Evidence of meeting #6 for Medical Assistance in Dying in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was request.
A video is available from Parliament.
6:35 p.m.
The Joint Chair Hon. Yonah Martin, Senator, British Columbia, C
I call this meeting to order.
Good evening and welcome, everyone.
At this time, I will call on Mr. Cooper.
6:35 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Madam Chair.
I would like to move a motion that I have put on notice. It reads:
That, the committee dedicate six hours to study the effectiveness, compliance, and enforceability of the legislated safeguards for Medical Assistance in Dying in Canada under both the C-14 and C-7 regimes.
That is the motion. I believe it is important that a review of the existing safeguards and instances of possible abuse and coercion be done by the committee. I would note that pursuant to Bill C-14, there was to be a retrospective review of the provisions in Bill C-14. That review never took place.
There have been a number of well-publicized instances of potential abuse, including recently. A 51-year-old London, Ontario, woman accessed medical assistance in dying after she could not find adequate housing—
6:35 p.m.
The Joint Chair Hon. Yonah Martin
Mr. Cooper, I'm sorry to interrupt you. In the interest of time, would you be agreeable to my asking the members to adjourn this for today and take it up next week in a dedicated time in next Monday's meeting?
6:35 p.m.
Some hon. members
Agreed.
6:35 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
Madam Chair, I would like us to discuss the following motion, notice of which I gave last week:
That, given the importance of the Special Committee on Physician-Assisted Dying's work with regard to the provisions of the Criminal Code and the application thereof, the Committee allocate time as follows to hear witness testimony for each of the components of this study:
a) 12 hours for testimony related to mature minors;
b) 12 hours for testimony related to advance requests;
c) 12 hours for testimony related to mental health;
d) 8 hours for testimony related to palliative care; and
e) 5 hours for testimony related to persons with disabilities;
it being understood that the time already allocated to hear from witnesses at the Committee meetings of April 25 and 28 is taken into account when calculating the number of hours allocated per component.
I would note that it's not the chronology of the components that's important but rather the number of hours.
Madam Chair, it's also understood that, in organizing our work plan, we will have to take into account what the House has recently adopted. That, moreover, is the purpose of this motion. I would note that the committee will be required to table an interim report no later than June 23 on the issue of mental illness as the sole medical condition for requesting medical assistance in dying.
And that's that.
6:35 p.m.
The Joint Chair Hon. Yonah Martin
Thank you, Mr. Thériault.
Are you also agreeable that we adjourn this discussion until next Monday?
6:35 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
That's fine with me, Madam Chair, provided the organization of parliamentary business at the end of the session and the extended sitting hours don't force us to cancel next Monday's meeting or to sacrifice the committee. I want to inform committee members that should such a situation arise next Monday, I'd be upset if the parties decided that the committee wouldn't sit or that it would be sacrificed.
That's my only worry. Otherwise, I agree to adjourn the discussion until next Monday.
6:35 p.m.
The Joint Chair Hon. Yonah Martin
Is it agreeable to everyone to adjourn the discussion until next Monday?
6:35 p.m.
Some hon. members
Agreed.
6:35 p.m.
The Joint Chair Hon. Yonah Martin
Thank you.
With that, I would like once again to welcome the members of the committee, the witnesses and members of the public who are following this meeting of the Special Joint Committee on Medical Assistance in Dying.
I am Senator Yonah Martin, and I am the Senate's joint chair of this committee.
I'm joined by the Honourable Marc Garneau, the House of Commons' joint chair.
Today we continue our planned review of the provisions of the Criminal Code relating to medical assistance in dying and their application.
The Board of Internal Economy requires that committees adhere to the health protocols, which are in effect until June 23, 2022. As joint chairs, we will enforce these measures, and we thank everyone for their co-operation.
I'd like to remind members and witnesses to keep their microphones muted unless recognized by name by the joint chair.
As a reminder, all comments should be addressed through the joint chairs. When speaking, please speak slowly and clearly.
Interpretation in this video conference will work as it does in an in-person committee meeting. You have the choice, at the bottom of your screen, of either “floor”, “English” or “French”.
With that, I'd like to welcome all of our witnesses.
For the first panel, we have, as individuals, Louise Bernier, professor, faculty of law, Université de Sherbrooke, and Trudo Lemmens, professor, Scholl chair, health law and policy, faculty of law, University of Toronto.
We also have Ms. Danielle Chalifoux, lawyer and chair of the Institut de planification des soins du Québec.
Each of our witnesses will have five minutes, starting with Ms. Bernier.
6:35 p.m.
Louise Bernier Professor, Faculty of Law, Université de Sherbrooke, As an Individual
Good evening. I am delighted to be with you today as part of your study on advance requests for medical assistance in dying, although I am personally more concerned with requests that are made following a diagnosis of neurocognitive disorder.
Today I will be providing you with some food for thought in three main areas: first, support in making advance decisions; second, implementing MAiD; and, third, the long-term effects of this societal decision more generally.
I will begin with support in making advance decisions.
In my research work, I have realized how important it is not to be sparing with this type of support. Since advance consent is always imperfect, we really must reflect on how we plan to support patients in their process of consenting to end-of-life care, or final care. If we go ahead and allow advance requests for medical assistance in dying, it will be very important that patients be supported by health professionals. We must develop mechanisms to ensure that their choice is not made without medical expertise, given the complex nature of these conditions and the various possible stages and scenarios.
In Quebec, we have a system of advance medical directives on which I have done a considerable amount of work in recent years. To respect individual autonomy and create a tool that's flexible and easy to use, we have come up with a very simple solution: a form with boxes to tick. We even assumed that patients had gathered information before signing it. If we decide to allow advance requests for medical assistance in dying, we will definitely have to do things differently. There has been very little uptake of our advance medical directives system, and that may be one of the reasons why.
What I'm imagining is a flexible tool that would help people establish priorities and provide a reference point when they become incapable. They should also be able to ask questions, to be supported and to plan, together with other professionals, how all that will fit in with follow‑up care. People must not be left to their own devices. There is broad acceptance in Canada and Quebec of the idea of being able to make such an advance decision on one's own, but, from what I have observed from my reading and work, we also have a duty of support.
There is also the idea of letting people change their minds. I will even go so far as to say that consent should be an ongoing process, by which I mean that people must reaffirm their informed consent to this care as their condition evolves, relying on the experiential knowledge they have acquired.
The second part of my presentation concerns the importance of reflecting on the implementation of this choice, which is often described as an individual choice rooted in individual autonomy and self-determination. I obviously don't question this, but we also cannot disregard the fact that this choice, once the person has become incapable, will be implemented by third parties, mainly health professionals, who are also governed by professional, ethical and legal obligations.
You are obviously aware of the assessment that these professionals are required to conduct under the act. Currently, for example, there is the criterion of suffering, which always resurfaces. For access to care to be granted, it must be established that the person is experiencing persistent and intolerable suffering. How is that suffering assessed? I don't have the answer. Will we allow individuals to determine in advance what suffering is for them? Will we request a contemporaneous assessment of that suffering? What will we do if there are no factors indicating whether the incapable person is suffering or not?
What I'm getting at is that we must provide the caregivers and health professionals who execute the decision with markers and tools. We want to prevent them from being troubled by existential questions and wondering whether they have correctly interpreted the situation. We also want to prevent them from suffering in the process.
There will also be repercussions for family members, who, whether we like it or not, will also play a central role in these decisions. They won't be making the decisions, but they will be involved. What role will be assign them? Do we want to give them a role that's more…
6:40 p.m.
Professor, Faculty of Law, Université de Sherbrooke, As an Individual
Is my time already up, Madam Chair?
6:40 p.m.
Professor, Faculty of Law, Université de Sherbrooke, As an Individual
I had something else to add. May I finish what I was saying?
6:40 p.m.
Professor, Faculty of Law, Université de Sherbrooke, As an Individual
All right.
I would just like to say one thing about my last point, which concerns the societal choices associated with medical assistance in dying. We must ensure that we continue providing care. I'll come back to this later, and I would ask you to remind me to do so.
Thank you.
6:45 p.m.
The Joint Chair Hon. Yonah Martin
Thank you very much.
I'll try to give a 30-second warning as well.
Next we have Mr. Trudo Lemmens for five minutes, please.
6:45 p.m.
Dr. Trudo Lemmens Professor, Scholl Chair, Health Law and Policy, Faculty of Law, University of Toronto, As an Individual
I thank the committee for the invitation.
I was, as professor of law and bioethics, a member of the Council of Canadian Academies' expert panel on advance requests for MAID. I have studied MAID and euthanasia law and practice, particularly also in the Belgian and Dutch regimes.
As others, I come to this with previous experience. I think of my late mother, who lived in Belgium, where euthanasia based on an advance request is only possible when a person is no longer conscious. Belgium has relatively good elder care, and my mother had some reassurances that she would be treated with the care our elders with dementia deserve and their inherent dignity requires. I think of my Montreal father-in-law, who had a supportive spouse and the means to receive good quality home care.
Many Canadians, however, face he prospect of being warehoused in substandard long-term care homes. We already see how lack of resources and quality care lead persons who are not dying to request MAID. It is in this context that AR for MAID is put forward as a solution to what is referred to as a loss of dignity—yet, we know that quality care is possible and can preserve dignity.
If some recent recommendations are followed, health care providers would need to introduce MAID when informing a patient of a devastating diagnosis of, say, early Alzheimer's. This ignores, in my view, the dynamics of doctor-patient relations and the pressure that can result from professionals suggesting that medicalized death is a solution in a context where lack of social and good elder care support are already undermining consent.
ARs for MAID further raise insurmountable ethical and human rights concerns. We should reconsider them and, in my view, not expand them further. The concerns they raise are reflected in this: Belgium only allows MAID based on advance requests when persons are permanently unconscious, to avoid euthanizing people who still enjoy life and may resist. The Netherlands originally had difficulty with MAID based on advance requests, since they considered it impossible to defend it on the basis that persons “suffer unbearably” if they could no longer confirm this. It now has permitted it for persons, even when they appear to resist.
Neither regime involves explicit, contemporary consent, arguably constitutionally required if we take the Supreme Court's emphasis on “clear consent” in Carter v. Canada seriously. Allowing AR for MAID reflects the idea that prior wishes of patients who cannot fully appreciate what future illness will bring have priority over current interests; that this can be done by procedures that give third persons clarity about levels of suffering and patients' real wishes; and that there are no serious implications for family members, health care providers, other disabled persons and society at large. AR for MAID is, in this view, a question of management.
The Council of Canadian Academies' expert report shows that there is no evidence that procedural solutions can easily address the legal and ethical concerns. Even its discussion of communication tools to reduce uncertainty shows that these solutions are theoretical and speculative.
The International Convention on the Rights of Persons with Disabilities explicitly recognizes in its article 12 the inherent legal capacity of persons with cognitive disabilities. This implies a duty to enable expressions of current interest.
Evidence from the Netherlands, the only jurisdiction that allows euthanasia of persons with advanced dementia who are still conscious, shows what this means. It inevitably involves third party consent and evaluation of the person's suffering. It usually involves surreptitious medicating of patients to suppress resistance and then actively ending life. Contrary to withholding treatment in other health care contexts, it involves an active invasion of a person's bodily integrity. Surreptitious medicating and suppressing resistance violate ethical norms and run counter to the duty to enable an expression of current interests of cognitively disabled persons, which the international convention requires. It moves us into involuntary ending of life. It expresses in law also the view that life with cognitive disability involves loss of dignity.
I urge the committee to read a recent article by Belgian and Dutch experts, who argue that Belgium should avoid the Dutch approach. Belgium legalized euthanasia in 2002. Twenty years later, and informed by the practice in the neighbouring country, it still hasn't expanded its AR regime for MAID. Our current AR regime for MAID already goes beyond Belgian law, while our social and health care support is below the OECD average.
We should listen to experts who tell us, based on the Dutch experience they've studied—and these are not people who are against legalized MAID—that ARs for MAID create insurmountable ethical and legal concerns—
6:50 p.m.
Professor, Scholl Chair, Health Law and Policy, Faculty of Law, University of Toronto, As an Individual
Yes.
We should prioritize health care and social support that promotes the human rights of all, including those with cognitive disabilities.
I thank you for my time.