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.
6:55 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay, thank you.
Dr. Trew, do you agree with that position?
6:55 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
I don't agree with that as a blanket condition, no.
6:55 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Are you of the view that there are situations in which you can predict the prognosis for a patient who has experienced severe mental illness?
6:55 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
Prediction is always a question of probability, and psychiatry is the same as the rest of life. I think there are certainly cases in which there's an extremely high rate of probability that this particular condition is not going to remediate.
Part of the struggle for everyone is.... What has also been discussed is the question of what new kinds of things are coming down the pike, whether it's ketamine or certain kinds of brain stimulation or whatever. That is the case for anybody who comes to a MAID panel.
Honestly, the best predictor of the future is the past. Someone who has attempted or gone across a wide range of treatments without response.... I think there's a point where we would take that as being a reasonable conclusion.
6:55 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay, thank you.
That leads me to my next question. I want to pick up on something Mr. Cooper was touching on.
If I understood him correctly, he suggested there might be a risk that a patient who is experiencing mental illness and who has not undergone treatment could be allowed to access MAID. Is that a reasonable risk, in your opinion, Dr. Trew?
6:55 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
I think the devil is always in the details. In this case, it's the details of what the arrangements are for assessment.
It shouldn't be the case that somebody who has not had reasonable trials can proceed with MAID—in my view, anyway. However, there is this issue of the legislation saying that if the treatment is not acceptable to the patient, you can't force them. I think there needs to be some clarification on a minimum amount of treatment before you can proceed to medically assisted death.
6:55 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
That's very fair and helpful, actually.
In your opinion—or Dr. Nicolini, for that matter—what's the likelihood of a doctor making a determination that MAID was appropriate for somebody who refused treatment who had not ever received any treatment? I would think it's somewhere between zero and unlikely.
7 p.m.
Clinical Associate Professor, University of Calgary, As an Individual
It's certainly unlikely.
Part of the difficulty is that historically, so much of the drive for medically assisted death has been based on individual human rights. Again, we're moving from a group of people who were likely to die soon, and everyone felt this was a reasonable thing to do for them, to a very different group for whom the probability of proceeding is actually low. Doctors, like everyone else, don't like saying no.
7 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thank you, Dr. Trew.
That's all my time. I appreciate it.
October 4th, 2022 / 7 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you, Madam Chair.
I will address Dr. Nicolini first.
Dr. Nicolini, I very much enjoyed the text because, in my opinion, it raised some fundamental issues. However, I felt that your concerns were reflected within the expert panel's recommendations.
What are your thoughts on that?
7 p.m.
Senior Researcher, KU Leuven University and Georgetown University, As an Individual
I will respond in English.
What I have stated is not a matter of personal opinion; they are my conclusions based on the extensive research that I have done. I had started researching this area when I was practising in Belgium and I decided to pursue neutral research on this topic. The conclusions that I bring today take a stance, but they are based on the neutral research that I've done before.
If there is time, I would like to respond to an earlier point about prognosis prediction in psychiatry, because I'm afraid I disagree—
7 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
I'm sorry to interrupt you, but I don't have much speaking time and I'd like to give the others a chance to ask questions.
That was my first question.
You've seen the panel's report that issues recommendations supporting a number of precautionary principles, particularly with respect to suicidality. It clearly states that the assessor could not receive a request for medical assistance in dying from a person in crisis. Individuals with mental disorders who are in a period of crisis would therefore be disqualified.
Here is a quote from the panel's final report:
In any situation where suicidality is a concern, the clinician must adopt three complementary perspectives [when they become clear]: consider a person's capacity to give informed consent or refusal of care, determine whether suicide prevention interventions—including involuntary ones—should be activated, and offer other types of interventions which may be helpful to the person.
In this report, they were undeniably able to distinguish between people struggling with suicidality and recommendation 8.
I found the concept of consistency, which you mentioned, to be meaningful. In fact, I found it in the report.
Recommendation 8 states: “Assessors should ensure that the requester's wish for death is consistent...unambiguous and rationally considered during a period of stability, not during a period of crisis.”
The report also talks about durability over time. Multiple attempts are made.
Witnesses who have testified before the committee told us that, even in the case of so-called Track 2 or physical conditions, it's almost impossible to establish a clear and irremediable prognosis.
7 p.m.
Senior Researcher, KU Leuven University and Georgetown University, As an Individual
To the point about prognosis, my research has shown.... We have actually, my co-authors and I, extensively looked at the question of prognosis prediction in psychiatry, looking at treatment-resistant depression as a paradigm case, looking both at clinicians' predictions and precision medicine. The conclusion is that we cannot predict prognosis. Contrary to what Dr. Trew was saying, the state-of-the-art science says that even when we use precision medicine, the best prognosis prediction in the long term is at the level of chance. That is what the science says. That is what has been published on this topic.
To the point about suicidality and autonomy that you're raising, I want to say this: Even if we agree, and we can, that some cases of persons with mental illness who have a wish to die warrant our compassion and assistance, we need to reckon with the fact that other cases of persons with a mental illness who want to die will warrant suicide prevention. No one believes that MAID should replace suicide prevention. The problem is that we don't have parameters to decide when to accept and when to reject patient autonomy on this.
It's helpful to clarify that when we talk about autonomy and if we want to be serious about autonomy, we talk about informed consent. The trouble is that many cases of patients who today receive suicide prevention meet the requirements for informed consent, so if we want to be serious about patient autonomy and if we want to legalize MAID for mental disorders, we first need to have a major overhaul of the way we do suicide prevention.
7:05 p.m.
The Joint Chair Hon. Yonah Martin
Thank you very much.
We now go to Mr. MacGregor for the next five minutes.
7:05 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you, Madam Co-Chair. Thank you to all of our witnesses for being with us today.
Dr. Nicolini, I'd like to start with you. I was taking notes during your opening statement and your remarks on the difficulties with establishing incurability and irremediability, and also the need for guidelines for suicide prevention, etc. I think no one would disagree with you on that.
With the way our Criminal Code is currently written, if you look at medical assistance in dying and the definition of a grievous and irremediable medical condition, you see that it does mention that it has to be a serious and incurable illness. It also does mention that there has to be an advanced state of irreversible decline. Paragraph 241.2(2)(c) also mentions that the condition has to be intolerable and also that it cannot be relieved under conditions that they consider acceptable.
There might be some potential conflict between those paragraphs because you may, hypothetically, come up with a treatment, but the patient may find that the treatment is not an acceptable one and may not believe that it can relieve their conditions properly. Do you have some thoughts?
I'm probably asking you the same question in a different form, but can you expand on that apparent conflict?
7:05 p.m.
Senior Researcher, KU Leuven University and Georgetown University, As an Individual
Another way of saying what I've said before is that what's peculiar about mental disorders is that the staging models we have do not correlate with prognosis. When we talk about something incurable or irreversible, what we know is that someone can rate very high on that staging model, and that in no way correlates with long-term prognosis. That is another way to speak to the prognosis question.
Of course, it's not just a matter of prognosis and uncertainty, as I've said before. It's a matter of having adequate standards for what we call an incurable mental disorder. That is a whole different kind of issue we have in mental disorders that we do not have in physical disorders.
We do know, for example, what the standards for end-stage diabetes are. We may not know if someone.... For sure, there might be uncertainty about the prognosis, but we do have those standards about what we define as end-stage diabetes. We do not have that for mental disorders.
7:05 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you.
Mr. Rahim, I'd like to bring you into the conversation. I appreciate your opening remarks, particularly on section 15 of the charter, which states that everyone is deserving of equal protection and benefit of the law.
You've heard the conversation so far in this panel. You're well aware of the expert panel report that we have each read. If you look at the job that we as parliamentarians have on this committee and the recommendations we're going to be making to the federal government, is there anything in particular you would like to see included in that report, particularly with this thematic area of mental disorders as the sole underlying medical condition?
I know the expert panel felt that existing guardrails in the Criminal Code were adequate and that it was up to practitioners and the provinces and medical associations to develop these standards, but is there anything the federal government has not yet addressed appropriately in this area that you think this committee should be recommending?
7:10 p.m.
Lawyer, Kastner Lam LLP, As an Individual
One thing that comes across to me, and it came across in some of the prior panel's proceedings, is the distinction between some terms in the code as being legal language versus medical language, and how that affects the clarity of understanding of what those terms mean and what they entail.
As a court or a lawyer, you're faced with a set of facts and a decision that has been made according to a particular legal standard, and you try to determine whether those facts fit into that standard. What I would take away from this discussion and the panel's deliberations is the importance of this committee recommending that there be, as much as possible, clarity and specificity in whatever is developed, whether at the provincial level or by regulatory bodies. This is with respect to standards on what constitutes something that is incurable, irreversible or what have you.
I think the expert panel's report goes a long way in setting that foundation. In my view, the deliberations here and in other committee meetings have illustrated that it's necessary to go further, if only to ensure that when courts are faced with trying to apply these legal standards to a particular set of facts and a particular approach taken by medical professionals, they also have some tools before them to assess that and aren't left in a situation de novo when they're trying to answer those questions.
7:10 p.m.
The Joint Chair Hon. Yonah Martin
Thank you very much, Mr. Rahim.
I'm going to turn this over now to my co-chair for questions from the senators.
7:10 p.m.
Liberal
The Joint Chair Liberal Marc Garneau
Thank you, Senator Martin.
We will now turn to questions from the senators, starting with Senator Mégie.
Senator Mégie, you have the floor for three minutes.
7:10 p.m.
Marie-Françoise Mégie Senator, Quebec (Rougemont), ISG
Thank you, Mr. Chair.
My question is for Dr. Nicolini.
Dr. Nicolini, you stated earlier that the prognosis for an irremediable condition is based on probabilities. According to other experts who have appeared before this committee, only a small proportion of the total patient population would qualify. We're talking about people who have been ill for many years and have had many treatments, most of which have not been very effective.
What are your views on this? What do you think, not about the irremediable condition, but rather about the status of those patients?
In your opinion, could they meet the criteria required to receive MAiD?
7:10 p.m.
Senior Researcher, KU Leuven University and Georgetown University, As an Individual
This goes to my point earlier.
I agree that a number of patients—in fact, many patients—will have a long history of prior psychiatric treatment. The question for individual MAID assessors is knowing whether or not they will truly not recover. That is what it means to meet the irremediability requirement.
When we look at the evidence in the literature and the trials that have looked at [Technical difficulty—Editor] with a set of patients who all meet those requirements of serious disease at the onset, and again, as I said earlier, that correlated in a way with their prognosis: The majority of these cases got better and a significant minority did not, so that is true.
The question is, how can we be sure? What kind of prognosis certainty do we have? As I said earlier, as things stand, we are close to chance level.
7:10 p.m.
Senator, Quebec (Rougemont), ISG
Thank you.
Mr. Rahim, I believe we spoke earlier about basic constitutional rights. You told us that denying MAiD for people with a mental disorder as their sole condition would violate section 15 of the Canadian Charter of Rights and Freedoms. That will likely happen.
What could we do or what could we include in the report to provide guidance and ensure that it doesn't happen?
7:15 p.m.
Lawyer, Kastner Lam LLP, As an Individual
I think if the report included some specific consideration of the application of section 15 to the group of people who are seeking medical assistance in dying just on the basis of mental disorder and discussed—for example, drawing from some of the section 15 case law, such as the case in G—why an approach that either categorically excluded those living with mental disorder or applied a significantly more onerous regime upon them would raise equality concerns, that could go some way.
In my view, for the reasons I outlined in my remarks, I think that the expert panel's report has inherently incorporated those considerations in the way it has gone about thinking about the issue.
I know the panel report itself does not go into detail about how its recommendations conform to section 15, but things like the role of individualized assessment and the elaboration as to why the concerns raised are relevant for people with all medical conditions, not just those with mental disorder, are hallmarks of an approach that is ensuring that those with mental disorder are not stereotyped. It's a hallmark of an approach that takes into consideration the fact that categorical treatment that does not account for individual variance and difference in a group can ground, in part, a section 15 violation.
I think emphasizing those points would go some way to addressing that.