On behalf of Dr. Faure, myself, and the Association québécois pour le droit de mourier dans la dignité, we are very pleased to be here and thank you very much for this opportunity to discuss this very important bill.
My name is Georges L'Espérance. I am a neurosurgeon and president of the Quebec Association for the Right to Die with Dignity.
Like all neurosurgeons, I have treated patients with brain tumours, brain hemorrhages, and major brain trauma during my career. Some of them do very well while others decline slowly, sometimes over many years. These are all human beings with a name and a life.
Other patients are still young, like my younger sister who died a year ago, at the age of 49, of ovarian cancer with brain metastases. She died while in palliative care, in deplorable suffering. This is also typical of a number of other neurological diseases, such as amyotrophic lateral sclerosis and dementia.
With me today is Dr. Nacia Faure, an endocrinologist by training who devoted the final years of her career to providing palliative care with compassion. She is perfectly placed to defend the idea that medical assistance in dying should be part of palliative care for the few people who request it.
We proudly represent the Quebec Association for the Right to Die with Dignity, founded in 2007 by Hélène Bolduc, who has since fought tirelessly for the right of each person to die in dignity and freedom, and in accordance with their values. We will be addressing the purely medical aspects and will leave the legal arguments to others.
The Association understands that Bill C-14 would amend specific provisions of the Criminal Code and is not specifically a bill on medical assistance in dying. As such, Bill C-14 does not have to reiterate the protection of the physician, nurse practitioner or pharmacist who conscientiously objects. These essential considerations on such a sensitive matter must be part of any provincial laws that provide a framework for medical assistance in dying.
Conscientious objection is a well recognized concept, founded in an individual's convictions, but it does not apply to institutions. Further to the Supreme Court's unanimous decision, two specific aspects of Bill C-14 should in our opinion be expanded upon: medical assistance in dying for persons with chronic, debilitating pathologies that are not terminal in the short or medium term, and the provisions on advance medical directives.
Regarding persons with chronic, debilitating pathologies that are not terminal in the short or medium term, the most striking cases and the ones of the greatest concern to the public are patients with neurodegenerative or traumatic pathologies. Informed consent is possible when cognitive abilities are intact. The same applies to patients with chronic, debilitating pathologies, such as respiratory or cardiac insufficiency, and so forth.
The way it stands, any competent person may refuse any test or treatment even if it endangers their life. Multiple supreme court decisions in Canada and the United States have consistently upheld the right of such patients to cease any treatment, even if death is the inevitable, immediate or short-term consequence.
Any adult with an incurable illness or enduring suffering that is intolerable should have the right to medical assistance in dying at the time and in the way they wish instead of having to put themselves through unnecessary suffering just to comply with overly restrictive legislation. This of course includes patients who decide to starve themselves to death, something that can take several weeks.
It would be quite the paradox for the patient to have the right to refuse treatment, with its accompanying suffering and often constant agony, while the caregiver would not have the right to administer a final compassionate act to help the patient. Despite its many benefits, palliative care does not solve everything.
There comes a time when medical options run out and when the patient, for the sake of their dignity, no longer wishes to endure the daily nightmare of their physical existence. It is incumbent on medicine to help the patient assert their dignity if that is their considered and repeated request.
The alternative for these patients—despite the best palliative care—is to kill themselves or to attempt to do so, often under appalling circumstances. It should be up to the patient, the main party concerned, to decide whether to request medical assistance in dying.
This is a very real clinical problem that should be included in subsection 241.2(2) of Bill C-14, as stated in the second recommendation of the report by the Special Joint Committee on Physician-Assisted Dying:
That medical assistance in dying be available to individuals with terminal and non-terminal grievous and irremediable medical conditions that cause enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
As others have pointed out, the time limits set out in Bill C-14 open the door to legal challenges that would be very distressing to patients with chronic pathologies who wish to exercise their rights under the Canadian Charter of Rights and Freedoms.
The second major problem is that of advance medical directives.
The Association wholeheartedly supports the spirit of the seventh recommendation made by the Special Joint Committee on Medical Assistance in Dying, to allow for advance requests for medical assistance in dying for persons having received a diagnosis of a neurodegenerative disease that is reasonably likely to lead to a loss of competence, in order to enable the person or their representative to exercise this option when they wish. The alternative to terminal decline, inevitable in the short or long term, is the possibility but not the obligation to end one's life peacefully, in accordance with one's own beliefs, and not anyone else's, whatever they might be.
The Association therefore requests that subsection 241.2(1) include the following:
That the permission to use advance requests for medical assistance in dying be allowed after a person has been diagnosed with a grievous or irremediable condition that is reasonably likely to cause loss of competence. The same protections would apply for advance requests as for requests for immediate medical assistance.
I would like to say a few words about patients who are not competent, about minors, and about the issues relating to mental health.
As things stand, the Association is completely in favour of maintaining the prohibition pertaining to persons who are not competent and who did not make advance medical assistance requests, and to all persons born with a cognitive deficit or who have lost their cognitive abilities before clearly and explicitly stating their wishes. There must be no room for public confusion between medical assistance in dying and eugenics. As to minors and persons with primary psychiatric pathologies, further consideration is needed, as well as dialogue with countries grappling with the same issues. We could all benefit from joint reflection with several countries.
Finally, I have one more thought on assisted suicide.
The Association is concerned about section 241.1b) of Bill, which in our opinion opens the door to a type of assisted suicide. In our view, it must be very clear that medical assistance in dying is and must remain a strictly medical act, administered by a physician, nurse clinician or pharmacist, according to the legislative provisions of each province.
There are four reasons for this.
First, current medical science makes it possible for persons with serious and grave medical conditions to live very comfortably for a period of time. It is incumbent on medicine to help patients until the end and to respect their independence and dignity when they can endure no more, either physically and psychologically.
Second, the immediate and compassionate presence of a physician or nurse clinician is necessary to address any problem that might arise during the administration of medical assistance in dying.
Third, a very strict framework must be established as regards professional, ethical and moral conduct and responsibility.
Fourth, any confusion must be prevented between medical assistance in dying and an unexpected suicide, which is always a terrible tragedy.
We understand the objective of not making it a crime for someone to help another person choose assisted suicide, whether in Switzerland or elsewhere. Yet the possibility of obtaining medical assistance in dying in Canada should eliminate this alternative, and fairly, regardless of the physical, financial or psychosocial capacities of the person with the terminal condition.
Thank you for your attention.
Thank you and good morning.
On behalf of the board of the Canadian Association of Social Workers and our provincial and territorial partner organizations, I'd like to thank this committee for choosing to hear the perspective of social work on Bill .
Our organization was founded in 1926. We're the national association voice for the social work profession. We have a dual mandate to promote the profession as well as to advance issues of social justice.
I will get right to the point on Bill . Although social workers will not be administering or providing a substance to cause death, it's reasonable that they would be involved in the lead-up or the consultative process leading to the decision to undergo medical assistance in dying. Social workers may also be among the care providers to whom a client would bring their end of life concerns, and may actually be the first point of contact in this regard.
As key members of interdisciplinary teams, and quite often as the only health, mental health, or helping professional in certain rural, remote, or northern contexts, social workers must be able to provide therapeutic counselling services; support to clients, their families, and even their networks; and referrals to service on the subject of medical assistance in dying. They must be able to do all of that without fear of criminal consequence.
It is very important that clients who are considering medical assistance in dying are able to bring these end of life concerns to their preferred care provider. It's equally important that care providers who are entering into these end of life discussions, or even consultations, can do so without worrying that they are going to be party to an offence.
To this end, CASW is concerned about the lack of clarity around the exemption for persons aiding a practitioner and persons aiding a patient under paragraph 241(b) of the Criminal Code, specifically as this might apply to social workers. Furthermore, Bill focuses very much on the provision—the actual act of providing or administering the substance to cause death in medical assistance in dying—with little emphasis on the process beforehand, that consultative process, the lead-up.
We're seeking further clarity on paragraph 241(a), specifically as to whether social workers who will be participating in client care leading to a decision to undergo medical assistance in dying could potentially be seen as counselling or abetting a person to die by suicide. Of course we want to avoid that.
To address this, we would recommend that be amended to clarify the meaning of “counsel”. Mental health providers like social workers provide therapeutic counselling services and engage in therapeutic conversations with their clients all the time. In this sense, “counsel” has a very different meaning from the one that's intended by paragraph 241(a). We think that this could be easily addressed by simply revising the word “counsel” in 241(a) to “persuades or encourages”, so it would read, “persuades or encourages a person to die by suicide”.
On top of that, we would also recommend creating or amending some language to provide an exemption for social workers who would be engaging with clients on the subject of medical assistance in dying, whereas “engage” could be defined as the provision of therapeutic counselling, the referral to information, supports to clients, their families, and even their broader networks, and of course, referrals to service.
This would just ensure that no social worker who engages with a person or a client on the topic of MAID, or medical assistance in dying, whether preceding or following that person's decision to undergo it, would be party to an offence under paragraphs 241(a) and (b), and equally that no social worker who aids a practitioner or patient by engaging with the person on the topic of MAID would be party to an offence.
I hope I kept that brief.
With that being said, I want to thank you again for hearing from social workers and I look forward to any questions that you might have.
Ladies and gentlemen, I would like to thank the committee for inviting me today. I will make some remarks, but then I'll also go over to the bill itself.
In 2001 the Dutch Parliament adopted a law that is largely similar to Bill .
For 10 years I was a member of a euthanasia review committee, a committee that decides after the fact whether a case of assisted dying was in accordance with the law. In those years I personally reviewed 4,000 euthanasia cases.
A 2012 government study, based on data collected as early as 2010, concluded that the Dutch law was solid. Until this day, the study is quoted to attest to the robustness of the law.
Admittedly, the Dutch euthanasia law does provide relief to many very ill patients. It provides doctors the necessary legal protection, and in doing so, it also provides transparency.
However, since 2010 the landscape has changed. Last week the euthanasia review committees presented their annual report, which I can show you here. It was presented just a week ago. It says that the numbers have gone up considerably, meaning that since 2010 the numbers went up from 3,000 to 5,500. Today one in 25 patients dies as a result of euthanasia, and we have seen a significant expansion in the pathology behind the euthanasia requests. The number of patients, for example, with dementia went up from 25 to 110 in five years. The number of psychiatric patients went up from two to 56 last year. Likewise, the numbers for euthanasia for people suffering from age-related diseases went up from a handful to 200. Contrary to what one might expect, the suicide numbers also went up, by 36% in the same period.
Before the end of this week, a person who is very dear to me will die through euthanasia. He is a man in his thirties suffering from the consequences of a sex-change operation, which he now sees as a crucial mistake. We have corresponded extensively, and I begged him not to make another decision that is irrevocable. However, the possibility of euthanasia has made him unwilling to seriously consider any other solution. In the words of your own bill, under proposed paragraph 241.2(2)(c), he says that this treatment is no longer acceptable to him.
In today's Canada, my friend would still be alive. My friend did not need pressure from outside, because what sufficed was loneliness, despair, self-contempt, and the societal climate in which euthanasia features as a remedy to serious suffering. I honestly think that the law has contributed to this climate. That's why I think Bill may need some adjustments. I do not doubt that Bill has good, noble, and important medical intentions, but I question the effectiveness of its criteria, which in its preamble, are referred to as “robust”.
In the Netherlands, we use exactly the same wording about our own criteria. Fifteen years later, however, I can tell you that even the most robust criteria may become like wax. Once new categories of patients start exploring the limits of the law, the criterion of intolerable suffering, for example, has become largely identical to what a patient wishes. After all, when a person insists on having euthanasia, who are we to question the intolerability of his suffering? Or when a person refuses palliative care, who are we to insist there are still ways that his suffering can be eased in a less radical way?
The developments in the Netherlands are even more remarkable given the increase in the quality of palliative care since the 1990s, the so-called pioneering years of the euthanasia law.
In an article in a journal of the Royal Dutch Medical Association, two ethicists and a doctor suggest 10 rules for patients who want to have euthanasia; for example, be verbally gifted but be humble; do not make a depressed impression on your doctor; if you still enjoy your hobbies, don't mention them; stress the seriousness of your physical suffering; etc.
According to an RDMA survey published last year, 70% of physicians in the Netherlands experienced pressure to perform euthanasia, and 64% are of the opinion that the pressure has increased.
Ladies and gentlemen, the decision you are about to take belongs to the most far reaching that Parliament can ever make. The outcome will influence the way that Canadians will die 30 years or 40 years from now. On a more fundamental level, it will impact the way people define suffering and cope with it. Please, therefore, allow me three remarks.
One, Bill exempts euthanasia from the Criminal Code. In normal life, any person has the right to do anything that is not unlawful. Consequently, doctors will have the right to perform euthanasia under the given conditions. This right to kill is among the most peculiar elements of the bill. To kill means that an intentional, direct, and irreversible act removes a person from the community of the living. Even on request, such a decision should always remain the exception. The society that legalizes euthanasia is bound to have an ambiguous relationship with the same society's resolve to prevent suicide. I do not think that the exemption from the Criminal Code is the right signal. I would suggest the Dutch system, in which physicians are punishable—hard as that may be—until they have provided proof that they have acted in accordance with the exceptions described in the law, in that order.
Two, given the intrinsically problematic, ethical character of killing, I think it is desirable that Bill contains unambiguous conscience protection for health care professionals.
Finally, I am probably not the only one who is puzzled by the fact that the requirement that a natural death should be reasonably foreseeable contains no specification. In hindsight wisdom, I think the biggest mistake of the Dutch is their failure to include a requirement of life expectation. This has made possible—and I have done research on this—that the average time between a euthanasia and the natural death that was expected has expanded from days or weeks to months, and in certain cases even years or decades.
Of course, any term has an element of randomness. However, not being specific about the term has even bigger disadvantages, because it gives away the only element that is left in the law that has an objective character. I would strongly suggest, even aware of the [Inaudible--Editor] advantages of it, to include a clear and unnegotiable term, such as a three-month or six-month requirement; and to initiate consultations, always, to alleviate the suffering; and to see to the needs of the people who have a longer life expectancy. Had the Dutch done so, we would not have seen much of the slippery slope that we find ourselves on now.
Thank you very much.
On the first question, no, there's no problem in Quebec with—
It's something that is absolutely natural and it's perfect.
Whatever the reasons for conscientious objection, it is perfectly normal.
In Quebec, a physician who refuses to provide medical assistance in dying has a duty to refer the patient to the administration of an institution, which must in turn find a physician to provide that assistance. This is exactly the same problem we faced 40 years ago with abortion. It's exactly the same thing. It is perfectly normal.
I would say, however, that an institution cannot conscientiously object, especially a public institution. In the case of a private institution, be it Catholic, Muslim, Jewish or of any other religion—regardless, it makes no difference—, if it is completely private, it must have the right to set certain rules. In our opinion, though, if it receives public funding, it must comply with the patient's wishes.
An institution has a duty to provide care to patients, and medical assistance in dying is the ultimate act of compassionate care. If the physician does not wish to provide it, that's fine, but they must refer the patient to someone else.
Thank you. I did understand that.
Of course, I know and have indicated that I know that there are many problems. There are moral problems in setting a time limit. For example, why would we give euthanasia to lady A and not to Mr. B? I know there are problems, but you have to draw the line somewhere. Then, of course, there are medical problems, because how can you tell that the prognosis of this patient is, for example, not more than six months?
I would just suggest that, as in some places—in Oregon, for example, and in Switzerland—you make some kind of time frame just out of the embarrassment of not knowing what the best solution is. My point is only that having no [Technical difficulty—Editor] at all leads to euthanasia cases, of which the friend of mine who had the operations is just one example.
It's both, basically. I think there's general pressure from society, so to speak, that sees euthanasia and sees death as the best solution to very severe suffering. I see the pressure on doctors, from the many dossiers I've read, where patients say, “Doctor, I have seen the documentary on television. Euthanasia for patients like me is now allowed, so you'd better do it.” That's a direct pressure from patients.
Then there's a second pressure, and that's of course the pressure from relatives. I do understand that. For relatives, seeing the suffering of a beloved may be just as traumatizing as the suffering the patient has to undergo himself. For example, the end-of-life clinic that has been established in the Netherlands now has about 450 euthanasia cases a year. From my research, it has become clear that in 60% of the cases it was the family members who brought the patient to the clinic in order to be helped. So yes, there's strong pressure, I think.
Then there is maybe a third sort of pressure, and that is the internalized pressure of a patient. I have seen about one in 10 cases where the patient motivates his euthanasia request on the basis that he wants to save his relatives from having to see his suffering. What you see is that the relatives in that case do not put up opposition to that observation of the patient. Rather, they say, “Well, that is very friendly of you. We may find a way to have you have euthanasia.” But I would say that the natural reaction of family members to such a motivation would be, “No, please, Mother, don't ask for euthanasia. It's too much for us. It's your life. We will do whatever.” Do you see...?
We'll reconvene and welcome our next group of panellists.
We very much appreciate your taking the time out of your busy schedules to testify before us.
I'd like to introduce, from the Canadian Medical Protective Association, Dr. Hartley Stern, the executive director and chief executive officer. Of course, as a Montrealer, he used to be the CEO of our Jewish General Hospital. It's a pleasure to have you here.
From the Canadian Society of Palliative Care Physicians, we have Dr. Monica Branigan, the chair of the working group on hastened death.
As individuals appearing together, we have Juliet Guichon, an assistant professor at the University of Calgary Cumming School of Medicine, and Dr. Ian Mitchell, a pediatrician and a professor at the University of Calgary as well.
I really appreciate all of your coming here today. I've explained to you how this is going to work. You each have eight minutes, and we will start with Dr. Stern.
Hello, everyone. I am Dr. Hartley Stern and I am the executive director and chief executive officer of the Canadian Medical Protective Association.
Honourable members, thank you for giving me the opportunity to take part in this consultation process.
In providing medical legal advice and evidence-based education, the Canadian Medical Protective Association, the CMPA, sits at the intersection of the Canadian health care and legal systems. As such, we are already and will continue to be on the front lines in guiding physicians called upon by patients in individual cases for direction on medical assistance in dying, or MAID.
It is through this lens that we propose recommendations for amendments to Bill to ensure the legislation provides clear eligibility criteria and safeguards for patients, while ensuring health care professionals are not exposed to criminal sanctions for good faith participation in MAID.
The CMPA is generally supportive of Bill Given the complexity of the issue, we believe the bill strikes a reasonable balance between access and safeguards and leaves room for adaptation and change over time as we in Canada continue to gain experience with MAID.
As I said before the joint parliamentary committee, it is very important to focus operationally on the issues of eligibility, criteria, and safeguards. These are challenging issues. The Criminal Code amendments are crucial to confirming that physicians providing a patient with medical aid in dying are not in violation of the general prohibition on assisted suicide. This is a fundamental requirement to permit physicians to enter into that trusting and empathetic relationship with the patient that is so essential to the implementation of this policy.
We are pleased that the preamble of the legislation recognizes the need to adopt a consistent approach across Canada to medical assistance in dying, while recognizing the provinces' jurisdictions over various related matters, including the delivery of health care services, the regulation of health care professionals, and the role of medical examiners and coroners.
We do believe that the proposed legislation can be improved and submit the following recommendations to enhance operational clarity. I will touch on a few key points and encourage you to refer to our written submission for more substantive remarks.
On clarity, eligibility criteria, and safeguard requirements, the CMPA is pleased that Bill has provided clarity regarding the age requirement and the issue of advance requests for MAID. We believe, however, that Bill C-14 should state unequivocally whether or not a patient must be at the end of his or her life to be eligible to receive MAID. Uncertainty exists currently about the intended meaning of the requirement that
their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
If it is intended that the patient does not need to be at the end of life, then the committee should consider amending the paragraph to state that natural death has become reasonably foreseeable whether or not death is imminent. Conversely, if it is intended that patients need to be at the end of life, then the provision should specify that natural death has become reasonably foreseeable and is expected to be imminent. Patients and their physicians must be provided with a clear understanding of who is eligible and when.
Turning to the provision requiring compliance with provincial laws and standards, we agree that MAID must be provided in accordance with any applicable provincial laws, rules, or standards, as contemplated in proposed subsection 241.2(7). However, we believe that this proposed subsection should be deleted from Bill , since it does not belong in criminal legislation. Health care professionals have to deliver care to patients in accordance with professional standards regardless of such a provision. Those health care providers that are negligent in the delivery of care may face regulatory or civil proceedings, but should not face criminal sanctions for breaching the standard of care or for failing to follow a policy created by the regulatory authority.
Furthermore, as currently worded, the good faith provisions in proposed subsections 227(1) and 241(6) are not available to health care professionals who may fall below the standard of care. Ensuring that well-intended health care professionals are not subject to criminal sanctions for breaching the standard of care is important to ensure access for patients by encouraging the participation of practitioners in MAID.
Turning in respect to protection for counselling a person to die by suicide, we believe that Bill should be amended to expressly state that no practitioner is guilty of a criminal offence for counselling a person to die by suicide under paragraph 241(1)(a) when a practitioner provides a patient with information about MAID in the course of considering possible medical options.
It is important that practitioners not fear criminal prosecution for raising MAID with their patients, where medically appropriate. Without such a provision, health care professionals may be reluctant to even discuss MAID with their patients.
Regarding the good faith protections, the bill provides for some degree of protection for good faith compliance but only does so with regard to criminal sanctions. The CMPA believes that the protection in proposed subsection 241.(6) should be extended to include civil and disciplinary proceedings for practitioners acting in good faith. Such protection exists legislatively elsewhere.
Reassuring practitioners acting in good faith that they are protected from criminal sanction, civil liability, and regulatory sanction is an important provision that will again help ensure access for patients.
On the issue of disproportionate sanctions, we believe that some of the sanctions provided in Bill are disproportionate to the relatively minor nature of the offences. Imprisonment for up to five years for failing to inform a pharmacist that the substance prescribed is intended for MAID, and imprisonment for up to two years for failing to comply with reporting obligations, is excessive and unnecessary. It seems to us that a maximum penalty consisting of a fine would be a sufficient deterrent in those circumstances.
On a final note, the CMPA recommends that the brief reference to right of conscience in the preamble of the legislation be expanded, given the importance to practitioners that their personal convictions are to be respected in this area. Consideration might be given to including in the preamble to Bill language to the effect that nothing in the act compels health care providers to provide MAID.
In conclusion, honourable members of Parliament, it is undeniable that this bill bears great importance to Canadians. We support your efforts in working to ensure that this most complex social issue is dealt with in a manner that respects the importance of the relationship between the patient and health care professionals, and the necessity to ensure that both are protected along this journey.
On behalf of the CMPA, I would like to thank the committee for inviting me to speak. We will be very pleased to provide any further information or data you may need.
Thank you very much.
Good morning. My name is Monica Branigan, and it's a very big honour to represent the Canadian Society of Palliative Care Physicians. We are a society of 500 members, and we are dedicated to improving the quality of life for patients with life-limiting conditions.
We would like to offer some very specific recommendations in the spirit of finding a Canadian way that respects the diversity of views. Underlying the three amendments that we are recommending is the intention to make the right of access to palliative care as robust as the right of access to hastened death. It does not make sense to enshrine in legislation these rights to hasten your death without also having the same protections to receive palliative care.
There are two reasons this is important. As Canadians, we value fairness. The vast majority of Canadians will not avail themselves of hastened death but they can benefit from palliative care, whereas perhaps 3% or maybe 4% of Canadians might want to hasten their death. It also speaks to the issue of voluntariness. Can one actually decide to hasten one's death if there is not a viable alternative?
There are three amendments we would ask you to consider. First, we would ask that the general preamble would read, “And whereas the Government of Canada has committed to develop legislative and non-legislative measures that would support the improvement of a full range of options for end-of-life care, including the establishment of a National Secretariat in Palliative Care...”.
The national secretariat would be charged with implementing a national palliative care strategic plan. This work has already been done by some very respected groups of people. This would allow us to decide what Canadian standards are and how we monitor them. This would allow us to decide how we could best educate all health care providers in the areas of talking about death and dying, advance care planning, goals of care, and palliative care. This would allow us to think about how to support family and caregivers through job protection, income support, or education, and how to have these conversations with their loved ones. At a national level, it would allow us to begin a discussion about how we shift funding from institutions into the community, which is where patients want to die; and lastly, it would allow us to begin a public education campaign about options at the end of life and about how to demystify death and dying, because that, by itself, will reduce a lot of suffering.
Our second suggestion refers to the eligibility criteria, which would be included in proposed section 241.2. Under the criteria in proposed paragraph 241.2(1)(d), that patients will have made “a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure”, we would ask that you consider adding “or lack of access to services required to address the root causes of the request, including, but not limited to, palliative care”. Really we're asking how a decision can be voluntary if there is not an alternative. This is something we need to absolutely pay attention to. We do not want somebody choosing this because of the lack of an alternative. I do not think that we as Canadians would choose that.
Our final recommended amendment would follow in that same section, but would add a new element to provide documentary evidence that the eligibility criteria have been met using federally established standards. This is really just a way of recording the fact that the roots of suffering have been explored, that patients have been informed about options, and that options are available.
This is going to give you really good information about why people request this service. You have committed to a review in five years. It is also going to inform that kind of decision-making, and without really good evidence, it is just going to be a matter of opinion.
Thank you very much for your invitation to address a section of Bill . We are both from the University of Calgary medical school. Whereas I am trained in law with a doctoral degree and called to the bar of Ontario, my colleague Ian Mitchell is, as you have heard, a pediatrician who is a specialist in pediatric respirology and in ethics.
Proposed subsection 241.31(3) concerns regulations about creating, collecting, using, publishing, storing, and disposing of information about requests for and provision of medical assistance in dying generally. We respectfully make two recommendations concerning this subsection, but before we do that we respectfully recommend that this subsection of the Criminal Code should be based on the following two principles. First, all deaths that occur in Canada must be recorded accurately, and second, medical assistance in dying must be monitored scrupulously.
The proper implementation of these principles would foster protection, prevention, health promotion, health planning, and in rare cases, prosecution. Because the field of death reporting and death monitoring is not well known, we presume very briefly to describe it.
First is accurate reporting of death. Vital statistics are valuable only if the reports are accurate. An accurate report of how a person died is required to be contained in the medical certificate of death in common-law Canada, and in the bulletin de décès in Quebec.
Stating how someone dies entails identifying and stating truthfully the cause and the manner or circumstances of death. These two terms are terms of art, which are best understood by experts. It is not unusual for physicians without forensic training to have difficulty distinguishing between cause of death and manner of death, or to have difficulty naming the immediate antecedent and underlying cause of death. Consequently, in many provinces, medical certificates of death, which were originally completed by physicians, even in natural deaths, are routinely reviewed and corrected by forensic pathologists, medical examiners, or coroners, who have sub-specialty training in accurate death reporting.
Coroners exist in all provinces and territories except four. Those four are Alberta, Manitoba, Nova Scotia, and Newfoundland and Labrador. These four provinces have adopted the medical examiner system of death reporting. For our purposes, however, coroners and medical examiners perform the same functions. Sometimes, only these experts are permitted to establish cause and manner of death, and to complete the medical certificate of death.
For example, in Alberta, Manitoba, Prince Edward Island, and Nova Scotia, when a death occurs within 10 days of surgery, only the medical examiner or coroner may complete the medical certificate of death. Such requirements ensure that death is reported accurately.
Dr. Mitchell will discuss scrupulous monitoring.
Scrupulous monitoring of death means not accepting at face value what some people say is the cause and manner of death. Scrupulous monitoring entails expert analysis of the evidence and the conduct of those investigations necessary to determine the answers to five questions. Firstly, who died? Then, how did the death occur? Thirdly, where did the death occur? Fourthly, when did the death occur? And finally, by what means did the death occur?
Because of the value we place on human life, every province and territory requires certain facts of death to be notified to the coroner or medical examiners. For example, in Alberta reportable deaths include those that appear to have no explanation; occur unexpectedly; or as the result of violence, accident, or suicide; or when the person was in the custody of the state, such as in prison, in a mental health facility, or in child protection.
Mandatory reporting of certain deaths ensures that the person best qualified in death reporting answers the important questions surrounding the death. Coroners and medical examiners are qualified to determine the cause and manner of death accurately, to report this information truthfully, and to know when further investigation is necessary. I may say that both of us, both Dr. Juliet Guichon and I, have had professional experience with the Alberta medical examiner system or with the B.C. coroner system, and can attest directly to the professional manner in which they have conducted investigations.
It is important to note that deaths that occur by the injection or ingestion of lethal doses of medication are already mandatorily notifiable deaths in at least nine Canadian jurisdictions. Therefore, in at least nine jurisdictions medical assistance in dying is already mandatorily notifiable to coroners and medical examiners. All jurisdictions should require that medical assistance in dying be notifiable to coroners and medical examiners because the Supreme Court of Canada, in the Carter decision, required scrupulous monitoring of physician-assisted dying.
There are at least three ethical reasons to ensure that all medically assisted deaths are notifiable only to coroners and medical examiners, and require them to transfer aggregate data to the federal government. Such a system would limit disclosure of sensitive health information; provide families and loved ones with truth, which can aid grieving; and help ensure that Canadian vital statistics are accurate. At a practical level, using only the coroner and medical examiner offices to determine and record these deaths would accept that coroners and medial examiners in nine jurisdictions are already required to monitor such deaths, avoid problems of creating new and untried offices, and avoid the problems of fragmentation of accountability and confusing multiplicity of oversight mechanisms. As well, using the current reporting structure would benefit from the coroner and medical examiner's expertise in determining cause or manner of death and in reporting on trends of interest and concern; employ the existing structures that govern coroner and medical examiners and that hold them accountable; and reduce public expenditures by avoiding the creation of probably very expensive new offices.
No strong argument has been advanced, either in court or by expert panels, for health professional regulatory authorities that can justify excluding coroner and medical examiners from reporting on this new form of non-natural death. Although there is much that seems new about medical assistance in dying, non-natural death is neither new nor is the expertise of our coroners and medical examiners. They have unique experience in distinguishing among manners of death. It would be wrong to discount history, specifically in the United Kingdom, where a physician killed over 215 people. This is just one example why scrupulous monitoring in dying is essential.
Accurate reporting and scrupulous monitoring reflect the value Canada places on human life. These expert activities ensure the investigation of deaths that occur in uncertain, dangerous, and preventable situations. They result in recommendations to benefit others, and they satisfy the public that the circumstances surrounding death will not be overlooked, concealed, or ignored.
Therefore, we respectfully make two recommendations. First, we recommend that the ministers of justice and health invite chief coroners and medical examiners and the Forensic Pathology section of the Canadian Association of Pathologists to a meeting to agree on terminology of cause and manner of death for the practice of medical assistance in dying. Second, we recommend that this committee require, under subsection 241.31(3), that reports of the provision of medical assistance in dying come to the federal government only from the provincial or territorial coroner and medical examiner's office without exception.
These two recommendations would help the federal government to ensure that medical assistance in dying is reported and monitored by the book. They would help safeguard patients, the general public, and physicians, and generate reliable data that would reveal trends of interest and concern.
In sum, we respectfully ask that you establish the reporting and monitoring of medical assistance in dying in a manner that is accurate and scrupulous and in these ways excellent.
Thank you, Mr. Chair. It's an honour to be here.
Since this is my first time subbing in this venue, I want to start by complimenting the committee and you, Mr. Chair. I've seen the list of witnesses and it seems that you're going to hear a broad range of perspectives. One of my concerns, frankly, about the special committee is that I think there were many perspectives that were missed. I look forward to the deliberation that's going to happen here.
I want to focus my questions on the issue of advanced review. Specifically, Mr. Stern, I really appreciated your comments about the need to clarify “reasonable but foreseeable”. We've heard arguments from some that this flexible criterion trusts doctors and gives them flexibility. However, what I've heard from physicians is that they would appreciate legal certainty so that they have a clear understanding from the legislation about what is and is not allowed.
I understand the point you're making about physicians not facing criminal prosecution if they act in good faith but fall below the standard of care. However, I think that patients might also have the concern that if rules were not followed, if they didn't meet the criteria, or if they had failed to obtain consent, someone could escape prosecution if they could demonstrate—at least beyond a reasonable doubt—that they had good intentions. We have to balance concerns about patient safety with the concerns of doctors not wanting to face prosecution.
Doesn't this underline the need for some kind of advanced legal review? An advanced legal review would protect patients by giving them the certainty that they had consented, that the criteria were followed, and that they would be protected. It would also give physicians a certainty that, once a particular case had gone through advanced legal review, they wouldn't have to worry about prosecution, because it would be clear that criteria had been met and legal expertise had viewed it. I'd be curious to hear your comments.
Thank you. I will try to deal with the foreseeable future issue first.
We will support whatever the legislation ultimately states. I want to reiterate that we see our position as to help the physicians have confidence that if they enter into this dialogue with the patient and operationalize it and have interpreted the legislation correctly, they will be free from prosecution when they act in good faith. That means they have consent, that they did all the things and interpreted the law correctly.
What we're saying is that the wording as it currently exists is not clear. Whether you want it to be, as legislators, broader with a longer time frame, or narrower where imminent death is definable by whatever time frame you choose, we will support that.
We want you to say it clearly so when the physician phones—and they will call us for advice—we can say this is what we understand the legislation to mean, and this is what we're advising you to do as you enter into and provide access to the patient who receives medical assistance in dying.
The fuzzier the legislation is, the more difficult it is for us to interpret and the more difficult it is for us to give guidance to the physician who will want to act in good faith believing they are doing something that is an appropriate medical act, but don't want to be prosecuted.
We're agnostic about which way you want to go. Just make it clear which way you want to go.
Dr. Stern, you were very helpful during our Senate/House deliberations. You were equally helpful today. I take your testimony very seriously because, of course, as you say, you're on the front lines. You're at the intersection of medicine and law, and you're the ones who decide whether a doctor is going to get coverage if they're sued for trying to implement this law in good faith.
We didn't have an opportunity to read your very careful submissions in advance. I want to make sure we do justice to them.
I want to pursue something that Mr. McKinnon and you were discussing, namely, the issue of Bill trying to provide clarity through the words “reasonably foreseeable”, which it seems most witnesses have told us has not occurred. You make a couple of suggestions depending on which way we want to turn, namely, to add the words, “whether or not death is imminent” or otherwise.
In the testimony and legal commentary, many of us have been hearing about the implications of the Carter decision, the Supreme Court case, and that it was deliberately not to be left to terminal patients, not to be limited to people at the end of life. The justices were deliberate in their choice of the words, “grievously and irremediably ill patient”. There was no suggestion of terminality.
The euphemism that their natural death has become “reasonably foreseeable”, it will be argued, is inconsistent with what the Supreme Court said. If that's accurate, then your choice about adding the phrase “whether or not death is imminent” is a non-starter. With respect, I would say that the alternative that you're suggesting for this provision, that “natural death has become reasonably foreseeable and is expected to be imminent”, is equally ambiguous.
I'm not quite sure where to land on this. Other witnesses, such as Mr. Ménard from Quebec, said yesterday that we should just eliminate this section, because it adds nothing. We've heard today that it's neither legal nor medical.
I'm wondering why your recommendation didn't simply say to get rid of that ambiguity, we should delete that phrase.