Medical Assistance in Dying Committee on Sept. 27th, 2022

[Prof. Jennifer Chandler]

I understand French perfectly, but I will answer in English if that's okay with you.

Yes, I think we had in mind that these were recommendations that we thought would be good to adopt in order to allow for the safe unfolding of MAID-SUMC. One question is exactly which body in a federal state is best placed to put these kinds of things into effect, whether it can be done within the Criminal Code or regulations versus at the provincial legislative level or, in fact, with professional bodies or medical regulators, but I think we anticipated that the structure itself put in place—

[Luc Thériault, Bloc, Montcalm, QC]

So the recommendations will not necessarily end up in the Criminal Code. There could simply be a sunset provision that gives access to people whose only medical issue invoked to obtain medical assistance in dying consists in mental disorders. It will then be up to the practitioners conducting the assessments to ultimately apply these recommendations in their assessment.

For instance, I understand that any suicidal person in a state of crisis will never have access to medical assistance in dying, as long as they are in such a state. This strikes a chord in the collective imagination. People often wonder if we will end up giving access to medical assistance in dying to young depressed people. Yet that is not the case.

In other words, when we take the whole report into account, we see that, before it can be determined that a patient with a mental disorder meets the eligibility criteria for medical assistance in dying, it must be established that their disorder is chronic and that the patient has undergone a number of therapies, received therapeutic care and even taken medication over a long period of time, perhaps even a decade.

So there are plenty of people who could apply for medical assistance in dying that will ultimately be denied.

[Prof. Jennifer Chandler]

I think you're absolutely correct.

We had a long discussion. Could we talk about a certain number of treatments? Could we talk about a certain number of years of experience? We realized that it had to be a case-by-case evaluation given the heterogeneity of cases. But you're entirely right that it's not possible to establish the incurability, the irremediability, the fact that suffering cannot be alleviated without having tried quite a few treatments. That's what the expert panel says: that for the person who is in crisis, who is very early on in their experience, who has had no treatments, it will not be possible to establish that they meet the eligibility criteria.

[Luc Thériault, Bloc, Montcalm, QC]

Some psychiatrists have claimed that there is a treatment for everything, a treatment to relieve suffering in any psychiatric condition.

Isn't that based on something of a relentless treatment quest?

[Prof. Jennifer Chandler]

I'm sorry, but I'm not sure what you mean.

[Luc Thériault, Bloc, Montcalm, QC]

Could someone explain?

[Prof. Jennifer Chandler]

I understood the rest, but not that last part.

[The Joint Chair, Liberal, Marc Garneau]

There's a bit of an obsession with continuing with therapies.

[Prof. Jennifer Chandler]

Obsession. Thank you.

I'm not trained in psychiatry, so I hesitate to critique without that training. However, my observation as someone external to it is that hope and a dedication to the recovery of patients are frequently part of the psychiatric self-concept. Yes, I think it's important to believe that all is possible, but there are people who have been through an awful lot of treatment and who continue to suffer intolerably. So, this concept of the refractory intractable condition is out there, and after a certain amount of time, from what I've heard, it becomes more reasonable to predict that it might continue.

[The Joint Chair, Hon. Yonah Martin]

Next we will have Mr. MacGregor for five minutes.

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

Thank you so much, Madam Joint Chair.

Professor Chandler, I'd like to take this opportunity to thank you for appearing before our committee.

My question deals with treatments and a person's capacity to accept those treatments. The Criminal Code does make mention of an intolerable condition, suffering that cannot be relieved under conditions that they consider acceptable. I was hoping maybe you could inform the committee, or just walk us through the existing law and how it interprets this.

We're dealing with hypotheticals here. What if we had a hypothetical situation in which a physician knew of a treatment that might be beneficial to a patient who was suffering from a mental disorder and they had knowledge that the patient had applied for medical assistance in dying? How does the law work through that thorny issue of a patient perhaps feeling that a treatment is unacceptable and having made an application for medical assistance in dying?

I think these are some of the hypothetical and thorny issues that many committee members and indeed some of our witnesses have been struggling with. I'd appreciate any thoughts you could offer on those.

[Prof. Jennifer Chandler]

Yes. The crux of the problem is knowing whether the suffering can be alleviated. There are three criteria about this prognostication into the future. One is this incurability. One is the irreversibility of decline. One is the alleviation of suffering under conditions acceptable to the person.

The preceding two criteria don't refer to conditions acceptable to the person and the third does. The question then would be, if a clinician is aware of the treatment that they think would be helpful and that on balance is not unreasonable in terms of the burdens versus potential benefits and so forth, and a person was refusing it, what would happen?

The way our panel tried to approach this was by talking about the assessor and the requester coming to a shared understanding. It would be up to the requester to be able to refuse any treatment they didn't want to accept, but it might be under those circumstances, where there's a reasonable treatment available that the clinician thinks might actually help, that it's impossible for that clinician to come to the opinion that it is incurable or irreversible.

This is a tricky point. You asked me how the law would interpret this. We have proposals of how this law should be interpreted and our proposal is that under such circumstances it may not be possible for the requester to conclude that it is incurable, if there's something reasonable that hasn't been tried.

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

I appreciate that. Thank you very much.

This is my final question. We have this final report of the expert panel on medical assistance in dying for a mental disorder as the sole underlying medical condition. As a joint parliamentary committee, we still have our job to do. This area is one of the five major themes that was tasked to us by both the Senate and the House of Commons.

In that context, in your capacity and with the obvious expertise that you have, what would you ultimately like to see in this committee's report to the federal government in terms of recommendations? What areas do you think parliamentarians still have to address under this particular theme?

You made mention of the fact that mental health funding may be inadequate. I would agree with you and so would many others.

If you can elaborate on that part, it would be appreciated.

[Prof. Jennifer Chandler]

Certainly.

On the funding and resourcing in general, I would say the social support funding is very important as a safeguard.

I also think the recommendations we made in relation to both pre- and post-evaluation of files would be very useful. That's an important safeguard. That's in place in some of the other jurisdictions that have gone ahead. This helps to ensure transparency and promote public trust. That's very important. This, of course, has to be resourced as well.

The resourcing has to be in place for assessors to do a good job of this and to have the time and space to do this job properly.

The reporting recommendations that we put into the report are also essential. There will be a tricky balance to strike in terms of the privacy of the people involved, the level of detail that's being gathered and how much of it is to be made accessible. I think it should be made accessible for transparency and public trust reasons, but redacted as much as possible to preserve the privacy of the people involved. That's essential.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Professor.

We've come to the end of this time.

I'm going to turn it over to my co-chair, so we can do questions from senators.

Thank you.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Senator Martin.

Will will move on to questions from senators, starting with Senator Mégie.

You have three minutes, Senator Mégie.

[Marie-Françoise Mégie, Senator, Quebec (Rougemont), ISG]

Thank you, Mr. Chair.

Thank you for being with us, Ms. Chandler.

My question relates to the essential constitutional rights of people whose medical issue is only mental. What rights are affected if they are denied access to medical assistance in dying?

[Prof. Jennifer Chandler]

I think the rights that have been invoked in the cases so far are section 7, the right to life, liberty and security of the person, and also the right to equality, section 15. Both of those rights I think would be at issue if people are excluded. Section 15 would be discrimination on the basis of disability.

[Marie-Françoise Mégie]

Let's suppose our efforts result in a ban. Will it be possible to justify this restriction?

[Prof. Jennifer Chandler]

Yes. The way the charter is set up is that indeed one can have an infringement of a right, but those infringements can be justified under section 1 of the charter. A limitation on a right that's “reasonable...in a free and democratic society” is the language of section 1.

I can think of a potential justification, which might be that it simply.... We don't have the data to support this, and this is why it's so important to collect data. However, one could take the position that it is not possible to safely do the assessments that are required to distinguish between those who satisfy the criteria and those who do not, for example. That might be one justification.

I don't think we have the evidence that would support that argument at this point. We have lots of speculation that this is the case, but we don't have.... We have a lot of people saying, “We do these kinds of assessments of capacity in very high-consequence contexts with mental disorder already—the refusal of necessary treatment with fatal consequences—and so we can do capacity assessment.”

We don't exclude people who are vulnerable and marginalized from making decisions that might have fatal consequences. So it becomes really hard to justify the exclusion in this context when it's tolerated in a whole range of other contexts.

[Marie-Françoise Mégie]

Thank you, Ms. Chandler.

Thank you, Mr. Chair.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Senator Mégie.

We are continuing with Senator Kutcher.

Senator, you have three minutes.

[Stanley Kutcher, Senator, Nova Scotia, ISG]

Thank you.

I think Senator Mégie suggested that I could get her extra minute.

Is that okay with you, Chair?

[The Joint Chair, Liberal, Marc Garneau]

No, you have three minutes. We've clarified the rules.

[Stanley Kutcher]

Okay.

In a brief submission to the Senate Standing Committee on Legal and Constitutional Affairs in February 2021, Sheppard and Jones of McGill addressed the access to MAID. They wrote:

The express exclusion of persons with mental illnesses undermines substantive equality by reinforcing and perpetuating stereotypes about persons with mental illnesses and [thus] disadvantaging them.

I'd like your thoughts on that statement in terms of charter rights.

As another thought, we talked about treatment being unacceptable to people with a sole mental illness and choosing not to accept it. Are there instances in other conditions, such as cancer treatment or pain treatment, where people will say, “No, I've gone through all these treatments and there may be another treatment possible. Who knows, it may work or it may not work. It may be experimental, and I just do not want to have that.” Cancer patients can say they do not want to have that treatment.

I'd like to keep it in the context of what else happens in that instance.