Justice Committee on May 2nd, 2016

[Murray Rankin, NDP, Victoria, BC]

I would like to start by acknowledging the leadership of both ministers in this very sensitive area.

I want to talk about a particular issue, and that is people who have a major physical disability, but who otherwise are in good health and who will not be able to avail themselves of medical aid in dying. Maybe I could ground this in a particular example. This was a story before Madam Justice Smith of the B.C. Supreme Court. It's the tragic story of a gentleman named Tony Nicklinson, who suffered a massive stroke in the prime of his life and was left with what's called “locked-in syndrome”. The only muscles in his body that he could move were his eyelids, and he managed to type out his affidavit by blinking. He was a person who otherwise was in good physical condition and would live a long time. In other words, he would not be the kind of person who under the law as drafted would be able to say that his natural death had become reasonably foreseeable at all. Sadly, Mr. Nicklinson starved himself to death because he was unable to use the services of physician-assisted dying.

Would you be open to amending the bill to allow people like Mr. Nicklinson to avail themselves of this service? The claim I make is that the Supreme Court of Canada did not require there to be a terminal illness as a condition for this service. This particular bill, as drafted, would not allow that service for people who were physically disabled, but otherwise in good health. If you accept that, and if you agree that the situation is really quite disturbing for people like Mr. Nicklinson, would you be willing to amend the bill to address that?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Maybe I can start to answer your question. I'll start by saying that, without question, we acknowledge that there are people who suffer in many different ways. After hearing from many stakeholders, reviewing reports, and benefiting from the work of the special joint committee, our government presented the best option we could. We look forward to the substantive debate and discussion that will happen at this committee.

What we sought to do in providing eligibility criteria and further defining what the Supreme Court of Canada didn't do in terms of “grievous and irremediable” was to put elements around what that means. Those elements in this proposed legislation would need to be taken into account as part of the broad medical circumstances of a particular individual. The aim or the object of our legislation is to draw a balance between personal autonomy and the protection of the vulnerable. That's why we put these criteria in place.

[Murray Rankin, NDP, Victoria, BC]

Do you accept that the addition of the phrase “reasonably foreseeable natural death”, which is found nowhere in the Carter decision, really goes at cross-purposes to what the Supreme Court would have permitted people like Mr. Nicklinson to do? Do you accept that this is inconsistent with the Supreme Court's decision, which did not require terminality, or do you see this as in fact what the Supreme Court intended?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

In terms of the proposed legislation, we're responding to the decision of the Supreme Court of Canada in Carter, and I want to acknowledge Gloria Taylor and Kay Carter for their efforts to bring this discussion before us. Both of those women were at the end of their lives or suffering grievous and irremediable medical conditions. With this proposed legislation, we have responded to those specific circumstances in that case and have had the benefit of engaging with Canadian stakeholders, medical practitioners, and others to find the right balance between personal autonomy and protection of the vulnerable.

[Murray Rankin, NDP, Victoria, BC]

Because the time is so limited, let me ask a question on another topic.

Today's Globe and Mail has an article by UBC professor of medicine Dr. Jesse Pewarchuk, who talks about the issue that I also wanted to raise, that of advance requests, or so-called advance directives, which, as you know, is something that was recommended by the Senate-House committee. Dr. Pewarchuk writes as follows:

Bill C-14’s biggest flaw is that it forces the hand of those who have a progressive disease that relentlessly and predictably results in lost mental capacity to consent. Alzheimer’s patients can expect, with virtual certainty, to lose the capacity to make medical decisions over time.

He claims that “the wording of the proposed law introduces...doubt as to whether an Alzheimer’s patient who has yet to lose capacity (yet is certain to) would even be eligible, since death can take years...”. He says that “foreseeable death” and “advanced state of decline in capability”, the phrases in the definition in the bill, “are loaded, ambiguous clauses that seem to eliminate the Charter rights of dementia patients to be eligible...”.

Would you consider advance directives to address that problem?

[Jane Philpott, Liberal, Markham—Stouffville, ON]

As you know, we've identified the matter of advance directives as being one of the most contentious issues related to this legislation. We've also acknowledged the fact that there isn't a broad international consensus on the basis of countries where advance directives have been put in place; there are still some challenges around that. We wanted to make a decision that was based on solid evidence that adequate protection could be put in place. As I indicated in my comments, I recognize people's concerns around this and why it is desirable.

Even in the matter of advance directives other than those associated with medical assistance in dying, we hear from medical practitioners and families the real challenges around implementing directives in the case of someone who has reached the point where they no longer have capacity to reaffirm their desires at that particular point in time. I'll simply acknowledge that it is challenging.

I think that on the matter of things like dementia, for instance, one of the real challenges—and you've heard me speak to this repeatedly—is that people fear the loss of dignity that happens. They fear that they will get into a position where they will be a burden on their families or where they won't be able to care for themselves. To me, one of the things, in addition to the fact that we're going to study this in an ongoing way and we're absolutely committed to that, is that we need to do better at caring for people with dementia, for example. We need to make sure that all Canadians are able to live a dignified life and that they are cared for in a place where people respect them as human beings.

Those are some of the things that I think will happen in addition to further study of this matter.

[Murray Rankin, NDP, Victoria, BC]

Can I ask a further quick question, Mr. Chair?

[The Chair, Liberal, Anthony Housefather]

Yes, a quick one.

[Murray Rankin, NDP, Victoria, BC]

Recommendation 12 of the joint special committee was that physician-assisted dying be carried out by two physicians. It contemplated nurse practitioners playing a role, but by my reading the bill establishes that two independent nurse practitioners could fulfill all the steps.

In other words, if I'm correct, Canada would be, if this bill passes, the first jurisdiction where physician-assisted dying could occur without the involvement of a physician at any stage. If that is an accurate understanding, is that the intention of this bill?

[Jane Philpott, Liberal, Markham—Stouffville, ON]

As you know, the regulations of health care providers are determined by provincial and territorial regulatory bodies. To a certain extent, we're treading into provincial and territorial territory here.

One of the reasons we made it clear in the legislation that nurse practitioners could be the providers who would institute this—if it were deemed by their provinces to be an appropriate part of their scope of practice—was the concern about access, that is, that there are many places in this country where it's impossible to find a physician.

We will again work with the provinces and territories, and they will have to make decisions as whether that will in fact fall within the scope of practice of their nurses and nurse practitioners, but it is foreseeable. There are many, many similar kinds of acts that have been delegated safely to nurse practitioners. It's certainly something that physicians recognize: that for a nurse practitioner who is appropriately trained, this can fall within their scope.

[The Chair, Liberal, Anthony Housefather]

I have a quick clean-up question on one of Mr. Rankin's questions.

Minister Wilson-Raybould, Mr. Rankin asked if you felt that the requirement for death to be reasonably foreseeable was consistent with the Carter decision. In previous statements that you've made and in your speech in the House last week, I think you do feel that it's consistent. Can you clarify that?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Sure. I'm happy to have further discussions with respect to reasonable foreseeability.

We were seeking to further define grievous and irremediable. When speaking about reasonable foreseeability, it must be read in light of the other elements that are contained within the definition. A patient must be on a trajectory towards death. We purposely drafted the proposed legislation this way to provide a degree of flexibility in the legislation that would enable medical practitioners, doctors or nurse practitioners, to be able to determine, based on the closeness of their relationship, on a case-by-case basis, with their patients, based on their medical expertise, their ethics, and their closeness in terms of the individual patient's circumstances, to be able to make that determination in terms of reasonably foreseeable.

We specifically did not put a time frame around reasonable foreseeability, as they have in other jurisdictions, as I mentioned, but left it to medical professionals to determine based on the individual circumstances, as I've mentioned.

[The Chair, Liberal, Anthony Housefather]

Mr. Bittle.

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

Minister Wilson-Raybould, I wanted to commend you and your department for releasing the legislative background behind Bill C-14. I appreciate the commitment to openness and transparency. I think we can all agree that it's contributed to a significant debate across Canada, and will contribute to an intense discussion around this table.

Could you highlight to the committee the importance of this review, and address any of the possible concerns raised in it?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Is that in terms of the explanatory paper we put out?

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

Yes.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

As my colleague Minister Philpott indicated, this was a substantive dialogue she and I had, that we engage with stakeholders. We took into account all of the reports that are out there and reviewed practices in other jurisdictions.

I felt, as Minister of Justice, that it's important, in terms of being open and transparent, as you say, to put out all of the considerations that we undertook and considered to put together the proposed legislation, including looking at the charter and charter considerations. We feel and trust that Canadians can engage in these fundamental discussions around an issue that is so complex and personal, and it's incredibly important to be able to put out as much information as we can to enable that discussion, to enable an understanding of the depth of the information that was considered with respect to how we came up with the proposed legislation that we did, and the balance that we've sought to draw in terms of our responsibilities as parliamentarians in responding to the Supreme Court decision as well.

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

I'd like to open up my next question to both ministers. Perhaps you can provide some clarification with regard to the safeguards section of the bill and the 15-day waiting period. In the bill it's marked as “15 clear days”, which may in fact become 16 or 17 days, depending on how you look at it from a legal standpoint.

I'm concerned that forcing someone to wait 15 days, 16 days, 17 days in a typical case, while they're suffering and in pain, may be arbitrary and have issues under section 7, and may even be cruel and unusual.

Can you elaborate on the importance of this section and your interpretation of it?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Sure. I'll speak to it briefly and then turn it over to Minister Philpott.

We put in place the 15-day waiting period as essentially a period of reflection, so a patient who wants to access medical assistance in dying will be able to do so, but there would be that period of time where they can reflect on their decision. We did put into the proposed legislation the ability for a medical practitioner, taking into account the circumstances of their patient, to abridge that to a shorter period of time, depending on the health at the time of the individual.

[Jane Philpott, Liberal, Markham—Stouffville, ON]

I think the only other thing I would add is that it's my understanding that there is no other legislation in the world on the matter of assistance in dying that does not have a mandatory waiting period. I believe 15 days is roughly the standard.

As Minister Wilson-Raybould has said, it makes it very clear in here that if medical practitioners feel that for some reason the person is about to lose capacity, or death is imminent, it can be abbreviated.

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

Would you say the inclusion of a mandatory five-year review in the legislation allows for this bill to be a first step, and that future amendments could further eliminate any concerns parliamentarians and Canadians may have?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

As I said earlier, this is a paradigm shift. This is a transformation in the discussions that we Canadians are having around death and medical assistance in dying. The provision of the five-year review that is clearly laid out and the preamble indicate that we're going to study other issues with respect to medical assistance in dying. This conversation is going to continue. Canadians will not let us not continue to have this conversation, to ensure we continue to address issues like advance directives, mature minors, or mental illness alone.

[Jane Philpott, Liberal, Markham—Stouffville, ON]

My only other comment would be that I would not want to give any indication that we are presupposing any decision of those committees. Our commitment to move forward with one or more committees on this is not any kind of indication on our part of making an assumption as to what the conclusions of those committees would be. If we felt that we knew what the conclusions would be, then we would have done things differently in the legislation. These really are open-ended questions.

The other thing I would say is that one thing I'd look forward to, and I suspect you do as well, is that we have made a commitment to a pan-Canadian data and surveillance monitoring plan. I will work with my department on this from the very beginning. I think there will be some extremely interesting information in that. I'd be happy to hear your suggestions as to the kinds of things that should be in that. I want it to be a robust process to include enough information so we'll know, for instance, how many 17-year olds made requests that we weren't able to meet, or how many people would have liked to see a different variation on what the process was like. I think that will be extremely valuable in the review process.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We will now start our second round of questions, starting with Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

I also want to thank ministers Wilson-Raybould and Philpott for having come to meet with us today, and for their presentations.

I'd also like to thank you very much for your thoughtful comments and work on this difficult issue. I know that we, as parliamentarians, have heard from many Canadians on all sides of this difficult issue. We want to do our best to make sure we have a law that Canadians have confidence in and that will see us move forward on this important decision by the Supreme Court of Canada. Thank you for your thoughtfulness and your assistance in that regard.

I'd like to begin by asking a question regarding section 7 of the Charter of Rights. That argument, and we heard it in the Carter decision, is that some would be forced to choose between ending life prematurely by committing suicide or continuing to suffer until natural death once they loose capacity to do it themselves or capacity to consent to receiving medical assistance and dying.

I'd like to hear your thoughts on whether this section 7 problem still exists with the lack of advance directives in the current bill.