Medical Assistance in Dying Committee on June 6th, 2022

[Luc Thériault, Bloc, Montcalm, QC]

What would those criteria be?

[Prof. Constance MacIntosh]

Consultation with parents I think is a very important one, and just in general I would like to see a regularization of how we approach the decisions of mature minors across the country and get some consistency across the provinces. The only thing that I would be really pushing on in terms of the code itself is bringing in parental consultation.

[Luc Thériault, Bloc, Montcalm, QC]

What do you think, Mr. Salte?

[Bryan Salte]

Thank you so much.

I am a regulator. I've worked with professional regulation for a long time. One role of professional regulation is to ensure that professional standards are upheld. One concern I would have, if this was incorporated in some form of regulation or statute, is that it is then difficult to change and it really may be quite rigid in terms of how it is addressed. I would support the minimum level of safeguards incorporated into the legislation. Consultation is one that I think we—both of your speakers—agree on.

In terms of any additional requirements, I think you can rely upon the regulators across Canada to provide guidance, which I think we have done. When we provide that guidance to our members, we say what we expect of them if they are to be involved in medical assistance in dying.

Thank you.

[Luc Thériault, Bloc, Montcalm, QC]

On the issue of parental consultation, we have very little evidence. Few people can come and testify about what they do in such cases, because it's not allowed here. Only two countries allow the practice.

Based on what both of you are telling us, unlike the Netherlands, if we were to move forward in Canada, it would not be a matter of defining an age where parents would have veto power, for example, when the child is age 12 to 16, and taking away that right when the child is age 16 to 18. It's simply a matter of establishing decisional capacity. Would that be the case even between the ages of 12 and 16?

[The Joint Chair, Hon. Yonah Martin]

Professor MacIntosh.

[Prof. Constance MacIntosh]

The younger a person is, the less likely it is that they will have decisional capacity. When I suggested 12 as a potential threshold, I raised that because that is where the psychological evidence rests as being really the minimum possible for a person to have the level of discernment necessary. However, I have a great deal of faith in our health care assessment teams to determine whether a person is freely making a choice and if they truly understand it or not, so I'm comfortable with there not being an age limit here.

[The Joint Chair, Hon. Yonah Martin]

We're near five minutes. Monsieur Thériault, I apologize, but we have run out of time.

We will continue with Mr. MacGregor.

[Luc Thériault, Bloc, Montcalm, QC]

I would have liked to hear Mr. Salte's opinion on this.

[The Joint Chair, Hon. Yonah Martin]

Mr. Salte.

[Bryan Salte]

Just very quickly, decisional capacity is very much based upon the nature of the decision to be made. What we're talking about here is a very significant decision resulting in death, so the decisional capacity that will be required for medical assistance in dying will be very significantly different from the capacity to be treated for a sprained ankle.

I have great confidence in the medical profession's ability and their recognition of that as a concept and the seriousness with which it would take this. I can't imagine any physician being involved in this process unless they were fully satisfied that the young person fully understood the implications of their decision.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

We'll have Mr. MacGregor next for five minutes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Madam Chair.

Thank you to both the witnesses for joining our committee today and for helping us on this journey.

Both of you have mentioned the fact that MAID should be based on decisional capacity. I know in my home province of British Columbia—and I'm sure this is echoed across many different provinces—in the health care interests of a child, an assessor has to determine whether the child understands the need for the health care, what that health care involves and what the benefits and risks are, and I think that a MAID regime, according to both of you, would be based on the same basic principles.

For many children, especially those who are living with disabilities or who have chronic and incurable conditions, you may have examples of how two children have the same medical conditions that may make them eligible for MAID, but they have had completely different experiences with the medical system. One has had the privilege of being born into a wealthy family or a well-to-do family and has had access to all kinds of services, while the other may have come from a broken home, lived in poor socio-economic conditions and never had access to any of those kinds of treatments. What we've been hearing at this committee is very real fear from those in many segments of society who feel that if you have not had those choices to obtain that kind of medical intervention, it's not really a choice at the end.

Maybe, Professor MacIntosh, I'll start with you. What can we do to address that perception out there and the inequities that exist in the levels of care in two completely different circumstances when both people are coming to the place where they're making that very big decision?

[Prof. Constance MacIntosh]

I would certainly hope that if a physician or a care team was approached by an individual who was living with a disability in the sort of situation of poverty and exclusion that you've been describing, the physician would realize that situational aspect and hopefully support getting them to a better place and getting those supports in place that should be there. I can't imagine a physician agreeing that the individual met the criteria for MAID in those circumstances.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Salte, do you have anything to add? It is a recurring theme that we hear.

[Bryan Salte]

And the same recurring theme, I suggest, was the subject of discussions with respect to adults, because I've been involved in those discussions for quite some time. Not that it's a perfect answer, but all of the evidence suggests that the people currently accessing medical assistance in dying are, in fact, the well educated, the socio-economically advantaged, not disadvantaged, and the concerns about the disadvantaged inappropriately accessing medical assistance in dying are simply not there.

It is true that what is intolerable suffering will be to some extent dependent upon the environment in which one lives, and the people who do these assessments are sometimes astonished at the individuals who by almost all of the objective criteria would be thought to be suffering intolerably, and they say, “No, I really don't want to do that,” whereas you have others who will find intolerable suffering in lesser physical discomfort, pain, etc.

While it is a reality and it is a concern, I guess the other concern I would have is if, based upon that theoretical concern that this might happen sometime to somebody, you say no mature minor is able to access medical assistance in dying because someone may someday be disadvantaged, that is a very unfortunate outcome. Requiring those individuals to continue to suffer intolerably until they reach 18 is not the appropriate approach.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I guess my closing comment is that I'm trying to determine how much a person's decisional capacity is influenced by their life events and whether a medical assessor can properly take those into account. I guess that's the big question we're grappling with.

I appreciate both of you intervening today and assisting our committee in this.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you.

I'll turn this back to our joint chair Mr. Garneau.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Senator Martin.

We'll go to the senators for their round.

Senator Mégie, you have the floor.

[Marie-Françoise Mégie]

Thank you, Mr. Chair.

My question is for Professor Macintosh.

In 2016, you published an article entitled “Carter, Medical Aid In Dying, and Mature Minors”. In the article, you outlined the jurisdictions where minors are included in MAID regimes. You demonstrated how little empirical evidence existed at that time regarding minors' requests.

Today in 2022, have you found further evidence and managed to gather any other information on minors' requests for MAID?

[Prof. Constance MacIntosh]

Do you mean in Canada, or in jurisdictions where youth are able to access MAID?

[Marie-Françoise Mégie]

I'm talking about other jurisdictions, because it's not allowed in Canada yet.

[Prof. Constance MacIntosh]

It's not yet allowed.

There was a recent publication by the Canadian Paediatric Society, which was a survey of pediatricians with regard to whether or not people had been approached for requests or queries about MAID in the last few years. There were a number of requests or queries that had been made here in Canada. I think it might have been 17 that were documented. I can get you that information later with some specificity.

In the jurisdictions where it's legal, in Belgium and in the Netherlands, the numbers are still very low.

[Marie-Françoise Mégie]

Thank you.

I have a short question for Mr. Salte.

What is the real definition of “mature minor”?

[Bryan Salte]

“Mature minor” means somebody who has decisional capacity with respect to the specific decision they're being asked to make. They need to be in a position to be able to understand the risks and benefits of the decision they are being asked to make, fully understand the implications of the decision, and be able to make an informed decision, understanding all of the implications of that decision. That is what I would understand to be the mature minor.

“Decisional capacity” is the other term that people prefer to “mature minor”. Thank you.