Evidence of meeting #18 for Medical Assistance in Dying in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was disorders.
A recording is available from Parliament.
7:15 p.m.
Liberal
The Joint Chair Liberal Marc Garneau
Thank you, Mr. Rahim.
We'll now go to Senator Kutcher for three minutes.
7:15 p.m.
Stanley Kutcher Senator, Nova Scotia, ISG
Thank you, Chair, and thank you to all our witnesses for helping us with this study. It's very much appreciated.
My first question is for Mr. Rahim.
Thank you for your thoughtful presentation. Also, I appreciated your sharing with us that you are an individual who suffers from a mental disorder. That gives you a perspective that many others may not have.
In the study of logic, there is something called an ecological fallacy, which is defined as the situation in which an individual who is a member of a group can be deduced by the criteria shared by the group they belong to. Thus, decisions made on the basis of group membership are fraught with challenge and problems, so a case-by-case basis is the way to deal with that ecological fallacy.
Do I understand you correctly that in Canadian jurisprudence, the courts have directed us to address MAID on a case-by-case basis?
7:15 p.m.
Lawyer, Kastner Lam LLP, As an Individual
I would not go as far as saying that the court has created a direction specific to MAID that states that a legislative approach, when it comes to mental disorder or any other condition, must be on a case-by-case basis.
However, the section 15 jurisprudence recognizes that forms of treatment on an enumerated ground that are strictly categorical—for instance, all members of a particular group must be treated in this way because they have this characteristic or are at risk for particular vulnerabilities—may not pass constitutional muster.
To go back to my comments about the Oakes test and when a violation of section 15 (1) can be justified, there have been many cases that have recognized that a minimally impairing alternative—an alternative to saying that one group has to be treated in this particular fashion—is individualized or case-by-case assessment.
7:20 p.m.
Senator, Nova Scotia, ISG
Thank you very much for that clarification. The importance is the case-by-case assessment, from what I understand of what you said.
Dr. Trew, I wonder if you could clarify this for me. I'm a bit confused. We heard that the Canadian perspective on decisions on irremediability is patient-driven and subjective.
As a practising psychiatrist and MAID provider, would you share that perspective or characterization that in Canada it's the patient who makes decisions about irremediability, or would you share the perspective that the panel talked about, which is that decision-making should be shared between physician and patient and it's the combination of sharing between physician and patient that's the key issue here?
7:20 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
Thank you.
I think I like the wording of the expert panel for sharing. I think that is a bit of a shift from how most people read Bill C-14.
7:20 p.m.
Liberal
The Joint Co-Chair Liberal Marc Garneau
Thank you, Dr. Trew.
Senator Dalphond, you have the floor for three minutes.
7:20 p.m.
Pierre Dalphond Senator, Quebec (De Lorimier), PSG
My question is for Mr. Rahim.
In the G case, the Supreme Court said the case was going too far by a blanket exclusion and required some case-by-case analysis at least, to meet the test of hope, that there would be a safety valve, to a certain extent. The majority stated, and I quote: “Individual assessment does not need to perfectly predict risk — certainty cannot be the standard.”
Does that mean that some unpredictability with mental disorders, as with any other illnesses, does not invalidate, in the court's view, the perspective of case-by-case analysis?
7:20 p.m.
Lawyer, Kastner Lam LLP, As an Individual
In my view, for example, in some of the section 15 jurisprudence that concerns when an infringement can be justified and what a less minimally infringing measure could be, the court has emphasized that the alternative need not be perfect—that looking for certainty when trying to establish an alternative that does not contravene section 15(1) is not the test.
To the extent that this would be responsive to your question, Senator, I would agree: That is not how an alternative that's less minimally impairing is evaluated. It is not a standard of perfection.
7:20 p.m.
Senator, Quebec (De Lorimier), PSG
Thank you.
My next question is for Dr. Nicolini.
Doctor, I understand that you did not perform but studied assessments that could lead to MAID, but you have reviewed a lot of literature and research. You've said that 1% to 2% of the cases of MAID that are administered are related to mental illness, so that's a small percentage. Do you have numbers of how many requests were granted, the percentage of requests that were granted, and how many of those that were granted proceeded to completion?
7:20 p.m.
Senior Researcher, KU Leuven University and Georgetown University, As an Individual
I want to clarify that I've not just reviewed the literature; I've actually studied a large sample of Dutch cases in which we looked at patient characteristics, their evaluations, how the requirements were applied and so on.
The Netherlands is the only country, as I'm sure you're aware, that publishes patient-level case reports. They publish the cases that have already been performed—people who have already died. That means we cannot compare those who have died versus those who have requested and been denied.
7:20 p.m.
Senator, Quebec (De Lorimier), PSG
You have no data about how many that were requested were granted and, of those that were granted, how many decided to proceed at the end.
7:25 p.m.
Senior Researcher, KU Leuven University and Georgetown University, As an Individual
These are not data that are published by the Dutch government.
7:25 p.m.
Senator, Quebec (De Lorimier), PSG
So you have no idea about these things: You cannot say if there's a high level of people proceeding or a low level of people proceeding.
7:25 p.m.
Senior Researcher, KU Leuven University and Georgetown University, As an Individual
We can say something based on the data of the end-of-life clinic, the Expertisecentrum Euthanasie, but that is not what the government publishes: In fact, it's a characteristic of the practice, a matter of practice, that we do not know how many get granted and how many get denied.
7:25 p.m.
Liberal
The Joint Chair Liberal Marc Garneau
Thank you very much.
We'll now go to Senator Wallin for three minutes.
7:25 p.m.
Pamela Wallin Senator, Saskatchewan, CSG
Thank you very much.
I would like to hear from Dr. Trew and Mr. Rahim in response to a comment by Dr. Nicolini that we really don't have enough clarity on what the end stage of mental illness is, as we would in diabetes or cancer. I'm not 100% sure that I agree with that. I'm thinking that the end stage for far too many people is suicide, but I'd like the comparison to be clear.
If you have a cancer diagnosis and you don't want more treatment, yes, it's possible that a miracle might come along, a miracle cure, but you might choose to say, “No, I don't want that option. I don't want to live like this.”
Why is it not the same, then, if treatment is not acceptable to you, with a mental disability that you've taken treatment for, but you don't want to wait for some miracle cure that might come along? Are those two situations not roughly the same?
Dr. Trew, if you would, please begin, and then we'll hear from Mr. Rahim.
7:25 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
A couple of things cross my mind. One is that the statistics on death by suicide do not overlap terribly well with the statistics on chronic mental disorder—
7:25 p.m.
Senator Pamela Wallin
Okay.
7:25 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
—so men are three times more likely to die by suicide, whereas women are twice as likely to suffer from psychiatric illness. As an example, there is also a difference in the shape of the curve in terms of age.
I would very much agree with Dr. Nicolini that we need to work on our strategy for dealing with suicidality. There is still a lot of work to be done there.
I may have lost track.
7:25 p.m.
Senator, Saskatchewan, CSG
Yes, I am just trying to compare someone with a mental disability who is saying, “I'm at the end, I'm not waiting for the miracle”, which a cancer patient might do as well.
7:25 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
Sure. The issue then really does come down to how much is enough treatment.
If somebody has had really very little treatment from the perspective of an expert on a treatment that has a decent chance of making a difference, then we get really uncomfortable, yet if we're saying they have the right to say, “Well, I am not willing to try my third drug”, what do we do?
That's the dilemma, because from our perspective, it looks like the right to refuse is sort of absolute.
7:25 p.m.
Senator, Saskatchewan, CSG
Do we have time for a quick comment from Mr. Rahim?
7:25 p.m.
Liberal