Good evening. My name is Dr. Hartley Stern. I am the executive director and CEO of the Canadian Medical Protective Association, CMPA.
Honourable senators and members of Parliament, thank you for this opportunity to appear before you. In the time available to me I will touch upon each of the questions you have asked of us. There is greater detail in our written submission.
I have spent much of my life as a surgical oncologist and more recently as the director of the Ottawa Hospital Regional Cancer Centre, and even more recently as the director general of l'Hôpital général juif de Montréal.
In each of these positions, I bore witness to the incredible suffering that some patients nearing the end of their life suffered. I also saw the devastating impact on their families, on the physicians and on the other health care providers who were concerned with these patients.
I would teach my students about the incredible importance and impact that the relationship between the physician and the patient, built on trust and on empathy, has on that patient as he or she enters into the end-of-life decisions.
I've now joined the Canadian Medical Protective Association because as the principal provider of medical legal assistance to Canadian physicians, we can support our member physicians in their efforts to give consistent, quality care to their patients. We, the CMPA, sit at the intersection of the Canadian health care and legal systems. As such, we are already, and will continue to, receiving questions from our members and advising them on all aspects of end-of-life care, which includes palliative care and physician-assisted dying.
Today for this committee's purpose, I will focus on physician-assisted dying in my remarks.
Our principal objective in making recommendations on the legislative response to Carter is to impress upon you the overarching requirement to have federal legislation that articulates principles of clarity and consistency so that obstacles that currently exist for patients to maintain their constitutional right to access physician-assisted dying are eliminated and that protection under the law is promoted.
The obstacles that we see are created by the current gap in legislation which creates confusion in the minds of patients, in the minds of their families, physicians and other health care providers as to principally who is eligible for physician-assisted dying, what the safeguards are to protect patients, particularly the most vulnerable, and what form of physician-assisted dying should be administered.
We believe federal legislation is required. Outside Quebec, no such legislation exists and there is uncertainty. Our members have already called because of this uncertainty. In this vacuum, the courts are faced with making decisions regarding physician-assisted dying until June 6. The courts will be challenged significantly in their ability to issue orders that are consistent based only on the high principles outlined in Carter.
We are aware that in Ontario the Superior Court has already published a practice advisory to guide the court applications. The medical regulatory authorities, the colleges of physicians and surgeons, have also published guidelines for physicians. We applaud these efforts, but they are not a substitute for comprehensive legislation required to fill the social policy vacuum.
Federal legislation most importantly must address the issues of eligibility criteria and safeguards consistently applied across the country. Now we fully recognize there is jurisdictional overlap with the provincial and territorial legislatures in this regard. The committee may wish to explore the possibility of developing a framework such that federal legislation will not supplant substantially similar provincial legislation. Such an approach is not unprecedented in Canada.
I would like to focus now on the recommendations to you on the issues of eligibility criteria and safeguards—challenging issues clearly. The starting point will be amendments to the Criminal Code to confirm that physicians providing a patient with aid in dying are not in violation of the general prohibition against assisted suicide. This is a fundamental requirement to permit physicians to enter into that very trusting and empathetic relationship with the patient that is so essential to the successful implementation of this policy.
We are particularly concerned with the disparate interpretations of the term “adult” used in Carter. We submit that a clear definition of the age requirement is essential to remove this uncertainty. Legislation must either use an age of majority approach or define competency for a mature minor. If the approach is adopted to extend eligibility to the mature minor, we believe it will also be necessary to address how patient competence will be assessed in that context. The test to determine competency is a subjective one and is difficult to implement in the best-case scenario. In this complex situation, it will be even more complex to implement such a policy. On balance, therefore, we believe a clear age requirement is the preferable approach.
Federal legislation will also have to address the form of assisted dying and whether it includes self-administration. The legislation must include safeguards for the protection of patients. The Supreme Court did not specifically discuss the issue in their decision. In Quebec, medical aid in dying must be administered by a physician. A physician could not prescribe a lethal dose of a drug to a patient to self-administer. The College of Physicians and Surgeons of Ontario has published guidance that contemplates the possibility of self-administration.
In Carter the Supreme Court used the term “grievous and irremediable medical condition”. As you know, this is not a medical term. Legislation should provide guiding principles on this issue so that patients and their physicians have a clear understanding of when patients will be eligible, while also taking into account an individual's unique circumstances. Legislation should also clearly state whether assisted dying may be requested by way of an advance medical directive. To ensure a consistent approach and equal access, any legislation should carefully consider whether and when such directives must be respected.
I'd like to turn to the rights of conscience. The Supreme Court recognized the patient's right to physician-assisted death, but also clearly stated that its ruling was not intended to compel physicians to provide assistance in dying. Legislation is required to address the appropriate balance between these two rights. The committee might consider the model adopted under Quebec's legislation. Under that model, a physician who refuses a request for medical aid in dying for reasons of conscience must notify the designated authority, which in turn will find a physician who is willing to consider the request.
Let me reiterate the reasons for the necessity of legislative protection for physicians. Physicians engaged in physician-assisted dying play a unique role for their patients. As I mentioned, this relationship is one based on trust and empathy, and in this most complex of situations, relies on an intimate relationship between the patient and his or her physician as they work collaboratively and collectively on the best approach for that individual patient. The CMPA submits that federal legislation must provide some assurances for these physicians so that they know they will not be prosecuted if they comply with the requirements under the law for physician-assisted dying and believe in good faith that their patients meet the criteria.
In conclusion, honourable senators and members of Parliament, the task ahead of this committee is significant. We ask you to bear in mind the importance of the relationship between the patient and the physician, and the importance of ensuring that both are protected along their journey.
On behalf of the CMPA, I'd like to thank the joint committee for the opportunity to present our view.
We would be pleased to provide you with any further information or data that you may find useful.
Thank you very much.