Physician-Assisted Dying Committee on Feb. 4th, 2016

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

All right.

As to my questions, I have some questions for Dr. Stern.

You mentioned in your report to us that the CMPA would like to see legislated protections against criminal charges and civil liability for doctors. I saw that you proposed one form of wording in your letter, which was from the Vermont legislation. It states, “A physician shall be immune from any civil or criminal liability or professional disciplinary action for actions performed in good faith compliance....”

Have you seen any other models? Is that the model you prefer?

[Dr. Hartley Stern]

Rather than focus on the model, I think I would focus on the words. For me, and in my interpretation, the issue is around good faith. Physicians who act in good faith under the law should be immune from prosecution. Whether it's bad faith, indifference, or a casual approach, that would exclude them from this protection, but I believe the vast majority of physicians will participate in good faith. They should be protected under the law under that specific wording.

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

Okay. If we were looking at that type of provision, “good faith” is what you would have us use as our governing thought?

[Dr. Hartley Stern]

I'm not a lawyer, but I believe that lawyers who know what good faith is could incorporate that into your legislation in a way that would be helpful to the situation.

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

I also wanted to talk to you about accessibility. You can correct me, but my understanding is that doctors pay different premium rates depending on the types of services they provide in their profession. Is that...?

[Dr. Hartley Stern]

With great respect, there are a number of errors in your hypothesis here.

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

All right.

[Dr. Hartley Stern]

Doctors don't pay premiums to us. We are not an insurance company. We are a not-for-profit mutual liability protection system. They pay fees each year, and they're not based on their individual risk. They're based on their risk as a physician. An obstetrician, who is at higher risk of getting into a civil matter, would pay a higher fee than a dermatologist or a family doctor.

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

Okay. That touches upon what I was trying to get at, but thank you for that correction.

In relation to physician-assisted dying, would there be anything you would need to see in this legislation to ensure that when doctors who perform this service were being assessed by the CMPA , the rate would not be so prohibitive to them that they would not provide that service?

[Dr. Hartley Stern]

Just to be very clear on the impact of this legislation, there will be no impact on what physicians pay us in the way of fees.

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

Thank you for that.

Mr. Chipeur, I wanted to talk to you quickly about this practice advisory.

Having to go through a judicial system requires legal expenses and requires paying for expert opinions. Who would cover that cost? By having a judicial system like that, don't we risk creating an access barrier so that it's only open to the wealthy?

[Gerald Chipeur]

We certainly don't create a barrier today when individuals make applications for guardianship and trusteeship or when decisions are made with respect to children when parents have refused health care. In all of those cases, either the physician or the health care facility covers the legal fees involved.

I don't think we should make a decision about life and death based upon who pays. Those issues about who pays can be addressed. Certainly the provincial governments can address that. Certainly our system is flexible enough to address the cost.

My issue is vulnerability and finding the best way to protect not just the patient but also the physician. The issue here—

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

My question was just about that particular matter.

[Gerald Chipeur]

Okay. I don't see that as a barrier.

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

Thank you, Ms. Dabrusin.

Mr. Deltell, you may go ahead.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you, Mr. Chair.

Welcome, gentlemen, to your parliament.

Mr. Chipeur, you said that you want to see a judicial review before any actions have been taken. I know you're a lawyer, but the point we're talking about here is health care. How can a judge know what is good or not good for someone who's going to die?

[Gerald Chipeur]

We do that right now in probably a dozen different cases, those in which physicians make a decision or expert determination with respect to children, with respect to the mentally incompetent, with respect to individuals who cannot make the decision for themselves, with respect to cases of guardianship and trusteeship. Right now health care decisions are reviewed by judges on a regular basis. They are well suited for it.

If we are going to protect physicians, the best way is a priori, in advance. If we are going to review what they do after the case, there will be some very big class actions. The class action bar will be there to take on the role of advocating for individuals in families who have disagreed with the decisions made by the patient and the physician.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Take the example of Quebec: two physicians are not enough to make a good judgment in that situation?

[Gerald Chipeur]

I think there is a big risk of litigation and a significant risk of abuse. I say this because we have examples from Alberta up to 1972, and we have examples right now in Europe, where you have after-the-fact reviews of what physicians have done. What physicians are doing is they are not reporting, because they don't want the hassle of spending time in the review process after the fact.

I'm not saying this is theoretical; I'm saying that in fact, today, if you go with after-the-fact review, you will not catch every death, you will have abuse, and you will have negligence.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you, Mr. Chipeur.

Dr. Stern, you witnessed the Quebec experience when you were at the Montreal Jewish General Hospital. The main question we have to resolve is with regard to the mix of the criminal courts and the health care system. Health care belongs to provincial administration, and the Criminal Code belongs to federal administration. With your experience, and with what you have seen in Quebec, do you think the new law that Parliament must adopt should give a big indication to the province instead of leaving more flexibility to the province?

[Dr. Hartley Stern]

It's a very important question, but our perspective is really around the patient and the importance of consistency across the country so that a patient anywhere in the country has equal access, under the law, to physician-assisted dying.

We absolutely believe that federal legislation is required, and we are disturbed by the notion of different interpretations or disparate interpretations of the eligibility criteria. It is extremely important that there be consistency and clarity around the definition of eligibility criteria and consistency around the safeguards and protection, particularly for the vulnerable patients, of whom my colleagues to the left here have spoken so eloquently. This can only, in my view, in our view, be done under a federal legislative framework.

I mentioned the notion of the concept of similarity, so that if the federal legislation and the provincial legislation were sufficiently similar, it is my understanding that the federal legislation will not supplant the provincial legislation. In that sense, if all the other provinces began to look similar to what Quebec has done in a very thoughtful way, and the federal legislation also looks similar, I think we would have the consistency we're looking for.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you.

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

Thank you, Monsieur Deltell.

I'd like to ask Mr. Chipeur one question for clarification, and perhaps two.

You gave examples of judicial review a priori of medical practices. Can you give one where competence is not at issue? We are dealing with the idea that competence has been determined and we are saying that medical practitioners may be involved in it. You've given some examples. I think in all of them the degree of competence was at stake with judicial review of the decision. Can you give us one example of judicial review of a medical practice where competence is not at issue?

[Gerald Chipeur]

The decisions with respect to children are not really about competence; they are about what's in the best interest of the children, so I think those would be cases. Examples could be the blood transfusion cases, but—

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

They could be.

Okay. The second question I have for you is with respect to Madam Justice Smith's operational directives. Are you aware that they're a result of the Supreme Court's decision that a judicial review would be required in the interim because an extension has been granted due to a lengthy delay due to an election? That was the reason. It has nothing to do with the Ontario court insisting they do a review. Are you aware of that?