Medical Assistance in Dying Committee on April 13th, 2022

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

I call the meeting to order, as co-chair along with member of Parliament Michael Barrett.

Good afternoon.

Welcome to meeting number two of the Special Joint Committee on Medical Assistance in Dying.

Welcome to the committee members, witnesses and members of the public who are watching the proceedings online.

My name is Yonah Martin, and I am a joint chair of the committee.

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

Madam Chair, excuse me. I'm hearing both you and the interpretation simultaneously. I don't know if anybody else is experiencing that as well.

[The Joint Chair, Hon. Yonah Martin]

Yes, I have it on English. You're right. I shall remember to take that off. Thank you. I'm sorry about that.

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

That's okay.

[The Joint Chair, Hon. Yonah Martin]

I think everyone did hear the echo but heard me nonetheless, so I will continue.

Is Mr. Anandasangaree [Technical difficulty—Editor] this time?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Madam Chair.

[The Joint Chair, Hon. Yonah Martin]

Okay, today we are starting our examination [Technical difficulty—Editor]

We're not hearing the sound in the committee room, so I'll just continue for now.

Today we're starting our examination of the Criminal Code relating to medical assistance in dying and its applications.

Before we begin, I'd like to remind members and witnesses to keep their microphones muted at all times—we have had a few technical difficulties already—unless recognized by name by the joint chairs.

I will remind you also that all comments should be addressed through the joint chairs. When speaking, please speak slowly and clearly, and interpretation in this video will work like an in-person committee meeting. You have the choice at the bottom of your screen of “floor”, “English” or “French”.

With that, I would like to welcome our witnesses.

From the Department of Health, we have Abby Hoffman, senior executive adviser to the deputy minister; Jacquie Lemaire, senior policy adviser, end of life care unit, strategic policy branch; and Venetia Lawless, manager, end of life care unit, strategic policy branch.

From the Department of Justice, we have Joanne Klineberg, senior counsel, and Jay Potter, acting senior counsel.

Thank you all for joining us at this important second meeting of the committee.

We'll begin with opening remarks shortly by Ms. Hoffman, followed by Ms. Klineberg. Each of our witnesses today has five minutes. I have a stopwatch next to me for timing all speakers and I will try to give you a 30-second warning before the end of your time.

With that, I would like to invite our first witness, Ms. Hoffman.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Chair, I have a point of order at the outset—

[The Joint Chair, Hon. Yonah Martin]

Yes, go ahead.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Very briefly, I would like about 15 minutes at the end to discuss committee business. I'm very appreciative of the witnesses who are here and I don't want to delay proceedings at this point, but close to the end of the meeting, Mr. Barrett and Ms. Martin, could we have about 15 minutes to finalize committee business?

[The Joint Chair, Hon. Yonah Martin]

Noted.

We will begin with our first witness, Ms. Hoffman.

[Abby Hoffman, Senior Executive Advisor to the Deputy Minister, Department of Health]

Thank you, Madam Chair.

Good afternoon and good morning to all of you.

When I addressed the committee last year, I drew on the government's annual report on MAID to provide a statistical overview of assisted dying in Canada. You have access to our latest report for the calendar year 2020, so I will note just a few key points.

In 2020, 7,595 individuals received a medically assisted death, accounting for 2.5% of all deaths in Canada. This reflects steady and expected year-over-year growth. MAID procedures as a proportion of all deaths will likely level off at approximately 4%.

Since the inception of MAID in Canada in 2016, these are the facts: The average age is 75. The most frequently occurring medical condition is cancer. The percentage of written requests resulting in a MAID death is approximately 75%. The urban-rural split is equivalent to population distribution. The proportion of requesters who have accessed palliative care is slightly more than 80%. The most common manifestation of suffering reported by requesters is their seriously diminished quality of life, including the inability to manage activities of daily living. As well, the proportion of provider-administered versus self-administered procedures, more than 99%, has remained more or less constant.

We know that the picture of MAID in Canada will evolve over time in light of the changes authorized in Bill C-7, We won't have comprehensive data available in the time frame of your review, but we have some insights from preliminary data for 2021 and anecdotal sources, including the following.

The number of MAID cases continues to increase, approaching 10,000 in 2021. Despite COVID, this was an increase of approximately 30%. Around 2% of those cases, or just over 200, involved persons whose natural death was not reasonably foreseeable. As expected, these individuals are slightly younger, and their predominant medical conditions are much more likely to be neurological in nature, such as Parkinson's, MS, or chronic pain.

We have been working on the new regulatory requirements for the provision of data about MAID. These will be in place by January 1, 2023. The new data will document MAID cases where the requester is not facing imminent death and cases where the requester approved for MAID has made an agreement with the provider for a waiver of their final consent.

The new regulations will also ensure reporting on the application of the strengthened safeguards that apply to cases when the requester's natural death is not reasonably foreseeable. These include consultations with an expert in the person's condition, the offer of available services and supports to relieve the person's suffering, and agreement by the provider and the person requesting MAID that the person has given serious consideration to these means.

We will be authorized as well to require MAID providers to collect and report information about the requester's race, indigenous identity, disability and other characteristics, providing that the individual consents. This will help establish the presence of any inequalities, including systemic inequality, in Canada's MAID system.

I'll say just a few words about cases in which natural death is not reasonably foreseeable. These cases are challenging because of the complexity of each requester's circumstances, the need for clinical analysis of each element of the eligibility criteria, and the application of rigorous safeguards. We have heard from some practitioners that doing these assessments is extremely difficult, which we anticipated.

To facilitate the consistent and safe application of the new legislative framework, Health Canada is funding the Canadian Association of MAID Assessors and Providers to develop resources for MAID practitioners. Over the next four years, CAMAP will develop and disseminate a nationally accredited MAID curriculum that will provide high-quality in-person and online training for providers across Canada. Modules will cover such topics as assessing for capacity to give informed consent, vulnerability, navigating complex cases and conditions, and MAID in the context of mental illness. We anticipate that this training program will help ensure high-quality services for Canadians and support the recruitment and retention of participating health providers.

I can speak further—

[The Joint Chair, Hon. Yonah Martin]

You have 10 seconds.

[Abby Hoffman]

Yes. Thank you.

I can speak further about research that we will also be supporting to complement the federal monitoring system.

We also want to review the various approaches to MAID delivery and oversight adopted across Canada to identify challenges and successes, which can then inform policy and planning.

Madam Chair, my colleagues and I will be happy to respond to your questions about MAID generally or the specific subjects of your review. Thank you.

[The Joint Chair, Hon. Yonah Martin]

You're right on time. Thank you, Ms. Hoffman. I know that you bring a lot of expertise today.

We will go to our first round of questions, which will be for five minutes each. We'll begin with Mr. Cooper for the opposition Conservatives, followed by a member of the Liberal Party.

I'm curious as to which—

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Chair, I have a point of order.

[The Joint Chair, Hon. Yonah Martin]

Yes, Mr. Anandasangaree?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I believe there are other officials. There is at least one other official who is able to do a presentation, in this case from the Department of Justice.

[The Joint Chair, Hon. Yonah Martin]

I apologize. I was too eager with round one. You're right on the next witness. Thank you.

[Jay Potter, Acting Senior Counsel, Department of Justice]

Good afternoon, and thank you, members of the committee. My name is Jay Potter. I'll be giving remarks from Justice Canada today.

I'm pleased to be here to support your review of medical assistance in dying. My comments will be consistent with those of Ms. Klineberg from last year and will provide an overview of the federal MAID framework and highlight some considerations that you may wish to bear in mind as you study the complex and important issues that are before you.

As you know, our law has evolved considerably since the 2015 decision of Carter by the Supreme Court of Canada. In less than a decade, the law's approach has transformed from an absolute prohibition on MAID in all circumstances to a sophisticated regime that permits it as a legitimate response to intolerable medical suffering, while also providing for eligibility criteria, procedural safeguards and a monitoring regime to protect vulnerable persons.

Thousands of Canadians have accessed MAID, most of whom did so under the initial framework set out by former Bill C-14. As you all know, that framework changed last year through former Bill C-7, which responded to the Truchon decision.

The most significant change made by former Bill C-7 was to eligibility criteria. The law now permits MAID irrespective of whether or not a person's natural death is reasonably foreseeable, but that concept is used to determine the procedural safeguards that will apply to a request. There's also a temporary exclusion for requests where a mental illness is the sole underlying medical condition, which will expire in March of 2023.

There were also a number of changes made to procedural safeguards, including providing for a waiver of final consent, which allows MAID to be provided to an incapable person in certain defined circumstances: specifically, where such a person has a reasonably foreseeable death and, while they had capacity, they requested MAID, were assessed and approved for it, had scheduled the procedure for a specific date and agreed with their practitioner to receive MAID on or before that date if they lost capacity.

As you move forward with your work, it may be helpful to recall that the framework governing MAID is shared between the federal and provincial governments. Parliament is responsible for the criminal law, which is the foundation for the federal framework, and the Criminal Code provides exemptions from offences of culpable homicide and assisting suicide so that practitioners and those who support them are not criminally liable for providing or being involved in the lawful provision of MAID. The criteria and safeguards form the key elements of those exemptions.

In contrast, the delivery of health services is generally a matter of provincial responsibility. This includes organizing access to MAID, the regulation of health care professionals and enforcement, whether that be at the professional disciplinary level or with respect to the enforcement of the criminal law. As a matter of health law, provinces or professional regulatory bodies could supplement the federal framework with additional requirements concerning MAID; however, they could generally not permit something that falls outside of the exemptions. That type of change would require federal legislation.

Relatedly, I would note that the issue of advance requests for MAID raises particular complexity in this regard. The criminal law exemptions are oriented towards a single point in time, which is when the practitioner administers a substance to cause a person's death or provides them with a lethal substance for self-administration. In an advance request scenario, a second point in time is relevant, too, which is when the request is prepared by the person who at that time is not immediately seeking MAID. This earlier point in time does not obviously involve the commission of a criminal offence that requires an exemption, so there's legal complexity in considering how the criminal law might provide for procedural safeguards or other requirements to govern it. Those would ordinarily be matters of health law.

Finally, in support of your study, I would remind the committee of the three reports of the Council of Canadian Academies. These were prepared pursuant to former Bill C-14 and address many of the issues that are before you. No doubt you'll also be interested in the forthcoming recommendations of the expert panel on MAID and mental illness, which was established last year to consider safeguards, protocols and guidance for the provision of MAID in those circumstances.

Those conclude my opening remarks. I'd be pleased as well, with my colleagues, to respond to the committee's questions.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Mr. Potter. Thank you for your patience as we continue.

For our first round of questions, we will begin with Mr. Cooper for five minutes. Mr. Cooper will be followed by Mr. Maloney. I will give a 30-second warning to all so that we can keep within our time.

Mr. Cooper, go ahead.

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

Thank you, Madam Chair, and thank you to the officials for being here.

As a starting point, can the officials from Health Canada or from the Department of Justice speak to any data on issues of non-compliance with eligibility and safeguard requirements provided for under the Criminal Code?

[Abby Hoffman]

Madam Chair, I'd be pleased to make some initial comments on this point.

While we collect, at the federal level, data on virtually every aspect of the requirements that are set out in the Criminal Code—and we publish that, as you know—the responsibility for actual oversight and compliance with the law is principally the responsibility of provinces and territories.

Each has its own particular methods of going about this. In some cases, for example, the medical examiner or the chief coroner's office investigates and reports on every single case. In other instances, there is some sort of dedicated oversight or review committee. In some cases, as well, there are provisions of the medical regulatory bodies that also have a role in the jurisdiction.

The number of cases of concern about compliance that we are aware of and which have been reported is very small. In the cases we are most familiar with, the provider in question.... By way of example, one case involved a practitioner who proceeded with a MAID case in an institution where there was concern about whether it was reasonable for that institution to allow that kind of access. That case was one of those that we know about in which the provider and the provider's behaviour were ultimately exonerated—

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

Thank you. I apologize, but my time is short. I appreciate your answer, but very simply, is there national data of any kind?

[Abby Hoffman]

No, there is not.