Medical Assistance in Dying Committee on June 6th, 2022

[Marie-Françoise Mégie]

Thank you.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Senator Mégie,

Senator Kutcher.

[Stanley Kutcher]

Thank you very much, Mr. Chair.

Thank you to the witnesses for being here with us.

I have three questions, and I would like it if each of you could weigh in on them. They shouldn't be long answers.

First, would MAID be provided to a young person experiencing a crisis? Second, how common is unresolvable disagreement between parents and child when it comes to decisions about MAID? Third, there are countries in which MAID is provided to mature minors. Are there any lessons that Canada could learn from these experiences, things that we should avoid or things that we should apply?

[The Joint Chair, Liberal, Marc Garneau]

Perhaps, Professor MacIntosh, you could start.

[Prof. Constance MacIntosh]

A young person in crisis would not be eligible for MAID anymore than they would be eligible for any other decision, for example, to deny life-sustaining treatment. The individual's emotional state is taken into account when assessing whether, in that instance with that decision, the minor is able to fully appreciate the decision they've been asked to make and its consequences. So that's a clear no for me.

On the question of how common are unresolved disputes with regard to MAID, I have no information on that question.

As to lessons from other countries, some of the practices we see are review boards. For any instances in which MAID is to be performed on a minor, or an adult as I recall, there is a report that is filed with a central body that will review everything. That's one of the safeguards.

I think that we actually picked up a lot from what other countries' practices were when we created our MAID regime a few years ago.

I'll pass the mike.

[Bryan Salte]

Thank you so much.

I'll answer the second question first, because I don't think there's any evidence as it specifically relates to medical assistance in dying. However, there is good evidence as it relates to many other life-challenging decisions. The number of significant disagreements between parents and children is small, not so small necessarily in some of the issues that relate to, for example, abortion, where there are very strong ethical or religious viewpoints that may differ between the two. In terms of health care, not a large number of individuals have reported those kinds of strong disagreements. Of course, because MAID is not illegal in Canada, that really has not been an issue with respect to medical assistance in dying for mature minors.

With respect to the lessons from other jurisdictions, certainly Belgium and Netherlands are more restrictive in what would qualify than what I would support if it were my decision to make. I also think that it's problematic for boards to become involved unless absolutely necessary in these kinds of situations. Consequently, the better approach, again, is to rely upon the judgment of the medical professionals who are required to make these decisions following the guidance of the regulatory bodies and the expectations for establishing informed consent with respect to the entirety of the practices they engage in, which may include medical assistance in dying.

With regard to somebody in crisis, if it is a temporary situation that may pass, I completely agree that the state of mind during that period of time, which is likely to be different later, would not qualify somebody for medical assistance in dying. If, indeed, that is a concern, one of the things that one could possibly look to is the cooling off period, or the period of time that's required between the first request and when medical assistance in dying might be administered, as is the case for individuals who do not have a reasonably foreseeable death under the current legislation.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Senator Kutcher.

Senator Dalphond, you have the floor.

[Pierre Dalphond]

Thank you, Mr. Chair.

I have two questions I'm going to ask right off the bat.

Here's my first question…

Would the access to MAID for mature minors that you're proposing apply both when death is foreseeable and when it isn't? Access to MAID when death isn't foreseeable was added to Bill C‑7.

Here's my second question…

Aren't the additional safeguards you are proposing essentially just variants of the usual safeguards in place for all cases of medical assistance in dying? I mean proper assessment of the person's capacity to consent, and the need to ensure that they are requesting MAID freely and voluntarily and that they are capable of making the request.

For example, it could be a 70-year-old widow who lives alone, and has been abandoned by family or other loved ones.

Don't the same criteria always apply? Basically, it's about determining if the person really still has the decisional capacity based on their situation.

[Bryan Salte]

Certainly, the requirement of consultation with family members is not part of the current regime. If I were eligible for medical assistance in dying, and I chose not to inform any members of my family, I am perfectly entitled to choose not to do that. Now, whether the physicians involved are prepared to provide medical assistance in dying in those circumstances is a different issue, because, of course, no physician is compelled to provide medical assistance in dying even if the individual is technically capable of meeting the criteria.

Therefore, I think that additional criteria is important. The thing Professor MacIntosh has been speaking about to some extent, which is something worth considering, is whether there are additional safeguards that are necessary in order to have a degree of confidence, and, potentially, whether the public has a degree of confidence that this really is the decision of the individual, fully informed with a full understanding of the implications of the process that was involved in order to do that.

While I don't personally support that, because I think the medical profession will deal with that appropriately, I can understand there may be an appetite in the public to see something like that occur.

[Pierre Dalphond]

Would that be true for both tracks, namely, that which is foreseeable and that which is not foreseeable?

[Bryan Salte]

I feel most strongly about those situations in which death is reasonably foreseeable. I think there are some interesting constitutional arguments, because of course with adults the decision in Quebec required that medical assistance in dying must be made available whether death is or is not reasonably foreseeable.

I think a decision to only allow medical assistance in dying for adolescents who have a reasonably foreseeable death would be constitutionally very questionable as a political decision. As something that might be supported more broadly, it would probably be easier to achieve support for individuals whose death is reasonably foreseeable.

But constitutionally—

[Pierre Dalphond]

I would maybe ask Professor MacIntosh just to complete this for a few seconds.

[Prof. Constance MacIntosh]

I don't think I have much to add there.

For me, the heart of the suggestion about safeguards is about public transparency and public confidence, that they understand the process that's being undertaken to ensure that vulnerabilities are identified and addressed when it comes to youth.

[Pierre Dalphond]

Thank you.

[The Joint Chair, Liberal, Marc Garneau]

Senator Wallin.

[Pamela Wallin]

Thank you very much, Chair.

I'd just like to hear from Dr. MacIntosh, just in response to what Mr. Salte said, that he has some reservations about review boards and the complications that might come with them, as opposed to relying on the judgment of the assessors and the medical professionals who are hands on in a particular situation.

[Prof. Constance MacIntosh]

I don't suggest review boards as being in an intermediary position necessarily, because I don't think they can move quickly enough. I don't think they can get in there in that 10-day period and determine if they think the request has been properly considered.

I would personally want to see some sort of a collective body receiving information about every instance where MAID has been given to a minor so that we understand what is happening in that practice, and that there is that other level of scrutiny.

I know that creates paperwork, and that's not exactly a favoured thing, but I would have more confidence in the system, and I think others would as well, if we understood—

[Pamela Wallin]

It is a kind of post facto review to establish practices and review outcomes.

[Prof. Constance MacIntosh]

That's right.

[Pamela Wallin]

Yes, that's helpful.

Mr. Salte, I was interested in your phrase, to go with “decisional capacity” versus “mature minors”, because it seems to be clearer just using those words, as Senator Mégie said, as definitions for these things.

Are there other situations where “decisional capacity” as a concept is recognized and used regularly with legal weight?

[Bryan Salte]

Certainly the discussion around the Council of Canadian Academies table was that “decisional capacity” is a much better term than “mature minors” because “mature minors”, as a legal term, is understood by lawyers and judges, but is not so clearly understood by members of the public. “Decisional capacity” better describes what it is that you're actually looking for.

I understand from that discussion that among medical professionals they do not use “mature minor” usually. What they'll refer to is individuals with “decisional capacity”, and that's true whether the individual is 14 or 94. The same issue applies.

[Pamela Wallin]

Do you see that concept used in your experience as a lawyer, versus someone dealing almost strictly with the medical side of legal issues or the medical field? Are there other places where that idea is recognized and accepted?

[Bryan Salte]

Certainly I understand it to be accepted quite nicely when you are talking doctor to doctor, doctor to another health care practitioner, but the legal term that has been developed when you are looking at court decisions, which is what lawyers do, is “mature minor”. It's a question of whether you want to go with a legal term that has a definition associated with it, which has been developed by various courts, with potential flaws in that particular term, or whether it's better to utilize a term that medical professionals better understand when they're performing their day-to-day duties.

[Pamela Wallin]

I'll just go back to Dr. MacIntosh. Even though you—

[The Joint Chair, Liberal, Marc Garneau]

Ask very quickly.