Physician-Assisted Dying Committee on Feb. 2nd, 2016

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

It was (b) and (a) I mixed up, but you get my point.

[Leo Russomanno]

I'll take your word for it either way.

Party liability is generally dealt with under section 21 of the Criminal Code for most offences, for example, for aiding, abetting, or encouraging an offence. There are different kinds of party liability. You can actively, just through words, encourage someone to commit a criminal offence, which seems to be parallel to paragraph 241(b), whereas the actual act of aiding, which is perhaps providing the life-ending medication to someone, goes beyond mere words of encouragement and actually plays a different role in bringing about the end of that person's life.

Either way, you get to that end result, which is liability under the Criminal Code, so those are just different expressions of party liability through different means.

I'm not sure if that helped clarify things.

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

Let me turn to our analysts.

Does that help to clarify this? I know you're shy....

Okay, we'll get this clarified afterwards. Perhaps you could stay for a few minutes while we make sure we have it clear.

[Leo Russomanno]

Certainly.

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

Thank you.

I'll turn now to yet another lawyer, Senator Joyal.

[Serge Joyal, Senator, Quebec (Kennebec), Lib.]

Thank you.

You won't be surprised if I want to stay on the legal aspect of the issue. To go back to your answer on what we should be considering if a physician or a health care provider does not comply with the law that Parliament may adopt in relation to physician-assisted death or euthanasia, should we stick to the penalties of the code as they are now, or should we take into consideration that, looking into the decision of the court, there could be mitigating circumstances in relation to either counselling suicide or being part of it? As you know, those are two different offences.

In relation to the doctor, per se, should it not be a way to find a middle ground, considering that we are in a different context—there is a special relationship here, as both the doctor and Ms. Hickey recognized—and considering that this is a profession ruled by a professional order? In other words, there is an element in there that would not exist in non-physician-assisted death; I mean in the regular lives of citizens. If somebody like me advised somebody to commit suicide, I am not a doctor, I am not there to provide any kind of professional advice in terms of health.

Should we not consider that there is a middle ground, and propose in our report to Parliament that in cases of breaches of the law that we are drafting there should be some elements to consider in terms of the penalties, either as mitigating factors or as different scales of penalty?

[Leo Russomanno]

It sounds like an issue of sentencing, if I understand correctly. As it stands, section 241 provides a maximum sentence of 14 years. It would seem there's wide latitude in terms of the sentence available.

To clarify as well with respect to using the criminal law to render physicians liable, we have the added protection in criminal law of mens rea, of the mental element of the criminal offence. A standard of negligence, for example, would not be high enough, presumably, to meet the mens rea, which is more often than not in the Criminal Code a subjective component. There would have to be a specific knowledge on the part of a physician, presumably, that the person is not consenting in a competent way. That may address some of the concerns with physicians being liable for acts that may run afoul of the Carter exception.

In terms of a penalty, yes, I think generally speaking the Criminal Lawyers' Association thinks that the Criminal Code should be used sparingly, and that very often there might be other regimes in place to deal adequately with these kinds of “misconduct”, if I can call them that. I'm not trying to take away from the seriousness of the situation, of course, but there are regulatory bodies that do handle physicians who are negligent or who do have acts of misconduct in this regard.

I'm not sure how else you might build in discretion in sentencing to the Criminal Code. With the maximum as it exists, it would seem that there already is in place quite a significant latitude. I believe it is a straight indictable offence. Perhaps there would be additional latitude by making it a hybrid offence. That would give additional discretion on the part of the crown attorney.

[Serge Joyal]

That's what I was contemplating, and in fact that was to be my next question. It would be a way for the crown to exercise discretion on the nature of the circumstances in which the breach happened, and would give an opportunity to mitigate, as you said, the strength of the Criminal Code as it is now in relation to that offence.

[Leo Russomanno]

Yes. Generally speaking, the summary conviction offences carry a maximum penalty of only six months' imprisonment. In some other cases, it's 18 months, but as a maximum. That's one of the major differences. It also just generally represents a less serious offence when the crown elects to proceed by way of summary conviction. That might be a way to include greater latitude in the Criminal Code.

[Serge Joyal]

Since you are also a lawyer, Dr. Grant—and of course Madam Hickey could certainly have an idea about this—what's your view of that?

[Dr. Douglas Grant]

There are two types of potential breaches. Perhaps that's overly broad, but one of the two potential breaches I foresee is the inappropriate provision of physician-assisted death. If that's accompanied by a mens rea, that is inherently criminal. If it's not, then it's the inappropriate exercise of professional judgment, and that's regulatory. The regulatory colleges are familiar with these overlapping spheres. Sadly, we face those cases all too often.

The other type of breach would be the inappropriate blockage of access. I made the point in my submissions. I worry about that. If a physician, through obfuscation or what have you, inappropriately blocks access to an otherwise eligible patient, I know of nothing that would call that criminal as yet—that would be before your committee to consider—but I would say that it would be something that a regulatory body would deal with quite severely.

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

Thank you, Dr. Grant.

Mr. Aldag.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Thank you.

I'd like to continue along with what we were just talking about a bit in regard to the idea of blockages as well as access. It's about looking at the power of the colleges across the country to influence where things go.

I'll go back a step. I've had a number of doctors speak to me about the use of medicinal marijuana as an example of where we have something that's legal, but it's only somewhat clear in the profession about what's allowed or what's not allowed. I've had some physicians say that they won't prescribe because it's unclear with the CMPA what the liabilities are. Some feel that the colleges of various jurisdictions will single them out if they're participating too much in prescribing.

I'm hoping you can put my mind at ease and say that the colleges will be enablers as opposed to setting up barriers to access. We've heard a lot about conscientious objection. There will be a body of physicians who simply don't want to participate and I'm hoping that won't influence the professional bodies that oversee this to create disincentives for participation. That could come through any number of ways. It can be sanctions. It can be the threat of sanctions. It can be threatening, or reducing the scope of licences because of over-prescribing whatever, or over-participation, or not doing a full range of things. We've had some discussions about whether people specialize in this. Does it limit their ability to practice the full range of medicine?

I would like to hear from your perspective, from the colleges' perspectives, about how we ensure that we don't end up with arbitrary restrictions or limitations to access and actually are able to enable those physicians. We've heard that upwards of 30% are showing support for participating. How do we ensure they are able to participate in physician-assisted dying initiatives and not have the colleges hanging over them?

[Dr. Douglas Grant]

“Ensure” is a powerful word. Carter makes it abundantly clear that no physician can be compelled to participate in this. It's the anticipation of all the colleges—and I think it's reasonable to anticipate—that there will be a coalition of willing physicians who embrace this service. It's certainly happened in other permissive jurisdictions. In the course of our consultations I think it's reasonable to expect that physicians will step to the front for this. Some of course won't.

As for the colleges, in the aftermath of Carter and in the vacuum that existed, I can tell you as president of FMRAC that all of the colleges wanted to put together rough frameworks of how this can be provided. The unanimous view of all of the colleges was that the highest court in the land has created a right, so how do we enable it?

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Okay, that works. I wanted to hear that from the college perspective. We heard it somewhat from the CMA, but we hadn't heard the college perspective on that.

Continuing along are things like CMPA concerns. I don't know who speaks for them, but it's an interesting one. Does that become a disincentive? How do physicians know that their actions in physician-assisted death aren't going to affect their eligibility for insurance, or is that not worthy of discussion?

[Dr. Douglas Grant]

I would say first of all that I certainly don't speak for CMPA—

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Right, but as a physician, you would know the risks.

[Dr. Douglas Grant]

Having said that, I can absolutely assure you that they've been nothing but co-operative along the same lines as the colleges have been. The highest court in the land has recognized that this is a right. They would like clarity and direction as to how the right can be accessed.

Again, I don't speak for CMPA, but I speak with CMPA frequently, and I know that is their view.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Okay.

The document we received from the Nova Scotia college was well thought out. There are sections in it on duties of first and second physicians. Were there any discussions...or is it beyond the scope of your group to look at the role of other health practitioners? We've had lots of discussions about nurses and nurse practitioners, and none of those others are referenced in this document. I am just wondering if there is any—

[Dr. Douglas Grant]

That's largely because they are beyond our jurisdiction. We were looking to fill a void to the extent we could, and we developed what we thought was the most complete document we could within our jurisdiction and we shared it on a consultative basis with other health professionals. There can be no doubt, as I stated in my submission, that health care workers and professionals with whom doctors work need comfort, and the comfort has to be legislative or this service can't be delivered.

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

Thank you very much.

I will just note that CMPA, the Canadian Medical Protective Association, will be joining us later in the week, so we'll be able to get into that.

Mr. Warawa.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you, Chair. I'll be sharing my time with Mr. Albrecht.

This is a question for Dr. Lafontaine.

Thank you for being with us by video conference. Both you and the witness we heard yesterday, a professor, shared with us a concern about the lack of consultation with indigenous communities. As you are aware, the Supreme Court has required Parliament to create a carefully designed system that imposes strict limits that are scrupulously monitored and enforced. To create a carefully designed system requires consultation, yet we have an extremely tight time frame. Parliament needs to have legislation in place by June 6. This process we're going through right now is eating up approximately a month of that extension, leaving three months to build legislation, which takes approximately another month, and then two months to pass it through the House and the Senate.

How would you suggest that indigenous communities be consulted and be part of the process so that we are respecting and showing that input of and consultation with indigenous communities is important?

[Dr. Alika Lafontaine]

That answer has two parts. The first part is that with any law that has this type of complexity, I'd expect it to evolve, so although you are obliged to create a law that is thoughtfully put together, there should be thought on how it will grow over the years. Dr. Grant commented that what is a grievous and irremediable condition that is incurable today may not be that tomorrow. There needs to be room for growth in that way.

The second part is that consultation needs to happen over a period of time, and as you rightly state, the three or four months that you currently have, no matter how you do it, won't be adequate for consultation. That time won't allow people to reflect on the magnitude and weight of what is happening.

How do you do that in a measured way? I think you already have a network of indigenous organizations that could weigh in, so first reach out to them and ask them to put together a position paper on it that discusses some of the issues that I brought up, and they will have others that they will bring up.

Ensure that there is a transparent oversight process specifically for indigenous people, which includes jurisdictional ambiguities that often exist through federally administered programs. Most important to me in my experience with indigenous patients is to ensure that there is a feedback mechanism to hear from patients, so once the law ends up being passed, that there is a component of the law that allows patients to report back to some type of centralized body. Whether you invest that responsibility within the regulatory colleges in provinces or wherever, ensure that you actually assign someone to deal with complaints about the process. As the law evolves, that consultation will be an important part of how that law ends up growing and changing.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

In this process where you see legislation evolving, would you see a need to have an annual or semi-annual review of the existing legislation to assist in the adjustments and the evolving process? Would you see it beginning as more stringent and then becoming less stringent? Will the evolution process become more stringent or less stringent?

[Dr. Alika Lafontaine]

I think the most important aspect of this law is that you have a clear outcome. Is the goal to empower the crown prosecutors to have leniency in how they prosecute? Is it to ensure that the power lies within the regulatory colleges? Or is it patient-centred, whereby the patient defines what is an important situation in order to intervene in this way? That's the first part. Having that clear outcome is important, as well as really defining how you distribute that power structure. The second part of it is ensuring that there's a monitoring mechanism, that you're achieving that outcome.

I think that with this sort of law, with the complexity of it and the multiple stakeholders involved, you could quickly get lost in the process. What I think is being measured for indigenous patients is “are indigenous patients empowered?”, full stop. Regardless of who you have to do that, that's the outcome you should be measuring.