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

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Madam Chair.

Dr. Dhara, I'd like to make the following comment based on your experience and testimony.

For the time being, the clinical situations that lead or may lead to a request for medical assistance in dying are at the end of life, that is, the process of dying has already begun and is irreversible. Patients are guided through an optimal palliative care process, or at least we hope so, but even in those circumstances, when the patient has osteosarcoma, for example, it's not always possible to relieve their pain and suffering. The patient's pain tolerance may be exceeded. At that point, that mature minor might request medical assistance in dying.

This situation and such cases would arise at the end of life, and we could then oversee the process. We're not talking about a suicidal 14‑year‑old experiencing depression here. No one's going to be thrown to the lions in this situation, right?

[Dr. Arundhati Dhara]

I agree. I think you make an important distinction between different types of conditions and different situations. I think the case that you describe of someone with a cancer that is causing incredible pain and suffering who makes a request for MAID is different entirely from that of someone with depression and suicidality. I think we have to be careful not to conflate requests for MAID with suicidal ideation. They are not the same thing. Certainly in practice, they are not the same thing.

Up until now, at least, and I'm certain going forward, something we would ask about and explore with patients during any assessment is whether there is an element of depression or of a mental health condition that is potentially amenable to treatment. I think conflating all of these things muddies the waters and doesn't actually help us end up with an equitable process for folks to access what they need when they need it.

[Luc Thériault, Bloc, Montcalm, QC]

I'd like to point out that in Quebec, minors are permitted to make a certain number of medical decisions when they turn 14.

Once we start setting guidelines for mature minor access to MAiD strictly for track one patients—they would be at the end-of-life stage—do you believe it would be an acceptable option, based on your experience? This would be in line with cases resulting in MAiD requests and could be the source of the majority of them, even though there are practically no cases like this anywhere in the world, if I understood you correctly.

Would you agree?

[Dr. Arundhati Dhara]

In jurisdictions where mature minors can access MAID, it is actually quite rare. It's not a commonly requested procedure. The vast majority of cases—I would say all, but I cannot be certain—are really around track one, so the process of dying has already started and there is a terminal, life-ending disease process in place. In those cases, we know that kids feel pain too; kids suffer too. It is, as I say, viscerally heart-wrenching to see, but they suffer, and I think that would be a reasonable basis upon which a mature minor could request MAID.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much, Monsieur Thériault.

Next we have Mr. MacGregor for five minutes.

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

Thank you very much, Madam Chair.

Professor Sheehy, I'd like to start with you.

I have taken note of your opposition to extending medical assistance in dying to mature minors. I hope you understand that the questions I'm asking you are coming out of a sense of curiosity, as I'm trying to understand this subject matter.

My home province of British Columbia has the Infants Act. That's a provincial law that does allow someone in the medical field to treat a minor as long as the minor has the necessary understanding to give consent to the treatments. That is provincial law that protects someone in the medical profession. As long as they think that child has the understanding, they can go ahead with treatment if they're under the age of 18. No specific age is required; it's just whether that understanding exists.

Some medical conditions are incurable. Some medical conditions cause intolerable suffering. I'm thinking more of the physical ailments that would be covered under track one when we're quite sure that there is no coming back from them.

If minors in British Columbia already have this ability protected under provincial law, and if, say, a 13-year-old or 14-year-old had a medical condition where it's quite obvious they're not going to be cured, they are not going to come back and you can see they are in an obvious state of physical suffering, why must they wait until they are aged 18? Why must they live three or four years with that kind of a condition when we already have this precedent under provincial law? I'm just trying to understand this.

[Prof. Elizabeth Sheehy]

First, in terms of B.C. legislation, I don't know every province's variations. I do believe that decisions to get treatment are treated differently in law than decisions that result in end of life. For example, in the situation you mentioned, if a parent disagreed with the assessment that the person was mature enough to make the decision or the parent disagreed with the decision to end treatment, I believe this would be a litigated matter. I believe the official guardian has to be involved when we're talking about treatments that result in end of life.

I don't think MAID would be treated the same way under any province's legislation. It's not a medical treatment. It's actually a treatment to end life.

As for the question of whether we should do this for children who experience this kind of pain, I think we clearly have an inability to distinguish between track one and track two. Once we allow further extensions of track one, we know for sure that these will extend to track two and that we cannot contain them. For example, in Carter, the Supreme Court said that its decision did not extend to mental illness, yet here we are. We've gone ahead and done exactly what the Supreme Court of Canada cautioned against.

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

I'm sorry to interrupt you, Professor Sheehy, but I only have a minute and a half left and I want to get in one question for Dr. Dhara. Thank you for your answer.

Dr. Dhara, I know every province has a different variation of the law that allows for medical treatment of minors. I cited the law from my home province of B.C.

Can you explain to us what the provincial law in your area requires you to do as a physician in assessing that a minor has the necessary understanding to give consent to treatment? What are your requirements under provincial law to make that assessment and arrive at a decision that you're comfortable with? I just want some understanding of that, please.

[Dr. Arundhati Dhara]

In practice, it's exactly what I said in my initial answer. It's an incredibly specific thing. It's specific to the procedure, treatment or whatever else that's being offered. It can be as simple as taking antibiotics for an infection, versus consenting to a surgical procedure. It's really about whether this person understands what is being offered. Do they understand the risks and benefits? Do they understand the alternatives?

Sometimes it's really obvious. If a six-year-old shows up and and says, “I want to cut off my leg” or something ridiculous like that, without any good kind of understanding, it's fairly obvious. In the case of a mature minor who is talking about a very serious condition, it's about getting to the root of whether the person in front of you understands.

In my long-term practice, I'm fortunate that I've watched a lot of these kids grow for many years now. I can say that five years ago, I don't think this person could have shown up in the office, made a request for x, y or z and really understood what they were talking about, but today I think they can.

I speak not as a specialist physician. I speak as a generalist physician—

[The Joint Chair, Hon. Yonah Martin]

Thank you, Dr. Dhara.

I will now turn this back to my co-chair for questions from the senators.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Senator Martin.

I wanted to start with Senator Mégie, for three minutes, but I see that she's not with us.

We will start with Senator Kutcher for three minutes.

[Stanley Kutcher, Senator, Nova Scotia, ISG]

Thank you very much, Mr. Chair.

I have two questions for Dr. Dhara.

You reminded us of what in bioethics is known as the “yuck factor”. As a reminder, it's an intuitive emotional response to something that should be interpreted as evidence for the intrinsically harmful or evil characteristic of that thing. It's the idea that repugnance equals wisdom, or repugnance equals a moral judgment.

That's been used throughout history to justify anti-Semitism, racism, homophobia, alternative sexualities, same-sex marriage, etc. Mr. Trump glorified it with his decision-making motto of “this is my gut feeling and therefore it's right”. You warned us against making this mistake in our thinking.

Do you think this yuck factor and its counterpart of moral panic may characterize some of the highly emotional discussions that occur around MAID?

[Dr. Arundhati Dhara]

That's a difficult question. On the one hand, I think we have to have very rational, evidence-based conversations with everybody and every perspective on an issue like this, which is of real societal importance. I will refer here to Dr. Macdonald's research around getting at the root of what you think about this issue. I think that's critical. At the same time, it is worth interrogating the yuck factor, as you put it. It's worth interrogating why we have that visceral feeling.

Folks who would say that MAID ought not to be accessible to particular populations or in particular circumstances often point to the need for better services. That is always true. To the extent that the yuck factor propels us to do better by our clients, patients and society in general, I think that's a really good interrogative process.

At the same time, we have to look beyond it, even if it's really uncomfortable. I think this is a conversation that makes us all really uncomfortable.

[Stanley Kutcher]

That's a wise thought.

In your clinical experience, what proportion of MAID deaths are what physicians—I'm a physician as well—would call good deaths? Those are peaceful, compassionate and family-supported deaths that are a generally positive end to life. What proportion of MAID deaths would be within that kind of category?

[The Joint Chair, Liberal, Marc Garneau]

Give a quick answer, please, Dr. Dhara.

[Dr. Arundhati Dhara]

Sure.

In my experience, it's every single one.

[The Joint Chair, Liberal, Marc Garneau]

Thank you.

Senator Dalphond, you have the floor for three minutes.

[Pierre Dalphond, Senator, Quebec (De Lorimier), PSG]

Thank you, Mr. Chair.

I thank the panellists for their insights and perspectives.

I will focus on Dr. Mary Ellen Macdonald, because I think the discussions must be focused on data and not on emotions or an ideological stance.

Dr. Macdonald, you referred to the fact that there is a shortage of empirical data to move forward with the discussions. You said that we should accept the principle that young people have the right to equality and the right to participate in the decision-making that concerns their lives. However, you would like to have a study from coast to coast to coast over the next three years.

Can I assume from your answer that you think countries that have so far allowed mature minors to have access to MAID don't have enough data to justify taking a position?

[Dr. Mary Ellen Macdonald]

With regard to the final part of your question about international jurisdictions, I would say that no, we don't have data from international jurisdictions that is completely amenable to a Canadian situation. I think there are a lot of specificities in Canada that require Canadian-specific data. An obvious one would be speaking with indigenous communities.

The other answer I would give is that there's not much data in international jurisdictions either. I don't think we have a bank of data that we can draw on to do a responsible job with the analysis.

[Pierre Dalphond]

I understand that the project you have described is going forward. It is being financed and it's going to move forward.

[Dr. Mary Ellen Macdonald]

No, it has not been financed yet. We're still in discussions.

[Pierre Dalphond]

I see. Are your discussions with Health Canada about financing?

[Dr. Mary Ellen Macdonald]

That's correct. They invited us to submit the proposal, so the discussions are continuing.

[Pierre Dalphond]

What kind of budget are we talking about?

[Dr. Mary Ellen Macdonald]

I don't really feel at liberty to address that question yet.