My name is Elaine Borg. I'm a nurse and lawyer. I work for the Canadian Nurses Protective Society. CNPS is a national not-for-profit organization. It's a legal defence fund for registered nurses and nurse practitioners. Our focus, as you'll see in our written submission to you, is along the lines of clarity. How do nurses know that they're on the right side of the law as this becomes law in Canada?
The first issue I'll address is that if it is lawful to participate in assisted death, it must be lawful to talk about it. Subsection 241(1)(a) of the Criminal Code makes it an offence to counsel a person to commit suicide. Counsel is defined in the Criminal Code at subsection 22(3) as including procuring, soliciting, or inciting.
Health care professionals use this same word, counsel, to describe professional communications within the therapeutic relationship. It is a combination of active listening, patient education, and support. Health care professionals must engage in these activities. The circumstances of assisted death are no exception.
We recommend that the exemption for assisted death in the bill, found at subclause 241(1)(a), overtly and expressly includes the word counsel, so that health care professionals can engage in this normal therapeutic activity without fear that doing so or using the word counsel in this context, for example, in charting and documentation of care, would be misconstrued as criminally prohibited activity.
In the CNPS written submission, we have provided a draft definition of counsel as well as a draft clause explicitly including counselling as part of medical assistance in dying.
The second issue I'd like to address is the criminalization of the civil standard of care. This can be found in the bill's subclause 241.2(7). Failure to comply with this clause could result in the commission of a criminal offence, despite the absence of mens rea, the necessary guilty mind. A health care professional may act so as to violate any one of these stipulations in the clause with no intention to do so, no wilful blindness, no recklessness. This is a lower threshold for criminal penalty than is required for criminal negligence, which can be found at section 219 of the Criminal Code.
In addition, it's not known what the rest of the clause means when it talks about provincial laws and standards. We don't know what these are yet. It is reasonable to anticipate that they would include administrative provisions that are not worthy of criminal penalty if violated. The word rule is used in this clause. It's undefined, broad, and vague.
Health care professionals are and will be bound by the civil standard of care, and must practise in accordance with professional standards and ethics. Violations of these result in proportional civil and administrative remedies. For these reasons, the CNPS recommends the removal of subclause 241.2(7) in its entirety.
The third issue is the certainty of the role of the nurse in respect to medication administration. A prominent feature of professional nursing practice is medication and substance administration. The whole care team expects and knows that nurses do this.
Subclause 241.1(a) of the bill defines medical assistance in dying as the administration by a medical practitioner or nurse practitioner of a substance to a person. If the intention of this clause is to ensure the substance is administered personally by a doctor or nurse practitioner, we recommend the inclusion of the word personally before the word administering for the sake of clarity and certainty, given the role that nurses play in medication administration.
My final point is in regard to what constitutes a business relationship. A purported safeguard in the bill is the prohibition that practitioners be in a business relationship. The term is vague. Health care professionals must work together, so what are the parameters of a business relationship such that a practitioner can demonstrate compliance and avoid criminal penalty?
Thank you.