Evidence of meeting #11 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was patients.
A video is available from Parliament.
NDP
Murray Rankin NDP Victoria, BC
This is a question, please, for Ms. Guy.
I wanted to be clear. You've suggested that proposed subsection 241(1) about counselling, and aiding in paragraph (b), ought to be clarified, and you've given us some suggested language we can look at later. I wanted to ask, did you feel, therefore, that your participants, social workers, ought to have a specific exemption from liability the way pharmacists and others do in this bill?
Social Worker and Policy Analyst, Canadian Association of Social Workers
It depends on the sort of legal understanding of it. We're nervous about the word “counsel” specifically, because obviously social workers and mental health providers can be said to be counselling their clients or their patients. We would certainly feel better overall if there were a specific exemption for mental health providers or social workers, but we also understand that there could be an amendment or language added that would cover a broader spectrum of professionals who are engaging in these types of end-of-life discussions, just to make sure that no one feels muzzled and can perform their jobs freely and in an empowered way their jobs, their end-of-life discussions with their clients.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much. I want to thank the members of the panel. It was very helpful.
Thank you so much.
Especially, Dr. Boer, we really appreciated your testimony by video conference. Thank you so much. Have a great day.
We'll take a short break and go to the next panel.
Liberal
The Chair Liberal Anthony Housefather
We'll reconvene and welcome our next group of panellists.
We very much appreciate your taking the time out of your busy schedules to testify before us.
I'd like to introduce, from the Canadian Medical Protective Association, Dr. Hartley Stern, the executive director and chief executive officer. Of course, as a Montrealer, he used to be the CEO of our Jewish General Hospital. It's a pleasure to have you here.
From the Canadian Society of Palliative Care Physicians, we have Dr. Monica Branigan, the chair of the working group on hastened death.
As individuals appearing together, we have Juliet Guichon, an assistant professor at the University of Calgary Cumming School of Medicine, and Dr. Ian Mitchell, a pediatrician and a professor at the University of Calgary as well.
I really appreciate all of your coming here today. I've explained to you how this is going to work. You each have eight minutes, and we will start with Dr. Stern.
Dr. Hartley Stern Executive Director and Chief Executive Officer, Canadian Medical Protective Association
Hello, everyone. I am Dr. Hartley Stern and I am the executive director and chief executive officer of the Canadian Medical Protective Association.
Honourable members, thank you for giving me the opportunity to take part in this consultation process.
In providing medical legal advice and evidence-based education, the Canadian Medical Protective Association, the CMPA, sits at the intersection of the Canadian health care and legal systems. As such, we are already and will continue to be on the front lines in guiding physicians called upon by patients in individual cases for direction on medical assistance in dying, or MAID.
It is through this lens that we propose recommendations for amendments to Bill C-14 to ensure the legislation provides clear eligibility criteria and safeguards for patients, while ensuring health care professionals are not exposed to criminal sanctions for good faith participation in MAID.
The CMPA is generally supportive of Bill C-14. Given the complexity of the issue, we believe the bill strikes a reasonable balance between access and safeguards and leaves room for adaptation and change over time as we in Canada continue to gain experience with MAID.
As I said before the joint parliamentary committee, it is very important to focus operationally on the issues of eligibility, criteria, and safeguards. These are challenging issues. The Criminal Code amendments are crucial to confirming that physicians providing a patient with medical aid in dying are not in violation of the general prohibition on assisted suicide. This is a fundamental requirement to permit physicians to enter into that trusting and empathetic relationship with the patient that is so essential to the implementation of this policy.
We are pleased that the preamble of the legislation recognizes the need to adopt a consistent approach across Canada to medical assistance in dying, while recognizing the provinces' jurisdictions over various related matters, including the delivery of health care services, the regulation of health care professionals, and the role of medical examiners and coroners.
We do believe that the proposed legislation can be improved and submit the following recommendations to enhance operational clarity. I will touch on a few key points and encourage you to refer to our written submission for more substantive remarks.
On clarity, eligibility criteria, and safeguard requirements, the CMPA is pleased that Bill C-14 has provided clarity regarding the age requirement and the issue of advance requests for MAID. We believe, however, that Bill C-14 should state unequivocally whether or not a patient must be at the end of his or her life to be eligible to receive MAID. Uncertainty exists currently about the intended meaning of the requirement that
their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
If it is intended that the patient does not need to be at the end of life, then the committee should consider amending the paragraph to state that natural death has become reasonably foreseeable whether or not death is imminent. Conversely, if it is intended that patients need to be at the end of life, then the provision should specify that natural death has become reasonably foreseeable and is expected to be imminent. Patients and their physicians must be provided with a clear understanding of who is eligible and when.
Turning to the provision requiring compliance with provincial laws and standards, we agree that MAID must be provided in accordance with any applicable provincial laws, rules, or standards, as contemplated in proposed subsection 241.2(7). However, we believe that this proposed subsection should be deleted from Bill C-14, since it does not belong in criminal legislation. Health care professionals have to deliver care to patients in accordance with professional standards regardless of such a provision. Those health care providers that are negligent in the delivery of care may face regulatory or civil proceedings, but should not face criminal sanctions for breaching the standard of care or for failing to follow a policy created by the regulatory authority.
Furthermore, as currently worded, the good faith provisions in proposed subsections 227(1) and 241(6) are not available to health care professionals who may fall below the standard of care. Ensuring that well-intended health care professionals are not subject to criminal sanctions for breaching the standard of care is important to ensure access for patients by encouraging the participation of practitioners in MAID.
Turning in respect to protection for counselling a person to die by suicide, we believe that Bill C-14 should be amended to expressly state that no practitioner is guilty of a criminal offence for counselling a person to die by suicide under paragraph 241(1)(a) when a practitioner provides a patient with information about MAID in the course of considering possible medical options.
It is important that practitioners not fear criminal prosecution for raising MAID with their patients, where medically appropriate. Without such a provision, health care professionals may be reluctant to even discuss MAID with their patients.
Regarding the good faith protections, the bill provides for some degree of protection for good faith compliance but only does so with regard to criminal sanctions. The CMPA believes that the protection in proposed subsection 241.(6) should be extended to include civil and disciplinary proceedings for practitioners acting in good faith. Such protection exists legislatively elsewhere.
Reassuring practitioners acting in good faith that they are protected from criminal sanction, civil liability, and regulatory sanction is an important provision that will again help ensure access for patients.
On the issue of disproportionate sanctions, we believe that some of the sanctions provided in Bill C-14 are disproportionate to the relatively minor nature of the offences. Imprisonment for up to five years for failing to inform a pharmacist that the substance prescribed is intended for MAID, and imprisonment for up to two years for failing to comply with reporting obligations, is excessive and unnecessary. It seems to us that a maximum penalty consisting of a fine would be a sufficient deterrent in those circumstances.
On a final note, the CMPA recommends that the brief reference to right of conscience in the preamble of the legislation be expanded, given the importance to practitioners that their personal convictions are to be respected in this area. Consideration might be given to including in the preamble to Bill C-14 language to the effect that nothing in the act compels health care providers to provide MAID.
In conclusion, honourable members of Parliament, it is undeniable that this bill bears great importance to Canadians. We support your efforts in working to ensure that this most complex social issue is dealt with in a manner that respects the importance of the relationship between the patient and health care professionals, and the necessity to ensure that both are protected along this journey.
On behalf of the CMPA, I would like to thank the committee for inviting me to speak. We will be very pleased to provide any further information or data you may need.
Thank you very much.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Dr. Stern.
Dr. Branigan has the floor now.
Dr. Monica Branigan Chair, Working Group on Hastened Death, Canadian Society of Palliative Care Physicians
Good morning. My name is Monica Branigan, and it's a very big honour to represent the Canadian Society of Palliative Care Physicians. We are a society of 500 members, and we are dedicated to improving the quality of life for patients with life-limiting conditions.
We would like to offer some very specific recommendations in the spirit of finding a Canadian way that respects the diversity of views. Underlying the three amendments that we are recommending is the intention to make the right of access to palliative care as robust as the right of access to hastened death. It does not make sense to enshrine in legislation these rights to hasten your death without also having the same protections to receive palliative care.
There are two reasons this is important. As Canadians, we value fairness. The vast majority of Canadians will not avail themselves of hastened death but they can benefit from palliative care, whereas perhaps 3% or maybe 4% of Canadians might want to hasten their death. It also speaks to the issue of voluntariness. Can one actually decide to hasten one's death if there is not a viable alternative?
There are three amendments we would ask you to consider. First, we would ask that the general preamble would read, “And whereas the Government of Canada has committed to develop legislative and non-legislative measures that would support the improvement of a full range of options for end-of-life care, including the establishment of a National Secretariat in Palliative Care...”.
The national secretariat would be charged with implementing a national palliative care strategic plan. This work has already been done by some very respected groups of people. This would allow us to decide what Canadian standards are and how we monitor them. This would allow us to decide how we could best educate all health care providers in the areas of talking about death and dying, advance care planning, goals of care, and palliative care. This would allow us to think about how to support family and caregivers through job protection, income support, or education, and how to have these conversations with their loved ones. At a national level, it would allow us to begin a discussion about how we shift funding from institutions into the community, which is where patients want to die; and lastly, it would allow us to begin a public education campaign about options at the end of life and about how to demystify death and dying, because that, by itself, will reduce a lot of suffering.
Our second suggestion refers to the eligibility criteria, which would be included in proposed section 241.2. Under the criteria in proposed paragraph 241.2(1)(d), that patients will have made “a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure”, we would ask that you consider adding “or lack of access to services required to address the root causes of the request, including, but not limited to, palliative care”. Really we're asking how a decision can be voluntary if there is not an alternative. This is something we need to absolutely pay attention to. We do not want somebody choosing this because of the lack of an alternative. I do not think that we as Canadians would choose that.
Our final recommended amendment would follow in that same section, but would add a new element to provide documentary evidence that the eligibility criteria have been met using federally established standards. This is really just a way of recording the fact that the roots of suffering have been explored, that patients have been informed about options, and that options are available.
This is going to give you really good information about why people request this service. You have committed to a review in five years. It is also going to inform that kind of decision-making, and without really good evidence, it is just going to be a matter of opinion.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Now we'll go to Dr. Guichon and Dr. Mitchell.
However you want to divide your time, please go ahead.
Juliet Guichon Assistant Professor, University of Calgary Cumming School of Medicine, As an Individual
Thank you very much for your invitation to address a section of Bill C-14. We are both from the University of Calgary medical school. Whereas I am trained in law with a doctoral degree and called to the bar of Ontario, my colleague Ian Mitchell is, as you have heard, a pediatrician who is a specialist in pediatric respirology and in ethics.
Proposed subsection 241.31(3) concerns regulations about creating, collecting, using, publishing, storing, and disposing of information about requests for and provision of medical assistance in dying generally. We respectfully make two recommendations concerning this subsection, but before we do that we respectfully recommend that this subsection of the Criminal Code should be based on the following two principles. First, all deaths that occur in Canada must be recorded accurately, and second, medical assistance in dying must be monitored scrupulously.
The proper implementation of these principles would foster protection, prevention, health promotion, health planning, and in rare cases, prosecution. Because the field of death reporting and death monitoring is not well known, we presume very briefly to describe it.
First is accurate reporting of death. Vital statistics are valuable only if the reports are accurate. An accurate report of how a person died is required to be contained in the medical certificate of death in common-law Canada, and in the bulletin de décès in Quebec.
Stating how someone dies entails identifying and stating truthfully the cause and the manner or circumstances of death. These two terms are terms of art, which are best understood by experts. It is not unusual for physicians without forensic training to have difficulty distinguishing between cause of death and manner of death, or to have difficulty naming the immediate antecedent and underlying cause of death. Consequently, in many provinces, medical certificates of death, which were originally completed by physicians, even in natural deaths, are routinely reviewed and corrected by forensic pathologists, medical examiners, or coroners, who have sub-specialty training in accurate death reporting.
Coroners exist in all provinces and territories except four. Those four are Alberta, Manitoba, Nova Scotia, and Newfoundland and Labrador. These four provinces have adopted the medical examiner system of death reporting. For our purposes, however, coroners and medical examiners perform the same functions. Sometimes, only these experts are permitted to establish cause and manner of death, and to complete the medical certificate of death.
For example, in Alberta, Manitoba, Prince Edward Island, and Nova Scotia, when a death occurs within 10 days of surgery, only the medical examiner or coroner may complete the medical certificate of death. Such requirements ensure that death is reported accurately.
Dr. Mitchell will discuss scrupulous monitoring.
Dr. Ian Mitchell Paediatrician and Professor, University of Calgary Cumming School of Medicine, As an Individual
Scrupulous monitoring of death means not accepting at face value what some people say is the cause and manner of death. Scrupulous monitoring entails expert analysis of the evidence and the conduct of those investigations necessary to determine the answers to five questions. Firstly, who died? Then, how did the death occur? Thirdly, where did the death occur? Fourthly, when did the death occur? And finally, by what means did the death occur?
Because of the value we place on human life, every province and territory requires certain facts of death to be notified to the coroner or medical examiners. For example, in Alberta reportable deaths include those that appear to have no explanation; occur unexpectedly; or as the result of violence, accident, or suicide; or when the person was in the custody of the state, such as in prison, in a mental health facility, or in child protection.
Mandatory reporting of certain deaths ensures that the person best qualified in death reporting answers the important questions surrounding the death. Coroners and medical examiners are qualified to determine the cause and manner of death accurately, to report this information truthfully, and to know when further investigation is necessary. I may say that both of us, both Dr. Juliet Guichon and I, have had professional experience with the Alberta medical examiner system or with the B.C. coroner system, and can attest directly to the professional manner in which they have conducted investigations.
It is important to note that deaths that occur by the injection or ingestion of lethal doses of medication are already mandatorily notifiable deaths in at least nine Canadian jurisdictions. Therefore, in at least nine jurisdictions medical assistance in dying is already mandatorily notifiable to coroners and medical examiners. All jurisdictions should require that medical assistance in dying be notifiable to coroners and medical examiners because the Supreme Court of Canada, in the Carter decision, required scrupulous monitoring of physician-assisted dying.
There are at least three ethical reasons to ensure that all medically assisted deaths are notifiable only to coroners and medical examiners, and require them to transfer aggregate data to the federal government. Such a system would limit disclosure of sensitive health information; provide families and loved ones with truth, which can aid grieving; and help ensure that Canadian vital statistics are accurate. At a practical level, using only the coroner and medical examiner offices to determine and record these deaths would accept that coroners and medial examiners in nine jurisdictions are already required to monitor such deaths, avoid problems of creating new and untried offices, and avoid the problems of fragmentation of accountability and confusing multiplicity of oversight mechanisms. As well, using the current reporting structure would benefit from the coroner and medical examiner's expertise in determining cause or manner of death and in reporting on trends of interest and concern; employ the existing structures that govern coroner and medical examiners and that hold them accountable; and reduce public expenditures by avoiding the creation of probably very expensive new offices.
No strong argument has been advanced, either in court or by expert panels, for health professional regulatory authorities that can justify excluding coroner and medical examiners from reporting on this new form of non-natural death. Although there is much that seems new about medical assistance in dying, non-natural death is neither new nor is the expertise of our coroners and medical examiners. They have unique experience in distinguishing among manners of death. It would be wrong to discount history, specifically in the United Kingdom, where a physician killed over 215 people. This is just one example why scrupulous monitoring in dying is essential.
Assistant Professor, University of Calgary Cumming School of Medicine, As an Individual
Accurate reporting and scrupulous monitoring reflect the value Canada places on human life. These expert activities ensure the investigation of deaths that occur in uncertain, dangerous, and preventable situations. They result in recommendations to benefit others, and they satisfy the public that the circumstances surrounding death will not be overlooked, concealed, or ignored.
Therefore, we respectfully make two recommendations. First, we recommend that the ministers of justice and health invite chief coroners and medical examiners and the Forensic Pathology section of the Canadian Association of Pathologists to a meeting to agree on terminology of cause and manner of death for the practice of medical assistance in dying. Second, we recommend that this committee require, under subsection 241.31(3), that reports of the provision of medical assistance in dying come to the federal government only from the provincial or territorial coroner and medical examiner's office without exception.
These two recommendations would help the federal government to ensure that medical assistance in dying is reported and monitored by the book. They would help safeguard patients, the general public, and physicians, and generate reliable data that would reveal trends of interest and concern.
In sum, we respectfully ask that you establish the reporting and monitoring of medical assistance in dying in a manner that is accurate and scrupulous and in these ways excellent.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Thank you for your very interesting testimony.
We're now going to move to questions.
We're delighted to have Mr. Genuis join us today. Mr. Genuis, you're first.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
Thank you, Mr. Chair. It's an honour to be here.
Since this is my first time subbing in this venue, I want to start by complimenting the committee and you, Mr. Chair. I've seen the list of witnesses and it seems that you're going to hear a broad range of perspectives. One of my concerns, frankly, about the special committee is that I think there were many perspectives that were missed. I look forward to the deliberation that's going to happen here.
I want to focus my questions on the issue of advanced review. Specifically, Mr. Stern, I really appreciated your comments about the need to clarify “reasonable but foreseeable”. We've heard arguments from some that this flexible criterion trusts doctors and gives them flexibility. However, what I've heard from physicians is that they would appreciate legal certainty so that they have a clear understanding from the legislation about what is and is not allowed.
I understand the point you're making about physicians not facing criminal prosecution if they act in good faith but fall below the standard of care. However, I think that patients might also have the concern that if rules were not followed, if they didn't meet the criteria, or if they had failed to obtain consent, someone could escape prosecution if they could demonstrate—at least beyond a reasonable doubt—that they had good intentions. We have to balance concerns about patient safety with the concerns of doctors not wanting to face prosecution.
Doesn't this underline the need for some kind of advanced legal review? An advanced legal review would protect patients by giving them the certainty that they had consented, that the criteria were followed, and that they would be protected. It would also give physicians a certainty that, once a particular case had gone through advanced legal review, they wouldn't have to worry about prosecution, because it would be clear that criteria had been met and legal expertise had viewed it. I'd be curious to hear your comments.
Executive Director and Chief Executive Officer, Canadian Medical Protective Association
From our perspective, we have no problem with the concept of advanced legal review. That's not in the legislation, as we understand it. I think there are reasons that it's not in the legislation. We want our physicians to enter into a relationship with the patient and feel comfortable, just as you have suggested, in providing access to medical assistance in dying. We see a prejudgement with a legal review as an obstacle—it would create delays, it would create a time lag, and it would make it more difficult to care for patients.
We sit at the coal face between the legal system and the health care system. We think that the legislation as it exists—which we think is the right way to go—offers enough protections at the provincial colleges, on the regulatory side and in civil matters that in an extraordinarily high percentage of times, physicians will act in good faith and do the right thing under the legislation. If you want to change the legislation and put those legal provisions in, our organization will walk our members through it. If you're asking my opinion, however, I'm thinking that it will add undue delay, and compromise the comfort of patients.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
Could I just ask a follow-up question then? It seems to me that you're saying on the one hand that the safeguards are adequate but on the other hand that physicians should be able to avoid prosecution if they can demonstrate some degree of good faith, even if they take someone's life who didn't consent or didn't meet the criteria. It would seem to me that you wouldn't be worried about that protection from prosecution if you thought the safeguards were adequate.
I'll further note that there are many processes for—
Executive Director and Chief Executive Officer, Canadian Medical Protective Association
Could I answer that? I didn't say that.
Conservative
Executive Director and Chief Executive Officer, Canadian Medical Protective Association
I didn't say that a physician should be able to escape prosecution if he acted in bad faith. That's a criminal act. We think any physician who does not act in good faith should bear the consequences. We're saying that a physician who does act in good faith to do the right thing should be exempt from criminal prosecution. Those are two very different things, sir.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
That's right. Maybe I misspoke. I understand what you're saying. You're saying that if somebody acts in good faith but still ends up taking the life of a patient who doesn't consent or doesn't meet the criteria, provided that they acted to some extent in good faith, there shouldn't be any kind of criminal prosecution. I just disagree with that and I think many potential victims might disagree as well. I know we'll have more time to talk about that.
I do want to get in a quick question for Dr. Branigan before my time runs out.
I really like what you have in suggested amendment number two. You've underlined very well the importance of dealing with palliative care, not as a separate issue but in the context of this issue, because patients are going to be evaluating choices, and the only way they can have genuine autonomy is if they have palliative care offered.
I wonder who you think would do the evaluation and how the evaluation would work under amendment two. I think what you have here is very good, but again in my view, it maybe underlines the value of having some kind of a review process as well. Maybe you could comment on how that would actually work.
Chair, Working Group on Hastened Death, Canadian Society of Palliative Care Physicians
If I understand correctly, you're asking how you would be able to document or record that there was access to the services required. I think that's what we're proposing in amendment three.
In terms of how somebody would know, I don't think it would actually require a judicial review. I think you could set some very basic criteria, such as if a patient is dying at home and requesting assistance in hastening their death, do they have access to a palliative care team that is available to them 24/7? That could be simple, and it's a yes-or-no kind of answer.
Have I interpreted your question correctly?
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
I guess my concern generally about the allowances for doctor shopping and things like that would be that, regardless of whether someone has actually received the services that they should be receiving, they could seek out—as one of the previous witnesses was talking about in the previous panel—two doctors who would sign off.
If you're going to have this criteria and make it meaningful, you would need some kind of evaluation, someone who was competent to make the assessment of whether these services were provided or not, and wouldn't someone not have the option of going from doctor to doctor to find someone who would sign off and say they had? Does that make sense?
Chair, Working Group on Hastened Death, Canadian Society of Palliative Care Physicians
I think those are two different issues. Whether there are services to deal with the root causes of suffering and whether somebody is doctor shopping are, as I see it, two separate things.
You're asking if there is a potential solution to doctor shopping. I think that one of the solutions is going to be in the coordination system that you set up. If there is a centralized coordination system, that's where patients, institutions, and other physicians refer to so they're dealing with professionals who are experienced, consistent, and well trained.
You're not just going doctor shopping. If you have such a coordination system, you're going to somebody who's been identified as a willing and trained provider, so it's much easier to set up: “You've already talked to two of our evaluators, and we've said no.” I think that would be a way of addressing your concerns.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
I think that's a great suggestion, but it's something that I would personally like to see written into the legislation, not just left in the hope of some future process.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
My questions are for Dr. Stern. As you mentioned, you are the intersection between the legal and the medical community, so you might have a unique perspective on the law and how it impacts medicine.
A number of people have given us opinions about reasonable foreseeable death, and you have given some remarks on that as well. The Justice Minister considers this to be a medical decision, and we've heard some lawyers suggest it should be a legal decision. We need much more clarity.
There's also a concern about whether there should be a time frame. Some people say there should because it provides a bit more certainty in how to interpret the act. Others say no because it's difficult to put a specific time frame on a condition. It could be months. It could be years.
Could you give us some more clarity on those points?