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

[Abby Hoffman]

I'm not in a position to document a lot of past activity in this area, because it hasn't happened, but I think that for the future this is absolutely an area that will be part of this agenda connected to the health accord.

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

Go ahead, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair, and thank you to the witnesses.

Ms. Hoffman, I'd like to ask you further about your point that under the Canada Health Act there are principles of comprehensiveness and accessibility. We'd been advised by the Library of Parliament that the accepted view now is that Parliament may contribute its revenues to matters that legislatively are within provincial jurisdiction.

With reference to the block transfers, the conditional grants you've talked about, I'm wondering whether the federal government, as a matter of policy, would contemplate requirements for the provinces to make sure this service is accessible and, if not, to withhold federal funds.

[Abby Hoffman]

I doubt that we would arrive at a situation in which we would dictate specifically, as a condition of federal funding, what forms of care are required to be provided by any individual or by provinces and territories collectively. Medical necessity, generally speaking, although it's referenced in the Canada Health Act, is left to provinces to define. Provinces and territories, as a condition of receipt of federal funding through the Canada health transfer, are obligated to provide “medically necessary” services, but, as I say, the act does not define those.

What tends to happen is that as certain forms of service provision come into vogue and are widely practised in most jurisdictions, if there is a circumstance whereby a jurisdiction has chosen not to provide that service, that issue then becomes or could become a topic of conversation between the federal government and that province. The comprehensiveness principle is really about the provision of services at what is the generally accepted standard of care in the country.

[Murray Rankin, NDP, Victoria, BC]

If it were to happen with this service, as we've seen with other services, that a particular province did not made it available, then you would or would not exercise your power to withhold funds?

[Abby Hoffman]

Let me just say that the last line of defence is the withholding of funds. There would be interaction with that jurisdiction and a lot of conversation long before the point of withholding funds.

Without getting into a lot of detail on the Canada Health Act, normally funds are withheld and deductions made from Canada health transfers in cases where user fees occur or extra billing occurs, where there is a so-called violation of one of the principles. If over time there was a failure to provide access to physician-assisted dying in an environment where it was permitted by law and provided in most other jurisdictions, one could arguably say that would be a violation of one of the Canada Health Act principles, theoretically, but it is a very long process to turn a violation or an alleged violation of a principle into a situation in which financial penalties are levied.

There is also stipulated, by convention, a process for interaction and mediation with a province or territory when there's a dispute about respect for the Canada Health Act principles.

[Murray Rankin, NDP, Victoria, BC]

You alluded to offences and penalties for non-compliance. Is this an example of a province or a particular provider that did not provide this service?

[Abby Hoffman]

I suppose that over time, that could be the case. As I've indicated, one could argue that if the standard of care and the standard of approach to end-of-life care in the country is the provision of physician-assisted dying and a jurisdiction chose not to put an appropriate regime in place, an individual would have recourse. They could argue that their charter rights are being infringed. They might also make an argument that their particular government at the territorial or provincial level is not fully respecting the principles of the Canada Health Act.

[Murray Rankin, NDP, Victoria, BC]

The reason I ask is that it's difficult for an individual to stand in the courts. I'm suggesting that the federal government has responsibilities, just as you said, to ensure comprehensiveness and accessibility. The act provides penalties and it provides the ability to withhold funds, so I would expect that would happen.

[Abby Hoffman]

I guess I'm just noting that there is a long process when it comes to issues related to Canada Health Act principles, as opposed to user fees and extra billing. There's a long process that would ensue before we got to the point of financial penalties—but yes, at the the end of the day, they are provided for.

[Murray Rankin, NDP, Victoria, BC]

Just quickly—I only have half a minute—you alluded at the end of your remarks to liability protection for health care professionals and life insurance issues. Are you suggesting that the federal government would have a role in that sphere as well, or is that simply limited to the provinces?

[Abby Hoffman]

No, I'm not. I would say that we would regard those as areas of provincial responsibility. I think the issue here is simply whether there's a role for governments collectively to look at those issues, to benefit from each other's intelligence, and to have common approaches.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much.

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

Senator Seidman is next.

[Judith G. Seidman, Senator, Quebec (De la Durantaye), C]

Thank you very much.

The external panel, in its report, suggested that Canada has an opportunity to be a world leader in developing an oversight system for physician-assisted dying. Data collection, effective monitoring, and reporting with scientific rigour is one form of safeguarding the integrity of the process. The panel also said that serious consideration and time should be devoted to this objective. It points out that to avoid duplication, there should be collaboration among provinces, territories, and the federal government.

Ms. Hoffman, you suggested in your presentation that Health Canada might have some role to play in this. I'd like to know how you see this kind of oversight in terms of powers and responsibilities. What kind of governance structure should there be?

[Abby Hoffman]

The first thing I would say is that this would only come about, I believe, if there were agreement among provinces and territories and the federal government that this was desirable. Each province and territory—as is the case in other jurisdictions in the United States and internationally where physician-assisted dying is provided for—would have its own machinery for collecting data and looking back at cases of physician-assisted dying when those have occurred. In any event, in various jurisdictions deaths already need to be recorded, and they are the subject, at least, of statistical reports.

What would be of interest here, and I expect that we will talk about this at the federal-provincial-territorial working group table, is whether there is interest in an aggregated oversight function. While it is possible that Health Canada could take on that function, I think it would likely make more sense for some sort of arm's-length capacity to pursue it and for it to be done in conjunction with the existing health data and statistics agencies, such as Statistics Canada, the Canadian Institute for Health Information, and so on.

I think that at this point it is certainly not a proposition that Health Canada has imagined we would pursue unilaterally. However, it seems that in the report there is some very strong interest in having what I'll call an oversight mechanism, but it would also be a body that would collect information about cases of physician-assisted dying that have taken place in the country with a view to examining the circumstances and helping to get at some of these issues, such as how one defines an “irremediable” condition, whether or not there is guidance for practitioners that could be elaborated upon, and so on.

I think we would see it as something that could be useful, particularly in the early days of a physician-assisted dying regime being in place in Canada.

[Judith G. Seidman]

Would you see this also providing some kind of built-in mechanism to evaluate, in an ongoing way, how the system is working and to perhaps make changes?

[Abby Hoffman]

If it did more than collect statistics—and I think some experts have argued for that—then in effect its reports on what has transpired would lead to recommendations about improving the regime, yes.

[Judith G. Seidman]

If I have time, I might move to another question that is somewhat related.

When the justice officials were here last week, they said that Canada is in a rather unique jurisdictional situation because issues in our Criminal Code are federal and health is provincial-territorial. They said that this creates serious challenges in designing the legislation and operationalizing it.

If you could, give us some idea of what the challenges might be. In your presentation you referred especially to uniform access across the country.

[Abby Hoffman]

First of all, health, as I think the justice folks said, is an area of concurrent responsibility. The Criminal Code could lay out ground on some issues. I think other issues where one might want to see consistency will be the product of consultation and dialogue between the two levels of government and with stakeholder organizations. In that case, the consistency will be achieved more through interaction, dialogue, and agreement on a possible direction, not through legislative fiat.

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

Senator Cowan is next.

[James S. Cowan, Senator, Nova Scotia, Lib.]

Thank you, Chair.

Thank you to the witnesses for your evidence today. I wanted to follow up on the same point.

We're all conscious of the jurisdictional turf issues here with the federal government, the provincial governments, the territorial governments, and the medical professional regulatory agencies. Can you tell us a bit about the mechanisms that are in place now for discussions?

I assume that these organizations and these entities are not operating in silos and that there are continuing discussions. We know of federal-provincial ministerial meetings, but you mentioned a working group. Can you tell us a little more about that and what progress is being made towards identifying things that are clearly either federal responsibilities, looking at it from our point of view as a committee, or areas where the provinces and territories are looking for some leadership at the federal level from a coordination or facilitation partner? Can you elaborate a bit on that?

[Abby Hoffman]

I'll underscore one point initially here, which is that there is in general, I think, a desire for consistency. That's one starting point.

With regard to the machinery that exists, you mentioned the federal-provincial-territorial ministers of health. They meet annually, and in certain circumstances more often. They in turn have a group of federal-provincial-territorial deputy ministers who meet very regularly, in person and by teleconference. At certain times they may have interactions weekly or every few weeks. They are the ones who authorized the creation of this federal-provincial-territorial working group, which brings together individuals who wish to participate from all jurisdictions and from both the health and justice sectors.

That group has had some interaction up to this point, but I'll be candid in saying that its work has been somewhat impaired by the fact that there has been no clarity to this point about what the scope of the federal legislative backdrop will be, assuming there is one, for physician-assisted dying. It's very difficult for that group of individuals, well qualified as they are, to discuss the implications for the actual implementation and delivery of physician-assisted dying without knowing what the legally sanctioned regime will be.

Nonetheless, and particularly taking into account the very tight timelines that exist, our work is about to resume. On the health side, I represent the federal government on this group. Our work is about to resume with some degree of speculation about what we think the regime will ultimately look like, and then we will be dealing with the implications of that for provinces and territories.

On the medical regulatory side, there are all the individual self-regulating professional bodies for nurses, pharmacists, physicians, and so on at the provincial level. There is also a national body, the Federation of Medical Regulatory Authorities of Canada. I expect they are likely to be witnesses who will appear before this committee. They can tell you about the work they have been doing with their members across the country, trying to work towards harmonized approaches even while not knowing, as I say, what the legislative regime will look like in the final analysis. The Canadian Medical Association and others are doing something similar. A lot of players out there are involved in consultations and discussions and are preparing guidelines and so on with this hope of achieving consistency.

I'm not sure I'm answering your question specifically about what it is that is uniquely the federal government's responsibility. It's obviously elements related to the Criminal Code. Beyond that, it's a matter of judgment and willingness to collaborate.

[James S. Cowan]

I guess I was looking at the fact that it's a huge issue. It has interjurisdictional issues within issues.

As a result of the ongoing discussions, can you help us by identifying two or three or four issues for which you think there would be a clear expectation of federal leadership?

[Abby Hoffman]

I would say it's first of all a question of whether it is euthanasia and assisted suicide or one or the other. There are issues around conscience rights and how those should be respected, and the implications of respecting them with regard to access. There are eligibility issues, issues around age, and any further elaboration or further detail on the criteria that the Supreme Court set out around suffering, irremediable illness, grievous condition, and all of that. There's been a lot of controversy about whether mental illnesses should be included, so that's connected to it as well.