THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, November 25, 2020
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 9:30 a.m. [ET] to examine the subject matter of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
Senator Mobina S. B. Jaffer (Chair) in the chair.
The Chair: Honourable senators, I declare this meeting in session. I am Mobina Jaffer, a senator from British Columbia, and I have the pleasure of chairing this committee. Today we are conducting another hybrid meeting. Thank you again, senators, for all your patience as we adapt to this new way of holding our meetings.
Before starting, I’d like to give you a few useful suggestions. Don’t forget that when you’re speaking, you should be on the same channel as the language you’re speaking. If you experience technical difficulties, including with interpretation, please tell the chair or the clerk and we’ll try our best to solve the problem.
Please note that we may need to suspend during these times, as we need to ensure that all members are able to participate fully.
Senators, I know that most of you have questions, but from time to time, some of you may decide to give more time to the others. So I ask that if you are not going to ask a question, please let the clerk know.
Please know that we may need to suspend during these times as we need to ensure that all members are able to participate fully if there is a problem in interpretation or other technical problems.
Senators, I know that most members will want to ask questions. So I am again saying to you, please, if you’re not going to ask a question, let the clerk know. Otherwise, I will call all members for questions.
If you are not a member of the committee, please signal to the clerk if you have a question, and I will try my best to accommodate you.
Senators, we will allow four minutes for questions and answers, so please make sure that you do not ask a question when you have a few seconds left. I also humbly ask you to please keep your preambles short so that we are able to hear from the witnesses.
We will now welcome our first panel today. From the Evangelical Fellowship of Canada, Julia Beazley, Director, Public Policy; from the Christian Legal Fellowship, Derek Ross, Executive Director and General Counsel; from the Canadian Conference of Catholic Bishops, The Most Reverend William McGrattan, Roman Catholic Bishop of Calgary and Member of the Canadian Conference of Catholic Bishops’ Executive Committee; from the Christian Medical and Dental Association of Canada, Laurence Worthen, Executive Director.
To all of our panellists, I want to say to you that for us, the committee, it is a real honour to receive you this morning. I can assure you that we are looking forward to your presentations.
I’d like to take a few minutes to introduce the members of the committee who will be attending today’s meeting: deputy chair, Senator Batters, deputy chair, Senator Campbell, Senator Boisvenu, Senator Carignan, spokesperson for the bill, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Keating, Senator Kutcher, Senator Petitclerc, sponsor of the bill, Senator Gold, Senator Martin and Senator Pate.
We are really looking forward to hearing from you. We will start with the first panel and Director Julie Beazley. She has presented many times to us, so she is no stranger to our committee. Ms. Beazley.
Julia Beazley, Director, Public Policy, The Evangelical Fellowship of Canada: Thank you, senators. Good morning. We appreciate the opportunity to participate in this study of Bill C-7.
The Evangelical Fellowship of Canada is the national association of evangelical Christians, providing a national forum for Canada’s 4 million evangelicals. We approach this issue out of respect for human life and dignity, and care for those who are vulnerable. These principles, rooted in our faith, are also reflected in Canadian law and public policy. We remain firmly opposed to hastened death, but offer recommendations to minimize the harm and risk to vulnerable Canadians.
Bill C-7 proposes watershed changes to law, medicine and society. They are being proposed when we have yet to make real progress in ensuring high-quality palliative care for all Canadians, and when procedural problems with the existing regime have been identified but not yet addressed.
We urge you to reflect carefully on the implications of this bill and, respectfully, to consider the following amendments:
Reintroduce an end-of-life requirement to replace “reasonably foreseeable” death. Removing the end-of-life requirement would mean that a person with a disability could be eligible for hastened death because of their disability. This would put them outside of the protections offered to other Canadians, on the basis of their disability. This is discriminatory and violates the equality rights of Canadians with disabilities. It suggests that a life with chronic illness or disability is not worth living. We must reject that notion unequivocally. Every national disability organization opposes this change. The government can and should introduce an alternative, unambiguous end-of-life criterion for MAID.
Maintain the specific exclusion of mental illness and add provisions on concurrent mental illness. In any given year, one in five Canadians will experience a mental health problem or illness. Yet, over 1.6 million Canadians report unmet mental health care needs each year. The bill should require that those whose request for MAID may be related to a concurrent, underlying mental illness receive a mental health assessment to help the patient and the practitioner better understand the factors underlying the desire for MAID, and allow for a more informed decision about treatment.
Maintain key safeguards for those whose death is foreseeable. These are part of the stringent limits scrupulously monitored and enforced to minimize the inherent risks described in the Carter decision. Removing these safeguards increases the risk of wrongful death.
Maintain the 10-day reflection period. If this safeguard were removed, a person’s life could be ended the same day they make the request. Health Canada’s report on MAID in 2019 found that 263 people withdrew their requests for MAID, over half because they had changed their minds. The current law already allows for the reflection period to be waived if the person is likely to lose their capacity or if death seems imminent. This change, then, seems both unnecessary and dangerous.
Remove the waiver of final consent. Of those people who changed their minds about MAID in 2019, one in five withdrew their request immediately before MAID was to be carried out. The safeguard that a person be able to consent at the time of hastened death is crucial and should remain in place. It is not a proportionate response to remove this safeguard from all patients whose deaths are reasonably foreseeable, as a response to exceptional circumstances. A very tightly worded exception applied only under specific circumstances would be more proportionate.
Delete the provision that reduces the number and independence of witnesses. This would maintain the essential function of independent witnesses to ensure a patient’s decision for hastened death is a free, unforced decision made without any sense of pressure.
Extend the new safeguards proposed for those whose death is not foreseeable to those whose death is. These safeguards include seeing a medical practitioner who has expertise in the condition causing their suffering, being informed of and giving serious consideration to means available to relieve their suffering, and offered consultations with those who provide those services. However, many of these supports are not readily available. It is unconscionable that we would make it easier to access hastened death in Canada than it is to receive quality palliative care or mental health care, or for individuals living with disability to access the supports they need to live on an equal basis with other Canadians.
Finally, we ask you to add specific, meaningful conscience protection for health care workers and institutions. We have heard from health care workers that they are increasingly feeling pressured to participate in MAID, against their deeply held beliefs. If eligibility for MAID expands to include patients who are no longer able to consent or who are not dying, there will be even more medical professionals who feel they cannot end a patient’s life in those particular circumstances. This current lack of protection should be rectified in Bill C-7. Thank you.
The Chair: Thank you very much. We appreciate hearing from you and we’ve heard you. May we go to the next witness, Mr. Derek Ross from the Christian Legal Fellowship.
Derek Ross, Executive Director and General Counsel, Christian Legal Fellowship: Thank you so much. Good morning, senators. It’s a privilege to be with you. Thank you for the work you are doing here today and thank you for the opportunity to present today on behalf of Christian Legal Fellowship. CLF is a national legal association with a membership of over 700 lawyers, law professors and law students from across Canada. CLF intervened at all three levels of court in Carter, and we also intervened in the Truchon case.
We are deeply concerned about the implications of expanding MAID outside the end-of-life context. We are concerned that the more our laws expand MAID, the more we normalize the idea that ending one’s life is an appropriate response to ending one’s suffering. That is part of the reason why MAID was limited in the first place — to ensure that it did not become a general solution to suffering or a substitute for suicide.
One hundred and forty lawyers and law students recently signed an open letter emphasizing these concerns. As that letter stated:
If this Bill passes, Canadian law will explicitly single out life with an illness or disability as the only kind of existence which justifies state-sponsored termination.
Senators, our law must never entrench the idea, even implicitly, that life with a disability is somehow an inferior existence. Undoubtedly, that was never the intent of Bill C-7. But we are concerned that that is its effect, and so amendments are needed.
These points have been eloquently made by many within disability communities. I will not repeat them here. I also appreciate that there are differing views on this subject and the overarching issues surrounding the bill, so let me say a few things on some issues where I hope we can find consensus, whatever our views on MAID, whatever points of disagreement there may be about this bill overall.
One thing that we would encourage the Senate to look at very closely is the very troubling findings of the United Nations Special Rapporteur on the Rights of Persons with Disabilities. I know you’ve been looking at that already. I will say 19 months have passed since that report. To the best of our knowledge, there has yet to be any response from the government, including within Bill C-7. This is so, despite Bill C-7’s preamble, which clearly reiterates Canada’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.
Those words require meaningful action. So Bill C-7 should, at the very least, mandate an independent review of the Special Rapporteur’s concerns and recommendations. As we explain in our brief, we need better monitoring and oversight of MAID in Canada.
We also need to ensure that MAID is not resorted to before all reasonable treatment options have been made accessible to patients. We are currently failing in this regard.
Canada’s First Annual Report on Medical Assistance in Dying in Canada, 2019, issued earlier this year, indicates that at least 87 patients who died by MAID in 2018 alone required disability support services but did not receive them. In addition, at least 91 patients died by MAID who needed, but did not receive, palliative care.
We’re talking a lot about the Truchon decision, but we have to remember that decision was premised on the judge’s conclusion that medical assistance in dying in Canada is “a strict and rigorous process that, in itself, displays no obvious weakness.”
But this latest data, much of which has only come to light since that decision, suggests otherwise. Sadly, there are weaknesses in our system, especially as it relates to elder Canadians, as events of this past year have laid bare.
These issues need to be addressed, and CLF has recommended a number of amendments in our brief to do so. Priority needs to be placed on addressing these flaws in our current regime, rather than expanding it in ways that were not even contemplated in Truchon, such as allowing advance requests and removing other important safeguards.
Thankfully, senators, these are issues that you, as our house of sober second thought, have the legitimacy, authority and mandate to examine. We thank you for the careful work you are doing here. We want to support you in it because it is critically important. We urge you to improve this law in the ways we have suggested in our brief. Thank you.
The Chair: Thank you very much, Mr. Ross.
We will now hear from Bishop William McGrattan.
The Most Reverend William McGrattan, Roman Catholic Bishop of Calgary and Member of the Canadian Conference of Catholic Bishops’ Executive Committee, Canadian Conference of Catholic Bishops: Good morning, and thank you, senators. On behalf of the Catholic Bishops of Canada, I wish to thank you for this opportunity to participate in these very important discussions. I’m also appreciative of the extra efforts we are taking in order to have these discussions in these most difficult times.
As the Catholic Church, we have joined with other religious leaders to make our opposition known to the expansion of Bill C-7 and medical assistance in dying. I know that many of you have read that report.
As Catholic bishops, we still remain deeply concerned about the provisions that are enclosed in Bill C-7 — especially, as has been mentioned, the devastating impact it will have on many disabled and marginalized Canadians.
Living with a disability creates a host of challenges, including access to proper housing, mobility, access to health care, employment and a far greater propensity to live in poverty compared to those who do not have disabilities. These unjust conditions continue to increase the suffering of many who live with such conditions. In spite of these, we are now prepared to offer those with disabilities, our fellow Canadians, further assistance — not in living, but assistance in committing suicide.
We ask: How can this be justified morally? Instead of assistance to commit suicide, should we not be redoubling our efforts to assist people, to allow them to live full lives and to be connected to their communities? Among other things, euthanasia remains as a failure on the part of us, as human beings, to have the commitment and ingenuity to face human suffering and to offer alternatives.
It is equally concerning that the voices of the disability community in Canada have largely been ignored. We hold out Canada as a community and country of inclusion.
The Council of Canadians with Disabilities and other disabilities groups have expressed their concern. We think that the removal of the criterion of reasonable foreseeability of natural death will further expand the bill and affect this community.
We also note that the warnings of the United Nations Special Rapporteur, as has been mentioned in relationship to MAID, have gone unaddressed. I call to mind what they reported: There are worrisome claims about persons with disabilities in institutions being pressured to seek medical assistance in dying, and practitioners not formally reporting cases involving persons with disabilities.
Yes, it is true that some individuals have expressed some support for this bill. Yet the creation and expansion of euthanasia is not simply a matter of individual choice, but it is a deep and significant social act. We consider that amending the Criminal Code and allowing such illicit killing of innocent life is not something that we, as Christians, can stand with.
Good and praiseworthy laws cannot be constructed simply on popular opinion or simply circumstances of individuals, no matter how emotive and compelling. We need to realize that, instead, our laws need to be constructed on sound moral principles — principles that guarantee the protection of all peoples, and especially the most vulnerable and those who are marginalized, because every person has dignity and every person has this gift.
It is likewise concerning to us that the government has claimed a strong consensus in favour of this, when in fact, the most recent polls conducted by Cardus and Angus Reid indicate that 68% of Canadians were disturbed about the UN report and the lack of critical safeguards for people with disabilities. Sixty-three per cent of Canadians fear the expansion of MAID will continue to lead people with disabilities — those who have certain feelings — to be pressured into choosing death instead of allowing them to, in a sense, be a burden to others.
In conclusion, though, I would like to end on a positive note. I would like to point out that palliative care, which has not been fully available in our country, is an alternative and something the Canadian government should address with broader legislation. When sufficient emotional and psychological supports are given to people, truly they can choose the medical care options that allow them to experience dignity rather than choosing the tragic failure of suicide.
The Canadian Bishops are likewise concerned that not all health care professionals in Canada have been provided with this type of protection. We encourage these discussions. We ask you, the legislators, those who are involved in the Senate, to respond to these most pressing needs. I thank you for this opportunity.
The Chair: Thank you very much for your presentation. We will now hear from the Christian Medical and Dental Association of Canada, Laurence Worthen.
Laurence Worthen, Executive Director, Christian Medical and Dental Association of Canada: I would like to thank you for this opportunity to present our thoughts on Bill C-7. Christian Medical and Dental Association of Canada represents 1,600 members across Canada. The expansion of MAID is a serious concern for all our members because they are worried about their vulnerable patients.
It’s common for people who find out they will have a long-term disability due to an accident or illness to want to end their lives. Part of our physician’s role is to ensure the patient has intensive rehabilitation and counselling support to give them hope that life is worth living.
There are many factors that stand in the way of the patient making a constructive transition. There is a lack of adequate health and social service supports, the societal stigma that comes with disability, and the challenge of having to overcome barriers to access services. You only have to venture down any Canadian street with a friend in a wheelchair to know what we mean.
We live in an ableist society, which has emphasized looks, having an able body, independence and autonomy as absolute values. In contrast, we believe that every person has intrinsic worth, given by God, which cannot be taken away by circumstances, disease or disability.
In order to understand the potential impact of expanding euthanasia, it’s helpful to look at the results of the First Annual Report on Medical Assistance in Dying in Canada, 2019. This report cites all the sources of suffering provided by the 5,631 people who died in 2019 via MAID: 13.7% gave loneliness and isolation as the reason for their suffering; 53% gave loss of dignity; 34% gave as their reason that they were a burden on their family; 82% listed loss of ability to engage in meaningful activities; and 56.4% listed inadequate pain control or a fear of it.
We can imagine that similar reasons will be given in the 2021 report if Bill C-7 is passed, and this should concern us. Loneliness and isolation can be the result of an unwillingness to include persons with disabilities. Loss of dignity can come from society’s able-bodied bias. Fear of being a burden on one’s family is a common worry for people who are seriously ill.
If a person does not have a family who can support them, then should this become a reason to die? Finding meaning within limitations of activities requires the right care and counselling. A comprehensive palliative care program can alleviate the fear of pain.
These results, applied to persons with disabilities, make us wonder: Will people choose MAID in the future because society has failed them? The MAID protocol looks for competency, grievous and irremediable illness, disease or disability, and lack of coercion. The cry for euthanasia can be a disguised cry for help. I know this personally because my own father went through this struggle at the end of his life. I was there to help him through that so he would not be alone. However, I am haunted by those who are in a similar circumstance and have no one to help them. Simply offering inadequate services is not enough. We must show that we care.
Now our members are willing to play this role. During the recent outbreak of COVID-19, one of our members willingly quarantined himself and his wife so they could both provide daily support to the residents of their nursing home. He provided medical services while his wife spent time with the lonely residents whose families were not able to visit them. But sadly, the same physician has considered retiring early because of the lack of proper conscience protection.
Especially in light of Bill C-7, there must be provision in legislation that health care workers should be able to opt out of all forms of participation in MAID. The Office of the Parliamentary Budget Officer estimates this bill will add 1,200 additional people to the projected 6,465 deaths in 2021 by MAID, for a total of 7,665 people.
What if some of the people who will die in 2021 had the love, support, counselling and other services that they needed? We will never know how many could have adjusted to their circumstances, found hope, and discovered a life worth living. As a society, do we affirm their feeling that their life has no value by administering MAID, or do we fight to give them hope to save their lives? Our answer to that question will determine the type of Canada we wish to live in. Thank you.
The Chair: Thank you very much for your presentation. Thank you to all the panellists.
Senators, please identify which witness you want to answer your question. Please do not say “all” because you know there is not enough time, and I don’t want to be in the uncomfortable position to choose.
Senator Petitclerc: I have a question, and although I would have liked to have an answer from each of the groups, choices will have to be made.
In fact, each of our witnesses here today — and witnesses at other meetings we have held — have spoken out rather strongly on behalf of disabled people. I cannot help but look back and recall that Bill C-7 came about as a result of the efforts of people like Jean Truchon, Nicole Gladu and Julia Lamb. These people, because of their unbearable and irreversible suffering, fought hard to tell us that they had the right to decide, the right to autonomy, the right to self-determination and the right to end their lives in dignity. The court has ruled in their favour every time. Their struggle signals that we have come to the end of decades of medical, social and moral paternalism.
My question is as follows: There are over 6 million disabled people in Canada, all different, and I find it rather troubling when people claim the right to speak on their behalf. I am therefore going to simply ask you under whose authority you are doing so, with what kind of expertise and, in particular, following what sort of consultation.
I’m sorry, Madam Chair, I don’t know who might be able to answer this question. Could someone answer these specific questions?
Mr. Ross: Thank you for your very thoughtful question, senator. To be clear, today I do not purport to be speaking on behalf of the entire disability community or, frankly, any community other than Christian Legal Fellowship. I am here to reiterate the concerns that we’ve heard from many voices within the disability community.
As you say, it is not a homogenous block, there are different voices, but many voices within the disability community have expressed a deep concern. We have listened to those, we participated in round tables hosted by Inclusion Canada and the Council of Canadians with Disabilities, and other groups as well. We’re here simply to put forward to you, from a legal perspective, the fact that the United Nations Special Rapporteur has told our government that they are failing and lagging behind in meeting their obligations under the Convention on the Rights of Persons with Disabilities. That is something that needs to be looked at closely and carefully.
Also, the Christian Legal Fellowship intervened in the Truchon case, and you have noted the very difficult and challenging situation faced by the plaintiffs. Both those plaintiffs, Mr. Truchon and Ms. Gladu, sought MAID in part because they were concerned about the lack of support they would receive in an institutional setting.
So again, we step back and say, regardless of what our views are around MAID, autonomy and these issues, can’t we agree that more needs to be done to ensure that whatever one’s personal philosophy, no one is ever forced to choose MAID because we have not done everything we can to ensure that adequate supports are in place. That is what we are advocating for. The court cannot do that. That is Parliament’s role because Parliament and you, our Senate, are able to assess things through a different lens, with a different institutional capacity than the court, and that is the role you have taken up today.
Bishop McGrattan: To follow up with what Derek said, we have participated with many in the disability community, and so simply want to share with you that their concern is something we have heard and we think is valid for the Senate also.
Having been involved in Catholic health care and health care throughout Canada, you hear these concerns that people want to have the opportunity to be protected and to have a sanctuary, to allow for natural death to occur with the support of family, and trained professionals to look after their pain management. This is also from the lived experience of Catholic social work and Catholic health care that we’re making this intervention as well.
Senator Carignan: My question is mainly for Mr. Ross, and it’s about a suggestion in the brief about establishing an independent monitoring organization. Could you provide a little more information about this suggestion, about its rationale and the role this organization might play?
Also, I can’t remember whether it’s in your brief or another, but I read somewhere that the government’s decision not to appeal the Truchon decision was being challenged. Can you explain why?
Mr. Ross: Thank you, senator, for those thoughtful questions. With respect to the need for oversight, that is something we raised in our brief. As I’m sure you are all aware, the Government of Quebec has implemented and created a Quebec end-of-life commission to review cases of MAID, to collect data, to ensure the law is being complied with and to review the implementation of MAID at a provincial level.
That body has really provided us the most thorough information that we have about MAID in Canada. Quebec’s end-of-life commission, from 2015 to 2018, identified at least 62 cases in Quebec which did not fully comply with federal or provincial law.
We don’t really have a body doing that at a federal level, and so we don’t know necessarily what’s happening in other provinces. It’s a bit of a patchwork. We have regulatory bodies. We have coroners in Ontario. The Office of the Chief Coroner of Ontario reviewed 2,000 cases and stated they “demonstrated compliance concerns with both the Criminal Code and regulatory body policy expectations, some of which have recurred over time.”
So the bodies that are looking at this are identifying concerns. What’s unclear is what’s being done about it. Who is investigating these further? Are these merely minor technical violations? We don’t have a lot of information, at least not that’s publicly available. That’s precisely the point. There is so much we don’t know about why people are requesting MAID, whether they are being given the supports they need and even whether their deaths are being carried out in accordance with the law.
One thing we’re urging is that the federal government ensures there is a consistent framework across the country to ensure that these are being looked at, that recommendations are being made to the Minister of Health and to all of you as parliamentarians, so we know what’s happening on the ground.
One thing we suggested is the creation of an ombudsperson, someone who can investigate these things so that questionable cases of MAID can be looked at more closely, and so that you, our senators and Parliament, can really be aware from a policy perspective of what is happening.
You also asked a second question, senator, if I may quickly address it, about the government’s decision not to appeal Truchon and why that was concerning to us. This is obviously an issue of national importance. We are here today because, whatever anyone’s view of MAID, we recognize how significant this is, and it impacts the everyday lives of so many people across the country. To effect such a transformational change, based solely on the reasons of one judge, in our view, is concerning. With all respect to the court, those reasons have not been reviewed or assessed by the Supreme Court, not even by an appellate court. There are concerns with some of the reasoning that was employed. The way the Quebec court framed the purpose of the law, in our view, was unduly narrow and that shaped the entire analysis. We have further analysis on why we feel the reasoning in that decision was inadequate. But that aside, we feel it should have been appealed.
Senator Batters: First of all, to Derek Ross from the Christian Legal Fellowship, given your large group did significant legal work on this topic, could you explain to us why excluding mental illness as a sole condition for assisted suicide in Bill C-7 actually prevents discrimination? Also, Mr. Ross, do you believe that special safeguards and the exclusion of MAID for mental illness is important and legally valid?
Mr. Ross: Thank you, Senator Batters. That’s a very important question. I know that the exclusion of mental illness as an eligibility criterion has been a focal point, importantly so, of discussion at this committee.
I will say I understand why people view this as discriminatory on its face, but I think at the same time, we have to recognize that any distinction, any limitation, any parameter, that the government would place on MAID would be seen as discriminatory, as arbitrary. There will always be — when you have to make an exception to the Criminal Code — parameters that are placed around that exception. In fact, the Supreme Court of Canada required as much. The quote was that the court contemplated MAID as a “stringently limited, carefully monitored system of exceptions.”
MAID is the exception to the rule in the Criminal Code which prohibits consensual homicide. So I think, to answer your question, it really begs another question: Isn’t any boundary placed around MAID arguably discriminatory and arbitrary because it will always exclude someone’s situation? But Parliament has to be granted leeway in this regard. Otherwise it would need to make MAID available to all forms of suffering, and then MAID would very clearly be indistinguishable from suicide.
So the question is not just whether a particular exclusion is discriminatory. As many of you know, under the Constitution, under the Charter, we have section 1, and it allows certain limitations to be placed on our rights and freedoms. So the question is: Is this provision discriminatory in a way that cannot be justified in a free and democratic society? And there Parliament is granted leeway to assess the complexities of these issues.
You heard already, I believe, from the Minister of Justice just how complex this issue is. There’s a deep divide. There is a lack of consensus. There is a real concern that providing death as a solution to mental illness completely transforms psychiatry, and turns it on its head in terms of its goals of providing and offering hope and healing to these situations.
Senator Batters: Thank you. I thought it was important that Mr. Worthen addressed in his opening comment that, last year in 2019, there were 5,631 — I believe he said — assisted suicide deaths in Canada. That’s a lot more already than the regular suicide rate of 4,000 a year generally in Canada. That’s considerably more.
If I could get a quick answer from Bishop William McGrattan, could he please tell us why he believes that conscience protections for medical practitioners are even more important in Bill C-7 than in Bill C-14, since with the new bill, assisted suicide is provided for those whose death is not reasonably foreseeable?
Bishop McGrattan: I believe that practitioners need to be able to have not only the protection but also the freedom to exercise the gifts they have in terms of their professional lives, and to make sure that their consciences are directing them in the providing of those services. If in some ways a law begins to limit that, we also begin to see that it becomes discriminatory towards their professional lives. So I wonder, as was argued, every time we make exceptions or we allow for certain exceptions, this is sometimes interpreted as an infringement on other people’s rights. I think we lose a sense of the common good. This is what we’re trying to establish here. Is it good for all in Canada?
I want to just say that we’re trying to promote that in ways that will allow for freedom and allow for that to be expressed in a common way throughout our Canadian society, without impacting on certain groups or individuals who are practising their profession.
Senator Dalphond: My question is for Mr. Worthen, of the Christian Medical and Dental Association of Canada.You referred to conscience protection and are asking that the act provide an option for refusing. I would like you to give a more detailed explanation of your perception of things. Do you feel that the law forces you to provide medical assistance in dying?
Mr. Worthen: Thank you very much, senator, for the question. Canada is alone amongst all the countries that have legalized euthanasia, in that it does not provide robust conscience protection for health care professionals. I was involved with the government in the passage of the original amendments to the Criminal Code, and we lobbied for robust conscience protection. What we got was a clause that states that nothing in these sections could be construed as requiring someone to provide or assist in the provision of MAID.
The problem we have in Canada, which is unlike any other jurisdiction that has legalized euthanasia, is that the criminal law is a federal responsibility while health care is a provincial responsibility.
Our doctors have fallen between the cracks here. On the one hand, we have a clause in the Criminal Code that is questionable in terms of its strengths under the provisions of the division of powers, and we have been thrown into the provincial jurisdiction where at least two provinces have required that we participate.
What we’re asking for is that we be given full, complete conscience protection. It may be that the only way to do that at the national level is to make it a provision of the Criminal Code that no one can be coerced to participate in euthanasia at any stage against their will, and that could have a criminal sanction involved. That would be the one way to ensure there was protection all across Canada.
Right now in many jurisdictions we have doctors who are retiring early; we have doctors who have given up working in palliative care; we have doctors who have changed the focus of their practice. We attempted to challenge this in court in Ontario and were unsuccessful there. We simply are asking Parliament to recognize that when you make a change like this to the Criminal Code, you are perhaps unintentionally putting many conscientious doctors at risk, and not just Christian doctors but Muslim, Sikh, doctors of no particular faith. All of those folks are put in jeopardy because they are unable to provide, assist in the provision, refer for or provide assistance.
We are prepared to support our patients no matter what their decisions are. We’re not trying to impose our views on our patients. We simply ask that we not be required to participate in something that only a few years ago was illegal and is totally against our convictions. The whole conviction of Hippocratic medicine for 2,500 years is that physicians should not harm patients. Thank you.
Senator Dalphond: My question is whether you would like us to create a specific criminal offence to make it mandatory to provide care or to make information about the existence of another option available?
Mr. Worthen: No. Our doctors are quite comfortable providing information about the existence of another option, and many provinces, like Alberta, have developed means for patients to be able to access that without a referral.
We’re quite comfortable with the provision of information. We’re quite comfortable with providing the patient and their physician information on the patient, the chart. There’s a whole range of things we’re prepared to do, but what we’re simply asking is that we not be required to participate.
Current advocates are telling us now that there is an ethical obligation to tell the patient they qualify. That would mean that if you diagnosed a patient with quadriplegia or paraplegia, the next thing you would have to tell them is, “I have to tell you that you qualify for euthanasia.” That’s how absurd it is getting. We are just simply asking for protection.
It could also happen by legislation in the provinces. We have lobbied the provinces, and provincial governments are reluctant to get into this area, with the exception of Manitoba. The one way to solve this would be a clause in the Criminal Code saying no one can be forced to participate against their will.
Senator Kutcher: My first question is for Bishop William McGrattan. Thank you for reminding us how important the proper use of language is in striving to address these complex issues.
Recognizing we no longer use the stigmatizing phrase “commit suicide,” I would ask you to share with us what you consider to be the similarities and differences between death occurring as a result of suicide and death as a result of MAID. When you’re answering us, could you please consider the pitfalls of the logical fallacy of false equivalencies as you provide your answer?
Bishop McGrattan: Thank you for that question. What I would understand, senator, as the distinction between suicide and medical assistance in dying, is that medical assistance in dying is now, through this law, allowing someone not to be criminally charged who is assisting someone in that act. Suicide is a decision that an individual is choosing to make, and maybe because of their circumstances they feel that this is the only choice they have. Sometimes it’s caused by circumstances such as mental illness, sometimes because of their life condition. We don’t know, so we try to be very understanding in those particular situations and not to judge.
However, when it’s premeditated, where it’s a decision where someone is taking deliberation, is taking counsel, is taking steps to make that informed decision, there is what we call a “deliberate attempt” to make this decision. If they’re unable to do it and they are now requiring someone else who is now going to be coerced, as Larry Worthen mentioned, to be part of that particular type of act, then we are concerned that it goes against the fundamental conscience and beliefs of certain individuals, whether they be nurses or doctors. There are some family members who do not necessarily agree with that type of decision a loved one is making as well.
Senator Kutcher: You’ve gone away from the question into family members and their decision-making as opposed to the person’s autonomous decision-making. I wonder if you could go back. You still have not answered the question about the difference between death as a result of suicide and death as a result of MAID.
Bishop McGrattan: Death is ultimately an act and something that God, in some ways, has in store for each of us. All of us are facing death at some point. Sometimes it comes tragically, and sometimes it comes because people make decisions.
Senator Kutcher: With all due respect, bishop, that’s the not answering my question. I’m sorry, I don’t mean to be difficult.
You have raised an important distinction. People use “suicide” when they’re talking about MAID, and you used that phrase. I’m asking if you could help us understand what the differences are between suicide and MAID, and the similarities as well.
Bishop McGrattan: The similarities would be the fact that suicide is an act that a person takes upon themselves to end their life. Suicide, medical assistance in dying, would also be understood as someone taking that decision to end their life.
Senator Kutcher: And the differences would be what?
Bishop McGrattan: And the difference is that medical assistance in dying requires someone else to assist them in taking that particular act in their life. Not themselves individually, but they require someone else to assist them.
Senator Martin: Thank you to all of the witnesses for your testimony. This is a very difficult discussion, and I know how important this is.
My question is for Mr. Derek Ross. You mentioned that the Christian Legal Fellowship intervened in the Truchon case, and that this bill goes beyond what that decision perhaps requires of Parliament. I’m wondering, in your opinion, if advanced requests or the removal of safeguards were in any way implicated in this decision. As a committee, we’re hearing from various witnesses about the lack of data and evidence, of the need to develop standards, the complexities of what we’re dealing with.
We’re under the gun with this timeline. I’m just listening to all of you speak, and I share some of those concerns, and I’m hearing others that I hadn’t considered.
Would you speak specifically to the Truchon decision and the requirement of Parliament, in your opinion?
Mr. Ross: Thank you, Senator Martin, for that question. In Truchon, the important language is in paragraph 16. Paragraph 16 of that decision makes the parameters of that decision clear. There the court made it very clear that the only question that the court was deciding was on the constitutionality of the reasonably foreseeable natural death requirement.
The court specifically said that the court was not going to be answering and would not address questions related to things such as medical instructions given ahead of time, a.k.a., advance requests. The court went out of its way to say that was not going to be addressed in its reasons.
We have disagreement about the reasonably foreseeable death requirement, but that aside, the December 18 deadline has nothing to do with advance requests. Parliament — this Senate — is under no obligation to make any changes to the advance request requirement, to the witness requirement or to the waiting period court requirement as a result of Truchon.
I think it’s really important, because again, we have to look at what Truchon was based on. One of the things the court said — one of the safeguards that the court relied on in making the finding that medical assistance in dying was a strict regime — was the safeguard that a patient remains competent until the very end. That was in paragraph 273 of the decision. With this change in Bill C-7, by removing the final consent requirement, we’re taking that safeguard out.
So one of the foundations upon which Truchon was based is now being removed, because we are no longer requiring that a patient be competent until the very end, in certain circumstances. As Ms. Beazley noted, that’s problematic because data tell us that patients do change their minds, even after making a written request for MAID. That is why the Council of Canadian Academies said that advance requests are problematic, because a physician can never be certain, once a patient loses capacity, if their wish is still to receive medical assistance in dying.
The same applies with the reflection period. Those 10 days do allow some space for patients to change their minds. As we’ve seen, hundreds of patients have taken advantage of that to change their minds.
In the interests of autonomy and ensuring the decision is truly one that reflects the wishes of the patient, these safeguards are so necessary to maintain. So for those reasons, we think they shouldn’t be part of Bill C-7 at all if the true intent of Bill C-7 is to address Truchon.
Senator Cotter: I think my questions are for Mr. Worthen and Bishop McGrattan.
Mr. Worthen, my understanding of the concern you identified with respect to people with disabilities and people with vulnerabilities is that we should really address their needs in a meaningful way so they can be full participants in society, so that they won’t unnecessarily, unwisely or perhaps immorally choose MAID to end their lives. I think that’s a fair characterization of what you said.
Here is my concern: I think the sentence should have stopped at, “We should address the needs of those with disabilities.” It feels to me as though you’re using “people with disabilities and vulnerabilities” as an instrumental argument in your opposition to MAID, and that the foundational question of the legitimate needs of people with disabilities is not your central argument, but your central argument to use it to discourage us from adopting the framework that’s under consideration.
I would like you to respond to that.
Maybe I can ask my second question of Bishop McGrattan. You also made reference in your remarks to marginalized Canadians and identified the vulnerabilities and risks to them. If we were able to address fully the people with disabilities and vulnerabilities — the people you identified — would you then be supportive of the MAID regime?
Mr. Worthen: Thank you very much for the very thoughtful question, senator. I’ll respond to it this way: My concern in terms of the courts dealing with this issue is that we have examples — Gloria Taylor might be a good example — of a person who is independent, has wanted MAID in the context of an environment where MAID was illegal, has thought about it for a long period of time and has supports. In a sense, when the Canadian public thinks about MAID, they think about people like Gloria Taylor.
What we’re trying to articulate, based on our clinical experience, is that most people are not like Gloria Taylor. Most people are ambiguous; have ambiguous feelings about this. Most people may or may not have the support, and they may or may not have psychiatric illness at the same time. In most cases, these things are very, very messy.
A good example of this would be some research I did in a recent case in Bridgewater, where a wife went to court to try to keep her husband from accessing MAID. When we actually looked into the affidavits in the court case, we realized there was previous history for the patient and concerns about how psychiatric illness was affecting him.
So our doctors are simply trying to say that when you’re looking at the one side — the very prominent examples that come to a court case — you also need to be looking at all the hidden people who are out there, who are potential victims. Our view is that if you are thinking about the common good and about society being integrated whole, you can’t necessarily give one person their wish if it means that other people are going to — that there’s going to be wrongful death.
Our concern is that we need to be looking at all Canadians, not just the people who have the wherewithal to come to court. Our approach would be that this should not be expanded because the risks to vulnerable Canadians are too great.
I hope that’s a clarification of where we’re coming from with our argument. We want to bring to light all those people who cannot speak for themselves, who will be negatively impacted if we open this Pandora’s box.
Bishop McGrattan: Did you want a response, Senator Cotter?
Senator Cotter: I sure would, bishop, but maybe can you be part of the second round. I’ll get back on the list, and I won’t even ask the question; you’ll just be able to respond, if that’s okay.
Bishop McGrattan: Sure. Thank you.
The Chair: Senator Cotter, I will let the bishop answer now, because there isn’t much of a second round. Bishop, if you could very quickly answer.
Bishop McGrattan: Senator Cotter, you identified the potentiality that all of these situations, dealing with people with disabilities, would be addressed through proper channels, and if that were true, would I, in that case, agree with MAID? I would say no. I see MAID as hastening death. I’m trying to make the argument that there are certain social conditions that affect people that also contribute to that particular type of framework, such that they feel they need to hasten their death and would then choose medical assistance in dying.
But the Catholic Church has opposed medical assistance in dying as a way of hastening a person’s death, even though the courts have recognized this as a choice — a freedom — that individuals in such situations with irremediable suffering and foreseeable death have the option to make. But we would still be opposed to medical assistance in dying.
Senator Cotter: Thank you.
Senator Boisvenu: As I was saying earlier, it’s a very difficult debate about each person’s moral values. Based on what I have heard in the evidence, I don’t believe that access to medical assistance in dying promotes suicide, but do think that refusing medical assistance in dying with dignity does promote suicide.
Sonia Blanchette, who murdered her three children and was sentenced to life imprisonment, could not live for 25 years with the remorse she felt because of what she had done. She starved herself to death by refusing to eat for two weeks. Hélène L., who was about to turn 70 years old, after spending decades with an incurable disease and with only a few years to live, starved herself to death over two weeks because she was denied medical assistance in dying. In 2019, Jacques Campeau killed himself after being denied medical assistance in dying several times.
Bishop McGrattan, is it more moral to allow human beings who have been cast aside by medicine to commit suicide, or to allow human beings to have the assistance of medicine in dying humanely and with dignity?
Bishop McGrattan: I agree that every individual should have the opportunity to experience the dignity of their human condition by experiencing support and care — through a medical as well as a community and a spiritual care — to allow for natural death to occur. To be part of, to hasten and to take that stance, I think that sometimes people feel that there are no other alternatives. Therefore, they feel that this choice is something that they must have.
Senator Boisvenu: When alleviating suffering for someone with an incurable disease amounts to administering so much morphine that the person is no longer aware of their soul, their heart or even their life, isn’t that also a form of suicide?
Bishop McGrattan: You need to make a distinction here, senator, that in many ways medical assistance in pain management sometimes allows a patient not to be fully conscious. But that is something to relieve suffering and pain. I think we have to make some distinctions with regard to the act and the intention. The giving of that morphine and that medication is to assist and give comfort. It’s not to cause death.
I think there is a need to make a distinction about the administering of that type of medicine and those two types of intentions.
Senator Boisvenu: Bishop, have you ever accompanied someone dying of cancer at the end of their life, when the administration of morphine shortens their life?
Bishop McGrattan: I have. As a matter of fact, I’ve had the opportunity to assist my father who was dying of cancer and had palliative care at home with nurses, with a doctor who would come, and those particular types of medication. They were explained to us as allowing for his suffering to be alleviated through this medication, even though there were times when full conscious discussion with my father was not possible.
However, I do believe, and I have experienced it personally, I’ve realized that it’s a privilege to be there at the moment when a person is passing, for loved ones not to also have that opportunity and for patients to know that care and support. That’s where we are trying to, in a sense; balance the need for the accompaniment of those who are experiencing this natural process of dying, and not to hasten.
The Chair: Thank you very much, bishop.
Senator Keating: Thank you to all the presenters. I think that you have provided some advice that is helpful to us.
My question is for Bishop McGrattan. It was going to be identical to that of Senator Cotter’s, but bishop, I would like to take you down a different road. The question I have follows a lot of other constitutional rights that are granted in the health care area to Canadians. I never expected you to say that all things being okay, all palliative care and services being okay, that you would agree with MAID. I didn’t expect that.
One of the things that we do agree on is likely the abysmal state, and the differences between the provinces and territories when it comes to palliative care, care for the disabled, the mentally ill and the disenfranchised. But each time I pose that issue to the federal government, they tell me that the implementation of these services are jurisdictional; they belong with the provinces and the territories, so it’s really none of our concern.
The issue of proper care has been an issue for a very long time, and many witnesses have brought up the disfranchisement of the poor and the destitute as an issue in MAID, which I don’t disagree with. But I feel that, in light of the long struggle over equalities among people and among jurisdictions, that any amelioration of that state of affairs is almost utopian.
Maybe this is not a fair question, but do you think there is anything that could be done to ameliorate that situation?
Bishop McGrattan: Thank you, Senator Keating. Yes, it is a very fundamental question. I think it goes to the root of what we are trying to discuss here, this gift of human dignity. But it is also protected in a social community, and individuals within our society often find themselves in disadvantaged situations, whether that be housing, employment and also in terms of medical care.
I am also the bishop liaison for all of Catholic health care across Canada, so I have been part of these discussions for the last 12 years. Listening to the different jurisdictions and sometimes hearing what has been said, is the patchwork and unfortunate situation in the delivery of health care, and that certain areas and certain individuals are not receiving proper health care.
Here in Alberta, there is an initiative with regard to Palliative Care Matters. Oftentimes, those who are delivering health care can provide solutions, and that creativity and ingenuity that I talked about, as sustaining the gift of our dignity as human beings. It may be utopian, but I do believe in the spirit and in the goodwill of people, that we have a sense of wanting to care for the most vulnerable. We just have to have the resolve and the resources, and allow people who have that particular desire and care for others — whether they be doctors, nurses, health care workers — that they have the certain structures and supports to deliver that care.
Know that I have been part of these discussions and try to encourage the various jurisdictions, in all of the provinces representing health care across Canada, to continue to be present to the most vulnerable in our society. That’s our call in terms of Catholic health care.
The Chair: Thank you, bishop.
Senator Dupuis: Two witnesses spoke to us about persons with disabilities as if these cases were special or citizens who were being pampered in terms of material conditions.
I have a question for Mr. Worthen. In your response to Senator Kutcher, am I correct in understanding that you are against giving medical assistance in dying to a person who is disabled because it would deprive other vulnerable people from receiving care? I find that highly problematic. Have I understood you correctly?
Mr. Worthen: Thank you for the question. No, I’m not suggesting that other people would be deprived of care. What I’m suggesting is that we have to understand that once we move away from euthanasia being an end-of-life proposal, to something for a person who doesn’t have to be at end of life, then we open up the floodgates, as it were, for all persons with disabilities to access euthanasia. So if we allow it for one, then it is practically impossible for us to create a legal mechanism that would then protect other vulnerable people who might decide to do this because of lack of support.
Senator Dupuis: If I have understood you correctly, Bishop McGrattan, you are saying that your beliefs are why the Catholic church would refuse medical assistance in dying as a matter of principle.
Are you aware of what has been happening in Quebec, and developed on the basis of discussions held from 2010 to the present day, and of the realities involved? There is an entire body of evidence and experiences. Are you aware of these experiences?
Bishop McGrattan: Senator, I can honestly say no, because at the present time there is an absence of any representatives from the Province of Quebec sitting on the national Catholic Health Alliance of Canada. The only knowledge I have is from discussions with my brother bishops from Quebec, and their experience is what you are sharing. I don’t have first-hand knowledge in my role supporting Catholic health care across Canada, but I do have secondary knowledge in terms of discussions with the bishops of Quebec and their experience of what has taken place.
Senator Dupuis: Thank you.
The Chair: We will have a short question from Senator Kutcher. That will be our last witness.
Senator Kutcher: This is for Dr. Worthen. You told us that physicians would be compelled to provide MAID. I’m not aware as a physician myself that professional codes of ethics actually do compel physicians to do so.
Could you help clarify my confusion for me, please?
Mr. Worthen: First of all, Dr. Kutcher, I’m not a doctor. To clarify, I work for doctors. But I am familiar with the requirements of all the provincial standards.
The phrase I used was, “participate in.” For instance, in Nova Scotia, which I’m familiar with and I know you’re familiar with, the provincial college requires that doctors make an effective referral for euthanasia. That’s a formal referral that’s been required by the College of Physicians and Surgeons.
Bishop McGrattan will tell you that, for Catholics, that’s formal cooperation in evil. Catholics cannot do that, and neither can evangelicals, Muslims and other religious groups.
In addition to that, proponents of euthanasia, another notable one who also lives in Halifax, have said that it’s an ethical responsibility for physicians to tell their patients that they qualify for MAID when the physician believes they do.
If Bill C-7 is passed, that would put us in the situation where our doctors would be required to tell patients who recently became quadriplegic or paraplegic that they qualify for MAID. That’s something our doctors cannot do. The word is “participate.” There are other things, like psychiatric assessments, other ways.
For instance, we have a situation in two medical schools in Canada where, in the admissions process, MAID questions were asked. I’m sure you’re familiar with, Dr. Kutcher, the way that admission processes occur now. There are actors, and the applicants are required to go through a scenario to see how they will react. One scenario was a patient requesting MAID and asking the applicant if they would provide them with a referral.
There are already, in the acceptance of this, concerns about admission. There are concerns about requirements in medical education. There are concerns about being required to make formal referrals, as is required in Nova Scotia. There are concerns about being required to participate in psychiatric assessments. There’s a major concern that, essentially, doctors will be required to tell patients when they qualify.
MAID is being treated within the medical system as just another procedure. For us, it’s a procedure that requires us to do something that goes completely against our beliefs, our values and our intentions as Hippocratic physicians that this is what is best for the patient.
Christians get accused of imposing our values on others. In this case, the proponents are imposing their values on us. We simply want to be able to practise medicine, as Bishop McGrattan said, in what we consider to be the best interests of our patients, and not be required to do anything that is going to harm them or jeopardize people who are vulnerable.
Senator Kutcher: Thank you for pointing out that it isn’t the physician’s role to decide what is best for the patient, but to provide information so that the patient can decide what is best for themselves.
Mr. Worthen: Yes, that’s a good point. But I think there is a certain moral agency on the part of the physician. The physician should not be in a position where they are required to participate once the patient makes the decision.
Senator Kutcher: Thank you. If I have a minute —
The Chair: No, you don’t have a minute. I just wanted to make sure you had completed.
I want to thank all of you for appearing this morning. I feel really bad because the senators had important questions, and you were making such important contributions, and I had to cut off this important conversation.
Please, I want you to know that I do not see this as our only exchange. You have all submitted briefs, which we will read carefully, and then if there’s anything in particular you want answered, you can still submit something further.
You’ve come here at very short notice. That is not something we do not appreciate. We appreciate it very much, the fact that you’ve come at extremely short notice.
We feel privileged to have heard from you this morning. So thank you very much for being here. We will now wait for the next panel, senators. Thank you.
To all the panellists, I want to thank you very much for being here this morning to meet the Standing Senate Committee on Legal and Constitutional Affairs while we are studying this very important Bill C-7.
I want to assure you that we really want to hear from you, so I will introduce the panellists to you all. The first panellist is Canadian Council of Imams, Refaat Mohamed, President. The second panel is the Association for Reformed Political Action Canada, André Schutten, Director of Law and Public Policy. The third panellist is the United Church of Canada, Reverend Daniel Hayward, and the last panel is Living with Dignity, Alexander King. We will start hearing from the first panellist. As-salamu alaikum, Mr. Mohamed, and you have five minutes to speak.
Refaat Mohamed, President, Canadian Council of Imams: Wa alaikum assalaam. Thank you so much, good morning everyone, good morning to our senators and all the group on this discussion. On behalf of the Canadian Council of Imams, and on behalf of the Muslim community, I am privileged to join you in this meeting for this important discussion.
We are convinced that a robust palliative care system available to all Canadians is a much more effective response to suffering, and to protecting the sacred dignity of the human person. We are very concerned that expanded MAID will lead to some people with health issues, like depression or other issues, choosing death rather than dealing with the underlying causes of their conditions.
We are greatly fearful that expanded MAID will lead to people with disabilities, or those who are elderly, feeling more pressure to choose death in order to avoid being a burden on others. We are deeply worried that the health care system will start to ignore long-term care and chronic disease in the elderly as MAID becomes more available.
It perplexes our collective minds that we have come so far as a society, yet at the same time, have so seriously regressed in the manner that we treat the weak, the ill and the marginalized. We, as Muslims, side by side with our friends and faith leaders of Canadian society, remain inalterably opposed to euthanasia and assisted suicide, the intentional killing of human beings, euphemistically being called “medical assistance in dying,” but which is more accurately and tragically nothing less than murder, as was recognized by the Criminal Code of Canada prior to the passing of Bill C-14 in June 2016.
With our world-renowned health care system now endorsing euthanasia as a solution to human suffering, we will be undermining the creativity and resolve that is needed to confront some of the most complex cases of care.
We must embrace those who suffer and offer exceptional care to those who are confronting illness and death. Palliative care administered with unwavering compassion, generosity, and skill expresses the best of who we are as Canadians. Rather than withdrawing from those who are not far from leaving us, we must embrace them even more tightly, helping them to find meaning up to the last moments of life. This is how we build compassionate communities.
In Islam, the sanctity of life is of utmost importance when considering various ethical dilemmas. There is inherent belief in the value of life, in and of itself, for all human beings. God Almighty says, “And do not kill yourselves [or one another]. Indeed, Allah is to you Ever Merciful.” (Quran 4:29) and also he says, “And whoever saves one — it is as if he had saved mankind entirely.” (Quran 5:32). And he also said that whoever kills anyone or helps someone to die, it is as if he has killed mankind entirely.
In conclusion, in the presence of human pain, suffering and loneliness, we need to respond as a society with profound solidarity and extraordinary care. It is via the deep acknowledgement of the beauty and dignity of human life; let the death of anyone be natural and not with external interference. Let Almighty God decide for us the time we will leave or stay, and let’s do our part in helping to the last breath. Thank you on behalf of the Canadian Council of Imams and the Muslim community.
The Chair: We will go to Mr. Schutten.
André Schutten, Director of Law and Public Policy, Association for Reformed Political Action Canada: Good morning, honourable senators. Thank you so much for this opportunity to present on this topic of fundamental importance. My name is André Schutten, I am a constitutional lawyer, a disability rights advocate and Director of Law and Public Policy with the Association for Reformed Political Action Canada.
Bill C-7, if passed, will greatly expand assisted suicide in Canada to those who are not dying. This is a remarkable change to a law that is not yet five years old and has not yet been legislatively reviewed by Parliament. There is just one job for the civil government to do, one reason for it to exist, which is to maintain and enforce laws that provide equal protection for the lives of its citizens, so that all citizens can have equal opportunity to flourish. Expanding assisted suicide to those who are not dying undermines this ideal. In the Carter case, both the trial court and the Supreme Court of Canada admit that, and I’m quoting:
The risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully designed system imposing stringent limits that are scrupulously monitored and enforced.
Even so, with this statement, both the trial judge and the Supreme Court justices actually admit implicitly that innocent people could die. The risks are inherent they say, and though these risks could be minimized, they cannot be eliminated. The trial judge admitted that none of the other legalized systems has achieved perfection when it comes to risk. The trial judge examined much evidence on foreign experiences with legalized assisted suicide, and found lack of compliance with safeguards in Oregon, the Netherlands and Belgium, and difficulties with the evidence on the impact of vulnerable people in the Netherlands and Oregon, and also found that people suffering depression slipped through the approval process, if only in “highly isolated cases.”
That’s court evidence, findings of fact, that people who should not have been killed were killed — that people who are suffering from depression were euthanized. These patients were sick, and the doctor, instead of treating the depression, killed their patient. Section 15 of the Charter protects every individual’s right to the equal protection and equal benefit of the law without discrimination. And the equal benefit of the law is not found in having equal access to assisted suicide. If we accept that line of reasoning, then this would also require corresponding obligations on health care professionals never to prevent people making that choice. In other words, society, or the civil government at the very least, would have a duty to not interfere in a suicide attempt. That’s clearly wrong-headed.
Instead, the equal benefit of the law interest ought to be understood as having equal access to the full protection of human life in law. That’s the benefit offered by the Criminal Code — the full and equal protection of every human life regardless of disability.
If Parliament chooses to expand assisted suicide beyond the end-of-life context, the additional risk to those with disabilities lies not in their capacity to make an autonomous decision, but in society’s prejudicial reaction to a request for death from an individual with disabilities. The risk is created by our tendency as society to automatically support such a request, based on an assumption that the lives of individuals with disabilities are less valuable.
Again, if there is one role for the state, it is to protect equally in law the lives of all of its citizens from harm by other people. And where some citizens are more vulnerable, that role of the civil government should be amplified not minimized. It is my opinion that Bill C-7 violates section 15 of the Charter, not because it is not permissive enough, but because Bill C-7 devalues an entire community of Canadians, removing the full and equal protection of their lives from the Criminal Code. Thank you.
The Chair: Thank you very much.
We will go now to Reverend Hayward.
Daniel Hayward, Reverend, the United Church of Canada: Thank you, senators, for inviting me to speak to you today. I chair the Theology and Inter-Church Inter-Faith Committee of The United Church of Canada.
The United Church of Canada adopted a statement in 2017 which examines the issue of medical assistance in dying in the context of our theology and faith tradition. Knowing that people participating in the United Church communities of faith would be faced with their loved ones choosing MAID, or with considering this option themselves, we stated that God’s people are called to embrace those struggling with difficult decisions. The choice of assisted death must be a free and informed choice by an individual who, with the support and accompaniment of others, where the church seeks to hold together both individual moral agency and life in community, sees this as one option among many and not as the only choice.
We also stated that the church shares the valid concerns of disabled people about distortions and abuses, however subtle, that may be used to pressure patients. Such duress and lack of access to palliative and hospice care can negate the concept of informed consent to assist death that the legislation requires. As well, the right to medical assistance in dying for some patients may jeopardize others, particularly disabled people whose agency has been diminished by society.
The framework laid out in our original statement has guided our thinking on Bill C-7. I wish to look briefly at each of the bill’s major provisions and our approach to them.
First, the removal of the provision requiring a reasonably foreseeable natural death for eligibility for MAID. Removing this end-of-life criterion will expand MAID so it is not only for those who are dying, but for those who have a disability. This raises a serious concern for many disabled people that a message is sent that they are not needed and their gifts are not valued. The removal of this requirement would treat the suffering of disabled people differently from other groups in society, with the state signalling that disabled people, unlike others, have no hope and are irremediable. Essentially, the failure of MAID legislation to include reasonably foreseeable natural death criterion would significantly discriminate against disabled people. Such a requirement is justifiable as protecting the equality of disabled Canadians.
Second, the specification that persons whose sole underlying medical condition is a mental illness are not eligible for MAID. We support this provision, as our statement emphasized that MAID must not be a means to remove people from society because they are seen as a liability, nor must hopelessness resulting from the stigma of disability be exploited. Both of these assertions are particularly relevant for questions of MAID in relation to mental health. We also ask, as a church: How can access to resources be improved for people with mental illness?
Third, allowance for use of advance directives made by a person prior to loss of their capacity to consent to MAID. Such a change in the MAID regime treats the life of one group, disabled people, as not worth living. We told the parliamentary committee holding hearings on the original legislation that advance directives raised profound questions of personal responsibility, regardless of whether the action of assisted dying is supported by directions.
There is the potential of unconscious or more blatant coercion. The difficult reality of dementia-related illnesses, often raised as a justification for advance directives, would be better addressed through improved options for care.
The church is committed to holding intention, both individual agency and our covenant to each other in both living and dying, and protection and care of the most vulnerable, leading us to oppose this provision of Bill C-7.
The Chair: We will go to the last panellist for this panel, Mr. King.
Alexander King, Chair of the Board (Interim), Living with Dignity: Good morning. As chair of the board of Living with Dignity, I am grateful to have this opportunity to share our views on Bill C-7. Living with Dignity was founded in 2010 and is a network of more than 5,000 concerned citizens. I want to make it clear that we have no political or religious affiliation.
First, we too are very concerned about the removal of the end-of-life criteria. This was put forward as the most important safeguard to protect the vulnerable. However, Bill C-7 as drafted goes further by removing and amending certain safeguards, even though this is not needed to comply with the Gladu Truchon decision. Why remove safeguards which were deemed so necessary a few years ago without first analyzing their impact? This analysis is something which would have taken place early next year in the review mandated in section 10 of Bill C-14.
Currently, a written request for MAID must be signed by the person requesting it in front of two independent witnesses. This was deemed necessary to protect vulnerable people from undue pressure, but in Bill C-7, only one witness is required. Current federal law requires a 10-day delay between requesting MAID and it’s being administered. Again, this was held up as a safeguard to allow a patient a period of reflection after such a life-altering, indeed a life-ending, decision. Now in Bill C-7 it’s gone.
Then there is the issue of final consent to MAID, which must be given immediately before it is administered. This strikes me as something basic and it is indeed standard practice before undergoing any operation requiring general anesthetic. Yet, on the basis that some people who requested MAID may no longer be able to consent to it once it is to be administered, this safeguard has been removed in Bill C-7, leaving vulnerable people hugely at risk of MAID against their consent.
Not only that, Bill C-7 states that even “involuntary words, sounds or gestures” in the face of MAID being administered “do not constitute a demonstration of refusal or resistance . . . .”
So if I say yes to MAID but then change my mind once faced with it being administered, and if I say no or try to resist physically, it could be construed with impunity as not constituting a refusal of MAID. We have sadly already witnessed such situations in Quebec. Indeed, two doctors admitted in public hearing that in such a situation they simply sedated the patient before administering MAID.
There is the issue of the 90-day time frame before receiving MAID for people not at the end of life, as long as you have been informed of other options. Rather than an arbitrary time frame — and clearly 90 days is too short when average wait times to see a specialist are around 140 days — surely it’s about having access to and actually trying alternatives before resorting to death as a solution. We need to help people to live before we help them to die.
Sometimes it’s not even medical care that’s needed. It can be adequate accommodation, as I believe some physically disabled people have testified. We want this bill to make sure that MAID cannot be proposed to vulnerable patients, or even listed as an option, or we’ll end up with a twisted logic of offering suicidal people death instead of help.
Anti-euthanasia groups were mocked back in 2015 and 2016 for opposing the introduction of these laws and for warning of a slippery slope. We have strict safeguards to protect the vulnerable, we were told. Well, here we are a few years later witnessing the removal of those safeguards one by one: end of life only, gone; 10-day wait period, gone; two independent witnesses, gone; final consent, gone. This new bill, if not amended, risks putting millions of vulnerable people further at risk.
Finally, there is not enough in the bill to protect the conscience rights of medical professionals. When I’m sick or injured, I go to the doctor for their professional opinion. I cannot demand they offer me a certain treatment. They have to offer what they consider to be in my best interest. Yet, with Bill C-7, I can require that they kill me. This seems a bit of a stretch from normal medical practice. There are those who do not want to partake in the deliberate killing of their patients either directly or by referring them to someone who will. We feel their conscience rights must be respected and the language about this in the bill strengthened considerably. Thank you very much.
I can answer questions in French or English. Thank you.
The Chair: Thank you very much for your presentation, Mr. King.
We will now go to questions. Senators, may I please ask that you refer to the panellist you want the question answered by, because it’s very difficult for me to then direct the question and I don’t want to be left in that position. We will start with the first question going to the sponsor of the bill, Senator Petitclerc.
Senator Petitclerc: Thank you to our witnesses for being here on such short notice and sharing their opinions. I have no questions for now. I will see if I have some later. Thank you.
Senator Carignan: My question is for Mr. Mohamed. You are the only person to have mentioned the palliative care system, which doesn’t exist, or at least is inadequate. Could you tell us about your experience with the palliative care system and its shortcomings? We know that there are gaps, and that the system is inadequate, but could you perhaps tell us about some palliative care shortcomings, like regional disparities or the shortage of beds?
Mr. Mohamed: Thank you so much for the questions. As mentioned in my presentation, we are completely against Bill C-7. We are opposing this because we see that as being unfair to interfere in the life of any individual, supporting them to choose to have physician assisted dying. As faith leaders, we all agree that this is something that is not an option for a person to choose to end his life or the life of others. This is something that is contradicting the principles of our faith as well as the dignity of human beings, if we talk logically. We cannot decide for anyone.
So the care that should be given to and supported for every single Canadian, every person and human being in this world, is something that is a “must” on the shoulders of everyone in a position — whether it is in a medical field or in a political field. We are all supposed to help and support one another in this battle of life in different ways. Palliative care is something that is considerable in every society and every government. In Canada we are one of the best systems when it comes to health care. That’s why we continue to support the dignity of human beings to the last moment.
Senator Carignan: Thank you.
Senator Batters: My questions are to Mr. Schutten from ARPAC. Given your significant legal expertise and work on this topic — I note you have a Masters in Constitutional Law from Osgoode Hall — could you please explain to us why, in your view, excluding mental illness as a sole condition for assisted suicide in Bill C-7 would pass constitutional muster? Also, do you believe that special safeguards and the exclusion of MAID for mental illness is important and legally valid? Thank you.
Mr. Schutten: Thank you very much for the question. I believe that excluding mental illness as a sole condition for receiving MAID, medical assistance in dying, would be constitutional but it’s not unconstitutional to have that exclusion there. I believe that’s true for two reasons. The first is because we have to properly understand what is the good or the service — the benefit that the Criminal Code provides. It’s not a right to assisted suicide or assisted death. That’s not the good that is being offered through the Criminal Code. Rather, the good is the equal protection of human life, and medical assistance in dying is an exception of exceptions. It’s supposed to be very narrow because we don’t want a society where we give licence to many different people to end the lives of other human beings.
Even if you reject that argument, we still know that the Truchon decision and the Carter decision leave room for Parliament to not allow for assisted suicide, or MAID, for people with mental illness because — and I’m looking at the Truchon decision in paragraphs 654 and 659 for example, in both those paragraphs — the trial judge repeatedly says that it’s because of the limitations of the physical condition of the individual that they’re unable to complete their own suicide or unable to end their own life in a way that doesn’t increase their suffering.
It’s for that reason that the Truchon decision expands assisted suicide, medical aid in dying. That’s true for Gloria Taylor, from the Carter case. It’s true for Kay Carter, Sue Rodriguez, Jean Truchon and Nicole Gladu. It’s their physical limitations; that’s the reason why medical assistance in dying was made available. So where it’s only for mental illness, we shouldn’t be expanding that, and I don’t think a ruling from the Supreme Court of Canada would require that.
Senator Batters: Thank you. It is unfortunate that we see 4,000 Canadians a year die by their own hand, by suicide. As you pointed out, 95% of those people, data has been shown to prove that it is as a result of mental illness.
I note in your brief that just came in this morning, your section entitled The 90-day Waiting Period is not what you think. Can you explain that contention and the straightforward amendment you are proposing to fix this?
Mr. Schutten: Thank you again. It’s unclear. It’s messy and muddled in Bill C-7 as to when exactly the 90-day waiting period begins. The language of the bill is very ambiguous.
Does it start when the doctor first encounters this patient and processes in his or her own mind, “I think this patient might be eligible for MAID?” Is that when the 90-day process begins? Or is it going to be when the patient first starts musing about medical assistance in dying, whether or not that’s perhaps an option for them? Or is it when the patient makes a formal request?
I think that is because it’s so muddled; we need clarification and guidance here. Doctors who are providers of medical assistance in dying need guidance from you, the legislators. The easiest change would be to make sure and add a clarification that the 90-day waiting period begins when there’s a formal, written, witnessed request from the patient for medical assistance in dying.
I strongly believe that that request has to come from the patient on their own initiative. There’s a power imbalance between physicians and patients. When physicians are leading the conversation, bringing this up as an option for them, that has a profound impact on the patient. We have to allow the patient to bring up this idea themselves.
Senator Batters: Thank you.
Mr. Schutten: Thank you for your question.
Senator Dalphond: My question is for Mr. King, who spoke at length about physicians’ freedom of conscience. An examination of the decision rendered by three Ontario Divisional Court judges, which was afterwards confirmed by the Court of Appeal for Ontario, shows that it pertained to directives issued by the College of Physicians and Surgeons of Ontario. The three appeal court judges wrote the following, and I quote:
Physicians perform a positive role for the patients as gatekeepers to health care services, and are subject to the obligation of non-abandonment, as well as duplication, to put the interests of their patient ahead of their own. The policy seeks to ensure that religions and consensual objections of physicians do not become a barrier to health care for patients who seek health care services to which particular physicians may object.
You clearly disagree with this decision. Is your view that the physician’s decision is more important than the patient’s?
Mr. King: The issue with that ruling — and I’m not a trained lawyer. I’m not even based in Ontario, so forgive me for any inconsistencies in my answer. The problem with that ruling is that it defines “killing” as care, first of all. And, yes, while physicians are gatekeepers, they are gatekeepers to offer what is considered to be in the best interests of patients. I don’t think any law can force someone to consider killing a patient as in their best interests. There can be debate on the issue, but to force someone to do that seems wholly disingenuous under the law.
Senator Dalphond: Nobody is asking that doctors perform an act they are opposed to, like killing somebody. They are told, however, that they should be offering all the information required about the services that are available to the patient who is asking questions.
Mr. King: Sure, I understand. I don’t think we need to get so technical about this. We are all human beings. We have experience of dealing with vulnerable people. I can give a couple of examples.
Someone who is struggling with alcoholism, we don’t offer them a beer. If they’re a friend of yours — I don’t know if anyone has had that experience of a family member struggling with an alcohol addiction. Even if someone in your family is going on a diet, you don’t offer them a chocolate bar. If someone is vulnerable, it’s very valid to feel your struggles with life. It’s understandable, surely, for people who are facing extreme vulnerability to, at times, have this feeling they would rather die. In those situations, one doesn’t offer them —
Senator Dalphond: Doctor knows best. Thank you. I think my time is up.
Senator Cotter: My question is for André. I have two questions. I’m not as quick as Senator Batters, and I haven’t read your brief yet, but I would like to get a bit of clarification at the beginning. You made an observation about the scope and responsibility of government as you were beginning to speak about the Criminal Code, and I wonder if you could repeat that, if you don’t mind, as briefly as you could.
The second question is a more substantial one. As I understand it, your submission comes from a rich faith perspective, which I respect, but also the ARPA is pretty articulate in its statement about the need for a separation between church and state.
I would benefit from your explanation or description of how one wrestles with this question on secular grounds, recognizing that there are significant moral dimensions to this, but without deference to faith perspectives, which we’ve heard a good deal about.
Could you speak to that? Help me to understand the degree to which I should embrace your arguments, recognizing that they are moral, but also driven very much by the strength of your organization’s Christian faith.
Mr. Schutten: Thank you very much, senator. I appreciate both comments.
On the scope of government, my opening comment was merely that. If there is one very important, maybe even the most important task of the civil government, it is to protect the life of its citizens. That’s its most basic calling or responsibility. It has many other tasks for sure, but that would be its most basic one — tying that to section 15 of the Charter where we know that every individual and every citizen has the right to the equal benefit and protection of the law. Then I would say, if that’s the basic task of the civil government, to protect every human life as best it can through the Criminal Code, then we have to make sure that’s equally done for everyone, regardless of ability or disability.
To your second question on the separation of church and state, yes, we would agree. The reformed Christian tradition that I come out of has wrestled with this question for hundreds of years — for the last 500 years anyway. We say, yes, the institution of the church has different responsibilities than the institution of the state. There’s a separation of the institutions. It doesn’t mean that those two institutions can’t dialogue very much like the way Parliament and the Supreme Court dialogue about issues. In an analogous way, the church and the state can also dialogue.
With that said, take this panel, for example. We have a witness from the Muslim community, a witness from the progressive Christian community, a witness from a more Conservative Christian community, and we have a witness from a secular perspective, all four of which agree that there are considerable public policy reasons, out of a common belief that the individual, whether they have disabilities or not, is a person with dignity who needs to be treated with respect, and whose life needs to be protected. So I don’t think that’s a position unique to the Christian faith; it’s a position that’s across the board.
I’m not a doctor; I’m a lawyer. Certainly in the testimony we’ve heard from the medical community, there are many doctors whose objection is not so much, “Because of this religious commitment I can’t do this.” I think it’s grounded in, “I need to serve and bless my patient the best way I can. In this moment, a request for assisted suicide or request for MAID is not what’s best for this patient.” We do that all the time.
So if we say, “No, that’s not respecting the autonomy of the patient,” we’re not consistent. I don’t think anyone who says, “Well, that doesn’t respect the autonomy of the patient,” I don’t think we’re always consistent on that, because if it was a suicidal teenager who said, “I want out; I’m done with this,” we wouldn’t respect the autonomy of that patient, and for good reason. I think we just need to see why, and apply that equally across the board. I hope that helps, senator.
Senator Cotter: It does.
Mr. Schutten, one of my frustrations — and I mentioned this with respect to witnesses in the panel before you — is the championing of this value perspective when it’s linked to MAID. I just don’t see enough of that presence of that value perspective, short of the question of assisted death. Maybe you’ve come and spoken when the Senate is concerned about poverty and injustice and vulnerability. But it strikes me that the concerns for people with disabilities, people who are vulnerable, are used as leverage instrumentally to advance your cause that medical assistance in dying should be rejected. Can you respond to that?
Mr. Schutten: I appreciate your honesty, senator.
Senator Cotter: I’d appreciate yours on this as well.
Mr. Schutten: Yes, absolutely. I can only speak for my religious community that I grew up in and still reside in, and the community that I live in and work in. It is one that has a high value for disability rights across the board. Every summer, speaking personally, I volunteer at a summer camp for men and women with mental disabilities. I’m paired up with two men with Down’s syndrome. I’ve been doing that for 15 years. The church community that I’m a part of runs without any civil government money or support. Out of our own pockets we run five different homes in this province alone for people with exceptional needs and disabilities. The people in my religious community have long provided, through diaconal donations, Sunday after Sunday, for people who are needy, who have financial needs and so on.
Bringing that back to your original question about separation of church and state, while we certainly see a role for the civil government to also provide a social safety net, we put our money where our mouth is, and with our own institution of the church also do that. We don’t just say with our votes and with our voice, “Oh, civil government, do more here, here and here.” We say, “We’re willing to do it as well ourselves, with our own money, with our own hands, with our own time.” I think we’re doing the best we can.
Perhaps that lends perspective.
Senator Dupuis: My first question is for Imam Mohamed and my second for Mr. Schutten.
Mr. Mohammed, after stating your opposition to medical assistance in dying and having described it as murder, you ended your presentation by saying, “Let Almighty God decide for us the time we will leave or stay.”
If you are saying that medical assistance in dying, as we know it, and as it has been practised in Quebec for a certain number of years and is permitted under federal law, is murder, and that we can’t allow people to choose, even if they are experiencing intolerable suffering, to put an end to their suffering, what do you think of the current situation in which it is up to the physician to decide whether or not to administer, outside of medical assistance in dying, terminal sedation that puts an end to the patient’s life? How would you describe this action? Do you believe that it’s murder?
Mr. Mohamed: Thank you very much, senator, for your question. I understood your point, which is that the medical field doctors and physicians who actually decide whether or not to give assistance to somebody to die, how can we call this a murder?
Definitely we value the work that our medical physicians do to support and help, and to relieve the pain of the patients within Canadian societies. It is always our job to help those in need.
We understand that we are created and that we will be tested in our life, whether it is with sickness or troubles in different ways of life, and that we have to deal with those things that we are facing. The solution of going to die or supporting someone to die is not the solution. We are actually in demand to support people to live, with all ways of support in different ways. And the people in the medical field are the ones who are treating patients, and never choose an option to let them go. Rather, in a state of giving them the needed medication, and supporting them mentally and physically and all that is needed to help relieve the pain that they face, instead of giving them the option of MAID.
Senator Dupuis: With respect, Imam, that was not my question. My question is: How would you describe the unilateral decision of a doctor to end the patient’s life by administering terminal sedation outside of the framework of medical assistance in dying? Would you describe this as murder as well?
Mr. Mohamed: The choices for people to live are not the choices of other ones to let them go. So we still do not agree, even if the person is in pain, and he’s requesting. Anyone who has a difficult time or pain will request to get relieved. He will even say, “Let me go.”
We believe that this will be a kind of killing the person. It will be a kind of murdering him by letting him go or supporting him, assisting him to death. So yes, we still call that a murder. If somebody will be taking his life, not in the natural time that God will give him, this is definitely a murder.
The Chair: Have you finished, Senator Dupuis?
Senator Dupuis: My second question is for Mr. Schutten. Mr. Schutten, you described the religious organizations appearing here today as relatively progressive, less progressive and more conservative. To clarify for the members of our committee, could you tell us which are considered more progressive and which more conservative?
Mr. Schutten: I’m sorry, I wouldn’t know where my friend the imam is at, as far as being on a spectrum of progressive or conservative. Probably not even a very helpful label. The only place where I applied it was to the two Christian organizations, where I think generally, loosely applied, the label “conservative” has been applied to my faith tradition, and that the label “progressive” has been applied to the United Church of Canada tradition. I’m not a big fan of using labels to separate and distinguish people, but I made that mention just to show the diversity of views on this panel, where all of us have raised substantial concerns about Bill C-7.
Senator Kutcher: My question is to Reverend Hayward. Severe, intractable and incurable conditions are often co-morbid with a mental disorder. [Technical difficulties] co-morbid state while excluding people who have a mental disorder as to [Technical difficulties] as their sole condition.
You voiced your support for that exclusion. Can you help us understand how to think about what seems, prima facie, to be a contradictory situation made permissible for people who have a mental disorder plus another medical disorder? Thank you.
Reverend Hayward: Thank you for your question, senator. In my statement, when I talked about the specification in the bill that persons with sole underlying medical conditions of mental illness not being eligible for MAID, I was relying on it being the sole underlying medical condition.
It is common that mental illness also be a factor in a person’s condition, along with other conditions. This has been highlighted in the MAID literature dealing particularly with Belgium and the Netherlands about complex combinations of the conditions. So if people have a condition which will cause a natural death unrelated to the mental condition, would MAID be permissible in that case? Presumably so.
I think, as a church, we are more concerned about the resources being available for people with mental illness. We have a concern, throughout the statements we’ve made, about MAID not being the only option available to people, but one option among many.
Senator Kutcher: Thank you. I don’t think anybody that I’ve ever spoken to would in any way contradict your observation that there is inadequate access to effective mental health care in Canada. But I’m still confused about this contradiction. Mental disorder in a person who also has a different condition could be the sole factor driving that decision-making and yet it’s okay for that and not okay for others. Help me to square that circle.
Reverend Hayward: Here, one of the things we are trying to get at is the concept of what makes for a life that’s worth living. Disability or, in the context of your question, mental illness cannot be the sole factor driving the decision for MAID or the sole factor driving whether a life is considered worth living.
We have a concern about what society’s concept of the good life is, and this is also reflected in our language around advanced directives, that people with disabilities, including mental ones, live abundant lives, to use the biblical language. Their lives have dignity in God’s eyes. They are of value and this is not an argument in itself for MAID.
Senator Pate: I apologize if you’ve covered this. Please, Madam Chair, if I ask something that’s already been covered, just let me know. I was dumped off for a little bit of time.
The Chair: You had technical difficulties. Don’t worry. Ask again.
Senator Pate: I’m very curious, based on what each of you have said, about what kind of amendments you would recommend for this bill. In particular, I would also be interested in whether any of you have looked at the situation of those in institutions, and especially those in prisons, and the application of MAID to those individuals.
Mr. Schutten: Is there any order in which you’d like us to answer, Madam Chair?
The Chair: Senator Pate, can you please direct your question to a particular person? Otherwise we don’t have the time.
Senator Pate: That’s great. Thank you very much. Let’s start with Mr. Schutten and then Mr. King and then if we have time to proceed with Imam Refaat and Reverend Hayward.
Mr. Schutten: Thank you, senator. I think there’s a number of different amendments that should be added to Bill C-7 to improve safeguards, like reinstituting the 10-day waiting period. If we take that out, it will cost lives. There’s evidence before this committee and other places where people have changed their minds during that 10-day waiting period. Without it, those people wouldn’t be with us any longer today.
I think we need to give guidance. The legislature, the Parliament, has to give guidance to MAID providers as to which of the two tracks — the fast track or slow track — a patient should be on. The way to do that would be to define or give guidance around what makes somebody’s death reasonably foreseeable.
The Bloc Québécois member of the Justice Committee proposed a 12-month guidance for that at the Justice Committee. That was turned down there. There’s no reason why this committee couldn’t add it.
I think we need more clarity around the 90-day waiting period. In fact, it’s not initiated until a written, formal request is made that has been witnessed. Also, to your second question, there was a report which I believe is referenced in the submissions of the Christian Legal Fellowship. It’s not in ours. They presented in the previous panel, and in their submissions they make reference to a report from Corrections Canada where MAID has been provided in prison. It’s raised all kinds of concerns where people who have been incarcerated are requesting MAID and receiving it. That is a questionable practice at best. It should be investigated. That report is worthy of review by this committee.
Mr. King: I would agree with the amendments mentioned by Mr. Schutten. I agree we need to put back the 10-day delay. The issue of final consent, I think that needs to be put back in.
I agree as well on the issue of the 90-day time frame. It’s really important that we don’t just state that someone has to be informed of other options. Those other options actually need to be made available and accessible before offering MAID. The basic principle of offering support to live, before we offer a support to die, needs to be enshrined in this bill.
Senator Pate: Mr. King, sorry to interrupt. How would you do that? How would you see that being done? Would you be talking about national guidelines, national standards, cost-sharing agreements? How would you see that being done? Sorry to interrupt you.
Mr. King: I’m just going to have to put my hand up and say I’m not a legal expert on that.
Mr. Schutten: I would have to get that as another question. I just missed the tail end of what you said, Mr. King, with that follow-up question from Senator Pate. I’ll defer to Madam Chair on this.
Senator Pate: I was asking whether you would see the need for national guidelines or standards to be incorporated, and how would you do that in this legislation?
Mr. Schutten: A lot has been said about palliative care. It’s one of the big challenges with our federalism arrangement, with palliative care being administered by the provinces. This is a criminal law bill for Parliament to pass. But just changing the language in the Criminal Code that says MAID cannot be provided unless these other supports have been meaningfully offered, made available — that guidance right there puts a lot of onus on MAID assessors, providers and the rest of the medical system to make sure that those things are available. That’s proper pressure from the Parliament to those who provide this service, in air quotes, to make sure that these other services are available through help and palliative care and so on. I think that would be enough in the Criminal Code to encourage the provinces to prioritize palliative medicine.
The Chair: Thank you very much, Senator Pate.
Senators, we have come to the end of this session. I want to thank all the panellists for presenting today. You can see there has been a lot of questions and discussion for us still to carry on with. I want to once again thank you for coming on such short notice, and we look forward to working with you in the future.
Senator Cotter: I want to thank the panellists.
The Chair: Yes, thank you very much, panellists. We appreciate you being here.
Thank you to the panellists who have joined us today. We know you came at short notice, and we are honoured that you have taken this time to come to the Standing Senate Committee on Legal and Constitutional Affairs and share your point of view on this extremely important legislation. Bill C-7 really changes a lot in our society.
I will introduce the panellists. From the Federation of Medical Regulatory Authorities of Canada, Fleur-Ange Lefebvre, Executive Director and Chief Executive Officer; and Louise Auger, Director, Professional Affairs. From the Canadian Unitarian Council, Vyda Ng, Executive Director.
Thank you for being here. You have five minutes per organization. Please go ahead.
Fleur-Ange Lefebvre, Executive Director and Chief Executive Officer, Federation of Medical Regulatory Authorities of Canada: Thank you for the opportunity to meet with you today regarding Bill C-7. My name is Fleur-Ange Lefebvre. I am the CEO of the Federation of Medical Regulatory Authorities of Canada. I am not a physician myself, and I’m one of two official spokespersons for our organization, the other one being Dr. Scott McLeod, who is our president.
FMRAC represents the 13 provincial and territorial medical regulatory authorities across Canada. They are the ones with the delegated statutory authority to regulate physicians, and they do so in the best interests of public safety. Our mission is to advance medical regulation on behalf of the public through collaboration, common standards and best practices.
Our interest today is to ensure the effective regulation of MAID on behalf of the patients served by the medical regulatory authorities and the physicians they regulate. As we did in 2015-16, FMRAC and its members support the need for a consistent approach to MAID across the country. To achieve this, I’m sure we will all agree there must be clarity of legislation. The language cannot allow for divergent interpretations or uncertainty. Patients, families, the public, physicians, other health care professionals and law enforcement must all share the same understanding of the legislation.
On the issue of reasonably foreseeable death, we support the provisions in Bill C-7 that consider eligibility for MAID for individuals whose natural death is not reasonably foreseeable. If further legislated safeguards are considered necessary to protect vulnerable populations, we submit that such safeguards must not compromise patient autonomy.
As regards mental illness, it is not within FMRAC’s mandate to comment on broad societal issues such as the proposed specification that persons whose sole underlying medical condition is a mental illness are not eligible for MAID. However, in our opinion, the relevant section of Bill C-7 gives rise to some regulatory concerns.
First, there is a lack of clarity. “Mental illness” is not a precise medical term. In medical terms, “illness” refers to the patient’s individual experience with a disease. If the intention is to exclude eligibility for patients whose sole condition is psychiatric disease, then the regulation of this provision could be linked with the internationally accepted standards described in the Diagnostic and Statistical Manual of Mental Disorders, commonly known as DSM. Currently, we’re on Version 5.
With that said, the DSM-5 includes other conditions, such as neurologic disorders, that may not be intended for exclusion. The committee may wish to consult the Canadian Psychiatric Association. As I indicated, I’m not a physician, so I cannot speak to further details on this matter.
Second, we feel there are logistical concerns. Although they may be few, there may be patients who meet all the existing eligibility criteria for MAID, whose sole diagnosis is of psychiatric disease. There is no guidance as to what will happen to the eligibility of these patients upon passage of Bill C-7.
We have a few more concerns and comments. We support the adoption of specific language in the act to make it clear that the role of the physician in informing patients of the availability of MAID is not considered counselling for MAID. FMRAC maintains that issues related to physician conscience remain matters of provincial and territorial jurisdiction. We submit that the responsibility to direct physicians as to their responsibilities vis-à-vis patients requesting MAID, when conflicted by conscience, should remain with the physician’s respective medical regulatory authority. FMRAC notes that the duty to make an effective referral, which is set out in the professional standards of many its regulatory authority members, has been tested and supported in the courts.
In regard to consent and administration, FMRAC supports clarifying the legislation in a manner that expressly permits patients to consent to either or both modes of administration, enabling clinicians to intervene should a patient’s attempt at self-administration not be successful.
We support the inclusion of clear and comprehensive safeguards, and the proposed inclusion of language that allows for the delivery of MAID to a patient who has lost capacity after having been found eligible and provided consent to receive MAID. We seek clarification and confirmation that this applies both to patients whose natural death is reasonably foreseeable, and to patients whose natural death is not reasonably foreseeable. Once again, the term “reasonably foreseeable” remains too vague to be understood or applied by the medical profession, and too ambiguous to be regulated effectively. A clear consensus definition would be a valuable addition.
Patients must be informed of the means available to relieve their suffering, including, where appropriate: counselling; mental health and disability support services; community services and palliative care; and they have to have been offered consultations with relevant professionals who provide those services or that care.
FMRAC and its members strongly support the legislative goal to have a consistent approach to MAID across the country and across patient groups, and will continue to work together with governments at the federal and respective provincial and territorial levels to achieve this. We will be providing more comments in our written submissions in the next few days. Thank you very much.
The Chair: Thank you very much.
Vyda Ng, Executive Director, Canadian Unitarian Council: Thank you for the opportunity to speak before this public hearing. The Canadian Unitarian Council has long been an advocate for the right to choice in dying. We are a liberal faith community which believes that the right to decide the time and manner of one’s death, in specific circumstances, is a human right. We appeared as intervenors before the B.C. Supreme Court in 2011 and before the Supreme Court of Canada in 2014.
We do support the proposed changes introduced by Bill C-7 and acknowledge that a lot of work has been done in consulting with the public and in drafting the changes. We urge the government to meet the December deadline. We also urge the government to address the needs and constitutional rights of those living with mental illness, and those of mature minors, and to put the time and care into investigating, clarifying and defining these issues.
Like Judge Baudouin, we believe that each case must be assessed on an individual basis, with the ability of the person to understand and consent being the main factor. Appropriate legal and medical safeguards, of course, also need to be in place.
During this time of the pandemic, our health care systems are burdened and stretched. We urge the government to find ways to provide the resources needed to make sure that those who want to access medical assistance in dying are able to do so, especially for those living in remote and under-resourced communities.
In addition, the review of MAID should not be delayed any longer. We urge the government to ensure that resources are made available to undertake this review, and to continue consulting with those groups, individuals and appropriate parties for input into the review.
We believe that living with dignity is a human right; dying with dignity is similarly a human right. There is no dignity in living with extreme pain and suffering. The 2015 legislation and the current proposed changes put Canada well on the way to ensuring that our citizens and residents have access to this basic medical assistance.
The Chair: Thank you very much for your presentation.
I have a question for you, Ms. Ng. You are talking about the review of the issues you spoke about. How do you see the review? What is the structure of the review?
Ms. Ng: I think this committee modelled a very good process in the beginning. The committee undertook a lot of consultation with community groups and I think that the process of consultation should continue with current groups, individuals and people with lived experiences. We have a lot of people advocating for this bill and for these changes. We also have people who have a lot of moral and ethical concerns about the bill. I think all those opinions should be taken into account.
The original, preliminary review did provide good information, and it also found holes in the legislation. The key piece is to consult with the people who have been giving a lot of time and thought to this.
The Chair: Thank you very much. We will now go on to the questions and the first question is from the sponsor of the bill, Senator Petitclerc.
Senator Petitclerc: I would like to thank our witnesses for being with us today to help us explore the issues involved in this very important bill.
My questions are for you, Ms. Lefebvre. I would like you to help us clarify a number of points. As we know, the provincial and territorial medical regulatory bodies established policies and guidelines four years ago.
How do you think Bill C-7 would affect these policies and guidelines? What challenges would arise from the bill? How can we prepare ourselves for them?
Some review committees were established to ensure that everything would comply with medical assistance in dying best practices. Can you tell us what we might learn from these committee meetings?
Ms. Lefebvre: The policies and guidelines will indeed adjust to the new version of the act, which is mainly about access. The guidelines are nevertheless pretty complete. It’s simply a matter of making the required changes so that physicians can work within the framework of the act.
As for its impact, the medical regulatory authorities have already begun to work on that. As you know, the Collège des médecins du Québec is has a head start on everyone else because of the Truchon decision.
The review committees and reports, however, are not governed by the medical regulatory authorities. All professional regulatory bodies in Canada have a complaints system. If there is a problem, a complaint is filed with the authority and the usual steps are taken. There are no major changes.
Some jurisdictions report somewhat more frequently, and some reports are probably more complete than others, but on average, across the country, the level of satisfaction with respect to these requirements and these reports, as described in the act, is rather positive.
Senator Petitclerc: Thank you; your answer is very helpful.
Senator Batters: My question is to the Federation of Medical Regulatory Authorities of Canada. The UN Special Rapporteur on the Rights of Persons with Disabilities, regarding the lack of protocol to:
. . . demonstrate that persons with disabilities have been provided with viable alternatives when eligible for assistive dying.
She had received:
. . . worrisome claims about persons with disabilities in institutions being pressured to seek medical assistance in dying, and practitioners not formally reporting cases involving persons with disabilities.
In your view, could you tell us what impact will the passing of Bill C-7, in its current form, have on Canada’s reputation as an international leader in human rights generally, and more particularly for the rights of people with disabilities?
Ms. Lefebvre: Thank you for the question, Senator Batters. That’s a new one for me. We did have a lot of discussion about that at the January meeting convened by the three federal ministers. There were a lot of stakeholder groups representing vulnerable populations. We believe that the law must include the safeguards to ensure this is done with informed consent. We would not have any comment about that.
The job of our members is to regulate practising physicians. One of the tests that they have when they approach a patient is to ask that patient if they consent to having medical assistance in dying. Other safeguards surrounding the day-to-day life of vulnerable patients and other vulnerable populations must be built into the law. It would not be something that we would have direct input into, unfortunately.
Senator Batters: Earlier this morning we heard — and I’m not sure whether you were listening — from an organization called ARPA. They spoke about the 90-day waiting period and how, in their view, it’s really necessary that there be a more specific time frame put into this particular legislation, about exactly when that 90-day waiting period starts, because there could be a considerable amount of ambiguity to that — that perhaps the 90-day waiting period would start considerably earlier than the actual request for assisted dying. Would you support an amendment that would provide more clarification as to when that 90-day waiting period is to start?
Ms. Lefebvre: We would support any amendment that adds clarity in this piece of legislation. We found that when the federal government is put up against a timeline that is not of its own doing, you may end up with legislation that is not as clear as one would have wished. Be it the 90-day waiting period or be it anything else, clarity is really important here. What we want is physician A, physician B and physician C interpreting the legislation in the same way, and the same when they are talking to the patients, the families and the health care institutions.
You have to understand that we were invited yesterday afternoon to do this. We have members all over the country and they are not in the same time zone. We have received some additional comments, and some of them relate to the 90-day waiting period. We didn’t have time to build this into today, but it’s going to be built in through our submission that we will make later this week. People are seeking clarification about that, and people are worried that it’s a delaying tactic. We have to be very careful about that. We will put that into our written submission, if that’s okay with you.
Senator Batters: That’s okay. I certainly understand about time frames because I am from Saskatchewan, so I have adjust to that time frame every so often. And in Saskatchewan we don’t change, so that’s new for us. Thanks you.
Ms. Lefebvre: The B.C. registrar was one of the first to respond.
Senator Dalphond: My question is for Ms. Lefebvre. You mentioned that your organization has no opinion with respect to the exclusion or inclusion of mental illness, but you said that the term was not defined and you suggested a definition. Could you tell us more about this?
Ms. Lefebvre: As I mentioned, I’m not a doctor. In my comments, I was referring to a well-known American reference work, the DSM — the Diagnostic and Statistical Manual of Mental Disorders. It establishes international standards for psychiatrists and others who provide care for people with neurological disorders. That’s why I suggest you contact the Canadian Psychiatric Association which could provide you with all kinds of useful information. What’s still required is enough clarification to ensure everyone can interpret the act in the same way. That’s what we’re aiming at. Several areas would benefit from further clarification.
Senator Dalphond: Your organization is similar to the Federation of Law Societies of Canada.
Ms. Lefebvre: Exactly.
Senator Dalphond: You have no direct regulatory power, but you work with those who do.
Ms. Lefebvre: We have no regulatory power and we really have no power over our members; it has to be an agreed arrangement and a collective approach.
Senator Dalphond: All right. Thank you.
Senator Dupuis: I have a question for Ms. Lefebvre. In my opinion, you’ve done a very good job of explaining that the clearer the act is, the easier it will be to have consistent interpretation and implementation everywhere in Canada. You described the expression “reasonably foreseeable” as being an overly vague concept that is impossible to regulate. Given that the Baudouin decision invalidated these terms in the Truchon case, and eliminated the requirement that death be reasonably foreseeable, could you tell me, if you have a position on the matter, whether you agree with this decision or feel that it would be better to avoid ever referring to those terms, and not adopt vague and ambiguous terms?
Ms. Lefebvre: Basically, these are terms that have been bothering us for a long time. I travel a lot and I’m often in touch with other international medical regulatory bodies, particularly in the United States and England. We have asked if they could help us define the expression “reasonably foreseeable.” After all, as soon as I was born, my death was “reasonably foreseeable.” I know I’m being a bit vague, but we really need to be able to tell physicians: “You’ve got a patient who is dying, a patient who is requesting a medical procedure paid for by the state, namely a medical procedure to which the patient should have access.” We need to do something about the expression “reasonably foreseeable.” We discussed it at our meeting in January and we agreed to eliminate this requirement. However, my reading of Bill C-7 shows that there will be two categories: one category of patients for whom death is reasonably foreseeable and another category of patients for whom death is not. If the expression is to remain in the act, then it needs to be defined.
Senator Dupuis: Thank you very much; that’s exactly what I wanted to know.
Senator Pate: Thank you to the witnesses. I’m presuming you are aware of the issues being raised by disability groups around the concerns, particularly in light of what has happened during the pandemic and the exposure of inadequate social, economic, health, housing and other supports for individuals.
Particularly in light of your response just now to Senator Dupuis’s question, I’m curious how that would frame this issue for you in terms of the positions doctors would be in, and the fact that people with disabilities are indicating that they are fearful that this will amount to them essentially not having the array of options that otherwise could be available to them, and which might otherwise influence them to not access MAID — and what kind of position that puts doctors in.
Ms. Lefebvre: It could put doctors in a difficult position; it puts me in an interesting position.
This is a societal issue, and we do not have an opinion on what constitutes societal issues; that’s up to governments to deal with. However, in this context, physicians are bound to obey the law and the regulations set by the respective medical regulatory authorities. If a physician, at any point, has any concerns that a patient is not consenting to have medical assistance in dying, the physician has to report it and act accordingly.
When you have a patient who is perfectly able to provide consent but has external pressure, I think that’s where the safeguards in the law have to be brought to bear. I don’t think anybody has a crystal ball with respect to patient A or patient B, and that’s where it has to be really, really tight and really explicit.
Senator Pate: I don’t want to put words in your mouth, but I think you have already said that you don’t think it is sufficiently explicit at this stage.
Do you have recommendations for amendments that you would propose?
Ms. Lefebvre: Again, it’s not something we normally do. We normally indicate that our members are involved in having to provide guidance to physicians who may decide they are going to provide MAID, and right now, we feel there are parts of the legislation that are not very clear. For instance, we would not come up with a definition of “reasonably foreseeable.” We need others who are experts in the area to do so. Our job, through our members, is to regulate the practising doctor.
Senator Pate: Thank you.
Would anyone else like to comment on that?
Ms. Ng: Thank you. Mental health is not an area of our expertise either, but I would have no disagreement with what Ms. Lefebvre has been saying. There need to be safeguards and careful examinations of the rights of people living with mental illness and disabilities. The core piece is the ability to understand and consent. We must make sure there are scenarios to safeguard individual rights, and that we don’t lump people into a category of people living with mental health issues or people living with disabilities, because there are such a spectrum and differences in terms of people living with those situations.
It bears really long and careful consultation again with mental health advocacy groups and people with disabilities. It’s not a situation where we can come to a snap decision by March of next year. I would urge again the undertaking of consultation.
The Chair: Thank you.
Senator Keating: We have heard some witnesses say that the mere fact of having to assign a patient to receive medical assistance in dying is an infringement of their conscience rights and basically flouts their obligation to meet the constitutional rights of their patients.
I know that you’re not a doctor, but I’d like to hear what you yourself think about the physician’s role, and once again I’m not referring to the administration of medical assistance in dying, because physicians are already protected by a provision. I’m simply speaking about entrusting patients to someone else.
Ms. Lefebvre: My personal opinion is of no interest today. I’m here to represent the Federation of Medical Regulatory Authorities of Canada. Canada’s physicians are there to provide care to patients. With the adoption of the bill on medical assistance in dying, as I was saying earlier, medical assistance in dying becomes a medical procedure paid for by the state. Accordingly, patients need to have access to this medical procedure.
Physicians who conscientiously object still need to act in the best interests of the patient, and for me, that’s the end of the discussion. Requirements are imposed by their respective professional organizations and they need to comply with them. The patient is the priority.
Senator Keating: I asked because, contrary to the witnesses who gave evidence, I’ve had many discussions with physicians who provide medical assistance in dying in New Brunswick and I would say that’s the majority opinion. In fact, 100% of the doctors I spoke with told me that, apart from any considerations of conscience rights, they felt it was absolutely their responsibility to provide medical assistance in dying, particularly in regions where services are less accessible than elsewhere. Those I spoke with saw it as their responsibility, except perhaps in matters of freedom of conscience and other related factors.
What has been suggested to us is truly extreme, insofar as not only do some not want to provide medical assistance in dying, but do not want to have to entrust their patients to anyone else. I know that they have already lost a case on this issue.
Ms. Lefebvre: I’d like to add that no doctor is ever required to provide medical assistance in dying. Not ever.
Senator Keating: I know.
Senator Kutcher: I have two questions, one for each of the witnesses. I will try to be brief.
My first is to the Federation of Medical Regulatory Authorities of Canada. We don’t want to have substantial differences among the various jurisdictions in medical regulations related to MAID. Is there ongoing discussion on harmonizing MAID regulations across Canada, and if so, what role does FMRAC play in those discussions? Also, are you of the opinion that any regulatory changes, if Bill C-7 becomes law, will become nationally harmonized?
Ms. Lefebvre: Thank you.
At the level of our organization — at the FMRAC level — as I said, we are not a regulatory authority, nor do we have authority over our members. We develop frameworks. We did one at the end of 2015 on medical assistance in dying. We call it physician-assisted death, because we are dealing only with licensed physicians.
What we do is outline the points that each regulatory authority in each province or territory should address as they provide guidance to physicians. Then we go on and provide them with some sample wording. That has been very well received.
Right now, the regulations and guidance provided by the MRAs across the country are way more similar than not. With the passage of Bill C-7 — I was speaking in French before, but this is the same thing — it is more an access issue. What has changed predominantly in Bill C-7 is access, and that will have to be incorporated. It will reflect the law; it can only reflect the law and reflect general, good medical practice. That is what will happen. And we will achieve consistency in that, I think, very quickly.
Senator Kutcher: Thank you very much.
My second question is for Ms. Ng. In your opinion, is it the competent person who has the right and responsibility to decide on requesting MAID or not, and as part of that decision-making process, do they also have the right to receive information about MAID as an option from their physician?
Ms. Ng: Yes, definitely. Any person in circumstances where they are considering MAID has the right to access all the information that they need to make informed decisions.
MAID is not something that everybody would choose, and I think it’s only in situations where they feel there is no other option that they would actually even consider going in that direction, of exploring that option. The person needs to be fully informed, absolutely able to make their own decision. The supports around that person also need a way to ensure that there is no undue pressure and that the decision that person makes is absolutely their own. They need to have available all the options.
Senator Kutcher: Thank you for that. Would it be your opinion that, if a physician chooses, on whatever grounds, not to inform a person who is intractably suffering that MAID is an option, that would be contravening the right of the patient in the full information about their treatment and care?
Ms. Ng: That would be a conundrum because the patient wouldn’t know that MAID is an option, but it would be the duty of the physician and the medical care personnel to make sure that person has access to the information. There needs to be another layer to make sure that information is provided, especially if the physician themselves is battling with their conscience about whether or not to offer that option.
Senator Kutcher: I’m trying to get at whether the physician’s own opinion should contravene the patient’s rights for information.
Ms. Ng: The physician’s duty of care is to the patient, so their own opinion should not enter into it.
Senator Kutcher: Thank you.
Senator Cotter: Thank you for your presentations.
I have two questions for Ms. Lefebvre, if I might. The first one builds on Senator Batters’ observation about your organization’s concerns about greater clarity and, particularly, the issue of reasonable foreseeability. It’s a word that lawyers use and work with a lot, but we tend to be not all that clear on it, so you may have a point.
We did hear suggestions that one option might be to define a specific time frame, which has the attraction of clarity. It tends to be a pretty rough and ready sort of choice, and may not be very flexible or precise, but I was interested in whether a defined time frame for the question around reasonable foreseeability of death is something your organization would be in support of or be concerned about?
I have a second question I’ll ask after.
Ms. Lefebvre: Thank you, Senator Cotter. We have not actually gone down that road too far. I think that what you have in a population of patients who are seeking medical assistance in dying, or at least want more information about medical assistance in dying — while I’m on that topic, I want to say that we need to make it clear that when a physician is providing information to the patient that they are not actually counselling them toward MAID. That’s a really important clarification.
I think that, because the patient population requesting this medical act is very different and diverse, having a single point in time is not going to do the job, and that’s where we need to discuss this with the experts who are used to dealing with patients who are living with that medical condition.
Senator Cotter: Thank you. My second question you were, in some ways, anticipating. You had observed the issue around protecting, within reasonable limits, doctors’ freedom of conscience in not delivering medical assistance in dying but, at the same time, the expectation they provide referrals. That’s in place in most provinces. We’ve heard some discussion about that in the discussion of conscience.
You indicated this is a matter that is delegated through provincial legislation to colleges of physicians and surgeons. It strikes me, though, that this is the sort of thing that ought to be nationally consistent, even though I understand the point about provincial jurisdiction. My question is whether or not your organization agrees with the value of consistency so that, not so much just doctors, but patients, depending on the jurisdiction they are in, what province or territory, will know what they are entitled to expect from their doctors. Also whether, as a dimension of that, your national organization provides something like, as Senator Dalphond noted, the Federation of Law Societies of Canada, which was the architect of a model code of conduct for lawyers? Do you have a model position on this that has been shared with provincial colleges of physicians and surgeons?
Ms. Lefebvre: We do have our document — our framework from 2015 — but the issue of medical regulatory authorities is that they are established in law. It’s not the same around the country. For an issue as simple as English-language proficiency testing for people trained outside of Canada, we are a dog’s breakfast. You would think we could test, but not all legislation or jurisdictions allow these positions to be tested for language proficiency. That’s a small example of how different pieces of legislation can have an impact on what you can do.
Would we like national consistency? Absolutely. As I said, we are more consistent than not, but do we have the power to enforce national consistency? Not with professional and trade regulations being the responsibility of each province and territory.
Senator Cotter: But do you have a model position for consideration by colleges of physicians and surgeons on this question of conscience, or a duty to refer?
Ms. Lefebvre: I will ask Ms. Auger to look that up. She crafted that document with our advisory group on physician-assisted death, and I will ask her to look into that while we deal with other questions, and maybe we can deal with that later. I can’t remember the entire content of the document. I could look at it but would lose face contact with you.
Senator Carignan: I missed part of your presentation, but it’s still useful to have the physician’s point of view, particularly from your federation.
I was reading some documentation about Quebec which mentioned that in the 2015-2020 plan, the Department of health and social services was aiming at a rate of approximately one palliative care bed per 10,000 population.
This rate appears to have increased — in Quebec at least — in recent years. Based on your experience, is this a realistic rate? What do you know about the number of palliative care beds across Canada in the various regions?
Ms. Lefebvre: We have no opinion on this subject. Our members are responsible for regulating physicians and not for the healthcare system. We often hear that there is not enough access, not enough palliative care beds, and not enough information shared with patients. One of the things we request is that for all information supplied to patients who require medical assistance in dying, we explain the options, whether palliative care, social care, etc. Having said that, I do not, unfortunately, know the healthcare system well enough, particularly in Quebec, to comment on the number of beds.
Senator Carignan: On the the obligation to provide information, one witness suggested that not only should the requirement include providing information, but also offering treatment prior to any medical assistance in dying. What do you think of that?
Ms. Lefebvre: Offering palliative care treatment?
Senator Carignan: The witness suggested that we should not only be telling patients that certain types of treatment are available to care for or reduce pain caused by their disability or illness, but that they should also be offered treatment, in other words that the patient should not only be informed that the treatment exists, but that it be made available. I thought it was rather unrealistic given the quality of services, but I wanted to hear your opinion on that.
Ms. Lefebvre: It’s essential to inform patients of everything possible to allow the patient to choose.
Patient autonomy is nevertheless extremely important. If a patient decides to try something else, if treatment is available, I believe they should. However, if the patient does not try to choose something else and the option is not available, then we’re back to the initial question, which is to determine whether the patient will have access to medical assistance in dying.
Senator Carignan: How do your physicians manage the availability issue? It would be rather cruel to tell someone that a form of treatment was available, but that it would cost $2 million per year, or to tell them that it’s not available in their region for one reason or another.
I was having a discussion this morning with people who run a palliative care centre, and they told me that 53% of requests were turned down because of a shortage of available beds. This centre turns down 53% of requests because of a lack of beds.
How do your physicians deal with the situation with their patients prior to administering medical assistance in dying?
Ms. Lefebvre: The physicians do what they can. It’s not our role to regulate the healthcare system. Generally speaking, physicians are better informed about whether or not care is available in their facilities. We don’t have an opinion on this. We ask physicians to do what they can, to ensure that they provide the required information to patients, to try to do what the patients want, if it’s possible and if the care is available. However, the main condition to be complied with is that the patient should be able to opt for another option if they wish.
Senator Carignan: The regulatory medical authorities are there to protect the public. Your federation brings together the professional medical authorities whose job is to protect the public. From this standpoint, are you not bothered by the shortage of services?
Ms. Lefebvre: I am personally upset by the situation. We all saw what happened in long-term care institutions with COVID.
Healthcare regulation in Canada has many facets. Our members’ mandate is to regulate physicians who individually provide care to patients, and not to regulate the system. The physicians largely work within the system, and that is how care is provided. It’s not up to us to do it, and so, unfortunately, I can’t comment on it.
Senator Petitclerc: Thank you very much for your answer. I had a second question for Ms. Lefebvre, but Senator Carignan read my mind and asked it before me. It had to do with access to services and how physicians dealt with these kinds of situations. So I already have an answer to my question.
The Chair: I want to take this time to thank both of you. You mentioned, Ms. Lefebvre, that you didn’t have much time, but you both still put it together, and we certainly appreciate that. Thank you very much to both of you for being here. We look forward to working with you in the future. Thank you.
Ms. Lefebvre: Our pleasure. Thank you.
Ms. Ng: Thank you for the opportunity.
The Chair: To the three panellists, thank you very much for being here today. It was a very quick turnaround for you to make these presentations to us, so we truly appreciate your making the presentation to the committee. We’re looking forward to learning from you. We will start with Dr. Mona Gupta, Psychiatrist and Researcher, Associate Professor, Department of Psychiatry and Addictions, Université de Montréal. Dr. Gupta is no stranger to our committee, so welcome again.
We also have Jean-Pierre Ménard, lawyer; and also Jean-François Leroux, lawyer. Welcome to all three of you.
Dr. Mona Gupta, Psychiatrist and Researcher, Associate Professor, Department of Psychiatry and Addictions, Université de Montréal, as an individual: Thank you, members of the committee, for the opportunity to meet with you today. I’m a practising psychiatrist with over 20 years of clinical experience. As the chair pointed out, I’m associate professor at the Université de Montréal and a researcher in ethics. I also served on the Council of Canadian Academies working group on MAID for mental disorders as the sole underlying medical condition. I’m going to restrict my remarks to the question of MAID for persons with mental disorders, as this is my area of expertise. Given the time constraints, I’m going to speak about two specific issues that are frequently raised in the discussion of this topic: incurability and suicide.
The expressions mental illness and physical illness are convenient generalizations, but clinically there is no hard line between them. In the societal debate about MAID, physical illnesses are often characterized as being precise conditions with progressive decline, whose evolution is known with 100% certainty. This is true for some physical illnesses but not others. Mental illnesses, on the other hand, are characterized as ambiguous conditions for which the evolution is inherently unpredictable. This is true for some mental illnesses but not others.
I raise this point because the reasons the government has provided to exclude people with mental illnesses from requesting MAID — concerns about decision-making capacity, predictability and suicide — are not actually specific to mental illness. They can apply to people who have mental and physical illnesses at the same time, or to people who have only physical illnesses. I have elaborated on this point in my brief.
Let me illustrate by speaking specifically about incurability. The purpose of the incurability requirement is to avoid a situation in which a person receives MAID when her condition could have improved. However, once we are outside the end of life, we cannot have 100% certainty about the evolution of many illnesses, including physical ones. If we require 100% certainty about incurability and irreversibility, then many more conditions apart from mental illnesses will have to be excluded. If we are willing to accept that we cannot have 100% certainty, then we will have to define what is meant by incurability and irreversibility for a wide range of conditions.
Regarding the concerns about suicide, it is important to note that not all mental illnesses are associated with an increased risk of suicide, and that among those that are, not all persons affected will experience suicidal thinking. It’s also important to remember that people with mental disorders make life-ending decisions about their care all the time, and they are permitted to do so. The central question is not whether the person has a mental disorder but whether there are reasons to believe she is not acting in her own interest.
The Association des Médecins Psychiatres du Québec, the provincial association of psychiatrists, struck an advisory committee on MAID for mental disorders. Currently, I am chair of this committee. It is a committee that includes five psychiatrists with divergent views about MAID, as well as a patient partner and a family member. The committee has produced a discussion paper laying out an approach to assessing requests for MAID for mental disorders, which includes the consideration of the challenging issues of incurability, suicide, suffering and capacity. I can give some examples of how one could assess these issues with a patient during the question period. A copy of this report has been submitted to the committee. I hope the committee members will consult this document as part of your deliberations, as our work illustrates, above all, that professionals working with patients and families are able to come together and agree on practice standards for assisted dying for persons whose mental disorder is their sole underlying medical condition.
In conclusion, I do not think there is a way of distinguishing all cases of mental illness from the other clinical problems for which MAID is permitted, that can be defended clinically or ethically. As a result, what the exclusion clause will do is show it is acceptable to treat people with mental illnesses differently than others. The Association des Médecins Psychiatres du Québec does not accept this position. We believe that our patients must be entitled to exercise the same rights as all other persons. Thank you.
Jean-Pierre Ménard, Lawyer, As an individual: Madam chair, thank you for the invitation to comment on Bill C-7. I will very briefly summarize my presentation. A copy of the brief and of the summary statement were sent to you.
I’ll begin with a brief discussion about principles. I had the privilege of being senior counsel to Mr. Truchon and Ms. Gladu before the Quebec Superior Court. It was the first time for litigation of this kind in court. My presentation will primarily be based on the decision reached in this matter, because Bill C-7 differs in some respects from the jurisprudence.
We agree with the substance of Bill C-7, which aims at easing and simplifying the process of submitting a request for medical assistance in dying, and in particular the removal of the reasonably foreseeable death waiting period requirement as a condition of eligibility. Its removal is a very positive step. Mr. Truchon and Ms. Gladu were very happy about it. However, the waiting period was not completely eliminated. It was rather moved to a different spot in the process. It was made a criterion for distinguishing between people whose death is foreseeable and those whose death is not reasonably foreseeable.
I would argue that it is a dangerous principle because it creates two categories of citizens: those who can have straightforward access to medical assistance in dying and those who don’t have the right to immediate access because of a series of formalities to be followed. It treats those whose death is not foreseeable as vulnerable, which is not the case. It doesn’t factor in their circumstances. Judge Christine Baudouin referred to a very important factor in her decision. Physicians are capable of assessing each case in accordance with an established procedure for determining which patients have areas of vulnerability and which do not. It is therefore not a matter of establishing a general category of people with mental disabilities to exclude them from the act.
Once there are criteria for reasonably foreseeable death, it puts citizens on the same footing, shifting responsibility to physicians for determining the circumstances and deciding which patient requests should be acted upon. The 90-day waiting period attached to this is unacceptable; it’s as if we wanted to punish people for having requested medical assistance in dying when most of them have been thinking about it for a long time. An additional 90 days of suffering is completely useless and pointless.
This also introduces clear discrimination against people with mental health problems, who are simply excluded from the process when most of the time people with mental illness are capable of freely consenting and deciding whether they wish to participate. Excluding them at the outset means opening the door to discrimination based on mental disability.
This visibly deviates from the principles stated by Judge Baudouin in her decision, which argued that reasonably foreseeable death was not a usable criterion. Furthermore, the bill was tabled in 2016. A series of representations to the government about this part of the act had been made at that time. We are now going through the same debate all over again. The criterion is still not defined, and it is as vague as it was before, creating groups that would not have the same rights to medical assistance in dying.
I’ll end there. Basically, medical assistance in dying ought not to be conditional on anything other than the patient’s condition. We must avoid creating groups with distinct rights and assorted formalities. I believe that Judge Baudouin’s formulation is absolutely correct and that we should basically stick to it.
Jean-François Leroux, Lawyer, As an individual: First of all, thank you for the invitation. It’s true that the advance notice was rather short. I receive the invitation yesterday and was nevertheless able to put together a short presentation.
In January and February 2019, I had the privilege of being co-counsel in [Technical difficulties], a 31-day trial that stretched over two months, in the course of which the court heard 15 experts. Since the beginning of the Senate committee’s work, some people have no doubt told you that the debate was restricted to the circumstances of the applicants. Without wishing to contradict them, this is not strictly correct. [Technical difficulties] the debate in the Gladu and Truchon cases extended well beyond the circumstances of the applicants. The court heard a great deal of evidence about the circumstances [Technical difficulties] of elderly people, intellectual disability, veterans, members of First Nations and of course[Technical difficulties].
My main point is that during the Gladu and Truchon trial, 15 experts were heard, including seven psychiatrists. We spent most of our time discussing suicide prevention and the distinctions between suicide and medical assistance in dying, and Judge Baudouin’s extremely detailed ruling has often, as you know, been compared to a commission of inquiry. Over the past few years, Canada has had two such commissions of inquiry on the subject, the Carter case and the Gladu and Truchon case. In both instances, the courts reached very similar conclusions after hearing abundant evidence. On the one hand, that physicians were capable of assessing the capacity to consent, and on the other, in both the Carter and the Gladu and Truchon cases, that the absolute prohibition for people not at the end of life did not pass the test of constitutionality.
I submit that if Bill C-7 is adopted with the inclusion of the absolute prohibition for people suffering solely from mental health problems, then it is discriminatory. I would even go so far as to say that this prohibition, disconcertingly accepted so readily by the government, would not stand up to constitutional analysis. Judge Baudouin clearly demonstrated that the concept of population-based vulnerability could not be used to justify restrictions on medical assistance in dying, including mental health problems.
On this issue, she wrote in paragraph :
Vulnerability ought not to be understood as a function of, or based on, a person’s membership in a defined group, but rather assessed on a case-by-case basis…
She further wrote:
Whereas according to the court, one cannot on the basis of the principle of wanting to protect some people from themselves or to socially affirm the inherent value of life, prohibit medical assistance in dying to an entire community of disabled people…
What we are doing is for people with mental health problems. That in fact is what Parliament is doing indirectly by seeking broad protection for certain groups.
Instead, the judge suggested introducing measures[Technical difficulties].
To conclude, as far as I am concerned, it is obvious that the criterion cannot stand up to analysis and I would refer to what Judge Baudouin said, which we could use as a basis for future debate on behalf of people with mental health problems.
Ten years after Bill C-14 was adopted, when the Senate had recommended removing the exclusion for people at the end of life, there was a legal challenge. I suggest that history will repeat itself if the criterion that excludes people with mental health issues is maintained.
The Chair: Thank you very much, Mr. Leroux. We appreciate your effort, and we will certainly read your submission.
We will now go to questions from senators.
Senator Petitclerc: I’d like to thank all the witnesses for their presentations. I have a question for Dr. Gupta.
In your introduction, you mentioned the discussion paper you were involved in, which was put together and distributed by the Association des Médecins Psychiatres du Québec. At the end of this paper, on page 47, it says, and I quote:
While psychiatrists are familiar with the issues discussed in this document, learning to apply them in practice is an urgent priority. A training program for those physicians who wish to be involved in these cases as assessors, providers,.... members, and future teachers must be developed and readily accessible.
What does the implementation of this kind of program mean? What does it involve? How long do you feel it could take and to what extent is it as important as your document would appear to be claiming?
Dr. Gupta: Thank you, senator, for your question. The association is in fact now developing this type of training. It’s expected that it will take months to create modules on every topic we wish to deal with. Various means could be made available to psychiatrists. There will of course be certain limits given the current context of the pandemic, but they could be offered in the form of webinars, and eventually as courses. We could draw inspiration from existing training programs in the Netherlands, which are three-day classroom courses with assignments, exams, etc. Even when psychiatrists are familiar with the concept, this gives them an opportunity to further enhance their knowledge and to have exchanges with other psychiatrists. In Quebec over the past five years, the importance of mentoring in this field of practice was acknowledged, because it enasbles those who provide the care and assess the requests to have discussions among themselves about best practices and about difficult cases. That’s how skills can be improved and how a degree of harmonization in our practices can be achieved. Even though we may not have the same courses, there are variants. That’s why these kinds of exchanges are important.
Senator Petitclerc: Thank you. That answers my question.
Senator Carignan: Welcome to the witnesses.
It’s a privilege to have you among us to be able to hear what you have to say. Mr. Ménard, you’re looking well; that’s good news. My question is for Dr. Gupta and it’s about the exclusion of mental illness. In the government’s document, there is a reference to the fact that neurocognitive and neurodevelopmental diseases, and Alzheimer’s, are not included. Based on your reading of the article, when mental illnesses in general are mentioned, do you have the impression that they are clearly excluded? Does it means that a person suffering from Alzheimer’s can request medical assistance in dying, irrespective of whether there might be subsequent physical problems?
Dr. Gupta: Thank you, senator, for the question. No, I would say that the expression “mental illness” is not clear. In standard psychiatric terminology, we speak of mental disorders. It’s a very broad area. I can understand that the government would use the expression “mental illness” as a way of focusing on a more restricted group of patients, but without a list or explanation of what is included and what is excluded, I think this causes confusion. For example, in the Charter analysis document, it is mentioned that mental illnesses are mainly treated by psychiatrists. However, there is a great deal of overlap in patient treatment, whether by general practitioners, geriatricians or neurologists. A patient may have addiction problems… In fact, the vast majority of patients are treated by general practitioners and addiction specialists. Does this mean that they are included or is it considered an illness and they are excluded? I believe that there is real confusion in the expression “mental illness.”
Senator Carignan: Mr. Ménard,Do you have the impression that people suffering from mental illness are victims of discrimination at another level, given that their capacity to consent to care or medical assistance in dying will often decline earlier than their physical capacities? A person whose physical capacities decline, but whose brain remains intact, can still request medical assistance in dying. On the other hand, someone whose brain “shuts down” before there is any physical decline no longer has this ability. The criteria are stricter for those who lose their mental capacities before their physical capacities. This is discriminatory because of the different criteria. I believe that the problem could be solved through advance directives. I would like to hear your comments on this.
Mr. Ménard: It’s difficult to come up with a general categorization. What jurisprudence has taught us is that case-by-case decisions are needed. In each case, the impact of the illness on the individual is examined. Having a mental illness is not the end of the world. That’s why it cannot be a criterion for exclusion. For example, if it has been observed that the illness is impeding the capacity to consent, and that the person changes their mind several times a day and will not understand any explanations, it needs to be dealt with on a case-by-case basis. You may have two people with the same physical health characteristics, but in terms of mental health, one may be more capable than the other of reaching a decision and giving consent. If a person’s capacities have diminished, one needs to be more careful. Essentially, what we suggest in cases like that is that other assessments be obtained, a second opinion, to ensure that no mistakes are made. This prevents arbitrary decisions about people. It must not be forgotten that in countries where mental illness is accepted, a very small number of people nevertheless succeed in slipping through the cracks. In the vast majority of cases, they are not accepted immediately. For example, in the Netherlands, approximately 90% of people are not accepted on the basis of mental illness, and 10% gain access to medical assistance in dying. We might very well get the same results here. However, these people should not automatically be excluded from access to medical assistance in dying. Insofar as people are cognitively impaired to some degree, an assessment is required to determine whether they are capable of reaching a decision. Each needs to be determined case by case and a careful examination is required. I’m not sure whether I have properly answered your question..
Senator Carignan: Thank you.
Senator Dalphond: My question is for the two legal experts, Messrs. Ménard and Leroux.
By excluding an entire class of people, specifically people suffering only from a mental illness, the government is telling us that the act wishes to protect a group of vulnerable people, but what it does is automatically exclude case-by-case individual assessment because even if youre a member of a vulnerable class, it does not mean that you yourself are vulnerable.
Mr. Ménard: That’s correct.
Senator Dalphond: You’re repeating what Judge Baudouin said. Many senators are worried about the fact that it’s a trial court decision that hasn’t been appealed. I don’t know whether you’re familiar with the Supreme Court decision of last Friday in Ontario (Attorney General) v. G, But my reading of paragraphs 69 and 70 would lead me to conclude that not being entitled to an individual assessment is a violation of section 15.
Mr. Ménard: That’s right.
Senator Dalphond: Would it be possible to have comments from both of you?
Take your time, and then take a minute and-a-half or two minutes each to answer.
Mr. Ménard: The Supreme Court is in line with what Judge Baudouin said, which is that all cases require an individual evaluation. It is misguided to collectivize the assessment of people. Each case needs to be assessed on its own merits. In this context, the Supreme Court’s decision is along the same lines as the Truchon decision. I think that it’s an important trend which will continue. This further weakens what is being proposed in Bill C-7, with the complete exclusion of mental illness.
Mr. Leroux: I would like to add that this is exactly the exercise that was done for Truchon and Gladu. The Attorney General of Canada’s argument was based on emphasizing populational vulnerability to justify the reasonably foreseeable natural death criterion. That’s why so many psychiatrists gave evidence to explain the concepts and their points of view with respect to populational vulnerability, which was rejected by Judge Baudouin. When I was preparing myself for the trial, I read all of the Senate and other debates. Ultimately, the then ministers of health and justice had justified the inclusion of the criterion to exclude mental health from medical assistance in dying. An attempt was then made to discriminate indirectly by adopting the natural death criterion. As this did not work with Judge Baudouin, we are now assuming discriminatingand admitting that the goal is to exclude this population by labelling it as vulnerable, but what we have learned from Judge Baudouin is that this criterion can definitely not be used to limit access to medical assistance in dying. Individual assessments take primacy. I do not believe that there is anything to debate, and it is obvious to me that if the bill is adopted as is, it will be open to a constitutional attack. With good arguments, I’m certain it could happen, and the outcome would probably be successful.
Senator Dalphond: Thank you very much.
Senator Martin: Apologies for my late arrival. I didn’t get to listen to your testimonies in full, so my questions are only for Dr. Gupta who responded to Senator Petitclerc. I had some questions about something you said.
It’s related to the training modules that you said are being prepared and that due to the pandemic situation, there could be delays. You cited the Netherlands as an example of that training — and the Netherlands and Belgium are the only two jurisdictions that we’ve heard reference to — and it’s a three-day course with an exam at the end.
Dr. Gupta, I’m having difficulty accepting that a three-day course with an exam would be sufficient to train professionals that are dealing with death and ending a life, considering how complex and how different from the Netherlands so many of the cases will be. Canada is a more diverse country, so when it comes to all the cultural sensitivities, the different ethnocultural groups we have across Canada and the rural and urban divide; as a country, we are complex and different.
I’m trying to understand how this would be sufficient and who is preparing this. Who is preparing these modules, and in what ways have you accounted for diversity and the kinds of considerations that we must have in Canada?
Dr. Gupta: Thank you for the question. You are absolutely right. It’s excellent, actually, to raise these important considerations that should be integrated not only into training specialists concerning the practice of MAID, but concerning all of our practices now. We must be much more attentive to diversity inclusion than we have been up until now.
To be clear, the initiative comes from L’Association des médecins psychiatres du Québec, which is the Quebec psychiatry association, and we have already put together a discussion paper on this topic. We want to move toward the next phase, which is providing training to psychiatrists about MAID practice.
It’s important to recall that psychiatrists can already act as the second physician in MAID assessments. It’s important, whether or not the bill passes with the exclusion clause, that psychiatrists have some training in this area. The number of days of training I mentioned is an example from another country, but you are right. Is that the right amount of time for a course? Should it be longer? Should it be in a different form? Should it be longitudinal? These are all good questions, but we are at the beginning of this process, and we haven’t developed anything yet. We are just starting to think about what we need to do to put something in place. This feedback is invaluable.
I do want to say that the kinds of topics we would cover in a course, with respect to the MAID practice, is the bread and butter of psychiatry. Addressing suicidality, capacity and suffering; these are things we do every day in our clinical work. The value added of a course is to transpose that into the MAID context.
Senator Martin: Thank you. It’s a new area for all of us because this law is not that many years old. I remember the Bill C-14 debate. You were in the process of developing modules that should be offered to everyone across the country, but it seems it’s still in progress so we’re not quite ready for this to become law and for this to be available to everyone.
I’m a bit concerned about the timing and the readiness based on what I’m hearing, but thank you for the good work you are doing. I hope these will get developed and that they will be effective.
Senator Cotter: Thanks to each of you for your presentations, which I found to be insightful and helpful.
My own background is in law, but unlike Senator Dalphond, I’m not going to ask questions of Mr. Ménard or Mr. Leroux. I appreciated your comments and answers to his questions. My questions are similar to the ones that have been raised by Senator Martin, but perhaps with a bit more precision, Dr. Gupta.
I have been reading as fast as I can the report to which you referred, and it’s proving to be, at least for me, insightful. But it leads me to the question of whether or not — if we could set aside the exemption for a mental illness — we could move in an expeditious way to make it available in accordance with the best practices of psychiatry. As far as I can tell in the report you identify, the report itself doesn’t try to produce practice guidelines in this area, and it encourages the development of precise safeguards. The report refers to some of the other countries that have done that. My first question is about the degree to which, in your view, those would be needed and how quickly they could be put in place.
I mention that in the context of a recommendation we received a couple of days ago from another presenter, which was to the effect that we should include mental illness or mental disorder within the entitlement to MAID in this bill, but suspend its operation for a period of time so the preparatory work can be done. The suggested time period by that witness was 12 months. Can I have your thoughts on that?
Dr. Gupta: Yes, thank you, senator. There were a number of different issues there, so I will try and make sure I hit each one.
It’s a technical, medical reason why we said that the document is not practice guidelines, because in our field the practice guidelines have to meet certain criteria in order to be considered guidelines, and we didn’t meet those. We didn’t want to be mistaken as passing off our work as practice guidelines when it didn’t fulfill the criteria.
It is also very much a first recommendation. This is how we could organize things if we were to provide MAID to this group of patients. It also takes into particular account the specificity of how MAID practice is done in Quebec, which is a bit different from the way it is done in other parts of Canada. We call for an administrative office to coordinate care, we talk about authorities in Quebec, et cetera. It very much is part of that context.
I think the government wishes to have a single regime in Canada, and obviously we have done some work on this. I think the Canadian Psychiatric Association is at this time doing work on this same question. Twelve months seems like a reasonable period of time for jurisdictions to think through the questions, work together, share information, and perhaps on the government side, to think about whether there are specific things that need to actually be in the law, as opposed to being left to practice guidance or practice standards.
I think that 12 months, 8 months, 13 months — we could debate about that. What is interesting about the suggestion is that it recognizes that people with mental disorders should not be excluded or that there is no legitimate reason to exclude them, but it simply says, let’s give us ourselves the time to do things and organize things properly.
Senator Cotter: I have a slightly harder question, Dr. Gupta, that is not as easy to meet or answer. You do say in the report that:
Physicians cannot properly assess a patient’s eligibility if the patient has not received or has not had access to appropriate care.
And various aspects of that. Then it goes on to say:
Before becoming eligible for MAID, an individual should have tried all the therapeutic options that are acceptable to him or her.
This raises a much bigger question in terms of availability of such therapeutic care. I’m wondering to what extent you would see that standard as of today, and perhaps for some very long time in some parts of the country, prohibitive in terms of access to MAID if the standard is that you have to have had all therapeutic options made available to you?
Dr. Gupta: In this part of the report we are trying to find a balance between ensuring that people have been offered and attempted appropriate care for their problem — and excellent care for their problem — with what they are able to endure and continue to try, given the history of their condition. Obviously, nobody can be forced to take something they don’t want to take, nor did we want to build in the idea that to have MAID you should be forced to take things that you don’t want to take or to try.
Obviously, you have read the document. The kinds of considerations that we think ought to be brought to bear on the questions of incurability and irreversibility mean that we are talking about patients who have been ill for decades, and have indeed over the course of that time tried many different kinds of interventions. Having fortunately met very few of these patients in my career, my personal experience as a clinician is that most have actually had access to a range of treatments. That doesn’t mean there are not more things that could be tried or suggested, or that new developments ought not to be proposed. They ought to be. I don’t see it as prohibitive because when we think of who could realistically be eligible, we are talking about people who have been under the care of specialized psychiatric teams for years and years.
Senator Cotter: Thank you, that’s very helpful.
Senator Dupuis: Dr. Gupta, on the same question, did I actually read the following in the French version?
Before becoming eligible for MAID, an individual should have tried all the therapeutic options that are acceptable to him or her.
Is that really it? Okay. Does this imply that a person’s wish to refuse certain forms of care is complied with?
Dr. Gupta: Yes, precisely. What I was telling the senator was that we tried to strike a balance. You can’t say that someone is eligible after having tried only one or two treatments, but at the same time, you can’t force people to accept treatment, particularly in view of the population that might be eligible. The people we’re talking about have been undergoing treatment for decades; no one is being forced, and we did not want that to be a condition.
Senator Dupuis: Welcome Mr. Ménard. My question is for Mr. Leroux. Mr. Ménard, you clearly explained your position on mental illness as the only condition that ought not to be excluded because it would be discriminatory.
My question is as follows. Have I properly understood Judge Baudouin’s position in the Truchon decision as a judgment that applies the Supreme Court’’s criteria in Carter? I’m asking because we received many comments about the fact that it was only a trial court decision. Did I properly understand from the Baudouin decision that the judge was trying to interpret the Carter decision more strictly?
Mr. Ménard: Judge Baudouin sticks very closely to the Carter decision. She says clearly that what the Carter decision said was itself very clear and that it also applied to Mr. Truchon and Ms. Gladu. She did not see any reason to stray from it or to rule otherwise. In Carter, the intolerable suffering of patients was the court’s decision criterion.
The criterion was sufficient to qualify people for medical assistance in dying. She applied the test properly and didn’t have to go beyond that — and she did not. She simply brought the discussion back to within the boundaries of the Carter decision, and not the boundaries of Bill C-14.
Senator Dupuis: When reintroducing the criterion in Bill C-7 before the committee, Minister Lametti said it was no longer an eligibility criterion, but rather a way to access services… My question is the following. By reintroducing an artificial distinction between “end of life” as opposed to “not end of life,” or between “reasonably foreseeable death” as opposed to “not a reasonable foreseeable death,” does this also amount to a form of discrimination?
Mr. Ménard: Yes it does, because we are dealing with two different groups who have different rights. The rights of one group are obviously not the same as the rights of the other. People whose death is not foreseeable have fewer rights and experience more difficulty in asserting their rights. It also assumes that all these people are vulnerable, when this is not the case. The vast majority of people whose death is not foreseeable are not vulnerable. Mr. Truchon and Ms. Gladu were not vulnerable, even though their death could not be foreseen within any particular time period. Even if this is not made a condition for access to medical assistance in dying, the fact remains that conditions are being set for such access.
This criterion was also never defined in 2016 when we were discussing it. Likewise when it was discussed in the House of Commons and the Senate. We couldn’t come up with a precise definition, and all kinds of waiting periods were established, and these depended on who was doing the selection.
So it’s not really an operational criterion. In other words, from the legal standpoint, doctors don’t see how it relates to what they do. They’re asked to apply it, but it’s a meaningless criterion, or one that can mean whatever you want it to mean.
Mr. Leroux: I would add that we’re in a period of constitutional exemption. In Quebec at the moment, people can claim an exemption. But in the field, doctors have trouble interpreting the criterion to determine whether or not an exemption is required in certain cases. Some situations have arisen in which there was a misunderstanding between doctors in determining whether the patient was entitled to a constitutional exemption, because there was no agreement about the criterion. It therefore remains very difficult to apply.The situation is very concrete and we are currently encountering it on an everyday basis.
Senator Dupuis: This was also confirmed to us by the Federation of Medical Regulatory Authorities of Canada. The criterion is so vague that it is impossible to regulate.
Thank you very much, Messrs. Ménard and Leroux
Senator Keating: Thanks to the witnesses. Mr. Ménard and Mr. Leroux, the government maintains that the absolute exemption for people suffering from mental illness is justified from a constitutional standpoint. We also heard some witnesses tell us that the exemption was not constitutional, but that it was saved by section 1.
On behalf of all members of the committee, I would like you to explain which criteria could be established, and whether they would allow a person to successfully invoke the application of section 1. Before you answer, I would like to point out that I fully agree with you. I would nevertheless appreciate it if you could give us details, for the benefit of the committee.
Mr. Ménard: I believe that it would be very difficult to reconcile this criterion under section 1. Once again, it is an arbitrary and vague criterion that allows anything or nothing at all. Applying this criterion therefore gets us nowhere.
The best criterion that could be applied would be, as Judge Baudouin indicated, to give doctors authority to assess each case on its own merits. They know how to assess patient capabilities, and whether a patient is capable or incapable. When cases are very difficult to determine, a second opinion should be obtained in support of or against the initial decision and that’s all that’s required.
Other safeguards are both important and burdensome, and these are not being challenged. What we do is conduct individual assessments, and these assessment are the basis for determining which patients are given access. It’s not a matter of requiring a waiting period, because nothing changes with respect to which persons are selected when another period of 90 days or longer is imposed before they can know whether they will have access to medical assistance in dying. If they can have access from day one, freely and without the imposition of a penalty that causes them intolerable suffering for another 90 days then I think it’s a matter of balance.
Senator Keating: I was only asking about the total exemption for mental illness.
Mr. Leroux: If there were a legal challenge, whose intent was to conclude that a criterion runs counter to the section 1 analysis, then very humbly, I think that overwhelming evidence should be required to demonstrate that doctors are not able to assess the capacity to consent. That is the only way to counter section 1. History tells us that the Carter decision, after a mammoth trial and lots of expert evidence, came to the conclusion that physicians are capable of measuring capacity. The same conclusions were reached in the Baudouin decision.
As for the organization of consent to care, people with mental health problems go to court every day and ask for a care order, and the doctors are able to assess their capacity to consent. That’s the only way to get it. After the trials I’ve seen, and the Carter Decision, I cannot see how a conclusion like that could be reached if similar sorts of evidence were presented.
Senator Keating: Thank you very much. I could not see that either.
Senator Kutcher: I want to thank the witnesses for a refreshing display of expertise and clarity in communication.
My first question is for Dr. Gupta. As a psychiatrist, you are highly trained in assessing a patient’s decision-making capacity. Indeed, that includes cognitive and emotional factors, as well as suicidal intent. So you are able to distinguish between a suicidality — a wish to die by suicide — and a decision to undertake MAID. You do this kind of assessment on an almost daily basis regarding refusal to accept treatment and involuntary admission, et cetera.
Do you think that a properly trained physician who is not a psychiatrist can improve their existing competencies, through a fulsome educational program, to assist them to become better at doing full decision-making competency for MAID?
Dr. Gupta: Thank you for the question.
In short, absolutely. In our field, as you well know, practise makes perfect, so the more we do, the more we exchange, the more we learn and the courses we attend, the better we get. Yes, we all have a common discipline in medicine — we branch off into specialties later on — but there is a lot of overlap in our work. Every day, I see family physicians doing excellent work on mental health care. In fact, most psychiatric care in this country is done by family physicians, so physicians from different disciplines can certainly acquire these skills through practice and training.
Senator Kutcher: Presumptively there would be no substantive argument to be made that physicians can’t apply the very careful assessments needed to determine a patient’s decision-making capacity then, because they are essentially trained to do that.
Dr. Gupta: I think some physicians do less of it than others. In theory, we all do it for the treatments that we ourselves propose. A dermatologist knows how to assess capacity for a dermatological treatment just as a psychiatrist knows how to assess it for a psychiatric treatment.
When it comes to high-stakes decisions, there are disciplines that don’t work with those kinds of patients, so they are not used to doing that work. But if they were to become involved in MAID assessments, yes, I believe it’s possible to learn how to do that kind of work.
Senator Kutcher: Do you think that physicians who choose to become involved in MAID assessments would have the interest and skill sets to develop those competencies, to be able to do an appropriate job at it?
Dr. Gupta: Absolutely. The clinical community has been crying out for more training in MAID, end-of-life care and a variety of domains where we, as practitioners, now that we’re in practice, didn’t get enough of when we were in training. So not only could it be successful, but there is a desire on the part of clinicians to have more. That’s why you see groups like the Canadian Association of MAID Assessors and Providers organically developing so that they can teach each other, learn together, develop competencies, share new knowledge, join together to do new research, et cetera.
Senator Kutcher: I heard earlier that a three-day training program might not be sufficient. You didn’t say it had to be three days; it could be whatever is necessary.
But are you aware of other continuing professional development programs that teach competencies to physicians that can teach the required competencies, whether it’s airway management or specific surgical procedures, which require incredibly competent interventions, in a course of three days or so?
Dr. Gupta: Yes, absolutely. Physicians learn things like advanced cardiac life support in one day. They might learn, like you said, advanced management of airways in half a day or a day, for example.
I think some of these things are cultural, right? People can only get away from their practices for so long in order to do these courses. Also, we shouldn’t think of training as something that happens at one point in time and isn’t revisited. Training is something that continues. When you’re a health care professional, it’s an ongoing process. Something like a course is really to equip you with the basics. Then you’re meant to go out into practice, apply them, see what you know, what you don’t know, go back, learn more, learn from your colleagues, ask questions. This is the process of lifelong learning that all physicians now participate in as part of our membership, whether it’s in the Royal College of Physicians and Surgeons or in the College of Family Physicians or in the Collège des médecins du Québec.
Senator Kutcher: Thank you very much, Dr. Gupta. Much appreciated.
Senator Pate: My question is to Dr. Gupta. In light of the realities we’ve seen very clearly laid bare during this pandemic, and despite the assurances in Bill C-7 that doctors will be required to provide information about the availability of services, the lack of services is a huge issue. Certainly disability groups have raised the concern that this essentially limits the choices of those who are reliant on those systems that are virtually non-existent. I’m curious how doctors are addressing this and how the fact that access to non-existent services is actually no access at all. How would you suggest this be remedied in terms of the legislation?
Dr. Gupta: Thank you, senator. That’s an excellent and difficult question. I want to say that the role of doctors in this should happen at two levels, and it does happen at two levels. The first level is an organizational level as groups are asking the government to commit resources on specific projects, doing research to expose areas where there are gaps in services and what the benefits of those services are.
There’s also the work we do every day with our individual patients, when we meet people who don’t have what they need. It’s advocacy for them. It’s leaving no stone unturned in order to try to access what they need for themselves.
As it was with palliative care and Bill C-14, and the act concerning end-of-life care in Quebec, this is an opportunity for governments to show leadership in the prioritization of mental health services, and to make a serious investment and commitment to ensuring that people get what they need. Allowing MAID does not exclude providing good or even excellent care to those who need it. I see this as an opportunity in the bill, and for the government, to undertake this very important process. If, indeed, something like the 12-month time period is provided in order to organize yourselves, it’s an opportunity for provincial governments to also improve the quality of their commitment in this particular area.
Senator Moodie: Thank you, madam. My question is to Dr. Gupta because I want to carry Senator Kutcher’s thoughts just a little deeper. My question will be based on the premise that we believe that we should keep mental health as a primary diagnosis in the bill and not go along with its current exclusion. It’s around practitioner knowledge base, practitioners’ skills, and about the standards that can be developed to support this activity.
We’ve learned that, across Canada, this activity will be carried out by practitioners from very different backgrounds and levels of expertise. Some of them have gaps in knowledge and training at this current time. Some work in an isolated way; they serve large populations, potentially alone. These practitioners could be, as we pointed out, nurse practitioners, family practitioners. Certainly many are not specialists, and they would be charged with the challenge of understanding whether there is medical certainty around this diagnosis, and does this particular patient meet the criteria for MAID?
We would agree that access to the appropriate training is possible. You talk about the Quebec model that’s in place. You have even mentioned that this might become a national model.
What is the work that’s already in place that could potentially operationalize a clause that was perhaps a sunset clause? That clause could keep mental health as a diagnosis in the bill. It could seek to provide the right training, the right framework, the right standards and the right access to the appropriate training, to provide medical certainty around mental illness diagnosis. It would be something that would make the individual witnesses and others who have raised concerns in this area feel more comfortable that we’re accomplishing supports for practitioners. It would show that this could actually be operationalized in a safe way and in a way that was standardized, predictable and to some degree informed, and that there was access to escalation in expertise, if needed, by front-liners who may be quite isolated in their practice.
Dr. Gupta: Thank you, senator.
Senator Moodie: A system-wide approach is what I’m talking about.
Dr. Gupta: That’s an interesting and complex problem in a country with many different health care systems that are run by the provinces, and many different regulators as well and, of course, many educational institutions where people have their primary affiliations.
The first principle I want to share is one that all practitioners adhere to — we’re expected to adhere to it ethically and also from a regulatory perspective — which is that we should not be practising beyond our scope of practice. Somebody who does not have skills or knowledge to practise in a certain area should not be, on their own, going and doing any kind of clinical service, MAID assessments or otherwise, unless they have received training or have appropriate backup and support. Hopefully people would not find themselves in a situation of being asked to do something they are not able to do.
I want to say a little bit about Quebec. First, I want to just reiterate that there is nothing in place yet in Quebec for training. It’s something that’s in our minds that we want to start developing, but it doesn’t exist yet.
I want to say something about an interesting development that took place when Quebec’s act came into force, which was the leadership that was shown by the regulator. The regulator is a really important actor in this story because all physicians must be members of the regulatory authority, and the regulator has not only regulatory authority but ethical and moral authority.
The regulator actually took it upon itself to develop training materials, a course, mentoring, et cetera. This became a way for physicians to learn, but also know that what they were learning was being approved of and considered appropriate practice.
In this debate there’s really a role for FMRAC, whom you’ve already heard from, and for the provincial regulators to work together through FMRAC to develop standards that are not only good practices but also have that authority behind them, because we all have to belong and we all have to do what is required, and those bodies act in the public interest. It seems to me to be the ideal organization to take on that role.
The last point I want to make in terms of practising on the ground is this, and I see this every day in my own practice. One of the few good things about the pandemic has been the rapid and swift turn to telemedicine. It can’t be used for everything. It’s not perfect, but it has provided access. It has provided consultation, backup and support to people who could not have accessed specialty consultation, support from colleagues or even simply their appointments before the pandemic. We’re just at the beginning of learning how useful a tool this can be, breaking down, finally, some of the real barriers that people in isolated communities or in communities with low staffing can face by taking greater advantage of this technology. It’s in place, it’s functional, and I think it could serve this particular project quite well.
The Chair: There are a number of senators who have questions, but we have a problem. We have to get a change of interpreters because we’ve been going for a long time today, and the place needs to be sanitized. I’m forced to stop now, but I want to thank you all, senators, for your patience.
Thank you for being here today Dr. Gupta, Mr. Ménard and Mr. Leroux. You have certainly provided a great deal of information. Thank you for the work you are doing and for helping Canadians.
Minister, thank you very much for making time for us today. We are very much aware that you are probably one of the busiest ministers during this pandemic, and even so you have made time available for us. I want you to know that’s not lost on the committee. Thank you very much. With all the challenges you have on your time at the moment, you made time available for us and we appreciate that. Thank you.
Minister, I want to take a few minutes to present to you the members of the committee, and many other senators who are participating. The members of the committee are Deputy Chair Senator Campbell and Deputy Chair Senator Batters; Senator Boisvenu; Senator Carignan, who is the critic of the bill; Senator Cotter; Senator Dalphond; Senator Dupuis; Senator Keating; Senator Kutcher; and Senator Petitclerc, who is the sponsor of the bill. We also have two of our leaders joining us, Senator Gold, who is the government leader in the Senate; and Senator Martin, who is the deputy leader of the Conservative Party. She is also a member of this committee. We also have other senators who are here listening as well: Senator Pate, Senator Moodie, Senator Miville-Dechene and Senator Lankin.
Minister, I know that my colleagues have a lot of questions for you, so I will have you start now and then we will get on with the questions. Thank you, minister.
Hon. Patty Hajdu, P.C., M.P., Minister of Health, Health Canada: Thank you very much, senators. Thanks for all of your support and your work during this very difficult time. I just want to say that this is really a time for a Team Canada approach in terms of COVID-19. I appreciate the kind comments.
I am here because I think Bill C-7 is a very important piece of legislation for many Canadians. I wanted to speak a little bit about the bill and share the government’s plans and considerations on this important issue that, as we know, touches the lives of so many.
At its core, the September 2019 Truchon ruling is about fairness, compassion and respecting the rights of Canadians. In that spirit, the proposed amendments in Bill C-7 go beyond a literal reading of the Truchon decision. They would reduce barriers to access and address some procedural requirements in the original legislation that have had the unintended consequences for people nearing the end of their lives. As Minister of Health, it’s my firm belief that the changes we have proposed in the MAID bill will expand freedom of choice for people who are suffering intolerably, and for whom there are no treatments or supports acceptable to them that could improve their condition, but for whom death is not foreseeable. At the same time, we want to ensure that our most vulnerable citizens are protected. For that reason, we have strengthened safeguards to protect those individuals while respecting individual autonomy and choice at the core.
Over the course of January and February of this year, the Government of Canada conducted an online survey to ensure that the federal framework on medical assistance in dying was informed by the current views and needs of Canadians. I have to say, the response astounded us. More than 300,000 people completed an online questionnaire on a range of issues related to the expansion of the eligibility requirements and the introduction of possible safeguards. This high level of engagement and response really speaks to the importance of this issue to Canadians.
In addition to the public survey, Ministers Lametti, Qualtrough and I, along with Parliamentary Secretaries Virani and Fisher, held 10 expert round tables in 8 cities across the country to discuss Canada’s medical assistance in dying framework. In total, we met with over 125 individuals. This was a diverse group of stakeholders representing a diverse group of expertise and perspectives from the fields of health, law, ethics, social sciences, over 50 health care providers, physicians, nurses, social workers, medical and nursing regulators, and health professional organizations, as well as over 15 individuals who participated on behalf of organizations representing people with disabilities. One of the round tables focused on the views of First Nations people, including Indigenous health professionals who expressed their perspectives on medical assistance in dying. It was a robust consultation process. I have to say, I am deeply grateful for the perspectives shared in those consultations, often deeply personal, often professional and personal, which is why I can state with confidence that the provisions in Bill C-7 reflect the views of Canadians who have been actively engaged with this subject.
Medical assistance in dying, as I’m sure you have heard through your deliberations, is a difficult topic, but also one that sparks heartfelt and thoughtful debate. We really saw that during the discussions in the chamber through the second reading and in the testimony delivered by the witnesses to the Justice and Human Rights Committee. Some people believe that the proposed amendments go too far. Others insist that they don’t go far enough. But the government believes that this bill does present a prudent and measured approach.
Let me first turn to the topic of safeguards, and the rationale behind the one safeguard that we removed and the one safeguard that we adjusted. During the consultation period, we consistently heard from clinicians and patient advocates that the 10-day reflection period was not fulfilling the original intent of protecting vulnerable individuals. Rather, this reflection period served only to prolong suffering for individuals who had already considered their circumstances very carefully, and who had already taken significant time to reflect on their decision long before even formally requesting medical assistance in dying. As a result of these reflections and feedback from Canadians, we have removed this requirement in the case of people whose natural death is reasonably foreseeable.
We also learned that, in some cases, the requirement for two witnesses posed a barrier to access, particularly for individuals in care facilities, who often have social networks that are very limited. The only role of a witness is to confirm the identity of the person signing and dating their requests. Witnesses play no role in determining whether someone is eligible for MAID or whether their decision is voluntary and informed. For this reason, and after careful consideration, we amended this provision to require one witness. We are again confident this change does not pose any additional risk.
We have also introduced a number of new and strengthened safeguards to protect people who are not near the end of their life. There is a widely shared concern that some vulnerable individuals who are not dying may request medical assistance in dying during a moment of weakness, or as a result of direct or indirect pressure they are feeling, or in the aftermath of a catastrophic event that adversely affects their health, their life path and prospects. For people who are not near the end of life, the assessment of a request for medical assistance in dying can be more challenging and require more in-depth consultation. That’s why the bill requires a 90-day assessment period.
This means there must be at least 90 days between the day the practitioner begins their assessment and the day on which medical assistance in dying is provided.
This safeguard was added to ensure that enough time is devoted to help a person explore all relevant aspects of their situation without unnecessarily prolonging a person’s suffering. This is a minimum period. In some cases, if an individual’s situation is more complex or requires more time, the clinician can take more time, as necessary, to undertake an appropriate assessment.
The bill also includes a requirement that the person requesting medical assistance in dying be informed of available counselling services, mental health and disability support services, other community supports and palliative care, as appropriate to the individual’s situation.
Ensuring that a person has been offered and has seriously considered the relevant and available options is essential to their informed consent to MAID, and protects against individuals consenting to MAID due to wrong or missing information about options.
To further strengthen the protections for people who are not at the end of their life, the bill includes a requirement that one of the two MAID assessors would be required to have expertise in the condition that is causing the person’s suffering. However, we have heard concerns about access challenges this requirement might pose, especially in rural and remote regions, where the availability of providers with expertise for rare and complex conditions may be limited.
An amendment to this provision has been proposed by the Standing Committee on Justice and Human Rights. In cases where neither of the MAID assessors has the necessary expertise, one of the MAID assessors would be required to consult with another practitioner with that expertise. We believe this is a practical adjustment to the provision that still preserves the intent of the original proposed safeguard, which is to ensure the comprehensive assessment of the person’s condition, and consideration of all the relevant measures and supports that might alleviate that person’s suffering.
During our consultations, we also heard from individuals, families and health care professionals about situations where an individual nearing the end of life has requested and been found eligible for MAID, but is concerned about losing capacity to consent to MAID before the preferred date of the procedure. That date, of course, reflects their wish to live tolerably for as long as possible. This describes the situation of Audrey Parker, who opted for MAID provision earlier than she would have wanted for fear that her metastatic cancer would cause her to lose capacity to give final consent.
The overwhelming majority of individuals and practitioners consulted on this topic were in favour of permitting what we now refer to in the bill of a waiver of final consent in these situations.
Some of you might wonder why the waiver of final consent would not also be permitted for persons whose natural death is not reasonably foreseeable. Conceivably, people in this category could also lose the capacity to consent. Experts and stakeholders have raised concerns that allowing the option to waive final consent to persons whose death could be years into the future, could amount to permitting an advance request.
We know that many Canadians believe and indeed want our MAID regime to include an option that allows people to make advance requests for MAID. It was a call repeated over and over in the conversations we had with Canadians and via the feedback we received.
However, the government, on the advice of experts, practitioners and stakeholders, feels that more in-depth examination and consultation is needed before a framework for advanced requests can be developed and implemented. This is why we chose to defer the issue and recommended its examination during the parliamentary review of the MAID legislation.
This is also the route we chose to take with respect to eligibility for medical assistance in dying for those whose sole underlying medical condition is a mental illness. We feel this eligibility in this situation is best discussed when there is more time to consider this complicated situation, all the issues and the evidence.
Let me clear: This was not an easy decision, and it was not taken lightly by the government. It should also not be interpreted to suggest that the government considers suffering from mental illness any less painful than that of physical illnesses. This decision was based on the concerns raised by practitioners, mental health organizations and experts involved in the Council of Canadian Academies’ review. The issue will benefit from a more comprehensive review through the broader parliamentary review of the MAID legislation.
On one further point, the exclusion of mental illness does not mean that persons with conditions such as Alzheimer’s disease and Parkinson’s disease are also excluded from the MAID eligibility. These are neuro-development and neuro-cognitive disorders that are included under the broader term of “mental disorders.” Generally, these diseases do not pose the same type of risk, particularly with respect to assessing whether the person’s condition is truly irremediable, so they are not automatically excluded. People with these diseases, however, still need to meet the eligibility criteria, including having the capacity to consent.
Finally, I have heard the concerns expressed by my honourable colleagues and some stakeholders about people choosing medical assistance in dying in the absence of appropriate supportive care options, such as palliative care. We very much understand how important these resources are in making a truly informed choice. The available evidence does not show, though, that Canadians are choosing MAID because palliative care is not available. In fact, the findings from the first annual report on medical assistance in dying, published this past summer, indicate that the overwhelming majority of people receiving medical assistance in dying have been offered and indeed have received palliative care.
The Government of Canada is committed to improving access to palliative care so people have a change range of options when it comes to end-of-life decisions. To this end, we have made significant investments in health care services, including funding to provinces and territories to help them improve access to home and community care, as well as palliative care. As the Minister of Health, I will continue to work with the provinces and territories, people living with a life-limiting illness and their caregivers, and other stakeholders improve the quality and availability of palliative care.
Knowing that palliative care services are available is critical for people, but we should remember that even the best palliative care may not relieve the full extent of suffering some individuals will face in the latter stages of their life.
Madam Chair, the requirement for a parliamentary review is an integral part of the original MAID legislation. It will provide an opportunity to consider important and complex issues that are not included in Bill C-7, such as the advanced requests for persons newly diagnosed with a condition that could affect their decision-making capacity in the future, eligibility for persons suffering solely from mental illness, and eligible for mature minors. The Government of Canada is committed to conducting a thorough and exhaustive examination of these and other issues through the parliamentary review process.
I will conclude by addressing concerns that the changes contained in Bill C-7 go beyond what is required to respond to the Truchon decision. I appreciate this concern; it reflects the deep and abiding care that we as Canadians have for those who are sick and vulnerable, or who may feel diminished by social norms or lack of support. However, as I have outlined in my remarks, our response to Truchon speaks, on the one hand, to strengthened protections for newly eligible individuals, those who have complex health circumstances in which natural death is not imminent, while also eliminating barriers that have been experienced by those already eligible for MAID; that is, those whose natural death is foreseeable.
Ultimately, the goal is to strike an appropriate balance that sets a high bar in terms of safeguards for the first group while providing some modest relief from the impediments to access for the latter group.
Thank you very much for your time.
The Chair: Thank you very much, minister, for your presentation. With you today are Stephen Lucas, Deputy Minister; Abby Hoffman, Senior Policy Advisor; Sharon Harper, Director General of the Strategic Policy Branch; and Karen Kusch, Senior Policy Analyst of the Strategic Policy Branch. I want to thank all of you for also being here today.
Minister, I want to clarify something before I go to questions. For a number of years, Prime Minister Trudeau has said that there will always be gender-based analysis of all legislation. You have a very specific part in this legislation. Minister Lametti has said that he will provide highlights of what I imagine was given by Justice to cabinet on gender-based analysis. May I ask that you also commit to providing the committee with the highlight? I understand you can’t give cabinet confidences, but could you please provide highlights of what was collected on gender-based analysis?
Ms. Hajdu: I can absolutely remind Minister Lametti of his commitment to this committee. Certainly, it will ensure that his team will work with yours to ensure that you get the access to the high-level gender-based analysis information.
The Chair: I’m not worried about him. He will give it to us. I know that. I’m just asking: Did you do a separate gender analysis?
Ms. Hajdu: The work was collaborative with all of our agencies, so the memorandum to cabinet that comes on behalf of however many presenting ministers has a gender-based analysis that is done in collaboration with all of our departments.
The Chair: The race-based analysis, he also said he will provide highlights to it. I’m not worried. He will. But I was wondering, because of the terrible impact there has been on racialized groups during COVID — and I know you are very much aware of the impact — I was wondering if you did a separate submission to cabinet on this legislation on racialized groups?
Ms. Hajdu: When we present a memorandum to cabinet on behalf of several sponsoring ministers, the work is done collaboratively with all of our departments. Then we present the entire work together as one presenting team, if you will.
The Chair: Thank you very much for that clarification. I’m now going to the senators for questions.
Senator Gold: Minister, welcome and thank you for being here. Chair, thank you very much for giving me the opportunity to ask a question.
Minister, at the beginning of your remarks you talked about the public consultations that you conducted in early 2020 on all aspects of the bill, but in particular the criteria for eligibility, the process and rules surrounding requests for medical assistance in dying. Given what you heard from the many health experts that you mentioned, amongst others, can you elaborate a little more on the following: Do you believe that the exclusion of mental illness, when it’s the sole underlying condition, at least at this time, is appropriate until a more fulsome and comprehensive review of the framework for medical assistance in dying is conducted? Thank you.
Ms. Hajdu: Thank you very much, senator. Through the chair, I will say, the group of professionals who administer medical assistance in dying, who do the assessments and work with patients is a very small group in Canada. Secondly, they are truly some of the most thoughtful professionals I have met in my life in terms of the work that they are doing, which is, as you know, so delicate and personal. I have to thank them publicly, first, for agreeing to do that work and making having a choice at the end of a life a reality for so many Canadians. There is a deep appetite for choice at the end of life, by the way, in Canadians. This is the other thing we found through the consultations.
One thing professionals said is that they would be very uncomfortable at this point in time with mental health as the sole condition for requesting and accessing medical assistance in dying, for many of the reasons I outlined in my speech. Depending on the circumstances of the individual, of course, and the particular condition the individual is suffering from, sometimes the desire to end your life is a symptom of a condition that can be treated, and it may not be an irremediable suffering in the case of mental illness. It may be treatable. There was anxiety amongst many practitioners that it would be difficult for them to assess those types of requests without a full and comprehensive understanding of whether or not that condition had received all of the possible treatment to remediate, if you will, the desire to end your life. You can well imagine that.
I worked extensively, for example, in the area of mental health and substance use for many years. There are times, believe me, when a person feels at the worst of their illness, when they have lost everything, that there is nothing to live for and yet, with the appropriate treatment and supports, they can feel completely differently within months. That is a remedial condition. That is why we believe this area needs further research, study and expertise to truly understand how we would support people who were requesting MAID, to make sure that it really was in a situation where suffering was irremediable. Practitioners would also have the confidence that they were approving and administering medical assistance in dying in a situation where it truly was irremediable suffering.
Senator Gold: Thank you, minister. Thank you for the commitment on behalf of the government to the parliamentary review. As Government Representative in the Senate, I will be raising this with my colleagues in all the groups because I think the Senate has an important role to play. We look forward to playing that role. Thank you, minister. Again, thank you, chair and colleagues.
The Chair: Thank you. Senators who have joined us today, forward your name to the clerk and we will try our very best to call upon you as well. I will keep you to four minutes. If there is time, we will go to a second round.
Senator Martin: Minister, thank you for your presentation. I have a few questions related to palliative care and the monitoring that the government currently does.
We have seen reports in the media and heard at Justice Committee of people who were requesting MAID, due to lack of access to supports needed for living, including Sean Tagert. I know you addressed that in your speech to a certain extent. We also Minister Qualtrough directly state to the Justice Committee in her remarks that “in some places of our country, it’s easier to access MAID than it is to get a wheelchair.”
So minister, what measures does the federal monitoring system have in place to review and ensure socio-economic factors — including poverty and the lack of basic care supports for living — are not leading to people choosing MAID? It’s my understanding that the only federal monitoring measure being collected to address socio-economic factors is postal code. Is that correct?
Ms. Hajdu: I’m sorry; the question was the only information being collected is postal code?
Senator Martin: That the federal monitoring measure to address socio-economic factors is postal code, but what measures does the federal monitoring system have in place right now?
Ms. Hajdu: Thank you for the question. There are some misconceptions that we are only collecting postal codes. In fact, we have learned a lot through the data submitted by MAID providers and assessors about their experiences, about the changes that they would like to see and about some of the challenges that people have had accessing MAID. In fact, one of the highlights of the data collection is the challenge in accessing MAID across the country. As I highlighted in my earlier comments, the fact that we have so few practitioners who are willing to do this in the country — it is a choice, by the way, that practitioners have to choose to become MAID assessors and practitioners — means it can be very difficult to access MAID in certain parts of the country.
We have heard the opposite, that this is not an easy service to access, especially for people who are further away from larger cities, for people who are living in rural and remote communities, who have a hard time accessing health care in general.
In terms of the proposals in the legislation, we’re proposing that we would actually strengthen collection of data so that we get an even better understanding of the assessments: who has been assessed and chosen not to follow through, for example, including any requests that are not being put in writing; preliminary assessments undertaken by any other health professionals, including nurses who may not be the people that can provide the approval but who are doing some of the preliminary assessment. This will help us get a better sense of the entire picture of medical assistance in dying requests from the very beginning, the conceptualization if you will, of someone exploring this with a health care professional, to people who have explored the approval process and have chosen not to go ahead.
Once the bill is passed, consultations will take place with key stakeholders involved with MAID and MAID reporting, and we can get a better understanding of the full picture. But I will say the data regime that was originally included in the medical assistance in dying has provided us some very valuable insights in terms of — in particular from my perspective — the unequal access to the service itself.
Senator Martin: Just on that then, in terms of a person initially asking for MAID, are there stop mechanisms in place? If there is a red flag that perhaps that person has had a lack of access to care and other options? If that information is discovered, what sort of stop mechanisms are there?
I understand MAID reporting is only viewed retrospectively. I’m curious. If someone is on track to receive MAID, how do we measure along the way and ensure that we’re giving every opportunity for this person to reflect? Some of the safeguards that are proposed to be removed by Bill C-7 are very concerning as well.
Ms. Hajdu: First of all, I’ll start with, again, my reflection on the very few practitioners in Canada who are providing medical assistance in dying and the deep thoughtfulness in which they approach their work. This legislation actually strengthens the work that, in many cases, they’re doing informally anyway. The thoughtfulness of the practitioners to ensure that the people they are working with have access to services in the community, and fully understand what supports are available, are connecting people to palliative care is indicated by the data that we actually do have on MAID recipients and their access to palliative care. The majority of individuals who received MAID, 82%, were also reported to have received palliative care services.
The legislation strengthens safeguards, especially for those folks who are on the second track without reasonable, foreseeable death in the near future, by ensuring that there is an obligation on the provider to explore all available services, including psychosocial supports for people who are struggling with irremediable suffering, but who are not looking at an immediate death.
I’m comfortable that the legislation actually covers the kinds of concerns that you’re having. At the root of it, you are asking if people are fully supported to live the most fulfilling and pain-free lives possible, so that MAID doesn’t end up becoming their alternative to a lack of services. That’s kind of what I’m hearing in your question.
This legislation actually strengthens the obligation on providers in the cases of people living with irremediable suffering but not a reasonably foreseeable death. It strengthens the obligations on those providers to do a thorough approach to ensuring they understand the supports, that they’ve been able to access those supports, and that those supports are fully understood by the person who is pursuing medical assistance in dying.
The Chair: Senators, I erred. It’s not four minutes with the minister, it’s five minutes. Sorry.
Senator Martin, your five minutes have elapsed.
We’ll now go on to the sponsor of the bill, Senator Petitclerc.
Senator Petitclerc: Thank you very much, minister, and to your team, for being here with us today.
My first question is about the amendment that was tabled and adopted yesterday. I am well aware of the fact that tomorrow we will be hearing minister Qualtrough, who will speak to us about it.
The amendment was moved by Paul Manly In response to information received from organizations like Inclusion Canada and Inclusion BC. The amendment said that In the exercise of her responsibilities under subsection (3), the Minister of Health shall where appropriate, consult the minister responsible for persons with disabilities.
You mentioned earlier that some groups were worried about the fact that for those whose death is not reasonably foreseeable, it was essential to ensure that they were protected and not put in a vulnerable situation. How do you envisage this amendment in practice? Do you think it will provide additional protection that could make a difference?
Ms. Hajdu: Thank you very much, and I appreciate that. At the end of the day, what we’re trying to do is strike a very delicate balance.
I do appreciate, Madam Chair, the senator’s willingness to sponsor this bill. It’s particularly powerful, given her own personal experience because, of course, there are a lot of voices speaking for people with disabilities. There are as many perspectives as there are people living with disabilities. Sometimes that gets a little bit lost in the argument, but it is an important one.
I want to answer your question, but I want to tell you why I feel that it’s important that we get this balance right.
One of the most powerful constituents we heard through our stakeholder consultations was Ms. Julia Lamb. You may know her story. This woman has a significant disability. She said: Look, just because I have a disability does not mean that I should not have the right to access medical assistance in dying if I want to.
It was very powerful. She said the safeguards have to be right. Obviously we want to make sure that people who are living with disabilities have the full right to inclusion, the full right to dignity, the right to the supports and services that give their life meaning and purpose and full inclusion. But part of that right is also choosing if they want to continue with irremediable pain.
I found that a very important perspective and one that was kind of lost out in the wilderness, if you will, but very important to remember as we’re deliberating.
It’s important also, though, that we realize that people with disabilities sometimes don’t have the same power and autonomy for self-representation, depending on their particular disability, depending on their own socio-economic location, depending on the region of the country they live in. That’s why it’s important we get this balance right. There is an opportunity to strengthen our work in terms of the supports that we have in place for people with disabilities.
You know that Minister Qualtrough has been doing a lot of that work with advice from you and many others. We have a long road to go for the full inclusion of people living with disabilities, especially those people who are further away from supports and socio-economic inclusion as well. I think what we’re trying to do is strike this balance between a paternalistic approach, that can actually decrease people’s choice, with the protection for people living with disabilities, especially those most vulnerable ones.
I don’t know if that answers your question.
Senator Petitclerc: Yes. Thank you very much.
Senator Carignan: Thank you minister, and I would like to thank your staff members, who answered my questions by providing information about the federal government’s funding to the provinces, particularly for palliative care.
I will admit that I was surprised by how little funding the federal government provided for palliative care. To explain some of my personal background to you, I help a palliative care home whose budget is $1.4 million, and every year, it comes up $650,000 short. This means that we have to run a fundraising campaign every year for this palliative care home.
I am also interested in the federal government’s funding, per bed, and per care home, in each province.
British Columbia receives $12.8 million from your department, which finances approximately 13% of needs for 74 beds, while the province needs 500 beds. Manitoba receives $2 million, the equivalent of 12 palliative care beds, while the province needs 140 beds. In Alberta, there is funding of $8 million, which represents approximately 10% of the required 47 beds.
How can you say that you’re helping palliative care homes and that people will have a real option when doctors tell them that they can opt for palliative care, when so few palliative care beds are available and there is so little support from government for palliative care homes? I include the provincial governments, but am mainly addressing the federal government. At the moment, for the home that I support, 53% of refusals are because of a shortage of beds. I would like to hear what you have to say on this matter.
Ms. Hajdu: Thank you very much, senator. First of all, let me just remind you that through Budget 2017, $6 billion was invested on top of the health care transfers to provinces and territories, specifically to include home and palliative care. Again, I think the federal government continues to step up to provide funding supports to provinces and territories to deliver on their health care responsibilities, including in palliative care. We’re going to continue to do that. Of course, you’ve seen through COVID-19 an unprecedented transfer of money on top of that to ensure the response to the pandemic. I will also say that the provinces and territories have full control of their health care budgets, and they have the decision-making authority to decide how they will allocate monies and in what proportion.
The $6 billion, as you know, is a pot of money that is distributed to provinces and territories with very little criteria attached in terms of how they will spend it. That is because health care is in the complete jurisdictional authority of provinces and territories. Sometimes we don’t like that. As a federal government, we would like to have more control, we would like to have more outcome measurements, but we also respect that provinces and territories have the jurisdictional authority to determine their own priorities, to determine their own funding formulas, and to work within their own health care systems as they see fit and appropriate. At the federal government, our role is to ensure that they have the necessary funds to be able to support and help them in terms of the financial realities of providing that care.
Senator Carignan: You are talking about $6 billion, but that amount does not go towards palliative care.
In Manitoba, it’s $2 million, in Saskatchewan $5 million, in Alberta $8 million, in British Columbia $12 million, New Brunswick $3 million. These are the numbers from your department. Stop speaking to us about $6 billion. This is not the amount that goes to palliative care, it’s much less than that. So if you truly want to help palliative care and people, establish criteria and sign specific palliative care agreements. This is not currently what happens and the palliative care homes are run by not-for-profit organizations that keep them at arm’s-length and are unable to meet demand.
Before offering medical assistance in dying, health professionals need to inform those requesting MAID about available palliative care services, but that’s completely unrealistic because they don’t exist.
Senator Batters: Minister Hajdu, you received the Champions of Mental Health Awards parliamentarian award for your past work. A study from Dr. Scott Kim showed that women are two times more likely than men to request MAID for mental illness alone and to receive it. I’m wondering if your gender-based analysis on Bill C-7 includes that alarming statistic.
This bill does exclude mental illness as a sole condition for MAID eligibility and I’m wondering — I know you spoke briefly about this with Senator Gold, but I would like some more information — as the Minister of Health and as a mental health champion, I want you to explain why you believe this exclusion is important. Minister, I hope you provide a more whole-hearted endorsement of that key provision than Justice Minister Lametti did. He said he hoped that the mental illness exclusion was only temporary.
Ms. Hajdu: Thank you very much, senator. I’ll say it was an honour to receive that award. It was a surprise to receive that award. It was the first year that I was elected, but it is certainly a reflection of my previous work, which was in the area of substance use and mental health, as well as homelessness. I deeply respect the professionals who work within that sector. They have guided us well in terms of their concerns about the risk of including provisions, at this point in time, for people whose sole condition is mental illness. In fact, their concerns echoed the concerns of, as I mentioned, this dedicated group of MAID providers who said they would be concerned about not having a deeper framework or body of research to be able to determine how to assess the desire to die, in particular with conditions where a symptom is sometimes the desire to die.
This is an area where I believe we need further research and further study, and that is exactly what will happen through the parliamentary review. In fact, the Council of Canadian Academies also indicated that it was a very challenging space in order for physicians to assess. I look forward to the ongoing research and the parliamentary review.
Senator Batters: Thank you. My second question, Minister Hajdu, your former cabinet colleagues, then-Justice Minister Wilson-Raybould and then-Health Minister Philpott, co-wrote a compelling column about the new Bill C-7 last February. In it they discussed the considerable difference between Bill C-14, which they drafted, and the new Bill C-7. They state:
There is, however, a qualitative and ethical distinction between hastening a death which is already drawing near, and ending a life which is expected to persist. This is no small divide. It is incumbent on lawmakers to consider the implications this may have for clinicians, and their willingness to participate in a more expansive framework for assisted dying.
Now, Ms. Philpott was a physician prior to her political career and she’s returned to that profession, giving her a unique vantage point on that issue. Minister Hajdu, as the current Minister of Health, do you recognize the difficult ethical position you are putting many physicians in, given the major expansion of medically assisted death in Bill C-7?
Ms. Hajdu: Actually, I think, with all due respect to my former colleagues, the strength of the legislation that we’re proposing is actually that it is a choice; that physicians choose to provide this service. In fact, the variety of professionals — and I mean the variety of fields of practice of folks who are providing MAID — was very interesting. We had anesthesiologists, general practitioners, a variety of different experts that chose to become MAID assessors and providers. But, as I said, it is not a volume of physicians. For many physicians who we spoke to this was a deeply personal choice. They had a high degree of compassion for people who are suffering at the end of their lives, and they felt that this was a service that they wanted to be able to provide for those folks.
During those consultations, in fact, they said that many of them were looking forward to being able to help folks who are suffering from irremediable pain, but not immediately facing death. They found that sometimes the restrictions were very narrow, and they also found it difficult sometimes to draw the line about when a death was reasonably foreseeable or not. They felt very strongly that there needed to be changes to the legislation that reflected compassion, especially for example, with the safeguards that we’re proposing to change.
I am grateful to those practitioners who have been doing this for four years now, who have been doing it thoughtfully, compassionately, in circumstances sometimes where they are really the closest person to that person who is suffering. I thank them for sharing those very personal experiences with us.
Senator Dalphond: Minister, your presentation made it very clear that, further to the judgment of the Quebec Superior Court, the government decided not to appeal the decisions but to instead implement the judgment and even go a bit further than the judgment. One of these changes is really to have a two-track system. You’re excluding from the second track those suffering from mental illness. We have heard many legal and psychiatric expert witnesses who find this exclusion challengeable, and most likely to be challenged. Also, they find it sends a signal to those suffering from mental illness that they don’t have the same access to full inclusion and equality to the rights provided to those suffering from other types of illness.
One option being discussed — and I wanted to have your reaction to it — would be to remove the exclusion from the bill, but with regard to mental illness, the provisions will not come into effect until one year from the passing of the law, in order for the psychiatrists and all those experts to come up with the proper uniform guidelines across Canada, in order to make sure the right is accessible, with the proper safeguards.
What do you think of that?
Ms. Hajdu: Thank you, senator. I understand there are folks on both sides of the issue of including the sole condition of suffering from a mental illness. I fully understand how passionate both sides are and how complicated it is.
I will just say this: I think the timing of the legislation needs to come into effect. The court has given us, as you know, an extension to come into coherence with the Quebec ruling, and I believe there will be an opportunity to study the issue of mental illness as a sole criterion. That study needs to happen. There has to be some research and analysis to support practitioners who might eventually be responding to requests in those circumstances.
As I said, when we did the consultations and, in particular, when we spoke to the MAID assessors and providers, this was an area where they felt some discomfort — in fact, in some cases, deep discomfort — largely because of the coexistence of some of the symptoms of mental illness being the profound desire to die.
Practitioners, before everything else, do not want to end a life prematurely. They really want to be sure this is a choice the person is making freely and not as a result of a particular symptomatology of their illness. They spend a lot of time trying to understand the patient’s request in normal circumstances with the current legislation.
It is a deep relationship, as I said, that they develop, in some cases not only with the person who is receiving the service but the family or friends around that person.
We need to respect those practitioners who have said that this is a very difficult and personal job they do for Canadians, and that they would like to have more clarity and more certainty when they’re doing even more complex assessments, for example, in the case of a person who is suffering with mental illness and has a deep desire to die.
Senator Dalphond: Thank you.
Senator Dupuis: Thank you minister, for being here with us today. You said at the beginning of your presentation that Bill C-7 went beyond the Truchon decision. It may well go beyond the Truchon decision, but only in the sense that it runs counter to the Truchon decision.
The Truchon decision, as you know, removed the reasonably foreseeable death requirement. The medical authorities that regulate the behaviour and position of medical practices in Canada told us yesterday and today that it was a vague, ambiguous concept that was impossible to implement.
You spoke about the Canadian Association of MAID Assessors and Providers, The people who administer medical assistance in dying, who told us clearly two days ago that there was no consensus among them with respect to the addition of an exclusion for mental illness only in the bill.
There was even recognition of the fact that there is now a possibility, if you are at the end of life, of obtaining medical assistance in dying if you have a mental illness.
If there is no consensus among doctors, why are you, as the government, choosing to remove the possibility of protecting the exercise of a constitutional right? Would not compassion require instead that we facilitate the exercise of this constitutional right, which has been recognized and which is being jeopardized by Bill C-7?
Ms. Hajdu: Thank you, senator.
First of all, in the case of end of life, that is a very clear parameter. A person’s life is ending. They can choose medical assistance in dying. It is a very clear circumstance for physicians. In fact, assessors said they were very comfortable with that process. When the death of the patient was reasonably foreseeable, with or without mental illness, that person has a pathway to medical assistance in dying that is one with which practitioners are familiar.
What we’re talking about, though, is when a death is not reasonably foreseeable and when the sole condition is one of mental illness. Of course, in those circumstances, what we heard again from practitioners is that there is concern, given that some mental illness conditions present with symptomatology that involves wishing to end one’s life as a symptom of that mental illness, which is in fact treatable. Stakeholders with whom we consulted said this required more study; they would feel more comfortable in a circumstance where they were making those kinds of assessments with understanding, in a more robust way, the research around this and how to deal with the requests in a way that would not hasten someone’s death who — with appropriate treatment and care — their suffering is remediable.
Don’t forget that this is a bill about ending irremediable suffering, and that is at the root of the concern of the practitioners with whom spoke. In those cases where a person has a mental illness and the symptom is that they want to end their life, and that suffering is remedial, practitioners had reluctance to provide medical assistance in dying. That’s why we’ve excluded it for the time being, as we believe it is an important area of study for the parliamentary review and for the ongoing research in that area.
Senator Dupuis: You’re talking about the review of the act, which should have begun in June 2020, and I think it’s safe to acknowledge that the COVID-19 crisis has greatly changed things. However, if you reintroduce the concept of reasonably foreseeable death into a bill, that’s not a point we could easily begin to address again on the pretext that we are reviewing the act. Would you be prepared to agree to a formula, and in particular to a start date, for this review?
Ms. Hajdu: Thank you very much, senator.
Parliament determines the date and timing of their specific reviews, and I can’t, as a minister, dictate to Parliament when that review will begin. But we will fully participate when the review commences.
Senator Boisvenu: Welcome to the Senate, minister. We are, here today in 2020, doing approximately the same work that we did in 2016 on medical assistance in dying. At the time, we had advised the ministers of justice and health that, without any amendments, Bill C-14 would be challenged and that we would have to redo everything again. At the time, the ministers were somewhat receptive to our contribution.
Minister, many witnesses made the same comment about Bill C-7, namely that without any serious amendments, it would be challenged in the courts. In 2020, will your government be prepared to listen to the Senate recommendations about making Bill C-7 consistent with the Supreme Court decision, or will the next government have to redo its homework in a few years?
Ms. Hajdu: Thank you, senator. Through Madam Chair, I will just say this: I think this is an important journey for Canada, one that we can’t take lightly. When I reflect on the process of Bill C-14, it was important to begin cautiously. It was important to take our time to provide for safeguards, especially since Canada had never used medical assistance in dying before. We had never asked practitioners to perform medical assistance in dying, and Canadians had never accessed it in Canada.
After a number of years of access to MAID, through Bill C-14 and the regulations that arose from the bill, and through the consultations that we held last January and February, it became clear that there were aspects of the legislation that needed adjustment to better support Canadians in their requests, to better support —
Senator Boisvenu: Minister, allow me to interrupt to ask a second question, because time is getting short. I asked the stakeholders a question about reducing the waiting period for patients losing their cognitive abilities, and the absence of a legislative framework to guide health professionals. The initial reaction from them was a long silence, which is rather worrisome. Do you plan to add details to the current bill to guide professionals in their decision-making about shortening the medical assistance in dying waiting period for people losing their cognitive abilities?
Ms. Hajdu: I’m not certain about the circumstance that you’re speaking about, but a person has to be fully informed when they are requesting MAID and assessed to be competent to make that decision, so a person who was unconscious could not —
Senator Boisvenu: Minister, according to the bill, if patients are losing their cognitive abilities, the waiting periods may be shortened. I asked health professionals whether they had established criteria to try and reduce these waiting periods. The answer I received was a long silence. It’s rather worrisome to find that professionals don’t have a proper framework for reducing the waiting period.
Ms. Hajdu: Senator, through the chair, the professionals work with the regulatory bodies once the law has passed to ensure that there is appropriate training and support for professionals who are providing medical assistance in dying. Let me be clear: No professional would administer medical assistance in dying if the person had not requested, been approved for and agreed upon a date on which to receive it should they lose consciousness.
Senator Boisvenu: Thank you, minister.
Senator Keating: Thank you very much, minister, to you and your staff for being here. We all recognize that this has been, at least so far, a very difficult process for everybody.
Earlier in the week, minister, I met with a MAID provider from my province, New Brunswick. They have a committee on MAID in the province, which is a good thing, but one thing I was told was that there’s a significant difficulty in access with respect to the expansion of what will be covered by MAID, because there are very few specialists in the province. The case that they were faced with concerns a person who suffers from a severe neurological disease, whom they had no doubt would qualify for MAID, but some of them had never heard of the disease and they had no specialist.
I want to note that the second amendment provided to us by the House — that requires medical practitioners and nurse practitioners to seek the opinion of a specialist if the condition is in an area where they have no specialty — is really most unfortunate. Now I have to go back and tell this MAID provider that their concern with respect to access has been bolstered by this provision.
I’m from a province that has the highest rate of cancer death in the country. Despite that, although we have some very good oncologists in many areas, we don’t have specialized oncologists in certain of the cancers that affect people. I just wanted to say this is most unfortunate. It may work in Toronto, Montreal and Vancouver, but it doesn’t take into account the very special nature of the smaller jurisdictions and provinces, or even territories. I can’t imagine how this would work in the northern areas of the province and in Indigenous communities.
This brings me to my question, which branches off of the issue of access. Although I recognize that the delivery of health services is provincial jurisdiction, I draw the line at the province’s exclusive responsibility where it deals with the delivery of a constitutionally recognized right. My question is simple: The bill already asks the provinces to provide numbers with respect to MAID, so why can’t the federal government in this bill also have a provision, at a minimum, that would require the provinces to report on their plan for MAID delivery? Thank you.
Ms. Hajdu: Thank you very much. The importance of robust data collection is at the root of your question, so we can truly understand who is accessing medical assistance in dying, who is making the request and who does not complete that request — maybe for a variety of different reasons. Some include requests that haven’t been put in writing, conversations that people have had, oral conversations, and preliminary assessments taken by other health professionals such as nurses. This will give us that better and clearer understanding of who is requesting medical assistance in dying. It will get at some of those challenges that you’re highlighting in the nature of your question, which is: Are there are barriers to receiving medical assistance in dying in rural and remote communities that may not be faced by people in more urban centres with a wider variety of practitioners?
I do want to address your concern regarding the need for consultation with someone who has expertise in a particular condition. We did accept an amendment in the House of Commons, as you know, to allow for that person to consult with someone who has expertise, and to not necessarily have a second assessor in that particular area of expertise, so as to address the very concern that you have in rural and remote communities, where there may only be one or two practitioners in general, never mind someone who has a specific expertise in a particular rare disease or challenging condition.
This will allow for those consultations to happen amongst professionals from a variety of different places. It will help assessors to understand the nature of the illness of the person they are treating, and whether or not there are other options for that person. That’s really the intent behind that, is to ensure that the person has been provided all options to address that particular condition that they are living with.
The Chair: Thank you, minister.
Senator Cotter: Thank you, Minister Hajdu, for joining us along with your officials. Just a couple of preamble observations before I ask my question.
The first is that I have a very strong sense of your heartfelt commitment to this work and to getting this legislation right, while respecting autonomy for people to be able to make these choices. The expansions, it seems to me, are wise. I’m largely supportive. I have some legal concerns about some of it, but we’ll address those in another context.
I do have a deep concern about an aspect of this that isn’t directly connected to the bill. You said repeatedly, “It’s critical that vulnerable citizens are protected. We have a long way to go in that respect.”
One of the things that happens with this legislation and its expansion is the greater availability of MAID for citizens generally, but it is also the case that it creates greater opportunities for people who are vulnerable, poor, socially vulnerable, to access this. Sometimes those kinds of circumstances, not so much based on access to palliative care but on terrible, unfulfilling life circumstances, may cause a suboptimal choice. In that sense, their autonomy is compromised.
In this exercise, you’re exercising a federal authority to create that opportunity — recognizing that almost all of what I have just described are matters of provincial responsibility — to try to enable those folks’ lives to be richer and more fulfilling, so we don’t have the occasional circumstance where people choose MAID because their lives are not as fulfilling as we should be able to make them.
To be perfectly frank about it, I find it unacceptable that we would make that choice as a national government and then walk away and say it’s now for the provinces to shore up those vulnerabilities. I understand fully the constitutional dimension of who is in charge of health and social services, but I don’t buy the idea that all you can do is watch and hope they do their jobs. There are an infinite number of examples where you have tied funding to particular outcomes, not just in the health sector but in lots of social sectors.
My question for you is whether you’re prepared to sit down with provincial health counterparts and say that you are prepared to make a meaningful transfer of funds to support these vulnerable communities — not to solve all their problems but to make meaningful contributions — on the understanding that money will be spent to help them. Thank you.
Ms. Hajdu: Thank you, senator. Yes, that is exactly the work we have been trying to do. For example, in my former world working in homeless shelters, the experience of watching someone suffer from prolonged and sustained homelessness is truly awful. This federal government is actually tying money, through a deep investment in federal housing strategy, to actual outcomes.
It’s a little more challenging, though, I have to say, in the health field. That is because, as we know, provinces and territories have jurisdictional authority to deliver health care in their systems.
Having said that, there are a number of areas where we’re working with provinces and territories to try to agree on things like outcomes in mental health services and supports. It is difficult work because, of course, provinces and territories widely vary in how they spend the money and how they choose to deliver those services. But we continue those efforts in all of the transfers that we make — billions of dollars in a variety of different ways — all with the intent, by the way, of creating better opportunities for people to enrich their lives across the country.
I will just say this to conclude: I was a federal minister of employment for a while. There were similar challenges around the labour market transfer agreements, where billions of dollars also go into provincial coffers to improve skills training and support efforts to improve people’s outcomes. We’ll continue that work. It is a delicate partnership with provinces and territories, as you know, but we have an opportunity if we work together.
Senator Cotter: I would add one observation and maybe invite your comment. I accept all of that. I applaud that work on the social front. We are talking here about living and dying. It seems to me it requires a special commitment on the Government of Canada’s part to try to tie together the ways in which we can support those vulnerable communities so that they will make the best and not suboptimal choices, especially on this front.
Ms. Hajdu: With all respect — and I completely agree — the measures I was just talking about are actually interconnected to people’s experience at the end of their life. For example, if you have a place to stay, it not only protects your health but it protects your dignity. It allows for more choice. I think you’re right; there is an opportunity to work with provinces and territories to strengthen outcome measurements for all of the money that we spend collectively, but it will take political will at the provincial and territorial levels as well, to want to work in partnership with federal governments to provide that data, to provide those outcome measurements, to agree to a common set of outcome measurements. This is always the challenge in a federation with jurisdictions that have authority over delivery of health care.
Senator Pate: Thank you, minister and to your officials, for joining us. Minister, both prior to and during this pandemic, you have led the way in seeking to move from guidelines to national standards within the long-term care system, as well as other systems, to better ensure that everyone can access adequate care.
We know that, right now, as we move into further discussion on this bill, Canadians have access to medical assistance in dying protected by law but do not have access to palliative care as a core service included in the Canada Health Act.
My question to you is this: Would you consider supporting an amendment to Bill C-7 to require that supports, including palliative care, disability services, home care — you have mentioned housing so I’m sure you would support that — and income supports must be meaningfully accessible to those, before they can be eligible for MAID?
In doing so, would you commit to ensuring — following up to Senator Cotter’s question — the provision of services as a prerequisite to the payment of the transfer payments, and a requirement for the provision of those services as part of the agreements with provinces and territories?
Ms. Hajdu: Thanks, Senator Pate. I appreciate that you are packing all of that into one question.
I’m not sure if I’m supposed to directly address the senator. I apologize if I’m making a protocol mistake. At the root of the question is the senator’s commitment to the social determinants of health. The kinds of things that the senator is speaking about are the things that our government deeply cares about and has been working on over the last five years. Those are access to affordable housing, equity in health care, the elimination of racism and systemic racism in institutions. I could go on, including the full rights and inclusions of people with disabilities. That work is, as the senator knows, difficult when we work with dance partners which are the provinces and territories. We have limited control over how they in turn choose to deliver services that we sort of co-fund, and yet we don’t necessarily have deep responsibility for the actual direct delivery of them.
There is an opportunity to do more on all of the things on your long list. It has been highlighted by COVID-19; that we need to do more and we need to do it more rapidly. That is reflected in things like Minister Hussen’s announcement on rapid housing and rapid supports for the people who are accessing rapid housing.
In terms of the investments I am making in substance use and mental health, and in particular, things like safer supply and harm-reduction measures across the country, there is more to do, especially on equity files.
On this particular file, we need to move quickly. If we were to try to incorporate all of that in one piece of legislation, it would potentially jeopardize the ability to move this legislation rapidly into place. We would have a significant challenge in terms of meeting the court’s obligations and getting to a better place.
As a member of Parliament, I met many, many stakeholders, including the retired teachers’ association and a number of other associations that represent the interests of aging adults in Canada.
They repeatedly talked about some of the irritants of the original bill, and I believe that we have addressed those irritants in Bill C-7. I’m looking forward to being able to provide that relief to Canadians who want to have the assurance — they have the right to choose how they will die in the case of irremediable suffering.
Senator Pate: If we develop an amendment that would address some of these, could we count on your support?
Ms. Hajdu: Well, I would have to see the amendment. Again, I would caution with an amendment that tries to throw everything in that you’re trying to address in this particular legislation. I think there are many opportunities where we can work with senators and all parliamentarians to address the multitude of inequities that you’re addressing in your comments. Again, this legislation is meant to address a very specific situation with a very specific circumstance.
Senator Kutcher: Greetings, minister. Thank you, deputy minister, and other members of the team for being here with us today.
I want to focus this question in a slightly different area. There was a growing interest in collaboration on the development of continuing professional development programs, to assist MAID providers in enhancing and maintaining competencies in assessment and delivery of MAID amongst key medical organizations that would lead to professional certification of these competencies. Now, would the Government of Canada be open to: A) amendment to the bill to provide funding for these organizations to do that work; B) not amending the bill, but providing a special funding competition to support that kind of work; or C) entrusting Health Canada with convening a process similar to the work that Health Canada did with — .
Ms. Hajdu: Thank you very much, Senator Kutcher. On a personal note, thank you for so much of your time as I tried to reflect on the needs of Canadians’ mental health during COVID-19. I truly appreciate that.
I think options B and C are likely more possible. It sounds very intriguing and I know that people who provide medical assistance in dying do this work. It’s deeply personal, as I said, but I think it would benefit from working collaboratively together. Anything that we can do from a practical perspective at Health Canada to do that, to help them grow their body of expertise, to help them work towards, as you said, some type of designation. Obviously, this is also provincial in that many of them have colleges that they report to and that they interact with. But I think the federal government would not be opposed at all to supporting that work, because having skilled, trained and well-supported professionals across the country who are doing this work would be of interest to us all. I am open to those kinds of explorations.
Senator Kutcher: Thank you for that, minister. One other thing that is important that we often forget, and I know that you’re seized with these issues — and this comes from a deeply personal relationship with these issues myself. Individuals who provide MAID as part of their medical practice are deeply and profoundly impacted by the challenges that MAID creates for them, both as human beings and as physicians. It would be really important for us not to forget that as we continue our discussions around MAID, because these are real people doing very difficult work. They have mental health needs of their own that I think are important for us to recognize going forward.
Ms. Hajdu: I would completely agree, senator. As someone who worked on the front lines with deeply vulnerable and struggling people myself, the experience of vicarious trauma is real. We need to support people who are working with vulnerable and suffering people in a much better way as a society across all levels of government. You know, it starts with acknowledging that working with human beings can very hard and draining. We need to support each other better in that work. Thank you for that observation.
Senator Kutcher: Thank you, minister.
Senator Carignan: Minister, you gave approximately the same explanation as the Minister of Justice with respect to the reasons behind excluding people with a mental illness from receiving medical assistance in dying, by saying that it’s complicated and that the government needs more time. In 2016, the government said the same thing, that it was complicated and that they needed more time.
When the legislation is challenged or reviewed from a constitutional standpoint, the courts will study the intent of Parliament and review your evidence — from the Minister of Justice, the Minister of Health — and if the reason for discrimination is to say that more time is needed because it’s complicated, then it’s clear that the provision will be discarded from a constitutional standpoint, particularly on these sorts of grounds. Why not immediately alter the bill and implement it fairly quickly, to prevent people from having to do what Mr. Carter and Mr. Truchon had to do, which was to go to court and spend a lot of money and energy to challenge provisions that are clearly unconstitutional and run counter to your mandate letter? I had a look at your mandate letter earlier, in which Prime Minister Trudeau said that you should follow and respect the Canadian Charter of Rights and Freedoms.
The Chair: Minister, may I impose on you? I’ll have Senator Miville-Dechene ask her question quickly and Senator Lankin so you can answer all three questions at the same time.
Senator Miville-Dechêne: I’m returning to the issue of palliative care. I was troubled by your answer on this point about the fact that everyone who had received medical assistance in dying had also received palliative care. That’s not the situation in Quebec at all. There is a major crisis underway. There is only one area where teams of physicians are going to provide home palliative care. My question then minister, is, if it is easier to obtain medical assistance in dying than palliative care, what kind of society are we living in?
Ms. Hajdu: On Senator Carignan’s question, I cannot predict what the courts will say or whether they will rule in a specific way. All I can say is that we believe this exclusion of people, solely with the condition of mental illness, is the prudent approach to take based on the consultations that we held, as well as based on the inconclusive report of the Council of Canadian Academies, who also indicated their concern in wrestling with this issue, that was not clear in terms of outcomes and in terms of next steps. I believe that the area deserves further review and further reflection. I am looking forward to that work through the parliamentary review and other research.
In terms of whether or not MAID is easier to access than palliative care, I would argue that is not correct. I did not say that everyone who gets medical assistance in dying accesses palliative care, but in fact the majority of them do. The vast majority of people who access medical assistance in dying are doing so after having received palliative care — 82 or 83% of the recipients. This is not a truth.
What I would say is that what we have heard is that medical assistance in dying is actually difficult to access in this country for a variety of different reasons: not very many practitioners, especially for people in rural and remote communities, and some of the safeguards that made it practically impossible for people to ask for access to medical assistance in dying. This legislation seeks to reach that balance to ensure that people who want access can access it in a way that respects their autonomy and dignity at the end of their life. Thank you very much, senators.
The Chair: Thank you very much, minister, for giving us so much of your time at this very difficult time when you have so much other work. We appreciate you and your staff being here, and we look forward to working with you in the future. Thank you very much.
Thank you senators for all your patience. We will start again tomorrow morning with Minister Qualtrough.