Medical Assistance in Dying Committee on Nov. 7th, 2023

[The Joint Co-Chair, Liberal, René Arseneault]

Good evening.

Welcome to this meeting of the Special Joint Committee on Medical Assistance in Dying. I would like to welcome members of the committee and witnesses, as well as those watching this meeting on the web.

My name is René Arseneault, and I am the House of Commons joint chair of this committee. I am joined by the Honourable Yonah Martin, the Senate's joint chair of this committee.

Today, we begin our examination of the degree of preparedness attained for a safe and adequate application of medical assistance in dying, where mental disorder is the sole underlying medical condition, in accordance with recommendation 13 of the committee's second report.

I would like to remind members and witnesses to keep their microphones muted, unless recognized by name by the joint chairs. I remind you that all comments should be addressed through the joint chairs. When speaking, please speak slowly and clearly, and as near as you can to the microphone for the interpreters. Interpretation in this video conference will work like in 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 extend a virtual welcome to our witnesses for our first panel.

From the Canadian Psychiatric Association, we have Dr. Alison Freeland, chair of the board of directors and co-chair of the MAID working group.

We also have the Canadian Bar Association, represented by Ms. Shelley Birenbaum, chair of the end of life working group.

Thank you for joining us, Ms. Freeland and Ms. Birenbaum.

We'll begin with opening remarks by Dr. Freeland, followed by Ms. Birenbaum.

I will be very strict with the time for everyone here tonight because we'd like to have at least two rounds. If you ask a question with 10 seconds remaining in your time, there will be no answer. I'd ask everyone to try to be as tight as you can on your time. Then we can have two rounds of questions for everyone.

Dr. Freeland, the floor is yours for five minutes.

[Dr. Alison Freeland, Chair of the Board of Directors and Co-Chair of MAID Working Group, Canadian Psychiatric Association]

Thank you.

My name is Alison Freeland. I am a psychiatrist, and I am here in my capacity as chair of the board of directors of the Canadian Psychiatric Association and co-chair of the CPA's medical assistance in dying working group to provide you with the CPA's perspective. Thank you for the opportunity to be here today as you consider the degree of preparedness attained for a safe and adequate application of MAID for MD-SUMC.

As the national voice of Canada's psychiatrists and psychiatrists in training, the CPA's mission is to promote the highest quality of care and treatment for persons with mental illness and to advocate for the professional needs of our members by promoting excellence in education, research and clinical practice.

The CPA does not take a position on the legality or morality of MAID, nor has the CPA taken a position on whether MAID should be available where mental illness is the sole underlying medical condition. However, the CPA does believe that any legislation must protect the rights of all vulnerable Canadians without unduly stigmatizing and discriminating against those with mental disorders solely on the basis of their disability.

The CPA's primary contributions towards preparedness have focused on providing feedback and input on national standards and the training curriculum, facilitating member awareness and education on MAID and contributing to the literature regarding MAID. Through our working group, the CPA provided feedback on the MAID practice standard prior to its release last March. The CPA was also part of the national MAID curriculum steering committee, which supported and enabled the development of a training curriculum for assessors and providers that was released in September. In addition, several CPA members have been part of the CAMAP working groups that developed individual curriculum modules.

The CPA regularly informed members about the development of the practice standards and their contents as well as the curriculum through our weekly members newsletter. We continue to keep our members abreast of and facilitate relevant MAID training opportunities.

At our 2022 annual conference, we held a panel discussion for 140 participants that explored ethical considerations to guide MAID decisions, assessment of capacity and voluntariness, and suicide versus MAID. More recently, our annual conference last month included a plenary that discussed the need for a national MAID curriculum and outlined its development. More than 300 conference delegates participated in this session.

In conjunction with the conference, we also hosted a facilitated session of the MAID and mental disorders curriculum module for CPA members who are licensed clinicians. It's my understanding, from informal discussions with systems partners, that approximately 100 psychiatrists are now registered for the MAID curriculum. We continue to promote future educational opportunities for this training through our newsletter.

Our peer-reviewed journal, The Canadian Journal of Psychiatry, has published a number of articles that seek to clarify aspects of MAID, including original research by van Veen and colleagues that establishes 13 consensus criteria for determining irremediability in the context of MAID in the Netherlands. While psychiatrists diagnose, treat and assess capacity in people with mental disorders on a daily basis, we will soon publish a paper on the capacity to consent in the context of MAID in The Canadian Journal of Psychiatry, and this will offer further guidance to our psychiatrists. Our MAID working group continues to be active and will meet shortly to consider further topics where members would benefit from additional guidance.

The CPA also has some knowledge of health systems readiness gained through members of our working group as well as from our Council of Psychiatric Associations, which facilitates an exchange of information on issues of national importance by assembling the presidents of the various provincial psychiatric associations.

As a national member organization, our role is to listen to and dialogue with our members. While some psychiatrists do not support MAID, others are interested in learning more and will choose to be involved with MAID as consultants or assessors and possibly providers. Psychiatrists' expertise is important when it comes to MAID, but we do not practise in isolation. We work in interprofessional teams that centre the voice and lived experience of the patient and their family to balance treatment, care and hope for recovery with a capable person’s right to make health care decisions.

Thank you, and I would be happy to answer questions.

[The Joint Chair, Liberal, René Arseneault]

Thank you, Ms. Freeland.

Ms. Birenbaum, the floor is yours for five minutes.

[Shelley Birenbaum, Chair, End of Life Working Group, The Canadian Bar Association]

Good evening, Chairs and honourable members of the committee. My name is Shelley Birenbaum, and I am chair of the end of life working group of the Canadian Bar Association. Thank you for the opportunity to address your committee.

The CBA is a national association of 37,000 lawyers, Quebec notaries, law teachers and students, with a mandate to promote improvements in the law and the administration of justice. The CBA end of life working group comprises a cross-section of members drawn from diverse areas of expertise, including constitutional and human rights law, criminal justice, health law and child and youth law.

Medical assistance in dying, or MAID, is complex and raises vital issues and diverse views and the need to balance the competing values of autonomy and protection of those who may need it. At the same time, we must realize that the suffering of individuals with mental illness is no less real than that of individuals affected by physical illness, and persons with mental illness should have the same agency to determine their health care treatment as persons with physical illness, as long as they meet the requirements to do so.

We make three main points for this committee to consider. First, a total exclusion from MAID for all persons suffering from mental illness as a sole condition is likely to be constitutionally challenged as violating the equality, security and liberty guarantees in the Canadian charter. Second, there are already legislated procedural safeguards in the Criminal Code to protect those with mental illness as a sole condition and who may be vulnerable. Third, additional guidance, as pointed out by Ms. Freeland, is available for health professionals and has been developed to help clinicians.

To give more detail on constitutionality, a general exclusion of all persons suffering from mental illness is likely to be constitutionally challenged as discriminating against those with mental illness and denying them equality under the law, contrary to section 15 of the charter. A blanket prohibition increases suffering and will likely result in breaches of the rights to security of the person and liberty, that is, the ability to make decisions regarding bodily integrity guaranteed to us under section 7 of the charter.

There are existing legislative safeguards. The Criminal Code already establishes a robust series of procedural safeguards that must be met before a person is considered eligible for MAID, including decisional capacity, two independent assessments and informed consent. The safeguards for track two, where death is not reasonably foreseeable—and most mental illnesses would likely fit within that category—are even more rigorous, requiring a prescribed and robust informed consent, consultation with an expert in the field, a reflection period and a determination that there has been a serious consideration of options.

Health care practitioners are already legally required to assess capacity prior to treatment, and psychiatrists regularly make capacity determinations for persons with mental illness, provide prognoses about mental illnesses and assess risk of suicidality, which are different than MAID. Any additional safeguards must not unduly prolong the suffering of those who are otherwise eligible for MAID and should align with current best practices in mental health care.

We understand that there have been many tools developed, and many recommendations of the expert panel on MAID and mental illness are being implemented to ensure a state of readiness. We are aware of the “Model Practice Standard” and “Advice to the Profession” documents that have been developed, as well as the comprehensive Canadian MAID curriculum, with a specific module on mental illness and MAID. In addition, provinces and territories and regulatory bodies may continue to develop guidance and tools in their role in regulating health and health practitioners.

MAID where mental illness is the sole condition has been under consideration for almost nine years and has been delayed twice. We are of the view that eligibility should no longer be delayed and that the planned March 2024 implementation date should be respected.

On behalf of the CBA, thank you again for the opportunity to speak today. I look forward to answering any questions you may have.

[The Joint Chair, Liberal, René Arseneault]

Thank you, Ms. Birenbaum.

I'd like to thank both witnesses for respecting their speaking time.

I'll now give the floor to the committee's joint co-chair.

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

Thank you to our witnesses for being here this evening.

Colleagues, I'll just remind you that we have to be strict with our time due to the time constraint.

We'll begin with our first round of questions of five minutes each for each person representing the parties.

We'll begin with Mr. Fast for five minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Madam Chair.

My first questions will be for Dr. Freeland.

Dr. Freeland are you appearing at our committee today on behalf of the psychiatric profession at large, on behalf of a working group or on your behalf?

[Dr. Alison Freeland]

Just to restate, I am here on behalf of the Canadian Psychiatric Association, which is the national member association for Canadian psychiatrists and psychiatrists in training. My role with the CPA is chair of the board of directors. I also co-chair our working group focused on medical assistance in dying.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

Do you speak for all psychiatrists?

[Dr. Alison Freeland]

I'm speaking on behalf of the CPA, which represents our psychiatrist members. As a national member organization, approximately 50% of psychiatrists are members of our association. That has been a very steady rate over the last number of years. We've also been very pleased by an increase in our members in training of approximately 19% over the last year. We were also—

[Ed Fast, Conservative, Abbotsford, BC]

Thank you. Then you represent about half of Canadian psychiatrists.

I wanted to know something. You chaired a committee that studied MAID for the mentally disordered. I understand that your committee stated, in March 2020, that mentally disordered patients should have the same access to MAID as is available to all patients. You've restated that today in your testimony.

I understand that the CPA has never formally consulted with its members in the lead-up to the position statement that was issued by the committee. Is that correct?

[Dr. Alison Freeland]

I'm happy to explain our process for both position statements and how we've undertaken member consultations.

The CPA routinely publishes position papers and statements on issues related to psychiatric practice, and we have a way of proceeding with that. Through our MAID working group, we did have a number of member consultations, which have included, since 2016, member surveys. There's been an original time-limited task force and we've had symposia—

[Ed Fast, Conservative, Abbotsford, BC]

Doctor, I'm not asking you to explain exactly how the consultation process worked. I just want to know if there were formal consultations with your membership. Has that membership actually given you a clear consensus that they want you to move forward with this?

[Dr. Alison Freeland]

Are you asking particularly in reference to the publishing of the position statement, which was published and then amended when Bill C-7 came through, along with our discussion paper, our two surveys and the town hall?

[Ed Fast, Conservative, Abbotsford, BC]

Yes, let's talk firstly about the position statement you issued.

[Dr. Alison Freeland]

Our process for the position statement would be for our professional standards and practice committee to develop something that's based on CPA policy. We did not take a position on the morality or ethics of MAID as it relates to mental illness or whether or not mental illness should be part of it.

[Ed Fast, Conservative, Abbotsford, BC]

I understand that.

[Dr. Alison Freeland]

What we did was underscore the importance of not stigmatizing a group of people by virtue of their illness.

[Ed Fast, Conservative, Abbotsford, BC]

Did your consultations result in you divining or discerning a consensus among your members that MAID was ready to be implemented for the mentally ill?

[Dr. Alison Freeland]

I think it's very well known that across all Canadian psychiatrists, including within our membership at the CPA, there are people with different perspectives with respect to MAID for mental illness—

[Ed Fast, Conservative, Abbotsford, BC]

Okay, so there is no consensus.

[Dr. Alison Freeland]

As a member organization, we welcome healthy debate, which continues. Part of the work we did was to develop—

[Ed Fast, Conservative, Abbotsford, BC]

That's all I need to know. There's really no consensus within your profession at this point in time. Is that correct?

[Dr. Alison Freeland]

I think if you're asking about 100% consensus for some sort of intervention on the issue of people with mental illness, it would not be unusual to consider that there's generally not consensus in many aspects of medicine.

I'm sorry. I'm not sure if I'm answering your question.

[The Joint Chair, Hon. Yonah Martin]

You have about 15 seconds.