Physician-Assisted Dying Committee on Jan. 26th, 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.

I want to welcome you to the fifth meeting of the Special Joint Committee on Physician-Assisted Dying.

Tonight we have two panels. In the first panel we will hear from two individuals who were involved in the External Panel on Options for a Legislative Response to Carter v. Canada. We have Mr. Benoît Pelletier, who is a member of the external panel, and we have Mr. Stephen Mihorean, who is the executive director of the secretariat.

This session will end no later than 6:30 p.m. You have 10 minutes for your presentation.

[Prof. Benoît Pelletier, Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada]

Thank you, Mr. Chair.

Honourable members, thank you for the invitation to appear before you to discuss this extremely important topic.

Thank you, Mr. Chair and honourable members of this committee, for the invitation to appear before you on this most important issue. I will be speaking mainly in English, but there will be paragraphs that I will repeat in French. These are paragraphs I have chosen for their significance.

So I will be speaking in both official languages, but mostly in English.

My name is Benoît Pelletier. I am a full professor at the Faculty of Law at the University of Ottawa and a member of the bar of Quebec.

I appear before you this evening as the representative of the three-member External Panel on Options for a Legislative Response to Carter v. Canada. The chair of the external panel is Dr. Harvey Max Chochinov, Canada research chair in palliative care, and the third member is Catherine Frazee, a professor emerita at Ryerson University. They are out of the country but are following these proceedings closely and will be available to assist this committee going forward. I am pleased to appear on their behalf and with their full support, and I will do my best to represent our work.

I am also assisted this evening by Mr. Stephen Mihorean, the executive director of the panel's secretariat. For the record, my co-panellists and I would like to recognize the substantial contribution we received from the extraordinary group of professionals in the small secretariat who supported our work.

I would also like to take this opportunity to thank the government, past and present, for the confidence placed in us to do this work. The external panel report is detailed and complex because the issues related to physician-assisted dying are detailed and complex. These issues require consideration and thought to determine sound social policy. This committee has been provided with copies of our report, which I will not have time to review in detail. I will instead highlight some of what we heard in a series of long meetings with intervenors, medical practitioners and regulators, academics, government representatives, and civil society organizations, as well as with two of the individual claimants, Ms. Lee Carter and Mr. Hollis Johnson, and another claimant, the British Columbia Civil Liberties Association. The complete list of those we met with in Canada, the United States, the Netherlands, Belgium, and Switzerland is found in annexes C and D of our report. As well, abstracts of transcripts from these in-person consultations are found in annex E. The panel also reviewed a total of 321 formal document submissions, which are summarized in annex F and chronicled with brief individual abstracts in annex G.

I would like to say a little about what we learned in Europe. There appears to be general satisfaction with the law in the countries we visited. We were told that assisted dying works well in the context of a robust social safety net, well-founded health care services, and high levels of trust in physicians. At the same time, there is intense controversy about cases that push the boundaries or test the limits of the law, cases that challenge the age requirement, cases involving advance directives, and cases that arise from psychological, existential, or psychiatric suffering or from suffering related to chronic conditions that are not life-threatening.

For many people one of the most important safeguards is transparency. Mistakes and abuses must be detected and acted upon. The same applies to non-compliance with reporting requirements.

The panel's online questionnaire was completed by almost 15,000 Canadians. I would like to draw your attention to our analysis and the results of this public consultation, which provides a rich source of information and insight, and which can be found in annex A of our report. For example, participants demonstrated strong levels of approval for palliative care education for all health care providers; for better supports for disabled people; for better home care, palliative care, and end-of-life care in the whole country; and for an efficient oversight of physician-assisted dying.

The questionnaire also revealed that respondents were more likely to agree that physician-assisted death should be allowed when a person faces significant life-threatening and/or progressive conditions. The questionnaire demonstrated that participants were generally very concerned about the risks that existed for people who are mentally ill, especially those with episodic conditions, and for people who are isolated or lonely.

Here are the results of the questionnaire we posted online that was completed by more than 15,000 Canadians.

For example, participants demonstrated strong levels of approval for palliative care education for all health care providers, for better support for disabled people, for better home care, palliative care and end-of-life care in the whole country, and for an efficient oversight of physician-assisted dying.

The questionnaire also revealed that respondents were more likely to agree that physician-assisted death should be allowed when a person faces significant, life-threatening and/or progressive conditions.

The questionnaire also demonstrated that participants were generally very concerned about the risks that existed for people who are mentally ill, especially those with episodic conditions, and for persons who are isolated or lonely.

On some issues we found high levels of agreement among Canadians from diverse perspectives. For example, there was agreement with the idea that all Canadians who suffer should have access to the supports and services that are within our capacity as a nation to provide, wherever they are in their lives and whatever their personal circumstances. There was agreement with the idea that Canadians should invest trust and respect in an assisted dying regime that features transparent, accurate, reliable, and objective oversight through data monitoring, research, and public reporting.

Honourable members of this committee, we reported on the points of view that were expressed to us, but our report is not just an account of those exchanges. Our report contains much information and analysis on the issues.

We heard clearly that there is a need to balance individual autonomy and the protection of vulnerable people. This being said, I would like to say a little more about autonomy and vulnerability.

With respect to autonomy there are a number of what I would characterize as core values that informed the Carter decision. Among them are the integrity of a person, dignity, self-esteem, and the right of an individual to make important decisions regarding the end of his or her life.

[The Chair]

You have one minute.

[Prof. Benoît Pelletier]

I will do my best to summarize the rest of my presentation, Mr. Chair.

I want to point out that autonomy is one of the core values outlined in the Carter decision.

As for vulnerability, it is, of course, a complex and subtle concept. Although the term “vulnerable populations” has been used to describe certain identifiable groups in society, the panel heard from many sources that vulnerability is not simply a characteristic of an individual or group, but rather is a state that any one of us could be in under certain circumstances. We heard that sometimes people are made vulnerable in particular contexts and situations when personal autonomy, status, wealth, and well-being are compromised in any significant way.

What this means in the context of physician-assisted dying is that all persons are potentially vulnerable. Being vulnerable does not disqualify a person who is suffering intolerably from seeking an assisted death, but it does put that person at risk of being induced to request a death that he or she does not desire. This is the risk that the Supreme Court called upon Parliament and provincial legislatures to address in a complex regulatory scheme.

Concerns were raised about access to physician-assisted dying, particularly for people living in Canada's remote communities. Concerns were also raised about how indigenous people will respond to physician-assisted dying.

There were, of course, many questions about which there were competing visions. For example, do the terms “grievous” and “irremediable” need further definition in legislation, or should physicians and their regulatory bodies have the discretion to interpret these terms? Should the decision to provide an assisted death be subject to review, and if so, should that review take place before or after a request has been granted? Are protections for vulnerable persons required beyond those routinely in place for patients wishing to refuse or withdraw life-sustaining treatment? How should the overlapping jurisdictions of provinces and the federal order of government be addressed?

The establishment of eligibility criteria, possible definitions of key terms, and the implementation of appropriate safeguards to protect vulnerable individuals are theoretically the responsibility of the various governments and legislative assemblies. In this regard, the Canadian population expects collaboration between the federal government and the provinces and territories so that the division of responsibilities and the implementation of physician-assisted dying and its oversight are managed in a consistent and effective manner.

While most attention has been given to physicians as our country is in the process of making particularly important decisions on this incitive and challenging topic, our extensive consultations and work, including the report before you, were completed and delivered to the government within five months. Our panel wanted to advance the debate and to make sure that everyone—from citizens to members of Parliament to federal ministers to provincial and territorial elected officials or representatives—had access to all relevant perspectives and information.

Above all, Mr. Chair, we wanted to assist this Parliament in making informed decisions. I hope the report of our panel and my testimony today will facilitate this committee's work.

In conclusion, I would like to signal for you, members of this committee, that as I am appearing on behalf of my co-panellists, there will be occasions today when I will respond on behalf of the panel and there will be times when I will be giving my personal opinion. When those latter situations arise, I will say so.

Those are my opening remarks. Thank you. I would be happy to take any questions you may have in the official language of your choice.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you.

Monsieur Lemieux.

[Denis Lemieux, Liberal, Chicoutimi—Le Fjord, QC]

Mr. Pelletier, if I may, I would like to begin by congratulating you on the excellent work you did last year, free of charge.

I know that the Liberal government has removed from the committee's mandate the requirement to present legislative options to the Carter decision.

Yesterday morning, we heard from Jean-Pierre Ménard, who suggested that we respond to the Supreme Court's request in two steps.

The first step would consist in amending sections 241 and 14 of the Criminal Code to make them consistent with the new requirements related to physician-assisted dying.

The second step would consist in implementing a detailed Canada-wide process to give the provinces and territories the time to legislate on all other aspects of physician-assisted dying. Mr. Ménard also said that those other issues often come under provincial and territorial jurisdiction.

What do you think about Jean-Pierre Ménard's suggestion?

[Prof. Benoît Pelletier]

Thank you for the question.

You are right to point out that physician-assisted dying may require a number of interventions from the Government of Canada. I want to emphasize that, whatever the Government of Canada's interventions may be, it is obviously desirable for the provinces and territories to collaborate. I would go as far as to say that the principle of cooperative federalism—which is found in many Supreme Court decisions and is an extremely healthy principle for applying Canadian federalism—must be at the core of this Parliament's intervention.

The most urgent step without a doubt would be to amend the Criminal Code of Canada in order to comply with the Carter decision. However, I have to say that, even if Parliament failed to do so, the Carter decision would prevail as soon as the stay of the application of decision expired. That means the ruling would apply as of June 6 of this year. On that date, the Carter decision will be applicable in Canada. The provisions of the Criminal Code, even if they were not amended by this Parliament based on the Carter decision, will have to be interpreted as inoperative given that they prohibit physician-assisted death, while the conditions set out by the Supreme Court of Canada are, of course, respected.

That being said, I would say the big question is what kind of leadership the federal government will want or have to show when it comes to physician-assisted dying. Many Canadians are calling for the federal government to play that role. Some Canadians even want consistency in terms of physician-assisted dying measures.

However, as you pointed out, provincial jurisdiction is important in this case. Of course, I think that any kind of federal leadership will have to take into account the provincial presence and will even have to be reconciled with the presence and involvement of the provinces.

[Denis Lemieux, Liberal, Chicoutimi—Le Fjord, QC]

Thank you.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Mr. Warawa.

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

Thank you, Chair.

Thank you to the witnesses and to the panel in its entirety for the work you have done, the hours of consultation, and for the report and its timely release.

I was particularly interested in and appreciated the amount of involvement that we saw from Canadians—15,000 Canadians participated in this—and the key findings in your document that you've shared with us. Could share with us what those key findings were, in particular with regard to what Canadians were saying? What was the strong support that you heard in relation to people who were suffering a mental or psychological illness?

My understanding of the report was that there was much greater support if it was a physical, not mental, issue regarding the suffering. I also believe the report was showing stronger support if the illness, the suffering, dealt with a life-threatening, progressive condition that was terminal—again, not a mental and not a temporary suffering, but a definite prognosis that it was a progressive, terminal illness.

Could you elaborate on that, on the mental issue and on whether the majority of Canadians are saying, or the stronger support seems to be, that it be a physical, terminal, progressive illness?

[Prof. Benoît Pelletier]

Yes. Thank you very much.

What I will say comes from the 15,000 people who answered the questionnaire and also from the consultations we had all over Canada. As you know, we met many experts, groups, associations, and so on.

There is a concern, expressed by many people, about the application of physician-assisted dying to people who suffer from psychological illnesses. It is clear that support is stronger among the population for the application of physician-aided dying in cases of physical illness or physical disability, for example, than in cases of psychological illness.

At the same time, I should say that, a priori, the Carter decision does apply to psychological situations, maybe as well as to physical situations. I say “as well as to physical situations”, but this still has to be determined through an interpretation of the decision. I would say that, prima facie, the Carter decision applies to both psychological and physical illnesses. Respondents were more likely to agree that physician-assisted death should be allowed when a person faces a significant, life-threatening, or progressive condition. If someone suffers a significant, life-threatening, or progressive condition, then the support generally of the population is stronger than in the case where a person is not in such a situation and has many years to live.

I'd say that this is the challenge that this Parliament should face. This is the challenge that flows from the Carter decision. The Carter decision does apply to assisted suicide and voluntary euthanasia, it does apply to psychological and physical illnesses, it does apply to situations where someone is not confronted by the end of his life, so that decision is quite large. That decision is quite wide in its scope. The challenge for this Parliament and the provincial legislatures is not to see if there should be limits to that decision. Again, if there are limits to that decision, those limits should not go against the spirit of the decision—

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you—

[Prof. Benoît Pelletier]

—because of course due respect for the decision of the Supreme Court of Canada is necessary in this case.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you, Mr. Pelletier.

I'm going to remind everyone that we have a five-minute time limit for the question and the answer.

Mr. Rankin is next.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Chair.

Thank you, Professor Pelletier, for your remarks.

I note that in chapter 2 of your report, you spent a great deal of time on federal-provincial issues, and today you've also spoken about the fact that the population expects collaboration between the federal and provincial governments. Yesterday Professor Hogg testified before us, and he was reminding us that the federal government must establish its own regime. It cannot count on the provinces to step in. They may not. We have a constitutional duty, he said, to remember that it's from coast to coast to coast that we're doing this work.

He had a suggestion, and I would like your reaction to it. It was that we have a system in which the federal government—the cabinet, or the Minister of Health—might declare that provincial regimes, in the event that they pass muster, were substantially similar, like that of Quebec. He told us of two other federal examples in which that process had been used.

I'd like your reaction to that way of squaring the circle. I also would like to know whether you agree with his analysis that we must assume there may not be provincial legislation and must therefore go it alone, as it were.

[Prof. Benoît Pelletier]

I don't think it should be assumed that there shouldn't be provincial legislation. Medical aid in dying, or physician-assisted death, is related to both criminal law and health. With regard to health, a certain part of Canada has said that it is a matter that is under co-shared jurisdiction. It's a matter that belongs to the provinces, and it belongs to the federal Parliament. It all depends on your perspective on the subject. It all depends on the nature of the intervention of the legislative assembly that is concerned.

I would say that you cannot assume there will not be provincial legislation or that there should not be provincial legislation. What you could do, though, is to just talk with the provinces, discuss with the provinces, and enter into a dialogue and see how there could be concerted action with regard to physician-assisted death in order to give more harmony and coherence to both the federal and the provincial interventions.

As for the Quebec law, I would say very briefly that the Quebec law could be a very good model across Canada, but it doesn't go as far as the Supreme Court of Canada appears to have gone in the Carter decision.

[Murray Rankin, NDP, Victoria, BC]

That reminds me that on page 57 of the report, you make it clear that the court didn't limit its decision, as Quebec did, to terminal illness but went beyond that. I wonder if you could tell us more about the boundaries you might suggest for the terms that are used in the Carter decision.

For example, do you see a need to define the terms “grievous” and “irremediable”, or would it be preferable simply to leave it to the courts to pour meaning into those terms over time?

[Prof. Benoît Pelletier]

Of course some people argue for these terms to be defined, and some people argue for the opposite.

Those who argue for the terms to be defined say that in fact these terms could be interpreted in different ways and that the physicians who will be facing the physician-assisted death situations won't necessarily know how to define the terms “grievous” and “irremediable”. They say that it would be good to define these terms in the law.

At the same time, these terms are very difficult to define. We consulted many people, as you know, and when we asked people to give us or propose to us a definition of these words, frankly, no one really came up with a definition that could be put into a law. Most people said they thought it would be a good idea to define these terms but that they still had to think about how the terms should be defined. Of course the dictionaries give the definitions, but these definitions do not help us very much.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you very much.

Senator Nancy Ruth.

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

Thank you for your work and for being here tonight.

In your issues book in eligibility scenario number 3, you asked Canadians whether they should be able to receive physician-assisted death based on an advance directive. Sixty-two per cent of the balanced representative sample agreed or strongly agreed. Am I correct that this scenario for an advance directive received the highest level of support of any that you proposed?

[Prof. Benoît Pelletier]

Well, the fact is that this question of advance directive is not a question that we have examined as closely as other questions. I think it would be good for this committee, or eventually other institutions, to pay more attention to the specific question of advance directives.

[Nancy Ruth]

I'm happy to do so, but my question was on your report, in which 62% strongly agreed or agreed that this was a good thing and that it received the most support. Is that correct?

While the secretariat is finding the answer to that question, I'll go on.

One of the things that amazes me when we talk about the other jurisdictions is that all the Benelux countries, Switzerland, and the states in America that have physician-assisted death could all fit within Canada and we'd still have space, so I think the geographical framework in which we are making these decisions is very important, although we might not have the population that all of those countries combined have.

My question is around wait periods. It's been suggested in other testimony that waiting periods may be a safeguard to consider. There is no way for Parliament to choose a waiting time or periods that will be fair to all, in my opinion. Given the size of this country and the lack of complete medical facilities in many places, is there any reason why timing cannot be decided on a case-by-case basis between an attending physician and the patient, or between the physician and those who hold powers of attorney for the patient with prior directives?

[Prof. Benoît Pelletier]

Yes, geography is a challenge for Canada, of course, because many people live in very remote communities.

Some people expressed concerns that these people living in remote communities would not have fair access to physician-assisted death. This is what brought some experts to suggest to us that there could be an itinerant group of physicians, an itinerant group formed by medical personnel, that could travel and make sure there is access to physician-assisted death all across the country, even in the very remote areas.

[Nancy Ruth]

So does that mean that a patient and the doctor—

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Senator Ruth, you have to let him finish and get your first question answered, because you're running out of time.