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

[Dr. Douglas Grant]

The psychiatric opinion that we think should be relied on is not one that makes the determination of eligibility for physician-assisted death. We're simply suggesting that when the condition is primarily a mental health condition, the determination of eligibility for PAD should be informed by a psychiatric opinion.

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

Thank you, Dr. Grant.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I guess this is a question for Dr. Grant. We understand that other end-of-life care decisions, like the withdrawal of life support, for example, engage some of the same issues that we're wrestling with here. I'm thinking of capacity assessment, informed consent, and so on.

Could you describe the most rigorous process of checks that might be followed before a complex or contentious request for the withdrawal of life support is fulfilled? How does it work?

[Dr. Douglas Grant]

It all flows from the patient-doctor relationship. The essence of practising medicine is understanding your patient's condition, seeing it through your patient's eyes, and physicians make determinations of decisional capacity or competence every day. The backbone of the Carter decision supports that, that this is the foundational brick upon which our system is built.

This is new territory. Whereas making a determination of competence to achieve an informed consent is fundamental to medicine, I would anticipate that physicians in this situation will often get another opinion, as we always do. Ours is a collaborative profession. When faced with complex, novel questions like the one you describe, it's second nature for physicians to get collaborative opinions, whether that be from a psychiatrist or, in certain settings, as I think was referred to by Chair Oliphant's question, from ethics boards and health authorities. It's natural for physicians to seek comfort with opinions from others.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

My next question is for you, Mr. Russomanno, and thank you.

It's about criminal liability for physicians. What degree of misconduct would expose a physician to criminal prosecution as opposed to discipline by their professional body? We have a job here to look after the vulnerable. There will be some problems, no doubt, where a physician assisting crosses the line. We've been urged to put a lot of our eggs in the basket of the disciplinary powers of the college, but there's still this criminal liability in certain circumstances.

I'd love it if you would talk a little bit about that boundary.

[Leo Russomanno]

Yes, and as I mentioned, the criminal law is a heavy hammer. One might question whether it ought to be used at all.

The question of counselling suicide is really a subset of homicide law. In many cases, if not most, counselling suicide is just another category of murder, without the mandatory minimum sentence of life imprisonment.

Using the Criminal Code to criminalize the conduct of physicians who might run afoul of the exception, which is to be created and was seen in essence in Carter, might be seen as a fairly heavy-handed way of dealing with those physicians. The question you pose is a very good one. The answer might lie more in the use of crown discretion, because crown attorneys exercise discretion every day. In fact, even in laying a counselling suicide charge as opposed to a murder charge, there's an exercise of discretion that creates a massive difference.

[Murray Rankin, NDP, Victoria, BC]

Just to build on that, then, presumably the charge in the worst case of misconduct would be either unlawfully assisting a suicide or homicide.

[Leo Russomanno]

Murder, yes.

[Murray Rankin, NDP, Victoria, BC]

One carries a maximum sentence of 14 years, I believe, and the other a life sentence. If that's true, wouldn't that create an incentive for physicians to prefer assisted suicide over voluntary euthanasia?

[Leo Russomanno]

I'm not sure I understand how that—

[Murray Rankin, NDP, Victoria, BC]

Maybe there are two sections of the Criminal Code that we have to deal with in these circumstances. One could be a charge of homicide, and one could be a charge of assisting suicide in an inappropriate way.

[Leo Russomanno]

The premise of your question I think might be based on answers given by the counsel at the Department of Justice—I apologize, but I don't remember her name—who seems to equate counselling suicide with physician-assisted death, whereas euthanasia would be more tantamount to murder. I don't agree with that characterization.

Physician-assisted suicide, if it runs afoul of the exception in Carter, is, in every conceivable way that I can think of, murder. It's a matter of crown discretion that a person is charged not with murder but rather with counselling suicide. In regard to aiding and abetting a murder, for example, to take it out of the physician-assisted suicide context, if a person provides the getaway car to someone knowing that they're specifically intending to kill somebody and they do then go on to commit that murder, the person who provides the getaway car is equally guilty of murder.

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

Thank you.

I'm going to give Mr. Rankin one more minute if Ms. Hickey wants to comment, because you were implicated in there on that boundary between criminal and regulatory discipline. I don't know whether you have anything you want to add.

[Marjorie Hickey, Legal Counsel, College of Physicians and Surgeons of Nova Scotia]

I would just reinforce what Mr. Russomanno said in terms of the bluntness of the instrument of the Criminal Code and urge that professional standards be developed on the more nuanced areas involving the clinical judgment of physicians that can address individual circumstances so that the provisions of the Criminal Code deal only with those provisions that require clarity on the eligibility criteria. That will then give physicians the appropriate discretion to exercise their judgment, which would then fall within the realm of the medical regulatory authorities provincially to address it in the type of nuanced way that can better be accomplished through that mechanism than through the blunt instrument of the Criminal Code.

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

Thank you. It is a joy to be surrounded by physicians and lawyers.

[Voices]

Oh, oh!

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

Senator Seidman.

[Judith G. Seidman]

Thank you very much for your testimony.

I will start with Dr. Grant.

When Peter Hogg appeared before the committee at the end of January, he proposed that federal legislation should be drafted to provide a fairly extensive framework for physician-assisted dying in Canada, with the provision that this federal legislation would not apply to provinces or territories that have enacted substantially similar physician-assisted dying regimes.

We've had other witnesses who have said that the federal framework should be much less extensive.

Do you have an opinion with respect to Mr. Hogg's proposal? He is, of course, a supreme constitutional expert, and we do have a lot of respect for what he said, but I think someone from the provincial college might have a perspective. He had no perspective, no experience at all with the medical aspects of this, which he readily admitted.

[Dr. Douglas Grant]

I think what I fear most is legislation that is overly prescriptive. As I said in my submission, so much of this touches on the fundamental essence of medicine, which is understanding your patient, achieving informed consent. I worry that federal legislation that is too ambitious, too prescriptive, might intrude on that relationship, and moreover, it might not have the flexibility required to evolve as medicine evolves.

Make no mistake; our college and the colleges in general will welcome direction on areas in Carter that are unclear, or perhaps even more important, that are beyond our jurisdiction to do anything about. I would say there are some clearer areas where federal legislation and amendments to the Criminal Code will help, but I would urge that the medical nuance, the medical relationship that's at the centre of this not be subject to legislative confines.

[Judith G. Seidman]

In fact, you said when you began your presentation that what was fundamentally medical and clinical should be the right of the colleges, so I ask you about the process and procedures with which we have been somewhat preoccupied; process and procedures meaning the steps that should be involved in making a request for physician-assisted dying, and the steps that should be involved in the physician providing physician-assisted dying.

Is it your intent to tell us that those are issues that are between the physician and the patient?

[Dr. Douglas Grant]

I would say so. Thank you for the question. Yes.

I would say this. The colleges and the medical profession need some clarity about things, and in my submissions I discuss the arc of the deteriorating patient. We need that direction. Physicians need to know they are on solid legal footing. Moreover, so too do the patients and their families. This is an incredibly stressful time for families and I think they deserve the comfort of knowing that this is proceeding in an orderly and clear way.

Federal legislation that addresses those areas that are still unclear, like the timing of the criteria, would be welcome, but leave to the profession of medicine the essentially medical things.

[Judith G. Seidman]

Thank you.

Dr. Lafontaine, thank you very much for your presentation to us this evening. It was extremely revealing and important for us to listen to.

I would like to ask you a rather pragmatic question, if I might. It has to do with some testimony we've heard before this committee about how regulated health professionals, including registered nurses or physician assistants, should be able to provide physician-assisted dying under the direction of a physician or a nurse practitioner. This was with special reference to access of citizens and others, and this might apply to aboriginal communities and first nations in the north that don't have the same kind of access in a regular way to physician-assisted dying that this legislation may refer to.

[Dr. Alika Lafontaine]

That's an excellent point and thank you for the question. I'll go back to a comment that was raised earlier about the Supreme Court saying that this is a cruel choice. I think when Carter came down the way that it did, it was an effort by the Supreme Court to ensure that patients were empowered to make a choice that affected them in an unconstitutional way.

Dr. Grant has gone back over and over again to getting to the essence of the patient-physician relationship, and I think that sort of relationship is developed with any type of health care professional, physician or otherwise.

One of the realities in medicine is that when you come into my OR and I am your anaesthesiologist, you have no power. You have only the power that I give you. If you start being combative, and I decide that you've already provided your informed consent, I can start giving you medication that will change the way you think and take away your ability to resist. I think that's something we need to consider strongly when it comes to remote communities, including those indigenous communities that you mentioned.

The goal of any of this legislation should be to democratize the power differential that exists between physicians and their patients, or between any other health care provider and their patients. We have the incredible responsibility as health care providers to allocate resources, and we do this deliberately through policies that we follow, but we also do it based on our decisions. When you were talked to earlier by Mr. Russomanno about the crown having the latitude to decide what types of charters are laid, that actually takes the power out of the hands of the patient. As we develop more and more policy that strengthens the physician position or the nurse position, or other legislation that might be passed, we have to keep in mind that the goal of Carter was to empower the patient. It was not to create additional jurisdictional barriers or to enhance the power differential that already exists between the patient and other bodies.

Whether it's a nurse or it's any other individual who provides it, we need to consider that we're really focused on making sure that the patient has the choice.

Another quick point is that it's not straightforward to do physician-assisted death. As someone who has skill in providing different pharmaceutical medications in order to achieve certain outcomes, I can say that it is not straightforward, so you have to consider, as well, whether or not the subsequent training will be provided to do this in a way that is actually comfortable.

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

Thank you.

Just before we move to Senator Joyal, I want to give Mr. Russomanno a chance to clarify for the record something that our analysts are questioning. It refers to section 241 of the Criminal Code, which has an (a) and a (b). Paragraph (a) refers to counselling a person to commit suicide. Paragraph (b) is aiding and abetting a person to commit suicide.

Carter is dealing with paragraph 241(a), and you kept referring to paragraph 241(b) but we're blending them. We just want to make sure we can clarify this so we can use it for our testimony.

[Leo Russomanno]

Thank you. I appreciate that opportunity. We're talking about different kinds of party liability, so under section, I believe, 21—