Medical Assistance in Dying Committee on June 6th, 2022

[The Joint Chair, Hon. Yonah Martin]

Thank you, Mr. Salte.

Thank you to both of our witnesses.

We'll move into our first round of questions.

We'll begin with Madame Dominique Vien.

[Dominique Vien, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you, Madam Chair.

Thank you, Mr. Salte and Professor Macintosh, for being available this evening to answer our questions.

My first question is for Professor Macintosh.

In the case of mature minors, you argued that a different approach was needed and that other safeguards should be considered. Could you quickly paint a picture of what should be considered as new safeguards?

[Prof. Constance MacIntosh]

Let me start by saying that I think the approach developed by clinicians working with minors seeking to make decisions about medical treatment—things like withdrawing or not undergoing life-sustaining treatment—is a pretty robust system in each province in their assessment of the capacity of a minor in this situation.

That said, if I were designing my dream measures, I'd want to be certain there is an express requirement that palliative care options are fully explored and understood. I'd like to see a higher level of detail present in the identification of guidelines developed by different medical and palliative care associations when it comes to assisting youth making decisions, and that those be more publicly available and can be publicly scrutinized.

That would be my starting point.

I would like to see teams involved. I would like to see pediatric—

[Dominique Vien, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

I have very little time, Professor Macintosh, but you could send your thoughts on these safeguards to the committee in writing. I would appreciate it.

I have a second question for you. You spoke of a duty to consult with parents. If the parents were to disagree, what would take precedence at that point? Would it be what the teenager, the mature minor chooses, or what the parents choose?

[Prof. Constance MacIntosh]

I think that's going to turn on what the health care team has concluded with regard to the decisional capacity of the youth.

Decisions like this are made collectively by families. My co-presenter, Mr. Salte, mentioned the concept of relational autonomy. Decisions like withdrawing treatment or not having life-sustaining treatment are made slowly and carefully in conversation.

I would not require parental consent. I think that is unnecessary, but I would—

[Dominique Vien, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you very much, Professor Macintosh.

My question is for both witnesses.

Do you feel that the Canadian public is now ready to accept that mature minors may be eligible for medical assistance in dying? Do you feel they are?

[Bryan Salte]

To the extent that there is evidence out there, it is older evidence in the report of the Council of Canadian Academies. The population appears to be quite split in terms of what their perspective was a few years ago.

What I think I can say is that over time, MAID as a general concept—ignoring whether they're mature minors or otherwise—has been much more broadly accepted, and the increasing acceptability of medial assistance in dying is part of what the public believes. I have not seen any recent polls in the past several years that have addressed what the population of Canada thinks about the potential of opening this up to medical assistance in dying for mature minors.

To the extent that I've seen information, it accepts that mature minors have a right to make health care decisions, including in situations that may result in their death. It may well flow that there is not a great deal of concern, providing that the safeguards are in place and other things are there that would provide assurance that these decisions are informed decisions.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you. That's five minutes.

Professor MacIntosh, the time has run out for this round.

[Dominique Vien, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you very much.

[The Joint Chair, Hon. Yonah Martin]

Next we will have Monsieur Arseneault. You will have the floor for five minutes.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Madam Chair.

My questions are for both of our witnesses, whom I thank for being here.

I'd like to start by saying that all of us on this joint committee are honoured to be here, but we have a very heavy weight on our shoulders. We have to discuss the issue of mature minors.

Professor Macintosh, you tell us that no matter what happens, it could become unconstitutional to deny mature minors medical assistance in dying.

I'd like us to look back at A.C. v. Manitoba, a decision rendered in 2009. It involved a young female minor who refused medical treatment. According to the Supreme Court of Canada, she had the right to refuse medical treatment against her will. In Carter v. Canada, it's quite the opposite: they're asking for medical assistance in dying. They want MAID and they want the Criminal Code amended to allow it to happen.

On the one hand, in A.C. v. Manitoba, the court rules that a person has the right to refuse medical treatment. That's self-evident and understandable. On the other hand, in the Carter case, they want medical assistance in dying.

How do you think the courts could make refusing medical assistance in dying for mature minors unconstitutional?

[Prof. Constance MacIntosh]

The Supreme Court of Canada rejected the distinction of not giving treatment versus giving a medical service in Carter. They found that was a false dichotomy in Carter, which I think is a complete answer to the question.

I would note that the reasoning in Carter turned very much on the reasoning in the A.C. decision. I don't think that's a live issue.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you very much.

Mr. Salte, I'd like to know how you feel about this.

[Bryan Salte]

I completely agree with Professor MacIntosh's comments. Carter is based upon the idea that it is unconstitutional to deny people who are suffering intolerably the right to have a suitable end to their life that's done in a compassionate way. There's nothing in Carter that would say you only have that right if you're over the age of 18 and you don't have that right if you're under the age of 18.

Again, I don't think that it is completely essential for this analysis to look at the difference between an active ending of life and a denial of treatment, which has the effect of ending life. However, to the extent that it is relevant, the trial court in Carter completely rejected that as a false dichotomy, and said that the dichotomy does not exist, essentially. It's the same issue. People are being given the right to make decisions that will result in the termination of their life.

Thank you.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you very much. That answers my question.

My next question is also for both witnesses.

In your opinion, additional safeguards could be established with respect to mature minors. Both witnesses seem to agree that parents should be consulted. There is a difference between consulting parents and getting their permission. How do you see that playing out?

I believe you've already been asked this question, but I'd like to come back to it. What would happen if the parents refused to give their permission?

Mr. Salte alluded to the fact that, because they are broken-hearted, parents might refuse to allow their minor child to decide to die for medical reasons and due to intolerable suffering.

I'd like to know what you think. Should parents be consulted or is their permission required?

I'd like Professor Macintosh to answer the question first.

[Prof. Constance MacIntosh]

Thank you.

In my view, if the health care treatment team has determined that the youth has decisional capacity, is psychologically, emotionally and psychiatrically stable, understands the decision at hand and understands the consequences and the irreversibility, then I think that it is an affront to their dignity, to their basic charter rights, for their parents to be able to overrule that decision and so to make the outcome turn on the consent of the parents. That's why I think it's very important to involve the parents as part of that decision-making circle all the way along and, ideally, there would be a consensus that was reached.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you.

Mr. Salte, do you have anything to add?

[Bryan Salte]

Yes, and again, I concur with what Professor MacIntosh has to say.

The point I was trying to make and obviously made poorly is that if you have a requirement of consent, it has some unintended consequences that may be problematic, in that in fact now you are involving the parents in being required to agree to the termination of their child's life in a situation in which their child is suffering intolerably.

That is part of the reason why I do not agree with the idea of a requirement of consent—rather, consultation and involvement in the decision-making process. But assuming that the child is decisionally capable which is, of course, the whole basis of the mature minor doctrine, then the ultimate decision is that of the child, but only to be reached after there has been discussion with the parents and discussion with those around in order to assist in a joint decision-making.

All of the evidence around decision-making at end of life for young people suggests that almost always the decisions are reached jointly, so it would be, I expect—

[The Joint Chair, Hon. Yonah Martin]

Thank you—

[Bryan Salte]

—a very rare situation in which parents would say “absolutely not” if there has been that discussion.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Professor.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

I'd like to thank the two witnesses.

Thank you, Madam Chair.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Next we'll have Monsieur Thériault for five minutes.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Madam Chair.

I'd like to stay on the same topic.

Professor Macintosh, in response to my colleague Mrs. Vien, you spoke of the need for additional safeguards.

Personally, what I understand is that it's not a matter of adding criteria or requirements on both tracks, but rather ensuring that there are guidelines for the regulatory bodies in Quebec, the provinces and the territories that properly frame the practice so that more adequate assessments can be done.

You're not talking about including this in the Criminal Code. You're not asking lawmakers to add more criteria for the two safeguards.

[Prof. Constance MacIntosh]

I'm open to additional criteria among the safeguards, so that would be part of the code, potentially, if we were to add factors—