Justice Committee on Nov. 23rd, 2020

[The Chair, Liberal, Iqra Khalid]

Mr. Genuis.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

We needed to hear more about the cases of people who could be impacted by an absence of safeguards. When you have a situation where somebody is making an advance request, under whatever circumstances....

You know, I think we'll have to see how this plays out as well with advance requests. I don't doubt that the legislation will, in some form, pass. Then when advance consent is in place we'll be in a situation where it may be that people sign the advance consent to give themselves the option, even if they're not entirely sure what they would want in the moment. You could imagine a situation quite reasonably in which a person fears cognitive decline. They don't want to be in a situation where they're suffering physically and they're not able to access care, but then they are able to receive access to care that they didn't expect.

We've talked as well here about the availability of palliative care, how long it takes for a person to get a palliative care assessment and the lack of availability of palliative care in general. I might hope that in some of the cases we've talked about, a person might actually be offered and receive palliative care in the intervening time and that a person who is experiencing severe pain and suffering in the moment might have, after whatever prescribed period laid out in this legislation, been able to access care that they had previously thought would just not be possible.

These are just some of the challenges around advance consent as well. I spoke earlier about the issue of adaptation, people adapting to different circumstances. I think we also have to take into consideration the way in which care adapts and different—

[The Chair, Liberal, Iqra Khalid]

Mr. Genuis.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Yes.

[The Chair, Liberal, Iqra Khalid]

I'll ask you to please limit your interventions to what is before us, which is CPC-8.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Yes, exactly, Madam Chair.

I'm sorry if I wasn't making the link clear enough, but the point I was making was that a person may sign to express their advance consent towards a particular point in time in the future. There are adaptations that may happen in their experience, but there are also adaptations that may happen in terms of their care. The data shows that there's not a sufficient supply of palliative care to support most Canadians. If a person, then, at that earlier point in time is not receiving palliative care, not being engaged with family, perhaps, or whatever their circumstances are, and they make an advance request, and then, at that point in time in the future, they are receiving care that they weren't expecting to receive....

I think just the idea of the advance consent provision as it's currently constructed assumes that people have a perfect ability to predict what their experience will be in their future and that their experiences will be sort of linear—that they can make an advance request for, say, February 20 knowing that they will go through a certain process and that they will feel a certain way at that point in time and that they will feel a certain way between now and then. Evidently that is not the case.

It's clear that's not going to be true for most of us in most circumstances, but it is particularly not true for a person as they're approaching the end of their life. We've had cases in the media in which a person has felt that they wanted to live through Christmas because that was something that was important to them, but it's also very possible that a person having been through that might identify other milestones and say that they'd actually like to extend their deadline for this, that or the other reason, and that just speaks to the importance of having as much of a connection to contemporaneous consent as possible, recognizing all of the different changes in circumstances and the dynamic ways in which people's circumstances vary over time. This is why we need to have safeguards of some kind, and this is, I think, a reasonable safeguard.

I want to identify that the amendment doesn't make this section perfect. I still have concerns about the mechanics of the advance consent provision, for reasons that are evident in the points that I have discussed. I do, though, think this shifts the purpose of advance consent to filling in for a case where contemporaneous consent is not at all possible, but it still requires some mechanism of consultation in the moment.

Madam Chair, I may want to say more on this, but I'll pause for now and we'll go to others.

Thanks.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Genuis, for your eloquent words.

Madam Findlay, you're up next. Go ahead, ma'am.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you, Madam Chair.

[Rob Moore, Conservative, Fundy Royal, NB]

On a point of order, Madam Chair, I'm sorry to interrupt but I want to make a motion to adjourn the meeting. We've been meeting for three hours now. This was not a scheduled meeting. I know we have a regular scheduled meeting tomorrow from 11 until 1—

[The Chair, Liberal, Iqra Khalid]

Mr. Moore, you cannot move a motion on a point of order.

We'll go to Madam Findlay at this time, and then we'll come to you, Mr. Genuis.

Madam Findlay, go ahead.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

In speaking to this amendment, what I wanted to talk about was the fact that this is allowing the ultimate in patient autonomy, to just confirm with the person and give them the opportunity to say whether they would like to proceed or not. I'm fairly confident that basically any legislation we might adopt is never going to safeguard in such a way as to eliminate all risk entirely that someone may end up accessing medically assisted death and not want it at the very end of their life.

That's because people do change their minds. We know that, but I would suggest that the risk is even greater if you are not looking for express or contemporaneous consent at the time. There's a lot of evidence to support that. The federal government released a first annual report on medical assistance in dying in Canada, and in that report it revealed that 7,336 written requests for MAID were reported in 2019. Of those, 263 were withdrawn by the patient predominantly because they changed their minds, and of those 263 withdrawals, 20% or over one-fifth took place immediately before the MAID procedure was performed.

Yes, this is a safeguard. Yes, this is an attempt to allow that ultimate autonomy at the time contemporaneously with the end of life. I know we talk about the Truchon decision. That's why we're here, but it isn't the only jurisprudence on these issues. In the Carter decision, the Supreme Court of Canada, which, I might point out, is a higher court than the Quebec Superior Court and one to which the government should have taken this matter, on three occasions stated that MAID should be performed only when a patient clearly consents to the termination of life. The inclusion of the word “clearly” indicates a need for positive confirmation without any doubt as to a person's wishes and “consents” means in the here and now. This is significant and must be heeded.

This is a wholesale change in approach with this legislation, and I think we need to tread a little more carefully than we are. In another Supreme Court of Canada case, R. v. Latimer, the Supreme Court emphasized that killing a person in order to end the suffering produced by a medically manageable physical or mental condition is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.

I've heard from many members on the committee that some of the decisions they are making here and some of the ways the legislation is put forward are to relieve suffering. I have no doubt that we all wish to do that for our fellow Canadians. We have different ideas on how to approach that, but if, in truth we wish to reduce suffering and we wish to stand up for the dignity of the person and the autonomy of each and every person who may find themselves in this very difficult situation, it seems to me at a minimum we can, near the end of administration of these procedures, double-check and make sure that they are consenting clearly and that they are consenting in the present tense.

This could not be more necessary than in a situation where advance consent has been given, because in some issues of advance consent you're just imagining where you might be at a certain point in time. You imagine how you will feel about that. You imagine the reaction you're going to have.

My own dad had his leg removed later in life, and he handled it with a great deal of stoicism. However, my husband's grandfather, when he was told he'd have to lose his leg, said he'd rather die, and he died rather than have his leg removed. Different people have different tolerances. They find themselves in difficult situations, and they make their choices.

Please consider this amendment. Let's make sure the people who are making these decisions in advance contemporaneously still agree with their own decision made earlier.

The Canadian Society of Palliative Care Physicians should not be taken lightly. These are people, unlike any of us here, who deal with very vulnerable people at very difficult times in life-ending situations. They should really be considered in what they see as necessary for their patients.

With that, my colleague is going to sub in for me, because I must go at this point in time.

[The Chair, Liberal, Iqra Khalid]

Thank you, Madam Findlay.

I have Mr. Cooper next on the speakers list.

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

Thank you very much, Madam Chair.

I speak in strong support of CPC amendment 8.

I think it's important for those who are watching these proceedings to read CPC amendment 8. It simply provides that “on the day specified in the written arrangement referred to in [the] subparagraph”—namely the advanced request—“the person is reminded by the medical practitioner or nurse practitioner that they entered into that arrangement and is provided with the opportunity to demonstrate refusal to have the substance administered or resistance to its administration”.

I would be surprised if there could be any opposition to this subamendment, that someone who has made a request in advance would somehow not be provided an opportunity to withdraw that request.

Ms. Findlay, in her submissions, noted that in the Carter decision, the Supreme Court of Canada stated not once, not twice but on three occasions that to qualify for medical assistance in dying they must clearly consent. The defining paragraph of the Carter decision reads as follows:

...for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

It says, “clearly consents”. What does “clearly consent” mean? It means that it must be affirmative. It must be positive.

I would submit that, constitutionally speaking, the provision for any form of advance consent is questionable. It falls well outside the scope of the Carter decision and this amendment simply provides for there to be at least some opportunity for the patient to demonstrate that they consent, to the degree that they have that ability.

This is all the more important, given that we speak about “reasonably foreseeable”. This should not be confused with “end of life”, at least as far as how reasonably foreseeable has been interpreted since Bill C-14 was passed.

It's true that in the province of Quebec reasonably foreseeable had tended to be interpreted in an end-of-life context, but that is not the case in other provinces. Part of the reason reasonably foreseeable had been interpreted in an end-of-life context in the province of Quebec was the language in Bill 52 passed by the National Assembly of Quebec prior to the passage of Bill C-14.

Given that reasonably foreseeable can and has been interpreted to sometimes mean that someone could have not weeks to live but months, and maybe even more than a year, illustrates the fact that now that we have legislation that provides that someone who could have months, or potentially a year or even longer than a year, in terms of at least how medical assistance in dying and how reasonably foreseeable has been interpreted in practice, it is absolutely essential that such a person at least be reminded that they made the request at a date they selected that, again, could have been a year away. I would make note of that fact.

I would also note that we heard a lot of evidence at this committee about how persons who request medical assistance in dying in some instances end up changing their minds. I would note in that regard that the federal government's own recently released first annual report on medical assistance in dying in Canada revealed that out of 7,336 written requests for MAID that were reported in 2019, 263 were withdrawn by the patient, predominantly because they changed their mind. Of these 263 requests, 20.2% took place immediately before the MAID procedure was to be performed.

Frankly, if that doesn't demonstrate the necessity of requiring that the patient be reminded of their request and have the full opportunity to withdraw their consent, then I don't know what does.

I would further add, just in terms of why this very limited and, I would submit, inadequate safeguard.... It is nonetheless an improvement on what this bill provides for, which is no safeguards, or completely inadequate safeguards, when it comes to this very problematic area of advance requests. I would cite the expert panel working group of the Council of Canadian Academies. I've cited before the 2018 expert panel working group of the Council of Canadian Academies, and I'll cite it here this evening. They had a report, a comprehensive report, identifying a number of concerns in allowing patients to make an advance request. The expert panel working group noted a lack of consensus. The expert panel working group noted that there was a lack of consensus, more particularly amongst experts, on “which situations, if any, are suitable for allowing (advance requests) for MAiD”.

One of the things that were noted by the expert panel is that there is simply a lack of data to fully understand the impacts of how this practice works.

In that regard, I should note that, although there are many on this committee who to talk about medical assistance in dying as if it is just a leading practice that is widely accepted everywhere, Canada is one of the few jurisdictions in the world that has any form of medical assistance in dying. Indeed, just 2% of the population in the western world lives in a jurisdiction with any type of medical assistance in dying. Of the very few jurisdictions that offer medical assistance in dying, just four jurisdictions provide for advance requests.

We really are heading into uncharted territory. Even in the Netherlands it is controversial and has not been truly settled.

When you think about the Supreme Court of Canada decision, the Carter decision, which is the Supreme Court decision that guides us, it sets out the parameters under which we, as parliamentarians, must legislate. The Supreme Court of Canada recognized expressly in the decision that vulnerable persons could be put at risk as a result of medical assistance in dying, which is why the Supreme Court went out of its way on those three occasions in its decision to say that a patient who requests medical assistance in dying “clearly consents”.

What's more, the Supreme Court determined that only with a carefully designed and monitored system of safeguards could there be assurance that those inherent risks would be sufficiently minimized. When the Supreme Court of Canada has all but said that advance requests fall outside the scope of what the Supreme Court envisioned in terms of laying out the parameters to which we, as a Parliament, responded by way of Bill C-14, surely simply putting it to someone, reminding them of their request, is the least we could be doing as we head down this very uncharted path, as we strip away safeguards that are, I believe, key, and that witnesses before our committee have said are key.

One of the things we heard was the tremendous amount of concern from the disabilities rights community, concern from all the way up to the UN special rapporteur.

We have a responsibility, a duty, to ensure that when we pass legislation in this area, we do absolutely everything necessary and appropriate to ensure that vulnerable persons are not unduly coerced, that there is true and meaningful consent, not only at the time the request is made but also at the time the request is carried out.

When we have a regime, however limited, for advance requests, that assurance of consent is simply not there. It's eviscerated. This would at least provide some level of protection, albeit very limited, to ensure that this patient clearly and truly is consenting to a procedure that is permanent and irreversible.

Looking specifically at the circumstances faced by vulnerable persons, the report of the Council of Canadian Academies noted that many Canadians face barriers to health care access. It wasn't just that panel. We heard that over and over again from the very limited time we had to hear from witnesses during the study of this radical piece of legislation that fundamentally changes the medical assistance in dying regime in Canada.

The report noted that, when it comes to barriers to access health care, particularly long-term care, when we speak of palliative care, persons who are marginalized and don't have community supports, family supports or social supports are disproportionately affected.

The expert panel working group of 2018 noted that:

People with a prognosis that includes future loss of capacity anticipate vulnerability due to factors over which they do not have direct control, including societal stigma, caregiver stress, and availability of adequate home and residential care. These factors could influence deliberations about MAID and ARs for MAID.

It's important to read that excerpt from the expert panel in some context to this bill. As the expert panel notes, marginalized persons are at greater risk than others. They are making such a request because they don't see an alternative. They don't have care supports, so they see it as simply either continuing to endure suffering or making a request to end their lives, which should concern all of us because that is not a meaningful and true choice.

When you take those concerns affecting vulnerable persons and you put it in context with the rest of this bill, in circumstances where death is reasonably foreseeable, you have a bill that takes away any sort of reflection period, and a bill that takes away the requirement that there be two witnesses.

You have a bill that takes away the safeguard that there be two independent witnesses and provides that a witness could be someone who is a medical professional who is attending to the care of that patient. That creates issues around implicit coercion.

I want to be very clear that I don't think there are very many medical professionals—if there are any, it would be a very small minority—who would ever want to coerce a patient. That's why I say implicit coercion or unintended coercion due to a power imbalance. Then we received here before this committee some very disturbing testimony where there was in fact real coercion. Mr. Foley came here and gave very compelling evidence about what happened to him.

Taking all of that into account, with the removal of safeguards that were otherwise there to protect marginalized persons particularly, and then you open the door to making an advance request, at the very least—

[Luc Thériault, Bloc, Montcalm, QC]

I have a point of order, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Go ahead, Mr. Thériault.

[Luc Thériault, Bloc, Montcalm, QC]

Can Mr. Cooper repeat his most recent comments? The sound quality was poor, and I did not understand what he said.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Thériault.

I actually do need to stop you now, Mr. Cooper, given that it's 10 o'clock. I've been advised that we don't have the resources to continue past 10 p.m. today.

Madam Clerk will be sending out a new notice of meeting tomorrow, amending the agenda to clause-by-clause so that we can continue what we haven't finished today.

The meeting stands adjourned.