Thank you, and good evening honourable Chair and members of the committee.
On behalf of our association, I'm pleased to present our brief outlining specific proposed amendments to Bill C-14, a brief we title “Medical Assistance in Dying: A Private Request, a Public Act”.
Let me begin why we chose this title for our brief. Our membership has been struck by the reactions to our proposals and efforts to advance robust safeguards for vulnerable persons, often with the following comments. “This is someone's private decision”. “What business does the state have being involved?” “It's a matter of choice; why should that choice be questioned?” “The focus has to be on enabling people to get what they need, so they can die in dignity”. We appreciate the depth of the concern, the first-hand experience, the desperation, and the frustration that motivate these kinds of reactions to proposals for robust safeguards.
One of the main difficulties in the debate is that it is actually not as straightforward as some commentators seem to suggest, to design a public service to respond to people's request for what Bill C-14, calls medical aid in dying. After all, we are talking about a public service designed to end people's lives, not to provide palliative care or other supports. The Minister of Health has made clear that's for future conversation and consultation with the provinces and territories.
We're now engaged in building a new public service in Canada designed to make people dead. I put this starkly, not to be provocative but so that we can bring as much clarity as possible to what it is that we are actually doing with eyes wide open, about what is at stake.
The Supreme Court of Canada, in paragraph 2 of the Carter decision, made the stakes clear. On the one hand stands the autonomy and dignity of a competent adult, who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable. It goes on to say people who are vulnerable to being induced to commit suicide.
We think there are two main policy questions to answer in order to deliver on these policy goals. Who is the service intended for, and how can we best ensure that delivering the new public service will only be to those who are truly autonomous and not to those who are being induced to die by suicide?
The first question, who is the service intended for? We fully support the definition of eligible persons for this service as laid out in Bill C-14. We concur with the conclusions of constitutional law expert, Professor Dianne Pothier, who wrote, in a piece published in Policy Options just last week, that the Supreme Court's silence on the particulars of the definition of grievous and irremediable should not be taken to tie Parliament's hands. Indeed, the court was very clear that it was up to Parliament to define this term and the parameters of the system.
As Professor Pothier notes, the trial judge actually defined the term and she did so quite clearly. The Supreme Court neither rejected the definition nor added to it. The trial judge defined the term to include only those conditions that left the person in an advanced state of weakening capacities, with no chance of improvement, and specifically excluded those whose source of intolerable suffering was psychosocial in nature. In granting the constitutional exemption to Ms. Taylor, the criterium was that she would be terminally ill and near death, and there was no hope of her recovery.
Although the Supreme Court of Canada did not define grievous and irremediable, the fact that it adopted the trial judge's terminology, without comment, offers a strong inference that it found the trial decision definition and the criteria valid, otherwise, the court would likely have altered the criteria or rejected the terminology. We also support, very clearly and for reasons the Professor Pothier has laid out, the inclusion of a criteria of reasonably foreseeable natural death.
Second, and we can get into a discussion on that later, how can we best ensure that we're delivering this new public service only to those who are truly autonomous and not to those who are vulnerable to being induced to die by suicide?
A main challenge in designing this service is to identify and respond to people who may be induced to use the new system to die. One of the challenges is that it's not a straightforward exercise to identify who, in fact, is vulnerable to being induced.
What do we mean by being induced to die by suicide in such a system? There's a large body of clinical research on inducement to suicide, and recent evidence and case examples from Oregon, the Netherlands, and Belgium. We've recently undertaken a review of this research, which points to five main ways in which people can be induced.
First, there can be distorted or disordered insight into one's condition and options available to a person as a result of the mental health issue.
Second, there can be hopelessness arising from self-stigma associated with negative cultural messages and stereotypes about one's condition.
Third, there can be direct coercion, and there are many examples in the Oregon and Belgium-Netherlands systems of direct coercion. One that we've shared is of a caregiver in Oregon who said to her husband, you either use the system to die or you go into long-term care. He didn't want to go into long-term care, so he chose the system to die. Given that 40% of elderly persons in long-term care in Canada are either clinically depressed or show symptoms of clinical depression this should be a real concern for us, and given also the lack of family supports.
A fourth form of inducement is through what the psychiatric literature calls the psychodynamics of the relationship with health care professionals, where physicians may feel a sense of guilt from not being able to heal a person and a person comes to feel like a lost cause. This is called in psychiatric terms transference and counter-transference.
A survey of psychiatrists involved in consulting on request for physician-assisted death in the Netherlands indicated that such dynamics influenced 25% of the requests in which they had provided psychiatric consultation and 19% of cases they consulted on physician-assisted death went ahead to be authorized by physicians, even though the psychiatrist had advised that issues of transference and counter-transference appeared to be influencing the decision.
A fifth way of people being induced is because of a lack of access to needed support or information about what options might be available, meaning effectively that people are not making informed decisions.
Our proposed amendments to address these concerns are laid out in our brief and include, in summary, an expansion of the preamble to include a study on independent prior review. We believe that a system for prior review is essential to guard against the very real risks and complex nature of the reality of inducement that is pervasive in the systems that exist and to ensure that the legal criteria Carter laid out are met.
Second is a clearer standard for informed consent. The bill only references external pressure. The Supreme Court was clear that people who were induced to die by suicide needed to be safeguarded. The standard should include reference to inducement, undue influence, and coercion.
As well, there are only five provinces and territories that actually have statutory standards of informed consent across the country, and colleges also have varying guidelines.
A proposed additional safeguard is that before medical assistance is provided, the medical practitioner or nurse practitioner must confirm that a qualified clinician has provided the person with a palliative care consultation, outlining the full range of treatment, technology, and support options and provided written confirmation that the person had the capacity to refuse those options.
Fourth, we believe that until further study is done, either the current system of superior court prior review should stay in place or proposals advanced for putting a tribunal system in place should be incorporated into the bill.
Here are a couple of final ones. The bill provides that the Minister of Health may make regulations related to information to be gathered. We believe that should be amended to say the minister must make those regulations and those regulations should come into force on the day the law comes into force, so that we can be assured that information is being gathered about requests, the socio-demographic information, the reasons people are refusing options, and the reasons they are requesting this service.
Finally, we believe that the bill should include a requirement that the ministers of Justice and Health table a report in Parliament on an annual basis based on analysis of the information that is collected under the regulations.
Thank you.
