Ladies and gentlemen, it gives me great pleasure to welcome all of our witnesses to the Standing Committee on Justice and Human Rights.
I want to let you know in advance, that as a result of votes in the House of Commons, we may need to suspend the meeting and have all the members go vote in the middle of testimony. You will not lose any time. We will suspend and come back.
Our panels today will probably drag later and run late as a result. We're very sorry. It's just the way things ended up.
Again, we very much appreciate you all being here.
We have Dr. Catherine Ferrier, president of the Physicians’ Alliance against Euthanasia; Mr. Michel Racicot, from Living With Dignity; Wanda Morris, from the Canadian Association of Retired Persons; and from the Canadian Medical Association, Dr. Cindy Forbes, president, and Jeff Blackmer, vice-president, medical professionalism.
Each of you has eight minutes. We'd ask you to stick to the bill itself and propose amendments to the bill. We don't want to replicate the work of the special committee.
We will start with the Canadian Medical Association, Dr. Forbes, the floor is yours.
Before we start, I need the unanimous consent of the committee to continue to proceed while the bells are ringing. Do I have unanimous consent to proceed while the bells are ringing?
Some hon. members: Agreed.
The Chair: Thank you.
We will suspend to vote. The clerk will let us know when we have to go vote.
As you mentioned, I'm Dr. Cindy Forbes, president of the Canadian Medical Association. I'm also a family physician from Nova Scotia. I'm joined today by Dr. Jeff Blackmer, vice-president of medical professionalism. Dr. Blackmer has led the CMA's work on medical assistance in dying.
As the national organization representing over 83,000 Canadian physicians, the CMA has played an instrumental role in the public dialogue on what should be the framework to govern assisted dying. Let me recap our role. It was the CMA's position that making medical assistance in dying legal was for society to decide. We did not take a position on that question.
Following the Supreme Court's landmark decision last year, the CMA has focused its considerable efforts, consulting with physicians and the public on what the framework should be. In the course of our work, CMA has consulted directly with tens of thousands of members. Our position and remarks today are informed by these extensive consultations. Today, we are here on behalf of Canada's doctors to convey one overarching message: the CMA recommends that parliamentarians support the enactment of Bill as proposed and without amendment.
As the national professional association representing Canada's physicians, the CMA has played an important role in leading the public dialogue on end-of-life care. This in-depth consultation was instrumental to the development of the CMA's “Principles-based Recommendations for a Canadian Approach to Assisted Dying”. The CMA's core recommendations address four areas: patient eligibility, procedural safeguards, the roles and responsibilities of physicians, and ensuring effective patient access. The CMA's recommendations on these issues form our position on the overall framework to govern medical assistance in dying in Canada.
Before turning the floor over to my colleague, Dr. Blackmer, who will review CMA's response on the core elements of the legislation, I will provide our response on the overall approach.
Put simply, the CMA strongly supports the government's overall response to the Carter decision. This includes legislative and non-legislative measures. Of particular importance are the commitments to develop a pan-Canadian end-of-life care coordinating system and to support the full range of end-of-life care options, including expanding palliative care.
Finally, the CMA recognizes that there's been significant public discussion regarding the approach for the “Carter plus” issues. These include eligibility for mature minors, advance care directives, and mental health as a sole condition.
The CMA supports the approach proposed by the federal government not to include these issues in Bill and to study them in greater detail prior to advancing legislative proposals. This approach aligns with the approach taken by other jurisdictions, for example, Belgium.
I'll now turn the microphone over to my colleague, Dr. Blackmer.
Thank you, Dr. Forbes, and committee members.
As mentioned, I will speak to the CMA's response on the core elements of this legislation. We certainly welcome questions from the committee today and at any time over the course of your important study.
First, the CMA's position is that the safeguards proposed in Bill are robust and are aligned with our recommendations. These safeguards include considerations such as patient eligibility criteria, process requirements to request medical assistance in dying, as well as monitoring and reporting requirements.
Second, the CMA supports the legislative objective to recognize that a consistent framework for medical assistance in dying across Canada is extremely desirable.
In addition to these robust safeguards, the enactment of definitions for medical assistance in dying, as well as what constitutes a grievous and irremediable medical condition in federal legislation, is essential to the achievement of a consistent, pan-Canadian framework.
Our principles-based recommendations reflect on the subjective nature of what constitutes enduring and intolerable suffering, as well as a grievous and irremediable condition, as well as the physician's role in helping make an eligibility determination.
We also support the objective to support the provision of a full range of options for end-of-life care and to respect always the personal convictions of health care providers. To this end, we encourage the federal government to very rapidly advance its commitment to develop a pan-Canadian end-of-life coordinating system. Ideally, this should be in place by June 6.
The CMA is aware that one jurisdiction has made such a system available to support connecting patients who qualify for assisted dying with willing providers. Until this system is available across the country, there may be a disparity of support for patients and practitioners from province to province.
Finally, it is our position that Bill , to the extent constitutionally possible, must respect the personal convictions of health care providers by protecting the rights of those who do not wish to participate in assisted dying or to directly refer a patient to someone who does wish to participate.
We would be very pleased to speak further on this critical issue, one that is also essential for a consistent pan-Canadian framework.
Thank you for your attention.
Thank you, Mr. Chairman.
As you know, I'm a lawyer with over 40 years' experience in computer and telecom law, so you might be wondering what I'm doing here. I'm here because I've assisted many terminally ill persons, beginning with my wife, who died of cancer at age 37 in 1985 after we had adopted three children.
I am here also because I've seen, on a daily basis and sometimes for several weeks and years, the day-to-day reality of palliative care workers attending to the needs of patients in their last weeks, days, and sometimes hours of life. I'm also vice-president of Living with Dignity/Vivre dans la Dignité, an organization representing over 5,000 citizens who are concerned about the future of our health care system and indeed about our nation.
Governments in this country take great strides with public media campaigns to try to prevent suicide—suicide of young people, of aboriginals, of Inuit—and unfortunately politicians make the headlines when a wave of suicides hits a reserve. But now we're about to authorize doctors to take their patients' lives or to help those patients commit suicide. Are we are no longer going to send emergency squads to try to persuade a person not to jump from a bridge, or are we going to send doctors to push them to their death? This is a dire reality that we are now facing.
Many have claimed that medical aid in dying is now a new charter right. Carter did not create a new constitutional right to death; the court only concluded that the prohibitions of the Criminal Code infringe on the existing rights to life, liberty, and security as guaranteed by the charter. Since the charter is part of our Constitution, the creation of a new charter right to death would have required the Constitution to be amended, which requires the involvement of Parliament and of all the provincial legislatures. This could not have been done by the Supreme Court, and the court did not create a new charter right to death, only an exemption from criminal law.
Before turning to the amendments, let me try to set our perception of what the power of Parliament is. Many have claimed that Parliament is bound to adopt a law within the confines set forth in Carter. Parliament is not held captive by the Supreme Court decision. It need not adopt a law that fits within the parameters set forth in Carter. Carter is based on the premise that the prohibition on assisted suicide and euthanasia is intended to protect only vulnerable people, not to protect all Canadians. Parliament now has the power to set the record straight and to confirm in no uncertain terms in a new bill that the prohibition against assisted suicide and euthanasia is indeed to protect all Canadians. It also has the power to re-enact those prohibitions, despite the Supreme Court decision.
As the Supreme Court itself recognized, between 1991 and 2010 this House and its committees debated no less than six private members' bills that were seeking to decriminalize assisted suicide, and none was passed. I'm calling on you. Should you ignore completely the wisdom of the hundreds of members of the House of Commons who decided not to decriminalize assisted suicide in the past? Or, should you not remind your colleagues that indeed your predecessors acted responsibly and with wisdom in rejecting this approach? You have the power and you have the responsibility to make history for our population, our children, our grandchildren, and their descendants.
Re-enacting the provisions struck in part by Carter requires political courage. It also requires all members of Parliament to be able to exercise their right to freedom of conscience protected by the charter and without being forced to vote according to a party line. This is our call to action.
Of course, if this Parliament does not re-enact these prohibitions, it can still set safeguards. Contrary to what CMA has said, our experience teaches us that these safeguards may not be sufficient to help protect all Canadians. This House has the power to prescribe, as it is said in the charter, “such reasonable limits...as can be demonstrably justified in a free and democratic society”. These limits can be more stringent that those specified in Carter.
The court recognized itself in Carter:
||Parliament must be given the opportunity to craft an appropriate remedy. [....] ...issuing [a constitutional] exemption would create uncertainty, undermine the rule of law, and usurp Parliament’s role. Complex regulatory regimes are better created by Parliament than by the courts.
Let me now turn to certain amendments we're proposing.
In the order that the Supreme Court made last January 15, to prolong the extension of the suspension of their decision, the court said the persons who wanted to avail themselves of medical assistance in dying, as permitted in Carter, could apply to the superior court of their jurisdiction. And the court even said:
||Requiring judicial authorization during [the] interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people.
We think that this reasoning is not only valid until June 6, but this process should continue beyond June 6, when Bill comes into effect. Abuses and errors are possible. We know medical errors exist, and as it concerns medical assistance in dying, an abuse or an error will be fatal. We therefore submit that Bill C-14 be amended to provide that medical assistance in dying can only be obtained with the prior authorization of a superior court.
Turning to transparency in data collection and reporting, Quebec has been now experiencing euthanasia for over four months. Several aspects have now become clearer, some of which are frankly very troubling.
One of them concerns the transparency and data collection and the reporting. Under practice guidelines issued by our Collège des médecins du Québec, a physician filling out the certificate of death, prescribed under the Public Health Act of Quebec, must enter the disease or morbid condition that warranted medical aid in dying and led to death as the immediate cause of death. This is not the manner of death—cardiac arrest—but the disease, injury, or complication that caused death.
The college goes on by stating that the term “medical aid in dying” should not appear on the certificate of death. Indeed, if this information were disclosed to family members who had not been informed, it could on one hand go against a patient's wishes to keep the information confidential, and on the other hand cause them harm.
Well, this guideline is forcing doctors to falsify the cause of death in a public document, and this is contrary to the applicable regulation that specified that the physician must indicate the cause of death in the most precise manner possible. Thus, if a doctor follows the guideline of the Quebec Collège des médecins, he might be prosecuted and be subject to a penal offence.
To address this risk, Bill , proposes to add to the Criminal Code the offence of committing forgery in relation to a request for medical assistance in dying. However, the term “forgery” is not defined, and we have to look at section 366 of the Criminal Code for its definition.
In light of the Quebec experience, and of the need to monitor compliance with all required conditions to provide medical assistance in dying in the future, we strongly recommend that proposed subsection 241.4(1) be modified to include the offence of making any false declaration, by any means, to the effect that the cause of death was not medical assistance in dying, but was the underlying medical condition that justified a recourse to it.
Lastly, I'd like to talk briefly about the danger of good faith defences. Bill proposes that any person who has reasonable but mistaken belief about any fact that is an element of the exemption for medical assistance in dying should nevertheless be able to invoke the exemption from the crime of culpable homicide or the crime of assisted suicide.
Although these provisions are well intended, they do not unfortunately pass any serious examination in light of the experience that abuse of the elderly and sick persons is rampant in our society, as Dr. Ferrier, and other physicians dealing on a daily basis with these types of patients can attest. This is inviting a floodgate of abuse.
For such reasons, we recommend that these provisions of good faith defences be struck from Bill .
I thank you for your attention.
Thank you. My name is Wanda Morris, and I am the vice-president of advocacy of the Canadian Association of Retired Persons. We are a not-for-profit, non-partisan organization representing 300,000 seniors in 60 chapters across the country. The average age of our members, according to our polling data, is 71 years.
Our members are deeply disappointed in the restrictions in this bill, and as an organization we have been advised that the bill is not only failing to be constitutionally compliant but is also legally and medically unworkable.
CARP has a long history of involvement in the issue of assisted dying. These words were taken from a summary of our 2014 poll: “The vast majority of CARP members approve of legalizing assisted dying, and they have for years, no matter how the question is asked. Agreement is increasing in recent years, as well.” The earliest poll that I have a record of goes back to 2010, where 71% of our members supported assisted dying for patients at the end of their lives. There were no polling questions about patients in other conditions.
The 2014 poll that I alluded to asked our members about their support under other conditions: 81% supported the Quebec bill, and that was before the bill was amended to specifically refer to patients at the end of life; and 82% supported the provisions of Steven Fletcher's private member's bill, which clearly noted that individuals with a degenerative condition would also qualify.
In our most recent poll, taken this year, 80% approved of the recommendations of the special joint committee, that individuals with a grievous and irremediable illness should be given assistance to die. There was no qualification about death being reasonably foreseeable.
Something I hear about very often from our members is the fear of living for decades with dementia. This is also a personal issue for me. My father-in-law died of dementia. In fact, both of my in-laws did, but my father-in-law's death was particularly difficult. He was in England, and as many people do with that disease, he became aggressive at the end of his life. To deal with that aggression, he was strapped into a wheelchair, immobilized, and that is how he spent the last weeks of his life.
In Canada, we don't tend to physically restrain people with dementia, but any study of long-term care facilities and drug use will tell you that we use chemical restraints profusely.
My first exposure to dealing with dementia was as an auditor. Decades ago, I audited a series of long-term care facilities, where many of the patients were deeply, deeply ill, often with dementia. It was that experience that taught me that there are indeed fates worse than death.
You can imagine my delight, and the delight of our members, with the Supreme Court decision. I remember hugging my husband and thinking that, at last, we didn't have to worry about having an out when the worst came to the worst . Even if it meant we had to go early, at least we still had a choice.
Then, when the special joint committee made its recommendations, and they recommended that there be a provision for advance consent, I remember crying and thinking that, not only did I have a choice about being able to go, but I didn't have to lose those days where, perhaps, I'd no longer be competent to make a medical decision to end my life. I would still have quality of life.
You can imagine how bereft I was when this bill came in, which restricted all remedies for people with dementia. I feel we've gone back to that cruel choice that the Supreme Court noted when it said that individuals who are grievously and irremediably ill must either take their lives early, often by violent means, or wait far too long and suffer unbearably.
As a resident of British Columbia, I've seen this situation happen first-hand. Margot Bentley was a dementia nurse in her younger years and she knew what dementia had in store. That's why she told her family and wrote down that, if she ever had dementia, she didn't want to live through it. In fact, she specifically wrote that she wanted to be euthanized.
Now she's in a care facility in stage 7—the final stage of dementia—unable to communicate and unaware of her surroundings, but still being spoon-fed against the wishes of her family.
It was perhaps to avoid that situation that another B.C. woman, Dr. Gillian Bennett, ended her life. As she wrote in her blog, Deadatnoon, by the time you read this, I will be dead. She did not want to live with dementia. That is why I encourage the committee to include a provision for advance consent. If the timing simply doesn't permit, then please include a binding commitment to bring in legislation governing advance consent within 18 months.
An advance consent isn't just an issue for dementia, although it is certainly a significant issue there. Right now, there's a very problematic sentence in the bill, in proposed section 241.2, which requires that “express consent” be given to receive assistance in dying “immediately before” the assisted death takes place. This is contrary to what is the case in Belgium, Luxemburg, and the Netherlands. In Belgium and Luxembourg, advance consent can be provided for up to five years, and in the Netherlands indefinitely.
I also encourage the committee to review the issues around judicial review. I heard one of my colleagues urge the committee to look at judicial review. Every day in our country doctors end patients' lives. They do it right now, through the removal of life support. What do they need to do that? They need the support and consent of the patient or their substitute decision-maker, usually the next of kin. There are no detailed forms to fill out. There are no requirements for secondary doctors.
Now, I'm not protesting those provisions in this bill, but I'm saying that they are more than sufficient. We do not need additional administrative legal or bureaucratic barriers to keep people from accessing a compassionate death. Those would provide little security for individuals who may be vulnerable but would impose significant barriers on those who are already suffering.
Finally, I'd just like to correct an error of fact that I heard in debate. It was about waiting periods. There are indeed many jurisdictions that have legalized assistance to die and do not have waiting periods. There is no waiting period in the Netherlands and none in Luxemburg. In Belgium, the one-month waiting period applies only where death is not imminent. Of course, closer to home, Quebec, in their legislation, has no legislated waiting period.
I'm a physician and I have over 30 years' experience diagnosing, treating, and caring for frail older people, often suffering from Alzheimer's disease and other dementia. In addition to seeing patients in the clinic, I often visit their home as a geriatric consultant to a home care service.
My professional niche, as it were, includes capacity assessment, assessment in intervention for patients and families in crisis because of cognizant, psychiatric, and social problems. I regularly see abused and neglected patients, and I often testify in court for abused patients or for those whose families are fighting over powers of attorney or inheritance issues.
I'm also the President of the Physicians' Alliance Against Euthanasia, a group of doctors who see any law allowing doctors to intentionally end the life of their patients as contrary to the goals of medicine and the good of our patients, especially the most vulnerable and those who cannot speak for themselves. Founded in Quebec in 2012, the alliance now includes over 750 doctors, each of whom has signed our declaration and is supported by more than 14,000 citizens. We are, of course, aware that Bill will legalize medically assisted dying in some form, as is already the case in Quebec. While remaining completely opposed to these acts, we offer our suggestions for amendments to the bill in an attempt to protect patients' health care environment and the integrity of our profession.
We are somewhat relieved that there is a certain caution in the bill compared with the extreme recommendations of the special joint committee. We also note that the bill does not propose euthanasia and assisted suicide as medical acts or health care, as they are in Quebec. We agree that they are neither, so it cannot be required of our profession to perform them. The international medical community maintains to this day its opposition to these practices.
Since the vast majority of desires for death are caused by mental illness, which can and often does co-exist with the medical conditions that are considered to justify euthanasia or assisted suicide in the Carter decision and in this bill, we are called to exercise extreme caution. Such desires can also be caused by feelings of hopelessness, loneliness, fear, grief, shame, lack of access to support, insufficient palliative care, poverty, unemployment, violence, and abuse. These can also be addressed by health and social service professionals.
In this context my colleague, Mr. Racicot, talked about the fact that they are not charter rights. I argue that neither are they health care. We fail to understand the concerns about access to death that are being expressed in the public debate around this law. Elderly and chronically and terminally ill Canadians do not need access to death, they need access to care—medical treatment, home care, care by family members, residential care—all of which are seriously lacking.
You just heard some descriptions of sorely lacking care of elderly patients. I would argue that the alternative to that is not to kill them but to take better care of them, which we should be doing in Canada in 2016. To facilitate access to death while remaining unable to provide the care our citizens need is irresponsible, to say the least, and is unworthy of a progressive and prosperous country such as ours.
We appreciate the government's commitment to developing non-legislative measures that would support the improvement of a full range of options for end-of-life care, as is said in the preamble to this bill, but that would have to be implemented at truly high speed if we want the choice of life to be as available as death will be before long.
If you wish to show a true commitment to life for Canadians, this bill must contain protection for patients who are at risk of constraint to choose death. As it stands, it's certainly not as bad as it could have been if you had followed all of the committee recommendations, but the criteria are still ambiguous and open to subjective interpretation. This is inevitable to some extent, because it's impossible to define an eligibility criteria that would protect everybody, but we think you can do better.
The only way to ensure patient safety in a regime of legal euthanasia and assisted suicide is to require prior authorization of the death by a judge. In practice in medicine, we use courts all the time for committing patients who are dangerous to themselves or others to hospitals, to ordering that somebody be removed from their home if it's no longer safe.
It's something that's common. It can be done rapidly. It does not need to be a barrier, and the cases we've seen in recent months in other provinces have shown it happened relatively quickly. I think this should also be done after an evaluation of the patient and the patient's situation by health and social service professionals to explore the causes of suffering, as well as any inducements to choose death that could arise from non-medical conditions and circumstances, and that measures should be taken to address these sources of suffering before accepting a request for death.
This should not be seen as gatekeeping of access to death, but rather as promoting life wherever possible, which should be the goal of the law.
I have some brief comments on the criteria as currently written. The requirement that the request be made by a capable adult is essential, but most doctors lack the skills to assess decision-making capacity, and even experts disagree in complex cases. The terms “grievous and irremediable medical condition”, “advanced state of decline in capacity”, and “irreversible decline” are wide open to subjective interpretation and could be understood to include hundreds of thousands of Canadians with serious chronic illness who would be eligible for death under this criteria.
Enduring physical or psychological suffering that's intolerable, and that cannot be relieved under conditions the person considers acceptable, is entirely subjective and opens the door to anyone refusing effective treatment and demanding euthanasia instead. The requirement that natural death be reasonably foreseeable means nothing to us as physicians. Doctors are not able to accurately estimate life expectancy until the last days to maybe two weeks before death. Before that it's a guessing game. Call it “imminently dying”, and then we know what you're talking about.
To ensure a request for death is voluntary and without external pressure requires in-depth psychosocial and family assessment by a team of professionals well beyond medicine. Even then there may be no way of knowing that the patient is acting out of guilt or protecting an abuser. The written consent waiting time and requirement for a second doctor are not protections against abuse or coercion to request death. The first two can be waived, and patients or others can doctor-shop until they find two willing doctors.
There should be no opening even later to children or people with psychiatric illness. I wrote a separate brief in my own name, besides the brief of the physicians' alliance, that speaks to the dangers of euthanasia by advance directive that we can discuss in the question period if you choose.
My second point is about what is often called freedom of conscience, but is also about protecting health care services from becoming death-promoting environments and thereby protecting patients from those environments. I suggest you include in the law a prohibition against requiring any health professional to cause the death of a patient, or to refer a patient to another person to obtain their death—even through a third party, as is the case in Quebec—and against requiring any health care institution to euthanize patients under its care or to assist in a patient's suicide.
There's no justification for imposing any duty to implement this political decision, which is foreign to the medical profession, on medicine as a whole, or on any individual practitioner or institution. Attempts to do so are already being seen, both in Quebec and in Ontario, through requirements to refer. The federal law cannot just leave this question to the provinces. In Quebec, since December, doctors who are unwilling to euthanize patients must refer them to an administrative body that will ensure the death occurs. This does not protect the patient or the professional integrity of the physician. If I were a surgeon and a patient asked me for a procedure I thought was either not going to help them or would be too risky, I would refuse to do it, and I would also refuse to send the patient to someone else who would do it. They would, of course, be free to go and find a doctor of their choosing if they wanted to.
In palliative care in Quebec, one excellent palliative care physician has compared her daily life under this law to living in a war zone. You never know when a death request is going to land on you. You can't be giving hope to dying patients in one room and euthanizing them in the next.
Another doctor retired early the day the law came into effect for this reason. Highly skilled doctors and nurses who have given years and decades to the care of dying patients are suffering burnout, taking sick leave, and being driven from the field by confrontations over a supposed right to be killed, and by threats of losing funding if they insist on caring for people rather than killing them.
Patients are refusing treatment for their symptoms because of their fear of receiving the injection without having asked for it. Some patients who attempt suicide by overdose are not being resuscitated because the notion is being promoted that people who want to die should be helped to do so instead of being saved from their suicidal impulses. We need safe spaces for patients where inflicting death is not an option, and we need to respect the freedom of those health professionals for whom it is a violation of their fundamental principles and institutions whose basic philosophy rejects it.
Patients can be transferred to another professional or another institution, if necessary. This would not cause problems of so-called access, only inconvenience at times. If the professional or institution makes their position clear, the patient need not consult them. The protection of patients should always trump access to death.
In summary, at the very least we need prior authorization by a court after a careful evaluation of the situation, as I discussed. We need to create safe spaces for patients by respecting all individuals and institutions that refuse to collaborate with inflicting death.
I regularly inform people of a diagnosis of Alzheimer's disease. That's part of what I do in my work all the time. When they originally receive that information, obviously, it's a source of great distress to them, to their families. They're in a very difficult moment.
One of the things that were recommended by the joint committee was that somebody early on in a disease, such as Alzheimer's disease, would be allowed to write a document saying, “When I reach a certain stage, I would like to be euthanized.” Somebody in that situation is not in an emotional state to make a life-changing decision, but at the same time if they delay it, then they might lose the capacity to sign the document, and so they're forced to sign it while they're still in crisis. That's one side of it.
The other is that people's priorities and preferences change over time. Almost all of my patients come to terms with their disease and they live with it for many happy years.
I was distressed by some of the descriptions of people with Alzheimer's disease. I think to say that some people's lives are so bad that they're better off dead is a very unfortunate thing to say, because I think that all of my patients' lives have value, no matter how sick they are. I just can't imagine the scenario, for example, in which maybe the patient has signed this document and then they become demented enough that they can't make a capable decision. Who's going to decide that now is the time? Is it going to be their children? Is it going to be the doctor? How are their children going to live with that decision once it's made? Nothing is so black and white that it can just be a matter of the document.
In the brief I sent you, I quoted an article by a Dutch academic whose father was euthanized through an advance directive. They had all been pro euthanasia when they signed it and the children all agreed to it, but then they felt that they were prisoners of this document and that it was not what they would have chosen, nor what their father would have chosen when the time came, but they felt obliged to carry through with it.
This is a very complex issue. Which should trump which: the wishes of the patient at the time they have more advanced dementia or this paper they signed when they were well or not so well and they were in crisis?
A lot of issues are raised, and I think it's a very dangerous way to go.
Ladies and gentlemen in the back of the room, I am now asking you to please take your seats or to step out of the room. We have limited time and we can't have people talking in the back.
I want to thank the witnesses on this panel, despite the constant disruptions of today, for having stayed and for having understood that we're going to disrupt again for a vote in the middle of the panel.
We have three different associations representing nurses. They are all different associations with potentially slightly different views, but they've been kind enough to find a way to present in a common way. They'll go one after the other.
We have Maureen Klenk, past president of the Canadian Association of Advanced Practice Nurses; Carolyn Pullen, from the Canadian Nurses Association, who is the director of policy, advocacy, and strategy; and Elaine Borg, from the Canadian Nurses Protective Society, who is the legal counsel.
We have two witnesses presenting as individuals. We have Dianne Pothier, who is a professor emeritus with the Schulich school of law at Dalhousie; and Trudo Lemmens, who is a professor and Scholl chair, health, law, and policy with the faculty of law at the University of Toronto.
Welcome to all of you.
I'm going to ask the different nurses associations to present first.
Before we begin, I need unanimous consent from the committee to proceed while the bells are going until 10 minutes before the vote. Do I have unanimous consent?
Some hon. members: Agreed.
The Chair: Thank you.
Ms. Klenk, please go ahead.
My name is Maureen Klenk and I represent the Canadian Association of Advanced Practice Nurses. I am proud to be a nurse practitioner. I believe I may be the only nurse practitioner who will be presenting to you.
I would like to forward three concerns.
First, although Bill uses legal language, its primary purpose is to provide Canadians and health care providers with protection and accessibility for medical-assisted dying. Counselling is an everyday activity within every patient exchange. There will be much counselling between the time when a patient requests medical-assisted dying and the provider actually writing the prescription. Therefore, we believe the exemption for medical assistance in dying must include both clauses (a) and (b).
Second, an age restriction and requirement is discriminatory. A 16-year-old with a brain tumour will suffer as much as a 36-year-old, and their prognosis is the same. Yet, we do accept as lawful a 16-year-old signing a surgical consent for his two-year-old daughter.
Third, the terms serious and incurable are not medical terminology and provide the practitioner with no descriptive value.
Also, what is a natural death for a 60-year-old who has ALS? He's not going to die from natural causes. His death is going to occur from the horrible complications of ALS. When would a health care professional know that this 60-year-old's death was reasonable and foreseeable? We believe this is not a measurable term in any context.
CAAPN recommends the removal of clauses (a) and (d) from 241.2(2).
Thank you for the opportunity to contribute to this important process.
Thank you for this opportunity to suggest amendments to the draft wording of Bill on behalf of the Canadian Nurses Association.
We are the national association for 139,000 registered nurses across Canada, including nurse practitioners. My name is Dr. Carolyn Pullen.
CNA welcomes the federal government's moderate approach to this challenging legislation, and we support the expeditious passing of this bill. CNA strongly endorses the stated intention to work with the provinces and territories on a pan-Canadian care pathway for end-of-life care, which has the potential to reconcile issues related to access and conscience. We are lending our support to harmonized implementation of MAID across jurisdictions by convening nursing stakeholders, including regulators and educators, to develop a national nursing framework to guide nurses in the implementation of MAID.
The CNA recommendations for amendments to Bill C-14 are based on our view that it will best serve patients and health care providers if the legislation can be clearly understood, is possible for professionals to demonstrate in practice, and is practical to implement in the best interests of the patient. In accordance with these principles, our written brief suggests three amendments to the language used in the draft bill.
Our suggested amendments would remove the criteria that refer to “incurable and reasonably foreseeable death”. We respectfully offer an expanded definition of “grievous and irremediable medical condition”, which we believe is in accordance with the Carter decision, which focused on intolerable suffering rather than on timelines for death. By making the amendments we suggest, section 241.2(2) could be deleted from the bill.
The current wording used in section 6(a) and (c) that address independence of practitioners is also problematic. As written, these clauses leave room for questions about business relationships between practitioners as well as factors that could affect the objectivity of practitioners. For instance, if practitioners have only referred patients to each other in the past, does that imply a business relationship? In small communities, does simply knowing each other imply a relationship that affects independent practice? Confusion about the meaning of these clauses, if left as is, could lead to delays in access to MAID, particularly in rural and remote settings, where the numbers of health care providers to draw on may be limited.
While fully supporting the need for these important safeguards, here the CNA suggests revising these clauses so that they can be more clearly understood, demonstrated in practice, and practical to implement in the best interests of the patient.
Thank you for the opportunity to deliver these prepared remarks and to contribute to this important process.
My name is Elaine Borg. I'm a nurse and lawyer. I work for the Canadian Nurses Protective Society. CNPS is a national not-for-profit organization. It's a legal defence fund for registered nurses and nurse practitioners. Our focus, as you'll see in our written submission to you, is along the lines of clarity. How do nurses know that they're on the right side of the law as this becomes law in Canada?
The first issue I'll address is that if it is lawful to participate in assisted death, it must be lawful to talk about it. Subsection 241(1)(a) of the Criminal Code makes it an offence to counsel a person to commit suicide. Counsel is defined in the Criminal Code at subsection 22(3) as including procuring, soliciting, or inciting.
Health care professionals use this same word, counsel, to describe professional communications within the therapeutic relationship. It is a combination of active listening, patient education, and support. Health care professionals must engage in these activities. The circumstances of assisted death are no exception.
We recommend that the exemption for assisted death in the bill, found at subclause 241(1)(a), overtly and expressly includes the word counsel, so that health care professionals can engage in this normal therapeutic activity without fear that doing so or using the word counsel in this context, for example, in charting and documentation of care, would be misconstrued as criminally prohibited activity.
In the CNPS written submission, we have provided a draft definition of counsel as well as a draft clause explicitly including counselling as part of medical assistance in dying.
The second issue I'd like to address is the criminalization of the civil standard of care. This can be found in the bill's subclause 241.2(7). Failure to comply with this clause could result in the commission of a criminal offence, despite the absence of mens rea, the necessary guilty mind. A health care professional may act so as to violate any one of these stipulations in the clause with no intention to do so, no wilful blindness, no recklessness. This is a lower threshold for criminal penalty than is required for criminal negligence, which can be found at section 219 of the Criminal Code.
In addition, it's not known what the rest of the clause means when it talks about provincial laws and standards. We don't know what these are yet. It is reasonable to anticipate that they would include administrative provisions that are not worthy of criminal penalty if violated. The word rule is used in this clause. It's undefined, broad, and vague.
Health care professionals are and will be bound by the civil standard of care, and must practise in accordance with professional standards and ethics. Violations of these result in proportional civil and administrative remedies. For these reasons, the CNPS recommends the removal of subclause 241.2(7) in its entirety.
The third issue is the certainty of the role of the nurse in respect to medication administration. A prominent feature of professional nursing practice is medication and substance administration. The whole care team expects and knows that nurses do this.
Subclause 241.1(a) of the bill defines medical assistance in dying as the administration by a medical practitioner or nurse practitioner of a substance to a person. If the intention of this clause is to ensure the substance is administered personally by a doctor or nurse practitioner, we recommend the inclusion of the word personally before the word administering for the sake of clarity and certainty, given the role that nurses play in medication administration.
My final point is in regard to what constitutes a business relationship. A purported safeguard in the bill is the prohibition that practitioners be in a business relationship. The term is vague. Health care professionals must work together, so what are the parameters of a business relationship such that a practitioner can demonstrate compliance and avoid criminal penalty?
Thank you. I appreciate the opportunity to be here.
My expertise is in constitutional law, including charter law. So that's where I'm coming from. Given the limited time, I'm focusing on the constitutional validity of the definition of grievous and irremediable medical condition in proposed subsection 241.2(2).
I think it's important to get the point that in some ways it's as significant what the Supreme Court of Canada in Carter 2015 didn't say as much as what it did say. The Carter decision, in paragraph 95, refers to the protection of the rights of vulnerable peoples as the constitutional rights of vulnerable peoples, but they don't elaborate on that. That wasn't the nature of the claim before them. They acknowledged that there were constitutional rights of the vulnerable, which they didn't elaborate on in the decision, but that's part of the context of what you have to do in responding to the Carter decision.
In analyzing both section 7 and section 1 and acknowledging the protection of the vulnerable, the real challenge in this context is that the vulnerable are not going to self-identify when they appear in this process. The point of saying we're talking about the constitutional right of the vulnerable is that it's for people who are not well placed to identify and defend their own rights. They're going to present as people who want to die, and the issue is, is this a matter of being at a time of weakness and saying you want something, which, if you had the opportunity to reflect on, you would change your mind about, while if your current wish is acted upon you'll never have that opportunity because you're going to be dead.
The issue is complicated by rights that are in a sense competing, but they're competing in an unusual way, because we're talking about difficulties in identifying the people who need protection.
I want to focus particularly on the provisions of proposed paragraph 241.2(2)(b), which is the advanced decline section, and proposed paragraph 241.2(2)(d), the reasonable foreseeable death sections. The question is whether those two limitations are constitutionally valid.
Lots of folks, including those next to me at this table, have said that since those provisions weren't referred to by the Supreme Court of Canada and Carter, that means you can't do that. I'm afraid that's not a very strong analysis, because, again, it's what they didn't say in terms of comparing it to what they did say.
With regard to proposed subsection (241.2(2)(b) about advanced decline, before Justice Smith at trial, the Quebec legislation wasn't in force yet but the Quebec committee recommendation was before her and she picked up their language in terms of advanced decline and capability, and put it into her declaration of invalidity. The Supreme Court of Canada did not incorporate it. They didn't disagree with it; they didn't agree with it. They didn't even acknowledge that she said it.
So to say that by completely not commenting, not even acknowledging, this issue they somehow pronounced upon it is a very extreme interpretation of what the court is doing. It didn't comment at all and it's the language that's picked up in the Quebec legislation and it's picked up in Bill . A reasonable interpretation of the Supreme Court of Canada not commenting is that they're handing it over to Parliament for Parliament to exercise its best judgment.
Similarly the issue of reasonable foreseeability of death is not referred to in Carter, but before Justice Smith, before the Supreme Court of Canada, they canvassed the North American history versus the European history. In some of the North American versions, they do have some sort of end-of-life limitation. European ones don't.
You might have thought they should say what is good and what is bad, and what are the pros and cons. They don't enter into that analysis. Therefore, it seems clear to me that they're saying they haven't preordained what should happen here, and they are sending it back to Parliament for you to decide whether an end-of-life stipulation of some sort is appropriate here. I think the first point is that the Supreme Court of Canada leaves this open.
If you need confirmation that this is what they're doing, they told us that in Carter 2016 at the time when they were granting the extension of the suspended declaration of invalidity. They made a point of saying that they expressed no opinion on the Quebec legislation. The Quebec legislation has both of the things in proposed subsections 241.2(2)(b) and (d). Proposed subsection 241.2(2)(d) is a slightly different version of it, but it's in the same ballpark in terms of being an end-of-life stipulation.
The court has handed it back to Parliament to decide, but the question still is, if you choose to put in proposed subsections 241.2(2)(b) and (d), is that consistent with section 7 of the charter? My analysis is that it is consistent for both of them. At trial, Canada argued before Justice Smith that if there's even one person who wrongfully ends up dead because of this, that's enough to warrant an absolute ban on physician-assisted death. Justice Smith said that's going way too far, both as a matter of the principles of fundamental justice and as a matter of the section 1 defence for the government. That's going way too far.
Neither Justice Smith nor the Supreme Court of Canada said that there's some magic number here, but they're clearly saying, on the assumption that with safeguards, the risk of error or abuse, of having people prematurely die who ultimately would have changed their minds if they'd had the opportunity.... But if the risk of that is low—
Thank you. I'm told I have two minutes, so I'll have to be brutal about what I talked about.
Before the vote, I was saying that the point of the decision in Carter v. Canada was to say that if the risk of error or abuse is low, then the autonomy claims can prevail, but the obverse of that is that if the risk of error or abuse is high, then the protection of the vulnerable prevails. My point in all of this is that I think proposed paragraphs 241.1(2)(b) and 241.1(2)(d) are consistent with section 7 of the Charter of Rights, consistent with the principles of fundamental justice, or, in the alternative, saved by section 1 of the charter.
If you take away proposed paragraphs 241.1(2)(b) and 241.1(2)(d), then the chances go way up of having somebody face premature death on the basis of a transitory wish, whereas if they'd had the opportunity over decades, they could have changed their mind, found other ways of coping with issues, found a way to make life worth living.
In section 1, the difficulty of protecting the vulnerable is an important factor. It goes beyond the individual claimant.
There are other things I could say, but I just have one final wrap-up comment.
You've heard lots of comments over the last few days to the effect that if you have the restrictions of proposed paragraphs 241.1(2)(b) and 241.1(2)(d), it's only going to produce new litigation to challenge. Yes, it's open for somebody to say, “You haven't gone far enough.” But it's important to remember my starting point; the court recognized the constitutional rights of the vulnerable. The other side of this is, if you go too far, make it too wide open, you're open to a challenge on behalf of the vulnerable. That's an interference with their constitutional rights.
If you want to charter-proof whatever you do here, the only way to do that is by using the notwithstanding clause in section 33 of the charter. I haven't heard any senator or any MP who thinks that's a good idea. There are potential challenges from both ends of the spectrum here. Your job is just to exercise your best judgment.
My submission to you is that proposed paragraphs 241.1(2)(b) and 241.1(2)(d) are important to protect the vulnerable. To include them is consistent with section 7, and would be saved by section 1 in the alternative. To exclude them increases the risk of error and abuse substantially to mean, not only would it no longer breach section 7, you'd invite a challenge from the other side of the spectrum.
I would like to thank the committee for inviting me to share a few thoughts on this important topic, one that affects each and every Canadian.
My submission is informed by research and teaching in health and bioethics, including end-of-life law, informed consent, and professional regulation in health-based discrimination law. I felt particularly compelled to participate actively in the discussion about the legislative changes because the lived experience of euthanasia practice in countries like Belgium, which is my country of birth, is too often ignored in this debate. I have conducted detailed research on euthanasia law and practice in Belgium and published on what this experience means for the debate in Canada.
I'll say something here about one, why I support the bill's definition of what constitutes grievous and irremediable; two, the limitations of the safeguards in the bill and the option to add prior review; and three, the exclusion of advance directives.
With respect to the narrow criteria, it can be very short around the argument about consensuality. I agree with Professor Pothier that the bill's criteria response to the applicants in the Carter case also provides some protection to many vulnerable people whose lives could otherwise be ended prematurely.
It's not just constitutionally required, I think it's also good social policy. This is where the evidence comes in from other countries. Evidence from euthanasia regimes that combine open-ended access criteria with reliance on competency and informed consent assessment by individual physicians and limited—and I would emphasize limited—after-the-fact reviews of self-reported cases shows these regimes lead to a significant expansion of the practice. In Belgium, we have expansion from 347 cases in 2004 to more than 2,000 in 2015. That becomes a significant proportion of the total deaths in the country, particularly in the Flemish region.
Problematically it has led in the last couple of years to an expansion in areas around people with disabilities and now includes couples who want to die together, people struggling with gender identity, and people who are tired of life. I would add to that the problematic expansion in the mental health area for people, not just those are chronically depressed and may be treatment resistant, which in and of itself is a contested concept. I developed that more in some publications and in submissions I gave to the joint parliamentary committee. It's not just people who are chronically depressed, but now in Belgium it also includes people with personality disorders, post-traumatic stress, anxiety, eating disorders, schizophrenia, addiction, autism, and even complicated grief. These cases do raise questions about competency assessment and about the appropriateness of including people, who had potentially many years to live, in euthanasia practices.
Members of the committee should be critical of the claim there are no problems with the Belgian death regimes because this has been carefully evaluated by the trial judge and by several Canadian committees, as has been said before. This is incorrect. The trial judge accepted there could be problems with the Belgian system, as did the Supreme Court, which ruled for the problems that were brought in front of it, they did not have to look at the fresh evidence presented by Belgian developments because these cases dealt with cases outside of the parameters of its reasons, and because Parliament could develop, the Supreme Court suggested, a more narrow regime with more stringent safeguards.
More importantly many problematic developments have become apparent in the last five years. I provide detailed evidence of these controversial aspects of the real-life practice of euthanasia in my written submissions and in other writings I can share with the committee.
Let me say something about competency and consent procedures. A lot of weight is put in the bill on existing competency and informed consent procedures by physicians. It's true they are already used in health care and in end-of-life situations. Competency and informed consent assessment are not fail-proof. They're ideals. They try to create an ideal of autonomy, but challenges are widely recognized. The science of competency assessment is in its infancy. Health care providers admit that, yet others seem to put so much faith in physicians' ability to do this properly and in a much more difficult context of end of life.
In this context, these procedures play a much more important role. They determine the difference between life and death, and in the future in many more cases than in the context of the existing end-of-life practices. The limitations of current competency assessment and current informed consent procedures become more important.
When we expand MAID to situations where people are not at the end of life, the possible consequences of errors become much more serious because of the many years of life that can be lost.
I therefore recommend—and I developed it in more detail but I won't expand on it here—that the competency in informed consent assessments should include a much more sophisticated evaluation of contextual and personal factors that may impact on the desire to die and on the voluntariness of the request. Pain, emotional distress, mental illness, financial or familial pressures, availability of palliative care, and so on are important to look at. In my submission, I propose some changes to that effect to the bill.
With respect to the standards of informed consent, I would say that more rigorous informed consent practices are common, also, in areas of health care where there are concerns about increased vulnerability and the need for caution. I can give you the example of medical research. This is clearly the case here that we're dealing with a context of increased vulnerability in situations where people are suffering and the precise reasons for the desire to die may be unclear. Informed consent is also here integrated in the criminal context as a basis for an exception on a criminal law transgression, so it should be stringent. For these reasons, because of the limitations of informed consent procedures and competency, I personally believe that prior review would offer additional protection.
Prior independent review would not be needed in a perfect world, in which all professionals always respect their professional ethics standards and act cautiously, without error, without excessive zeal, and without pressures of the health care system, but this is not the world we live in. Havoc can be created by a few negligent physicians in the context of other professional practices, so it's clear that it also can do the same in the context of end of life. Evidence from Belgium and the Netherlands shows how just a few doctors—you only need a few doctors—can create problems and lead to a high number of problematic expansions. The claim that the medical profession can adequately deal with it may be generally fine, but prior review would safeguard, actually, against those exceptional cases of physicians who become sloppy or are not acting appropriately.
I'll say something very briefly, in conclusion, about advance directives. I can't expand on it in more detail, but I would suggest you read the submission.
Advance directives are an exception to the rule that people have to provide informed consent for, in this case, a life-ending practice. Second, when people are asked to write an advance directive after the diagnosis of dementia, as has been recommended by the joint parliamentary committee, competency is often already affected, so there are concerns about competency assessment. Third, people have difficulty imagining that they may enjoy quality of life and may find new purpose and satisfaction in life once dementia develops, yet this is often the case. People become different, and there are even changes in the brain that are associated with that. Would we hold people to their previously expressed wish, even if they are now seemingly satisfied and enjoying a good quality of life? I would urge the committee to look at a recent documentary in the Netherlands that highlights, I would say, the horror of forcing someone into respecting an advance directive when she—in this case it's a woman in her sixties—is still functional and still enjoys many activities of life, simply because she had signed an advance directive five years earlier.
I would also mention that there are often family members who may have the most trouble dealing with dementia. It becomes problematic when they then become, with well-intentioned reasons, the ones who have to judge when the life of a family member is no longer worth living.
I would say, and I would suggest you look at the submission, that even in the most liberal systems of Belgium and the Netherlands, advance directives are only allowed under very strict conditions. In Belgium, for example, they are only allowed when there is irreversible unconsciousness of the person. In the Netherlands, they're not binding and are generally not applied because they are so problematic.
Let me close by simply saying that in the context of this debate, many powerful narratives of people who may not have immediate access to MAID under the bill or others who clearly do not qualify because they cannot give consent have been put forward. I urge the committee to look at other powerful narratives of people whose lives were prematurely ended in open-ended systems.
A few of these cases have recently created a heated debate in Belgium and the Netherlands. Many other cases remain hidden, because this involves vulnerable, marginalized people who are no longer there to complain after the indeed terminal relief of their suffering. Family members often remain silent because of the trauma they experienced.
We should learn from the experience of these other jurisdictions and introduce a cautious, prudent, regime that ensures the charter-based duty to protect the vulnerable. Opening up the bill's access criteria, in my view, would put the most vulnerable members of our society at risk.
Yes, the cases that were brought to the Supreme Court by Professor Montero were considered by the Supreme Court, but were put aside because the Supreme Court basically argued that they were not dealing in their decision with people suffering from psychiatric disorders. They basically sent the message that they were not dealing with that particular category of people who might ask for physician-assisted dying.
The cases have become much more important, of course, and they are important to discuss here, and by the legislator, if people are asking for an expansion of the criteria. The reason that the Supreme Court didn't consider them makes it important to discuss them here.
Are there abuses in the Belgian and the Dutch systems? I would say the cases highlight the importance of prior review.
We have seen circumstances most recently, for example, in Belgium involving a 37-year-old woman. She had suffered from a mental illness in her younger years, but had been out of treatment for 15 years. She encountered a physician who, in the Belgian context, is known to be very supportive of euthanasia for psychiatric patients. She asked four months after meeting her for access to physician- assisted dying, or euthanasia as it's called in Belgium. She was then diagnosed with autism. People who look at this from a professional perspective, from the outside, say this is a strange phenomenon, and wonder why she was diagnosed with autism at this particular stage. Family members had trouble obtaining information about what exactly happened, and why she was diagnosed in that way, and then two months later she was euthanized in the presence of her traumatized family. It then took the family three years to complain about it. Why? Because they went to the Belgium euthanasia commission, which said the legal criteria were fulfilled.
In an interesting way autism fulfills the criteria of the Belgian act. So when individual physicians decide, whether they're well intended or not—and I'm not even saying that this is not a well-intended physician—when they may be overly zealous in believing that their role is to provide access to physician-assisted dying in cases, many other psychiatrists would find it highly problematic because of the fact that these people are worthy of our care and of our attention, and they should not be submitted to euthanasia.
A prior review system would basically provide a safeguard in that it can lead these individual decision-makings. It could question the individual decision-making by physicians who may be overly zealous and sloppy and may act in an incompetent way in cases like that.
Just as an example, I've tried to bring the following to light as I've discussed with nurses and others. Would it be a rule, for example in Alberta Health Services, which is probably the largest regional health authority in the country, that people receiving medical assistance in dying have a particular drug regime?
As a practitioner working in High Level Alberta, a small town, it doesn't happen very often. The supply chain fails, and this is what I have in the formulary. I don't have what that AHS policy says. Is it a rule, such that if I went ahead, I would find myself in jail or explaining myself to a criminal court when my priority had simply been my patient and they had met the eligibility criteria, but there's been a rule?
It is in situations like that where I think there are unintended consequences. The larger issue really is about civil liability. We don't have examples in the Criminal Code when they talk about criminal negligence and so on. It appears rarely in the code and they really want some kind of marked departure, some kind of taking yourself out of what the civil standard is, which comes to mind as I read subsection (7), which is also almost in the nature of “You should have known better and you shouldn't have done that”, rather than that you intended or there was wilful blindness, recklessness.
This is what we are concerned about when we think about what the evil is that is being addressed here. We already know that practitioners are balanced personally. They each have their own personal professional licence to practise. I've worked with CNPS for 16 years. I can tell you that practitioners are more afraid of going through professional disciplines than civil lawsuits. They understand it as a permission to practise and something that can be withdrawn from them if they do not practise according to practice standards and the code of ethics, which change. Therefore they have to stay on top of the changes in their own field, in their own discipline.
When we look at this and say we don't really like what's written there because of the lack of mens rea, is it needed at all? Well, we do know—I know this and I do this day in and day out—that nurses are sued for negligence and then the defence comes, so the courts are seized with it. When it comes to regulatory matters, there are statutes across the country that govern colleges of doctors, nurses, pharmacists, psychotherapists, and so on. They all regulate their own members by giving them practice direction, but then they also hear complaints from the public. As we know, there is no statute of limitations on when those complaints can come.
These consequences that normally flow from civil or administrative or regulatory breaches already exist, and there is no barrier to somebody making a complaint in that way or bringing an action in that way if they believe that a practitioner has violated their professional standards.
We appreciate the opportunity to appear before you this evening.
The Evangelical Fellowship of Canada is a national association of evangelical Christians. We were intervenors in the Rodriguez and Carter cases and have appeared numerous times before parliamentary committees on related issues.
Our affiliates include over 40 denominations comprising 7,000 congregations. Pastors and church members regularly care for people in crisis and those who are nearing death. Some of our denominations have extended care facilities and hospices.
The issue before us is how we as a society respond to the suffering of others. We believe the appropriate response to suffering is care, comfort, and compassion, not the hastening of death. Our belief in and commitment to the sanctity of human life and our calling to care for vulnerable persons animate the care we provide.
It is on this basis that we oppose the decriminalization of assisted suicide and euthanasia, but as the government is proceeding with legislation, we are calling for protection of conscience and religious freedom, for the strictest possible safeguards in order to minimize harm and risk to vulnerable persons, to ensure that occurrences are rare, and to protect our society's commitment to the respect for life.
On the matter of freedom of conscience and religion, the minister, when she appeared on Monday, said that this legislation does not compel medical professionals to participate in MAID. While that is technically correct, the also said that MAID is now considered “medically necessary” treatment. This places conscientious-objecting persons and institutions at risk of coercion.
Actually, in looking at it today, someone pointed out to me that proposed subsection 227(4) creates an exemption to section 14, which appears to, at least, delete the caveat of “no person is entitled to”. That seems to create an entitlement “for”.
Our concern is that creating a right establishes a corresponding obligation. If you accept the premise that medical aid in dying is a right, you have an obligation to protect, we submit, the freedoms and rights of doctors and other medical professionals.
The College of Physicians and Surgeons of Ontario, as you've heard, has already decided that all doctors must make effective referrals regardless of conscientious objection. What will this government do to protect medical professionals from being coerced to participate in the killing of another? Even in times of war, conscientious objectors were exempted. Medical practitioners must have the right to refuse to participate in physician-hastened death, either directly or indirectly, for reasons of conscience or deeply held beliefs, including the right not to make a referral.
Also, there has been no commitment made to exempt objecting institutions, thus protecting their staff and the communities that provide care, which we feel is equally important. We recommend that protections be included by express statements in the preamble of the bill. We also strongly recommend that conscience protection be included in the legislation as a stand-alone provision in Bill , or as an amendment to the Canada Health Act, or by creating a Criminal Code offence that prohibits coercion of patients, medical care providers, and institutions in relation to medically assisted dying.
Did you know that the Bank Act forbids a bank from coercing someone to obtain a product or service as a condition of receiving another service, or that it is an offence to coerce someone either to belong or to refuse to belong to an artistic group? We are talking about hastening the death of another in this context. How much more important is it to protect the conscience of medical professionals and institutions?
We are very concerned about the impact going down this road will have on suicide prevention efforts, on attitudes toward suicide, and on rates of suicide generally. In the long term, we believe this will impact the way Canadians understand suffering and the way they respond to it. We appreciate the statement in the preamble recognizing the lasting harm of suicide but feel the legislation needs to contain a stronger statement, acknowledging that suicide is a tragedy that hurts families and communities. We also ask that it be clearly stated in the preamble that the prevention of suicide remains a crucial public policy objective.
We would like to caution the committee against defining hastened death as health care. While this is not done explicitly in the bill, it is implied in the clauses in the preamble relating to the Canada Health Act and to the importance of a consistent national approach to health care. In nearly all public statements from the ministers it is clearly being framed as a form of health care or a medically essential service, as evidenced by the name “medical assistance in dying”.
First, we object to the notion that to deliberately hasten a person's death can be considered health care. Second, what the court allowed for and what the bill does is to create exemptions to Criminal Code prohibitions against culpable homicide and assisted suicide, which is solely federal jurisdiction and needs to remain there. To define this as health care is to relinquish that jurisdiction, and we urge caution on that point.
Further, if hastened death is defined as health care and accepted as such, it will become very difficult to deny access to anybody on any grounds. Such framing of the legislation sets it up for charter challenge.
We were relieved that Bill does not allow access to hastened death for individuals with mental illness or whose suffering is primarily psychological, but we note with concern that the preamble suggests that it is not so much a firm “no” as it is a “not yet”. We believe the risks to vulnerable Canadians are far too high to allow this. It should be an unequivocal “no”. To this end, in proposed paragraph 241.2(2)(c), we recommend that the words “or psychological” be deleted, so that the provision describes a condition that causes “enduring physical suffering that is intolerable” to the individual.
On the subject of reasonable foreseeability, we were advised by a lawyer that this concept comes from civil and criminal negligence laws. In the context of hastened death, a vague legal concept is not an appropriate criterion. Since under Bill it is doctors and nurse practitioners who will be the gatekeepers of eligibility, the criterion must be one that is medically understood and assessed. We suggest that “reasonably foreseeable” be replaced with either a specific time frame, such as six months, as in the state of Oregon, or “at the end of life”, as in Quebec. While there is still imprecision and guesswork in either of these concepts, they at least reflect the kind of assessment and judgment that medical professionals are accustomed to making, and therefore are much more appropriate.
We are very concerned that patients will be vulnerable to choosing hastened death if quality palliative care is not available to them as an option, so we affirm wholeheartedly the many calls you have heard for the importance of improved access. As Dr. Branigan said yesterday, we must make the right of access to palliative care as robust as the right of access to assisted death.
We recommend that proposed subsection 241.2(3) be amended to include a requirement that the medical or nurse practitioner ensure that the patient has had a palliative care or other professional consultation to ensure they have been fully informed about the range of available treatments and supports that could ease their suffering. We also affirm the recommendation of the Canadian Society of Palliative Care Physicians that the preamble include a commitment to the establishment of a national palliative care secretariat.
As an additional safeguard, Bill should require an independent prior review of all cases of hastened death. One way to do this, as you have heard, would be to extend the current requirement for judicial oversight as established by the court when the deadline was extended.
You have heard testimony about the efficiency of the consent and capacity boards in certain provinces. The key for us is this prior review of each case by more than just the two assessing physicians or nurse practitioners. Whether it is by extension of judicial oversight or some other mechanism, we strongly recommend that a straightforward, efficient system can and should be developed for independent prior review of all cases.
The CCCDL was formed in 1992. It has executive representation coast to coast to coast. We are very pleased to have been invited to be here to assist this committee in respect of this important legislative proposal.
Mr. Fowler and I will both be presenting. We are both practising lawyers in Vancouver. I'll make preliminary remarks, and Mr. Fowler will follow. We'll address legal and constitutional issues rather than issues that relate to beliefs and policy.
The Supreme Court of Canada decision in Carter began what is sometimes described in the law as a dialogue between the courts and Parliament. Now, to be constitutional, Bill must conform to what Carter addressed. Carter defined minimum requirements. Future litigation, I would urge, is to be avoided. It's expensive, it's time-consuming, and it is unfair to those who might avail themselves of this legislation.
The Supreme Court of Canada ruled, and that presents Parliament with options. Option number one is to do nothing. Of course, then, if nothing is done, the legislation will fall, and then there's a legislative void. Option number two is to enact law in accordance with Carter. Option number three is to enact a law that goes beyond what Carter says and what Carter addressed, for example, mature minors. It's my position that it is an example of an issue that is beyond Carter. It doesn't mean that it cannot be included, constitutionally or lawfully included, but it's not necessary to include.
The language that you choose can suffer from legal defects in one of two ways. One is over-breadth, as was addressed in Carter, and that is if the law captures more than is necessary to achieve constitutional objectives. A second way in which language can become legally defective or constitutionally defective is if it is vague. I suggest that, as you're contemplating language to address any of these provisions, you ask yourselves if there a common meaning. Is there a usual meaning? We heard discussion earlier that there may be an agreed-upon meaning within certain medical spheres. Ultimately, though, the meaning of a law is going to be up to a court, and it has to be sufficiently precise that it lends itself to interpretation by the courts.
The issue in Carter was whether it a crime to assist another in ending his or her life. The language of Carter, the constitutional language that resulted in the court striking the legislation, was based upon autonomy, dignity, and the need to protect the vulnerable. The conclusion was that “the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where” they give clear consent and have “a grievous and irremediable medical condition”. It is our position that the inclusion of the language of “natural death has become reasonably foreseeable” was not contemplated by Carter. It is a restriction, and, again, Carter addressed restrictions. The reason that the legislation fell is because the restrictions were inconsistent with the autonomy. I suggest to you that it is not necessary to include that limiting language.
More importantly, there are two further concerns. The inclusion of that language might give rise to challenges based upon issues of vagueness. What does it mean? Is there an agreed-upon meaning? Can that meaning be properly understood? Because it is a limitation, it might well invite further litigation, and that, I suggest, is to be avoided.
Thank you for this opportunity.
As this committee appreciates, from hearing the many presentations, medical assistance in dying is and will likely remain a subject that deeply divides people, based on ethical, moral, and religious beliefs. It is because of this that those medical and nurse practitioners who choose to provide medical assistance in dying—and I emphasize the word “choose”, because it's their choice—will, not surprisingly, find their actions carefully scrutinized to ensure compliance with the law. I wish to briefly explain how the law, as presently drafted, fails to protect medical and nurse practitioners who, acting in good faith, make mistakes in providing medical assistance in dying. In other words, what could happen to a doctor or nurse who fails to appropriately apply all the safeguards? Bill essentially sets out an exemption for what would otherwise be a culpable homicide—and that has to be emphasized—more specifically, first degree murder, an illegal act intended to cause death, which did cause death, and was planned and deliberate. Proposed subsection 227(1) of the act provides that a medical or nurse practitioner does not commit a culpable homicide if they provide medical assistance in dying in accordance with proposed section 241.2 of the Criminal Code.
In other words, failing to comply with all of the safeguards and other provisions in proposed section 241.2 would, potentially, leave a doctor or nurse liable to being prosecuted for a culpable homicide. The only logical culpable homicide would be first degree murder, which as you all know, has a minimum life sentence and minimum parole ineligibility of 25 years. So, that's what they have hanging over their heads, as it stands at the moment, with one exception, which I'll come to in a moment, if they get it wrong in good faith.
You have all seen and been referred to the eligibility requirements and safeguards. They are rightly stringent, but they also include matters over which different people, different doctors and nurses, might disagree, particularly, for example, on questions of whether death is reasonably foreseeable. You heard, I think, earlier today a doctor talk about the fact that foreseeability of a death is something that doctors can disagree about. It is because the safeguards are so stringent that it is easy to see how a doctor or nurse might make an honest error.
For example, a request for medical assistance in dying must be signed and dated before two independent witnesses. Proposed subsection 241.2(5) defines who is or is not independent. For example, a person is not independent if they are a beneficiary under the will or a recipient in any other way of financial or other material benefit resulting from the person's death. It is the doctor's or nurse practitioner's responsibility to make the evaluation of independence. What steps must they take? What degree of inquiry must they make to fulfill this requirement? Do they need to go looking for the will? Do they need to speak to the person who is seeking to die? What level of inquiry is necessary to determine independence? If it later turns out that one or both of the witnesses were not independent, the only defence available to the doctor or nurse would be that their mistake was reasonable. Proposed subsection 227(3) of the act provides a defence if a person makes a reasonable mistake in respect of any fact that is an element of the exemption. In other words “reasonable” means by some objective standard, standards that we don't yet know. You've heard that from other people, because this legislation hasn't come into force. A doctor or nurse who had made a mistake, who acted unreasonably but honestly, in that they believed what they were doing was correct, would not be able to avail themselves of that defence in proposed subsection 227(3). It's what we call in law the difference between a reasonable mistake and an honest mistake. One is objective and one is subjective. A person who makes an honest mistake can still be liable to be prosecuted for murder. They act in good faith but they make an honest mistake.
It is our submission that limiting the defence in proposed subsection 227(3) to only reasonable mistakes rather than honest mistakes—a distinction that is very meaningful in the criminal law—is wrong and potentially unconstitutional, particularly with regard to any prosecution for murder, because, as I'm sure many people here will appreciate, you can only be convicted of murder if you have the appropriate subjective state of mind. It's not measured by any objective standard. However, this exemption is measured entirely by objective standards.
It is our submission that proposed subsection 227(3) should be amended to read:
|| For greater certainty, the exemption set out in subsection (1) or (2) applies even if the person invoking it has an honest but mistaken belief about any fact that is an element of the exemption.
Thank you, Mr. Chair and members, for having me speak to you today.
I'm going to speak about an issue that could potentially affect the lives of thousands of Canadians. I'll be speaking specifically about the reasonably foreseeable clause and taking the position that was mentioned by colleagues here, that it's not necessary and is problematic.
My hope and the hope of many other Canadians is that the new legislation will prevent situations like that of Sue Rodriguez, who in 1993 was refused permission to get assistance in dying even though she was facing a situation she could not bear to live with, the prospect of long-term and almost total paralysis. Once paralysed she would be unable to do anything to end her own life, which of course would have been perfectly legal. Suicide is legal in Canada, of course, but she was legally prohibited from getting assistance with this legal act.
She did eventually get help from an unknown sympathetic doctor who risked his or her own freedom to save Rodriguez from the grim fate the law said she just had to endure. This is not good enough for a civilized country. Many of us thought that Bill would help people like Sue Rodriguez and others who find themselves, to use the Supreme Court terminology, with a “grievous and irremediable medical condition”, or to put it in other words, we hoped that the new legislation would be the solution for people in a condition of unrelenting, inescapable misery.
Unfortunately, Bill would not have helped Sue Rodriguez. This is because of proposed paragraph 242.2(2)(d), which specifies that in order to be eligible for medical assistance in dying, natural death must have become “reasonably foreseeable”. Presumably whatever this means, it must mean something to do with death being imminent. Death was not imminent for Sue Rodriguez. She might have gone on living for years trapped in her paralyzed state.
A similar conclusion about the bill was arrived at by the family of Kay Carter, who was a central figure in the B.C. Supreme Court case that led to the unanimous ruling of the Supreme Court of Canada to strike down our assisted suicide law. Kay Carter was not about to die naturally when she went to Switzerland to get aid in dying, yet her case was at the heart of the decision of the courts. Surely now denying assistance in dying to people like Kay Carter would be a violation of the spirit of the decision of the courts.
Of course, there would be other consequences of the reasonably foreseeable clause. Some people would be forced to go on living in a state of grievous and irremediable suffering. Those with money would simply go to Switzerland. Those without money would simply be out of luck. Some of the unlucky ones would choose very grizzly means of dying, such as shooting themselves, jumping off a high place, or starving themselves. Some attempts at suicide, such as taking an overdose of some drug, may fail, possibly leaving people in worse shape than before.
We can anticipate new charter challenges on this reasonably foreseeable clause if the bill stays as written. But if Rodriguez and Carter would not have been helped by Bill , I began to wonder who would be.
My recent book, The Right to Die, catalogues all the major assisted death cases in Canada since 1941. There were 35 for which a reasonable assessment could be made. Most of the individuals involved in those cases, like Sue Rodriguez and Kay Carter, would not have been helped by Bill . Of the 35 cases, 27 or 77% would not have been helped by Bill . Of those 27, by far the largest number, 19, would likely be excluded by the reasonably foreseeable clause. This is shown in the table that I handed out earlier, where cases are all listed with an assessment of how each might or might not have been affected by the new law.
Thus we have a bill that does not help most of the people who need such help. The main reason is the reasonably foreseeable clause, as judged by my analysis of real Canadian cases. It does not help those who actually need help most. Why do I say that? If a person is about to die anyway, helping them along can indeed be an act of kindness, but with death imminent anyway, their relief from suffering is limited to the short period of time left. It is surely an even greater kindness to provide wished-for assistance in dying to those with grievous and irremediable suffering that might go on for years.
There are other issues one could take up with Bill C-14, for example, the matters of mature minors and mental illness, which have been talked about a lot today. However, these are rare. No examples came up in my survey of Canadian cases. Moreover, the issue of advance directives is an important one. It came up four times out of 35 cases in my analysis. It is a complex issue, and I don't argue with the bill's treading cautiously here.
The reasonably foreseeable clause, however, is a very big problem. It seriously limits the good we can do with this legislation. The bill is about granting mercy to the suffering. Is there any good reason why such mercy should be a rationed commodity? Why should our compassion be limited to those are on the verge of dying? All of those—not just those who are about to die but all of those—in a condition of grievous and irremediable suffering, in a state of misery that cannot be fixed, deserve to have their wishes respected. All of them should have access to assistance in dying.
Thank you to the witnesses for taking your valuable time to be with us today.
As I'm sure you're aware, we just had our first vote on Bill C-14. From your comments, I would assume that everybody would be voting against it. Maybe, maybe not, but I don't see anybody who has expressed total satisfaction.
I'm going to assume that if there is support, it's conditional upon amendments. It took Quebec six years and three premiers to pass their legislation, but we're going to do this within just weeks. I'm concerned about the rush-rush, and I wish we had more time to do this properly.
I believe it was Mr. Clemenger who made a comment about the importance of conscience protection. Bill C-14, as we've heard from the minister, does not compel or require a physician, a medical practitioner, a nurse practitioner, or a pharmacist, to participate in assisted suicide against their will. They're not compelled to do so. Yet there are hints that it would be the college of physicians and surgeons within each province that would determine whether a person were required to have an effective referral or not, which some physicians would find objectionable.
I met with an internist, who is now retired but was a doctor who practised medicine in British Columbia, who gave me a long list of examples in which there had been error in the continual care of a patient—people who were misdiagnosed and not treated properly and who ended up dying because of the lack of proper care. I asked, “Is this human error?”, and he said no, it was not. It was negligence in each of the cases that he gave to me. He said, “I'm not here to talk about conscience or the morality of this, just the practical way of dealing with it.”
There are problems in the regime being proposed, but I want to focus on conscience protection. The Canadian Medical Association said that 70% of physicians in Canada do not want to participate or refer in assisted dying. The other 30%, or 23,000 physicians, would be adequate to provide access. Why do you believe there's a push to the effect that the 70% are not protected—not compelled or required, but not protected...? Why is it so important to have conscience protection included in Bill C-14, or should Bill C-14 be amended at a future date?
I have one short wrap-up question if it's okay with the panel.
You are the first people who have raised the issue of changing “reasonable but mistaken belief” to “honest but mistaken belief”, so I have a question. I'd appreciate your perspective.
I'd like to ask a question, and I'll give you a concrete example. Dr. X has a friend, Mr. Y. Mr. Y comes to Dr. X after this law is adopted and tells Dr. X that the law says only doctors are allowed to perform medically assisted suicide, and his wife has requested medically assisted suicide. He says she is lying in their bed in their home, very sick, and suffering interminably. The wife is lying there, sedated, and Dr. X is told that there is no other requirement in the law other than the one that a doctor perform this act. Dr. X goes ahead and performs this act at the request of Mr. Y.
Dr. X never looked to see what the law said, and he made no effort to be reasonable and understand what the provisions of the law were, but he had an honest but mistaken belief, based on his relationship with Mr. Y, that this was perfectly okay. Based on what I understand, although I have to research what the common law actually says with respect to honest but mistaken belief, this doctor could have had an honest mistaken belief, based on what his friend told him, while doing no investigation whatsoever, and factually, she was out. He was grossly negligent, but he may have been honest. Do you believe that type of person should not be charged with murder or homicide?
Good evening, and thank you for the opportunity to testify before you tonight.
In the time available to me I will not praise the bill, despite the fact there is indeed much to praise in it. I'll instead focus on suggestions for changes to the bill.
The reasons for these suggestions are that Bill is inconsistent with the Supreme Court of Canada's decision in Carter v. Canada. That is, it is inconsistent with the Canadian Charter of Rights and Freedoms for individuals who meet the Carter criteria. Bill C-14 is also inconsistent with the charter in relation to mature minors, individuals with mental illness, and requests made in advance of loss of capacity.
Unless Bill is amended, many individuals experiencing enduring and intolerable suffering from grievous and irremediable conditions will be left with three options. They can take their own life prematurely, often by violent or dangerous means; they can stop eating until death by starvation is not too remote or in the not too distant future, such that they will then qualify for assisted death; or they can suffer until they die from natural causes. This is a profoundly and unconscionably cruel choice.
Proposed subsection 241.2(2) unjustifiably limits access to medical assistance in dying. There are a number of problems here. First, contrary to the government's assertions, Kay Carter of Carter v. Canada would meet the Supreme Court of Canada's criteria for access, and yet would not meet the bill's criterion of a reasonably foreseeable natural death. Kay Carter had spinal stenosis. This is not a life-limiting or terminal condition.
There is no indication in it's decision that the Supreme Court of Canada thought that Kay Carter's natural death had become reasonably foreseeable in terms of temporal proximity. There was no evidence on the record before the court that Kay Carter's death was reasonably foreseeable in any temporally proximate way. In fact, it was just the opposite.
To pick but one of many possible examples from the evidence before the court, as Kay Carter wrote in her letter to Dignitas clinic in Forch, Switzerland:
||The neurologist, Dr. Cameron of North Vancouver, assessed me and I had a CAT scan and MRI done. From these tests he told me that I had an ongoing, slow deterioration of the nerves that would never kill me but eventually would reduce me to lie flat in a bed and never move.
Second, the government's position on Kay Carter, mental illness, major physical disability, and Bill is incoherent. The government has no evidence upon which to conclude that Kay Carter's death was not too remote, apart from the fact that she was old. On the logic of its position, if someone has a non-life-threatening mental illness or major physical disability as their sole condition, as long as they are old, they will be eligible. Yet this is precisely what the government is trying to prevent with proposed paragraph 241.2(2)(d). So either Kay Carter didn't meet 241.2(2)(d), or Bill C-14 allows access to medical assistance in dying for individuals whose sole condition is a non-life-threatening mental illness or major physical disability. The government is trying, but they cannot have it both ways.
Third, the phrase “reasonably foreseeable” is untenable as a criterion for access. “Reasonably foreseeable” is impermissibly vague. The debate about whether Kay Carter herself would meet this criterion makes this point crystal clear. The government's suggestion that “reasonably foreseeable” be interpreted as “in the not too distant future” or “not too remote” flies in the face of common usage where it means predictability, not temporal proximity.
Contrary to claims made by the government, the meaning proposed for “reasonably foreseeable” in the government's glossary and public remarks is not consistent with the meaning of “reasonably foreseeable” in either the criminal law or tort law where it means predictability, rather than temporal proximity. That is, it means you can “foresee that” rather than “foresee when”.
I'll now turn to my proposed solution.
First, delete proposed subsection 241.2(2). Second, add “including an illness, disease or disability that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” to proposed paragraph 241.2(1)(c). Third, add the following definition: “Irremediable” means “cannot be alleviated by means acceptable to the person”. Fourth, replace references to “reasonably foreseeable” elsewhere in the act.
Now I'll move to my second issue, namely, the exclusion of mature minors, individuals with mental illness as their sole condition, and requests made in advance of loss of capacity. It is important to note that the government has acknowledged that Bill limits the charter rights, specifically by excluding mature minors, individuals with mental illness as their sole condition, and requests made in advance of loss of capacity. However, it has failed to provide parliamentarians with any reasonable basis on which to conclude that these limits are, for section 7 rights, in accordance with the principles of fundamental justice, or for both the sections 7 and 15 rights, demonstrably justified in a free and democratic society. In other words, you have not been given anything solid upon which to base a conclusion that this bill does not violate the charter.
The government provided a legislative background document to explain why it has concluded that Bill is consistent with the charter. However, this document's justifications for limiting the rights are grossly inadequate. The document's weaknesses include the following: misrepresentation of legislation in the permissive jurisdictions; misrepresentation of data from the permissive jurisdictions; reliance on unreliable sources of evidence for claims about the permissive jurisdictions; reliance on an ethical distinction explicitly rejected by Justice Smith in Carter; reliance on assumptions that are fundamentally inconsistent with the advance directives legislation in place in provinces and territories across this country; and reliance on a staggeringly unbalanced set of experts.
Contrast it with two other significant documents that are available to help guide you in your decision-making, the report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, and the report of the Special Joint Committee on Physician-Assisted Dying. Given that they do not share any of the legislative background's weaknesses, I would argue that it is more reasonable for you to rely on them than on the legislative background document, and I would remind you that they both recommend against excluding mature minors, individuals whose sole grievous and irremediable condition is a mental illness, and advance requests.
As for solutions, I think the best solution here would be for you to make amendments to Bill to make it consistent with the recommendations of the provincial-territorial expert group and the special joint committee, and thereby the charter.
The second-best solution would be for you to have the provisions just mentioned, but have them come into force two years after the act receives royal assent, giving time for the development of policies and procedures and education of health care professionals and the public. However, note that this relates to how, not whether, to include these elements.
As an absolute bare minimum, I would argue that you should delete the preamble's reference to a commitment with no deadline for an exploration of the contested issues of mature minors, advance requests, and requests where mental illness is the sole underlying medical condition. Add a statutory mandate that is in the body of the act for independent expert studies of the contested issues with a prescribed and short deadline—for instance, 18 months—for reporting back to Parliament.
A mere preamble reference to a commitment to do reports on these three pressing issues is too weak when charter rights are being limited and the only question is whether the limits can be justified. Real people suffering in agony will have their charter rights limited every day until the government commissions the studies and then reports back to Parliament. They deserve more than Bill provides.
Thank you very much, Mr. Chair.
Good evening, everyone. I'd like to extend our thanks to each of you for all the long hours that you've put in here doing some very important work for us. Thank you very much.
In the Islamic faith tradition, neither euthanasia nor assisted suicide is supported or encouraged. However, since that matter has already been decided by the Supreme Court, our concerns and recommendations regarding Bill centre around three things: safeguarding the interests of patients in distress, minimizing errors, and conscience protection for health care providers and faith-based facilities.
Most Canadians would agree that life is sacred and that an effort should be made in most if not all circumstances to preserve it. The Koran highlights the importance of saving a life. In verse 5:32 it says: “Whosoever saves a life, it is as if they had saved humanity entirely.” Undoubtedly, the issue of assisted dying is of concern to many Canadians. Canadians are caring people. When we see others in pain and distress, we want to help.
Muslim faith leaders, along with those of other faiths, have a long tradition of caring for the ill. We have witnessed first-hand the terrible toll that illnesses and pain can take on patients and their families. We understand that in some cases, patients experiencing extreme levels of pain and suffering and those expecting the same in the future may desire an end to their life. We empathize with them, and as we draw from our faith traditions, we are instructed to pray for them to gain relief from their suffering and to try our best to make them comfortable by providing the best possible care.
We also know that when a human being voluntarily seeks an end to their life, it is a testament to the extreme pain and distress that they are experiencing or that they are fearing. It is a cry for help.
Whenever an individual seeks to end their life, we as a society know not to grant them their wish. Rather, we offer them compassionate care and assistance with the aim of alleviating the pain and distress that they're experiencing. We never assist them in ending their lives and instead make efforts to dissuade them from doing so.
Requests for death due to pain and distress caused by illnesses or disabilities should be dealt with in a similar manner.
We therefore recommend: first, that under safeguards, Bill require medical practitioners to ensure that after making a request for assisted death, patients are met by an end-of-life care team consisting of a psychiatrist, a social worker, and, if the patient so wishes, a spiritual care provider; second, that members of the end-of-life care team be required to discuss with patients the reasons for the request and present all available care options to ensure that patients are voluntarily making informed decisions; third, that the end-of-life care team and the medical practitioner confirm that all available treatments and pain reduction techniques have been exhausted and that they have not been able to make the suffering tolerable for the patient under conditions that they consider acceptable.
While Bill offers some safeguards, we believe there should also be measures in place to ensure that patients and the vulnerable are protected from errors that could have serious consequences. We therefore also recommend that the ability to provide assistance in dying, including access to substances that cause death, be limited to specially trained and certified health care practitioners authorized by the Minister of and the Minister of .
This would entail modifying the text of the bill by adding the phrase, “authorized by the Minister of and the Minister of ” after all references to medical practitioner or nurse practitioner when referring to those permitted to provide assistance in dying.
We are also very concerned about the protection of conscience rights of health care providers and faith-based facilities. Conscience rights should be given the same level of importance as the patient's right to seek assistance in dying. In our view, the level of disengagement from assisted death should be at the discretion of individual health care providers and faith-based care facilities and should be publicly disclosed to would-be patients. This should be specified in the bill.
We firmly believe that as Canadians we must do more to provide compassionate care to those who are ill and to find better and more effective ways to alleviate their suffering and improve their quality of life. We believe it is possible for the federal and provincial governments to respect the Carter decision while promoting the sanctity and value of life.
Instead of encouraging death, let us come together to enhance and cherish life. Thank you very much.
Ladies and gentlemen, thank you very much for having me here tonight. I'm here on behalf of the Justice Centre for Constitutional Freedoms, which is a non-partisan, non-religious charitable organization. Our emphasis is focusing on the charter rights of Canadians, with a special emphasis on the charter rights found in section 2.
I'll start by complimenting the attorney general on Bill , because I think there's much in it that's commendable. While I'm here tonight to talk about conscience rights specifically, I think it's important, given what I've heard here so far tonight, to mention that we believe that Bill gets a number of things right. It keeps accessibility to this to people who are adults. It keeps the decision with respect to access made for those who are competent at the time of making the decision. We think it gets right that an individual needs a physical ailment and that a person must be mentally sound.
A timely report was released today by what was formerly known as the British Medical Journal. It's now called the BMJ. It was released today. It's been reported on internationally. What it said was that medical error is the third-leading cause of death in the United States. I just want this committee to think about what that means. That means that the medical community, when they're attempting to save somebody's life and prolonging health, kills almost as many people—the third-leading cause of death—as cancer and heart disease in the United States. The system of reporting deaths in Canada, the U.S., and the U.K. relies on what's known as a mortality coding system. It doesn't capture death from medical failure, so it's unknown exactly how many people are being killed accidentally in Canada by the medical community.
My point in referencing that is simply this: mistakes happen, and there are people who are vulnerable in this country who need to be protected. It's apparent that they need to be protected from the very people who are being given licence right now to assist a person to die. It's with great solemnity, I think, that this issue comes before this committee.
The court in Carter said that “Complex regulatory regimes are better created by Parliament than by the courts.” It was in the context of noting the need for legislative reform to allow for medical assistance in dying that the court discussed and reiterated the conscience and religious rights of medical practitioners, stating that “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” That's at paragraph 132. Instead the court underlined that “The Charter rights of patients and physicians will need to be reconciled...”. It was within the rubric of reconciling those rights that the court in Carter suggested statutory balancing, statutory address. Unfortunately, Bill fails to do that.
It's our continued recommendation that, in order to comply with Carter, Bill should codify the protections for the conscience rights of physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, to refuse to participate in and refuse to refer for MAID.
The applicants in Carter neither sought nor received a charter right to compel doctors or health care workers to provide or refer for MAID. Despite that fact, the colleges of physicians as well as nurses' associations have instituted requirements that their respective members participate in MAID in disregard of members' conscience rights, on pain of professional sanction and reprisal in some cases. This is Parliament's opportunity to bring uniformity and clarity to the issue of conscience rights, and was made for that reason.
I have two pragmatic reasons in addition to the reasons that were set forward before the subcommittee. First of all, tens of thousands of Canadians trust and rely daily on medical practitioners to perform their duties in an ethical and conscientious manner in the provision of service. The provincial colleges of physicians have ethical requirements for doctors, and they expect physicians to be governed by a strong sense of moral and ethical responsibility.
We say that this committee has to consider the ramifications of overriding a physician's conscience in one aspect of service and then expecting that same physician to act in a conscientious or ethical manner in all of these other service requirements.
We also say it's important for Parliament to recognize that what Carter was talking about was a balancing of rights. There is a right to die recognized in Carter, but there are also rights for medical practitioners. It's important not to lose sight of the forest for the trees. The people who under this current Bill will be implementing MAID are the people who will wake up tomorrow morning, look themselves in the eye, continue on with their daily business, and know that they performed their duties in an ethical and conscientious manner. The people who have availed themselves of MAID will be gone, but the medical practitioners will still be here.
In my respectful submission—I don't mean to be trite—is it a proper balancing, looking at somebody's life on the verge of expiring, weighed against the decades of medical practitioners who still, on a day-to-day basis, must act in a conscientious and ethical manner? Is it not disproportionate to focus solely, or almost exclusively, on the rights of patients as opposed to those who are tasked with implementing MAID?
We say it is. We say a proper balancing would never oblige an individual to participate in MAID. There have been lots of discussions about whether or not it's legal or constitutional to include a protection in Bill for conscience rights. We say it is.
First of all, it is clear that right now Bill is dictating how MAID can be implemented and who can implement it. It is making regulations. It is making laws, or it purports to make laws, with respect to how MAID is to be carried out in the province. If the province is the sole entity that can make laws with respect to MAID, then this legislation would be offside. It's clear that this is not the case. We say it's apparent that conscience rights can be protected.
I would direct your attention to the circumstances in this example, one out of a number that we've thought of. Of course, the general rule with respect to culpable homicide is that there's no killing. It's sort of similar to the general rule that if you are a Canadian individual or organization, you have to pay taxes, because federal taxes are the purview of Parliament. Charities are controlled by the provinces, under section 92 of the Constitution Act, 1867, and yet charitable organizations have to make application to the federal government to both obtain charitable status and continue it. The reason that's the case is that otherwise they would not be allowed to do what they are allowed to do, which is accept tax-exempt donations.
In summation, I'll say that there are other analogous circumstances, such as in the Civil Marriage Act, where there are enumerated protections for conscience rights. We say it would be a mistake not to codify the same in this legislation.
I think this is one of the spots where the federal government deserves a lot of credit, because they recognize that this is one of those issues that is absolutely federal and provincial. How do we do this? They have taken it as an opportunity to exercise co-operative federalism. It's a muscle we haven't been exercising a lot recently, but this is one of those moments, and they've taken it. They've said, “We're going to facilitate the development of this together with the provinces and territories”. They're putting their money where their mouth is on the facilitation of development with the provinces and territories. It's a pan-Canadian care pathway.
What that is about is protecting the conscience of providers, ensuring access for patients, and protecting the privacy of willing providers. They've recognized the need for conscience protection, but it's dealing with it in the way that makes a lot of sense in terms of our division of powers, in terms of our history with respect to where conscience is regulated, and with respect to this sense of co-operative federalism. Where we have shared jurisdiction, let's talk, let's do it together, and let's figure it out and not torture something into a federal act. That isn't the way to do it.
I think that's promising for having some harmonization. I hope that group would bring the federation of colleges and physicians, and the surgeons, and the nurses to the table and say, “We're all sitting down here, and we're not leaving until we figure this out together”, because the colleges of physicians splintered within a week of getting together on this, and that's problematic. The nurses, not so much, and that's fascinating.
Let's say that this is the kind of thing that we solve together, and bring those different levels of regulation together to solve it, because everybody shares the same goals. I want to protect conscience, you want to protect patient access as well, and we all want to protect privacy. I think that's how we have to do it.