Evidence of meeting #12 for Physician-Assisted Dying in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was patient.
A video is available from Parliament.
Liberal
The Joint Chair (Mr. Robert Oliphant) Liberal Rob Oliphant
Thank you. That's quite wonderful. Often people finish their important parts and continue with unimportant parts, but you didn't. That's quite good. We appreciate that.
Dr. Hartley Stern from the Canadian Medical Protective Association, executive director and CEO, thank you for joining us tonight.
Dr. Hartley Stern Executive Director and Chief Executive Officer, The Canadian Medical Protective Association
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.
Liberal
The Joint Chair (Mr. Robert Oliphant) Liberal Rob Oliphant
We will continue with Michael Bach.
He is executive vice-president of the Canadian Association for Community Living.
Mr. Bach.
Michael Bach Executive Vice-President, Canadian Association for Community Living
Thank you, Mr. Chair, honourable senators and members of Parliament.
In order to arrive at our recommendations to this committee, the Canadian Association for Community Living asked for advice from People First of Canada, the national association of people with intellectual disabilities that advocates for themselves. They told us in no uncertain terms that they want two things. First, they want access to physician-assisted suicide without discrimination on the basis of disability. People with intellectual disabilities are three to four times more likely to die from preventable deaths than the general population, and heart disease and cancer are the leading causes. People with intellectual disabilities are dying painful and difficult deaths with intolerable and enduring suffering. They want access on the same terms as anyone else.
However, they told us just as passionately that they want absolute assurance that there will be safeguards to protect their inherent right to life and that they'll have access to those safeguards without discrimination on the basis of disability. They don't want assisted death. What they need is support and good care, because disproportionately they face poverty, lack of support, or abuse.
While much has been said in the wake of Carter about the right to choose, we believe it's equally important to give as much focus to the other half of the equation that the Supreme Court insisted must be balanced: protecting the right to life.
You know, it's odd. I feel a bit awkward as I talk about the inherent right to life, because the moment the words are out of our mouths, it's often taken, it seems, that we're trying to roll back hard-won rights to choice, like reproductive rights for women. Our motivations couldn't be further from the truth. It was in fact a small committee of people with intellectual disabilities who led their legal counsel into the Supreme Court of Canada 30 years ago this year to secure the right not to be sterilized without their consent. They won in the Eve case, which set an international standard.
We know what the right to choose is all about. We've been on the front lines of that struggle for decades. But we must also stand firmly on the vantage point of the inherent right to life, its protection forged in the dark shadow of the atrocities of World War II, in order to give it indisputable recognition and obligation by states parties: the Nuremberg Code, which set the new standard for what voluntary consent now means in medical ethics and physician behaviour, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights.
It's true that the sanctity of human life finds a source in world religious traditions, but let us not forget that it is in the cornerstone international human rights instruments of the 20th century and in our Charter of Rights and Freedoms that the inherent right to life finds its clearest obligations on secular grounds, for Parliament and for all Canadians. So why must we design a system for physician-assisted suicide from both vantage points, not just the right to choose, but also the inherent right to life?
On Monday of this week, Flemish Radio and Television Broadcasting Organization in Belgium broadcasted a story brought to light by two sisters of a young woman who was euthanized in 2010 under the law in that country. Following the end of a romantic relationship, she was in a mental health crisis and was in treatment with a psychiatrist. Two months before her life was ended, the psychiatrist diagnosed her with autism and could then conclude that she had an irremediable medical condition and that her psychological suffering was unbearable. She was put to death. When her traumatized family later asked her physician why he had confirmed the psychiatrist's assessment, he admitted that he was not in agreement but that he had no choice, stating that he thought Tine Nys “shopped” with too many doctors.
There were two other cases reported in the medical journals. In Oregon, an 85-year-old cancer patient with worsening dementia requested physician-assisted suicide, but her psychiatrist believed she was being pressured by her family. Nevertheless, she was approved by a psychologist. In the Netherlands, a wife who no longer wished or was not able to care for her sick elderly husband gave him a choice between euthanasia or admission to a nursing home. Afraid of being left to the mercy of strangers in an unfamiliar place, he chose euthanasia, and his doctor ended his life.
When the Carter case was first heard at the B.C. Supreme Court, Justice Smith knew enough of such cases to very carefully examine the extensive evidence before her about the types of safeguards that could be put in place, given the obligation to protect the right to life of vulnerable persons. She concluded her analysis with the following list: mandatory psychiatric evaluation to ensure capacity for informed consent; disqualification of major depressive disorder; minimum waiting period; a second independent physician with expertise about the condition; required palliative care consultation; an advance expert review panel that must issue a decision in 48 hours; and a patient right to appeal the review panel's decision.
It was the legal counsel for the plaintiffs in Carter who presented this list to the court—the plaintiffs including Gloria Taylor and the British Columbia Civil Liberties Association—as their recommendations for effective safeguards that could justify exceptions to the Criminal Code prohibition.
Immediately following the presentation of that list, in her decision, the trial judge stated her conclusion, which was also quoted by the Supreme Court to justify its own decision:
...the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.
We stand 100% behind the recommendations of the plaintiffs, which we think can be best summarized into six core pillars of a statutory safeguard system to be embedded in the Criminal Code.
One, only adults can access. We strongly urge that mature minors not be eligible. We don't deny the suffering of children and adolescents, but we believe that palliative care is the answer in those situations. This is a decision that children and adolescents and their families should not have to make. If you have to be majority age to vote in this country, surely this is a limit that we can impose.
The second is to define “grievous and irremediable medical condition” as terminal end-of-life conditions. We urge the committee to be guided in large part by the Quebec legislation, with emphasis on incurable serious illness, and advanced state of irreversible decline in capability, and also look to the specific definitions that have been proposed in the David Baker and Gilbert Sharpe draft bill, which has been submitted to this committee, and also to the clarifications that David Baker sent by letter to this committee yesterday. If instead Parliament were to follow the recommendations of the provincial-territorial advisory group on this matter, what happened to Tine in Belgium in 2010 would happen in Canada. Moreover, the cause of her death, by the advisory group's recommendations, would be registered on her death certificate as autism. Autism would show up as a killer in Canada's vital statistics, as would Down's syndrome, bipolar disorder, cerebral palsy, and many other conditions, which it's true are serious or very serious, which is the definition proposed for defining what “grievous and irremediable” should mean, by the provincial-territorial advisory group. They turned to the Oxford dictionary for that definition. We think Parliament can and must do much better than that.
The third speaks to enduring and intolerable suffering in the circumstances—and I underline “in the circumstances”—of the patient's condition. This is a key criterion that Carter specifies: one's suffering and circumstances cannot be anticipated in advance. This criterion makes clear that advance directives should not be—we believe cannot be—on the table, and we urge Parliament to make that explicit in the Criminal Code. Capacity to consent must be a criterion right up to the moment of taking a lethal dose.
The fourth concerns review by two physicians to determine if the criteria are met—independent physicians—at least one with expertise about the condition, and the requirement that they engage other professionals as might be needed for diagnosis, prognosis, and exploration of all the causes of the person's suffering, which is the job we rely upon and vest our trust in physicians to do.
The fifth is about mandatory vulnerability assessment. This must be undertaken in response to each request, to determine if the factors that could induce the patient to commit suicide in a time of weakness are in fact motivating the request. We've outlined this in more detail in our brief to you and also in a background paper on vulnerability assessment.
The six and final point concerns an independent advance review panel to consider the request and reports on capacity and other criteria, including vulnerability, from any physicians involved. Proposals for such a panel have been presented to this committee by David Baker and Gilbert Sharpe, and also yesterday by the Canadian Council of Imams. There's also strong support among Canadians for this safeguard. In an online survey of almost 13,000 Canadians, 53% supported this mechanism, and 54% in a poll released last week by the Canadian Association of Retired Persons.
It's also important to note that the treaty body monitoring the International Covenant on Civil and Political Rights, which Canada ratified in 1976, has repeatedly called for implementation of an advance independent review mechanism for physician-assisted suicide, because of evidence like Tine's, to ensure that states parties fulfill their obligations to protect the inherent right to life under article 6 of covenant.
Having such a panel in place would prevent doctor shopping, guard against vulnerable persons being induced to commit suicide, and—critically important, we believe—ensure physicians do not have to play two irreconcilable and, we believe, conflicting roles: on the one hand doing everything possible to assess and remediate medical conditions and patient suffering, and then on the other approving interventions intended to bring about the death of their patients.
Thank you for the opportunity to present before the committee this evening.
Liberal
Gerald Chipeur Lawyer, As an Individual
Thank you, honourable senators and members of Parliament.
Twenty-one years ago, in 1995, I was before a similar Senate committee on the same issue. It is a pleasure to be back with you again to talk about this important issue. I was counsel at trial and at appeal and in the Supreme Court in the Carter case, and I've spoken on this subject in Canada at our universities and Canadian bar associations.
I will go right to my most important point, Mr. Chair, and that is that if you carefully implement the exact words of Carter, you will not likely go wrong. I believe that Chief Justice Heather Smith did this, and the court's list of requirements that were published today means that my most important recommendation is there should be no assisted death unless a judge has confirmed that all the requirements of Carter have been met.
In my presentation I will go into the reason I strongly recommend judicial review in advance. I recommend that for all provinces, including Quebec. That would not be inconsistent with the Quebec legislation. With the Quebec legislation, you would have to comply with both the federal and the Quebec legislation.
I will address each of the questions that this committee sent us.
First, on age, I agree with the previous presenter that the age of 18 is the appropriate limit on access to assistance in suicide. The decision of the Supreme Court of Canada in A.C. v. Manitoba in 2009 requires Parliament to act in the best interests of children and to create a presumption that children are not competent to make life-and-death decisions, and that means anyone under the age of 18.
Second, on the question of capacity, the capacity limitations identified in Carter v. Canada are critical to protect the vulnerable. No one suffering from a mental disability that impacts capacity should have access to suicide assistance. The decision of the Supreme Court in Eve reaffirms and reinforces that principle. It prohibits consent to death on behalf of a person who is incompetent to give consent. This includes the immature, the mentally disabled, and those who have lost the ability to make competent decisions for any reason. This also means there could be no advance directives on the subject of physician-assisted suicide without conflicting with the decision of the Supreme Court of Canada in Eve.
Third, going on to conditions, all the conditions expressly identified in Carter v. Canada must be reiterated in the legislation adopted by Canada. The failure to include conditions will create unnecessary risk of abuse and will create an impression that government supports suicide. This is not a message that should be given at this time, particularly in Alberta, where the suicide rate in some first nation communities is 100 times the national average.
The fourth question was on vulnerable Canadians. The Supreme Court of Canada, in Carter, carefully balanced the right to life of those in unremitting pain with the right to life of the vulnerable who need protection from abuse under the Criminal Code. The court observed that the models in other jurisdictions were not impressive and that Canada must and could do better. The right to life in section 7 of the charter requires Parliament to take into account both perspectives on life. This issue is addressed by the European Court of Human Rights in the case of Haas v. Switzerland from 2011. In that case, the European Court of Human Rights recognized the dual responsibility of Parliament or of government, and that is you must both protect life as well as allowing individuals to make choices at the end of life.
Going on to the mechanics of the request, the legislation from Parliament should prohibit a physician or any person from raising the subject of suicide with an individual. The individual must raise the question before the subject may be addressed by a physician. There are numerous stories, and I won't take your time this evening to go through them, of psychological stress and abuse caused by government or medical staff raising the idea of suicide with the ill or the elderly. This abuse must be prohibited and prevented. Until the idea of suicide is voluntarily addressed first by the patient, the medical team must be restricted to offering only palliative care.
There is another reason to require that the individual raise the issue. We in Alberta know the unfortunate history of sterilization from 1929 to 1972, when health care providers used their power to abuse their patients and sterilize almost 5,000 patients against their will. Those patients were regularly noted on their chart as having consented to the process. This supports the idea of having judicial review, but it also supports the idea that hospital administrators wanting to save money or physicians wanting to raise the subject with their patients will be prevented from doing so.
Even the Canadian hero Nellie McClung got caught up in the evils of eugenics from 1929 on. In “Sterilizing the 'Feeble-minded': Eugenics in Alberta”, Grekul, Krahn, and Odynak highlight and give us a sobering reminder that all progress is not necessarily desirable. Sometimes progress takes us down a road we would not take if we knew what was at the end. Once a request is made, then all of the health status requirements of Carter v. Canada must be met and respected by the attending physician.
With regard to oversight and the question of judicial oversight, after consent has been validated, the physician should have a duty to apply to a judge for approval of death before death occurs. The physician should be required to seek the opinion of a second physician, and both should be required to swear affidavits that they are satisfied that the conditions of the law have been met. The physician should be required to serve copies of the application and affidavits upon the next of kin.
This is the minimum required when an application is made under provincial adult guardianship and trusteeship legislation in Alberta and in other jurisdictions in Canada. Surely death is more significant and more permanent than decisions regarding finances and housing. If the loss of financial control requires judicial oversight, surely loss of life deserves no less.
Courts are experienced in making decisions regarding these questions, based upon the evidence of physicians. The issue of religious objection to blood transfusions is just one area where the courts have been called upon to make such life-and-death decisions. The courts have been able to make those decisions on an emergency basis with a minimum of risk to the individual and a minimum of delay. Making these decisions is today a regular occurrence across Canada, and the initiative of Chief Justice Smith of the Ontario Superior Court today is further evidence that the courts are prepared and able to handle this responsibility.
Some have advocated leaving the entire responsibility to the physician and excluding judicial oversight. The Supreme Court of Canada has already addressed this issue and determined that there is no right to have life-and-death decisions made in secret.
In Cuthbertson v. Rasouli, a 2013 decision of the Supreme Court of Canada, the Supreme Court of Canada reviewed and affirmed the judicial oversight provided under the Ontario Health Care Consent Act. Under that act, physicians must be involved, but they should not be the ultimate arbiters of life and death. Independent judicial review prior to death is best. It will avoid much suffering and prevent the expenditure of significant funds on lawyers and court costs. Estates should go to children and beneficiaries, not to lawyers fighting over whether a physician has properly secured and documented consent.
With regard to privacy considerations, courts and physicians have effectively preserved the privacy of individuals over the last few decades when issues of life and death have come before the courts. The legislation enacted by Parliament should maintain that standard of medical ethics. All applications to a court for judicial oversight should be restricted to the parties named and served under the legislation.
Next, who should do what? The physician should be given the responsibility to manage the process; however, the legislation must recognize the roles of others and authorize their participation. Health care facility owners, administrators, and employees must all be given immunity once a court order is issued. Carter v. Canada only addressed the issue of physicians. If you restrict your law to physicians, you will leave 99% of the health care providers in this country at risk.
Liberal
The Joint Chair (Mr. Robert Oliphant) Liberal Rob Oliphant
You're at a little over 10 minutes. Could you wrap it up quickly, please?
Lawyer, As an Individual
Thank you very much.
In conclusion, the decisions of the Supreme Court of Canada, both on February 6 of last year and on January 15 of this year, give this committee significant guidance in terms of the kind of model to adopt. It's a model that's led by judicial review and includes an important requirement for physician participation.
Thank you very much for your time and attention.
Liberal
John Aldag Liberal Cloverdale—Langley City, BC
Great. Thank you.
I'm going to start with Dr. Soles, from the Society of Rural Physicians of Canada.
I have a couple of quick questions. The first one relates to access in rural and remote communities. We've seen that some areas have considered involving others in the medical field, such as nurses and nurse practitioners. I wonder if your group has had any discussion about that. Do you see this as being exclusively within the realm of doctors—GPs and specialists—or has there been any consideration of extending the involvement to others, such as nurses or nurse practitioners?
President, Society of Rural Physicians of Canada
I think it's an issue of determining competence. That's something that somebody with training can do, whether that training is as a physician, a nurse, or a nurse practitioner. As has been suggested by others, I think that if you're looking at judicial oversight of all this, or a legal framework for the final determination of the suitability of physician-assisted death, the health evaluation can certainly be done by others, not just physicians.
Liberal
John Aldag Liberal Cloverdale—Langley City, BC
Thank you, and that's a great transition to a question for Dr. Stern.
I believe that in the beginning of your comments you noted that CMPA is a sort of intersection between health care and the law. I note that in the document we received, it reads, “CMPA takes no position on who should make the eligibility decision”. With regard to that intersection of health care and the law, we have heard from others in the medical profession that the safeguards should come from within the medical field and that doctors are trained to assess patients and competence and those types of things, but then we have heard that from a legal perspective, perhaps we should have judicial oversight as the final say.
Do you have anything to offer from within that intersection to help us sort through what balance, what safeguards we should be looking for in the final decision, once the patient has made the determination to pursue physician-assisted dying?
Executive Director and Chief Executive Officer, The Canadian Medical Protective Association
You have asked several questions. I want to make sure that I understand them more clearly. You talked about oversight, and I assume you mean oversight at the end of the process. I think you also alluded to the issue of review prior to the decision-making. I think—if I understand your question correctly, and please correct me if I misunderstood you—you also talked about who should be involved and whether the process for determining eligibility should include other practitioners, such as nurses, or should be under the jurisdiction of the legal system. I think there are about three questions there, but maybe I didn't understand.
Liberal
John Aldag Liberal Cloverdale—Langley City, BC
Specifically, in the lead-up to approval for someone to go ahead with physician-assisted dying, we have heard some models put forward.
One involves a physician; it could be a GP. Then there would be a waiting period for another GP, and that would be the end of it: the person could have their life terminated.
Another model would require approval from a GP and a specialist, which could include a psychiatrist.
A third model would involve some sort of medical review and discussion, but then the case would be referred to a judicial or quasi-judicial body for final approval.
In part, the question concerns protections for physicians who may decide to participate. How do we give them the necessary safeguards, to make sure that all the processes have been followed? How do we also make it clear for patients who it is who makes the final determination? Again, that has a bunch of questions in it.
Executive Director and Chief Executive Officer, The Canadian Medical Protective Association
I think I've narrowed it down to two questions here, and I don't mean that in anything other than a.... There's no insult intended. I really am trying to make sure I answer your questions appropriately.
With respect to the number of physicians or the specialist versus family practitioner roles, there is no physician in Canada right now who has any specific expertise. A specialist has no greater expertise than a family doctor in making this kind of decision. We are agnostic as to what type of physician should be present.
What we believe is the most critical part is that the legislation you bring forward should have great clarity around the eligibility criteria and that the legislation should be consistent across the country. If there is clarity in your language, physicians will be able to understand what eligibility is and who is eligible. Furthermore, the patient will understand better.
That is why our written submission attempted to focus this committee on the language and the words and the necessity of having clear and unequivocal language, and it is what I attempted to do in my oral submission, because then physicians can participate and, I think, protect—
Liberal
The Joint Chair (Mr. Robert Oliphant) Liberal Rob Oliphant
Thank you, Dr. Stern. I'm sorry to interrupt, but we're over our time limit.
Mr. Cooper.
February 4th, 2016 / 7:45 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
My questions are directed to Mr. Chipeur.
One of the things this committee has to grapple with is the meaning of “grievous and irremediable condition”. I wonder if you might be able to comment on the meaning of a grievous and irremediable condition and whether, for instance, terminability might be implied.
Lawyer, As an Individual
I don't want to try to do a better job than the Supreme Court of Canada did in Carter. I think they did a very good job. I think that those words would be appropriate for your legislation. You may add a little bit more, but I think the court used those words because they believed that the right to life had both aspects to it: an important protection of life, and a protection of individuals from abuse at the end of life.
If you just say that we're going to open it up to anyone and that anyone can kill themselves with the help of the state at any time, then you effectively have the state saying, “We're in the business of death.” We fight the death penalty so hard in the criminal justice field, but then we would just open it up, wide open, in the health care field.
I believe the court wanted to say that there are very few occasions on which the state should allow this kind of very dangerous procedure to take place and that we want to have the highest standard, a standard that only deals with individuals who are in pain and cannot avoid that pain and have no other choice. I think that's what they were trying to say, and I think they said it well, and I recommend their words to you.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you for that.
Another issue you mentioned was advance directives, which the Supreme Court, within the parameters of Carter, did not explicitly address. However, in terms of advance directives, you cited the Eve decision. You stated that in that decision, the Supreme Court explicitly ruled out advance directives.
Might you be able to elaborate on what the Supreme Court pronounced?
Lawyer, As an Individual
My view is that if you were to apply Carter today to a death that was with respect to an advance directive, you would be charged and convicted of murder under the Criminal Code.
The same would be the case if one were to then layer on Eve. Eve simply said that someone else cannot substitute their decision for life, meaning that if an individual is unable to make a decision about life, someone else cannot make that decision for them. That certainly counts in the case of an advance directive, because an advance directive is only applicable when you cannot make a decision and you are in a position that the individual in Eve was in.
I think both Carter and Eve expressly and explicitly rule out advance directives.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Lastly, you alluded to the A.C. v. Manitoba decision. The Supreme Court, in that decision, did recognize the common law mature minor doctrine, which, based upon the individual's level of maturity, in essence recognizes the right of minors to make health decisions.
Might you be able to comment on that and how it applies in the context of Carter?
Lawyer, As an Individual
I think that A.C. v. Manitoba has a very important principle. That principle is that Parliament must create a presumption under the charter that children cannot make decisions. That's the least one can find in A.C. v. Manitoba. I think that A.C. v. Manitoba does not prevent you from making that a hard cap, if you will, at least on the bottom, because in A.C. v. Manitoba the issue was not about a life-and-death decision but about whether a mature minor could make decisions with respect to health care.
Whether assisted suicide is or is not health care has not yet been decided by the Supreme Court. I'm not going to say that A.C. v. Manitoba requires you to have a firm limit of 18, but there's nothing in A.C. v. Manitoba that prevents you from choosing an absolute prohibition of any death under 18.
NDP
Murray Rankin NDP Victoria, BC
Thank you very much.
Thank you to all the witnesses for excellent presentations.
I would like to start with Dr. Soles. I think you said, if I'm understanding you properly, that if there were a psychiatric condition involved, there should be two psychiatrists who would be able to provide an opinion as to eligibility. Did I understand you correctly?
President, Society of Rural Physicians of Canada
Yes, I meant if this is a patient who has a psychiatric condition that is causing irremediable suffering. In cases in Europe, some caveats have already been expressed about how that has panned out for certain patients. However, I am talking about a case in which a patient is suffering specifically because of a psychiatric condition. I'm not talking about a patient who has a medical condition and a psychiatric issue at the same time.
Does that make sense?