Medical Assistance in Dying Committee on Sept. 23rd, 2022

[The Joint Chair, Hon. Yonah Martin (Senator, British Columbia, C)]

I call this meeting to order.

Good morning, everyone, and welcome to the meeting of the Special Joint Committee on Medical Assistance in Dying.

I would like to begin by welcoming the members of the committee, the witnesses, and those watching this meeting on the web. My name is Yonah Martin, and I am the Senate joint chair of this committee. I'm joined by the Honourable Marc Garneau, the House of Commons joint chair.

Today, we are continuing our examination of the statutory review of the provisions of the Criminal Code relating to medical assistance in dying and their application.

There are a few administrative items. I would like to remind members and witnesses to keep their microphones muted unless recognized by the joint chairs. I would also remind you that all comments should be addressed through the joint chairs. When speaking, please speak slowly and clearly. Interpretation in this video conference will work as in an in-person committee meeting. You have the choice, at the bottom of your screen, of floor, English or French.

With that, I would like to welcome our first panel of witnesses who are here to discuss MAID when a mental disorder is the sole underlying medical condition.

We have, as an individual, Ellen Cohen, national coordinator, National Mental Health Inclusion Network. We also have Dr. Cornelia Wieman, deputy chief medical officer. Lastly, from Association des médecins psychiatres du Québec, we have Dr. Guillaume Barbès-Morin, psychiatrist.

Thank you to the witnesses for joining us. We will begin with opening remarks. Each will be five minutes in length, which I will try to carefully time. We will begin with Ms. Cohen, followed by Dr. Wieman and then Dr. Barbès-Morin.

Ms. Cohen, you have five minutes.

[Ellen Cohen, National Coordinator Advocate, National Mental Health Inclusion Network, As an Individual]

Thank you, Madam Chair.

Good morning. I hope everyone is well.

My name is Ellen Cohen, and I'm here today as an independent witness willing to share my expertise that is built from my professional and personal experiences.

For over 30 years, I have worked in the mental health consumer sector. I'm a person with mental health challenges and two chronic health conditions, and a family member. I need you to know that there is a lot on the line for me today, and I'm nervous. This is so much larger than all of us. The recommendations that you make to the government can make a big difference for people I support, persons with disabilities and people with mental health conditions living in Canada.

Who is not touched by mental illness? Mental illness affects everyone. People with disabilities make up 22% of the population, and that represents 6.2 million people living in Canada. Among youth aged 15-24 with disabilities, 60% claim to have mental health-related disabilities. All too often, some professionals do not understand that people with intellectual, physical and sensory disabilities can also have mental health conditions that are not related to any disability they may have.

I know that some of the problems where MAID is a major concern for our communities include poverty and lack of food security, safe housing, access to health care, mental health care and addiction services. There is also systemic discrimination—to mention a few.

I was invited onto the panel representing mental health from a disability perspective, which I did. The disability community is diverse, and I know that mental health consumer survivors are divided on the issue of MAID. Despite what was said by Dr. Gupta in her testimony to the members of this committee, I came onto the expert panel with an open mind. As a member of the panel, I was responsible to voice my opinion and to make recommendations for safeguards where mental illness was the sole underlying medical condition in applying for MAID.

Since the beginning of the process, there were challenges, including the composition of the expert panel. It was made up of seven doctors, five or six of whom provided assessments, one palliative care family doctor working with marginalized people, two doctors from the indigenous community, a psychiatric ethicist, two lawyers, two community members from the mental health community, and myself, a member of the disability/mental health community.

From the beginning of the panel, those who were assessors talked about the difficulties they were experiencing with [Technical difficulty—Editor] patients in general. They shared about the complications and difficulties of assessment. Those difficulties were not clear to me, nor were they transparent. The assessors also shared about the amount of time needed for each assessment and talked about the fair compensation for the work that is expected of MAID assessors. There was no space made for meaningful discussions on seriously complicated issues concerning decision-making, consent and capacity, accountability, monitoring, privilege, vulnerability. That just did not happen in the context of people suffering with mental health disorders.

When the discussion of mental illness came up, the discussion was shut down, or we moved on. When suggestions were brought forward, panel members were discouraged due to time constraints. When I did suggest something, I was shamed by the only other peer on the panel, stating that having specific safeguards for those suffering from mental disorders was discrimination.

Under Bill C-7, I believe there's a big difference between people requesting MAID for incurable and disabling conditions and those who are requesting MAID for mental illness as the sole medical condition. I ask you this: Is this a lack of resources or bureaucracy? I believe the outcome of the panel was a foregone conclusion. It became clear that some of the expert panellists had very little appetite to make any attempt at recommendations regarding the addition of legislative safeguards for any amendments to Bill C-7 with regard to mental health disability.

After reading the Quebec decision and giving it some thought, it became obvious to me that there were too many unanswered questions and issues in determining and assessing requests for track two patients without adding to it the request from people with mental illness, which will be available come March 2023, so I left the panel.

Through this whole process, there was limited discussion about mental illness as the sole mental condition for requiring MAID. The process was rushed. Seven months from our first meeting was not enough time to decide about life and death. It was not enough time to consult with the community that Bill C-7 is endangering. I would like to point out that this parliamentary process is also being rushed.

Thank you for allowing me to share my story.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much, Ms. Cohen.

Next we will hear from Dr. Cornelia Wieman.

[Dr. Cornelia Wieman, Psychiatrist, As an Individual]

Boozhoo, aaniin, good morning, bonjour.

I would like to thank the joint chairs, vice-chairs, members, honourable senators and members of Parliament for the invitation to appear before you.

My name is Dr. Cornelia “Nel” Wieman. I'm originally from Little Grand Rapids First Nation in Treaty 5 territory, Manitoba, part of the Anishinabe nation. I now live, work and play in the traditional, unceded, ancestral and continually occupied territories of the Coast Salish people, including the Musqueam, the Squamish and the Tsleil-Waututh nations.

I'm the first indigenous woman in Canada to train as a psychiatrist, and I have over 20 years of experience in clinical practice in a variety of settings, including rural, on reserve, urban and in tertiary care emergency psychiatry departments. It would be difficult to quantify how many psychiatric assessments I have conducted over more than two decades, though I would estimate, at a minimum, several thousand.

I most recently completed a six-year term as the president of the Indigenous Physicians Association of Canada and currently serve as the deputy chief medical officer at the First Nations Health Authority in British Columbia. However, I'm not speaking to you today in either of those leadership capacities. I am providing my testimony as an individual, as a psychiatrist and as a member of the expert panel on MAID and mental illness that tabled our final report in May of this year.

I will highlight a few key messages in these opening remarks and then look forward to further discussion in the Q and A period to follow. Section 1.5 of the final report of the expert panel says:

Indigenous peoples in Canada have unique perspectives on death which need to be considered in the context of the emergence of MAiD including MAiD MD-SUMC. However, engagement with Indigenous peoples in Canada concerning MAiD has yet to occur.

Hearing from additional witnesses, including myself, cannot be considered to be a fulsome consultation with first nations, Métis or Inuit. Perspectives on MAID are on a spectrum. I have heard of medically assisted deaths occurring in first nations communities that are grounded in ceremony, where the whole community is aware of what is happening and the dying person is drummed into the next world. On the other end of the spectrum are those who are still acutely distressed by their individual experiences of historical, intergenerational and contemporary traumas. Their view of MAID is that it essentially amounts to genocide.

This becomes even more complicated when we consider MAID in the MD-SUMC category. There is the potential for the spread of misinformation, as we have seen during the COVID pandemic, to the extent that some people believe indigenous youth who are suicidal will be able to access MAID. We all know that would not be allowed to happen, but these are reasons why broader engagement is necessary.

Last, I will note the fatigue of first nations communities associated with engagement and consultation, speaking from my experience in British Columbia. There has been so much going on over the past several years that communities have had to contend with that asking for further consultation at this time on a highly charged topic such as MAID in general, and MAID MD-SUMC specifically, is daunting. First nations communities are more likely to want to discuss the youth suicide crisis than MAID MD-SUMC, and yet they must be consulted.

This committee has no doubt heard from other witnesses or is aware of some of the challenges that many indigenous people face in terms of the social determinants of health placing them in situations of vulnerability. Having a mental illness, living in inadequate or unstable housing, being underemployed or unemployed, and experiencing food insecurity can all contribute to physical and mental suffering, and assessments for MAID MD-SUMC will have to grapple with trying to tease out this type of suffering from that related to an incurable, irreversible mental disorder. How can the suffering be alleviated, especially in rural and remote settings where health and social services programs and resources are already scarce and inadequate?

Some of these issues are summarized in a statement from the expert panel's final report:

As a result of the creation of laws that provide access to MAiD, concerns have been raised by Indigenous leaders and communities that it is easier for people in their communities to access a way to die than to access the resources they need to live well.

In the interim report of the special joint committee from June 2022, I note some discussion on the issue of access to health services, in reference to all Canadians, including indigenous people in Canada, having equitable access both to MAID assessments if requested and to the health care services and programs they may need to prevent irremediable suffering. However, we must expand our understanding of “access” to mean not just having a health care professional team or services available to provide care in a reasonable amount of time. Medical care and attention can be impeded by people choosing not to access services because of, in this instance, anti-indigenous racism and discriminatory treatment. Indigenous people choose not to access health services out of a fear of how they will be treated. It will be imperative that cultural safety is assured in clinical care related to MAID and MAID MD-SUMC. This would include having access to both western medical and traditional healing and supports.

I thank you again for the opportunity to participate in the session today. I look forward to our discussion and encourage you to continue to seek out the perspectives of first nations, Métis and Inuit peoples and organizations in the work of this committee.

Thank you. Meegwetch.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Dr. Wieman.

Lastly, we'll have Dr. Barbès-Morin.

[Dr. Guillaume Barbès-Morin, Psychiatrist, Association des médecins psychiatres du Québec]

Good morning, members of the committee.

I think it is appropriate for me to address you in French.

My name is Guillaume Barbès-Morin and I am a psychiatric physician. I appear before you today as a representative of the Advisory Committee on Medical Assistance in Dying of the Association des médecins psychiatres du Québec. I have been working for 16 years as a general psychiatrist in a small community in northwestern Quebec near the Ontario border, called Rouyn-Noranda. It is a small community of 45,000 people, far from Montreal, Toronto and Ottawa.

I work with a general clientele consisting of both adolescents and people at the end of life, in a variety of clinical settings such as emergency rooms, hospitals and outpatient offices. I assess, at the request of their primary care physician, people with simple problems, as well as people experiencing extremely serious problems and who need support, medical follow‑up, and lifelong care.

I am also asked to sometimes act as a consultant in situations where people request medical assistance in dying and we're trying to determine if their mental state is interfering with their ability to make decisions. That's a clientele I'm familiar with as well.

I would like to present to you the position of our association's Advisory Committee on Medical Assistance in Dying.

First, it is essential for us that all stakeholders understand our role, which is not to promote medical assistance in dying in general, or when a mental health problem is the only medical problem at issue. As a matter of fact, we emphasize that there is no clinical justification for routinely refusing all requests for medical assistance in dying from individuals whose only medical condition is a mental health problem. In our opinion, people with such problems deserve to have their suffering heard and assessed, even in the context of medical assistance in dying. At the same time, we are very sensitive to the fact that this must be done properly, as all the committee's work demonstrates.

It is also fundamental for us to make clear that medical assistance in dying should never be considered an alternative to accessible and adequate mental health services.

On the other hand, I would like to mention one important element. In our view, the complexity inherent in such problems is not new. It is already well known to physicians who currently evaluate situations involving medical assistance in dying. These situations involve people who are often already very vulnerable in social and other ways. The vulnerability of people with mental health problems is not something new. Mechanisms already exist to take this into consideration, and clinicians already surround themselves with multidisciplinary teams to try and best assess all of the relevant factors.

It is also very important for our committee to make it clear that the mental health issues targeted by requests for medical assistance in dying are in fact very serious mental illness issues. For us, it is important to make a clear distinction between psychological and mental suffering, which is very present everywhere in our society, and serious mental illness. The latter is a very specific and fortunately very rare thing. In our opinion, it is important to make a clear distinction in all this.

I went through the exercise of trying to determine what proportion of my patients, in the course of my personal practice, might have been eligible for medical assistance in dying under recognized criteria. Of the hundreds of patients I've assessed in my 16 years of practice, I would say that only three or four could have been eligible. We are talking about people who were suffering from extremely serious problems. Unfortunately, they couldn't find relief in all the treatments we had to offer that were available to them. I remind you that we are talking about very serious cases here, which are fortunately very rare.

That is the point I was trying to make. I'll be happy to answer your questions.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Thanks to all of our witnesses for lending us their important recommendations and insights on a very complex and difficult matter such as MAID.

We'll go to our first round of questions. I remind members that each of you will have five minutes, unless you're sharing your time.

For the first round, we have Mr. Barrett for five minutes.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks very much, Madam Chair.

Thank you to the witnesses for joining us this morning and for providing us with their testimony.

I'd like to ask Ms. Cohen some questions.

Good morning, Ms. Cohen. How are you doing?

[Ellen Cohen]

Good morning. I'm very nervous.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

I appreciate that it can get one's nerves up when speaking with a joint committee of Canada's Parliament, but you're here as our guest and we're very interested in what you have to say.

I'd like to zero in on your comments about safeguards. During your time on the expert panel, what were the safeguards you recommended?

[Ellen Cohen]

One thing I felt strongly about is the fact that mental health legislation across Canada varies. In Canada, our mental health legislation allows for people to be legally held against their will and treated because of their illness. I think this needs to be looked at. I understand that you're the federal government, but I believe that, if the intention is to move forward with MAID as a treatment for mental illness, we really need to, as a country, look into the mental health legislation to ensure that the coercive situations and behaviours implied in the legislation are dealt with. We are people, and we need to be treated as such. We need to have laws that protect us, not laws that harm us.

I repeatedly raised concerns about MAID in this context, and I was not at all satisfied with the answers I received. There was really no space for any discussion about it.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

What were the answers you received? That is to say, why were your recommendations rejected?

[Ellen Cohen]

I understood it's because there are jurisdictional issues. I understand it's not Canada's responsibility; however, Canada does have the wherewithal to move forward to do something.

In B.C., there's an organization funded by the B.C. law society to look into the mental health legislation in British Columbia. This came about as a result of the UN rapporteur for persons with disabilities' scathing report on Canada's MAID regime, as well as mental health situations occurring in B.C.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

What were the safeguards recommended by the expert panel?

[Ellen Cohen]

There were none. I don't believe there were any safeguards recommended. They—

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Why do you think that is?

[Ellen Cohen]

The expert panel ultimately ended up recommending that, if a person is in a situation of involuntary confinement, it would be okay if, after six months, they wanted to apply for medical assistance in dying. They could do so. On one hand, we have the provincial government saying you cannot choose to be free, and, on the other hand, we have the federal government offering medical assistance in dying as a treatment.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

The last thing I want to touch on, quickly, is your resignation from the panel. Dr. Gupta told our committee that, despite your initial willingness to participate, you realized that, given your public opposition, you couldn't reconcile your personal position with the work of the panel.

Is that accurate?

[Ellen Cohen]

No, it's not at all.

From my first conversation with Abby Hoffman and Karen Kusch, I came into this saying that I do have problems with it; however, my community, the mental health community, the consumer movement, is very split by this. I have friends and family members who definitely believe that medical assistance in dying should be allowed for people who are prepared and who are ready to do it.

I've never said that I'm against medical assistance in dying for people with mental illness; however, that being said, vulnerable people, the majority of people with mental illness, live in poverty. We're talking about the upper-middle class and privileged people who may be applying for medical assistance in dying because of their mental illness.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Ms. Cohen.

We are a little bit over on that. Thank you very much.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Next we will have Monsieur Arseneault.

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

Thank you, Madam Chair.

Ms. Cohen, you said at the outset that testifying before us today made you very nervous. I can assure you that everyone here around the table is relatively nervous at the prospect of raising this sensitive subject before witnesses with so much experience. So I congratulate all the witnesses for being here today.

My first question is for Dr. Wieman.

Dr. Wieman, can you speak about the experience of the B.C. First Nations Health Authority in the area of MAID? Are you able to share any best practices or guidelines that the First Nations Health Authority has adopted with respect to MAID?

[Dr. Cornelia Wieman]

I should probably clarify that the First Nations Health Authority, in many cases, is not a direct medical service provider; however, we work in partnership with our regional health authorities.

We have most recently formed an internal steering committee to examine, look at and monitor the provision of MAID assessments and MAID itself in our province, although that work is just in the early stages. We have a couple of clinical nurse specialists who work for us in the office of the chief nursing officer, and they have liaised with MAID service providers to first nations people in British Columbia. That's, for example, where I have heard of several first nations people in British Columbia accessing MAID who met the eligibility criteria. The safeguards were in place, and they did receive a medically assisted death.

These are the positive examples, and, as I mentioned, of course that must be balanced with other people's hesitation and perhaps not being aware of medically assisted death in general, particularly when it comes to a mental disorder as the sole underlying medical condition coming up in terms of seeking a medically assisted death. That work really is ongoing.

I would say, from my experience on the panel, however, that one of my fellow panel members, also an indigenous physician, Dr. Sara Goulet, a MAID assessor and provider, described quite a terrific team—I can't think of a better word than “multidisciplinary”—that does not just provide MAID assessments in larger urban centres, but in fact travels to remote places to conduct MAID assessments and provision.

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

Thank you very much.

My next question is for Dr. Barbès-Morin.

Paragraph 241.2(1)(c) of the Criminal Code stipulates that to be eligible for medical assistance in dying, a person must “have a grievous and irremediable medical condition.” This means “enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable“, as the Code further states.

Are there treatments for some illnesses or mental health problems that the patient may consider unacceptable, but that could relieve intolerable suffering?