Justice Committee on May 2nd, 2016

[The Chair, Liberal, Anthony Housefather]

We're reconvening.

I want to thank the members of our distinguished panel for coming to join us. I would like to introduce, from the Canadian Psychological Association, Dr. Karen Cohen, who is the chief executive officer; Dr. Francine Lemire, who is the executive director and chief executive officer of the College of Family Physicians of Canada; and Mr. Philip Emberley, who is the director of professional affairs for the Canadian Pharmacists Association.

Welcome to all of you.

I want to say that I deeply appreciate your having come to testify before the committee.

We are going to begin with Ms. Cohen, who will have eight minutes. The other witnesses will also have eight minutes.

Dr. Cohen, thank you so much for coming. Please go ahead.

[Dr. Karen R. Cohen, Chief Executive Officer, Canadian Psychological Association]

Thank you.

Good evening. Thank you, honourable members of the committee, for giving the Canadian Psychological Association the opportunity to speak to you this evening about Bill C-14.

The CPA has two specific concerns with the bill.

The first concerns the role of health providers in end-of-life decision-making. The second concerns the assessment of a person’s capacity to give consent to end his or her life, particularly when a psychological or cognitive disorder is concomitant with a grievous and irremediable physical one. Accordingly, we have three recommendations that we're asking you to consider.

Proposed subsection 241(1) notes that it is an offence to counsel a person to die by suicide and to aid a person to die by suicide. Proposed subsections 241(2) and 241(3) appear to exempt practitioners from the provisions of proposed subsection 241(1) if they provide medical assistance in dying or aid a practitioner in providing medical assistance in dying.

The CPA's concern is that the exemptions articulated in proposed subsections 241(2) and 241(3) appear relevant to aiding a person in dying but not to counselling a person about an end-of-life decision. While proposed subsections 241(2) and 241(3) appear to exempt practitioners for involvement in the act of dying itself, regulated health providers will reasonably be involved in decision-making before any end-of-life act is carried out. Psychologists would be among the health providers who might assess a person’s capacity to give consent to medically assisted death. Psychologists would also be among the providers to whom persons with irremediable conditions might bring their end-of-life concerns.

It is important that persons who are considering hastening death have the opportunity to bring their concerns to a trusted regulated health provider if they so wish. It is equally important that a regulated health provider who enters into an end-of-life discussion or consultation with a patient also be exempt from proposed subsection 241(1).

Our first recommendation is for an additional exemption that stipulates that no regulated health practitioner commits an offence if they assess a person’s capacity to give consent to an end-of-life decision and/or provide counselling regarding end-of-life decision-making issues at the request of a person with a grievous and irremediable condition, or if they aid a health practitioner in the assessment of a person’s capacity to give consent to an end-of-life decision and/or in the discussion of an end-of-life decision for a person with a grievous and irremediable condition.

We also want to note that the word “counsel” in English, as used in proposed paragraph 241(1)(a), has both legal and profession-specific meaning. Mental health providers such as psychologists can be said to regularly provide counselling to their patients. In this sense, “counsel” has a very different meaning than the one intended by proposed paragraph 241(1)(a).

Our second recommendation is that proposed paragraph 241(1)(a) be revised such that “counsels” is replaced by “persuades or encourages”. It would then read “persuades or encourages a person to die by suicide or abets a person in dying by suicide”.

Finally, the CPA was also concerned that the bill is silent on how capacity to give consent should be assessed. While in many instances it may be straightforward to ascertain that informed consent can and has been given, there may be times when it may not be. Examples might be when a patient has a cognitive or psychological disorder concomitant with a grievous and irremediable physical one. The concomitance of a cognitive or psychological disorder with a physical one occurs commonly.

The CPA's submission to the expert panel that reported to the parliamentary panel made the following point, which I quote:

...the global experience of suffering, including suffering due to physical symptoms, is much more pervasive among terminally ill patients who are depressed than among those who are not depressed.... In the Netherlands, Dees [and his colleagues] have reported that only patients with a comorbid diagnosis of a mental disorder suffer unbearably all the time. Hence, it is likely to be a common scenario for depressed terminally ill patients to make requests for assistance in ending their lives. To prepare for this, legislation should be informed by certain clinical realities.... A mere diagnosis of a depressive disorder does not necessarily mean that someone is incompetent to make critical health decisions. Especially severe depression, however, may result in negative attitudinal biases that distort rational decision making around medical aid in dying....

The assessment of a person’s capacity to give informed consent, particularly when that person has a concomitant psychological or cognitive disorder, must be left to those regulated health providers with the training and expertise to undertake these kinds of complex assessments.

It is CPA's view that psychologists, along with physician specialists such as psychiatrists and neurologists, have the necessary training and expertise.

Our third and final recommendation is that a new provision be added under “Safeguards” as subparagraph 241.2(3)(i), as follows:

ensure that when a person presents with a grievous and irremediable medical condition concomitant with a cognitive and/or psychological one, the person's capacity to give consent be assessed by a regulated health provider whose scope of practice includes the assessment of cognitive and/or psychological conditions.

On behalf of the CPA, I thank you for your important work in the interests of the Canadian public. I'd be glad to answer any questions about our submission.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your presentation, Dr. Cohen.

I now yield the floor to Dr. Lemire.

[Dr. Francine Lemire, Executive Director and Chief Executive Officer, College of Family Physicians of Canada]

Thank you very much.

The College of Family Physicians of Canada is the national body responsible for establishing the standards for the training, certification, and lifelong education of family physicians. In this regard, we do welcome Bill C-14, an act to amend the Criminal Code and to make related amendments to other acts.

We're pleased that the bill represents a prudent first step. We believe that the medical community is being given a reasonable opportunity to familiarize itself with the new changes and accommodate accordingly. It has been noted that medical assistance in dying has not been a reality for nearly every physician currently practising in our country, but will be a feature of our health care system starting in June.

As family practice is frequently the point of first contact with the public in our health care system, family doctors are often the first to witness how medical decisions that have legal implications can affect patient care decisions. Further clarification is required regarding the eligibility criteria for accessing assisted death, particularly the requirements for eligible patients who are facing a natural death that is reasonably foreseeable. For example, a progressive multiple sclerosis patient might fit the criteria of having an incurable disease and being in a state of irreversible decline and suffering, but the timing of foreseeable death might be difficult to determine. Some specificity around this criterion is needed.

There are also questions regarding the subjective interpretation of what could be considered physical or psychological suffering that is intolerable. As family doctors we witness every day in our practices that there are varying degrees of what is considered intolerable pain or suffering. Depending on the patient's threshold, tolerance can vary greatly.

Complex health issues such as physician-assisted dying and abortion require a level of protection for the privacy of not only the patient but also the health professionals providing these procedures. To ensure a level of security for the provider, names or information about those assisting in the procedures should not be released to the public or the media. Physicians and other care providers, such as nurse practitioners, should feel safe and secure when they care for patients.

In providing medical aid in dying to a patient with a long-standing relationship, a provider should not feel under pressure to do so for other patients under the same or other circumstances. Every case should be considered on its own merits.

The CFPC would also like to see further clarifications regarding the criteria for consent. What occurs if a patient provides a voluntary request for medical aid in dying, and during the defined waiting period of at least 15 clear days, their mental capacity deteriorates unexpectedly to a point where they're no longer able to reaffirm the request for assistance? Clearer guidelines on how to assist a patient without abandoning their needs should be outlined.

Clarity of process and resource availability will be crucial for physicians and their patients, as well as an understanding of criteria, when providing physician-assisted dying. There need to be assurances that a physician's conscientious objection will be considered and balanced with both the rights of the provider and the necessity of ensuring that patients are not abandoned when they are most vulnerable.

Regardless of any legislation created, physicians must be cognizant of the scope of their responsibility in providing care to a patient. The CFPC maintains that family physicians should, above all, remain committed to their relationships with patients and their patients' loved ones during this last chapter of their lives. Recognizing that those who have serious illness or disabilities and those who are dying are among their most vulnerable patients, family doctors are health advocates on behalf of such patients.

We also place great value on palliative care. The college will continue its work in fostering high-quality palliative care within the scope of comprehensive continuous care provided by family doctors, including those with enhanced skills in this area. We believe that Bill C-14 would benefit from having the support of a national palliative care strategy. Although a small percentage of Canadians may request medical aid in dying , everyone in Canada will likely need to access palliative care. No matter where one lives in the country, one should have access to high-quality palliative care towards the end of life.

My colleagues who helped me prepare this brief suggested that at this point I provide a real-life story.

I'm often asked whether any of my patients have asked me for medical aid in dying. The reality is that no one, to this point, has asked. I believe part of the reason is that they did not know it was going to become a reality.

The only person who asked me is my own mother, in May of 2013. She was a “super senior”, to quote Mr. Housefather. She was 94 years of age, with terrible mixed arterial and venous insufficiency in her legs, ulcers, and terrible pain, which morphine treated by making her a zombie and for which anything less did not do the job. At that time my mother asked me whether she could get medical aid in dying, and at that time she would have met the criteria for medical aid in dying.

We fast-forward three years, and this diagnostic test that she had, an arteriogram, in fact was therapeutic. Her ulcers are now healed, but she has declined cognitively. She's quite limited. She really is a frail elderly person, and I'm not sure that today she could articulate those kinds of wishes, although it could be said that she has a degree of existential suffering.

If we were to ask her today, she probably would accept that Mother Nature should run its course. I think that as we move forward with this legislation, we need to accept that three years ago we might have done assisted dying based on the conditions my mother had at that time and she might have died, even though we know that she is now alive. I think we need to feel comfortable with that. In the same way, we need to feel comfortable thinking of my mother today at 97 as a frail elderly person who's prepared to wait for Mother Nature to run its course without necessarily making the same request. Even though the quality of her life, by some standards, could be viewed as not the best, by her own standards it's probably okay. We need to think about all these things as we think about this legislation.

We look forward to continuing to offer our advice and perspective as the legislation takes shape.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for offering your own personal story. It draws a lot of us to conclusions that we otherwise may not have reached.

Now we're going to move to Mr. Emberley.

The floor is yours.

[Philip Emberley, Director, Professional Affairs, Canadian Pharmacists Association]

Thank you very much, Mr. Chair, and also the committee, for inviting us to speak today.

First I'd like to acknowledge the difficult task you have before you. The final legislation must strike a balance between the needs of patients, the right to access, and ensuring that health care providers are fully equipped to deliver quality care regardless of the setting.

This is a very complicated and emotional issue for many, and one that has dominated much of the profession's discussions over the last year. Very early on in our discussions within the profession, it was clear there was an important role for pharmacists as the dispensers of the lethal dose of medication for assisted dying. Over the past year, we've worked with our members to understand the impact of the court's ruling and their views on the issue. We did this through an extensive survey of pharmacists and through the development of guiding principles, which we released in February.

Pharmacists are keenly aware of their role as a primary health care provider. They are consistently rated as one of the most trusted professions and they are often the first point of contact within our health care system.

We're already hearing stories of community pharmacists being asked questions about assisted dying. As a profession, we've been very encouraged to see the conversation around assisted dying expand from what was solely seen as physician-assisted dying to what is now called medical assistance in dying. This acknowledges that, like any other health care service or procedure, assisted dying involves a much larger team of health care professionals.

However, we must also appreciate that Bill C-14 is only one component of Canada's legislative response to the Supreme Court's decision and that many important practical considerations will be left up to the provinces and territories to address. This will require additional practice guidelines and regulations.

Generally speaking, as it is drafted now, we believe that Bill C-14 appropriately recognizes the role of pharmacists and protects those pharmacists who choose to participate from any criminal liability that could result from dispensing a lethal dose of medication.

I'd like to make some comments on some of the specific provisions in the bill.

First, it is important to note that under proposed section 241.1, medical assistance in dying is permitted in two instances: it can be administered directly by a physician or nurse, or it can be self-administered. This has significant implications for the role that pharmacists might have to play in assisted dying. In particular, in the case of self-administration, we see a far greater role for pharmacists, who may have to dispense the drugs directly to the patients. It's conceivable that this could be the last interaction between the patient and a health care professional prior to death, so we are pleased to see that proposed subsection 241(4) of Bill C-14 specifically exempts pharmacists from criminal liability if they dispense a substance to a person other than a medical practitioner or nurse practitioner.

We are also very supportive of proposed subsection 241.2(8), which requires that the medical practitioner or nurse practitioner who prescribes the substance inform the pharmacist that the substance is intended for that purpose. This is something we specifically called for, and we are pleased to see it reflected in legislation.

In addition to the specific provisions we've highlighted, we also want to draw your attention to two key elements that are not provided for in legislation but that we feel are equally important. Although we are not proposing any amendments to the legislation, we are hopeful that the federal government will work with its provincial and territorial counterparts, as well as stakeholders, to address these issues in the coming months.

On the issue of conscience, we strongly believe that pharmacists and other health care professionals should not be compelled to participate in assisted dying if it is counter to their personal beliefs. The legislation does not set out whether or how health care professionals can refuse a request. This leaves protection of conscience for health care professionals, including pharmacists, up to the provinces and to professional regulators. In addition, and to ensure that freedom of conscience is respected, pharmacists should not be compelled to refer the patient directly to another pharmacist who will fulfill the patient's request. This is an important consideration for pharmacists who view referral as morally equivalent to personally assisting a patient to die.

To provide equal protection of a pharmacist's right to conscientious objection and a patient's right to access, CPhA recommends the creation of an independent information body with the capacity to refer to a participating pharmacist, and we urge the federal government to work with the provinces and territories to create and implement such a system.

The second issue that is particularly relevant to pharmacists in their day-to-day practice is the question of drug access.

There is no single medication or drug that exists to end someone's life. Rather, it can be a cocktail of medications that could be administered by someone or self-administered. Depending on how it's administered, different drugs could be used.

Of great concern to pharmacists, who are all too familiar with issues of drug availability and accessibility, is that the drugs in question are in some cases not readily available in Canada. There is still some work to be done to understand which drugs might be most effective in assisted dying. Evidence shows that high doses of barbiturates are usually effective for death when self-administered, while a combination of barbiturates and a neuromuscular blocking agent is more appropriate for physician- or nurse-administered injection.

To give you an example, in Oregon, where drugs for assisted dying are solely self-administered, one of two barbiturates is used, neither of which is currently available in Canada. It is critical for Health Canada, as the regulator of drugs, to ensure that whatever drugs are recommended be available and accessible to patients and their health teams. We welcome the opportunity to work with them to address this issue.

In conclusion, we urge that this legislation be passed quickly in order to ensure that there is a framework in place by the June 6 deadline and to allow the provinces and territories an opportunity to develop appropriate practice guidelines and regulations. Over the coming months, our provincial pharmacy associations will continue to work with their respective regulators to ensure that appropriate practice guidelines are in place.

We thank you again for the opportunity to appear and we look forward to answering your questions.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Emberley.

We very much appreciate all the different interventions, and now we're going to go to questions from the members.

We'll start with Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

I will direct my first question to Dr. Cohen.

You talked a little bit about issues related to the capacity to consent of persons with underlying mental health challenges. As a starting point, the legislation says that any physician or any nurse practitioner can decide whether a patient meets the criteria of the legislation. Would you agree that any physician or nurse practitioner would be able to at least determine that a patient has an underlying mental health issue—not whether they have the capacity to consent—or is a specialization required to make that kind of a call?

[Dr. Karen R. Cohen]

Exactly. The point of our recommendation was that any regulated health provider should be able to assess whether in fact the condition is present. I think the more complex assessment is going to be whether that condition would impact the person's capacity to give consent. There may certainly be instances, in the case of mental disorders or cognitive deterioration, in which you might need more specialized training to make that determination.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Would it be your opinion, just so I fully understand you, that upon determining that a patient has an underlying mental health challenge, a family physician, say, would not be in the position to determine capacity to consent, and that it would be appropriate at that point for the family physician to refer the patient to a psychiatrist, psychologist, or neurologist to determine the issue of capacity to consent, which would require a more complex analysis? Do I understand you correctly?

[Dr. Karen R. Cohen]

I certainly can't speak for the practice of every regulated health provider, and it certainly would be the case, as I'm sure Dr. Lemire could confirm, that even different family physicians would have different sub-expertise or capacity. This is why we recommended that the assessment of these complex concomitants involving cognitive or psychological disorders should fall within someone's scope. Much of the time when they are complex, that might involve a psychiatrist, psychologist, or neurologist, but that would not necessarily be the case if a family doctor or other practitioner has that capacity within their scope.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Would it be your opinion that a psychologist, psychiatrist, or neurologist would have it within the scope of their practice to determine that type of assessment?

[Dr. Karen R. Cohen]

By and large I would say yes, although in the case of a senior with dementia, for example, it would more likely be a clinical neuropsychologist who would make that kind of determination. If the assessment was that depression was present, it would more likely involve a clinical psychologist.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Okay, that's fair enough.

My next question is to Dr. Lemire.

In your testimony, if I heard you correctly, you talked about the need for special training for medical assistance in dying. Could you maybe elaborate on what you meant by that?

[Dr. Francine Lemire]

I am not aware that I spoke to that directly in this presentation. We do recognize that the medical providers who will be involved in this procedure certainly will need to have appropriate training. We're working very hard in a collaborative manner with the Canadian Medical Association and the Royal College of Physicians and Surgeons of Canada to develop professional development that will enable those who chose to get involved in this procedure to do so.

The procedure itself is the last thing. What counts is really a caring relationship between a physician and a patient, and a journey of accompaniment with the patient during this phase of their life. A lot of conversations need to happen within the scope of the medical profession regarding the assessment of capacity and the obtaining of consent. Family doctors will be well placed to accompany patients in that journey when those elements of those competencies are already there.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I have one final question to Mr. Emberley.

On the issue of conscience protections for pharmacists, you spoke about an independent body that could be set up. I want to ensure I understand what you're recommending.

Are you suggesting that, for example, if a pharmacist had a conscientious objection to physician-assisted dying, they would then get in touch with that independent body, and the independent body would then get in touch with the patient and get the patient to a pharmacist who could provide the services that the patient needs? Such a body, I believe, exists in the province of Quebec in terms of what they provided as an alternative to an effective referral regime in Bill 52.

[Philip Emberley]

Yes, that's the kind of structure that we had anticipated. It would be an independent third party agency that could be engaged in such a way. Exactly.

[The Chair, Liberal, Anthony Housefather]

Mr. Hussen is next.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you very much, Chair.

My question is for Ms. Lemire. Do you have any concerns with respect to whether patients will have any difficulties accessing medical assistance in dying as it is provided under Bill C-14?

[Dr. Francine Lemire]

The concerns relate to geographic limitations, rural environments, remote environments where such access could be more of an issue. At the same time, we need to accept the reality that there is support currently available to providers and patients in remote environments through Telehealth and other mechanisms of this nature, but there is no doubt that access in rural and remote areas of our country is a concern for us.

[Ahmed Hussen, Liberal, York South—Weston, ON]

The other question I have is with respect to capacity. If the doctor or the nurse practitioner prescribes a substance for an individual to take on their own, how will that person be able to assess capacity at the time the substance is taken, if that is required?

[Dr. Francine Lemire]

That is a good question that's been discussed earlier today.

On the one hand, it's important for us to respect the principle of autonomy. At the same time, assisted suicide will differ from euthanasia in that once the prescription is given, the respect for autonomy has been given, the caring relationship of a provider and a patient may be altered in that the responsibility to proceed in this regard is left entirely to the patient. I hope that if this happens, the caring relationship will carry on and may enable this question to be considered, but it certainly is not a guarantee.

[Ahmed Hussen, Liberal, York South—Weston, ON]

With respect to the request for medical assistance in dying, other jurisdictions require more than one request. Bill C-14 requires one request.

How is the medical practitioner supposed to determine if the request is only of a passing nature, if it's only one request? Do you have any views on that?

[Dr. Francine Lemire]

I believe crafting the legislation to require two independent medical opinions is important. It would hopefully help to mitigate this and provide greater...“comfort” is not the right term, but it would give us some parameters of reassurance to operate under.

As I mentioned, what happens if during the two weeks after the patient makes a request, the patient's condition deteriorates? What is the responsibility of the providers if the condition deteriorates and one is not able to assess that decision? I think obtaining greater clarity in this regard would be important.

[Ahmed Hussen, Liberal, York South—Weston, ON]

This question is for Mr. Emberley.

The Special Joint Committee on Physician-Assisted Dying heard that there was a need to ensure that the drugs to be used in medical assistance in dying were available and were not subject to back order, etc.

Do you have any concerns with respect to the availability of drugs to be used in medical assistance in dying?