Evidence of meeting #2 for Medical Assistance in Dying in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was case.
A recording is available from Parliament.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you, Mr. Chair.
Professor Downie, I noticed you were taking notes. Unless you have any reservations, I would like you to answer Mr. Cooper’s questions.
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Gladly. The court, in Carter, absolutely had psychiatric illness in front of it. I was there. Joe Arvay, the lead counsel who argued the case, explained in a previous parliamentary committee hearing that psychiatric illness was present through affidavits and was in front of the court.
The second point is that if you look at E.F., what they did—and what I was relying on—is look at whether Carter, within its parameters of “a grievous and irremediable medical condition”, included mental illness. It did, which means that the striking down of the absolute ban on MAID for people with a “grievous and irremediable medical condition” captures mental illness. That is what E.F. said it was.
Truchon expressly addressed the meaning of Carter, and it expressly addressed the issue of psychiatric patients and mental disorders. There's a whole passage. That's why I've given you the paragraph numbers where the judge in that case went directly into the evidence about mental illness, psychiatric illness and what's gone on in the Netherlands, Belgium and so on. She quoted the E.F. decision and Carter, and explained the paragraph that gets cited—paragraph 127 is cited all the time—and the evidence that was introduced from Belgium.
That is exactly what the courts considered. The argument you've heard tonight against what I presented is exactly what was presented in court, in E.F., to the Court of Appeal of Alberta, and in Truchon. In both cases, it was found to be unpersuasive. They said the quote was taken out of context; they do consider psychiatric illness, and it's not excluded by their saying these are the parameters. It's all explained. It's difficult in the time constraints we have to explain the legal arguments, which is why I gave the passages, but what's been said about psychiatric illness not being before the courts is not true in all of the cases.
What is an issue, in looking at those three cases, to be specific, is mental illness inside “a grievous and irremediable medical condition”, because the Supreme Court of Canada said it was unconstitutional to ban it for “a grievous and irremediable medical condition”. The answer from those cases, and the judgment of the Department of Justice, was that it is included in “a grievous and irremediable medical condition”.
Liberal
Bloc
Luc Thériault Bloc Montcalm, QC
That’s excellent.
Professor Downie, let’s talk about clinical ethics.
You have been involved from the outset in this debate on medical assistance in dying and access to it.
As we know, it is Parliament that passes laws. Could you explain to us why this Parliament has consistently lagged behind on this issue and was forced by the Supreme Court to move forward and amend the Criminal Code? To what do you attribute this?
The citizens we represent agree on this. When it comes to medical assistance in dying in Quebec, approval ratings stand at 88 or 90%. Mr. Lemmens may not agree with all forms of medical assistance in dying, but in Quebec, we do agree. We even have legislation.
How do you explain that it is the Supreme Court that has to tell parliamentarians to do their job?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
I asked former senator Carstairs that years ago, and she explained it to me this way. She said that people who support MAID—the vast majority of Canadians—have been supporting it for decades and are not single-issue voters.
People who are opposed to MAID—it's a right-to-life movement that was against it at the time she was talking about—will target you for being in support of MAID, so you'll lose an election. If you take the pro position, if you go that way, you'll lose an election on that single issue.
Others, people like me who support MAID.... I'm not making my political decision on the basis of what the MP or the party thinks about MAID.
I think it's a political calculation. What happens is—this is very frank—that they look at what the impact on elections will be and they don't want to inflame and alienate people who are opposed to MAID. They know the court will come along. That's what happened after the last time this extension happened. They said, “We know you'll go to court.” They can wrap themselves in the court, and they don't have to take the political heat for it.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you. The time is up.
Senator Dalphond, you have the floor for three minutes.
Senator, Quebec (De Lorimier), PSG
Thank you, Mr. Chair.
Professor Downie, you said that the regulatory readiness was there and the clinical readiness as well. Can you elaborate on the regulatory readiness you're referring to?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes. When I said I had the research, one is looking back at what the regulators said to the last AMAD iteration, and the regulators came and said they were ready. They were already ready, so they're still going to be ready.
I would also say that when you look at the structure of professional self-regulation, it requires.... They have a statutory obligation to be ready for whatever gets thrown at them, whether it's a change in the law or a clinical change—and they are. Their statutory obligation is to protect the public, which means they—
Senator, Quebec (De Lorimier), PSG
Are you aware, since you were last here three years ago, of any kind of change in the regulations, across whatever province in Canada, that is addressing that issue of mental illness as a sole condition to access MAID?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
My understanding is that the colleges have all looked at it and made determinations in different ways as to whether they need to change anything in order to deal with mental illness. I know that some have felt that there's actually nothing that needs to be changed, in part because.... Of course, people with mental disorders are already able to access MAID. If you have concerns about capacity assessments, incurability and so on, they can already access it as long as they have a physical condition.
They've looked at them, and they've made adjustments where they believed them to be needed. That's where the decision-making actually rests appropriately. The federal government, as you well know, does Criminal Code. The provinces do health and delegate regulation of clinicians to the colleges, and they're ready.
Senator, Quebec (De Lorimier), PSG
You also refer to clinical readiness. What brings you to that conclusion?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
It's that there are the training programs. You have the CAMAP national curriculum and various educational programs throughout the country. You have the practice guidance that comes from CAMAP as well, and the CPA is forthcoming.
That's the typical way you get clinical readiness for a new intervention. You make sure you have the training and the education available to people. You make sure you have guidance from the professional associations, if that's needed. Those have all been done. There is actually nothing else that needs to be done. Everything has been done. Things will continue in clinical practice to evolve, as they always do, and the clinical groups will respond appropriately, whether it be a regulatory body or CAMAP and other kinds of associations.
Liberal
The Joint Chair Hon. Yonah Martin
Thank you to both of you.
My question is for Professor Lemmens.
You serve on the Ontario MAID death review committee, as you've already stated, and you've published peer-reviewed analysis drawing on the committee's publicly released reports. Without breaching the confidentiality of any internal deliberations, could you tell the committee about specific published cases in which mental health drivers such as depression, hopelessness, grief or psychosocial suffering played a significant role in the deaths of people whose primary eligibility pathway was track 2?
I'm asking because those cases, in the existing, more restrictive system, are the most direct evidence of what could happen at scale if MAID were expanded for mental illness as a sole underlying condition.
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
As I already indicated in my statement, I think it's the wrong approach to start saying, as Professor Downie does, that people already have access to MAID for mental illness so these situations have been addressed where needed.
My work, as a member of the Ontario MAID death review committee.... We reviewed the full files. We talk in detail about these files. The reports are published, and I would urge the members to read these reports. I'm not saying these are the majority of cases, but these contain cases that show that people with very serious mental illness have really been fast-tracked to death in Canada.
I find it quite stunning, actually, that when we engage in discussions about this at the professional level, there is such a polarization in this debate. Instead of saying, “Oh, maybe these cases are serious and maybe we have to look at them in more detail,” there is immediate push-back. People say this cannot be true and the college has looked at it and it's all been solved.
I can read you a case. Mr. A had inflammatory bowel disease. He “could not maintain employment, he found personal relationships difficult to sustain, and he was dependent on family for housing and financial support.” He had “a history of mental illness, previous episodes of suicidality, and on-going alcohol and opioid misuse.” He received information about MAID during a psychiatric assessment.
If you ask suicide specialists what they think about the fact that a psychiatric expert would ask a person who is struggling if they know about MAID....
The report says that his substance use “was not explored...and he was not offered addiction treatments.” There was “no documented input” from his family, who had concerns about his MAID request. “The MAiD provider personally transported Mr. A in their vehicle to an external location for the provision of MAiD.”
That's just an example of some of the cases I've seen—
The Joint Chair Hon. Yonah Martin
Professor, I'm out of time. I wonder if you could send the link to this report that has these cases. I think it would be of great importance for us to look at. You said it's publicly available.
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
Yes. I can also send you a peer-reviewed publication that Dr. Ramona Coelho, David Shannon and I, three members of the review committee—
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
I can share that. They're very short summaries of the reports, which are much longer.
Liberal
Senator, Ontario, ISG
Thank you, Mr. Chair.
Professor Downie, I'm going to quickly read to you a letter received by the committee from the Federation of Medical Regulatory Authorities of Canada, in which Dr. Adey states:
Whatever decisions are taken regarding the next steps of legislation related to MAiD.... We have a legal duty to be ready.
With respect to MAiD specifically, the question of regulatory readiness was raised in the aftermath of the Carter decision.... At each juncture, when the law changed, the regulators were ready.
Do you agree? Is this your observation of what has happened?
The second question I have has to do with your thoughts on the coroner's MAID death review committee. What is your view on the claims that have been made about the work of the MDRC?
Finally, do the current legal and regulatory frameworks adequately address the issue of vulnerability?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
First, with regard to the regulators, they are the best situated to make the assessment of their readiness. It doesn't surprise me that they say that they're ready, because they were ready before, as I said. I would agree with that analysis of their need to be ready.
In terms of the MDRC, I think it is really important to understand its mandate. Its mandate is not compliance. It doesn't do assessments for compliance. It is not empowered to make findings of non-compliance with the law. It also doesn't aim for consensus. It discusses, and the reports include comments.
One thing I would urge is caution when you receive these reports and are reading them and then comparing them to what is seen in the media about them. Notice the fact that the reports will expressly say, “We are not making findings.” They have different people expressing their views—a negative view on a particular case, for example—and then you'll see that represented in the media as a finding of the MDRC. That's just not true; that's not how it works. That's an expression of opinion by the person who said it in that committee hearing, and they're saying it again in the media. Be very cautious about what the MDRC is actually doing.
It can perform a very important function, because we should be looking at everything. We should be talking about the complex cases. We should be trying to figure out how clinical practice should evolve in the face of all of the complexities.
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
It's vulnerability. Absolutely, the eligibility criteria and the procedural safeguards were written in order to address the issue of vulnerability, and they do so. You must be fully informed. It must be a voluntary decision with no coercion or undue influence. When you are track 2, you have to be told about all of the things that are available to you as options.
The final thing I'd say is that the evidence speaks for the quality of the readiness in relation to protecting vulnerability, because the evidence is very strong from Health Canada that socio-economic vulnerability and marginalization are not drivers of MAID. This was the fear before. This was expressed as that we were going to go down a slippery slope and that this will happen. We now have years of data that show that it's a privilege and that it's not vulnerability.