Standing Senate Committee on Legal and Constitutional Affairs

Report of the committee

Tuesday, May 17, 2016

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to table its

THIRD REPORT

Your committee, which was authorized to examine the subject matter on Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), has, in obedience to the order of reference of Wednesday, April 20, 2016, examined the said subject-matter and now reports as follows:

Your committee held six meetings (20 hours) on this study. In total, the committee heard from 66 witnesses including the Ministers of Justice and Health, regulatory authorities, professional organizations, along with many experts, academics, medical practitioners, families and other stakeholders. The committee also received many written submissions.

Bill C-14, a bill dealing with medical assistance in dying, was developed in response to the Supreme Court of Canada’s unanimous decision in Carter v. Canada (Attorney General) in which the Court declared that sections 241(b) and 14 of the Criminal Code, which prohibit assistance in terminating life, infringe upon the right to life, liberty and security of the person for individuals who want access to medical assistance in dying.

The committee recommends as follows:

1.  Remove the portion of the preamble that the Government of Canada should explore other situations in which a person may seek access to medical assistance in dying, namely situations giving rise to requests by mature minors and requests where mental illness is the sole underlying medical condition (adopted by a majority).

2.  Specifically limit the “exemption for person aiding patient” so that it does not apply to a person who knows or believes that he or she is a beneficiary upon the death of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death (section 241(5) of the Criminal Code (Code)) (adopted unanimously).

3.  Add “terminal illness” to the first criterion of the definition of a “grievous and irremediable medical condition,” so that it reads “(a) they have a serious and incurable terminal illness, disease or disability and have been determined to be at the end of life.” (section 241.2(2)(a) of the Code) (adopted by a majority).

4.  Maintain, as a safeguard, a requirement to ensure that there are at least 15 clear days between the day on which the request to medical assistance in dying was signed by the person and the day on which it is provided; and add that such delay be increased to 90 clear days where the person suffers from a mental health condition (section 241.2(3)(g) of the Code) (adopted unanimously).

5.  Specifically deny a person who knows or believes that he or she is a beneficiary upon the death of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death, the ability to sign for the person requesting medical assistance in dying, if that person is unable to sign and date the request (section 241.2(4) of the Code) (adopted unanimously).

6.  Maintain the requirement that the medical practitioner or nurse practitioner providing medical assistance in dying and the medical practitioner or nurse practitioner who provides the written opinion confirming that the person meets all of the criteria to be eligible for medical assistance in dying, are considered independent if they are not in a business relationship with the other practitioner; nor a mentor to the other practitioner or responsible for supervising their work (section 241.2(6)(a) of the Code) (adopted unanimously).

7.  Add a provision that for greater certainty, a medical practitioner or nurse practitioner is free to refuse to provide medical assistance in dying; and that a social worker, psychologist, psychiatrist, therapist, other health care professional, or any institution is free to refuse to aid in the provision of medical assistance in dying; and that they shall not be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of exercising their freedom of conscience and religion under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of medical assistance in dying based on that guaranteed freedom (after section 241.2(8) of the Code) (adopted by a majority).

8.  Ensure that the Minister of Health shall, instead of may, make regulations regarding the provision, collection, use, disposal and exemption of information relating to requests for, and the provision of, medical assistance in dying (section 241.31(3) of the Code) (adopted unanimously).

9.  Remove any mention that the Government must initiate one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying and requests where mental illness is the sole underlying medical condition (clause 9.1 of the Bill) (adopted by a majority).

10.  Accept recommendation 7 of the Report of the Special Joint Committee on Physician-Assisted Dying stipulating: “That the permission to use advance requests for medical assistance in dying be allowed any time after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable. An advance request may not, however, be made, prior to being diagnosed with such a condition. The advance request is subject to the same procedural safeguards as those in place for contemporaneous requests.” (adopted by a majority).

The committee also makes the following observations:

1.  Raises a serious concern about the fact that counselling a person to die by suicide or abetting a person in dying by suicide (section 241(1)(a)) is not included in the exemption for medical assistance in dying (section 241(2) of the Code) (adopted unanimously).

2.  Raises a serious concern about the fact that although the Bill does not allow advance requests for medical assistance in dying, it allows a person to self-administer a substance to cause his or her own death potentially months or years after the substance has been prescribed. In these cases, there is no safeguard ensuring that the patient’s express consent is given at that time (adopted unanimously).

Recommendations supported by a minority of members:

1.  Remove reference to a nurse practitioner in every instance throughout the Bill where such an individual is allowed to assess eligibility, approve requests and administer medical assistance in dying, including prescribing or providing a substance.

2.  Limit the capacity of a nurse practitioner, when providing a person with medical assistance in dying, to administering a substance to that person, at their request, that causes their death.

3.  Remove the provision that defines “Grievous and irremediable medical condition” (section 241.2(2) of the Code) and use the language found in Carter v. Canada (Attorney General) (section 241.2(1) of the Code).

4.  Add into an operative provision of the Bill: “For greater certainty, nothing in this Bill allows a person to be granted medical assistance in dying where mental illness is the sole underlying medical condition.”

5.  Ensure that, as a safeguard, a person undergoes a palliative care consultation which would include full information about treatment, technology and support options available to mitigate and alleviate suffering, when assessing eligibility to medical assistance in dying (section 241.2(3) of the Code).

6.  Include a requirement that each request for medical assistance in dying is subject to review and approval by a Superior Court Judge, to ensure that all legal requirements and conditions are fulfilled (section 241.2(1) of the Code).

7.  Include, as a safeguard, a requirement that a psychiatric assessment of competency be required in all cases where mental illness is present (section 241.2(3) of the Code).

8.  Remove the requirement that immediately before providing medical assistance in dying, the person shall give express consent (section 241.2(3)(h) of the Code).

Respectfully submitted,

BOB RUNCIMAN

Chair