Medical Assistance in Dying Committee on Oct. 4th, 2022

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

I call the meeting to order.

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

I'd like to begin by welcoming the members of the committee and the witnesses, as well as those watching this meeting online. My name is Yonah Martin, and I am the Senate joint chair of the committee. I'm joined by 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.

I'd like to remind members and witnesses to keep their microphones muted unless they are recognized by name by one of the joint chairs. When speaking, please speak slowly and clearly.

Interpretation in this video conference will work like an in-person committee meeting. You'll have the choice at the bottom of your screen of either floor, English, or French.

Again, I'd like to welcome our witnesses for panel one, who are here to discuss MAID when a mental disorder is the sole underlying medical condition.

By video conference, we have three panellists as individuals: Dr. Marie Nicolini; Shakir Rahim, lawyer at Kastner Lam LLP; and Dr. Michael Trew, clinical associate professor, University of Calgary. Thank you to all three of you for joining us.

We'll begin with remarks by Dr. Nicolini, followed by Mr. Rahim, and then Dr. Trew. Each of you will have five minutes, which I will be timing.

Dr. Nicolini, you have five minutes. The floor is yours.

[Dr. Marie Nicolini, Senior Researcher, KU Leuven University and Georgetown University, As an Individual]

Thank you and hello.

I'm Dr. Marie Nicolini, and I'm pleased to be here today talking to the committee.

I'm a medical doctor and a psychiatrist with a Ph.D. in bioethics. I was trained in Belgium, where the practice of MAID for mental disorders has been permitted for 20 years.

Over the last five years, I've published a wide range of ground-breaking research on MAID for mental disorders in top journals in ethics and psychiatry. I've performed this research at leading bioethics institutions around the world, including the National Institutes of Health and the Kennedy Institute of Ethics at Georgetown University, and I've delivered invited lectures on this topic at top universities, medical centres and conferences around the world, such as King's College London, the University of Pennsylvania, the American Psychiatric Association and the world psychiatry conference.

My research has established foundational facts about how the practice of MAID for mental disorders is actually carried out, based on large sets of data on actual cases of MAID in the Netherlands. In addition, my research has also clarified the ethical questions raised by the practice, particularly with regard to women. I have made it a point to pursue this research from a neutral perspective that sets out to examine how eligibility requirements apply, what the standards are for those requirements and what difficulties they raise. My research has not taken a position for or against the practice of MAID.

Based on these extensive and highly detailed investigations, I have discovered two central challenges for the practice of MAID for mental disorders. I'll say these two and then explain each one in a bit more detail.

First, incurability or irremediability is always a core requirement for MAID, but we do not have a coherent account of what it means for a mental disorder to be incurable. Second, countries that have MAID continue to pursue suicide prevention programs, but at this time there is no principle to guide clinicians in determining whether MAID or suicide prevention is warranted in any given case.

On the first concern, with MAID for cases of physical disease, there is always a requirement that the condition must be incurable or irremediable. In cases of MAID for mental disorder, that requirement carries over, but we do not have an understanding of what it amounts to for a mental disorder to be incurable. We can take an objective approach that lists all of the available evidence-based treatments and their likely prognoses, but my research shows that prognosis cannot be predicted in psychiatry. Alternatively, we could take a subjective approach, as Canada has, whereby patients themselves determine whether their mental disorders can be remedied, but this does not allow us to filter out cases in which MAID has been requested on the basis of social conditions or social maladies like poverty, unemployment, gender-based violence or other inequities.

On the second concern, because countries that have MAID for mental disorder do continue to pursue suicide prevention programs, it is of the utmost importance to establish clear parameters for deciding when we should assist with a wish for death and when we should take steps to prevent it. At this time, there is no practical or conceptual guidance that characterizes the difference between these two kinds of situations.

These two problems pose a serious ethical liability for any government that chooses to legalize the practice of MAID for mental disorder. If we don't have clear standards for what is curable and what is not and for the difference between MAID and suicide prevention, clinicians must proceed on a case-by-case basis in their evaluations around this ultimate decision. The problem with a case-by-case approach is that decision-making is then based on clinicians' personal intuitions and unrecognized biases.

My research has shown that patients with mental illness who also have physical disabilities are more likely to be referred to the End of Life Clinic in the Netherlands, now called the Expertisecentrum Euthanasie. Paradoxically, persons who also had physical disabilities were less likely to be seen by a psychiatrist before death was carried out. I think we can all agree that this is an outcome and a liability that Canada should set out to avoid.

Therefore, based on my research, it is highly problematic to allow MAID for mental disorders before we clarify first what it means for a mental disorder to be incurable, and second, what it is that distinguishes a case of MAID from a case of suicide prevention.

Thank you, and I look forward to your questions.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Madam Nicolini.

Next we will have Mr. Shakir Rahim. You have the floor for five minutes.

[Shakir Rahim, Lawyer, Kastner Lam LLP, As an Individual]

Thank you, Chair.

By way of introduction, I'm a lawyer with a practice that includes human rights cases of provincial and national significance, including those that concern section 15, the equality provision of the charter.

I was intervenor and co-counsel in the case of Ontario v. G, a 2020 Supreme Court decision that applied section 15 in relation to mental disorder.

I am here today to offer my legal perspective, but I also note that I am a person who has lived with a mental illness for 18 years.

I will first explain how section 15 relates to MAID MD-SUMC, or mental disorder as the sole underlying medical condition. Second, I will discuss my view that the expert panel's recommendations comply with the spirit and letter of section 15 of the charter.

Subsection 15(1) confers the right to equal protection and benefit of the law. If a law makes a distinction in a discriminatory manner between persons on enumerated or analogous grounds, that is a subsection 15(1) violation. Mental disability is an enumerated ground.

A distinction is discriminatory if it imposes a burden or denies a benefit in a way that reinforces, perpetuates or exacerbates disadvantage. In the case law, the factors relevant to this determination are myriad and can include psychological or physical harm.

If Parliament passed legislation that created a separate MAID regime for those with a mental disorder and MAID was more difficult to access under that regime, that could violate subsection 15(1). This is because the regime would impose a burden on persons who seek to access MAID under the protected ground of mental disability.

However, section 1 of the charter permits a violation of subsection 15(1) if the state can establish it is within “reasonable limits...[that] can be demonstrably justified in a free and democratic society”. Whether this circumstance exists is assessed using the Oakes test: The state must have a compelling and substantial objective for the rights infringement, and the means chosen must possibly further that objective and interfere with the charter right as little as reasonably possible, and the benefits of the infringement must outweigh its negative effects.

In my view, the recommendation of the expert panel on MAID MD-SUMC conforms to the spirit and letter of the section 15 jurisprudence. I will highlight three reasons why.

First, the expert panel rejects the stereotype that those with mental disorders are the only group affected by concerns like incapacity, suicidality or the impact of structural vulnerabilities. The expert panel recommends that its safeguards, protocols and guidance apply to all clinical situations in which these and related concerns arise. The Supreme Court, in the case of G, emphasized how those with mental disorders lose their rights and freedoms specifically because of stereotyping about their propensities and capabilities. The expert panel's recommendation for a universally applicable approach precludes the application of that stereotype.

Second, flowing from the expert panel's observation about the universality of these concerns, it does not recommend a separate regime under the Criminal Code for MAID MD-SUMC. This approach reduces the risk of a subsection 15(1) violation, because there is no formal distinction made under the law in relation to mental disorder. To be clear, a distinction can also exist through the uneven application of a facially neutral law. However, a formal distinction would explicitly entail differential treatment and increase the risk of a subsection 15(1) violation.

Third, the expert panel endorses individualized forms of assessment. The panel emphasizes that case-by-case evaluations by MAID assessors of incurability, irreversibility and intolerability should be performed. This suggestion conforms to recent subsection 15(1) jurisprudence, which has recognized that an individualized assessment can be a less impairing alternative to a categorical form of treatment based on a prohibited ground of discrimination.

That concludes my opening statement. Thank you.

[The Joint Chair, Hon. Yonah Martin]

Lastly, we have Dr. Trew.

You have five minutes as well. Thank you.

[Dr. Michael Trew, Clinical Associate Professor, University of Calgary, As an Individual]

Thank you for inviting me to speak today.

With regard to a few words about my relevant background, I've been a clinical psychiatrist for 40 years in Calgary, with a special interest in the interplay between mental disorders and physical disorders. I am a clinical associate professor at the University of Calgary. I am the former chief medical officer of addiction and mental health at Alberta Health Services.

I chaired the Alberta Health Services non life-limiting expert panel from 2016 to 2018. I'm a member of the Canadian Psychiatric Association task group on MAID in mental disorders as the sole underlying medical condition. I am also a member of the Canadian Association of MAID Assessors and Providers, and I have provided psychiatric assessment primarily as it regards capacity in community settings.

In general terms, I respect and agree with the overall goals of Bill C-14 and Bill C-7,, along with the “Final Report of the Expert Panel on MAID and Mental Illness”.

In my view, mental disorders have long been seen as separate and distinct from physical disorders. I believe that any ongoing distinction between mental disorders and physical disorders in MAID-regulated legislation is unlikely to stand up to court review.

From my own clinical experience, I can describe cases that most people would agree represent appropriate use of MAID for people who have a mental disorder as their sole underlying medical condition. I can also report cases that most people would be very uncomfortable with if MAID for mental disorders were provided.

The challenge is to identify a reliable assessment system to make these determinations. Failure to generate such a system invites risks, including substantial variability from jurisdiction to jurisdiction, the risk of providing too much or too little MAID for mental disorders, the attendant ethical distress for providers and survivors, and MAID shopping.

In my view, the courts have judged on the most extreme cases, those with very strong and reasonable plaintiffs. These cases of extreme suffering and disability have established the principles that underlie MAID in general. Looking at them now, they seem relatively black and white, while some of the track two cases—and I anticipate many of the mental disorder as the sole underlying medical condition cases—will be very nuanced and grey in their details.

Not all of our requesters are or will be very reasonable. The level of complexity, combined with the current practice, which has emphasized for good reasons the independence of assessments, calls for some consideration of the processes and the expectations going forward.

The drive for MAID in the first place was largely driven by a person-centred, human rights-based approach. Bill C-14 largely focused on the question of not whether a person was going to die soon, but how and when they would die soon. I believe we have seen this taken up largely by individuals who are used to a high degree of personal control in their lives and choose to take this step at the time of their death. It has been very well received, and providers and survivors have attested to the relief and thanks that most would see as signs of success. The completion rate has been high in this group, once the formal request was made.

The anticipated situation for MAID with mental disorders being the sole underlying medical condition is very different. The Benelux experience reports a completion rate in the ranges of 0.5% to 4.5%, while our current overall Canadian completion rate in 2021 was reported to be 81%. This means an entirely different expectation is set for assessors, as well as providers, for those who request MAID for mental disorders.

I anticipate that this will be seen by some as being overly paternalistic. This may invite further court challenges unless the overlying administration is very carefully set and appropriate training is provided in concert across the country.

I appreciate the wording of the expert panel in describing shared decision-making. I believe we also need to build in the appropriate room for discussion between assessors after their first assessment in order to have the full opportunity to discuss these challenging cases. As noted above, while this is not explicitly banned in the legislation, the emphasis on independence of assessment leaves the impression that talking between assessors after their first meeting may not be acceptable.

I also appreciate the expert panel's recommendation for involvement of treatment teams as part of this expanded process.

I would recommend—

[The Joint Chair, Hon. Yonah Martin]

Sorry, Dr. Trew; would you wrap up shortly, please? Thank you.

[Dr. Michael Trew]

Sure.

I would recommend there be agreement on a waiting period after an application has been declined in order to avoid doctor shopping.

I'll stop there.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Thank you to our panellists.

We'll begin our first round of questions, led by Mr. Cooper. You have five minutes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Madam Joint Chair.

Thank you to the witnesses.

I will direct my questions to Dr. Nicolini.

We have heard from some witnesses in the Netherlands that the number of cases that have been completed involving mental disorders is very small overall, amounting to 1.3% of cases. In expanding MAID in the Canadian context, it has been suggested, having regard for the experience in the Netherlands, that the pool of persons who would seek to access this, and would do so successfully, would be a very small number.

Could you speak to some of the differences between the legal framework in Canada versus the Netherlands with respect to safeguards, and specifically with respect to the irremediability requirement?

[Dr. Marie Nicolini]

Thank you for your question. I'll briefly respond to the numbers.

The number is correct. The number of MAID cases for mental disorders has been fluctuating both in the Netherlands and in Belgium. It's 1% to 2% of the total number of cases. It is important to note that when we talk about MAID for cancer, for example, we're talking about 10% of cancer patients who request MAID, so it's a substantial number.

As to the second part of your question, the differences between the framework in the Netherlands and Canada, I will just say the main difference is the way “irremediability”, one of the key requirements, is being defined. The Netherlands adheres in their official guidelines to an objective account when they say that a clinician is supposed to assess a patient in light of their diagnosis and prognosis. My research has shown we cannot predict prognosis in psychiatry, so that account actually fails to function as a reliable account.

Canada explicitly endorses a subjective account. We have not started to determine what the standards would be for such accounts when we talk about mental disorders.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Would it be fair to say that it's not a fair comparison?

[Dr. Marie Nicolini]

I think that's right for that point, yes.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In your testimony you talked a little bit—and you just raised it again—about the issue of determining incurability. You also expressed concern or suggested it was problematic to assess cases on a case-by-case basis, as the expert panel recommended. The expert panel, on the question of incurability, spoke about determining it based upon “treatment attempts made up to that point, outcomes of those treatments, and severity and duration of illness, disease or disability.” In other words, it's been said that someone who is suffering from a sole mental illness, who hasn't gone for treatments, who just shows up and requests MAID, is not the type of patient who would successfully obtain a request.

Can you speak to that recommendation of the expert panel and any concerns you see from that standpoint?

[Dr. Marie Nicolini]

Could you briefly clarify the last point?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I'm just saying—

[Dr. Marie Nicolini]

I want to make sure I understand.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I'm just trying to understand your thoughts, essentially, on the recommendations of the expert panel, which were that yes, these cases can be decided on a case-by-case basis, having regard for the diverse number of factors unique to each individual patient, but that regard would have to be for the number of treatments and the success or failure of those treatments before MAID could be carried out.

In other words, this would not be happening overnight. This would be happening over a long period of time of assessment, treatment, and so on.

[The Joint Chair, Hon. Yonah Martin]

Answer very briefly, Dr. Nicolini.

[Dr. Marie Nicolini]

Yes, of course. We all agree that evaluations themselves are done by clinicians very comprehensively and in good conscience.

The point about there not being standards is important, because if we do not have standards for what it means for a disease to be incurable, we cannot determine whether a patient meets that requirement.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Dr. Nicolini.

Next we'll go to Mr. Maloney for five minutes.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

Thanks to the witnesses for their presentations.

I'm going to start with you, Dr. Nicolini.

I arrived a moment or two after you started your presentation. I heard something you said and want to clarify it as a starting point.

You said, later on, that you cannot predict prognosis in a mental health context. Did I also hear you say that assessments would be based on the personal opinions and intuitions of the physicians making the assessment?

[Dr. Marie Nicolini]

I said it is a finding of my research, based on the best practice.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Is your view, then, that there are no circumstances for somebody who has a mental illness in which the prognosis can be that the condition is permanent? Is that right?

[Dr. Marie Nicolini]

That is right.