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

[The Joint Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I'm calling our 12th meeting of the Special Joint Committee on Physician-Assisted Dying to order. It's good to see our committee members here. I believe we have quorum.

I'd like to thank the witnesses who are our guests today for joining us and for offering their wisdom and expertise.

We have four people but three witnesses coming forward today. I'm going to suggest we do the video conference witnesses first, followed by Dr. Somerville after that. I'm going to suggest that we begin in Alberta and welcome Carmela Hutchison, the president of the DisAbled Women's Network of Canada.

Welcome, Ms. Hutchison. You have 10 minutes, and after that we will go to Vancouver, and then after that to Dr. Somerville.

Thank you.

[Carmela Hutchison, President, DisAbled Women's Network of Canada]

Good afternoon.

I would like to acknowledge the traditional lands of the Algonquin peoples, where you are gathered, and the traditional lands of Treaty 7 first nations, from where I'm speaking with you today. Because we're televised, I also wish to acknowledge all other first nations, Inuit, and Métis peoples across Canada.

I also wish to thank the staff of the Peter Lougheed Centre, who made my appearance here today possible, but most importantly, I wish to thank them for saving my life.

DAWN-RAFH Canada has advocated on behalf of the interests of women with disabilities and deaf women as a party intervener before the Supreme Court of Canada in over a dozen cases. DAWN-RAFH Canada has presented legal arguments on both section 7 and section 15 of the Charter of Human Rights and Freedoms in cases on behalf of women with disabilities, which have brought the perspective and advanced the rights of women and people with disabilities.

The DisAbled Women's Network of Canada's mission is to end the poverty, isolation, discrimination, and violence experienced by women with disabilities and deaf women. DAWN-RAFH Canada is an organization that works toward the advancement and inclusion of women and girls with disabilities and deaf women and girls in Canada.

During the first year at DAWN-RAFH Canada of our national executive director, Bonnie Brayton and I were alarmed because we were approached by three women concerned that “do not resuscitate” orders were inappropriately applied to their family members. While I have been in hospital since December 18, 2015, I have been approached three more times by women with similar concerns while in a private room, twice in the span of five minutes.

On December 23, 2015, a friend who was visiting me in the ICU got a phone call that her uncle, for whom she is guardian, was being admitted from his nursing home to hospital. When she met him there, doctors told her that she should not consider treating him. They compared him to an old car that was not worth investing in. She insisted he be examined, and it was merely a urinary tract infection requiring rehydration and antibiotics.

Yesterday, a friend recounted that her husband had been repeatedly sent home from the emergency room while he was having a stroke. Upon being admitted to yet another hospital, he was being treated and developed heart failure because his fluid balance was upset. The doctors pressured her and her husband to not treat him. Upon summoning the cardiologist, the fluid balance was corrected and he was well within four days.

Five minutes later, I received a referral from a woman in the community who learned of a man whose wife has terminal breast cancer. This is his email that he asked me to read to you. He wrote, “What happened was that my wife, Sylvia, was rejected for getting help, as they said she was too heavy for care workers to lift. She cannot use her left leg or arm. She was visited by the nurse in charge and let know the news. I came to find her upset and crying, as well and scared.”

As part of palliative care, there must be support for family members and caregivers, as you can only imagine the toll on their mental health.

As well as a national and provincial leader in the women's disability movement, with experience in the mental health movement and the disability sector, I've been treated much like the prophetess Cassandra, whose prophecies were true but never believed. As a woman with multiple disabilities that make me ineligible for most treatment programs, and as a survivor of profound childhood abuse, my fear of physician-assisted death is visceral. The entire board of DAWN-RAFH Canada shares that fear, as do many of our colleagues across the disability sector.

When Canada ratified the Convention on the Rights of Persons with Disabilities, everyone was excited and for the first time, we hoped that things would become better for our folks, particularly with article 6 emphasizing the disadvantages faced by women and girls with disabilities. You can imagine our shock when Canada did not ratify the optional protocol. That was just the beginning.

Canada then made profound cuts to every aspect of both government and non-government women-serving organizations and agencies. Then, without building up resources to alleviate violence, economic disparity, crushing poverty, unequal opportunities for education, a lack of disability transportation, home care, palliative care, hospice care, housing, disability, and mental health care, our Supreme Court of Canada, in the name of human rights, offers us the opportunity to die at the hands of the very physicians we're supposed to be able to trust to help us.

We do not have capital punishment in this country, nor do we extradite offenders to countries who do, because we are concerned that we may inadvertently execute an innocent person and cannot devise adequate safeguards to prevent this. Yet I find it alarming that in the name of individual rights our Supreme Court believes that we can.

The Carter v. Canada decision has rushed to judgment, compelling governments and Canadian society as a whole to make a rapid decision on matters Canadians have not had proper time to fully understand or consider. The Government of Canada must use the notwithstanding clause to stop physician-assisted death from moving forward as it is moving too quickly. Procedures and safeguards are insufficient as are alternative resources to physician-assisted death. No aspect of Canadian society has had an opportunity to really think about what it's doing. Canada needs to rethink its direction.

In the interest of time I will begin with my recommendations. A written brief has been submitted to the clerks and will be made available to you once it's translated.

Home care and palliative care must be made part of our health care and be equivalent across our country rather than chopping people into a geographic area. It needs national standards. Mental health care must be accessible to every citizen in our country before one dollar is spent on making review panels for physician-assisted death. We do not have enough dollars to save the thousands of people who die each year from suicide to spend one cent on the industry that will seek to kill our own people. Mental health care must have professionals who are cross-trained in trauma, addiction, and disability. We need to be sensitive to the needs of other cultures beyond a western view. Within the indigenous community, life is seen as sacred and the teachings point to this sacredness. To end life before one's time is finished on Turtle Island would be viewed by many as not honouring the life journey in a good way. It is vital that those perspectives from other voices be carefully considered.

For eligibility criteria a national comprehensive regulatory system is required to protect persons who are vulnerable to being abused from committing suicide in times of weakness. This is especially true for women who are particularly vulnerable. Women with disabilities need to have had a consultation with peer support groups before being eligible for physician-assisted death. Women are particularly vulnerable as a result of social or economic circumstances that diminish their resiliency.

Women with disabilities are at a greater risk of vulnerability because there is emphasis on compliance with caregivers or similar authority figures. This is especially true of women with intellectual disabilities, women with a lived experience of mental illness, and survivors of trauma. Also, women with disabilities are at greater risk because of violence and coercion. They also worry more about being a burden to others. Women with disabilities in representative organizations have much at stake in the designed delivery of any system developed to protect persons who are vulnerable from being induced to request physician-assisted death. It must be available only to competent adults with a grievous and irremediable condition that is the cause of enduring suffering intolerable to the individual, and only in a province that has high-quality palliative care, consistently and freely available to those who reside in that province. In itself disability is not a grievous and irremediable condition.

Request for physician-assisted death must be reviewed and authorized by an independent review panel with sufficient information to determine if the necessary criteria are met. Women with disabilities are horrified that physician-assisted death would be considered an option. For anyone under 18 years of age this is especially disconcerting in the light of Tracy Latimer's murder.

The Government of Canada must use the notwithstanding clause to stop physician-assisted death from moving forward. It is moving too quickly and procedures and safeguards to physician-assisted death are insufficient as are alternative resources. No aspect of Canadian society has had an opportunity to really think about what it's doing. Canada needs to rethink its direction.

Canada must ratify the optional protocol on the Convention on the Rights of Persons with Disabilities. The Convention on the Rights of Persons with Disabilities must be upheld, particularly articles 4, 6, 10, 19, 25, 26, 28, 32, and 33. Any measures of physician-assisted death must be mindful of complying with these articles. Also, they must uphold the Convention on the Elimination of All Forms of Discrimination against Women. They must also consider the complications as well as the benefits that can occur.

People need to consider what happens if a person awakens after having been administered a lethal dose of medication. What happens if the dose of medication is administered and it's too late and the person changes their mind? If a person survives the lethal assisted death attempt to come out of it more disabled, what happens? Has anyone considered what policies and procedures might be brought to bear in the event the first procedure fails? How many attempts should be made to start an intravenous line and what will the process be if one cannot be established?

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

Could you wind up now, please?

[Carmela Hutchison]

Yes.

Physician-assisted death must never be applied as it was in the Golubchuk case where physicians' values were forced on the patient and his family. The Criminal Code should be amended so that counselling a person to commit suicide, or offering assistance to commit suicide, remains a Criminal Code offence except for physician-assisted death, if it passes.

We also need to think that women with disabilities often do not have primary care physicians. In acute care settings, they're not seen by the same doctor routinely, so that's another thing that has to be brought forward.

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

I'm sorry, I have to cut you off. We're quite a bit over time.

[Carmela Hutchison]

I thank you for that.

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

We ask you to stay by because we'll have questions, I'm sure, for you.

Moving to Vancouver, we have Margaret Birrell, president, and Angus Gunn, counsel, for the Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society.

[Angus Gunn, Counsel, Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society]

Honourable senators and members of Parliament, thank you for the opportunity to appear before you this afternoon.

With me is Margaret Birrell, who is president of the Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society. My name is Angus Gunn, and I have served, since 2011, as litigation counsel for the alliance. I have been asked to provide the prepared remarks this afternoon, and Ms. Birrell will be pleased to respond to any questions the committee may have.

The members of the alliance that I represent are leading advocates for disability rights in Canada and elsewhere. The alliance sought and obtained intervener status at all three levels of court in the Carter litigation to advocate for the right that was ultimately recognized in the Supreme Court of Canada. The alliance wishes to address five themes in its prepared remarks today, and we will be providing a written copy of these remarks to the committee clerks in due course.

The first theme is on the question of the committee mandate. The alliance urges that, in recommending a framework for a federal response on physician-assisted dying, primacy be given to the values of patient autonomy and dignity that Carter described as underlying the section 7 charter rights to liberty and security of the person.

The alliance also urges a commitment to co-operative federalism, in which the federal, provincial, and territorial governments deploy both legislative and non-legislative measures in the pursuit of a patient-centric, and to the extent possible, uniform Canadian response to Carter.

The alliance considers that these aims are best pursued by implementing physician-assisted death in Canada in stages. Carter has frequently been described to your committee as a floor and not a ceiling. As a practical matter, the declaration in Carter will come into force on June 6 of this year. The floor must be implemented by that date, and legislation is needed within weeks.

The alliance urges that whatever needs to be done to implement Carter be done, and that a robust longer-term commitment be made to determine where the ceiling lies—an even more complex debate that carries no judicial deadline and deserves fuller consideration over time through a proper white paper process.

The second theme is that of divided jurisdiction. Within a coordinated response to Carter, the alliance considers the ideal structure to be a minimalist federal legislative scheme paired with uniform and comprehensive provincial and territorial regimes. Under this model, Criminal Code amendments should be limited to providing that an act of physician-assisted dying that would otherwise meet the definition of a crime shall be free from criminal liability, so long as it accords with the law of the province or territory where the act occurred. The alliance favours that model because of the unsuitability of dealing with these matters through the criminal law power, whether through the Criminal Code itself or in a stand-alone statute that relies on the federal criminal law power.

Carter expressly conceptualizes the right to physician-assisted death as an aspect of patient autonomy in decisions concerning medical care. Both palliative care and physician-assisted dying should be treated as part of best practice end-of-life medical care. They are therefore matters whose pith and substance favour the provincial and territorial legislatures' taking the lead.

The alliance recognizes the challenges in realizing this ideal, and shares the concern that a patchwork quilt of regimes across the country could result. These concerns, however, do not overcome the constitutional constraints within which we are operating.

A comprehensive scheme created under the federal criminal law power would inappropriately treat what is fundamentally a health care matter as a criminal law matter and would be vulnerable, we submit, to constitutional challenge.

If no statute applies in the province or territory where the act occurred, then the void does need to be filled, but a comprehensive federal regime might not be the only option. It may be that existing standards and guidelines within the medical profession for dealing with other end-of-life decision-making provide the necessary guidance. Most colleges have either promulgated such guidelines or are in the process of doing so. Alternatively, regulations under the Criminal Code could perhaps designate a provincial or territorial scheme that would apply in the absence of one in the province or territory where the act occurred.

Whether the comprehensive regime is implemented federally or provincially, the alliance favours reliance on secondary legislation for much of the detail, so that the regime can evolve dynamically and not be codified by statute.

The remaining three topics deal with questions of eligibility and process, and they apply regardless of the level at which the comprehensive regime is implemented.

The third theme is no advance panels. A central thrust of Carter was the relationship between dignity and autonomy on the one hand, and timely access to physician-assisted death on the other. Adopting an advance panel procedure for accessing physician-assisted death would create barriers and burdens, and it would erode or even extinguish the very rights recognized in Carter. To go still further and require a court order would wrongly judicialize what Carter viewed as an intensely private decision within the patient-physician relationship.

These risks are crystalized in, for example, the practice advisory issued by the Ontario Superior Court of Justice six days ago. Among other things, it requires that both the federal and provincial attorneys general be notified of an application for exemption from the Carter decision, and it also contemplates notice being given to family members.

Would all of those actors have standing to oppose the request? If so, why? Extensive affidavit evidence is required not only from the applicant and his or her attending physician but also from a consulting psychiatrist and the proposed physician who would assist death, if that person is not the attending physician.

How many weeks would this application take to be heard? How long would the court reserve judgment? Could the court's order be further appealed? Who would pay for these psychiatrists and lawyers? These hurdles are onerous, inappropriate, and antithetical to Carter. The law should not force those whose only wish is to escape grievous and irremediable suffering to spend what they hope will be their final days embroiled in litigation.

The fourth theme is that advance directives should be honoured. Carter accepted that the impugned Criminal Code provisions robbed individuals of their section 7 rights, in part by forcing them to choose between premature death or suffering until death by natural causes.

The alliance considers it essential in implementing the Carter floor to honour advance directives if the spectre of premature death is to be avoided. Advance requests for assisted death should be valid when made by a patient who, at the time of the request, was competent and had a diagnosis for a condition that was or could become grievous and irremediable, including dementia.

Fifth and final is conscientious objection. Carter recognized that nothing in its declaration would compel physicians to provide assistance in dying. The alliance submits that a comprehensive scheme should enable doctors to opt out, but only in a manner that imposes no burden on patient care and ensures continuity of care.

The protection of a physician's right to conscientious objection must not impair the ability of a patient eligible for physician-assisted death to access it. Conversely where a physician's conscience favours the provision of physician-assisted death, no health care institution should be able to impede that physician's ability to provide that form of health care within or outside the institution.

Thank you again for the opportunity to provide these prepared remarks and to participate in the important work of this committee.

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

Thank you very much, Mr. Gunn.

Ms. Somerville.

[Dr. Margaret Somerville, Professor, McGill University, As an Individual]

Thank you for your invitation to appear before this committee. I'd like to put on the record, as you might already know, that I believe that euthanasia and physician-assisted suicide—what the Supreme Court calls physician-assisted death or dying—are inherently wrong and should remain criminally prohibited. That said, I'm willing to provide some recommendations for limiting the harms and risks of legalized euthanasia. Please note that in using the word “euthanasia”, I intend to refer to both euthanasia and physician-assisted suicide.

The Supreme Court recognized that the values of respect for individual autonomy and sanctity of life, especially protection of vulnerable people, were competing claims and that both had to be taken into consideration. “On the one hand”, the court wrote, “stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable”.

In the past, in many societies, including that in Canada, religion was the main institution used to uphold the value of respect for life at a societal level. Respect for life is a preferable term to sanctity of life, because respect for life is not just a religious value; it's a foundational value in every society in which reasonable people would want to live. It must be upheld at two levels, that of the individual person and that of the society in general.

In a 21st century secular western democracy such as Canada, medicine and law are the main institutions carrying the value of respect for life for society as a whole. Both are implicated in physician-assisted death, which would damage their capacity to carry this value. It is in every Canadian's interest to make that damage as small as possible. So, to the question you asked me to address of what “framework of a federal response on physician-assisted dying...[would] respect the constitution, the charter of rights and freedoms, and the priorities of Canadians?”, I would add, “and do the least harm to the value of respect for life and to health care professions and institutions, and present the fewest risks for vulnerable people both in the present and in the future.”

I have that extended question in mind in making the proposals that are now outlined. As the court made clear in Carter, access to physician-assisted death—euthanasia—on certain conditions is an exception to the criminal prohibitions of culpable homicide and assisted suicide. Other than that very limited exception, those crimes remain in force. To avoid the future normalization of euthanasia, as has occurred in the Netherlands and Belgium, and which would have very serious consequences for future generations of Canadians, the legislation you pass must make it clear that euthanasia is such an exception, that it should be used only as a last resort, and then rarely.

If Canada had the same percentage of deaths by euthanasia as is presently the case in the Netherlands and Belgium—about 4% in the Netherlands and 4.6% in Belgium—we would have between 11,000 and 12,000 euthanasia deaths each year. I could almost not believe it when I worked out those figures, and I actually went back and tried to make sure they were correct, but I think they are correct.

To help achieve the necessary clarity of the rarity with which this should be used, I suggest that the legislation be entitled “an act to amend the Criminal Code to allow for an exception to conviction for culpable homicide and assisted suicide”. This means those not complying with the law allowing euthanasia could be criminally liable and also that the person seeking euthanasia must show they fulfill the conditions for having access; that is, that they have the burden of proof. That would be consistent with what both the trial court judge and the Supreme Court proposed that the law should establish, “a stringently limited, carefully monitored system of exceptions” and a “carefully-designed system that imposes stringent limits that are scrupulously monitored and enforced.” The first is the trial court, and the second is the Supreme Court respectively.

The committee should not be fearful of recommending exactly what the trial judge in the Supreme Court thought necessary. In short, euthanasia must be treated as an exceptional intervention, very carefully safeguarded, and rarely used. In support of this approach, I would remind you that between 1991 and 2010 Parliament rejected motions or bills promoting assisted suicide or euthanasia on no less than 12 occasions. Legalizing euthanasia is an unprecedented change of mind on Parliament's part.

You asked me to address three specific categories of considerations: eligibility criteria, processes and procedures, and roles and regulation of health care professionals.

Regarding eligibility, the first requirement is that the person requesting euthanasia has been offered high-quality palliative care, including fully adequate pain management. Apart from other reasons, this is legally required in order to obtain informed consent for euthanasia. The person must be mentally competent and must provide informed consent up to and including the point at which euthanasia is administered. This requirement acts as a protection for vulnerable, incompetent people, such as those with Alzheimer's, and means that consent from surrogate decision-makers is not allowed. Euthanasia should be restricted to people who are terminally ill—I would suggest, with a life expectancy of not more than four weeks—from physical illness, disease, or disability, and who are experiencing extreme physical suffering. Euthanasia should not be allowed for children unable to consent for themselves. Whether it should be available to mature minors is a separate question.

Regarding processes and procedures, two physicians, one of whom is a specialist in the type of disease from which the person suffers must each confirm in writing that the person fulfills the conditions for access to euthanasia and that they have been offered all reasonable alternative interventions, including palliative care and pain management. A psychiatric consultation to rule out conditions such as depression, coercion, undue influence of others, or duress is required, at least where there is any possibility of these factors affecting the request for euthanasia or consent, or where there are any doubts about the person's competency. A superior court judge shall certify that all legal requirements for access to euthanasia are fulfilled. Indeed, Chief Justice McLachlin suggested exactly that in her dissent in the Rodriguez case, and of course, the five judges of the Supreme Court required it, just about 10 days ago, when they gave the extension.

Euthanasia must not be administered earlier than 15 days after it is requested. A national research and review body should be established to collect records of all cases, investigate cases where there might have been non-compliance with the law, and issue reports at least once a year. I have a whole lot of other conditions but I'll leave those out for the moment.

Regarding roles and regulations of health care practitioners, for nearly 2,500 years physicians in the profession of medicine have recognized that assisted suicide and euthanasia are not medical treatment. This position should be maintained and these interventions kept out of medicine. My colleague Dr. Donald Boudreau and I have written a peer-reviewed published paper on that subject, for which I can provide the reference.

Consequently, a new profession should be established to carry out euthanasia. The practitioners should not be health care professionals, or if so, only ones who have permanently retired from practice. Practitioners should be specially trained and licenced, and have travel money provided to give people across Canada equal access to euthanasia. If this approach is not adopted, two publicly available lists of physicians and institutions should be established: those who will provide euthanasia and those who will not.

This is a reasonable compromise between Canadians who agree with euthanasia and those who oppose or fear it. The Supreme Court emphasized that the charter right to security of the person includes freedom from fear about what could happen to us when we're dying. This often seems to be forgotten with respect to those fearful of euthanasia.

This approach will also solve most freedom of conscience issues. Health care professionals must not be forced to provide or refer for euthanasia when they have ethical or conscience objections to doing so.

In conclusion, you are not just legislating for the present. You're legislating for future generations of Canadians with respect to how they will die. Whether or not we agree with physician-assisted death, legalizing physician-assisted suicide and euthanasia is a seismic shift in our most fundamental values as individuals and foundational values as the Canadian society.

I believe future generations will look back on the legalization of assisted suicide and euthanasia as the most important social-ethical-legal values decision of the 21st century; and the decisions that Parliament will make about the legislation and regulations to govern those interventions are an integral part of that decision.

Thank you.

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

Thank you very much.

Mr. Arsenault, the floor is yours.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair.

My question is for Mr. Gunn.

We have often heard witnesses call Carter a floor decision, meaning that physician-assisted dying could be taken even further than it was in Carter. I imagine that argument stems from the fact that the Supreme Court stated that the circumstances of the case were the only facts it considered in coming to its decision.

In light of facts other than those examined in Carter, how would you determine the age at which a minor was deemed to be competent or have the capacity to make such a decision?

[Angus Gunn]

Thank you for the question. I will respond in English, if I may.

I'll respond in brief to the comment, and then I'll invite Ms. Birrell to supplement.

First of all, I believe the honourable member has correctly identified why Carter is the floor. The Supreme Court can only decide the case that's before it. The court was deciding what it was in the context of very well-defined factual record, so the court cannot and did not purport to pronounce more broadly than the case before it. The question is, as I mentioned in my prepared remarks, how far that Carter principle goes. I say, for the reasons I mentioned, that it is an incredibly complicated issue—the committee is well aware of this—and it's one that should be developed over time. It needn't be rushed. It's not subject to the judicial deadline, and it deserves the full consideration that a longer process would give it.

I can tell you that the alliance's position is that access to physician-assisted death should be regulated based on competency, not age. Obviously there will be some age at which an individual cannot provide competent consent to physician-assisted dying, but the alliance is not of the view that a discrete age should be adopted in that department. Again, it ultimately rests on the discretion and the judgment of treating health care professionals.

Ms. Birrell, do you wish to supplement those comments?

[Margaret Birrell, President, Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society]

No, that's fine. That explains our position.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Mr. Gunn, how are we to interpret your alliance's position in relation to paragraph 127 of the decision, which states that one of the criteria for seeking physician-assisted death is that the person making the request must be “a competent adult person”?

How is it possible to discuss competence without regard for age?

[Angus Gunn]

To be clear, I'm not advocating any position before the committee on this question. My advocacy is that Carter itself is what should be implemented at the moment; namely, competent adults who have full capacity to direct health care providers.

I say the question that the honourable member has raised is something that requires further policy consideration. I've told you what the alliance's submission would be when we get to that, but that's not the gravamen of our submission to this committee today.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Ms. Somerville, you said during your presentation that physician-assisted dying should be used only as a last resort. How do you reconcile that position with the Carter decision, in terms of the importance of putting yourself in the patient's shoes?

Who do you think should determine whether physician-assisted dying should apply as a last resort in a particular case, the patient or the health care professionals?

[Dr. Margaret Somerville]

To answer that, the Supreme Court makes clear that it's putting conditions on the availability of physician-assisted death, so it's a matter of what those conditions are. What I'm recommending is that it should be a last resort and very rarely used, if you don't want to normalize euthanasia. What “normalization” means is the way that most people will die—or a very large number of people. That's why I pointed out those statistics from the Netherlands and Belgium, and what that would mean in Canada.

I think most Canadians would be extremely worried, to put it in the mildest possible terms, and I believe upset if they thought there were between 11,000 and 12,000 Canadians being killed by lethal injections given by doctors every year.

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

Thank you, Dr. Somerville.

Mr. Warawa.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you.

I thank each of the witnesses for being here.

Dr. Somerville, you're a professor of law at McGill, professor of the Faculty of Medicine, and the founding director of the law faculty's Centre for Medicine, Ethics and Law, so we're quite fortunate to have you with us today testifying.

You've said you believe it's important to have quality palliative care to be able to actually obtain informed consent. Are you intimating that without dealing with the emotional or physical suffering an individual cannot give true informed consent?

[Dr. Margaret Somerville]

If you look at the Supreme Court of Canada cases, the two leading ones in which the original doctrine was established—Reibl v. Hughes and Hopp v. Lepp—what they require is that all reasonably indicated treatments for the patient for the condition they have must be disclosed to the patient, and the benefits, risks, and harms of each of them disclosed, including the option of having no treatment at all. If the patient chooses them, then they'll have to be made available; otherwise, the patient's consent to the treatment they're given—and let's assume we're talking here about what I would call the “non-treatment of euthanasia”—would not be validly consented to. There wouldn't be an informed consent to that if the patient hadn't been offered all reasonable alternatives.

You can't impose those other alternatives, of course, but your legal obligation and your ethical obligation is to offer them to the patient. Look at the work of Dr. Harvey Max Chochinov. There's some very good work on this. Even people who have requested euthanasia change their minds very often when offered and given good palliative care and pain management.

I've done a lot of work in this area. I've actually researched it for about 35 years. In 1993 I was asked to give the opening keynote address at the international pain conference in Paris. I proposed that access to proper, fully adequate pain management was actually a fundamental human right. That has now been encapsulated in what is called the “Declaration of Montreal”, which was passed in 2010. It says that for a health care professional not to respond with reasonable alacrity to people in serious pain is a breach of human rights.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you.

I have another question.

You've used the term “respect for life”. We heard from Dying With Dignity three times. In their last presentation they used the story of someone with end-stage Alzheimer's. They said that dying in the sorry state of end-stage Alzheimer's and a year of living in a bed wearing an adult diaper was not a sensible way for people to be forced to end their lives.

Could you comment on the ethical aspects? I'm concerned that if we say people who are suffering with Alzheimer's, maybe peacefully, with palliative care.... Is this an undignified way? In calling this a nonsensical way for a person to spend their last days, what's the message?

[Dr. Margaret Somerville]

That brings up the very difficult and contested issue of what human dignity is.

What has happened, both in the literature and in the courts, is that the exercise of autonomy has been equated with human dignity, so that if you lose your ability to be autonomous—which by definition you do, if you're incompetent, if you have Alzheimer's disease—then you're regarded as being undignified.

The approach to it of the Dying With Dignity” people is, “We will help you by putting you out of your undignified state”, and of course, that's done through a lethal injection. That's the support for euthanasia.

The other concept of dignity, the one that has underlain most of our ethics and law, is that human dignity is intrinsic to being human and that as long as you're human, you have dignity and must be respected in the way that all humans need to be respected. The danger of not taking up that concept is that then anybody who doesn't fulfill the conditions for being seen as having dignity can be disposed of.

It is then, for example, that you get euthanasia of handicapped newborn babies; you can have euthanasia of children.... Peter Singer, for example, the philosopher at Princeton, believes that parents have a right to decide whether to keep a child with disabilities, up to the age of three years. He also thinks that if they can't relate to other people, they don't deserve the protections of human dignity.

This is a bit of self-advertising, perhaps. but I just got a new book out about six weeks ago called Bird on an Ethics Wire, and the third chapter is about 40 pages on the concept of human dignity.

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

Thank you, Ms. Somerville.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

First, to all the witnesses, thank you so much.

Ms. Hutchison, of the DisAbled Women's Network, I want to thank you, on behalf of the committee, for the reminder you gave us of the critical importance of the social determinants of health, with your particular focus on vulnerable women. Thank you.

Joint Chairs, given the limited time I have available—five minutes—I'd like to use part of the time, if I may, to provide notice of a motion that I would like to move for the committee's consideration later in our deliberations. They all relate to the issue of palliative care, something we've heard much about and that I'm expecting will attract the support of the committee.

Here they are. If I may, I'd like to read them for the notice of the committee.