Just as an example, I've tried to bring the following to light as I've discussed with nurses and others. Would it be a rule, for example in Alberta Health Services, which is probably the largest regional health authority in the country, that people receiving medical assistance in dying have a particular drug regime?
As a practitioner working in High Level Alberta, a small town, it doesn't happen very often. The supply chain fails, and this is what I have in the formulary. I don't have what that AHS policy says. Is it a rule, such that if I went ahead, I would find myself in jail or explaining myself to a criminal court when my priority had simply been my patient and they had met the eligibility criteria, but there's been a rule?
It is in situations like that where I think there are unintended consequences. The larger issue really is about civil liability. We don't have examples in the Criminal Code when they talk about criminal negligence and so on. It appears rarely in the code and they really want some kind of marked departure, some kind of taking yourself out of what the civil standard is, which comes to mind as I read subsection (7), which is also almost in the nature of “You should have known better and you shouldn't have done that”, rather than that you intended or there was wilful blindness, recklessness.
This is what we are concerned about when we think about what the evil is that is being addressed here. We already know that practitioners are balanced personally. They each have their own personal professional licence to practise. I've worked with CNPS for 16 years. I can tell you that practitioners are more afraid of going through professional disciplines than civil lawsuits. They understand it as a permission to practise and something that can be withdrawn from them if they do not practise according to practice standards and the code of ethics, which change. Therefore they have to stay on top of the changes in their own field, in their own discipline.
When we look at this and say we don't really like what's written there because of the lack of mens rea, is it needed at all? Well, we do know—I know this and I do this day in and day out—that nurses are sued for negligence and then the defence comes, so the courts are seized with it. When it comes to regulatory matters, there are statutes across the country that govern colleges of doctors, nurses, pharmacists, psychotherapists, and so on. They all regulate their own members by giving them practice direction, but then they also hear complaints from the public. As we know, there is no statute of limitations on when those complaints can come.
These consequences that normally flow from civil or administrative or regulatory breaches already exist, and there is no barrier to somebody making a complaint in that way or bringing an action in that way if they believe that a practitioner has violated their professional standards.