Justice Committee on Nov. 5th, 2020

[The Chair, Liberal, Iqra Khalid]

I call this meeting order.

Welcome to the fifth meeting of the House of Commons Standing Committee on Justice and Human Rights as we continue to study Bill C-7.

Today's meeting is taking place in a hybrid format. I understand that there are a number of members who are in the committee room at this time.

The proceedings will be made available via the House of Commons website. Just so you are aware, the webcast will only show the person who is speaking, instead of the entirety of the committee room.

To ensure an orderly meeting, I would like to outline a few rules.

Members and witnesses, you may speak in the official language of your choice. Interpretation services are available for this meeting. You have the choice at the bottom of your screen. You can select either the floor language, or English or French for your translation or interpretation.

For members participating in person, proceed as you usually would when the whole committee is meeting in person in the committee room. Keep masking and health protocol rules as a priority as you attend in person.

Before speaking, witnesses and members, please wait until I recognize you by name. For those participating virtually, please click on the microphone icon to unmute yourself. For those in the room, the microphone will be controlled as normal by the proceedings and verification officer.

As a reminder, all comments by members and witnesses should be addressed through the chair.

When speaking, please speak slowly and clearly. When you are not speaking, your mike should be on mute.

With respect to keeping the dialogue respectful and engaging, it's okay to disagree, but it's not okay to be disrespectful to one another.

With regard to the speaking list, the committee clerk and I will do the best that we can to maintain a consolidated order of speaking for all the members, whether they're participating virtually or in person.

I'd now like to welcome our witnesses, which are four organizations that are represented by various esteemed guests.

We have the Canadian Association of MAiD Assessors and Providers, represented by Dr. Stefanie Green, president.

We have the Canadian Medical Association, represented by Dr. Ann Collins, president, and Dr. Cécile Bensimon, director of ethics and professional affairs.

We also have with us the Commission on End-of-Life Care, represented by Dr. Michel Bureau, Dr. David Lussier, Pierre Deschamps and Stéphanie Goulet.

We also have Ménard, Martin Avocats, represented by Jean-Pierre Ménard himself.

Each of these four organizations will have five minutes to make its opening statement, followed by rounds of questions.

I'll invite the Canadian Association of MAiD Assessors and Providers to please begin. You have five minutes.

[Dr. Stefanie Green, President, Canadian Association of MAiD Assessors and Providers]

Thank you for the opportunity to be here today.

My name is Stefanie Green. I'm a physician with 25 years of clinical experience. In June 2016, I began working almost exclusively in medical assistance in dying. I'm currently an assessor of eligibility as well as a provider of MAID in B.C.

While I wear a number of MAID-related titles, I am primarily here today in my capacity as the president of the Canadian Association of MAiD Assessors and Providers, a national medical association that represents and supports the variety of professionals who have arguably grown into the foremost experts on assisted dying in this country.

I wish to impress upon this committee that as an organization, we do not work to advocate assisted dying. We are in fact the community of professionals who do the work to the highest of medical standards and always within the law of the country, whatever that law may be. We have the collective lived experience of how the practice of assisted dying has unfolded across this country, where the obstacles and successes have been found and how the system might be improved to the benefit of all involved. It is in this context that I now address you and hope to answer your questions.

In the limited time I have, I want to be sure to first emphasize what I think Bill C-7 has gotten right, and then speak to what I think needs clarification and suggest two simple but important practical changes.

I first want to support the proposed removal of the 10-day reflection period for those whose death is reasonably foreseeable. In four and a half years, there has been no evidence that this reflection period has safeguarded anyone from anything, but there is evidence to suggest that it has mandated substantial suffering, which I do not believe was the intention of the law. In my written brief, I have provided some of this convincing data, and in my comments now I simply bid good riddance to what has proven to be an essentially false safeguard.

Second, I want to strongly support the proposed amendment to allow the waiving of final consent in the specific situation outlined in Bill C-7. A 2019 survey of MAID providers suggested that 85% of providers have personally experienced the situation of walking into a room to facilitate an assisted death only to find the patient no longer able to provide final consent due to an unexpected loss of capacity. I can tell you from first-hand experience how horrible that situation is. Loved ones standardly beg for the clinician to proceed. It is an agonizing situation for all, and I am unable to appreciate who exactly is being protected in such a situation by not proceeding with the previously planned MAID death. I am absolutely clear on who is harmed. The proposed amendment is essential, overdue and will be welcomed by patients, their families and the professionals involved in this work.

I do find the proposed requirement of setting a specific date somewhat problematic from a practical point of view. In my written brief, I have suggested that a 90-day time frame be used instead of a specific date being set, and I have suggested some very simple altered wording for your consideration.

Third, I applaud the government for specifically using the term “expert” when seeking expertise in complex illnesses and patients whose deaths are not reasonably foreseeable. This is a recognition that one does not need to be a particular medical subspecialist to have expertise in illness. Very often, family physicians and nurse practitioners are, by the nature of their practices, experts in a wide array of illnesses. This is especially true of practitioners in rural communities. In fact, many types of health professionals can and do develop expertise in specific illnesses, and it is wise to recognize this wide range of possible expertise.

That said, there are two remaining issues that must be highlighted.

First, I need to point to what I believe is a small but tremendously important error in Bill C-7, one that suggests a misunderstanding of health care realities and carries significant ramification. I believe this error can be easily and consensually remedied.

The current wording of proposed section 3.1 suggests that a clinician with “expertise” in the illness must be one of the assessors of eligibility for MAID in patients whose death is not reasonably foreseeable. Requiring the input of an expert on the illness in such a situation is not an unreasonable requirement, but mandating that the expert complete an assessment of eligibility for MAID itself is wholly unrealistic. As consultants consistently write in their reports to me, they will comment on their area of expertise but respectfully decline to opine on a patient’s overall eligibility for MAID, as that is neither their area of expertise nor their interest.

In my written submission, I have suggested simple wording that maintains the requirement for expert input but allows—in fact, requires—that two experienced MAID assessors do the work of assessing the patient's eligibility for MAID. To do otherwise, as is currently written, would essentially obstruct access to MAID for those whose death is not reasonably foreseeable.

Finally, the term “reasonably foreseeable” has historically created confusion. Now that a consistent, clinical consensus has developed and we have a court-backed working interpretation, it would be helpful if the government were to reinforce that the determination of what constitutes a reasonably foreseeable death is indeed a clinical decision and that its meaning has not changed with the implementation of Bill C-7.

I'm happy to answer any questions on these or other issues, and I thank you for your serious consideration of my comments.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Dr. Green, and also for keeping your remarks within five minutes. I really appreciate it. I think it's a great sign.

Next, we have the Canadian Medical Association, with Dr. Ann Collins and Dr. Cécile Bensimon.

Your time starts now. Please go ahead.

[Dr. Ann Collins, President, Canadian Medical Association]

Thank you, Madam Chair. It's my honour to appear before you today.

I am Dr. Ann Collins. Over the past three decades in practising medicine, I have taught family medicine, run a family practice, served with the Canadian Armed Forces and worked in nursing home care. Today, in my capacity as president of the Canadian Medical Association, I represent our 80,000 physician members.

In studying Bill C-7, it is incumbent upon us now to consider the effects on patients that the passing of this bill will have, as well as the effects on the medical professionals who provide medical assistance in dying, MAID.

When the original MAID legislation was developed as Bill C-14, the CMA was a leading stakeholder. We have continued that commitment with Bill C-7. Having examined Bill C-7, we know that in a myriad of ways, the results of our extensive consultations with our members align with the findings of the government's round tables.

Fundamentally, the CMA supports the government's prudent and measured approach to responding to the Truchon-Gladu decision. This thoughtful and staged process undertaken by the government is consistent with the CMA's position for a balanced approach to MAID.

Nicole Gladu, whose name is now inextricably tied to the decision, spoke as pointedly as perhaps anyone could when she affirmed that it is up to people like her “to decide if we prefer the quality of life to the quantity of life”. Not everyone may agree with this sentiment, but few can argue that it is a powerful reminder of the real stakeholders when it comes to considerations of this bill. This applies just as critically to those who are currently MAID providers and those who will become providers. They are our members, but we can't lose sight of the fact that we must all support both patients and providers.

Through our consultations, we learned that many physicians felt that clarity was lacking. Recent federal efforts to provide greater clarity for physicians are exceedingly welcome. The CMA is pleased to see new, non-legislative measures lending more consistency to the delivering of MAID across the country. The quality and availability of care, including palliative care, mental health care, care for those suffering from chronic illness and care for persons with disabilities to ensure that patients have access to other appropriate health care services is crucial.

The CMA holds firm on our convictions on MAID from Bill C-14 to Bill C-7. We believe, first, that the choice of those Canadians who are eligible should be respected. Second, we must protect the rights of vulnerable Canadians. This demands strict attention to safeguards. Finally, an environment must exist that insists that practitioners abide by their moral commitments.

These three tenets remain equally valid. Our consultations with members demonstrate strong support for allowing advance requests by eligible patients who may lose capacity before MAID can be provided. The CMA believes in the importance of safeguards to protect the rights of vulnerable Canadians and those who are eligible to seek MAID. The CMA also supports expanding data collection to provide a more thorough account of MAID in Canada; however, this effort must not create an undue administrative burden on physicians.

The CMA views as problematic the language in the bill that explicitly excludes mental illness from being considered an illness, disease or disability, and it has the potential to be stigmatizing to those living with a mental illness. We trust that Parliament will carefully consider the specific language used in the bill.

Finally, the CMA endorses the government's staged approach to carefully examine more complex issues. However, we must move forward to ensure practitioners are given the tools that will be required to safely administer MAID on a wider spectrum, such as support for developing clinical practice guidelines that aid physicians in exercising sound clinical judgment. Such guidance would also serve to reinforce consistency in the application of the legal criteria.

In conclusion, Madam Chair, allow me to thank the committee for the invitation to participate in today's proceedings and to share the perspective of Canada's physicians. The pursuit of a painless and dignified end of life is a noble one. The assurance that the providers of this privilege are supported is an ethical imperative.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Dr. Collins.

We'll next move to the Commission on End-of-Life Care. Please go ahead.

[Dr. Michel Bureau, Chair, Commission on End-of-Life Care]

Madam Chair, committee members, as chair of Quebec's commission on end-of-life care, I would like to thank you for this invitation. Joining me are two of the commission's members, Pierre Deschamps and Dr. David Lussier, as well as the general secretary, Stéphanie Goulet.

Since December 10, 2015, the commission has reviewed the declarations in nearly 6,000 medical assistance in dying, or MAID, cases, drawing a number of lessons. The commission will comment on the data as they relate to five features of Bill C-7, but will not speak to MAID in relation to mental illness or individuals who do not have the capacity to consent, given the commission's lack of relevant data.

We will speak to five points.

First, the commission supports the removal of the requirement for a reasonably foreseeable natural death. If passed, Bill C-7 will make MAID available to many people who are suffering with serious and incurable illnesses, diseases or disabilities and who would have to continue suffering for years, if not decades. The commission does not believe the requirement's removal will lead to a significant spike in the number of MAID requests or the emergence of a death on demand culture.

Second, the commission approves of the elimination of the 10-day waiting period before MAID can be administered. The data and accounts collected by the commission show that the 10 days between the request and follow-through is a time of great suffering for the individuals concerned and their loved ones. In Quebec, more than half of people—53%—receive MAID less than 10 days after requesting it, not only because they fear becoming incapable of providing consent, but—

[The Chair, Liberal, Iqra Khalid]

Sorry, Monsieur Bureau; I can hear that the interpreters are rushing quite quickly to try to catch up to you. If you could slow down just a little bit so that everybody can understand the content of what you're saying, I'd appreciate it.

Thank you. Please continue.

[Dr. Michel Bureau]

Thank you for your comment.

The fact is that half of people receive MAID within less than 10 days because they are in great pain or fear losing the capacity to consent.

Third, the commission supports the waiver of final consent. Nearly a quarter of the forms submitted to the commission, so 26%, show that the patient refused pain medication because they feared losing the capacity to consent. As a result, they experienced unnecessary suffering.

Fourth, the commission supports the establishment of two separate assessment safeguards for the administration of MAID, depending on whether the person's natural death is reasonably foreseeable or not. The commission believes that the current assessment and safeguard measures are appropriate when a request is made by a person whose natural death is reasonably foreseeable. The commission supports the provision in Bill C-7 to establish a more extensive assessment and safeguard process specifically for people who request MAID when their natural death is not reasonably foreseeable.

Fifth, the commission recommends a safeguard mechanism in the form of an assessment and review committee, in other words, an oversight committee, for all cases in which MAID is administered. The Quebec National Assembly chose to establish a similar mechanism, entrusting the responsibility to the commission. It followed in the footsteps of Belgium and the Netherlands.

Having spent the past five years reviewing 6,000 MAID cases involving individuals whose natural death was foreseeable, we have come to three conclusions. We would like to share them in the hope that they may inform any decision to expand MAID eligibility to individuals whose natural death is not reasonably foreseeable.

First, MAID providers must report the administration of MAID beforehand, they must describe the complete clinical presentation that supports MAID, and they must be aware that the clinical presentation will be subject to expert review.

Second, the post-hoc analysis of every case in which MAID is administered provides an opportunity to give physicians and institutions regular and immediate feedback when explanations or supporting information is needed. In addition to reassuring the public, this step helps to prevent potential abuse.

Third, the real-time assessment of cases in which MAID is administered helps to detect borderline cases and allows for a swift response, where necessary.

Ladies and gentlemen, thank you for listening.

We will be providing a short brief outlining our position.

[The Chair, Liberal, Iqra Khalid]

Thank you, Dr. Bureau, for your statement and your commitment to the community.

We will now go on to Mr. Jean-Pierre Ménard for five minutes, please.

[Jean-Pierre Ménard, Lawyer, Ménard, Martin, Avocats]

Good morning. It's a pleasure to appear before the committee today.

I had the singular opportunity to represent Mr. Truchon and Ms. Gladu in their challenge of the federal legislation. Mr. Truchon, who left us in April, would be especially pleased to see the outcome.

I will not go over every aspect of the amended provisions. I will simply speak to a few broader elements.

To begin with, I fully support all the provisions that make MAID more accessible to those who need it. Specifically, I'm thinking of the removal of both the requirement for a reasonably foreseeable natural death and the 10-day waiting period, and the simplification of the overall process, including the waiver of final consent.

Two aspects of the bill are nevertheless very concerning.

With respect to the notion of a reasonably foreseeable natural death, the Superior Court of Québec struck it down as a criterion to access MAID, but went even further. The criterion was hard to apply and had little meaning for physicians. The government is, on one hand, removing the criterion, but on the other, reintroducing it by creating a second process for those whose natural death is not reasonably foreseeable.

This opens the door to the creation of two classes of people: those in the second class will be treated differently than those in the first, whose natural death is reasonably foreseeable. Those in the second class will be subject to a series of additional measures, including a 90-day waiting period. I have no idea why the government established such a time frame. It is totally unnecessary.

In her decision, Justice Baudouin made it clear that assessments should be carried out on a case-by-case basis and that it is the physician's responsibility to assess the request on its merits. She stated that people whose natural death is not reasonably foreseeable should not be placed in a separate category, as though they are vulnerable and matter less than the others. This is an override provision. I discuss that at length in my brief.

I would point out that the corresponding 90-day waiting period is totally unnecessary. People who want to receive MAID and who meet the requirements should have access to it immediately, without submitting to procedures other than those set out in the legislation, plain and simple.

What is more, under the bill, mental illness would not be considered an illness. This is the wrong way to go. Again, Justice Baudouin was very clear in her decision, recommending case-by-case assessments based on the person's capacity, not a sweeping judgment that puts everyone in the same category—which would open the door to all kinds of discrimination. This would unnecessarily stigmatize mental illness. It would also lead to other forms of abuse. It seems to me that the provision would very likely be the basis of a court challenge.

It requires careful examination. What happens in cases where a person's natural death is not deemed to be reasonably foreseeable and where a person has a mental illness? As I understand it, the bill will create subclasses of people, something that will not easily stand up to a constitutional challenge.

Still, the bill is an improvement worth protecting, so this snarl should be avoided.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Ménard.

We're now going to go into our first round of questions. We will start with Mr. Moore for six minutes.

Please go ahead. The floor is yours.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Thank you to all our witnesses for being here today.

There are a multitude of opinions on this issue, but there are people of goodwill on all sides who want the best for Canadians.

Dr. Collins, it's good to see you again. I want to direct my first question to the Canadian Medical Association.

I feel the true measure of a society is how we care for the most vulnerable. As we have undertaken this study, I know I have been contacted, as have all members of this committee, about concerns for people who are at a low point in their lives, people who have just heard about a major illness and people who are the most vulnerable in our society.

One of the concerns that has been raised is that even though Bill C-14 was passed just a short time ago and we still haven't had our parliamentary review of Bill C-14, the government did not appeal the Quebec Superior Court decision last year. This bill, this response, pulls out a number of the safeguards that Parliament in its wisdom put in place a few short years ago.

You mentioned in the brief you circulated to us the importance of ensuring vulnerable Canadians are adequately protected. We know of cases that have been publicized of people who clearly have been coerced to consider MAID, who didn't raise MAID but were approached to consider it. I find that concerning.

Could you give some thoughts from the Canadian Medical Association's perspective on how we can ensure vulnerable Canadians are adequately protected?

[Dr. Ann Collins]

The Canadian Medical Association feels it is important for all of us and for parliamentarians to consider the concerns and to respect the needs of vulnerable populations. We feel that safeguards should ensure that there's no undue influence on any patient, either those seeking MAID or those not.

We have a responsibility, we believe, as physicians and as society, to make sure that all vulnerable Canadians have access to proper care and the support they need. That includes support for good mental health care, for the care that people with disabilities require and for people who live with chronic conditions.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

The Canadian Medical Association has said it's important that there be an environment where physicians can adhere to their moral commitments and that it must be maintained. Recently the committee circulated a letter with almost 800 signatures from physicians who are concerned about their conscience rights in providing MAID under Bill C-7 to someone who is not dying, whose death is not reasonably foreseeable.

Can you provide thoughts from the Canadian Medical Association's perspective on the importance of protecting conscience rights for medical professionals—doctors, nurses, etc.?

[Dr. Ann Collins]

Fundamentally, the CMA supports maintaining the balance between three equally legitimate considerations: respecting decisional autonomy for those eligible Canadians who are seeking access, protecting vulnerable persons through careful attention to safeguards and creating an environment in which practitioners are able to adhere to their moral commitments.

The CMA equally supports conscientious objection and conscientious participation. Although in surveys we have not seen consensus among our physician members, this is one area in which there is a continued high level of support for CMA's position.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

I think protecting vulnerable people and protecting the conscience rights of physicians are things that, around this table, we should all agree on. I know that I have only a couple of seconds, but Bill C-14 required a parliamentary view. What role would you like the Canadian Medical Association to take in the process of that review, which was supposed to have already taken place?

[The Chair, Liberal, Iqra Khalid]

Go ahead very briefly, Dr. Collins.

[Dr. Ann Collins]

Thank you, Madam Chair.

I will just say briefly that the Canadian Medical Association looks forward to working together and providing what input and support we can for a parliamentary review on these very complex issues.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Moore.

We're now going to go to Mr. Maloney for six minutes.

Go ahead, sir. Your time starts now.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

Let me add my thanks to all the witnesses for coming to help us discuss a very complicated but very important piece of legislation.

Dr. Collins, I hate to pick on you again, but you said in your opening remarks that the CMA finds “problematic” the language in the bill that explicitly excludes mental illness from being considered and that it has the potential of stigmatizing those living with a mental illness.

No one here will disagree that stigmatizing those with mental illness is a significant concern, but in this context of MAID, there are some dire consequences. Are you saying that you agree or disagree with the prohibition of mental illness as a sole ground for requesting MAID?

[Dr. Ann Collins]

Our comment is around the language that is used in the bill. It is a problem in that it does potentially stigmatize those living with mental illness. We recognize that this is another complex issue that will continue to be dealt with as we move through these legislative processes. It is a complex issue that the Canadian Medical Association looks forward to working on with you in seeking clarity with regard to eligibility.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Okay. We all agree it's a complex issue, but that means it requires an answer, which hopefully isn't complex.

Are you suggesting there should be some cases in which mental illness shouldn't be a barrier to MAID, or...? I'm just not clear on what you're saying.

[Dr. Ann Collins]

This is one of the areas in which there is no consensus when we survey our physician members. It is an area that I believe reflects what is heard at other tables. It is an area that requires further clarity and further review.