Justice Committee on May 2nd, 2016

[The Chair, Liberal, Anthony Housefather]

By the way, Mr. Piragoff, I'm sorry that I didn't notice you there before. Welcome to you as well.

[Donald Piragoff]

I'm hiding in the corner.

[Voices]

Oh, oh!

[The Chair, Liberal, Anthony Housefather]

Now we move to Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I want start with where I ended in conversation with Minister Philpott on the safeguard that requires one to “immediately before providing the medical assistance in dying” give the person an opportunity to withdraw their consent. A person who is at home with medication that might have been prescribed months or perhaps years ago can hardly be immediately provided that opportunity to reconfirm their expressed consent. I fail to understand how that section can be given any meaning in practical terms in the context where there's no medical practitioner around and the medication was provided perhaps months ago.

[Donald Piragoff]

I think Minister Philpott answered that question by saying that in terms of the provision of medical assistance in the situation of the provision of a medication, the assistance is provided at the time that the medication is provided to the patient. That is the time when the assistance is provided.

If the person takes it the next day, or if they don't take it until two months later or they never take it, at that point in time the assistance has been provided by giving the individual the means to take their own life, to self-administer the medication. At that point, the time when the doctor or the physician or the pharmacist provides the medication, is the person competent? Do they understand what the effect is of the medication? They may not take it.

In the United States, for example, some people don't take the medication for months after. Actually, some people don't even take the medication at all—

[Murray Rankin, NDP, Victoria, BC]

That's precisely the problem. I simply don't understand how in that context one could say you're “immediately” providing that opportunity, when it may well be months, if not years, before the patient opens the bottle at home.

[Joanne Klineberg]

I think we have to read the provisions of the legislation consistently with each other. If we look at the definition provided of “medical assistance in dying” in proposed section 241.1, it's actually a defined term in the legislation. It makes it a lot easier to draft the rest of the provisions, and the paragraph (b) part of ”medical assistance in dying” talks about the prescribing or providing by a medical practitioner or a nurse practitioner of the substance to the person. It's immediately before that action that the consent of the person is to be obtained. There's also a criminal law reason for that, which is that the criminal law is not concerned with private acts by an individual who might chose to die by suicide.

The criminal law is concerned with the participation of third parties in that decision. The exemptions and the whole regime are set up to provide for a criminal exemption for physicians when they're participating in the action by a person to self-administer a substance. The physician or the nurse practitioner's involvement is at the time they either write the prescription or give the substance over. Beyond that point, the action of a person who might privately self-administer the substance in their own home is simply not a question of concern to the criminal law; there's no crime being committed in that circumstance. The criminal law runs out. However, it may be a matter that the provinces and territories or medical colleges might have an interest in addressing more fully.

[William F. Pentney]

Just to respond very quickly to the honourable member, Canada is a big and complicated country. There is no federation in the world that has taken on medical assistance in dying from a federal perspective in the way that Canada has. One of the choices that the government has made is not to require that it only be available through a doctor administering it. That was a choice in which Quebec, after long debate, decided the government was entering into a more complex area by allowing both, admittedly—but it is respecting the autonomous choices of Canadians. One of the choices that has not been made in the legislation is to require a doctor or a nurse practitioner, just before the person administers the substance, to be available. As has been explained, the “immediately” must be read in the totality of the context. However, it's also in recognition that this is to respect people's autonomy in making choices. I think it's fair to expect, based on other countries' experiences, that some people who seek medical assistance from a doctor and others who would like to self-administer, at the end of the day, will decide not to go ahead. In both circumstances, respecting their autonomy is something that the legislative framework is trying to achieve.

[Murray Rankin, NDP, Victoria, BC]

In the context of someone who is physically disabled but whose natural death is not reasonably foreseeable and is therefore required to starve themselves if they are not able to avail themselves of medical assistance in dying, would that potentially constitute in those circumstances a violation of section 7, consequent cruel and unusual punishment or otherwise inconsistent with the security of the person? If so, was that taken into account?

[William F. Pentney]

Maybe I'll start, and others can add to it.

The law is designed to respond to the overall circumstance of someone who is on the passage towards death. It is not designed to respond to a situation that changed someone's life circumstance after an accident, or where they get a diagnosis of some sort that changes their life circumstance. It's the totality of the four elements together. It may be the case that someone with a condition that is not otherwise going to end their life is suffering for other reasons and has another condition that is impairing them and has, therefore, put them on the path towards death. It's not an a) or a b) or a c). It's all of them together in the totality of the circumstances. An individual, whether or not they have a condition that is labelled as “terminal” but is dying of another condition and suffering from a third completely separate condition, in the totality of their circumstances, could be found to be in a situation where their death, to quote the bill, “has become reasonably foreseeable”, and qualify for medical assistance in dying.

Therefore, in that sense, it isn't meant to be categorical, but meant to be the totality of the circumstances involving all of those considerations.

[The Chair, Liberal, Anthony Housefather]

Sorry, I think Mr. Rankin understood that. I think he was asking whether or not, given the way the legislation is drafted, a decision not to provide medical assistance in dying in the example he provided—a gentleman who had had a stroke, who couldn't do anything but move his eyebrows and was incapacitated and wanted to die and had to starve himself to death—would be consistent with the Carter decision. He's asking whether or not you believe that the law as drafted is compliant with the Carter decision in that regard.

[Donald Piragoff]

If a person embarks on a hunger strike or just stops eating for whatever reason, either a medical reason or because they decide to exercise their right to withdraw treatment, they have that right. A person has the right to say, “I do not want any food or liquid from this point on. I do want any medication.” They have the legal right to do that.

At some point after they make that decision, a doctor can say that this person's death is reasonably foreseeable. They don't have to die of starvation, because at that point in time a A doctor can say that this person is going to die a natural death as a result of malnourishment, and that they therefore may qualify. Of course, that's not the only condition they must have; they have to meet all the other four or five conditions.

[Murray Rankin, NDP, Victoria, BC]

But it's only if they starve themselves to death.

[Donald Piragoff]

No, they don't have to starve themselves to death.

[Murray Rankin, NDP, Victoria, BC]

Well, they get to that point with no assistance from this bill at all, and it's contrary to the Supreme Court's decision, I say with great respect.

[Donald Piragoff]

A person can be put into that position by natural causes. It may happen that they can no longer take nourishment because they have had a stroke, for instance.

[The Chair, Liberal, Anthony Housefather]

I'm going to let Mr. Kennedy speak, and then we're going to move to Mr. Bittle.

[Simon Kennedy]

I'll maybe draw the committee's attention to Minister Philpott's intervention on this matter, because I think this was a guiding consideration for the government. In looking at this there were effectively three choices: to have a fixed timeline under which death could take place, which is within six months or a year; to have no timeline whatsoever; or to have what the bill has—to provide some latitude for medical practitioners, in each individual case, to make that kind of judgment. I think the government's decision was to go for that option because six months or twelve months would be somewhat arbitrary. I think the committee's going to hear from a lot of experts.

The alternative, really, would be to have no constraints whatsoever on this notion of reasonably foreseeable death. As the ministers noted, I think that's where there were a lot of concerns about safeguards for the vulnerable, about how it becomes a much more complex undertaking to figure out how you strike the right balance among all the competing interests if you don't have that kind of limitation. It was a choice, and admittedly there may be unique individual circumstances that present themselves. However, I think the idea was to give some latitude to medical practitioners to look at the totality of evidence and make the decision. I reiterate what the minister said.

[William F. Pentney]

We should confirm that it is our analysis and the government's belief that this does comply with both the Carter decision and section 7 of the charter. We should confirm, as has been previously confirmed by ministers, that we believe the complex regulatory regime, which is what Carter called for Parliament to enact, and which is before the House today, represents an approach that is compliant with the charter.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We really appreciate it.

Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

I'd like to focus on the definition of “grievous and irremediable”, and I'll start with proposed paragraph 241.2(2)(a). What is the difference between “irremediable” and “incurable”? When you say the word “incurable”, what comes to mind is that there could be a cure—for example, if someone had cancer and was required to go through several rounds of chemotherapy—but that the treatment in and of itself might cause enduring physical and psychological suffering. Can you explain that definition, and whether it meets the criteria set forth in the Carter decision?

[William F. Pentney]

First of all, the term “grievous and irremediable” is not a term that is littered throughout either the criminal law or medical practice. It's not generally been defined, and it's not defined by the Supreme Court of Canada decision.

Nonetheless, it's clearly not meant to apply to transient conditions. As the court notes, and as was noted by ministers earlier, individuals through this bill still have the right to refuse treatment they find unacceptable. It's meant to distinguish between conditions that are transient and conditions that are not. It is not meant to signify that an individual has to take treatment that they find unacceptable to themselves. As was said earlier, the bill must be read as a totality.

[Chris Bittle, Liberal, St. Catharines, ON]

Is there something in the bill itself that speaks to that particular point or is that just a legal interpretation of what's here?

[William F. Pentney]

In particular, you referred to paragraph (a) and the wording “serious and incurable”. Paragraph (c) makes it clear that the suffering is intolerable and cannot be relieved under conditions that they consider acceptable, which is a slightly different formulation than the one used by the Supreme Court.

However, it actually tracks quite closely with the formulation of the court that an individual may have, as you say, a condition that is otherwise medically curable. Some people may choose to have treatment that's almost unimaginable in the grief and suffering it causes them, but will continue with that treatment. Others may find that the treatment that is available to them causes them suffering that is intolerable, and by paragraph (c), it's clear that it's their choice and the law does not in any way impair or affect that choice.