Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 8 - Evidence - May 5, 2016
OTTAWA, Thursday, May 5, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:30 a.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 morning. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we're continuing 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).
Joining us first today are Jocelyn Downie, Professor, Faculties of Law and Medicine, Dalhousie University; and Joseph Arvay, Lawyer, Farris, Vaughan, Wills & Murphy LLP. We're hoping that Jean-Pierre Ménard will join us shortly.
Thank you both for being here.
Jocelyn Downie, Professor, Faculties of Law and Medicine, Dalhousie University, as an individual: Good morning. Thank you for giving me the opportunity to have a conversation with you today. To prime the pump, I will very briefly flag four elements of the bill that I believe should be changed and two that should not.
Four things to change: First, delete section 241.2(2), the so-called definition of the phrase "grievous and irremediable condition,'' which is really a restriction of the criteria for access to medical assistance in dying.
Second, delete section 241.2(3)(g), the 15-day waiting period, and replace this poor proxy with the actual concern, which is non-ambivalence.
Third, delete section 241.2(3)(h), the requirement for reconfirmation immediately prior to the provision of medical assistance in dying.
And fourth, do not exclude mature minors, advance requests, and requests where mental illness is the sole underlying medical condition, or at the very least add a statutory mandate in the body of the act for independent expert studies of the contested issues with a prescribed and short 18-month timeline for reporting back to Parliament.
Two changes to resist: first, the introduction of a requirement of prior review; and second, the introduction of a conscience protection clause. Use the Charter, human rights legislation and the new pan-Canadian care pathway instead.
To kick things off, allow me to say a few words about two specific issues central to these changes: reasonably foreseeable natural death and the exclusions.
First, the government's position on Kay Carter, mental illness, major physical disability, and Bill C-14 is incoherent. The government has no evidence upon which to conclude that Kay Carter's death was not too remote, apart from the fact that she was very old. On the logic of their position, if someone has a non-life-threatening mental illness or major physical disability as their sole condition, as long as they are very old, they will be eligible. Yet this is precisely what the government is trying to prevent by section 241.2(d). Either Kay Carter did not meet section 241.2(d) or Bill C-14 allows access to medical assistance in dying for individuals whose sole condition is a non-life-threatening mental illness or major physical disability. They are trying to, but they cannot have it both ways.
Second, the phrase "reasonably foreseeable'' is untenable as a criterion for access. "Reasonably foreseeable'' is impermissibly vague. The debate about whether Kay Carter herself would meet this criteria makes this point crystal clear.
The government's suggestion that "reasonably foreseeable'' be interpreted as "in the not-too-distant future'' or "not too remote'' flies in the face of common usage where it means predictability, not temporal proximity.
Contrary to the claims made by the government, the meaning proposed for "reasonably foreseeable'' in the government's glossary and public remarks is not consistent with the meaning of "reasonably foreseeable'' in either the criminal law or tort law, where it means predictability rather than temporal proximity; that is, it means you can foresee "that'' rather than foresee "when.''
Now to the exclusions. It's important to note that the government has acknowledged that Bill C-14 limits Charter rights, specifically as it excludes mature minors, individuals with mental illness as their sole condition, and requests made in advance of loss of capacity. However, it has failed to provide parliamentarians with any reasonable basis on which to conclude that these limits are, for the section 7 rights, in accordance with the principles of fundamental justice or, for both the section 7 and the section 15 rights, demonstrably justified in a free and democratic society. In other words, you have not been given anything solid upon which to base a conclusion that this bill does not violate the Charter.
The government provided a legislative background document to explain why it has concluded that Bill C-14 is consistent with the Charter. However, this document's justifications for limiting the rights are grossly inadequate. The document's weaknesses include the following: misrepresentation of legislation in permissive jurisdictions, misrepresentation of data from permissive jurisdictions, reliance on unreliable sources of evidence for claims about permissive jurisdictions, reliance on an ethical distinction explicitly rejected by Justice Smith in Carter, reliance on assumptions that are fundamentally inconsistent with the advance directive legislation in place in provinces and territories across Canada, and reliance on a staggeringly unbalanced set of experts.
Contrast this with two other significant documents available to help guide your decision making, the report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying and the report from the Special Joint Committee on Physician-Assisted Dying. Given that they do not share any of the legislative background documents' weaknesses, I would argue it is more reasonable for you to rely on them than on the legislative background document. I would remind you that they both recommend against excluding mature minors, individuals whose sole grievous and irremediable condition is a mental illness, and advance requests.
With these hints at the depths of the issues to be discussed, I leave you with this: Unless Bill C-14 is amended, many individuals experiencing enduring and intolerable suffering from a grievous and irremediable condition will be left with three options: They can take their own life prematurely, often by violent and dangerous means; or they can stop eating until death by starvation is not too remote or in the not-too-distant future such that they will then qualify for assisted death; or they can suffer until they die from natural causes. This is a profoundly and unconscionably cruel choice.
Joseph Arvay, Lawyer, Farris, Vaughan, Wills & Murphy LLP, as an individual: Thank you, senators for giving me the opportunity to speak to you today. I come to you as the lead counsel in the Carter case. In that capacity, I have some unique perspectives on what the Carter decision means because I was there; I have lived it.
In my submission to you, which I won't have time obviously to walk you through, you'll see that we were very deliberate in how we framed the case. We were the ones who chose the phrase "grievous and irremediable.'' Those were our words. It wasn't "grievous and incurable'' and it certainly wasn't "terminal.'' We were very deliberate about that.
When the government lawyers asked us to define what we meant by "grievous and irremediable'' we told them in legal pleadings — and it didn't include things like "terminal'' or "reasonable foreseeability.'' In court before the trial judge, the government lawyer said, "This is preposterous. These lawyers are asking for something even the lawyers in the Rodriguez case weren't asking for. They are indicating the person doesn't even have to be terminal.'' The trial judge said that is right and gave us a declaration for almost precisely what we asked for, which was "grievous and irremediable.''
We went to the Supreme Court of Canada and we made it very clear to the Supreme Court of Canada in our submissions. Excerpts are set out in my brief that we were not limiting our claim to terminal. I've asked the clerk to pass out just a couple of pages, which is an excerpt from the transcript of the last Supreme Court of Canada hearing that we were in on this matter when the government asked for an extension of time to enact legislation. I just bring your attention to what I think is a very conclusive bit of information. On the second page of the handout, page 18, line 19 Madam Justice Karakatsanis is having this exchange with Mr. Frater, the government lawyer, and she says, "Mr. Frater, can I ask you this: Does your position on the Quebec legislation mean that you accept that it complies with Carter? I'm thinking particularly about somebody has to be à la fin de vie, whereas in Carter we rejected terminally ill.'' If you go on, Justice Moldaver also recognized that the Quebec legislation didn't go as far as Carter; his term was "under-inclusive.''
There's no question in my mind that this bill, insofar as it has a reasonable-foreseeability clause, is contrary to the Carter decision and is unconstitutional and cannot be justified by invoking section 1 of the Charter, as I've heard some lawyers argue.
Section 1 of the Charter was fully argued in the Carter case, and what the Carter case established is a floor, a minimum of constitutional rights and entitlement. Parliament can obviously add to the floor and give more rights and entitlement, but it cannot take away from the floor.
In this legislation Parliament has essentially carved out from the Carter decision a whole and significant group of individuals in our society, and they are the physically disabled whose death is not imminent or reasonably foreseeable. That's a huge portion of our population. Not that very many physically disabled people are going to be seeking assistance in death; they won't be. But for those whose suffering is intolerable and life is worse than death, this bill denies them the very rights that the Supreme Court of Canada granted them. People who were disabled from birth or from traumatic accidents mid-life, and most important, people who in mid to late life develop these horrible, debilitating, degenerative diseases like MS, Parkinson's, Huntington's and ALS, none of which are terminal, are condemned to suffer.
I ask myself the question: How did this happen? Why am I here when it's so conclusive that the Supreme Court of Canada rejected that? I read the briefs and listened to the various testimonies, and it appears that the government has now been wowed or persuaded by the rhetoric and the arguments of the disabled rights organizations, the very organizations that were front and centre in the Carter case, and their arguments that are being made to the government now and accepted by the government now and that underline this bill were completely and categorically rejected by the Supreme Court of Canada.
The disabled rights organizations seem to take the position that physically disabled people are irrebuttably incapable of making autonomous choices to exercise whether or not they want physician-assisted death. The legislation reinforces their argument that physically disabled people are somehow incapable of agency and autonomy. The legislation reinforces the idea that physically disabled people simply can't make choices on their own behalf. Their argument seems to be that physically disabled people may suffer, but so what? Many physically disabled people suffer; we all have to suffer. Or their argument seems to be that the suffering may be transitional, situational or transitory, and we shouldn't allow them to die because they might change their mind. Those very arguments were made to the trial judge and to the Supreme Court of Canada —
The Chair: I hate to interrupt you, but we want time for questions, so I'm going to have to ask you to sum up.
Mr. Arvay: Thank you. The bottom line is that all the arguments made by the disabled groups, and what you'll hear from Mr. Baker, Professor Frazee and Ms. Pothier, were all made and rejected. I can't understand how the government is going to enact a bill which gives effect to the arguments that have been made and rejected.
[Translation]
Jean-Pierre Ménard, Attorney, Ménard, Martin, Avocats, as an individual: I come from the only province of Canada that has a law on end-of-life care, and it is important, for the analysis I am going to do, to take the existence of the Quebec law into account.
Given that the Quebec legislation seems to have been the inspiration for the federal bill, it is important to note that it was enacted before the Supreme Court of Canada's decision in Carter. I was closely involved in the preparation and enactment of that law, but, in the context in which it was enacted, before the Carter decision, it would have been, at most, and unlike the decision in Carter since it is a law concerning health, an end-of-life law that had more limited objectives than Carter now allows.
So if we want to take our inspiration from the Quebec legislation, clearly, now that the legal landscape has changed with the Carter decision, we will not have the choice, in Quebec, of reviewing our law, which is now too restrictive in relation to section 7 of the Canadian Charter of Rights and Freedoms. As a result, the issue in Quebec is how we are going to be able to adapt it. Once we know the exact nature of the federal rules, we will have to review certain aspects of our law.
Generally speaking, this law has been in force since December 10, 2015. There have been over 50 cases in which medical assistance in dying has been provided, in circumstances that everyone considers to be very respectful of the individuals. In Quebec, we are no longer asking ourselves whether this is a good idea or a bad idea. We have passed a law that has extremely proper guidelines to protect vulnerable individuals, and they provide very good protection.
There are all sorts of issues, and in this debate, we have defined vulnerability — which is somewhat broadly defined, in fact, to try to limit things — by connecting it with the individual's ability to make decisions and to consent to care, or not. That is what real vulnerability is, and when the person is capable of consenting to care, whether or not they are disabled, they are not a vulnerable person; that is where we have drawn the line.
I have submitted a short brief that sets out a number of ideas where access to medical assistance in dying is the most important factor.
What I think, after carefully studying the Carter decision and the bill, is that the bill is not consistent with the Supreme Court of Canada's decision in Carter, since it is much too restrictive. Proposed subsection 241.2(1) reiterates the Carter criteria, but proposed subsection 241.2(2) diminishes and dilutes those criteria. Criteria are introduced that are not mentioned in the Supreme Court's decision, and the people who are the subject of this bill are not the same as the people who are the subject of the Carter decision.
Let us not forget that, along with section 7, the Supreme Court's decision asserts the right to access medical assistance in dying as a constitutional right of all Canadians who meet the requirements laid down by the Supreme Court. Based on additional requirements that are being added, most importantly that death be foreseeable, which is not in the Supreme Court's decision, the bill will unduly limit Canadians' constitutional right and deprive a segment of Canadians of the right to medical assistance in dying that they would have had under section 7 of the Canadian Charter of Rights and Freedoms. This bill unduly restricts them, by excluding them, when the Supreme Court's decision was not about people at the end of their lives; it was about people suffering from grievous and irremediable illnesses.
I think proposed subsection 241.2(2) should simply be removed from the bill, since it adds requirements that draw heavily on the Quebec legislation. We must remember, however, that the Quebec law was enacted before Carter, and so, in terms of the legal sources for those criteria, we have to be careful not to go any further, because the law has changed since then. Once again, on the question of the criteria, those criteria are much too restrictive.
Assisted suicide is partly regulated here, while the Quebec legislation does not deal with that issue, since it is an end- of-life law, a law dealing with health care. It was decided not to address the issue of assisted suicide, not to regulate it, because that changed the pith and substance of the law.
The rules proposed for assisted suicide present difficulties in terms of medical ethics and physicians' liability and obligations, because a doctor who provides the medication for assisted suicide will not necessarily be there when the time comes. The safeguards are not necessarily strictly applicable to assisted suicide, because if you look at proposed paragraph (h) of the safeguards, there has to be a determination of whether the person has changed their mind, before administering it, and the doctor will not be able to do that because they will not be there. This can make monitoring difficult, because the doctor will be able to report only that they gave the medication, but will not be able to report whether the patient actually took it.
I go into a little more detail in my brief where I provide a quick overview, and I can answer your questions on that point.
I would also like to address some other factors. Since this is a province that has already adopted an oversight and monitoring system, we have to make sure that the federal law does not cause a duplication of effort. In Quebec, doctors already have to submit two reports when they administer medical assistance in dying, and a third is being required. We have to avoid instituting monitoring mechanisms that are different from those in Quebec. It is important to adopt flexible and clear rules. For the purposes of the bill, when a province adopts appropriate monitoring mechanisms, the measures that are provided in federal legislation should not apply to the province, where the federal government is satisfied with the measures adopted by the province. However, the federal government would be entitled to require that the province submit certain data to it. The important thing is that doctors should not be given extra work, so as not to discourage them.
I have kept my remarks short, but you can consult my brief. I will be pleased to answer your questions concerning Quebec. Thank you.
[English]
The Chair: We'll move to questions now, beginning with the committee's deputy chair, Senator Jaffer.
Senator Jaffer: Thank you to all of you for being here today. Mr. Arvay, you come from my province, and I would formally like to recognize the work you do on behalf of the vulnerable in our province of B.C.
This bill is causing us quite a bit of anxiety, and we would have appreciated it if the government had taken more time to study this bill. One of the concerns that I have — and I raised it with the minister yesterday — is on advance directives and how this bill does not cover advance directives. I want to read to you paragraph 57 of the Carter decision, which says:
The trial judge found that the prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. On that basis, she found that the right to life was engaged.
In my opinion, I believe that's one of the key paragraphs of the Carter decision. There was no mention of terminal conditions. The emphasis was on the fact that the prohibition was an infringement of section 7 rights. I would like the three of you, with very little time, to expand on this, please.
Mr. Arvay: Thank you, senator. I can say that the issue of advance directives was not an issue in the Carter case. I can say that. We considered it, but we chose not to frame our case that way. It wasn't because we didn't think that those people who eventually acquire an illness or disease like Alzheimer's or dementia should not have a constitutional right to physician-assisted dying or medical aid in dying. It just wasn't part of the factual matrix or the argument in the case.
I urge the Senate and the House to amend the bill to allow advance directives because I believe there's a constitutional right to that. But I would be less than honest with you if I said that the Carter decision itself required it. I think the Constitution requires it, but I can say that the Carter decision itself did not deal with it.
I agree with you that the Constitution requires it, and, therefore, Parliament should get ahead of the courts, in appropriate cases, and provide it.
As I said in my brief, the Carter decision provides the floor of constitutional rights, not the ceiling. Parliament can always add to that floor, as can the courts, and advance directives is an example of that.
The Chair: Mr. Ménard, do you wish to respond?
[Translation]
Mr. Ménard: When we prepared our legislation, we examined the question of advance directives at length. That is one of the aspects that was the most difficult to resolve, because it was included in the main recommendations. Many arguments put forward in support of medical directives that are not advance directives are valid, but they raise important questions. At what point were the directives prepared? Was the person capable at the time they were put in place? Has the person changed their mind in the meantime? Are they in fact the person's last wishes? Are the directives precise enough? The legislature decided to leave it out. For medical assistance in dying, the person must be capable of consenting at the time they make the request, and only the person can do that. In the case of advance directives, the person's representative can also make the request at some point. All these questions raise numerous concerns with respect to oversight.
The idea is that the decision is up to the person themselves. We must not forget that advance directives carry no weight as long as the person is capable of consenting. There was also the fact that a person can change their mind. We want to allow people at the end of their lives to make their own decisions up to the end. Those arguments prevailed, but there were excellent arguments for including them as well.
These are choices that the legislature must make from a legislative policy perspective. Should they be permitted, but made subject to stringent guidelines? In Belgium, for example, the guidelines were developed less than five years ago. That raises questions, and specifically this question. Was the decision made based on a diagnosis? It is an extremely complex issue. It is not appropriate to go into it in a bill to amend the Criminal Code. Questions relating to consent to health care are partially under provincial jurisdiction. This is a very sensitive issue. There is a sense of urgency about amending legislation that falls under the criminal law, and yet this issue should be discussed more extensively within society, in the framework of a different legal vehicle.
[English]
Senator White: Thanks to all of you for being here. My question is to Mr. Arvay. Because we don't have advance directives in this legislation, we do have, in the proposed legislation, coverage for those acting on behalf of or supporting a medical practitioner. It really doesn't speak to the coverage for those supporting the individual. So the individual receives a medication that they can take at a later time, but they may know full well that they won't have the physical capacity to take that medication that will take their life away. It doesn't cover the individual — I go to you and say that I need help from you to administer. It only covers those who are supporting the medical practitioner, not the individual. Do you see that as a problem, and do you see the need for more clarity around supporting the individual's opportunity to end their own life?
Mr. Arvay: Senator, I'm sorry, I just don't feel very competent to answer that question. It's not something I've put my mind to. I'm sorry. Maybe Professor Downie can help.
Ms. Downie: I would read proposed section 241(3) as providing that assistance, saying: "No person is a party to an offence . . . if they do anything for the purpose of aiding a medical practitioner or nurse practitioner. . . .''
I think that's what was intended to protect those who work in teams — and it's extremely important to recognize that health care is provided in teams now — but also beyond the team.
Senator White: I don't disagree, where a medical practitioner engages an individual to assist. I guess my concern is because the individual may decide that it's going to be a month or two down the road, depending on how their life is going or how death is coming. There may not be that engagement with a medical practitioner as part of a team. It may be an individual, a family member. Does it cover them?
Ms. Downie: It says "no person,'' and I think you would be reading "aiding a medical practitioner'' extensively in the sense that the practitioner gives the prescription. It may be two months later, but you would say, "Okay, that's still medical assistance in dying when you help them when they are at home.'' You could seek greater clarity.
Senator White: From a clarity perspective, yes, that's what I'm looking for. Would it be clear to the prosecutor? Would it be clear to the police when the complaint comes in?
Ms. Downie: Subsection (5) he's just pointing out to me, too: ". . . if they do anything, at another person's explicit request, for the purpose of aiding that other person to self-administer a substance . . . .'' That's actually the more apt one.
Senator Baker: Thank you to the witnesses for their very instructive presentations. I'd like to ask my question to Mr. Arvay, who mentioned that he hadn't put his mind to the subject given by the previous questioner, so I'll ask him a question that he's put his mind to many times in his extensive litigation history. That is the question that is central to us, which is what should the parameters of this legislative response be? Should they be dictated by the parameters of the Supreme Court of Canada decision?
The reason I ask this question is because, at paragraph 127, as you know, the Supreme Court of Canada said that the scope of their declaration is based solely on the "factual circumstances in this case,'' and the case that the Supreme Court of Canada was referring to was that of Ms. Taylor.
Secondly, paragraph 111 of the Supreme Court of Canada decision says that the parameters of their decision do not include psychiatric decisions, mature minors or advance directives. In other words, you have two sections of the Supreme Court of Canada decision that say look, it's on the facts of the case of Ms. Taylor, and the second one specifically saying our parameters do not include three things, two of which you mentioned in your presentation.
How do you respond to that criticism?
Mr. Arvay: Thank you. I can respond, I think, quite simply. On the latter point, I've already acknowledged that the Carter decision itself doesn't deal with mature minors and advance directives because we specifically excluded that from the framing of our case. As I said to Senator Jaffer earlier, that doesn't mean there are no constitutional rights, but the Carter decision itself doesn't address that.
On the first point, and it's a point I've heard others make, the facts of the case were not simply the facts relating to Gloria Taylor or Kay Carter. That's a complete mischaracterization of the facts of the case. We were very deliberate when we framed the case that it was not going to be about one person. Unlike the Sue Rodriguez case, which was only about one person, we framed the case to make sure that the court heard about the illnesses and disabilities and suffering of people from all across Canada, and elsewhere, because it was our view that the legislation was unconstitutional because of its application not just to one person or two but potentially thousands of Canadians who might face this kind of intolerable suffering.
One of the reasons that our main plaintiff was the British Columbia Civil Liberties Association, which was granted public interest standing by the court, in opposition to the federal government, who took opposition to that, was precisely the point that the facts of the case were going to be much more than just about Gloria Taylor and Kay Carter, who were obviously important persons in the case, but it was about all the witnesses who testified. There were witnesses who testified with reference to many illnesses and diseases and disabilities that were not terminal or where death was not reasonably foreseeable.
One of the witnesses we relied on to demonstrate why a requirement of terminal would be so cruel — cruel, if not torture — was a fellow by the name of Tony Nicklinson, who I put it in my brief and you may have heard about. He was a fellow who suffered a massive stroke in his fifties and had a condition called locked-in syndrome, which means you can't move one muscle in your body, other than your eyelids or maybe your eyeball. That's it. Mr. Nicklinson typed off an affidavit for us, one blink at a time, in which he explained to the court the horror that he faced being in this condition because he was going to be in that condition for 20 years. He said, "I can't even smoke or drink alcohol anymore in the hopes of getting cancer so that I can be terminal.''
In the end, Tony Nicklinson brought his own case in England, and he lost there. What he had to do after that was starve himself to death. But apparently this bill will tolerate people starving themselves to death. Anybody who knows about starving themselves to death will know that it is a form of torture. Yet, under this bill, someone like Tony Nicklinson can starve himself to death just to the point where his death is reasonably foreseeable. The bill would say, okay, you're clear now.
That's cruel.
Senator Plett: In the bill there is a safeguard that stipulates that the practitioner must reaffirm consent, which I assume includes assessing competency to consent immediately prior to administering the drug. There is no such safeguard when the drug is given as a prescription after the prescription is given. The patient can take the drug possibly years down the road potentially with a mental illness progressing, and there is no one there to ensure that the individual has the capacity, isn't being coerced, et cetera. When the physician administers the drug, it is stipulated that a witness who is not a beneficiary of the patient must be present. However, virtually any individual can administer the drug to the patient after it is given as a prescription, and there is no provision barring a person who is a direct beneficiary to the death of the patient.
This strikes me as a problem. Clearly, I believe the intent was that nobody is supposed to benefit from somebody's death, yet there is no safeguard that a beneficiary cannot administer the drug after the prescription has been given to the pharmacist and the pharmacist has given the patient the drug.
Ms. Downie: One element would be to say that it would not be the beneficiary administering any drug, because you're talking about self-administration in that context. The only person who can actually administer a drug would be a health professional, and then you're in the other situation.
I think the other thing I would comment on in the context of the issue of the reaffirmation is the scenario in which an individual has met all of the criteria for access, and all of the procedural safeguards have been met. They are receiving pain management because they're in extreme agony. What this provision requires is that they be brought out of their sedated state, their pain brought back up while you wait for the pain medicines to clear, such that you can decide they're capable, such that you can get the reconfirmation. Can you imagine when you're brought back out into that pain state? That's what this provision requires.
That's what I would raise as a concern.
Senator Plett: You're okay with the beneficiary receiving or being able to help. There is no exemption for a person aiding a patient — "No person commits an offence under paragraph 1(b) if they do anything, at another person's explicit request, for the purpose of aiding that other person to self-administer a substance . . . .'' Aiding the person to self-administer the substance — so the beneficiary is aiding the person.
Ms. Downie: That was asked to Linda Ganzini in this whole process quite a way back. She's an expert researcher in Oregon. This was in the trial. One of the things she was commenting on in conversation with me afterwards was that it's a mischaracterization of what families are doing at this stage. Families are begging their loved ones not to go, not to have an assisted death because they want to keep them around longer. To frame it as if there are these people around who want to gain access to that —
Senator Plett: But there are.
Ms. Downie: Where's the evidence for that? You look to Oregon, to the Netherlands and Belgium. There isn't evidence of that. We have to be careful about evidence-based policy-making here.
Senator Plett: People are murdering their parents. I had a case in Atlantic Canada; he got convicted of beating his father to death, so people do want to get rid of their loved ones.
Ms. Downie: But then the violation would be in not having met the criteria. It would still be a crime because it wasn't a voluntary act by the person.
Senator Plett: No. That particular one wasn't. You're suggesting there's no evidence that people don't want their loved ones or supposedly their family members to die because they are the beneficiary. We have hundreds of cases.
Ms. Downie: No, no. In the context of request for medical assistance in dying, there is no evidence of that.
Senator Plett: Thank you.
The Chair: I have to move on.
Senator Cowan: Welcome and thank you for your assistance. I have two questions. I wanted to ask Mr. Arvay and Mr. Ménard — and I realize, Mr. Ménard, that you were not here during Professor Downie's presentation — whether you, too, agreed with Professor Downie's recommendations as to what we should and should not do with respect to amendments to this legislation. That was the first question.
Mr. Arvay: I completely agree.
Senator Cowan: Perhaps if Mr. Ménard has not had a chance to do that, he could let us know at a later date.
The other question has to do with the suggestion that the ministers made yesterday about the urgency of the June 6 deadline and suggesting that we absolutely had to get this law in place by June 6; otherwise, all sorts of horrible things would happen. I'd like you to comment on what would happen if this bill or any bill were not passed by June 6 and the suggestion that, well, it may not be exactly the right bill, but it's better than nothing. Those are my words; I'm not putting words in the mouths of the ministers. There is comment out there that we would be better to pass this bill, as imperfect as it is, than to have no legislation at all. I'd like your comments on that.
Mr. Arvay: I can comment on that. This bill is much worse than nothing. In my view, if no legislation is enacted then the Supreme Court of Canada's decision in Carter is all that's needed to protect the vulnerable. They've clearly identified the parameters of the right to physician or medical aid in dying. If there is no legislation, then it will be left to the medical profession as a health issue, just as abortion has been. After the Morgentaler decision, as I understand it, a bill was proposed to Parliament, but it was killed by the Senate. There's never been any legislation dealing with abortion because it's considered a health care matter between a doctor and a patient. With the guidance of the Supreme Court of Canada, there will be no wrongful death, no harm. This bill, in my respectful submission, is really awful.
I can't find a better word for it. It's really awful. It guts the Carter decision. It deprives a whole segment of the population of rights under the Charter under the Carter decision. I would rather see this bill die and there be no legislation. If there is to be legislation, then this bill has to be amended.
[Translation]
Mr. Ménard: I agree completely with Mr. Arvay's comments. I also think this bill takes a constitutional right away from a segment of Canadians that the Supreme Court gave them, through its interpretation of section 7 of the Canadian Charter of Rights and Freedoms.
I think, too, that as soon as this bill is enacted, it will open the door to other people, who have now been deprived of their right, starting the same battle up again in the courts. I believe it is cruel and inhuman to require that people who have a grievous and irremediable illness go to court. Look at how many years went by before we could obtain a final judgment. The right seems to me to be relatively clear as well, and so we should not impose this burden on Canadians. You, as parliamentarians, I urge you not to impose that burden on them.
I proposed in my brief that the first recommendation be eliminated — the definition of grievous and irremediable illness — because it limits rights that Canadians already enjoy. This is a constitutional right, and that cannot be done simply by narrowly defining things.
I support the other recommendations as well. On the 15-day waiting period, Quebec considered whether a firm waiting period should be imposed. Ultimately, it was decided that this was not a good idea, because it really depends on the patient's health and their relationship with their doctor. Imposing a waiting period in the law seemed to us to be somewhat futile, because in some cases it could pointlessly prolong the suffering of people who would want to do it differently. I think we should leave the decision as to the timing up to the patient, with the help of their doctor, provided that the request is reiterated.
The question of immediate reconfirmation is delicate; it is not in the Quebec law. This exact idea of what should be re-verified is not there. I agree completely with my colleague who said that it is cruel to the person. I am involved in a number of cases in Quebec, and in one of those cases, it was not possible to provide medical assistance in dying.
[English]
Senator Cowan: Can I get Professor Downie's comment on this?
The Chair: On the second round.
[Translation]
Senator McIntyre: Thank you all for your presentations.
Mr. Ménard, you have raised a number of important points, such as safeguards and the criteria relating to reasonably foreseeable death. I understand that you consider the safeguards to be much too rigid. The reasonably foreseeable death criterion, again, is too vague. If I understand correctly, you recommend that proposed paragraph 241.2(d) be deleted; I think that is relatively clear.
Mr. Ménard: I recommend that the entire section be deleted, but especially that paragraph, in particular, if you do not want to delete the entire section.
Senator McIntyre: That being said, I would like to ask an entirely different question, the question of conscience clauses. It is often said that conscience clauses are not matters for the criminal law. In medical practice, the field in which you work, conscience clauses are primarily matters of medical ethics and provincial law. I also understand that we must not evaluate conscience clauses from the perspective of the criminal law.
What do you think would be the disadvantages of evaluating conscience clauses from the perspective of the criminal law?
Mr. Ménard: I did recommend in my brief that conscience clauses not be included, because that is more a matter of medical ethics and provincial law. I will clarify that in a criminal law context.
First, this type of clause is based on how we conceive the practice of medicine, and I think that this changes over time. The organizations that are in the best position to evaluate these things are, again, the colleges of physicians. They are up to date on medical practice standards, they have close connections with society, and they will be in a position to advance this aspect of things.
In the criminal law context, I find it difficult to see the social, professional and legal benefit of doing these sorts of things, when they are, moreover, well regulated. What could happen is that the criminal law standard would not be entirely on all fours with the standard applied by the colleges of physicians or in provincial legislation, and that would amount to initiating a debate about what standards physicians should adhere to.
This is already regulated well in Quebec; it is governed by the code of ethics, the act respecting end-of-life care, and a conscience clause. I think this would mean tripling efforts, and I am not sure that would be useful.
Conscience clauses are not matters for the criminal law, particularly when, in Quebec, the Minister of Justice has issued a guideline so that a doctor who provides medical assistance in dying in a manner that complies with Quebec law will not be prosecuted. The idea that doctors have to be protected by having a section in the Criminal Code therefore seems to me to be superfluous and pointless. I think this would, to some extent, amount to distorting the meaning of conscience clauses.
[English]
Senator Joyal: The task of this committee at the pre-study stage is to make sure that the bill is Charter compliant and Constitution compliant, generally. I understand your conclusion that in your reading and interpretation of the Carter decision, the bill doesn't meet that threshold. The minister yesterday, to a specific question on that conclusion, contended that the level of acceptance of Canadians generally at this stage in relation to physician-assisted death is not ready to go beyond what there is in this bill, that is, terminally ill people. She said that in her opinion, section 1 of the Constitution saves what could be a violation of section 7.
In your opinion, why is it not that this allegation, that in a reasonable and democratic society argument, this bill is flawed?
Mr. Arvay: Quite simply because section 1 that the minister is now referring to was fully argued by the government in the Carter case. The government in the Carter case tried to defend not just the proposed legislation as written but in all of its applications. The court was presented by the government with the section 1 argument, and it was rejected. To suggest that the bill is constitutional because the minister thinks there are some people in the public who believe it should only go this far is, in my respectful submission, not legal reasoning and has no merit.
There's a concept in law called res judicata, which means that once a thing is adjudicated, it's final. The Carter decision is the final word on the minimum rights that Canadian citizens are entitled to; and those minimum rights are not limited to illnesses that are terminal. She's just wrong, I'm sorry to say.
[Translation]
Mr. Ménard: I agree with what my colleague said. The argument has already been made. Does it have to be made over again? Can we reasonably think that the court might reverse its interpretation? In Carter, stare decisis, adhering to precedent, was argued at length. I find it hard to imagine that a court might reconsider its decision based on a different fact situation or legal situation. I think it is unfortunate that people are trying to do it over or start it over, when Carter is wonderfully clear on a lot of points, even though it is not very long. I believe the court wanted to speak for society, by saying what is acceptable and what is not. We need to learn the lessons from the principles in that extremely wise decision, which has tried to be clear and is addressed not to people at the end of life, but to people with grievous and irremediable illnesses.
That is the issue that the court resolved, and so, if we want to apply a narrower test, we are going to miss the mark and we are going to take away some of people's rights. Even if we argue that it would pass the section 1 test, I do not think it would. So why make people do that?
Senator Dagenais: I have two questions for Mr. Ménard. My first question for you, as a lawyer who specializes in this kind of case, is this? Do you believe there are provisions in this bill that might eventually be challenged in the courts? You and I both know that the Minister of Health, Dr. Barrette, says that there are still vague areas, such as for people with multiple sclerosis.
Mr. Ménard: I think the most vulnerable element is proposed subsection 241.2(2), because of the criteria, including the reasonably foreseeable death criterion. In Quebec, we have these end-of-life criteria, and in my opinion, they are too operator dependent, because there are doctors who interpret them very narrowly and decide that it is the dying person or the illness or the terminal phase, and others do it more broadly. However, the reasonably foreseeable death criterion is vague and infringes Canadians' constitutional rights, depending on how it is interpreted. It is not operational and it does not correspond to the law. A criterion has not been chosen that corresponds to it well. We are not engaged in a moral debate here; this is a discussion about how to respond to the Supreme Court's judgment in Carter. It is a discussion of how to bring the Criminal Code into line with section 7 of the Canadian Charter. At present, this bill, as it stands, seems to me to be very vulnerable to a constitutional challenge.
Senator Dagenais: The government has chosen not to allow medical assistance in dying under the age of 18. There are children in hospitals who are at the end of their lives. Do you, as a lawyer, believe this option is acceptable? If someone asked you to challenge that exclusion, would you agree to do it, and if so, what arguments would you use?
Mr. Ménard: In a case similar to Carter, I would have no hesitation. We are going to have to have the debate at some point, since we live in a society where we decide to take one step at a time. In Quebec, we debated the idea of including minors at great length, and it was ultimately decided not to include them, and to opt instead to discuss it as a society, since this is an issue that should be discussed and on which there has to be a consensus. I believe, in legal and constitutional terms, that a minor who met the requirements listed in Carter could have access to medical assistance in dying, in certain circumstances. Would this mean all minors in all circumstances? The answer is no. However, depending on the fact situation, I think that the problem will ultimately arise for minors. I think, from a legal perspective, that we are, in fact, going to have to examine this question and perhaps open the door eventually, and establish guidelines at the same time. There is an entire process of being compassionate and humane in all of this.
Senator Boisvenu: Congratulations on the work you do in advocating for patients in Quebec. You do a formidable job. You said earlier that about 50 people have benefited under the provincial medical assistance in dying legislation. Do you have an idea of the profile of those 50 people, that is, whether they were people in the terminal phase, people with a disability, or people with physical health problems?
Mr. Ménard: What I have seen, in the cases I know about, is that they came well within the Quebec law, that is, they were people with an incurable illness, but they were not in the terminal phase. In some cases, they still had several months to live. So in terms of medical conditions, the people fell well within the law. We have not deviated from it. Medically, the doctors who have taken part in the exercise expressed afterwards, not satisfaction, but the feeling that they had really done something good, because it was done with respect for the people, who had their families with them.
Senator Boisvenu: My next question, which is a matter of considerable interest, is this. If Quebec had had to manage those 50 cases — please forgive the term "manage'' — under the current bill, how many people in Quebec would not have been able to exercise that right?
Mr. Ménard: The Quebec legislation is narrower; in other words, everyone who can exercise that right under the Quebec legislation can certainly do so under this bill, as it stands. However, there is some demand, and I work with groups of people with a disability in Quebec who think the Quebec law is too narrow.
[English]
The Chair: I'm sorry, but we're running out of time. I want to give Senator Batters an opportunity for a quick question.
Senator Batters: Mr. Ménard, earlier you were speaking about the waiting period, how you didn't agree with that and a few other issues. You didn't agree with the reasonably foreseeable definition, as is indicated in this bill. But, to me, a significant difference between this particular legislation and Quebec's legislation, which you had significant involvement in, is Quebec has an end-of-life requirement that is universally accepted as being more restrictive than the reasonably foreseeable death. Would you acknowledge that's correct?
[Translation]
Mr. Ménard: Yes. I said the federal criteria are a little broader than the Quebec criteria. The problem, however, is that, in addition to not being in the Supreme Court's decision, the concept of reasonably foreseeable death is difficult to define. A bill can be passed, but what does that mean on the ground? In a scenario where a doctor and patient want to apply it, is the doctor going to interpret it narrowly or broadly? The individual's constitutional right can then be extended or restricted as the doctor chooses. Even though this criterion is a little broader than what is provided in the Quebec legislation, it is vague and, most importantly, it is not consistent with the Supreme Court's decision and with the new section 7 of the Canadian Charter of Rights and Freedoms.
[English]
Senator Batters: Quebec studied their particular law for six years before they enacted it — a much longer period of time than the few months that this particular government has taken to do — and they enacted much stricter safeguards than what the parliamentary committee, by both Ms. Downie and Mr. Arvay here, endorsed.
In Quebec's significant six years of study, a significant area was what type of medical practitioner should be involved. I would like you to talk about your point of view. My understanding, from your testimony at the joint committee, is that you think it should be physicians and not nurse practitioners. Could you please tell us why?
[Translation]
Mr. Ménard: I have no hesitation about a specialized nurse practitioner being able to do it eventually, because that is a policy choice, a choice to be made by society. In Quebec, specialized nurse practitioners have a narrower scope, one that does not cover the same area as in some remote regions of Canada. The Canadian situation lends itself well to allowing specialized nurse practitioners to do it. In Quebec, we have not allowed that, but personally, ultimately, I would see no difficulty in nurses being able to participate in the process as well.
[English]
Senator Batters: At the time of the joint committee you said that nurse practitioners or pharmacists do not necessarily have the necessary level of knowledge to do this.
[Translation]
Mr. Ménard: At present, what I am saying is not to simply exclude them from the process in the long term. For the moment, in Quebec, it is purely a medical practice. In the long term, I think that could change.
[English]
The Chair: Thank you, all. We could have kept you here for another hour, I'm sure. We certainly appreciate your appearance and testimony. It was very helpful to the committee.
On our second panel, senators, we have with us Margaret Somerville, Professor, Faculty of Law and Faculty of Medicine, McGill University; Dianne Pothier, Professor Emeritus, Schulich School of Law, Dalhousie University; Trudo Lemmens, Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto; and David Baker, Lawyer, Bakerlaw. Welcome, all.
David Baker, Lawyer, Bakerlaw, as an individual: Mr. Chair, I wonder if we could follow the order we've arranged with ourselves. It might be easier.
The Chair: Okay.
Dianne Pothier, Professor Emeritus, Schulich School of Law, Dalhousie University, as an individual: Thank you for the opportunity to speak to you. In my allotted five minutes I want to focus on the constitutional validity of the proposed definition of "grievous and irremediable.'' I couldn't disagree more with the previous panel.
The Supreme Court of Canada in Carter is as significant for what it doesn't say as for what it does say. The court, in paragraph 95 of the decision, says in the section 1 context that Parliament is entitled to deference, particularly when it's dealing with the constitutional rights of vulnerable people, but it doesn't elaborate on that. Joseph Arvay says it's all decided. The only thing they decided in Carter was the constitutional validity of an absolute ban. The Supreme Court of Canada said an absolute ban doesn't cut it. They haven't said what else might cut it.
The issue is protection of the vulnerable. The challenge here is we're dealing with competing rights but in an unusual context. We have people who are saying I want to exercise autonomy as a section 7 claim. Then the other side is protection of the vulnerable, but the vulnerable are not going to self-identify. By definition, they're not in a position to be advancing their rights. And the issue is they're presenting as people who want to die, but the question is whether that is said in a moment of weakness. Yes, at the moment, they're saying they want to die, but if that request is granted, they will be gone; they will not be able to change their minds.
The previous panel didn't give much attention to that, but the critical issue is whether people are getting premature death if they had the opportunity to figure out — Well, I don't have the time to go into the full panoply of things they might be able to figure out in terms of having their needs met and deciding yes, life really is worth living. It's a matter of how can we protect people who, in a moment of weakness, can't see forward in that way?
The question is whether the provisions in proposed subsection 241.2(2), particularly paragraphs (b) on declining condition and (d) on "reasonably foreseeable'' death, are valid. In terms of the declining condition, Joseph Arvay said he got the declaration he wanted. Not quite. Justice Smith at trial added that one. The wording in Bill C-14 is slightly different than Justice Smith's, but she added the declining condition. The Supreme Court of Canada did not approve it; they didn't disapprove it; they didn't even acknowledge she said it. So commenting not at all is a strange way of saying they determined something by saying absolutely nothing about it.
There is a parallel issue in terms of reasonable foreseeability of death. Regarding the international experience, the North American experience does in some way or another have an end-of-life stipulation; the European experience doesn't. The court doesn't weigh the pros and cons of that. Justice Smith didn't do it. The Supreme Court of Canada didn't do it. No, they didn't put it in the declaration, but they didn't disavow it, either. They didn't say whether this was a good, bad or indifferent idea.
When Joe Arvay says in the transcript at the extension hearing that one of the judges said, "We already decided that,'' that can't trump what the court actually says in its written decision on the extension decision, which is, "We make no comment on the Quebec legislation.'' So, yes, the Quebec legislation was there in advance, so it obviously didn't deal with Carter, but the Supreme Court of Canada itself says, "We have not pronounced on this.'' So how can you say this is already settled when they themselves have said, "We have not settled this''?
On the issue of "what is there to settle,'' the question is, is it contrary to the principles of fundamental justice or, in the alternative, is it saved by section 1?
The Chair: Sum up, please.
Ms. Pothier: The summary is, essentially — at trial, Canada said that one wrongful death is a problem, and that warrants an absolute ban. The court said no. But the issue is that if the risk of error or abuse is low, then an absolute ban is clearly going too far. But if the risks of error or abuse are too high —
The Chair: I'm sorry, Ms. Pothier. That's not summing up. Mr. Baker.
Mr. Baker: Thank you. I'm going to confine my remarks to a discussion of safeguards that would protect vulnerable persons with grievous and irremediable conditions by enhancing, rather than limiting, their rights and autonomy.
Suicide is a major issue across Canada, and while we're here to address the issue of medical assistance in dying, there are communities across Canada working to stem a tide of premature and preventable deaths among those who do not have a disability. It will remain a criminal offence to help such persons to commit suicide.
Suicide prevention protocols exist within hospitals and in the wider community to prevent people from taking their lives. As a humane and compassionate society, we intervene to support those who are in such dire circumstances.
Persons with disabilities are not immune to taking their own lives for reasons that are comparable to those motivating non-disabled persons to do so. Marital breakdown, loss of employment, feelings of loneliness and isolation are just as prevalent among persons with disabilities, including those with grievous and irremediable conditions. Medical assistance in dying should never be considered the cure for all suffering experienced by persons with disabilities.
Medical assistance in dying differs from the giving and withholding of consent to treatment, because there are criteria that must additionally be met before giving effect to a person's choice to die. It would be discriminatory and a violation of the Charter, as Professor Pothier has elaborated upon in her constitutional opinion, to treat persons with disabilities differently from persons who are not disabled in comparable circumstances. In Carter, it is clear that an individual's motivation is important, and when the motivation is not based on suffering caused by grievous and irremediable conditions, it was not intended that MAD would be legalized.
It is the responsibility of Parliament to develop safeguards to ensure people are treated equally. This would require that assessors go beyond being required to confirm informed voluntary consent to the receipt of medical assistance in dying and inquire into the source of the person's suffering. Requiring that a palliative assessment be included among the bill's safeguards would ensure that persons with disabilities are not assisted to die when their suffering is the same in all material respects as the suffering experienced by non-disabled persons.
In my brief, I list the disability-related motivational factors identified by the persons who were subsequently determined to be eligible for MAD in Oregon. You will note they are all quality-of-life rather than treatment issues. In order to give an informed consent to MAD, it would necessary for the person to be informed of what choices exist to be made concerning those factors.
We are all aware that many people who want and need palliative care in this country are unable to get it. Similarly, many people seek a good death in their own home, surrounded by friends and family. Making this choice without becoming burdensome for family or friends might be impossible for some without home care. Social workers address financial matters and nurses or case managers enable personal care.
Parliament may not go as far as Quebec and guarantee a coincident right to palliative care, but surely it can ensure that people are aware of the choices open to them so that they can give an informed consent. This can be accomplished by adding or substituting a palliative care assessment for the opinion of the second physician in proposed paragraph 241.2(3)(e).
A palliative care assessment would, in practice, be a multidisciplinary one and would inform people about the choices open to them on the issues that would be uppermost in their minds. Palliative assessments are also intended to identify pressures that cause suffering, including pressure created by those close to the person, whether or not intended but that could amount to undue influence. They assist people to come to grips with a difficult prognosis, which may initially trigger anxiety, depression or despair, and cause a person to make a decision to request MAD in error, by which I mean that, given the opportunity, they would later regret that decision.
Canada may not be yet be willing or able to confer a right to palliative care, but a palliative assessment should be a requisite element in the safeguards contained in this legislation. Before it can be said that consent to MAD is voluntary, informed and meets the statutory eligibility criteria, a person should receive a palliative care assessment.
You have in my brief the wording I'm proposing for your consideration. I leave that to you. In the event the committee is looking for a prior review mechanism, a draft bill is available to you at the citation set out in the brief. Either or both the palliative assessment or prior review mechanisms would produce data upon which a meaningful, functional assessment of this entire procedure could be conducted that would guide governments in ways to further enhance the rights and offer relief from the suffering of persons with grievous and irremediable conditions.
Thank you.
The Chair: Thank you. Mr. Lemmens, please go ahead.
Trudo Lemmens, Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto, as an individual: My submission will focus, first, on why I support the bill's definition of "grievous and irremediable,'' to some degree for sure. Second, I will say something about limitations and the safeguards in the bill, including reference to the importance of additional review. If I have time, I will say something briefly about the exclusion of advance directives, which I think is appropriate.
My comments are informed by research I've done on euthanasia law, particularly practice in Belgium, which is my country of birth, and the official languages which I speak.
With respect to the criteria, I agree with Professor Pothier and others that the bill's criteria are constitutionally valid; and here I want to mention why I think they are required. Evidence from euthanasia regimes that combine open- ended access criteria with assessment by individual physicians and limited after-the-fact review shows that this first leads to a significant expansion of the practice — in Belgium we have gone from about 100 to 200 cases in the beginning of the euthanasia legislation to more than 2,000 cases per year.
More importantly, we also see an expansion in problematic areas. With the lack of information about exactly what is going on, we see inclusion of euthanasia practices towards people with disabilities, couples who want to die together, people struggling with gender identity, people who are tired of life, and increasingly people who are lonely. In the mental health area, we see that it also involves people who are chronically depressed and treatment-resistant, which itself, I would urge Parliament to consider, is a questionable concept that doesn't mean no further treatment could work. It basically means that two courses of treatment with antidepressants didn't work. It doesn't mean that people with treatment resistance couldn't be helped.
It includes not only chronically depressed, but in Belgium it also includes patients with post-traumatic stress disorder, anxiety and eating disorders, schizophrenia, addiction, autism and even complicated grief. Members of this committee should be critical of the claim that the evaluation by the trial judge in Carter and other committees confirm that there are no problems with open-ended regimes. This is incorrect.
The trial judge accepted that there could be problems with the Belgian system as did the Supreme Court, which excluded fresh evidence from Belgium arguing that this evidence dealt with cases outside the parameters of its reasons and that the Canadian Parliament could develop a more stringent regime than Belgium did. More importantly, many developments have actually become more apparent in the last five years. I provide detailed evidence of this in my written submissions and in other writings.
I want to say something about competency and consent procedures. Obviously, physicians already assess competency and informed consent in end-of-life situations. First, with legalized MAD, these procedures will be used in many more end-of-life situations to determine the difference between life and death. Second, if the criteria were expanded to situations where people are not at the end of life, the possible errors associated with competency and informed consent become so much more serious — many years of life lost to people who, given proper support, would not have ended their lives.
Problems with competency and informed consent assessments, or at least the limitations of competency and informed consent assessments by physicians, are widely recognized by health care professionals. Psychiatrists are generally recognized — indeed these people are supposed to be the best trained in competency assessment — but their training at that level is insufficient. The science of competency assessment is in its infancy. A publication will come out in which we develop that argument in more detail.
I recommend, as my colleague David Baker already pointed out, explicit reference in the bill to the need for a sophisticated evaluation of contextual and personal factors that may impact the desire to die and the voluntariness of the request. Pain, emotional distress, mental illness, financial or familial pressures, availability of palliative care and so on should be carefully assessed before access to MAD is offered. I propose some changes in my submission.
Limitation of competency and informed consent assessments, in my view, make a prior review also very important. They avoid the havoc created by a few physicians who may be unconsciously sloppy, negligent or overly zealous. Again, the Belgian and Dutch evidence indicate that there are problems when a handful of physicians can indicate or actually change to create a significant change in the practice of euthanasia.
With respect to advance directives, they are problematic or certainly very tricky. They are an exception to the rule that people have to provide informed consent. When people are asked to write an advance directive after a diagnosis of dementia is given, competency issues arise. People have difficulty imagining that they may enjoy quality of life and find new purpose or satisfaction in life once dementia develops, but this is often the case. People become a different person even with changes in the brain.
There are some other reasons I point out in my submission that you can read in more detail. I would urge the committee to take seriously the evidence of the Belgian and Dutch regimes, particularly recent evidence, and to listen to the narratives of people in the few cases that have come to the fore and many others that may be hidden because people whose lives have been terminated were often vulnerable and in difficult positions and are no longer there to testify.
Margaret Somerville, Professor, Faculty of Law and Faculty of Medicine, McGill University, as an individual: Thank you for inviting me. I just want to put on the record that I oppose the legalization of euthanasia. But because it seems inevitable, I'd like to propose what I think should happen.
I very much agree with the approach taken in Bill C-14 that euthanasia will be an exemption or an exception to prosecution under the Criminal Code for what would otherwise be culpable homicide and assisted suicide. Treating it as an exception helps to ensure, as is essential, that it doesn't become part of the norm for how Canadians die, that it must only be employed in exceptional circumstances and rarely, as both the trial judge and the Supreme Court of Canada ruled in Carter, and that it should only be used as a last resort for those who clearly qualify for it.
If what occurred in the Netherlands and Belgium were to be normalized in Canada, the figures that we could expect, taking the same figures as in those countries, would be approximately 9,000 deaths each year in Canada. Recognizing euthanasia as an exception also helps to establish that access to it is not a right but rather, under certain conditions, an immunity from prosecution for a criminal offence. That carries a very important anti-suicide public health message. In other words, you haven't got a right to commit suicide, but there won't be prosecution in certain circumstances.
As well, the characterization of legal immunity not as a right will assist in protecting freedom-of-conscience Charter rights of physicians who don't want to be involved for reasons of conscience or religion. I also think that it will help to avoid the legislation being unconstitutional. I agree with my colleagues as to their constitutional analysis.
Allowing euthanasia unavoidably damages the value of respect for life and puts vulnerable Canadians at risk. The preamble to the bill recognizes that we have to maintain respect for human life at both individual and societal levels and protect vulnerable people. So how can we do that? I would suggest to you that it demands another goal. For both practical and symbolic reasons, I propose an essential additional condition not yet in Bill C-14: that a Superior Court judge be required to review and approve each request for euthanasia that is being granted. Remote area cases can be handled by Skype.
Judicial involvement underlines the seriousness of the decision to use medical assistance in dying. It will assist in doing the least damage to the foundational value of respect for life, will provide better protection against abuse of euthanasia and protection of vulnerable people than the present draft does and will help to ensure that euthanasia is rarely used and only where all necessary conditions are complied with.
This safeguard has a history of judicial recognition. Chief Justice McLachlin recognized it in her dissent in the Rodriguez case; the Supreme Court of British Columbia imposed it in the trial court decision; and five judges in granting Parliament the extension to discuss this bill also imposed it for the interim period.
There's also well-established precedent for legislating quasi-judicial or judicial review of physician decision making in another health care context. Provincial mental health legislation often requires such involvement in the involuntary commitment of a person to a psychiatric hospital. Surely, inflicting death is at least as momentous a decision, and the potential for the abuse of power to inflict death, especially on vulnerable people, is just as serious a concern as restricting people's liberty through involuntary commitment.
I will conclude by saying that the preamble points out that we have to balance autonomy with protection of vulnerable people and do the least damage to respect for human life. I believe that that requires that the provision of euthanasia be limited to people who are terminally ill. I would also remind the committee that I also believe that this is probably the single most important decision you will ever make as members of the Senate, what happens in this respect. I believe that it will actually be the landmark decision of the 21st century.
The Chair: Thank you all. We'll move to questions, beginning with the deputy chair, Senator Jaffer.
Senator Jaffer: Thank you to all of you for presenting. Because we have very limited time, I will make my question very short. There are many questions I could ask.
My question is to you, Mr. Lemmens. You suggested that you have knowledge of Belgium. One of the things that we have been looking at is advance directives. From what I understand — You cannot hear me?
Mr. Baker: He's hard of hearing, so I'll repeat the question for you.
Mr. Lemmens: Could you repeat the question?
Senator Jaffer: My question is to you, Mr. Lemmens. My question is —
Mr. Baker: Could you give me one second? Directing her question to the experience in Belgium with respect to advance directives.
Senator Jaffer: I understand that there is a review every five years. Can you expand on that, please?
Mr. Lemmens: With respect to advance directives, as I elaborate in my submission to the Senate, even in the liberal, most open-ended regimes, Belgium and the Netherlands, which I criticize for other reasons, advance directives are allowed in Belgium only in very narrow circumstances. The only conditions under which people can be euthanized, have their life ended, if they made an advance directive, are if the advance directive is made within a particular period of time prior to the moment that they are supposed to have their lives ended and, secondly, when they are irreversibly unconscious. Even the Belgian parliamentarians who were in favour of a more open regime felt that there had to be a very clear protection against euthanasia practices on people who may still have a quality of life left and whose personality may have changed, who may be demented at this point but may be running around and going about their things in a very different way than they previously would have obviously preferred.
In the Netherlands, advance directives, again, can be made, but they have rarely been used. I saw literature that shows that doctors and family members are very uncomfortable actually applying it. One conclusion could then be that the doctors don't apply it, but it tells you something about the dilemma that doctors face when they are confronted with an advance directive of somebody who can no longer change her mind once she has become demented or incapacitated. It's a very problematic practice that would develop if you allow people to have their lives ended on the basis of a previously expressed wish that they can no longer change.
In the cases in the Netherlands where they have applied, they have led to, I would say, public outcry by commentators, by academics, by ethicists, who have, for example, recently looked at the documentary in which an end- of-life clinic was followed and in which one particular woman had her life ended when she was suffering from a speech dementia and was incapable of communicating much. She kept saying, simply, "I will be gone.'' The doctor and her husband, who seemed to be willing to have her life ended, concluded that this was sufficient confirmation of her previously expressed wish. It created an outcry in the Netherlands. I would say, why move there if it's rarely applied and if, in the circumstances in which it has been applied, it has led to very significant controversy in Belgium and the Netherlands? You should be very cautious in moving into a regime that would allow the ending of life of people who can no longer withdraw their consent.
Senator McIntyre: Thank you all for your presentations. In listening to the presentations, two words come to the surface repeatedly. Those words are "criminal law'' and'' health care.'' As we all know, the Constitution relegates criminal law to Parliament and health care to the provincial legislatures. Bill C-14 is calling for legal euthanasia. That said, I think our biggest challenge with Bill C-14 is to figure out how it can be successfully managed.
My question is this: Is it possible to have a system where euthanasia is practised and regulated outside the health care system and regulated solely by the federal government? In my opinion, to do otherwise would perhaps undermine the fiduciary nature of the doctor-patient relationship. Professor Somerville, you wish to go ahead first?
Ms. Somerville: Yes. That's a really important question. I suggested to the committee that we should not have doctors doing this, that we should have a new profession that we can call euthanologists or whatever you want, sanitologists, I guess. But that is a very unpopular suggestion. I think one reason is that, when we put the medical cloak on something, we think it is ethically acceptable, and we think doctors are ethical. I believe we need to take the white coat off of euthanasia. Indeed, a colleague of mine and I have a paper, published in an Oxford University Press journal, that is called "Euthanasia is not medical treatment.''
The reason why Quebec made it medical treatment was that they didn't have jurisdiction to legislate on it unless it was medical treatment. But I think there's a very open question of whether it should be included. There was a huge fuss in Quebec when the initial draft of the legislation defined palliative care and defined euthanasia as part of palliative care. They modified the definition, but it's still not satisfactory.
That's a very important question. What we're doing here — let's be blunt about it — is that we're letting doctors kill people, and that is certainly something that is central to the criminal law. There's no more stringent provision in our Criminal Code; the worst thing you can do is murder. So what we're doing is taking this out of murder and saying, "On these very strict conditions, we will let you do it.'' But those conditions have to be very strict and very clear, and they have to be very limiting. The point of my presentation was that it must not become the normal way to die. It probably won't be used a lot immediately, but I think you have to ask yourself this: What do you think will happen to your great-great-grandchildren if we get used to this? That's exactly what Professor Lemmens is talking about. We can see it in Belgium and the Netherlands. It's gone from a few cases to, now, 3.5 per cent of all deaths in Belgium and the Netherlands — and that's a low estimate — by euthanasia.
Senator Baker: Thank you to the witnesses. I will ask just one question to make sure I don't get cut off. I'd like to thank you for all of your presentations. They've been very interesting. I'd also like to recognize Mr. David Baker, who has extensive litigation in this particular area we're talking about over the years.
The question I want to put is to Ms. Pothier, and she is also a litigator of some great experience nationally.
The reason why I'm putting this question to her is because I recall, over 20 years ago, a dissertation called The Sounds of Silence. She's nodding her head. Over 20 years ago, a definitive text on what happens when the legislature does not respond to a ruling on the Charter.
My question is this: Does this mean that if we don't respond by June 6 — and there's a possibility we may not be able to respond by June 6 or even a short time thereafter — the matter will be at the discretion of doctors, in compliance with the decision of the Supreme Court of Canada? At paragraph 127, some doctors will take part, and others won't. Will they be hesitant? Does it mean that per the recommendations of our joint committee you don't need any second opinion? Will there be no waiting or reflection period and nothing in writing from the person? Would it be irresponsible for Parliament not to respond to this matter? If your answer to that is just a yes or a no, then what do you think of the legislation?
Ms. Pothier: The answer is yes, it would be irresponsible. I put that at the end of my written brief to the Senate. Regarding the things you said — that you only need one doctor, that there's no written requirement and no period of reflection — we could rival Switzerland for tourism in terms of medical assistance in dying. I've heard it agreed we should not become a medical tourism destination, but if you have only Carter to guide you, there's nothing to stop that.
There are issues about what's grievous and irremediable, and I'll get back to that in a second, but there are a whole bunch of safeguards that everybody agrees on that would not be there if, after June 6, the declaration of invalidity comes into force. I think it would be irresponsible.
In terms of what I think of Bill C-14, I could come up with some criticisms, but in general I think it's going in the right direction, particularly the grievous and irremediable concept. Subsections (b) and (d) are the way of saying we're limiting this to end-of-life conditions, though it's not the same language that's used in Quebec. And actually, "reasonably foreseeable'' has been criticized as being too vague, but I think it's flexible.
The reality is it might sound more clear if you said it's six months, like in Oregon, in the United States. If we had good predictions about how fast people will die, that might make sense, but when we don't, reasonable foreseeability of death, I think, is a better way of looking at saying we're trying to get to people who are dying.
In terms of Ms. Downie's comments, reasonable foreseeability means whether, and not when; it's the reasonable foreseeability of death. You have to have the words in their full context. Death implies a context that does mean timing matters, even if in other contexts reasonable foreseeability isn't about timing.
The reason why it matters — and Trudo Lemmens was getting into this a bit — is that if there's not such a limiting condition, it means the chances of getting it wrong increase substantially. If the risk of error and abuse is low, Carter says autonomy trumps. If the risk of error and abuse is high, the protection of the vulnerable should trump. If people are not dying in any sense, then the chance that a transitory view of saying I should die prevails, that stops you, over decades, from having to figure out a way that makes life worth living.
It's a huge problem if people felt they were condemned to death because they couldn't see past their current circumstances and foreclosed on finding a way that enabled them to live. It's one thing to say somebody is going to die soon; that affects how you assess your options. If you potentially have a long life ahead of you, then how you weigh death versus other ways of dealing with issues and having needs met, et cetera, the chances of getting it wrong go way up if we don't limit it in some way.
The Chair: I have to jump in there.
Senator Eaton: Ms. Somerville, I agree with you completely.
I have two quick questions. Mr. Baker, would it be possible to add an amendment? I find your palliative care consultation would be very useful as a safeguard, because I don't think everybody has palliative care access. Most people don't even know about it or how good it can be. Could that be made an amendment?
To you, Ms. Somerville: Mr. Lemmens spoke about the unevenness of the medical personnel that evaluate people at end of life. Would that really emphasize how important or interesting it would be if we had a Superior Court justice evaluate every case? Would that level the playing field across the country so that people can't shop around, medically? Could that be an amendment?
Ms. Somerville: I would strongly recommend that. In the brief I submitted, I explain it's for both practical and symbolic reasons. From the practical point of view it's what you just said: It tries to ensure greater safety, for greater certainty. The symbolic reasons are that this is a huge decision that you're going to allow someone's life to be terminated, and having a judge involved tells you that, in every single case.
Mr. Baker: Thank you for the question. The proposal there could be introduced as indicated at the end of the subsection, or it could be substituted for the second medical opinion. The intention is that the assessment be directed to the issues that are left to Parliament in terms of safeguarding persons who are vulnerable. What are the issues around vulnerability?
As I've suggested, the issues that a palliative assessment would be directed to are precisely those issues that are of concern to people at the point where they are making this request. From the standpoint of the disabled community, the issue is one of rights, being informed and having choices, and not being put in a position where they are not given the opportunity to make an informed decision, which, of course, is a requirement.
Senator Eaton: I don't think it's just the disabled community. I think palliative care is an expertise. I've been told that by many doctors, and most people don't know or realize what it can do.
Mr. Baker: The other thing I'd emphasize, though, is that the form of palliative assessment is directed to the issues of the person suffering. That would not require that it be a specialist in palliative care that performed the assessment, but it would be an assessment directed to the issues that are indicated here.
In our view, if you can't provide people with palliative care, you should at least be addressing the source and cause of suffering and indicating what can be offered.
Senator Joyal: Welcome. My question is for Ms. Somerville.
I was puzzled by your conclusion that physician-assisted death is not a right under section 7. The way I read the Carter decision, the court concluded clearly that the prohibition of physician assistance in dying in the Criminal Code was a clear violation of section 7 of the Charter. As you know, section 7 of the Charter states that everybody enjoys "the right to life, liberty and security of the person'' in sync with the principles of fundamental justice. So, why do you conclude that physician assistance in dying is not a right under section 7 of the Charter?
Ms. Somerville: Because if there's a right, then there has to be a correlative duty, and that duty would be not to stop somebody from committing suicide. As Professor Pothier said, the absolute prohibition of assistance in dying is contrary to section 7 of the Charter. Therefore, to become compliant with section 7 of the Charter, there has to be a limited exception, but the Supreme Court never said there is a right to commit suicide. If there were, it would mean that every time an attempted suicide was brought to our emergency room, we as health care professionals would have a duty not to treat that person because they're exercising their right to commit suicide.
There's only been one case where it's been proposed as a right in that sense, and that was Chief Justice Lamer in the Rodriguez case. He did propose that.
Senator Joyal: Yes, but the court stated clearly that, under specific conditions which are grievous and irremediable, a person suffering intolerably has a right to physician-assisted dying. That's what the court concluded. There are conditions. I agree with you; it's not a total recognition that anyone can commit suicide under section 7.
Ms. Somerville: I think what they said was that if you're in that situation it is unconstitutional to have an absolute prohibition on having assistance. That is a negative-content right; you can't totally prohibit it, but you haven't got any obligation to provide it. That would be a positive-content right. That is different.
I have a different interpretation of what they've said. Certainly they held that it was contrary to life, liberty and security. In effect, what the court did was convert the right to life, if you want to call it a right, to a right to have death inflicted on you, and that's a very unusual interpretation, but it's the one that was taken.
Senator Joyal: Today any Canadian can go to court and state in front of a judge: Here is the diagnosis; I suffer from a grievous and irremediable condition, and that suffering is intolerable to me, and I request assistance in dying, and the judge said yes.
Ms. Somerville: The judge gives permission so that whoever assists would not be prosecuted under the provisions of the Criminal Code that would otherwise apply, but it doesn't mean that someone has to do that. You have to find someone who is willing to help you, and there are physicians who will.
Senator Joyal: Of course, and the court recognized that, because we are in competing rights: the right to freedom of religion and the right to request assistance in dying; and then there is the balance that has to be made by the government on where the rights of one trump the rights of the other, or is there not a way to balance the two? That's essentially what the court does regularly.
Ms. Somerville: That's one important balance. The court refers to balancing the rights of physicians and their freedom of conscience and the patient. The most important balancing is between autonomy, on the one side, and on the other side, protection of vulnerable people, and also upholding the value of respect for life in society as a whole. In fact, in the preamble to Bill C-14, that balancing is specifically referred to.
Senator Joyal: Yes, but it's going to be submitted to interpretation of the court, as you know, because there are limits that the bill contains that are not specifically expressed in Carter, that is, the debates among the legal community about whether this bill is constitutional or not.
The way I see autonomy is the competence of a person to make a rational decision, "rational'' being in full mastery of his or her ability to make a decision. That's essentially where the autonomy of the person is at stake. Does that person have the mental capacity to make an enlightened decision about the implications of the decision to be made? That's essentially where the autonomy of the person is concerned in this bill.
Ms. Somerville: In fact, senator, if you want a very strong upholding of autonomy, the decision doesn't have to be rational. Rather, the person has to be competent. Once they're competent, they can make an irrational decision.
We usually agree with rational decisions, and where upholding autonomy is important is when we disagree with the decision and the person says, "I rely on my right to autonomy to say my wishes prevail.''
We have to be very careful. There's a lot of jurisprudence and literature about this in the health law, medical and ethics context.
May I just add one point about the informed consent, which I think is very important and will back up what Mr. Baker says. You must require that there be an informed consent to physician-assisted death. Informed consent requires that a person be offered all the reasonably indicated options that they could choose from. In fact, if you don't offer palliative care, you can't get an informed consent to euthanasia. It backs up the proposition that we should require that palliative care be offered.
The current statistics are something like only between 15 and 30 per cent of Canadians who need palliative care get access to it.
[Translation]
Senator Dagenais: Ms. Pothier, I noted that you have written a lot about the Carter judgment. I congratulate you on your work. I would like to know your opinion on two points. The first relates to the right to suicide under Bill C-14, and the second relates to your definition and the courts' definition of the term "vulnerable person.'' Is that definition reflected in Bill C-14?
[English]
Ms. Pothier: Vulnerable people are presenting as somebody who wants to die, but the issue is, are they doing it in a moment of weakness? So the vulnerable protection is to say if we accede to what on the face of it is their autonomy, they will condemn themselves to something that, if they had a chance to change their mind, they would not pursue this.
The issue is how do we protect people from not being able to change their mind because they're dead and therefore can't change their mind? The point of having restricted definitions of grievous and irremediable is to say the chances of people wanting to change their mind but not being able to, that's the error that we're worried about. That potential error is much greater in contexts where there isn't reasonable foreseeability of death or there's not advanced decline in condition. I'm not sure if that addresses your question.
Senator Batters: Thanks very much to all of you for all the incredible work you've done on behalf of vulnerable people in Canada.
Mr. Lemmens, thanks for your work on letting us know about Belgium. You were indicating that what used to be about 100 to 200 people a year in Belgium who died by doctor-assisted suicide is now 2,000-plus cases a year. What is Belgium's approximate population?
Mr. Lemmens: Ten million. It's interesting to mention also in the Belgian context that for reasons that have never been explained, which tells you something about the limits of the post-factum reporting system, none of the official reports coming out of Belgium have explained why there's such a high rate of reported cases of euthanasia in the northern part, where I come from, the Flemish part of the country, and the southern part of the country. In Flanders, in 2013 the percentage of overall deaths as a result of euthanasia was officially at 6.3.
It's also interesting to know that when surveys have tried to get at the unreported cases of euthanasia they still remain significantly high. The argument that is often made is that we'll just have a post-factum reporting system and we will have more information about what's happening in the country. The evidence doesn't show that. The evidence shows that the practices may be shifting. There remains a significant portion of unreported euthanasia cases, which is really problematic. You have a legalized system where problems come to the fore, but you still have unreported cases where we actually don't know what's happening.
Senator Batters: Within the last two months, Belgium came out with a report indicating that they were reconsidering their assisted suicide regime, including psychological suffering as a sole basis because they were finding they were having significant problems with that. Could you comment on that?
A further issue that I would like a brief answer on: I think you said that "treatment-resistant'' for psychological suffering was defined as only two courses of antidepressant treatment. If that is correct, I find that definition completely inadequate, and millions of Canadians suffer with mental illness, so many Canadians would fall within that definition today.
Mr. Lemmens: I think these are very important questions. Your last question I will respond to first.
There is indeed a significant problem when we're dealing in the context of mental illness with the definition of "irremediable.'' If you include in the legislation the option to have assisted dying on the basis of psychiatric disorders, you're dealing with a population where treatment resistance is a flexible concept, where people, as a result of the disease, often tend to refuse treatment or deny they're ill, where it often takes a considerable period of time, months if not years, to actually find therapeutic direction between the doctor and the patient and the right treatment. It's a trial and error system.
Any psychiatrist who can confidently say that he or she knows that patient X or Y is irremediably sick, I would question their judgment. Yes, there may be exceptional cases where people say there is no further hope, but in many cases and even the studies that have been published with the medical literature from Belgium and the Netherlands show that when doctors made a judgment about the treatment resistance and irremediable nature of their psychiatric condition, some of these patients refused, for one reason or another, the euthanasia they were granted and were still alive two years later and doing well.
It shows the danger of allowing individual physicians to move ahead quickly and providing access on the basis of mental illness.
There is significant debate. Some controversial cases in Belgium have stirred debate, and many health professionals, psychiatrists certainly, are very worried about some of the practices developing.
Senator Batters: Because they're finding that people with depression are being included in this.
Mr. Lemmens: Yes. There was a case of a 38-year-old woman diagnosed with autism who had no significant previous history. She had had depression in her teenage years but had been doing fine for 15 years. She enters into a mental health crisis, is diagnosed with autism and is euthanized two months later.
So many health professionals are coming out saying this is unacceptable. These cases raise profound questions. In Belgium, there are actually a handful of physicians who drive the practice of psychiatric euthanasia cases and how this is leading to vulnerable patients requesting euthanasia.
So there is debate about it. It's not that everybody supports the withdrawing of psychiatric conditions from the bill, but there is debate about it. There is pressure on the system.
The same is happening in the Netherlands, where even psychiatrists who originally supported the practice will say either the criteria have to be strengthened or, as in the Belgium case, leading psychiatrists have come out in support of prior review systems because they think the practice is actually running out of control.
The Chair: We're going to have to wrap it up. Thank you, witnesses, for being here. We very much appreciate your contribution to our deliberations.
With us for our third panel today, we have, from the Canadian Nurses Association, Carolyn Pullen, Director, Policy, Advocacy and Strategy; and Josette Roussel, Senior Nurse Advisor. From the Canadian Medical Association, we have Dr. Cindy Forbes, President; and Dr. Jeff Blackmer, Vice-President, Medical Professionalism. And from the Canadian Pharmacists Association, we have Phil Emberley, Director, Professional Affairs; and Joelle Walker, Director, Government Relations, Public and Professional Affairs. Thank you all for being here.
Carolyn Pullen, Director, Policy, Advocacy and Strategy, Canadian Nurses Association: Thank you for this opportunity to suggest amendments to the draft wording of Bill C-14 on behalf of the Canadian Nurses Association, which represents 139,000 registered nurses and nurse practitioners in Canada.
CNA has actively engaged in consultations leading to the release of Bill C-14 and provided recommendations related to safeguards, universal access, support for patient autonomy, protection under the Criminal Code, and a harmonized approach to MAID — medical assistance in dying — across Canada with respect to access, practice and monitoring to prevent a patchwork system of access and practice.
We continue to emphasize that while 3 per cent of Canadians may request MAID, the majority will desire palliative care. This gap must be addressed.
We also put a spotlight on the unique access issues faced by 7 million Canadians who live in rural and remote communities where primary care is frequently provided by nurses with an expanded scope of practice.
CNA applauds the federal government's work to table this challenging legislation. We are satisfied with the moderate approach taken on this complex issue, and we hope for an expeditious passing of Bill C-14 by June 6.
We welcome the intention to develop a pan-Canadian care pathway for end-of-life care as this has the potential to reconcile issues related to access and conscience.
CNA strongly favours a harmonized implementation of MAID across Canada. In support, we are convening nursing stakeholders, including regulatory bodies, to develop a national nursing framework that will guide nurses on ethical issues and professional development related to MAID. We expect to have this work completed by the fall.
Today, we offer three specific recommendations for amendments to the proposed legislation. These are based on our view that it will best serve patients and health care providers if the legislation can be clearly understood, is possible for professionals to demonstrate in practice and is practical to implement in the best interests of the patient.
First, with respect to sections 241.2(1) and (2), we suggest removing the criteria which refer to "incurable'' and "reasonably foreseeable death.'' Our written submission offers an expanded definition of a grievous and irremediable medical condition for section 241.2(1), which we believe is in accordance with the Carter decision that focused on intolerable suffering rather than on timelines for death.
By making the amendments we suggest, section 241.2(2) could be deleted and subsection 3(b)(ii) could be revised.
Section 241.2(6)(a) and (c), which address independence of practitioners, leave room for questions about business relationships between practitioners and factors that could affect the objectivity of practitioners. Questions this section raises include the following: If practitioners have only referred patients to each other, does that imply a business relationship? In small communities, does simply knowing each other imply a relationship that might affect independent practice?
Confusion about the meaning of these clauses could lead to delays in access to MAID, particularly in rural settings where the number of health care providers to draw on may be limited. While fully supporting the need for these safeguards, here the CNA suggests revising these clauses so that they can be more clearly understood, demonstrated in practice and practical to implement in the best interests of the patient.
I will close with brief remarks about nurse practitioners, as Bill C-14 grants a key role in MAID within the multidisciplinary care team.
Nurses in Canada have practised with an expanded scope for over 100 years, particularly in outpost settings. Legal recognition and legislated authority for NP scope of practice has now been in place for over 20 years.
Nursing regulatory bodies set standards, licensure and educational requirements. A minimum of two years of specialized clinical experience and a graduate degree in nursing are essential to qualify to train as a nurse practitioner.
Today, nurse practitioners provide comprehensive care to all ages in many settings and are licensed to assess, admit, prescribe medication, order and interpret tests, make referrals and discharge patients.
There are over 4,500 nurse practitioners in Canada, and the numbers are increasing annually. They are the primary care providers to over 3 million Canadians. Notably, the First Nations and Inuit Health Branch of Health Canada provides health services to on-reserve, Inuit and isolated communities across Canada through employing over 800 nurse practitioners and registered nurses as primary care providers and fewer than 30 physicians. That's a ratio of greater than 25 to 1.
This brief overview illustrates why the federal government chose to include nurse practitioners as providers who could enable access to MAID. During our question period, my colleague can expand on any of these points.
Thank you for the opportunity to deliver these prepared remarks and to contribute to this important process.
The Chair: Thank you.
Dr. Cindy Forbes, President, Canadian Medical Association: Thank you. I'm Dr. Cindy Forbes, President of the Canadian Medical Association, and I'm also a family physician from Nova Scotia. I'm joined today by Dr. Jeff Blackmer, Vice-President of Medical Professionalism. Dr. Blackmer has led CMA's work on medical assistance in dying.
As the national organization representing over 83,000 Canadian physicians, the CMA has played an instrumental role in the public dialogue on what should be the framework to govern assisted dying. Let me recap our role.
It was the CMA's position that making medical assistance in dying legal was for society to decide. We did not take a position on this question. Following the Supreme Court's landmark decision last year, the CMA has focused its considerable efforts consulting with physicians and the public on what that framework should be.
In the course of our work, CMA has consulted directly with tens of thousands of our members. Our positions and remarks today are informed by these extensive consultations.
Today, we are here on behalf of Canada's doctors to convey one overarching message: The CMA recommends that parliamentarians support the enactment of Bill C-14 as proposed and without amendment.
As the national professional association representing Canada's physicians, the CMA has played an important role in leading the public dialogue on end-of-life care. This in-depth consultation was instrumental to the development of the CMA's Principles-based Recommendations for a Canadian Approach to Assisted Dying.
The core recommendations address four areas: patient eligibility, procedural safeguards, the roles and responsibilities of physicians, and ensuring effective patient access.
Our recommendations on these issues form our position on the overall framework to govern medical assistance in dying in Canada. Put simply, the CMA strongly supports the government's overall response to the Carter decision. This includes legislative and non-legislative measures.
Of particular importance are the commitments to develop a pan-Canadian end-of-life care coordinating system and to support the full range of end-of-life care options, including expanding palliative care.
Finally, the CMA recognizes that there has been significant public discussion regarding the approach for the "Carter plus'' issues. These include eligibility for mature minors, advance care directives and mental health as a sole condition.
We support the approach proposed by the federal government not to include these issues in Bill C-14 and to study them in greater detail prior to advancing legislative proposals. This approach aligns with the approach taken by other jurisdictions, for example, in Belgium.
I will now turn the microphone over to my colleague, Dr. Blackmer.
Dr. Jeff Blackmer, Vice-President, Medical Professionalism, Canadian Medical Association: Thank you, Dr. Forbes. Thank you, senators. As mentioned, I will speak to the CMA's response to the core elements of this legislation. We welcome questions from the committee today and at any time over the course of your study.
First, our position is that the safeguards proposed in Bill C-14 are robust and directly aligned with the CMA's recommendations. These include patient eligibility criteria, process requirements to request medical assistance in dying as well as monitoring and reporting requirements.
Second, we support the legislative objective to recognize that a consistent framework for assisted dying in Canada is very desirable.
In addition to robust safeguards, the enactment of definitions for medical assistance in dying and grievous and irremediable condition in federal legislation is essential to the achievement of a consistent, pan-Canadian framework.
Our principles-based recommendations reflect on the subjective nature of what indeed constitutes enduring and intolerable suffering and a grievous and irremediable condition as well as the physician's role in making an eligibility determination.
Third, we support the objective to support the provision of a full range of options for end-of-life care and to always respect the personal convictions of health care providers. To that end, we encourage the federal government to rapidly advance its firm commitment to develop a pan-Canadian end-of-life care coordinating system and to do so in time for June 6.
We are aware that one jurisdiction in Canada has made such a system available to support connecting patients who qualify for assisted dying with willing providers. Until this system is available across Canada, there will be a disparity of support for patients and practitioners across provincial boundaries.
Finally, it is our position that Bill C-14, to the extent constitutionally possible, must respect the personal convictions of health care providers by protecting the rights of those who do not wish to participate in assisted dying or to directly refer a patient to a colleague.
We would be pleased to speak further on this critical issue, one that is also essential for a consistent pan-Canadian framework or any others. Thank you for your attention.
The Chair: Thank you very much. Mr. Emberley.
Phil Emberley, Director, Professional Affairs, Canadian Pharmacists Association: Thank you very much, Mr. Chair, and to the committee for inviting us to speak today. My name is Phil Emberley. I'm Director of Professional Affairs at the Canadian Pharmacists Association and also a practising community pharmacist here in Ottawa. I'm joined by my colleague Joelle Walker, Director of Government Relations and Public and Professional Affairs.
Assisted dying is an issue that has dominated much of the profession's discussions over the last year, and it is clear that there's an important role for pharmacists in assisted dying as the dispensers of the lethal dose of medication. We're already hearing of community pharmacists being asked about assisted dying by their patients.
Over the past year, CPhA has worked with our members to understand the impact of the court's rulings on the profession and their views on the issue. We did this through an extensive survey of pharmacists and through the development of guiding principles which we released in February.
As a profession, we've been very encouraged to see the conversation around assisted dying expand from what was solely seen as physician-assisted dying to what's now called medical assistance in dying. This acknowledges that, like any other health care service or procedure, assisted dying involves a much larger team of health care professionals.
We also want to stress that we see Bill C-14 as only one component of Canada's legislative response to the Supreme Court's decision. Many important practical considerations will be left up to the provinces and territories to address, requiring additional practice guidelines and regulations.
However, we urge that this legislation be passed quickly in order to ensure that there is a framework in place by the June 6 deadline, and to allow the provinces and territories an opportunity to develop appropriate practice guidelines and regulations.
Generally speaking, as it is drafted now, we believe that Bill C-14 appropriately recognizes the role of pharmacists and protects those pharmacists who choose to participate from any criminal liability that could result from dispensing a lethal dose of medication.
Under section 241.1, medical assistance in dying is permitted in two instances. It can be administered directly by a physician or nurse or self-administered. This has significant implications for the role that pharmacists might play in assisted dying. In particular, where it's self-administered, we see a far greater role for pharmacists, who may have to dispense the drugs directly to the patients and where it is conceivable that this could be the last interaction between the patient and a health care professional prior to death.
Therefore, we are pleased to see that subsection 241(4) in Bill C-14 specifically exempts pharmacists from criminal liability if they dispense a substance to a person other than a medical practitioner or a nurse practitioner.
We are also very supportive of subsection 241.2(8), which requires that the medical practitioner or nurse practitioner who prescribes the substance inform the pharmacist that the substance is intended for that purpose. This is something we specifically called for, and we are pleased to see it reflected in the legislation.
In addition to the specific provisions that we've highlighted, we also want to draw your attention to two key elements that are not provided for in legislation but that we feel are equally important. On the issue of conscience we strongly believe that pharmacists and other health care professionals should not be compelled to participate in assisted dying if it's counter to their personal beliefs, nor should they have to directly refer to a participating pharmacist. This legislation does not set out whether or how health care professionals can refuse a request, leaving this up to the provinces and to professional regulators.
To provide equal protection of pharmacists' rights to conscientious objection and patients' right to access, CPhA recommends the creation of an independent information body with the capacity to refer to a participating pharmacist, and we urge the federal government to work with the provinces and territories to create and implement such a system.
The second issue that is particularly relevant to pharmacists in their day-to-day practice is the question of drug access. There is no single medication or drug that exists to end someone's life. Instead, it can be a cocktail of medications that could be administered by someone or self-administered. Depending on how it's administered, different drugs could be used.
Of great concern to pharmacists, who are all too familiar with issues of drug availability and accessibility, is that the drugs in question are in some cases not readily available in Canada. To give you an example, in Oregon, where assisted dying is solely self-administered, one of two barbiturates is used, both of which are not currently available in Canada.
It is critical for Health Canada, as regulators of drugs, to ensure that whatever drugs are recommended are available and accessible to patients and their health teams, and we welcome the opportunity to work with them to address this issue.
Thank you again for the opportunity to appear, and we look forward to answering your questions.
The Chair: Thank you all. We'll begin questions with the deputy chair, Senator Jaffer.
Senator Jaffer: Thank you very much to all of you. Your presentations really bring the bill alive for us with what you've said, so I appreciate that.
First, if I may ask the questions of the pharmacists' association. It's a clarification kind of question.
From the time a prescription is issued, one of the questions with assisted suicide is how long is that prescription valid? Could somebody have it in their cupboard for two or three years and then come to you?
I guess you could phone the doctor to make sure that it's valid, and then you would make sure that the person is still consenting to carry on their wishes. I'm sure you would set up protocols, but how do you think this will work?
I'm very concerned about somebody being able to just walk into their pharmacy, taking the drugs and being on their own through this terrible process. I'd appreciate hearing from the two of you.
Mr. Emberley: I think that's a valid concern and one that we thought of. As you can imagine, a lot of the specifics are yet to be elucidated, but there is a notion that perhaps the prescription that is written has an expiry date attached to it, so it can only be filled at a certain time. Those are the sorts of things that our regulatory bodies will have to sit down and work out the details on to consider some of the consequences.
Senator Jaffer: I have a question with regard to the nurses. I may be wrong on this, but from my province of British Columbia there is a question of whether practising nurses can help somebody with assisted dying. I'd like to hear from you as to what will happen. Will the provincial bodies have to change their protocol or their way of directing? How will that be set up, or has it already been set up?
Josette Roussel, Senior Nurse Advisor, Canadian Nurses Association: I'll take that question. Thank you for your question.
What's currently happening, what we know, is that in each province and territory their nursing regulatory bodies are having discussions with their governments, and, as we speak, they're actually developing standards and ways to implement this change. This, as you know, is a big change for all of us as professionals and will require thoughtful discussions and having standards, policies and guidelines in place.
As a national body, the Canadian Nurses Association is currently engaging with our nursing stakeholders and developing a framework using a similar process to what our physician colleagues and pharmacist colleagues are doing.
Senator Jaffer: For the doctors' association, the big question yesterday was on how to interpret "reasonably foreseeable.'' We asked the minister about this, and she said — I may not be quoting her correctly — we're purposely keeping it flexible. She certainly used the word "flexible.'' I'm uncomfortable with that because it may lead to not having a consistent standard across the country.
Will you be developing a further definition of what is reasonably foreseeable?
Dr. Blackmer: Thank you for that question. That's certainly an issue that's caused a great deal of discussion. I would say a couple of things about that. I think while "reasonably foreseeable'' may not be the most specific wording possible in the circumstances, it is immeasurably better than leaving it at "grievous and irremediable.''
From our perspective, it's inconceivable that health care providers could find "grievous and irremediable'' preferable to the wording that's in Bill C-14. You cannot get any vaguer or any more nondescript than "grievous and irremediable.'' It has no meaning whatsoever to health care providers.
"Reasonably foreseeable'' at least tells us, on that spectrum of grievous, it's on the more severe end, which I think we would all agree is what Canadians are looking for in this type of legislation. I'll give you a quick example.
You could have two patients with multiple sclerosis, which we would all agree is a grievous and irremediable condition. One might walk with a cane and a slight limp. Most of us would not want them to qualify for assisted dying. Another one may be bedridden, being fed on a feeding tube and have pressure sores. Their death would be reasonably foreseeable and they would qualify for assisted dying.
While the wording may not be exactly perfect, it is an exponential improvement over leaving that wording out and leaving us simply with "grievous and irremediable.''
To your point, I suspect there will be further work on clarifying that, but it allows that conversation to take place between doctors and patients, and it allows for that communication, rather than a very open-ended, non-specific definition.
Senator McIntyre: Thank you all for your presentations.
My question has to do with guidelines and the provisions of Bill C-14. As I understand, a number of medical regulatory authorities such as colleges of physicians and surgeons and nursing regulating authorities such as colleges of nurses, as well as pharmacist associations, have developed guidelines for their members with respect to medical aid in dying. Do you know if any of the guidelines conflict with the provisions of Bill C-14?
Dr. Blackmer: Thank you very much. There's not necessarily a direct conflict, but there is certainly cause for concern when it comes to issues like conscientious objection. For example, the medical regulatory authorities have all taken a slightly different approach to this issue, some much more so than others. Some people have called for some additional clarity on that issue, which is reasonable. Depending on how one interprets some of the language in the preamble, it might be considered to be somewhat inconsistent with the regulatory authorities.
Ms. Pullen: From the nursing perspective, at present we do not have any conflicts between what is contained in Bill C-14 and what the regulatory bodies are advising, because the regulatory bodies are generally in a holding pattern waiting for after June 6 to understand what the final legislation will be. That is why the nursing association is convening our group of stakeholders, precisely to try to avoid scenarios where there is inconsistency across jurisdictions, which will force a range of scenarios that might be barriers to access or be problematic around individual practitioner conscience, et cetera. So we are monitoring and trying to be proactive to avoid challenges in that regard.
Mr. Emberley: I would concur with my colleagues. We engage with our professional regulatory bodies. A lot depends on the final look at the land post-June 6, and where in fact assisted dying will take place, the location, whether it's institutionally or at home, but those discussions are ongoing.
Senator McIntyre: Mr. Emberley, in your presentation you raised the issue of conscience. You've made it clear that pharmacists and other health professionals should not be compelled to participate in assisted dying. In addition, they should not be compelled to refer the patient to another pharmacist who will fulfill the patient's requests.
Are you calling for the creation of an independent information body to oversee that situation?
Mr. Emberley: Yes, that is correct. We see that as a remedy to that issue, correct.
Senator McIntyre: What would be the role of that body? For example, is there a problem in remote geographical locations where there is only one pharmacy serving the whole rural community? Is that a situation where the independent information body would come in?
Mr. Emberley: If a pharmacist is not in a position to provide the service, they would instruct the patient that they were not in a position to do that, and they would say this is an information agency that will put you in touch with a participating pharmacist. Infrastructure would have to be put in place to make that readily available to Canadians right across the country.
Joelle Walker, Director, Government Relations, Public & Professional Affairs, Canadian Pharmacists Association: We did a survey of our members a few months ago. By and large the majority of pharmacists said they would feel comfortable referring directly to another pharmacist, but we feel this particular body would be helpful for a small minority of pharmacists who wouldn't want to refer or who wouldn't feel it would be akin to participating in the practice itself.
Senator Cowan: Thank you. Welcome here today. You've all indicated your support for Bill C-14 as it is and talked a bit about the work that your associations are doing at the national level, and the work of the regulatory agencies or regulatory bodies of each of your professions would be doing at the provincial level. We haven't talked about the provincial role in all of this.
Assuming that one or more provinces do nothing from either a legislative or a regulatory point of view; does that create any issues as far as you're concerned with respect to the availability or uniform access for this medical service by Canadians?
Dr. Forbes: From our point of view, we've been in touch with health ministers in most provinces and territories during our discussions as to what role the provinces might play. Many were, like our regulating bodies, in somewhat of a holding position, preparing just in case there wasn't a federal response. However, our understanding is that many were really waiting to see what the federal response is. So if we have the passage of Bill C-14 and our regulatory bodies have their regulations in place, then June 6 should not be a problem.
Senator Cowan: Would there be a gap there, assuming there is no provincial legislative or regulatory intervention in one or more provinces? Does that create a problem, assuming the passage of Bill C-14 and the work that's being done by the regulatory agencies?
Dr. Blackmer: It's a little difficult to predict for certain. If Bill C-14 passes as it is, and with what I've seen from all the provincial regulatory authorities, by and large we would be ready to go on June 6. There may be a few details to be worked out as we get further experience in the months and years ahead, but I think that that would cover the big issues.
Senator Cowan: So no need, in your view, for provincial regulation or legislation?
Dr. Blackmer: It depends very much on the details in Bill C-14.
Senator Cowan: Assuming for purposes of discussion that Bill C-14 passes.
Dr. Blackmer: We already do have provincial regulations, so almost all the bodies have draft —
Senator Cowan: I'm talking about the provincial governments, legislatures.
Dr. Blackmer: Yes. It's difficult for me to say from province to province exactly what that would look like because some regulatory bodies might not be as specific on some details, and those provinces may feel a need to fill some of those gaps. It may very much depend on the circumstances locally.
Senator Plett: My first question deals with beneficiaries possibly benefiting from a loved one's death in the case of pharmacies giving a drug to somebody that they may not use for a couple of years, and then a doctor wouldn't necessarily be present to administer or help with administering the drug.
Section 241(5) says clearly, "No person commits an offence under paragraph (1)(b) if they do anything, at another person's explicit request, for the purposes of aiding that other person to self-administer . . .'' and so on.
Do you see an ethical problem here with people benefiting from aiding somebody at that point? If the person has made a decision and has lost some faculties mentally, and a beneficiary helps in aiding that person?
My second question deals with conscientious objection. I'm particularly interested in Ms. Pullen's comments here. Let's use the case of a rural community, where there aren't other people. There's a nurse there with a specific conscientious objection; should he or she be required to administer, help or refer?
Dr. Forbes: What you're talking about is the voluntariness of the patient to undergo assisted dying. Part of the responsibility of the physician in assessing their capacity and their ability to consent freely is to make some determination of the fact that they are not under any undue influence or being pressured into it, including their own concern about their ability to access other care, like palliative care. They don't feel that somehow they're being pressured into this or by an individual, as the example that you gave where there may be someone with some secondary gain. Part of the responsibility is to interview the patient and to understand where they're coming from and, in their best capacity and ability, make some judgment in determining both that they are able to consent and that it is a voluntary consent.
The safeguard of a time frame, as well, also gives the patient the ability to change their mind — I think that's really important — and to reflect. That's part of the safeguard as well.
You also brought up the issue of the medication sitting around for a while.
The Chair: We have to move on to the nurses now. We have limited time.
Ms. Pullen: I'll address your second question and then Josette will address your first question.
I think in the case of conscientious objection and nurses, a good analogous situation is previously with abortion, which has now been able to be well handled in the health system across Canada.
In the case for nurses, there has always been a provision to conscientiously object in every instance. There are no instances where a nurse is required to participate in an act where they have a personal objection, and it would be no different in MAID.
The way this is structured in the health system — and because nurses are generally employees of organizations — the regulatory bodies and then the employers have very clear regulations, guidelines, policies and processes in place that allow for replacement if the primary provider conscientiously objects and needs to be replaced.
In both the case of abortion and in medical assistance in dying, these are not emergency situations. There is time, even in remote or rural circumstances, where if a provider needs to recuse themselves from the process, there would be policies and practices in place to bring in a substitute provider to provide that care.
We are comfortable, first, that nurses will not be in a position to act against their conscience, and second, that access will not be an issue, because health systems already have experience in that kind of replacement of providers.
It's an excellent question.
Senator Baker: Thank you to the witnesses for their excellent presentations. I just have one question. Perhaps Dr. Blackmer can address the question. The question involves advance directives.
For the first time, I think, in legislative history it's being suggested that the federal government become involved in advance directives as they relate to the subject matter of this bill. As you are aware, this is an area right now of provincial jurisdiction. The provinces, all except two, have legislation firmly in place that governs advance directives.
When the association says "a consistent, pan-Canadian framework,'' are you suggesting that the federal government should become involved legislatively in advance directives, or are you suggesting that the provinces get together and make sure that there's a consistent, pan-Canadian legislative policy on advance directives?
Dr. Blackmer: Thank you, Senator Baker. From our perspective, the more important thing is clarity on this issue, whether that's at the federal level or whether that's across provincial boundaries. Practically speaking, it would be easier to implement at the federal level, because we would not necessarily see consistency across the provinces.
I want to emphasize that we're really talking about advance directives for this particular situation. I know there's been a lot of very open and good discussion about this very complex issue.
It's important to recognize that in other jurisdictions that have assisted dying, these types of considerations were not put in the initial legislation. I was at a meeting just this past week in Argentina. I had lunch with the President of the Royal Dutch Medical Association, and he was asking me about the Canadian legislation. They're watching very carefully. He said they're very glad they didn't include it in their initial legislation, because they're having a lot of challenges implementing it now, and they see this playing out on the ground.
I think it's really important for Canada to learn from their experiences and the challenges that they're having, as well as areas where they feel it's working well, before we try to implement this at the outset of the introduction of this type of a bill.
We need to look at this as a very specific, exceptional circumstance. We're not talking necessarily about legislating federally on advance directives for all types of situations, but when it comes to assisted dying and the complexities inherent in that particular situation, we think it makes a lot of sense.
Senator Batters: Thank you very much to all of you for being here and for everything you do for people who are suffering with so many different things in Canada every single day.
First of all, Dr. Blackmer, thank you very much for your strong advocacy on this issue. Your work on this particular issue helped to ensure that the government did back down on the most controversial elements of this bill.
Your remarks earlier about how you want to see a pan-Canadian approach, I'm wondering if you think it's problematic that the minister and her officials acknowledged yesterday that the ability of nurse practitioners to have the same powers as doctors in assisted suicide could vary between Canadian provinces.
Dr. Blackmer: Thank you. I'd certainly defer on the details to my colleagues in nursing.
I think that's simply a reflection of the reality today of the slight variations across the provinces with respect to the degree of delegation required, the scope of practice of nurse practitioners. Although, as my colleagues have said, this is something that's been happening for a very long time, the actual regulation of this type of practice is relatively new in Canada. But to your point, I think it would be very important, to the extent it is constitutionally, legislatively possible, to have consistency because you certainly don't want confusion from one province to the next as to whether or not nurse practitioners can or cannot, and to what extent they can or cannot, participate in these activities.
Senator Batters: Ms. Pullen, I'm wondering if you could tell our committee about the differences between provincial jurisdictions in Canada in what nurse practitioners are currently allowed to do.
Ms. Pullen: I'll ask my colleague to respond to that comprehensively.
Ms. Roussel: Thank you for your question. The nurse practitioner competency is fairly comprehensive and consistent across most Canadian provinces. There is some variation in some activities, but there are some commonalities more than variation right now.
Senator Batters: Could you tell us about some of the differences, please?
Ms. Roussel: One difference is around the prescribing authority for controlled drugs and substances. There are two jurisdictions that are not authorizing the nurse practitioners right now. One is completing that process as we speak.
Senator Batters: Who is that?
Ms. Roussel: B.C. I know there's a process in place right now. In Ontario, the authority is not in place at the moment.
Senator Batters: Two of the largest provinces don't allow nurse practitioners to prescribe, yet that would be a big feature of this.
Ms. Roussel: But the other provinces and territories are allowing nurse practitioners to prescribe controlled drugs and substances. There's one variation in one jurisdiction.
Senator Batters: I have a quick question to Dr. Forbes. You indicated the waiting period. I was wondering if you happened to know that yesterday when the officials were here, they confirmed that a waiting period in this particular bill could actually be collapsed to zero as determined by a doctor or nurse practitioner. Does that concern you?
Dr. Forbes: My interpretation is that the intention is to allow some flexibility for extreme circumstances, where 15 days would not be in the best interest of the patient, would not be a compassionate time for them to wait. I interpret it as leaving some flexibility in situations where 15 days would be too long.
I think that's a good thing. We actually asked for that in our document, recognizing that 15 days is an arbitrary amount of time. It certainly could be longer than that, but that there is that flexibility for judgment and a case-by-case decision.
Senator Batters: Does it concern you that a doctor or a nurse practitioner can have that same ability to judge that, whether that waiting period is sufficient?
Dr. Forbes: Again, given the fact that both practitioners are mentioned in the legislation and, we would assume, have the competency to provide that judgment and that decision, then I think that's reasonable.
Senator Joyal: Welcome. I would like to address my first question to Ms. Pullen.
In your presentation, you recommended amendments to the bill, especially proposed section 241.2(2) and specifically the issue of "reasonably foreseeable,'' which Dr. Blackmer seems to favour and which was not included in Carter. Could you explain why you come to the conclusion that the bill should be amended specifically to make sure that physician-assisted death remains in Canada?
Ms. Pullen: I'd like to preface by saying that naturally the medical and nursing associations have had some discussions around this and our points of disagreement. This question doesn't come as a surprise.
From the nursing standpoint, we feel the greatest service will be done in this process if there is as much clarity as possible in all the language in the bill. As we can see in all the consultations occurring now, this is one excellent example where the waters have become muddy, and there is new and significant debate. We feel that we might be able to contribute to the conversation around simplifying things by referring back to previously suggested wording, which we have included in detail in our brief. It does not additionally qualify the term "reasonably foreseeable'' but does add some of the qualifications that are included in subsection (2). We feel that if that language is removed, it will remove some of the ambiguity from the bill as it stands.
So, our position is around maximum clarity. On that principle, our opinion isn't significantly different from the physicians because they're striving for the same thing but just through different means.
Senator Joyal: My question is to Dr. Blackmer. I would like to come back to an example that you gave of a patient suffering with multiple sclerosis, which is a grievous and irremediable condition. The court added that the suffering has to be intolerable to the person. You qualify your example with somebody who could still be able to walk and somebody in a bed suffering from the same disease. In the case of the person who is still able to walk, then the only option open, as we have seen in Quebec — I don't know if you're aware of the two cases reported in the media in Quebec — is for the person to starve themselves before the doctor could say that of course the death was imminent so physician-assisted death was prescribed.
Do you not think it a cruel and unacceptable condition to push a person who is suffering intolerably from multiple sclerosis to kill themselves before a doctor would pronounce "now I will prescribe a drug?'' Don't you think the bill would allow that? There was a report in Quebec two weeks ago that could give you the name of the people. That's why I have difficulty reconciling the example you are giving us today with the text of this bill.
Dr. Blackmer: I am aware of those unfortunate cases. I'm not a lawyer, but I'm often told by my lawyer colleagues that bad cases make bad law. Those are exceptional and unfortunate circumstances.
We feel strongly that there has to be some degree of understanding about how severe a condition has to be before physicians are asked to put a patient to death. This is the most serious condition that a physician has to face. We would all agree that it should not be available for conditions that the majority of Canadians and the majority of health care providers feel should not qualify. There has to be some sort of line where we can say what is reasonable and what is not. Leaving it at "grievous and irremediable'' provides us with no line whatsoever. Any patient with any medical condition who says "I am suffering,'' and suffering is entirely subjective as it's in the eyes of the beholder, could conceivably qualify for assisted dying if they can find a practitioner.
We need some degree of understanding about the severity of the illness. It will not be perfect. There is no perfect solution that can be found in a piece of federal legislation to say "this person qualifies, this one doesn't.'' We all agree, every Canadian agrees, that there will be levels of disagreement; but we have to come up with a system where we have an understanding of the severity of the condition we're talking about.
There has to be an opportunity for discussion between health care providers and the patient. Simply leaving it at a completely subjective standard of grievous and subjective suffering leaves no room for that conversation. It only allows a patient to say, "I have a condition. I have a right to assisted dying.'' Someone's right leads to someone else's obligation, in this case the obligation of health care providers.
We're looking for guidance and clarity. As my colleague says, clarity is very important. However, "grievous and irremediable'' is the least clear language one could imagine in this situation.
Senator Eaton: Nurses, would it protect you more if a Superior Court judge, as proposed by Ms. Somerville this morning, were to be the last word on whether someone could go ahead with assisted dying if they were to judge the case?
Ms. Pullen: As the bill is written currently, we are satisfied that we are protected under the Criminal Code. We've also had discussions amongst our membership to survey and understand to what extent nurses agree with being directly involved in the practice of medical assistance in dying. Those who are willing are comfortable with the bill as drafted.
Senator Eaton: We heard yesterday from the Minister of Justice that, yes, there's language that protects health care workers in her bill but that provinces, through regulation, can take away that protection.
Ms. Pullen: In the instances where we do not have the results of harmonized regulations across the provinces, which is a situation that we're trying hard to avoid, nurse practitioners would be involved only if they were licensed and regulated to participate in assisted dying at the provincial level.
Senator Eaton: Taking your thought further, would it be practicable to have something like the way we have abortion clinics in this country, where people who obviously work in abortion clinics believe in and support abortion? Would it be practical to do that with doctors, nurses and nurse practitioners, license them in particular, so that others are protected who do not believe in assisted dying?
Dr. Forbes: Are you talking about stand-alone clinics that would be there just for that purpose?
Senator Eaton: Yes, but it wouldn't be practical if somebody was in bed or unable to move or in such pain, so you might have people who would have to go out to either their hospital room or their house.
Dr. Forbes: Certainly. We will find in the end that there will be many different models of delivery of care for patients around end of life and assisted dying. It may be appropriate in a remote area for a visiting physician or someone to go out to the community or within a community for a physician to go to the home, as many of us do even now. I think you will see that evolve.
Physicians want to give patients the best care they can. Physicians would get involved in this service out of compassion. The delivery of that care will evolve with that in mind.
Senator White: Thank you to all of you for being here. A lot of questions have been raise around the nurse practitioner piece. There's a lot of ambiguity because every province seems to handle nurse practitioners differently. Would the legislation be helpful if it obligated that one of the two be a medical practitioner? It takes away the concerns of being able to prescribe but also protects nurses more?
Ms. Roussel: We know that the nurse practitioners' scope of practice is expanding. You're raising an issue that can be solved by the current way that we, as provinces and territories, are exploring respective jurisdictional regulations to address the bill as it will stand on June 6. As nurses, we are getting ready, and certainly nurse practitioners are competent and ready to be involved.
Senator White: I'm not questioning competence. I worked 19 years in the Arctic, and every health centre was run only by nurse practitioners. I'm worried about the fact that every province doesn't have the same guidelines, and some provinces don't allow nurse practitioners to prescribe the drugs that will be required to take away someone's life. That would protect nurse practitioners, giving them that layer.
Even in those Arctic communities, every single time difficult decisions were being made, those nurse practitioners were on the phone with the medical practitioners in Iqaluit, Rankin Inlet, Yellowknife, Inuvik, and I could go on. I'm looking at it from a protection perspective for nurse practitioners, not a competence perspective.
Ms. Roussel: I see what you mean. Currently the nurse practitioner can refer to anyone, if they feel they are not competent to do any activities they are asked to do. In this case, if it is not in their power or competency, they will refer back to their physicians.
Senator White: Dr. Forbes, do you have a comment?
Dr. Forbes: We're talking about competency or specifically the issue of the nurse practitioner?
Senator White: For the protection and even the legality of them doing this.
Dr. Forbes: In reality, as was alluded to by my colleagues, nurse practitioners often work in teams with physicians, and that model is probably more prevalent, as part of the team. As a physician, I wouldn't hesitate for an instant if I thought I needed to refer the patient for an assessment. I'm sure my nurse practitioner colleagues would have that same sense of understanding, not just what is the scope of your profession but what is your own personal competency when it comes to any particular procedure.
Ms. Pullen: If I could add one final comment, policy drives regulation, not the reverse. Health care is not static, like any profession. Nurses in Ontario will soon have the ability to prescribe, so that will remove that obstacle that exists today but that won't exist forever. Approaching this legislation at this stage from a more restrictive point of view might lead to access challenges in the future. Our position would be to keep the legislation more open.
Senator Unger: Thank you for your presentations. Dr. Forbes and Dr. Blackmer, will you speak about any conscience protection concerns of your members? You said you consulted widely. Were there concerns about that?
Dr. Blackmer: Yes, there are very significant concerns. I would say there are two important pieces. We've touched on them a little, but in the context of medical professionals in particular, there are some slightly different nuances.
We've all reached an agreement that no one is going to force practitioners to participate in this against their will. The question is what comes after. We've clearly elaborated on the positive obligations that providers have. You can't turn your back on a patient simply because you decide not to participate. You still need to provide them with information and support. You need to transfer their care, when appropriate.
There's a very complex question around the referral issue, though. For physicians, that has special importance because it's a legislated act. A referral from one physician to another means that I'm sending you a patient because I think you can provide a specialized service that I cannot, and I'm endorsing that service to the patient. You can see how in the context of assisted dying that would be extremely morally problematic, because essentially if I'm forced to refer a patient to you for assisted dying, for a lot of our members that would be morally equivalent.
We're looking for clarity not just on the issue of non-participation but also of not having to refer. There is currently only one province in Canada that has that requirement at the regulatory level, and that is Ontario. Ontario is the only jurisdiction in the entire world.
Senator Joyal: And Quebec?
Dr. Blackmer: Not directly to a provider in Quebec. It's a different model.
Senator Joyal: To the director of the hospital?
Dr. Blackmer: To the director of the hospital, that's correct. It is an issue of concern to our members.
Senator Unger: Can you tell me how you and your members who are supportive of Bill C-14 reconcile your views with your Hippocratic oath, "First, do no harm''?
Dr. Blackmer: It has kept a lot of us up at nights over the last few years trying to reconcile our traditional role as healer with these new demands being placed on us as a profession.
As Dr. Forbes alluded to, our colleagues who have said they will provide the service are doing so out of compassion in caring for their patients. This is not something we asked or volunteered for, but we're being asked to take it on, and we will. Society has asked us to fill that role.
"Do no harm'' can mean a lot of things. For some of my colleagues the greater harm would be allowing patients to suffer if another alternative was available. For other colleagues in the medical profession, they would see assisted dying as being a much greater harm. As an organization, we are trying to support our members on all sides of the issue and provide support for those who elect to participate as well as protect the rights of those who elect not to participate. It is a very complex and emotional issue for Canadian physicians.
The Chair: Thank you all for being here and for very helpful testimony. I is very much appreciated.
For our last panel, we have panel members from the External Panel on Options for a Legislative Response to Carter v. Canada. Joining us in the room is Benoît Pelletier. Via video conference, we have Catherine Frazee, from Denver, Colorado, and Dr. Harvey Chochinov, who is joining us from Vancouver. Thank you all.
Mr. Pelletier, since you're here, we'll let you lead off with your opening statement.
Benoît Pelletier, Panel Member, External Panel on Options for a Legislative Response to Carter v. Canada: I say hello to Catherine and Harvey who participated in the external panel, as I did, as you know, for a couple of months.
When I look at Bill C-14 and all of the statements that were made by the federal government — here I'm talking about statements from the Prime Minister himself, from the ministers, statements coming from the Department of Justice, different documents, including Justice Canada's legal opinion that was made public a couple of days ago — I see a huge amount of information that could be divided into four categories.
The first one is that, in some aspects, the federal bill, this one here, goes beyond the Carter decision. That's the first category. The second category is that, in other aspects, the bill proposes a strict interpretation of the Carter decision. The third one is that there are different subjects that the bill does not address, and a fourth one is that there are different issues about which the federal government would like the reflection to continue or that it would like to discuss with the provinces.
I will emphasize the two first points because of the short time that is allowed for my presentation.
Now, I will talk about the aspects of the bill that go beyond the Carter decision. The first aspect is the nurse practitioners. The Carter decision does not talk about nurse practitioners. It talks about physicians repeatedly.
In the current bill, nurse practitioners are treated the same way as medical practitioners. It means that they could make sure that the patient is meeting all the criteria that are set out in the bill in the first place, and they could also provide the medical assistance in dying to the patients, so it would be possible that medical assistance in dying could be provided to a patient without any physician being involved. The criteria would be evaluated by nurse practitioners, and they would also be the ones who would provide medical assistance themselves.
This being said, it's clear that the new concept that will impose itself on this issue is the one that is the title of the bill: medical assistance in dying. Before that, it was "physician-assisted death'' or "physician-assisted dying.'' Now, because of that nurse practitioner aspect, it's going to change in the future.
The second aspect — which tells me that the bill goes beyond the Carter decision — is a very subtle one. It concerns enduring suffering. When we look at the bill, it says that enduring and intolerable suffering must be caused by the illness, the disease or the disability, and in this regard it is in accordance with the Carter decision. But the bill also says that the enduring and intolerable suffering "could be caused'' by the state of decline of the person instead of the illness, disease or disability themselves.
This means there must be intolerable suffering — enduring suffering — but that suffering does not have to come from the illness, the disease or the disability; it could come from the state of decline and capability of the patient. In this regard, it goes beyond the Carter decision, because Carter asked for a link between the suffering and the medical condition. In the case of Bill C-14, there is such a link, but it goes further. There's also a link between the suffering that, I repeat, must be intolerable and enduring, and there be the decline in capability of a patient.
On what aspects does the bill impose a strict interpretation of the Carter decision? The first one is concerning natural death that should be reasonably foreseeable and the advanced state of irreversible decline of capability. I treat these two concepts as being one, indicating that the bill applies to end-of-life situations.
To be frank, I did not see that criterion explicitly in the Carter roman; decision. The Carter decision talked about a grievous and irremediable medical condition. It did not talk about end-of-life situations. Here, I think that Bill C-14 offers a relatively strict interpretation of the Carter decision.
It should be recalled that the Carter decision is based on different values: individual autonomy, individual quality of life, human dignity, and personal well-being or personal integrity. These concepts do apply to patients who are not necessarily at the end of their life. They could apply to patients who have irremediable and grievous medical conditions, intolerable and permanent suffering but who are not at the end of their lives.
The second aspect about which Bill C-14, in my view, proposes a narrow interpretation of the Carter decision is mental illness. I'd say that it's not perfectly clear that the Carter decision does apply to mental illnesses as being the sole underlying condition. But in my view, the most reasonable interpretation of the Carter decision is that it does apply to such situations.
I will soon conclude. Why is it the case that it does apply to mental illnesses as medical conditions? First, it is because of the values that I referred to a couple of minutes ago. These values of human dignity and personal autonomy would also apply to people who have mental illness as much as they do apply to people having physical illness, disease or disability.
Second, and finally, the second part of Carter gives a large interpretation of "medical condition.'' The Supreme Court itself says "medical condition (including an illness, disease or disability).'' This is an indication, in my view, that the Supreme Court wanted us to interpret "medical condition'' largely instead of interpreting it narrowly.
Dr. Harvey Max Chochinov, Panel Member, External Panel on Options for a Legislative Response to Carter v. Canada: Thank you, honourable senators. I hold the academic rank of Distinguished Professor of Psychiatry at the University of Manitoba. I direct the Manitoba Palliative Care Research Unit and hold the only Canada Research Chair in palliative care. I'm also the former chair of the External Panel on Options for a Legislative Response to Carter v. Canada, and it's my privilege to share thoughts on Bill C-14.
You have before you the details of my submission, including my rationale as to why I feel that the current limitations described in the bill, including limiting this to patients with "reasonably foreseeable'' death and not including provisions for mental illness, advanced directives and minors, are imminently justifiable and prudent.
I'd like to suggest for your consideration three amendments to the bill.
First, the government should consider an amendment stipulating that medically hastened death will take the form of assisted suicide so long as patients are able to take lethal medication on their own. Euthanasia would be reserved for instances when patients are no longer able to ingest lethal medication independently. International experience reveals that euthanasia and assisted suicide are vastly different in terms of their uptake and lethality. In jurisdictions that offer only physician-assisted suicide, the latter account for only 0.3 per cent of all deaths. In jurisdictions that offer euthanasia, euthanasia accounts for about 3 per cent to 4 per cent of all deaths.
If we extrapolate these figures to Canada and anticipate about 260,000 deaths per year, a regime offering physician- assisted suicide exclusively could expect about 800 to 1,000 of these deaths annually. On the other hand, a regime dominated by euthanasia could expect about 8,000 to 10,000 of these deaths annually.
According to experts that the external panel met, this vast difference is largely accounted for by ambivalence. Ambivalence is an important dynamic in considering a hastened death, and while assisted suicide offers the possibility of changing one's mind — 30 to 40 per cent of patients in Oregon who receive a prescription never in fact use it — euthanasia dramatically reduces the possibility that once it has been scheduled and expectations are set for a specific time and place. The data is clear that this will ensure that thousands of people each year who are ambivalent about assisted death will not feel pressured by circumstances to proceed before they're ready to die.
The second amendment: The government should consider an amendment requiring that all patients obtaining medically hastened death should first be provided with palliative care consultation. This would be over and above the duties of the two physicians described in the current bill and is critical so long as the bill limits access to patients whose natural death is reasonably foreseeable and who are in an advanced stage of irreversible decline in capacities.
The palliative care consultation would not be in a decision-making role but, rather would be for the following: a) To identify all physical, psychosocial, existential and spiritual sources of distress underlying a request to die; b) to ensure patients are fully informed of all options that would be initiated on their behalf; and c) to document their findings so that this prospectively collected, anonymized information can be entered into a national database providing a detailed and objective basis for Parliament's five-year review of Bill C-14.
The third and final amendment that the government should consider is requiring judicial oversight and approval for all medically hastened deaths. Judicial oversight will ensure a precedent-based, consistent and clearly articulated set of benchmarks regarding when eligibility criteria have been met. Judicial oversight would insulate health care institutions and professionals from perceived or real hazards associated with medically hastened death and would likely increase access given the increase in the number of health care providers who would be prepared to engage with patients requesting medically hastened death. Oversight would demonstrate profound leadership indicating that while Canada has made medically hastened death legal, our government does not yet know how this fits into our current system of health care. Finally, in the most profound way possible, judicial oversight would ensure a commitment to transparency and objective evaluation of all factors, be they medical, emotional, psychosocial, financial or environmental, which may underpin a request for hastened death.
In conclusion, I believe that the limitations and safeguards currently included in Bill C-14, together with the suggested amendments, would see Canada's approach to medically hastened death marked by integrity, transparency and wisdom. Thank you.
The Chair: Thank you, doctor.
Ms. Frazee, the floor is yours.
Catherine Frazee, Panel Member, External Panel on Options for a Legislative Response to Carter v. Canada: Thank you for this opportunity to be heard. My name is Catherine Frazee. I was honoured to serve with these two gentlemen on the external panel, and I speak today in my capacity as Professor of Distinction and Professor Emerita in the School of Disability Studies at Ryerson University.
I have three points I would like to bring to this committee's attention. First, I urge you to work toward strengthening the protections of Bill C-14 in four specific areas. These are detailed in my written submission that you will have before you.
One that bears emphasis now is that I recommend we hold in place the current judicial authorization of requests while, at the same time, we give further study to whether some form of prior review is desirable in the long term.
As the Supreme Court itself indicated, requiring judicial authorization provides "an effective safeguard against potential risks to vulnerable people.''
This is no less true today than it was four months ago. Because the written articulation of explicitly reasoned judgment is a required skill set for adjudicators, because consistency, transparency and impartiality are cornerstone principles of judicial decision making, and because there is, at present, no Canadian road map for a safe and equitable regime of hastened death, we must require arm's-length authorization, at least during the critical inaugural years of this practice.
My second point is that I urge you to work for the safe passage of Bill C-14 into law. Bill C-14 is not the answer to all suffering, nor should it be. Interventions to prevent suicide by persons who are not otherwise dying must continue to be a public health imperative for Canada. That's why Bill C-14 draws the line where it must for persons whose natural death is reasonably foreseeable and who are in an advanced state of irreversible decline.
As for minors, advance directives and the suffering of mental illness, these are complex, difficult questions upon which the Supreme Court gives us no guidance. How could we refuse to study these questions further?
Third and finally, I urge you to work toward healing the deep cultural harms that have been the unintended consequence of a horribly divisive debate. Everyone on this committee understands the need for safeguards to protect against the terrible harm of an unwanted death, but there is another harm about which we must be mindful, and that is the terrible harm of lives given over to despair.
As we invite Canadians to write the last chapter of their story, we must remember that there are larger, more powerful scripts at play — scripts that are carried in our culture, in the stories we tell, the heroes we admire and the nightmares we fear. As we debate Bill C-14, let us do so in a way that does not promote despair as our first response to dementia, paralysis, ALS or a host of other conditions about which, today and every day in this country, people are writing their own stories. Let us remember that those acts of story creation are fragile and that their authors' lives are precarious. Let's not stack the deck with fear, shame or stigma.
Honourable senators, through your leadership in this dialogue, I urge you to model respect for life in all of its forms — a respect to which all Canadians are entitled. Thank you.
The Chair: Thank you. We'll move on to questions now. Our committee's deputy chair, Senator Jaffer, will lead off.
Senator Jaffer: Thank you to all three of you for the work you did in the external panel, and also for your presentations today. You have covered this to a certain extent, but I'm going to ask for clarification.
In the Carter decision, it states that the government must determine whether there are less harmful means of achieving the legislative goal. Do you believe that the government has accomplished this, and do you think that the government has sufficiently considered alternative methods?
We'll start with you, Mr. Pelletier.
Mr. Pelletier: I think that the bill overall suggests a reasonable interpretation of the Carter decision, although I said that it is a strict interpretation in some respects. There might be in that bill a good balance between access to medical assistance in dying, on the one hand, and the protection of the vulnerable, on the other hand.
What surprises me, though, is that I'm not sure that Kay Carter, who was, as you know, at the centre of the Carter decision, would be eligible under the current bill.
Senator Jaffer: She wouldn't.
Mr. Pelletier: If she is not eligible, or if she wouldn't be eligible, then I think we have an indication that maybe the bill does not respect entirely the spirit of the Carter decision. But here I'm very careful when I'm using these terms, because at the same time I see some flexibility in the bill. I'll give you two examples.
If I take the criteria of natural death, foreseeable, and a decline in capabilities, there is flexibility. There is flexibility with regard to the fact that no prognostic is required in the bill. So it gives, I would say, more space for a different kind of interpretation of what end of life could mean.
The other point where there is flexibility is that there is no link in the bill between the natural death and the illness or the disease or the disability. That's quite special, I would say, surprising at the same time, because what it means is that the natural death might come from the decline in capabilities but might not be directly linked with the illness, the disease or the disability.
So these two facts — the prognostic on the one hand, and on the other hand what I just said about the absence of a link between the disease, disability or illness and the natural death — all this gives some flexibility to the other criteria that were used in the bill.
Dr. Chochinov: I think that the bill as it's currently written is a reasonable interpretation and certainly reflects some of the information that we, as the external panel, heard when we were doing our various consultations, both across Canada and abroad.
The reasonably foreseeable death provision, as Ms. Frazee was saying, a line had to be drawn somewhere. If we harken back to the testimony we heard from key witnesses when we were in Oregon, we met with a lawyer, Eli Stutsman, who was one of the key drafters of the legislation, both in Oregon and in the state of Washington. He told us that even after 17 years of experience, where they have limited availability for patients with six months' prognosis or less, there is no appetite to increase that prognostic expectation at all. We even said what about 12 months? Aren't there some people who are caught outside the availability of the bill? And he said even the strongest proponents would not support the availability of the Death with Dignity Act beyond a six-month time expectation.
I think the bill has done a good job in at least indicating that that is an appropriate line to be drawn. Has it gone far enough? It's solely reliant on the opinion of two physicians. We know from the various consultations we did that in many instances — in fact, in most instances — the things that drive someone towards a wish to die have very little to do with medical factors. Pain, for example, if we look in some of the Benelux countries, the motivation for a hastened death because of pain is less than 5 per cent. Most often, people seek out a hastened death because of lost dignity, loss of autonomy, feeling like a burden to others, which is why, when we talk about this idea of the need to have judicial oversight, there needs to be some objective mechanism that can bring in not only medical expertise but also expertise from a variety of disciplinary affiliations so that an opinion can be brought to bear.
The other thing that the bill doesn't say enough about is stipulating that objective data need to be gathered, and this is why the recommendation for medically hastened death — and, by the way, I'm using medically hastened death as opposed to medical assistance in dying. It's a particularly unfortunate acronym. Already it's being referred to in various places around the country as MAID service, which is problematic and is easily conflated as well. Medical assistance in dying is what we do in palliative care. We offer assistance to others. So I think maybe with that I will stop and turn it over to Ms. Frazee.
The Chair: I'm afraid Dr. Frazee will have to have another opportunity through one of the other questioners. We have a number of senators who still wish to ask questions, so hopefully Ms. Frazee will have an opportunity.
Senator White: My question is to you, Mr. Pelletier. I look at the Carter decision and then compare it to this piece of legislation. A double requirement around "death is foreseeable'' and "mental capacity'' would suggest that they're met at the same point in time. As we both know, and I think as everyone understands, that's not always true.
Do you think this legislation deals with those cases where somebody with dementia, a long period of time, death is not foreseeable, but the point of time when it is foreseeable may no longer be a point in time when they can actually have the capacity to make that decision, or do you think it gives enough of a berth so persons can ask for it early enough?
I realize people have used the words for years, but in reality I've dealt with family members with dementia and I know how long that can take. It certainly wasn't foreseeable.
Mr. Pelletier: The bill also says that it needs an informed consent from the patient.
Senator White: That's right.
Mr. Pelletier: It requires that the consent be given right before medical assistance in dying is provided. I think that is okay. In fact, it makes sure that the bill does not apply to people who do not consent anymore. They might have consented in the past, but not now. At the same time, with regard to advance directives, I liked what had been proposed by the Senate and House of Commons committee, but I must say that I'm not sure that physicians in Canada — I say that maybe too categorically — but I'm not sure that they are reliable enough to interpret advance directives as they should be. At least there is something that still has to be prevented in this regard.
I think overall this bill is okay for what concerns the consent of the patient.
Senator White: I'll accept that. However, in light of Carter I'm asking the question, not in light of what physicians or lawyers or even what we may think. Do you think it satisfies what Carter was suggesting?
Mr. Pelletier: On the question of consent, I think it does, yes, absolutely.
Senator Baker: Thank you to the witnesses for their very excellent presentations. I'll put my question without a supplementary after, just to keep it short.
First of all, Mr. Pelletier, I wonder if you could give your interpretation of paragraph 66, in view of what you said about grievous and irremediable medical condition. Paragraph 66 of the Supreme Court of Canada decision says,
We agree with the trial judge. An individual's response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation . . . .
The trial judge went into an explanation of what "palliative sedation'' was: Three to four days prior to death, you can receive sedation so that you're unconscious.
Concerning judicial oversight, as you know, the judicial oversight was granted until the safeguards were put in place by the legislature. What you are now suggesting is that there be judicial oversight on the application of all the safeguards as well as the criteria.
When you look at the five cases that have been reported in the meantime by Superior Courts in this country, you find that just on the two restricted questions they had to judge, they took four to five days to make a judgment.
This is going to take much longer to do a total assessment. The cases themselves involve not just this question but also the Coroners Act of each province; it involved privacy so that nobody's name, even the name of the physician, would be disclosed to anybody. It involved other questions as well.
By asking for judicial authorization over and above the safeguards which the Supreme Court of Canada said that you need the safeguards, and we'll put in place the judicial authorization of it until it's done, don't you think that would stretch out — we heard today there have been 50 cases in Quebec since this came in. I presume you're talking about Superior Court judges. You would have them tied up for 10 to 20 days if they consider this thoroughly doing a written decision, which is appealable as well.
Do you think that will complicate matters to the point where it would become timeless as a procedure?
Mr. Pelletier: Yes, absolutely. I'm against the idea of judicial oversight.
Senator Baker: Oh, I'm sorry.
Mr. Pelletier: No, no, my two other colleagues seem to be in favour of it, but we all have our own opinions. No one is speaking on behalf of the whole panel today. That should have been said right at the beginning. What I say does not commit the two other panelists and does not necessarily reflect their opinions.
My view is that when the Supreme Court of Canada expresses itself, as it did in the Carter decision, it's not for this issue to come back every time before the tribunals. It's for the politicians, the Parliament and the government to take their own responsibilities.
No, I don't think that there should be judicial oversight at all.
Ms. Frazee: I would simply say that what goes on behind closed doors is not a transparent or even necessarily safe process to warrant the ending of a life. We know nothing about those 50 cases in Quebec. What we know about the cases, after being documented in the courts, is considerable. We have reason to be confident and to have trust that these decisions were made with appropriate speed to the circumstances of the individuals who were making the request.
Senator McIntyre: Thank you all for your presentations.
[Translation]
My question is for Mr. Pelletier and it relates to the federal bill and the Quebec legislation.
I realize that there are major differences between the federal bill and the Quebec legislation. Notwithstanding that difference, can the federal bill and the Quebec legislation coexist? After all, both laws have the same objectives. In addition, the federal bill does not in any way interfere in achieving the objective of the Quebec legislation. So can these two laws coexist?
Mr. Pelletier: Is it possible? Yes. Is it a certainty? No. I will briefly explain why. You have seen differences between the federal bill and the Quebec legislation. The federal bill deals with nurse practitioners and assisted suicide, and that is not the case for the Quebec legislation. There are two witnesses in the case of the federal bill, and one witness in the case of the Quebec legislation, and so on. In an article published in La Presse+ last Saturday, I explained the differences between the two laws.
It is possible that the two could coexist, because they have the same objectives. As long as doctors apply the more stringent rules, whether those rules are in the federal law or the Quebec law, coexistence will be possible.
In addition, the Supreme Court of Canada has tended, for many years, to support the coexistence of federal and provincial legislation in the same constitutional space. However, where a conflict arises, the Supreme Court relies on two principles. The first is where there is an irreconcilable conflict. Can an irreconcilable conflict lead to compliance with the provincial law resulting in non-compliance with the federal law? I cannot guarantee that 100 per cent. The second principle concerns the objectives. Will the provincial law run counter to the objectives of the federal law? On the second principle, the answer is very clear: the two laws have the same objectives. In terms of the first principle, reconciliation and coexistence are possible, but again, I cannot guarantee it 100 per cent.
[English]
Senator Joyal: Welcome to our witnesses. I would like to come back to one of your statements, Mr. Pelletier, when you said that you're not sure, if I quote your words correctly, that Kay Carter would have been eligible under the current Bill C-14. Since the objective of this bill is essentially to give effect to Carter, I will have to conclude that the bill could be defective in some aspect, and that would mean we would have to reopen the litigation in the context of a case similar to the one of Kay Carter.
Mr. Pelletier: Yes. What was surprising is that the federal government decided to limit the current bill to what it has identified as being the facts that were at issue in the Carter case. That is what brought the federal government to ask for a decline in physical capabilities. It's what the federal government has seen through the facts of the Carter case. At the same time, asking for natural death to be foreseeable is imposing a new criterion that was not in Carter, and that would maybe make Kay Carter not eligible to the federal act.
Is there a link? Yes. I said before that there might be — might be — a contradiction with the spirit of the Carter decision, although there is some flexibility in their interpretation of natural death being foreseeable, and declining capability. It might go against the spirit of Carter.
Might there be litigation? Yes. Will these litigations eventually win before the Supreme Court of Canada? It might be so. On the other hand, it might be said that the current bill is reasonable and justifiable in a free and democratic society because of the balance that it finds among all the elements that are at issue.
So I cannot be extremely categorical, but there is a challenge for sure concerning the respect of the spirit of the Carter decision, and that challenge may eventually bring new litigation.
Senator Joyal: In the Carter case, the court reserved its pronouncement for the very specific facts that it had in front of it. In paragraph 127, as you certainly know, the last line is pretty clear. The court states: "We make no pronouncement on other situations where physician-assisted dying may be sought.'' In other words, they say there could be other situations beyond Carter whereby the court would authorize physician-assisted death. Is that not the way you interpret the last sentence of that paragraph?
Mr. Pelletier: You're right. Maybe it explains why the Supreme Court did not really pronounce itself on advance directives, for example, or mandatory, someone who takes the decision for the patient because he or she cannot take the decision himself or herself. There may be those kinds of situations that the Supreme Court did not want to pronounce itself on. That may explain this paragraph.
But let's say you apply that very strictly. Then you could understand why there is insistence on the gradual decline of capabilities. However, that does not explain the end-of-life limitations of the bill, because that was not the case in the Carter decision.
[Translation]
Senator Dagenais: I have a few questions for Mr. Pelletier. The previous government had created a special committee to examine medical assistance in dying in response to the judgment in Carter. I think you were on that committee, in fact, and you heard the opinions of 15,000 Canadians. However, did the new government consult you, as a member of the committee and an excellent constitutional lawyer, before undertaking the drafting of Bill C-14?
Mr. Pelletier: No.
Senator Dagenais: That is a good answer.
Mr. Pelletier: Allow me to clarify, though. The new government has the report that our committee submitted on December 15, which is many pages long and in which all of the options are analyzed.
I am very proud to have been appointed under the previous government and to have been kept on by this government, that is, I have never felt any lack of confidence in our committee on the part of any government.
Senator Dagenais: Still, you have stated opinions concerning the inclusion of people under 18 in a law about medical assistance in dying. Correct me if I am mistaken. We know that Bill C-14 excludes them. On that subject, do you think there might be a battle in the courts?
Mr. Pelletier: Yes. At the joint committee, I answered the question of whether there might eventually be court challenges relating to the fact that minors are not included, and I said yes, there might.
I did not say that I wanted minors to be included; there is a difference between the two things. I said there might be court challenges relating to them being excluded. Why? First, because, in Carter, the Supreme Court did not rule on the right to non-discrimination or on equality rights.
In my opinion, this issue will clearly be among the next to be litigated by people who want to extend medical assistance in dying. The things their challenges will relate to include the application of medical assistance in dying to people who have a mental illness, and also to minors. I recall that I said I hoped that Parliament would exercise caution, but at the same time, it was already foreseeable that there would eventually be cases relating to the right to non-discrimination.
[English]
Senator Batters: Thank you very much, Mr. Pelletier, for being here. Just to follow up briefly on Senator Dagenais' earlier question: When the new Liberal government came into power, your panel, your federal external panel, had worked on this issue for months. When the new government came to power, they asked you to submit your report as is but to cease your work prior to formulating and submitting your legislative recommendations. Is that correct?
Mr. Pelletier: Could you repeat the last part?
Senator Batters: You had provided your report, but you were going to work further on legislative recommendations, is my understanding; and the new government asked your panel to cease your work prior to formulating and submitting those legislative recommendations and simply to submit your report just with the factual information.
Mr. Pelletier: Please, let me bring nuances here that are extremely important. I was appointed, as were the other panelists, on July 16. We had to do all the consultations, but not consultations of medical authorities and the intervenors in the Carter case, during the federal election, which was one of the longest, if not the longest, in Canada's history.
Senator Batters: I recall.
Mr. Pelletier: We delivered our report on December 15. Would it have been possible for us to propose options to any government, be it Conservative, Liberal or NDP, by December 15? I don't think so.
Senator Batters: If I could ask just briefly, part of the work you did was to provide significant factual information as to polling results and individual submissions from Canadians. Thousands and thousands of Canadians provided these submissions, and then you did a significant polling sample.
If you could just confirm, the biggest support for Canadians on physician-assisted suicide was where it was terminal illness and end of life; and then support for physician-assisted suicide plummeted, when you look at these results, when the illness was not life-threatening or where it involved mental health conditions. Is that a good summation of that?
Mr. Pelletier: That's true.
The Chair: Thank you, all. I hope Ms. Frazee and Dr. Chochinov didn't feel too neglected. It is a challenge sometimes when you can't be in the room with the members of the committee, but we certainly appreciate your willingness to be here and offer your input on this very important piece of legislation.
Members, the meeting is adjourned.
(The committee adjourned.)