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

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

You have 20 seconds.

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

I'll get a quick answer. In the polling, 95% of people who responded said that there should be a requirement for palliative care to be offered to someone so that they actually have informed consent. Would you agree?

[Sharon Baxter]

Absolutely. I just need to say that the jurisdictions that have moved toward physician-hastened death and physician-assisted death have all made investments in palliative care, as we've seen in Quebec in the last six months to a year. I think it needs to happen, because you get yourself caught up in being challenged that you haven't provided the best care possible and then people are choosing to end their lives because we haven't done the best that we could.

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

Thank you, Ms. Baxter. It's hard to call you Ms. Baxter, Sharon.

[Sharon Baxter]

We know each other.

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

We have Mr. Rankin and then Madam Sansoucy.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair.

Just for the committee's benefit, I know, Dr. Smith, that you are a very prominent child psychiatrist in British Columbia and former head of the BCMA, so I was taken with your comments, sir, about the problem of dealing with competent adults and your recommendation that we expand it to children, which I know is a very difficult issue.

I'd like to ask you to expand a little on that. I notice that the interim guidance from the College of Physicians and Surgeons of B.C. limits the service of physician-assisted dying to adults, so I'd like to give you an opportunity to say how you personally see that this might work.

[Dr. Derryck Smith]

I think that in the first instance, we should leave it to persons who are competent legally, and there are many people who are competent legally who are not over 21. I know there is legislation in British Columbia that specifically allows young teenagers to consent to medical care without consulting their parents, and that was specifically around the provision of birth control pills for young women. I have worked with many teenagers over the years and I have worked with a number who have been facing death, and I think they would be competent in the legal sense to consent to physician-assisted dying as they would be legally competent to agree to other kinds of medical care.

From a practical point of view, if you're dealing with a teenager, you ideally like to get the teenager and the parent to agree, because then you know you have the individual who has authority to agree to it, but I don't think that limiting this to adults.... Why would we want teenagers to suffer, but we're prepared to relieve adults of suffering? It makes no sense to me, and that's why I'm saying that the most controversial area—and this is certainly a controversy in Europe—is what to do with children who are suffering irremediable pain at the end of their lives. I'm not expecting your committee to deal with that other than to give it some thought, but I think limiting it to competent individuals would solve the concerns that I have around teenagers who may be legally competent.

[Murray Rankin, NDP, Victoria, BC]

Thank you, sir.

Another difficult problem that you put your finger on is the issue of someone who is no longer competent. You spoke about dementia, for example. Again, the college in B.C. seems to be saying that the patient must maintain mental capacity for physician-assisted death to proceed, and if at any time they lose that capacity to rescind their decision, physician-assisted death ceases to be an option, yet those are very much the people you talked about who motivated you. They are the people for whom one would want to allow this service to be provided. You spoke of your relatives, for example.

I'd like you to spend a little bit longer on that topic.

[Dr. Derryck Smith]

I'd be happy to do that.

I have visited a number of people who were in the latter stages of dying from dementia. They are typically in bed, incontinent of feces and urine, in adult diapers 24-7. They do not know who they are or where they are. They cannot speak. This is not a condition most Canadians would want to be in at the end of their life. I certainly do not want to end my life that way. I witnessed both my father and mother-in-law dying in that state. We need to find a way to allow people who are competent currently to ensure that they do not end up in that condition toward the end of their lives if they choose not to. People are perfectly at liberty to choose to die how they wish, so I think we need to give some more careful thought to that.

I know what the College of Physicians and Surgeons has said here, but I disagree with them on that, and I would challenge members of your committee to reflect on how they would like to die and what they would think about a relative of theirs dying in the sorry state of end-stage Alzheimer's and a year of living in a bed wearing an adult diaper. It's not sensible for people to be in that state at the end of their life.

[Murray Rankin, NDP, Victoria, BC]

I have one minute left.

I would like to know if you think that any process we come up with ought to contain an appeal or whether that is necessary. Let us suppose that a particular physician or group of physicians refuse the service a patient seeks. What happens then? Should there be an appeal for that patient? Is there a danger of “doctor shopping” under those circumstances?

[Dr. Derryck Smith]

Generally, I am in favour of appeals on any important decision that happens in our lives. The court system has many levels of appeal. The only instance that I know of where appeal systems are in place is in the European countries, where a person who is denied physician-assisted dying by their physician can appeal. In Belgium, the appeal rate I'm familiar with is about 30%. In other words, 30% of people who were denied by their physicians are allowed by this panel to have physician-assisted dying. I think you'd have to look at the legislation in those countries to get a better sense of how to make that operational, but, in general, I think most important decisions in our lives should be able to be appealed.

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

Thank you, Dr. Smith.

Senator Nancy Ruth.

[Nancy Ruth, Senator, Ontario (Cluny), C]

Dr. Smith, in your experience, are doctors familiar with the social determinants of health? If they are, will doctors be able to distinguish between a grievous and irremediable medical condition and a patient's wish to die because of inequalities in health care, societal neglect, and social prejudices about life, whether they have a disability or a mental health condition?

[Dr. Derryck Smith]

That's a very difficult and probing question. I think doctors are aware of the social determinants of health, of such things as access to quality health care and access to clean water, good food, and so on. Maybe we're not as sensitive as we should be to some of the inequalities we see in our society, particularly with first nations communities and other disadvantaged individuals. I live in Vancouver, and the streets of downtown Vancouver are inhabited by people who have chronic mental illness and substance abuse problems.

I don't pretend to give you an easy answer on that one, because I don't think there is one. I certainly believe, however, that people whose primary suffering comes from mental illness should not necessarily be denied access to physician-assisted dying, although the numbers in Oregon and the European countries are very small for people who simply have a mental illness that makes their life intolerable.

Having known many patients with severe mental illness, though, I can tell you that many of them end up with a life that is intolerable. Could it be made better by the provision of better services? Probably the answer is yes.

[Nancy Ruth]

We had testimony from some psychiatric association that if a person had colon cancer, say, and requested physician-assisted death, and they had a history of mental illness, a psychiatrist should be called in to assess competence before that was given. Do you agree with that?

[Dr. Derryck Smith]

I think there is a role for psychiatry, particularly where mental illness is one of the issues. Some people have called for psychiatrists to be involved with every decision. I think that's really neither practical nor necessary. General practitioners, family doctors, are the ones who usually determine whether someone is competent or not, but there may be a role specifically for psychiatry to play where there is an issue of mental illness.

I'm hoping that my colleagues at the Canadian Psychiatric Association are going to address that. I spoke with the Canadian Psychiatric Association at their annual meeting this year, and I think they are attuned to the issues and hopefully will come up with some policy directive on that.

[Nancy Ruth]

Thank you.

Professor, I note your professional work on feminist approaches to bioethics. Could I ask you for a gender-based analysis of physician-assisted death? Are there particular matters in physician-assisted death relating to women, or to men, of which this committee should take particular notice or that we should address in our recommendations?

[Dr. Carolyn Ells]

The reporting of those who request and complete death via physician-assisted dying should include statistics about gender, for sure. We're certainly aware that the population is aging, and women tend to live longer than men and tend to live poorer than men in terms of their resources. Some women who are at that age now are from generations that were trained and socialized to not think highly of themselves, to defer, and things like that.

So yes, we should be careful; however, I think we should consider that health professionals have accompanied patients through very difficult situations for a long time and have a lot of experience with carefully building a relationship, a rapport, and going through a consent process in planning how one's dying and one's care at the end of life should be. I think we should allow that we are already pretty good at a lot of that. I don't think we need to learn a lot of extra new things, but of course we should take great care—

[Nancy Ruth]

Thank you.

Ms. Baxter—

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

I'm sorry, Senator, but I'm afraid I have to move from you and turn to Senator Cowan.

[James S. Cowan, Senator, Nova Scotia, Lib.]

Thank you.

My questions are for Dr. Smith.

All of us are concerned about suggestions that vulnerable Canadians would be at risk in this regime that is to be established in response to Carter. Would you agree with me that the concepts of capacity, competence, and informed consent are well understood by physicians and in the legal system and that there's no need to further define them?

[Dr. Derryck Smith]

Yes. Doctors cannot perform any medical services for any patient without someone consenting to it. Many times it's implied. If a patient just shows up in my office to see me, I don't get them to sign a consent. I presume they are consenting because they are there. However, the ante has to be upped once you get into serious matters. For example, no Canadian going for surgery is going to have it without a written consent.

I think this is maybe one of the ultimate decisions in life, so I think we need to keep the bar very high on the fully informed consent that one has to think about for a while.

Are doctors attuned to those issues? I believe the average doctor is. Family doctors make these decisions on a daily basis when they're assessing patients. That's not to say that we couldn't improve. I think there needs to be a general education program for physicians, not only to help them deal with the mechanics of physician-assisted dying but also to help with the philosophical issues, the ethical issues, and the issues of informed consent.

We need to learn more, but I think we're pretty okay with informed consent currently.

[James S. Cowan]

That also applies to assessment of capacity and competence.

[Dr. Derryck Smith]

Yes. There are manuals—