Evidence of meeting #8 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 suffering.
A recording is available from Parliament.
3 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Thank you very much.
Mr. Roberge, you represent 36,000 members of the Canadian Bar Association, or CBA. I read your report summary.
You made recommendations regarding the safeguards to be incorporated into the current Criminal Code provisions for persons suffering exclusively from mental illnesses who will seek MAID once it is allowed in 2023. How would you compare them to those you would propose?
3:05 p.m.
Member, End of Life Working Group, The Canadian Bar Association
At this point, actually...
3:05 p.m.
Member, End of Life Working Group, The Canadian Bar Association
Thank you, Madam Chair.
At this point, the CBA has not made any specific recommendations for safeguards. It has instead stated legal parameters that the government should consider to ensure that the measures adopted align with the criteria in the Carter decision, the Constitution, and the rule of law.
3:05 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Excuse me for interrupting.
I think you are referring to seeing whether expertise in this area could help us adopt safeguards.
Is that up to the CBA or criminal law specialists?
3:05 p.m.
Member, End of Life Working Group, The Canadian Bar Association
Actually, what I could...
3:05 p.m.
The Joint Chair Hon. Yonah Martin
Your time is up, so I will have to move on. Thank you.
Monsieur Thériault, you have five minutes.
May 25th, 2022 / 3:05 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you, Madam Chair.
I would like to take the opportunity to ask a legal specialist who is here today something that I was asked in the past 24 hours and that I could not answer on the spot.
Mr. Roberge, in its report, Quebec and its special commission on the evolution of the end-of-life care act chose not to proceed and not recommend that the bill tabled this morning open the door to mental illness as the sole medical issue.
If we were to follow this recommendation and bill C‑7 and its sunset clause were indeed adopted, what effect would that have on coordination or consistency?
Do you think Quebec would then have to abide by that decision? Would it have some autonomy, leeway? We are well aware that the regulatory frameworks are not necessarily in the Criminal Code.
In your opinion, what would happen from a legal point of view?
3:05 p.m.
Member, End of Life Working Group, The Canadian Bar Association
You know that I am here representing the CBA working group and that we have not specifically addressed the matter you are raising. That being the case, I cannot respond in detail to a hypothetical situation about which we do not have any concrete information.
What I can say, on behalf of the CBA, is that we have already stressed several times the importance of adopting a pan-Canadian approach that will allow for legal harmonization. Moreover, in Truchon and Gladu v. Attorney General of Canada, Justice Beaudoin, who was then with the Superior Court of Quebec, highlighted the issues relating to conflicting laws. Particular attention will of course have to be paid to aligning the laws between the two levels of government.
3:05 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
In terms of the practice on the ground, I have heard before, with regard to other aspects of MAID, that the most restrictive act was often the rule applied in practice.
Do you think that would be the case with this matter?
3:05 p.m.
Member, End of Life Working Group, The Canadian Bar Association
Once again—
3:05 p.m.
Member, End of Life Working Group, The Canadian Bar Association
—it is not the working group's mandate to issue that kind of opinion.
What I can say is that it is always difficult to compare regimes because some provisions are more restrictive while others are more lax. It would be difficult for me to comment on this in the abstract.
3:05 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
Okay. Thank you.
Dr. Smith, what I understood from the expert report provided is that the patients likely to request MAID are those who would not have access. In other words, persons with personality disorders that might involve suicidal tendencies are not necessarily those who would have access and meet the criteria initially.
Is that correct?
3:10 p.m.
Clinical Professor Emeritus, Department of Psychiatry, University of British Columbia, As an Individual
Thank you for that question.
It comes back to the point I made, which has come up repeatedly in the court decisions, that it's the whole person you look at, not the diagnosis. When I first saw cases in the Benelux countries with personality disorder, I thought that this was terrible and that there must have been a mistake.
I went to Belgium and I sat down with my colleagues there, and we went over the cases in great detail. The devil is in the details with this. You're looking at the whole person, not a diagnosis. The people who have had personality disorders and received MAID have been suffering for years and years with an intractable illness that is typically resistant to medication and frequently resistant to psychotherapy, and it is causing them enormous distress. You have to let go of the notion of what the diagnosis is and focus on what the suffering of the person is.
This is why the courts have been so effective, because they have only one or two people in front of them at one time. They can look very carefully at it.
3:10 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
Among the recommendations, however, a certain number of safeguards emerge and are highlighted.
The second recommendation refers to incurability. It says that “the incurability of a mental disorder cannot be established in the absence of multiple attempts at interventions with therapeutic aims”. So that means that incurability does not refer to a state of crisis, but rather to a mental disorder being diagnosed as chronic. In that case, the person could be eligible for MAID at a given point.
Is that correct?
3:10 p.m.
The Joint Chair Hon. Yonah Martin
Actually time is up. Could we have a very quick response, Dr. Smith?
3:10 p.m.
Clinical Professor Emeritus, Department of Psychiatry, University of British Columbia, As an Individual
These are people with chronic illnesses who have been suffering for many years, and incidentally I agree entirely with all the recommendations in the final report of the expert panel. I had nothing to do with this expert panel. I came at it as an interested party and I read it. I have no problems with any of those recommendations.
3:10 p.m.
The Joint Chair Hon. Yonah Martin
Thank you very much.
Now we'll have Mr. MacGregor for five minutes.
3:10 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you very much, Madam Joint Chair.
I too, following other committee members, would like to thank our witnesses for helping guide the committee through this very important study.
Professor Smith, maybe I'll start with you. The report we have been discussing has noted that the presence of many of the mental disorders has been strongly correlated with certain social, economic and environmental inequalities, such as poverty, unemployment and homelessness. In my own riding of Cowichan—Malahat—Langford, we are going through some really bad effects of the opioid crisis. A lot of people are suffering through a lot of trauma.
In your opening statement you did state that with respect to vulnerable people, but I'd still like you to expand a little bit, because I do see on the streets of my riding in my home communities a lot of people who are obviously suffering from mental disorders and a lot of internal anguish. As a committee, we just want to know whether those inequalities that we see might ever influence a person with a mental illness to make a request for medical assistance in dying. I'm just worried that there is such an inequitable access to proper services for so many people out there.
3:10 p.m.
Clinical Professor Emeritus, Department of Psychiatry, University of British Columbia, As an Individual
There's no doubt a great inequality in access to services for many people with psychiatric illness. They are disadvantaged with respect to getting the kinds of treatment they need, but that is becoming true in all other parts of medicine as well. In my province, almost one million people don't have a family doctor, so we're facing a crisis in terms of access to health care.
That's why I think you have to look at the individual case, not at groups of people who may be disadvantaged but at the individual patient who is sitting down in front of you having a discussion about whether or not MAID is an option for them. They probably will have accessed many services by that point. If they've accessed no services, then, of course, as a doctor, as a psychiatrist, I'm going to recommend that they have treatment.
The people who are doing assessments are not blind to the treatment thing, and if there's an obvious treatment that could be offered to the person to relieve their suffering, then by all means we would try not only to recommend it but to arrange it. We're not talking about people who have never been treated or who can't access services. We're talking about people who have been in treatment for years and years and are not improving and are still suffering interminably.
We should all work to get rid of inequalities in the health care system, particularly for disadvantaged communities, but I don't think that necessarily has much to do with a psychiatric illness and MAID.
3:15 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
I have a follow-up question. The requirement in the Criminal Code is that a person who is seeking MAID is capable of making decisions with respect to their health. Is there anything that you would like our committee to take note of if there are any issues when you're assessing the capacity of a person with a mental illness to make a request for MAID? Is there anything that we need to really take note of? Does the Criminal Code need some finessing in that respect?
3:15 p.m.
Clinical Professor Emeritus, Department of Psychiatry, University of British Columbia, As an Individual
There's no doubt that a competency assessment is part and parcel of every MAID assessment. Doctors do this all the time because we can't do a single service with a patient—we can't do surgery or do psychotherapy or give medications—without permission, and the person must be competent. Doctors do this routinely.
In the case of MAID, however, you may need to up the ante a little bit and ensure that there are instruments like the MacArthur competency tests or other instruments that can be used. The competency part of the assessment takes a good chunk of time. We want to make sure before recommending someone for MAID that they are truly competent. I think the other thing to keep in mind is that psychiatric patients like everyone else are assumed to be competent until they are proven otherwise. We don't assume that just because you have schizophrenia or depression or a personality disorder you're not competent. You are considered to be competent until we show otherwise.