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

[Jocelyne Voisin]

Maybe I'll go first, and then turn to Dr. Downie. I think we would agree with those statements. Just because you make people with a mental illness eligible.... The assessors, right now, are evaluating many track two cases that involve people who have a mental illness in combination with other conditions. This is not something new. Those are complex cases. As Dr. Downie was saying, there's a requirement to consult with experts, depending on the case and depending on what condition is at issue.

Just because you have a mental illness, that does not mean you are suddenly eligible for MAID. It's a very high bar in terms of eligibility.

[Marie-Françoise Mégie]

Go ahead, Ms. Downie.

[Dr. Jocelyn Downie]

I would echo all of that. We are going to have some requests, and we will have very few people who will be eligible. We will have sufficient clinicians who are able to provide it, either as assessors and providers or as playing the consultancy role.

I also want to emphasize that if nobody is available...because this came up maybe two weeks ago. If a clinician isn't available to act as an expert consultant, the person can't get MAID. It's not like an absence of the experts would mean that people are getting MAID without that protection, because it would be illegal to proceed with MAID without that consultation. There's a protection built right in.

[The Joint Chair, Liberal, René Arseneault]

Thank you, Professor Downie.

[Marie-Françoise Mégie]

Thank you, Mr. Chair.

[The Joint Chair, Liberal, René Arseneault]

Thank you, Dr. Mégie.

Next, we go to Senator Wallin.

[Pamela Wallin, Senator, Saskatchewan, CSG]

Thank you.

For the record, the Senate did call for some safeguards on this question, and the government elaborated on that when it was sent over.

I'd like to hear from all three, because we have different.... When we talk about hiding behind the Constitution, that troubles me. Presumably, we want our laws and services to be constitutional and to be accessible. Because we have not heard from the Department of Justice, maybe we'll start here and go in that direction.

[Myriam Wills, Counsel, Criminal Law Policy Section, Department of Justice]

I'll start off by stating the obvious. There are very diverging views on this topic. No court has ruled on whether or not the charter requires MAID for mental illness. If we look at the charter statements in former Bill C-7 and former Bill C-39, they set out the charter considerations supporting the charter consistency of both prohibiting MAID for mental illness and permitting MAID for mental illness.

[Pamela Wallin]

We want laws to be constitutional. We spend a lot of time on that in the Senate when we get bills from the other side.

Ms. Voisin, go ahead.

[Jocelyne Voisin]

From the Health Canada perspective, we need to respect the jurisdiction of the provinces and territories in terms of actually managing the health care system. In terms of how we are managing this file, we leave it to the provincial bodies, the regulatory bodies that have the oversight of medical professionals. We are working very closely with the provinces and territories to do what we can to support them in developing and putting into regulation practice standards.

[Dr. Jocelyn Downie]

Respecting charter rights is the highest obligation of members of the House and members of the Senate, so you should never pass legislation that you do not have confidence is consistent with the charter and consistent with the Constitution—the division of powers as well as the charter.

[Pamela Wallin]

You raised another point, Dr. Downie, that the lack of political preparedness or willingness of governments to embrace this is not a reason to deny section 7 or section 15 rights. Are you getting a sense that may be an issue?

[Dr. Jocelyn Downie]

Absolutely. I think that if you look at the arguments, that's all that's left. There's no solid evidence and there are no valid arguments that justify a further delay. Therefore, the only explanation is political.

[The Joint Chair, Liberal, René Arseneault]

Thank you, Ms. Wallin.

We will now hear from Senator Ravalia, who is filling in for Senator Kutcher. You have three minutes, Senator.

[Stanley Kutcher, Senator, Nova Scotia, ISG]

Thank you, Chair.

Thank you to all witnesses.

My question is for Ms. Voisin.

In your dialogue with territorial and provincial partners, from the readiness perspective, do you feel that the medical education programs that have been established as a foundational element for clinicians practising MAID have afforded enough knowledge, from the mental health perspective, to create a milieu that will ensure there is safety and annul what we would consider bogus requests?

[Jocelyne Voisin]

Yes. As I said in my remarks, the curriculum includes seven modules, and one is focused on mental illness. It combines both an online learning component, which discusses the many challenges that are inherent in making a decision or an assessment related to mental illness, and case reviews, including mental disorders that are anticipated to be most commonly found in terms of those assessments. There's even group-facilitated discussion. There's a very comprehensive module on mental illness.

As Dr. Downie said, we've also done knowledge exchange workshops with experts, and we're getting more and more registrations for the curriculum, so I think that preparedness is growing. With my PT colleagues, my provincial and territorial colleagues, we're discussing the next steps in terms of more detailed clinical guidelines, oversight mechanisms and how we can really share those best practices and make sure there is consistency across the country.

[Stanley Kutcher]

To follow up, Dr. Downie, do you feel that we've built in sufficient safety precautions in the assessment of those who are mentally ill who would be seeking this pathway?

[Dr. Jocelyn Downie]

Yes, I think so. It's in the Criminal Code, and then it's in the model practice standard, which is being reproduced in the practice standards across the country, and then you have the curriculum.

I would also add that the people who are going to be doing the first sets of MAID for mental disorders as a sole underlying condition are not going to be new MAID providers, but very experienced MAID providers. We have psychiatrists across the country who have been engaged in MAID assessments and provision and also acting as consultants. Those are the ones who are going to be doing it. They are very experienced and very knowledgeable. They have decades of experience in psychiatry and years now in working with MAID, so we have the experts and we have training for the people coming up through, who will then be mentored by the experts. Yes, I think we are well established.

[Stanley Kutcher]

Thank you.

[Mohamed-Iqbal Ravalia]

I will just make a final point. I'm speaking as a clinician with 35-plus years of experience in a rural and remote community dealing with very complex mental health issues. In my practice, as I've perhaps said, are two individuals who might have met this. These are individuals who have had psychiatric care, electroconvulsive therapy, cranial magnetic stimulation, deep brain therapy, a variety of therapies. They failed all of that and live a lonely, dark existence, so let's not forget those individuals.

[The Joint Chair, Liberal, René Arseneault]

Thank you, Mr. Ravalia.

Go ahead, Mr. Dalphond.

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

Thank you, Mr. Chair.

I have a minor clarification. The Senate proposed imposing an 18‑month time limit on the MAID eligibility exclusion for individuals whose mental health was the sole underlying medical condition. The House of Commons extended that period to 24 months and proposed other provisions. [Inaudible—Editor] is therefore in place. The purpose of the proposed 18‑month time limit was to establish a safeguard system for people. The report was very clear.

My question is about the committee's mandate as it relates to upholding the Constitution. We amended the Criminal Code, and the provisions we put in place were very clear. From Professor Downie's comments, the provisions seem to be quite satisfactory. The committee's mandate is not to review them, but to make sure that they are clearly understood and will be implemented.

I take from your opening remarks, Ms. Downie, that we are doing more than we need to because implementation falls on the provinces, not the federal government. We want to make sure that the provinces are doing what they are supposed to, but our constitutional duty doesn't go that far. Is that correct?

That's for you and maybe Ms. Wills.

[Dr. Jocelyn Downie]

I'll jump in first.

No, it absolutely doesn't. The federal government has done more in respect of this aspect of MAID than it has for any other aspect of MAID in relation to the provincial/territorial jurisdiction. The curriculum or the medical education, the knowledge exchange workshops, the medical training and the model practice standard are all done at a provincial/territorial level. The federal government has facilitated all of that, which has been extraordinary.

The fact that we don't have it for other things is maybe a point we should take: Look at how this can be done. Look at how good it is when we work together. We can build something like this and get a harmonized system across the country.

[Myriam Wills]

I guess I would say that all government legislation like Bill C-7, which expanded MAID for cases where death is not reasonably foreseeable, includes a charter statement. The Department of Justice and the minister must satisfy themselves that whatever is being proposed is constitutional.

[Pierre Dalphond]

Yes, but this is not really the issue behind my question. My question is more this: Have we done that by amending the Criminal Code the way we have? I think we have. If we have done so, then what we're doing now is more than what is constitutionally required. We are testing the water. We're making sure everything is going to happen as we think it should be happening.

We're not constitutionally bound to do that, but I believe we're going beyond that to reassure Canadians.