Justice Committee on Nov. 12th, 2020

[The Chair, Liberal, Iqra Khalid]

Thank you, Dr. Naud, and thank you, Monsieur Thériault.

Mr. Garrison, please go ahead for two and a half minutes.

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

Thank you very much, Madam Chair.

I'd like to pose the same question on conscience referrals to Dr. Gibson, and hear what she has to say on that topic.

[Dr. Jennifer Gibson]

I think it's well recognized that individuals entering into a profession are acting from conscience, whether it is to provide and assess, or not to participate at all in medical assistance in dying. It's important for us to continue to protect the conscience of professionals in general.

At the same time, there are duties of professionals to society as well. Many of the systems that have been established across provinces and territories to be able to link patients to willing providers have been ways to find that balance between protecting the conscience of a professional and protecting the rights of individual patients. In Ontario there is a duty to refer, I know that for some health professionals that is seen as something that is not concordant with their conscience, which is why there are systems now in place for patients to be able to link to a willing provider without putting health professionals in a compromised position.

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

Thank you very much.

Just very briefly, on the question of requiring special expertise in the second track to make assessments of eligibility for medical assistance in dying, can you comment on what impact a strict requirement like that would have in rural and remote areas of Canada.

[Dr. Jennifer Gibson]

One of the things we have now—and it's partly one of the gifts of COVID—is a much better integrated network of providers, facilitated partly by virtual types of support.

One of the things we've also heard from clinicians is that often they're dealing with complex patients, and in fact many of the providers themselves are very well versed in being able to understand and appreciate the clinical consequences of that particular patient in front of them. While drawing on expertise—and this is a regular part of clinical practice where there's uncertainty—colleagues will reach out to other colleagues to get insight and advice. I think we see that as a key feature, an essential feature, in clinical practice already. In fact, instituting this as a legislative matter may actually reach beyond what is sufficient to provide relevant input and expertise in the care of a particular patient, just as a result of regular clinical practice.

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

Thank you very much.

[The Chair, Liberal, Iqra Khalid]

Thank you very much. At this time I will thank all of the witnesses for their testimony today and their contributions.

If there are any further clarifications that you need to provide, please write to the clerk of the committee with any additional information based on the questions today.

At this time I will suspend the meeting for 30 seconds to allow for our next panel of witnesses to come in. Thank you, everybody.

[The Chair, Liberal, Iqra Khalid]

Welcome back.

I would like to welcome our second panel of witnesses. We have the Canadian Nurses Association, represented by Michael Villeneuve; the Canadian Society of Palliative Care Physicians, represented by Dr. Anne Boyle and Dr. Harvey Max Chochinov; the DisAbled Women's Network of Canada, represented by Bonnie Brayton; and lastly, the Physicians’ Alliance against Euthanasia, represented by Dr. Catherine Ferrier.

Each organization will have five minutes. We'll start with the Canadian Nurses Association.

Go ahead, Mr. Villeneuve, you have five minutes, sir.

[Michael Villeneuve, Chief Executive Officer , Canadian Nurses Association]

Thank you, Madam Chair and members of the committee. Good afternoon.

I would like to acknowledge the Algonquin Anishinabe peoples, from whose traditional lands I am speaking to you today.

Thank you, Madam Chair and members of the committee, for responding to CNA's request and extending an invitation for us to speak about Bill C-7. We are honoured and grateful for the opportunity to appear before the committee in the Year of the Nurse and the Midwife 2020. I do not need to tell any of you that it has not been quite the year of celebration that we had planned.

I have worked in health systems for more than 40 years, and 37 of those as a registered nurse. I have had the honour of serving as the CEO of the Canadian Nurses Association since 2017.

CNA is the national and global professional voice of Canadian nursing. We represent nurses living across all 13 provinces and territories and in hundreds of indigenous communities.

Canada’s 440,000 nurses touch the lives of patients at every point of care constantly, and no provider has as much face time with the public, where these really complex, human moral issues arise. The transformative legislative and moral decisions being proposed carry huge impacts for nurses who are responsible to live with them and enact them in their practices every day.

Nurses are an integral part of the delivery of medical assistance in dying and it is vital that the committee hears their voices. We have acquired significant knowledge, perspectives and experience from nearly five years of MAID in practice and have valuable knowledge to inform the impending changes to the legislation.

CNA has been actively involved in work related to MAID for several years and was the key stakeholder when Bill C-14 was passed in 2016, as well as during the consultations in early 2020. CNA advocates for safeguards to protect the rights of patients and nurses, as well as for system-level changes, including better access to palliative care and accountability mechanisms. I will turn briefly to Bill C-7 now.

Overall, CNA believes that the federal government has listened to our initial feedback during the consultation phase earlier this year. We are pleased to see that some of our recommendations were included, such as the removal of the 10-day reflection period, removal of final consent for those who lose capacity and the amending of the legislation to allow for one independent witness.

Regarding the new stream for cases where natural death is not foreseeable, we heard from experts that the proposed safeguards are adequate and sufficient. We emphasize that legal expertise for updating MAID guideline documentation will be critical to ensure that all new items in the legislation are acknowledged and fully understood by patients and practitioners.

In general, while we're supportive of Bill C-7, we believe that further improvements and additional clarification in four areas would strengthen the legislation and provide better care for patients and legal protection for nurses.

First, CNA strongly recommends that Bill C-7 includes an additional five-year review period of MAID by a committee of Parliament.

Second, we recommend removing the wording that stipulates that the practitioner providing MAID does not know or believe they are connected to the other practitioner who assesses the MAID criteria.

Third, we recommend clarifying that practitioners can initiate a discussion on the lawful provision of MAID.

Fourth, we recommend clarifying the proposed “preliminary assessment” clause, which we find confusing and that is causing some concerns among nurses.

Furthermore, we strongly recommend that parliamentarians conduct as soon as possible the broader review of MAID to address important issues beyond Bill C-7.

In concluding, CNA would like to state its gratitude to the Canadian Nurses Protective Society, who has been an important partner in our MAID-related work. We submitted a written brief with more information, and I am glad to try to answer any questions.

Thank you again, Madam Chair, for the opportunity to speak to this committee today.

[The Chair, Liberal, Iqra Khalid]

Thank you very much. That was much appreciated.

We'll now move to the Canadian Society of Palliative Care Physicians, with Dr. Anne Boyle and Dr. Harvey Max Chochinov.

You have five minutes between you.

[Dr. Anne Boyle, President, Canadian Society of Palliative Care Physicians]

Thank you, Madam Chair and committee members, for this opportunity. I am the current president of the Canadian Society of Palliative Care Physicians. I worked as a northern nurse and have over 32 years' experience as a physician. Since 2004, after a year of additional palliative care training, I have worked as an academic palliative care physician, seeing patients wherever they call home.

Addressing suffering is both imperative and challenging. Our hope is to ensure that necessary services are in place to address suffering and that safeguards are in place to minimize harm. Among Canadians, 98% will not choose a hastened death, and 100% of Canadians need palliative care enshrined in the Canada Health Act as an essential service so that all patients may receive impeccable care in the location of their choice and be able to live well until they die. All Canadians deserve access to high-quality, comprehensive palliative care.

Dr. Chochinov will now speak.

[Dr. Harvey Chochinov, Distinguished Professor of Psychiatry, University of Manitoba, Canadian Society of Palliative Care Physicians]

Thank you, Madam Chair.

I believe that the data I will be sharing will be important for the committee to consider. The following comes from my written submitted brief.

By way of background, I am a distinguished professor of psychiatry at the University of Manitoba. I am former chair of the external panel on options for a legislative response to Carter v. Canada. I am also a long-time palliative care researcher who has published extensively on psychological matters pertaining to palliative care.

Bill C-7 proposes the elimination of any waiting period between the time a dying patient is approved for MAID and the administration of MAID. Our research group reported that the will to live can be highly fluctuant over intervals as short as 12 to 24 hours. In fact, 40% of patients who were prescribed lethal drugs in Oregon decided not to take a lethal overdose.

Bill C-7 also proposes to eliminate the requirement that a patient have a reasonably foreseeable death. For patients whose life expectancy can be measured in years or even decades, Bill C-7 recommends a 90-day assessment period. The suicide rate in many chronic conditions is very high. A study of 496 patients with traumatic brain injury, stroke or spinal cord compression reported that most of those who were initially suicidal no longer were three to 24 months later.

Bill C-7 also indicates that it will no longer be a requirement to reaffirm competency at the time of administration of MAID. The Netherlands allows for a euthanasia advance directive for those who fear losing capacity. A survey of 410 Dutch physicians reported that only 3% had ever complied with the advance euthanasia directive. Compliance with an advance directive was almost always raised by someone other than the patient. In 72% of instances, the relatives or representatives did not feel comfortable proceeding with euthanasia, but instead settled on forgoing life-prolonging treatment, as did their physicians.

Finally, while Bill C-7 indicates that mental illness alone is not enough to qualify for MAID, mental illness is often accompanied by medical conditions. Together, this may open up the door to MAID for these patients. A landmark Dutch study of patients with psychiatric disorders who had received euthanasia or assisted suicide in the Netherlands showed that nearly 60% also had medical problems, such as cancer, cardiac disease, stroke or neurological disorders. They suffered from depression, psychosis, grief and even autism, conditions that require exquisite and concerted psychiatric care.

In conclusion, the data suggests caution regarding the following legislative amendments. One, the data indicates that the wish to die and the desire for death in the context of terminal illness can fluctuate widely over time. Hence, some period for reflection would seem prudent. Two, the wish to die amongst patients suffering from non-imminently life-threatening conditions, including chronic illness and disability, is not uncommon and can fluctuate over the course of months to years. When the determinants of a wish to die in patients living with these chronic conditions or disabilities are addressed, suicidality can wane. Three, the data strongly indicates that neither physicians nor relatives feel comfortable providing MAID to patients who are unable to state their wishes or convey that they are suffering intolerably. Four, eliminating the provision of a reasonably foreseeable death opens the door for patients with various chronic medical conditions and disabilities, including those with concurrent mental illness.

All of these facts are critical in understanding and mitigating the suffering of those who have lost their will to live.

Thank you for your kind attention.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Dr. Chochinov.

We'll now move on to the DisAbled Women's Network of Canada.

Ms. Bonnie Brayton, please go ahead. You have five minutes.

[Bonnie Brayton, National Executive Director, DisAbled Women's Network of Canada]

Thank you, Madam Chair and members of the committee. Greetings to other panel members.

Thank you for inviting me to appear today. I am speaking from the unceded territory of the Kanyen'kehà:ka people. I remind us that truth and reconciliation is not about words; it is about how we conduct ourselves in the face of truth.

We remind the committee that, according to Statistics Canada, 24% of women in Canada live with a disability. DAWN Canada is in its 35th year of service, yet we do not celebrate.

We oppose the removal of the imminent death clause. This is a fatal error, one that you as lawmakers will have to live with. Evidence is absent now as you move this forward, but you will be judged on the evidence and unnecessary deaths you could have prevented if you do not take a pause today. You are all of relative privilege, as am I.

In preparing for today, we have referenced several documents that I leave with the clerk to share and go forward. We will also forward, with her permission, the story of a strong, brave woman named Ruth, a fierce advocate, whose situation is the reason you must pause. In a different Canada, Ruth would receive the support she needs to have a life that has meaning, including dignified housing that keeps her safe and alive. She is intelligent, articulate and would be a good mentor and counsellor to anyone who lives with environmental sensitivities. She knows the ropes, but instead, in her own words:

My doctors are well aware of my thoughts about MAiD, and have been trying to find me a new home, so that I WOULDN’T resort to using this process. But again, there is no SAFE (smoke-/scent-free), affordable housing for people with ES/MCS who are on ODSP. While I don’t really want to go through with MAiD (I had to euthanize my cat on October 4, 2019, just before I was sealed into my enclosure, and it was a TRAUMATIC experience, since she had a bad reaction to the meds), I cannot continue to live in these conditions forever.

You see, Ruth, like so many other people with disabilities, has lost hope. She is not dying, but she meets the new criteria for MAID.

We have also shared our submission to FEWO on the implications for women with disabilities in the context of MAID, which of course will interlock with the discussions today.

I also share the following from the Ethical Principles for Judges handbook, edited by Beverley McLachlin in 2014, chapter five, “Equality”. Under “Principles”, it says:

The Constitution and a variety of statutes enshrine a strong commitment to equality before and under the law and equal protection and benefit of the law without discrimination. This is not a commitment to identical treatment but rather “...to the equal worth and human dignity of all persons” and “...a desire to rectify and prevent discrimination against particular groups suffering social, political and legal disadvantage in our society.”

One of our most learned judges makes a deliberate decision in this chapter to cite Eldridge v. British Columbia, an intervened case at the Supreme Court that centred on systemic ableism in the medical system involving a deaf woman who sought her right to health care and to motherhood itself, from 1997.

In 2012, and again in 2020, DAWN has intervened in Supreme Court decisions that affirm women with disabilities and their equality rights, while reminding all of us that women with disabilities must be believed.

The most recent decision, Slatter, on November 6, reads:

Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.

Today, what is your message to Ruth, a desperate and courageous self-advocate during the worst health pandemic in a century? Is this our best answer? “No, Ruth, we cannot help you. It is just too hard for us to do that, but we can offer you MAID.” Really?

You have a moral, legal and sworn responsibility to our Constitution as legislators. It is clear from the highest court in the land that you must, above all else, make laws that respect these tenets, and do no harm. You must do so based on balanced evidence and information about those who will be affected by them.

Thus far, you have failed in your duty with Bill C-7. You have no evidence to support your hurry to pass this bill. You answer to us, all of us. You gave us the Accessible Canada Act after a rigorous, inclusive human rights consultation with people with disabilities. Why not now?

This is Indigenous Disability Awareness Month. As I sit before you, I know we have not had full consultation from a human rights place with indigenous people with disabilities, with women with disabilities, and with the majority of those people who need to be heard in this case.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. Brayton.

We'll now move on to the Physicians’ Alliance against Euthanasia.

Dr. Catherine Ferrier, the floor is yours for five minutes. Please go ahead.

[Dr. Catherine Ferrier, President, Physicians’ Alliance against Euthanasia]

I'm a physician, and I've worked since 1984 in the geriatric clinic at the McGill University Health Centre. My focus is on care for patients with cognitive disorders. I often do capacity assessment and testify in court for my patients. My colleagues ask my advice on capacity assessment and refer to me their most difficult cases.

Before seeing a patient, I collect all the information I can from the family, social worker and other sources. You can’t assess capacity without knowing what decisions the patient is facing, the constraints, and the reasons why others consider certain choices to be harmful to the patient. I typically spend two hours with the patient, and sometimes I need to see them more than once.

When we assess capacity, we try to enter into the patient's mind to determine whether any cognitive or mental disorder is interfering with their ability to understand the information needed to make decisions, appreciate how it applies to their situation, reason and express a choice. We also weigh the degree of risk associated with the decisions they have to make, and this may influence our conclusion. All this explains why experts may disagree about the capacity of a patient.

Beyond capacity is the question of agency. There’s no such thing as an autonomous decision free from constraints. This is true for all of us. Internal constraints include fear or other emotions, habit, lack of knowledge of options or a desire to please others. External constraints include marginalization, a lack of options and pressure from others. That’s why the federal correctional investigator called for a moratorium on MAID for prisoners.

Another example of lack of full agency is abuse, where competent adults remain in situations that are harmful to them. I see many victims of elder abuse. One was a widow from eastern Europe who had no relatives in Canada. A woman pretending to be her niece fraudulently obtained power of attorney, emptied her bank account and moved her to a nursing home against her will. She ran away in mid-winter with her walker and was later brought to me for assessment. She didn't have advanced dementia, as alleged. She was not fluent in English, but she was fully capable. She lacked the agency necessary to defend her rights without help.

Suicide is another example. The CCA expert panel couldn’t reach a consensus on whether there is a meaningful difference between suicidal desires and a desire for MAID. The suicide rate after traumatic spinal cord injury is 20 times that of the general population for five years. Those who choose suicide may not be depressed or incapable of decision-making. Their options have been tragically narrowed, and it takes a long time to readjust, but people do. After five years, the rate is the same as that of the general population. They need protection from their despair. That’s why our society responds to suicidal desires with prevention. That’s why we can’t allow MAID after 90 days.

Bill C-7 creates a framework for people not near their natural death that only requires provision of information on other means to relieve suffering and a 90-day waiting period. Giving information has no value if access to the service is not available. It's largely not within that time frame. Often there's not even time to see a specialist, certainly not time to regain some hope of healing.

The bill is proposing a Criminal Code amendment to permit doctors to end the lives of Canadians whose suffering has not been addressed in other ways. We’re told that the numbers will be small. Beyond disabled persons, who made their point clearly on Tuesday and today, we could look at a few common medical conditions we see in our practices. Over two million Canadians live with chronic obstructive lung disease. There are 600,000 who live with heart failure. There are 700,000 stroke survivors, and there are five million people with osteoarthritis.

Of course, not all these people will seek MAID, but many of them will be eligible. They have “a serious and incurable illness”. The question of whether they are in an “advanced state of irreversible decline in capability” is subjective, as is the presence of “enduring physical or psychological suffering that is intolerable to them”.

Everyone with an acute or chronic condition that causes suffering and loss of autonomy will lose the protection of the Criminal Code, which will be reserved for the young and able-bodied. Ageism and ableism are rampant. Seniors and people with disabilities are denied care because their life is seen as less valuable than other people’s.

To leave to doctors the decision about providing MAID to anyone who meets the criteria is to entrust them with life-and-death decisions for millions of people in a vulnerable position. Doctors have the same limitations as everyone else does, which may include unconscious bias towards MAID as an option and against living in certain situations. No one should have that power.

It should be made clear in the law that MAID is not a medical treatment on the same level with real treatments. It's not a standard of care. It should be a last resort when all other reasonable options have failed.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Doctor.

We will now go into our first round of questions, starting with Mr. Cooper for six minutes.

Go ahead, Mr. Cooper. The floor is yours.

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

Thank you very much, Madam Chair.

Thank you to the witnesses.

I'll address my first question to either Dr. Boyle or Professor Chochinov. At our last meeting, we heard compelling and disturbing testimony from Roger Foley, who talked about the fact that physician-assisted dying was specifically brought up to him without his initiating it, and that he faced considerable pressure and coercion from health care professionals.

In your brief, you make note of that concern, and you state expressly that “health care professionals should not initiate” such a conversation. Why do you believe that this should not occur? Further to that, could you speak to how the Australian state of Victoria has responded legislatively, and would you support a similar safeguard to be legislatively introduced when we consider amendments to Bill C-7?

[Dr. Anne Boyle]

Thank you, Mr. Cooper.

I think we're all aware that there is a hierarchy and a differential of expertise in the physician-patient relationship. It is actually addressed directly, as you mentioned, in the Victoria law in Australia.

We feel that it's important for patients to raise it, and if they do, for their questions regarding MAID to be addressed by all health care professionals and the issues explored, including their underlying suffering. They should be provided information or directed to someone who is able to provide that information.

We actually support and urge the federal government to reduce harm to vulnerable patients by including this in the current revisions to the Canadian MAID legislation.

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

Great. Thank you for that.

Another area of concern raised in your brief was with regard to the 90-day waiting period where death is not reasonably foreseeable. We have heard similar concerns expressed by other witnesses.

Can you speak to the inadequacy of a 90-day period from the standpoint of accessing services, whether it be palliative care, psychiatric or psychological supports or counselling, let alone the adequacy of time in order to have meaningful palliative care treatment, for example, up against a 90-day clock?

[Dr. Harvey Chochinov]

The 90-day clock, as you put it, is very problematic. There have been a number of studies. For example, a Manitoba study actually found that after 90 days of being diagnosed with a major physical impairment, patients reach a peak in their suicidal ideation. They continue to be suicidal, although it wanes, as much as a year later, and thereafter it's still greater than their match cohort, so 90 days is certainly not an opportune waiting time.

The other thing is that we know that it takes a great deal of time for these people to be able to avail themselves of expertise. Patients who are highly at risk, for example those with chronic pain, may have to wait six months or more, depending on what part of the country they happen to live in, in order to get access to care. My specialty is psychiatry. Again, the waiting list for good psychiatric care is in the neighbourhood of months, up to a year, depending on what part of the country you're in.

The 90 days is problematic for all those reasons, which in large measure are data-driven and data-informed.

[Dr. Anne Boyle]

As well, as Dr. Ferrier mentioned, simply having information about available treatment options is not enough. People actually need the lived experience of having care in order to make informed decisions.

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

In terms of addressing this 90-day period, how do we fix this in the way of amendments? What would you propose instead? The question is for the same witnesses.

[Dr. Harvey Chochinov]

I think the 90-day period is problematic. I know that Dr. Ferrier also cited studies that looked at patients who had traumatic injuries. She found that anywhere from three to 24 months later patients continued to experience suicidal ideation, and over the course of that time also saw changes in their suicidal ideation with the advent of treatment or care.

I would say that it's important we maintain the “reasonably foreseeable death” clause because, without that, there is really no differentiation between MAID and those who are seeking out suicide for suffering that might be amenable to treatment.

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

On one other point, just to finish up on the 90-day period, it's 90 days from the time of assessment rather than the time when one actually executes their wish to proceed with the procedure.

Do you see that as problematic?