Justice Committee on May 2nd, 2016

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

As we spoke about earlier, we sought to provide explanations in what we included and didn't include in the legislation, as well as looking at charter considerations around reasonable foreseeability, advance directives, and other issues.

It is my view that we are going to further study these issues and that this proposed piece of legislation directly responds to the factual circumstances with respect to the Carter decision. The object of this bill is to provide a peaceful passage to death. We recognize that there are other considerations and other views. It is for those reasons, and the reasons that Minister Philpott indicated, that we need to do further studies to look at advance directives. We need to understand the risks and the benefits that come from advance directives in terms of people's ability to make informed consent.

This proposed piece of legislation is about approaching the end of life and providing the vehicle and the mechanisms to enable people to have that peaceful passage.

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

With all respect for the decision, I think it's most unfortunate if someone's in a situation where there really are only two choices, and one is to continue suffering, and the second is to seek assistance in dying. In fact, as much as possible, while recognizing that there will always be suffering in life, I think we also need to find a way of making sure there are provisions to alleviate suffering that may not include assistance in dying.

I think you will be tired of hearing me talk about this, but palliation is a term that needs to be applied not only in the sense of palliation at the end of life, but applied more generally. We must find a way to do a better job so that people don't find themselves in a situation where their only choices are either to end their life or to continue to exist in suffering. I believe we can do much better on that.

[Colin Fraser, Liberal, West Nova, NS]

Moving on to the terminology of “reasonably foreseeable death” in the bill, that would be for someone who perhaps does not have a terminal illness, but their death is reasonably foreseeable on their current trajectory. Can you help me understand how a medical practitioner would be able to know if that person qualifies under the current bill? Is there any concern that if, for example, a lawyer were going to give advice to a medical practitioner regarding the current state of the bill, they may be very reluctant to say that it's okay and that a medical practitioner was on safe ground here? My worry would be that you would see a lack of access because there may be medical practitioners who might be unclear on the state of the law without our specifying more clearly what “reasonably foreseeable death” means. Could you comment on that, please?

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

I know you will have other witnesses you will be able to ask about this as well.

Certainly I can speak for the medical practitioners that I've talked to, including medical associations that represent large bodies of physicians, for instance, who have responded very positively to the concept of reasonable foreseeability, and have felt that it's a good choice of terms. Practitioners are comfortable with this for the most part.

We had three choices. We could have said nothing about the proximity of death. We could have specified a specific amount of time—six months or 12 months. However, the concept of reasonable foreseeability is a concept that respects the professional judgment of a health care provider. I'm glancing at some of my notes from when I spoke to representatives of the Canadian Medical Association, who felt that one of the things they liked about it was the fact that we can't cover all eventualities. It's very difficult in legislation to speak to all of those individual cases that might exist. As Minister Wilson-Raybould talked about, it was a way of defining just how grievous a condition is to ensure that we didn't include, for instance, a benign or an episodic type of condition, but a condition that put the person on a trajectory toward death.

As I said, we've had very positive responses to that. I have not had any requests from medical associations that this be removed for some reason. It was felt to be very respectful.

[Colin Fraser, Liberal, West Nova, NS]

Paragraph 127 in Carter v. Canada expressly provides that a patient not be required to undertake treatments that are not acceptable to that individual. In the bill, an irremediable medical condition includes the term “incurable” as one of the ways of defining it, but it doesn't go on to say that the patient not be required to undertake treatment not acceptable to the individual. I'm wondering why that's not in the bill, and if thought was given to that.

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

Thought was given to that, and “incurable” has the same connotations as “irremediable”. In that same proposed section, paragraph (c) does refer to “enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable”. I think that speaks to the point that you've raised, so it's contained there.

[The Chair, Liberal, Anthony Housefather]

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

I want to thank Minister Raybould and Minister Philpott for coming to committee and for the work they've done on this file to date.

This whole issue of physician-assisted suicide is an issue of ethics and an issue of morality in addition to being a health issue. I think when we take ethics and morality out of it, it becomes much easier to deal with, but the fact is we can't do that. We cannot take ethics and morality out of the issue.

We've seen a decline in our country over some of our moral values. We've seen an obliteration of the value of life from conception to birth, and now we're seeing a diminishing value of life in sickness and at the end of life during sickness and for the elderly.

I think we're on a slippery slope, and I think we need to recognize that. I think parts of your bill are an attempt to do that, although I think the bill could be strengthened.

One of the things that caught me right away, which I know was a term used by the Supreme Court in the decision it made, was the term “grievous”. Was any consideration at all given to using the term “terminal” in substitution for “grievous”? Either minister can respond.

Minister Raybould.

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

Thank you for the question and certainly for the reflections about this being an ethical and a moral issue. We recognize that everyone we've spoken to has their own perspectives and their own beliefs and values. Certainly, as you know, we sought to respond to the Supreme Court of Canada's decision. The question wasn't whether but how we were going to put in place medical assistance in dying in this country.

The eligibility criteria were thought about at great length to recognize that there are different circumstances under which individuals seek medical assistance in dying. What we sought, and the objective of the bill, was to provide a peaceful passage to death. We are responding to the Carter decision on that, which is what the provisions in the legislation speak to. Nine jurisdictions in the world have medical assistance in dying. Six of them, including the one in Quebec and this one, provide end-of-life legislative frameworks.

[Ted Falk, Conservative, Provencher, MB]

Thank you for that.

Proposed section 241.21 indicates that all of the conditions must be met, and yet proposed subsection 241.2(2) lists four points, (a) to (d), in the definition of a grievous and irremediable medical condition. It doesn't say if they all need to be met or if some of them need to be met or one of them needs to be met. Can you provide a little bit more explanation on that?

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

Thanks for the question, and I'm glad to be able to provide that clarity. All four elements need to be read together; hence, the “and” at the end of the third element.

[Ted Falk, Conservative, Provencher, MB]

So really there should be an “and” after (a) and (b) as well?

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

Well, it's how it's drafted. It's a string. The “and” at the end reflects that.

[Ted Falk, Conservative, Provencher, MB]

Okay. I think that's important, but thank you for that clarification.

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

I appreciate that.

[Ted Falk, Conservative, Provencher, MB]

Minister Philpott, you indicated that the bill provides protection for health care professionals, and I'm thinking by that you're suggesting it does from a liability perspective, but what about protecting health care professionals' conscience rights? Why are those not included right away? Why is liability so important? Actually, really, I want to know why conscience rights aren't in there, and what area they could be put in.

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

As you know, this is a piece of legislation that is an amendment to the Criminal Code. It's not a piece of legislation that describes the working medical practice, for instance. It's not a health bill. It's a piece of amendment to the Criminal Code, and therefore it was deemed not to be appropriate to specify that. We have made very clear that nothing in here compels a medical practitioner to participate in medical assistance in dying. The actual oversight of medical practitioners is done at the provincial and territorial level. We have indicated to them that it is our expectation that the conscience rights of providers would be protected.

I don't know whether you want to elaborate more on why it wasn't included.

[Ted Falk, Conservative, Provencher, MB]

Another comment you made in your intervention was that a decision could never be made solely on mental suffering, but in proposed paragraph 241.2(2)(c), it says that “psychological suffering” could be the indicator that actually pushes it over the hump.

Therefore, it needn't be physical suffering at all; it could be a psychological issue.

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

I think that speaks to your previous comments about the fact that all four parts need to be taken into consideration, and that death is reasonably foreseeable.

If it's a medical condition alone and there's no otherwise expectation that a person is going to die.... As we've said before, people may have a medical condition and at the same time be suffering from cancer, for instance. If it's expected that they will die in a reasonably foreseeable period from their cancer, and at the same time they're suffering from depression, they would not be excluded. But a psychological condition alone, that is not otherwise terminal, would not make a person eligible.

[The Chair, Liberal, Anthony Housefather]

Mr. Falk, you have time for one more short question.

[Ted Falk, Conservative, Provencher, MB]

Under the independence part of the bill, it talks about medical professionals and nurses who do not know or believe that they are a beneficiary. What happens if they are a beneficiary?

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

It depends on the circumstances. There are penalties for not complying with the safeguards. If it comes to light that a connection was unknown, then there might be a defence for not having known the relationship. But within the proposed legislation there are penalties for not complying with the standards, and that is in terms of independence.

[Ted Falk, Conservative, Provencher, MB]

Except that the person is dead, right?

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

I thought you were referencing the person who was not independent in terms of providing witnessing, for example.

[Ted Falk, Conservative, Provencher, MB]

Correct—