Physician-Assisted Dying Committee on Jan. 18th, 2016

[Judith G. Seidman]

Okay. You're suggesting that it's the provinces that would deal with this particular aspect of the Canadian charter rights.

[Joanne Klineberg]

Yes. Currently, the provinces and territories have legislation and policies in relation to the rights of physicians to refuse to partake in certain types of medical practices, so it is definitely something that the provinces and territories already are responsible for. There is a fairly limited scope of action on this particular issue from Parliament's criminal law jurisdiction.

[Judith G. Seidman]

Thank you very much.

I'd like to change the subject to something you mentioned right at the very beginning of your presentation on terminology. You said that there are differences in terminology used in discussions by different groups and there are subtleties implied in their usage. We know that, in Quebec, the term “medical aid in dying” is used. I have heard that palliative care prefers the term “physician-hastened death”. We ourselves see in the Carter decision “physician-assisted death” and “physician-assisted dying”. We hear “euthanasia”, “suicide”. There are a lot of terms used.

From a legal point of view, what is important when we think about the terminology that will be used in the legislation?

[Joanne Klineberg]

From a criminal law point of view, it would be important to be clear on which are the criminal offences for which we will create an exemption. There is an offence; it's called aiding suicide. That doesn't necessarily mean that it wouldn't be possible or appropriate to coin a different term for what I'm calling physician-assisted dying today. But the legal elements, from a true criminal law perspective, should be clear so that physicians and other medical practitioners can know what they're able to do and what they're not able to do. That's what they will want to give them the confidence, if they're otherwise willing, to provide this service. The legal clarity, from a proper criminal liability point of view, is very important.

At a more social policy level, what do we want to call this practice? That is a very challenging question. There are even finer distinctions to be made. For instance, I could bring it to the committee's attention that some of the stakeholders who spoke to the federal panel—you will all see this when you peruse the report—were also drawing a distinction between dying and death. Dying is a process, whereas death is an event. Some have even made the recommendation that we should never be calling this physician-assisted dying. Many palliative care physicians feel that this is what they already do; they assist patients who are dying by making them as comfortable as possible throughout the dying process.

There's also a danger with these kinds of terms in that people don't necessarily understand what they mean. There was some polling done at the time when Quebec's legislation was before the National Assembly. Quebeckers were asked what they thought aide médicale à mourir, or physician-assisted dying, meant. I think something close to 50% said they thought it referred to withdrawal or refusal of treatment, which has been legal in Canada for 20 years. If people are mistaking what a general phrase means, that's not going to facilitate discussions between doctors and patients, and it could confuse things.

I fully recognize the difficult nature of choosing the right terminology on this.

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

Thank you.

Mrs. Shanahan, you have the floor.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you, Mr. Chair.

The Criminal Code is of particular interest to me. In its ruling, the Supreme Court mentions two provisions in particular: paragraph 241(b), and section 14.

I did some reading as a layperson. I am not a lawyer, nor do I play one on TV.

I noted that section 226 refers to hastening someone's death.

Further down, in section 228, it talks about “influence on the mind”. It's about influencing a person. I don't know if that means counselling. It says that the exemption “does not apply where a person causes the death of a child or sick person by wilfully frightening him.” This was all a revelation to me.

In subsection 231(3), it's like a contract:

Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another,

Are there other clauses that we should be concerned about and looking at that could be called into question and in fact challenged in subsequent court challenges?

[Joanne Klineberg]

There are definitely a number of other Criminal Code provisions that, on the periphery, may be implicated. There's another offence for administering a noxious substance. There are offences in relation to failing to meet one's duties to protect human life. However, I think the Supreme Court was correct that the core provisions are section 14 and paragraph 241(b).

I should also add for the committee to note that paragraph 241(a) was raised by the plaintiffs in the Carter case as being relevant, but the court found that it was not core to the prohibition. That is a prohibition on counselling someone to commit suicide. A number of stakeholders may tell you they're concerned that this offence might inhibit discussions between doctors and patients.

I think we can help the committee if more information is wanted about what these provisions are, but I think the issues before the committee are at a somewhat higher level. When the Department of Justice works on legislation, we go through the entirety of the statute to see if there are other sections that may be affected. Often there are small consequential amendments that just make sure that something said in one section gets tracked to other relevant sections.

I think it's probably less of a priority for the committee to be worrying about those, and more of a priority to be thinking about what the conditions should be and what medical eligibility should look like. There will always be some little details to work out, but I think those two provisions the court identified are really the crucial ones. Any consideration you want to give to other sections will, of course, be welcome.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Very good. I do have another question on the laws surrounding this area already.

We have the Civil Code of Québec.

A warrant may be issued in cases of incapacity. In another context, I would like to ask for more information on how that concept was reconciled with the current Quebec law.

However, I'd like to get back to our committee's objective. I would like to know whether we are planning another exercise for a study of living wills and that sort of thing.

[Joanne Klineberg]

I would answer by saying there's nothing in the Supreme Court's ruling that addresses, from a constitutional perspective, whether Canadians have the right to make an advance directive for medical aid in dying that would be provided to them after they had lost their ability to say that it's what they want or don't want. There's nothing in the Carter ruling that tells Parliament that is something it has to consider.

I can say that the National Assembly of Quebec did not take that step in Bill 52. Certainly there are some who might have sought that, and they did have a special piece of analysis done, because it raises very different issues.

For instance, the person who makes an advance directive before the time that a family member, for instance, brings it to the physician's attention, is no longer able to say whether or not they want physician-assisted dying. They're not able to articulate the nature of their suffering. These are elements that would need to be present under the law right now in order for a person to access it at a later time. At the time when it would be provided, the person would not be able to say whether they were suffering.

It presents unique challenges for physicians, and it's an issue that is dealt with separately. Is it something Parliament and this committee might wish to consider? It may be, but I don't think there's anything in the Carter ruling that instructs Parliament to go there.

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

Thank you very much.

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

Ms. Klineberg, in your presentation, you identified a number of common features in jurisdictions that have euthanasia or assisted suicide or both. One of the common features you cited was oversight or review mechanisms. It's my understanding that when you look at the European examples, as well as jurisdictions such as Washington state and Oregon, those review mechanisms occur after the fact, when the individual is already dead.

I was wondering if you were aware of any jurisdictions that have oversight in the way of judicial authorization or otherwise at the front end as opposed to the back end.

[Joanne Klineberg]

There's only one, and that is the country of Colombia, which I mentioned in my opening remarks. In early 2015, the government promulgated a resolution to guide the practice of physician-assisted dying. What they foresee in that regulation is that there would be an interdisciplinary committee that would review the patient's request, and it would not just review the request but would almost have carriage of the patient's request and their file through the rest of the process.

The patient would make the request to their physician, and the physician would then notify an interdisciplinary committee, which has on it a lawyer, a physician, and also, I believe, a mental health expert. The committee would be part of the hospital administration. That committee would take over the patient's case and would work with the patient and the patient's family to give them the support they need to ensure that palliative care is offered. They would accompany the patient, basically, right through to the end of the process. It is the independent body—not the physician administering it—that would be ensuring that all of the conditions had been satisfied beforehand.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In terms of the example from Colombia, it's my understanding that Colombia has had euthanasia, at least on some level, for the last 16 or 17 years. It's my further understanding that this framework that has recently been unveiled is a consequence of a Colombian court decision that said there were simply not enough checks and balances at the front end to protect vulnerable persons. I wonder if you might be able to elaborate on the history in Colombia.

[Joanne Klineberg]

I will do my best, but before I do, if I may note this, I forgot to mention in response to the previous question that the U.K. private member's bill I mentioned earlier had been amended by the U.K. Parliament when it was being studied by Parliament as a committee of the whole. What was added to it was a mechanism that would require the person's request to be approved by the family court before physician-assisted dying could be provided. As I mentioned, this bill was defeated, so it's not in law, but there's another model that this committee could look to.

Returning to Colombia, we have spotty information. It's a little difficult to get the information, but what seems to have happened in the 1990s is that a decision of the Constitutional Court, which is the high court of Colombia, found that a terminally ill person who was going to die in the very short term had the right to have a physician provide a lethal injection, so euthanasia is what they had considered. What seems to have happened is that physicians were unwilling to do that on the basis of the court's ruling alone. The government never did introduce legislation or decide on what the protocol should be.

About 20 years later, another individual who wanted to have access and couldn't find a willing physician brought another case before the courts. The Constitutional Court again said that this was a right, and if the government didn't put rules in place so that everyone could feel safe carrying out this practice, it would do it for the government. It was shortly after the second constitutional ruling in 2014 that the government did in fact bring forward the resolution.

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

Thank you.

We have time for a short question from Senator Nancy Ruth.

[Nancy Ruth]

You used the expression “advance consent”. Sometimes it's known as prior consent. There are other phrases for it. Is there any difference in law between these?

[Joanne Klineberg]

This is one of those questions where I have to say that it is a matter of provincial-territorial law, so I can't claim any expertise. I am sure there are some differences in the modalities, in the technical details about what the form must look like, if there is a specific form that an advance directive needs to be in, and how many years in advance a person can make one. There might be some differences.

But on the whole, the idea is the same everywhere, which is that people can state, “If something happens to me and I become unable to express my wishes, these are my wishes that I want carried out when I'm no longer able to convey them.” The general principle would be the same everywhere, I would think, but there may be some small differences.

We think this might be something my colleagues from Health Canada would be better able to answer.

[Nancy Ruth]

And this would simply be in the form of a letter of wishes given to your health power of attorney.

[Joanne Klineberg]

I'm sorry, I really wouldn't want to speculate.

[Nancy Ruth]

Okay.

For my last question—to create some work for you—is it possible to have some kind of spreadsheet with this new report from the external review committee, from the provincial–territorial committee, and from other committees that have reported on what they say with regard to issues like consent, eligibility, and so on? I mean, it would be a huge amount of work.

[Joanne Klineberg]

Well—

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

It would be a huge amount of work, and I'm sure our analysts will help us with that.

[Nancy Ruth]

Thank you.

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

Perfect.

Thank you very much. We have a large mandate and a short period of time to get it done, and you responded quickly. I hope you're not going on holidays anywhere quickly, because on behalf of the committee, I would like to both thank you and reserve the right to call you back. You've laid a foundation for us, and have given us both answers and more questions. Thank you very much for your time.

I want to hold the committee for one more minute, as our joint chair has something as well.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie (Senator, Nova Scotia (Annapolis Valley - Hants), C]

As a quick piece of information for all members of the committee, the Library of Parliament has a number of documents: a summary of previous studies on legal framework, a plain language summary of the Carter report, euthanasia and assisted suicide in Canada, law in selected countries, and federal health power. These are available to all members and staff. They are currently available on the Senate portal as well as on the House of Commons SharePlus system.

Those documents are all available to you for immediate access.