Senators and members, thank you for inviting me.
I have been a member of the Barreau du Québec since 1985 and, since 2010, chair of the Institut de planification des soins du Québec, which is particularly interested in the seniors' rights and medical assistance in dying.
I have published many articles on those topics and have sat on numerous expert panels and government and parliamentary commissions.
I have also conducted studies on nursing care and practice, mainly in CHSLDs and palliative care homes, which has helped me understand the issues in a more practical way.
Given the time allotted me, my comments will focus solely on potential statutory amendments respecting advance requests for medical assistance in dying.
First of all, I would emphasize that rescinding the reasonably foreseeable natural death criterion has resulted in a considerable increase in the number of persons able to access medical assistance in dying. For those with cognitive disorders, for example, it is now sufficient for their grievous and irremediable health condition to be accompanied by an advanced state of irreversible decline in capacity and suffering that they obviously consider intolerable, provided they are still sufficiently capable.
I would note that the Canadian Association of MAiD Assessors and Providers, which really is the authority in this field in Canada, considers that the imminent loss of capacity associated with neurocognitive disorders must be considered as an advanced state of irreversible decline in capacity. When the loss of capacity is anticipated in the near future, these persons may then request and receive medical assistance in dying contemporaneously.
In addition to this option, it would also be possible to make an advance request for medical assistance in dying. These individuals would thus have two options.
Now I would like to draw your attention to the fact that some people recommend granting medical assistance in dying solely to persons who, before making a request, have received a diagnosis of neurocognitive degenerative disorder.
If Parliament adopted such a restriction, that would mean that victims of sudden and unforeseeable impairment that may result in a loss of capacity, such as stroke and severe cranial trauma, would be excluded as they clearly would not previously have obtained a diagnosis. The Institut de planification des soins du Québec believes that the adoption of such a restriction would be neither legitimate nor lawful.
This restriction would be illegitimate because it would run counter to the opinion of a very large majority of citizens. In the public consultation that the Quebec government recently conducted in the course of its work, 91.8% of respondents were in favour of advance requests for medical assistance in dying in the event of sudden and unforeseeable incidents resulting in a loss of capacity.
This restriction would also be unlawful in our view because it would contravene section 1 of the Canadian Charter of Rights and Freedoms and at least two of the tests established in the Oakes judgment. It would contravene Parliament's obligation to impair rights as little as possible because appropriate and far less draconian safeguards could be adopted. It would also contravene the proportionality test as the benefits would be more operational, but the deleterious effects would amount to a negation of recognized rights, both the right to self-determination of persons and the right to medical assistance in dying.
In conclusion, if Parliament adopted such a restriction preventing medical assistance in dying from being granted to persons who have obtained a prior diagnosis, all victims of a sudden and unforeseen impairment would be deprived of their rights. Thus, the first class of persons that we discussed earlier would have two options, to make a contemporaneous or an advance request for medical assistance in dying, whereas persons unable to make an advance request before obtaining a diagnosis would have none.
