Justice Committee on May 4th, 2016

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I have one brief question to CMA. It's a question I've asked all the medical panels that have come before us. Essentially, it follows on Mr. Rankin's question.

When you look at reasonably foreseeable death, if we were to add clarity, if we were to say that the person's death was reasonably foreseeable within the next six months, or a year, based on the model in Oregon, based on the model in all of the states that have passed this type of a law, would that be preferable to you than the vagueness of reasonable foreseeability?

[Dr. Jeff Blackmer]

I would say, as a general principle, additional clarity would be welcome. I would also say that given the type of association we are, it's very difficult for Dr. Forbes and me to pretend to represent 80,000 members when we haven't had that discussion internally. Certainly the additional clarity, as I say, as an overarching principle, would be welcome.

[The Chair, Liberal, Anthony Housefather]

I want to thank all of the members of the panel. I know this was not easy since you had to sit through a break. Thank you so much for sitting there for an hour and forty minutes; it's really appreciated.

We're going to ask the next panel to move forward while we take a brief recess.

Thank you so much, all of you. It was very helpful.

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen in the back of the room, I am now asking you to please take your seats or to step out of the room. We have limited time and we can't have people talking in the back.

I want to thank the witnesses on this panel, despite the constant disruptions of today, for having stayed and for having understood that we're going to disrupt again for a vote in the middle of the panel.

We have three different associations representing nurses. They are all different associations with potentially slightly different views, but they've been kind enough to find a way to present in a common way. They'll go one after the other.

We have Maureen Klenk, past president of the Canadian Association of Advanced Practice Nurses; Carolyn Pullen, from the Canadian Nurses Association, who is the director of policy, advocacy, and strategy; and Elaine Borg, from the Canadian Nurses Protective Society, who is the legal counsel.

We have two witnesses presenting as individuals. We have Dianne Pothier, who is a professor emeritus with the Schulich school of law at Dalhousie; and Trudo Lemmens, who is a professor and Scholl chair, health, law, and policy with the faculty of law at the University of Toronto.

Welcome to all of you.

I'm going to ask the different nurses associations to present first.

Before we begin, I need unanimous consent from the committee to proceed while the bells are going until 10 minutes before the vote. Do I have unanimous consent?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Ms. Klenk, please go ahead.

[Maureen Klenk, Past President, Canadian Association of Advanced Practice Nurses]

My name is Maureen Klenk and I represent the Canadian Association of Advanced Practice Nurses. I am proud to be a nurse practitioner. I believe I may be the only nurse practitioner who will be presenting to you.

I would like to forward three concerns.

First, although Bill C-14 uses legal language, its primary purpose is to provide Canadians and health care providers with protection and accessibility for medical-assisted dying. Counselling is an everyday activity within every patient exchange. There will be much counselling between the time when a patient requests medical-assisted dying and the provider actually writing the prescription. Therefore, we believe the exemption for medical assistance in dying must include both clauses (a) and (b).

Second, an age restriction and requirement is discriminatory. A 16-year-old with a brain tumour will suffer as much as a 36-year-old, and their prognosis is the same. Yet, we do accept as lawful a 16-year-old signing a surgical consent for his two-year-old daughter.

Third, the terms serious and incurable are not medical terminology and provide the practitioner with no descriptive value.

Also, what is a natural death for a 60-year-old who has ALS? He's not going to die from natural causes. His death is going to occur from the horrible complications of ALS. When would a health care professional know that this 60-year-old's death was reasonable and foreseeable? We believe this is not a measurable term in any context.

CAAPN recommends the removal of clauses (a) and (d) from 241.2(2).

Thank you for the opportunity to contribute to this important process.

[Dr. Carolyn Pullen, Director, Policy, Advocacy and Strategy, Canadian Nurses Association]

Thank you for this opportunity to suggest amendments to the draft wording of Bill C-14 on behalf of the Canadian Nurses Association.

We are the national association for 139,000 registered nurses across Canada, including nurse practitioners. My name is Dr. Carolyn Pullen.

CNA welcomes the federal government's moderate approach to this challenging legislation, and we support the expeditious passing of this bill. CNA strongly endorses the stated intention to work with the provinces and territories on a pan-Canadian care pathway for end-of-life care, which has the potential to reconcile issues related to access and conscience. We are lending our support to harmonized implementation of MAID across jurisdictions by convening nursing stakeholders, including regulators and educators, to develop a national nursing framework to guide nurses in the implementation of MAID.

The CNA recommendations for amendments to Bill C-14 are based on our view that it will best serve patients and health care providers if the legislation can be clearly understood, is possible for professionals to demonstrate in practice, and is practical to implement in the best interests of the patient. In accordance with these principles, our written brief suggests three amendments to the language used in the draft bill.

Our suggested amendments would remove the criteria that refer to “incurable and reasonably foreseeable death”. We respectfully offer an expanded definition of “grievous and irremediable medical condition”, which we believe is in accordance with the Carter decision, which focused on intolerable suffering rather than on timelines for death. By making the amendments we suggest, section 241.2(2) could be deleted from the bill.

The current wording used in section 6(a) and (c) that address independence of practitioners is also problematic. As written, these clauses leave room for questions about business relationships between practitioners as well as factors that could affect the objectivity of practitioners. For instance, if practitioners have only referred patients to each other in the past, does that imply a business relationship? In small communities, does simply knowing each other imply a relationship that affects independent practice? Confusion about the meaning of these clauses, if left as is, could lead to delays in access to MAID, particularly in rural and remote settings, where the numbers of health care providers to draw on may be limited.

While fully supporting the need for these important safeguards, here the CNA suggests revising these clauses so that they can be more clearly understood, demonstrated in practice, and practical to implement in the best interests of the patient.

Thank you for the opportunity to deliver these prepared remarks and to contribute to this important process.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Borg.

[Elaine Borg, Legal Counsel, Canadian Nurses Protective Society]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. That was a very interesting presentation. I appreciate you all working together to make it into one.

Colleagues, we have 16 minutes until the vote. Do we feel that we have time to hear another one?

Will either of you be able to do this within eight minutes or less, for sure?

[Prof. Dianne Pothier, Professor Emeritus, Schulich School of Law, Dalhousie University, As an Individual]

That's my plan.

[The Chair, Liberal, Anthony Housefather]

All right. We'll go with Ms. Pothier. Thank you.

We'll have to really stick to the eight minutes here.

Thank you so much. Please go ahead.

[Prof. Dianne Pothier]

Thank you. I appreciate the opportunity to be here.

My expertise is in constitutional law, including charter law. So that's where I'm coming from. Given the limited time, I'm focusing on the constitutional validity of the definition of grievous and irremediable medical condition in proposed subsection 241.2(2).

I think it's important to get the point that in some ways it's as significant what the Supreme Court of Canada in Carter 2015 didn't say as much as what it did say. The Carter decision, in paragraph 95, refers to the protection of the rights of vulnerable peoples as the constitutional rights of vulnerable peoples, but they don't elaborate on that. That wasn't the nature of the claim before them. They acknowledged that there were constitutional rights of the vulnerable, which they didn't elaborate on in the decision, but that's part of the context of what you have to do in responding to the Carter decision.

In analyzing both section 7 and section 1 and acknowledging the protection of the vulnerable, the real challenge in this context is that the vulnerable are not going to self-identify when they appear in this process. The point of saying we're talking about the constitutional right of the vulnerable is that it's for people who are not well placed to identify and defend their own rights. They're going to present as people who want to die, and the issue is, is this a matter of being at a time of weakness and saying you want something, which, if you had the opportunity to reflect on, you would change your mind about, while if your current wish is acted upon you'll never have that opportunity because you're going to be dead.

The issue is complicated by rights that are in a sense competing, but they're competing in an unusual way, because we're talking about difficulties in identifying the people who need protection.

I want to focus particularly on the provisions of proposed paragraph 241.2(2)(b), which is the advanced decline section, and proposed paragraph 241.2(2)(d), the reasonable foreseeable death sections. The question is whether those two limitations are constitutionally valid.

Lots of folks, including those next to me at this table, have said that since those provisions weren't referred to by the Supreme Court of Canada and Carter, that means you can't do that. I'm afraid that's not a very strong analysis, because, again, it's what they didn't say in terms of comparing it to what they did say.

With regard to proposed subsection (241.2(2)(b) about advanced decline, before Justice Smith at trial, the Quebec legislation wasn't in force yet but the Quebec committee recommendation was before her and she picked up their language in terms of advanced decline and capability, and put it into her declaration of invalidity. The Supreme Court of Canada did not incorporate it. They didn't disagree with it; they didn't agree with it. They didn't even acknowledge that she said it.

So to say that by completely not commenting, not even acknowledging, this issue they somehow pronounced upon it is a very extreme interpretation of what the court is doing. It didn't comment at all and it's the language that's picked up in the Quebec legislation and it's picked up in Bill C-14. A reasonable interpretation of the Supreme Court of Canada not commenting is that they're handing it over to Parliament for Parliament to exercise its best judgment.

Similarly the issue of reasonable foreseeability of death is not referred to in Carter, but before Justice Smith, before the Supreme Court of Canada, they canvassed the North American history versus the European history. In some of the North American versions, they do have some sort of end-of-life limitation. European ones don't.

You might have thought they should say what is good and what is bad, and what are the pros and cons. They don't enter into that analysis. Therefore, it seems clear to me that they're saying they haven't preordained what should happen here, and they are sending it back to Parliament for you to decide whether an end-of-life stipulation of some sort is appropriate here. I think the first point is that the Supreme Court of Canada leaves this open.

If you need confirmation that this is what they're doing, they told us that in Carter 2016 at the time when they were granting the extension of the suspended declaration of invalidity. They made a point of saying that they expressed no opinion on the Quebec legislation. The Quebec legislation has both of the things in proposed subsections 241.2(2)(b) and (d). Proposed subsection 241.2(2)(d) is a slightly different version of it, but it's in the same ballpark in terms of being an end-of-life stipulation.

The court has handed it back to Parliament to decide, but the question still is, if you choose to put in proposed subsections 241.2(2)(b) and (d), is that consistent with section 7 of the charter? My analysis is that it is consistent for both of them. At trial, Canada argued before Justice Smith that if there's even one person who wrongfully ends up dead because of this, that's enough to warrant an absolute ban on physician-assisted death. Justice Smith said that's going way too far, both as a matter of the principles of fundamental justice and as a matter of the section 1 defence for the government. That's going way too far.

Neither Justice Smith nor the Supreme Court of Canada said that there's some magic number here, but they're clearly saying, on the assumption that with safeguards, the risk of error or abuse, of having people prematurely die who ultimately would have changed their minds if they'd had the opportunity.... But if the risk of that is low—

[The Chair, Liberal, Anthony Housefather]

I'm sorry. We're going to have to come back.

It will let you think about how you want to wrap up.

[Dianne Pothier]

Okay.

[The Chair, Liberal, Anthony Housefather]

By the way, I have to say that this is one of the most interesting submissions we've had so far, so I don't want to in any way say that we're not interested. We're very interested. We'll let you finish when you come back.

[Dianne Pothier]

I understand.

[The Chair, Liberal, Anthony Housefather]

I just don't want to miss the vote.

[Voices]

Oh, oh!

[The Chair, Liberal, Anthony Housefather]

We're suspended.

[The Chair, Liberal, Anthony Housefather]

I call the meeting back to order.

Ladies and gentlemen, I want to thank you for your patience again while we went to vote. I know this process is long for you, and I very much appreciate your forbearance.

I have two pieces of good news. The first piece of good news is we won't be interrupted again tonight with votes. The second piece is that you are now the first witnesses appearing before the committee after the bill has actually been referred to us—

[Voices]

Oh, oh!

[The Chair, Liberal, Anthony Housefather]

—so it makes your testimony all the more compelling.

Ms. Pothier, please continue.

[Dianne Pothier]

Thank you. I'm told I have two minutes, so I'll have to be brutal about what I talked about.

Before the vote, I was saying that the point of the decision in Carter v. Canada was to say that if the risk of error or abuse is low, then the autonomy claims can prevail, but the obverse of that is that if the risk of error or abuse is high, then the protection of the vulnerable prevails. My point in all of this is that I think proposed paragraphs 241.1(2)(b) and 241.1(2)(d) are consistent with section 7 of the Charter of Rights, consistent with the principles of fundamental justice, or, in the alternative, saved by section 1 of the charter.

If you take away proposed paragraphs 241.1(2)(b) and 241.1(2)(d), then the chances go way up of having somebody face premature death on the basis of a transitory wish, whereas if they'd had the opportunity over decades, they could have changed their mind, found other ways of coping with issues, found a way to make life worth living.

In section 1, the difficulty of protecting the vulnerable is an important factor. It goes beyond the individual claimant.

There are other things I could say, but I just have one final wrap-up comment.

You've heard lots of comments over the last few days to the effect that if you have the restrictions of proposed paragraphs 241.1(2)(b) and 241.1(2)(d), it's only going to produce new litigation to challenge. Yes, it's open for somebody to say, “You haven't gone far enough.” But it's important to remember my starting point; the court recognized the constitutional rights of the vulnerable. The other side of this is, if you go too far, make it too wide open, you're open to a challenge on behalf of the vulnerable. That's an interference with their constitutional rights.

If you want to charter-proof whatever you do here, the only way to do that is by using the notwithstanding clause in section 33 of the charter. I haven't heard any senator or any MP who thinks that's a good idea. There are potential challenges from both ends of the spectrum here. Your job is just to exercise your best judgment.

My submission to you is that proposed paragraphs 241.1(2)(b) and 241.1(2)(d) are important to protect the vulnerable. To include them is consistent with section 7, and would be saved by section 1 in the alternative. To exclude them increases the risk of error and abuse substantially to mean, not only would it no longer breach section 7, you'd invite a challenge from the other side of the spectrum.