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

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

You have one more minute.

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

Thank you.

What do you see this federal regime looking like if you do not have the provinces involved? If a province is not involved, specialist physicians would not be made available to provide the services to end a life.

[Peter Hogg]

I didn't say the provinces wouldn't be involved, but if a province doesn't have a physician-assisted dying regime, then your legislation will be the only game in town. It will have to operate and it will have to include adequate safeguards against error or abuse.

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

I think it leaves it very vague. For provinces that are not involved, then, there is no regime unless there's a federal regime, yet that federal regime does not include a specialist to administer the lethal drugs.

[Peter Hogg]

Do you mean a federal official to authorize the administration of lethal drugs?

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

I'm just trying to grasp what you're suggesting.

[Peter Hogg]

A doctor in a province that does not have a regime of physician-assisted dying will follow the federal law that applies in his or her province.

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

Thank you.

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

Thank you.

Next is Mr. Rankin, and then and Madam Sansoucy.

[Murray Rankin, NDP, Victoria, BC]

Professor Hogg, I'm very grateful to you for coming today.

I think it was really valuable that you drew our attention to the practical problem, the pragmatic problem, of a situation in which some province does not have jurisdiction in place and the federal government has to essentially fill the void. You talked about equivalence and gave two federal examples of how that's been done in other circumstances.

I'm just wondering how far Parliament could go, under the Constitution, in creating the kind of comprehensive regime that deals with protections for the vulnerable and the like without going into provincial jurisdiction in doing so. I recognize your point that this is a constitutional right that has to be available coast to coast to coast, but I'm thinking of practical things like liability for health care professionals, life insurance, and some of those things.

Would the federal government, as an amendment to the criminal law, be able to go as far as required to provide that comprehensive regime?

[Peter Hogg]

When you speak of things like insurance and liability, I'm not sure that the federal government could legislate those things as part of the Criminal Code. I think the committee is really limited to designing the safeguards that would make the system work, even in a province that had no legislation, and I think that does exclude some health care matters.

For example, I don't think your committee could make recommendations for legislation on palliative care. That seems to me to be beyond your mandate. It may well be possible that the feds could do that through the Canada Health Act or something.

[Murray Rankin, NDP, Victoria, BC]

All right.

I'm going to share my time with Madame Sansoucy.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you.

My question is for Mr. Ménard.

Mr. Hogg told us that our committee's role was to ensure that all Canadians will be able to access physician-assisted dying. In its recommendation 8, the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying recommends that another health professional acting under the guidance of a physician or nurse practitioner be authorized to provide assistance in dying.

In your opinion, are there any barriers to allowing registered nurses or other health care professionals to provide physician-assisted death, especially as concerns our perspective? We were saying this morning that all Canadian men and women wherever they reside should have access to physician-assisted death. However, we know that the availability of health care personnel varies from region to region.

What barriers would prevent other health care professionals from assisting physicians in this?

[Jean-Pierre Ménard]

In Quebec we asked ourselves that question, because this practice was exclusive to doctors. We wondered whether other health care professionals could do it. The conditions for obtaining physician-assisted death absolutely imply the participation of a doctor, for instance for the diagnosis of a grave and incurable disease. We have to ensure that the suffering is intolerable and cannot be relieved by means that are tolerable to the person. This necessarily implies a medical assessment. Physicians are the ones who know the criteria.

This would already considerably limit asking other health professionals to make the decision. As for the act, we wanted to avoid a situation where the physician would simply write a prescription and then leave things to others. And so we decided that the physician would be personally engaged and would himself or herself administer the medical assistance, and would be with the patient in order to manage complications should any arise. Indeed certain complications can quite clearly go beyond the competence of a nurse or a pharmacist to intervene. Physicians are the ones who have the required knowledge to cope with those situations.

As for the purely medical management of the action, conditions relating to whether that solution is indicated or not, obtaining informed consent and assessing the patient's ability to consent, these are in Quebec necessary conditions to obtain physician-assisted dying. In addition, Quebec's criterion is based on the concept of end-of-life care, which is not the case for the Supreme Court.

All of these concepts require a medical assessment. The physician is the one who has been trained the best to shoulder these responsibilities. Nurse practitioners or pharmacists do not necessarily have the necessary level of knowledge to do so. Given the gravity of the decision, we preferred to limit those responsibilities to physicians. That is the legislator's choice, but I think it can easily be substantiated.

From that perspective, the provincial act provides a good framework for these issues. In Quebec it was decided that a second doctor would validate the first one's decision. We also included a monitoring by medical authorities such as the Quebec College of Physicians and the Council of Physicians, Dentists and Pharmacists, as well as external oversight exercised by a specialized organization.

Clearly this is first and foremost a medical act, to be monitored by medical organizations and to be executed in keeping with a medical protocol. These safeguards aim to ensure that the treatment will be executed properly.

I'd like to make a clarification. Earlier, when I spoke of minimal content...

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

Thank you, Mr. Ménard.

Videoconference communication is not easy.

Senator Nancy Ruth is next.

[Nancy Ruth, Senator, Ontario (Cluny), C]

In some states in the United States, assisted suicide is allowed, but not euthanasia. In contrast, in the Benelux countries, both assisted suicide and euthanasia are allowed. Quebec has chosen to permit euthanasia but not assisted suicide.

Can you explain what the debate was and how Quebec came to the decision it did?

[Jean-Pierre Ménard]

Basically, Quebec's journey was the following. The act regarding physician-assisted dying is the Act Respecting End-of-Life Care. It contains a general framework for all end-of-life care, including palliative care, continuous palliative sedation and physician-assisted dying. It provides a framework for organizing the whole process of providing end-of-life care and the monitoring of that.

In that context we did not choose to go with what is designated by the term “euthanasia” because it is pejorative and implies that this could possibly happen without consent. That is not at all what we are dealing with. And so we came back to the concept of physician-assisted dying, provided by a physician.

In Quebec, the debate was launched in the main by the College of Physicians. It wondered whether it was possible in certain exceptional circumstances for a physician to legitimately offer to help his patient to die if he has nothing left to offer to keep him alive. We chose to have the physician administer the medication himself rather than giving it to the patient, giving him a means to commit suicide. In that case, the patient could do this without medical supervision, at home, in his or her basement, or at some other time, when his condition might have changed. We felt it was important that this be associated with a health care process.

When the law was discussed and passed the Carter ruling had not come down yet. So we were working in the context of the Canadian criminal law before that ruling.

We also thought that “assistance to suicide” could have changed the true nature of the law, what we refer to in English as the pith and substance of that law which was in our opinion a health-related law. Assistance to commit suicide seemed to us to be outside of medical processes. The College of Physicians did not subscribe to that approach either. In Quebec there was no real call for opening the door to have physicians assist suicide. That was a choice that is related to the rest of the act, a health-related act, an end-of-care act. Assisting suicide was not perceived as being part of the end-of-life care continuum.

[Nancy Ruth]

In the parts of northern Quebec or in very rural areas where there may only be a nurse or even a nurse practitioner, do you allow teleconferencing? How is instruction given and how is consent given?

[Jean-Pierre Ménard]

Consent can be given in various ways. The physician has to ensure a whole series of things. First he or she must ensure that his staff meets medical requirements. Afterwards, he must inform his patient about how the procedure will unfold. He must make sure that free consent is being given, and particularly that there is no external influence. That is why, for instance, if the patient is perceived as a burden by his family, the physician must ensure that no external influence is being brought to bear. Otherwise, physician-assisted death will not be granted.

The consent must also be informed consent. On that topic the law refers to the information the physician must provide to his or her patient. The jurisprudence is well established here. The physician must ensure that the patient has not only received the information, but also that he has understood it. This has to be well-documented in the file, and repeated a few days later, by the patient.

So, there are a series of processes. Ideally this can be done in a face-to-face conversation between two people, but it is also conceivable that it could be done through Telehealth. Other means may be used when they exist. The physician clearly has to ensure that the request is coming, quite personally, from the patient, that he or she is not being influenced at all, and that he is well-informed. The physician's role is to ensure that all of those conditions are met. That is a part of the safeguards. This has to be recorded, documented, and verified by the organizations that monitor the procedure.

[Nancy Ruth]

There's no prior consent in the Quebec law—prior to, say, getting dementia.

[Jean-Pierre Ménard]

We had a very long debate on that, to decide whether that should be permitted in advance directives. In Europe, for instance in Belgium, this is allowed as long as the patient's wishes were expressed in the five previous years.

In Quebec we decided not to allow this for several reasons. First, how is it possible to know whether the patient changed his mind or not and if this truly reflects his or her wishes?

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

Thank you.

I now give the floor to Senator Joyal.

[Serge Joyal]

Thank you, Mr. Chair.

My first question will be for Professor Hogg. Welcome, professor.

My first question is in relation to what you proposed to us: to stick to coming forward with a template of essential elements that Parliament would consider safeguards within the confines of the Criminal Code.

You mentioned that some provinces might decide to do nothing, while some others might do something that would be restrictive vis-à-vis what the Supreme Court has stated in Carter. Therefore,, in my opinion, we have to envisage that if we want to maintain similarity of rights all through Canada, we have no other choice but to legislate.

That's my first question to you. Then I'll come back to Monsieur Ménard.

[Peter Hogg]

I agree with that completely, Senator Joyal.

[Serge Joyal]

In other words, we want to address ourselves to the minimum definition of what we consider essential safeguards. Let's take the age of consent, for instance: an average citizen might believe that the age of consent for a decision should be 21, but the Criminal Code contains a variety of ages of consent in relation to different offences. I don't need to expand on the sexual offences. There are offences for which you are guilty at 14, at 16, at 18. In other words, we're not bound by the idea that you have to be 21 years old to give consent and agree to the administration of the drug. It's up to us to determine what the age of consent is in relation to a specific offence.