Justice Committee on Nov. 5th, 2020

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

Thank you.

That leads to my next question. That lack of consensus, I think, is the reason this is in the bill.

[Jean-Pierre Ménard]

Mr. Maloney, I'd like to add something, if I may.

In her decision, Justice Baudouin clearly states that each case should be assessed individually to determine whether the person meets the requirements to receive MAID, regardless of their illness. That means preference should be given to individual assessments, rather than a blanket solution that covers as many people as possible.

Justice Baudouin recommended a perfectly acceptable solution. We must not create another situation whose consequences would send us backwards.

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

Thank you, sir. That leads to my next question. As it stands, mental illness is prohibited, but it's not prohibited if it's in conjunction with another illness.

In my view, that may potentially lead to a problem. If you have a medical illness that does put you in a situation of being eligible for MAID, but there's a mental illness component to it, you're still forced into that situation of having to assess the mental illness, which is the concern that gave rise to it being prohibited as the sole basis for requesting MAID.

I'm struggling with how you reconcile those two things, particularly in a scenario in which you require a second expert opinion. If the expert opinion is on the non-mental illness issue, do you then require a third opinion regarding the mental illness issue?

[Dr. Stefanie Green]

I'm hoping that question is for me.

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

It's for all of you.

[Dr. Stefanie Green]

Perfect. I'm going to take the first opportunity to answer it. Thank you for the question.

Madam Chair, I would like to point out what I'm sure is clear among most of our members, which is that mental health as a sole underlying condition is not explicitly prohibited under Bill C-14. In fact, there have been cases in this country of people with mental health illness as the only underlying condition going ahead, qualifying for and proceeding with MAID.

That's not commonly achievable with naturally foreseeable death and we don't see it very often. It is obviously much more common for us to have already seen patients with both mental health illnesses and physical illnesses applying for and being found eligible for MAID and proceeding.

Of course, there are many people.... In that situation, it's up to the assessors and the providers to do the best job possible to ensure that capacity is still present. Mental capacity is always presumed to be present, unless it isn't. It's not uncommon in that situation for physicians and clinicians—who assess capacity in our patients all the time, every day in our offices, for all medical treatments and surgical interventions—to be able to distinguish between the two.

[The Chair, Liberal, Iqra Khalid]

Thank you, Dr. Green.

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

Thank you.

[The Chair, Liberal, Iqra Khalid]

That brings you to exactly six minutes, Mr. Maloney.

Mr. Thériault, you have six minutes. Go ahead.

Mr. Thériault, I believe you're on mute, sir.

[Luc Thériault, Bloc, Montcalm, QC]

Sorry, Madam Chair. I was having issues with my sound.

Mr. Ménard, if I understand correctly, you believe that, much like Bill C-14, Bill C-7 could blatantly throw the door open to legal challenges because it represents an unreasonable infringement on charter rights. Do I have that right?

[Jean-Pierre Ménard]

Yes, because it creates classes of people on the basis of a vague criterion. The criterion for access to MAID is specific to each person. When assessing the individual's medical condition, the physician determines whether or not that person meets the requirements. Having the diagnosis of the condition is one factor, but not the main one or the most relevant. The question that has to be answered is whether the individual fully understands what they are committing to when they seek MAID.

Creating a second class of people whose natural death is not reasonably foreseeable suggests that these people are not like the others—that they are more vulnerable and require more protection—which is not true.

[Luc Thériault, Bloc, Montcalm, QC]

If a reasonably foreseeable natural death is not the right factor, what would you suggest?

It is no longer a criterion, in fact, but I feel as though it was brought back simply to distinguish this debate from previous ones.

[Jean-Pierre Ménard]

Basically, as soon as the person meets the requirements to access MAID, that should be enough and MAID should be provided. I don't understand the rationale for imposing additional requirements on people who otherwise meet all the criteria for access. That is a paternalistic approach with no basis in law. There is no reason not to provide MAID to anyone who meets the requirements.

[Luc Thériault, Bloc, Montcalm, QC]

We agree on the fact that Parliament must be able to establish the requirements for free and informed consent.

[Jean-Pierre Ménard]

Yes.

[Luc Thériault, Bloc, Montcalm, QC]

From that basis, we can agree that there are no issues when it comes to patients who are terminally ill. Quebec has five years of experience in the area. The introduction of medical aid in dying requests is part of a continuum of end-of-life care. Normally, it would fall under palliative care, but that's not quite the case. I have another question on the topic for Mr. Bureau.

When a patient is not terminally ill, they may or may not be at the end stage of the illness.

When a patient has a mental illness, how do you determine that they are capable of giving free and informed consent and that a symptom of their illness is not behind it?

[Jean-Pierre Ménard]

It is up to the physician to determine that. The physician carries out an assessment in every case.

Let me be clear. In the majority of cases where mental illness is the dominant factor, the health professional is likely to proceed much more cautiously and MAID will be slightly harder to access. Nevertheless, there is no reason to deny these people access to this care outright. While it may prove necessary to take more precautions, prohibiting access out of hand is unacceptable.

[Luc Thériault, Bloc, Montcalm, QC]

I'll now turn to Mr. Bureau.

Quebec did the right thing by not making the request for medical assistance in dying, known as euthanasia, and palliative care mutually exclusive.

Proponents of palliative care are worried that, in the process of opening up or allowing access to medical assistance in dying, fewer and fewer resources will be allocated to palliative care. There's a real issue with access to palliative care.

After five years, is your commission aware that some care units in hospitals don't admit into palliative care, meaning full support until death, patients who have applied for medical assistance in dying? Is this normal?

[Dr. Michel Bureau]

As you said earlier, medical assistance in dying is part of a process that usually begins with palliative care in institutions.

Admittedly, early on, private or semi-private institutions decided to refer patients who were seeking medical assistance in dying to other places. If you're talking about hospices, almost all of them refused to admit these patients, at first. Now, half of the 35 hospices provide medical assistance in dying. The trend is changing.

Granted, there was some opposition at first between palliative care and medical assistance in dying. After five years, that's all in the past. The Commission on End-of-Life Care is finding this to be the case.

[Luc Thériault, Bloc, Montcalm, QC]

We could have a discussion on this topic, because the situation still prevailed this winter. We'll talk about it again.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Thériault.

We have to move on now to Mr. Garrison for six minutes.

Mr. Garrison, please go ahead. The floor is yours.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Madam Chair.

I want to thank all of the witnesses for appearing today. I think a particular strength of this panel is its experience with what actually happens in the provision of medical assistance in dying. My concern is that too often we've had discussions that are theoretical and sometimes aren't grounded in reality.

I want to thank Dr. Green, who on behalf of the Association of MAiD Assessors and Providers shared time with me earlier to help me understand what actually happens.

Two things that have been raised today that cause me concern are the allegation that some people have been coerced into requesting medical assistance in dying, as well as the question that has been raised about some people having possibly transient desires to seek medical assistance in dying.

I'd like to ask Dr. Green to comment on actual experience with those two issues.

[Dr. Stefanie Green]

I think the issue of coercion has been raised many times by many people. There are a lot of different ways to answer that question, but ultimately what you're asking my colleagues and me is whether we know how to do our job.

I know that seems very personalized, but the truth is that physicians, clinicians, nurse practitioners and health care workers make decisions about capacity and levels of coercion every single day in our office, every single time we see a patient, every single time we offer them a medication or a surgical treatment or any treatment at all. We need to make sure the patient is aware of the information so that they understand their situation, their treatment options and the pros and cons of those treatment options. If they seek our guidance, we can do so, but ultimately the decision has to be the patient's, which is not always the same as how I might guide them or how the family might guide them. The patient's autonomy is essential.

We are very, very well skilled at making those determinations. Certainly with all of my colleagues, the standard of care is to meet with the patient at least once, if not more times, privately to ensure that there's no one coercing the patient in any subtle or external way. Coercion is something we're very much aware of, so thank you for that.

On the concept of “transient suicidality”, it's a term I'd never heard before this committee sat. I find it interesting. Certainly my experience—and it's very well versed, coming from British Columbia—is that the patients I see have spent many, many weeks, months and often years thinking about this issue. This is not a snap decision for anybody. The idea that they're having a transient thought that will allow them to proceed to MAID is I think insulting to the patient, to their process, to their decision-making ability, as well as to the ability of assessors and providers.

We certainly recognize what we call adjustment disorders. If somebody's had a ski accident and becomes paralyzed, nobody is going to offer them MAID within that week. That's absurd. We're very well aware of these issues.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you for that, Dr. Green.

Two things I think are important in this bill from the point of view of my constituents are the elimination of the 10-day reflection period and the waiver of final consent. Could you tell us a little a bit more? I know there will be stuff in your submission, but I think these are two reasons that this legislation is urgent. I'd like you to talk about your experience with those two.

[Dr. Stefanie Green]

I think the issue of the 10-day reflection period, as I alluded to, has proven itself to be more problematic than helpful. I come from a region of the country that has the has percentage of assisted dying in the province, in the country and in fact in the world. That dataset has clearly shown that a significant portion is expedited within 10 days, because patients are coming too late for care for a multitude of reasons, but what's most interesting to me as we look at all the provisions over the last four and a half years is that the single day that has the highest number of provisions is day 11. It's striking. From the data I sent you, clearly people have been waiting for the 10 days to be done. On the stroke of midnight, they're going ahead on the eleventh day. It shows that they've simply been waiting. This is not a 10-day period for these people. It's been weeks, months or years. They're just waiting for that reflection period to be over. I think that's striking.

Your second comment was about the amendment to allow people to proceed if their death is reasonably foreseeable and they've lost capacity. I think Audrey Parker made a sensation in the national media about why this was important. Certainly, my experience is that the public vastly supports this idea. The patients and the families I've dealt with feel very, very strongly that this is a horrible situation to find themselves in. I personally found myself in that situation. It was probably the hardest moment of my four and a half years.

Let's say a patient has gone through the rigorous process, the rigorous procedures, the rigorous safeguards and done everything right. They finally found a care provider, finally filled out the forms and finally were found eligible. Then I turn up, at a specified day and hour, and find them unable to give consent. It's just horrible for the family, who then feels they've let their loved one down. We cannot proceed, of course.

Therefore, I think this amendment is timely and needed, and will be extremely welcomed by many.