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

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

Thanks very much, Madam Co-Chair.

Professor Chandler, you mentioned in our first lightning round that you recommended a safeguard with respect to data collection and sharing among clinicians and assessors. Why is that important?

[Prof. Jennifer Chandler]

Sorry, data sharing among....

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

You mentioned that one recommendation of yours was that, should someone be shopping for an assessment after having been declined, the information would be shared. There would be a requirement for that information to be shared across assessors.

[Prof. Jennifer Chandler]

I think a person's history of requests for MAID could be relevant to a subsequent request. The reasoning for a refusal could be relevant to a subsequent assessment. There's always a bit of a trick. Someone could have applied the criteria too stringently and turned down someone who ought to be eligible. It can go both ways, but I think it's part of the whole picture, and it would help a subsequent assessor to see the kinds of considerations made by someone who did a prior assessment. One of—

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

Sorry, and please continue, but that's not in place now. Is that correct?

[Prof. Jennifer Chandler]

I think the way medical records are kept and shared depends on the jurisdiction and the legislation in place for the privacy of personal health information, which is at the provincial level. It might define circles of care in specific ways, so I don't think I could speak for all of Canada. What we said was that an assessor should be entitled to explore, with a requester, a range of collateral information. This might include talking to family members, if they have a good faith, bona fide reason to think it might be relevant and helpful, and also speaking with prior treatment teams.

A person can refuse, but the assessor should be able to ask. If they feel there's information they don't have access to that is pertinent to their assessment, they may be unable to reach an assessment of eligibility.

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

We've been conducting a study at the Standing Committee on Health with respect to our health care system across Canada.

You said it depends if this information is being shared, based on the state of each province.

Based on what we've heard from the health care community across this country, it's being shared poorly, various states of poorly, in each province. There are some best practices that could be applied, but we don't have any kind of pan-Canadian data sharing. Even within regions of our country, the sharing of that information is not happening.

Thanks.

[The Joint Chair, Hon. Yonah Martin]

I have three minutes for Monsieur Arseneault.

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

Thank you, Madam Chair.

Welcome, Ms. Chandler. Thank you for your answers. Feel free to answer me in your mother tongue.

The May 2022 report of the Expert Panel on Medical Assistance in Dying and Mental Illness concludes that each of the 19 recommendations can be fulfilled without adding new legislative safeguards to the Criminal Code, even in the case of a request for medical assistance in dying for patients with only mental disorders.

Do you agree with that claim?

[Prof. Jennifer Chandler]

Yes, I think so, as long as the various safeguards that we recommended are put in place at the level at which they can be put in place.

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

Thank you.

I will stay in the legal field, since that is your area of expertise.

Have you had a chance to analyze and compare what is happening in the Netherlands, Belgium and Luxembourg, for example? Do those countries have safeguards that we don't have for people with only mental disorders? Is it possible to make comparisons?

[Prof. Jennifer Chandler]

We have done some looking at what's done in the other jurisdictions. It's taken me back to the days of the CCA report in 2018 where we looked at this in a fair amount of detail. We looked at this in this report as well.

I think some of the concepts that we have here were borrowed from those other jurisdictions, such as the idea that in addition to capacity, we would want a request to be well considered, for example. This is suggesting that something in addition to capacity is required, something that is sufficiently stable and is not fluctuating too much over time. It's concepts like this.

We suggested that this idea of “well considered” should mean the person shouldn't be able to just reply, “Yes, I understand the information here.” They should be genuinely open to the possibility that a given treatment might actually help them.

These are the sorts of ideas that we've taken from looking at the way things are done in these other jurisdictions.

In addition, the Netherlands, I believe, has a committee that looks ex post at the cases, analyzes them and provides reports and practice recommendations. These are things we looked at as useful, which we could adopt here.

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

Let's stay in the legal realm.

According to recommendation 12 of the final report, the patient's assessment team may request that the question be pursued further, that additional information be sought or even that discussions be held with the patient's family members, for example.

This recommendation seems to suggest that a patient could even be denied treatment if they do not agree to further probing of their records. In your opinion, is there a line that should not be crossed in order to maintain patient confidentiality, in the case of a request for medical assistance in dying for people with only mental disorders? What are your comments on that line?

[The Joint Chair, Hon. Yonah Martin]

It's time, but just answer very briefly.

[Prof. Jennifer Chandler]

Yes, I think there are going to be cases where it would not be appropriate to go into a person's prior history. It may be risky. There might be difficult relationships with family members where a person might be put at risk. I think there are certainly going to be cases where there will be a line.

[The Joint Chair, Hon. Yonah Martin]

Thank you.

We'll next have the lightning round.

We'll have Mr. MacGregor for two minutes, followed by Monsieur Thériault.

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

Madam Co-Chair, I believe the Bloc might be in front of me.

[The Joint Chair, Hon. Yonah Martin]

It says you first. I think they've switched the order on the second round, so you can begin for two minutes and then Monsieur Thériault will do two.

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

Okay. I'll be very quick.

Professor Chandler, I think we've reached the point in the committee hearing where most of the good questions have been asked and answered.

Maybe I'll just use this opportunity to thank you for appearing and invite you to expand on anything you feel you needed a bit more time to explain.

[Prof. Jennifer Chandler]

Let me think. I had some in mind, but now I've forgotten what they are.

Perhaps, rather than take your time, I will see if I can recall them and come back to you in a moment. I can't think of them right now. I'm sorry.

[The Joint Chair, Hon. Yonah Martin]

Would you like Monsieur Thériault to ask his questions, then, Mr. MacGregor?

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

I'm fine, Madam Chair. If you want to go to Monsieur Thériault, and then maybe....

[Luc Thériault, Bloc, Montcalm, QC]

Thank you.

Earlier, I said that the recommendations in the report were guidelines of sorts. In fact, in each of the recommendations, they use the verb “should”. If it were considered as such, it could solve a number of problems.

Let's take recommendation 10. Even in the psychiatric expert community, there is resistance. The Association des psychiatres du Québec says we should go ahead, while psychiatrists have told us the opposite. This has led to Quebec deciding not to move forward on mental health cases.

In this recommendation, it is stated that it is imperative that the competent assessor, who is a psychiatrist, be “independent from the treating team/provider”.

Is this realistic, given the resources available, especially in the regions? Shouldn't this be more flexible? If it were more flexible, would it diminish the legitimacy or rigour of the assessment exercise?

[Prof. Jennifer Chandler]

That's an excellent point, and this is something that we struggle with a fair bit, recognizing that the number of people available to do assessments would be restricted certainly in small locations. We thought about the possibility, which expanded during COVID, of virtual and telemedicine assessments as well.

I think the problem you're raising is that every safeguard has a flip side to it. It increases the difficulty of access. It increases safety, while imposing barriers at the same time. There's an inevitable pairing of those things, so it has to be weighed in terms of whether the additional safety to be achieved is justified in light of the additional burdens it imposes.

A number of my colleagues felt it was quite important to have an independent psychiatrist to make sure there was a second view on things, independent of the type of relationship or other views that might accumulate in the treatment relationship. We also thought it was very important to have independent external assessors for people in particular circumstances that would raise the risk of coercion, such as people who are institutionalized or in prison, for example. I think there are some circumstances in which that independent assessment will be incredibly important, or even essential.

I don't think I can say any more than that, except that I think you're right; it will increase the difficulty of access.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

We've come to the end of the first panel.

You have taken all of our questions. Thank you very much for being here.

Go ahead, Mr. Anandasangaree.