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—