Physician-Assisted Dying Committee on Jan. 26th, 2016

[Prof. Benoît Pelletier]

You're right. I wouldn't see the federal intervention to be on just some aspects of the question. That would be unjust, in my view. If there has to be an intervention, it should be on all aspects, including first assuring that there is access all over Canada.

My second point is that I personally would like what Quebec did to be respected. In other words, I would like the Quebec law, the Quebec act, to be respected and not jeopardized by any federal intervention. I'm sure that most—

[James S. Cowan]

We're both going to be cut off here in a minute, but if I could just say this, I think Professor Hogg's answer to that was equivalency, meaning that there could be a declaration of equivalency if a province came up to a certain standard, even if they did it in a slightly different way. Would you agree with that?

[Prof. Benoît Pelletier]

Yes, under the reservation that the Quebec act does not go as far as the Carter decision itself.

[James S. Cowan]

It initially has to be amended accordingly.

[Prof. Benoît Pelletier]

That's right. That's a big problem.

[James S. Cowan]

Thank you, sir.

[Prof. Benoît Pelletier]

The fact that it does not fit the Carter decision absolutely well is a big problem in this case.

I would like to see what Quebec did fully respected. To be frank, I would prefer co-operation and collaboration among the governments. If there is one issue, Mr. Chair, where such co-operation is possible and desirable, it is precisely this one.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you. I think that's a very important point to close on in this regard.

Thank you very much for appearing before us.

We are going to temporarily suspend the meeting for one minute. We have to turn this around quickly.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Colleagues, we have the second panel before us.

We have with us the two co-chairs of the provincial-territorial expert advisory group on physician-assisted dying, Jennifer Gibson and Maureen Taylor.

Witnesses, you have a total of 10 minutes for your presentation. We will be very efficient because we know you have to leave at precisely 7:30 to get out of here.

Please proceed.

[Dr. Jennifer Gibson, Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying]

Thank you so much for the invitation to join you.

This has been what I would say was quite a journey—I'm sure you're on the same journey right now—to get our heads into some of these issues and to be able to come forward with a set of recommendations, which I believe you've had an opportunity to review in the report we have drafted, as well as the set of slides that were prepared.

What we'd like to do, though, is draw out a few highlights from that report and then turn it over to you to engage with us with your questions in the hope that we might be able to put some flesh on the bones of some of the questions you may have. We may not take the full 10 minutes, but we're really looking forward to the conversation that we might have.

In regard to when we started off on this work as the expert advisory group, I should note by way of a bit of background that 11 of the 13 provinces came together to create this expert advisory group. One of the key messages we received from them was that they were seeking to avoid a patchwork approach. Hence, one of the reasons why we created the expert advisory group was so that we could provide recommendations that would reflect the continuity of the Canadian context across the board.

In addition to that emphasis on avoiding a patchwork, we certainly heard from the stakeholders we met with, through written submissions and in-person consultations, about the importance of collaboration across jurisdictions, which includes federal, provincial and territorial, and also regulatory bodies, and we heard that there could be more alignment and clarity across those roles, but also a real effort to work together to clarify these issues. That was an important message that we heard along the way.

One of the things we also heard about consistently was the importance of having a strong legislative response, both at the provincial-territorial level and at the federal level. Particularly, in our case, in thinking about where we'd like to spend some of our time with you, there are some reflections on where there might be some clarity within the Criminal Code, which we heard about consistently from the provinces and territories as being particularly helpful for the work they need to do within their own jurisdictional settings.

Just to reinforce, the third piece that we also consistently heard about, and as you've also heard from the federal panel, is that physician-assisted death shouldn't be treated as some sort of parallel set of activities isolated from a comprehensive set of end-of-life services for Canadians. Hence, there was a strong message that we heard, and also reinforced in our own report, in regard to seeing physician-assisted death as part of an integrated end-of-life care strategy that would engage all levels of government, including the regulatory bodies, in a very effective way.

Thus, one of the encouraging things in looking at some of the federal findings, as well as our report, is that there is some nice consistency. I'm going to pass this over to Maureen, who will pick up on some of the pieces that we thought we'd highlight to you in relation to some possible clarifications within the Criminal Code.

[Maureen Taylor, Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying]

Thank you, Jennifer.

Again, thank you very much for asking us to be here.

I think all of you have the slide deck that was just handed out. The nub of it is on page 6, really, with regard to priorities to raise with the federal government. Jennifer and I will address a couple of these for you.

The first one is about something you just raised with Mr. Pelletier in regard to other health professionals who may need to be involved in physician-assisted death. We take a different view. We very strongly think that the Supreme Court decision, although it mentioned physician-assisted death, did not mean to exclude other health care professionals.

Anyone who understands how health care is delivered in this country knows that it is delivered not solely by physicians. We heard very strongly from the territories, which said that they have fly-in communities where there is no physician. There is a nurse in a nursing station. If we're going to guarantee access across the country, we have to give a mechanism for them to be able to assess patients using telemedicine in conjunction with physicians in other areas, as well as to deliver it.

I also want to say that nurse practitioners, if you're not familiar with them, have a stand-alone scope of practice that absolutely should encompass end-of-life care, so we're asking that when you redraft the Criminal Code to carve out the Carter decision, you make it clear that other health care professionals, such as nurses and pharmacists—I'm a physician assistant, by the way—will be protected, but also especially that nurse practitioners and health care professionals acting under the directive of a physician will be able to assess patients for their eligibility and carry this out. That's an access issue.

I also wanted to talk about one of the later points on the definition of “grievous and irremediable”. Although Mr. Pelletier said they heard from people who think it should be defined but no one was sure how, we have a very strong opinion that it should be defined in what is the common usage. It should be “very severe or serious”. As someone who works in front-line health care, I think we understand, as health care professionals, what “very severe or serious” looks like. Obviously, acne is not very severe or serious.

I wanted to address those, and now Jennifer is going to address a couple.

[Dr. Jennifer Gibson]

The other area is definition, and again, we are focusing on definitional issues because they were highlighted, through our consultation, as an area where clarity within the Criminal Code would be an enabler of some consistency across the provinces. One topic is the definition of “adult”. As was noted a little bit earlier this evening, there are different ages of majority across the country—18 and 19. In the area of health care decision-making, there is no age of consent in most of the provinces. This means that a number of provinces do actively recognize a mature minor rule, which allows for the mature person under the age of 18, who is competent, to make decisions at the end of life.

Our position on this is that whatever definition of “adult” we might use, it should be a competency-based definition, not one that is based on age.

There are a couple of reasons for that. Again, current practice over a number of years has been that capacity has been the driver of whether or not somebody is able to or should be able to consent to a treatment at the end of life. That would involve a very significant practice change for which there is no justification in other end-of-life situations. Also, we believe that competency really gets at the heart of what the Supreme Court of Canada was going for here: somebody who can voluntarily choose to take a direction, for either self-administered or physician-administered death, according to these criteria, because they are competent to make such decisions, because they believe a decision is in their own interest, or because it is consistent with their values. Competency is the key to being able to do that, not someone's age.

Was there anything else you wanted to put forward?

[Maureen Taylor]

Those are the highlights, but obviously, we're here to answer your questions on anything else as well. Thank you.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you very much. It was very effective.

Monsieur Arseneault.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Joint Chair.

Ms. Gibson and Ms. Taylor, thank you for your work and for joining us today.

You set out a series of recommendations, the first of which says the following: “Provinces and territories, preferably in collaboration with the federal government, should develop and implement a pan-Canadian strategy for palliative and end-of-life care, including physician-assisted dying.”

Yesterday, we heard from Professor Hogg and Mr. Ménard. Today, we are hearing from Mr. Pelletier. In one way or another, they have been telling us that a pan-Canadian strategy is necessary.

Could you tell us in more detail why you felt the need to make this your first recommendation?

[Maureen Taylor]

Thank you for the question.

I'll be very blunt. Of course there needs to be better palliative care. There needs to be better access to palliative care.

I sometimes think we overstate the lack of palliative care. I was watching some of your panellists from earlier in the week, and I think sometimes the statistics that are used, if you check, are very outdated. My husband had excellent palliative care; so did my mother. The provinces have been working hard to improve this.

What we were seeing before our panel convened was that those who were opposed to the Supreme Court decision were saying we should not bring in physician-assisted dying in Canada until every Canadian has access to good quality palliative care. Of course, in our country, with a universal health care system, we will never have “Cadillac quality” access to anything. That's just the nature of the system. I personally didn't want that issue to get in the way of us moving forward.

I very strongly believe in a pan-Canadian approach to palliative care, but I also believe strongly that as we move toward that, we should not let people suffer in the meantime if they want to end their lives, end their suffering, when they meet the eligibility criteria in the Carter decision.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Are you implying that Canada lacks that kind of strategy, from coast to coast to coast?

[Maureen Taylor]

Yes, there's a lack of strategy. There's a lack of resources, no question.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

I have another question for you.

In recommendation 3, you say the following: “All provinces and territories should ensure access to physician-assisted dying, including both physician-administered and self-administered physician-assisted dying.”

That goes a bit further than the Quebec legislation, which is brand new.

Can you tell us more about recommendation 3 and explain why you are putting it forward?

[Dr. Jennifer Gibson]

In our analysis of this issue, the Carter decision left room for both self-administered and physician-administered death. We looked at a number of jurisdictions. Some jurisdictions provided self-administered death. One of the limitations of this approach, of a self-administered death only, is that for those who might not be physically able to self-administer, then that actually creates a barrier to access. On the other hand, a physician-assisted death—that is, a physician-administered death—was very clearly identified in other jurisdictions as desirable. We certainly saw that they were quite successful in introducing both.

There will be some Canadians who will say, “I would really like to take ownership of this particular decision. I would like to be able to determine the time of my own death, and I would like to be able to administer it.” Others will say, “If I am suffering intolerably and I'm unable to administer, I would like someone to help me. I would like to be competent. I would like it to be at the time of my choosing. I need help in order to be able to do that.”

I think we owe it to Canadians to be able to offer both of those options to them.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you.

Mr. Cooper.

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

Thank you.

My question relates to recommendation 29 of your report, wherein it is recommended that physicians file a report with a review committee to ensure compliance. I note that this regime exists in every Benelux country. Notwithstanding that in the Benelux countries we've had euthanasia for about a decade or longer, depending on the country, in only one instance has there been a public prosecution, and that was not the result of any report. It was not the result of the work of a committee or a review board. It was the result of a physician who'd spoken too much and too openly in the media.

In that context, what reasonable assurance can we have that the reports submitted to such a committee will be accurate?

[Dr. Jennifer Gibson]

This is an issue that we've heard crop up a number of times, on whether or not there should be a retrospective review or pre-review of all cases. We've spent a lot of time thinking about this, and we've heard testimony about it as well.

One of the concerns often raised was that, look, unless we have pre-review, then we're going to see physician abuses happening. Our concern with raising such a concern is that this would actually apply to almost every end-of-life decision we currently have in Canada today. We do not pre-review end-of-life decisions on a regular basis in hospitals and hospices all across Canada now, so there would need to be a strong justification for diverging from this practice in the case of physician-assisted death.

We are also concerned that by introducing a pre-review process it would actually create an undue burden on Canadians, many of whom will be entirely competent to make these decisions, will be very settled in their views, will have gone through the process, and will be very clear that this is the choice they would like to make. There will be no controversy about whether or not they are competent. Again, many of our health professionals are very skilled at being able to assess that level of competency. To introduce a pre-review would actually create an undue burden in many of those cases.

We have gone in the direction of retrospective review, and that's an important step. The retrospective review is extremely important because it gives us an opportunity to be able to learn from the experience within our system. We need to be able to monitor. We do need to be able to track data. We also need to understand where we are seeing certain patterns emerge. It will enable us to continue to evolve and improve the policies that support this work.

In our recommendations, we were trying to find the right balance, not unduly burdening patients but ensuring that there were sufficient safeguards through the process, up to the point of that individual finally having self-administered or physician-assisted death, and not adding an additional judicial review, tribunal or otherwise.

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

As a result, it is your recommendation that this decision be left entirely with physicians. In my opinion, this would seem to be putting physicians in a very tough position, having regard for...on the one hand applying, in many instances, a complex factual matrix to a complex legal regime. How are physicians equipped to do that?

[Maureen Taylor]

I'm sorry, but what are we leaving in the hands of physicians?