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

[Prof. Jennifer Chandler]

I'll take your second question first, and say I think that's entirely correct that a cancer patient is allowed to decide they are done with treatment. Someone on dialysis is entitled to say they are done with treatment, including if they have mental disorder.

Listening to my colleagues who are psychiatrists, if someone is refusing a treatment that has a very good profile in terms of benefits and potential risks, there will be scrutiny to ensure there's full understanding and so forth. However, it still remains that a person can refuse it.

[Stanley Kutcher]

That's in reference to medicine. It's not unique to psychiatric cases.

[Prof. Jennifer Chandler]

Exactly.

Could I trouble you to remind me of your first question?

[Stanley Kutcher]

It was on whether that statement about substantive equality perpetuates stereotypes and disadvantages people with a mental illness.

[Prof. Jennifer Chandler]

Yes. I think that's certainly a view that I'd endorse as well. If we are excluding people solely on the basis of a certain kind of disability, one has to ask the question why. It has to, in some way, be based on the suspicion that even if they're capable, they maybe have a diminished capacity. So there's a signalling that perhaps their ability to assess their own circumstances and options is suspect, whereas it wouldn't be for someone with a different kind of disability.

That does have the potential for fostering stigma about mental disorder, that their views are not to be taken as authentic and entitled to equal weight and credit as that of others.

[Stanley Kutcher]

In terms of that particular perspective, could it be possible that a physician or a psychiatrist who feels that a person who is completely competent and may make a decision about MAID could be stigmatizing that person, maybe inadvertently, that they are not competent or that they can't be treated like any other Canadian?

[Prof. Jennifer Chandler]

It's possible, yes.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Senator Kutcher.

Senator Dalphond, the floor is yours for three minutes.

[Pierre Dalphond, Senator, Quebec (De Lorimier), PSG]

Thank you, Mr. Chair.

Ms. Chandler, you are an expert not only on law, but also on ethical and political issues. My question is about framing, as there are some concerns about that. For instance, there is a concern that the standards will not be applied in the same way from region to region or from province to province.

Do you think this calls for us to enact more regulations, since the report is not about making amendments to the Criminal Code? If so, will that be done by the provinces, by the federal government or by professional bodies?

Without regulating everything, what should be left to ethics?

[Prof. Jennifer Chandler]

This is a difficult question, but a critical one.

[Pierre Dalphond]

But you're an expert.

[Prof. Jennifer Chandler]

I think this is sufficiently new to Canada and excites sufficient concern amongst the public that it would be important to try to harmonize to the greatest extent possible the process and the safeguards across the country. In a federal state, that's difficult. I was rereading again what we said about the interpretation of these legal terms in the Criminal Code, asking myself if something could somehow be put into the code about those interpretations. We define many legal terms. Could we try to define some of those terms more clearly within the Criminal Code? That would be helpful, but it would be awfully difficult, especially given the nuance that we've tried to explain in terms of the meaning of “incurable”, “irreversible” and so forth. I don't think it's impossible, but it's a possibility.

Short of that, I don't think it's possible to put a lot into the regulations because the current code delegates the power with respect to monitoring. Perhaps a greater delegation could allow for more detail to be put into the regulations under the Criminal Code. That might be another way, but of course, then you run into the difficulty of the federal government starting to do too much that looks a little too much like health care. You have, in the Government of Canada, many of the best Canadian constitutional lawyers who can advise you on just how far you can go in terms of that.

That leaves this: Where else should it go? If we leave it to the provinces, the provinces may not be consistent. They may take varying approaches. I think that a lot can be done by asking for professional associations, for example, of psychiatrists, of MAID providers and so forth to promulgate guidelines, because these offer a very important regulatory effect. Even if they're not laws, people who don't abide by what is clearly the standard of care expose themselves to malpractice claims and all sorts of things.

There are various ways to impose law without having it in the Criminal Code. The question is this: Can you get all those things properly enacted to apply nationally? I believe there are steps well under way to do that just now with CAMAP and with others. I think that's another way to provide the kind of cross-country protection that would be advisable here.

[The Joint Chair, Liberal, Marc Garneau]

Thank you.

[Pierre Dalphond]

I would like a clarification, Mr. Chair.

Could the witness send us the reference to the regulations that were just amended and would go into effect in January?

[The Joint Chair, Liberal, Marc Garneau]

You mentioned....

[Prof. Jennifer Chandler]

Yes. I don't have a copy of it myself, but if you go to the website of Health Canada, you can see that the regulation that was passed in 2018 for the reporting requirements sets out the fields of what must be reported. It says that there's a new one coming to respond to the change of the law in 2021. This is a discussion that we also had in the committee about other things that should go into it.

[The Joint Chair, Liberal, Marc Garneau]

I don't want to interrupt you, but the analyst will provide it to all of the committee members. She has access to it. Thank you.

We'll go to Senator Martin for three minutes.

[The Joint Chair, Hon. Yonah Martin]

Thank you.

Thank you for being here.

You noted that adequate funding is a necessary safeguard for MAID MD-SUMC and for both social supports and assessors. For clarity, does that mean that MAID should not be available to someone who has not been able to access treatment due to a lack of funding?

I ask this because we've heard at this committee there are people on five-year-long waiting lists for specialized treatment, so funding is a key issue, but what do we do in that case? If that's not the case, how is funding a safeguard, and would we require a change in legislation in order to offer MAID to those who are waiting for treatment? There are a lot of complexities.

[Prof. Jennifer Chandler]

I would distinguish between access to treatment and access to social supports—housing support, income support and things like that—because, if a person has not already undergone extensive treatment, so has necessarily had access to a lot of treatment already, it won't be possible to conclude that their condition is incurable, their decline irreversible and so forth. It's this wait for treatment itself that forecloses people from access to MAID, because they won't have that track record of experience in treatment to demonstrate that it didn't work.

My comments about funding were directed more to the section of track two that refers to exploring available community supports. We recommended that, for those community supports, the language in the law be interpreted to include things like housing, income support and so forth. I was speaking to those kinds of things in terms of ensuring that reasonable provision is made for them while understanding that, in some cases, they might help alleviate suffering, and in others, they might not.

[The Joint Chair, Hon. Yonah Martin]

In terms of funding for assessors, are you concerned that the complexity surrounding sole mental illness might lead to inconsistencies and perhaps even to MAID being misapplied, depending on who the assessor is? How can we ensure the inconsistencies are not there, case by case?

[Prof. Jennifer Chandler]

My expectation is that there will be a relatively small group of people in this practice area who will be speaking with each other, comparing notes and developing best practices. These are the kinds of things we've recommended be done, certainly, to ensure the professional development of all the people working in this area.

In a way, the likelihood of a relatively small number of people being involved has a downside, in the sense of access. It might be very hard for people to get an assessment for MAID in this context, but it also means that a small group will be able to professionally develop and compare notes, and, in so doing, address concerns about inconsistency.

[The Joint Chair, Hon. Yonah Martin]

You said it will take time to make it available, so I'm curious about the looming March 2023 deadline. Are you concerned about the time frame? It's a big country.

[Prof. Jennifer Chandler]

It is coming quite quickly; it's true.

I come back to what I've heard from people practising in this area. They are already doing assessments in the context of track two, and the many kinds of considerations we're discussing here are shared with all track two assessments. They have been developing track two processes for a certain number of months, and they're already assessing capacity in the context of mental disorder, not just on track two but on track one.

This is not starting from nothing, shall we say. There is a certain amount of experience developed already.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Professor Chandler.

I'm going to turn it back to my co-chair.

[The Joint Chair, Hon. Yonah Martin]

We're going to have a second round, and we're going to go back to Mr. Barrett for three minutes.