Justice Committee on May 4th, 2016

[The Chair, Liberal, Anthony Housefather]

Please be brief.

[Colin Fraser, Liberal, West Nova, NS]

Ms. Borg, you made a statement on 241.2(7), which is the reasonable knowledge, care, and skill clause. Had you submitted in your brief a recommendation of what could replace that, or are you saying to remove it?

[Elaine Borg]

Our recommendation is to remove it. The processes that govern this area, whether in the civil courts or regulatory bodies through their own discipline, are already seized of that.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I would like to echo what Mr. Fraser said in thanking all the witnesses, particularly acknowledging the nurses and all the great work you do. It's wonderful to have you here.

I'm going to start with the nurse practitioners. It came as a surprise to a lot of us when the testimony of the deputy minister of justice a couple of days ago confirmed that two nurse practitioners and no physician would be able to provide medical assistance in dying. That's contrary to the recommendations of the special joint committee. Are nurse practitioners content to have this jurisdiction, this power to decide on your own, without any physician's involvement?

[Maureen Klenk]

The short answer is yes.

[Murray Rankin, NDP, Victoria, BC]

Good. Thank you. I wanted to clarify that.

I also wanted to give you a chance, Ms. Klenk, because it seems like forever ago when we heard your testimony. You gave us two compelling examples. I'd like to take you back to them, because I confess I wrote them down very quickly. A 16-year-old with a brain tumour was compared with a 36-year-old, and then you referred to a 60-year-old ALS patient in the context of natural death. Could you elaborate on those, please?

[Maureen Klenk]

My colleagues and I believe that the 16-year-old with the brain tumour would suffer just as much as a 36-year-old, a 56-year-old, or a 70-year-old. Their prognosis is exactly the same once it gets to that irremediable point. Even though we're saying in this bill that nobody under the age of 18 can sign to go forward, we accept as a matter of law, as a society, that a 16-year-old could sign a surgical consent for their own child. On the one hand, we're letting people go to war, so to speak, but then on the other hand, we're saying, no, you can't. I have accepted 16-year-olds signing consents for immunizations. That's legal. That's the one case.

The other case is the natural death. If you are diagnosed with a condition such as a brain tumour, ALS, lung cancer, or any of these horrible diseases, your death is no longer natural. In society, we refer to a natural death as one where the body is played out—you're 110 years of age and your kidneys are slowly packing it in and not functioning anymore. Those are the kinds of things that are thought of as a natural death.

A natural death for somebody with a grievous diagnosis wouldn't happen. As a practitioner, if such a person died, I would not be able to say on their medical release certificate that they died a natural death. I would have to say that they died of complications derived from ALS, or that they died of respiratory failure, or whatever. That's not a diagnosis.

[Murray Rankin, NDP, Victoria, BC]

Thank you. I want to thank all three of the nurse groups for giving us very specific language. It's immensely helpful. That's what we're here to do and I really appreciate that.

I want to go to Ms. Pullen for the CNA.

In your brief you recommend that we should simply delete from the current bill the entire clause that defines “grievous and irremediable medical condition”, as I understand it. I think the language you've suggested—and I'm not putting words in your mouth—looks identical or virtually identical to what the Supreme Court of Canada said. Is that your intention? I'd like to clarify what you meant by that.

[Dr. Carolyn Pullen]

Our recommendation is that clause 2 can be completely deleted if revisions are made in the previous clause to allow for an expanded definition of “grievous and irremediable”, and we have provided that language specifically. And yes, it is in accordance with the initial description.

[Murray Rankin, NDP, Victoria, BC]

It seems that the joint committee essentially tracked the language of the Supreme Court judgment.

[Dr. Carolyn Pullen]

Yes, and we were satisfied with the original interpretation.

[Murray Rankin, NDP, Victoria, BC]

Ms. Borg, again, thank you for the specific language. You make many points that we don't have time, sadly, to explore, but I wondered if you could talk a little more about the mens rea requirement and your concern when it tracks the provincial standards—the word “rule” that you've used being very vague. Tell us a little more about your concern in that regard.

[Elaine Borg]

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.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much for your patience, first of all while we dealt with our issues here in the House, and for presenting such eloquent testimony. Your briefs are very helpful.

My first question is for Ms. Klenk, Ms. Borg, and to Ms. Pullen as well.

With respect to the administration of physician-assisted dying, we know the bill kind of goes toward two streams. One is where the health practitioner is the person who is administering the drug to end life. Then the second stream is where a person is able to get a prescription for the drug and take it home to self-administer. I'd like to know your viewpoint on that. Are you comfortable with persons taking it home to self-administer? Secondly, in what cases would somebody want to take it home to self-administer it?

[Maureen Klenk]

The answer to the first question is, yes, I would be comfortable. We all know that there are a lot of dangerous drugs in our communities. There are always risks, no matter what situation you're in. I do believe that, if someone had come to me to ask for assistance and the appropriate safeguards were in place, they would be safeguarding their medication or their family would be safeguarding it. So I can answer that question.

Do any of my colleagues want to weigh in on that?

[Dr. Carolyn Pullen]

I would only endorse that in the case of oral medication self-administered. The nursing association is supportive of that. I've heard it stated by others that, if any of us looked in our medicine cabinet today, we would find equally toxic cocktails that could be select as an alternative to what might be prescribed. So, while it's a calculated risk, it's one we are comfortable with.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Do you think that there would be a problem with safely administering the drug at home?

[Maureen Klenk]

I think you would certainly do your best to educate and have family agreement or whatever comes into play. But having said that, we allow people to provide palliative care for family members at home and apply very potent Fentanyl patches, and we teach how to discard those Fentanyl patches appropriately. You hope that this gets done.

There is a trust relationship here for sure, and I think in general it works. The trusting relationship works. Will there be some outliers? Maybe, likely, but we'll do our best to make sure there aren't.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

The next question is to all the panellists. We've heard testimony on a number of occasions that the age restriction is 18 years of age and older for eligibility. If such an age requirement was removed, what safeguards would you propose to protect the vulnerable, the ones who may then be persuaded or coerced into doing something that they might not want to do themselves?

[Dr. Carolyn Pullen]

I will comment first on that. From the nursing association's standpoint, we are comfortable with Bill C-14 as it is currently drafted, with the recommendation that the trifecta of age, mental illness, and capacity assessment, or advance directive, be studied in an expedient manner and in a thorough manner in the coming days. As the legislation stands right now, we are satisfied with that content and the safeguards it includes.

[Elaine Borg]

I will just speak to my past professional life as a nurse. I started working at the Hospital for Sick Children, and I can assure you that children die. At that time we had very little access to palliative care, and years after I left, I saw both to my delight and sinking heart that they finally discovered that children experience pain. We have a long way to go in understanding what we're going to do next with, for example, mature minors.

I think that the government intends to study this issue. One suggestion that we've kicked around in my office is that prior judicial authorization doesn't seem to be necessary if we look at the whole scope of what doctors, nurses, and nurse practitioners do with their patients. It would cause delay. It would be expensive. Who bears the expense?

If I'm settling a civil case for money damages and I'm dealing with a minor or a person with a disability, I need judicial authorization to enter into that settlement. Cannot some of these populations access medical assistance in dying if their eligibility criteria are met, perhaps with the caveat of judicial authorization beforehand because of the special and sensitive nature of these populations?

[The Chair, Liberal, Anthony Housefather]

I'll give Ms. Pothier a chance to answer and then we'll come back to you.

[Dianne Pothier]

I think at first blush it seems pretty obvious that it's age discrimination to say that those over 18 are in, and those under 18 are out.

But the real point and question—which is why it should give us all pause and why additional study is a good idea—is are the young especially vulnerable? It makes trying to figure out what the right balance is more complicated because the young are more vulnerable. That's the issue you have to wrestle with, so I think caution is in order.