Medical Assistance in Dying Committee on Nov. 21st, 2023

[The Joint Chair, Hon. Yonah Martin]

Good evening and welcome to this meeting on the Special Joint Committee on Medical Assistance in Dying.

I'd like to begin by welcoming members of the committee and all our witnesses, as well as those watching on the web.

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

Today we continue 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 want to remind members and witnesses to keep microphones muted unless recognized by one of the joint chairs. As a reminder, all comments should be addressed through the joint chairs. When speaking, please speak slowly and clearly. For those appearing by video conference, interpretation is available. You have the choice, at the bottom of your screen, of floor, English or French.

With that, I wish to welcome our witnesses this evening.

Thank you very much for your presence.

As individuals, we have Jocelyn Downie, professor emeritus at the Health Justice Institute of Dalhousie University's Schulich School of Law, and Trudo Lemmens, professor and Scholl chair in health law and policy at the University of Toronto's faculty of law, by video conference.

From Health Canada's strategic policy branch, we have Jocelyne Voisin, assistant deputy minister, accompanied by two officials with the health care programs and policy directorate: Sharon Harper, director general, and Jacquie Lemaire, senior policy adviser. From the Department of Justice, we have Myriam Wills, counsel, criminal law policy section.

[Luc Thériault, Bloc, Montcalm, QC]

I didn't want to interrupt you, Madam Chair, but we always have the same problem at the beginning of the meeting. The sound in the room is much too loud for the interpreters.

If I don't want to hurt my eardrums because the sound is too loud in my ear, the sound should be adjusted. Sound checks should be done on site at the start of the meeting, as is done for remote participants.

It bothers me a bit to interrupt you at every meeting, but the situation will remain the same until the end if sound tests are not part of the procedure.

I'm sorry, but that's life.

[The Joint Chair, Hon. Yonah Martin]

I'm assuming the sound is being adjusted.

[Luc Thériault, Bloc, Montcalm, QC]

If you spoke, that would allow us to set the sound volume with the interpreters.

[The Joint Chair, Hon. Yonah Martin]

All right. I can do the list of witnesses and the order. As I'm speaking, hopefully they're adjusting the sound. Let me just do that.

I'll wait before having our first witness.

I am told the sound is okay now. Very good.

We will begin with opening remarks of five minutes from each of our witnesses: Professor Downie, followed by Professor Lemmens and the federal official, Ms. Voisin.

Professor Downie, the floor is yours for five minutes.

[Dr. Jocelyn Downie, Professor Emeritus, Health Justice Institute, Schulich School of Law, Dalhousie University, As an Individual]

Good evening. Thank you for the invitation to speak with you.

My name is Jocelyn Downie, and I'm a professor emeritus in the faculties of law and medicine at Dalhousie University. I've been honoured to be made a fellow of the Royal Society of Canada and the Canadian Academy of Health Sciences, and to be named to the Order of Canada for my work on this topic.

I start tonight with the committee mandate “to verify the degree of preparedness attained for a safe and adequate application of MAID” in MD-SUMC situations, with particular reference to standards of practice referred to by the expert panel.

On this metric, preparedness has already been established through your hearings. You know that the model practice standard was published in March 2023, and you have received uncontroverted evidence that the professional regulatory bodies are ready. However, in case you go beyond this mandate and/or adjust the metrics, more needs to be said.

First is the charter. A barrier to access to MAID based on a diagnosis of a mental disorder is a limit on the section 7 and 15 rights of persons with mental disorders. The arguments for this can be found in the testimony of numerous witnesses, briefs and legal decisions. A purported lack of preparedness might be presented as an attempt to justify the limits on the rights under section 1. However, that argument would fail.

The federal government is prepared. It has amended its reporting regulations, created an independent expert panel on MAID and mental illness, created an independent expert task group to draft and model practice standards, funded the independent national accredited curriculum to train MAID assessors and providers, and supported a knowledge exchange workshop that brought together MAID assessors, providers and psychiatrists from every jurisdiction in Canada to prepare together for the implementation of MAID MD-SUMC. Furthermore, the very people tasked with regulating the conduct of MAID assessors and providers have confirmed for you that they are prepared.

Clinical preparedness has been established through the delivery of multiple training sessions across the country, the existence of a community of practice among expert psychiatrists coast to coast, the experience that MAID assessors and providers already have from assessing MAID requests from persons with mental disorders, the experience that psychiatrists already have from acting as consultants for both track one and track two patients, and the development of protocols and policies at the programmatic level.

Any lack of political preparedness is not a justification for limiting charter rights. Any purported lack of clinical preparedness by some psychiatrists is not a justification for limiting charter rights. Not all clinicians in Canada were prepared for MAID when it first came in. Any individual psychiatrist who does not feel prepared is under no obligation to participate in MAID. It is abundantly clear that psychiatrists from across the country—including eminent psychiatrists, eminent experts in psychiatry—are prepared.

Some might say that not all Canadians are prepared. However, not all Canadians were prepared for MAID. Furthermore, no person is ever compelled to get MAID. The protection of charter rights does not and cannot wait for some subset of the public to be prepared. A preparedness claim, therefore, cannot serve to save the limits on charter rights that any further delay would entail.

Now let's turn to the division of powers under sections 91 and 92 of the Constitution Act. The federal Parliament must approach the issue of preparedness with attention to its own jurisdiction. It is abundantly clear that it is prepared. Even if you aren't persuaded that all the provinces and territories are ready—which is counterfactual, given the unequivocal evidence from the provincial-territorial regulatory colleges, as well as information available about MAID programs and PT oversight mechanisms—the division of powers dictates that you not delay further.

Look to history. Consider, for example, the 1969 act that made abortion legal under certain conditions. The act was passed in May 1969. Royal assent was given in June 1969. The abortion provisions came into force in August 1969. Parliament didn't wait for the newly required therapeutic abortion committees to be established in the hospitals across the country. The federal Parliament made the changes it felt were right to protect women's rights, and it left it to the provinces and territories to do what was necessary to implement the changes at their level.

There's also a logical and ethical basis for this view of preparedness. If the federal Parliament were ever to tie the changes to the Criminal Code to provincial and territorial preparedness, it would be allowing the provinces and territories to subvert the federal Parliament's decisions with respect to criminal law. It would also be allowing any laggard provinces and territories to hold hostage those other provinces and territories that got ready. It would allow the protections of the charter rights of people in the provinces and territories that got ready to be blocked by those provinces and territories that chose to not be ready. This is something the federal Parliament should not be a part of.

I leave you with one final thought. The trial decision in Carter was released in 2012. Truchon was decided in 2019. Bill C-7 was passed in 2021. It is now 2023. A further delay would take us to 2025. Justice delayed is justice denied.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you.

We will go to Professor Lemmens.

You have the floor for five minutes.

[Dr. Trudo Lemmens, Professor, Scholl Chair, Health Law and Policy, Faculty of Law, University of Toronto, As an Individual]

Good evening, chairs and members of the committee.

Parliament's core obligation is to protect the life and promote the well-being of Canadians. Expanding MAID to include it for reasons of mental illness is an unprecedented threat to that. It appears driven by, one, a flawed claim or perception of constitutional obligation; two, a strong prior commitment to expansive MAID by a core of people with dominant input in the policy process who overwhelmingly emphasize the need for access, not protection; and three, a lack of appreciation of how problems in jurisdictions that allow it will be even more serious here, because of weaker legal standards.

First, there is no constitutional requirement to introduce death to “solve” often severe suffering from mental illness. This is emphasized in a letter to cabinet by 31 Canadian law professors, including constitutional and human rights scholars; in several academic publications, including our forthcoming article; and in committee submissions by law scholars and the vulnerable persons standard.

These also clarify why it is not discriminatory to limit access to MAID. No court—definitely not the Supreme Court—has ruled that death induced by physicians is an inherently or predominately beneficial procedure to which all must have access as a right. It is a complex practice that the court ruled should be permitted in exceptional circumstances as a carefully crafted exemption to a crucial Criminal Code prohibition.

In fact, the opposite is true. Singling out disabled persons—and, soon, also persons with mental illness whose disease cannot be determined to be irremediable—exposes disabled persons already subject to systemic discrimination to a serious risk of death. This also threatens their right to life. It attaches the highest possible discriminatory stigma to what it means to have mental illness and to be disabled: namely, that our system offers them death rather than sufficient support, while it continues to protect others.

Second, before this committee, some medical experts insist we need to offer MAID for mental illness as a “constitutional right”, while they hesitate when asked whether we can do so safely and whether irremediability can be determined in individual cases. That, I would put forward, is a caricature of how cautious policy and law-making should work. Medical, policy and ethics experts must inform government, MPs and the courts of what MAID expansion will mean. With Canada's MAID policy, this has been turned upside down: Parroting constitutional rights rhetoric, government has given some with a prior vested commitment privileged positions to implement it.

It is striking that those who now reassure us that concerns are unwarranted claimed from day one that MAID for mental illness was unproblematic and should not be treated differently, yet they were given authority to evaluate if other safeguards were needed, and then failed to recommend them, which leaves it up to the discretion of individual professionals whether people will live or die. Authorities didn’t even reach out to the broader mental health community when a patient advocate and bioethicist resigned in protest from the expert panel on MAID and mental illness. It is further troubling, as one submission highlights, that some of the same experts have recently provided misleading information to MPs when the recent bill aimed at suspending the expansion went up for a vote in Parliament.

Third, the claim that we need only a few psychiatrists willing to do this because few patients will qualify is wrong; instead of reassuring, it is concerning.

First, in Belgium and the Netherlands, the practice remains controversial in part because a few psychiatrists have driven the practice in problematic directions. A criminal prosecution temporarily stalled expansion in Belgium, where one psychiatrist was involved in nearly half of the mental health euthanasia cases from 2007 to 2011. In those countries, physicians must agree that there are no other options left. Approval rates for psychiatric euthanasia are low—5% to 10%—mostly because of lack of irremediability, but when euthanasia for mental illness became more broadly practised, demand for it increased steeply, from 500 in 2008 to 1,100 in 2015. Demand in Canada will be higher, and no legal constraint will keep the approvals low.

When regulators state they are ready, we need to ask, “For what?” Yes, there will be flimsy regulations with rules that leave so much discretion that there will be little basis for criminal prosecution or professional discipline. Our law and professional rules will offer a largely open-ended licence to end the lives of mentally ill patients. This is an egregious form of discriminatory abandonment of mentally ill Canadians and their families.

I urge you not to hide behind a rhetoric of a constitutional right to let this expansion go forward.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much, Professor.

Lastly, we have Ms. Voisin.

You have the floor for five minutes.

[Jocelyne Voisin, Assistant Deputy Minister, Strategic Policy Branch, Department of Health]

Thank you, chairs and members, for inviting us here today.

I want to thank the committee for their work and commitment on this issue so far, and continuing.

I would like to start out by saying that Health Canada believes that Canadians deserve to live in comfort and dignity, with access to care, including end-of-life care, that is appropriate to their needs and that respects their wishes.

We also recognize that MAID is a deeply personal choice, and we are committed to ensuring our laws reflect Canadians' evolving needs, protect those who may be vulnerable, and support autonomy and freedom of choice.

The federal Criminal Code of Canada permits MAID to take place only under very specific circumstances and rules, as you know. Anyone requesting MAID must meet stringent eligibility criteria to receive medical assistance in dying. Also, any medical practitioner who administers an assisted death to someone must satisfy all the safeguards first.

Given your mandate, I appreciate that your focus is on the system's preparedness to offer medical assistance in dying to persons with mental illness as the sole underlying medical condition.

As part of our work to prepare for the lifting of the exclusion for MAID eligibility for persons suffering solely from mental illness, Health Canada has been working closely with provinces and territories, as well as stakeholders in the mental health sector, health professional associations and others to address the recommendations of this committee and those of the expert panel on MAID and mental illness.

For instance, Health Canada supported the development by experts and release of a model practice standard for MAID and a companion document, which is “Advice to the Profession”. We also funded the Canadian Association of MAID Assessors and Providers, CAMAP, to develop and deliver a nationally accredited, bilingual MAID curriculum. Registration continues to grow with, at last count, 901 registrants as of November 17. Of these, 490 are physicians, 132 are psychiatrists and 279 are nurse practitioners. The curriculum includes seven modules, including a module on mental illness as a sole underlying condition.

We also have enhanced our existing data collection on MAID through the federal monitoring system to help determine the presence of any inequalities or disadvantages in requests for the delivery of MAID. We continue to engage with indigenous peoples, as requested and recommended by this committee, through both indigenous-led and government-led activities, which will culminate in a “What We Heard” report in 2025.

Finally, to support case review and oversight, we are working with the provinces and territories to enhance consistency and opportunities to share best practices on oversight mechanisms that exist in those jurisdictions.

These resources will provide enhanced support for both the assessment and provision of MAID in situations where death is not reasonably foreseeable, such as Parkinson's, as well as in situations where the request is based solely on a mental illness.

At the federal level, we have been working diligently to ensure that the tools and resources are in place to support clinicians and regulators before March 2024. I know from my engagement with my provincial and territorial colleagues that they are working hard to prepare their health care systems in the lead‑up to the lifting of the restriction. Many MAID assessors are already dealing with track two cases, where death is not reasonably foreseeable, which includes people who may have a mental illness combined with other conditions.

That being said, the level of preparedness does vary across the country, and some provinces and territories have noted concerns, most notably with regard to ensuring enough trained professionals, especially with mental health expertise.

For assessment of track two cases, practitioners have told us that these requests are generally more complex and challenging, because of the complexity of the conditions involved and the application of the existing rigorous eligibility criteria and procedural safeguards. This means that clinicians assessing MAID are spending much more time gathering the necessary information about the person and their condition. The process often involves a review of many years of treatments, surgeries and/or medications and consultations with experts in order to exercise due diligence and make a decision about eligibility.

The typical underlying medical conditions cited in track two are neurological diseases such as Parkinson's disease or multiple sclerosis. We know from the latest annual report in 2022 that track two cases made up only a very small proportion of MAID requests. There were 463 MAID provisions under track two, which represented 3.5% of the total number of MAID provisions and fewer than 0.2% of all deaths in Canada. In 2021, a partial year, 223 individuals with track two requests received MAID, representing only 0.07% of all deaths in Canada.

Again, I want to recognize the important work done by this committee to date.

Your reports have provided valuable insights into the views of various stakeholders, and federal officials have worked closely with provinces, territories and key stakeholders in the MAID community to continue to use these recommendations to support the improvements in the delivery of MAID across Canada.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

We will go into the first round of questions from the members of Parliament, beginning with Mr. Fast for five minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Madam Chair.

My questions will be directed to Professor Lemmens.

Professor, today you have heard again here at committee the suggestion that the law in Canada compels parliamentarians to introduce MAID for the mentally ill. We heard that also from Ms. Shelley Birenbaum at our last meeting. She said that she represented the CBA, the Canadian Bar Association, and she suggested that there was “a strong charter vulnerability” if Canada did not expand MAID to include the mentally ill.

Do you agree with that assessment, that we face a strong charter vulnerability if we don't expand MAID?

[Dr. Trudo Lemmens]

I fundamentally disagree, and I'm not the only one who disagrees with that. I think many legal scholars and many people in the legal profession disagree. I think it reflects a distorted view of MAID as a quasi inherently beneficial practice, as if not having facilitated access within the medical system to it is a greater harm than death.

I think that discriminatory analysis, on the contrary, would focus on existing structural discriminations of persons with disability, particularly what persons with mental illness already face, and the second component is the high risk to women, indigenous persons and persons living in poverty. I would argue, on the contrary, that adding easier access to death to existing inequality while we continue to protect others against premature death...because we have to emphasize that it's still in the Criminal Code. It still protects others, but we will now exclude that.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

I want to be very specific. Is there anything in Carter, Truchon or the Alberta EF decision that would compel Parliament to offer MAID to the mentally ill?

[Dr. Trudo Lemmens]

I urge parliamentary committee members to look at the submissions they received. We submitted something.

I think there is nothing in Carter, certainly not in Carter, that explicitly states that we have to legalize it. In fact, the Supreme Court explicitly excluded mental illness from its reasons.

[Ed Fast, Conservative, Abbotsford, BC]

Are there sufficient legal and procedural safeguards in place to safely implement MAID for the mentally ill?

[Dr. Trudo Lemmens]

In my view, there are not. I think the safeguards that we have are easily circumvented. They are already circumvented in the context of track two. I would urge committee members to watch, for example, the recent documentary by Al Jazeera, where we see Rosina Kamis receiving MAID in the context of track two. In my view, it shows that you can drive a truck through some of the requirements that are supposedly protecting people from receiving track two MAID.

I look at the practice guidelines at the CAMAP, educational documents that have been prepared, the model practice standard and the guidelines. I see an overwhelming emphasis on the need to provide access to MAID, even to such an extent that, for example, in the CAMAP documents, there is an explanation of how you can easily turn track two MAID into a track one MAID. In other words, even if you're assessed on track two.... For example, the CAMAP document states specifically that by refusing antibiotics for a serious infection, you can turn your track two into a track one.

I would say that, for me, this is symbolic of the way our regulatory approach has been in the context of track two, and this will apply to the context of mental illness.

[Ed Fast, Conservative, Abbotsford, BC]

In your brief, you said that a fresh constitutional analysis is indicated and a higher degree of deference is owed.

What do you mean by “a higher degree of deference”?

[The Joint Chair, Hon. Yonah Martin]

Answer very briefly, Professor Lemmens.

[Dr. Trudo Lemmens]

I think this is very well established by leading constitutional scholars. I would even refer to the statements by the late Professor Hogg, who explicitly changed his opinion. He indicated, in a more recent publication, that Parliament was given leeway to develop a detailed regulatory regime and that the courts have to assess that regulatory regime, respecting the law-making of Parliament under a strict separation of powers.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Professor.

Next, we'll go to Mr. Scarpaleggia for five minutes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you very much.

It is very humbling to be on this committee. Many of the members were on the committee before me and know much more about this than I do. The witnesses, of course, are incredibly qualified.

By way of background, I'm trying to go back two years, when the Senate amended Bill C-7 to remove the mental illness prohibition. It sent the legislation back. Did it add the need for an expert committee, or did the government add that? I should probably know that myself, but it's been a couple of years.

[Dr. Jocelyn Downie]

The expert committee review is embedded in the legislation.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Was it embedded in the Senate amendment?

[Dr. Jocelyn Downie]

I'm not sure whether it came from the Senate or whether it was in the original bill. It was certainly in Bill C-7.