Justice Committee on May 3rd, 2016

[Dr. Hartley Stern]

Thank you. I will try to deal with the foreseeable future issue first.

We will support whatever the legislation ultimately states. I want to reiterate that we see our position as to help the physicians have confidence that if they enter into this dialogue with the patient and operationalize it and have interpreted the legislation correctly, they will be free from prosecution when they act in good faith. That means they have consent, that they did all the things and interpreted the law correctly.

What we're saying is that the wording as it currently exists is not clear. Whether you want it to be, as legislators, broader with a longer time frame, or narrower where imminent death is definable by whatever time frame you choose, we will support that.

We want you to say it clearly so when the physician phones—and they will call us for advice—we can say this is what we understand the legislation to mean, and this is what we're advising you to do as you enter into and provide access to the patient who receives medical assistance in dying.

The fuzzier the legislation is, the more difficult it is for us to interpret and the more difficult it is for us to give guidance to the physician who will want to act in good faith believing they are doing something that is an appropriate medical act, but don't want to be prosecuted.

We're agnostic about which way you want to go. Just make it clear which way you want to go.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Would you be able to suggest any language that would define the clarity you're looking for?

[Dr. Hartley Stern]

I did suggest it, and it's in our written submission, so I'll repeat that section if you'd like.

If your intention is that the patient does not need to be at the end of life—so there's no time constraint—we suggest that you add under the section that says natural death has become reasonably foreseeable the words, “whether or not death is imminent”, if that is what you intend. Conversely, if your intent is that the patient should be at the end of life, we suggest you add the words, “natural death has become reasonably foreseeable and is expected to be imminent”. That would allow our physician advisers and our lawyers, who will be answering the phones talking to these doctors who want to provide access, to give them the clarity of thinking they absolutely deserve in helping the physician walk through this process. Choose one or the other.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I guess that addresses a slightly different point than what I was looking for.

[Dr. Hartley Stern]

I may have misunderstood you.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I may have misstated it. I'm concerned more about what reasonably foreseeable death means. As I mentioned, the Justice Minister indicated that would be a medically determined condition. A doctor would say, “I think this person has a reasonably foreseeable death“, but some people feel there needs to be a much clearer legal standard for what reasonably foreseeable means.

[Dr. Hartley Stern]

My sense is that these are neither medical terms nor legal terms, albeit I'm not a lawyer. My counsel is with me and if you want to get our legal opinion on this, Mr. Crolla would be happy to speak to it.

I see the confusion and the discomfort a lot of people have because it's neither medical nor legal. It depends on what you want, if you wanted his opinion.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Dr. Branigan would like to interject here.

[Dr. Monica Branigan]

I chair the working group on physician-hastened death. This is something that we have discussed. One of the things that you might consider is to say something like, “for patients entering the last year of their life as best we know”. The protection that can be put in there is a proportional waiting period. For example, if somebody is clearly dying within days to weeks, then 15 days may not be reasonable. If somebody has maybe a year, maybe longer, maybe there should be a longer cooling-off period. That is a way to balance it and offer some sort of protection.

Among my colleagues, not only palliative my care colleagues, “reasonably foreseeable“ does not have a medical meaning, because it is reasonably foreseeable that we will all die. It's too vague.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Dr. Stern, you were very helpful during our Senate/House deliberations. You were equally helpful today. I take your testimony very seriously because, of course, as you say, you're on the front lines. You're at the intersection of medicine and law, and you're the ones who decide whether a doctor is going to get coverage if they're sued for trying to implement this law in good faith.

We didn't have an opportunity to read your very careful submissions in advance. I want to make sure we do justice to them.

I want to pursue something that Mr. McKinnon and you were discussing, namely, the issue of Bill C-14 trying to provide clarity through the words “reasonably foreseeable”, which it seems most witnesses have told us has not occurred. You make a couple of suggestions depending on which way we want to turn, namely, to add the words, “whether or not death is imminent” or otherwise.

In the testimony and legal commentary, many of us have been hearing about the implications of the Carter decision, the Supreme Court case, and that it was deliberately not to be left to terminal patients, not to be limited to people at the end of life. The justices were deliberate in their choice of the words, “grievously and irremediably ill patient”. There was no suggestion of terminality.

The euphemism that their natural death has become “reasonably foreseeable”, it will be argued, is inconsistent with what the Supreme Court said. If that's accurate, then your choice about adding the phrase “whether or not death is imminent” is a non-starter. With respect, I would say that the alternative that you're suggesting for this provision, that “natural death has become reasonably foreseeable and is expected to be imminent”, is equally ambiguous.

I'm not quite sure where to land on this. Other witnesses, such as Mr. Ménard from Quebec, said yesterday that we should just eliminate this section, because it adds nothing. We've heard today that it's neither legal nor medical.

I'm wondering why your recommendation didn't simply say to get rid of that ambiguity, we should delete that phrase.

[Dr. Hartley Stern]

When we were asked to testify, we were asked to comment on specific areas that we felt were in need of revision. In as a thoughtful a way as we could, we gave you two options. You've declared a third. Our point on this would be that we believe that if you add one or other of our options....

The first one “whether or not death is imminent” would be consistent with the first point you made. It's not inconsistent with the notion that we want to broaden this beyond the time of death being in short sight.

In the alternative, if you wanted to delete the entire paragraph, there would have to be some commentary replaced with something. Again, I want to emphasize that our objective is to make it easier for physicians to participate. We seek clarity so that physicians are comforted that they're doing the right thing to provide access, that they're not in contravention of any statute.

[Murray Rankin, NDP, Victoria, BC]

I wish we had time to go over each of your very thoughtful recommendations. Obviously, I won't have time to do it, and hopefully others will pick up on it.

You mentioned that the first recommendation was that proposed subsection 241.2(7) be deleted. Could you elaborate a little bit on that? Why would you say that it should be deleted? It was the first of your specific recommendations.

[Dr. Hartley Stern]

It's because it doesn't add anything to existing provisions, and it's not a criminal act. Why add it when each province has provisions now that would deal with this quite adequately? It doesn't add anything, and in fact makes it a bit fuzzy. We will be able to provide guidance to our physicians better if that section is deleted.

[Murray Rankin, NDP, Victoria, BC]

I won't have time, as I say, to go through your point about disproportionate sanctions, but I thought you made a very sound argument there. It seems completely disproportionate; I would agree with you.

One of the other things you talk about is interaction with any provincial or territorial legislation. Quebec has a law and other provinces will soon have laws, one assumes. Certainly, their colleges will have regulations to deal with this.

You say it wouldn't be a concern if the provincial legislation is more restrictive; however it's possible that some provincial frameworks could be less restrictive than Bill C-14. Then access to medical assistance in dying might be affected if practitioners are uncertain about which legislation will prevail based solely on the doctrine of paramountcy. So you're saying that, whatever we do, we should give you some clarity about which rules apply, provincial or federal. Normally, it will be the federal one because of paramountcy but you're saying, wait a second, that might be problematic if it's more restrictive.

Is that correct?

[Dr. Hartley Stern]

Let me use an example.

If we were to include in this legislation, for example, mental health being the sole criterion, a patient having a mental health problem only....

Sorry, it's the other way around. If the province were to entertain legislation that permitted medically assisted dying for a purely mental health reason, and the federal legislation does not address that, there will be confusion in the eyes of physicians as to whether they're going to be subject to a criminal sanction as a consequence of that. It appears that there's no conflict between the current Quebec legislation and the current federal legislation, as it's drafted. If the other provinces become substantially similar to what the federal legislation contemplates here, we're fine. It's only if one of the provinces gets broader and includes things that are not in here that our members are going to get in conflict.

[Murray Rankin, NDP, Victoria, BC]

Here's a final point because I'm going to be cut off.

Or am I being cut off now?

[The Chair, Liberal, Anthony Housefather]

You've exceeded the time.

If you are able to do it in 20 seconds, back and forth, go ahead.

[Murray Rankin, NDP, Victoria, BC]

You've made some very specific recommendations, very deeply concerning recommendations.

Would you recommend coverage for doctors in light of the uncertainties in this bill that you've pointed out?

[Dr. Hartley Stern]

Let me make it clear. We have been around for 100 years, and we'll continue to provide protection to our members, no matter what. What we're concerned about is giving them the best advice. This is about operationalizing a new law. This is about making it easier for a physician to enter into that relationship with the patient to allow this to happen. The clearer you make this legislation, the easier it is for us to provide that protection for the physician. That's our intent.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

We're going to go to Mr. Hussen.

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

I have a number of questions.

I'll start with Mr. Stern.

Under Bill C-14, the legislation only requires one request to be made for medical assistance in dying. Other jurisdictions require more than one request.

How do you feel about that? Do you think that's adequate to have one request?

[Dr. Hartley Stern]

We think this is consistent and sufficient based on our understanding. We're not the experts on world systems or the other jurisdictions under which this law or similar laws are enacted. We think the committee has been thoughtful in the way it brought this forward. We will work with it and we'll advise our physicians accordingly. We're agnostic as to whether it should be two or three, or one physician and one nurse. We will advise our physicians to comply with the regulation as written.

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

In terms of your duty to protect medical professionals, do you feel that Bill C-14 provides adequate protection from criminal prosecution for medical practitioners who provide medical assistance in dying?

[Dr. Hartley Stern]

I made several points around adding some clarity regarding the good faith provisions.

I think the honourable member at the first was a bit confused as to our approach here. We think that physicians who act in good faith, and that means those who understand and ensure that the criteria set out in the legislation are accounted for—including appropriate consent, appropriate discussion, and all of the other elements that are in here—if drafted the way it is, protects the physician from criminal prosecution.

Where we're concerned is that it doesn't protect the physician from civil prosecution or from regulatory matters. We recommend that you add that good faith—doing all the things that are suggested in here—in this action, should limit the physician's exposure to sanctions from civil prosecution or from a regulatory body.