Justice Committee on May 5th, 2016

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Thank you to the witnesses. I will direct my questions to Professor Chochinov.

You listed a series of safeguards that you think should be included in the way of a legislative response. You mentioned a palliative care consult. You mentioned a review panel. I found it quite interesting, because those were precisely the safeguards that were recommended by the plaintiffs in the Carter decision, and they are cited in Madam Justice Smith's decision at paragraphs 876 and 879. Madam Justice Smith, in the British Columbia Supreme Court decision, at paragraph 854, stated that, based upon the evidence, she could reach no conclusion other than that there are inherent risks in permitting physician-assisted dying; and only after having regard for the safeguards that the plaintiffs put forward, including a review panel, was she satisfied that those risks could be substantially minimized.

Another safeguard that had been put forward by the plaintiffs was a psychiatric evaluation in addition to a palliative care consult. Is that a safeguard that you would see as appropriate in addition to a palliative care consult?

[Dr. Harvey Chochinov]

Right now the way the bill is worded, it talks about availability for those whose deaths are “reasonably foreseeable”. It's for that reason that it seems to me there is and ought to be a place for palliative care consultation. It's only reasonable that if somebody is going to give valid, informed consent, they be aware of all of the things that are available to them so they really know what their options are.

With respect to the question, though, of psychiatric consultation, and psychiatric consultation in every single request, I know that the Canadian Psychiatric Association has said that if there is a concurrent psychiatric illness, if there is a question about the degree of competence, then a psychiatric consultation would be reasonable. In not every instance will it be required to have a psychiatric consultation to determine whether or not the person is competent.

Again, given the way the current bill is worded, and given that it's talking about death being “reasonably foreseeable”, I included the provision for palliative care consultation being a part of every evaluation. Psychiatric consultation should not be included because psychiatric issues are not going to be a part of every scenario in which somebody is requesting to die.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that.

If, for example, someone was diagnosed with an underlying mental health challenge, it would be your view that in that case someone should undergo a psychiatric assessment to determine capacity to consent. Would that be fair?

[Dr. Harvey Chochinov]

I think so. Again, two physicians are involved in making those evaluations, and certainly physicians are involved in determining things around competence, but if there is an underlying psychiatric issue that is felt to be clouding the way that person is presenting, and making it difficult to determine whether or not there are underlying psychiatric issues that are driving them towards a wish to die, then the role of psychiatry would seem to be supported.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Right now the legislation simply provides that two physicians, any two physicians out of the some 80,000 who are certified to practise in Canada, could determine whether or not someone meets the criteria. It wouldn't even have to be two physicians. It may be two nurse practitioners. Do you as a psychiatrist think that when we're dealing with something that may be a determinant of whether someone has the capacity to consent, a nurse practitioner or any physician in Canada could undertake that type of analysis?

[Dr. Harvey Chochinov]

I think we have to go beyond the issue of whether they have the capacity to consent. When our panel was doing our various consultations around the world, I remember when we were in the Benelux countries we met with physicians, some of whom were engaged in this practice. Those who were practising it in a way that I thought was perhaps the most careful and responsible were saying that their duty is not only to determine whether or not they meet eligibility criteria but also to find out the antecedents of a wish to die. What is underpinning a person's request to end their life?

When you look at people's reasons for seeking a hastened death, medical circumstances alone are in the minority. Much of the research I have done over the last 15 years actually began with the fact that in Holland loss of dignity was the most highly cited reason for people seeking an assisted death. If you go to Oregon, on the other hand, it's not about physical pain. It is, in most instances, about loss of autonomy. There are existential issues. There are things that cause people to feel as though they are a burden on others.

The reason I suggested earlier that there needs to be some form of larger oversight, and I suggested judicial oversight, was that the sources of distress that underpin a wish to die aren't just within the area of expertise of physicians who can evaluate whether or not somebody is in pain or who can evaluate some of the physical sources of distress; there are also going to be social issues and financial issues and environmental issues. All of those things need to be evaluated if we're going to do a good job of determining whether or not we understand why somebody is seeking out a hastened death.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid is next.

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

Thank you very much, Mr. Chair.

Thank you, panellists, for your great presentations today.

I want to start off with Dr. Chochinov if I may.

You mentioned in your presentation and also in your brief the requirements to have palliative care as a “must” prior to the administration of MAID. We also know that the Constitution really does separate jurisdiction and the powers between the federal government and the provinces, and health care does fall into the provincial realm of administration and governance.

My question to you, then, is, would such a requirement of a mandatory palliative care consultation perhaps fall within the provincial jurisdiction in terms of the actual administration and the process of MAID?

[Dr. Harvey Chochinov]

I think you'll have to speak to the lawyers, who have more expertise than I have in those matters. I'm just the lowly physician on the panel.

On the other hand, the Government of Canada is initiating a policy that will allow for medically hastened death. If that is the case, they also want to make sure that people are giving valid, informed consent. Part of getting valid, informed consent is that somebody know and be aware of all of the options available to them.

It seems to me that a palliative consultation—not just, by the way, for somebody who is requesting medically hastened death, but for any dying patient who is experiencing intolerable suffering.... It seems unimaginable that in the Canada we know and love, a palliative consultation and the availability of palliative care expertise wouldn't inform what we would want to be in place and available for all patients before a decision was made that a hastened death would be provided.

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

I'll turn to the lawyers to give a comment on that.

[Jennifer Gibson]

I struggled a bit with whether or not we must require a palliative care consult in all cases. Indeed, if we look at what clinical practice actually looks like these days, you might have a patient before you and, given the needs of that patient, you might bring in any number of consults: you might bring in somebody with a social work perspective to help inform the work; you might bring in somebody from palliative care; you might invite a psychiatric consult—but all of that is driven by the needs of the patient.

It is here that I think there is a divide between what we might like to see in a Criminal Code amendment and what is really the domain of good clinical practice, which falls under the jurisdiction of the provinces.

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

Mr. Paterson.

[Josh Paterson]

I don't have anything to add to what Ms. Gibson said.

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

Okay.

Dr. Chochinov.

[Dr. Harvey Chochinov]

I was going to ask whether I could respond to that as a follow-up.

[The Chair, Liberal, Anthony Housefather]

I think so.

Is that right, Ms. Khalid?

Yes.

[Dr. Harvey Chochinov]

As Ms. Gibson said, it's true that in clinical practice one could call on any one of a number of disciplines. I think the reason for talking about palliative care consultation per se is that palliative care more than any other discipline in medicine is implicitly multidisciplinary. We would have people who have expertise to tap into the psychosocial, existential, spiritual and physical sources and dimensions of suffering.

I think the other reason to mandate a consultation—and again, not just for people who request a medically hastened death but for all dying patients who have intolerable suffering—is that if it is mandated and if the information collected then is entered into an anonymized national database, it provides the basis for Canada's five-year review.

Parliament is committed to a five-year review. If we don't do something a priori to start collecting that information, five years from now what will there be to review? What are we going to say? Are we simply going to say, here's the number of people who have done it and there don't appear to have been any complaints? I say that is not enough; I think we need to be thinking not only about the next five years, but the five years after that, and we need to have some information available to provide the basis for Parliament's review.

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

Thank you.

Dr. Chochinov, you also mentioned that we need to have judicial oversight, and Mr. Paterson rather contended against what you said. I'm wondering whether both of you can add a comment.

I would think that such judicial oversight would cause further delay with respect to patients who are wanting to go through with MAID. We already have 15 clear days of consent and a cooling-off period that's required, as is indicated in the bill. I'm wondering how much of an additional time-processing requirement judicial oversight would create and whether such a process is necessary.

May I have your comments on that, and then Mr. Paterson's?

[Dr. Harvey Chochinov]

Sure.

How is judicial oversight working now in terms of the constitutional exemption? Are there inordinate delays?

My sense is that this doesn't appear to be the case.

I think it's worth reviewing that data and looking at it. Certainly it is not meant to cause inordinate delay, although Mr. Paterson hearkened back to the abortion experience. We're several decades after the fact. We have technologies that should be able to allow virtual connections so that people can have more expedited review.

The even broader issue to consider with judicial oversight is whether there is a public interest in knowing how this takes place and in being as transparent and objective as we can so that Canada can say to itself and its countrymen and to the international community that although the Supreme Court has made this legal, that does not necessarily mean that it has made it medical. We have not yet figured out whether or not this clearly fits into the system of health care.

Having been on the external panel, I went around the world and spoke to different physicians, and I can tell you nobody comfortably responded to the question that yes, this is part of medicine. We had one physician in Oregon who described this as an act of love. We had a physician who was engaged in these practices in the Benelux countries, who himself was directly involved in this, and he said this is not medicine; this is a social act; this is a change in our social contract.

Well, again, if that's the case, wouldn't Canada want to commit to the most transparent process possible, the most objective process possible, and for the first five years insist on judicial oversight, not to create inordinate delay, but to say we're going to do this in a very transparent way, and we're going to be courageous enough five years from now to live with the outcome of that data? If the data says that we have been too restrictive, then I think all of us need to be adherent to the data and say that it is time to open it wider. If the data says that there have been many instances vis-à-vis judicial oversight where people have been found to be vulnerable, and other steps needed to be taken, then we have to stand back and say, well, perhaps we are narrow enough, or we need to be even narrower.

Those are the rationales that I would offer for judicial oversight.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Paterson, you can have a last word on this. Then we'll go to Mr. Rankin.

[Josh Paterson]

I'm happy to offer the last word on it.

Despite the passage of time since Morgentaler, there's no meaningful shift in the reasoning that was used there.

Justice Bertha Wilson, in that case, concurred with five different judges, and they all gave different decisions. She remarked that this section

takes the decision away from the woman at all stages of her pregnancy. It is a complete denial of the woman's constitutionally protected right under s. 7, not merely a limitation on it.

She then goes on to say that:

The purpose of the section is to take the decision away from the woman and give it to a committee. It asserts that the woman's capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman's physical "person".

Those same rationales would apply forcefully here.

With regard to the benefits to which Dr. Chochinov points in terms of our needing to know how this is being done and so forth, there are many other ways of finding out that information, of gathering data and so forth, that have nothing whatsoever to do with saying this is a decision that ought to be made by some delegated body exercising state authority under a statute.

If I may, I'd like to respond to Mr. Cooper—

[The Chair, Liberal, Anthony Housefather]

Sorry, you can't.

We have to go to Mr. Rankin. We have a deadline, and you can't just respond to Mr. Cooper at this point.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

First of all, I'd like to say thank you to each of the panellists separately.

Dr. Chochinov, we had the benefit at the Senate/House committee of your colleague Maître Pelletier, who was very helpful. You weren't able to be there so it's good to meet you here. Thanks for your work on the expert panel.

Dr. Gibson, your leadership in the provincial and territorial task force is really quite remarkable, and thank you so much for all of the work that you have done respectively.

Of course, Mr. Paterson, than you for your dogged litigation in the Supreme Court as an intervener in Carter. We're very fortunate to have you here.

I want to start with you, Dr. Gibson, on the issue of vulnerability. I want to give you an opportunity, because you were going quickly at the end of your remarks on the issue of vulnerability.

Could you elaborate a little for us and put it in the framework of BillC-14 and explain how we can do much better in conclusion?

[Jennifer Gibson]

Some of my current concerns are about the way in which, in a sense, the shift from the Carter decision to Bill C-14 seems to have been motivated by a real concern about vulnerable populations. We've heard from Mr. Arvay this morning about this having led to certain exclusions of persons who have been labelled and classified as vulnerable.

I think that's a dangerous shift, actually, because as long as we label somebody as vulnerable, we are eroding their capacity. We are presuming that they are not capable, and in so doing we are treating them as unequal to the rest of us in society. I think that's a dangerous direction to be moving in.

At the same time, we are concerned about vulnerability. I think there are other mechanisms through which we can meet that concern. The current safeguards that are articulated here are definitely on the right track, but I start to become nervous when we move in the direction of thinking of prior review, of judicial oversight, which I think is motivated by a concern sometimes framed as enhanced transparency but more often as a way to address issues of vulnerability, while we have mechanisms within health care practice that would better serve that goal, and indeed, from a patient perspective, ensure a much more seamless experience for them at the end of life.

With regard to the judicial review process, we have had some experience over the last three months of cases going through the judicial review process to receive access to assisted death. One of the individuals who went through this process pleaded that this not be the mechanism by which they access assisted death because it is a burden, at the end of one's life, to be going through that particular process.

[Murray Rankin, NDP, Victoria, BC]

Mr. Paterson, you were very passionate in saying things such as that this bill cuts the heart out of your victory in Carter. You said it hollowed out half of the people from your victory.

Those are provocative phrases. I want to give you the opportunity to elaborate on why you think this bill, in its current form, would be contrary to the Carter case.