Evidence of meeting #11 for Medical Assistance in Dying in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was minors.
A video is available from Parliament.
Member and Just Recovery Research Lead, Disability Justice Network of Ontario
I am not arguing that.
Member and Just Recovery Research Lead, Disability Justice Network of Ontario
If I were to have to decide whether or not I should access MAID right now, you're asking me whether or not I would be capable of doing that.
Member and Just Recovery Research Lead, Disability Justice Network of Ontario
No, I don't believe so.
Senator, Saskatchewan, CSG
Okay. Thank you very much.
That's the end of my questions.
Liberal
The Joint Chair Hon. Yonah Martin
Thank you to both of our witnesses. I think your voices are very important at this table. You're very courageous.
My one question is regarding MAID being available to minors. Do you believe that there should be parental consent, and why or why not?
Member and Just Recovery Research Lead, Disability Justice Network of Ontario
I think parental consent is also extremely tricky. In my field of work, I have seen multiple parents of young children with chronic disabilities who have coerced or forced them to undergo treatments they did not want to undergo. I worry that this could be similar when it comes to MAID. I worry that parents who are scared of their children's disabilities and don't understand them would be able to do the same thing with regard to MAID.
I also know that parents have a lot of influence in how children feel within themselves too.
The Joint Chair Hon. Yonah Martin
Those are very good points.
Chief Henry, I was hoping to ask you about the consultation process. We've heard from officials, and we feel that not enough consultation has been done with indigenous, Métis and Inuit peoples.
Are you having these conversations with members of your community? Would you share with us whether there has been adequate consultation? What are your community members saying?
Myeengun Henry
I have been speaking to our members and the indigenous community at large, and it's a very tough situation. We have such a history of these types of scenarios. I would guess we wouldn't have everybody agreeing.
When we go back to our history and think about how we dealt with these issues throughout our spiritual journeys, that's where we align. We let the Creator decide that. It's a tough situation. Every single case has its own scenario.
However, when I speak.... You have to realize that we're just coming out of the residential schools and we're still facing the barriers of those. I think what they saw at those schools still has a bearing on people's thinking right now.
They know that the medical support they have is, hopefully, the best that they can have, along with their community helping them with these types of decisions. It also resonates with other members of our community when these decisions are made when they get into these scenarios.
It's a big story, and it requires a lot of [Inaudible—Editor] thought—
The Joint Chair Hon. Yonah Martin
In terms of government consultations, there hasn't been very much.
The Joint Chair Hon. Yonah Martin
It's important to note that we need to do that kind of consultation regarding MAID and all of the groups that would be impacted.
Liberal
The Joint Chair Liberal Marc Garneau
Thank you very much. That brings our panel to an end.
I would like to thank both Ms. Mehdi and Mr. Henry for being here tonight, appearing, providing opening comments and answering all of our questions on this very important subject, which we initiated tonight. We very much appreciate your input on this. It will help the committee as it deliberates on this matter.
With that—
Myeengun Henry
I want to think about the children who are going through this. In my line of work, I offer a really quick thought or a prayer with them for all of those people who are going through this. I give all the strength for the medical people and for the children, families and communities who are going through these difficult situations.
I wanted to share that with you these evening. Thank you for allowing me to share what I know with you.
Liberal
The Joint Chair Liberal Marc Garneau
Thank you, Mr. Henry. That was very lovely. We much appreciate it.
With that, colleagues, we're going to suspend very briefly as we prepare for the second panel.
The Joint Chair Hon. Yonah Martin
I call the meeting back to order. We will resume.
I'd like to take a few moments to remind our new witnesses who have joined us to please wait until I recognize them by name before speaking. I remind you that all comments should be addressed through the joint chairs. When speaking, please speak slowly and clearly. Interpretation for this video conference will work like it does for an in-person committee meeting. You have the choice at the bottom of your screen of the floor, English or French. When you are not speaking, please keep your microphone on mute.
With that, I'd like to welcome our two panellists. As an individual, we have Ms. Constance MacIntosh, professor. From the College of Physicians and Surgeons of Saskatchewan, we have Mr. Bryan Salte, who is a lawyer. Thank you, both, for joining us this evening to lend us your expertise and insights.
We will begin with opening remarks by Ms. MacIntosh, followed by Mr. Salte. If it is Dr. MacIntosh, I apologize. You will each have five minutes for your opening remarks.
Go ahead, Dr. MacIntosh.
Professor Constance MacIntosh Professor of Law, As an Individual
It is professor, not doctor.
Thank you, Chair and committee members, for inviting me to join you this evening. My name is Constance MacIntosh. I'm a full professor of law at the Schulich School of Law. I served as the director of Dalhousie's Health Law Institute for six years.
By way of background on the issue at hand, I was on the organizing committee for four international conferences on end-of-life clinical practice, empirical evidence, law and policy. Among other focuses, I've published on law and policy concerning minors and health care decision-making for very young minors—children and neonates—as well as adolescents and mature minors.
I have two recommendations from my perspective as a legal scholar. The first is that the Criminal Code should be amended to remove the reference to an age requirement. In my view, that is unconstitutional. If the committee concludes that an age needs to be included, to ensure public confidence I would recommend placing it at 12, because that's in line with the psychological evidence about capacity development, where it's just so unlikely that a child younger than that could be found to have decisional capacity to make that sort of decision. That sort of age bar would be constitutional.
Further, I recommend developing regulations, or introducing another amendment to the code itself, that codify or potentially enhance the existing process for assessing decisional capacity of youth were they to seek to access MAID. I think this is required as a matter of public transparency, because the public doesn't know about the concept of the “mature minor”, and also for public confidence. I think we need to be very clear, if we take this step, about how the potential vulnerability of youth is recognized and assessed.
I have five reasons for these recommendations that I'll slide through.
First, the MAID regime is based in the actual decisional capacity of each individual. Given that foundation, it makes no sense to disregard the actual decisional capacity of people just because of their age.
Second, the MAID regime's approach to consent and capacity should be consistent with Canadian clinical practice and law on health care decision-making by minors. Those are crafted to assess the situation of each individual and their potential vulnerability. As I'm sure you know, being under the age of 18 is not an absolute bar to minors making their own decisions about medical procedures, including decisions to withdraw or withhold life-sustaining treatment.
The regimes vary in their details across the provinces, but at their heart they all turn on the maturity of the youth and, in particular, whether the individual understands and appreciates the nature and consequences of a decision, and of course any possible alternatives, and their consent is freely given. In assessing that, experts look to factors like maturity, life experience and the youth's psychiatric, emotional and psychological state. A team of experts decides if the minor truly possesses the required maturity to make whatever the medical service decision in question is.
Third, as I've already alerted you to, I believe the MAID regime will be found unconstitutional if it maintains an age-based bar, because this is inconsistent with the evidence on how capacity develops with age and with experience. Because this absolute age bar bans youth who do in fact possess capacity, and because it bars them from accessing MAID and they don't need the protection of a ban, it's going to be found overbroad. Because the age of 18 doesn't signal anything in terms of maturity and development—it's arbitrary and not a magic birthday—this law, I believe, will be found unconstitutional if it's challenged.
The vulnerability of youth does require a different approach from what's taken with older people. Other safeguards are required. I believe that many are already built in to how health care providers approach adolescents who seek to make decisions about medical services. Effectively, as the seriousness of the health treatment decision escalates, so too does the scrutiny which is used when assessing capacity, voluntariness, and understanding. It may be, once again in the interest of public confidence and transparency, that additional safeguards are required for mature minors, such as the requirement of parental consultation.
Finally, I note that all the Canadian expert panels that had a mandate to specifically make recommendations endorsed a capacity-based approach, and rejected an age-based approach.
The Joint Chair Hon. Yonah Martin
Thank you, Professor.
Next, we have Bryan Salte from the College of Physicians and Surgeons of Saskatchewan.
Bryan Salte Legal Counsel, College of Physicians and Surgeons of Saskatchewan
Thank you.
I certainly want to echo the comments of Professor MacIntosh in almost everything that she has said.
By way of my background, I've been a lawyer for the College of Physicians and Surgeons of Saskatchewan for the past 23 years. I have responsibility for policy development, among other things. I was also part of the expert panel that presented the report from the Council of Canadian Academies on mature minors. It was quite a remarkable experience, because it gathered together a group of people who had divergent backgrounds in medicine, ethics, law and other backgrounds. The report is the consolidation of the wisdom of all of those people sitting around the table and talking about all of those things. Finally, I took part in developing the draft policy for the Federation of Medical Regulatory Authorities of Canada, as well as the actual policy of our college as it relates to medical assistance in dying. That is my background.
The first point that I'd like to make is that the Supreme Court of Canada in A.C. v. Manitoba recognized that the decisional capacity of an adolescent is not dependent upon age and that adolescents who have decisional capacity are entitled to make their own health care decisions. That includes circumstances in which the result of those decisions may cause death.
The second point I would make is that many of the individuals who access medical assistance in dying are individuals of quite advanced age, some of whom have somewhat diminished capacity, but still have the capacity to make their decisions. The result, I would suggest, is that it is quite anomalous that individuals of an advanced age and with somewhat diminished capacity are entitled to access medical assistance in dying—provided, as I say, that they do have the capacity to make those health care decisions—yet that is denied to individuals under the age of 18 who may well have more decisional capacity than some of the individuals who are currently accessing MAID.
The next point that I would make comes from the discussions and the information that was gathered by the Council of Canadian Academies group, of which I was a part. There is often a great deal of concern that adolescents tend not to be as concerned about the outcome of their decisions, that they are risk-taking and that their prefrontal lobes are not fully developed. Consequently, their capacity for executive functioning is somewhat diminished as compared with individuals who are somewhat older. The evidence of that is fairly compelling.
However, the evidence that has been gathered with respect to individuals who have life-threatening illnesses, and who have dealt with that for a considerable period of time, demonstrates that they are fully aware of the consequences of their health condition. They are very informed about their condition and are very thoughtful about the decisions they make.
Therefore, if medical assistance in dying for adolescents is to be allowed, and they have decision-making capacity, it means you will not be dealing with those individuals who are thoughtless, who are risk-taking and who are doing all of those things. Rather, you'll be dealing with individuals who have a quite sophisticated understanding of their health condition and are capable of sophisticated thought on how that health condition may progress.
A concept that was new to me at the discussion with the Council of Canadian Academies was the issue of relational economy. All of us are embedded in our relationships with our families and with others. The way of looking at the patient autonomy is not necessarily to look at it exclusively as individuals, but also with a recognition that decisions are made in the context of the relationships with those who are around the patient, namely, families. In the case of adolescents, that will very often be parents, or it may be other caregivers.
I suggest a couple of things. One is that the discussion around medical assistance in dying and whether it should be available to mature minors should not focus on whether it should be allowed, but rather that there should be additional safeguards for individuals who are required to undergo additional safeguards that are not required of adults. There are two things that might potentially be considered by Parliament in order to implement that.
The first is, again, the recognition of relational autonomy, a recognition that a decision to access medial assistance in dying affects those around you, whether you're an adult or an adolescent. It may be worth considering that parents at least be involved in the decision and are aware of the decisions being made. However, I suggest this does not require consent. One of the recognitions in the report from the Council of Canadian Academies is that, if parents are required to consent to the death of their child, they may feel very reluctant to be involved in the consent and may feel very guilty and unwilling to provide consent. That could deprive an adolescent of their full capacity and ability to end their intolerable suffering.
The second thing you might want to consider is what Parliament has done with respect to individuals whose death is not reasonably foreseeable. The requirement is that there be the involvement of somebody with expertise in the health condition, if the individuals doing the assessment do not have expertise in that health condition. Something similar to that might be considered when it comes to the potential of extending this to mature minors.
One concern identified is the availability of these kinds of services. It's somewhat inconsistent across Canada. For example, the requirement of a psychiatric consultation is probably relatively easily met in downtown Toronto. In rural Canada, I think, it is much less easily met.
Those are my opening comments. I'm looking forward to the opportunity to have a discussion with the members of this panel.
Thank you so much.