Medical Assistance in Dying Committee on April 13th, 2022

[The Joint Chair, Hon. Yonah Martin]

I'm sorry, but these are two-minute slots. I'm assuming that we can continue with some of these answers later, but we have Mr. MacGregor scheduled next for two minutes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Co-Chair.

Mr. Potter, you have clearly illustrated the challenges that are before us if Parliament decides to approve advanced directives for medical assistance in dying. The practitioner is going to have to have confidence that the directive was done in a sound manner. An incredible length of time could have passed between when the directive was first made and when MAID is administered. It could have been made in a different provincial jurisdiction, etc.

My specific question to you is—and my time is limited—what kinds of challenges specifically do you see the criminal law having with an evolved understanding of diseases? Our medical understanding of living with various mental illnesses has evolved over the decades, and how do you think the Criminal Code could appropriately take that into account? With our evolved understanding, in maybe 10, 20 or 30 years from now there may be different ways of helping people cope through various mental illnesses that under our current regime may qualify them for medical assistance in dying. How would an advanced directive take that into account through the Criminal Code, or is that something the provinces are going to have to take into account?

[Jay Potter]

At a very high level, what I would offer you is that the provisions of the code are designed so that they're sort of condition-agnostic, so to speak; they don't focus on particular medical disorders or one disease or the other.

As part of the safeguard regimes, for example, Bill C-7 added that a person be offered consultations and has given serious consideration to other means of alleviating suffering. That type of language in a safeguard can evolve as treatment options evolve and as our understanding of illnesses evolve. What might be a treatment option in 2022.... Maybe we will have more treatment options in 2042, for instance.

The safeguards that are drafted in the current code may be able to evolve with the times, but if you're thinking about safeguards more generally for anything, it's important to bear in mind that you may not want something that only addresses one particular type of condition, because then it may be difficult to apply across a broader range of circumstances.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Mr. Potter.

We'll return to the next person with a five-minute round. It will be Mr. Arsenault, followed by Mr. Thériault.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Madam Chair.

Of course, by the time we get to the end of the list of speakers, all the best questions have already been asked.

First of all, Ms. Hoffman and Mr. Potter, I want to tip my hat to you and your respective teams for your strong testimony and command of the subject.

And then I would like to ask you to send to our clerks, by the end of all our work, any data that becomes public and that the committee has not yet seen.

Of particular interest to me today is the relationship between palliative care and requests for MAID. According to the data you presented, not all patients seeking MAID have necessarily received palliative care. Can you go back to those statistics? I thought I heard that 17% of requests for MAID came from people who had access to palliative care and that the rest came from people who did not receive palliative care. Did I understand correctly?

[Abby Hoffman]

Mr. Arsenault, I apologize if what I said was a bit confusing. I have a couple of points.

First of all, the overwhelming majority of individuals who make a request for MAID and who receive MAID have had palliative care—not just access to palliative care, but over 80% have had palliative care.

Of the remaining group who have not had palliative care, the overwhelming majority had access to palliative care if they had wished to pursue it, but for whatever reason, they didn't want to, likely because it was very close to the end of their life. We're now talking about data that pertains to people whose natural death is reasonably foreseeable.

The 17% that I referred to was the proportion of MAID practitioners who are palliative care physicians. I was just making that point in the context of the relationship between palliative care and the practice of MAID and noting that there is now agreement among a substantial portion of the palliative care community that MAID is a legitimate practice that should be offered to people and responded to when a person requests it.

Now, having said all that, I'm not going to say that palliative care in Canada is perfect and that every person who has palliative care gets the amount and duration of palliative care they need. There are still many issues in terms of access to palliative care for people who are living in their own homes, who do not need to be hospitalized or who are living in institutional settings other than a hospital. Those are still big gaps that need to be filled.

I hope that clarifies the—

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, your answer clarifies many things. I had understood almost the opposite.

As you said, Ms. Hoffman, when we talk about a patient in palliative care, it can be someone at home receiving mobile palliative care provided by a nurse, a person residing in a private hospice or a person at the end of life on the palliative care floor in a hospital. Is there any data on these three categories of palliative care?

[Abby Hoffman]

Yes, we do. I cannot cite it off the top of my head, but a very robust study was done by the Canadian Institute for Health Information and published in 2018. I'd be happy to provide that to the committee.

It was very clear that, depending on the disease, particularly chronic obstructive pulmonary disease and cancer, there was a high probability of getting access to palliative care. If you were in a hospital, there was a higher prospect. If you were in a home situation, there was less of a prospect.

It's very clear also that one thing we need to do is move the delivery of palliative care from exclusively palliative care specialists to, for example, people like paramedics who can deliver palliative care in people's homes. There are programs that do this.

[The Joint Chair, Hon. Yonah Martin]

You have 30 seconds.

[Abby Hoffman]

Family physicians can be trained to be interlocutors for palliative care services as well.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Could you please send us this data, if you haven't already done so?

Do you see any disparities in the provision of MAID services depending on whether you are in a rural or urban area, the Far North or a particular province?

[Abby Hoffman]

According to our data, no, but I think in reality it will arise under the new MAID legislation, particularly with the more complex cases. I think this is something that we really need to pay attention to or there will be disparities because of the complexity of the assessment process.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you very much.

[The Joint Chair, Hon. Yonah Martin]

Thank you.

I will call on Mr. Thériault next for five minutes, followed by Mr. MacGregor for five minutes.

Go ahead, Mr. Thériault.

[Luc Thériault, Bloc, Montcalm, QC]

First of all, I'd like to give Ms. Hoffman a chance to answer the question I asked earlier.

[Abby Hoffman]

Thank you, Chair, and Mr. Thériault.

In response to your comment and question, I wanted to comment about what we might learn from other countries with respect to the practice of MAID, especially in cases of mental illness. I'm reticent to comment too fully because you will hear from the expert panel later on in your process.

There are two things I will say. The first is that most of the guidance that is required is at the clinical level. It's direction to practitioners about what they should do to deal with the very complex challenges associated with these cases. With all due respect to my colleagues, Mr. Potter and Joanne Klineberg, you cannot put detailed clinical guidance in the Criminal Code. It's not the right place for it, because as Mr. MacGregor indicated, the understanding of diseases and conditions—their trajectory, treatment and so on—evolves.

The second thing I would say is that the human resource requirement will be very significant and intensive if a proper assessment—and that is the only assessment that should be allowed—is done of whether a condition is incurable or whether a decline that may be associated with that disease can be reversed, attenuated or relieved in some way. It's whether the person has capacity. Do they understand what they are being told about their condition? Do they understand what they are doing when they are seemingly making a request for MAID?

All of these informed consent, capacity and irremediability issues are incredibly complex, and they will take a lot of time. As with other cases in which the person is not dying, in order to understand whether or not treatments and interventions are effective, you have to reflect back on all the experiences that the person has already had with the health system. What have treatments yielded so far?

The bottom line here is that those cases will be very demanding. The human resources will have to be intensively applied. That is probably the paramount lesson I would put in front of the committee for its consideration.

[Luc Thériault, Bloc, Montcalm, QC]

That's probably why, in Quebec, as we can see in the report on the review of the act, the decision was made not to move forward on this issue.

When reading the Council of Canadian Academies' assessments of the state of knowledge on MAID for people whose only concern is a mental disorder, we can see repeatedly that there is no consensus on this issue, and even that people are divided on it.

I look forward to seeing what the expert panel recommends.

Moving on—

[Abby Hoffman]

I'll only just note, if I may, Madam Chair, that there's never been absolute consensus on any aspect of MAID. I think the question is this: Is there a safe and reasonable way for cases to proceed? That's really I think the fundamental question.

[Luc Thériault, Bloc, Montcalm, QC]

In fact, many aspects of MAID were not the subject of consensus, but it didn't seem to divide people almost equally. When you read all the reports on the mental health aspect, it seems that for every person who has a given opinion, there is another who has the opposite opinion.

I'd now like to talk about MAID for mature minors. This is a practice in very few countries, that is, only in the Netherlands and Belgium. The Netherlands allows children 12 years of age or older to use it, but parental consent is required for children 12 to 16 years of age. For Belgium, there is no minimum age, but parental consent is also required.

Is there a single MAID process for mature minors that doesn't involve parents or require their consent? I haven't seen any to date. Parental involvement and consent seems intrinsically connected to the process, even if there are very few cases.

[The Joint Chair, Hon. Yonah Martin]

We're at five minutes, Ms. Hoffman, so I think you'll have to answer this in Mr. Thériault's next two-minute round.

Colleagues, I have to pause to tell you about an additional witness who is available. With your consent, we could hear from this third witness. She's already been tested by the technicians on this call so that she'll be able to provide her testimony. She is Mausumi Banerjee, director, office for disability issues, from ESDC. She has been already tested for sound, so is there agreement to hear from this third witness before we go to the senators' round, when each senator will receive four minutes and I will take three?

Is there consent or agreement? Okay. Thank you.

We will invite our third witness to add to this very in-depth and complex conversation or dialogue that we are having at this committee.

Is our third witness ready to join and present?

It seems so. Thank you.

Welcome, Ms. Banerjee.

[Mausumi Banerjee, Director, Office for Disability Issues, Employment and Social Development Canada]

Thank you, Madam Chair.

Would you like me to speak now?

[The Joint Chair, Hon. Yonah Martin]

Yes, please.

[Mausumi Banerjee]

Hi. I'll introduce myself again. I'm Mausumi Banerjee, the director for the office for disability issues in ESDC.

My team works very closely with Health Canada to support them on MAID issues and the regulations that are being developed. Our main role in this work is to provide a disability inclusion lens to the work that is being done to ensure that organizations representing persons with disabilities are being engaged. We help with the types of questions that are being asked and we connect Health Canada with organizations and individuals that we think should be engaged with and we provide support in that way, as well as to our minister by providing her with briefings to be able to engage with the Minister of Health.

I don't have any other further remarks because our role is very much a support role and a disability inclusion lens role, but I'm available if there are questions.

Thank you very much.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Now we will go to our senators' round.