Physician-Assisted Dying Committee on Feb. 3rd, 2016

[Murray Rankin, NDP, Victoria, BC]

Perhaps you could provide it later.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Could you provide the answer in writing later?

[Kristin Taylor]

Yes, we would be happy to do that. I apologize.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Senator Seidman.

[Judith G. Seidman]

I would like to address my question to Dr. Rajji with the Centre for Addiction and Mental Health. Dr. Rajji, my understanding from my documentation here is that you're chief of geriatric psychiatry.

[Dr. Tarek Rajji]

Yes.

[Judith G. Seidman]

In that case you may be well placed to answer an issue, or at least give us your opinion on a question that has recurred.

With regard to advance directives in countries that permit PAD, individuals with mental health issues, including dementia, are treated differently with regard to advance directives. In the Netherlands, patients are permitted the use of advance directives to outline their wishes while they're competent. In the U.S., they're not. Quebec originally included advance directives, but then removed it from the final version of their bill.

Should our committee consider advance directives to ensure the will of individuals who lack capacity so they are able to access PAD?

[Dr. Tarek Rajji]

This is a question that I think we are also starting to discuss at our panel at CAMH. I don't think we have clear, specific recommendations at this point. The complexity of the issue is that the capacity changes, and that's why the advance directives are important. When individuals may wish to have PAD at that time they may not have the capacity to execute it. However, the wish itself also could change.

From a clinical perspective, again, while dementia has probably a more predictable degenerative course in terms of the natural history compared to what I presented, it's also hard to predict the mental state the individual would experience. When they are incapable of making these decisions is not black or white.

I've seen individuals in the late stage of dementia who are quite content just to sit in a chair and smile. In some sense the neurodegeneration didn't result in severe anxiety or pain and they are dependent in their functions, but they seem to be content versus other individuals who have a different course and exhibit severe suffering at the later stage of the illness.

I'm sharing the complexities of the issue rather than sharing a specific recommendation. The wish may change the mental state of the individual even though they may be lacking in capacity, but the suffering itself may be different between one individual who is capable and projecting and imagining what it would be like for them when they are in that advance stage based on what they know of other individuals versus what could happen 10 years down the road from when the diagnosis was made.

[Judith G. Seidman]

We had quite a stark presentation the other day about the last year of life of someone with dementia. It's probably in all our minds.

We were asked to think about how we would feel with a family who had dementia, or even ourselves, and would we want to ensure that we wouldn't have to endure this terribly stark picture of the last year of life with the privilege of being able to say in advance with an advance directive while we were still competent that we wouldn't want to and that in fact, someone might end their life far earlier while they were still competent if they didn't have the assurance that they'd be able to provide an advance directive.

[Dr. Tarek Rajji]

I understand the complexity of it and I think there needs to be a more in-depth discussion about the advance directive in such individuals. It is not black or white.

[Judith G. Seidman]

Thank you very much. I didn't mean to put you on the spot.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you, Senator.

Senator Joyal.

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

Mr. Chair, I would like to address my question to the Canadian Paediatric Society, and in particular to Ms. Mary Shariff. My question deals with the status of Canadian law in relation to minors in reference to health services. It might be easier for you to comment.

I would like to refer you to a decision of the Supreme Court in 2009. It's a majority Supreme Court decision that you probably know of, A.C. v. Manitoba (Director of Child and Family Services), whereby the Attorney General of Manitoba and the ones in British Columbia and Alberta intervened in the case. I would like to quote paragraph 46 of the decision, wherein the court stated the following:

...common law has more recently abandoned the assumption that all minors lack decisional capacity and replaced it with a general recognition that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding.

In other words, they have the right to make those decisions. It continues:

...the right to make those decisions varies in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.

In other words, it's not a blanket exclusion. They say that as much importance as the decision has for the young person making it, so much more demanding is the scrutinizing of the various sets of criteria that the court has stated at paragraph 96. There are seven of them.

It seems to me that we cannot exclude this, as you suggested, and have a blanket decision that all youngsters below 18 would not be competent. I think they would be competent, but the test of analyzing their competency would be more stringent, because for the decision and the impact of the decision, of course, we know it's about life, and life especially is one of the seven criteria that the court established in that decision.

It seems to me that if we are to legislate in relation to age—or I should say generally the criteria of accessibility—I think we have to take into account that decision of the Supreme Court, which is very recent. It was in 2009.

[Dr. Mary Shariff]

I absolutely would agree with you. One of the things that I'm trying to point out is that there's a distinction between the procedure for assessing capacity and the substantive criteria, right? So yes, we have a procedure in place that can assess the decision-making capacity with children, but that doesn't actually answer the question of whether or not minor children or non-adults—children and teenagers or adolescents—should be able to be given access to physician-assisted death in the first place.

There's a huge ethical component, and ethical data that was not available at the Supreme Court with respect to children was available with respect to adults. The Supreme Court decision didn't just rest on an adult's capacity to choose physician-assisted death. It actually rested on a number of different evidentiary bases to determine, when the arguments were made under section 7—life, liberty, and security—the issues around dignity, the burden on other people, and so on and so forth. We haven't heard any data with respect to what a child's feelings are in terms of when they have a particular type of illness.

I think what I'm trying to say is, yes, absolutely, we have processes to assess a child's capacity, but we have not looked from that ethical data perspective at the substantive question of whether or not they should be given that access in the first place, which would involve consultation with pediatricians, families, and children, and then taking the next step in looking at the issue of process and determining whether or not they do indeed have the capacity to make that decision.

Does that make sense?

[Serge Joyal]

Well, I have a different opinion, but I don't think I have the time to express it.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

You're out of time.

Ms. Dabrusin.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I would like to address my question to Dr. Rajji of CAMH.

Tonight we've talked about a couple of different scenarios involving mental health, and I would like your clarification as to how you see the difference between them and particularly on how that applies for eligibility.

We have a scenario perhaps where there is a person who has a mental health issue—I think schizophrenia was used as an example tonight. The person considers the situation to be grievous and irremediable, and the enduring suffering is intolerable, and that person is requesting physician-assisted dying.

Another scenario would be a request from a person who has some type of a terminal illness as well as a mental health issue such as schizophrenia. Can you perhaps tell us if you see a difference in what that might mean for eligibility, and what impact that might have?

[Dr. Tarek Rajji]

To give a completely hypothetical example, if someone has an illness like schizophrenia and they are having an acute episode of psychosis and they are thinking of death or requesting suicide or requesting PAD, it's because of a hypothetical belief that if they don't die, then the whole planet is going to turn into dust. There is a delusional belief that's driving the suicidal ideation or the request in that case. This is where the capacity assessment is important, to differentiate whether or not that request is driven by delusion or by a distortion that's driven by the mental illness.

A similar scenario could happen with someone—and I will change this example for privacy—who has schizophrenia but then develops a treatable cancer and is refusing the treatment because they believe that if they get the treatment, their sibling will get the cancer. In this case, the decision to receive a treatment or to request PAD because of the cancer is driven by the delusion that if they don't die, then their sibling will get the cancer. I think this is where it's important to engage a psychiatrist to assess the capacity and to determine how much of the request for PAD is driven by delusional thinking. I hope this answers your question.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

Assuming that the person does pass a capacity assessment, so that the person does have capacity, and you have those two scenarios again, what would be the impact on eligibility?

[Dr. Tarek Rajji]

In the case where someone is requesting PAD because of schizophrenia, this is where the irremediable nature of the illness is not clear. We can't define it clearly. In the example I gave, some individuals are not acutely psychotic, but they believe there is no hope that they will recover from the illness they are suffering from. This belief about themselves, their view of themselves, is not psychotic according to medical terminology, but it is driven by social factors that have contributed to it, maybe because they've been abused since they were kids. Maybe they were bullied and then they lost their jobs because the person who was hiring them couldn't understand how to deal with someone with a mental illness. Over time, a person with mental illness builds up all of these beliefs of worthlessness or helplessness or hopelessness, but these beliefs are malleable. That's the recovery-based approach I referred to that could be used as an intervention.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I just want to jump in though, because there are two parts. You're discussing vulnerabilities, and we must absolutely investigate how to protect vulnerable people, but there was the initial question of simple eligibility, which was whether, to your mind, a person who has capacity but in these two different situations could be eligible under the Carter test.

[Dr. Tarek Rajji]

In the first example, it's hard to make a case for eligibility just because of the mental illness, because the belief will probably still be driven by the mental illness, or the implications of the mental illness, that they are subjected to. In the second example, they could be eligible if clearly the illness is not contributing to the capacity and they are suffering from a terminal physical illness considered by a board, by a consensus, or by the physicians to be irremediable. The difference is that in mental illness it's hard for us to see if just because of a mental illness the condition could be irremediable.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you.

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair, and I want to thank all of our witnesses.

My first question is directed to Mr. Hashmi. Thank you, Mr. Hashmi, for drawing attention to what I believe is the foundational concept that all of us, as committee members, need to have, which is the basic intrinsic dignity of all human beings, regardless of deformity or disability.

We are blessed to have many Canadian doctors of many faiths and I'm sure many in your community are medical physicians. Would you care to comment on what degree of conscience protection you would like to see in the legislation, given the fact that we have the Carter decision? We would rather it wasn't there, but it's there.

What kinds of conscience protections would you like to see this committee include in the recommendations to our government?

[Imam Sikander Hashmi]

We would say that there should definitely be protection for individual physicians who want to avoid any type of participation in this type of procedure. I would also extend that to health care facilities that are faith-based to ensure that.... Again, it's a balance of rights. Those who want to stay away to whatever degree they feel is important for them, their faith, and their conscience, should have the ability to do so.