THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Monday, November 23, 2020
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:30 a.m. [ET] to examine the subject matter of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
Senator Mobina S. B. Jaffer (Chair) in the chair.
The Chair: Senators, we are now ready to welcome the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada. He is joined by his officials from the Department of Justice Canada: François Daigle, Associate Deputy Minister; and Laurie Wright, Senior Assistant Deputy Minister.
Minister, I would like to take a few moments to introduce the members of the committee who are taking part in today’s meeting: Deputy Chair Senator Campbell, Deputy Chair Senator Batters, Senator Boisvenu, Senator Boniface and Senator Boyer. Senator Carignan is the critic for this bill. Also taking part are Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Keating, Senator Tannas, Senator Gold and Senator Plett.
We also have several non-members participating in this important study: Senator Moodie; Senator Seidman; Senator Petitclerc, who is the sponsor of the bill; Senator Munson; Senator McCallum; Senator Pate; and Senator Woo, who is the facilitator for the ISG.
Minister, we are very happy to have you and your officials with us. We will now give the floor to you, followed by questions.
The Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Madam Chair, for your invitation to appear before the committee to discuss Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
I am joining you from Ottawa, on the unceded lands of the Algonquin peoples. I would also like to thank the officials who are with me this morning, François Daigle and Laurie Wright.
I would briefly like to describe the main aspects of Bill C-7, which would make major changes to the medical assistance in dying, or MAID, regime.
First, in direct response to the Truchon decision, Bill C-7 would repeal the eligibility criterion requiring that a person’s natural death be reasonably foreseeable.
Access to our medical assistance in dying regime would thus no longer be limited to individuals suffering at the end of their lives. This change would allow Canadians who are suffering and who meet eligibility criteria to choose a peaceful death where they feel their situation has become intolerable. This change is consistent with the autonomy of Canadians.
I would like to take a moment to address the strong reaction of disability rights organizations to this change. The House of Commons Justice and Human Rights Committee heard testimony from individuals with disabilities and from national disability organizations, who expressed their concerns with this proposed change in the legislation. We had heard similar concerns during our round tables with stakeholders and experts in January 2020.
Since the first MAID law was enacted in 2016, these groups have viewed the requirement that death be reasonably foreseeable as the most fundamental safeguard. We understand their concerns. However, there are other reasonable perspectives that people with disabilities can have on this question.
Our government has also heard from individuals with disabilities, like the late Mr. Jean Truchon, Ms. Nicole Gladu, and Ms. Julia Lamb in British Columbia, that the current MAID regime fails to respect their autonomy and their right to self‑determination over their bodies and their lives.
Medical assistance in dying has always been a very difficult issue that generates opposing points of view on the same questions. It requires different interests to be considered. I firmly believe that Bill C-7 does so.
The law would continue to require informed consent and a voluntary request made by a person with decision-making capacity. The bill would introduce a more robust set of safeguards, where the person’s death is not reasonably foreseeable, that requires significant attention to be paid to all of the alternatives that might help alleviate suffering on the part of a person whose death is not reasonably foreseeable.
We believe such a regime could work safely by guarding against the overt and subtle pressures to seek MAID that the disability community fears, while providing autonomy to a greater number of Canadians to make this most important choice for themselves.
More generally, greater liberty for some can also entail greater risk for others. Therefore, Bill C-7 balances this greater access to MAID with two other measures to ensure others are not placed at undue risk: an exclusion for those suffering only from mental illness, and a distinct and more robust set of procedural safeguards for those for whom death is not reasonably foreseeable, as I have already alluded to.
The exclusion of persons whose sole medical condition is a mental illness is grounded in concerns from experts who disagree on whether a mental illness can ever be found to be irremediable and, more fundamentally, on whether and how MAID could be safely made available for such individuals.
I know these issues are of great concern to some senators. We know that those with mental illness can suffer unbearably, that mental illness can be debilitating and that it can profoundly impact quality of life. But many mental health experts who care greatly for the well-being of their patients insist that some mental illnesses have characteristics that present unique practical and ethical challenges. Unlike most physical illnesses, many mental illnesses follow unpredictable illness trajectories, for which there is always the possibility of a sudden improvement or recovery. This means that, in some experts’ views, it is impossible to predict for any given individual whether their symptoms will one day show improvement or endure for the rest of their lives.
The fact that there would be risk of ending the life of a person whose symptoms would have improved is a very important aspect of this eligibility question and is, in part, why we are of the view that it is safest not to permit MAID on the sole basis of mental illness under the time pressures we currently face on Bill C-7. This will be studied as it should be — in a larger, more in-depth parliamentary study, which is part of the original legislation, Bill C-14.
Another relevant consideration motivating the exclusion is the fact that it can be especially difficult to distinguish between those whose desire to die is a symptom of their illness and those for whom it is a rational response to it. There is also ongoing uncertainty and disagreement as to the potential impact on suicide prevention if MAID were made available to this group.
The House of Commons Standing Committee on Justice and Human Rights heard from different witnesses on the mental illness exclusion. We saw there, as we had seen among the Expert Panel Working Group on Advance Requests for MAID put together by the Council of Canadian Academies to study this question, that there is no consensus among experts on whether and how to proceed with MAID on the basis of mental illness alone. On a question of such importance and with so much uncertainty and expert disagreement, it is incumbent upon us to proceed with caution and prudence. I have also been very clear that this issue should be studied more comprehensively, as I’ve just said, as quickly as possible after the enactment of Bill C-7, during the parliamentary review of the MAID regime that is still to follow.
In addition to the question of the exclusion itself, some have asked what kinds of concerns are meant to be excluded by the term “mental illness” and whether practitioners will take a consistent approach in their interpretation of the exclusion. Guided by the specific concerns that have been raised by experts in the mental health field in relation to medical assistance in dying in particular, the exclusion is intended to capture conditions that are primarily treated by a psychiatrist that present this unpredictable disease trajectory or that have a desire to die as a possible symptom.
Let me be clear: The exclusion is not intended to capture neurocognitive disorders that are due to Alzheimer’s or Parkinson’s disease or neurodevelopmental disorders like speech or motor disorders, which also happen to affect how the brain works but don’t present the same type of inherent risks that have been flagged by mental health experts. They might in some cases raise questions about decision-making capacity, but those are of a different order than the inherent risks raised by mental illness.
I have heard concerns that the precise meaning of “mental illness” is unclear. I am sensitive to that concern, particularly when it comes to the criminal law. I would welcome any input this committee, and especially the expert witnesses it will hear from, can provide. We certainly want the measures in Bill C-7 to be implemented in a consistent manner across the country. Our government, which stands always for the equality, autonomy and dignity of persons with mental illnesses, supports a comprehensive exploration of this challenging issue that the parliamentary review will allow.
The bill also proposes a distinct set of procedural safeguards that are tailored to the risks associated with assistance in dying for persons whose death is not reasonably foreseeable. Ending the lives of those whose suffering is based in their experience of their quality of life is different than offering a peaceful death when the dying process would otherwise be painful or prolonged or would erode a person’s sense of their own dignity. Bill C-7 therefore proposes a more robust set of safeguards where a natural death is not reasonably foreseeable.
As is the case under the current regime, RFND is not required by a maximum or minimum prognosis but does require a temporal but flexible connection to the person’s overall medical circumstances and their anticipated death.
Safeguards for those whose death is not reasonably foreseeable are built around the existing safeguards but contain enhancements. Importantly, the medical assessments of a person’s eligibility must span at least 90 days. This is not a requirement that the person wait 90 days after they are approved. Rather, the practitioners must, over at least three months, fully explore the person’s medical condition and the nature and causes of their suffering, and work with them to identify reasonable treatment or other support options, which they must discuss with the person.
The person seeking MAID is not required to undergo any treatments, but as we embark on this new expansion of our MAID regime, we believe that we can collectively move forward safely if we can be satisfied that available options have been brought to the person’s attention and given serious consideration.
The last aspect of Bill C-7 that I would like to discuss is the waiver of final consent in specific circumstances. This is an issue that was frequently raised during our consultations and one that we feel concerns a matter of basic fairness. If persons whose natural death is reasonably foreseeable wish to obtain medical assistance in dying and are deemed eligible to receive such assistance, they would no longer have to choose to die earlier than they would wish or to refuse to take pain medication for fear they might lose the capacity to consent to the procedure.
This targeted and prudent change would prevent any injustice in such situations. Bill C-7 provides that such persons may give advance consent by means of a prior agreement with their medical practitioner to obtain medical assistance in dying on a predetermined date, even if they lose their capacity to consent in the meantime.
We are aware that this measure does not go as far as some would like. The issue of advance requests is clearly more ethically and practically complex. As in the case of individuals whose mental illness is the only medical condition concerned, advance requests for medical assistance in dying are one aspect that calls for further study and debate, and we are of the view that it should constitute a significant portion of the parliamentary review.
Thank you, Madam Chair. I am now prepared to answer your questions.
The Chair: Minister, thank you very much for your comprehensive presentation. Before we go to questions, I’m sure this had happened, but may I just have a clarification? Was gender analysis carried out on this bill, and can you share the highlights of the gender analysis with us, as you have done in the past?
Mr. Lametti: Yes, Madam Chair. A gender analysis was done, and I can share a summary of it with the committee.
The Chair: May I also ask if a race-based analysis was carried out?
Mr. Lametti: My understanding, Madam Chair, is that it was part of the gender-based analysis, and we can share that as well.
The Chair: Thank you very much, minister. We will now go on to the sponsor of this bill, Senator Chantal Petitclerc.
Senator Petitclerc: Mr. Minister, thank you very much for being with us today and for your very detailed presentation.
I’ll begin with a question concerning the community of persons with disabilities and the safeguards provided for in Bill C-7. As you know, this bill on medical assistance and access to medical assistance in dying is both social and philosophical in scope, but also legal in nature. You have no doubt heard, as I have, that certain groups of individuals who represent or who include persons with disabilities are concerned about this bill and about the vulnerable position in which they might find themselves if this bill were passed.
You’ve previously discussed this, but I’d like to hear what you have to say on the subject because, on the one hand, we’re trying to avoid a certain type of social and medical paternalism, and, on the other hand, we must consider the importance of every person’s right to self-determination.
Can you explain to us how the government developed these safeguards, and what is your view of this kind of balance?
Mr. Lametti: Thank you for your question, senator, and for sponsoring this bill in the Senate.
First of all, I should point out that Minister Qualtrough is part of the team. That fact was included in my letter of mandate and in that of Minister Hajdu. We were to work together. We also determined that we needed Minister Qualtrough to be involved because she is both a spokesperson and a person with disabilities with close ties to that community. We immediately added her to the team. She has participated as a full-fledged member — we were like a troika, if I may use the term — as we developed our response to the Truchon decision.
We have conducted very intensive consultations across Canada and have spoken to community representatives and experts in the matter.
They were involved at virtually all the roundtables we organized across Canada. I also attended another meeting that they had convened to discuss medical assistance in dying. In addition — and you can ask further questions next week — she has been in more or less constant contact with community leaders.
As to the substance of the bill, as I explained, the community viewed the “end-of-life” and “reasonably foreseeable natural death” criteria as safeguards. Many of its members felt that a reaction to the Truchon decision was necessary and even an issue of existential importance.
We therefore changed the role of the reasonably foreseeable natural death requirement. It is now no longer an eligibility criterion but rather a criterion for follow-on care. So there are two paths. As a result of our experience with the previous act, we are comfortable with the terms and conditions that have been defined.
For persons who are not at the end of their lives, we have added safeguards precisely in order to stimulate substantive discussion between patient and physician, as well as other experts, to gain a clearer understanding of available options. Autonomy means that a choice must be made between life with support measures and medical assistance in dying. However, to make a real choice, to protect autonomy, on the one hand, and to allay the fears expressed by the disability rights community, on the other, we have put in place a system in which autonomy is respected and all forms of life valued so that people can make an informed decision.
Senator Carignan: Minister, thank you for being here and for your presentation. My question concerns mental illness. Based on what you’ve explained, persons suffering from a mental illness that renders their lives and suffering intolerable would not have access to medical assistance in dying.
However, it appears from the documentation the government has provided us that, in the context of the federal statute on medical assistance in dying, the term “mental illness” would not include neurocognitive or neurodevelopmental disorders or other conditions likely to affect cognitive abilities, such as dementias, autistic spectrum disorders and intellectual disabilities, which can be treated by specialists. We find it somewhat hard to understand the government. Is mental illness entirely excluded, or is it excluded while a whole range of mental illnesses may nevertheless be eligible for medical assistance in dying? Why are these exemptions from the definition not set forth in the act rather than in the documentation that was sent to us?
Mr. Lametti: Thank you for your question, senator. We clearly want to clarify all that. If your committee has any suggestions to make at the end of our study, we would be prepared to examine them...
Senator Carignan: What do you intend to do?
Mr. Lametti: I’ll answer the question. That was a preliminary comment.
We want to exclude mental illness as a sole criterion. As I just said, we’re referring to diseases that are treated by psychiatrists. Why? Because there is no consensus. The issue really has to be studied. There’s no consensus, as I just said. After conducting consultations across the country, notably in Quebec, I can tell you there is clearly no consensus.
If it’s not the only condition, if mental illness is combined with another condition, it might be eligible. That was already the case under the previous version of the act, and it could be the case here as well.
With regard to diseases such as Alzheimer’s or other diseases — neurocognitive diseases, as you just mentioned — those diseases can affect a person’s ability to make the decision. It’s admissible, but another question is involved. Is that person able to make that kind of decision? It’s a decision that has to be made by a person who’s capable of making it. Consequently, these diseases aren’t classified as mental illnesses, even though they affect the brain or the patient’s capacity, because capacity is an entirely different matter.
Senator Carignan: That’s far from clear. I’ll move on to my next question.
Last Friday, the Supreme Court ruled on discrimination based on mental illness. In a nutshell, the court invalidated provisions of Christopher’s Law of 2000 regarding the Ontario sex offender registry by once again sanctioning discrimination based on mental illness. Given such a vague definition of mental illness, there’s every reason to believe it will all be invalidated once again. Isn’t it a bit much to say there’s no consensus on the idea that this is a ground of discrimination? Isn’t it discrimination?
Mr. Lametti: Thank you for your question. This is obviously a very significant issue, especially for jurists such as you and me and other members here at this meeting. I hope that will be a temporary measure and that the matter will be thoroughly examined by the committee charged with reviewing the legislation in accordance with the act that was in force in 2016. It’s an issue that must be reviewed by taking the necessary time to do it thoroughly. We acknowledge that mental illnesses are very serious illnesses that cause suffering. This isn’t a lack of empathy or compassion here. I acknowledge that the matter must be addressed, but we didn’t have the time at this stage because we had to respond to the Truchon decision. It’s a very modest exemption. We describe it in a limited manner and we believe it is constitutional. Changes are expected to be made after a thorough study is conducted.
Senator Campbell: Chair, I’ll pass on my question right now.
The Chair: Thank you, Senator Campbell. We’ll move on, then.
Senator Batters: Minister Lametti, in your October second‑reading speech, you stated this in providing justification to exclude assisted suicide eligibility where mental illness is the sole underlying condition:
. . . the trajectory of mental illness is more difficult to predict than that of most physical illnesses, that spontaneous improvement is possible, and that a desire to die and an impaired perception of one’s circumstances are symptoms, themselves, of some mental illnesses.
I agree. Over the last decade, I have become a mental health advocate due to my personal circumstance. During the Bill C-14 debate, I said the following, and I will reiterate it now:
We must provide real options for those struggling with mental illness, not arm them with the means to more easily access the devastating final choice of suicide. Those who endure psychological suffering need our support, our resources and our promise that we will never give up on them, even when they can see no other option but to give up on themselves.
Minister Lametti, please take one minute of the time I’m allotted here to defend the constitutionality of the provision to exclude those with mental illness from Bill C-7. I contend that this preserves hope for them.
Mr. Lametti: Thank you very much, senator, for your question. When I was speaking in the House of Commons, as my opening remarks today emphasized, this is the opinion that some medical experts have advanced. It underlines the seriousness of mental illness, that we must try to give hope and we must push the medical profession to provide as many options to people suffering from mental illnesses as we possibly can.
To that extent, I agree with a great deal of what you have said. We think this bill is constitutional because of the very narrow focus, as I just said in my answer to Senator Carignan. There is a very precise focus to this exclusion, and coupled with the uncertainty in the medical profession about “the parameters,” if you will, or how to apply medical assistance in dying to people whose sole condition is a mental illness, we need to be careful.
So this will be studied. You will get a chance to do so, others will get a chance in the parliamentary review to weigh in and experts will get a chance to weigh in. I can’t predict what the outcome of that discussion will be, but for the time being, we feel that this law is constitutional and this exclusion is constitutional.
Senator Batters: Thank you. Minister Lametti, on this one, because I have a further question, I’m just looking for a yes or no confirmation here. Is it correct that you appointed Christine Baudouin, the Quebec Superior Court judge who rendered the Truchon decision, to the Quebec Court of Appeal last week?
Mr. Lametti: Yes, I did elevate her, along with another judge. As with all my elevations and appointments, there was a vast degree of consultation within the court itself, and there was a wide degree of support for that elevation. There are also judges who expressed an interest, so she was among the judges who expressed an interest.
Senator Batters: Thank you.
Minister Lametti, four years ago, we in the Senate were carefully and thoroughly studying your government’s first assisted suicide bill. The studies were thorough, the debate was extensive, many experts were heard and several amendments were proposed. Now, only three years later, Bill C-14 legislation was challenged in front of a lower court, and your government did not make a single attempt to defend your own legislation. Minister, as I’m sure you’d agree, it’s extremely unusual for the Government of Canada not to even try to defend their own substantial law — not of a previous government but your own government — and so soon thereafter. This is unusual especially after the only Bill C-14 constitutionality judgment was from one judge from the lowest level court — not a court of appeal or the Supreme Court of Canada, where many judges ruled.
So before you were appointed to the cabinet, Minister Lametti, you voted against Bill C-14, believing it did not go far enough. Is that why you did not appeal this lower court decision; is it because you got the answer you wanted?
The Chair: Senator Batters, you have run out of time. I’ll put you on the second round.
Senator Dalphond: Thank you for being here this morning, minister. Reviewing eligibility criteria for medical assistance in dying is a very delicate matter. Today you are proposing to expand eligibility by allowing people who are suffering, not from a terminal illness, but, in a way, from intolerably painful lives, to seek an end to their situation.
My question concerns the judgment the Supreme Court of Canada rendered last Friday in Ontario (Attorney General) v. G, to which Senator Carignan referred. In it, the court acknowledged that section 15 of the Charter, which guarantees the right to equality, is violated where persons are denied access to something based on mental illness. The act will therefore deny persons access to medical assistance in dying because they suffer from mental illness, thus violating section 15. In the Supreme Court’s analysis, the government will be required to argue that section 1 of the Canadian Charter of Rights and Freedoms justifies the new enactment as an acceptable deviation.
Could you tell us in greater detail how section 1 would apply and how the government views a justification of denying the equality rights of persons suffering from mental illness, whereas you say there is no consensus on the impact of mental illness on a person’s capacity to consent, and the Supreme Court states in its judgment that these issues should be resolved on a case‑by‑case analysis not one based on stereotypes?
Mr. Lametti: Thank you for your question, Senator Dalphond. It’s a fundamental one, particularly in the wake of the Supreme Court’s decision last Friday. The answer is the same for both sections 15 and 1 of the Canadian Charter of Rights and Freedoms. In fact, we have created a special exemption for even more special reasons because we currently lack the knowledge, in the case of section 15, to assess the situation accurately and to determine whether an exemption is reasonable in a democratic society. So it’s an exemption created out of scientific uncertainty. It’s not an exemption created by a lack of empathy or compassion, or because we acknowledge we have a duty to honour everyone’s rights where we can.
It’s an exemption that’s provided because we don’t understand enough and because we need to take the time to understand. I hope we do that in future stages with the knowledge we can acquire and by taking the necessary time. As I just said, however, even after the Supreme Court’s decision last Friday, we think this should still be deemed constitutional in this particular case. I understand the scope of your question. However, because we have identified particular reasons in this instance and because they are quite specific reasons, we think we can justify this exemption for the moment, until the next phase, and then we’ll see what parliamentarians will do.
Senator Dalphond: Minister, may we ask you to send us a legal opinion on the constitutionality of the revised act, taking Friday’s judgment into account, to explain to us how section 1 is being complied with?
Mr. Lametti: Yes, we can do that. I submitted an opinion on the constitutionality of the act to the House of Commons, as I do for any bill. We will re-examine that opinion in light of Friday’s decision and then communicate our decision to your committee.
Senator Boyer: Thank you, Minister Lametti, for appearing in front of us today. My question is about the Indigenous content. On February 3, 2020, you held a round table discussion with Indigenous practitioners and community leaders. Some of the concerns raised at this round table included discrimination in the health care system, a lack of culturally safe care and the possibility that Indigenous patients may choose MAID because they do not have access to other health care services.
Can you speak to how the concerns raised at the Indigenous round table were considered and incorporated into Bill C-7, please?
Mr. Lametti: Thank you very much, Senator Boyer. Indeed, that round table, as well as other outreach that we did to members of the Indigenous community, including leadership, who did have experience with MAID or were health care providers, was important to us in this process. I will recognize from the outset that there is systemic discrimination in the health care system that we need to fight and correct as a country in collaboration with the provinces because health care is a provincial jurisdiction. There is leadership to be demonstrated on all sides, by all parties.
Some of the questions that were raised during that round table were issues that are primarily addressed through better health care, better investment in housing, and through better investment in a variety of different social determinants in the variety of Indigenous communities that exist, but those investments need to be made in Indigenous communities across Canada.
With respect to those particular comments, we are trying to balance, in particular, in the non-end-of-life-scenario. Again, these help to motivate the safeguards that you see in the non-end-of-life scenario, in which we try very hard to ensure that people have an adequate discussion about what the possibilities for life are as well as the possibilities for MAID. If we as a country can invest, as we ought to invest, in health care and in working on differing — but often wanting — social conditions, with respect to housing, for example, or the ability to get assistance living with a disability in Indigenous communities across Canada, and if we can work on that with our provincial partners, then I think we will be in a position to really fulfil the promise of life and the promise of MAID to the extent that someone chooses that.
Senator Boyer: I have a supplementary question. I asked the office of the Minister of Health to provide to me details regarding the Indigenous round table. I was surprised to hear that although the federal government advocates for a distinctions‑based approach, none of the participants were Métis leaders or focused on Métis health at all.
Are there other ways that your department has reached out to Métis communities or representatives? If not, why not? Can you speak to how those consultations have been undertaken and why there were no Métis at the round table discussion?
Mr. Lametti: We put the round tables together as best we could. I did speak with David Chartrand on this. We have done outreach to Métis leadership and the Métis community. We can go back and check to see what other contacts were made, senator, if you wish.
We have tried to work on a distinctions-based approach. We have tried to reach out, and we did hear from voices who were working in Métis communities. Again, the kinds of considerations, while not identical, were similar. They focused a lot on social determinants and on giving people a real choice, and not choosing MAID because one felt one had to choose MAID and there weren’t any other options.
Senator Boyer: Okay. I’d like to copy of that, please. Thank you very much.
Senator Dupuis: Thank you for being with us today, minister. The preamble to Bill C-7 affirms an apparent contradiction between the English and French versions. The first paragraph of the English version states: “… Canada has committed to responding…” to the Superior Court of Quebec decision, whereas the French version reads: “… le gouvernement du Canada s’est engagé à donner suite à la décision…”
There is a problem of consistency between the two versions here. The English version announces that we will respond as we wish to respond, whereas the French version states that we will respond favourably to the decision, that we will accept the decision. So there’s a contradiction here, and I think it should be corrected.
Here’s my question. The Truchon decision of 2019 is in fact merely a response to the 2015 Carter decision, which held that the criterion was the suffering of individuals and the autonomy they have in the decisions they make regarding their lives and the suffering they endure. Carter is part of a much broader social and legal movement that dates back 32 years to the 1988 Supreme Court decision in R. v. Morgentaler, in which the court acknowledged that decisions concerning a woman’s health should be decided on the basis of her autonomy and that that was the decisive criterion.
Bill C-7 reintroduces the criterion of reasonably foreseeable natural death. It was invalidated, and you didn’t appeal the judgment. That’s a retreat, a step backwards, and I’m trying to understand that choice. Can you explain to us what motivated it?
Mr. Lametti: Thank you for your question, senator. I obviously don’t agree with your interpretation. Reasonably foreseeable natural death is no longer an eligibility criterion. So we accept the Superior Court’s decision in Truchon. It’s now a follow-on care criterion, by which I mean we’ve decided to take the experiences of persons, families and practitioners into consideration.
Practitioners are now quite comfortable with the procedures and have acquired specific experience and knowledge in certain cases.
We have also facilitated some elements on which they’ve made specific suggestions, but I must say we’ve retained the follow-on care criterion for the vast majority of persons reaching the end of their lives who are suffering from cancer or another disease. In the vast majority of cases, these are people approaching the end of their lives, and, as we wanted to protect the experience and knowledge we have acquired since 2016, we therefore added another way to achieve that end; it’s no longer a barrier, but rather a door leading to a choice between one or the other. As a result, we’re complying with the judgments inCarter and Truchon, and I believe this step will be accepted by the vast majority of Canadians and that it will lead to a significant social consensus.
Senator Dupuis: I’d like to ask you a supplementary question.
Mental illness is an illustration of the question I just asked you. We’re discussing a concept on which there is no consensus within the medical community. We’re also talking about mental illnesses as though they were diseases that can be caused by all kinds of phenomena, such as biological factors or health problems. This clearly illustrates how I think Bill C-7 represents a step backwards. The capacity to decide for oneself — a movement introduced and confirmed by the Carter decision — is being reintroduced, but based on a vague medical concept, and in the hands of a medical community that itself has not reached a consensus on what that concept entails.
You call this a path for access to medical assistance in dying, but it in fact represents additional barriers for those individuals rather than measures designed to further what the Supreme Court has identified as the recognition of a social movement clearly in favour of personal autonomy.
How can we apply a criterion for which the medical community has not reached a consensus on a definition and for which there is not yet any legal basis? I’m trying to understand here. If there were a legal basis, perhaps we could consider this, but there isn’t even a consensus in any sector.
Mr. Lametti: Senator, I obviously don’t share your opinion. We’re talking about a quite specific and narrow exemption. It will very possibly be temporary, since the concept may be better defined or clarified by a parliamentary review. We’re really addressing this issue now for lack of time because we have to abide by the timeline associated with the Truchon decision.
As I just said, however, we’re respecting the Carter judgment legally and morally by expanding the right to medical assistance in dying to make it available to many more people. As you just defined it, there is only one exemption, but that exemption will undergo a full review by a parliamentary committee.
The Chair: Thank you, minister.
Senator Plett: Minister, in answer to one of Senator Carignan’s questions, you talked about one of the reasons you had not done what he asked was because there was no consensus among the professionals. I’m not sure that’s the correct terminology or the terminology you used, but, in essence, there was not a consensus.
With all respect, minister, if ever there is legislation that there hasn’t been a consensus on, I would suggest this is it, in probably every aspect of this legislation. So clearly you are doing things here without consensus on a regular basis.
However, my specific question, minister, is in regard to conscience protections. An issue has been raised in relation to this bill in the absence of any protection against forcing a physician to refer a patient for assisted suicide when it is against their conscience to do so.
Minister, you have argued that the bill enshrines freedom of conscience by ensuring that “No medical practitioner is forced to give the procedure in any way, shape or form . . . .” You have stated that the requirement to give a referral comes from a decision of the Court of Appeal for Ontario. You have said “. . . the courts have told us that.”
However, the assisted suicide regime is still relatively new. Forcing an individual to refer a person for MAID has not been tested in the Supreme Court of Canada. We know that some — I believe many — doctors will leave the profession or certainly leave the country. My mother’s doctor is one of them. My own doctor has suggested that.
I’ll ask all my questions, minister, for the sake of time.
Are you not rather cavalierly dismissing the issue of conscience? How much discussion of this specific issue actually took place among ministers around the cabinet table? Does it concern you that many physicians have expressed their intention to leave the profession if these protections are not explicitly enshrined in this law?
You had suggested to Senator Carignan that you were open to some wording changes and, possibly, amendments. That’s what I read into what you said. Would you agree, minister, to put into the bill for clearer understanding or clearer certainty that for a physician who wants to save a life rather than to end a life, his or her conscience protections are there and that they do not need to take part even in a referral? Would you agree to put that in the bill for greater certainty?
Mr. Lametti: Thank you for your question, senator. I’m generally inclined to say no to that amendment. Let me, first of all, talk about consensus.
We consulted widely in 2016. We also consulted widely after the Truchon decision. We had over 300,000 people respond in an online survey, and we held round tables across Canada intensively in January and February 2020.
The vast majority of Canadians want what is in this bill. I think there’s quite a societal consensus to move forward. Society has changed since 2016, since the first MAID legislation was adopted, and we’re moving forward with it. We’re moving with Canadian society. I would say we are not acting in a cavalier fashion, senator, but rather moving with consensus and moving with the consensus of Canadian society.
On freedom of conscience with respect to doctors and other health practitioners, senator, this was widely debated in 2016. It was in the original legislation. It was amended by Conservative members of Parliament with the agreement of the government and the minister at the time. Those safeguards remain in the bill. Nothing has changed. No doctor or nurse or whomever is forced to participate in the process.
Senator Plett: Minister, let me interject for one second.
Mr. Lametti: Let me answer the question, senator. Thank you.
The decision to which you refer is an Ontario Court of Appeal decision, and the decision about referrals and the obligation to refer is entirely provincial in terms of jurisdiction. Provinces will do what they have to do based on their needs and their ability to provide support and medical services to people.
Provinces have a great deal of experience with this with other controversial issues such as providing abortion services, and that Ontario court decision is reflective of —
Senator Plett: Minister, to have made this a partisan issue is not acceptable. It may be a provincial decision to have done this, but you have the ability to put it into your bill for greater certainty. That is not the federal government’s position; and to make this partisan is unacceptable. We are senators here. We are not here representing the Conservative Party of Canada or the Liberal Party of Canada. We are here representing Canadians. So don’t make this a partisan issue, minister, because we are not.
Senator Cotter: Minister Lametti, thank you for joining us. It is a pleasure to see you again, even if only virtually. It’s also excellent to be able to speak with you first and have this conversation given your responsibilities both as a cabinet minister and also the Attorney General of Canada. My question is not so much directly related to MAID although obviously important to it; it’s with regard to the degree to which you understand your role as Attorney General, as well as Minister of Justice and cabinet minister, as having additional legal and constitutional responsibilities related to law and this legislation in particular.
As you will know, distinguished Attorneys General of the past have understood their role to be somewhat distinct from being merely ministers of the Crown and, indeed, independent of their own political responsibilities as ministers of justice. It’s important I think in the context of this bill. The McClure report on civil liberties described the duty of the Attorney General as to supervise legislation and it imposes upon him or her responsibility that transcends the duties of your colleagues and the cabinet and requires you to exercise constant diligence to sustain and defend the rule of law.
I guess the point I’m angling toward here is a larger question and the approach that has been undertaken in the past by distinguished Attorneys General. I’m thinking of your former colleague Irwin Cotler, Roy McMurtry, Roy Romanow, and Ian Scott who understood this role very well.
My question, then, is in that context: Does this principle of adherence to the rule of law guide your own work as Attorney General and therefore supersede questions of politics or policy here? More specifically, if you come to the view or were persuaded that serious constitutional deficiencies existed in this legislation, are you open to adjusting them? Are you open to actually opposing those portions of the bill yourself?
And here is a supplementary question that relates to us: Is it your sense that the Senate, though we’re not attorneys general, should take the same approach to these rule of law questions if we had serious constitutional concerns? Thanks.
Mr. Lametti: Thank you very much, Senator Cotter. I know this question is based on your profound experience both in government and in the university.
Yes, I do my best to try to understand the different roles of Minister of Justice and Attorney General of Canada. I try to advise my colleagues as a matter of practice which hat I’m wearing. I have always advised my interlocutor particularly when that changes in the course of a conversation.
I’m committed to implementing the recommendations that another former Minister of Justice and Attorney General, Anne McLellan, has made, and I have begun to do that. As you know, I was sworn in with a different oath this time around for the first time in Canadian history, an oath that reflects the fact that there is a different role for the Attorney General as opposed to the Minister of Justice.
I do try my best to evaluate, as a lawyer and as the Attorney General, the constitutionality of every piece of legislation. I did that as a parliamentarian as well in my own capacity, and certainly I’m always open to an additional argument or angle if perhaps I have missed something. That is my duty as Attorney General.
What I would say for the current state of affairs is that I do believe that this current piece of law is constitutional for the reasons I have stated, and there is an opinion which I have tabled in the House of Commons to that effect. But as Attorney General, in a non-partisan fashion and as distinct from my role as Minister of Justice bringing this bill forward, I would at the very least have a duty to respond to your concerns as we move forward.
Senator Cotter: If I have one minute or even just a few seconds to make an observation, I appreciate that and thank you. I think it’s consistent with a long line of distinguished attorneys.
My one concern is that in some of the observations that you’ve made about the need for more time for review and, maybe, a lack of consensus, there is a certain sense that these are thoughtful policy questions but not necessarily constitutional answers to some of the constraints in the bill. I just share that as an observation and an anxiety going forward in the coming weeks. Thank you.
Mr. Lametti: Senator, if I might respond in one sentence, the lack of consensus is based on a profound — I’m not going to say a lack of understanding — shortage of understanding, if you will, of the medical or scientific basis beneath that. So that makes it difficult both in terms of policy and in terms of the law.
Senator Boisvenu: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs, minister.
I would like to say, at the outset, that I’m not at all surprised we’re having to redo our homework as legislators because your government warned us about this in 2016. I remember because I examined Bill C-14, for which the Minister of Justice at the time virtually promised the Senate that the amendments or recommendations we submitted would be taken seriously. The government unfortunately rejected nearly all of them.
I’m convinced we’ll be seeing each other again in two or three years, perhaps under another government, to do our homework over, particularly on the mental health component, which I feel is the most contradictory part of the bill.
You make what I consider a somewhat dubious statement when you say you didn’t push further on mental illness because those diseases follow unpredictable trajectories. The same problem occurs in the physical health field. Scientific changes and changes in medication mean that yesterday’s incurable diseases are curable today. One need only think of multiple sclerosis. Barely a few months ago, people suffering from that disease were doomed to a slow death, whereas the drugs on the market today have a chance of restoring them to good health.
Why didn’t you go further on mental illness? In 2015, in the context of Bill C-14, the Supreme Court held that patients suffering and dying from mental and physical diseases should be treated equally.
Mr. Lametti: Thank you, senator. It’s entirely appropriate that we should be discussing this subject during Victims and Survivors of Crime Week. I applaud your work in this area.
In 2016, mental illnesses and advance requests in the case of minors were identified as issues that should be examined in greater detail. Studies were conducted by experts and academics across Canada as well as the council. We have those three reports. A parliamentary review has always been planned, and still is. We will be studying those three issues in depth.
What I said about mental illnesses was that we don’t have time to study the matter given the timelines we’re facing. That doesn’t mean this isn’t important or that there are no fundamental medical, legal or ethical issues. We must examine them and give them the time and attention we need to reach a proper conclusion and prepare a good bill.
That’s still the case, and we’re going to do it. For the moment, however, we have decided to respond to the Truchon decision and to add two or three other improvements based on the experience of individuals, families and practitioners in the field. Our objectives are relatively limited in this case.
Senator Keating: Minister, thanks to you and your staff for being here. My question deals specifically with access.
The act places the process for obtaining MAID with the medical profession, of course, and it already recognizes the rights of doctors to refuse to provide MAID based on their moral convictions. In my province of New Brunswick, though, there are tens of thousands of people without a family doctor, which means that there is no way that the doctor who signs an agreement with the patient will actually happen to be the one to deliver it.
I also know that in my province there is one doctor providing medical assisted death services to the people of Fredericton, one to Saint John and two to Moncton, which means that there is no one providing that service above the “southern hemisphere,” if I can express myself that way. And it also, of course, affects Indigenous communities.
The act does have a reporting component. We talk a lot about safeguards, but there is absolutely no provision that ensures that the provinces or jurisdictions will provide a system that will ensure access to the people who qualify for MAID.
My question is the following: Have you ever considered a provision that would ensure that provinces are responsible for accounting for the provision of access services to MAID?
Before you answer that question, I had a psychiatrist from my province prepare a quote at 3 a.m., which he provided me with this morning. Although it dealt with the exception of mentally ill patients, I think it speaks highly of the issue I have with respect to access, generally, with the bill. That quote goes like this:
A system that cannot claim to provide equity in life, is a system that cannot presume to guarantee equity in death.
That’s from Dr. Nachiketa Sinha, a consultant psychiatrist in Moncton, New Brunswick
Thank you, minister.
Mr. Lametti: Thank you, senator. That’s a very powerful quote. Obviously, it has had the impact that it ought to have and that you wish it would have.
This is one of the challenges — and you should ask the Minister of Health, also, when she appears before you — of the challenges of Canadian confederation and the way the division of powers has folded out. We’re seeing it during a pandemic as well as in other aspects of life.
We do our best to cooperate with the provinces. My tool in this case is the criminal law and creating the possibility for not laying criminal charges in this kind of situation in accordance with the Supreme Court of Canada decision in Carter and other court decisions. People have a right, and they have a right to press for that right to be vindicated through their provincial health systems.
As a federal government, we have a duty to work with our provincial partners to ensure everything is operationalized. I can assure you we will continue to do that. However, in putting that kind of provision into this legislation, any time you force the provinces to do something in a specific manner and a specific way in the domain of health, we’re probably infringing on provincial powers, so we have to be careful there.
I certainly agree with your sentiment, and I do want people to have access to this service in the way they have access to health care services. I want both to be better, to be perfectly honest with you, in an ideal world, across Canada, as far as possible, in a uniform way. So we’ll do our best to work with provinces as I think we’ve demonstrated during the pandemic and that we’re willing to make resources available. I don’t know if that will be the case here, but we will do our best to work with provinces to find a solution.
Senator Keating: Thank you. I will only say to that reply that this is a federally and constitutionally afforded right, and a right without access is no right at all. So I feel that I’m not as determined as you to talk about the separation of powers, because I have a lot of experience in my own province about difficulty in accessing rights. It’s easy to talk about implementation that stays with the province, but here, we’re talking about defending or having access to a right that is held by people who are either suffering or close to death. In my view, it’s not okay or normal for people in that condition to have to fight for that right all the time.
There must be an expected accountability. There is a provision there that asks the province to provide numbers, so I don’t see why there wouldn’t be one that would ask them to answer to the number of requests received and how they provide for the service. That’s all. Thank you; I appreciate the answer.
Senator Boniface: Thank you very much, minister, for being here. I have two questions.
With the proposed amendments creating safeguards for a death that is not reasonably foreseeable, there is a 90-day waiting period between when the first assessment of eligibility is made and the actual administration of MAID.
What evidence was used to inform your decision that 90 days was an appropriate threshold, and was there any other evidence that indicated that an increased or deceased number of days would be more or less beneficial for those who are suffering?
Mr. Lametti: Thank you, senator, for that question. The 90‑day period ensures an adequate time in which a person and doctor or other health practitioner — other experts or people with experience in the condition — can help assess, evaluate and give a person information to make a proper autonomous decision.
We discussed with experts what an appropriate time frame would be for this evaluation period — I will reiterate that it’s an evaluation period; it’s not a waiting period — for the kinds of tests and discussions that would be necessary. This is a period that we felt was neither too long nor too short but adequate for the purpose.
An example that is often used is in the case of a catastrophic accident where sometimes a person’s first response is, “I’d rather not be alive,” but then with an appreciation and information about what kinds of supports would be available, what kinds of technology might be available and what kinds of social supports might be available, that decision might differ even after a relatively short period of time.
So on the basis of those discussions we picked a period that was felt to be adequate to the purpose without being too long. Again, there is a safety valve in case there is something in the condition that a doctor feels gives the person a right to move more quickly towards seeking medical assistance in dying, but, again, the period is meant to be an adequate period for the purposes of these consultations and evaluations.
Senator Boniface: Thank you, minister. My second question is in reference to the review that’s been referred to on a number of questions. My sense is that there is support in the House for such a review to begin as soon as possible, and I can expect the same sort of interest in the Senate.
Minister, I’m asking whether you or your government can commit to beginning the process of that legislative review of the former bill, Bill C-14, when Parliament returns from the winter break in February 2021. Will the government trigger the process at that time?
Mr. Lametti: Thank you for the question, senator. I’ve obviously committed publicly to doing it as fast as I can. I can’t commit the government at this stage because as a cabinet we haven’t made a final decision, but I give you my personal assurance that I will work as hard as I can to have that study done as quickly as we possibly can. I would like it to be done tomorrow — or to begin tomorrow, but that’s my personal opinion. I have to convince other colleagues around the table.
Senator Campbell: Thank you, minister, for coming today. It is a pleasure to see you here. My question is pretty basic. I’d like to know what the provinces thought about this bill. Obviously you have been in contact with them and have spoken with them. Since they are the ones who are in the position of having to implement it because of it being health, I am wondering what their opinion was on this bill.
Mr. Lametti: Thank you, senator. As you know from your experience, it is impossible to treat all the provinces as one with respect to one answer. I can say that we have been in touch and my colleagues have been in touch with our provincial counterparts.
Obviously, on the legal plan I’ve worked the most closely with Quebec in the sense that Quebec is the only province that has its own provincial regime that works in harmony with the federal criminal law in this particular case, and it’s also where the decision happened. But I think it is fair to say — again, I’m not speaking for all the provinces here — but there is generally a wide degree of consensus.
The experience with the law in 2016 has been relatively positive for the vast majority of cases that fall into the end-of-life scenario. We heard in our consultations that people will relate really moving experiences about very positive experiences with MAID, and that’s both families of the deceased in any given case as well as medical practitioners. And there is a general degree of positivity amongst the Canadian Medical Association and other associations of medical practitioners, and that’s reflected in the general, I think, positive reaction of the provinces.
Senator Campbell: Thank you.
The Chair: Thank you, minister. I will now go on to Senator Batters. I don’t know if you remember Senator Batters’ question. You had so many, but I was not able to let you answer it. Senator Batters, do you want to quickly restate your question so the minister can answer?
Senator Batters: I’ll just state the end of it. Minister, before you were appointed to the cabinet you voted against Bill C-14, believing that it did not go far enough, and I’m wondering if that’s why you did not appeal this lower court decision with Truchon. Is it because you got the answer you wanted?
Mr. Lametti: Definitely not, and I thank you for the question. You are, in fact, right. I did believe that Bill C-14, at the time as a member of Parliament, did not go far enough. But as Minister of Justice, I stated publicly on a number of occasions that the bill had been passed into law and that I respected the parliamentary process and that I would defend that decision.
What happened with Truchon is that there were other cases, senator, in Canada — in particular that of Julia Lamb in British Columbia — which were also proceeding but were put in abeyance after the Truchon decision, as well as information of other cases potentially going to be launched. What that was reflective of and what guided our decision to not seek an appeal of the decision was a real fundamental change in Canadian society since 2016. There was a widespread acceptance of MAID. The Canadian Medical Association has become one of the most positive proactive partners with respect to MAID across Canada. And medical practitioners who are seeing this — some are doing palliative care and MAID, and they are seeing this as a spectrum of services that they can offer to people in a very compassionate and empathetic way.
There is a wide degree of acceptance for MAID. We knew that. We were getting that kind of information, and we based the decision in Truchon not only on constitutional grounds and what we believed was the right decision in that case, but also the fact that Canadian society had changed quite a bit since 2016 with respect to the acceptance of MAID and that it was time to move to next steps.
The Chair: Senator Boisvenu, you have one minute left.
Senator Boisvenu: I had moved onto another subject and was preparing for the next panel of witnesses; so I’ll stop there. What I find unfortunate is that the minister took four minutes to answer a question that should’ve taken up only two. In the circumstances, Madam Chair, we have no chance to exchange with the government. What I would prefer for another occasion is that, if we take one minute to ask a question, the responders should take a minute to answer it. Otherwise we’ll have no chance to discuss or dialogue.
Senator Pate: Thank you, minister, for joining us. Minister, after the Truchon decision was delivered, the UN Special Rapporteur on the rights of persons with disabilities, as well as a number of disability groups, indicated that removing the requirement for “reasonably foreseeable death” in order to obtain MAID could violate Canada’s obligations to uphold the right to life for those with disabilities. In addition, we’ve seen the chasms between what’s available for those who have resources and opportunities for those who don’t during this pandemic.
My question is: What measures will the government be taking to respond to the concerns of Canadians with disabilities regarding the requirements that their Charter rights be protected? And what measures will be taken to ensure that the upholding of their rights does not fall to the individual living with a disability who may be impoverished and struggling to access health, housing, social and economic supports, let alone trying to then bear the significant personal and financial obligation of trying to mount a Charter challenge in order to clarify whether the government, through Bill C-7, has adequately implemented its obligations?
Mr. Lametti: Thank you, Senator Pate. I very much share the basic presumptions of your question. Indeed, the UN report did come out and we were made aware of it by Minister Qualtrough in particular, but also by others. We took care to try to make sure, in the drafting of this legislation, that we responded to those concerns. I think we have with respect to the kinds of safeguards that we have put in, in the non-end-of-life scenario.
With respect to the end-of-life scenario, there was very little in that part that the disability community was overly concerned with. It was mainly the non-end-of-life scenario. We’ve also tried to enshrine the principles in the preamble to the bill, which I would point you to.
Again, we’re very sensitive to that. As a government, we have tried to invest in housing, mental health and supports, and we will continue to work with our provincial partners in a proactive way to try to improve those social determinants and conditions.
You’re absolutely correct to say — and others have said it around this table as well — that choosing MAID has to be an autonomous choice with meaningful options to live. We respect that, and we certainly took great pains to hear the leadership of the disability community, and we’re going to continue as a government to try to listen to those concerns.
Senator Carignan: Minister, you’re justifying discrimination against persons suffering from mental illness on the basis that the issue is complex and we’re short of time. I’d like to remind you that, in 2016, four years ago, the joint committee told the government that medical assistance in dying was a complex issue. The report also stated that the complex nature of the issue should not be an excuse to discriminate against persons suffering from a mental illness. The report recommended, and I quote:
That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.
The report also stated:
The difficulty surrounding these situations is not a justification to discriminate against affected individuals by denying them access to MAID.
That’s from a report by the joint committee dating back four years. Four years later, we find ourselves dealing with the same ground of discrimination. This justification will not stand for long in court. It seems to me we’re once again forcing individuals suffering from mental illness to shoulder the heavy burden of asserting their rights, reappearing in court and seeking to nullify certain provisions, only to find ourselves in the same position we’re in now, moving another amendment to the medical assistance in dying legislation. We have the charters to prevent the majority from abusing minorities. Now you’re saying we’ll stop discriminating against the minority once we have a consensus, in other words, when the majority agrees.
Don’t you think we’re placing a heavy burden on the shoulders of people who are already afflicted and suffering by discriminating against them to this degree? Don’t you think we’re going too far and should act responsibly and pass legislation we know will be constitutional?
Mr. Lametti: I’d like to alleviate people’s suffering; that’s the purpose of the bill, and it’s something that should spur us all on.
What I quite clearly said is that I sincerely believe the act is lawful and constitutional, despite the remarks that you, Senator Dalphond and Senator Cotter have made. That being said, the response to the joint committee in 2016 was to study the matter as part of a parliamentary review. That’s still the objective; nothing has changed. The Truchon decision has given us an actus interveniens, and we’re going to correct matters in one part of the act. However, the objective of treating mental illnesses appropriately remains the same. We’re going to do it, and I hope we do it as soon as possible once Bill C-7 is adopted. I’m going to take this responsibility seriously. I can assure you, and this is very important, that I’m aware this matter must be examined as soon as possible, but properly and with all the attention it deserves. I share your values, your feelings and your profound respect for the Charter, but I believe we must act as Bill C-7 proposes so we can then conduct the necessary review as was planned in 2016.
The Chair: Minister, you have stayed with us longer than you were originally slotted for. I want to thank you for being here today. I know there will be many meetings with you. There will be one very soon when we receive the bill.
To my colleagues, I’m sorry I had to cut you off, but we had limited time.
Thank you very much, senators, for all your patience this morning. We will begin the second panel of the day. Before I begin, I want you to note that we will only have a maximum of four minutes for panels. I’m sorry, but I will have to go to the next senator once a senator’s four minutes are over in order to make sure that every senator on the committee gets an opportunity to speak.
Just a reminder to only send the clerk a note if you do not want to ask a question. I would also please ask the panellists to keep your answers as complete and as short as you can, and with very short preambles, as I can assure you the senators have read all the material and they are really keen to have a conversation with you.
For the second panel we have: from the Canadian Medical Association, Dr. Sandy Buchman, Past President; from the Canadian Association of MAiD Assessors and Providers, Dr. Stefanie Green, President; from the Canadian Society of Palliative Care Physicians, Dr. Leonie Herx, Palliative Medicine Consultant, Immediate Past President and executive board member.
To the panellists, on behalf of the members of this committee, I want to thank you for being here. Following your presentations, we will have questions for you.
Dr. Sandy Buchman, Past President, Canadian Medical Association: Thank you, Madam Chair. I appear before the committee today as the Past President of the Canadian Medical Association, with the honour and responsibility of speaking for all our members, the front-line physicians. My name is Dr. Sandy Buchman. I’m a palliative care physician in Toronto and I am also a MAID assessor and provider.
It is incumbent upon us now to consider the effects that the passing of Bill C-7 will have on patients, but also the effects on the medical professionals who provide medical assistance in dying, or MAID. When the original MAID legislation was developed as Bill C-14, the Canadian Medical Association was a leading stakeholder.
We have continued that commitment with Bill C-7. Having examined Bill C-7, we know that in a myriad of ways the results of our extensive consultations with our members align with the findings of the government’s round tables. Nicole Gladu, whose name is now inextricably tied to the government’s decision on MAID, spoke as unequivocally as anyone could when she affirmed that it’s up to people like her “. . . to decide if we prefer the quality of life to the quantity of life.”
Perhaps not everyone agrees with the sentiment. Few can argue that it is a powerful reminder of the real stakeholders when it comes to consideration of this bill. This applies no less critically to those who are currently MAID providers or those who will become providers. These practitioners are our members, but we can’t overlook the fact that there must be complete support of both patients and providers. Fundamentally the CMA supports the government’s prudent and measured approach to responding to the Truchon and Gladu decision.
This thoughtful and staged process undertaken by the government is consistent with the CMA’s position for a balanced approach to MAID. Through our consultations, however, we learned that many physicians felt there was a lack of overall clarity. Recent federal efforts to provide precision for physicians are exceedingly welcome. The CMA is pleased to see new non-legislative measures lending more consistency to the delivery of MAID across the country, and to the quality and availability of palliative care, mental health care and care and resources for those suffering from chronic illness and for persons with disabilities.
To ensure that all patients have access to other appropriate health care services is crucial. The CMA remains firm in our convictions on MAID for Bill C-14 and Bill C-7. We believe that the choice of those Canadians who are eligible should be respected. We also believe that the rights of vulnerable Canadians must be protected. This demands strict attention to safeguards. We believe an environment must exist that fosters practitioners’ insistence to abide by their moral commitments. Each of these three tenets is equally unassailable.
Our members are in strong support of allowing advance requests by eligible patients who may lose capacity before MAID can be provided. The CMA believes in the importance of safeguards to protect the rights of vulnerable Canadians and those who are eligible to seek MAID. Expanding data collection to provide a more thorough count of MAID in Canada is important. However, this effort must not create an undue administrative burden on physicians.
The CMA views some of the language in the bill as precarious. The CMA recommends amending the language in clause 2.1 which states: “. . . mental illness is not considered to be an illness, disease or disability.” To avoid the unintended consequence of having a stigmatizing effect, the legislation should also clearly indicate that the exclusion is for mental illness as a sole underlying medical condition, not mental illness as a co-morbidity. To be clear, the CMA is not recommending a revision to the legislative intent. We trust that Parliament will carefully consider the specific language used in the bill.
Finally, the CMA endorses the government’s staged approach to carefully examining more complex issues. We must move forward by ensuring that practitioners are given the tools that will be required to safely administer MAID on a wider spectrum. Support for developing clinical practice guidelines that aid physicians in exercising sound clinical judgment is a prime example. Such guidance would also serve to reinforce consistency in the application of the legal criteria.
In conclusion, allow me to thank the committee for the invitation to participate in today’s proceedings. Sharing the perspective of Canada’s physicians is a privilege. That together we’re pursuing painless and dignified end of life is noble. The assurance that the providers of this practice are supported is an ethical imperative.
The Chair: Thank you very much, Dr. Buchman.
Dr. Stefanie Green, President, Canadian Association of MAiD Assessors and Providers: Thank you for the opportunity to be here today. As a physician with 25 years of clinical experience and one who has been working almost exclusively in assisted dying since June of 2016, I am here in my capacity as President of the Canadian Association of MAiD Assessors and Providers.
We are the national medical association that represents and supports the variety of professionals who have arguably grown into the foremost experts on assisted dying in this country. I wish to impress upon this committee that as an organization we do not advocate for assisted dying. We are in fact the community of professionals that do the work of assisted dying to the highest of medical standards and always within the law of the country, whatever that law may be. We have the collective lived experience of how the practice of MAID has unfolded across Canada, and we have the relevant perspective to comment on how the system might be improved to the benefit of all involved. It is in this context that I address you and hope to answer your questions.
In the limited time I have, I want to emphasize what I think Bill C-7 has gotten right, highlight some notes and points for clarification and suggest two important changes. I first want to support the proposed removal of the 10-day reflection period for those whose death is reasonably foreseeable. In four and a half years, there has been no evidence this reflection period has safeguarded anyone from anything, but there is both subjective and objective evidence to suggest it has mandated substantial suffering. In my written brief, I have provided some of this convincing data. I suggest you eliminate what has proven to be an essentially false safeguard.
Secondly, I want to strongly support the proposed amendment to allow the waiving of final consent in the specific situation outlined in Bill C-7. A 2019 survey of MAID providers suggested 85% of providers have personally experienced the situation where they walked into a room to facilitate an assisted death only to find the patient no longer able to provide final consent due to an unexpected loss of capacity. I can tell you from first-hand experience how horrible that situation is. Loved ones beg for the clinicians to proceed. It is agonizing for all, and I’m unable to appreciate who exactly is being protected by not proceeding with the previously planned MAID death. However, I’m absolutely clear on who is harmed.
The proposed amendment is essential, overdue and will be welcomed by patients, their families and the professionals involved in this work. The proposed requirement of setting a specific date, however, is somewhat problematic from a practical point of view, and in my written brief, I have suggested a reasonable time frame be used instead.
Next, I applaud the government for specifically using the term “expert” when seeking expertise for patients whose deaths are not reasonably foreseeable. This is a recognition that one need not be a particular medical subspecialist to have expertise in illness. Family physicians and nurse practitioners are, by nature of their practices, experts in a wide array of illness, and this is especially true of practitioners in rural communities. Many types of health professionals can and do develop this expertise, and it is wise to recognize this range of experts to call upon.
Unfortunately, a small but important error in Bill C-7 suggests a misunderstanding of health care realities and carries significant ramifications. I do believe this error can be easily and consensually remedied. Current wording of clause 3.1 suggests that a clinician with expertise in the illness must be one of the assessors of eligibility for MAID in patients whose death is not reasonably foreseeable. Requiring the input of an expert in such a situation is not an unreasonable request, but mandating that experts also complete an assessment of eligibility for MAID is wholly unrealistic. As consultants consistently write in their reports to me, they will comment on their area of expertise but respectfully decline to opine on a patient’s overall eligibility for MAID as that is neither their area of expertise nor interest.
I have suggested simple wording that maintains the requirement for expert input, but allows and, in fact, requires two experienced MAID assessors to do the work of assessing the patient’s eligibility for MAID. To leave it as it is will essentially obstruct access to MAID for those whose death is not reasonably foreseeable.
And finally, the term “reasonably foreseeable” has created confusion. Now that a consistent, clinical consensus has developed and we have a court-backed working interpretation, the government should reinforce that the determination of what constitutes a reasonably foreseeable death is indeed a clinical decision and its meaning has not changed with the implementation of Bill C-7. Any attempt to amend its meaning or impose an arbitrary time frame around it would impact patients who can currently access MAID, reduce their access and eliminate their opportunity to waive final consent.
As I conclude, I would respectfully remind this committee of the responsibility borne by the clinicians who provide this profound, compassionate health care. I assure you that we are cautious, careful and routinely assessed for coercion and vulnerability in each and every situation. In the past four and a half years, in over 14,000 assisted deaths, there have been no clinicians prosecuted for improper conduct. You can expect we will continue to be thorough and thoughtful. I am happy to answer any questions on these or other issues.
Dr. Leonie Herx, Palliative Medicine Consultant, Immediate Past President and Executive Board Member, Canadian Society of Palliative Care Physicians: Good afternoon. My name is Dr. Leonie Herx, and I am the Immediate Past President of the Canadian Society of Palliative Care Physicians, Division Chair & Associate Professor of Palliative Medicine at Queen’s University, and an advisor to the Vulnerable Persons Standard. Today, I am speaking to you on behalf of the Canadian Society of Palliative Care Physicians.
Palliative care focuses on improving quality of life and symptom management both for those living with life-threatening conditions and their families. It does not intentionally end life and is internationally recognized as a practice distinct from MAID.
We are very concerned that the proposed changes under Bill C-7 may negatively impact patient care. Current MAID safeguards are being removed in Bill C-7 when Canada has not had a thorough review of the current system. A new report in the Canadian Journal of Bioethics published this month concludes that the Canadian MAID program has failed to provide Canadians with evidence to show that it is operating as mandated by the requirements of the law, regulations and expectations of all stakeholders. Gaps in the Canadian monitoring system have been outlined in the April 2020 issue of World Medical Journal and in the Vulnerable Persons Standard report submitted to the House of Commons Justice Committee. We oppose the removal of the 10-day reflection period. Assertions that requests for MAID only occur after careful consideration do not reflect our clinical experience.
Desire for death and requests for MAID are often expressions of grief, anger, loss and despair as a response to a devastating diagnosis or a change in condition. This lament, a cry for help, now often results in a MAID consult even before palliative care has been involved. Dr. Harvey Chochinov’s published work in psychiatry and palliative care demonstrates that desire to die in the terminally ill fluctuates and often dissipates within two weeks. The 10-day reflection period strikes an important balance, allowing MAID to be requested while protecting people who may go on to change their minds and to live for weeks, months and even years more.
Bill C-7 proposes a second track for MAID with a 90-day assessment period to end life for those with chronic illness and disability. More time is needed for careful assessment, access to experts and to assess therapeutic effectiveness. Specialist care such as psychiatry, chronic pain and rehabilitation medicine may take more than 90 days to access and to see improvements. In most cases of suicidality in chronic disease, the wish to die resolves over a period of 3 to 24 months. In other international jurisdictions that allow MAID outside the end-of-life context, the law explicitly states that MAID must be a last resort and that health care providers must agree that no reasonable treatment options exist.
MAID should not be a solution to lack of access to care. Recent media reports have documented Canadians who requested MAID due to loneliness, depression, social deprivation and lack of supports needed for living. The COVID-19 pandemic has amplified these problems.
Bill C-7 places MAID as part of good medical care. Some suggest that this means MAID needs to be introduced to patients alongside all therapeutic options. But MAID is not just another option. It is irreversible. It has significant ethical and professional implications. If a doctor introduces MAID, this may be all the push that is needed to nudge a person to pursue it.
In other jurisdictions where MAID is legal, this risk of influence has been addressed directly within the legislation. For example, in Victoria, Australia, their legislation explicitly states that MAID discussions must only be initiated by patients, and health care practitioners must not bring up MAID.
The Justice Committee heard many examples of Canadians who felt pressured to pursue MAID, including the first-hand testimony of Mr. Roger Foley.
Expected physician participation in MAID in Canada far exceeds that of any other permissive jurisdiction in the world. Physicians who do not wish to participate directly or indirectly in MAID should have their freedom of conscience protected. Conscience protection is supported by the World Medical Association, the Canadian Medical Association and the Ontario Medical Association. Amending Bill C-7 to clarify and to strengthen the conscience clause in C-14 is extremely important.
Finally, we assert that the lack of access to palliative care in Canada is a national tragedy. A study by Munro et al., in November 2020, examined palliative care involvement in patients requesting MAID and found it to be wholly inadequate.
In this study, two thirds of patients had no community palliative care physician and 40% had no palliative care involvement prior to requesting MAID. Without access to high-quality palliative care in a timely manner, patients who are suffering may believe that MAID is their only option. Palliative care must be prioritized as an essential service under the Canada Health Act and adequately funded from coast to coast so that all Canadians may receive impeccable care and be able to live well until they die. Thank you.
The Chair: Thank you very much, Doctor. We will now go on to questions. May I again please remind senators, it’s four minutes, and to the panellists, please answer the questions as precisely as you can. Thank you very much.
Senator Petitclerc: Thanks to our witnesses for being here today.
I have a question for Dr. Green. You mentioned the proposed waiver of final consent. One of the things that I have heard from many colleagues is wanting to make sure that the doctors and practising nurses are well equipped when it comes to determining whether a refusal by word, by sounds or by gesture is voluntary or involuntary. Of course, this is something that is quite crucial. I wanted to hear what you have to say about that.
Dr. Green: Certainly. The issues of consent, and capacity even, are essential in everything we do. And that is why we take so much time to assess patient support even before that decision to proceed happens. I think you’re asking me specifically about the moment that MAID is being provided. In that context right now, of course, we need to obtain final consent immediately. In the context of this amendment, we would be looking at a patient who has been deemed to have lost capacity to make that decision but has made an advanced request to proceed. There is certainly a difference that we all can recognize in the flinch of an arm when a needle is going in to start an IV, versus someone who looks at you and says, “Who are you?” or, “Why are you here?” or, “Please stop.”
There is a very obvious manner to make those distinctions. And I think that our clinicians have proven themselves to be very, very careful in this past four and a half years and will be especially more so in such a condition.
Senator Petitclerc: Thank you. I now have a question for Dr. Buchman, and others, if you feel you have the answer.
Dr. Buchman, one of the concerns that we hear a lot is access in rural areas to medical assistance in dying. In these times where we’re going through COVID, we hear more and more has been done in terms of having consultations via teleconferencing or virtually. Is this something that your organization is thinking about when it comes to this bill and the challenges in rural areas? Do you think that it will be a bit easier than it was in the past due to our society, I suppose, updating to the virtual world?
Dr. Buchman: Thank you very much for your question. The pandemic has revealed a lot. At the Canadian Medical Association, we were trying to get virtual care going for several years and came out with a task force, actually, in February, just before the pandemic hit Canada. Within about two weeks, 80% of care was virtual.
There is no doubt that virtual care has facilitated health care access. The Canadian Medical Association strongly supports access to all available legal and medical services that are available in this country.
It is very likely, then, that the option for MAID can also now be available through virtual assessments. But, of course, provision cannot be done virtually. It is important to ensure that Canadians have access to this service, as well as to all services. We strongly support the access to palliative care, to mental health and addictions care for remote and rural Canadians. We support the development of the infrastructure to ensure equitable access to all health care.
So, yes, I think this virtual care now provides that opportunity for greater assessments, but we’re still left with the challenge of providing all services to people in real time in person.
Senator Carignan: My question is for the three witnesses and concerns palliative care. I’m involved in a palliative care home in my region. We have to conduct campaigns to raise about $1 million every year. The needs are critical, and palliative care is underfunded by government. We’re located in a densely populated region on the north shore of Montreal. I have friends who died before they were admitted to the palliative care home. And yet we live in an urban area north of Montreal.
Here’s my question: Isn’t the duty to provide information on palliative care a false comfort or a false safeguard, in the sense that we say, yes, palliative care is available but that an individual has time to die before being admitted to a palliative care home? Or else, if we say no palliative care is available, does that mean the individual will be directed toward medical assistance in dying? In other words, the fact that we say that care is theoretically available but, in practice, not provided in the community has an impact on a person’s decision. That person winds up caught in the process.
Saying that palliative care exists is one thing, but saying it’s accessible in my region and will be available when I need it is another.
I’d like to hear what you have to say about the availability of palliative care. Isn’t this a false safeguard? In other words, doesn’t it give the impression there’s something else, but, ultimately, given the way it’s distributed and because the service offered differs from place to place, that measure is more theoretical than practical?
Dr. Green: Thank you for this question. I think we can all agree that palliative care is underfunded and under-accessed in Canada, and something we need to work toward. Our organization certainly supports a wider access and better funding for the excellent palliative care Canadians deserve.
It’s interesting, however, that the discussion of MAID and the availability of MAID has brought the discussion about end‑of‑life care to the forefront, to our national headlines and to dinner conversations. It has perhaps conversely, or ironically, raised the issue of palliative care and its access to the forefront.
We also know from recent studies that MAID clinicians, as they do their assessments, as they are thorough in making sure they’re following all the rigorous safeguards and procedures, we tend to be the gatekeeper to many resources, and palliative care is one of them.
My colleague pointed out that many patients had not yet accessed or been told about palliative care services before they requested MAID. What my colleagues and I do is then inform patients of what is available and quickly, as much as possible, make those resources available to them. Of course, it’s less than perfect, as you mentioned. However, a recent study has shown that of all the people reported to have received MAID in Ontario, 82% of them had palliative care involvement. That’s a strikingly large number compared to the general population’s access. It demonstrates how our clinicians and those doing the assessments are taking seriously that requirement and making sure those resources are available as soon as possible and as much as possible.
Dr. Herx: This is an important conversation. Thanks for the opportunity to dialogue.
I’m familiar with the study Dr. Green is referring to and it has been strongly contested in the medical literature that the methodology of that study was flawed and did not have appropriate controls and questions that would provide adequate data and information to make those conclusions. Therefore we don’t have convincing evidence in the literature.
Another problem is most doctors in Canada don’t have a good understanding of what palliative care can do and offer. If only information is required to be given to a person as part of informed consent for MAID, what they receive and understand about palliative care, if they’ve not seen palliative care before, is coming from someone who may not understand the full intricacies of how we can care for someone. That’s a really important problem: it’s only as good as the person giving the information understands it to be.
Many of us have experienced first-hand where the information given on palliative care to patients requesting MAID has not been adequate for them to understand how their suffering can be addressed and what that would look like. Furthermore, having information is not the same thing as having a lived experience and having time for those interventions to provide relief of suffering. We can all give you examples of patients who requested MAID, were approved for MAID, went on to have basic palliative care interventions and changed their minds.
If you remove the 10-day waiting period, we will be in a situation in Canada where people can request MAID and get it on the same day, when we’ve just heard that up to 40% of people have not even had palliative care involvement prior to requesting MAID. And now, with this legislation, we’re possibly going to be ending someone’s life on the same day when they’ve not had proper information or proper experience of how their suffering could be addressed in other ways.
Senator Batters: My first question is to the Canadian Medical Association. In your policy about medical assistance in dying, one of your foundational considerations is respect for vulnerability. In that section, your organization states:
Laws and regulations, through a carefully designed and monitored system of safeguards, should aim to minimize harm to all patients and should also address issues of vulnerability and potential coercion.
Given this, are you concerned that Bill C-7 eliminates the already quite minimal 10-day waiting period for assisted suicide?
Dr. Buchman: Thank you very much for your question, senator. I think, as has been stated earlier, we support the ongoing discussion of these safeguards. Our members on our surveys did not express concern that the 10-day waiting period was an absolutely necessary safeguard. We do think it’s important that a period should proceed where a person has an opportunity for reflection. Again, on an anecdotal notice and as a MAID provider, I have not seen the situation where a patient who had decided very clearly about pursuing MAID changed their mind at the 10-day mark.
Indeed, then, we support the proposed legislation that now states that the Audrey Parker situation — basically if a person states they want MAID at the time of consent and they’re clear and have capacity at that moment and they should lose capacity before that, we do support that amendment. Therefore we see that we are still protecting vulnerable individuals and we should proceed when someone has clearly stated their intentions at the time of consent when they have capacity.
Senator Batters: Thank you.
Dr. Herx, in your vast experience as a front-line clinician in palliative care and as an advisor to the Vulnerable Person’s Standard, what safeguards do you think need to be in place to ensure this bill does adequately protect vulnerable Canadians?
Dr. Herx: Thank you very much for the question. That’s really important. I’ve had the privilege of working alongside and learning from many persons with disabilities of very different kinds and marginalized persons. One of the big things that has taught me, which we’ve also heard loud and clear through the Justice Committee hearings, is they don’t want doctors telling them that they would be better off dead, when they’re in a vulnerable situation, they’re demoralized, they’re lacking access to care or just having a bad day and a doctor says they should consider MAID.
And unfortunately, we’ve heard multiple times, through the hearings at the House, that this is happening. They’re really scared. They already feel discriminated against in the health care system and forced to live lives that are demoralizing because of ableism. So it’s very important that we protect them from coercion and make it a patient-initiated discussion and a patient-initiated request only. Doctors should not be recommending to patients that they should get MAID as if it’s any other medical option. That risk of coercion is a really important one.
We would also recommend the existing safeguards that were carefully constructed for Bill C-14 are maintained at this point, until a fulsome and thorough review of what is happening in Canada has been undertaken. Although we heard earlier there have been no prosecutions against physicians around compliance issues, there have actually been multiple compliance concerns reported, both by the end-of-life commission in Quebec, the Office of the Chief Coroner of Ontario, and most recently the Correctional Investigator of Canada. However, there is a discrepancy between the monitoring for that at a provincial level and what is happening at the federal level, where that’s not actually being reported on and studied properly.
There is a new paper, as I mentioned in my presentation, by Dr. Kotalik from Thunder Bay. He’s a bioethicist who studied end-of-life care legislation and who meticulously and carefully outlines the issues are with the current system and how there is this gap. While we haven’t seen prosecutions, it is a problem with the system of monitoring. We actually need an oversight system, separate from what’s being done right now with Health Canada, where we have case reviews of individual situations at a provincial level and more thorough consistent reporting from each province. It’s great that Ontario and Quebec have started to do that, but they’re the only provinces giving more information. We need a thorough system of oversight.
Senator Campbell: Welcome to the witnesses. I have a couple of questions.
One of the issues is that you say physicians would offer MAID to a patient. Then we’ve heard that they also offer palliative care. Is there one or the other? It seems to me that we’re headbutting each other on this. Is there one or the other? Dr. Green, what’s your answer to that?
Dr. Green: Certainly. Thank you for the question. It’s pretty clear in the outline of the legislation that it’s incumbent upon the MAID clinicians to make sure that patients are aware of all options of treatment, the pros and cons of each, and to make sure they have a clear understanding of what’s available to them and how they can access them.
Palliative care is specifically outlined in that. It’s important to recognize that we do that with all patients. We actually do it explicitly, and we document it as such, because we’re very aware of the ramifications of not following the rules. None of us are looking to be cowboys.
The issue of raising MAID with patients is a separate issue. In certain circumstances — not all, but there are certain circumstances — when a physician is called upon to outline the number of options for a patient in a certain situation — if they’re at the end of life and considering palliative care, for example — it may be there is a situation in which they might be eligible for MAID but aren’t aware of it. One could argue that it is perhaps unprofessional not to lay all options on the table in such a situation. It’s the same when you’re outlining chemotherapy options; you must put all three of them on the table if they’re available, not just one.
Dr. Herx: It’s very important for us to say that palliative care and MAID are not mutually exclusive, and people should have access to both. I think we on this panel today would all agree on that.
The difficulty is that palliative care is being offered too late in the lives of people with serious illnesses. This goes back to a lack of adequate resources and education at a physician level; a lot of people don’t understand the very early benefits of palliative care in terms of improving quality of life and helping people live longer. Palliative care needs to be taught in all medical and residency schools and programs — that palliative care should be brought to everybody, regardless of what they choose for end of life.
The problem is that if you remove the 10-day waiting period and someone has not had palliative care, they may choose MAID without knowing and experiencing what palliative care has to offer. We’ve seen examples of that in my own palliative care practice.
Senator Campbell: Perhaps we should be considering palliative care at the point where the illness — I’m a cancer survivor, so I have some understanding of this — maybe it should be brought up at the time as we’re going forward. There is a position when the physician knows the odds aren’t good. Maybe that is when we should be addressing the palliative care, not when somebody is at the point of considering utilizing MAID.
Dr. Herx: Exactly. Thank you for articulating that. That’s exactly what our national specialty organization is trying to make happen in Canada. Through the Framework on Palliative Care in Canada, we’re trying to make sure palliative care is brought in at the time of diagnosis of all serious illnesses and is offered as a primary approach by every clinician in Canada.
Senator Campbell: That helps.
Senator Dalphond: Dr. Green, do I understand that your organization is supportive of access to MAID according to the second track proposed by the government, which is when death is not reasonably foreseeable? And on that question, what are the views of your organization on excluding mental illness, considering when commenting on a B.C. case, you are reported to have said:
In my opinion, the majority of providers in this country have come to the conclusion that patients with dementia can be assessed for an assisted death, that some of them may be eligible in certain circumstances, and if that is the case, they’d be willing to help them.
Dr. Green: Thank you for the question. Regarding the issue of whether we do or don’t support a second track for patients whose death is not reasonably foreseeable, I would reiterate up front, as a caveat, that our organization does not advocate for MAID for anyone in any particular circumstance. We advocate for a good structure, good system and good training for our clinicians to do the job under whatever law Canada has.
The proposal under Bill C-7 to make a two-track system is perhaps not one we think is the ideal system, but it is a reasonable system. The idea of having extra safeguards for those whose death is not reasonably foreseeable is not an unreasonable idea. We think there are enough safeguards in the proposed legislation that we don’t see a need to change anything that’s proposed in that manner.
Having said that, you’ve brought in the example of a case of a patient with MAID with dementia and the issue of mental health. I think the issue of mental health as a sole underlying condition for MAID is a very, very complex one, and our membership is somewhat divided about the proper safeguards that would need to be in place to serve that population. We welcome a robust conversation, which we expect will be coming forward very soon in the legislated review of Bill C-14. We hope to take part in that discussion.
I think it’s best that I leave it there, except to say that the current law does not actually exclude people who have a sole underlying condition of mental illness. There are some examples of patients who have already met all the conditions under Bill C-14 and have received MAID, and have done so under the law under rigorous scrutiny. Regarding the idea that some patients with dementia might also meet the criteria, I am, as a MAID provider and assessor, in agreement with the fact that it can be true. I’ve personally seen that and personally assisted people in that situation.
It’s certainly not common. It’s very complex. Our association has attempted to provide guidance on how to deal with those situations, and we continue to set the highest of medical standards in these complex cases, and we will continue to do so going forward.
Senator Dalphond: So I gather that what is proposed is more restrictive than what exists now in regard to mental illness.
Dr. Green: In regard to mental illness, we find that what is proposed is exclusionary to those who have mental health as a sole underlying condition, and that is absolutely more restrictive than what exists now. I’m not a lawyer, but I imagine that someone will charge that is discriminatory and challenge that in the courts, just as “reasonably foreseeable” was challenged. I can’t speak to that as I’m not a lawyer.
I expect that, more rationally, this is buying more time to have the discussion we need to have around mental health. One way around that in Bill C-7 — one thing I might propose you consider seriously — is putting a sunset clause on this exclusion for mental health patients so that it puts the feet of the government to the fire and compels them to have the discussions needed to deal with these patients.
Senator Plett: My questions are for Dr. Herx.
Doctor, this bill proposes to make assisted suicide a standard of care for physicians like you to provide referrals and recommendations. In the House of Commons Justice Committee, Dr. Ramona Coelho told the committee that doctors are leaving the profession across Canada because of the imposition of assisted suicide on their practice. The government assures Canadians that conscience rights of physicians will be protected in this bill. In fact, Minister Lametti told me and the members of this committee this morning that Bill C-14 already protected conscience rights of doctors and tried to suggest that because some Conservative MPs supported the language in the existing legislation, that should give me some comfort.
Doctor, I would rather get my information from someone on the front lines. In your opinion, are the conscience rights of physicians adequately protected, and do you have any concerns regarding the conscience protections of this bill if it is passed without amendments?
Dr. Herx: Thank you, Senator Plett. That’s a very critical question that’s a matter of great importance to many physicians.
The answer is “no.” The way the clause for conscience protection is currently written in Bill C-14 is not clear enough or enforceable to prevent forced participation in MAID in both a direct and an indirect manner. We can see that in real life through the Ontario Superior Court ruling, which said that physicians would have to provide an effective referral for MAID, and which requires us to participate in and facilitate MAID for someone when we may not think that it’s indicated from a professional perspective or it may go against our moral integrity. There is not adequate protection currently in that Bill C-14 clause.
I can give you many examples of colleagues who have retired early from palliative care because they didn’t want to be facilitating and participating in MAID. I know other physicians who have left the practice of palliative care because of this. Palliative care has really been the canary in the coal mine. It’s been on the front lines because every day we deal with people who are facing the possibility of their own death. Those expressions of suffering, as I’ve mentioned, come across as a desire to die and we’re often forced into conversations around MAID. If a patient requests it, we will absolutely give information and make sure patients are informed. Being informed about your options at a patient request is very different to saying this is equal to the standard of medical care, which Bill C-7 proposes.
With this legislation, the way it’s written without amendments, doctors will be required to possibly facilitate the death of a patient through MAID when they have a treatable illness, something that they have good evidence-based medical care for that a patient will choose not to have but will instead request MAID. Doctors from every medical specialty, not just palliative care, are going to be impacted by this. We really need to get it right if we’re going to be expanding MAID under Bill C-7 to say both direct and indirect participation in MAID must not be forced on physicians. We must practise according to our professional integrity and moral compass, and we must not be forced to facilitate something that is not in the best interests of the patient.
The way this bill is written, by making MAID a medical standard of care and a choice amongst other options, doctors are going to be in a place where they either have to leave medicine or facilitate the deaths of their patients with treatable illnesses. That is an important concept that many doctors in Canada have not yet understood. Please, it’s important to strengthen the conscience clause so we don’t all have to leave medicine.
Senator Plett: We will try, Doctor. We will try.
Senator Boyer: My question is for Dr. Buchman. During our public consultations earlier this year and the Indigenous round table, one of the issues that was raised was that Indigenous peoples may choose MAID due to a lack of access to adequate health care services, and we heard about vulnerable populations earlier. Examples include a lack of culturally appropriate palliative care programs, pain management, health supports, et cetera. Some indicated that the best protection or safeguard would be to improve access to culturally safe health care services and other social supports. This is backed up by data from a recent Statistics Canada report indicating that 1 in 10 First Nations people living on a reserve reported that they had unmet health care services in the last 12 months.
In your opinion, does the lack of access to adequate health care services restrict Indigenous peoples’ access to MAID?
Dr. Buchman: Thank you very much for your question, senator. I think it’s similar to all areas of health care. The lack of adequate resources to our First Nations and Indigenous peoples across the country is compromised. We don’t have adequate access to health care services, and that includes, of course, palliative care. They would also have the same restrictive access to MAID. At the CMA we have been advocating for the cultural humility that’s required to provide care to our First Nations peoples across the country. It’s absolutely critical that access to all health services be improved for First Nations populations across the country.
It’s completely consistent with the policy. They need access to palliative care, but they also need access to the option for MAID. We are working closely with groups across Canada who are focusing on providing culturally sensitive palliative care to all First Nations peoples as well.
Senator Boyer: Thank you.
Senator Keating: I’d first like to thank Dr. Green for reminding us what this is about. This is about how to best implement whatever law Canada adopts. It’s not a rewrite of the provisions that were in the original act, but it’s trying to respond to a decision of the Superior Court of Quebec. For that, I thank you for your thoughtful suggestions for an amendment regarding how we can best improve the system. I’m going to waive the rest of my time so that Dr. Buchman can address or say what he wants to say about Senator Plett’s question.
Dr. Buchman: Thank you very much, senator. It was just to add that the Canadian Medical Association surveyed our membership right across the country. We received over 6,000 responses to our surveys, more than any other surveys previously, and held several round tables across the country earlier this year. It was clear from our surveys that physicians were not going to leave the profession, leave the practice of palliative care or leave medicine because of the presence of MAID or the amendments that are proposed in Bill C-7. It’s really just the point that I made. Our data does not support that physicians will be leaving this practice. I’m sure there are individual cases of physicians. We support those conscientious rights of conscientious objectors, and we support the rights of conscientious providers as well. We support the autonomy of individuals to make their own decisions, just as we support the autonomy of patients to make their own decisions as to whether they want to access MAID or not.
Senator Keating: Thank you so much for that clarification.
Senator Dupuis: I want to thank the witnesses for being with us today. My first question is for our three witnesses. We have heard a great deal about the distinction between palliative care and medical assistance in dying. However, if we focus on the matter before us, which is a bill on medical assistance in dying, I’d like to respond to Dr. Buchman’s statement, with which I agree, that we have established a system in which people can request medical assistance in dying in very specific circumstances.
A very significant paradigm shift has occurred regarding end-of-life decisions and actions taken to end life, since that decision is now up to the patient. Do you agree that we should respect that decision and all it entails, meaning how care can be provided to the patient at various stages of the disease, since this is a secondary matter that doesn’t directly concern respect for the person’s autonomy in the circumstances of the decision to request medical assistance in dying?
Dr. Buchman: Thank you for your question, senator. If I understand correctly, I think the important part of this is that when a patient becomes ill or develops a disease that is life‑limiting, we need to hear and listen to their suffering. The importance of any physician, palliative care or otherwise, is to hear what the patient is saying.
The literature is clear in the wish to hasten death; there are many reasons. This has been noted before. I think it’s incumbent upon the physician to address all aspects of their suffering — to really listen to that patient — and so when the patient says, “Doctor, I want to die,” I kind of hear, “Doctor, my life is intolerable, help me live.” It’s incumbent on any physician to provide all the necessary services and resources to address that person’s suffering. We often find that, then, the wish to hasten death actually disappears. However, even in the best of palliative care, it still doesn’t always permit that patient’s suffering to be addressed. At that point, they must know that medical assistance in dying is a legal option in this country. We have to share all potential options with the patient, but we first have to make every effort to address their suffering in whatever way because this often addresses their need.
Dr. Herx: Can I add to that?
The Chair: Please go ahead.
Dr. Herx: Thank you. I very much agree with what Dr. Buchman is saying. There are sometimes cases where that desire to hasten death goes away with good care. That’s our whole concern with the removal of the 10-day waiting and reflection period. Without that, persons may have that desire for hastened death, and not really have another opportunity to have their care needs met and to change their mind. That’s why removing the 10 days is just so dangerous. Thank you.
Dr. Green: As Dr. Buchman so eloquently answered, I think there is a spectrum of care. The umbrella title is “end-of-life care.” Our organization does not consider MAID and palliative care as different or butting heads. It’s all care for the patient under the end-of-life care act. The quick answer to your question is that our organization will respect 150% whatever the outcome of this process is. We will always do that. I would mention that the 10-day reflection period is but a drop in the ocean of time that patients take to consider this tremendous, profound decision that they have often spent sometimes weeks, months, and often years considering. The 10-day reflection is not reflective of that decision process at all.
The Chair: The hour has just flown by, and you can see there are so many questions my colleagues want to ask. There may be another opportunity, so I want to thank all three of you for taking the time to meet with us today.
We are now ready to welcome our next panel of witnesses. Thank you all very much for making time to come to the Standing Senate Committee on Legal and Constitutional Affairs.
As you know, we are studying medical assistance in dying, and so we really look forward to hearing from you. As we have limited time, may I please ask that you avoid long preambles. You will have five minutes to make your presentation, and then we will have questions.
We have three panellists: from Inclusion Canada, Krista Carr, Executive Vice-President; from the Council of Canadians with Disabilities, we have Amy Hasbrouck, Executive Director of Toujours Vivant-Not Dead Yet, a project of the Council of Canadians with Disabilities; and from the DisAbled Women’s Network of Canada, we are joined by Bonnie Brayton, National Executive Director.
We appreciate you being here. We will get started right away.
Krista Carr, Executive Vice-President, Inclusion Canada: Good afternoon. I’m Krista Carr, Executive Vice-President of Inclusion Canada, formerly the Canadian Association for Community Living, Canada’s national organization for people with intellectual disabilities and their families. Inclusion Canada has advocated for safeguards in MAID since we intervened in the Carter case. Our biggest fear has always been that having a disability would become an acceptable reason for state-provided suicide. Bill C-7 is our worst nightmare. Inclusion Canada stands united with all national disability organizations in calling for MAID to be restricted to the end of life.
The disability community is appalled that Bill C-7 would allow people with a disability to have their lives ended when they are suffering but not dying. This is not how we respond to the suffering of any other group of Canadians, much less any other Charter-protected group. We’re told the abrupt pace of passage through Parliament has been set by the Superior Court of Quebec, yet amending the Criminal Code to satisfy a Superior Court decision appears unprecedented. We’re told Canadians want this, yet every national disability organization is opposed. Respect for autonomy necessitates that our voices prevail.
If Canadians supported assisted suicide for Indigenous or LGBTQ2S+ citizens, for example, who are suffering as a result of being Indigenous or their gender identity, we would not be here today. Canadians recognize suicide is more prevalent amongst those who experience systemic racism or societal devaluation, and thus prevention is a necessity and every life lost is a tragedy. Why is it not just as great a tragedy for an Indigenous person with a disability or someone with any other gender identity who has a disability?
The human rights of a Charter-protected group must never be a matter of public opinion. Equating assisted suicide to an equality right is a moral affront. There are three points I’d like to cover today.
First, why us? As no other Charter-protected Canadian life is being put at risk by this bill, there is only one answer to this question, the lives of Canadians with disabilities are not of equal value. Language and perceptions are powerful. Including disability as a condition warranting assisted suicide equates to declaring some lives not worth living — a historically horrific premise with consequences that should terrify us all and clearly terrifies the disability community, including their families.
Second, people with an intellectual disability and their families are in a constant struggle for inclusion — a universal human right not yet fully realized in Canada. When people with intellectual disabilities suffer because of their pervasive exclusion and marginalization, we now fear they will be encouraged to end their lives, rather than address their suffering as we do for every other Canadian who tries to end their suffering through suicide. Their lives are now judged as not worth saving.
To be clear, an inclusive life remains elusive for a majority of adults with intellectual disabilities. There is no right to adequate supports in Canada, and 75% of adults with intellectual disabilities are unemployed. They are three times more likely to be living in poverty, four times more likely to experience violence and a staggering number of people with intellectual disabilities remain housed in institutions and long-term care. Canada is failing its commitments under the UN Convention on the Rights of Persons with Disabilities, or CRPD, to uphold the rights and inherent dignity of all people with disabilities. Persons with disabilities in Canada suffer an inadequate patchwork of supports and services with extensive wait lists. A state-sanctioned death is not the solution.
My third and final point is that, until now, MAID has been restricted to end-of-life circumstances. The end-of-life requirement was the only safeguard whereby disability was not the sole criterion. With having a disability itself under Bill C-7 as a justification for the termination of life, the very essence of the Canadian Charter of Rights and Freedoms would be shattered. Discrimination on the basis of disability would once again be entrenched in Canadian law.
People with disabilities have historically been devalued and marginalized in Canada, and that remains to be sufficiently remedied. Bill C-7 further devalues the lives of people with disabilities. It fundamentally changes MAID from physician assistance in dying near the end of life to physician-assisted suicide on the basis of disability. The lives of people with disabilities are as necessary to the integrity of the human family as any other dimension of humanity, and this threat to the lives of people with disabilities is a threat to us all.
We urge the committee to seek an amendment to sustain MAID as only available to those who are close to dying and unequivocally restrict anyone with a disability from having their life ended unless their natural death is imminent. Thank you.
The Chair: Thank you.
Amy E. Hasbrouck, Executive Director, Toujours Vivant-Not Dead Yet a project of the Council of Canadians with Disabilities: Thank you very much to this committee for the opportunity to speak to you today. I am speaking to you from Valleyfield, Quebec, which is on St. Lawrence Iroquoian, Mohawk and Haudenosaunee Confederacy land.
Toujours Vivant-Not Dead Yet is a project of the Council of Canadians with Disabilities to inform, unify and give voice to the disability-rights-based opposition to assisted suicide, euthanasia and other ending-of-life practices that have a disproportionate impact on disabled people, women, elders, Indigenous and racialized people and persons subject to other forms of oppression. Toujours Vivant-Not Dead Yet was founded in 2013 as a progressive, non-religious organization of disabled people and our allies. We believe there can be no free choice to die while old, ill and disabled people don’t have a free choice in where and how we live. We recognize that this movement for assisted suicide is driven by the devaluation of disabled lives captured in the phrase “better dead than disabled” and manifest in society’s inequitable application of suicide prevention policies where non-disabled people who want to die get suicide-prevention services while disabled people get suicide-completion services.
In its 2015 decision in Carter v. Canada (Attorney General) that struck down the prohibition on physician-assisted dying, the Supreme Court said that protecting vulnerable people, such as elders, women, LGBTQI and disabled peoples and Indigenous and racialized people, would require a carefully designed system imposing stringent limits that are scrupulously monitored and enforced. The language and implementation of Bill C-14, the medical assistance in dying, or MAID, law, have not met the Carter mandate. Bill C-7 compounds this failure by rolling back protections beyond what is mandated by the Superior Court of Quebec in the Truchon c. Procureur général du Canada decision and before Parliament has done the five-year review required in the MAID statute.
Far from being “an exceptional measure for exceptional cases”, as promised by Véronique Hivon, chief sponsor of Quebec’s euthanasia law, Canada’s program already has resulted in the deaths of nearly 20,000 disabled people, many of whom also had a terminal illness. The MAID statute is notable for the safeguards that are missing. For example, requiring people to exercise their autonomy by taking the lethal dose themselves, as is the case in the U.S., where only assisted suicide — not euthanasia — is allowed, would reduce assisted deaths by 90%. The provision of palliative care, community supports for independent living or even suicide-prevention interventions are not prerequisites for MAID eligibility. And as Katherine Sorenson learned, there is no remedy for the common practice of doctor shopping where multiple determinations of ineligibility can be invalidated by two “yes” votes and the family has no legal recourse. Nor did the family of Alan Nichols, who was euthanized in 2019 despite a mental illness that affected his mood and judgment but who did not have a life-threatening medical condition.
In her 2019 End of Mission Statement, Catalina Devandas-Aguilar, United Nations Special Rapporteur on the rights of persons with disabilities, said that she was extremely concerned about the implementation of legislation on medical assistance in dying as well as the lack of options for independent living.
In our series of webcasts, “No Free Choice,” TVNDY has documented numerous examples of persons who sought assisted death because they did not have the services and supports they needed to maintain a reasonable quality of life. Offering assisted dying to people stuck in institutions raises the same issues as those noted by Ivan Zinger in the annual report of the Office of the Correctional Investigator.
There are three known cases of MAID in federal corrections . . . and each raises fundamental questions around consent, choice, and dignity.
During the pandemic, disability rights advocates have joined with racial and other social justice movements to declare that nobody is disposable; yet 80% of deaths from COVID-19 have occurred in long-term care facilities.
Last year, the Quebec Superior Court, in its Truchon decision, struck down the section of the MAID law requiring that the person’s natural death be “reasonably foreseeable.” By choosing not to appeal that decision, the Liberal government signalled its approval for the euthanasia of disabled people who are not near the end of life. Then, rather than limiting its legislative response to the scope of the Truchon decision, the Liberal government set forth a bill that makes substantial amendments to the MAID program before the five-year review mandated by Bill C-14 has been accomplished.
Bill C-7 would reduce the number of witnesses required to sign the written request from two to one and allow the person to be a care provider, thus setting the stage for an abusive attendant to coerce a person to ask for death and then serve as the only witness to that request. Instead of clarifying what it means for someone’s natural death to be reasonably foreseeable or simply scrapping this slippery and malleable concept altogether —
The Chair: Ms. Hasbrouck, may I ask you to wind up, please? You have reached your time limit.
Ms. Hasbrouck: Okay.
Instead of rushing to pass overreaching legislation to meet a court-imposed deadline in the midst of a pandemic, Parliament should concentrate on performing a rigorous and balanced examination of the euthanasia program as a whole. Thank you very much. I can take questions in French, also.
The Chair: Thank you.
Bonnie Brayton, National Executive Director, The DisAbled Women’s Network of Canada: Good afternoon, Madam Chair and members of the committee. My warmest greetings to the other honoured members of the panel today.
Thank you for inviting me to appear. I am speaking from the unceded territory of the Kanyen’kehà:ka people. I remind us that truth and reconciliation is not about words. It is about how we conduct ourselves in the space of truth.
My name is Bonnie Brayton and I am the National Executive Director of the DisAbled Women’s Network of Canada, or DAWN Canada. We are in our thirty-fifth year of service and yet we do not celebrate. According to Statistics Canada, 24% of women in Canada live with a disability. The rate of disability for Indigenous women is 34%. Women with disabilities experience the highest rates of gender-based violence at double the rate of non-disabled women. Our research, more than a footnote, shows clear evidence of systemic discrimination in gender-based violence policies and that women are becoming disabled through violence [Technical difficulties] with an invisible epidemic of traumatic and acquired brain injury.
When I presented to the Justice Committee last week, I shared an important Supreme Court decision — the Slatter decision, with the ink barely dry, from November 6, 2020. In this case, a woman was repeatedly sexually assaulted, yet she is still facing a justice system and a society where, instead of being believed, her evidence is questioned. The majority — so, more than half — of human rights complaints in Canada for nearly a decade at the federal, provincial and territorial commissions and tribunals do, by their own statistics and evidence, continue to be disability-related.
Do the Rights Thing is another body of work by DAWN Canada that highlighted this compelling but unaddressed evidence of rampant systemic discrimination. Last week, with the Justice Committee, I referred to the situation of Ruth. In a different Canada, Ruth would receive the support she needs to have a life that has meaning, including dignified housing that keeps her safe and alive. She is intelligent, articulate and would be a good mentor and counsellor to anyone who lives with environmental sensitivities because Ruth knows the ropes. Last week, an article in Maclean’s magazine shared a chillingly similar example of a woman, whose alias is Susan, who has also now lost hope and now sees MAID as her only choice.
We have also shared a copy of our submission to the House of Commons Standing Committee on the Status of Women, or FEWO, of a study on the impact of COVID-19 on women and girls with disabilities in Canada. It makes important connections between the pandemic, the great implications in the context of MAID and speaks to fears that go beyond just contracting COVID-19 because of triage policies and discrimination they’ve experienced repeatedly in trying to access health care. Instead, they are being asked about advance directives and MAID. The Accessible Canada Act, as you know, for almost two years, involved hundreds and hundreds of meetings that took place. Minister Qualtrough embarked on a national tour. Organizations like mine and others were consulted. Resources were appropriately expended in ensuring that people with disabilities were consulted. It could have been a good example of public consultation. Despite this, Parliament tabled the act and put it before the Senate with some gaping holes in it.
Thankfully, members of the Senate and of this committee, with wisdom based on evidence of systemic discrimination and with appropriate reflection, put forward the most critically important changes to the Accessible Canada Act before it passed. Most significantly, in the preamble, you recognized with great force the reality that systemic and intersecting forms of discrimination must inform the act before it goes into force. Indigenous people with disabilities have not been consulted. In fact, the proposed legislation, Bill C-7, is sadly lacking in any meaningful public consultation with any people with disabilities despite how much more profoundly it could affect anyone who lives with a disability. In fact, except for one online survey of some 15,000 unidentifiable respondents, it is lacking any public consultation.
Where is the justification for removing the imminent death clause? Where is this huge demand for MAID? There is plenty of evidence to the contrary — I say again: evidence. And that is why this hasty rush to remove the imminent death clause is dangerous. There is evidence to support the need to complete the five-year review and to engage with civil society organizations who have established expertise like mine — I have 35 years of expertise — and not just the medical experts who do not take a rights-based approach to MAID.
You must not allow the removal of the imminent death clause to proceed at this time. You have a moral, legal and sworn responsibility to our Constitution and to all people in Canada to make laws that serve and protect all people in Canada. You must do so based on balanced evidence and information about those who will be most affected by them.
Thank you. Meegwetch.
The Chair: Thank you to all our panellists. Now we will go on to questions. I would ask senators and panellists to please keep the questions and answers short and precise.
Senator Petitclerc: I would like to thank our witnesses for being here today. I have a rather straightforward question to ask, and perhaps Ms. Carr could answer it. We met previously, as you know. I have been listening to you and thinking about the more than 6 million disabled people here in Canada, people who are different in terms of their rights and vulnerabilities. We agree on that score. On the one hand, I am listening to you speak about protecting certain disabled people who are vulnerable. On the other hand, disabled people also have the right to autonomy. We are also of course thinking about the Truchon and Gladu cases, among others. What I don’t understand in your speech… We are looking at Bill C-7, which includes provisions on safeguards for people whose death is not reasonably foreseeable. I would like to hear what you have to say about these safeguard measures. I won’t go into all of them because time is short and you are as familiar with them as I am.
They include psychological counselling, mental health support, support for disabled people, community services, and palliative care. Care is taken to ensure that all means have been “seriously considered,” as the bill puts it.
To begin with Ms. Carr, what would you suggest be done in response to your concerns?
Ms. Carr: Thank you for the question, Senator Petitclerc. It’s nice to see you again.
We’re talking about singling out one group of people. In the current bill, Bill C-14, anyone who is dying has access. It doesn’t matter what the basis of their individual characteristics are; anyone whose death is reasonably foreseeable has access to MAID. Bill C-7 adds a track that singles out one group of people. It doesn’t say that anyone who isn’t dying can access MAID universally, and we wouldn’t want that.
We’ve singled out one group of Canadians, people with a disability, and we talk about it being autonomous choices or independence or that type of thing. Absolutely, that’s what we want for people with disabilities, but the unfortunate reality in Canada is that’s not what we have. We don’t have a rights-based approach to disability support. We have disproportionate rates of poverty, unemployment, violence and abuse. It goes on and on.
We know the precarious living situations people have, and there can be no real autonomy or autonomous choices when you’re living on one potato a day after you’ve paid your rent for the month, when you can’t get the disability supports you need, when you’re institutionalized like Mr. Truchon was and talked so desperately about how he did not want to be in that institution; living there was worse than dying for him.
That is the situation of so many people with disabilities in this country. No, not all, but how many lives is it okay to lose?
Senator Petitclerc: I don’t want to interrupt you, but I will because we have limited time. What are you proposing?
Ms. Carr: We’re proposing that you get rid of track two and leave it at reasonable foreseeability of natural death and go back to the Supreme Court, if needed, because the lives of people with disabilities warrant a decision from seven judges in our highest court in the nation, not one provincial court in any province in the country. This is a matter of life and death. It’s something to be taken very seriously. We’re pushing this through at breakneck speed, without proper consideration.
Senator Batters: My questions are for Krista Carr from Inclusion Canada. Ms. Carr, I would like to give you a little more time to explain your particular position on this. First, why are you recommending an amendment to the proposed legislation that some may say goes against the decision of the Quebec Superior Court judge in the Truchon decision?
Ms. Carr: Inclusion Canada takes the position that it is extraordinarily rare to see changes in the Criminal Code made in response to one trial decision in one province. One trial court in Quebec or any other province, for that matter, cannot and should not determine the rights of all Canadians. That’s inconsistent with our federal system.
As you know, the national disability community pleaded with the federal government to appeal the Truchon-Gladu decision. By refusing to appeal, the Department of Justice has put us in a bit of a bind.
There are some responses to that. Perhaps it is simplest to go back to the Quebec court and ask for more time. We’re talking about the life-and-death situation of Canadians with disabilities. Surely we shouldn’t be doing this in a hurry.
Another alternative would be to let the suspension of invalidity lapse in Quebec. That might sound like a drastic response, but it’s not uncommon to have provisions in the Criminal Code struck down in one province and not others. That happens in our court system all the time. Typically, the federal government doesn’t amend the Criminal Code until the Supreme Court of Canada binds all courts in the country for that. This would allow us another case that we could move through the legal system and bring it properly through the Supreme Court.
The third option would be to go directly to the Supreme Court now with a reference question on this matter and get the fulsome hearing that Canadians were denied in the Truchon decision.
Senator Batters: Thank you. You were one of 70 groups who wrote to the Minister of Justice to try to encourage him to seek that appeal. I’m not sure if you had a chance to watch my questioning of Minister Lametti this morning. I was telling him how surprising I found that decision to be, that he did not appeal.
Ms. Carr, can you elaborate on why you believe it’s discriminatory for people with disabling medical conditions to be able to access assisted dying when they are not at the end of their lives?
Ms. Carr: That is because the singling out of one particular group of people based on their personal characteristics that happen to be a protected ground under the Charter of Rights and Freedoms, and to use that reason as grounds to justify the termination of the lives of the people who have those characteristics, is just wrong, and we wouldn’t consider doing this. We would never consider doing this for any other group of people: Indigenous, racialized, LGBTQ.
We know these groups suffer disproportionately not because of who they are but because of what society, systems, people and discrimination do to their living situations. In those cases, for those groups of individuals, we do everything we can to save their lives, as we should do, but why not for people with a disability? Are their lives not worth as much?
Senator Batters: Thank you. That’s because you’re saying that the end-of-life criteria is the only criteria that is not applicable to disabled people. Once you take that away, everything else applies to the people who are disabled, potentially, correct?
Ms. Carr: That’s right.
Senator Batters: Thank you.
Senator Dalphond: My question can be answered by any of the three witnesses. They have given very interesting presentations.
We have a problem of philosophy, ethics and law. I assume that in Carter, the Supreme Court unanimously decided that you don’t need to be terminally ill in order to access MAID. The criteria are that you have to be a competent adult, you have to clearly consent, have an egregious and irremediable medical condition, and the medical condition causes enduring suffering that has become intolerable.
What you’re proposing is that we change the law, in a sense, or are you proposing that we use the notwithstanding clause and say that we should adopt legislation that will prevent access to MAID to many people and use the notwithstanding clause to support it?
Ms. Carr: I can jump in first. I’m happy for anyone else to take the question as well.
Thank you for the question, Senator Dalphond. I’m not a lawyer. We work with a lot of legal experts, but I would say that what the Carter decision did make clear in more than one place, and I know you’re probably more aware of this than I am, is that there needed to be safeguards in place to protect vulnerable people. Courts don’t write legislation. It’s up to Parliament to do those things in respect of court decisions, for sure.
What was decided by Parliament was that the reasonable foreseeability of natural death not only ensured equality because anybody can access it, but it was also a very important safeguard that needed to be in place to protect vulnerable populations from getting into a situation where they end up having their lives terminated by lethal injection because of living situations that could be remediated or made better.
You’ll notice that this legislation also doesn’t require people to be able to get the services and supports they need to make their lives better; they’re only required to be told about them. I can assure you that people with disabilities who show up in the MAID system are already aware of what’s out there, but they can’t get it or they’ve been on a wait list for it for a long time. They’re living in unsafe housing conditions. They’re living in poverty. In the province I live in, it’s two years —
Senator Dalphond: Sorry to interrupt, but that was not the case of Madam Gladu. She’s very autonomous. She lives a life of her own and is not complaining of having no access to —
Ms. Hasbrouck: But she was concerned she would be institutionalized, and that was one of the main reasons behind her motivations in bringing the case. That [Technical difficulties] the issue of [Technical difficulties] a major driver behind many people’s requests for assisted suicide.
I just want to jump in, Krista. In the Carter case, I believe the Supreme Court erred in making its determination because it specifically said that disability was an eligibility criteria. I believe that that is an error. In Carter, the Supreme Court did not do a Section 15 analysis.
Our view is that, as I said, the safeguards that are missing are most obvious. First of all, we believe that assisted suicide, not euthanasia, should be the means. If people have a physical limitation that makes them unable to take the drug themselves [Technical difficulties] and we also believe that there should be a prerequisite that the person be receiving palliative care and community supports for independent living, and be given suicide prevention intervention before they are determined eligible for assisted death. That is a response also to Senator Petitclerc’s question.
Ms. Brayton: I would also like to answer.
The Chair: I’m sorry, Senator Dalphond’s time is over.
Senator Dupuis: Similarly, and on the same topic, my question is for any of the three witnesses. In situations where disabled people are not at the end of life, and feel that the suffering has become intolerable and that it is impossible to continue to live like that, do you feel that they should be able to make the decision themselves, rather than wait longer, when their quality of life has worsened even more, until a doctor decides for them to end their life and suffering?
Ms. Brayton: Thank you, Senator Dupuis, for all these questions.
The first thing I would like to say is that, in the context of Quebec, I would certainly like to make it clear that, as a woman with a disability who lives in Quebec with post-polio syndrome, the same disability as Madam Gladu, I could give you a personal perspective on the vulnerability that exists for me as a person, because I live with that disability and I live in Quebec where that decision has been taken. But instead, because I’m a white woman of privilege who is the national executive director of an organization, I have instead presented you with plenty of evidence about the reality that Ms. Carr was referring to, which is that the reality for many people with disabilities is different than anything that any of us could possibly understand or fathom.
These safeguards that we referred to are critical to understanding the lived reality of people with disabilities. It’s the fundamental reason we are before you asking you to understand why these changes must not go forward and why, while they are aspirational in their idea of what kind of Canada we live in, they are not grounded in reality. Again, I repeat that the evidence that is presented makes it quite clear that the majority of Canadians with disabilities live in poverty. They have unemployed, violent lives with insecurity about housing and the fundamental social determinants of health.
This is why we are before you today and why we ask you again to understand why you must step back from the hurry to move this legislation forward. Do the review. Look at all the evidence — not the opinions of some, but, again, the evidence. I’m quite sure we will come to the same conclusion that we are not yet a country that can move forward with legislation like this. We are an aspiring nation, but we are not in a place where we can do this, and we cannot, because people will die. Thank you.
Ms. Hasbrouck: I would like to speak about what happens with a disabled person who can’t take it any longer. I would like that person to receive the same support required to live, to live well, and to receive the same suicide prevention counselling that non-disabled people receive. This is not the case at the moment. That’s the difference. Both should have the same level of responsibility for their death. So rather than have the government decide upon and administer the death, the individuals could do it themselves if there were reasonable accommodation to make this situation possible, via assisted suicide rather than euthanasia.
Senator Keating: If someone would like my speaking time, I’m willing to give it up.
Senator Boisvenu: Honourable senators, the sound is not working.
The Chair: Sorry about that. Could you write the question down and send it to me?
Senator Boisvenu: Yes, okay.
The Chair: Thank you.
Senator Boniface: I thank the panellists very much for being here. I’m particularly interested in comments from Inclusion Canada on a particular question. You indicated in your comments and in your brief the notion of a reference to the Supreme Court of Canada being pursued rather than the legislation that’s before Parliament today. I would like to know if you have spoken to any other provinces to gauge their interest in such. You note that neither the Quebec government nor the federal government chose to appeal this decision and, given the comments this morning from the minister, I believe it’s because they agree with the decision. What about other provinces? Have you had the opportunity to speak with them and get their responses to the decision? If so, do any of them support your proposed way forward with a reference?
Ms. Carr: Thank you very much for the question, senator. There are two parts to the answer. The first is we have seen this as a decision of the federal government, given that it’s amendments to the Criminal Code of Canada and that typically happens after a Supreme Court decision. So to be fair, I don’t know what the answer would be in terms of provincial governments or what their willingness or unwillingness around this would be. I can’t inadequately answer that question. I’m sorry about that.
Ms. Brayton: I think that would be another indication, senator, that there hasn’t been sufficient time to properly explore these questions, and that indeed we didn’t have consensus across the country and we didn’t before this was moved forward by the government. Thank you.
Senator Munson: Thank you very much for allowing me to participate in this committee. I have a great deal of empathy with the argument for dying with dignity, but I also have the same empathy for those in the disability community living with dignity. We seem to be racing against the clock. Is this December 18 timetable an arbitrary timetable? Do governments always have to enact what a court says it must in a certain period of time, or is there time in the Senate to take this a little further in terms of having that nationwide discussion?
Ms. Carr: We’re told there are options, as I outlined earlier, and we’re asking for them to be pursued. One would be to go back to the court and ask for more time, given the fact we’re in the midst of a global pandemic. Because of that, there have been other legislative priorities and this is being pushed way too quickly. We should wait and do the consultation properly, et cetera, particularly with the people most affected, who are people with disabilities.
The other is our legal teams are telling us that if we don’t do anything by the December 18 deadline, then the decision remains in effect in Quebec, although it could be challenged in another court in Quebec or it could be ignored in Quebec depending on how they decide to go with that. For the rest of Canada, however, the decision is not binding if the Criminal Code is not amended by December 18. So we’re really pleading with the Senate to put the brakes on this, slow down and give us our proper due. We need to have a robust discussion and, as Bonnie Brayton mentioned, examine the evidence and really look at the impact this will have, and answer the question: Why is only one group of Canadians being singled out by this legislation?
Senator Munson: I was a sponsor of the Accessible Canada Act in the Senate and the act promised a disability lens for legislation. Was a disability lens applied to this legislation? If so, what are the results and how are these reflected in this legislation?
Ms. Brayton: Indeed, Senator Munson, I so appreciate you bringing it forward because in my comments I brought up the Accessible Canada Act and the important work the Senate did to really emphasize the fact that there is something called “intersecting discrimination” that’s a deep concern and that is indeed part of what we’re trying to bring forward today. I do appreciate, on a point of order, that the Accessible Canada Act does require that the disability lens be applied to everything. In a go-forward instance, that legislation is already in place. One does wonder, indeed, having this legislation before us, how it could be possible this legislation would come forward without that consideration and the irony of same.
Thank you, Senator Munson.
Senator Munson: Thank you very much.
Senator Plett: I’ve been having a real problem with hearing some of the witnesses, very unfortunately. All three witnesses have given compelling testimony. Unfortunately, the only one that came through clearly for me on my headset was Krista Carr so my question will be directed to her.
The House of Commons Justice Committee heard heartbreaking testimony from Roger Foley and Taylor Hyatt, both of whom encountered health care workers who they felt suggested to them that death was their best option. Roger Foley taped one such occurrence of being pressured to receive assisted suicide, and it was publicized through mainstream media. We understand this type of coercion can be subtle, but it has a great impact and, sadly, is all too common.
Ms. Carr, these cases occurred during the current regime. I would like you to elaborate on those cases, if you could. In your view, does Bill C-7 offer any protection from coercion? If not, what specifically could we do — and I know you’ve talked about amendments — to protect the vulnerable from this kind of coercion?
Ms. Carr: Thank you very much, senator. Yes, the Roger Foley story is one of many and, as you just mentioned, there are other stories very similar to those documented. We certainly have a bunch of them we’d love to send to anybody who would like to see.
Senator Plett: I would appreciate that.
Ms. Carr: Absolutely, we will follow up with that.
To answer your question, does it offer protections against the coercion? No, it doesn’t. As we’ve seen, particularly in this global pandemic, the systemic ableism that exists in the health care system toward people with disabilities is something we’ve always known about. The curtain has really been pulled back on it and we have tons of examples of everything from triage protocols that de-prioritize the lives of people with disabilities when life-saving equipment is scarce, through to people without COVID symptoms coming to the hospital during the pandemic who have a disability being asked if they have a DNR or a MAID order on file.
We believe firmly that the only real safeguard that will fundamentally protect people with a disability in this country from the kind of systemic ableism and the subtle or not-so-subtle coercion that happens is to maintain the end-of-life criteria as the criteria for accessing medical assistance in dying in this country.
I don’t know if any of my other colleagues wanted to comment.
Senator Plett: Thank you. Please, Ms. Brayton or Ms. Hasbrouck, I haven’t been able to understand you well. I will read your testimony clearly, but if you have a comment on this, please, jump in.
Ms. Brayton: Thank you, Senator Plett. I will add to what Krista just said. In the written submission I will be providing, we have an impact of COVID-19 on women with disabilities that speaks to the linkages between the further degradation of the quality of life for women with disabilities and, now, a strong preoccupation with MAID being the only thing left that they have to think about because they’ve lost hope.
There needs to be much more evidence heard, Senator Plett, and I think it’s quite clear, as Krista has said, that the only thing we can do to make sure nobody loses their life because we have not looked at this properly before passing this legislation is to take a step back. As I said before, it is to understand that we have an aspirational country that wants to believe we can offer MAID and nobody will lose their life who shouldn’t, but it’s simply not the case. The evidence shows to the contrary. There is strong evidence. Multiple years of the majority of human rights complaints have been disability-related. There’s just too much evidence.
Thank you, sir, for asking.
The Chair: Ms. Hasbrouck, when you answered, I know you wanted to add something to Senator Petitclerc’s question. May I ask that after you answer Senator Plett’s question, you go on to answer Senator Petitclerc’s question?
Ms. Hasbrouck: Thank you very much. Yes, I wanted to support what Krista Carr said in that the motivation behind the movement for assisted death is this idea that it’s better to be dead than disabled. That applies regardless of whether a person has a terminal illness or not. In fact, everyone who is affected by assisted death is a person with a disability [Technical difficulties] that incontrovertible fact and it’s the basis of our participation in this advocacy.
Bill C-7 does nothing to prevent that kind of discriminatory impact. It does nothing to ensure that all people, especially people with disabilities, receive suicide prevention interventions and the supports they need to live in the community. Those are very important.
I wanted to go back to Senator Petitclerc’s question. She was asking about specific safeguards. As I was saying, the ones we are particularly concerned about are, first, requiring that the person commit assisted suicide rather than doctors authorized by the state to kill particular people [Technical difficulties]; and second, that people need to have palliative care community supports for independent living and suicide prevention intervention before they are even determined eligible for assisted death.
The Chair: Thank you very much. All the senators who wanted to ask a question have asked a question. I want to thank the panellists. We have heard you very clearly, and we have a lot of reflecting to do. Thank you for participating on very short notice.
Thank you to my colleagues. You are really on a marathon race and I appreciate the support you are giving for these long hearings.
We now have our next panel on Zoom. From the Canadian Mental Health Association, we welcome Dr. Andrew Galley, National Research and Policy Analyst; from the Canadian Psychiatric Association, we have Dr. Grainne E. Neilson, President, and joining her is Dr. Alison Freeland, Chair, Professional Standards and Practice Committee; and from the Centre for Addiction and Mental Health, we are joined by Dr. Tarek Rajji, Chief of Adult Neurodevelopment and Geriatric Psychiatry, Professor of Psychiatry, University of Toronto.
To all the witnesses today, we are really looking forward to hearing from you on this issue. I want to thank you on behalf of the committee. Please limit your presentations to six minutes because senators want to ask you lots of questions.
Dr. Andrew Galley, National Research and Policy Analyst, Canadian Mental Health Association: Thank you for the opportunity to speak today on behalf of the Canadian Mental Health Association. My name is Andrew Galley, National Research and Policy Analyst for CMHA’s national office.
My remarks will be summarizing our published position on medical assistance in dying as it relates to mental health with consideration for new developments in the law and on the proposed amendment.
Consistent with our published position, CMHA continues to support the exclusion from the law of mental illness as the sole underlying reason for medical assistance in dying.
The CMHA is a federation of local, regional and provincial associations in all provinces and one territory. Many of our members provide mental health services and some provide housing, employment and other supports. Our provincial divisions and national office advocate for equitable, sustainable investment in mental health and addiction services. We support a recovery-oriented approach to mental health.
To summarize, recovery in the mental health context refers to the idea that people can achieve stability and an active, full life in their communities, with or without the complete elimination of symptoms, if provided the supports that are right for them. We believe that everyone facing mental health issues in Canada has the right to recovery.
In 2017, following the initial passage of the medical assistance in dying law, CMHA published a position paper stating that mental illness is not, by itself, an adequate qualification for MAID. We based this argument partly on the “reasonably foreseeable” death clause, which has now been struck down.
However, that was not the only pillar of our position, nor was it the most compelling one. The law then and the amended law being proposed also contained the requirement that the condition of the applicant be “grievous and irremediable,” and that the applicant be in an advanced state of decline in capabilities that cannot be reversed. Our position is that there is inadequate evidence to determine, with the certainty that such a serious decision requires, that any particular case is irreversible and irremediable, and that there is sufficient research evidence — although more research is needed — that many cases that appear resistant to treatment in fact show recovery over time.
There is no question that mental illness can be a grievous condition, and it is perhaps unfortunate that some of the language used in discussions of the new law might be interpreted as glossing over that fact. Suffering from a mental illness is just as real as suffering from physical illness, and in some people, that suffering may be intolerable and resistant to treatment.
However, the research evidence shows that optimism is a rational attitude to serious mental illness; with the right supports, including health care and social and economic supports, recovery is possible. Our priority must be to ensure that these supports are available to everyone in Canada who needs them. Future research might clarify the extent to which a particular case could be accurately diagnosed as “irremediable” even with treatment and supports, but currently we lack any rational basis, even for experts, to accurately detect which patients cannot recover.
I turn next to the requirement for irreversibility. The episodic recurrence and remission of symptoms is a well-known feature of serious mental illness. Indeed, it is a feature that adds to the social and economic costs imposed on those who experience mental illness since they are often unable to prove their eligibility for disability supports such as the disability tax credit and the benefits that are dependent on eligibility.
This pattern of recurrence and remission is particularly relevant for major depressive disorder, which the WHO has identified as one of the most prevalent causes of disability worldwide, and for Bipolar Affective Disorder. When those symptoms include hopelessness and suicidality, extreme caution is called for. There is, of course, no more irreversible condition than ending one’s life.
Finally, I turn to the important question of non-discrimination, which has been raised as a criticism of the proposed law, specifically with regards to the explicit exclusion of mental illness. The CMHA maintains that people experiencing a mental illness or mental health issues do not lose their ability to make independent medical decisions, including regarding a request for medical assistance in dying, where they are otherwise eligible. That is, when they are suffering from an irremediable and irreversible decline from a condition that fulfills all the requirements of the law, CMHA believes the exclusion of mental illness as the sole underlying condition is a distinction based on the likely course of the illness and not on the validity or severity of the condition itself. Those who would otherwise qualify for MAID should not be excluded on the basis that they also experience a mental illness.
That concludes my remarks, and I thank the committee for inviting CMHA to speak today.
The Chair: Thank you.
Dr. Grainne E. Neilson, President, Canadian Psychiatric Association: Thank you, Madam Chair. Thank you for the opportunity to be here today. I’m here in my capacity as President of the Canadian Psychiatric Association. I’m a forensic psychiatrist in clinical and academic practice and I have long been interested in mental health law, human rights and professional ethics.
I will start by saying that within psychiatry there are divergent opinions regarding the provision of MAID as well as whether access to MAID should be permitted solely on the basis of mental disorder. The CPA has not taken a position on whether MAID should be available where a mental illness is the sole underlying medical condition. However, we do believe that any new legislation must protect the rights of all vulnerable Canadians without unduly discriminating against those with mental disorders.
The currently proposed exclusion criteria are at odds with decades of public work to destigmatize mental illness and also appear to be at odds with the UN Convention on the Rights of Persons with Disabilities, which has the primary purpose to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity.
The distinction drawn between mental illness and physical illness is inconsistent with the available medical evidence. In fact, there is a strong overlap between physical and mental illnesses. Certain mental illnesses, like dementia, can have mental manifestations, and certain physical illnesses, like Huntington’s disease, can have mental manifestations. Furthermore, vulnerability is not limited to those with mental illnesses. Many people with nonpsychiatric illnesses are also vulnerable because of psychosocial circumstances such as social isolation or poverty, cognitive distortions and demoralization due to failed treatment attempts, or difficulty adjusting to life with their illnesses.
The trajectory of physical illness can be as unpredictable as that of mental illness. Demoralization and loss of hope can occur, as can spontaneous remission. Predicting treatment outcomes is as much a challenge for psychiatry as it is for the rest of medicine. The CPA supports the need for safeguards and the assessment of eligibility requirements. Psychiatrists have specialized training and expertise in the assessment, diagnosis and treatment of mental illnesses, including the assessment of decision-making capacity as well as the durability, stability and coherence of a person’s expressed will and preferences. Psychiatrists are well versed in taking into consideration any external constraints or any internal psychopathology that may impact these issues.
Bill C-7 speaks to the requirement for informed consent and that reasonable and available means of alleviating a person’s suffering has been discussed and seriously considered before MAID could be provided. While the CPA supports this clause, we note that it fails to address inequities in service provision and funding for all types of conditions, and is an area particularly problematic for people living with mental illness. Such inequities are further exacerbated for people who live in rural or remote areas. The currently proposed safeguards are hollow if they are not practically available to all Canadians.
In conclusion, whether the illness is physical, mental or a combination of both, equitable access to clinical services is an essential safeguard to ensure that people do not request MAID due to a lack of available treatments, supports or services and as an alternative to life. Regardless of options on MAID, what any psychiatrist or health care professional wants for their patients is timely access to appropriate treatment and services. The CPA urges the government to ensure that this legislation will protect the rights of vulnerable Canadians without unduly stigmatizing and discriminating against those with mental disorders.
The Chair: Thank you very much, Dr. Neilson.
Dr. Tarek Rajji, Chief of Adult Neurodevelopment and Geriatric Psychiatry, Professor of Psychiatry, University of Toronto, Centre for Addiction and Mental Health: Thank you, members of the Standing Senate Committee on Legal and Constitutional Affairs. Thank you for the opportunity to appear before you to discuss Bill C-7 and specifically the amendment that persons whose sole underlying medical condition is a mental illness are not eligible for MAID.
My name is Tarek Rajji. I’m a Professor of Psychiatry at the University of Toronto and Chief of Adult Neurodevelopment and the Geriatric Psychiatry Division at the Centre for Addiction and Mental Health, or CAMH, in Toronto. CAMH is Canada’s largest mental health teaching hospital, and one of the world’s leading research centres in its field. CAMH uses its expertise in clinical care research, education and system-building to improve the lives of people impacted by mental illness, including those with substance use disorders.
Since 2015, a working group of CAMH staff with expertise in psychiatry, social work, law, ethics, public policy and lived experience have been deliberating regularly on MAID and mental illness. It is our collective, expert opinion that Bill C-7 gets it right. We agree that there should be a temporary prohibition on MAID for those whose only medical condition is mental illness until, as the bill’s preamble states, further consultation and deliberation determine whether it is appropriate and, if so, how to provide MAID to persons whose sole underlying medical condition is a mental illness in light of the inherent risks and complexity of the provision of MAID in those circumstances.
The reason we support this temporary prohibition is that there is currently a lack of consensus in the mental health field to determine when an individual has an irremediable mental illness. To explain further, to be eligible for MAID, an individual must have a grievous and irremediable medical condition. Their illness, disease or disability must be incurable, irreversible or irrecoverable and cause intolerable suffering.
The grievousness of an illness is subjective, and there is no doubt that some people with mental illness experience intolerable psychological and sometimes physical suffering due to their symptoms.
The irremediable nature of an illness, however, is an objective determination that must be based on the best medical evidence available. CAMH’s concern is there are currently no established criteria that define if and when a mental illness should be considered irremediable. That is because there is simply not enough evidence in the mental health field at this time to predict the trajectory of any one person’s mental illness and to ascertain whether an individual has an irremediable mental illness. This means that the irremediable criteria would be open to interpretation by each MAID assessor. Any determination that a person has an irremediable mental illness would be inherently subjective and therefore arbitrary. This could put people with mental illness at risk of accessing MAID when they do not actually meet the eligibility criteria.
CAMH therefore strongly recommends that evidence-based criteria be developed prior to any decision to lift the temporary prohibition on MAID for people whose only medical condition is mental illness. These criteria should establish a consensus definition for when a mental illness should be considered irremediable for the purpose of MAID.
CAMH recommends that the government appoint an expert working group to develop these criteria within a reasonable time frame, recognizing the complexity of the task. The working group should develop the criteria in consultation with a broad range of experts in the mental health field, including people with lived experience of mental illness and family members. The introduction of these evidence-based criteria should be accompanied by training for MAID assessors. CAMH would be happy to participate in the development and dissemination of the criteria.
Thank you again for the opportunity to speak with you today on this complex and nuanced topic.
The Chair: Thank you, doctor.
Senator Petitclerc: I would like to thank our three witnesses for being here today.
In fact I’d like to have a few more details about the risks involved.
We all know that when Bill C-7 was drafted to extend access to medical assistance in dying, the government had several options. It could have left mental illness out of the discussion altogether, it could have completely excluded any access to medical assistance in dying when mental illness was a factor, or, as is the case here, it could exclude mental illness when it is the sole underlying medical condition. That is what Bill C-7 does.
However, it would seem that there is no consensus and that opinion may be divided. I am interested in this, Dr. Rajji, and while you have spoken at length about the risks and complexities, I would also like to hear what the other two witnesses have to say about it.
So with respect to the associated risks and the complexity of the trajectories, can the other two witnesses give us their thoughts on the matter?
Dr. Rajji: If I understand the question, this question is directed to the other two witnesses.
Senator Petitclerc: Yes. Maybe I got lost in translation. My question was addressed to the other two witnesses, to have their input on what you described in terms of risk and the trajectory and complexity of the issue. I wanted to hear the other two witnesses on the same topic.
Dr. Galley: I’m not totally sure I understand the question.
Senator Petitclerc: Let me try again in English. With the exclusion of mental illness as a sole criterion to have access to MAID, what we hear is that opinions are divided among the experts. That’s what we hear. But then we also talk a lot about the risks that are associated with mental illness not being excluded at this time. Dr. Rajji did talk about those risks and complexities, and I wanted to have your opinion on that as well.
Dr. Galley: The CHMA’s position is closely aligned with what Dr. Rajji suggested. Maybe I could have been clearer in getting it across. There are risks. There is evidence, for example, that if you have a cohort of people who have major depressive disorder, a substantial number of them will experience recovery to one extent or another — so either the remission of all their symptoms with treatment and supports or achieving a place of stability where they may still be experiencing symptoms but they feel that there is meaningfulness and that their lives are worthwhile despite living with symptoms.
One of the risks is that, as it stands, if you were to ask experts who are involved with their treatment at the beginning of that cohort who is going to recover and who is not going to recover within a three-to-five-year time frame, for example, the accuracy of the prediction would be fairly low. Insofar as you rely on deciding someone’s eligibility for medical assistance in dying on experts signing off on saying this person cannot recover, the confidence is not there right now. The evidence suggests the lack of consensus is not just a philosophical one about whether this ought to be available. The lack of consensus is also a clinical one on who has an irreversible or irremediable case of a particular diagnosis.
The Chair: Dr. Neilson, Senator Petitclerc’s time has expired, but since there was a little confusion, can you please answer within a minute?
Dr. Neilson: The CPA does not take very much issue with the opinion that was expressed by Dr. Rajji. There are compelling and, at times, competing legal, clinical, ethical, moral and philosophical questions that make this issue really challenging. On the one hand, we want to respect and accommodate the autonomous choices of people with mental illnesses and promote social inclusion. On the other hand, there are societal and medical ethical principles of benevolence and non-maleficence, as well as the desire to protect potentially vulnerable people from the irreversible consequences of their decision. Each of those impulses is quite understandable, but they can each be a source of abuse and discrimination, and that’s where safeguards are important.
The Chair: Thank you.
Senator Carignan: My question is for the physicians, and it pertains to the concept of “mental illness.” As I understand the bill, mental illness would not be a ground or reason for requesting medical assistance in dying. However, the document accompanying the government’s bill tells us that some mental illnesses would not fall under the exclusion. This would mean that people suffering from neurocognitive disorders, neurodevelopmental disorders or other conditions that could affect cognitive capacities, like dementia, autism spectrum disorders, or intellectual disabilities, could have the right to medical assistance in dying. As an expert, can you tell me whether mental illness is excluded from medical assistance in dying? If so, how can you end up with a document that is not in the act, that supports the adoption of the bill, and that provides a definition, an exclusion of the definition of the term “mental illness” which includes these concepts?
Dr. Rajji: If I understand correctly, the first part of the question is whether mental illness should be excluded from the bill.
Our position at CAMH is that mental illness alone should not be the reason why mental illness is excluded as a sole condition. The reason why we are saying that there should be a temporary prohibition on mental illness is because, like with any other illness, the individual has to meet the criterion that the nature of the illness is irremediable. And that criterion, the irremediable nature of the illness, has not been defined for mental illness.
Our position is that before this definition is well understood and this criterion is well defined with respect to mental illness, which could be a different definition than with respect to another physical illness, including some of the neurodegenerative diseases like Alzheimer’s, we are in support of temporarily excluding mental illness as a sole condition for Bill C-7. I don’t know if that answer captured the question correctly.
Senator Carignan: Allow me to clarify my question. Do you feel that someone with Alzheimer’s disease who is not yet showing any signs of physical disabilities, but who has intellectual disabilites, is eligible for medical assistance in dying, based on your reading of the bill?
Dr. Rajji: Alzheimer’s disease is more often a neurodegenerative disease. There are clear markers that define its trajectory. We perceive that as outside the scope of mental illness from a CAMH perspective. It is different from other mental health conditions like depression, schizophrenia or bipolar where we don’t know the underlying biological mechanisms and we have less certainty regarding their trajectories. When we refer to mental illness, we are not referring to these neurodegenerative diseases that, in certain conditions, have clear trajectories that could predict, based on the symptoms’ presentation, what a person’s clinical condition could be in three to five years from now.
The Chair: Thank you.
Senator Batters: First of all, I want to thank all of you on the panel for everything you do to help people struggling with mental illness, especially during this pandemic when these issues have been more pronounced.
My first question is to the Canadian Mental Health Association’s Dr. Galley. First of all, I wanted to tell you how well-put I thought your opening presentation was. Thank you. The CMHA’s position paper on medically assisted suicide states this:
Psychiatric patients often look to their psychiatrist or medical practitioner for answers, and if death, rather than recovery, is considered a medically-viable option, the resulting lack of hope may cost them their lives.
And further, you state:
Overall, CMHA’s position on medical assistance in dying in Canada, is that people with a mental health problem or illness should be assisted to live and thrive.
I’m very happy you’re testifying in front of our Senate Legal Committee since you didn’t testify at the House of Commons committee, and I know that you are a key voice for the millions of Canadians who struggle with mental illness. What safeguards would you like to see in Bill C-7 to better protect Canadians with mental illness?
Dr. Galley: I think that this is an issue where we are still doing our homework on the updated circumstances. In the springtime, we did do some opening work on an update to our position, given the Truchon decision. We really wanted to flesh out our position on why we believe in recovery and the context of that.
I’m going to confess that we don’t really have a well thought out response to sort of how we think the safeguards should be improved from Bill C-7. Mostly, we were pleased to see that mental illness was excluded as a basis for MAID. As you say, with the pandemic and its impacts on our operations, we’ve been looking at other things for the past few months.
Senator Batters: Absolutely.
Dr. Galley: As this process moves forward, I’m sure we’ll have more to say. Unfortunately, right now, I’d be improvising on any suggestions.
Senator Batters: I think it’s the case, perhaps, that the government is rushing this too much as well, given the pandemic and these types of issues, if a well-known national organization like CMHA has not had the proper time to do the consultations. That’s not uncommon.
My second question is to the Canadian Psychiatric Association. I’m glad to hear in your opening statement that you talked about the gulf that exists, even within your organization, with respect to this issue. I understand there was a survey done by the Canadian Psychiatric Association in 2016 that showed that while 70% of Canadian psychiatrists supported MAID in general, less than 30% opposed excluding mental illness as a sole indication for MAID.
I also understand that in recent years, membership of Canadian psychiatrists in CPA has dropped to below 50%, dropping to 44% in 2018 and 41% in 2019. Given that — and I know that CPA has faced some criticism regarding the lack of psychiatric engagement in developing the position on MAID — how representative are the views you’re espousing today as far as Canadian psychiatrists?
Dr. Neilson: Thank you for that question. The CPA has engaged members on this issue since 2016 through surveys, time-limited task forces and symposia at annual conferences. Most recently, as a result of changing societal opinion regarding the acceptability of MAID as a medical intervention, we’ve been gathering information on the range of opinions among CPA members through a new survey, member town halls and a call for written comments from our members. This has been bolstered by feedback from members of the provincial psychiatric associations as well as the psychiatry subspeciality academies: child, adolescent, geriatric, forensic and consultation psychiatry.
We don’t think there will be a clear consensus with respect to whether access to MAID should be permitted solely on the basis of mental disorder. We’re still in the process of gathering the perspectives of our members, but I suspect there will continue to be a diversity of medical opinions, such as there is in other sectors of society. The best you can do is determine which medical opinions you feel are the most relevant.
Senator Batters: Thank you.
Senator Campbell: Thank you to the witnesses for coming today. I wish I could bank question time because I have a lot of questions here.
The first thing I want to ask is this: Is a person who is diagnosed with mental illness capable of informed consent, or does that depend on the diagnosis of the mental illness?
Dr. Galley: I would say the default answer should be “yes,” unless it’s proven otherwise. Mental illness does not remove a person’s ability to consent and to make medical decisions about their life.
Senator Campbell: Okay.
We use the word “possible” versus — I suppose the opposite would be — “probable.” I’m thinking of cancer, for instance. A doctor says you have stage 5 cancer; this is not great news, and the probable result is that you will die. We use this here as possibly being able to help the person with the mental illness versus the probabilities.
I think anything is possible, but what are the probabilities that you can do that? It sounds like it’s fairly high. Dr. Galley, is that true?
Dr. Galley: The probability depends upon the diagnosis, and it depends upon the individual circumstances of the person. But I would say that the evidence shows there is quite a high probability of achieving some level of recovery, so that’s either the remission of symptoms or reaching a stage where the person feels they have control and purpose in their life, even though they may be living with symptoms, assuming they get the treatment and supports that are appropriate for them.
Senator Campbell: Finally, you said in response to Senator Batters’ question that you haven’t had the time to develop a plan. How much time would you need to do this? This is important.
Dr. Galley: I think that not having enough time isn’t quite the way I would put it. I would say that once we saw that mental illness was excluded as the sole underlying reason for MAID, and in the context of the pandemic, which scrambled a lot of our front-line operations and took up a lot of our attention, we have not been prioritizing and looking at this issue. So if it were necessary to do so, I’m sure we could do so within a matter of a few months, perhaps. It would depend upon what the level of detail would be and who the audience would be, of course.
Senator Campbell: Thank you very much.
Senator Dalphond: My question is for Dr. Neilson.
I understand, Dr. Neilson, that you are in agreement with the two other associations about the fact that there’s a high potential of recovery for those suffering from mental illness. At the same time, I understand your association finds that it would be discriminatory to exclude altogether those suffering from mental illness by legislative decree.
So what are you proposing in terms of safeguards if we’re going to include mental illness as a possible illness for the second track? What kind of safeguards should we put in place?
Dr. Neilson: Was that question to the CPA?
Senator Dalphond: Yes, to you, Dr. Neilson.
Dr. Neilson: Thanks for that question. First and foremost, as psychiatrists and as a society, we have to make sure that vulnerable Canadians have access to appropriate evidence-based care and have available to them a wide range of appropriate supports and services so they can fully and effectively participate in society on an equal basis with others, so that they are not choosing MAID as a substitute for that. Consent to an intervention such as MAID is not valid if it’s coerced or is the result of having no other choices.
Additional safeguards that might need to be addressed through regulation include things like making sure the quality of the medical evidence being used to assess eligibility for MAID is of the highest possible medical standards, and that’s a question of the standard of medical evidence that should be required to make determinations of capacity.
Second is the establishment of standards related to the assessment process and procedures so that the manner in which the eligibility criteria are being applied across the country are uniform and in keeping with the legislation’s intent such as, perhaps, through the establishment of an effective oversight process that’s both prospective and retrospective, and then, of course, research and evaluation into the policies and practices that are put in place.
I think there are a number of safeguards that could assist with protecting the vulnerable.
Senator Dalphond: Do you agree with the other experts, including the Council of Canadian Academies, who say the knowledge is not certain about mental disorders, and we need more research about it? Does that call for precautions? Unless we have more information, should we prevent people suffering from mental disorders as the sole condition to access the second track to MAID as a matter of precaution?
Dr. Neilson: I guess that is a legislative decision. As I mentioned in the brief, it is very difficult to differentiate physical conditions that have a mental aspect from sole underlying mental conditions. That makes it very difficult to create a separate category of people who might be eligible for MAID.
Senator Martin: Thank you to all the witnesses.
It has just raised more questions about the timing of everything. If I may continue on the question from Senator Dalphond to Dr. Neilson, when you talked about the three safeguards that you think would be needed, that would include standards for the assessment process, effective oversight and you mentioned one other. I would imagine it would take quite some time to develop those.
Are these safeguards already in place? We’re talking about Bill C-7 right now, not six months from now or a year from now. We’re going to be dealing with this bill potentially next week. Could you confirm that these safeguards you mentioned are in place? If not, how long would it take to realistically put them in place?
Dr. Neilson: Thank you. I can’t say that there are the breadth of safeguards that could be in place to ensure that vulnerable Canadians are not made even more vulnerable by this legislation. I don’t know how long that would take, but I can tell you that our association has been working on this since 2016.
Senator Martin: Yes, I know. You had mentioned that, but you had also said that you’re in the process of gathering feedback from your members. That was four years ago. If we’re looking at legislation and Bill C-7 starting next week, going into second and third reading, these safeguards you mentioned that would be essential — it doesn’t seem like we are ready for this bill, even if we were to do something to actually have it ready for consumption and to be available. We don’t have the safeguards in place for these vulnerable individuals.
Let me ask Dr. Rajji a question. When you said that we would need trained MAID assessors in Canada, what would that mean for those suffering from mental illness? Do we have enough MAID assessors to adequately provide accurate assessment for such individuals?
Dr. Rajji: What I meant by that is that we need to train more psychiatrists to do these assessments. Specifically, I was also referring to the fact that after we developed the definitions of this specific criteria, then we need to train psychiatrists to be able to apply this criterion to individuals because it is very complex and nuanced. If we end up reaching a definition for the irremediable nature in the context of mental illness, then we need to train the psychiatrists how to apply it because it is complex and nuanced to separate when an illness is potentially remediable and when it’s not, given the diversity in trajectories at the individual level.
Unlike some physical illnesses where, yes, there are probabilities, and sometimes higher probabilities than others, for many mental illnesses, including severe mental illnesses, some of the longitudinal studies show that 30% of people go into remission, 30% stay the same and 30% get worse. So you can see there is a lot of uncertainty at the individual level in what group out of these three they will be in. This is where training will be needed once we reach a definition for how to define “irremediable” in the context of mental illness.
Senator Martin: It’s very complex. Based on what all of you are saying, I feel we need more time and to be very careful with this. Thank you very much.
Senator Boyer: My question is for Dr. Galley. It has to do with Indigenous people and suicide.
We know that many Indigenous people commit suicide or contemplate suicide because of the ongoing challenges relating to socio-economic inequalities, intergenerational colonial trauma and a lack of access to mental health services. In fact, suicide rates among First Nations, Métis and Inuit are significantly higher than among non-Indigenous peoples. For Métis, the rate is two times higher. For First Nations, the rate is three times higher. For the Inuit, the rate is nearly nine times higher.
Because Bill C-7 repeals the “reasonably foreseeable” death clause, could the same factors that lead to a higher suicide rate among Indigenous populations also contribute to an increase to Indigenous people seeking access to MAID?
Dr. Galley: Our attention on this issue has been focused on the question of inclusion for mental health reasons, so insofar as mental illness is excluded from Bill C-7, I would say no.
On the other hand, if you’re suggesting that Indigenous people who live with disabilities that might be eligible under the law as irreversible and irremediable conditions, might they be more likely than non-Indigenous Canadians with the same condition to seek MAID because of a lack of access to services? It certainly seems plausible, but I wouldn’t say that I have an expert opinion on that or that CMHA has an opinion on that. It is definitely true that Indigenous mental health is of great concern to us. I think the complexity or nuance in your question would be: Will that difference in inequity and the colonial trauma and the results of systemic racism result in people applying for MAID on the basis of mental illness? They’re not eligible for MAID on the basis of mental illness under the law. So in theory, no.
However, if it’s co-morbid with other conditions that might be eligible and you have a particular segment of the population, such as Indigenous people in Canada who already struggle to access appropriate supports and health care, it is definitely an issue that ought to be considered.
Senator Boyer: And especially in mental health care. Thank you very much for your answer.
Senator Boisvenu: First of all, I would like to thank our guests for discussing these exceedingly sensitive, difficult and complex subjects with us.
Dr. Rajji and Dr. Neilson, it seems to me that Bill C-14, which was adopted in 2016, and Bill C-7, which we are studying in 2020, have something in common. There is a common factor that would result in many people being left high and dry because the research has been slow in coming for all kinds of reasons. Once again, I think the courts will have to deal with the problem rather than you, the doctors who do the research.
So in your everyday practice, what do you say to all the patients who want the same rights as people with physical illnesses? Would you tell people suffering from serious mental illnesses that make life practically impossible that they can’t have the same rights as other patients suffering from different kinds of illnesses? What do you tell them?
Dr. Rajji: Thank you for the question. I’m not saying that I don’t give the same rights as I give to other Canadians, if that’s the condition. I completely agree that everyone has to have equal rights, and that’s why we also believe that mental illness should be treated the same as any other physical illness or medical condition.
What I would say is that I need to be mindful of the fact that when I’m trying to deliver evidence-based medicine, I need to also understand and define the medicine that I’m practising. If one of the factors of medicine is to define the criteria the same way there are definitions of capacity, age and suffering, I think we are now facing a definition that we’re applying to the —
Senator Boisvenu: Dr. Rajji, I was around in 2016 when Bill C-14 was being studied and my impression is that we’re still getting the same answers five years later about the limited knowledge and the uncertainty.
However, for people who are suffering and who want to terminate their lives in a way that I would describe as very honest and lucid, because they are truly suffering from illnesses that make their lives impossible, how long will it be before medicine can meet their expectations given current knowledge, which seems to be progressing extremely slowly in psychiatry and other specialized fields of medicine?
Dr. Rajji: Again, what I’m saying is that we need to practise evidence-based medicine. That’s why, in our opinion at CAMH, there is a difference between intolerable suffering and grievousness and the irremediable nature of an illness. When talking with my patients, I emphasize hope and that even though they’re suffering now, I really can’t tell my patient whether the suffering will not exist next year, or the year after, or next month. This is the current state of our knowledge of mental illnesses. I emphasize a hopeful message because of the fact that we don’t know the trajectory, and the evidence suggests there is likelihood of recovery as well as the likelihood of non-recovery. I cannot tell an individual patient what that specific trajectory is going to be.
That’s why, again, we need to separate, in our opinion, the irremediable definition, which needs to be based on objective evidence, like when someone has some of the conditions that were mentioned, such as Huntington’s disease. We have some evidence about the trajectory which we don’t have versus the definition of grievousness and suffering. I don’t minimize —
Senator Boisvenu: Dr. Rajji, does our current knowledge enable us to make a distinction between something irremediable and something that has an uncertain trajectory? Can you make this distinction today based on what you know?
Dr. Rajji: For many of the conditions of mental illness, we cannot now determine whether an illness is irremediable or not based on much of the evidence. That’s why at this point we need to define how we define this. It’s not a straightforward definition whether an illness is irremediable or not. That’s part of the challenge in our field of mental health.
There has been some work since 2016, including the CCA work, that concluded there is no consensus because more work needs to be done. Unfortunately, this is the current state of the field of mental health and mental illness.
Senator Keating: I heard one of you say that mentally ill patients are most often capable of informed consent. This bolsters a conclusion that I reached recently after speaking with certain psychiatrists and doctors, and I’d like to know what you think about it.
Overall, I’m now feeling that there’s very little difference between a physical illness and a mental illness in that the issue really is whether or not the person living with either the physical condition or the mental condition has the ability to truly assess where they are at the time they request MAID, depending on their condition. There is no doubt that someone suffering from a physical illness is not necessarily, at a certain stage of that physical illness, in a position mentally to make a full assessment of whether or not they should go for MAID or not. This is really an issue, then, that must be discussed and seriously considered by their physician.
I worry that we are concentrating very significantly on definitions that we will never have an answer to. I want to know what you thought of that position. That question is to whomever wants to answer. Thank you.
Dr. Neilson: I can answer in part. Physicians assess capacity on the basis of the prevailing legislative framework. For us, the proper clinical question is: What is the standard of medical evidence that’s going to be required to make a determination of capacity? That’s really a policy or legislative decision.
Currently, our assessment needs a single balance-of-probability standard, but I can tell you that for most capacity assessments that we do as psychiatrists, when the stakes for the individual or for society are very high, psychiatrists naturally deploy a higher threshold for their assessment of capacity.
What we’re talking about are thresholds that the legislature feels that a person should meet in order that capacity be deemed to be present.
Senator Keating: Isn’t the issue really whether or not they are properly able to make that decision? My question wasn’t about whether the legislation should address it or not. It’s really about the individual, whether physically or mentally ill, and whether the physician feels they are capable of giving informed consent at the time. I know there are restrictions in this legislation about that, but I’m struggling with the issue of the difference in ability of informed consent between both those who suffer from a physical disability compared to a mental disability.
Dr. Rajji: I agree that there are a lot of similarities between mental illness and physical illness, including the suffering. These are illnesses and we need to see them as a whole as illnesses.
However, I don’t agree with the fact that, similar to some physical illnesses, we know in mental illnesses the probabilities of trajectory. An earlier example came about stage 4 cancer. I think when someone is diagnosed with a stage 4 cancer and they are capable, even though there are still probabilities of different trajectories, one trajectory has a much higher probability than another trajectory. The science doesn’t tell us at this stage in mental illness that we have a certain trajectory at a certain individual level that is much more probable than another trajectory. Because of the lack of scientific evidence to determine the higher probability for one trajectory rather than another, we believe it is very hard to define at this time when an illness is irremediable. When there is a 30% probability of going into remission, a 30% probability of staying the same and a 30% probability of getting worse, I don’t think we can say this person has an irremediable illness in many conditions.
It’s not about the capacity. That’s why in our position we go back to the fundamental issue of how we define an irremediable illness in the context of mental illness. That’s not very similar to many of the physical conditions that we think about when we talk about medical assistance in dying.
Senator Keating: Thank you.
Senator Boniface: I’ll try to be brief. It appears from what we have heard today that there is at least a percentage of persons who are provided with MAID who have a mental disorder as a co-morbid condition, and that it is impossible to tell what impact the concurrent mental disorder has on the person’s decision to seek MAID. Would you please share with us your understanding of the logic for allowing persons with a co-morbid condition to seek MAID but denying persons with a mental disorder as the sole condition from seeking MAID. I would direct my question to the Canadian Psychiatric Association. Thank you for being here.
Dr. Neilson: I think that question actually highlights the fact that vulnerability is not limited to people with mental illness and that people who have physical conditions can also have mental conditions that may impact their decision-making. Really, the issue of whether or not someone can make a capable decision is what is important, whether their concern relates to physical or mental disability.
Senator Boniface: Thank you.
Senator Dupuis: I would like to thank the witnesses for being here today. There does not appear to be much medical consensus on the topic of mental illness. Thank you for saying so as candidly and openly as you have because in the legal world, we have to juggle with a number of concepts. If these medical concepts — because we are speaking about medical assistance in dying — are unclear, how could you prevent me from requesting medical assistance in dying, whether or not a biological factor is related to my mental illness?
What I am hearing from you is that we should refuse medical assistance in dying to people because there is no medical consensus. We have moved away from a regime that completely prohibited medical assistance in dying to a regime that was introduced in Quebec in 2010, whose criterion was the ability to give informed consent.
Are we going to regress on this issue because of a lack of consensus in the medical community?
Dr. Rajji: Our position is that I don’t think we would be going back in time. There was never a consensus around how to define an irremediable illness in the context of mental illness. I don’t think we have actually done the work and that there was a consensus before so that we are going back in time. The capacity is a different definition and different criteria that needs to be there. Our position is that the work has not yet been done to define the irremediable criterion in the context of mental illness.
Senator Dupuis: I wanted to make sure that I had understood correctly. One of the three witnesses told us that under the current act, it is impossible to obtain medical assistance in dying on grounds of mental illness. Did I hear one of our three witnesses say that?
Dr. Galley: Before the passage of Bill C-7 it would not have been possible to obtain MAID unless you were at the end of life. It would have still been the case that you could not apply for MAID on the basis of a mental illness because it’s not a terminal condition.
Senator Dupuis: Thank you.
The Chair: Senators, I know it’s five o’clock, but I found it difficult to cut the discussion off just now.
Senator Pate: Thank you to the witnesses. I want to follow up on Senator Boyer’s and Senator Boniface’s questions, as well as Dr. Neilson’s comments around the need to ensure that consent is valid and that it cannot be if it is coerced or there are no other options.
As we have seen during this pandemic, the lack of adequate economic, social and health supports have meant that there are many people who face situations that look pretty bleak. I’m curious as to why you think at this stage the removal of end of life is a positive move in light of the fact that we see so many individuals and we have heard evidence already today before this committee about the inexorable link between the inadequacy of care and some of the decisions people are making to choose MAID.
Dr. Galley: I would say that CMHA is neutral on the question of whether the removal of the end-of-life requirement is positive or not. I’m deferring to the court decision on that, that it has been struck down on some grounds. Increasing suicidality and risk of self-harm and hopelessness are definitely enormous concerns right now during the pandemic. We have been tracking data showing quite alarming growths in the sense of hopelessness and in having suicidal thoughts among the general population, and even more so within certain groups of people, including those who are already experiencing mental health challenges.
Again, I would make the distinction that with the bill as it is proposed — and it’s possible I’m being naive here because I’m not a legal expert — still excludes MAID solely on the basis of mental illness. At least hypothetically, would a rise in suicidal ideation in the general populace lead to a spike in requests and completed requests for MAID under this legislation? In theory, no. In theory, we would be doing everything we can, and I hope we’re doing everything we can. CMHA is a participant in some federal initiatives on this to prevent suicide and to intervene and to address that concern. At least on a surface reading, if Bill C-7 maintains the prohibition against MAID for solely mental health‑related reasons, then I don’t see how it could contribute to that crisis.
On the other hand, as I said to Senator Boyer, if you have a co-morbidity and you are in a disadvantaged position already, such as being in a group that already struggles to access sufficient supports, then it’s plausible that those factors could all come together.
So if you’re someone who is on the edge of feeling like your life is intolerable and you have co-morbidity with mental illness and this bill removes the end-of-life requirement, you may bring up the subject of MAID when you otherwise wouldn’t.
I’m not sure how much that says about the bill itself. The pandemic is a circumstance that is instituting a mental health crisis. Whether or not MAID is legal in Canada almost seems a bit separate from that.
Senator Carignan: Thank you, my question has already been answered. Thanks.
The Chair: This is our final panel today via Zoom. From the Association québécoise pour le droit de mourir dans la dignité, we welcome Dr. Georges L’Espérance, President, and neurosurgeon. And from Dying With Dignity Canada, we are joined by Helen Long, Chief Executive Officer, and the Honourable James S. Cowan, Chair, Board of Directors, Dying With Dignity Canada, and former senator. Mr. Cowan, as you heard, we miss you.
May I please ask that our witnesses limit their presentations to seven minutes?
Dr. Georges L’Espérance, neurosurgeon, President, Association québécoise pour le droit de mourir dans la dignité: Honourable senators, I would like to thank you very much for this invitation to discuss Bill C-7 with you. I am a retired neurosurgeon who provides medical assistance in dying, and as such, I am a member of a private discussion group in Quebec made up solely of doctors who provide compassionate and ethical end-of-life care, and within this group, it is possible to have extremely useful and informative discussions. There is strong agreement among us with respect to the comments I am going to make, which reflect the association’s deliberations on behalf of our fellow citizens.
In Quebec, from April 1, 2019 to March 31, 2020, 1,776 people received medical assistance in dying, which represents 2.6% of all deaths. As you can see, this is a very low percentage. Neurodegenerative illnesses are the second most prevalent diagnostic category after cancer.
Here are a few comments about the bill. The following are some of the relevant limitations that have been relaxed, particularly for people living alone: first, a written request for medical assistance in dying requires only a single independent witness rather than two; second, allowing people whose occupation is to provide health care or personal care to act as independent witnesses; third, the 10-day reflection period has been removed on the basis of straightforward clinical logic. Our patients who request medical assistance in dying generally have a very lengthy history of illness and are well aware of their circumstances.
Fourth, the waiving of final consent immediately prior to care is also based on the clinical realities we all experience. Our patients will no longer have to reject pain medication in order to remain lucid, nor to fear losing their capacity because of delirium.
We fully agree with the advance written consent clause but suggest that the safeguard measure in subsection (3.4) be reviewed in two years with a view to repeal based on experience.
There are still three major points on which we feel that Bill C-7 should be improved. Firstly, we would like the concept of “reasonably foreseeable natural death” as a safeguard measure to be removed from Bill C-7. The other criteria in bill Bill C-7 have clearly demonstrated that the “most vulnerable” people in Canada need no further protection to guarantee fair and safe access to medical assistance in dying.
We the physicians in the field, and our patients, would yet again find ourselves dealing with a vague non-medical concept, because life expectancy is a construct applicable to averages, and not to any particular individual. It is a useless and redundant measure.
If Parliament still wants to retain this measure, it should at least eliminate the assessment period of at least 90 days. This so‑called “reflection” period is an insult to our patients’ intelligence and suffering.
Repealing this criterion would make the medical assistance in dying decision an objective and strictly medical process.
As for vulnerability, Madam Justice Baudouin analyzed it at length and wrote the following in paragraph 252 of her decision:
...it is not a person’s identification with a group described as vulnerable ... that ought to underpin the need to protect someone who asks for medical assistance in dying, but rather that person’s individual capacity to understand and give their free and informed consent to such a procedure on its own merits.
Second point: as written, Bill C-7 specifically excludes mental disorders. I have listened to your discussions over the past hour with considerable interest. However, it is a real illness with real and sometimes intolerable suffering, and is completely resistant to treatment. Excluding mental health can only lead once again to legal challenges that are unacceptable for the affected patients.
Out of respect for these citizens, and because the issues are complex, we suggest removing this exclusion clause and observing a 12-month legal period of non-application during which the professional bodies from each province could work together and would [Technical difficulties].
Mark Palmer, Clerk of the Committee: The witness has frozen. I suggest we move to the next witness.
Helen Long, Chief Executive Officer, Dying With Dignity Canada: Thank you. Good afternoon and thank you for the opportunity to appear today. For 40 years, Dying With Dignity Canada has been committed to advancing end-of-life rights and helping Canadians to avoid unwanted suffering. Our role here is to represent the 86% of Canadians who support the 2015 Supreme Court Carter v. Canada decision. Our comments today reflect the voices of Canadians that we hear from every day and the results of polling regarding end-of-life issues we’ve done over the years. These results are largely consistent with the extensive government consultations earlier this year.
We are in support of the legislative amendments put forward in Bill C-7, and encourage you to recommend passage of Bill C-7, recognizing the constitutional rights of Canadians, ensuring personal autonomy and demonstrating compassion for that small percentage who may seek MAID to end enduring suffering that is intolerable to them.
We strongly support the removal of the reasonably foreseeable natural death eligibility requirement proposed because of the Truchon court ruling, which found the current law unconstitutional.
Bill C-7 speaks to the right of every eligible Canadian, including those with chronic conditions and who are suffering but not near death, to access MAID. As noted in Carter and reiterated in Truchon, exempting those who are otherwise eligible based on the reasonable foreseeability of their death may cause an individual to end their own life prematurely by violent means or to endure intolerable suffering until their natural death. The Supreme Court has described this as a cruel choice.
Jean Truchon and Nicole Gladu spoke for those who have been excluded from accessing MAID, because their natural death was deemed not reasonably foreseeable. Both indicated that they had lived well, happily and successfully for decades despite the effects of their conditions, but wanted the right to make a decision as to when and how their life ended when they reached the point of suffering that was intolerable to them.
Justice Baudouin, who ruled in Truchon, heard extensive testimony, including from witnesses regarding issues of vulnerability and the concerns that society protect those who may be deemed vulnerable from coercion or pressure related to decisions concerning the end of life. In her ruling, she stated:
In the Court’s view, however, we cannot, in the name of the principle of protecting certain persons from themselves or of socially affirming the inherent value of life, deny medical assistance in dying to an entire community of persons with disabilities precisely because of their disability.
She further stated:
The vulnerability of a person requesting medical assistance in dying must be assessed exclusively on a case-by-case basis, according to the characteristics of the person and not based on a reference group of so-called “vulnerable persons.”
As Nicole Gladu said at the time: “This is a very emotional debate . . . but this is a permissive law, not a coercive one. No one has to choose to die. . . .”
We commend the government on the inclusion of Audrey’s Amendment, allowing waiver of the requirement for final consent for those who are assessed and approved for MAID but who may lose capacity in advance of their scheduled date, something that 85% of Canadians support. Without this waiver of final consent, Canadians like Audrey Parker have been forced to access MAID early because of the significant fear of becoming incompetent.
While we support the timely passage of Bill C-7 as written, we remain concerned with the explicit exclusion of mental illness from the legislation and call on the government to act to address this issue by immediately initiating the parliamentary review mandated in the current legislation.
The eligibility criteria laid out in Carter do not explicitly limit access to individuals whose primary medical condition is physical, nor does having a severe mental illness mean that a person is incapable of making free and informed decisions about their care. According to an article published in the Canadian Journal of Psychiatry:
It is well established that all adult patients are presumed capable with respect to medical decision-making unless proven otherwise.
Suffering caused by severe mental illness is no less real than suffering caused by a physical illness, injury or disability. In many cases, symptoms of severe mental illness are indistinguishable from those caused by a non-psychiatric medical condition. We agree with the comments of the Canadian Psychiatric Association that:
Patients with a psychiatric illness should not be discriminated against solely on the basis of their disability, and should have available the same options regarding MAiD as available to all patients.
The parliamentary review also calls for study of the use of advance requests, access to MAID by mature minors and the state of palliative care. We repeat our call for immediate commencement of the review to allow for a thorough and evidence-based discussion of these issues.
Thank you all for your work on this important issue and for the opportunity to speak to you today.
The Chair: Thank you very much, Dr. Long.
Dr. L’Espérance, would you like to finish?
Dr. L’Espérance: Yes.
Senator Dupuis: Madam Chair, I can explain it to you if you want the details. Dr. L’Espérance suggested removing mental health because it would generate several types of legal challenges. He recommended a 12-month period, but then the sound cut out.
Dr. L’Espérance: Thank you Senator Dupuis. I can take it from here. Out of respect for these citizens, and because the issues are complex, we suggest removing this exclusion clause and observing a 12-month legal period of non-application during which the professional bodies from each province could work together and would be legally bound to delineate a common clinical framework.
This task was carried out by the Association des médecins psychiatres du Québec, and the report should be released soon. The outcome is that any competent person who has been diagnosed with cognitive neurodegenerative diseases like Alzheimer’s should be able to indicate in their written advance medical directives that they wish to receive medical assistance in dying at a time they deem it appropriate for themselves, whatever their cognitive state at that moment may be.
I have an answer now for Senator Carignan. It’s important to make a clear distinction between cognitive neurodegenerative illnesses like Alzheimer’s, Parkinson’s and Huntington’s, and mental health disorders, for the reasons that have been given. Organic Alzheimer type forms of dementia are organic diseases with a biological basis and should be considered as such. Recommendation No. 7 on advance medical directives was already in the report of the Senate and House of Commons Special Joint Committee on Physician-Assisted Dying in February 2016.
To conclude, I would like now to reiterate the AQDMD’s firm and unshakeable position with respect to an absolute ban on medical assistance in dying, subject to criminal sanctions, for people who have always been incapacitated — for example who are severely mentally impaired — or who have become incapacitated without having provided advance medical directives, for that would constitute eugenics.
The above is more explicitely developed in the brief I submitted on November 20. Thank you for your attention, and I am available to answer any questions.
The Chair: Thank you, Dr. L’Espérance.
I remind senators to please not go more than four minutes because these are difficult issues and it’s hard to cut you off. To the presenters, I would ask that you try to keep your answers precise.
James S. Cowan (former senator), Chair, Board of Directors, Dying With Dignity Canada: Thank you, Chair. I appreciate the opportunity to appear before the committee during its pre-study of Bill C-7.
MAID is an issue I have followed closely since Carter, and particularly as a result of my membership on the Special Joint Committee on Physician-Assisted Dying and participation in the subsequent debates in the Senate.
Following my retirement from the Senate in 2017, I joined the board of Dying With Dignity Canada and now serve as chair of the board of that organization. So I obviously support the points made this afternoon by our CEO, Helen Long.
During the few minutes allotted to me, I want to make a couple of points.
First, the legislative framework established by Bill C-14 has, for the most part, worked well for those who have had an involvement with it. There is no evidence of abuse or misuse, which some feared would follow from the introduction of MAID in Canada.
Second, we now have a body of made-in-Canada experience to review as we contemplate changes and improvements to the legislative and regulatory framework. We know what has worked well and what needs to be adjusted. Bill C-7 is the government’s response to Truchon, which held that the reasonably foreseeable natural death eligibility criterion was unconstitutional. It is not and was not intended to be a comprehensive overhaul of the legislative framework established by Bill C-14. That comprehensive review is the purpose of the parliamentary review mandated by Bill C-14, and that was something that the Senate insisted upon at the time.
I urge you to insist that this review be initiated as soon as possible after the disposition of Bill C-7. As part of that process, parliamentarians will have the opportunity to review the three issues identified in Bill C-14 for further study: MAID for mature minors, advanced requests for MAID and requests for MAID where mental illness is the sole underlying condition. That discussion will be informed by the excellent research reports prepared by the Council of Canadian Academies.
In addition, and very importantly, that parliamentary review will examine the state of palliative care in Canada.
Fifth, Bill C-7 represents a significant and welcome improvement to the current MAID regime by removing the reasonably foreseeable natural death eligibility criterion and introducing Audrey’s Amendment. I do share the belief expressed by others that the express exclusion of mental illness as an illness, disease or condition entitling a person to access MAID is discriminatory, stigmatizing and likely unconstitutional. I would certainly support the removal of that clause from the bill.
Against that background and in that context, I urge you to recommend passage of Bill C-7, and insist that its passage be followed as soon as possible by the parliamentary review of MAID and palliative care called for by Bill C-14.
Thank you once again.
The Chair: Thank you very much, Mr. Cowan.
Mr. Cowan, I have a question for you. I respected and admired you when you were in the Senate, and now I respect and admire you even more that, after you have left the Senate, you still continue to serve Canadians. Thank you very much for your service to Canada. Thank you.
Mr. Cowan: You are very kind.
The Chair: Mr. Cowan, you were involved in the first review. In your paper, which I read very carefully, you suggested and have repeated that there should be a review. From what you learned in the first review, can you make suggestions of what we should absolutely make sure is in the second review?
Mr. Cowan: On the three issues that are identified there — and further than that, the state of palliative care in Canada — I think it would be an opportunity for parliamentarians, which I hope would include senators and not just members of the House of Commons, to review and look at what I described as the-made-in-Canada evidence, which is the experience we actually have here: Talk to the folks who have lived this experience — the assessors and providers, the family members of those who have accessed MAID and maybe family members of those who have tried to access MAID and have not been able to do so. I don’t think we need to look beyond our borders; we know what’s worked and what we need to look at.
There’s an opportunity to improve what I consider to be an excellent medical assistance in dying regime, which has been established by Bill C-14. The review is timely and, as you know, there are many pieces of legislation that are passed by Parliament that call for legislative reviews that, for one reason or another, never take place. So I urge you to make sure that it does take place.
The Chair: Thank you, Mr. Cowan.
Senator Petitclerc: Thank you to our witnesses. Thank you, Mr. Cowan, for your insistence on this parliamentary review. I, too, am looking forward to it. Many of our colleagues, I believe, will have questions on mental illness, but I want to get some answers from both our witnesses.
For our two witnesses, I would simply — and you may have heard this somewhat earlier — like to say something, and that is that we have heard from witnesses who represent a number of groups of disabled people who are very worried about the fact that Bill C-7 makes them vulnerable.
That’s not how I understand this bill, which I think is consistent with what Truchon and Gladu were trying to do, and gives people the right to make these kinds of decisions and hence the right to autonomy.
In short, I would like to hear what you have to say about the safeguards in this second track and would like to know whether you consider them suitable and adequate. Do you deem them adequate to address the concerns of these groups?
Please go ahead, Dr. L’Espérance.
Dr. L’Espérance: I did not hear the groups representing persons with disabilities today, but I have heard them speak before, including in the House of Commons.
I believe that there is a relatively simple answer to that. The safeguards in the current act, Bill C-14, strike me as adequate. It’s true that some groups representing disabled people say that the act will lower their generally perceived quality of life, but my view is that this concern, while legitimate, is not real.
It’s important to understand that the request for medical assistance in dying comes from the individuals themselves. They are the ones who request medical assistance in dying, and all the other required criteria are spelled out.
It has also often been said that a person diagnosed with serious spinal cord paralysis could request medical assistance in dying in the following week. No physician, and it’s a neurosurgeon speaking here, would agree to it, because time is required for rehabilitation, healing, etc. Physicians attending to a quadriplegic would not consider that person eligible for at least 7 to 10 years, or even longer, after all the rehabilitation and social reintegration processes have been attempted.
If you would like me to say something about that — even though I believe it has already been discussed at length — the main factor that we look at as physicians is that these people are in any event would have to bring legal challenges and, as Senator Cowan said just now, the end result will inevitably be the same.
However, the important point is that it is essential to take all necessary clinical precautions and to provide clear and more restrictive guidelines for patients with mental disorders; but they definitely have the right. Mental disorders are pathologies that cause extreme suffering to some people.
Waiting periods can be set. There is a great deal of soul‑searching on this topic in my brief. For example, what should the waiting period be for a patient with a mental disorder pathology?
I hope that I have answered your question, at least partly.
Senator Carignan: It’s always a pleasure to see my friend Senator Cowan. Welcome.
I would like to begin by thanking Dr. L’Espérance for his detailed explanation of Alzheimer’s disease and mental illness.
The problem, in my reading of the section in the Criminal Code about the exclusion for mental illness, is it doesn’t provide any technical details of the kind used in the medical community, and I worry that someone with Alzheimer’s disease might be discriminated against and not allowed to have access to medical assistance in dying, mainly because of this exclusion.
I also feel that patients with Alzheimer’s are discriminated against, and I’ll explain why. With this disease, the brain stops working properly long before there are any physical symptoms. So when there is physical decline, the brain no longer has the capacity to consent and there was no advance request. A person whose physical condition declines before their brain does can still request medical assistance in dying, which is not the case for people suffering from Alzheimer’s. That’s why I’m interested in your suggestion concerning advance medical directives, which I think could be a tool or a means for decreasing potential infringement of the constitutional rights of people suffering from Alzheimer’s.
I would now like to hear from both of you, Dr. L’Espérance and Senator Cowan in particular, on this aspect of discrimination against patients with Alzheimer’s.
Dr. L’Espérance: From a strictly medical point of view, Alzheimer’s, vascular or other kinds of dementia are identifiable physical and biological diseases that should be included in the strict medical assistance in dying framework.
The problem — and you have explained it very well — is that the patient gradually loses the ability to request medical assistance in dying. That’s why it needs to be included, when diagnosed, in the advance directives framework. Once again, the senators’ recommendation No. 7 from four years ago said the same thing. Suppose someone is diagnosed with a pathology of Huntington’s or Alzheimer’s disease and they decide that if certain conditions are met, even once they are no longer capable, they wish to obtain medical assistance in dying. This raises a problem for the decision-maker, but nothing is insurmountable in matters of this kind. Especially as I am addressing senators, I believe that we would answer one of the major issues that our patients, Canadians, are facing, by saying: “I have a father or a mother who suffered from Alzheimer’s, and I don’t want to end up like that; I want to die in dignity and not have to end my days by shooting myself.”
That’s the short answer. The medical answer is that these are medical pathologies that need to be treated as such. Cognitive capacities often give up before physical ones, but we can overcome this fear thanks to advance medical directives. I hope I have answered the question.
Senator Carignan: Yes, thank you. Senator Cowan?
The Chair: Senator Campbell.
Senator Carignan: Excuse me, but I did not hear Senator Cowan’s answer. My question was for him too.
The Chair: Senator Cowan, may we hear your answer?
Mr. Cowan: Thank you. I’m obviously not a clinician, so I can’t comment on that.
I look at it this way, Senator Carignan: Bill C-14 and Bill C-7 are all about individual choice. This is not about societal choice. It’s not about someone imposing a choice on someone else. It’s giving people the right to these constitutionally guaranteed rights. Every case has to be assessed on an individual basis, and it’s a clinical assessment by trained clinicians. It’s not legislators or judges who second-guess the clinical assessment that a clinician or two clinicians will make of that individual.
As Justice Baudouin said in Truchon, there is a danger in placing individuals in larger groupings and categorizing them according to abilities or disabilities. They should be assessed as individuals, and assessed by the clinicians.
There’s nothing in this bill, apart from the limited application of Audrey’s Amendment, which would allow for advance requests. This advance request is an issue that we certainly talked about back in the Bill C-14 days, and I’m sure it will be the subject matter of great debate in the legislative review.
In the context of Bill C-7, we’re not dealing with that. The person has to have capacity, and the question of capacity is a clinical assessment. It’s not a legal assessment. It’s a clinical assessment made by trained clinical professionals.
Senator Batters: My question is to Ms. Long of Dying With Dignity. Ms. Long, in your view, is it appropriate for either a physician or nurse practitioner to raise the concept of assisted suicide to a vulnerable patient who is asking for information on adequate assisted home care arrangements, as happened with Roger Foley? And do you believe there should be limits on how many times a physician or nurse practitioner should be able to initiate a discussion about MAID with a vulnerable patient in order to minimize the risk of perceived coercion?
Ms. Long: Thank you for that question. To your first point, I think clinicians, when they’re asked, should be able to share a variety of end-of-life options. When seeing a doctor about a specific condition, you’re usually given a variety of ways to treat or manage your care. In the context of end of life, clinicians should be able to provide that same information.
Clinicians do not, generally speaking, initiate that conversation. It should be at the request of the patient, and we would support that approach moving forward.
Senator Batters: So you would support that it would have to be patient-initiated? Is that correct?
Ms. Long: The patient asking about end-of-life choices, yes.
Senator Batters: And that it’s improper for the physician or nurse practitioner to initiate that conversation — that’s what you’re saying your position is?
Ms. Long: Certainly the college and the regulatory bodies would speak more clearly and specifically to that, but in our experience, it would seem that clinicians are able to have those conversations in the appropriate context with their patients.
Senator Batters: Thank you.
Ms. Long: You’re welcome.
Senator Dalphond: My question is for Dr. L’Espérance. I understand that bipolarity is a mental illness. Someone who is bipolar and suffers from an irremediable physical illness may request medical assistance in dying under the proposed bill, which implies that experts would have to assess their capacity and that this capacity may exist in spite of that person’s bipolarity.
On the other hand, if they suffer from bipolarity only, they do not have the right to request medical assistance in dying. The groups that came before you, from the previous group of witnesses, told us that the distinction is justified by the fact that for many people, bipolarity can be cured, or made manageable, and that it was accordingly impossible to compare the circumstances.
Dr. L’Espérance: You have put your finger on one of the paradoxes of this exclusion. Dr. Mona Gupta has consistently mentioned this paradox. Someone suffering from a physical condition who requests medical assistance in dying, even if they are suffering from a mental disorder, will be assessed as such, which shows that they are capable; if they only have a mental health issue, Bill C-7 would prevent them from obtaining medical assistance in dying.
I’m not a psychiatrist and will therefore not offer my own opinion. I have been listening carefully for the past hour and there were some interesting proposals. I have spoken about the matter with some psychiatrist friends. I think that a limited time needs to be set. That’s why I spoke about the next 12 months because the requirement for a reassessment of the situation is already in Bill C-14. If regulatory mechanisms cannot lead to a consensus, then they must at the very least lead to an objective medical framework that could allow these people access to medical assistance in dying. For example, and I point out once again that I’m not a psychiatrist, will a properly treated bipolar disorder indeed always remain under control? The question needs to be put to a psychiatrist. Can a serious case of schizophrenia that has led to multiple social and other problems be improved up to the age of 55 or 60 years? It’s up to the clinicians to answer these questions and of course up to each individual based on their own views in life. This strikes me as the most important point.
In my brief, there are all kinds of questions like this. These are relevant to you and to human rights; treatment cannot be inflicted on someone, but with a mental disorder pathology, if a person requests medical assistance in dying and has not received all treatments that are available on the market, can they be required to undergo certain treatments, most of which are noninvasive, except perhaps for electroconvulsive therapy?
There are Charter-related questions that require much more than a simple yes or no answer. On behalf of all patients suffering from mental disorders, we need to move forward and come up with an answer. They are entitled to know, just like other citizens. If a young man is diagnosed with a mental disorder at the age of 30 and wants medical assistance in dying within the next few months, that is where strict guidelines on issues like the type and length of therapy are required for the psychiatrists treating him.
Senator Martin: Thank you to everyone for your presentations. Just building on the question to Dr. L’Espérance, part of the problem of what’s happening with trying to give the rights — I agree that all Canadians deserve the right to die with dignity, but if there are no standards and the current evidence is not yet complete, as witnesses previously said, the system isn’t quite prepared. I’m just wondering if we need to slow down on our own legislation and that we look at giving the rights to all Canadians but do so in a way that we are ready as a country. It seems as though we don’t have these protections in place in a system.
My actual question to Helen Long has to do with your mention of the 84% of Canadians who support MAID. I’m curious about the makeup of those respondents. I’m of Korean descent and I know this is available in only 14 jurisdictions around the world. Do you know the breakdown of the demographics of these respondents? If I were to poll members of the ethno-cultural community I’m a part of, I think the percentage would be quite different.
Ms. Long: Thank you for that question. We don’t actually measure ethnicity in that poll. It is an Ipsos poll and it is reflective of the Canadian population and statistically valid. I would say across all the demographics that we do measure, the numbers are quite consistent, but we don’t break it down by ethnicity, to your point.
Senator Martin: The questions would most likely have been in English and French, but not in other heritage languages. What about the services that would need to be provided to individuals considering MAID? Do we have the language capacity? Are there enough trained assessors and professionals? This is a problem across the board in the entire health sector. Are these some gaps that you have been looking at?
Ms. Long: In terms of assessors and providers, I’m not aware of a gap. That’s not something that has been raised specifically to us. Dr. L’Espérance may have a better idea of that. Certainly that would be something to ask of the Canadian Association of MAiD Assessors and Providers.
Senator Martin: Finally, how would you propose to protect physicians who are currently providing MAID to those who are dying but for reasons of conscience are not comfortable assessing or aiding in MAID for people with chronic illness or disability? Do you believe their conscience rights should be protected? If yes, do you believe in protecting the conscience rights of all physicians not to participate in something they feel is unethical? I know many physicians have expressed great concerns about this.
Ms. Long: Bill C-14 does provide for conscience rights protection for clinicians. Over the past four years, clinicians have been able to not provide MAID. We would support an effective referral system, as is the case in Ontario, whereby a clinician is required to refer an individual to another clinician who is prepared to talk about MAID with them. Certainly conscience rights are currently protected under Bill C-14.
Senator Dupuis: I would like to thank our two witnesses for their presentations. My question is for Dr. L’Espérance. I am trying to understand. If I have an illness, whether it’s a mental disorder, Alzheimer’s disease or colon cancer, am I wrong to think that I have the right, as a patient, to refuse care?
Dr. L’Espérance: Absolutely. Totally.
Senator Dupuis: If I have a mental disorder, bipolarity or something else, without it having necessarily been established whether it is caused by a biological factor or comorbidity, would I, at the age of 30, have the right to refuse all forms of treatment offered? If there is an inherent difference in the fact that I’m being allowed to refuse, out of respect for my autonomy — because since 1988, the trend has been towards an emphasis on respect for human autonomy in health decisions — do you feel that there is a reason, from the clinical standpoint, that would allow my request for medical assistance in dying to be excluded, when my right to refuse any other offers of treatment is recognized?
Dr. L’Espérance: You have put your finger on a difficult question. I do not have a ready-made answer because indeed, every individual’s autonomy allows them to refuse any treatment that may be offered to them. Here’s what we know. If you have colon cancer or any other neoplastic pathology or a neurodegenerative disease, we know the trajectory of the illness and the ineluctable outcome after a certain time. With mental disorders, we do not know the trajectory and that is why serious discussions among experts, by which I mean psychiatrists, psychologists, community workers etc., are needed to decide just how far we can go when a patient suffering from mental disorders requests medical assistance in dying, knowing that the patient’s condition may fluctuate over the years, and that it may well improve, but also may well worsen. I do not have any simple answers. Further investigation is required; otherwise, if we say now that there is not enough evidence, then we would still be where we are now in 20 years’ time and will have to deny medical assistance in dying to some patients. If you are asking for my opinion as a clinician, but not as a psychiatrist, I would say that a period of time would have to be allowed, by which I mean up to 55 or 60 years, to establish a firm diagnosis. Would that hold up from a legal standpoint? I have no idea. The difference needs to be well-established, with properly identified physical and organic pathologies.
Senator Boniface: Thank you very much. I’ll be very brief. I want to address my question to Dying With Dignity. I want it to be clear that the legislation as currently written captures the waiver of final consent, or Audrey’s Amendment, as you had originally envisioned. One of you were cut out when that was being spoken about. I just want to be clear on an answer to that. Could you help me, please?
Mr. Cowan: Yes, it does capture Audrey’s Amendment and we support that.
Senator Boniface: Thank you very much.
Senator Boyer: My question is for Mr. Cowan. Thank you for your presentation. I know that you’re urging the government to undertake a thorough review of the MAID legislation after Bill C-7 is passed. You mentioned that it’s very important that there be a parliamentary review to examine the state of palliative care in Canada.
I want to briefly address this. Culturally appropriate palliative care is sorely lacking in Indigenous communities, particularly those on reserves. Palliative care that is culturally appropriate is a question of recognizing the rights of Indigenous people to be self-determining in the context of their own health care and supporting their access to MAID. In this context, it’s important for health care providers to work in conjunction with spiritual leaders and elders to deliver MAID in a way that’s culturally safe.
Do you agree that any future parliamentary review of MAID legislation should also look at the accessibility of culturally appropriate palliative care for Indigenous communities?
Mr. Cowan: Yes. Thank you, senator, you’ve raised a very important point.
Bill C-14 specifically mentions that the parliamentary review will not only consider those three subject areas with respect to MAID, but also the state of palliative care in Canada. That’s a very important part. It’s not an either/or situation. This legislation that’s before you now is dealing with medical assistance in dying. Obviously there needs to be much more done in all parts of the country to make sure we have better palliative care and that it’s more culturally sensitive and more available and accessible. But it’s not an either/or situation in our view. We are not saying do this, and don’t pay any attention to palliative care. These are two different things. Certainly, I agree with you that we need to do much more as a society with respect to palliative care, and that is specifically provided for in Bill C-14. That must be part of the parliamentary review.
My point earlier was that I want to make sure we don’t lose sight of that parliamentary review, because I remember there were many pieces of legislation which called for a review of legislation after a period of time, and those reviews never took place. So I think it’s important that you insist, if I may say so, that this review follows and commences as quickly as possible after you deal with Bill C-7.
Senator Boyer: And include Indigenous people.
Mr. Cowan: Absolutely.
Senator Boyer: Thank you.
Senator Keating: Thank you very much, Dr. L’Espérance, for your comments. They are very helpful.
You said that you had listened to the previous meeting, during which physicians and psychiatrists answered the following question: Is a person with a mental illness — and I mean a mental non-biological illness — capable of giving informed consent for medical assistance in dying? The answer was yes.
What worries me is that we are speaking about having more time, in fact 12 months. It seems to me that very little has changed with respect to evaluating mental illnesses, or their progression, over the past 20 or 30 years. So even with 12 months more to begin attempting to make distinctions in terms of evidence between different kinds of mental illnesses — here again they are not all at the same level — do you think that we will be in a position to have clear answers about the right of people suffering from a mental illness to receive medical assistance in dying?
Dr. L’Espérance: My short answer is that the additional 12 months that we have suggested be used to provide closer monitoring.
And the most accurate answer to your initial question is that people with mental health problems or disorders have the required aptitude. In fact, as doctors and surgeons, we are sometimes required to operate on or treat patients with mental health problems, and we always request an opinion from a psychiatrist. Of course, this monitoring needs to be relatively well developed, but it is essential to make the effort to do more.
As the people who gave evidence earlier, like Dr. Rajii and others, explained, much will of course remain unknown, but we need to forge ahead and start somewhere to establish better benchmarks.
To return to Bill C-7, we suggest that there should not be a mental illness pathology exclusion, but rather a longer time period.
Senator Keating: Thank you very much, Dr. L’Espérance.
The Chair: Thank you very much to Senator Cowan, Dr. L’Espérance, and Dr. Long for your interesting presentations. You can see there were more questions. Unfortunately, I had to cut off the senators because of time limits. I apologize to you and to them. Hopefully, there will be another time when we study the bill. I want to thank you all very much for being here. Senator Cowan, it’s great to see you.
Dr. L’Espérance: Thank you all very much for your interest.
The Chair: Thank you very much, senators. We will reconvene tomorrow at ten o’clock.
(The committee adjourned.)