THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Tuesday, November 24, 2020
The Standing Senate Committee on Legal and Constitutional Affairs met this day with videoconference at 10 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: Honourable senators, I declare this meeting in session.
My name is Mobina Jaffer, I’m from British Columbia and it is my honour to chair this committee today. We are conducting another hybrid meeting. Thank you again, senators, for your patience as we adapt to this new way of holding meetings.
Before we begin, I would like to make a few helpful suggestions. I would remind you that, when you speak, you must be on the same channel as the language in which you are speaking. Should you experience technical difficulties, particularly with regard to the interpretation, please report them to the chair or clerk, and we will do our best to solve the problem.
Please note that all members need to ensure that they are able to participate fully. If, for any reason, you are not able to hear the translation or you are not able to hear the proceedings, please let us know right away.
Senators, I know that most of you want to ask questions of our panel, so I ask that you only signal to the clerk through the Zoom chat if you do not have a question. Otherwise, I will call all members for questions. If you are not a member of the committee, please signal to the clerks if you have a question and I will try my very best to accommodate you, but I do anticipate the time to be short.
Senators, as I suggested to you yesterday, we will only have four minutes per senator, per member. I will do my best to get everyone who wants to ask a question to ask a question, but I also ask you, senators, to do your best to have short questions so the witness can answer. Unfortunately, if for an unforeseen reason your question and answer is longer than four minutes, I will be forced to cut the witness off, and I apologize for that.
Senators, it is my real pleasure today to welcome, for our first panel, Professor Trudo Lemmens, Professor and Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto, and Professor Jocelyn Downie, Professor, Health Law Institute, Dalhousie University.
I would like to take a few moments to introduce the members of the committee who are taking part in today’s meeting.
We have Deputy Chair Senator Batters, Senator Boisvenu, Senator Boyer, Senator Carignan, the critic of this bill, Senator Petitclerc, the sponsor of the bill, Senator Dalphond, Senator Dupuis, Senator Keating, Senator Gold and Senator Martin.
We also have Senator Kutcher and Senator Pate.
On behalf of all the members of the committee, thank you for being here today. Committee members will have questions for you following the presentations.
We will now start with Professor Lemmens.
Trudo Lemmens, Professor and Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto, as an individual: Honourable senators, I appreciate the opportunity to present to you today. My work on MAID is informed by my study of international and Canadian MAID practices and law and my participation in the Council of Canadian Academy’s expert panel.
In the brief we submitted to the senators, we explore how the bill undermines the balance the current MAID law tries to achieve between the interest of some in controlling the manner and timing of their death and the protection of people when they are vulnerable, the reaffirmation of our equal valuing of the lives of people who are elderly, ill or disabled, and suicide prevention.
The bill prioritizes the right to liberty of some over the duty of the state to protect life, and this in a discriminatory way. Our Supreme Court has reaffirmed the state’s Charter obligation to protect life. The bill undermines it for people with disabilities and chronic illness, depriving them of the equal protection against premature death that all others continue to receive outside of the end-of-life context. This also violates the international human rights norms. The UN Special Rapporteur on the Rights of Persons with Disabilities explicitly stated that:
. . . access to assisted dying should be restricted to those who are at the end of life; having an impairment should never be a reason for assisted dying to be permitted.
I want to draw your attention to other specific problems we have with the bill. They are connected to the bill’s failure to take seriously the complex nature of suffering, the economic, social and cultural forces that impact on it and that determine how we can cope with it. I would flag here the disproportionate impact of the pandemic and pandemic policy measures on oppressed and vulnerable people in this context already as a red flag. It also ignores the crucial supportive role of health care providers and the radical nature and harm of ending people’s lives.
This is reflected in the rhetoric around the urgency of the bill, the reduction of current safeguards and the criticism by some on the already insufficient safeguard, in our view, of the 90-day assessment period for people whose death is not reasonably foreseeable.
Take the example of the removal of the reflection period, which exists in other jurisdictions. Its goal is to address the well-documented ambiguity of people’s desire to die. It aligns with the Supreme Court’s emphasis on the need for clear consent and can already be shortened under the current bill. The argument for removal is that it cruelly imposes suffering on people who made up their mind already, but that ignores that it protects people who may have weeks, months or even years of further meaningful life. There is, to my knowledge, no legal, ethical or medical expertise that permits us to confidently conclude that the suffering of some associated with the delay outweighs the risk that others are prematurely deprived of their life. The organization of the wait period could indeed be improved, and there are also other measures to address pain and suffering, but nothing can undo a person’s death. It seems perfectly reasonable in public policy to err on the side of prudence.
The combination of a broadly interpreted reasonable foreseeable death criterion and removal of confirmation of consent also introduces advance requests for MAID. Parliament is expected to discuss this issue based on the expert panel’s review of the complex and ethically charged evidence. Nothing in the Truchon decision obliges the government to introduce this now quickly.
We further discuss in our brief how the provision that should protect incapable persons of being killed when they physically resist is rendered rather meaningless by the bill’s “for greater certainty” provision.
A last key concern is that, unlike in any other jurisdiction, the bill will not require that all other treatment options be made available and explored first for people who may have years or decades of life left. The new bill thereby fails to treat MAID as an absolute last-resort option. This alters health care providers’ professional and legal obligations related to the standard of care. Patients cannot insist that physicians actively provide something that violates the professional standard of care and that is not medically indicated. Making access to some interventions conditional on trying other conditions first is not unusual and is a most minimal requirement when the active intervention required from physicians results in death. By only requiring that people have to consider all options, the bill fails to provide the protection that takes into consideration the uniqueness of the health care provider-patient relationship, the key supportive role of providers and the radical nature of MAID. It exemplifies how the bill prioritizes individual choice for death in a way that radically departs from our current understanding of the obligations of our political, legal and health care communities to promote care and ensure inclusion and equal protection of people’s lives.
Thank you. I look forward to your questions.
The Chair: Thank you, professor. Now we will go on to hear from Professor Downie.
Jocelyn Downie, Professor, Health Law Institute, Dalhousie University, as an individual: Thank you for inviting me to speak with you today. My name is Jocelyn Downie and I am a professor in the faculties of law and medicine at Dalhousie University. Given time constraints, I’m going to cut to the chase.
There are many aspects of Bill C-7 that are positive and should be protected from amendment during this process. They will better realize the objectives of the legislation and respect the rights and serve the interests of Canadians.
They include, first, removing “reasonably foreseeable” as an eligibility criterion. This removes an unconstitutional criterion.
Second, providing for final consent waiver for some individuals reduces dying earlier than they otherwise would, it reduces people refusing pain medication in order to avoid losing capacity, and it reduces people having to suffer if they lose their access to MAID because they unexpectedly lose capacity or lose capacity before a provider can get to them.
Third, reducing the witness requirement removes a burden on access that did not provide a compensatory benefit of protection.
Fourth, removing the ten-day waiting period removes an arbitrary and both over- and under-inclusive ten-day period of, by definition, enduring an intolerable suffering.
Fifth, expanding the reporting requirements facilitates insight into implementation, particularly in relation to barriers to access.
These positive aspects of Bill C-7 are based on the Truchon decision and, in turn, based on the Charter, in the massive public consultation that was conducted by the government last winter and in the empirical evidence that researchers have been gathering since Bill C-14 came into effect.
There are, however, some aspects of the bill that should be amended if the legislation is to realize its objectives, respect the rights and serve the interests of Canadians and be consistent with the Carter and Truchon decisions and compliant with the Charter.
I focus today on but one of them, the mental illness exclusion. The mental illness exclusion is indefensible for multiple reasons. It is stigmatizing of mental illness, relying on the notion that every mental illness is curable and feeds the false belief that people with mental illness would get better if they just tried harder. Also, it doesn’t take much imagination to see how the phrase “mental illness is not considered to be an illness, disease or disability” might perpetuate the harmful idea that mental illness is not a real illness.
It is also discriminatory. It breaches section 15 of the Charter. It is simultaneously overly broad and impermissibly vague, thus breaching section 7 of the Charter and not being able to be saved by section 1. It is conceptually incoherent, given that the bill allows for MAID for a mental illness where there is a physical co-morbidity, yet the issues for MD-SUMC about prognosis and capacity assessments can be identical for mental illness with physical co-morbidity.
It is clinically unintelligible. Clinicians do not draw sharp lines between mental and physical; that’s a distinction that flies in the face of modern neuroscience. The government has not provided clinicians with a basis meaningful to them for deciding which mental disorders are in and which are out of the subcategory called “mental illness.”
Finally, it takes away access to MAID that is available under the current law. MAID MD-SUMC is permitted under Bill C-14 and, indeed, has been provided.
Now, all that said, I am sensitive to the concerns expressed by some clinicians to the effect that they need time to develop practice guidelines for assessing and providing MAID in the context of mental disorder as the sole underlying medical condition. The Minister of Justice has repeatedly said the government needs more time — I assume with respect to the question of how to implement MAID MD-SUMC rather than whether, as the whether question has already been answered by the courts in Carter and Truchon.
There is a way to respond to these concerns without doing all of the harms of the exclusion clause that I outlined above, and that is to add a sunset clause to the bill. This clause would say the mental illness exclusion provision will cease to have effect at a date not later than 12 months after this legislation has come into force. The sunset clause can be seen as similar to the court giving a suspended declaration of invalidity. It, in effect, acknowledges that the exclusion on its own is unconstitutional and should be gone, but it gives clinicians and professional and regulatory bodies time to develop practice guidelines, standards and training for the new set of MAID and MD-SUMC cases that will be eligible under Bill C-7. We have good grounds to believe this is doable as the Quebec Association of Psychiatrists has just done it.
I close with the plea that you place the onus on the government to ensure the job gets done. They have described the exclusion clause as temporary and indicated that they plan to deal with MD-SUMC in the five-year review, but we all know there is many a slip ’twixt the cup and the legislative lip. The sunset clause reverses the onus, and it protects persons with mental illness from having to litigate for their rights.
The Chair: Thank you very much, Professor Downie. Professor, I want to ask you a question to clarify the sunset clause. You said one year for the sunset clause. From hearing what the minister said, my understanding was that that would take longer. Do you believe that one year would be sufficient?
Ms. Downie: I absolutely do. The Quebec Association of Psychiatrists has done it in less than a year. You also are not starting de novo. Psychiatrists in the Netherlands have guidelines. This is something that can be done in six months actually, but I was being generous to say a 12-month sunset clause.
The Chair: Thank you, professor.
We will now go to questions, and we start with the first question from the sponsor of the bill, Senator Chantal Petitclerc.
Senator Petitclerc: Thanks to our two witnesses. My question is for Ms. Downie.
I recently read some of your writings in which you made brief comments on protection of the freedom of conscience of all Canadians under section 2 of the Charter. What interests me in this instance is the people who practise medicine. We know that this right is protected by the Charter, and it is referred to in the preamble to Bill C-7 and clause 9 of Bill C-14. It’s also discussed in the Supreme Court’s judgment in Carter. In spite of all that, as you may have heard, this concern is regularly raised in the debates that we conduct here and that we will continue to conduct.
Since you’ve recently spoken out on the subject, I’d very much like to hear your views on the protection of freedom of conscience, particularly for those who practise medicine.
Ms. Downie: Conscience is protected under the Charter, and any restrictions on conscience can be challenged.
Indeed, in Ontario we had a case in which there was a restriction on conscience, which is a duty to refer that was put on by the College of Physicians and Surgeons of Ontario, and that was challenged. The clinicians were unsuccessful in court because the court said that it is not a violation of the Charter to compel referral. Nobody is compelled to provide MAID or participate in MAID. What we have is a duty of transfer of care or effective referral, and that’s been found in Ontario by the Court of Appeal to be consistent with the Charter.
People keep raising this in your conversations, and it is a matter for provincial and territorial bodies. It is not a federal matter. The regulation of health care providers belongs to the provinces and territories. They then delegate that to the Colleges of Physicians and Surgeons and the Colleges of Nurses. The system is well established, and this is not new. There are lots of controversial issues, and what Canada has settled on with the provinces and territories is that clinicians do not have to participate, but they do have an obligation to refer or to transfer care of their patients to someone who will provide them with a legal service.
Senator Petitclerc: Thank you very much. I’m satisfied with that answer, Madam Chair.
Senator Carignan: My question is for Ms. Downie as well. Senator Petitclerc is apparently not the only one who has read your work. I have notes that you wrote this past October in which you seem to say that, under Bill C-7, there would be a more permissive attitude toward requests for medical assistance in dying for individuals suffering from Alzheimer’s disease or dementia. I find it a bit hard to follow your reasoning. Can you confirm for us that this is indeed your interpretation, and can you explain why that might be the case? As I see it, to submit a request, a person must be suffering from a grievous and irremediable health problem. However, when you look at the criteria for determining what constitutes a grievous and irremediable condition, you see that the medical circumstances must be characterized by an advanced and irreversible decline of capacities. When persons suffering from dementia and Alzheimer’s disease reach that stage, they find it hard to situate themselves in time and space. So I wonder whether anyone could grant their requests.
Ms. Downie: Thank you for the opportunity to clarify. One of the key points here, which is a clinical one, is that people with dementia can meet the eligibility criteria under Bill C-14. In fact they can meet the fourfold criteria. You can have capacity and still already have met the criteria for reasonably foreseeable, serious and incurable advanced state of irreversible decline and capability and enduring intolerable suffering. So we have people with dementia getting MAID now under the current criteria.
When I was taken to be saying it would increase, I think that some people don’t realize that people with dementia can be eligible now, so people should realize that, but also that the final consent waiver will be available to some people with dementia. You have to meet all the eligibility criteria, and in order to get the final consent waiver, you actually have to meet under Bill C-7 “reasonably foreseeable.” The point was that natural death is reasonably foreseeable with dementia, and you can meet all the criteria before you have lost capacity. The final consent waiver is not the advanced request for MAID that a lot of people want, the very expansive one. It is a very narrow final consent, but some people with dementia can meet it and will be able to meet it under Bill C-7. They will be able to have access to MAID under Bill C-7 as well because their natural death will have become reasonably foreseeable before they lose capacity.
The Chair: We now go on to Senator Batters, the deputy chair of the committee.
Senator Batters: My questions are for Professor Lemmens. In your expert advisory group’s February 2020 report, Canada at a Crossroads, you state:
Some argue that if MAiD is available to those with predictably declining medical illnesses, it must be made available to those with mental disorders or we risk discrimination. In fact, allowing MAiD for mental disorders that cannot actually be determined to be irremediable, while claiming it is being provided for an irremediable condition, would be the ultimate form of discrimination.
Professor Lemmens, given your significant legal expertise on this subject, please explain to us why excluding mental illness as a sole condition for MAID in Bill C-7 actually prevents discrimination. And also, do you believe that special safeguards and the exclusion of MAID for mental illness is important and legally valid?
Mr. Lemmens: That’s a very good but very difficult question to answer in a brief period of time. The biggest problem with the bill is, obviously, that it includes particularly people with disabilities and chronic illness, and targets them into a legislative system that facilitates their death, while it continues to protect people who are not in that particular condition.
The question of excluding, then, a particular category of mental illness from this, I would say discriminatory, included group of people is, in my opinion, not discriminatory simply because there are additional reasons why it is problematic to include people with mental illness from access to MAID. That goes to the nature of mental illness, not the fact that mental illness is de facto or always irremediable, but more that the prediction of irremediability in individual cases is extremely difficult to make, and that there are difficulties in distinguishing suicide from diagnostic components of the disease; capacity assessment is more complex. I would say that the international evidence and the struggle that you see in the only two jurisdictions that allow MAID for mental illness — the Netherlands and Belgium — show how difficult the practice really is.
So if it would be deemed discriminatory, it would be saved under section 1, in the circumstances and with the evidence that we have to exclude people with mental illness from the applicability of the law. I would emphasize, again, that the reaching out of the legislation outside of the end-of-life context does, indeed, complicate matters because we’re dealing with different categories of people who have traditionally been discriminated against. It will then be important to distinguish what kind of specific vulnerability they have and how can we justify that under the law.
Senator Batters: Professor Lemmens, what would the consequence be of not adopting Bill C-7 in light of the Quebec lower court Truchon decision?
Mr. Lemmens: That’s an important legal question. We always hear that the government absolutely has to implement the law by a specific date because of Truchon. Truchon is a decision by a lower court. The government has decided not to appeal this, which senators certainly know is exceptional in the circumstances of such an important life-and-death matter, and raises very important constitutional questions. So it would not be binding on courts in other provinces, and it would not be binding on higher courts. While it will have persuasive persuasion in other settings, other trial courts are not necessarily bound by this decision. This has been confirmed in a recent Court of Appeal case in Ontario; certainly higher courts and courts in other provinces are not bound by the Truchon decision, so the law would continue to apply. We could have a decision come out that, in my view, would reasonably conclude the opposite of the Truchon decision.
Senator Cotter: I had one question for Professor Lemmens and it was asked by Senator Batters. I would ask it in a slightly more general way and invite Professor Lemmens to answer. I have one question, as well, for Professor Downie. I should say, with respect to Professor Downie, that when I was first appointed as a senator and anticipating the consideration of this legislation in the spring of this year, I retained Professor Downie for $1,000, I think, to provide me background information regarding MAID. I wanted to share that with the committee before I asked the question.
The question for Professor Lemmens is that it feels to me as though your collective argument is focused on a particular orientation to public policy that doesn’t exactly engage the constitutional requirements of the Government of Canada here, and particularly Charter obligations, and that your policy perspective is at odds with the constitutional obligations to meet Charter requirements here. I would ask if you could explore that a little more fully.
With respect to Professor Downie, we have examined, for example, European countries that have moved in the direction that I think you clearly support, including with the issue you’ve identified regarding mental illness. We have selected that, in your line of argument, as a proponent for a particular perspective. One of my concerns with respect to the legislation, and in this comparative way, is the degree to which countries like Canada provide inadequate support to people who are vulnerable and who, therefore, may make choices to pursue assisted death that are not quite as autonomous as we would like. That is, their choices of continuing to live in poverty, and to continue to live without quality medical or other support services. My question is whether or not we are picking and choosing a little bit, and examining selecting the medical dimensions of countries like the Netherlands or Belgium, but not taking into account the richness, potentially, of the social network that supports people who are vulnerable. I would invite you to comment on that aspect of it.
Mr. Lemmens: Thank you very much for this question. I would encourage you to read our brief in more detail. The first thing I would say is there is no Supreme Court decision that has ever found the exclusion of specific categories of people discriminatory. So the Carter decision focuses on the right to life, liberty and security of the person. It re-emphasizes that the protection of the right to life is an important state obligation. So it invites — in a general judgment that has been interpreted differently by different people, in terms of the extent to which people have to be included outside of the particular category of the plaintiffs in the Carter case — Parliament to establish a law. In the constitutional dialogue that we have in Canada, it invites Parliament to come up with legislation, which tries to balance the importance of protecting section 7, the right to life, with, indeed, the creation of some level of decision-making, which is deemed to be important, particularly in the type of cases that originally were always conceived to be the cases where we want to provide a facilitation of dying. So it introduced a reasonable foreseeable death criteria.
Yes, the Truchon decision came out declaring the right to life, liberty and security of the person is violated, and also in section 15. However, no court or the Supreme Court has ever — and there is very good reason for that — declared that the exclusion of people from a life-terminating action is discriminatory.
I’m very disappointed that this decision has not been appealed because we would have seen if this is, indeed, a solid basis.
I would say, on the contrary, that discrimination also involves equal protection. There is a very important component that keeps being forgotten when the government explains the bill, which is that traditionally stigmatized communities, such as people who have disabilities and chronic illness, are here targeted and deprived of a protection which is provided by a restriction to end of life of the current bill.
So it really depends on the focus that you take. If you say, well, the right to life is, indeed, to some degree, protected by traditional and still existing prohibition on third-party involvement in another person’s death, but now we have carved out a certain exception to that, we say in some circumstances that when people are suffering intolerably in the context of end of life, we allow third-party involvement. But it’s a carve-out of a general prohibition.
What we’re now doing is extending it for one already stigmatized — often disadvantaged in the health care context — and disadvantaged community. This community, in the context of the pandemic, is clearly already exposed to a very significant increased risk of harm and premature death. We’re now saying to that particular community, which may not speak in one voice, but nobody speaks. So no community is targeted under ameliorative legislation that tries to protect particular categories. There is no legislation where everybody in that particular category will say, “Yes, indeed, I need to benefit from the protection provided by law.”
But we make broad categorizations when we’re dealing with the need to protect vulnerable groups under the discrimination law or particular stigmatized communities that have historically been excluded or disadvantaged in society; with those, we make a broad categorization of protection. Here, we made broad categorizations in actually providing access and depriving them of the protection that the restriction to end of life provides.
I hope I’m a little bit clearer about that.
The Chair: Senator Cotter, I will put you on second round to finish your questioning.
Senator Boyer: Thank you both for the presentations today. They’ve been very interesting. I have a very quick question for Professor Downie.
You spoke in support of the sunset clause and the ensuing practice guidelines. I’m wondering if you have any other ideas on amendments or alternatives that would enhance the bill and that we could consider.
Ms. Downie: Thank you for that question. One recommendation is, in fact, to remove the restriction to adults. “Mature minors” is a subject that has been studied extensively, and I think it’s a violation of the Charter to exclude individuals who are under the age of majority who, nonetheless, have decision-making capacity.
That is going to be the subject of the review, so I didn’t go into that today given the time constraints, but I would change that myself. So that’s one, because it’s a Charter breach.
Personally, from a policy perspective, I would have a broader final consent waiver concern, in particular, for instance, about people who have had a stroke and are at risk of further strokes but would not be able to access the final consent waiver. I would flag there, though, that I would be arguing from ethics and policy perspectives as opposed to a Charter perspective.
With respect to extra legislative measures — not in the bill, but things you can still call for — the government has said they are going to take extra legislative measures to improve disability supports, which is the right way to go. You go parallel tracks; you don’t preclude access but enhance supports. So I would call on the government to also have extra legislative measures with respect to mental illness. Again, do the parallel tracks where you recognize there are concerns about access to supports and alternatives, enhance those through extra legislative measures.
Senator Boyer: Thank you.
Senator Boisvenu: I would like to apologize for being late. My question is for Mr. Lemmens. I didn’t listen to your testimony, but I read your brief. With regard to your perception of this bill and the right to terminate one’s suffering, which the Supreme Court found is a fundamental right of individuals, do you draw a distinction in the way physical and mental illnesses are managed?
Mr. Lemmens: Is that a question for me?
Senator Boisvenu: Yes.
Mr. Lemmens: I don’t draw a fundamental distinction between physical and mental illnesses as they pertain to the need for protection and for taking suffering into consideration. In the context of the current act [Technical difficulties] than persons who have a mental illness —
Senator Boisvenu: Let me clarify my question. With regard to the point the minister raised, and with which I disagree in part, it appears that the end-of-life scenario seems clearer when the body is afflicted with a physical disease or the patient is facing a foreseeable death, whereas it’s much harder to foresee death where a mental illness is diagnosed as the cause of that scenario. The scope of the bill limits the use of the end-of-life criterion for persons suffering from a mental illness. In your mind, if dealing with a patient suffering from a physical disease whose death is foreseeable, do you draw a distinction, in recognizing this right, between that patient and someone suffering from a mental illness for whom the end of life is unforeseeable?
Mr. Lemmens: That’s what I was saying. Under the present act, a person suffering from a mental illness is equally entitled to access to end-of-life medical assistance in dying, but the practice is restricted in an end-of-life context. As you said in your question, do you draw a distinction at the end of a person’s life? No. I’d say it’s often understood, when you say that medical assistance in dying in an end-of-life context must be restricted, that we don’t know how seriously persons with mental or chronic diseases are suffering. The contrary is true. In fact, people suffer enormously from mental illness, perhaps as much as from physical diseases.
There are management problems, and it’s hard to know what will happen. You have to see what kind of support can be offered to persons suffering from mental illness and whether we can predict with any certainty that the person may or may not recover. Even though some individuals suffering from mental illness don’t recover from their disease, it’s impossible to predict who will fall into that category. There is an enormous impact on psychiatric practice and mental health assistance when, in a complex therapeutic situation, you begin to introduce a psychiatrist’s duty to offer suicide, which may be a component of the disease itself, as a therapy.
I recommend that you read the report we submitted together with an expert panel, in which we raised this question. I also suggest you read the report of the Council of Canadian Academies, which addresses it in detail. You should take the time to study the problems we encounter when we begin to offer medical assistance in dying in a non-end-of-life context, particularly to persons with mental health disorders. The evidence is there in the problems encountered in the Netherlands and Belgium, where psychiatrists at the time defended the idea of providing access to medical assistance in dying. Now they say they were wrong, as psychiatrists, to provide medical assistance in dying to our patients. I invite you to read the accounts of those psychiatrists, who aren’t opposed to this in principle, but who, as a result of their experience in the Netherlands, have come to the conclusion that it’s a mistake to expand the practice of euthanasia in a mental illness context.
Senator Martin: Thank you to our presenters. It has been very interesting to listen to you both in such a broad range of perspectives.
Professor Lemmens, I wanted to ask you about the reference you made to the “for greater certainty” clause. Just for those listening, that clause states:
For greater certainty, involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance for the purposes of paragraph (3.2)(c).
I found this one of the most troubling clauses in the bill. In the case of advanced consent, it appears there would be a highly subjective interpretation of whether a patient is resisting at the time MAID is provided.
Would you elaborate on the brief comments you made during your presentation?
Mr. Lemmens: Yes, thank you for the opportunity to do so. I also find it to be one of the troubling components of the bill. It relates to what I find one of the most troubling components of the end-of-life MAID practice in one jurisdiction where this is allowed, which is the Netherlands. Belgium allows advance requests for medical aid in dying, so without confirmation of consent, when people have become irreversibly unconscious. But in the Netherlands we have now seen judicial confirmation that physicians can provide euthanasia, medical aid in dying, to patients even when they are no longer capable of decision making, but they may still be among us.
In the Netherlands we had a case of a person with dementia who was not permanently unconscious but still had severe dementia and was incapable of decision making. She was provided medication to make her sleepy. Then an injection was provided and she physically resisted. The family helped the doctor to keep the patient down and the patient was injected and died. I find that troubling.
I think the government understands that some of this would create extreme moral distress for family members and health care providers. Frankly, it would mean that a person who declared in the past that they want to have medical aid in dying but are no longer capable of physically expressing their resistance to this practice, which in my view seems abhorrent.
By providing this “with greater certainty” clause, they wanted to say that obviously a person may physically make movements, but we should allow some latitude so we can determine whether it really was resistance or not. By adding this “greater certainty” clause, you’re talking about involuntary gestures. We’re talking about a person who is incapacitated. Voluntariness is not there, the determination of whether the person is voluntarily or not.
I would say that if this practice should be allowed — and I don’t think it should be allowed — any sign of physical resistance to the ending of a person’s life should simply make health care providers and family members stop and not do it. That’s why I have a serious objection to the “greater certainty” clause, because it requires so much interpretation. The physician can say the person was incapacitated, there was no voluntariness anymore and we had an advance request or an expression of consent two months ago, so we can move ahead; it was just a physical reaction.
While most of the physicians and current MAID practitioners may be cautious about that, I am uncomfortable with the idea that we will see people who are not careful and who are sloppy about that. I think it’s a troubling clause. In my view, it violates the Convention on the Rights of Persons with Disabilities, which says loss of capacity doesn’t mean you lose your rights, including your potential right to express, in one way or another, your resistance to something, or your change of mind.
Senator Martin: Thank you so much. My mother has advanced dementia, so your example actually strikes quite a deep chord with me.
Mr. Lemmens: I appreciate that. My mother is suffering from dementia as well. When I read this, I can see the persons who could be susceptible to that, and it greatly worries me.
Senator Dupuis: My first question is for Mr. Lemmens.
Professor, did you and your expert panel analyze the experience of the 10 years during which Quebec’s Act respecting end-of-life care was in force?
Mr. Lemmens: Do you mean our psychiatric expert panel? Which expert panel do you mean?
Senator Dupuis: I’m referring to the work you’ve done generally. You may include any expert panels you wish; you may select them. Have you had a chance to analyze specifically the experiment in medical assistance in dying that has been conducted in Quebec since 2010?
Mr. Lemmens: In what circumstances? I belong to an expert panel that examined aspects of the act’s administration in the field of psychiatry, of mental health. If you’re referring to the Council of Canadian Academies, we, as a committee, studied all practices across the provinces. We examined the evidence and, obviously, what we know about advance directives.
Senator Dupuis: Have you had a chance to look at the report of the Quebec expert panel entitled L’aide médicale à mourir pour les personnes en situation d’inaptitude. It’s a report that was published in 2019, the subtitle of which is le juste équilibre entre le droit à l’autodétermination, la compassion et la prudence.
Mr. Lemmens: I’ve examined it. I couldn’t quote it, but I’ve examined it, yes.
Senator Dupuis: Thank you.
Mr. Lemmens: It’s quite a cautious document, but I don’t agree with some of the recommendations on incapacity.
Senator Dupuis: I appreciate the fact that you recognize it’s a cautious document, in view of the fact that this expert panel has an intimate knowledge of the medical assistance in dying process in Quebec.
The Chair: Senator Dupuis, I’m sorry to interrupt you, but the interpreter was not able to hear the name of the document. Could you repeat it, please?
Senator Dupuis: It’s a report by a Quebec expert panel and its official title is L’aide médicale à mourir pour les personnes en situation d’inaptitude. It contains a fairly comprehensive discussion of persons with disabilities and their right to access medical assistance in dying based on their right to self-determination.
My question for Professor Lemmens is this. The lawsuit that Ms. Gladu and Mr. Truchon brought, which led to Judge Baudouin’s judgment, is a very clear example of two specific cases in which individuals living with major disabilities asserted their right to self-determination, a right that the courts increasingly acknowledge and that includes both the right to refuse care and the right to medical assistance in dying.
Mr. Lemmens: I agree with you that these are very specific examples. It’s always very hard to comment specifically on individual requests. However, I would say two things. In the circumstances of the pandemic, the choices made by Mr. Truchon — who died just before the pandemic — reveal the concern that certain persons feel as a result of the fact that individuals dealing with serious, chronic and devastating illnesses must make their decision in very specific social, economic and societal circumstances in which factors may influence and limit their choices.
I see that Mr. Truchon, whom I completely understand, had a morbid fear of the impact the pandemic would have on his personal situation. The question is whether one can tell individuals in difficult situations that, yes, they have a right —
The Chair: Professor, I’m going to have to cut you off because we’ve really passed the time.
Senator Kutcher: My question is to both witnesses. I will be brief and I will ask you both to be brief.
MAID is already being provided to persons with co-morbid mental and physical disorders. It is not possible to determine if the request for MAID is due to the mental disorder or not. Given that that is the case, how is the exclusion of MAID for a sole mental illness consistent with what is already happening?
Ms. Downie: I think the exclusion is inconsistent. There is no possible justification for allowing it with the co-morbidity and not when it is sole because the very concerns that are said about the sole underlying — the concerns about capacity, concerns about prognosis, irremediably — apply as much as when it is a physical co-morbidity. So you’ve got to pick, and you can’t just pick something that’s incoherent.
Mr. Lemmens: I know that you have other psychiatrists and suicide experts presenting to you. I would invite you to ask that question to them. However, with a certain humility, working with psychiatrists on this particular issue I think the issue of co-morbidity is very [Technical difficulties] where no distinction can be made will be the very situations that will not present typical cases where medical assistance in dying will be requested. However, I would urge you to discuss that with the people who have been looking at the evidence of what has been happening in Belgium and the Netherlands, and when no such distinction can be made, whether you necessarily will make —
The Chair: Okay, thank you.
Senator Pate: Thank you to both of you for your incredible work in this area. I have a question for each of you. For Mr. Lemmens, the COVID pandemic has laid bare the long-standing issues of discrimination, inadequacy and barriers to access regarding long-term care and other social economic housing and health supports that are necessities for many of those living with disabilities.
In your opinion, is it possible that if the Truchon decision was decided today, having witnessed what we have in the past few months, the conclusion might be different?
And for Professor Downie, the constraints that the Correctional Investigator has recommended on MAID for prisoners, because of the problematic conditions in which informed consent, choice and access to adequate health care have not been guaranteed, as well as the fact that people have not been able to access parole on compassionate grounds, mean that he is recommending legal oversight for MAID in prisons and to ensure that prisoners are transferred out of institutions. And I’m curious as to what your view is on these recommendations from the Correctional Investigator, and what other oversight you think is required in terms of MAID for those in institutions.
Mr. Lemmens: This is a very important question and I would urge the Senate to actually look into this. I would also advise the House to look into this.
I don’t know if the decision would be made differently but I would hope that a judge pays attention to the fact that we already see the impact of perhaps the ableist and stigmatizing shift in the way we think about what should happen to people who are suffering, who are living in difficult social and economic circumstances.
I am extremely worried when I see that people are asking for medical aid in dying because they explicitly state that they are lonely or have financial difficulties, that we see the testimony of a social worker saying she is helping her clients apply for medical assistance in dying because of the different circumstances of COVID. And what also worries me is the reaction that we see which indicates that when you start shifting so significantly a practice, that people start finding it normal, that life termination becomes a solution to institutionalized and socially created suffering. It worries me enormously.
Ms. Downie: Thank you, Senator Pate. I am so glad you asked this, because I forgot something in my answer to Senator Boyer and this gives me opportunity to add it.
I believe oversight is needed. I have concerns about one of the cases I read about with respect to how it was being managed, but I also think that we cannot deny prisoners access to MAID. We have the Mandela Rules. We have people who will be suffering enormously and will be able to make free and informed choices to have it. However, what the Senate could usefully do here is add incarcerated people into the five-year review and say that MAID in prison should be part of that, and explicitly we should address the issue of compassionate release and the lack of a proper compassionate release program in Canada. This triggers exactly that issue and it belongs in the five-year review and could very usefully be done in the five-year review.
Senator Batters: My short question is to Professor Downie. In response to an earlier question today, you stated that you want minors to be able to receive assisted suicide. What minimum age would you want for those minors to access assisted suicide?
Ms. Downie: In Canada, under Canadian law, we don’t have an age on consent to health care. We have the concept of “mature minor,” which is someone who is under the age of majority but has the decision-making capacity, the same capacity as a 21-year-old. I wouldn’t put an age on that; I would say we should have the system that relates exactly to our common law process — and statutorily provincially — with respect to the refusal of life-sustaining treatment.
Senator Batters: So the age could be no minimum? Could it be 14? What practically would be the minimum age be?
Ms. Downie: You don’t have an age. If we have 14-year-olds, for instance, who have refused life-sustaining treatment, if they have an understanding of the nature and the consequences.
I would refer you to the Canadian Council of Academies expert report on mature minors, and also to the joint House and Senate committee that was done on physician-assisted dying earlier, which addresses this explicitly, as well as the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, as it was known at the time. All of them recommend that we move to recognize that the phenomenon of mature minors should be respected in this law and we should treat it the same as we do refusals of life-sustaining treatment.
Senator Cotter: I want to invite Professor Downie to respond to the question about the social and more elaborate supports that may be available in European countries compared to ours that make the autonomy of the exercise of a person’s choice of assisted death perhaps not comparable to the Canadian context, and the degree to which those kinds of supports ought to be implemented in Canada, if necessary, in order to generate true autonomy of choice.
Ms. Downie: I don’t think we have been picking and choosing between the medical and the social. People have been looking at them all very carefully. If you look at the Council of Canadian Academies, we explore exactly that, which is the question of the supports that are available, and also the culture we have with respect to autonomy and so on. Also, it is thoroughly canvassed in Truchon.
One of the cautions that the judge in Truchon issued for us was that we must consider all of this in the Canadian context, so look to Europe but be reflecting upon how the system will work in Canada. This was all argued in Truchon and the evidence was rejected. And as Justice Smith said in Carter, we must look at individuals in their situation. We must not hold individuals hostage to social failings. What we have to do is always operate on a parallel track. Therefore you allow the access to MAID at the same time you make those commitments to the enhancement of supports. We did that with palliative care. They very much did that in Quebec with palliative care. That was the appropriate form of analysis that Justice Smith said we should take with respect to MAID and palliative care. I would say the same for disability supports and, as I said before, I would call on the government to add mental disorder supports parallel to this change in the law.
Senator Cotter: Thank you.
The Chair: Thank you, Professor Downie and Professor Lemmens, for your presentations. You have raised many interesting questions. Thank you very much, both of you, for always making yourselves available to the Legal Committee in the Senate.
Ms. Downie: Thank you.
Mr. Lemmens: Thank you very much.
The Chair: We will go on to the next panel. The witnesses are, first, from the Canadian Association for Suicide Prevention, Sean Krausert, Executive Director. The next witness is from l’Université du Québec à Montréal.
Brian Mishara is director of the Centre for Research and Intervention on Suicide, Ethical Issues and End of Life Practices, and a professor in the Psychology Department of the Université du Québec à Montréal.
We have two additional witnesses: Mark Henick, who is a mental health advocate; and Alex Schadenberg, Executive Director, Euthanasia Prevention Coalition of Ontario.
We will start with the first panellist, please.
Sean Krausert, Executive Director, Canadian Association for Suicide Prevention: Good morning, honourable members of this Senate committee. I am Sean Krausert, the executive director of the Canadian Association for Suicide Prevention. Thank you for the opportunity to provide comments to you today for Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
My organization acknowledges the importance of respecting the autonomy of the individual and affirms that Canadians deemed capable of making such decisions ought to be able to access MAID to exert control over a death process that is already happening.
At the same time, efforts to prevent suicide, including healthy messaging across society, means we must work toward a future where no Canadian uses death as a remedy for a difficult life. There are several important concerns relating to suicide in the context of MAID expansion to those not at the end of life.
First, a life worth living: It is imperative that as a society we invest in finding ways to alleviate suffering and support people in connecting to a life worth living. MAID, as it was originally intended in Canada, is not in conflict with this approach, since it is used to remedy painful deaths. However, expansion of MAID to include those not at the end of life carries the inherent assumption that some lives are not worth living and cannot be made so.
Second, suicide messaging: Sending a message that sometimes death is the best remedy for a painful life is likely to subvert suicide prevention messaging. It is important that MAID be understood as an unusual and extraordinary option to avoid a social norm in which death is considered a common coping strategy.
Third, duty to die: Shifting norms also have the potential to create social pressure, or so-called duty to die for people with chronic illnesses, who may seek death as a way to alleviate the burden that they perceive they are causing others. Such a norm is again in conflict with suicide prevention efforts aimed at helping people challenge and reject thoughts that they are a burden, in favour of efforts to see their positive role in the world.
Fourth, mental health care: Finding hope and reasons to live are quintessential aspects of clinical care in mental disorders. Having MAID as a treatment option is in fundamental conflict with this approach, is likely to have a negative impact on the effectiveness of some therapeutic interventions and may lead both patient and provider to prematurely abandon care.
Fifth, psychiatric policy: To some extent, the same issues that arise in the clinician’s office apply at the macro scale. Ending the life of someone with complex health problems is simpler and likely much less expensive than offering outstanding ongoing care. This creates a perverse incentive for the health system to encourage the use of MAID at the expense of providing adequate resources to patients. That outcome is unacceptable.
CASP believes that we must consider the broader context of suicide prevention and life promotion for all Canadians. To this end, we recommend, first, extreme caution. Given that MAID and suicide can overlap and that MAID-related public messaging may interfere with safe suicide prevention messaging, the government must take great care to include concerns about suicide into any legislative changes related to MAID. Second is the requirement of evidence. We encourage not to open a door without such being strongly supported by evidence, evidence that mental illness cannot be remedied, evidence that a person’s decline is irreversible and evidence that a person’s suffering cannot be made bearable. We are not aware of any such evidence that would justify it as being eligible for MAID.
In short, CASP strongly endorses the current wording of Bill C-7, whereby mental illness is prohibited as a condition eligible for medical assistance in dying. This provision is absolutely essential to safeguard against the premature deaths of persons who are suffering mental illness alone and thereby avoiding inadvertently legitimizing suicide as an acceptable option for ending a difficult and painful life. Thank you for your time.
The Chair: Thank you very much. We will go to the next witness, Mr. Mishara.
Brian L. Mishara, Director, Centre for Research and Intervention on Suicide, Ethical Issues and End of Life Practices, and Professor, Psychology Department, University of Quebec at Montreal: Thank you for the opportunity to share some of my thoughts with you. Because of time constraints, I will limit these remarks to three points.
I believe that the suffering from a mental disorder is no less than the suffering from a physical illness. But the presence for having access to MAID in Canada is that one must have an irremediable medical condition with irreversible decline and unresolvable suffering.
I believe that people often confuse having an irremediable medical condition with the suffering, which motivates the request for MAID being irremediable. There is no blood test or brain scan or other medical examination that can reliably indicate the presence of a mental disorder. It is diagnosed based on talking with the patient.
One of the essential requirements for access to MAID is the determination that the condition is irremediable. Mental illnesses do not follow a predictable course. There is no evidence to date that anyone is able to predict the course of a mental illness and whether or not suffering can be eliminated. Of people who die by suicide in Canada, 90% have a mental illness. People who work in suicide prevention are confronted on a daily basis with people with a mental illness who are convinced they are suffering and that their suffering will never end. There is no hope; there is no treatment that can help them, they just can’t go on like this and they want to die.
For years, I worked in telephone help lines. Every day I had calls from people who told me they met all the MAID criteria, even before MAID existed legally in Canada. Almost invariably, by the end of the call, the person with the lethal bottle of pills sitting in front of them, who said they were going to take it, the person who had said, “I just really don’t want help,” had changed their mind. The pills were flushed down the toilet. They were getting help or they were going to a hospital. In those rare instances where the person refused help, the call was traced, and they were rushed to hospital against their will, most of them, over 90%, will never attempt suicide again and usually they call back and say thank you for saving my life.
I am a researcher, and until I see some hard data showing me that psychiatrists or psychologists are able to reliably predict who is hopelessly doomed to continue suffering, who can benefit from treatment and who will be happy to continue living, I cannot accept that we end the lives of people who have a mental illness, knowing that many could have been alive and have been happy to be alive.
I wish I had time to go over the details of the research on this.
Second, and this is something that Trudo Lemmens talked about, even in the Netherlands, where about 4.1% of all people die by MAID now — and they are considered a very liberal society — there is a requirement that we do not have. In the Netherlands, the doctors must establish without doubt that no treatment, medical or otherwise, could change the person’s mind about wanting to die. If the doctors believe that there is some untried treatment, medical or otherwise, available, they are obliged under their due care regulations to refuse to end the person’s life.
We don’t have that requirement. We only have a requirement that the doctor explain what’s available. The doctors cannot refuse, even if the suffering is treatable.
The third point has to do with reporting. If you look at other countries, they have a transparent reporting mechanism and detailed investigations. We cannot answer any research questions about MAID because we don’t have detailed investigations to determine what’s going on.
The Chair: Thank you. Mr. Henick, the floor is yours.
Mark Henick, mental health advocate, as an individual: Thank you for the opportunity to speak to you today about this important issue. Speaking as a person with both professional and, most importantly, personal lived experience, I wish to focus my remarks exclusively on MAID for mental illness as a sole condition. I say that because my comments are not intended to apply to situations where there’s a co-occurring illness, nor to draw analogy with any non-mental illnesses. Depression is not cancer. Depression is depression. Mental illnesses ought to be called what they are, not what they are like. And I think we’ve come at least that far in mental health awareness by now. To this end, I would like to address three issues. These are capacity, irremediability and systemic failures.
First, there is capacity. Given that one in five people each year, and the majority of people in their lifetime, will personally experience some form of mental illness, loss of decision-making capacity in that context, on that scale, is relatively rare. Therefore, people who request MAID solely for mental illness ought not to be automatically assumed to be incapable of making decisions on account of their mental illness alone. Their concerns and their suffering are valid. However, the true causes of their suffering need to be considered. Mental illnesses are not all in your head; that is, not entirely and not exclusively in your brain. Social determinants of health are as important, and maybe even more so, in determining who suffers and who thrives while living with a mental illness. The degree to which this is true is what separates mental illness from other conditions for which MAID might be requested and granted.
Even people with severe and persistent mental illnesses are equally deserving of employment, income, housing, health care, safety, love and respect as anybody else. Currently, many of them are not getting it. Until we can overcome the stigma and discrimination that deprives them of these rights, they will never be equally free to make some of the same decisions that other Canadians are privileged to take for granted.
While we with mental illnesses may not lose our capacity, our condition by definition influences our decisions. Cognitive rigidity, negative emotional valance, hopelessness and helplessness are common characteristics of most mental illnesses. They can cause a great deal of duress. Therefore, can a seemingly free choice made under such duress ever be a fully free choice? I have had few personal experiences in my life of greater duress than that which accompanied my mental illness. I’ve made decisions that I would have made differently had I not been under that duress.
Regarding irremediability, there is no evidence that any mental illness is irremediable. The fact that we are failing so often to remediate mental illness is not evidence of its irremediability. At best, this is proof not that people are failing to respond to health care but that health care is failing to respond to people. If the questions you are asking are not getting responses, maybe you are asking the wrong questions. The patient is not the problem.
Regarding systemic failures, no jurisdiction in Canada is currently meeting its obligations under the Canada Health Act with respect to mental health care, particularly the accessibility and comprehensiveness conditions, wait times, limited treatments, inequitable access, costs and the absence of a robust system of publicly funded psychotherapy. These and other barriers are systemically preventing people from getting better, and they routinely contribute to a worsening of their condition. Psychotherapy is medically necessary. Addiction treatment is medically necessary. Diverse affordable medication options are medically necessary.
In closing, I would like to say that for most of my life, and acutely between the ages of 10 and 17, then episodically ever since, my treatment-resistant depression has presented me with both a convincing problem and a convincing solution.
“Nothing will ever get better,” my depression said to me. “You’re hopeless. You’re worthless. You can’t carry this any further.” It was convincing when my depression lied to me in these ways because depression lied to me in my own voice, inside my own head. It infected and hijacked my own thoughts and feelings and turned them against me. But then that liar, depression, once it was fully in control, whispered these words of perverted mercy. “You’d be better off dead,” it said. It offered a solution to the problem that it, itself, had created. So I call upon this body not to employ the tactics of the liar. A solution based on a false premise might have an internal logic. It might feel productive, compassionate and appropriate to the problem that it’s trying to address. But until you recognize and rectify your role in creating and maintaining the root problem to begin with, then a proposed solution, especially such a final solution, can hold no validity.
I’m asking you, as a mental health advocate and as a person with lived experience of both serious mental illness and recovery, please don’t do this. Don’t abdicate your responsibility to better care for the most vulnerable among us under a false premise of freedom or a misapplication of what equity really means. Medical assistance in dying solely for a mental illness, assisted suicide by a sanitized name, will set the mental health recovery movement back by a generation. Instead, let’s fight harder, together, for the right to recover.
The Chair: Thank you, Mr. Henick, for your presentation. We’re going to the next witness now. Mr. Schadenberg, the floor is yours.
Alex Schadenberg, Executive Director, Euthanasia Prevention Coalition: My intervention is similar but a little different than the others. My name is Alex Schadenberg. I’m the director of the Euthanasia Prevention Coalition. We are a national organization with nearly 50,000 supporters in Canada, and we’re made up of medical professionals, people with disabilities and everyday Canadians. When EPC recognized that the Supreme Court of Canada’s Carter decision legalized euthanasia and assisted suicide in Canada — we now call this MAID — we were opposed to Bill C-14 because the language in the legislation would not accomplish what the Carter decision required — that being a carefully designed system, imposing stringent limits that are scrupulously monitored and enforced. Bill C-14 did not do that. Bill C-7 actually exacerbates this problem by eliminating some of the safeguards that were implemented in Bill C-14.
First, the Truchon decision should have been appealed. Even if the government supported the outcome of the Truchon decision by not appealing the decision, it becomes a precedent, which is concerning based on the language of the decision. Nonetheless, Truchon required the government to amend the law by removing the requirement that natural death be reasonably foreseeable. Bill C-7 goes far beyond the Truchon decision.
The second concern is that the phrase “natural death must be reasonably foreseeable” is not defined. Therefore, it lacks an effective meaning. The lack of definition has led to deaths that were not originally foreseen by legislators in 2016. For instance, an article by Joan Bryden, which just came out, published recently by the Associated Press, interviews Vancouver psychiatrist Derryck Smith who said that he was personally involved in two cases where people suffered solely from severe mental disorders and he said he knows of similar cases. Smith was not following the intent of the law when he lethally injected these people. Yet, because the law lacks effective death definition, no one is talking about prosecuting Dr. Smith.
The comments from Dr. Smith did not surprise me considering the death of Alan Nichols in July 2019. Nichols died by lethal injection, MAID, in Chilliwack, B.C., even though the family urged the doctors to re-examine their decision. Alan Nichols was not physically ill, but he lived with chronic depression. In this case, his downturn was linked to the fact that his brother, who had helped him with his banking, shopping and basic living, went on a planned vacation, a dream trip for his brother. In his absence, Alan experienced a significant downturn in his mental health. It is concerning that Bill C-7 continues to use the phrase “natural death is reasonably foreseeable” and it continues to leave this phrase undefined.
We’re also concerned that the term “psychological suffering” remains undefined. Bill C-7 claims to prevent MAID for mental illness alone, but without defining psychological suffering, it appears the claim concerning mental illness is only ink on paper. If a person’s natural death is deemed to be reasonably foreseeable, what Bill C-7 does is create a two-tier decision-making process. If a person’s natural death is deemed reasonably foreseeable, then there is no reflection period, enabling in some circumstances a same-day death. This is concerning because a person with significant health concerns can die on a bad day and never have the opportunity to experience the good day. Research by Canada’s Dr. Harvey Chochinov proves that a person’s will to live fluctuates over time. If a person’s natural death is deemed not to be reasonably foreseeable, then the person would have a 90-day waiting period. There are problems with this approach. Without defining the meaning of the phrase “natural death is reasonably foreseeable,” how will assessors determine if a person can die immediately or be required to wait 90 days? This will lead to some people with the same condition dying immediately and others being required to wait 90 days. This approach creates an untenable inequity in the law. If not amended, this portion of the law will be struck down by a future court decision.
We advise that Bill C-7 define the phrase “natural death is reasonably foreseeable” and retain the current 10-day reflection period.
I mentioned earlier the issue of mental illness. There has been a lot of discussion about the claim that Bill C-7 prevents MAID for mental illness alone. It has been my position that Bill C-14 did not prevent MAID for mental illness alone, and Bill C-7 also fails to prevent MAID in these circumstances since Bill C-14 and Bill C-7 do not define the meaning of the term “psychological suffering.” The law permits MAID for people who are physically or psychologically suffering if the illness, disease or disability, or that state of decline, causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under the conditions they consider acceptable. Mental illness is considered to be a form of psychological suffering. Since the law is based on subjective and not objective parameters, without defining psychological suffering, mental illness is not prohibited by the bill.
The Chair: Thank you very much. You can further elaborate on what you have to say in the questions you are asked.
We’ll go to the first question from Senator Petitclerc, the sponsor of this bill.
Senator Petitclerc: Thanks to all our witnesses for their introductory comments, which are a great help in our discussions.
My question is for Mr. Krausert, but if anyone else wants to add something, I invite you to do so. My question is quite specific. Bill C-7 adds certain safeguards where death is not reasonably foreseeable. For example, there’s a minimum 90-day assessment period. Some people have given us examples, more specifically in the case of an accident or trauma victim who is now a paraplegic or quadriplegic. One often sees a form of suicidal ideation in these circumstances, and “suicidal ideation” does not mean acting on the idea. I’d like to hear what you have to say on the subject, particularly the safeguard set forth in new subsection 241.2(3.1) of the bill, which provides that the medical practitioner or nurse practitioner must inform the person of the means available to relieve their suffering, including where psychological consultation services and mental health support services are indicated. I’d like to know whether you consider these safeguards adequate and effective.
Mr. Krausert: Thank you very much for the question. There are a few points you brought up that I think can be answered in a similar way as when Mr. Henick spoke to us.
First of all, with regards to the 90 days, depression doesn’t know calendar time. I’ve suffered from severe depression on multiple occasions in my life, and during the worst of those, it took a good half a year before things started to change. The timing for everyone is different, also depending on the types of supports that they have.
I really related to what Mr. Henick was saying about the lying voice inside that’s your own voice. That voice is very strong. It’s stronger than many other voices that are coming from the external. So being provided with alternatives, with things that you could try — quite frankly, the depressed mind may not even have the energy to entertain any of those suggestions, nor may they appear appealing whatsoever.
It’s in this very vulnerable state that I certainly have contemplated the worst. I could definitely see an easy jump to wanting to end it all for the benefit of others, so I’m not a burden. Now, having many years past that point, I’m so glad that I never had to go that route. I’m not so certain that those are sufficient safeguards. I think the only sufficient safeguard is to absolutely not allow eligibility for MAID for a mental disorder alone.
Senator Petitclerc: I don’t know whether anyone else would like to add something.
Mr. Mishara: Research has been done on car accident victims —
The Chair: Senator Petitclerc’s four minutes have expired; I’m sorry. We have to move on.
Senators, I’m in a dilemma. The time has marched on because I was a little too slack in the last panel. Can I ask that you keep tight questions? And, witnesses, I respectfully ask that you keep your answers tight.
Mr. Mishara, you’ll get another chance with some of the other senators.
Senator Carignan: I would ask Mr. Mishara to continue his answer, first of all. Second, I’d like you to tell me the difference between the terms “assisted suicide” or “euthanasia” and “medical assistance in dying.” Can you draw a distinction and explain the danger involved in using one term rather than the other?
Mr. Mishara: The expression “medical assistance in dying” includes the two practices that, elsewhere in the world, are called “euthanasia.” This is when a physician intervenes to put an end to a person’s life. Assisted suicide is the procedure whereby a physician prescribes or administers a drug that a person can then take to commit suicide. Assisted suicide is the only legal method in the United States. The difference is that, in assisted suicide, the person can more easily control the moment of his or her death.
In Oregon, for example, 40% of individuals who manage to convince their physicians that they’re suffering so much they want to die acquire the poison but don’t take it. They keep it in case they need it. On the other hand, in situations where a physician makes an appointment to administer medical assistance in dying, which elsewhere is called euthanasia, the person very rarely says, “Can you come back next week? I may live another week.” Both are currently legal in Canada. It is obviously easier to call it “medical assistance in dying” than “euthanasia,” but the result is still death.
What I was going to say is that the research shows that, in general, fewer seriously disabled individuals, such as quadriplegics who have major disabilities, want to die than those who don’t have those disabilities. All the research indicates that this is the case. However, in the case of persons who suddenly lose their capacity in an accident, for example — research has been done on accidents in which persons became paralyzed — a year or more may elapse before the individual truly feels like living again. The fundamental question that must be considered is this: Is it possible that the reasons why a person wants to die can be altered by intervention?
Canada is the only country in the world that has legalized medical assistance in dying but that requires physicians not to provide medical assistance in dying to treat a patient’s suffering if there are other ways to shorten it. Here physicians are required to explain what’s available. Bill C-7 provides that physician and patient must agree that they have seriously considered all options to relieve the patient’s pain. Everywhere else in the world, there is an obligation for physician and patient to be convinced that there are no other means.
The Chair: Thank you, Mr. Mishara, but we must move on.
Senator Batters: My question is for Mark Henick.
Mark, I’ve known you for a few years. I met you because you’re an outstanding mental health advocate. You have used your compelling personal experience of having survived a serious suicide attempt to help so many Canadians.
During the course of this study so far, we’ve been hearing from experts, professors and lawyers who tell us that excluding mental illness from assisted suicide is discriminatory and stigmatizing to those who suffer with mental illness. But rather than just hearing from these professors and lawyers with ivory-tower ideas, I want to hear from people who actually struggle with mental illness and have resisted suicidal urges, the millions of Canadians who suffer with depression and anxiety, and who need hope. For them, assisted suicide for mental illness is not some theoretical, legalistic question to ponder; it is a shockingly real issue.
So, Mark, as someone who has come through the darkest times yourself, do you think that excluding mental illness from MAID is discriminating or stigmatizing?
Mr. Henick: Thank you, Senator Batters.
No, I do not think it is exclusionary; in fact, I think it is the opposite. We have done a very good job over the past 10 years or so of raising mental health awareness and allowing people to have the conversation in more contexts than before. However, because we’ve thought of mental illness in the same old stigmatizing and discriminatory way for virtually all of human history, we have only started to scratch the surface. That level of awareness, of mental health literacy hasn’t become that sophisticated yet, so when we say things like “depression is just like cancer,” it’s actually not. It collapses important differences, particularly with respect to the social determinants of health.
Dr. Heather Stuart, a researcher out of Queen’s University, has referred to the fact that when we bang the drum of biological determinism too hard, it embeds stigma further. That is, when we communicate that people’s brains were broken and that they were born this way, for example, and they can’t change because they happen to be one of the unlucky few, that’s not helpful, and it’s not scientifically true; it’s not accurate. We know that recovery from even severe and persistent mental illnesses is not only possible, but rather, when people receive the health and support that they need, and the amount and type they need when they need it, recovery is actually expected. Recovery is likely when they get the help they need.
The fact that we’re failing to do that — to help them live — and now we’re jumping to the conclusion of helping them die is unconscionable.
If we really want to raise effective mental health awareness and help those who are struggling, then we need to actually help them. We have a long road to go before we accomplish that goal.
Senator Batters: Yes, and for you, when you were in those darkest times, and if assist assisted suicide would have been available to those solely with mental illness, would you have taken advantage of that at the time? What do you think of that now?
Mr. Henick: I absolutely would have. The suffering was so grievous that I couldn’t see anything outside of it. The way mental illness works — and I’ve talked about this before — is that it collapses around you and puts blinders on you so that even if there are other options, you can’t always see them.
That’s a function of what the illness does. The depression doesn’t want to be caught or vacated from you; it burrows itself inside you.
So I think I absolutely would have. Because of my history of trauma — research shows that young kids, especially, who have a history of trauma tend to age and mature faster because they need to out of self-protective necessity — I easily would have been a mature minor. Anyone who knew me as a minor would have said that, too, and I would have qualified. Because of my extensive psychiatric history, I think I would still qualify on some days. So I hope I never fall into that place again where I can’t see outside of my own blinders — the blinders that the illness has put on me — because I don’t think this should be an option. I’ve had a beautiful life since I was able to get to the other side of that mountain.
Senator Batters: Thank you.
Senator Dalphond: My question is for Mr. Mishara. I see you’re the founder of a centre for research and intervention on suicide and euthanasia that became well known after Quebec passed its medical assistance in dying legislation. Did your centre notice any impact as a result of the adoption and introduction of that act in Quebec?
Mr. Mishara: What interests me in particular is the impact on suicide prevention. What happens now is that individuals are taken to hospital because they have attempted suicide, and they subsequently request assistance in dying. Some suicide prevention centres receive calls from persons who are suicidal and who say, “Yes, I want medical assistance in dying now.”
Senator Dalphond: Have you seen people who have obtained medical assistance in dying? Requesting it is one thing, but does the system grant it? Have you seen whether the system actually grants it?
Mr. Mishara: Absolutely. The system grants it. That’s a fact these days. What concerns me is the lack of any duty not to authorize medical assistance in dying for persons who may benefit from intervention and the absence of control over this matter in Canada.
Senator Dalphond: Have you seen people in Quebec receive medical assistance in dying under Quebec’s legislation who you think should not have received it?
Mr. Mishara: One of the problems is the third point I was trying to raise, the fact that our oversight system is very different from systems elsewhere, in the Netherlands, for example. There, investigations are conducted and enough details are revealed. The process is public and transparent. Annual reports are published on specific cases. Researchers have access to the data and can check the percentage of cases in which someone received medical assistance in dying and the situations where that was not appropriate. There are no data on that here because —
Senator Dalphond: What you’re saying is that there’s no evidence?
Mr. Mishara: There’s no evidence in any sense of that term. We have a duty —
Senator Dalphond: Except for the 66% of people who had cancer.
Mr. Mishara: — when we terminate someone’s life, to make sure that it’s done according to the rules and that there’s no hope for that person.
Senator Dalphond: Fine. Thank you.
Senator Boyer: This question is for Mr. Krausert.
I want to thank you all for your presentations. As you know, suicide rates are higher among First Nations, Métis and Inuit than non-Indigenous people. While many factors account for this higher rate, including socio-economic inequalities and the intergenerational trauma Indigenous people experience, the lack of access to culturally appropriate mental health services also plays a significant role.
If those with mental illness were able to access MAID, how important would it be for the government to also invest in improving access to mental health services, particularly for those living in remote Indigenous communities where culturally appropriate mental health supports are severely lacking?
Mr. Krausert: Thank you for the question. It’s extremely important that there’s additional investment in Canada with respect to mental health. It is underfunded and there are certain populations that lack support. When you see an increase in suicide in certain sectors, one of the causes is a lack of support in that area. For those who might be considering taking their lives, rather than assisting them in dying, we should be assisting them in living. We should be investing in messaging, psychiatric and psychological supports and counselling — culturally appropriate, of course — that go toward bringing hope and life promotion.
Senator Boyer: Thank you.
Senator Dupuis: I don’t have any questions, thank you.
Senator Boisvenu: I’m very sensitive to the suicide problem. Sometimes I get the feeling no one recognizes patients who are at the end of their lives and suffering enormously and for whom it’s impossible to restore some quality of life. My question is for Mr. Mishara. There have been stories in Quebec of persons with degenerative diseases who starve themselves to death to put an end to their suffering because the medical profession refuses to release them from that suffering by granting them an honourable death. What’s your response to those stories? The stories I’ve heard are mainly about women with degenerative diseases whose suffering could not be relieved by drugs and who committed suicide by refusing to eat in order to halt the pain. What’s your response to those patients?
Mr. Mishara: Is that question for me? There are definitely cases in which people suffer, and that’s why we’re seeing the legal expansion of medical assistance in dying. To my mind, though, the devil’s in the details.
Senator Boisvenu: My question’s a fundamental one. As you know, the right to live and the right to suffer are two very different moral concepts. In your speech, you seemed to overlook the rights of persons who suffer tremendously, to the point where they have no quality of life, and whose deaths may be foreseeable within six months, one year or two years. Their conscious choice is to terminate their suffering. I repeat my question: Do we let those persons slowly commit suicide? Doesn’t the medical profession have a moral duty to put an end to their suffering?
Mr. Mishara: The fundamental question in my mind is this: Is their suffering unavoidable? The fact that someone has a serious degenerative disease doesn’t mean that the reason he or she is suffering isn’t treatable. Palliative care workers would say that all physical suffering can be relieved in the vast majority of cases. Moral suffering can often be relieved. I agree with you —
Senator Boisvenu: Mr. Mishara, six members of my family died of cancer. They had to be completely drugged with maximum doses of morphine to stop their suffering.
Mr. Mishara: Pain treatments have evolved. We no longer just knock people out to treat their pain when providing good palliative care. I agree with you that there are some cases where I’m not opposed to expanding medical assistance in dying, but I have one major fear. I don’t want people who could continue living even another week or a few weeks at the end of their lives, and who could enjoy a good life during that period of time, to die as a result of an absence of any obligation, when pain treatments are available —
Senator Boisvenu: Do you agree with me —
The Chair: Senator Boisvenu, I’m sorry; we have to move on.
Senator Kutcher: Thank you all for your passion in addressing this important issue. As Mr. Krausert reminded us, we also have to look to evidence.
Mr. Krausert, this question is for you. In Belgium, an interesting study showed that those denied access to MAID were two times higher than those who were allowed access to MAID to die by suicide. Since 2002, the suicide rates in Belgium have decreased about 20%. In the Netherlands, they have stayed the same. In Switzerland, they have also decreased.
Given this evidence that there is no relationship between MAID and suicide, what is your concern that MAID provided for mental disorders in Canada will increase the rate of suicide in Canada?
Mr. Krausert: Thank you for your question. My comments were to whether or not there will actually be people who will access MAID who otherwise will have a beneficial and meaningful life for many years.
The correlations, I think, need a lot more study, but I’m looking at whether a condition has evidence that satisfies the eligibility for MAID. I can’t speak to what’s happening in other countries, but here in Canada, we have to ask ourselves this question: For mental disorders alone, are we going to allow for assisted death that will, in fact, deprive their families and themselves a potential lifetime of contributing to society and benefiting their families? That’s the evidence that I was talking about as lacking. And it is a dangerous road to go down, because just as we in the criminal system would rather have guilty persons set free than an innocent person put in jail, the same sort of analogy applies to where allow somebody to go to their death with medical assistance.
Senator Kutcher: In your opinion, is it a paternalistic perspective that decides whether someone has a meaningful life, or is it an individual’s decision to make that decision on their own basis?
Mr. Krausert: I’m not talking about the decision about having a meaningful life. I’m talking about the opportunity of having a meaningful life. That mindset in which somebody with a mental disorder is operating is not one from which a subjective decision should be reliable. There is a lot that can be done to relieve suffering. There is no evidence that their condition is not able to be remedied. Therefore, we should not engage in allowing for medical assistance in dying for those with a mental disorder that is causing their suffering.
The Chair: To all four witnesses, I want to thank you. The topic you have raised is very important. We don’t make light of that. And you certainly have given us a lot to think about. If, in the future, while we’re doing this study this week, there is any other material that you want to provide to us, please feel free to send it to the clerk and I can assure you, we will read it. Thank you very much for your interventions.
Honourable senators, we are now ready for our third panel of the day. I’m very pleased to tell you that today we have, from the Canadian Nurses Association, Michael Villeneuve, Chief Executive Officer; we have, from the College of Family Physicians of Canada, Dr. Francine Lemire, Chief Executive Officer and Dr. Catherine Cervin, President; and from the Royal College of Physicians and Surgeons of Canada, Dr. Susan Moffatt-Bruce, Chief Executive Officer.
I’m really happy to welcome all three of you. We look forward to hearing from you. I know that the clerk has already informed you, but each group has five minutes. We’ll start with the Canadian Nurses Association, please.
Michael Villeneuve, Chief Executive Officer, Canadian Nurses Association: Thank you, Madam Chair, and members of the committee.
Good afternoon and greetings to the other panellists who are also present today. I would like to start by acknowledging the Algonquin Anishnaabeg peoples whose traditional lands I am speaking to you from today here in what is eastern Ontario. Thank you for the opportunity of speaking to you on this very important topic of medical assistance in dying.
It has been a very difficult year for everyone in the country. Certainly for nursing, this has not been the Year of the Nurse and Midwife that we had imagined and planned. However, we are very pleased to be involved in this important legislative work.
I have worked in health systems for more than 40 years, and 37 of those as a registered nurse. I have had the honour of serving as the CEO of the Canadian Nurses Association since 2017.
For those of you who may not know, CNA is the national and global professional voice of Canadian nursing. We represent nurses across all 13 provinces and territories, and many of our members live in Indigenous communities.
Canada’s 440,000 nurses touch the lives of patients at every point of care. Just by our volume, no provider has as much face time with the public where these complex and often deeply moral, very human issues arise. The transformative legislative and moral decisions proposed by Bill C-7 carry huge impacts for nurses who will be responsible to live with them in their practice settings every day.
Nurses are an integral part of the delivery of MAID, and it is vital that this committee hears their voices so I am pleased that we were invited. Nurses have acquired significant knowledge and experience from nearly five years of MAID in practice and have valuable knowledge to inform the impending changes to the legislation.
CNA has been actively involved in work related to MAID for several years and was a key stakeholder when Bill C-14 was passed in 2016, as well as during the government’s consultations in early 2020. CNA advocates for safeguards to protect the rights of patients and nurses, as well as for system-level changes, including access to great palliative care and accountability mechanisms.
I will now turn to Bill C-7, Madam Chair.
Overall, CNA believes that the federal government has listened to our initial feedback during the consultation phase earlier this year. We are pleased to see that some of our recommendations were included, such as the removal of the 10-day reflection period, removal of final consent for those who lose capacity and amending the legislation to allow for one independent witness.
Regarding the new stream for cases where natural death is not foreseeable, we heard from nurse experts that the proposed safeguards are adequate and sufficient. We emphasize that legal expertise for updating MAID guideline documentation will be critical to ensure all new items in the legislation are acknowledged and understood by patients and practitioners.
In general, we are supportive of the government’s proposed Bill C-7. However, we believe that further improvements and additional clarification would strengthen the legislation and provide better care for patients and legal protection for nurses.
We propose four recommendations to Bill C-7.
First, we strongly recommend that Bill C-7 include an additional five-year review period of MAID by a committee of Parliament.
Second, we recommend removing wording that stipulates that the practitioner providing MAID does not know or believe they are connected to the other practitioner who assesses the MAID criteria.
Third, CNA recommends clarifying that practitioners can initiate a discussion on the lawful provision of MAID.
Fourth, we recommend clarifying the proposed “preliminary assessment.” This provision is causing confusion and concerns among nurses.
Furthermore, CNA strongly recommends that parliamentarians conduct, as soon as possible, the broader review of MAID to address important issues beyond Bill C-7.
In wrapping up, Madam Chair, I would like to share our gratitude to the Canadian Nurses Protective Society, which has been an important partner on MAID-related work.
CNA will submit a written brief to the committee with more information. In the meantime, I am happy to answer any questions.
Thank you again, Madam Chair, for the opportunity to speak to this committee today.
The Chair: Thank you very much, Mr. Villeneuve. We will now hear from the College of Family Physicians of Canada.
Dr. Francine Lemire, Chief Executive Officer, College of Family Physicians of Canada: Thank you, Madam Chair. Thank you for inviting the College of Family Physicians of Canada, or CFPC, to be part of the discussion regarding Bill C-7.
My name is Francine Lemire. I’m a family physician and I am the CEO of the CFPC and its foundation, the Foundation for Advancing Family Medicine. I’m accompanied today by our president, Dr. Catherine Cervin, who practised for a long time in Nova Scotia and who more recently has been vice-dean of the Northern Ontario School of Medicine.
The College of Family Physicians of Canada represents 40,000 members across the country. It is the professional organization responsible for establishing standards for the training, certification and lifelong education of family physicians. The college accredits postgraduate family medicine training in Canada’s 17 medical schools. We are also a professional organization promoting best practices and advocating on behalf of family medicine, family physicians and the patients they serve.
We understand the sensitivity and importance of this bill. We are generally supportive of recommended amendments, including the elimination of the 10-day waiting period in situations where death is in the foreseeable future. We also support the need for a waiting period in instances where a life-limiting illness is at play but where the timing of death is not foreseeable.
Our response to Bill C-7 builds upon A Guide for Reflection on Ethical Issues Concerning Assisted Suicide and Voluntary Euthanasia that we released in 2015.
Our primary principle described therein is that physicians must be cognizant of the scope of their responsibility in providing care to a patient. The CFPC opposes in principle any action that would abandon a patient without any options or direction. This applies to both the issue of conscientious objection and our support of the changes described in Bill C-7 as they aim to meet the needs of patients.
We are not in a position to comment definitively regarding requests for medical assistance in dying in cases where severe mental illness is the sole reason for the request. This said, we acknowledge the importance of being able to determine mental competence regarding the decision to be made. We also want to acknowledge the intractable suffering that may be associated with severe mental illness and the human rights issues related to this. I will now ask Dr. Cervin to complete our presentation.
Dr. Catherine Cervin, President, College of Family Physicians of Canada: Thank you, Dr. Lemire, and thank you to the committee. In Canada, we have the shortest postgraduate training program in the world for family doctors — two years. Our expectations of the core training include all the elements of accompaniment of a patient in decisions to be made when faced with a life-limiting illness. It does not include, as mandatory, the procedure of providing medical assistance in dying. Rather, as a certifying body for continuing professional development for family physicians, we have certified a number of educational activities covering this area, and we would be pleased to collaborate with other medical organizations to create robust educational programs that meet an accepted standard in the delivery of medical assistance in dying.
We recognize that an educational standard is a necessary procedural safeguard both for the assessment of patients requesting medical assistance in dying and to ensure that delivery of the service is by health care providers with expertise and demonstrated competence.
In considering health equity, it is important that we be able to ensure access to quality palliative care and/or medical assistance in dying close to patients’ homes. This is of particular importance in resource-constrained environments, rural and remote and/or Indigenous communities.
The CFPC’s Medical Assistance in Dying Resource Group was consulted leading up to our meetings with Senators Kutcher and Ravalia, and for this meeting today. Our next steps will be to publish a statement regarding Bill C-7, as well as communicate the amended legislation to our members once it is finalized. We appreciate the opportunity to have been included in the consultation regarding this important legislation. Thank you.
The Chair: Thank you, Dr. Cervin. We will now hear from Dr. Moffatt-Bruce, please.
Dr. Susan Moffatt-Bruce, Chief Executive Officer, Royal College of Physicians and Surgeons of Canada: Thank you very much. I’m Susan Moffatt-Bruce, and I’m the CEO of the Royal College of Physicians and Surgeons of Canada. I would like to recognize the traditional lands from which I speak to you of the Mi’kmaq, as I am in Prince Edward Island today.
The Royal College of Physicians and Surgeons of Canada sets standards for residency, curriculum and assessment for over 70 specialties across both medical and surgical disciplines. We also set standards for accreditation of learning sites, and we support lifelong learning for all of our fellows, who are 49,000 plus.
Therefore, relative to this very important bill and the fact that MAID is a legislated choice for Canadians, we, the Royal College, feel our main role is in awareness of the content, impact and changes, and ongoing education relative to the initial bill and subsequent revisions.
Our fellows have voices, and throughout these hearings, we are very pleased that they are being heard. We support our fellows, and we look to continuously support them through awareness and lifelong education. Evaluation and re-evaluation is an important part of any new and impactful legislation, and we are here to support our members and the patients that they serve amidst this change.
The care of patients at the end of life is an important competency, and we feel that this competency should be interwoven in all of our standards, our curriculum and our lifelong learning. We are committed to enhancing that competency in alignment and in collaboration with our sister colleges so as to serve Canadians throughout residency education and into fellowship, which is a lifetime of clinical practice.
Going forward, we commit to working with our internal committees, our sister colleges, MCC, CFPC and other national organizations, the Canadian Nurses Association, CMA and our national specialty societies, even as a convenor, so that we can come together and have cohesive and collaborative learning that will be life long.
We truly appreciate being active in these discussions so that we can make our fellows aware, help to deliver and inform our members of the changes, and commit to lifelong learning modalities. This will help to ensure that MAID is delivered safely and effectively to those patients who may be in need of this in a very important chapter of their lives. Thank you. We appreciate being included.
The Chair: Thank you very much. Thanks to all of you for making time to speak to us today. Please don’t see this as the only time; if you have any further information, feel free to send it to the clerk of the committee. I’ll now ask Senator Petitclerc, the sponsor of this bill, to start with questions.
Senator Petitclerc: Thanks to our witnesses for being here today and for their presentations. Thanks as well to your members for their sensitive and rigorous approach and for their compassion for those who have received medical assistance in dying for more than five years now.
My question will be brief, and I’d like to hear what you all have to say on the subject. As you know, Bill C-7 adds safeguards for those whose natural death is not reasonably foreseeable. Your members will be enforcing these new safeguards on the ground. I’m thinking, for example, of new paragraph 241.2(3.1)(g), which provides that the physician or nurse practitioner must ensure that the person has been informed of all means available to relieve his or her suffering. This provision is quite precise and mentions psychological counselling services and mental health and disability support services. I’m thinking of the safeguards and what they entail for your members. I’d like to hear what you have to say about the additional protection provided to individuals who may be vulnerable. Please give us your views on these additional safeguards.
Mr. Villeneuve: I’ll make a brief comment. We spoke with nurses leading up to the intended original review of MAID earlier in the year, so we had undertaken work through the year before by speaking to nurse experts, both nurses who support doctors and nurse practitioners in delivering MAID and then the actual nurse practitioners themselves who do. It is the feeling of the experts we spoke to that the safeguards are built in well and are sufficient.
Senator Petitclerc: Thank you. Can I have comments from the other witnesses if we have the time?
The Chair: We have a little time, two more minutes.
Dr. Lemire: To put it briefly, I think the safeguards cited in the bill are appropriate. My comment will be the same as that of Mr. Villeneuve. The challenge will be in their implementation. The safeguards must be appropriate in order to provide adequate protection. At the same time, they must not constitute a barrier or an inappropriate delay in a situation of significant end-of-life suffering. I think that’s where the challenge will be. However, we think the safeguards are appropriate.
Dr. Moffatt-Bruce: In general, I would agree with Dr. Lemire that the measures put in place are reasonable. It’s our responsibility to ensure that our fellows, our members, understand what they are and how best to collaborate with other physicians in this very important delivery of care. I also think it’s very important, just as we are here today, to continuously evaluate whether or not they are adequate, whether or not they are meeting the patient’s needs, and I think that continuous improvement and quality improvement is absolutely essential to such an important program.
Senator Carignan: I have two questions. The first concerns the start of the 90-day period. It will start with the first assessment. That doesn’t necessarily reflect the moment when the person makes the request but rather when the first assessment may be conducted. Based on your experience in the field, will that assessment begin within a reasonable time frame? If so, what will the timeline be and what will be the disparities among the regions? Second, with regard to discussions of available services and care, particularly palliative care, there are a lot of disparities among the regions. How far do you think you can go in implementing it all, and what will be done if someone is told that palliative care is offered but that there’s in fact a waiting list and that the services offered are in fact theoretical in certain regions? I’d like to hear what you have to say about that.
Mr. Villeneuve: Thank you for the question. I will share that one of our concerns as a nursing body has been the issue you raise around palliative care. We spoke about this with a different committee earlier in the year.
It’s important to say and to be very clear that MAID should not be a solution for a lack of palliative care. You list all the other options to which a patient should be entitled, but if you can’t provide those other options, it’s a bit of a false decision. So we’re very concerned.
I don’t need to tell all of you that most Canadians would benefit from some type of palliative care at end of life and most don’t get it. When they do, it’s in the last month of life. We are concerned about the availability of primary care.
To your first question, I lost a little bit of the translation. We are concerned about inequity across, for example, Indigenous communities, quite rural and remote locations and so on, whether they will have the same access as people in urban areas.
I hope that answers the question, at least partly.
Dr. Lemire: I’ll ask my colleague to answer that question because her workplace covers a rural sector.
Cathy, would you like to comment based on your experience in a resource-constrained environment?
Dr. Cervin: I’ll start by saying that in rural environments, family physicians without special qualifications are capable and do provide palliative care to their patients. A lack of access to people with particular qualifications does not mean a lack of access to palliative care. In fact, one of my rural colleague’s particular areas of research is teaching palliative care in rural locations.
As you have heard, we share the concern that vulnerable populations in remote areas do not have adequate access even to primary care, so that is absolutely a concern.
To the concern about the delay prior to the 90-day waiting period, I don’t think I can comment on what that would be because it would vary so much from region to region, but I think everyone has reflected the challenge in Canada of regional disparities to access to all kinds of health care, including MAID and palliative care.
Senator Batters: My first question is to the College of Family Physicians of Canada. I want to talk about the proposed 90-day mandatory assessment period for those whose death is not reasonably foreseeable.
What we know is that it often takes at least 90 days to get an appointment with a rheumatologist, as well as many other pain specialists, and it can often take between 150 and 200 days to get placed in a proper long-term care facility in Ontario. As a result of that, doesn’t the 90-day waiting period seem grossly insufficient, and would it not suggest, then, in many cases that the expanded assisted suicide is sometimes making it easier to die than to live?
Dr. Lemire: I’ll start, but Cathy may have things to add.
I don’t think that we can pretend to feel categorical about the 90 days. A number of us have expressed that period as being reasonable based on reasonable judgment by people as a starting point, and I think that the difficulties in access to care, to all levels of care, are real, and you have given some very concrete examples of this.
The other thing that comes with access to care, though, is that even in a system that is not as appropriate regarding access as we would like, there is a priority that does take place, and there are instances where urgency is recognized and where priorities can be adjusted depending on the needs of the patients whom we see. I would anticipate that the same would apply to this as applies in other areas of care.
Will it be perfect? In all likelihood not. This is why I would also support the recommendation from the Canadian Nurses Association to conduct an appropriate evaluation of this bill and its application within a reasonable period of time so that we can see if, in fact, this is happening.
Senator Batters: Thank you. I appreciate that.
My second question is to the Canadian Nurses Association. Something that many Canadians do not know is that the first assisted suicide bill, Bill C-14, allows not only doctors to perform assisted suicides, but nurse practitioners can also approve and perform assisted suicides. I’m wondering, how many nurse practitioners in Canada can approve or perform assisted suicides? For example, how many nurse practitioners are there in Canada?
I was surprised to hear you say in your opening statement that you want nurses to have the ability to proactively initiate discussion with patients about assisted suicide. Yesterday, we heard evidence from doctors stating that they believe it’s crucial that assisted suicide must be patient-led. We have heard about the case of Roger Foley in which he was offered MAID when he was asking about home care options.
Don’t you believe, as in other international jurisdictions, that those conversations really should be patient-led to avoid the risk of coercion — subtle, overt or perceived — with respect to a procedure as serious and final as assisted suicide?
Mr. Villeneuve: Thank you for the question. There are about 6,000 nurse practitioners in the country, but your question around how many currently deliver MAID is a good one. I’ll find out the information for you.
There is still a fairly low number of those procedures that have been carried out by nurse practitioners. If my memory serves me, from the most recent study, it was about 6%. It is growing over a period of time, but the procedure largely is delivered by physicians and supported by nurses.
The issue of the discussion is that the relationship with patients, just as physicians have, is a sacred space. I can tell you, having been a nurse for a very long time, there are times when conversations happen at three o’clock in the morning or in the most unlikely places.
Nurses have told us already when asked that, in such situations, it would have been helpful for them to say, “Have you thought about this option or that option?”
I have never in my life in critical care, with organ donations and so on, seen coercion. If anything, it’s the opposite; we’re a bit reluctant to talk about it. But sometimes, it frees up the conversation if a nurse or a doctor says, “What do you think about this? Have you thought about your life? Have you thought about your dying?”
The intent is not to coerce but rather to open up a conversation of options for a legal service with patients.
The Chair: Thank you very much.
Senator Dalphond: My question is a follow up on Senator Carignan’s question, which was not really answered.
We understand that the first assessment is the critical date that starts the clock for the 90-day period. Do we have any data about how much time it takes from somebody making an application for MAID and having the first assessment completed?
Mr. Villeneuve: Thank you for the question. I’m not sure if it was directed to me. I was going to ask my physician colleagues if they know. I do not know that data.
Dr. Moffatt-Bruce: Nor do we.
Dr. Lemire: We do not know that data.
Senator Dalphond: Okay, so perhaps another question. It’s about rural areas. The provision of MAID in rural areas would be done by the family doctor, in some cases. I guess that would be the same doctor who will have made the assessment a few months or weeks before. Is that a problem, compared to the urban situations where you will most likely deal with a different health provider at every step?
Mr. Villeneuve: I’ll give a brief answer. If it’s helpful, I just finished my term as a board chair of a rural hospital in eastern Ontario where we have delivered the service. Of course, it is sometimes delivered by nurse practitioners, not only family physicians and doctors.
But it has not been an issue, in our experience. We’re an hour from the big city, though. I can’t speak to more remote places, but we are concerned it may be more difficult in remote areas such as, for example, First Nations communities.
Dr. Cervin: I can speak, to a certain extent, to the remote communities such as in northwestern Ontario that are part of the northern Ontario school catchment area. In those communities, they are remote, and they will also have more than one physician providing care in that community, usually one week on, a couple of weeks off. So being rural does not necessarily mean only access to a single physician.
I’m afraid I don’t know the details, but it would seem reasonable to me that if a safeguard where another opinion could be sought, that could be done. I know, for example, in Nova Scotia, where I also have connections, providers are actually flown into communities when medical assistance in dying is being considered in order to provide consultation and access to MAID when necessary.
I think there is a degree of flexibility, and reasonable consultation with peers is a real possibility, I would say.
Senator Dalphond: Thank you.
Senator Martin: With regard to rural care, I’m just wondering, even in the cities — I’m in Vancouver — and under the current COVID-19 pandemic situation, there is a lot of online care. Then there have been major delays in pretty much every sector of the health sphere. I’m worried about the passage of this bill, the timing in which this is happening; with remote access, there are issues of connectivity, and something like this has to be done face to face. It’s not something we can do online.
I’m concerned about the timing of all this, because we are in a situation where we are seeing delays across the board. We don’t know how long this will continue. Would you speak to these concerns, in terms of delays aggravated by the current pandemic situation?
Dr. Moffatt-Bruce: That’s a very significant concern. We are in the midst of a tremendous number of changes, and this is one of them. I do think that, unfortunately, even with all the change and all the uncertainty around COVID, we still have patients in their final chapter who could benefit and will benefit from MAID.
In as much as we can, we need to consider that, think about the patient and think about how we can prioritize access and the ability to deliver this safely and effectively, not knowing how COVID is going to shape our world right now. We have to look to how to impact our patients, first and foremost.
Dr. Cervin: If I could just add to that, yes, a lot of care is virtual, and family physicians are also seeing people in person when necessary. One of the critical aspects of that is adequate access to personal protective equipment. For the moment, that is much improved compared to the beginning of the pandemic, but that is absolutely critical for the good care of patients — the ability to have the PPE to see them in person, as you point out, when it’s necessary to have that kind of discussion.
Senator Martin: Thank you.
The other concern I have on many issues is the fact that we live in a very diverse country where the heritage language could be from any number of countries. In this area of providing, offering or discussing MAID, I’m quite worried about what is lost in translation, the access to the services and counselling in the language that would be appropriate. It just seems like there are many gaps.
Would you speak to these concerns and whether, as a country, we are ready to look at end of life and this type of compassionate care when we don’t all speak the same language? It’s highly sensitive for families. I worry about those gaps as well.
Mr. Villeneuve: I’ll make what is hopefully a brief comment. First, I would say you’re absolutely correct, senator. We can always do better, and we have been confronted with a national “looking in” on ourselves around systemic racism and so on, this year in particular.
However, there are a number of safeguards in place that have been there for a number of years, for example, around organ donation and really being very clear with patients who are critically brain-injured, for example, who are going to have organs donated. Those are people from all kinds of different backgrounds. Of course, we have also had five years of MAID already, so this already exists.
Our view is that, yes, you can always improve, but Canadians have been talking about this for 30 years and seem to support it. We just want to build the right safeguards around it.
Senator Martin: Do I have time for one last question?
The Chair: I apologize, no.
Senator Martin: I’ll go on round two, if there is time.
Senator Keating: My question is for Dr. Lemire.
Everyone who appeared before you today mainly discussed their support for government policies, whether they were for or against the act. I think they provided some very personal and institutional options.
However, no one discussed the field experience of the providers of medical assistance in dying. I’d like to get your impressions of the people who request medical assistance in dying. In your opinion, do they clearly understand the choices and options presented to them? In fact, the opposite suggestion has also been made.
Dr. Lemire: I don’t think I can answer that question with any convincing data. The only thing I can discuss with you is an anecdotal incident that my colleagues experienced. My colleagues say they’re able to have a high-quality and informed discussion with patients wishing to inquire about medical assistance in dying. Where they have run into problems is with the timeline.
We’ve discussed the 90-day period, and what I’ve witnessed through my colleagues is the 10-day wait for those who’ve made an informed decision. My colleagues and the patients in their care are most concerned about the timeline.
Senator Keating: Thank you very much. That’s the question I asked you. I wasn’t actually expecting figures; I wanted to learn more about the human aspect of the process.
Senator Boisvenu: Thanks to the witnesses for addressing some very complex and, especially, highly emotional topics that straddle a very thin line between moral and scientific debate.
My question is for our three witnesses. The fear that people most often express outside this debate concerns the shortening of the period when a patient loses consciousness and the administration of medical assistance in dying has been authorized, either by proxy or as provided by law.
On what criteria do medical professionals rely in shortening the time period, which is currently 90 days, when the patient is losing consciousness?
Dr. Lemire: I don’t have a complete answer to that question. I hope the legislative framework will help us, as physicians and nursing practitioners, in what will be difficult conditions. I don’t think we have a defined position on the subject.
Senator Boisvenu: Does the act provide for that sort of framework? Having read the text of the bill, I’ve seen no medical directive outlining the criteria on which you would exercise your professional judgment if the time period is shortened.
Dr. Lemire: I have nothing to add to that.
Are you able to add to this?
Dr. Moffatt-Bruce: I’ll add that I think, unfortunately, when patients are in this chapter of their life, it is somewhat unpredictable. I think it would behoove us to work with those who provide MAID, as well as the families that had to experience this, to understand exactly what would be the mechanism to shorten that period of time to be of benefit to the family and patient.
Senator Boyer: My question is for anybody on the panel, and it has to do with jurisdiction. Have you run into any challenges between on-reserve federal jurisdiction and the provincial realm of health care in relation to MAID, and could Bill C-7 alleviate any of these problems?
Mr. Villeneuve: I have not heard that through any of our nursing channels. As you know, a great deal of the care delivered, especially in remote Indigenous communities, is nurse-led. I have not heard any concerns about that expressed; I can’t help.
Senator Boyer: Thank you. Anybody else?
Dr. Moffatt-Bruce: We have not heard anything through our advocacy routes. Although, as always, a clear and definitive bill, as this is developing, will be helpful to those providing the care.
Senator Boyer: Thank you.
Senator Cotter: Thank you to all of you for the presentations and the clarity that you have provided. My question is a general one, and it relates to the matter of autonomy and the selection of medical assistance in dying. One of the concerns that has been expressed by some presenters and commentators is around autonomy and the degree to which the life circumstances of people who might be selecting medical assistance in dying are compromised, or potentially compromised, in their end of life choices, and in some respect that limits the autonomy of their decision making. Since you are representatives of significant numbers of people who provide the service with respect to medical assistance in dying, would you be able to comment on the degree to which that has presented itself to some of your colleagues in the delivery of medical assistance in dying services? Thank you.
Mr. Villeneuve: What I will commit to do, if it’s helpful, is go back to our focus groups with our many nurses — the study was rushed along when the timing of this changed — and see if we can provide any further information. I would be happy to put that in our submission. I don’t really have an answer to that question, but it’s a very good one.
Dr. Lemire: I don’t have the answer to that either, other than to emphasize what we have already mentioned. That is, one of our concerns is to make sure that MAID ends up not being a default choice because there is no access to appropriate palliative care close to home. It is one of the reasons why we feel it is important to pay equal attention to good palliative care close to home as well as access to MAID. Access to palliative care remains an area where we believe there continues to be improvement, and we would be concerned that MAID would be selected if there is not appropriate access to quality palliative care close to home. That certainly is one area of tension that we live and it is an area of tension that is expressed to us by family physicians on the ground.
Senator Cotter: There was going to be one other response. Catherine, I think you wanted to offer —
Dr. Cervin: Thank you. I wanted to add to what Dr. Lemire said. This is another reason for us to embark on more robust education so that providers of MAID will be well trained and have reached a certain standard to do the appropriate assessment. I would also add that we, physicians and family physicians, have challenging and difficult conversations with patients around end of life in many situations where autonomy is key. Those are skills we bring, as physicians, to make sure that we are acting with the patient’s wishes and direction.
Senator Dupuis: Thanks to the witnesses for being with us today. The testimony you provide us is extremely important. It helps us better judge the actual situation on the ground, whether it be that of nurses or physicians, regardless of the field of practice or specialty.
Let’s consider the example of Ms. Gladu and Mr. Truchon. These two individuals lived with significant disabilities. They filed suit in the Superior Court of Quebec to request medical assistance in dying. A judgment was then rendered invalidating the concept of reasonably foreseeable natural death.
Based on the content of Bill C-7, my question is as follows. At present, you can discuss with the patient a range of solutions including medical assistance in dying, and you can decide to administer medical assistance in dying. If we pass the new Bill C-7, which includes new safeguards, we will introduce those safeguards without however justifying our reasons for choosing a period of 90 days rather than 32 or 150 days. Are we not raising a needless obstacle here in the relationship between medical practitioner or nurse practitioner and patient in this discussion, which, as you clearly said, is already tough on both the patient and the physician or nurse?
Dr. Cervin: With the 90-day waiting period, at this point, from my point of view, we don’t really know how it’s going to work. As we heard, when death is reasonably foreseeable, sometimes even a 10-day waiting period can be very painful and difficult for the patient. As you say, why couldn’t it be 30 days or 150 days? So I’m not sure that I feel I can offer much more than we have said. It seems reasonable. We have talked about the need for evaluation and reflection as this moves forward. And I think it’s very important to listen to the patients’ voices and to the providers’ voices, and commit to improving the legislation and the care if it’s not working.
Senator Dupuis: Mr. Villeneuve, do you have anything to add?
Mr. Villeneuve: I’ll be very brief to support what Catherine said. It’s the same thing we heard from nurses, which the senator expressed. It is the concern about the arbitrariness — 10 days, 100 days, what the right amount is — and the concern that people will suffer during that time. What we hear from our colleagues is that people come to that point in the discussion — consent and so on — already having reflected on this for a long time. People don’t make that decision and then it happens that day. They have probably been years thinking about that. We go back to Sue Rodriguez who was diagnosed in 1991. We’ve been having this conversation. Canadians say, “We’re thinking about this.” The point of the assessment, the point of the consent, is the end of a long journey that has already been there. What is the right number of days? It is very hard to know.
Senator Dupuis: Thanks very much for confirming that information, which appears to be quite generally the case, at least in Quebec, in that people who request medical assistance in dying have been thinking about it for many years. One of the reasons why they have to wait until they’re approaching the end of their lives is that the use of advance medical directives is not permitted. If I correctly understand what you’re saying, Mr. Villeneuve, that’s also the case and experience of nurses providing medical assistance in dying elsewhere in Canada.
Senator Kutcher: Thank you to all the witnesses for their thoughtful presentations. I would like to reflect to my colleagues before I ask my question. Listening to the conversation and listening to my colleagues’ questions, I think it’s important for us to be able to hear directly from clinicians who are both health care providers and MAID providers about their experience, and also for the committee to hear from family members who have gone through the MAID experience. I think that would enrich our understanding dramatically.
My question is to every witness. While the exclusion of mental illness in Bill C-7 may not pass scrutiny, it may be prudent to enhance safeguards for such persons through amendments to the bill. Do you think that a robust continuing professional development program, created and certified by professional organizations working collaboratively, which addresses the assessment and delivery of MAID, could be one of those safeguards if it was added as an amendment to this bill?
Dr. Moffatt-Bruce: Madam Chair, I’m happy to start the conversation.
The Chair: Yes, please.
Dr. Moffatt-Bruce: Thank you very much for that question. I do think it’s possible. With the appropriate collaboration and alignment between us, along the continuum of education, it is possible. I think, personally, we at the Royal College of Physicians and Surgeons of Canada would be very interested in being part of that solution, and we would work seamlessly with our members, residents and colleagues across the country.
Dr. Lemire: We would agree with what Dr. Moffatt-Bruce has advanced. You will be given the opportunity to speak with a front-line provider who is providing MAID as a major part of his work, later on today. Dr. Alain Naud, a family doctor, has given presentations to us and is an important source of advice. I look forward to that presentation.
The Chair: Anything else, Senator Kutcher?
Senator Kutcher: No, as strange as my colleagues may find it, I have no more questions.
Senator Pate: Thank you to the witnesses. I’m struck by the challenges that some groups in the disability community have brought before us and the parallels between some of the issues faced by people who are in other institutions like prisons, and the fact that many of your members have articulated in other fora a concern about providing services of any sort to individuals who have such limited choices that their ability to actually make meaningful choices, or the ability of health care professionals to ascertain that their choice is voluntary, is a concern.
In your brief to the House of Commons committee, the Canadian Nurses Association noted that the advancement of palliative services available across the system as a necessary precondition for the safe and ethical development of MAID is essential in Canada. Given what we know and what has been clearly identified during this pandemic about the lack of those services, I’m curious as to what your position is, if these measures are not in place. I think you have answered some of this already, but I would just like to be very clear. Do you believe that people will be at risk of making choices to end their lives due to inadequate palliative care? Would you support the certainty of national standards to ensure adequate access to palliative care, other health care and income, social and housing supports to better ensure that no one, particularly those who are disabled, who are living in poverty, who are racialized, who are incarcerated in remote regions, Indigenous or otherwise, facing systemic inequality feel that MAID is their only option?
Mr. Villeneuve: Thank you for the question. Yes, we do support that, and have been vocal throughout the development of palliative care work at the federal level on the ideas of best practices, wise practices, national standards and the shoring up of social and other determinants of health so that MAID is not seen as the only solution to an otherwise very grim picture, whether it’s economic, pain control or anything else.
The challenge, as the senator will know, is the division of powers in the country and the resistance to those kinds of standards that we have talked about in long-term care, for example. There is a fair bit of pushback. CNA would strongly support that.
My final comment is that nurses have said to us that they are concerned about this being a problem, but no one has said to us that they thought it actually did happen. That doesn’t mean it hasn’t, but they said we’re worried it could happen. I’ll stop there.
Senator Pate: Would anybody else like to comment?
Dr. Moffatt-Bruce: Through education, we have to ensure that isn’t the situation — and that’s education for the public, for our practitioners and for our patients — so that they know that MAID is not the only option. It is part of a collective conversation and relationship with the physician who is providing them care.
Senator Pate: That’s great. Thank you very much.
Senator Martin: One of our witnesses from the previous panel, Dr. Lemmens, has written that unlike any other jurisdiction in the world, less than a handful allowed MAID outside the end-of-life context, the bill will not require that care and treatment options are made available and explored first. The new bill thereby fails to treat MAID as the exceptional last resort option the few jurisdictions that allow MAID rightly consider it to be. In Belgium and the Netherlands, currently the most liberal MAID jurisdiction, physicians have to agree there is no other option before providing MAID.
Where is Canada moving with respect to the rest of the world? I know there are a few other jurisdictions, but I have also heard that our new regime could make Canada one of the most open and liberal systems. Could you comment on where you see Canada moving? Are we moving towards the Netherlands under such an expanded MAID regime? Now there are various concerns already on the record, so I just wanted to get your input on where you see Canada going with such an expanded model.
Dr. Lemire: I do not believe that I’m in a position to comment on this. What I am witnessing is actually a reasonably cautious approach that is being put forward with appropriate safeguards being recommended, an approach that is placing medical assistance in dying as part of the continuum of care, as part of privileged relationships between patients and their providers to consider together appropriate end-of-life decisions. I view this as part of a journey that, from my lens, seems reasonably cautious.
Senator Martin: Dr. Lemire, would you say that you agree that MAID should be the very last resort? That we explore all of the other options? Do you see that happening in Canada? You say we’re being very cautious. Does that mean that it is not being proposed as one of many options, but rather it should be the very last option?
Dr. Lemire: I’m under the impression that, rightly or wrongly, Canadians have told us that they do not want MAID to be something to be considered once, whether access to palliative care is there or not, and that Canadians want MAID as an option, along with good palliative care. This is what we’re trying to respond to at this point in time.
Mr. Villeneuve: Madam Chair, I wanted to add to what Dr. Lemire said. We are lucky to now have before us the best educated generation of nurses in our history and the best educated generation of physicians who are rigorously attached to codes of ethics that wouldn’t lead them to any conclusion that that should be an early decision. I hear only the opposite, which is that sometimes we have been hesitant to have the conversation and that MAID doesn’t get raised when it might get raised, for people who are terribly sick, obviously.
I don’t have a particular fear that we’re rushing toward anything or that it’s offered too soon.
Senator Martin: I know you are not an expert in what may be happening in other jurisdictions, but we have heard that Canada will be one of the most liberal in offering MAID in a way that is less restrictive. I don’t know if you have looked at other jurisdictions, but this is where Canada seems to be going. That was my concern.
Mr. Villeneuve: Our sense, in speaking with nurses — and I was speaking recently with an anaesthetist who delivers MAID who described it as the most sacred part of his entire practice — is that it’s very cautious. I see safeguards built around. I just see it being very carefully regulated and guarded.
Senator Martin: I agree with you that we will need the safeguards. That will be most important. Thank you.
Senator Carignan: Thank you. Senator Martin has already covered the point I wanted to raise.
The Chair: That covers this panel. Before I forget, we will have the health minister tomorrow afternoon, just to give you all a heads up. We will now go on to our fourth panel. If you have anything further to add, please feel free to send it to us. Thank you so much.
It is a pleasure to welcome Dr. James Downar, Head and Associate Professor, Division of Palliative Care, University of Ottawa. Thank you for making yourself available at such short notice.
James Downar, Head and Associate Professor, Division of Palliative Care, University of Ottawa, as an individual: Thank you for inviting me. It’s an honour and a pleasure.
As you stated, I’m the head of the Division of Palliative Care at the University of Ottawa, and I have a research chair in palliative and end-of-life care.
By way of background, I’ve been involved in discussions around policy and practice in medical assistance in dying since its inception in Canada. I was formerly a co-chair of the Physicians Advisory Committee for Dying with Dignity Canada, I served as an expert witness in Truchon and was also called in Lamb, although that didn’t go to court. I have advised on legislation and educational materials in Australia, New Zealand as well as here in Canada.
However, I’m not here representing any organization. I am currently an employee of a faith-based organization, so there are some questions where I have a conflict of interest and I might not be able to answer.
I will try to make my key points briefly.
First, I find the fact that the term “reasonably foreseeable death” still appears in the legislation to be problematic.
Second, the desire for MAID and the drive for MAID in Canada and elsewhere is not the lack of access to palliative care or support services or socio-economic vulnerability. That is an incorrect narrative that often gets repeated. It is potentially harmful to our health care system and to our palliative care services to keep pushing that. Rather, I would say that we do have an imperative to try to promote the availability of palliative care services for other reasons, to improve the availability of psychiatric resources for other reasons, and to support palliative care research and quality improvement generally because that’s what we should do as a mature society.
My brief thoughts about Bill C-7 are that I am happy it now makes the distinction between what is an eligibility criterion, what is a safeguard and what is an obstacle. Eligibility criteria are supposed to define a population. Reasonably foreseeable death was supposed to be an eligibility criterion, but it failed because it did not help define populations and it was too vague to be used consistently.
Safeguards are supposed to be procedural steps to ensure that people meet eligibility criteria. You have to make sure that your safeguards are linked to specific criteria. But you shouldn’t be adding safeguards that are too onerous without them being linked to an eligibility criterion.
What we have learned is when you try to put in procedural requirements that are not linked to an eligibility criterion, they are not safeguards; they are obstacles. The courts do away with obstacles and they hand the problem back to the rest of us to try to solve it, usually with not enough time.
I think our interest here is to pass a law that is workable and hopefully lasts longer than 11 days without being challenged in court like Bill C-14 was. I think the lesson of Truchon is if you add in extraneous criteria under the guise of safeguards, we will all get punished. We will get it handed back, probably in an election year again, and have only a few months to answer some very complicated policy questions as we are now.
“Reasonably foreseeable death” failed as a criterion not just because it was inconsistent with Carter but because it was too vague and inconsistently interpreted. I appreciated the attempts to create two sets of safeguards for scenarios where people are close to death and not so close to death, but the ongoing use of the term “reasonably foreseeable death” is problematic.
As I explained in Truchon, I personally cannot imagine a situation where somebody would meet the other three criteria — serious and incurable condition, advanced state of irreversible decline and intolerable suffering — but not have a reasonably foreseeable death. So I don’t find that criteria is helpful here.
Again, I can understand you wanting to create a different set of safeguards for people who may have a longer amount of life that they are potentially shortening. I think it would be more helpful to define a specific length of time, acknowledging that is a flawed process and that there are potentially limitations in doing that for some people. Again, I think it’s more workable than the terms currently being used.
I am happy to see provisions requiring people be informed of other options. However, I am concerned these provisions fall short of achieving what I think the government is intending to do. I have suggestions for how to fix that.
There is a problem with access to palliative care in many parts of Canada. We know it is worse in certain demographics and for certain illnesses, like non-cancer illnesses. The federal government can only influence that in certain limited ways. However, I like the federal government’s Action Plan on Palliative Care. I’m not going over it, but I think the emphasis on improving data collection and research and approaching this problem through a targeted and rational process of quality improvement will be key. I would like to see them make sure that the government really enforces that with not just reports but money and infrastructure.
For the purpose of Bill C-7, I think we can all take comfort in knowing that the overwhelming majority of Canadians who receive MAID were receiving palliative care services before they request and certainly before they received MAID.
We know that compared to people who did not receive MAID, people who received MAID are much wealthier, more likely to be married, less likely to be widowed and far less likely to be institutionalized. In short, there is really no reason to believe that the practice of MAID in Canada is in any way driven by poor access to palliative care or socio-economic deprivation or isolation.
It is important to emphasize this point because I think people still try to push the narrative that is what is causing MAID and effectively stigmatizing the practice. This deflects us from understanding the real drivers.
Many recent publications have shown us what we already knew from other places, that loss of autonomy, loss of dignity and loss of ability to engage in enjoyable activities are the universal concerns motivating MAID requests. These concerns are often grouped under the heading “existential distress.” Existential distress, you have to understand, is not simply the concern about being a burden on others. For most of us, our sense of purpose is driven by the way we engage with other people, through our work, our social lives, our activities and our life events. When there is a serious incurable illness, it might cause us to lose the ability to engage with others in this way. We can lose the sense that we have a purpose in life. For some, this loss of purpose is so distressing that it overshadows any physical symptom we experience. Some are able to adjust to the new reality. Others are not. There is clearly no proven effective means of helping people to make the adjustment.
To be clear, existential distress is not caused by a lack of supports. These individuals generally have good emotional supports and a lot of means to provide physical supports. The distress is caused by the fact that they need those supports.
Since the legislation of MAID, I have come to appreciate the burden of existential distress as being much greater than I appreciated before. I am currently working on new programs of research trying to find new treatments for this, and I think that if the government can do anything to intercede, it would be to try to support innovative programs looking at ways to understand and treat existential distress. That is what is driving MAID more than anything else.
My hope is that we all recognize that, in addition to informing people about counselling and other services, support for research on distress, including newer therapies, is really the key. If we want to reduce the use of MAID — and I think that is a reasonable goal to have for anybody on any side of this debate — we should be respectfully acknowledging the complexity of the suffering that drives people to request MAID, and we need to find proper ways to treat that. We should not be trying to trivialize the suffering by making false claims that we can easily treat it. We should not be pushing a stigmatizing narrative about MAID being driven by a lack of access to services or lack of emotional support. We should not be trying to create administrative obstacles that really don’t address human suffering in any way because these will quickly be struck down by the courts, leading us to do more work.
I will stop there, let Dr. Chochinov speak and then take questions. Thank you.
The Chair: Thank you very much, Dr. Downar. We will now go to Dr. Chochinov, Distinguished Professor at the University of Manitoba. Welcome, professor.
Dr. Harvey Max Chochinov, Distinguished Professor, University of Manitoba, as an individual: Thank you. I believe that the data I will share with you is important for the committee to consider. The following are excerpts from my written submitted brief.
By way of background, I’m a Distinguished Professor of Psychiatry at the University of Manitoba. I’m the former Chair of the External Panel on Options for a Legislative Response to Carter v. Canada and a long-time palliative care researcher who has published extensively on psychological matters pertaining to palliative care.
Bill C-7 proposes the elimination of any waiting period between the time a dying patient is approved for MAID and the administration of MAID. Our research group reported that will to live can fluctuate highly over intervals as short as 12 to 24 hours. In fact, 40% of patients who were prescribed lethal drugs in Oregon decided not to take a lethal overdose, preferring to let their underlying disease take its natural course.
Bill C-7 also proposes to eliminate the requirement that a patient have a reasonably foreseeable death. For patients whose life expectancy can be measured in years or even decades, Bill C-7 recommends a 90-day assessment period.
The suicide rate in many chronic conditions is very high. For these patients, suicidality is often less related to physical limitations but rather a lack of social support, disability and rehabilitation resources and feeling like a burden to others. A study of 496 patients with traumatic brain injury, stroke or spinal cord compression reported that those who were suicidal were nearly seven times more likely to have a depressive disorder. When depression was treated, suicidality remitted. When suicidal patients were followed, from 3 to 24 months later, most were no longer suicidal.
Bill C-7 also indicates that it will no longer be a requirement to reaffirm competency at the time of administration of MAID.
The Netherlands allows for a euthanasia advance directive for those who fear losing capacity. A survey of 410 Dutch physicians reported that only 3% had ever complied with the advance euthanasia directive, while 44% had never done so but thought it conceivable they might in the future, and 54% had never done so and thought it inconceivable that they ever would.
Compliance with an advance directive was almost always raised by someone other than the patient. In 72% of instances, the relatives or representatives did not feel comfortable proceeding with euthanasia but instead settled on foregoing life-prolonging treatment, as did their physicians.
Finally, Bill C-7 indicates that mental illness alone is not enough to qualify for MAID. Mental illness is often accompanied by medical conditions. Together, this may open up the door to MAID for these patients.
A landmark study of patients with psychiatric disorders who had received euthanasia or assisted suicide in the Netherlands showed that nearly 60% had medical problems such as cancer, cardiac disease, stroke or neurological disorders. They suffered from depression, psychosis, grief, even autism, conditions that require exquisite and concerted psychiatric care.
In conclusion, the data suggests caution regarding the following legislative amendments: First, elimination of a 10-day waiting period. The data indicates that a wish to die or a desire for death in the context of terminal illness can fluctuate widely over time, hence some period for reflection would seem prudent.
Second, institute a 90-day assessment period for patients whose death is not reasonably foreseeable. The wish to die amongst patients suffering from non-imminently life-threatening conditions, including chronic illness and disability, is not uncommon and can fluctuate over the course of months to years. When the determinants of a wish to die in patients living with these chronic conditions or disabilities are addressed, suicidality can wane.
Third, forego reaffirming competency at the time of MAID provision. The data strongly indicates that neither physicians nor relatives feel comfortable providing MAID to patients who are unable to state their wishes or convey if they are suffering intolerably.
Fourth, eliminating the provision of a reasonably foreseeable death. This opens the door for patients with various chronic medical conditions and disabilities, including those likely with concurrent mental illness. Eliminating the reasonably foreseeable death clause fundamentally changes an act intended to assist those who are dying to ending the lives of people living with various sources of physical and mental suffering.
All of these facts are critical in understanding and mitigating the suffering of those who have lost their will to live. Thank you for your kind attention.
The Chair: Thanks to you as well. We will start with questions for both of you, beginning with the sponsor of the bill, Senator Petitclerc.
Senator Petitclerc: Thank you to the witnesses.
Dr. Downar, this is a question I have asked a previous panel, but it’s something I find we need to have a lot of input on. I know you mentioned some aspects on the terms of death being foreseeable or not reasonably foreseeable, so that’s one thing.
I want to hear from you on the second set of safeguards when death is not reasonably foreseeable. You mentioned it a little bit, and I want to hear your opinion on whether it will be effective in protecting some individuals who can be in a situation of vulnerability while, of course, respecting the choice of individuals for self-determination.
If you could let me know your opinion and view on that, it would be great. If you could also take a moment to let us know how you view the removal of the 10-day reflection period, I would appreciate that.
Dr. Downar: Thank you for the question. Maybe I’ll point you to one of the points raised by Dr. Chochinov, which is the purpose of these waiting periods. They are not waiting periods but they are reflection periods, so they are supposed to represent an opportunity; there are many people whose desire to shorten their life will wax and wane. Certainly depressive symptoms will wax and wane.
In my experience, seeing patients who have requested medical assistance in dying, though, the large majority of people who get to the point of asking for medical assistance in dying, which is not the same thing as being depressed, actually have a very persistent desire. Again, how long you have to go before you consider it a persistent desire is a matter of judgment. I don’t think there is a perfect number. Many people like the 10-day or the 14-day time frame, and those numbers come from a study that Dr. Chochinov did over 20 years ago looking at repeated assessments of people and their moods, and his sample was two weeks apart. That’s where people get the two-week time frame. I don’t know that two weeks is perfect or whether it should be more or less. I’m not sure that’s necessarily a number that has a strong scientific basis.
Ethically, morally and logically, the purpose of this legislation — and I’m not saying it’s right or wrong — is to make sure that people are not making an impulsive decision and that they are not making an ill-informed decision. You are not allowed to make it with just one assessment.
The two situations are very different. For somebody who does not have a death that is expected in the near future and who is not rapidly deteriorating, where there is not a big factor of time, I think it is reasonable to provide a much longer reflection period to make sure, first, it’s persistent. This person may be shortening their life by many years, so I think it is reasonable to spend a longer time waiting to make sure it is a consistent decision and is what they really want. Second, it’s to use that time to get somebody who is a real expert in what might be an unusual condition to address suffering.
That’s different than people who are very close to the end of their natural life, which Dr. Chochinov pointed out. The reason for things like Audrey’s Amendment is very clear. What we found, such as in my experience, is that when people get to this point, it tends to be very rarely a fluctuating desire to end one’s life; it’s very persistent for those who get that far. By the time you have actually made it to an assessment, you have wanted it for a long time. It’s not that we don’t care about the 10-day reflection period anymore; it’s that so much of that period can occur before you have had that formal assessment, and you can be relatively sure it’s not a fluctuating desire.
Senator Petitclerc: I think I ran out of time for my questions. Can you put me on the second round, chair, because I do want to hear them on the safeguards?
The Chair: Yes, I will.
Senator Carignan: My question is for Professor Chochinov. Isn’t there a problem with the bill’s construction? I heard the witnesses discuss the importance of the period of reflection. Furthermore, some diseases appear to be covered by the bill, particularly Alzheimer’s, because it appears that’s not covered by the mental illness exemption.
For someone suffering from Alzheimer’s disease to be entitled to medical assistance in dying, when that person requests assistance or when that request is assessed, he or she must be suffering from a grievous and irremediable medical condition, and one of the criteria relied upon in assessing such a condition is whether it is “characterized by an advanced and irreversible decline.” For a person suffering from Alzheimer’s disease, first of all, advanced decline is very likely to alter the individual’s capacity to consent or to make a request. And, second, the 90-day period is a structural element in the bill that makes it very difficult to provide medical assistance in dying to persons with that disease.
I’d like to hear what you have to say about whether it’s possible for those individuals to obtain medical assistance in dying, not theoretically, but in practical terms, relying on the criteria presented to us.
Dr. Chochinov: I apologize, as I was only able to hear the latter half of your question.
You ask an important question, which is whether people who are in the throes of their losing cognitive ability have access to MAID. The reality is that as long as they maintain capacity and the ability to understand the implications of the treatment options that are available for them, they are able to ask for MAID and may, indeed, under the new legislation, reach criteria.
One of the more contentious issues, however, is whether or not people can give an advance directive for euthanasia, anticipating a time when they are no longer competent. This is where the data is very helpful and enlightening. The study that I cited out of the Netherlands — and their second study that comes up with very similar findings — points to the fact that few physicians and few family members are able to comply with an advance directive for euthanasia once the patient is no longer competent. When physicians are asked why they were unable to comply with this, and when family members were asked why they were unable to comply, they say that it’s because they can’t reaffirm the patient is suffering. The patient cannot reaffirm that they want assisted death.
So in 85% of instances or more, the euthanasia directives with an advance directive is not adhered to. But what both the physicians and family members agreed to is to forgo life-sustaining treatment.
Senator Carignan: However, we don’t have the advance directive here. I understand why medical assistance in dying for persons suffering from Alzheimer’s disease is virtually theoretical, in view of the fact that, when they request it, they must be in a state of advanced and irreversible decline. As a result, their capacity to make the request is already affected.
Dr. Chochinov: Yes, if people no longer have capacity, then they would not be eligible. But so long as they maintain capacity, then they would be in a position to be able to request MAID.
Senator Carignan: My question was more on the theoretical aspect. Since a patient must be in a state of “advanced and irreversible decline,” if that person is in fact in a state of advanced and irreversible decline, he or she meets the necessary condition for making the request yet already no longer has complete capacity to consent. That’s the point I wanted to make.
Dr. Chochinov: Yes, I understand. So long as they maintain their capacity in anticipation of Bill C-7, which is saying that people no longer have to have a reasonably foreseeable death, you could have people who can be living with years of cognitive decline or deterioration who may still maintain capacity and therefore be eligible.
The Chair: Thank you very much.
Senator Batters: From your perspective as a psychiatrist, Dr. Chochinov, is it discriminatory to exclude from assisted suicide those with mental illness as their sole underlying condition?
Dr. Chochinov: Thank you. It’s an interesting question. I know the panel has heard from a witness yesterday from the Canadian Psychiatric Association who suggested that it was discriminatory. I can say that it has been a contentious issue within the Canadian Psychiatric Association. Although I’m not a member of their board, I am a member of the CPA. There has been correspondence back and forth suggesting there is dissension in the ranks and that not all people are in agreement.
I think if we were to look at what the Canadian psychiatrists think of this issue, I would hearken back to a study that was done in 2016. It was published in the Canadian Journal of Psychiatry. Of 500 psychiatrists, although the majority were in favour of MAID in circumstances of physical illness, 71% of them objected to the idea that MAID should be available for patients on the grounds of mental illness alone. By the way, in that same study, 52% said that they had had a patient during the course of their practice who would have requested MAID had it been available but who now no longer would.
So, clearly, mental health professionals see MAID for psychiatric patients as being highly problematic.
As to the issue of it being discriminatory, is it discriminatory to require patients with renal disease to have to spend hours each day, several days per week, taking dialysis? Is it discriminatory to require patients with diabetes to take several injections per day? If we argue that this is discriminatory and they should be treated like everyone else, regardless of dialysis and needles, we would be ignoring the nature of their condition.
Mental illness inflicts profound suffering and can cause people to see themselves, the world and the future as hopeless, leading them to see themselves as useless, worthless and to have a desire for death. So to say that patients who are mentally ill should have equal access to assisted suicide or euthanasia really is to ignore the nature of their condition, which robs them of their ability to see their lives as being worthy of living.
Senator Batters: Thank you. Dr. Chochinov, is it not the case that there are many antidepressant medications that, as a significant side effect, cause suicidal ideation? Something that they are, ideally, trying to prevent could be a side effect of those very medications.
Dr. Chochinov: That is a small side effect that one needs to be aware of with antidepressants, but there is no question that antidepressants can be effective in treating depression, and treating depression can cause suicidality to remit.
Senator Batters: Dr. Chochinov, you might need to get into this later if you have the opportunity, but when you testified before the House of Commons committee, you provided some important information based on your extensive research about the data suggesting caution because the data indicates that the wish to die and desire for death in the context of terminal illness can fluctuate widely over time and some period for reflection would seem prudent. The wish to die among patients suffering from non-imminently life-threatening conditions is not uncommon and again can fluctuate over the course of months to years.
Do you have anything else, briefly, that you can provide to us, or maybe there is something you can provide to our committee in written data, about those types of issues and the need for a reflection period?
Dr. Chochinov: Yes. There was a Manitoba epidemiological survey that looked at suicidality in patients who had had life-altering medical conditions such as spinal cord injuries, head traumas, strokes, and they found that patients were at their most suicidal in the first three months. Suicide deaths and attempts decrease after the first three months but remain high in the first year after the diagnosis and remain higher than matched control groups on an ongoing basis.
There is another important study that came out of Belgium by a psychiatrist by the name of Thienpont. She looked at 100 patients who had been referred to her and who were requesting euthanasia on the grounds of mental conditions alone. Of those 100 patients, 38 patients eventually withdrew their requests, 11 of them after they had been approved. So this idea that someone makes up their mind today and it is steadfast, the data does not bear that out.
Senator Batters: Thank you.
Senator Dalphond: My question is for Dr. Downar. You said that the concept of reasonable foreseeability of death is difficult and vague, but don’t you think that we are improving the situation if we now have two tracks, one for those who are seen to be in the reasonably foreseeable situations and those who are not, and the doctors and those who are making the assessments will be freer in their assessment because it’s not as consequential on the patient’s admissibility? They know it’s either reasonably foreseeable or it is not, and there are two tracks available for the patient.
Dr. Downar: Yes, and I can better address Senator Petitclerc’s question from earlier as well, which I think was touching on this point.
To be consistent with the Truchon decision and the Carter decision, it does seem appropriate to have two separate tracks. Why is that? Again, we talked about the fluctuation of desire to die.
I’ll add one point here. I’m going to be very cheeky, if you will allow me, because I’m going to quote Dr. Chochinov’s study while he is in the room. That is a very cheeky thing to do. Dr. Chochinov’s study is an excellent study. It’s very well done and worthy of being read by everyone.
The question in Dr. Chochinov’s study, which did show the greatest fluctuation, was not, “Do you wish medical assistance in dying?” It was, “Do you wish that death would come sooner?” That is not the same question as, “Do you want medically assisted dying?” That is what fluctuates dramatically, and it is very common. I believe 44.5% of the patients endorsed that.
If you read the small print of the study, there was 1 patient out of the 200 that he studied that actually endorsed the desire to have medically assisted dying, and that desire did not fluctuate between the assessment periods. So it is important to distinguish between depressive symptoms and the desire to be dead; it is the desire to die versus the desire for hastened death, someone to speed your death. The desire for hastened death is actually not that fluctuant. It is typically very persistent, which is very different than a much more common endorsement of a desire to be dead.
What I just did is very unfair and I think Dr. Chochinov should have a chance to respond to that, but can I speak to the question? I’ll then turn over my time to Dr. Chochinov. I’m sorry, Harvey; please don’t hate me.
The question of having two tracks is important. I think we should maybe look at it the other way around. For someone where death is not expected in the near future and who may have many years to live, having a long reflection period is a very good idea, because the last thing any of us want is someone to make an impulsive decision based on an acute period, an acute stressor in their life that is transient. You want to make sure that if someone is really going to take that step that it represents something well considered, with a lot of information and reflection.
That is different than when someone has a death which is expected soon. One of the things that we saw very often in the past couple of years is that people will request it very close to the end of their lives. Most people are in the final months of their lives, many in the final weeks of their lives. It takes a long time to get through the system and the different safeguards, so by the time they get through them, they have actually been very persistent in their requests for much longer than 10, 14 or 20 days. It’s just that it has not been recorded on paper.
What happens is they come close to their death, and in order to stay competent, they will voluntarily refuse medications that might help them feel more comfortable so they can stay cognitively intact and then their pain gets worse. It’s a tragic situation. The idea of allowing a shortened reflection period for those close to death still achieves the goal of making sure that this is a persistent desire, but it does not force them to make those awful decisions about having to refuse their own medications or being punished for the fact that the system takes a long time to navigate.
I’m going to stop now.
The Chair: Go ahead. You just have a minute.
Dr. Chochinov: It’s true we studied desire for death, but if you are looking at interest in physician-hastened death, the Thienpont study actually looked at patients who had requested death, and 38 out of 100 actually reneged on their request to die — not desire for death, but the request to die — and 11 reneged after they had been approved. If you look at Oregon, 20% to 40% of the people who go to the trouble of asking for lethal medications in fact never take that medication.
So we can say desire for death is fluctuant. We also need to say that the request for an assisted death fluctuates. Not so says I; so says the data.
The other thing, while we’re quoting one another’s studies, James has quoted his own study, which was a very important one. It told us a lot about assisted death in Ontario in the first years of this. One of the points that he made — and I think we need to come back to that — is he stated on the basis of his study that these patients have access to comprehensive, quality palliative care. I think we need to be very cautious with how we interpret it.
About 25% of patients who received MAID did not get any palliative care, and 75% had some contact. We don’t know what that means. Did they have a single consultation? There was a Health Canada study that reported, in an interim report, on MAID. It said that somewhere in the magnitude of 40% of patients were being referred in the last month or two. These are patients who have lived with months of suffering, physical suffering, existential and psychological suffering. So although they have had contact with palliative care in the last month or two, it is really a failure of the system in that they were not referred to palliative care at a time when that suffering could have been averted.
Senator Martin: I feel like sometimes we are interrupting a really great conversation that our two panellists could be having with one another. Before I ask a question to both of you, in terms of loss of dignity, I wanted to say that I think we sometimes impose our own understanding, as healthy individuals, of what dignity looks like. I know for my mother, who has advanced dementia, sitting in a soiled diaper or looking as if she has lost her dignity, but in the way she behaves there are certain things that let me know her dignity is absolutely intact. This is just one of the considerations that we have to look at carefully. As you say, it is so complex. Suffering is complex. Dignity, and our understanding of it, can be complex.
My question is to both of you. We talked about whether we should reasonably separate and distinguish the reasons one requests MAID from suicidal ideation. This is such an important area for us to look at. Would each of you comment on the importance of separating this further? Thank you.
Dr. Chochinov: I have spent a good deal of my career thinking about and studying dignity. We have come up with some of the first empirical studies looking at dignity in the terminally ill. We began looking at dignity because in Holland, loss of dignity was the most frequently cited reason as to why Dutch physicians were providing their patients a hastened death. What we learned over the course of 20 years of research is that dignity is complex, it’s multi-faceted, it’s far more than being able to control autonomy in terms of the timing and circumstances of your death. You talked about your mother and the challenges she has in dealing with her everyday life. We have found one of the most powerful things that can influence a patient’s sense of dignity is how they perceive others are receiving them. Do people feel that their sense of personhood is being affirmed or is it being undermined? It is critically important to understand dignity, as we know that loss of dignity can be related to not only a request to die, but it can be related to the undermining of a wish to go on living.
I think you ask very important questions when you talk about the separation between suicidality versus a request for death. The American Association of Suicidology says that the primary distinction between suicidal ideation and a request for medical aid in dying is that the patients who have requested medical aid in dying must have a life expectancy of six months or less. Your question opens up a very broad field that we are not talking about. We are talking about these very specific criterion around who does and does not get medical assistance in dying. What we need to understand is the broader clinical issue. The fact is that when people are confronting death, they are oftentimes filled with a great deal of angst, sometimes regret, remorse, anxiety or depression. We need to lean in — as my palliative care colleague Mike Harlos used to say — and ask people, how are you feeling? What is your life like now? Are you feeling like you can go on? Help me understand what is undermining your wish to go on.
I’ll end on this point. When I was chair of the external panel for Carter v Canada we made a trip to Holland and we spoke to some Dutch psychiatrists. One of the psychiatrists who does evaluation for capacity said to me that the role of a psychiatrist goes beyond simply finding out whether somebody understands the treatment options that are available to them, the differences between them and the implications of each. The role of the psychiatrist, according this Dutch physician who is involved in these decisions, is to understand what makes somebody feel that their life is no longer worth living.
The Chair: Thank you.
Senator Cotter: Thank you, gentlemen, for your really insightful presentations. I very much appreciate them. My question is for Dr. Downar. After the series of insights you provided, I was left with one piece of either confusion, misunderstanding or worry. I would like to pose it back to you and you can describe to me whether I misunderstood it or if the train in which you speak to is a bit more limited than I’m hoping for.
As I understood it, you were saying that the vast majority of people who have requested medical assistance in dying have had access to palliative care. They live middle class lives, married, they are not jeopardized by money, that sort of thing. That left me with a real concern, because certainly a lot of the discussion that we have — and as I understand it, you were also saying we should not listen too much to the chatter. Although there actually are vulnerable populations who are looking for MAID, they will distract us from the central question. But we have heard — and I know some senators have serious concerns — about disadvantaged or vulnerable populations whose choices may not be quite as autonomous as you are describing for your patients or the patients with whom you are familiar. I’m wondering whether it is the nature of your practice that you don’t deal with people who may be in those kinds of situations, or those concerns are genuinely exaggerated, or should we actually worry about the risk of autonomy by the decisions that they make?
Dr. Downar: It is always a good idea to be thinking and mindful that we want to do everything reasonable to try and prevent people from speaking out and receiving MAID because of an ill-informed request, a lack of options available to them, a lack of capacity, or because of poorly treated symptoms, et cetera. We have problems with palliative care access in this country. We have problems with psychiatric care access in this country. We have inadequate support services at home in this country. All of these are absolutely problems. What I can tell you is that it is very unlikely that any of these problems are driving MAID to any substantial degree based on the data that we have. That is demographic data.
I will respond quickly to the questions about the quality of palliative care received by people in the study that I published and the study by the federal government showing that 75% to 80% of people receiving MAID were receiving prior palliative care. The concern would be that we don’t know if it was any good. Was it somebody who just saw them in the hallway once and that was that, or was it really good quality palliative care throughout? There is no measure or test for the quality of palliative care that someone got, so I can’t prove it one way or another. But what I can tell you is that it would make no sense. If it was really about high quality palliative care reducing MAID and low quality palliative care not reducing MAID very well, what about people who receive no palliative care? They should have the highest MAID rates of everybody, but they don’t.
I will give you an example of two people with six months to live; one has lung cancer and the other has end-stage lung disease, COPD. The person with lung cancer is far more likely to be getting palliative care. They are more likely to be getting early palliative care, more often, and higher quality palliative care. They are more likely to be getting home care services and comprehensive, extended home care services because of a better recognized prognosis. Which one of those who people is more likely to get MAID? The lung cancer patient. Despite being at the good end of all of those things. Again, whatever other factors may be in the mix, these people are at the right, beneficial end of all of those factors. Yet the person with cancer is 5 or 10 times more likely to receive MAID than the person with chronic lung disease.
That tells you there is a completely different factor driving this. That is not to say this could never be a problem. Certainly, the stresses, strains and isolation caused by the COVID lockdowns have been seriously impacting mental health and well-being of people and we are hearing stories that they are requesting MAID as a result. To me, that’s not an argument against MAID. That’s a concern of the effect of the lockdowns, which hopefully will be temporary and relaxing in the next few months. The bigger question we have is that this is not an argument against improving those services or addressing any of those things that you said. We have to do that too. But we have to do that for the 98% of Canadians who aren’t getting MAID. That’s who we need to be thinking about.
This bill is really only actually affecting a tiny percent of the population. It gives everybody the choice, and that’s good. People want choice. To Dr. Chochinov’s point, many people feel comforted by having the choice and ability. They don’t follow through with it. We need to be thinking about policy for everybody regardless of whether it affects MAID.
Senator Cotter: Thank you.
Dr. Downar: Thank you.
Senator Cotter: I think I used up all my time. Actually, Dr. Downar used up all my time.
Senator Dupuis: My question is for Dr. Downar.
Quebec has some experience with medical assistance in dying, approximately 10 years of experience. In our personal lives, we know people who are living longer than people did 30 or 50 years ago. We also realize that our generation will live longer, particularly women, who have longer life expectancies. Consequently, we aren’t the first generation, but rather the second or third generation of people who will grow old and experience parents and grandparents who are afflicted by degenerative diseases such as Alzheimer’s.
I started thinking about this 10 years ago when I was part of a Barreau du Québec task force on the right to die with dignity. Earlier you mentioned the fluctuating desire to die. The issue of dignity is also the issue of the personal projection that we engage in and of the conditions that must be satisfied for us to respect our own dignity before our children reach a judgment of that dignity. Shouldn’t we give consideration to the new reality that has taken shape here, in our thinking, in the future review and in this opportunity to debate Bill C-7?
Dr. Downar: Thank you for that question, senator. It’s a tough one to answer, but I’ll give it a try. Yes, the question of dignity differs greatly from one person to another.
Roughly 95% of Canadians meet the criteria for medical assistance in dying before they die, but no more than 2% of that number actually request it, and we note that many of those two-percenters met eligibility criteria a few months or even years before doing so.
You ask very important questions about what dignity means and about projecting what will happen in future. That, more than the criteria we are discussing today, is the most important question, and it determines whether you and I will request medical assistance in dying. It’s like a waterfall. The same amount of water flows regardless of its depth at the base of the falls. The question of suffering, not the criteria that must be met, is the most important factor determining whether someone will request medical assistance in dying. Does that answer your question?
Senator Dupuis: Yes. If my understanding is correct, what you’re telling us is that the discussion has to take place between patient and physician, based on the person’s suffering and the highly subjective perception of whether that suffering is intolerable?
Dr. Downar: That’s correct. Dr. Chochinov spent his entire career conducting research on these matters and what dignity means. Five years ago, I decided to reorient my research and to focus on this issue because it’s the most important one. It’s far more important than the criteria set forth in Bill C-7.
Senator Boisvenu: My question is for Dr. Downar and concerns the wording of the bill. An act that permits a person to request death and a professional to grant it must obviously have clear objectives, a clear framework and, especially, clear wording.
You say in your brief that we should avoid setting criteria that are too strict so that we can avoid challenges, but you also state that the concept of relatively foreseeable death is too vague.
Should the act more clearly define the patients who would be eligible for medical assistance in dying, or should we instead leave that vague, as was done in the 2016 bill?
Dr. Downar: I think it’s time to be clearer and to eliminate the concept of relatively foreseeable death. As I previously mentioned, if someone meets the other three criteria, I think that means he or she will meet the fourth, which is relatively foreseeable death. That criterion adds nothing. No patient who meets the other three criteria would meet a non-foreseeable-death criterion.
Part of the problem is that some physicians don’t agree with me and think there are people who meet other criteria but not the relatively-foreseeable-death criterion. That means this is a problem because we’ll be interpreting the same act in different ways.
Senator Boisvenu: Does that apply equally to people suffering from physical diseases and those with very serious psychiatric and mental illnesses?
Dr. Downar: I’m not a psychiatrist; I’m a researcher. To me, the question isn’t whether mental illness is an illness because it is obviously an illness. The question instead is whether it’s incurable. In my view, that’s the question that should be put to psychiatrists and the research community. The words you see now in the bill, which provides that mental illness is not an illness, will not stand because the courts won’t like that wording. In my view, the question isn’t whether it’s an actual illness, but rather whether it’s an incurable illness. It’s important to ask the same question.
The vision of this bill is that, if someone has an incurable illness, his or her suffering is intolerable and there is no realistic way to relieve that suffering in future, that person should be entitled to medical assistance in dying. The same question should be applied to mental and physical illnesses.
Senator Boisvenu: Thank you very much.
Senator Keating: Dr. Chochinov, we have heard a lot today from the other panellists on the Dutch experience, the European experience and the American experience. I want you to forgive my ignorance for the following question, but do any of your studies include the Canadian experience so far with the application of MAID? Because as it was actively pointed out by Senator Dupuis, it has been in effect for 10 years in Quebec. I would like your thoughts on that.
Dr. Chochinov: Thank you. It’s an excellent question. My studies have not looked at MAID specifically. We are beginning to try and launch some studies in that area. Dr. Downar has given us a study looking at some of the early days in MAID. I think another important issue with Dr. Downar’s study is that it’s something that is pre-Bill C-7. So what this is going to look like in a Bill C-7 era, when reasonably foreseeable death is removed, is really unknown.
I was in contact with the Canadian Cancer Society recently. It looks like there is an investigator from the University Health Network who has been funded to do a study of MAID because, obviously, these issues are very complex.
Studies like Dr. Downar’s are important. They give us a 30,000-foot view, when you look at administrative data trying to understand something as textured and layered as MAID, with the studies funded by the Canadian Cancer Society. They are going to be both quantitative as well as qualitative studies.
What is missing from many of these studies is the voice of the patient. We need to have studies of MAID patients, patients who are thinking of having MAID, interviews with them, with members of their family to try to find out what the nature of their suffering is.
My personal agenda is it’s important for us to understand that, because the expression of a wish to die is one way that we express existential angst. It’s one of the ways that we express the fact that we’re suffering. So I think that a study of MAID and those who are requesting MAID is not only going to inform practices around MAID, but it is going to inform better practices around palliative care.
Senator Keating: I agree. Thank you.
Dr. Downar, do you have anything you would like to quickly add?
The Chair: He has added to it.
Dr. Downar: My thumb.
The Chair: Senator Kutcher, you requested other witnesses, clinicians and people with the experience of MAID. We have invited and are waiting for confirmation from people who have experienced it. We are in the process. The clerk has been working hard on that.
Senator Kutcher: Thank you very much, Madam Chair. Thank you for that information. I think it’s important that we hear from people on the ground instead of just theoretical physicists.
I have questions for each of the panellists. The questions won’t be too long, but I would really appreciate that the answers be brief because my colleagues have important questions to ask.
Dr. Chochinov, in response to an earlier question, you cited a 2016 study of Canadian psychiatrists. It’s now 2020. We know that attitudes change over time. Interestingly, you did not cite a 2020 report from the Association des médecins psychiatres du Québec that shows the majority of psychiatrists there support access to MAID for a sole mental disorder, particularly if safeguards are in place. Is it fair to use outdated data that supports your opinion and ignore more recent data that does not support your opinion when you provide your testimony?
The second question is for Dr. Downar. Do you consider the exclusion of MAID on the basis of a sole mental illness to be an extraneous criteria or a safeguard in Bill C-7?
Dr. Chochinov: I’ll go first. I wasn’t aware there was a Quebec study that shows that the majority of psychiatrists are supportive of MAID for psychiatric reasons alone. I look forward to getting that reference.
Dr. Downar: I would strongly discourage us from relying too heavily on survey data that goes one way or the other. As you very elegantly just pointed out, Senator Kutcher, in 2016 everybody said one thing, and in 2020 everybody said something else. It doesn’t mean that one group is right or one group is wrong. It just means that we should be careful in how we interpret surveys.
My answer about the mental illness indication is, by definition, that it is an eligibility criterion right now. It is not a safeguard as it’s written.
If you’re going to try to leave that in there, make it clear you’re leaving that in there so that it could be properly considered by a committee that is going to have to consider aspects of whether this is an incurable condition, and if the potential concerns that Dr. Chochinov has highlighted are overriding, in the sense that it’s just too much, too hard to be sure that this is a competent wish, or if we’re going to say, regardless of those risks, that we still feel that the rights argument is compelling. I would give that as my answer.
Dr. Chochinov: I would add that if we’re interested in psychiatric conditions and medical assistance in dying, I would refer the committee to a really important study by Scott Kim looking at a review of 66 patients, all of whom were euthanized for mental illness grounds alone. I think it will be enlightening for the committee to become familiar with why it is that patients with mental disorders seek out assisted death.
The Chair: I want to thank both Dr. Downar and Professor Chochinov for your exceptionally engaging presentations. As Senator Martin said, we could just listen to you and not ask you questions. But that’s not the mandate I have been given, so I can’t change the rules. I know each one of the committee members appreciate both your presentations. I’m sure we will be asking you to come again. Maybe next time we will just have you two talk. Thank you very much.
Dr. Downar: Thank you very much for all of your hard work. We appreciate it.
Dr. Chochinov: It’s my honour.
The Chair: We are now in our fifth panel. I want to, first of all, thank Dr. Baillie and Dr. Ferrier for helping us at the very last minute to change the times they were going to meet with us. To all three of you, you have accommodated us at very short notice. We want you to know that we really appreciate all you’ve done to be here today.
It’s my pleasure to welcome Dr. Alain Naud, Clinical Professor, Department of Family and Emergency Medicine from Laval University. From the Mental Health Commission of Canada, we have Dr. Patrick Baillie, Psychologist and Lawyer, as an individual; and from the Physicians’ Alliance Against Euthanasia, we welcome Dr. Catherine Ferrier, President.
Senators, just because so many things have been changing, I want to make sure everyone has the latest panel’s five names. Thank you very much.
Dr. Alain Naud, the floor is yours.
Dr. Alain Naud, Clinical Professor, Department of Family and Emergency Medicine, Laval University: Thank you, Madam Chair. My sincere thanks as well to the members of the committee for this invitation to come and share with you my practical experience with medical assistance in dying.
I have been a family and palliative care physician for 35 years and am a full clinical professor at Laval University. I acted as a medical expert in medical assistance in dying and palliative care during the hearings in the Gladu and Truchon cases before the Superior Court of Quebec, and I have personal experience in assessing and assisting more than 100 patients who received medical assistance in dying.
After five years of practical experience in medical assistance in dying in Quebec, and roughly the same in Canada, I now feel it is important to base our thinking and decisions on experience and actual reality on the ground and to listen to what the patients, their families and caregivers involved have to say.
First, I’d like to make a few observations on the Quebec landscape. Medical assistance in dying is a form of compassionate care that is provided by an entire medical team and a caregiver team, not merely two physicians or two nurses, in a manner entirely consistent with a patient’s free and informed choice.
A patient’s choice to request medical assistance in dying is never an impulsive one; it is the culmination of a lengthy process of reflection anchored in the flesh and suffering, a process that has gone on for days, weeks, months and, in some instances, years. It is never an impulsive act.
The caregiver’s right to conscientious objection is important; it is currently well protected by statute and need not be reinforced. However, it does not grant the person who invokes it the right to impose it on the patient or to undermine a request for medical assistance in dying. To invoke it in refusing to convey a request to a colleague is tantamount to serious clinical, ethical and professional misconduct.
Approximately 80% of patients who have received medical assistance in dying in Quebec previously received palliative care, while the remainder voluntarily rejected that care. It must be understood that palliative care and medical assistance in dying are not competing types of care; they are legitimate and lawful end-of-life options that are interrelated and complementary.
Medical assistance in dying has been very strictly administered in Quebec in the past five years, and all abuses have been observed in the way certain physicians and institutions have obstructed legitimate access. This is where we see patients who are vulnerable and unprotected. One in three patients who have signed official requests in Quebec are in this position.
The following aspects of Bill C-7 should be retained: the requirement that a request be signed before only one witness, who may be a caregiver, which is extremely important; the repeal of the mandatory 10-day waiting period, which, by requiring these patients to wait, was merely sadistic and cruel; and the option to waive in advance the requirement that the patient have the capacity to consent at the time of the procedure.
There are also aspects that should be amended. The concept of “reasonably foreseeable natural death,” which I think is the biggest stumbling block in this bill, represents no medical concept or definition and appears in no medical textbook, and yet physicians are responsible for applying it. Deleting this criterion only to make it a safeguard does not imbue it with any more meaning and definitely fails to give it a standardized or recognized medical definition, whereas retaining it would continue to burden medical assessors with the intolerable and unacceptable weight of interpreting a criterion that has no medical significance. It should simply be deleted. The Superior Court of Quebec has ruled that the other criteria are largely adequate to ensure the protection of vulnerable patients. If the legislator wishes to retain different safeguards, I would suggest establishing a much more tangible one: a prognosis of death within 12 months or less, or within 12 months or more, which, in the latter case, would open the way to different safeguards.
As for mental health, I don’t think there is any justification in distinguishing patients who have mental problems. You’ll be hearing from other individuals on that subject.
On the other hand, aspects not covered by Bill C-7 but that should be considered include advance medical directives, under which a patient who has been diagnosed with dementia or Alzheimer’s disease, for example, may make an advance request. You will see in my brief several suggestions that would be very easy to implement. There is also the review of requests for medical assistance in dying that have been denied or not administered and for which a much more rigorous process should be provided, one that does not currently exist. As I mentioned, that’s where you see the vulnerable patients who are not currently protected.
Thank you, Madam Chair.
The Chair: Thank you very much, Dr. Naud.
We will now go on to the representatives of the Mental Health Commission of Canada.
Dr. Patrick Baillie, Psychologist and Lawyer, as an individual: Thank you, Senator Jaffer.
I should clarify right at the start that although I served on the Mental Health and Law Advisory Committee for the Mental Health Commission and was later chair of that committee, due to the tight time constraints with which these hearings were arranged, the commission was unable to formulate its official position on the new legislation. So I was asked that I clarify that I’m presenting as an individual who had previously appeared before this committee back in 2016, but I can’t be taken as representing the views of the commission, as the commission is still formulating those opinions.
The Chair: Thank you very much for that clarification.
Dr. Baillie: Thank you.
The question that is being posed most centrally for me is whether or not medical assistance in dying should be available for persons whose sole underlying medical condition is a mental illness. At this point, my simple answer is no. The reason for that is that I don’t believe that we have in place adequate safeguards. I was listening in earlier today when Senator Kutcher put the question to Dr. Downar, I believe, about the Quebec study that found most psychiatrists are actually in favour of MAID being available for individuals whose sole medical illness is mental illness, adding the phrase “with appropriate safeguards.” I don’t think those safeguards are yet in place.
What the commission suggested in 2016 was a phased approach, as has been the approach so far, consultation with individuals who have had serious mental illnesses, with the family members who have been affected by that and with individuals who have either changed their decision about suicide or family members who have been affected by suicide. This was in order to reduce the likelihood of wrongful death occurring. The challenge is that mental illnesses are inherently different than many of the physical illnesses that typically fall under the MAID regime, so I would prefer that there be further discussion about what sorts of provisions can be put in place as appropriate safeguards for those individuals who may choose to access MAID for a mental illness.
You heard earlier today about the studies in Belgium and the Netherlands about people who are accessing MAID for mental illnesses. We have the Belgian study of 100 psychiatric patients, and 50 of those individuals had been diagnosed with having a personality disorder, 48 of the individuals had been diagnosed with depression, 10 with bipolar disorder and relatively few with a psychotic illness. Certainly there was some overlap, which is why the numbers add up to over 100.
What Dr. Kim talked about when he testified before the committee in 2016 was that all of us can agree on the clear cases in which a mental illness could be the sole factor for somebody accessing MAID.
But where we run into difficulty is when we get into those ambiguous cases, so I was retained by the federal government to provide expert testimony in the Quebec and British Columbia cases. Obviously, the British Columbia case never happened, and I was excluded from the Quebec case because, frankly, there were too many experts involved and the court made a decision about the exclusion of some of the experts. But part of what I wanted to talk about there was a particularly ambiguous case, a real-life case for my work as a psychologist. There was a 52-year-old man employed as an engineer for over two decades with the same company, married, with three grown children. He, at a company party, in the context of alcohol abuse, had a flirtatious contact with another employee. He believed it to be consensual, she did not and he was charged with the sexual assault. As a result of that, he loses his employment, his family distances from him and there’s media attention given to it.
This is an individual who becomes, understandably, depressed. He sees his life essentially flashing before his eyes — the loss of his income, the loss of his status in the community, the loss of his residence, the loss of his family, the loss of all those usual supports. As his trial date comes closer, his esteemed counsel says to him, “You’re talking about a trial involving a woman who was clear-minded when you were under the influence of alcohol and who says this wasn’t consensual. The Crown is offering you a deal. In exchange for your guilty plea, they will request a shorter sentence.” That individual says to me, “I have nothing to live for. There is no future for me. This is the way that I would like for me to be ending my life.” Well, as a psychologist, I have to debate between whether this is somebody contemplating suicide because of perhaps their transitory circumstances, or if this is somebody whose suffering has now become so significant that they want to end their suffering through this particular approach.
Without adequate safeguards in place, we don’t end up having a clear answer to that question, and it therefore risks undermining the government’s efforts to make suicide prevention a priority.
Again, we simply don’t have the regime in place at this point. I would be happy to work with those who are attempting to establish an appropriate regime, but in the absence of that, I would recommend that the committee continue to hold that mental illness has an exemption within the legislation. Thank you.
The Chair: Dr. Ferrier, please proceed with your presentation.
Dr. Catherine Ferrier, President, Physicians’ Alliance against Euthanasia: Thank you for inviting me. My name is Catherine Ferrier. I’ve worked since 1984 in a geriatric clinic at the McGill University Health Centre. I work with patients with cognitive disorders, I do capacity assessment and testify in court for my patients. My colleagues ask my advice for capacity assessment and refer me their most difficult cases.
Doing this work gives me and my colleagues a glimpse into the constraints and pressures our patients face when they make important decisions. We often see people who make choices contrary to their best interests and their true wishes for many reasons, including a lack of financial resources and social supports, direct or indirect pressure from others, including health professionals, and an inability to make the system work for them.
I see many victims of elder abuse. One was a widow with no relatives in Canada. Someone fraudulently obtained a power of attorney, emptied her bank account and moved her to a nursing home against her will. She ran away in mid-winter with her walker and was later brought to me for assessment. She didn’t have advanced dementia; she was not fluent in English. She was fully capable.
Not every competent adult has the agency to protect his or her own best interests without help. I realized while listening to the Justice Committee at the House of Commons that some members have no idea of the power differential between themselves — high achievers with successful careers — and the majority of Canadians who don’t have the same ability to defend their rights. One MP asked at least twice whether there have been any complaints or prosecutions from people who had been coerced into requesting MAID, with the obvious implication that if there are none, it’s not happening. That is false.
The people who will be harmed by Bill C-7 are not, for the most part, people like any of you. Consider all the seniors who died this year of COVID or of deterioration due to isolation and loneliness. Had we invested in adequate long-term care and supporting home care, things could have been different. In Quebec, 19% of cases of COVID were in patients over 70, but 92% of the deaths were in this group. Consider Mr. Raymond Bourbonnais, who had spinal muscular atrophy and was living in a CHSLD, a nursing home in Quebec. Citing many instances of inadequate care, including people wandering into his room when he had to leave the door open in a heat wave with no air conditioning, he made a video announcing his intention to request medical aid in dying. So quickly has the right-to-die movement crushed instincts to prevent suicide that instead of rushing to prevent a death that had nothing to do with his disability and everything to do with inadequate resources, his request was honoured after all his requests for care had been ignored.
Consider all the people with disabilities and chronic diseases. Our elderly patients often have a long list of diagnoses, only one of which could justify euthanasia under this bill. There are millions of Canadians whose suicide could be promoted if this law is passed. There are over 2 million Canadians with chronic lung disease, 600,000 with heart failure, 700,000 stroke survivors and nearly 5 million people with osteoarthritis. Add to this that the MAID enthusiasts think doctors should have a duty to inform every patient eligible under the law that it is one of their options, so millions of Canadians will be offered suicide when there are many other ways of addressing their distress. This is suicide promotion.
Bill C-7’s framework for people not near their natural death only requires giving information another means to relieve suffering and a 90-day waiting period. Giving information has no value if access to the service is not available. It’s largely not within that time frame; often, there is not even time to see a specialist and certainly not time to regain some hope of healing.
People who have suffered a debilitating accident or stroke take several years to reach new equilibrium, and their suicide rate is higher than the general population during that time. They may not be depressed or incapable of decision-making; their options have been tragically narrowed and it takes a long time to readjust. But people do, as we heard in this morning’s press conference with the people with spinal cord injuries and their doctors.
If the government is determined to go through with this law, it will never be safe, but if you want a minimum of safety, I suggest first make it illegal to suggest MAID to someone who hasn’t requested it.
Second, forget the 90 days. Ensure the person has been provided with and not just told about everything they need to overcome their suffering while staying alive, including medical care, rehabilitation, psychosocial support, adequate income, adequate accessible housing — it goes on and on — and lots of time, a few years at least.
Third, create spaces where no patient will hear MAID mentioned. That’s what most people want — care, not death. The MAID mentality is invading every health care space in Canada and being forced on institutions and doctors who want to support living patients, not cause their death. That has to stop. Apply all this also to people near the end of life. Thank you.
The Chair: Thank you very much, Dr. Ferrier. Thank you to all the presenters. We will now go to questions, starting with the sponsor of the bill, Senator Petitclerc.
Senator Petitclerc: I have a question for Dr. Naud. I also want to thank all our witnesses for being here today. I’d like to clarify a certain concept of coercion.
Since the start of this debate, we’ve heard certain individuals and organizations that are afraid individuals may be urged or even encouraged to seek medical assistance in dying as a result of pressure or even coercion. I wanted to hear what you have to say on that in particular in the light of what you told the Justice Committee, and I’m going to quote you briefly:
The coercion we’ve observed over the past five years, in Quebec and in Canada, isn’t in the administration of MAID, but rather, as I mentioned, in the obstruction that certain individuals and institutions oppose free and legitimate access to this assistance.
So people are pressed to withdraw, or not to submit, requests for medical assistance in dying. I want to ask you to tell us more about that. I know you have extraordinary experience in the field. Perhaps you could even point us in the direction of some potential solutions.
Dr. Naud: Thank you very much for your question, senator, because it’s an important one. I’ll say at the outset that we now have five years’ experience in Quebec and nearly as much in Canada. So there’s no room here for apocalyptic prophecies. We have to look at what’s being done in the field. We were very much afraid of that. We had been hearing about medical assistance in dying in Quebec for 10 years, and the same fears are still being served up, particularly the fear that patients will be forced to choose medical assistance in dying or will be pressed to request it. That’s absolutely not the case.
You have to understand that medical assistance in dying is a very rigorous process that involves an entire team of caregivers, not just two physicians. Nurses, patient attendants and social workers are involved. One of the measures currently in force is that you must ensure the request is made freely and is informed, without outside constraint. This entire process — and this entire team of caregivers, which guarantees a rigorous process — also guarantees that there is no such constraint.
However, what we’ve seen in the past five years is patients who are under pressure or are flatly threatened by physicians not to make or to withdraw a request. It’s a fact. We’ve observed patients who had made a request and whose families told them, “If you don’t withdraw your request, we won’t come and see you in the hospital.” Their doctors told them, “If you request medical assistance in dying, I’ll remove you from the palliative care unit,” or “If you request medical assistance in dying, I’ll refuse to continue caring for you.” We’ve seen all that for five years now, and we’re still seeing it. It continues, with impunity, because there’s currently no review of denied or non-administered requests.
As regards patients who have been pressured to request medical assistance in dying, I can assure you that this is a very rare phenomenon and that it is quickly detected given the rigorous nature of the process and the time allotted to review requests. Patients who request medical assistance in dying don’t do so hastily, as an impulsive move. It’s a deliberate request, the result of a long-term decision-making process, and I would say that virtually 100% of patients who make a request have already discussed it with their circle, their attending physicians and their nurses. All of them are already aware of the decision.
Consequently, there is no risk that patients are being pressed to choose medical assistance in dying; what we’re seeing now is exactly the contrary. That’s why I said that vulnerable patients, who aren’t protected, are among the 33% of patients in Quebec who have not had access to medical assistance in dying, which is lawful and legitimate care. Medical assistance in dying is neither shameful nor unlawful.
Senator Petitclerc: Thank you very much.
Senator Carignan: My question concerns mental illness. Dr. Naud, if my understanding is correct, you said that people suffering solely from mental illness, without any other physical disability or condition, should be able to obtain medical assistance in dying and that safeguards should be established. Dr. Baillie said they shouldn’t be able to receive medical assistance in dying because no safeguards are in place.
We obviously can’t violate a constitutional right because no safeguards are in place. It’s up to the government to establish measures to prevent a right from being violated.
First, I’d like to hear what you have to say about the safeguards that should be put in place in those situations. Second, wouldn’t enabling a mentally ill patient to qualify for medical assistance in dying have the opposite effect? In other words, wouldn’t that sweep up more people who have suicidal ideas and are seeking medical assistance in dying? With the assistance and resources available, we could prevent them from committing suicide — there are 4,000 suicides a year and perhaps 10 times as many attempts — because these people aren’t intercepted first.
Dr. Naud: Thank you for your question, senator. The purpose of medical assistance in dying is, first, to assist patients who feel their lives no longer have any meaning — they see no future and have a grievous and irremediable disease — and, second, to prevent suicide. Dr. Baillie mentioned the suicide rate among people suffering from mental illness. That’s what we want to avoid with medical assistance in dying, rather than abandon those people to themselves and leave them to their sad fate.
There obviously have to be safeguards. You have to consider the experience of countries such as Belgium and the Netherlands, which have been permitting medical assistance in dying since 2002. You must understand that the medical assistance in dying offered in those countries, solely or mostly for mental health reasons, is granted on an exceptional basis. In the Netherlands, for example, less than 1% of instances of medical assistance in dying are administered for that reason. So these are highly exceptional measures, and there must be criteria. We’re talking about grievous and irremediable diseases. In the vast majority of cases, depression is treatable, adaptation disorders as well. Obviously, a teenager whose heart has been broken will never be granted medical assistance in dying. So we’re talking about serious, long-term, incurable psychiatric diseases that are often followed by many psychiatrists and are subject to numerous treatments. I therefore think that safeguards must be put in place.
In addition, I believe all experts would agree that it’s false to claim that a patient doesn’t have the capacity to consent because he or she is suffering from a mental illness. You can very well have a serious mental illness and still have the capacity to make a decision for yourself. Obviously, if you’re in an acute psychotic state, you’re no longer able to make a decision, but we’re not talking about those patients.
In all cases, if we look to Belgium and the Netherlands, for example, three physicians are involved, not two, as is the case for physical diseases. In addition, one of the three physicians must be a psychiatrist, an expert in the patient’s mental illness. A safeguard could easily be put in place requiring, for example, that the request come from the attending psychiatrist. That person is in the best position, knows the patient and has been treating the patient for very long time. He or she knows all the treatments the patient has undergone, is able to speak to the patient about remaining options and can determine whether the patient is incurable, has a poor quality of life, is in a state of advanced and irreversible decline of his or her capacities and wishes to die and to be assisted in doing so in a dignified manner by a physician rather than be forced to jump off a bridge.
In a report released just last week, the Canadian Psychiatric Association expressed indignation that these patients were being discriminated against in Bill C-7 and systematically denied assistance because they have a mental illness. I can tell you that the Association des médecins psychiatres du Québec has been working on these issues for a year and has just submitted its report to the Collège des médecins du Québec, and it should soon be released to the public. The association advocates that safeguards be put in place to respond to the demand of these patients who are suffering from psychiatric illness.
I think it’s discriminatory from the outset to deprive these patients of the option of seeking medical assistance in dying because they have a psychiatric disease. Safeguards must obviously be put in place. I think that having three physicians involved in the final decision would be a good idea, one of whom would necessarily be a psychiatrist. In my opinion, the request should ideally come from the psychiatrists themselves, rather than from the patient’s family physician. A waiting period could be established, it being understood in this case that there is no urgency for these patients, unlike cancer patients who could die next week. You have to ensure that the patient has the capacity to consent, and you must obtain a consent that can be repeated over time, in two weeks or one month, to ensure the patient has indeed made an informed choice.
I think the psychiatrists should be asked, quite simply. There’s a way to establish simple yet effective safeguards that would help address the suffering of these patients because mental suffering is just as real as physical suffering. That’s a well-known and accepted fact in medicine. It’s also possible to assess patients’ mental suffering.
Senator Batters: My question is for Dr. Patrick Baillie from the Mental Health Commission of Canada. I appreciate a couple of things that you put in your brief. One of them was a quote from Dr. Scott Kim’s report, which indicated that women are twice as likely as men to receive psychiatric MAID and to request it. That’s quite an alarming statistic. I also appreciate what you stated regarding those with mental illness as a sole condition. I thought you put it very well in your brief when you said:
Permitting MAID to be available to this vulnerable population speaks more to a failure in providing timely access to recovery-oriented mental health services than to compassion.
I also point out that you stated in your brief, and you stated again today, that the prudent decision of this committee, in your belief, would be to continue to exclude from eligibility for MAID those persons whose sole underlying medical condition is mental illness.
I note that you are a psychologist and a lawyer, so you have a unique perspective on this certain issue. As such, from your unique medical and legal perspective, do you believe excluding mental illness as the sole underlying condition for MAID is discriminatory and stigmatizing?
Dr. Baillie: Thank you for the question. I agree that it is discriminatory. However, I believe it would be saved under section 1, if we look at the pressing and substantial concern, the rational connection, and the minimal impairment criteria under section 1. The pressing and substantial concern being the promotion of suicide prevention and the rational connection being, quite obviously, that we don’t want to have legislation that, on the one hand, says for people whose suffering has become intolerable that they are allowed to access MAID, at the same time we’re saying that suicide is something that should be prevented.
The comment that I made towards the end of the brief that I provided is that we are talking about medical assistance in dying; we are not talking about medical assistance for dying or medical assistance with dying. We are talking about individuals who are in the process of dying and who are, for very personal reasons, requesting a hastening of their death. That criteria does not apply to almost any mental illness with the exception, perhaps, of anorexia. Mental illnesses do not cause death in and of themselves, so to be providing assistance for death in those circumstances is not a situation where you are hastening a natural death. To answer your question, I do believe it is discriminatory, but I also believe that in a legal analysis, it could be saved under a section 1.
Senator Batters: I know in your work with the Mental Health Commission of Canada, that major national organization has done much over the last decade, and more, to combat stigma. I have personally tried to always do that in the last decade of my life, to work very hard to do that. I would never want to take a position that stigmatized people with mental illness. However, protecting those who are vulnerable is a crucial aspect here.
Dr. Baillie: I certainly agree, and the commission appreciates your efforts and the efforts of organizations like Bell Let’s Talk in helping to reduce stigma around mental illness. Again, as I said in an earlier comment, I’m not saying there are no circumstances under which an individual’s mental illness should not be given access MAID. I’m saying we need to figure out what those circumstances are and make sure that we have appropriate criteria in place so that individuals with mental illness do not end up suffering a wrongful death because of what may be a transitory wish to die.
Senator Dalphond: I understand from what you just said, Dr. Baillie, that what is missing are safeguards in connection with mental illness.
Dr. Baillie: I’m sorry; was that question for me?
Senator Dalphond: Yes. I will repeat the question. Your last answer to Senator Batters is that you are not saying that the person suffering from a mental illness should always be denied access in all cases, but it should be allowed in cases where there are sufficient safeguards to make sure that consent is properly given.
Dr. Baillie: Yes, sir.
Senator Dalphond: My next question is for Dr. Naud. Based on that answer and on the answer you started to give Senator Carignan, I understand you feel that the medical profession is able to propose adequate guidelines and security measures thanks to the experts, particularly the psychiatrists and the Collège des médecins, for appropriately assessing this kind of situation. Am I wrong in summing up your remarks that way, Dr. Naud?
Dr. Naud: No, you’re not wrong. Quite the contrary, that’s precisely what I said. When you consult the experts, the psychiatrists, they say they’re comfortable. I’m obviously talking about the majority of physicians. In all disciplines within the medical profession, there will always be people who are uncomfortable with medical assistance in dying, and you have to respect that. However, when you look at the expert panels working on the issue, they say, “Yes, we should grant access to medical assistance in dying, on certain conditions, to patients whose principal condition is a grievous and irremediable psychiatric mental illness.”
You have to understand that there is no connection between medical assistance in dying and suicide. The two are often associated with each other. Some say that medical assistance in dying will push people to suicide, but these are two entirely different things. If you take the time to read Judge Baudouin’s decision in the Jean Truchon and Nicole Gladu cases, this assertion is very clearly supported over some 20 pages in the judgment, starting at paragraph 374. So the two things are completely different.
The aim, as I said, is obviously to prevent suicide, not to promote it among the mentally ill. If you consider the experience of the Netherlands and Belgium, safeguards have been in place since 2012, and they have never had to reverse course. If there had been abuses, if there had been a mass eugenics movement, as some have predicted, it would all have been abolished. However, that has not been the case.
Senator Dalphond: Based on your experience, have persons suffering essentially from mental illness received medical assistance in dying in Quebec?
Dr. Naud: Not to my knowledge. That has not been the case in Quebec for several reasons. In Quebec to date, there has been an end-of-life criterion; in other words, patients have had to be considered as coming to the end of their lives in order to qualify. We’re talking about foreseeable death within 12 months, which is not the case of the vast majority of people who have a mental illness. Consequently, to my knowledge, no one in Quebec has received medical assistance in dying. However, others have in the rest of Canada. There was an interim period before the federal act came into force. Incidentally, the first patient in Canada who received a personal exemption — before Bill C-16 came into force — suffered from a purely psychiatric condition; he had no physical disease. There have also been a few other cases in the rest of Canada. In Quebec, however, as far as I know, there have been no cases to date.
Once again, I think we should rely on the expert panels that are very familiar with these diseases and that tell us they can establish safeguards that will guarantee protection for vulnerable patients.
Senator Dalphond: Thank you.
Senator Martin: Thanks to all of you for the important work that you are doing.
I know that Dr. Naud and others have referenced Belgium and the Netherlands and, yes, they are ahead in terms of their understanding and implementation of their system. But there was an investigative report by The Guardian newspaper last year that found that well over a quarter of deaths in the Netherlands in 2017 were induced through euthanasia, suicide outside the system or palliative sedation.
I think all of you have mentioned — and many of our witnesses have talked about — the importance of safeguards. Without them, I believe we’re going down a path to a very dangerous situation. Regarding the important safeguards that must be in place, I wanted to ask Dr. Ferrier whether we need to amend this bill to keep some of those safeguards.
Dr. Ferrier: Thank you for the question. Yes, I definitely think this bill needs to be amended seriously. As I mentioned, for example, allowing only 90 days for someone who is not dying to try to see what you can do for them before they receive medical aid in dying is a joke in our health care system considering how hard it is to get care and how, for people with disabilities, many things are missing besides medical care.
As an aside, Dr. Naud said there is a difference between medical aid in dying and suicide, which was proven by the judge in Truchon. I would contend that judges do not have expertise in that matter, and that in fact the Council of Canadian Academies’ expert panel could not reach a consensus on the question of whether there is a difference between MAID and suicide. I believe it is one way of committing suicide. Perhaps it’s less dramatic than jumping off a bridge, but it is a way of committing suicide with the help of your doctor.
No safeguards will protect everyone. Coercion cannot always be detected. It can be subtle. Just having a health care professional say “this is one of your options” puts it higher on the list compared to other things for someone in a time of distress and suffering, and who is suddenly faced with very bad news, whether it’s a diagnosis of cancer, a disabling accident or some other terrible disease. Life is not as simple as it is said to be by those who are promoting open access to death. It takes months to years to get good psychiatric care. It takes a long time to get most of the things that might make life better for many people.
Sure, put in all the safeguards you can, but it still won’t protect everybody from choosing death when they could have chosen life. I don’t know if you heard the disabled people who testified before the Justice Committee a few weeks ago. They were saying, “There are so many things we need. Why are you offering us death as the first choice when we don’t have all of the other things? Why are you promoting our suicide instead of life for us?”
I could go on, but safeguards, even the tightest ones, will not do everything. The most important one is to make sure that MAID is never on the list of the first choices and that everything else is tried, which can take not 90 days but a few years for many people. That’s the number one safeguard I would put in place.
Senator Martin: Thank you.
Senator Boisvenu: I had two questions for Dr. Ferrier, but they’ve already been asked. Dr. Naud, in your brief opening remarks, you left us hanging on the subject of advance medical directives. You said you had explained those guidelines in your brief. Can you tell us about them?
Dr. Naud: Of course. There’s clearly a broad popular consensus that patients can eventually access medical assistance in dying via advance directives once they’ve received a serious diagnosis of Alzheimer’s disease or any other associated dementia.
According to a national survey conducted by Léger in June 2019, 84% of Quebecers and 80% of citizens in the rest of Canada were in favour of these safeguards being implemented. Fairly simple safeguards could be established. An individual could submit a request by signing an authorization form before a witness after receiving a diagnosis or after a certain amount of time had elapsed. It’s understood that the shock of the diagnosis has to be absorbed and the patient must receive all available information. Patients must be allowed to process it all.
In the case of Alzheimer’s, death does not occur in the short term but rather seven to eight years on average after diagnosis. Once diagnosed, following a certain period of time and after thoroughly examining the matter, an individual could make a request by signing a form before a witness. Another request could be made three to six months later, knowing that the patient still has the capacity to give his or her consent. That request would be binding. The individual could then identify a series of objective criteria that, for him or her, would represent a state of loss of dignity that the individual would not want to face. For example, the person might say, “I have not been able to recognize my family for at least six months; I am constantly bedridden; I am completely dependent on friends and family for my eating and hygiene needs.” We’re talking about a series of objective criteria that, if met, would justify the person’s requesting medical assistance in dying even if he or she were later unable to give consent. The person would follow the same procedure, with an advance directive, as in signing a will or a mandate of incapacity. An agent would be appointed to take charge of the individual’s case once the individual became incapacitated. The person could be asked to appoint in writing an agent who would be responsible for alerting the caregiver team in order to determine whether the patient’s time had come. That responsibility could be assigned, not to the attending physician, but to a multidisciplinary team of professionals, including a physician, a social worker or a nurse, who would be responsible for assessing the situation to determine whether the time had come to grant the patient’s wish.
Senator Boisvenu: Does the bill provide for all that?
Dr. Naud: Not at all, but I think that should be part of it. This is an important issue for Quebecers and Canadians because the population is aging and Alzheimer’s disease, as we speak, is still incurable.
Senator Boisvenu: Thank you for your contribution.
Senator Keating: Dr. Naud, thank you very much for your testimony as a practitioner on the ground. It’s very important. I must say we have had few witnesses who have been able to guide us in this matter. We’ve heard a lot of testimony on the mental health issue, particularly on the definitions of medical assistance in dying in connection with depression and suicide. However, mental illness is much more than that. As you very well know, there are enormous numbers of mental health categories. I’d like to get your opinion on the example that Dr. Baillie cited of a person depressed about the circumstances of his or her life. That’s not a person who would de facto be eligible for medical assistance in dying, is it? Not at all. At least not before consulting a medical team of psychiatrists, for example.
Dr. Naud: No, not at all, senator. You’re absolutely right on that point. Dr. Baillie’s example doesn’t meet the criteria for medical assistance in dying. When we discuss patients who receive medical assistance in dying in other countries, they aren’t examples of this type. There is always someone who cites an anecdotal example, but, in other countries, we’re talking about grievous and irremediable diseases such as schizophrenia, where the quality of life is miserable. We’re talking about people who can’t take it anymore, who are overmedicated, who are undergoing electroshock treatments, people who have exhausted all options, who live in terrible physical and mental suffering and who say they’re going to jump off a bridge. This isn’t transitory depression or a person who is experiencing circumstantial problems or a specific situation. For example, a person who loses his job would not have access to medical assistance in dying simply because he’s in financial difficulty. That’s quite clear to me. There are never examples of this kind. As you know, there’s a world of difference between physicians who discuss medical assistance in dying, health professionals, those who have never met a single one of these patients or participated in medical assistance in dying and are unfamiliar with process, and those who know what it all represents. They’re able to be the voice of these patients and are aware of the rigorous nature of the medical-assistance-in-dying process.
That’s why I would say from the outset that now we must take note of all those years of experience, in Quebec and Canada, so we can genuinely talk about what’s happening on the ground. There’s no longer any room for apocalyptic prophecies because they’re false; we knew they were false, and we now have the proof of that.
Senator Keating: Thank you. By the way, I knew the answer before I asked you the question. I have a lot of family experience with severe mental illness. My grandmother spent her life in an institution because she was psychotic and paranoid, and that’s what you did at the time.
There is indeed a big difference, and I don’t doubt that the medical profession takes the administration of safeguards such as these very seriously when administering medical assistance in dying to persons suffering from psychiatric disorders. Thank you very much for being with us today.
Senator Boyer: My question is for Dr. Naud and it relates to the general accessibility of health care services and mental health services in Indigenous communities.
In response to concerns regarding Indigenous peoples’ access to mental health professionals, doctors and nurses suggest prioritizing the use of telemedicine or telecounselling. However, this suggestion does not take into account a number of factors, including the possible lack of electronic devices or internet connection, the language barriers and the risk that the person on the other end of call is not sufficiently trained to provide culturally appropriate services. When it comes to accessing MAID and meeting the eligibility requirements of this process, how do you recommend this bill be strengthened to ensure that those who have limited access to essential services will receive equal treatment under the law?
Dr. Naud: I’m not personally comfortable with remote assessment of eligibility for medical assistance in dying, and I wouldn’t do it because I think that contact with the patient is essential; you really have to be in the patient’s presence. Remote assessment may be practical in certain circumstances, but it has significant limits and will never replace a consultation with the patient and the patient’s family. Medical assistance in dying is not trivial care. I believe we can all agree on that. It’s important and serious. It’s a decision that, as I said at the outset, no one makes impulsively. You have to allocate the appropriate resources to do the work properly and rigorously.
You raised the question of remote communities, and that’s not my experience. I’m in no position to suggest potential solutions in that area, but what I do know is that very few requests for medical assistance in dying are made in the communities. This is generally not part of First Nations culture, and correct me if I’m wrong. So these are rare requests, but I think that, if any are made, you have to be able to go into those communities to do the work properly, to ensure the statutory criteria are met, to meet the patients themselves, to meet their families and to speak with those in their circle. This is always an effort that you make as a physician when assessing a request; you always talk to the attending physicians, the medical specialists and the consultants, and you examine the medical file.
In the initial assessment for medical assistance in dying, in my practice, when I meet a patient who has made a request, the interview lasts between two and a half and five hours. It’s not 15 minutes perched at the kitchen table. I have access to the patient’s medical file. You have to go and meet the people in order to do the work rigorously when requests are made. I don’t know whether that answers your question.
Senator Boyer: It identifies a huge gap. Thank you.
Senator Dupuis: My question is for Dr. Naud. Thanks to all the witnesses for appearing before the committee today to address a difficult issue.
Dr. Naud, you talked about medical assistance in dying once a diagnosis has been established. I’d like to ask you this question: Since our generation has known parents and grandparents who died very old, a number of them of physical or other diseases, such as Alzheimer’s, for example, we have acquired what could be called painful experience. We can’t help but ask ourselves, “Will it really help me to know that I can request medical assistance in dying once a diagnosis has been established? If I have a form of Alzheimer’s and am one of the patients who doesn’t even realize they ask the same question 100 times a day, it will clearly be too late when the diagnosis is reached.”
What discussion should we be having in order to start people thinking about this issue? Many women live to a very old age after being informal caregivers to their spouses for years, and they are weakened by the experience. Is it possible instead to consider putting in place a system of advance directives that would state in advance, upon careful consideration and assessment, that, assuming certain disease-related effects, the person wishes to receive no treatment or intervention?
Dr. Naud: Quebec already has a regime of advance medical directives under which patients may refuse certain types of care in advance, but that doesn’t concern medical assistance in dying.
I would personally like us to have the option of requesting it in advance by advance directives once the diagnosis is received. You have to understand that, once a diagnosis is reached, it usually takes a long time for incapacity to appear. In the initial stages of the disease, stages 1, 2, 3 and even stage 4, patients are still capable. They’re capable of understanding their condition, of realizing how it will evolve and of observing what’s coming. There’s no urgency either.
Why am I in favour of doing it once the diagnosis has been established? Because, when you’re 50 years old, you say, “I watched my mother die of Alzheimer’s, and that’s not how I want to go.” That’s what I often hear on the ground. I’m basically a family physician, and all families in Canada have members who died of Alzheimer’s. That frequently happens. If you make that decision at 50 but are diagnosed with Alzheimer’s at 74, a lot of water has gone under the bridge. Will you be in the same situation? Will you have the same circle and the same resources? A lot of things can happen.
The point I want to make is that, once the diagnosis has been reached, you still have time to think about it. It may happen — and you’re right about this — that Alzheimer’s is diagnosed in a person who, at the time of the diagnosis, is incapable because he or she has been all alone for years and whose family has tried to compensate for the person’s deficiencies, but that doesn’t happen in the majority of cases. In most cases, the diagnosis is reached at quite an early stage of the disease, and the person is often capable of consent for a few more years. Consequently, there’s time to think about it properly, to gather information on available resources and to see how the disease evolves and where the person can eventually go once he or she is incapable and can no longer stay at home. There’s ample time to make these requests. So some patients may be incapable at the time of the diagnosis, but they are very rare.
Senator Cotter: I have two questions. The first is for Dr. Naud. In your conversations with us, at the outset you identified on the subject of mental illness some safeguards that needed to be put in place, or could or should be, at least. In particular, you mentioned a few, and I’m not knowledgeable about the content of those. There was a suggestion that the legislation be amended to include mental illness as the sole underlying condition but to suspend the operation of that provision for a year so that aspects of the consideration of mental illness for MAID purposes be able to be considered and framed better. Is that a realistic option in your view, to enable those safeguards to be put in place and then have the legislation kick in?
Dr. Naud: I personally think that would be an acceptable alternative. Rather than deny all those patients at the outset and discriminate against them on the basis of their pathology, if one could at least offer some light at the end of the tunnel for these few patients who might eventually receive medical assistance in dying and have a timeline of 6 months or a year... I don’t think the timeline should be 5 or 10 years, but you could take 6 months or a year to put safeguards in place. I think that would be a perfectly acceptable alternative.
Particularly since we’re expecting expert reports to be released shortly that should enlighten us on the matter. I referred to the report by the expert panel of the Association des médecins psychiatres du Québec that will be published in early December. The Canadian Psychiatric Association recently did the same thing. So that would be an acceptable and feasible alternative, which would give hope to those few patients who suffer from grievous and irremediable pathologies and experience serious mental suffering.
Senator Cotter: Thank you. If I could ask a second question, this one of Dr. Baillie.
Dr. Baillie, one of the questions that Senator Batters put to you is a fundamentally important constitutional question concerning mental illness as a sole underlying condition, and you offered both medical insight into mental illness and discrimination and also the constitutional view. I want to ask this question respectfully. Are you still practising law, and the degree to which we should regard that as a legal opinion?
Dr. Baillie: I continue to be a member of the Law Society of Alberta. I appear in court typically as an expert witness. I have not done trials in court.
Senator Pate: We’ve had, as has been alluded to, a number of witnesses come before us raising issues around people with disabilities, and there have been some examples of the type of coercion that I think Dr. Ferrier was referring to. I’d like to hear a bit about how you see what amendments could save those situations, particularly in light of the situation we’re facing now, as has been revealed during the pandemic, of the lack of resources, adequate health, economic and social supports for individuals.
As well, one of the areas that I’m particularly concerned about is the number of people who are in prisons who are requesting medical assistance in dying. My personal view, based on years of doing that work, is that it should not be provided in a prison. There are many doctors who have argued that treatment should never be provided in prisons because there can never be assurance that it’s voluntary. I’m curious, maybe starting with Dr. Ferrier but also the rest of you commenting, on how you see we could amend this legislation to improve it and to ensure those kinds of protections particularly for marginalized groups. Thank you.
Dr. Ferrier: Thank you very much for that question. If we look at, for example, some of the disabled people who testified recently, if for years you’ve been discriminated against in many ways, you’ve been marginalized, to be offered death is like a slap in the face. We have to look whether this person has adequate medical care? Does this person have adequate rehabilitation? Does this person live in poverty or make a decent living? Does this person have accessible housing, or do they have to live in a nursing home like Mr. Truchon?
I think that an amendment would mean to address all of the things that are causing the suffering of this person before even allowing MAID to be on the table. It would also mean never suggesting MAID, as it has been suggested to people who testified and probably many others who don’t have the skills or the opportunities to go public. There are people who are a drain on society’s resources and who are made to feel they are a drain on society’s resources. So I think to consider a request for death or to offer death is really unworthy of Canadian society. Ninety days? Forget it. Address one by one each of the things that’s making this person suffer. And if after all of that, the person still says, “Yes, I would rather be dead,” maybe that would be the amendment.
I would also make it illegal to suggest it to anybody ever, and that includes just listing it as one of the options. Because, as health professionals, we have a power differential. What we raise as an option is often understood as a recommendation, even if we don’t intend it that way.
Those are the two main things that I would say. Also, there has been a whole movement to push MAID into every health care environment, and that I think is discriminatory against all the people who don’t want it, which is the majority of Canadians, and to allow for safe spaces and safe medical practices where patients know this will not be an option on the table, ever, and that they can express their death wishes without them being taken as something they really want. Those are the three things that I would suggest.
Dr. Baillie: Senator Pate, I’m happy to add a small contribution here. You and I have previously talked about the complete lack of treatment services in many of our jails and penitentiaries. One of the curiosities of MAID, one of the challenges, is that the individual seeking MAID is not required to have exhausted all of their treatment options but can make an individual decision on whether or not they choose to access treatment. Except when you’re in custody, you don’t have the same access to treatment services. So some of those individuals in custodial settings who are making requests for MAID may be making it even if they wanted to be accessing appropriate treatment resources, so I would be concerned about the coercive element of that; that end of life becomes a favourable option because the treatment services aren’t there.
Again, it goes back to the broader recommendation from the Mental Health Commission of making sure we have an emphasis on access to recovery-oriented services as part of this broader discussion.
Senator Pate: Dr. Naud, did you have any additional comments?
Dr. Naud: In the first year of medical school, you learn that asking a depressed patient if he is considering suicide won’t encourage him to commit suicide if he hasn’t already thought of it. Exactly the same is true of medical assistance in dying. It’s not because you talk to a patient about medical assistance in dying that he’ll consider it as an option if that’s not already his choice. It remains a strictly personal choice. Once again, medical assistance in dying is a form of care that is entirely legitimate and lawful.
You must be able to offer persons with disabilities all the necessary resources to help them go as far as possible. At the same time, you have to acknowledge that, for certain disabled individuals who feel they can’t take it anymore, it’s not a matter of resources. In Quebec, we asked Ms. Gladu and Mr. Truchon why they wanted to receive medical assistance in dying. It was clearly not for a lack of resources. The Superior Court of Quebec’s nearly 200-page judgment provides their eloquent, detailed and substantiated answer.
It must be understood that this is a legitimate choice and that the suffering is that of the patients themselves, and they alone can judge it. It’s not up to the physician to say, with a paternalistic attitude, that the patient should try harder and look at all the options. The decision is up to the patient. We have a duty as physicians — and we do it systematically with medical assistance in dying — to discuss with patients the options still available to them, including palliative care, if they aren’t already receiving it, which is the case of 20% of our patients in Quebec who receive medical assistance in dying. Afterwards, however, it’s up to the patient to accept them or not. That’s the very principle of self-determination, which has long been recognized by Canadian courts.
As to your question about medical assistance in dying in prison...
The Chair: Thank you, Dr. Naud. I’m very sorry to cut you off. There’s one second round for Senator Batters.
Senator Batters: I just wanted to briefly say at the end of my earlier remarks to Dr. Baillie that I note that Mental Health Commission of Canada is now the second major national mental health organization to come before us in this assisted suicide Bill C-7 study and advised that they have not yet had time to formulate a full position on this bill, which the federal government is pursuing to push through. It’s certainly understandable from the Mental Health Commission of Canada, and also yesterday from the CMHA, because there’s so much pressure with COVID-19 that it’s putting on our mental health system and on crucial organizations like yours to help people through this pandemic and through the additional pressures that it brings. But then it concerns me as to why the federal government is pursuing this bill at this time and pushing this through during a pandemic, when there are such pressing priorities. Thank you.
Dr. Baillie: I think, as you’ve clearly heard today, not just in this panel but in others, there are wildly different perspectives on the legislation. It goes too far, it doesn’t go far enough, mental illness shouldn’t be protected, mental illness should be protected. I think it’s a dialogue that requires a significant amount of further conversation.
The Chair: Thank you very much to all three of you. You have really added to our knowledge base and we know that we will continually ask for your help. We appreciate you making time for us today at such short notice.
We will now go on to our next panel. I want to welcome both of you. We know we gave you very short notice and appreciate you making yourselves available. As you have made yourself available to us at such short notice, I want to assure you that we also very much want to learn and hear from you.
Dr. Sephora Tang is a psychiatrist from The Ottawa Hospital, and a clinical lecturer from the University of Ottawa.
Dr. Tang, the floor is yours.
Dr. Sephora Tang, Psychiatrist, The Ottawa Hospital, Clinical Lecturer, University of Ottawa, as an individual: Senators, thank you for the opportunity to speak today. My name is Dr. Sephora Tang. I am a psychiatrist in Ottawa and co-author of the MAID to MAD declaration, an initiative of physicians together with vulnerable Canadians, signed by over a thousand Canadian physicians who have concerns with the removal of safeguards previously deemed necessary in Bill C-7.
Bill C-7 would facilitate the deaths of people whose death wishes may stem, not primarily, from their comorbid physical illness but from unaddressed psychological distress. Under the current bill, patients may be approved for medical assistance in dying, or MAID, without necessitating assurance of access to adequate care, nor requirement to undergo standard medical treatment before receiving MAID. This opens access to MAID to a much larger segment of the population, and the consequence of this reality on vulnerable populations needs to be fully appreciated.
The lack of adequate supports is often a direct stressor that triggers suicidal thoughts in an individual, yet wait times for psychiatric services often exceed the 90-day assessment period allotted by Bill C-7.
Without the necessary supports in place to parallel a permissive MAID regime, individuals are left with the prospect of choosing between an assisted death or continuing the uphill struggle of living with inadequate supports. To place an individual in such a predicament is cruel and fundamentally unjust.
Cases will inevitably arise where MAID providers will question the appropriateness of administering death as a response to suffering. For the safety of patients, and in order to provide appropriate medical care, health care professionals must be given freedom to maintain their professional autonomy in declining involvement in requests for death that they deem inappropriate.
Under the current legal framework, I may be sanctioned for declining to facilitate my patient’s request to end their life. As a psychiatrist, this places me in a precarious predicament as my work in suicide prevention is incompatible with current expectations under the law to facilitate suicide.
Despite assertions that Bill C-14 adequately protects the freedom of conscience of physicians to decline participation in MAID, the reality is that physicians in Ontario can now be penalized by their regulating college for declining to participate in arranging and facilitating the deaths of patients, an act that for many is deeply offensive to the integrity of their character, conscience and medical moral ethics. If the status quo remains, the state is essentially being permitted to compel an unwilling practitioner to engage in an action they believe to be harmful to another person, and effectively sets up the conditions for inflicting moral injury upon health care professionals.
Moral injury is a trauma syndrome that includes psychological, existential, behavioural and interpersonal issues that emerge following perceived violations of deep moral beliefs. These experiences can lead to feelings including guilt, shame, depression, anxiety, anger and even self-harm. The provincial parliamentary testimony of Ontario physicians gives evidence to moral distress arising as a result of the effective referral requirement in Ontario. It would be in the best interest of government and society to prevent moral injury in our medical workforce while implementing the provision of MAID services.
The recent decision of the Ontario Court of Appeal to uphold the effective referral policy for MAID by Ontario’s medical college amply demonstrates the inadequacies of conscience protection in federal law. The ruling opposes recommendations made by the Canadian Medical Association and World Medical Association with respect to upholding freedom of conscience for physicians. Canada has failed on the global stage to demonstrate mutual respect for patients and physicians in this regard.
The federal Criminal Code exists to safeguard and protect Canadians. Amending Bill C-7 to make it an offence to coerce an individual into aiding and abetting suicide would send the message that suicide prevention remains an important matter of public safety, and would provide an enforceable safeguard to protect patients and physicians from systemic coercion.
For the sake of our patients and the health of our medical workforce, I am therefore respectfully appealing to the Canadian Senate to ensure that there are amendments to Bill C-7 that would explicitly safeguard the ability of medical professionals to continue providing care without undue coercion to engaging in life-ending interventions that they find morally and ethically unacceptable. I also urge you to support recommendations that would ensure all patients have access to good medical, palliative and mental health care, as well as access to other social supports such as affordable, accessible housing and home supports, before pursuing a life-terminating pathway. Thank you for your consideration.
The Chair: Thank you very much, Dr. Tang, for making yourself available.
We will now hear from Dr. Justine Dembo. She’s a psychiatrist at Sunnybrook Health Sciences Centre and a lecturer at the University of Toronto.
Dr. Dembo, the floor is yours.
Dr. Justine Dembo, Psychiatrist, Sunnybrook Health Sciences Centre, Lecturer, University of Toronto: Thank you very much for having me today. I will be focusing on the proposed exclusion of all requests for MAID where mental disorders are the sole underlying condition today. I’m speaking from my experience as a MAID assessor and researcher, and I’m representing my own opinions. I’ve been a MAID assessor since Carter and this includes assessments for individuals without a reasonably foreseeable natural death and those requesting for a sole underlying mental condition.
I believe that suicide prevention and improved access to health care and mental health care are extremely important priorities, and they should remain so no matter what happens with MAID laws. I also believe that MAID does not undermine these efforts. In my opinion, MAID is about the value of life and especially about the value of quality of life.
I have several serious concerns about the exclusion of mental disorders, and I’ve submitted a brief as well with further detail.
My first main concern is around stigma and discrimination. The exclusion itself, as well as the language used in paragraph 241.2(2)(a), serves to undermine the extent of suffering these individuals can experience, and it neglects to take into account the ways in which mental disorders can impact factors ranging from functional ability like the ability to work or fulfill a social role, to aspects of personhood, like a sense of identity, a sense of meaning and purpose, belonging, and the ability to enjoy life.
It also undermines the fact that some individuals with unbearable suffering due to a mental disorder can be unresponsive even to decades of high-quality evidence-based treatments. This group of patients has a history of being denied equal rights and the expression of autonomy, and we must remember that. We also must remember that capacity is presumed unless proven otherwise, as stated by the Canadian Psychiatric Association position paper in 2015.
My next concern has to do with the false separation between physical and mental illness implied by this exclusion. The brain is a physical organ, and there are neuroanatomical differences noted on neural imaging in mental disorders. Just as mental disorders can produce or cause physical symptoms as in conversion disorder or somatic delusions or anxiety, physical disorders can produce symptoms of mental illness. For example, Parkinson’s disease is well associated with depression. There is a high degree of co-morbidity between physical and mental disorders, and both are affected by psychosocial factors.
There are also numerous physical disorders that share the same diagnostic and prognostic challenges as mental disorders, for example, fibromyalgia or chronic fatigue syndrome.
I’m also concerned about the arbitrariness in this exclusion in that you can imagine two individuals with treatment for depression, where one has had a physical diagnosis like diabetes or kidney disease and the other doesn’t. The physical diagnosis will provide a gateway to MAID, but it’s entirely possible that both individuals are requesting MAID for the suffering due to the mental disorder even if they do not explicitly say so. This relates to the fact that the types of suffering leading to MAID requests, as listed in the first annual Canadian report on MAID published this year, are primarily not physical. They include things like the loss of ability to engage in activities that make life meaningful, existential and psychological distress, and feeling like a burden.
The exclusion does not serve its intended purpose to protect the vulnerable. I say this because anyone, including someone with a reasonably foreseeable natural death and a clear physical illness, has the potential to be vulnerable due to factors like extreme physical symptoms, pain or nausea, psychosocial stressors or poverty.
I’ll briefly speak from my clinical experience. I have assessed individuals without mental disorders where there’s a reasonably foreseeable natural death as well as sole underlying medical condition, and no matter who I assess, I am always cautious and thorough because the absence of a mental disorder does not guarantee an easy capacity assessment or lack of vulnerability. When I have doubts about capacity, my assessments are longer and I repeat multiple assessments over time. I consult with colleagues, take time to do research and ask for second opinions. Of the patients I’ve assessed for MAID, the MAID referral has often been the gateway to a thorough psychiatric assessment and improved access to resources and health care.
I’ll conclude by suggesting that the exclusion of mental disorders should be removed from Bill C-7 and that ongoing research and additional safeguards like oversight, appropriate training of assessors and a clearer definition of irremediability for mental disorders should be put in place instead of a blanket exclusion. Each Canadian, no matter what the reason for the MAID request, should have the right to a thorough assessment. Thank you very much.
The Chair: Thank you. I just want a clarification, Dr. Dembo, if I may, and I heard you very clearly. Would you say that we still need to study it a little bit more and Parliament should take another year to look at this issue?
Dr. Dembo: I don’t think that one more year of study would provide information that would satisfy opponents to this suggestion. But I do think that taking some time to devise appropriate definitions of irremediability and specific safeguards for this population would be worthwhile.
The Chair: So it would be worth studying it more carefully before we look at passing it. Would you agree with that? We’re looking at making mental health a reason to access MAID.
Dr. Dembo: I’m not sure; I may be misunderstanding you.
The Chair: I’m not being clear.
Dr. Dembo: You’re using the term “to study it.” I think that’s problematic because it will take many years to study, and in order to study it appropriately, one would need to actually have policies in place that one can then measure, study over time and look at outcome data. But what I would suggest is a period of time, and perhaps that would be about six months to a year, where we can work to draft appropriate safeguards, but I would not suggest longer than that for this population to be excluded.
The Chair: Thank you, Dr. Dembo.
Senator Carignan: Dr. Dembo, can you tell us about the sunset clause to clarify matters further for us? I don’t think your comments were clear enough.
Dr. Dembo: I’m sorry. I may not have heard you right. Did you say clause 107?
Senator Carignan: No, I am talking about the sunset clause, which is designed to delay implementation so we can pursue our study. Could you tell us more about that?
Dr. Dembo: I can try, yes. I think what matters to me is that — because I do believe in access to good mental health care and I want to make sure that individuals do not feel coerced or pressured into MAID, that we do a very thorough and appropriate assessment, and offer appropriate treatments — for this population, we need appropriate safeguards, and those have not yet been developed in our law. I think we need time and we need committees designated to develop appropriate safeguards. But I’m not talking about a period of further study. I think research should be ongoing no matter what, but in terms of including this population in the law, we need to develop safeguards.
Senator Carignan: My second question is for the first witness. You seem to be afraid that physicians may be compelled to administer medical assistance in dying, and you want to amend the Criminal Code to respect physicians’ freedom of conscience. However, is the Criminal Code the appropriate statute in which to insert this provision? Ultimately, the code indicates what isn’t criminal. In my view, this may not be the best statute in which to insert the clause providing that physicians may not be compelled to administer medical assistance in dying. That might be more appropriate in a provincial act or in codes of ethics.
Dr. Tang: Thank you for this question, senator. I am not a lawyer, so I would probably defer the legalities of that to a lawyer.
However, the code that we are currently discussing is a Criminal Code. It is concerning whether it is proper to aid and abet the suicide of another person. That was what Bill C-14 was. You are referring to possibly using a policy or a provincial policy to enforce this. What we have seen in Ontario, when the federal government allowed for the provincial governments to regulate this, is there has not been sufficient conscience protections for physicians.
As to your question about whether this is appropriate to put in a federal bill in the Criminal Code, I think it would be appropriate because the purpose of the Criminal Code is to protect the safety and the lives of Canadians, and it was previously a criminal matter to euthanize or assist the suicide of a patient. I think to coerce somebody to do such an act against their will should be a criminal matter in order to ensure the safety of citizens.
Senator Batters: My first question is to Dr. Sephora Tang. In your brief you stated, and you also reiterated today:
As a psychiatrist, my work to preserve the life and safety of my vulnerable and suicidal patients is incongruent with current expectations under the law to facilitate their suicide.
Dr. Tang, how do the proposals in this particular legislation impact your suicide prevention work?
Dr. Tang: Actually, with Bill C-7, because it removes the reasonably foreseeable death clause, many of my patients whom I treat today would ask me for access to medical aid in dying or medically administered death.
The way that the college in Ontario has made it is that I need to make an effective referral. So this cuts short the time that I have with my patients.
I can tell you an anecdote of a patient on whom the hospital system had given up, after multiple suicide attempts and hospitalizations that they felt were not conducive to her recovery and were actually causing more harm. They basically stated that she was just a very high risk. I spent about four hours talking her out of jumping off a bridge. I went with her to receive treatment at the emergency department. After that, she was discharged. But one of the things she said to me was, “Thank you, doctor, for not giving up on me.” So I see that, with the effective referral requirements and the removal of reasonably foreseeable death clause in Bill C-7, it would place a lot of patients like this at risk.
My patients need to see that I remain firm in giving them hope, that I’m not going to give up on them even if, in a moment of desperation, they want to end their lives. They need to come to me and be guaranteed that I’m not going to collude in their suicidal urges and their hopelessness, because my job as a psychiatrist is to give them hope when they have lost all hope.
Senator Batters: Awesome. Thank you.
Just a quick question to Dr. Dembo. Did you say here today that you believe diabetes is a gateway to MAID, medically assisted death? Is that correct?
Dr. Dembo: It could absolutely be, even under Bill C-14, arguably, but especially under Bill C-7.
Senator Batters: Okay. Thank you.
Senator Dalphond: My question is for Dr. Dembo. You refer to the need for safeguards. You advocate for removing the exclusion for those suffering mental illnesses, but you say it should come with proper safeguards. Do you refer to proper legal safeguards, or do you refer to medically defined safeguards, like by the colleges of doctors and psychiatrists and guidelines within the profession instead of being in the Criminal Code?
Dr. Dembo: Thank you, senator. I imagine there would need to be a committee comprised of medical professionals, legal experts, bioethicists and so on. This is not purely a set of medical safeguards or legal safeguards because you have the intersection here of a human rights issue with a clinical issue. From a clinical standpoint, there would need to be medical experts helping to develop safeguards but, from a legal and human rights perspective, the other professionals would need to be involved, in my opinion.
Senator Dalphond: So in order to do this, we would need more time, I guess, because we couldn’t leave it to the profession?
Dr. Dembo: While I very much trust my colleagues, other MAID assessors, I do think we lack an appropriately defined set of criteria, for example, in how to diagnose irremediability in chronic mental illness. So we would need time to develop appropriate safeguards.
Senator Dalphond: Thank you.
My next question is for Dr. Tang. You referred to disciplinary measures imposed by the college of doctors of Ontario. So you are not referring to our problem which is specific to the Criminal Code, are you?
Dr. Tang: No, no. That’s the problem, because right now it’s the provincial colleges that are mandated to regulate how medically administered death is accessed. My point is that we actually need greater protections that should be within the federal law.
Senator Dalphond: But our goal is to design in what circumstances it could be legally done. And it’s left to the provinces to provide the services, and for the colleges to regulate the way it should be done and the discipline of their members.
Dr. Tang: Not if this is an issue of public safety.
Senator Dalphond: Thank you.
Senator Martin: Thank you both for your testimony.
Dr. Dembo, I think I heard you now say that we do need more time in regards to ensuring that the safeguards are clear in defining some of the definitions. But you said earlier in one of your responses that MAID assessment can be a gateway to other treatments. I was quite alarmed by just the thought of that. Should MAID not be a final, last resort option, instead of being a gateway to discover other treatments?
I’m curious about the work that you do. I hope that I didn’t misunderstand you. I hope that we really are looking at MAID as a last-resort treatment, rather than any sort of gateway to discovering what more could be done. Would you clarify what you said on that point, please?
Dr. Dembo: Thank you, senator. I think it’s a good question. Yes, I agree that MAID should be considered a last resort. The problem is that where it comes to chronic conditions and mental disorders, in theory there is an infinite number of treatments that someone can try. Some of them are more evidence-based and some of them are not. To expect someone to wait until something new is developed maybe 10 years in the future that may help them, that may be unreasonable. I have numerous examples in my practice of being referred someone who has requested MAID and, during the course of the assessment, it had become clear to me that there was a treatment or a psychosocial intervention or a resource that they actually had not yet had access to. At that point, I was able to find that resource and provide access to that resource.
When I see that some stones have been left unturned, I try to look at all of that as part of my assessment process.
Senator Martin: Thank you. And, yes, I agree that we need to turn all those stones before we even begin talking about this last resort. It was the order that alarmed and confused me. Thank you for the clarification.
Dr. Tang, I know you have already discussed this and mentioned it in your presentation, but would you further discuss how the lack of explicit conscience protection would affect your work in this expanded MAID regime? Because we keep hearing the minister and others saying there is already a protection. Would you specify what further protection is needed? And how will the adoption of this bill impact your work going forward?
Dr. Tang: Right now in Ontario, if a patient were to request medical assistance in dying, the college expects me to make a mandatory referral to somebody who would be able to provide that service. So, clearly, this is incompatible with my role as a psychiatrist when I am trying to prevent their suicides, and I would be abdicating my responsibility to safeguard their lives when I am passing them on to somebody who could actually end their lives. If I do not comply with that college requirement, I could be sanctioned for that. That could include the removal of my licence as the most severe penalty.
I feel that if there were further conscience protection, then I would be able to do my job without fear of penalty if I do not wish to involve myself in this process. If the patients wish to pursue MAID with a different provider or call the 1-800 number that the government has made possible, I would not be implicating myself in that and I would remain available to my patients, should they wish to continue working with me.
Right now, I do not have assurances that, if I practise according to my conscience in doing what I feel is best for my patients, in providing appropriate care and addressing their psychological distress, I will not be penalized for this. I feel this is actually to the detriment of my patients.
Senator Cotter: Thanks to both of you for your presentations. My questions are for Dr. Tang. This follows up on Senator Dalphond’s questions. If I understood your submission, it is that you would like to see a form of federal legislation — and you suggest the Criminal Code — that would essentially immunize doctors of conscience from being potentially exposed to forms of liability imposed by provincial health systems, or colleges of physicians and surgeons, in terms of the exercise of their conscience on questions like this. Am I describing that more or less correctly?
Dr. Tang: Yes, that is correct. Right now in Bill C-14, in the preamble, it already says that physicians should have their freedom of conscience protected, and that they are not forced to participate in providing MAID. However, in practical reality in Ontario, the college has still found a way to infringe upon that right, and our freedoms of conscience are not 100% guaranteed.
Senator Cotter: That leads me to a couple of questions. First, why wouldn’t you be taking this up with the college of physicians and surgeons? Second, if it were achieved at the federal level by a piece of legislation that immunized doctors of conscience, would I understand that, though you would choose not to deliver the service or do the referrals, you would be supportive of MAID being available to people in your province?
Dr. Tang: Whether MAID is available in the province or not is not my decision to make. This is something that the Supreme Court justices have decided was necessary for society, and I don’t have a say in that. The only say that I have is whether I choose to participate in this or not, and I wish to have my freedom of conscience protected so that I can do my work without penalty.
We have brought this up with the College of Physicians and Surgeons of Ontario, and the reason why I’m appealing to you today is because the Court of Appeal for Ontario ruled in favour of the college’s policy for an effective referral, stating that this was necessary to provide the service. However, this is false. For no other medical procedure does it fall upon the shoulders of physicians to find access to that particular medical procedure. Access to medical procedures should rightly fall within the jurisdiction of the provincial government, who actually has the resources available to provide services to patients, and not to individual doctors. There is no reason that we need to require physicians to be implicated in this process against their will. If they wish to do it, that’s fine. However, there are many pathways of being able to access MAID without coercing physicians who are unwilling to participate in this.
Senator Cotter: It seems to me, then, you are accepting the Supreme Court decision. You may not personally agree with it, but you’re accepting the decision that MAID is now a legally available option for people, but you’re not accepting the Ontario Court of Appeal decision with respect to the question of conscience?
Dr. Tang: If you are asking my opinion personally, I feel that when the Supreme Court justices ruled on the Carter decision, the government should have had the responsibility to use the notwithstanding clause to overturn that ruling. In 1993, the reason that the Supreme Court ruled against Sue Rodriguez, was because they had serious concerns about the effect of decriminalizing euthanasia and physician-assisted suicide on the vulnerable population. I think when the Carter decision was made, we did not fully appreciate the effects this would have on the lives of people who are vulnerable. For that I am very sorry, and I wish I could turn back the clock. Seeing that I can’t — and I don’t think the government is willing to make any changes right now — I have to learn to work within the system, unfortunately, and I’m trying very hard to be able to do my job to save the lives of my patients.
Given this is the system in which we are working, I think it would be a very Canadian thing to be able to respect both sides of an issue where people have come to the polar opposite conclusions, where some people feel that providing death to their patients on demand is actually harmful and detrimental, and for other people like myself where I would like to be able to offer another response to my patients’ suffering without ending their lives.
Senator Dupuis: Dr. Tang, I’d like to follow on from the responses you just gave Senator Cotter. You say that physicians’ freedom of conscience, physicians’ beliefs about life in general, must take precedence over a person’s capacity to decide for himself. You add that you want to be able to decide what’s best for your patients. Does that mean you want to have the option of deciding yourself what’s best for your patient, even if that’s not what he wants?
Dr. Tang: Senator, I think, as the Canadian Medical Association has written, it is a false dichotomy to pit the rights of autonomy of a patient with the rights of freedom of conscience of physicians. I do not force my medical treatment on my patients and I am not forcing them to come to see me in my office, but my job as a psychiatrist is to be able to give hope to my patients and to save their lives. They are quite capable of disagreeing with me, and if that is the case, they have access to medical assistance in dying as the laws of the land have now permitted it. But what I disagree with is the fact that our state can compel me to do something that I feel is harmful to my patients, whether my patients disagree with that or not.
In a country where we really encourage diversity and respecting the opinions of others, I think there is a way in which the people who want MAID can have that decision respected while also respecting my ability to practise medicine according to my conscience.
Senator Dupuis: You say your patients are free to consult you or not. I don’t know what region of the country you live in, but I can tell you that people in Quebec don’t have the luxury of saying that, if they don’t like their psychiatrist, they can choose another one.
Do you acknowledge that there’s a significant power differential in the relationship between psychiatrist and patient?
Dr. Tang: There is always a power differential between a doctor and a patient. However, the role of the physician is to be able to practice their craft to the best of their ability, using all of the tools they have in their toolkit to address the suffering of their patients. For myself, I do not agree that providing death to my patients upon demand is for their good when I have multiple other tools that I could use. The most concerning thing about Bill C-7 is that patients have the right to access MAID without even having accessed or tried any other standard medical procedure. It is their right to decline that treatment, but they may still have their lives ended despite not having received any proper medical care or still having many of their psychosocial determinants of health, such as financial supports, home health and adequate accessible housing, not available to them.
Senator Boisvenu: Dr. Tang makes a very interesting argument. Ultimately, you practise medicine within a legal framework recognized by the Canadian Constitution, of which the Canadian Charter of Rights and Freedoms is a part. The Charter acknowledges that Canadians have a right, a right that is exercised between them and their attending physician. When you say your moral duty tells you not to perform this medical act, you indirectly violate the Canadian Constitution, which first acknowledges that your patient has that right. You therefore refuse to meet your patient’s needs, don’t you?
Dr. Tang: I think that question was directed at me, senator.
It is not my job to be able to provide them access to medical assistance in dying. That is the responsibility of the government that provides medical care. I am not blocking their access to medical assistance in dying when there are other ways in which they are able to access that service. Their rights are not —
Senator Boisvenu: Doctor, you understand that we’re conducting a purely semantic debate here. You’re ultimately saying that this act is incompatible with suicide prevention. Is that correct?
Dr. Tang: Correct. It’s very hard to prevent suicide when you’re asked to facilitate it.
Senator Boisvenu: So if you say it’s incompatible, are you basing your judgment on your perception or on scientific studies that have shown that the right to medical assistance in dying has had a negative impact on suicide? Is there a scientific study showing that there has been an increase in suicide since 2016, the year Canada passed this legislation?
Dr. Tang: I think it would be premature to be able to comment on the effect that the legalization of euthanasia has had in Canada, given we have not even reached the five-year mark to review the process. If you look at other states, and I believe it was in Oregon, there was an increase in suicides after physician-assisted suicide was legalized. This was because of the phenomenon of suicide contagion. The media actually —
Senator Boisvenu: I understand, but Oregon’s legal framework is different from Canada’s. So we have to compare apples to apples. In the past five years, have we identified any patients that have committed suicide as a result of the passage of Canadian legislation on medical assistance in dying in 2016?
Dr. Tang: I’m not sure I understand your question. Have there been patients who have committed suicide because —
Senator Boisvenu: Yes, since that’s your assertion. You say this act is incompatible with suicide prevention. Consequently, if it has been incompatible since 2016, does that mean there has been an increase in suicides as a result of the act?
Dr. Tang: Bill C-14 was supposed to be for patients who were at their end of life or whose deaths were reasonably foreseeable. It would not be accurate to try to extrapolate from those conditions to having a bill that would allow patients who do not meet the criteria for a reasonably foreseeable death to access medical aid in dying. One of the fundamental things in suicide prevention is to prevent ready access to lethal means.
In practical terms, and I’m speaking from my experience as a clinical psychiatrist who deals with this every day in my practice, it makes sure patients don’t have access to a loaded gun, stockpiles of medication or nooses with which they can hang themselves at home. Regarding medical assistance in dying, what we are saying is this is a pathway where you could access a way to end your life.
Dr. Dembo: I will be brief. The question came up regarding evidence on MAID and suicide contagion and I want to be clear that, having reviewed a great deal of the literature that does exist on this topic, as well as in my clinical experience seeing patients and assessing MAID, I do not see any evidence of that.
Senator Boyer: My question is for Dr. Dembo, and you had briefly spoken on this earlier, but I’d like to explore it a bit more. Bill C-7 proposes an additional safeguard requiring that patients be informed of all alternative treatment options. As a psychiatrist who works with vulnerable patients, how do you believe doctors should perceive the role and the implementation of the safeguard? Should the recommendations on alternative treatment options change according to the specific circumstances of the patient and the socio-economic realities that they face?
Dr. Dembo: Thank you for the question. What perplexes me about that aspect of the bill is already, even without Bill C-7, we do inform patients of all reasonable treatment options and end-of-life options, including palliative care. That’s part of our duty already, whether someone is at the end of life or not. As for the second part of your question, I believe that which treatments and psychosocial interventions are going to be offered to which patients will depend on the patient, their illness and their circumstances.
Senator Boyer: Thank you very much.
Senator Keating: Dr. Tang, I’m really trying to understand what it is you’re asking here. The act provides for the freedom of conscience for you as a physician to not provide the service. I’m not sure you understand that the right to die is a constitutionally recognized right in a patient, and the people who provide the service for that is the medical profession. You are protected in that you do not have to provide the service, but are you actually asking that the Criminal Code be amended to make it a crime for you to even refer a patient to someone else if you don’t want to provide the service; is that what you’re suggesting?
Dr. Tang: Certainly, in Ontario, the reason we have concerns about this is that we are expected to make a referral to medical assistance in dying if requested.
Senator Keating: Referral is a normal thing in a doctor’s life, is it not? If everyone in your profession were to refuse to provide a referral — I’m not taking about providing the service — who would ensure that patient’s right to MAID was guaranteed? This is not provided by the guy on the street or the government or the social services department. It’s assisted death, and it’s a recognized right of your patient, so if you don’t want to provide it, you’re already protected. Are you actually asking that it be a criminal offence for you to have to refer a patient? That’s my question.
Dr. Tang: I think you need to understand the moral implications of what a referral is. We do not make referrals for our patient to services that we believe to be harmful, and the College of Physicians and Surgeons has a policy to say that we do not make referrals for things like female genital mutilation because it is recognized that that is a harmful procedure.
Senator Keating: That is not a constitutionally recognized right of your patient. The only question I’m asking — and I understand what a referral is; I’ve had plenty of experience myself — is whether you are suggesting that it be a crime for you to have to refer? That’s the only question I’m asking.
Dr. Tang: The reason I’m proposing this is because you need to understand that there are moral implications that affect the freedom of conscience of physicians. I believe that it is wrong to coerce someone into engaging in an action that they feel is morally reprehensible. I hope that you understand that.
Senator Keating: What I understand is that you’re recommending that it be a criminal offence to ask you to refer a patient to someone else. Thank you for the answer.
The Chair: Senators, I’m going to ask for your indulgence. There may be some who have other commitments and may not be able to stay, but there are two senators who would like a second round and I’m agreeing to give that to them.
Senator Dalphond: My question is in line with Senator Keating’s question, but to assist our witness. Dr. Tang, if you were a Jehovah’s Witness and you were against blood transfusions, and you were a doctor and one of your patients needed a blood transfusion, would you refuse to refer them to a colleague to provide a blood transfusion?
Dr. Tang: Usually when we are providing medical services, we err on the side of life. In that particular situation, we would be erring in the best interests of the patient to have a blood transfusion.
Senator Dalphond: But it is not a matter of conscience anymore? Even if you are a Jehovah’s Witness and you are opposed to blood transfusions, you would have to refer it. I don’t follow your logic, I’m sorry.
Dr. Tang: Sorry, if I was a Jehovah’s Witness, which I am not —
Senator Dalphond: No. I am asking you if the same principle would be applicable to what you’re supporting now, because you are opposed to MAID and you don’t want to speak about it with a patient. So if I am a Jehovah’s Witness doctor and I am opposed to blood transfusions as part of my faith, I essentially believe it should not be done. Therefore, I would not speak with my patients about it, even if it’s one of the options that is available to the patient.
Dr. Tang: Well, I think you’re sort of comparing apples and oranges right now. In the terms of a blood transfusion, that would be in the service of protecting life and saving a life. In medical ethics, that is usually the concept that trumps other considerations. However, in medical assistance in dying, you are actually ending a life. I think that’s a different distinction to make.
Senator Dalphond: Thank you.
Senator Carignan: Ultimately,... Going back to Dr. Tang’s remarks, this is a religious issue. Is your position based on your religious beliefs?
Dr. Tang: The question is not based on religious belief, it is based on conscience, what one believes to be the right thing to do. For many physicians, directly and intentionally ending the life of a patient, especially when they have not had other treatments provided, is not good medical care.
Senator Carignan: Perfect. I thought I was helping you, because there are two constitutional rights that may be at cross-purposes, but that’s fine. Thank you.
The Chair: Honourable senators, thank you so much for all your patience. You have all given so much to this already and it’s hard to believe it’s only Tuesday. But I have some good news for you, tomorrow we will finish at 4:30 after we hear from the Health Minister. Thank you for your patience. I will see you tomorrow. Unfortunately, we will start at 9:30 tomorrow morning to fit everything in.
Senator Cotter: Thank you, Dr. Dembo and Dr. Tang.
The Chair: This was a very active and important panel, Dr. Tang and Dr. Dembo, and both of you excel with what you do. We appreciate all the work you have done. Thank you very much.