Physician-Assisted Dying Committee on Jan. 25th, 2016

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

Colleagues, we have a quorum. I call the meeting to order.

Welcome to the third meeting of the Special Joint Committee on Physician-Assisted Dying.

You obviously do not want to listen to this voice all during the session today, so my co-chair has kindly agreed to chair today's meetings. I thank Rob very much.

Over to you, Rob.

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

Thank you, Senator.

If there's a doctor in the room, keep an eye on the senator.

[Voices]

Oh, oh!

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

Welcome to the third meeting of this committee. We welcome our witnesses.

I recognize Senator Joyal.

[Serge Joyal, Senator, Quebec (Kennebec), Lib.]

Thank you, Mr. Chair.

I just want to remind the honourable members of this committee that the Senate is an independent chamber of Parliament and that we are constitutionally entitled to exercise sober second thought. On that basis, we don't feel bound by the conclusions of this committee or the report of this committee in the exercise of our constitutional duty, as reminded by the Supreme Court of Canada in April of 2014.

Thank you, Mr. Chair.

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

Merci, monsieur.

That's well noted by the committee. I think we have already been establishing a great working relationship on this committee, the first joint committee in some 20 years as a special parliamentary committee. I look forward to your first thought and your second thought in our work.

We welcome witnesses today. Our first witnesses are from the Department of Health. We have two officials: the assistant deputy minister, Ms. Hoffman; and the manager of the chronic and continuing care division, Ms. Harper.

We welcome you and thank you for coming on relatively short notice to our committee. We are up and running quickly. We know you have work that you do every day, so thank you for attending to us in this meeting.

You have about 10 minutes for your opening presentation, and then 35 minutes for committee witnesses.

[Abby Hoffman, Assistant Deputy Minister, Strategic Policy, Department of Health]

Thank you very much.

Good morning, all, and thank you for the opportunity to be here today to discuss this important issue.

Last week, my colleagues at the Department of Justice provided a summary of the Carter ruling and an overview of the core issues, particularly as they relate to the Criminal Code.

Today I'd like to address some key considerations from a health sector perspective, touching on issues that the committee may wish to keep in mind as you move forward with the development of your recommendations. My remarks cover issues that will need to be addressed by three levels of responsibility: by the federal government, by provincial and territorial governments, and by medical regulatory bodies that operate under mandates from their respective provincial and territorial governments. I will comment on each of these.

Let me start with the federal government. In general terms, in health the federal government has the following responsibilities: establishing and monitoring compliance with national principles for Canada's health care system, as set out in the Canada Health Act; providing block funding support for health care to provinces and territories through the Canada health transfer; regulating market access for drugs and medical devices, and regulating patented drug prices; funding or delivering certain health care services for specific groups; and providing leadership and developing programs and funding in a range of other health-related areas, including public health, health research, statistics, and health care innovation.

In the federal health portfolio, we are already considering the implications of physician-assisted dying in several of the areas I've mentioned. For example, if there turned out to be significant differences in access to physician-assisted dying among provinces and territories, there could be challenges related to the Canada Health Act principles of comprehensiveness and accessibility. There may also be questions for federal drug regulatory regimes under the Food and Drugs Act—specifically, for example, whether the drugs used in physician-assisted dying must be approved by regulatory authorities for that specific purpose, and how to ensure that those drugs are used appropriately. In the case of controlled drugs, regulatory changes under the Controlled Drugs and Substances Act may be required if controlled drugs are used to help end a life as opposed to treating a health condition.

The federal government also has some responsibilities for the direct delivery or coverage of health services for particular federal populations, such as First Nations and Inuit, members of the Canadian Forces, veterans, the RCMP, prisoners in federal institutions and certain classes of immigrants and refugees. There will be a need to align federal and provincial-territorial frameworks for physician-assisted dying to support access to this service for these groups.

The federal government is also responsible for rolling up data from the central vital statistics registry in each province and territory into a national database and for publishing annual summaries of deaths as part of Canada's vital statistics. This function has the potential to support the collection and publication of national data on physician-assisted dying.

In the course of your work, the committee can expect to hear views on palliative care. The Carter decision has led to widespread calls for improvement in palliative care in Canada, both from those who view it as an alternative to physician-assisted dying and from those who see it as an integral part of the spectrum of care options at the end of life. The need for improved palliative care has been emphasized in the reports of the federal external panel, as well as the provincial-territorial expert advisory group.

In its role of contributing to the overall quality and sustainability of the health care system, the federal government has funded a number of initiatives, in partnership with provinces, territories, and health NGOs, to advance palliative care education, awareness, national standards, and research. These activities, together with those of provinces and territories, are helping to improve the availability of palliative care. Still, however, it is estimated that about 70% of Canadians do not have access to palliative care, particularly those residing in rural and remote areas. Beyond that, many providers are not trained to provide palliative care services.

Through the new health accord process, the federal government plans to invest $3 billion over the next four years to help deliver more and better-quality home care services for Canadians. We expect that support to include palliative care in a variety of settings and we expect that this will be one of the initiatives and priorities in the new accord.

When federal-provincial-territorial health ministers met in Vancouver last week, the ministers acknowledged the desirability of a consistent approach to physician-assisted dying. Provinces and territories are looking to the federal government for clarity on issues such as the types of physician-assisted dying that will be permitted, and eligibility. These are subjects that could presumably be addressed through amendments to the Criminal Code.

Provinces and territories are also looking for common ground on issues such as appropriate wait times between a request for and the provision of physician-assisted dying; how to protect the conscience rights of providers in ways that avoid limiting access for patients who may seek a physician's aid in dying; data collection, monitoring, and reporting; and research. These are issues that may best be addressed through pan-Canadian approaches led or coordinated by the federal government in conjunction with other partners.

Depending on the scope of the federal response, provinces and territories will need to consider a broad range of issues with respect to the implementation of physician-assisted dying. A relatively narrow federal approach, such as minimal amendments to the Criminal Code, would offer more flexibility to provinces and territories to make their own decisions on significant legislative, regulatory, and policy matters. On the other hand, a more extensive federal approach would help achieve greater consistency across the country. In either scenario, provinces and territories, medical regulatory bodies, and health care institutions will have considerable work to do.

Provinces and territories, in connection with their areas of responsibility for the delivery of health care, will need to consider, among other topics, the following: the processes to request, approve, and deliver assistance in dying; where the service will be offered, whether in institutions, at home, in hospices, or in long-term care facilities; and any safeguards to protect vulnerable populations that are not already outlined in a federal framework. Putting in place transparent processes for data collection, monitoring and reporting, and compliance will be important, as will be defining offences and penalties for non-compliance.

Provinces and territories may also pursue initiatives to improve the availability and public awareness of advance care planning, palliative care, and other end-of-life options. In the case of advance care planning, whether such directives could be used by individuals to express their preferences with respect to a physician-assisted death long before they are diagnosed with a condition that meets the criteria for physician-assisted dying is a complex issue provinces and territories may tackle, ideally, in a manner consistent across all jurisdictions.

Other issues that fall squarely under provincial-territorial jurisdiction include the following: whether physician-assisted dying should be treated as a publicly insured health service eligible for coverage under provincial and territorial health insurance programs; how health professionals should be reimbursed for their involvement in physician-assisted dying; liability protection for health care professionals; whether existing legislation for consent, capacity, and age of majority are appropriate for physician-assisted dying or need modification; regulation of the investigation, reporting, and tracking of deaths, which is normally dealt with under provincial coroners legislation; and any necessary amendments to life insurance legislation.

The work that Quebec has done can help inform implementation plans for physician-assisted dying in the rest of the country. Quebec's act respecting end-of-life care established a right to end-of-life care, including medical aid in dying in the form of voluntary euthanasia, a regime for advance medical directives, and a provincial commission on end-of-life care for oversight and reporting. Quebec also released a strategy to increase access to quality end-of-life care and develop guidelines, training, and tools on medical aid in dying for health care providers.

While provinces and territories are ultimately responsible for the delivery of health care, they have delegated authority for medical practice and discipline of health care providers to self-governing professional bodies, such as those for physicians, pharmacists, and nurses. These regulatory bodies will need to consider how to guide, train, regulate, and discipline their members in relation to any regime of end-of-life care that includes physician-assisted dying.

While some practices, such as assessing competency and ensuring informed consent, are already routine in medical practice, the particular requirements for physician-assisted dying will likely require new protocols and training.

I'll just say a further word on the roles of medical regulatory bodies.

Most provincial colleges of physicians and surgeons have either published guidance documents for members on physician-assisted dying or are in the process of preparing them. These guidelines indicate that provinces and territories are working towards a consistent approach, but also that there are important areas where they may diverge. Points of possible divergence include age of consent, different approaches for defining and determining whether a condition is “grievous and irremediable” and “causes enduring suffering”, responsibilities arising from provider exercise of conscience rights, residency as an eligibility requirement, and so on.

Both the federal external panel report and the expert advisory group report support the idea of avoiding a patchwork approach to physician-assisted dying across the country. From the federal perspective, a reasonable degree of consistency across provinces and territories would support the underlying values of the Canada Health Act—that is, that all Canadians should have comparable access to needed health care services without barriers associated with financial means or geography.

A uniform regime would also provide greater certainty for providers and help to avoid people seeking physician-assisted dying in another jurisdiction because it is not available or only available under more restrictive conditions in their own home province or territory. More importantly, it would provide reassurance to eligible Canadians that no matter what their means or where they live, the option of physician-assisted dying would be available to them.

I hope these remarks have been helpful in understanding the various levels of responsibility within the health sector for physician-assisted dying. While Criminal Code amendments could lay the ground for a consistent approach to the provision of physician-assisted dying in Canada, collaboration among federal-provincial-territorial governments and medical regulatory authorities will be critical to achieving reasonable uniformity.

I welcome your questions. I will do my best, along with my colleague, to respond or to refer you to experts who can address them when we cannot.

Thank you.

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

Thank you, Madam Hoffman.

Go ahead, Madam Shanahan.

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

Thank you very much, Mr. Chair.

Ms. Hoffman, thank you very much for your testimony.

Could you talk to us about the terminology, and the difference in the terms that are used to refer to broad categories in connection with physician-assisted dying? Could you also discuss the difference between the French and English terms?

[Abby Hoffman]

Thank you for the question.

Are you asking for the distinction as to how these are defined in each of the two languages, or are you simply asking for the distinction between euthanasia and assisted suicide?

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

Yes, euthanasia. We've seen different terms being used in the reports, so just talk to us a little about that in terms of how your department would be working with this issue.

[Abby Hoffman]

I guess the first thing I would say is that our general understanding—I know that colleagues from the Department of Justice spoke in some detail about this the other day—is that we would regard the Supreme Court decision as having addressed both euthanasia and assisted suicide.

I think probably one of the most important considerations is simply that euthanasia, in effect, involves an act taken directly by, in this case, a legitimate authorized medical provider who is personally and directly responsible for taking steps to hasten the death of an individual. Assisted suicide engages the provider in a significant way, but at the end of the day, it's actually the individual who wishes to bring their life to an end who actually administers the medication that will hasten their death, so in effect the most important distinction is who provides advice and who administers medication that hastens a death.

Within those categories, you will find in various of these reports descriptions of voluntary euthanasia, involuntary euthanasia, and so on, but those are subcategories of those two essential distinctions.

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

Okay.

I have a second question.

Could you tell us a bit about the work your department is doing with the Province of Quebec on Bill 52?

[Abby Hoffman]

Well, I think it's relatively straightforward. Up to this point, in respect of a federal-provincial-territorial working group that's been established to assist with collaboration between the two officials in the health and justice sectors in the two orders of government, Quebec has been very willing to share information and provide a lot of documentation because it is very well advanced, obviously, in this issue compared to the rest of the country. I would say that up to this point Quebec, quite appropriately, has made it clear that they have their own legislation and their own regime in place. They are not an official member of this working group, but they have provided a lot of support, particularly to officials in other provinces and territories.

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

I'd like to go back to the first question.

Have you noted important differences between the French and English terms?

Can you speak to that?

[Abby Hoffman]

I'm not sure, frankly, that I can actually speak to that. I'm not aware of that issue, and I would not say, just based on a reading of the Quebec act or the commentary in either the provincial-territorial or the federal panel report, that it has been identified as a concern. I don't want to say absolutely that it is not a concern, but I would not say that it is something that has come to our attention up to this point.

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

So we're very comfortable with physician-assisted dying.

So “l'aide médicale à mourir” is the equivalent.

[Abby Hoffman]

I think so.

[Sharon Harper, Manager, Chronic and Continuing Care Division, Department of Health]

Perhaps I can add something to that.

In the federal panel's report, there is quite a discussion about terminology, and that would be a very good place to start to read about the various people who have come before the federal panel to discuss the distinctions in terminology. A lot of them come down to how people feel they are going to impact on the medical profession or how they feel they might impact on the relationship between the patient and the doctor. They do a very nice job of laying that out.

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

Thank you.

Mr. Cooper is next.

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

Thank you very much, Ms. Hoffman, for your presentation. I want to follow up on the issue of palliative care, which you briefly addressed in your presentation.

The president of the CMA has said that in light of the Carter decision, accessible palliative care is absolutely essential, and in the subject expert reports that have been prepared, it has indeed been a consistent recommendation.

The House of Commons did pass motion 456 in September 2014, which was introduced by the member for Timmins—James Bay, Mr. Angus, respecting the establishment of a pan-Canadian palliative strategy. I wonder if you might be able to elaborate on what steps have been taken, if any, toward that pan-Canadian palliative strategy.

[Abby Hoffman]

Thank you.

The first thing I would say, just to reiterate the comments I made in my remarks, is that there is no question that discussions following the Supreme Court's decision in Carter have really shone quite a bright light on the area of palliative care, but well before that there was a lot of interest in our department in doing work in this area. We have undertaken a number of initiatives with the Canadian Hospice Palliative Care Association, for example, in some of the areas that I mentioned in my remarks.

Has that, to this point, led to what one could really call a comprehensive national strategy? The answer to that is “not yet”, but, as I also mentioned in my remarks, because of the elevated interest, we fully expect that in our upcoming discussions with provinces and territories about the home and community care piece that's intended to be a part of this new health accord, there will be a major focus on palliative care.

I don't know, Sharon, if you want to say anything further about initiatives the department has pursued to this point.

[Sharon Harper]

I think I can offer a little bit on two particular initiatives that were funded over the past few years.

One was with the Canadian Hospice Palliative Care Association. It was called “The Way Forward”. It provided a framework for different levels of governments to work together to build an integrated palliative approach into all areas of health care provision. That is currently available on the Internet. We'd be happy to provide the site information if that would be helpful.

Another one is currently ongoing with Pallium Canada. They are providing the training of trainers and supporting training for front-line health care providers in providing palliative care in a number of health care settings. We can provide more information if that would be useful.

Thank you.

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

Thank you for that information.

Following up on that, I think a lot of issues respecting palliative care fall under provincial jurisdiction. However, I think there has been a broad recognition that the federal government does have a role to play in setting policy expectations and establishing guidelines and in issues respecting standards of care. Would you be able to comment on what steps have been taken to engage with provincial and territorial governments on those issues?

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

You have one minute.