instance.
[English]
We faced similar challenges in considering this matter of advance directive. The Supreme Court did not deal with this issue in Carter, and the views of Canadians, as you're well aware, are deeply divided.
[Translation]
After 30 years of practising medicine, I am well aware of the concerns of Canadians who suffer at the end of life, and I understand why some people would like to be able to provide advance directives so as to be able to access medical assistance in dying. However, we must take into account the complex questions related to policy and medical practice that are raised by advance directives.
[English]
By their very nature, advance requests are made before they are needed. Even if reviewed regularly, they would be enacted only when a person has lost competence or is no longer able to communicate. This means that the final consent, a key requirement in most assisted-dying regimes around the world, could not be verified by a health care provider or anyone else.
[Translation]
Medical stakeholder groups pointed out that advance directives concerning other kinds of medical treatment can be very difficult to respect, and that repercussions would be even greater in the case of medical assistance in dying.
[English]
The proposed legislation also, as you know, does not permit eligibility solely on the basis of suffering from mental illness. There is no denying that mental illness can cause profound suffering. However, illnesses such as chronic depression, cognitive disorders and schizophrenia raise particular concerns with respect to the matter of informed decision making. We have consulted numerous stakeholders on this issue and concluded that the nuances are not sufficiently understood at this time to allow safe and appropriate legislation to be crafted.
To that end, the government is making a commitment to mandate one or more independent studies on the questions of requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition.
Bill C-14 also includes a clause which requires Parliament to conduct a review of the legislation five years after Royal Assent. This will allow for a parliamentary review of these complex issues as well as the evolving experiences of Canadians in implementing medical assistance in dying.
Finally, I cannot discuss this legislation without a reaffirmation of the importance of improving access to high-quality palliative care for all Canadians. Our government is firmly committed to investing in this area, and I look forward to working with provinces and territories to ensure equitable access to all options for care at the end of life.
[Translation]
We believe that this bill furthers the individual autonomy of Canadians in compliance with the Supreme Court ruling in Carter, while ensuring the protection of vulnerable Canadians, as well as the conscience rights of health care providers.
[English]
We know that this legislation is only part of the conversation. That's why I want to take the opportunity to highlight our government's commitment to palliative care. Canadians have resoundingly told us they want to receive care at home, and we have listened and are prepared to make significant investments in the order of $3 billion over the course of our mandate to help deliver better home care for Canadians, including palliative care.
[Translation]
I have already contacted my provincial and territorial colleagues to discuss the necessary changes to our health care system so as to allow home care, including palliative care, which is a shared priority.
[English]
The bill we have tabled is the product of careful consideration, of the need for personal autonomy, access to health care services, protection of vulnerable people and the conscience rights of providers, as well as the clear support that Canadians have voiced for this change.
I want to thank everyone who has thoughtfully and respectfully engaged on this challenging issue. I know this committee will hear a wide range of views and opinions over the coming days. I look forward to following your discussions, and I am very much looking forward to time to interact this afternoon.
The Chair: Thank you, minister.
We'll move to questions now, with Deputy Chair Jaffer.
Senator Jaffer: Thank you, minister, for being here. I'm very pleased to hear you emphasize palliative care. As you know, we have all received many emails, and one of the biggest criticisms is about palliative care. So I encourage you to move fast on that.
I have many questions, but I'll start off with proposed paragraph 241.2(2)(a), where it says:
(2) A person has a grievous and irremediable medical condition if
(a) they have a serious and incurable illness, disease or disability;
I'm curious as to why you used "incurable'' as a synonym for "grievous and irremediable''. "Incurable'' as I understood when I read the Carter decision, was not in that, so you have expanded it a bit. I would like to hear your reasoning for that.
Ms. Philpott: First of all, just to follow up on your comments about palliative care, I want to say that I know the Senate has done some incredible work on this. Several senators have produced some very important reports about the need for palliative care. I look forward to working with folks in the Senate. We will need your support as we move forward on that. I'd be happy to discuss that in more detail later.
In terms of the wording you are referring to, there was an attempt made to give some measure of an understanding of the concept of grievous and irremediable. There was a need for elaboration to clarify that, for instance, there are grievous and irremediable conditions that may be benign, episodic and self-limited. There was a desire, within this legislation, to put enough of a framework around it that it would support health care providers who were trying to determine whether someone would qualify.
Senator Jaffer: Thank you for recognizing the work of the Senate on palliative care. I would be remiss if I didn't mention former Senator Carstairs for the tremendous work she has done on palliative care.
I would like to follow this up with the issue of the nurses. We are fortunate that you are a medical practitioner as well. A number of questions have come up about nursing. I, and I'm sure many of my colleagues, have received emails about you including nurse practitioners in the bill. One of the challenges that I have heard of is that you may include this. But in my province of B.C especially, I've heard from nurses saying, "We've been told that we may be included in the bill,'' but their provincial bodies have not set up a protocol as to how they can practise this. I'm wondering what discussions you've had with the provincial professional bodies as to these nurses. You may exempt them, but they may get punished by their provincial bodies.
Ms. Philpott: Thank you. It's an excellent question.
I will just let you know that I did meet with Senator Carstairs, whom I respect greatly, and had great conversations with her, and I look forward to working with her in the future as well.
In terms of the matter of nurses, as you can imagine, there are a number of reasons this was put in place. I must say I have tremendous respect for nurses and nurse practitioners, who I've worked with closely over the years. I know that in my own province of Ontario, for instance, nurse practitioners enjoy quite a wide scope of practice. It's not the same as family doctors, but in many regards there's a large overlap in scope of practice between nurse practitioners and family doctors. In one part, we wanted to acknowledge, of course, that this was not unreasonable to include in their scope of practice.
I would say that the largest driving force for why we decided to include nurses and nurse practitioners in the legislation was the fact that we need to ensure access. So when we determine as a government that we believe access to medical assistance in dying is perceived to be a medically necessary service, we need to be sure, as you know, under the Canada Health Act to deem that all medically necessary care be available and accessible across the country, as part of the principles of the Canada Health Act.
In remote and rural situations, we knew that there would be challenges around access. As you may know, in the Far North, for example, there are many places where doctors are not readily available.
The matter of regulations, as you very clearly said, lies in the hands of provinces. I can tell you that my officials are working very closely now with the provinces and territories around those regulations. We hope that they will be rather consistent across the country, but we recognize that the regulations as to what lies within the scope of practice do differ somewhat from province to province. I will be very much looking forward to working with the provinces and territories to encourage them to look at how far they can allow the eligibility of this particular kind of care to be part of the scope of practice of nurse practitioners.
Senator White: Thanks to both of you for being here, particularly the minister. Twice now, I've heard this afternoon about the parliamentary review in five years, which I think is excellent.
What type of reporting requirements will we put in place with this legislation so that we can actually look province by province to ensure that it's being followed, first, and, second, that we have a good understanding of what it should look like in five years?
Ms. Philpott: That's a very important question. I think what may not come out as strongly in the legislation but you may have heard us talking about as the legislation was tabled was the fact that we will be putting in place a rigorous monitoring system. It reads in the legislation that there's a requirement for the medical practitioner to report and to fill out appropriate paperwork related to the practice.
We've been working with the provinces and territories. Some of them have done quite detailed work in terms of looking at the kinds of details they would require health care providers to report. I would like to see not only quantitative details in terms of how many people have accessed the care and the actual medication they received and the the timing was around that, but hopefully there will be much opportunity as well for qualitative reporting in terms of the challenges that were faced.
One or more committees will get under way to address these more complex questions that we don't feel that we were able to fully land on up to this point. That monitoring system, which will be a pan-Canadian system, may have a little bit of variation from province to province, according to their decisions on that. I think that we will have quite a robust amount of information available that will inform those decisions.
Senator White: What would those committees look like that will be doing that work? Are we talking about committees of Parliament, committees of government or committees of Justice?
Ms. Philpott: My understanding is that they would be committees of Parliament. Having said that, I don't think that we've landed entirely on what those are going to look like. We have made a commitment to provide more details on that in the fall, and that would be an area that I think the Senate would be in a good position to be able to give some recommendations on. We have made the commitment in the legislation to establish one or more committees to look at those complex matters.
Senator White: Thank you very much, minister.
Senator Cowan: Welcome, minister. I have a couple of questions. I'll try one, and, if I don't get to the second, I'll defer it to the second round of questions.
You've spoken a number of times about the importance of having conversations with the provinces and territories, and these are ongoing, but what happens if one or more of the provinces simply doesn't take any legislative or regulatory action? I know one, at least, that has no plans to do so. Do you think that inaction or lack of action would have an effect on your desire, and I'm sure our desire, to make sure that whatever regime is put in place is sufficiently robust that it would provide equal access, equal opportunity, equal regulation and equivalent availability of this medical service from coast to coast to coast for all Canadians?
Ms. Philpott: Thank you for that question.
As you know, fundamentally this is a piece of legislation that addresses the Criminal Code in terms of protection for health care providers to exempt them from criminal liability in terms of their participation in supporting patients with medical assistance. In that sense, a medical practitioner in the country working within this legislation and the associated regulations — you folks are the experts on this — would not be prosecuted.
You point out the fact that there may be some arguments from some provinces that they don't necessarily want to agree that that's a medically necessary service.
Senator Cowan: Let's assume that one or more provinces makes no legislative or regulatory intervention at all. Are you satisfied that if this bill were passed in its current form, there would be equivalent equal opportunity and equal access across the country?
Ms. Philpott: I'm confident that this would provide adequate protection for health care providers.
Senator Cowan: I'm not talking about health care providers. I'm talking about access for the patient.
Ms. Philpott: Access is another question, but as you know we have the challenge of access on other issues in Canada that we deem to be medically necessary services. We've had that conversation with provinces around other issues of access, and we've actually made encouraging progress in terms of making sure that medically necessary services are accessible across the country.
Senator Cowan: There has been some discussion — and I think Senator Lankin raised it earlier — around the issue of palliative sedation and do-not-resuscitate orders, which are common across the country. You, as a practitioner, have a great deal of experience with that sort of thing and providing pain medication for people, knowing full well that if sufficient medication is provided in increasing doses, the result is death.
How do you compare that that's okay — and we and you understand that — but yet you're not prepared to recognize the desires, I think, of large numbers of Canadians to have embedded in this legislation the right to provide by way of advance directive for medical assistance in dying? How do you reconcile those positions?
Ms. Philpott: You're absolutely right that there have been a number of approaches to end-of-life care in the past where people make the decision not to deliberately extend life. By instituting a do-not-resuscitate order, it's an act of omission as opposed to an act of commission. This legislation allows an act to be committed as opposed to not instituting an act that would keep a person alive.
Having said that, I think what you're getting at is the issue of advance requests that are obviously acceptable in the case of a do-not-resuscitate order but we've not necessarily implemented them here. There are a number of reasons that we took into consideration for deciding not to include advance requests at this time. In part, it's related to some of the challenges we know health care professionals find in instituting other kinds of advance directives. We heard this quite loudly and clearly from organizations like the Canadian Medical Association and other agencies, that it can actually be incredibly challenging to know in advance and be able to reaffirm a person's wishes in advance.
So while those are very different circumstances, it's part of what made us realize that we weren't ready to make a decision on advance directives at this time.
Senator McIntyre: Thank you, minister, for being here today.
I would like to go back to the issue of the monitoring regime. The bill is very clear: It authorizes the Minister of Health to make regulations creating a monitoring regime. For example, new subsection 241.31 creates legal obligations on physicians, nurse practitioners and pharmacists. It also creates offences for failing to comply with regulations on monitoring.
That said, does Parliament have jurisdiction to collect information for the purpose of monitoring medical aid and dying? Should we leave this to the provinces?
I'm asking you this question because the external panel on options for a legislative response to Carter heard support for oversight mechanisms, but there was no agreement as to whether it was appropriate for that oversight to be done at the federal level. Could I have your thoughts on that, please?
Ms. Philpott: You've alluded to some of the challenges in our wonderful system where health care is a shared responsibility between the federal government and the provinces.
This is something where we believe the federal government needs to play a role, and many provinces are very happy that we will play a role in taking some responsibility and using some of our federal resources — things like the Canadian Institute for Health Information. My deputy minister can give you an idea of some of the other pan- Canadian organizations that are comfortable with collecting pan-Canadian data. So we are well placed to try to gather some of that information.
As you have indicated, however, it may be that we would suggest a particular set of data that we would like to collect and monitor this information. We will recognize, of course, that provinces will have jurisdiction in terms of further developing that. They may add to that themselves, or there may be some portion of it that they won't be a part of, but it will be an area that we'll need to discuss very closely with the provinces and territories.
On the basis of past experience, we have had a very positive relationship with the provinces and territories on the gathering of health information to inform future decisions.
Senator McIntyre: And hopefully you'll reach a consensus.
Ms. Philpott: We certainly hope so.
Senator McIntyre: Thank you, minister.
Senator Joyal: Welcome, Madam Minister.
I have a problem with your intention to defer the implementation or the access to physician assistance in dying to three groups of people: advance directives, mature minors and mentally ill people. I will tell you why. Legally, I think your bill is going to be struck down. It's because you exclude those people without determining the number of times within which those people will have access to their rights.
We're talking about a right recognized in the Charter. A patient has a right. A patient in Canada who suffers grievously and irremediably and who cannot tolerate that suffering has a right to physician-assisted dying. This is Carter. When you exclude those three categories without establishing a clear deadline within which Parliament will legislate the specific conditions or safeguards that might be totally reasonable and rational, I think you fail to implement the right in Carter and the right they have under the Charter.
We heard that at the special joint committee, from the expert panel appointed by the previous government. Benoît Pelletier, the lawyer, told us that by excluding the mature minor, you will open a challenge under section 15. In a decision in 2009, the Supreme Court has already established a criterion under which a mature minor has a right to decide for himself or herself. It is paragraph 95 of A.C. v. Manitoba (Director of Child and Family Services). The court stated seven clear criteria. That was in 2009, seven years ago. So the Supreme Court has already established the benchmark.
For you to just say, "We'll push that in the future,'' in my opinion deprives patients. It's not the rights of doctors; it's the rights of patients we're talking about here — the right to have access to physician-assisted dying for people who are suffering intolerably.
That's why I think your bill will not meet the test of the court. It could be challenged by a mature minor who will be able to answer the seven criteria. The bill is not humane. It will establish a system under which, for an unlimited period of time, people will be waiting for what Parliament will decide one day.
I can't accept your arguments, I humbly submit to you.
Ms. Philpott: Thank you for your comments. I'm pleased to hear your perspectives on this.
I want to underscore to all of you, and I hope you will accept this, that this piece of legislation marks a monumental change for us as a society. I don't think we should underestimate how big a change this is.
This decision was made, as you say, for the reason that we needed to respond to a Supreme Court decision. That Supreme Court decision was made to respect the rights of those individuals to be able to choose the end of their life, to be able to be put out of their suffering. We absolutely and fundamentally affirm the autonomy of individuals and their right to be able to receive this care. That is why we have responded to the court decision under a very short timeline.
The Government of Canada has other principles that it needs to uphold at the same time. The solemn responsibility that all of us undertake when we are here representing Canadians is that we are also asked to protect life. We are also asked to recognize that there are vulnerable people who may potentially be inadvertently harmed by legislation.
That solemn responsibility that we undertook made us look at those particular conditions and say, yes, there are many people who would like us to go further. Having said that, I don't think one can argue that on any of these issues there is a broad-based international consensus as to how one can adequately protect vulnerable people on any of those issues. You may disagree with me on that, but in drafting the legislation, it was our understanding that we needed to be sure that we had adequate safeguards in place that would protect vulnerable people.
The piece of legislation that we landed with is something that I believe is the right approach for us as Canadians. I believe that it allows us to respect that personal autonomy but to be sure that we thoughtfully consider the ramifications and make sure that no vulnerable person's life will come to an end without adequate protection.
Senator Plett: I'm going to ask a question that I asked your colleague the Minister of Justice earlier. I'll ask two questions. I'll ask them immediately so I can get both in.
Nurse practitioners who are independent of one another can assess whether a patient meets the criteria and can ultimately administer the lethal substance, and yet nurse practitioners are unable to prescribe narcotics in certain parts of our country. So if I'm in the hospital excruciating pain and I want a nurse to prescribe morphine to me for my pain, she's not allowed to. But then I change my mind and I say, "If you can't give me morphine, then kill me.'' She's allowed to do that. I can't square that box that she can't give me a painkiller, but she can kill me.
I would like you to answer that, and please don't give me the answer that your colleague gave me that we'll leave this up to the provinces. This is federal legislation that we have here.
The other question I have — and I am at least in part in agreement with Senator Joyal that we have a problem here with the mature minors, but I take the opposite approach that he does. I understand the department is undertaking studies in a number of areas, one of which would explore the possibility of extending this right to mature minors. So here we are considering allowing a person who can't buy a bottle of beer or who can't vote or who can't go to war for me, but they can choose to have somebody help them die. We would have had 11 deaths in Attawapiskat a few months ago had that part of this bill been in effect.
Can you assure me, minister, that the government will make sure that doctors are not allowed to take the lives of children and that people who can't administer a painkiller to me will not allowed to help me take my life?
Ms. Philpott: Thank you for your very important questions.
On the matter of nurses, perhaps I can clarify for you that it varies somewhat with provincial regulations, but in fact nurses can prescribe painkillers under directives. There is a concept that happens in the practice of medicine where there is a certain scope of practice that nurses, nurse practitioners and other health care providers can work in under ordinary circumstances.
Senator Plett: In all jurisdictions?
Ms. Philpott: I can get clarification from my officials, but as far as I know, each jurisdiction will lay out for itself, province by province, the regulations under which nurses function in a province. There are colleges that itemize that, the same as there are scopes of practice that are itemized for other practitioners.
Nurses may also respond to directives from a physician. So I may have a nurse who doesn't, for instance, have within her normal scope of practice to do a urinalysis, but I, as a doctor, could say to my nurse, "I give you a directive that if a patient walks in here, even though they don't see me and I think they have a bladder infection, you can do a urinalysis.''
Your argument was how can this nurse help to assist in dying when he or she may not be able to prescribe painkillers? I'm telling you that that nurse, under directives, could potentially provide a painkiller. Hopefully that responds to that specific argument.
Senator Plett: It responds to it, but it doesn't answer it; I'm sorry. She can do it under directive in one area and in another she can do it on her own.
Ms. Philpott: Let me respond to your second question. I think your second question beautifully illustrates the diversity of opinion on some of these challenging issues. I hear you. I hear your anxieties around the matter of mature minors and the matter, in the case of Attawapiskat, not of mature minors but of people suffering from mental illness. Those are some of the very reasons why we wanted to be very sure that those particular matters had more study, again, for the matter of protecting the vulnerable.
Having said that, I will tell you that there are, as you can tell from your colleagues around the table, people that would say to you that if a 17-year-old is dying from cancer and is suffering intolerable pain, what's the difference between a 17-year-old and an 18-year-old?
I think this is a conversation where we need to be fundamentally open to understanding the perspectives of people that think very differently. We need to acknowledge that none of these answers are easy. That's the very reason why, on these very delicate matters, we've decided that we don't have enough information to make an adequate decision. We believe this bill needs to be passed through the appropriate stages by the June 6 deadline that the Supreme Court has given to us. I think it would be a very serious problem for us, as a country, if there is not a legislative framework in place by that time. So what we have decided to do on those matters where you can see the obvious challenges is say let's study those more; let's make sure we make the right decisions.
Senator Batters: With respect to the example you just gave to Senator Plett regarding a 17-year-old suffering from terminal cancer, there is no terminal illness requirement in your government's bill, minister. I would point that out to you to start.
I want to focus on the issue of psychological suffering. You practised as a family practitioner for many years. You would have seen, then, in all the time that you practised, that psychological illness, while very serious — I don't deny that — is treatable, not terminal, and that there is more complex decision making involved.
Given that, you indicated in your opening remarks to the House of Commons committee — and you made very similar, perhaps the same remarks, to us today — that the proposed legislation also does not permit eligibility solely on the basis of suffering from mental illness; that there is no denying that mental illness can cause profound suffering; and that illnesses such as chronic depression, cognitive disorders and schizophrenia raise particular concerns with respect to informed decision making.
Given that, I'm wondering why you didn't include additional safeguards for people who are suffering psychologically. It is included in your bill. The only place that it is indicated that it's not eligible for assisted suicide on its own is in the preamble, but you don't require a psychiatric assessment; you don't require a more significant wait period. I understand the Mental Health Commission of Canada suggested a three-month wait period. Here you have a maximum of two weeks. And you would allow two nurse practitioners, not even one doctor, to provide the approval, assess somebody's competency and administer it.
Ms. Philpott: Thank you for the question. It's Mental Health Week, so a good time for us to be talking about mental illness.
You pointed to one of the reasons why it would be challenging, and that's the matter that I raised in my speaking remarks in terms of the capacity to give informed consent as one of the challenges there. But in terms of how we protect people who are suffering from mental illness alone, as opposed to a physical illness, which is the reason for their request, I think you will find that the best way that is protected in this legislation is in the section that defines "grievous and irremediable medical condition'' and speaks to the fact that "natural death has become reasonably foreseeable.''
For people who are suffering from schizophrenia, depression, anxiety, et cetera, natural death is not a reasonable foreseeable outcome. As you've said, those are not incurable conditions in large part and there are treatments available for those. It was the assessment of our team as we gave instructions for drafting the bill that the matter of reasonable foreseeability of death would exclude people suffering from mental illness alone.
Senator Batters: As your colleague indicated a little earlier, everybody's death is reasonably foreseeable, to some extent. I want to just focus on the particular aspect of somebody who is suffering with a very serious physical illness and also has a mental illness. Why didn't you include additional safeguards for those types of people to make sure that they are properly consenting to this? As you've acknowledged, there is more complex decision making involved for those people. Why is there nothing additional rather than simply getting all of these approvals and assessments of competency from two nurse practitioners?
Ms. Philpott: That matter is covered in terms of the requirement that a person must give informed consent. The matter of informed consent is something that health care practitioners are quite comfortable with. In fact, every decision made in the process of shared decision making requires that a person have the capacity to give consent. We recognize that there will be people suffering from medical conditions, and it will be the medical condition for which they would ask for assistance in dying. But if they have, for instance, a psychosis and were out of touch with reality on that basis, they would not be deemed capable of receiving informed consent.
[Translation]
Senator Boisvenu: Good afternoon, minister, and welcome. As I said to your colleague a few minutes ago, we are examining a bill which aims to manage a very complicated and complex situation. Everyone is trying in good faith to make this the best possible bill. The bill imposes many restrictions, or at least many guidelines, on health care professionals and the physicians who will have to manage the process of putting an end to the life of an individual, either a patient or another person.
In Quebec, professional misconduct is generally handled by the College of Physicians rather than the justice system, unless a criminal act has been committed. There is a clause in this bill that surprised me. Section 241.2 was added to the Criminal Code so as to oblige a physician who prescribes a substance to put an end to a person's life to inform the pharmacist of the use made of the substance. I am trying to understand why this point was included in the bill so as to amend the Criminal Code; it forces a professional who deals with another professional to provide a reason for the use of a substance.
[English]
Ms. Philpott: You are wondering why there is a requirement.
[Translation]
Senator Boisvenu: Why is there an obligation for the physician to inform the pharmacist that the substance he is prescribing will be used to end a patient's life?
[English]
Ms. Philpott: Part of this speaks to the monitoring that is necessary. I don't know whether you're going to be hearing from the Canadian Pharmacists Association, but there has been a strong request from them to make sure there is good interaction between the health care provider and the pharmacist so they understand the purpose for which the medication is being given.
Most of these medications, as you may not be aware, are generally used for other conditions. It's important for the pharmacist to understand the circumstances that they're being used for, what we would call an "off-label'' purpose. It's important that the pharmacist be aware of why the medication was being given.
[Translation]
Senator Boisvenu: If the physician does not inform the pharmacist, will the Criminal Code be invoked, or will the College of Physicians be advised? Will this be considered professional misconduct, or a criminal offence?
[English]
Ms. Philpott: I may need to double-check with my officials to clarify that. My understanding is that it would be a regulatory matter as opposed to a criminal matter.
It would be considered a regulatory infraction, is the consensus of the team here.
The Chair: Minister, how much time can you spend with the committee?
Ms. Philpott: I have probably 10 more minutes. I must say you have very good questions. You're stretching me.
Senator Lankin: Thank you, minister, for coming here.
I completely appreciate the delicate and sensitive balancing act that we must all consider as we go forward with this. You've heard a few references to the fact that I've raised issues and concerns around the lack of ability to give advance directives. I'm going to come back to this discussion with you.
Just like there's a variety of scopes of practice for different health care professionals across the country and different palliative care regimes and medically necessary services access, there are also different capacity and consent-to- treatment regimes, including age of consent — I have the scars from bringing in that legislation in Ontario — and substitute decision making; so a whole range of these things.
We have worked through on a provincial basis in many places some of these difficult issues. While I recognize that at a national level this brings an acute focus to it, it is not far from the issues that we have dealt with already in terms of health care policy.
There are two scenarios. Please help me understand why one is more difficult for this bill to understand than another and why this would bring about advance directives.
In the situation where someone has lost the capacity to make a decision but has given an advance directive and/or a substitute decision maker offers an opinion without an advance directive, there are everyday situations where substances are withheld and disconnected, like saline hydration drips. This legislation is about administering a substance; that situation is taking away a substance.
Another situation is two patients suffering from progressive MS. They both have terrible mobility incapacities and are in excruciating pain. One of them also develops cognitive impairment and the other doesn't. One can seek a peaceful passing, and the other will not be able to give an advance directive to do so when it gets to that point.
I don't understand, given that we've been through many years of debate about these regimes and putting them in place, why all the same arguments are being raised. What makes the flip side of this so difficult for us to move forward and to educate people about how to deal with patients and families and provide people with the same access?
Ms. Philpott: Well, you've certainly raised good examples of the nuance and the challenge. You've also itemized the reality of the fact that there is a difference between withholding treatment versus administering treatment, and that's in large part where the fundamental difference lies.
Just to reiterate, we looked at international examples of this. If you look with an open mind to the jurisdictions where advance directives have been in place, it's safe and fair to say that they've had mixed reviews in terms of the challenges instituted with them.
The most common challenge you hear is the fact that it's extremely difficult when it comes to a later date and the person has written the directive and they say, "When I get to the point that I can't eat, can't feed myself and no longer know the date and time, I want you to end their life.'' It's a huge burden on the health care provider who sees that person down the road and says, "This person meets the criteria where they said they wanted to end their life peacefully and they don't look uncomfortable, and I have no way to reaffirm with them that's what they, in their current state, actually wish at this point in time.''
Senator Lankin: It would still have to meet the other criteria.
Ms. Philpott: The other thing I would say is that by putting those committees in place to further examine these issues, we are putting those committees in place with no predetermined outcome as to what the decision would be. But at this time, between now and June 6, we do not have enough information to make that decision fairly, and we're committed to looking at those issues.
If you want to get in touch with me later, I would love to hear from you.
Senator Duffy: Minister, I will make this quick because I know you are on a tight time schedule.
I represent Prince Edward Island, and the women in P.E.I. have for some time had concerns about access to full medical services for women. That has recently changed, and that's a good thing.
Picking up on what Senator Cowan said, have you thought about what mechanisms the federal government might have — i.e. the Canada Health Act, cash, money — to ensure that this service you're proposing will be available everywhere in Canada?
Ms. Philpott: Thank you. That's an excellent question. The P.E.I. example in terms of abortion is a very appropriate example in this case.
I think you're aware that the biggest mechanism we have is the fact that the Canada Health Act requires the upholding of a number of principles, including accessibility. The Canada Health Transfer, as you are also aware, is dependent upon assuming that provinces and territories uphold the Canada Health Act and all of its provisions.
Senator Duffy: That would apply in this case?
Ms. Philpott: That would apply in this case.
The Chair: Thank you, minister. We appreciate you staying a little longer.
Ms. Philpott: It has been a pleasure to be with you all. Thank you for your consideration of the legislation. I look forward to any further questions.
The Chair: The Minster of Justice has returned. Welcome back, Minister Wilson-Raybould. We will begin with the second round list of questioners I had earlier before you had to leave. We will begin with Senator Eaton.
Senator Eaton: Thank you, Mr. Chair.
I'm thrilled you're putting $3 million towards palliative care, because I think that will help a lot of people. I hope a lot will go into training, as it's a real expertise. Can you reassure me, minister, that provincial regulations will not force health care practitioners to administer assisted death?
Ms. Wilson-Raybould: I appreciate and I imagine that there was some conversation around palliative care with Minister Philpott.
One of the things in terms of the discussions that we've had far and wide across the country in the context of medical assistance in dying is the fundamental need to ensure that we have comprehensive palliative care that's available to everyone. That's a discussion that will continue to take place.
There is nothing in our legislation that would compel a medical practitioner to perform medical assistance in dying. The jurisdiction would be within the provinces and territories.
Senator Eaton: Can you explain that to me? In other words, Ontario can't look at your legislation and say, "We're going to make a difference because we're going to force people in hospitals to practice it if they do not wish to''?
Ms. Wilson-Raybould: This is a discussion that Quebec has already had and Ontario is having. This is something that Minister Philpott is working on closely with her counterparts in the provinces and territories. In terms of the conscience rights of medical practitioners, that is in the jurisdiction of the provinces and territories. I know a number of provinces have started, including Ontario, to engage in this discussion to not compel medical practitioners to perform medical assistance in dying. I don't know if the deputy has any more detailed information about what's happening within the provinces and territories, but I hope that answers your question.
Senator Eaton: It does. What you're saying is it does not compel Ontario. Ontario could still turn around tomorrow and force people to administer death and dying if they so choose, if that's what the province decided, regardless of what you've written in your legislation?
Ms. Wilson-Raybould: Well, the provinces and territories have the ability to put in the regulatory framework that they deem appropriate. Having said that, the regulatory framework put in place must be Charter-compliant.
Senator White: Thanks for returning, minister.
I'm sure you've spent time looking at the Quebec legislation. They've done more research than all provinces combined on this area. In comparing the two, was there no a consideration to looking at adopting their legislation, or if not directly what they have, as close as possible? They certainly have some pieces that were missing around the terminally ill and things like that.
Ms. Wilson-Raybould: As I said in my opening remarks, we had the benefit of looking at all jurisdictions that have medical assistance in dying — some nine jurisdictions — and we certainly did look closely at what the Province of Quebec has done. Their discussions and debates occurred over a substantive number of years. The debates around their legislation took place prior to the Carter decision. Of course, we were mindful of best practices and experience in other jurisdictions but sought to specifically respond to the factual circumstances in the Carter decision in drafting our legislation. There are similarities, I think it's fair to say, but there are some differences.
Senator White: Do you think the Quebec legislation meets the Carter decision?
Ms. Wilson-Raybould: I have had the opportunity to speak on an ongoing basis with the Attorney General in the province of Quebec, and she indicated that they, like all jurisdictions, will be considering the legislation very closely.
Senator White: So that means no?
The Chair: Senator Jaffer.
Senator Jaffer: All afternoon, as I've been listening to you, minister, and to Minister Philpott, one of the concerns I have had is with regard to areas of the country where there is very little medical help. You would know this very well, of course, because of the work you've done previously on reserves and in the North. How are we going to ensure that the same kind of accessibility exists for vulnerable people in those areas? For example, I understand that some places don't even have a medical practitioner or nurse practitioner. Are you making any special provisions for people in those vulnerable areas?
Ms. Wilson-Raybould: Thank you for the question.
I would imagine that my colleague Minister Philpott addressed her substantive mandate letter in terms of engaging with the provinces and territories in the renewal of the health accord and ensuring that all Canadians have the same access to health care programs and services.
You referenced vulnerable people who live in remote areas. There are specific concerns, certainly, with respect to indigenous communities. There are many measures that our government is looking at and undertaking to invest in indigenous communities in our 2016 Budget. One is ensuring that we work closely, in a substantive way, with communities to ensure that we can provide the services required to address some of the root causes that create gaps in the first place. Those include poverty, housing and ensuring that we do as much as we can to provide those necessary circumstances to individuals.
Senator Jaffer: All afternoon we've been hearing the term "reasonably foreseeable.'' From what I'm gathering, based on what I've heard, it's based on flexibility. How do you ensure consistency across the country? There's no definition of "foreseeability.'' How are we going to achieve consistency across the country?
Ms. Wilson-Raybould: That's a great question. We, as I indicated, purposefully drafted our eligibility criteria, including the four elements around "grievous and irremediable,'' and concluded that death has become "reasonably foreseeable.''
When the four elements are considered in the totality of the circumstances of the individual patient, we saw fit to not put a specific timeline around what reasonably foreseeable is, but to put in place the confidence or the ability of medical practitioners to make that determination for themselves based upon the relationship they have with the patient, their expertise and recognizing that we live in an incredibly diverse country. Patients present themselves with incredibly diverse circumstances, so it's that flexibility that we thought would be best placed in terms of medical practitioners making that determination based on what their patient presents.
The Chair: Senator Plett.
Senator Plett: I asked my questions of the officials before. Unfortunately, I didn't get a very good answer, but I'll accept what they gave me and pass it on.
Senator Joyal: I'm not in the same position as Senator Plett. Thank you, senator.
Madam Minister, I'd like to come back to the last "Whereas'' of the bill, especially the last part, wherein you state that you intend to:
. . . explore other situations . . . in which a person may seek access to medical assistance in dying, namely situations giving rise to requests by mature minors, advance requests and requests where mental illness is the sole underlying medical condition;
You recognize in this preamble that there are at least three other groups of people who should have access to physician-assisted dying. That's what you infer by stating their classes very specifically. In so doing, what you recognize is that those people — everyone in those classes — could have a right to access physician-assisted dying under section 7.
In my opinion, by not putting any deadline on recognizing their rights, you are open to challenges under section 15 of the Charter. We heard that argument from Professor Benoît Pelletier, from the External Panel for Options for a Legislative Response, which was established by the previous government and published its report last December. Professor Pelletier is on the record specifically on this issue.
Would it not have been safer for the survival of the bill, under a challenge on this section of the preamble, to put in place a deadline as the special joint committee did in its Recommendation 6 of the report? We were very conscious that we were excluding people in order to survive a challenge on the basis that the court has already recognized that right, and has already maintained the exclusion for a limited period of time for a specific objective. By making it open-ended, I think you're open to a challenge under section 15 of the Charter from people who found themselves in that class.
Ms. Wilson-Raybould: Thank you for the question, senator. As I stated and as we have explained in our explanatory paper we took into account Charter considerations.
I will say that the Supreme Court of Canada decision in Carter did not deal with mature minors, advance directives or with persons suffering from mental illness alone as a sole eligibility criteria to seek medical assistance in dying.
What we have heard, very loudly and from many diverse perspectives, is that these are more challenging issues that need to be considered in a substantive way to get more evidence of the risks and benefits with respect to these three more controversial issues. We put it in the preamble as a reflection to indicate that we are going to be engaged in further study on these three issues. It was not put there to presuppose an answer that, ultimately, medical assistance in dying would be made available in these three particular categories, but to ensure that our commitment is strong and that we need to have further discussions around this.
I want to be very clear that the conclusion of those discussions has not been predetermined, senator, but that the importance of these issues, and ensuring that we respect personal autonomy and substantively protect the vulnerable as much as we can, come into play when we have those discussions on those three particular issues. That's what we're committed to doing.
Senator Joyal: The court, in paragraph 127, states:
We make no pronouncement on other situations where physician-assisted dying might be sought.
The court was quite clear. There are other cases and situations where the court will recognize that a patient has a right to physician-assisted dying, especially if they fall into one of those three categories that you mentioned and that everyone recognizes. That's why I think this very paragraph leaves you vulnerable. You recognize it and the court has recognized it, but you don't establish any specific deadline for those people to exercise their rights under specific conditions.
We all agree that those three categories might need additional safeguards to the ones the bill contains. But by excluding them without any deadline, I think you negate them in the future without any real commitment in time to recognize those rights. The court infers that they might have the right to do it.
Senator Batters: With respect to the issue of terminal illness or end of life, this is an issue that Canadians have spoken loudly and clearly on in many different polling results on the external panel that were done with focus groups. Quebec requires that. All U.S. jurisdictions that allow assisted suicide require it. Why did your Liberal government choose not to require terminal illness and end of life?
Ms. Wilson-Raybould: The object of our legislation is to ensure that we respond, of course, to the Carter decision and provide medical assistance in dying to those individuals that meet the eligibility criteria, all four of the elements that are contained in terms of "grievous and irremediable.'' This is to provide the ability for patients that meet those criteria to have a peaceful passage into death.
Our legislation, while somewhat different from other jurisdictions, six of the nine jurisdictions look to and their legislation focuses on end of life. We have put in place "reasonably foreseeable'' other conditions that need to be taken into account by the medical practitioners in their totality.
There's a degree of flexibility in terms of what "reasonably foreseeable'' means, but we made a conscious decision to ensure that we provide legislation and a regime that enables persons who are approaching the end of their lives to make decisions about the ability to have dignity and have that peaceful passage into death.
Senator Batters: Very briefly on the issue of nurse practitioners, you indicated earlier that for your government this was an issue of access. That's why you, unlike almost everywhere, are going to allow nurse practitioners to approve a patient, allowing this, assess competency and administer it. You also said that this would be required in more remote areas, but your legislation provides no limitations on that, so this could be accessed anywhere in Canada. It could be downtown Toronto.
There aren't any limitations, and I wondered if that was the reason, to promote access in these specific rural or remote areas, why did you do that? Where did you get the basis of nurse practitioners? You mentioned Colombia earlier. Is that where you obtained an unusual requirement like this?
Ms. Wilson-Raybould: You're quite right, senator. The reality of the different areas of our country is that some individuals do not have access to physicians. We certainly recognize that the regulation of nurse practitioners and laws around nurse practitioners being able to provide medical assistance in dying is within the jurisdiction of the provinces and territories and they can legislate in that regard.
I will say that we had the opportunity to meet with the Canadian Nurses Association and have a deep appreciation for the substantive work that nurse practitioners do and the ability to engage and have substantive relationships with individuals in communities. We recognize for access reasons and the substantive regulatory requirements for that profession that would need to be in place, depending on what the provinces and territories indicate, that they should be in place. That's their decision with respect to nurse practitioners being able to provide medical assistance in dying in those regions.
Senator Batters: Do you mean that some provinces could allow nurse practitioners to do this and others could say no, nurse practitioners cannot do it, even though it's in your bill that it can be either doctors or nurse practitioners?
Ms. Wilson-Raybould: That's correct. It's up to the provinces and territories to determine if nurse practitioners will be able to provide medical assistance in dying.
[Translation]
Senator Boisvenu: Madam Minister, this bill, once it is passed, will no doubt apply to citizens for whom we have a great deal of respect. I am thinking of members of the military and veterans who often come back from their missions with very serious injuries.
Can you explain why the bill amends the Pension Act and the Canadian Forces Members and Veterans Re- establishment and Compensation Act? Please explain how the bill will change those acts.
Mr. Pentney: As you know, there are groups that fall under federal jurisdiction, such as veterans, and we do not wish to limit access to medical assistance in dying to other Canadians. The changes to legislation affecting veterans and pensions, for instance, are related to that aspect. We do not want to limit access to other Canadians. We have to change the system so that the families of veterans will not be —
[English]
I have to say it in English, I'm sorry. They're not disadvantaged by virtue of the veteran having had access to a medical aid that's available to other Canadians. It's really a consequential amendment.
The provinces and territories will have to look at other laws that they may consider changing as consequential amendments to ensure that surviving family members and others aren't disadvantaged by virtue of, if the law passes, the individual having taken advantage of something that the law makes legal.
[Translation]
Senator Boisvenu: Will the provinces have to go through the same exercise with regard to other professions, such as police officers, for instance?
Mr. Pentney: Yes, certain other situations have to be considered. We are unique in the sense that we are managing a medical system for a population.
[English]
I'm not aware of any province that runs a policemen's medical system. Police have access to a general system, but for federal inmates and for certain federal populations, including veterans, as you know, in that sense we have a parallel regime.
Senator Sinclair: My question has to do with the consequences of doing nothing, the consequences, I suppose, of this bill not passing or not passing by the deadline.
As I read the legislation that has been pronounced by the Supreme Court, it has in effect created a law in its decision that you are trying to change through this bill. By virtue of paragraph 147 — and correct me if I'm wrong, and I invite you to respond — the Supreme Court has declared that any physician who assists a person to die will not be guilty of an offence or be subject to prosecution provided that it is "a competent adult person who (1) clearly gives consent to the termination of life and (2) who has a grievous and irremediable medical condition'' — and "irremediable'' is defined as impossible to cure, as I have read that word — "that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.''
So the Carter decision seems to me to say that if those conditions apply, a physician cannot be prosecuted for assisting that person to die, in the absence of this or any other legislation. Am I right?
Mr. Pentney: Yes.
Senator Sinclair: Thank you.
The Chair: Minister, if you can take one more question quickly. Do you want to respond to that?
Ms. Wilson-Raybould: Can I speak to that and potentially speak to the other question posed by Senator Joyal?
The Chair: Go ahead.
Ms. Wilson-Raybould: You're quite right, senator, and it's very nice to see you around this table.
You're quite right in your interpretation. The Carter decision will apply if for some reason there is no federal legislation in place as of June 6. There is substantive concern, however, that there will be uncertainty in terms of medical practitioners and the application of what the Carter decision actually means. There will also be uncertainty of the ability of patients to access medical assistance in dying because of that uncertainty.
There will be the uncertainty for the medical practitioners in applying but also uncertainty with respect to safeguards that would be in place. There would be no safeguards in place after June 6. The applications for exemptions, which individuals are allowed to apply for right now to a Superior Court in their jurisdiction, would no longer be in place.
If I could speak briefly to Senator Joyal's comments with respect to the constitutionality of this legislation, I'm very pleased that we were able to put out our explanatory paper. It spoke to the Charter considerations with respect to this piece of legislation. While we have spoken to the Charter considerations, considerations do not necessarily mean that our piece of legislation is unconstitutional. I am confident that our piece of legislation meets the Carter decision and I am confident that it would withstand constitutional rigour because we performing our responsibility as parliamentarians to ensure we develop a complex regulatory framework for Canada at this time. That's what we've done, taking into account the diversity of opinions, and we sought to balance that fundamental need for balancing of rights, personal autonomy, in this case, and protection of the vulnerable.
Senator Lankin: I have been focusing on the issue of advance directives. From the perspective of the health care professionals, this legislation creates an exemption to protect from criminal prosecution.
In a circumstance where a health professional is respecting a DNR advance directive of a patient with brain cancer, let's assume they don't want heroic interventions but want to be kept comfortable and pain free. Your colleague and I talked about the difference between administering a substance and withdrawing a substance in a DNR circumstance. If a physician provides morphine or painkillers to depress respiration which leads to death — and this happens all the time — can you assure me they would not be prosecuted because they're doing that under the conditions of an advance directive?
Ms. Wilson-Raybould: In terms of what currently is being undertaken by medical practitioners in terms of —
Senator Lankin: With the prohibition of giving an advance directive for medically assisted dying. In circumstances that occur all the time right now under advance directives, would that health care professional now be at risk of being prosecuted because they're acting under an advance directive, which is prohibited by the legislation and the exemption to criminal prosecution?
Ms. Wilson-Raybould: As you know probably better than I, this occurs in hospitals and with patients right across the country. I would imagine that no more now, with legislation introduced on medical assistance in dying, would the doctor be at more risk than not.
We're going to, as you know, study advance directives and have some consideration around these issues in terms of do-not-resuscitate orders or in situations of palliative sedation that you speak about; that is, accommodating a patient in terms of the end of their life or making the best situation in that regard. What we need to discuss and study further is actually making and initiating the end of life by virtue of medical assistance in dying in terms of the advance directives.
It's an incredibly difficult issue. You've acknowledged the personal experiences you and many other Canadians have had. We hear these discussions when we go to town halls. These are not easy issues. This is a transformative shift in the discussions. We have benefited from those discussions. Canadians are engaged and involved, and this is not going to be the end of the discussion, so I look forward to the continuation.
The Chair: Thank you, minister. We very much appreciate your attendance and response to senators' questions.
We have about one hour remaining, so we've asked officials from both Health and Justice to come forward. You can pose questions to whichever ministry you wish.
Senator Jaffer: Thank you very much for sitting so long and accommodating us.
I want to go to discuss third parties. I'm very interested. I understand it can be medical practitioners, nurse practitioners and exemptions for persons aiding practitioners. The bill says: "No person is a party. . . if they do anything for the purpose of aiding a medical practitioner or nurse practitioner. . . .'' I'm curious as to who you were thinking of in those circumstances.
Ms. Klineberg: Thank you, senator. It could be a variety of different people who might play a role in assisting the medical practitioner or the nurse practitioner in the various steps leading up to the provision of medical assistance in dying. For instance, a social worker or a psychologist may be asked to consult with the patient or their family to help determine if the patient is making a voluntary choice, if they're being coerced by a family member, for instance.
We had also considered the possibility that there might be a staff lawyer, at a large hospital, who might be asked to review all of the paperwork in advance of proceeding to determine that everything was in order.
Under a technical legal analysis, each one of those actions, when the party knows that it's in furtherance of the provision of medical assistance in dying, could render those people parties to what would otherwise be a homicide or the offence of assisting a person to die by suicide. In large measure, I think what was in mind were various other sorts of health care providers, but because it's possible that there might be other types of professionals involved, the language was made applicable to anyone. But they have to know they're helping a physician or nurse practitioner to provide it in accordance with the legal regime.
Senator Jaffer: One the things that really concerns me in this bill is informed consent. I have tried to find a way to describe it, but I haven't yet found one.
I see two tracks. I see that one track is voluntary euthanasia, where, almost at the very end, you have to be able to consent. Then there is assisted suicide, where you go to your medical practitioner. You get the prescription. You go to the pharmacist. You get the substance, and you put it in your fridge and wait until you decide to end your life.
At that time, when you decide to end your life, there is no consent, right? It's just whenever you're ready. Do I read this correctly?
Ms. Klineberg: In the sense that there's no medical practitioner or nurse practitioner obtaining your consent again, yes.
Senator Jaffer: So your consent is at the time you get the prescription, which could be two years before.
Ms. Klineberg: Yes.
Senator Jaffer: There are technical issues, like the prescription running six months. So the informed consent could be two years before, and then there is nothing else in place.
Ms. Klineberg: Yes. The primary reason for that has to do with the limits of the criminal law.
From a health law perspective, we would note that the provinces and the territories might be able to place protocols or parameters around medical assistance in dying when it occurs in the form of physician-assisted suicide. They might be able to put in place protocols that require the person to self-administer in the presence of someone as a matter of health law; but, as a matter of criminal law, the private act of a person to take action to end their own life is not something that the criminal law prohibits or gets involved in. The criminal law is really interested in that situation when there's the involvement of a third person. It's largely a function of the limits of the criminal law.
I will just add a little context on this particular point. The Provincial-Territorial Expert Advisory Group recommended that both modalities of euthanasia and physician-assisted suicide or medically assisted suicide be made available. They recommended that, in the case of medically assisted suicide, it be made available, including in the unsupervised manner that the legislation provides for. In their view, that really maximizes the autonomy of the individual to be able to choose exactly when the time is right and to have the comfort of knowing that the medication is present with them should their circumstances change in some way.
I would also note that it's a model that's based on the U.S. state law approach. Presently, four U.S. states permit only physician-assisted suicide, and it's based on this model where the patient can obtain the substance and take it home.
Those are additional considerations that might better help you understand that particular approach.
Senator White: Thanks again for the responses.
I must have missed part of this, because a lot of things can happen in 24 months. The mental health of the patient is no longer relevant, really, if they have it sitting in their fridge or cupboard like a loaded gun. New treatments might have come forward. There are no checks or balances in place to ensure us that things that might have changed are actually looked at. Is that correct?
Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada: Thank you, Senator White. Senator Jaffer's reference to two years was a hypothetical.
In order to get the prescription filled, you have to meet all the criteria. You must, first, have an incurable disease. You have to be suffering intolerably. The doctor has to have made a diagnosis that your medical condition and all the circumstances have changed and that death is "reasonably foreseeable.'' So you cannot get a prescription in advance for two years or five years from now. You cannot get a prescription to do an advance directive.
You have to be qualified. In other words, to get the prescription you have to qualify for the doctor to actually inject you, but instead of injecting you, you decide that you would rather die in bed at home with your family around you instead of at the hospital, or "I'd like to go up to the cottage and die at the cottage, because that's really peaceful.'' The doctor is not going to go two hours up to the cottage to watch you die.
That's why. It provides greater autonomy if you give the patient the ability to take the medication on their own terms, at their time, so it's a peaceful death. As the minister said, we're giving Canadians the right to a peaceful death when they're in the process of dying. So the person has to be in the process or on the path of dying already. You can't get it in advance of meeting the criteria.
Senator Joyal: I would like to come back to proposed paragraph 241.2(2)(d), the one that provides the new criteria:
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
You are probably aware of the two cases reported by CBC in Quebec whereby a person who was suffering from a disease — an irremediable condition — was denied physician assistance in dying by the doctor, because the person was not too close to death under the Quebec law. The person, in order to have access to physician assistance in dying, had to go on a hunger strike and deprive herself of all water to come to the point where the doctor came to the conclusion that the person was dying under intolerable suffering. Of course, if you deprive yourself of water, all the muscles contract and you suffer. So then the doctor prescribed the drug for her.
The problem I have with this new paragraph is that it will perpetuate that situation. It seems to me that it is totally inhumane and contrary to what the court has decided in Carter under the right provided by section 7. So you can't push people to put themselves into intolerable conditions in order to have access to medical assistance in dying. That's certainly not what Carter had in mind when the judgment was made public.
I hope we'll have the opportunity, as witnesses here — I have suggested the names of the persons who are involved in that case in Quebec. It was widely reported. There were two such cases.
So it seems to me that what you have put there — additional criteria — will lead to horrendous situations, and that's been public and reported in all details.
It seems to me before we accept that criteria, we have to evaluate the impact of it in relation to the practitioner who has to pronounce on the state of the "dying path'' of the person, while, in fact, the main criterion is the suffering. That's the main criterion of Carter.
By adding this, you will be confirming the kind of situation that I have just described to you.
Simon Kennedy, Deputy Minister, Health Canada: Senator, perhaps I can speak to the principles behind the way the bill was constructed, and then Justice can speak to some of the legal issues.
The ministers here and before the House of Commons earlier in the week noted that in pulling together the legislation, three different approaches could be taken. One would be to have an arbitrary length of time during which death was seen to be something that would happen. They have this in some U.S. states, where they say you have to have a prognosis that you will be dead within six months. The concern was that there is a great deal of evidence that it's very hard to make those kinds of determinations. If you do, to some extent it's arbitrary because you will have people who will live slightly longer and who might not otherwise be eligible. So that was one door.
Another door would be to not have this notion of death being "reasonably foreseeable,'' so you'd have something that is much broader than what is in the current bill. The ministers noted that the concern there is that it really brings into sharp focus all of the safeguard concerns for the vulnerable — that you have a heightened concern around vulnerable people if you don't have this criterion that death is "reasonably foreseeable'' in the circumstances.
The government has tried here to reconcile the competing interests, which is to recognize the concerns you have raised about people who are in terrible pain and suffering, but also the concerns around protecting vulnerable populations from exposure to early death, who might not wish that or who might be in situations where they might be coerced.
You see in the legislation an attempt to reconcile those, where death has to be reasonably foreseeable but the circumstances of the case are left to a medical professional to make that judgment. So looking at the totality of the circumstances and knowing that death is a reasonable and foreseeable outcome, it's really left to the medical professional to make the judgment. That was a very deliberate choice.
This is not really a piece of legislation designed so that people who are in terrible pain can make a decision to end their lives. This is a bill about people who are actually in that circumstance but on a path toward death, so that they can have a peaceful exit. That was a deliberate policy choice that the government made. I think Justice has determined that they believe this is compliant with the Charter.
Maybe we could speak a bit more to the legality.
The Chair: You can expand on that in second round.
Senator Batters: Before the Minister of Health came, we were right in the middle of Ms. Klineberg providing her answer to what Senator Jaffer and Senator White touched upon in this particular portion.
Ms. Klineberg, when you were indicating that answer earlier, you were saying the physician-assisted suicide section where someone potentially receives a prescription two or three years before.
Mr. Piragoff, earlier you indicated that that was a hypothetical. But it was a hypothetical that we posed at the briefing yesterday, and your official indicated that was a valid hypothetical.
I guess what I'd pose to you is somebody in their household, or some unscrupulous person, unfortunately, may be potentially influencing that person or even doing something worse than that, and you'd never know because there aren't any additional safeguards required in that circumstance.
Earlier, when you were responding to one of my colleagues here, Ms. Klineberg, you referred to U.S. state law for these sorts of things. But, of course, U.S. state law does require terminal illness in those few jurisdictions that have this, and also end of life. It probably wouldn't be a situation of that lengthy of a time frame. I'm wondering if you could provide a little more information than you provided earlier, Ms. Klineberg.
Ms. Klineberg: I agree with the comments of Mr. Piragoff. Just to clarify, before the prescription is provided, all of the eligibility requirements must be met. So this is a person who has been found by two health care practitioners who are qualified to make the determination that they are on a path towards the end of their lives. How long that might take, these are hypothetical questions that we're not in a position to answer.
In terms of unscrupulous individuals pressuring or taking advantage of a person in those situations, there absolutely remain criminal prohibitions which are very serious in nature which would prohibit that sort of conduct. Any person who counsels or influences or tries to encourage or incite a person to take the drugs themselves would be committing an offence, for which no exemption is provided. That offence is punishable by 14 years in prison. Any person who takes the drugs and somehow attempts to administer them directly to the person would be in fact causally responsible for their death and could be charged for culpable homicide, specifically murder. That's what the criminal law can do. The criminal law can prohibit these forms of conduct.
Senator Batters: I agree with that. It's just that hopefully in this regime we would know about those sorts of things.
Mr. Pentney, when you earlier appeared with the Minister of Justice, you both indicated that Canadian provinces could disallow nurse practitioners from providing assisted suicide, despite the fact that your bill provides either doctors or nurse practitioners. I wonder if you could point to me which provision of the bill provides that. Having a quick look myself after you gave that answer, I'm wondering if you're just referring to the definition of "nurse practitioner.''
Mr. Pentney: That's exactly the definition. It means a registered nurse who, under the laws of a province —
Senator Batters: Is entitled to practise as a nurse practitioner. It doesn't limit it.
Mr. Pentney: At page 7, subsection (7):
Medical assistance in dying must be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules or standards.
Senator Batters: Those are the only two parts?
Mr. Pentney: Yes.
Senator Batters: In a lot of ways, it seems this particular bill is putting things off on the provinces or regulatory bodies to take significant steps, and we could have quite a patchwork of situations across the country. Are you concerned about that?
Mr. Pentney: As the ministers have made clear, the government's intention by exercising the criminal law power, which is a federal power and applies from coast to coast to coast, is to establish a baseline or a floor. But recognizing that Canada is unique in the world as a federal state where we are exercising a criminal law power in respect of a medical procedure where, as the Supreme Court of Canada has recognized in a series of decisions, it is an area of federal and provincial jurisdiction, the government's commitment is to try to ensure a degree of uniformity that recognizes that the different provinces and territories have a role to play with respect to the regulation of medical practitioners and the professional conduct, expectations, standards, norms and guidelines.
We've seen a number of provinces starting to exercise that jurisdiction. Quebec led the way. Other jurisdictions are now out with guidelines, some courts, with respect to this interim period of exercise guidelines. The government would seek to ensure a degree of uniformity, and we are working actively with provincial and territorial officials to implement this.
But the Supreme Court of Canada has also made clear that in respect of the federal power, there are limits. The assisted human reproduction decision from the Supreme Court of Canada clearly prescribed limits on how far the federal government can go in prescribing especially professional practice.
We are unique in the world in trying to work this through, but the government's commitment is to try to achieve a reasonable degree of uniformity, recognizing that different provinces now treat nurse practitioners somewhat differently and have some differences. Those things will continue.
Senator McIntyre: I have two questions, one for Justice and one for Health.
The question for Justice has to do with the relationship between the Quebec law versus the proposed legislation. The proposed legislation calls for both assisted suicide and voluntary euthanasia. Quebec's health law permits only legal euthanasia. Then we have a mixture of terms. Quebec uses "end of life'' and the proposed legislation uses the words "reasonably foreseeable.''
Can both laws coexist, assuming the proposed legislation becomes law, or will Quebec have to amend its legislation in order to meet the federal standards?
Mr. Pentney: We are working very closely with provincial and territorial officials to look at, if the federal law passes, the steps they may wish to take, including with Quebec.
You're correct to note that there are differences between the federal and provincial law. But, if you like, there's a general prohibition. This bill proposes to open up a box underneath that general criminal law prohibition and say that within that box, the activity will be legal if it corresponds to the following requirements.
What Quebec has done is to partially fill that box. The federal law would not require them to fill it.
The Carter decision opens up a new set of questions. Quebec, I'm sure, is looking carefully at the Carter decision and its implications for their law, either under the federal or the Quebec charter. But it would be for Quebec to decide, and we are in active discussions with them about the ways in which these laws will align and those discussions will carry on.
Another province could decide to only partially occupy the box in terms of the scope of medical practice that they allow. That's effectively what Quebec has done.
Senator McIntyre: The Carter decision seemed to reassure Quebec as far as their legislation is concerned.
Mr. Pentney: I would leave it to the Quebec legislature and Quebec officials to describe that.
Senator McIntyre: My next question has to do with health, particularly for individuals with mental health issues. The bill does not permit medical aid in dying for individuals with psychiatric conditions, yet psychological suffering would meet the test for eligibility. What I hear is that people with a mental illness would be eligible for medical assistance in dying as long as they have met all of the eligibility criteria. I find this a little confusing between people suffering from psychiatric conditions as opposed to people suffering from psychological conditions. People with psychiatric conditions are out of the picture, yet people with psychological conditions would fit in as long as they meet all the other criteria. Could you clarify that for me, please?
Mr. Kennedy: I think the legislation talks about suffering, and suffering as a result of medical circumstances. Psychological suffering can be part of the suffering that gets considered by the medical practitioner in making the assessment, but it can't be the sole criterion. In other words — I think the minister talked about this earlier — psychological suffering, mental illness, cannot be the sole criterion. It can be one of the factors that are looked at in totality.
As an example, you may have somebody who has some sort of illness. They have a concurrent psychological issue — they're depressed or they have some kind of psychological pain — but it's concurrent with another illness which is actually quite serious and will perhaps lead to their death in a reasonably foreseeable period of time. If you've satisfied all the conditions in the legislation, the mere fact that you have this underlying psychological condition is not going to exclude you. But if a psychological condition is the sole basis, that will not be sufficient in the legislation to enable you to get access to medical assistance in dying.
Senator McIntyre: Even if you have a mental illness, you're not disqualified?
Mr. Kennedy: That is exactly right. The ministers have talked about this a little bit. There is the issue of the ability to give consent. You have to be able to freely indicate this is something you wish to have. You must confirm it.
Senator McIntyre: You can have a mental illness, but as long as you meet the other criteria, you're fine?
Mr. Kennedy: Exactly, senator.
Senator Plett: Mr. Piragoff, you talked about hypothetical situations a little earlier. I've been looking at some of the clauses here about reasons. There are situations where a pharmacist can simply give somebody a drug if it's been prescribed by a physician. You stated, however, the doctor may not want to go out of his way to drive two hours to a cottage. I think a person willing to administer something to kill a person might be willing to drive two hours.
I want you to walk me through a situation where someone goes to a pharmacist, purchases this drug, how long they can have that drug and what the process is of that person administering the drug. You're pointing to Ms. Klineberg, and that's fine. From start to finish, where does a person go?
I'm concerned that a doctor would allow someone with psychological suffering to drive to a cottage to kill him or herself. There is a fear of who they might kill on their way out to this cottage where they go to kill themselves. Can you walk me through that process?
Ms. Klineberg: The process begins long before the person would arrive at the pharmacy with the prescription. It begins with the person making a written request after they've been informed by a medical practitioner or nurse practitioner that their death has become reasonably foreseeable. They make a written request in the presence of two independent witnesses. They're assessed by a second medical practitioner or nurse practitioner. The two practitioners determine that they meet all of the eligibility requirements. The person might then obtain from the physician or nurse practitioner a prescription that would then be filled by the pharmacist.
As I mentioned before, there are limits to how far the criminal law can go in terms of regulating the private acts of an individual to end their own life, but that doesn't mean there aren't steps that the provincial and territorial governments or medical colleges might take to establish protocols around how this might transpire.
Senator Plett: It keeps on getting passed off to the provinces and territories when we are dealing with federal legislation. You're drafting a bill here that we're supposed to pass. Everything I've been asking is somehow not the federal government's responsibility; it's the province's responsibility.
You are telling me, though, that a person who has psychological suffering can run around with a drug in his back pocket for two years and then decide to do whatever he wants with that drug, and you trust someone with psychological suffering with this drug?
Mr. Piragoff: If the doctor has concerns about the competency of the individual, the doctor doesn't have to prescribe the drug. Nothing forces the doctor to prescribe the drug.
Senator Plett: Except the person asking.
Mr. Piragoff: But it's the doctor's decision.
Mr. Pentney: What Ms. Klineberg walked through is the process and the system, the individual meeting the eligibility criteria set out in the legislation. There is illness, disability or disease causing suffering or intolerable to the person, significant decline in capabilities where death has become reasonably foreseeable. They make a written request, followed by two medical physician witnesses and a 15-day reflection period. Beyond that, Quebec says that the only way this can happen is the doctor must administer and remain with the person until their death. That's what is said in the Quebec legislation.
Carter treated both the situation where the doctor is administering and the other situation where the individual is administering as falling within the possible constitutional requirements. What the legislation would allow, then, is when a person got to that stage, if it's their wish, and they meet all of the eligibility criteria, a physician may administer the drugs. The law is opening up the possibility that the individual may then have possession of the drugs and decide the circumstances under which they would take the drugs.
Having said that, these are highly prescribed drugs. Provinces and territories already control access to and use of those drugs. This legislation proposes to recognize the autonomy of that individual to self-administer. To that extent, that's what the law is proposing.
[Translation]
Senator Boisvenu: My question is a very general one. Health is a matter of provincial jurisdiction in terms of administration, somewhat like the administration of justice. We have the Criminal Code which sets parameters for sentencing and the context in which the judge may impose sentences. Criminals have rights, but there are very few rights for victims, as we know.
Senator Joyal: Well, you can be proud of the charter you have proposed.
Senator Boisvenu: Why was the philosophy underlying this bill not, rather, opening a door to the provinces through delegation? We could have done something akin to what is done in the justice context. Why did we choose this very restrictive framing of the means that are offered to health care professionals? What was the objective of restricting things, rather than leaving the door open to the provinces so that they may on the basis of their culture and specific characteristics, themselves set parameters for the work of professionals?
Mr. Kennedy: I will begin by answering the question, and then let my colleagues from the Department of Justice address certain details. We have had many discussions with our provincial colleagues in preparing this law and in the study pursuant to the Supreme Court decision. They said they were concerned by the possibility that there would be large differences among jurisdictions. Overall, the provinces indicated that they would like to see a certain similarity, or a very similar approach, throughout the country. We paid close attention in preparing the bill to the concerns of the provinces, and we wanted to avoid the possibility of there being vast differences among jurisdictions, as we wanted also to avoid medical tourism and the problems that might cause.
Senator Boisvenu: That opposition must not have come from Quebec.
Mr. Kennedy: Quebec did not really express any concerns about this bill.
Senator Boisvenu: The Quebec law is less restrictive than the federal law.
Mr. Kennedy: We have to consider the Criminal Code. We are going to open a window and provide a framework, in a sense, but it is really up to the provinces, in the void created in the Criminal Code, to determine exactly how things will work. However, that window was created for the purpose of creating a similarity, a certain common approach throughout the country. When we talk about drugs and the process for physicians and all of that, those aspects will fall under provincial jurisdiction. As for nurse practitioners, it will be up to the provinces to determine exactly how things will proceed. I do not know if I have answered your question.
[English]
Senator Batters: Ms. Klineberg, in talking about the 15-day waiting period, the bill also indicates that unless that person's "death, or loss of their capacity is imminent.'' Although the legislation indicates a 15-day waiting period, that could be reduced to immediately providing that service; is that correct? That assessment of when that death or loss of capacity was imminent could be made by two nurse practitioners; correct?
Ms. Klineberg: Yes, that's correct. I would just clarify that none of that would mean that the other procedural safeguards could be avoided. There's still the requirement for the written requests and the two independent witnesses. All of the other requirements are still present. It's just the 15-day wait period that can be reduced.
Senator Batters: It could be reduced down to immediately?
Ms. Klineberg: Yes, in the discretion of the medical practitioners.
Senator Joyal: My first question is about the fifth "Whereas,'' which says "Whereas suicide is a significant public health issue.'' Have you paid consideration to the fact that a person who is diagnosed with Alzheimer's, where the person is aware that his or her condition will deteriorate, if that person doesn't have access to an advanced directive, that person could put an end to his or her life immediately or in the short term?
There are many examples of people being diagnosed with Alzheimer's that can envisage the point whereby their personal condition would be so deteriorated that their quality of life would be meaningless. By not giving them the possibility to express advance consent, as Senator Lankin mentioned, you are pushing those people to suicide.
Mr. Pentney: The government recognizes there are many circumstances of suffering and many different situations. As the ministers and the legislation have been clear, this is starting down a significant shift in the Canadian law. The government is firmly committed, as the preamble notes, to continuing to examine other related aspects, including advance directive.
It's not at all to deny that there are many circumstances and many dimensions of human suffering. This bill is not about resolving all those situations. It is about addressing a particular form of particular relevance given the Carter decision, but it represents a choice for Parliament to make in terms of where to start, recognizing that advanced directives bring with them a whole series of questions and complications that will require further assessment and study.
Senator Joyal: By having the criteria at 241.1(2)(d), "their natural death has become reasonably foreseeable . . . " and linking that to the qualification of incurable, is it not in fact a medical decision? It says, ". . . taking into account all of their medical circumstances . . . .''
As I understand it, there has to be a complete evaluation of the patient's file. By introducing that criteria, are you not contradicting the fact that by opening the physician-assisted dying to nurse practitioners that this is a medical act that the doctors will want to exercise themselves and that nurse practitioners would not be allowed to do?
Mr. Pentney: I'm not sure how to respond to the question.
First, yes, this will be a medical assessment. It will be an assessment by a medical practitioner. Second, who that medical practitioner is will depend on the nature and scope of practice that's otherwise authorized, I think.
Maybe Mr. Kennedy can add to that.
Mr. Kennedy: The government, in pulling this together, was mindful that nurse practitioners in some jurisdictions do have broad physician-like authority. In Quebec, for example, they practise under the supervision of a physician, but in other provinces — it varies by province — they can assess, diagnose, prescribe and treat patients for certain conditions. Depending on the authority granted by their professional body or by the province, they can provide a scope of practice that looks like some of the services that physicians provide.
The other concern motivating the government, which we think is an important concern, is the issue of access. We have a lot of remote and small communities in Canada, and I think there were real concerns about the ability of patients to be able to get access to this service if you didn't allow for a slightly broader range of medical practitioners to be able to provide this kind of service.
Senator Joyal: My final question is in relation to life insurance contracts, to which you refer to in the eighth "Whereas'' on top of page 2, whereby you say insurance is a provincial domain, but if a province doesn't legislate in order to recognize the legality of physician-assisted dying, it would be a way to prevent some patients from exercising their rights. How do you reconcile that?
Mr. Pentney: There have been discussions with the life and health insurance industry, and I'm sure evidence will come forward from that industry looking at their aspect. In a sense, it's not a matter of reconciling it because it's simply not within federal jurisdiction to regulate it. The "Whereas,'' in a sense, is an expression of a hope and a wish and a desire, but like many areas in this wonderful federation, it's not for the federal government to prescribe.
Senator Joyal: I understand that.
Senator McIntyre: The bill contains 11 clauses. I draw your attention to the last clause, number 11, which basically states that clauses 4 and 5 relating to the filing of information will come into force on a date fixed by order-in-council, and then other clauses come into force by Royal Assent. Why would clauses 4 and 5 not come into force upon Royal Assent? I take it this is meant to allow time required to set up a system for data collection. Would I be correct?
Mr. Kennedy: That's right, senator. In the interim period the idea is we will develop a protocol with the provinces and territories to gather data in the interim, but we want to have a regulatory regime. We're talking to them about what that would look like.
Senator McIntyre: So you need this time required between the two?
Mr. Kennedy: That's right.
Senator Plett: I want to take one more stab at trying to get an answer where we don't pass it over to the provinces. I should have done this with the ministers, rather than with the officials, but I will anyway.
There are indeed a lot of issues that you have rightfully said are under the auspices of the provinces, and I accept that. Let me talk again about conscientious objection. In paragraph 132 of the Carter decision, the Supreme Court expressly recognizes the need for balance between the Charter rights of patients and the Charter rights of physicians and allied health professionals; for example, conscientious objection.
What harm would there be in the federal government to strike a law that deals with conscientious objection, instead of just saying that they will pass that off to the provinces? Are they afraid of dealing with it? Because they have the right; it would not be against the Constitution for the federal government to deal with that issue.
Mr. Pentney: Our interpretation is that it would go beyond the scope of federal jurisdiction to prescribe a scope of practice or medical requirement. The converse would be to have a clause in the law that would give either false hope or false guidance that ultimately would not be legally effective.
I would underline that whether or not there's a clause in the Criminal Code, doctors, nurses, physicians, individuals all carry the conscience rights that the Charter guarantees them, and that will neither be supplemented nor adjusted by a clause in the criminal law. There is a highly technical explanation for why we cannot go so far as to prescribe practice by medical professionals in what they can and must do in respect to meeting their professional or legal obligations. That's clearly, we think, within the scope of provincial jurisdiction. But I would underline as well that nothing in the bill compels any medical practitioner to provide this.
Senator Plett: Well, I tried. Thank you.
Senator Batters: I wanted to follow-up on something that Senator Joyal asked about the life insurance aspect.
Isn't this creating two classes of suicide victims? We would have life insurance recipients or beneficiaries whose loved one died by suicide that was medically assisted, and they would potentially be entitled to benefits; and the other class would be made up of people who die by suicide because of mental illness, and they wouldn't be entitled. Given that statistics continually show that 90 per cent of Canadians who die by suicide suffer from mental illness, how do you justify that?
Mr. Pentney: Thank you for the question, senator.
I would say that as both ministers noted in their earlier conversations, this issue has sparked a national conversation across a range of topics going far beyond the particulars of the Criminal Code. We would note the Canadian Life and Health Insurance Association is in active discussion with the provinces and territories, and we will see that discussion carry on.
What has been recognized here is the creation of an exception to the criminal law and, therefore, something which is otherwise legal if it meets the criteria. The government is expressing the hope that when someone exercises the rights that the government is giving them in accordance with the law and obtains medical assistance in dying, the life and health insurance situation of that person would not be adversely affected, recognizing that the federal government has no jurisdiction there.
The tragic situations of individuals who take their lives in other circumstances that you are talking about is a conversation that we would hope Canadians would carry on with, and that the Canadian Life and Health Insurance Association, the provinces and territories and other interested parties would continue to explore whether or not further adjustments are required in that legislation.
Senator Lankin: I guess this last question is directed to the officials and asking them to take it forward to their ministers.
I think there is a great thirst from Canadians for this bill to satisfy a lot of things, and I think we, as a group of senators, share in that thirst. Some of the things I accept completely, and as a former provincial politician, I would have moved immediately to take the federal government to court if they were trying to legislate the scope of practice of health care practitioners.
Having said that, I believe that your responses to us indicate the importance for continued discussion, the delicacy of the issues and, perhaps, polarized views. There are many reasons that might bring us to this point of not providing all Canadians with access to these provisions of the legislation, and that will undergo further discussion.
Today, it was made clear that the five-year review of the bill covers the entire bill, monitoring compliance and a whole range of things. The provisions that will be studied are a separate process of study not yet determined, and discussions with the provinces have yet to take place.
I hope you would take back from me, as one senator, a desire to hear from the ministers what that process is going to look like and some timeline for that. I think that people are not prepared to wait and that they do not want to have to take their individual cases to court and go through that. If people have a line of sight to a reasonable time frame for addressing some of these very important issues and a process that will include them in those discussions, that might give comfort to some of us. I don't know, but without that it's a very hard stretch for some of us to support the lack of some provisions in this bill.
Mr. Pentney: Thank you for the question. On behalf of Mr. Kennedy and myself, I'm sure we're absolutely prepared to take those issues back. Obviously, ministers will be looking at the transcripts of this proceeding and would thank you for the nature and quality of the questions. This is an important dialogue for Canada, and you're making an important contribution. Thank you.
The Chair: We have a few more minutes left, and I want to take advantage of this opportunity while I have officials here.
Senator Jaffer: I want to go back to the advance directive. I am really concerned about that, because, provincially, we go so far in saying, "Do not take extraordinary measures.'' Senator Lankin has said that if you do not do many things, that's fine, but when it comes to getting help, you were talking about having no advance directive. Someone who is sick but wants to live as long as they can to enjoy their children and grandchildren might come to the conclusion that if they do that, they have nowhere to turn.
Mr. Pentney, you were very generous with your comments to us, but we are hearing from people who are saying that this is not good enough. We have waited long enough. People have, in this case, so much pain and don't have access to courts. We all know who gets access to courts.
Further to what Senator Lankin was saying, we do need answers. We are also being held accountable by people who say, "Don't accept this because the June 6 deadline is not a deadline to die on. You must do more so we die with dignity.''
I again want to urge you to look at other countries that have advance directives. I am not satisfied with the answers you have given.
Ms. Klineberg: I would like to provide a little bit of information about the laws of other countries. There are, at present, really only two jurisdictions in the world that permit advance directives for medical assistance in dying in the case where the patient becomes incompetent.
Actually, let me clarify: There are four countries, but two of them — Belgium and Luxembourg — only allow the advance directive to be carried out when the person has been rendered irreversibly unconscious. That would not be the case for patients with dementia and Alzheimer's.
The latest country to permit it is Colombia which just last year implemented a resolution that sets out the process. We have no information from Colombia, yet, whether this is happening or under what circumstances.
The only country that does permit it, and where there is some data available from studies that have been done, is the Netherlands. I believe, as the Minister of Health mentioned when she was here a few moments ago, that the studies and evidence of how that is actually carried out in the Netherlands suggests very strongly that even where a valid request has been made, physicians on the whole are unwilling to abide by it. Many families also change their minds when that situation comes around.
Internationally, there is really no evidence of what this actually looks like. There is not one country that has good solid data about the willingness of physicians to administer a substance to cause the death of a person who is conscious but incapable of expressing their wishes. This is one of the considerations, I think, that has motivated the decision and caused the desire for more study.
I would also note, peripherally, that one of the pieces of evidence that was critical to the trial judge's finding that the law was unconstitutional was the fact that there was evidence from Canadian physicians of their willingness to assist patients like Ms. Taylor. We have no evidence of the willingness of Canadian physicians to provide this service to patients who have become incompetent to express their wishes but remain conscious.
Again, in our discussions with the provinces and territories, we have asked them to query their medical professionals, but there is some concern about the possibility that requests might be made and then not carried out.
These are some of the additional considerations that I think play into the decision the government has made.
Mr. Pentney: I would encourage the committee to look at the report of the external panel that was appointed and, if there is an opportunity, to call some of the members. They certainly did consult nationally and internationally and can speak to the evidence they gathered during the course of their process.
Senator Plett: I just want to echo, at least in part, Senator Jaffer's comments, although probably for different reasons.
I agree with what one of our colleagues said at the break. There has probably never been a bill that so many people have disagreed with for so many different reasons. I also believe that June 6 is not a hill that we need to die on, but I believe the bill has gone too far. Those would be my reasons.
Let's make sure that we do have a bill that the majority of Canadians can be in favour of. Senator Lankin said that Canadians do want something, but the jury is still out on whether they want more or less than what we have. Thank you.
The Chair: Thank you all. It has been a long day for all of you. We appreciate that, your patience and contributions to our deliberations.
(The committee adjourned.)