Evidence of meeting #5 for Physician-Assisted Dying in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was federal.
A video is available from Parliament.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
You are leaving in the hands of physicians the ability to make a determination as to whether or not this procedure can go forward without more, without any further authorization to physicians.
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
Two physicians is what we said, and the eligibility is the Carter decision: a patient has to be diagnosed with a “grievous and irremediable” condition. Physicians make these decisions with their patients every day. Yes, every day physicians are talking to their patients about when it is time to withdraw chemotherapy, or when it is time for terminal sedation, which is basically how my husband died.
Those are discussions that.... Physicians are assessing their competency to make these decisions every day. There are physicians who will not be comfortable with this, and we say very clearly that they shouldn't have to participate. It's for physicians who have that relationship with their patient, feel that the patient meets the criteria, and want to move ahead with it.
NDP
Murray Rankin NDP Victoria, BC
Thank you, Mr. Chair.
Thank you very much for your excellent work.
I want to step back from the specific recommendations. A colleague was pointing out to me that if we look at your long list of recommendations, we see that very few are federal. Most of them are provincial. Some of them simply confirm practices with the colleges and so forth.
What kind of role do you envisage the federal government playing in this legislation? We were reminded that a province may not do anything, that it may choose not to do this, so I'm trying to square that with your approach on the recommendations.
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
That's an excellent point. Indeed, most of our recommendations were focusing on the provinces and territories, in part because they were wondering what their scope or role ought to be.
But you're right, and one of our key messages is embedded in there, but it's probably worth unpacking a bit. What we were seeking was clarity, as we've noted, in the Criminal Code carve-out related to health professionals and related to eligibility criteria so that those would apply in a pan-Canadian way.
We've also underscored an important role federally for there to be federal oversight. We heard earlier from the expert panel. We are actually envisioning two levels of oversight. The federal level of oversight primarily would be more like a commission that would provide overall policy recommendations. There would be a gathering of data. We'd gather data from across the country and then be able to report back to the public on the state of end of life in Canada, particularly as related to physician-assisted death. Then, within the provinces, there would be a level of overview as well.
One of the worries, of course, is that we do live in a system that has a federal government with a narrow scope of jurisdiction related to health care, and we have provinces and territories where most of the jurisdictional work is. That's the system we've inherited. That's what we're working in. One of the key messages we took away from our work with the provinces and territories is that they were the ones underscoring that they did not want to see a patchwork. Many of them were saying that they need to have clarity on the Criminal Code issues and then they will follow from there. They were really looking for direction from the clarification on the Criminal Code by the federal government in order to be able to proceed.
NDP
Murray Rankin NDP Victoria, BC
Time is so limited here, but in recommendation 18, you call for—and you did it in your oral remarks—a definition of some of the key terms such as “grievous and irremediable”. Why? Just to push a bit, why can't we leave it to the courts? We put all these words in the Criminal Code, some of them very general, and over time we have meaning for those words. Why would we want to perhaps narrow ourselves by putting words in a definition?
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
We don't want you to narrow it. “Irremediable” has already been defined in Carter, because they said the patient does not have to try therapies that are not acceptable to the patient. That's done.
For “grievous”, we're saying “very severe or serious”.
NDP
Murray Rankin NDP Victoria, BC
The Criminal Code probably means already.... That word already appears in the Criminal Code, so why put it down?
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
One of the reasons why we reinforced this is that there were a few voices that were starting to say, “If you could just tell us what it means, we'd know how to apply it”, but most clinicians say that doesn't work for them, that they don't know.
One of the key messages we heard consistently was that they want to know when we're talking about “grievous and irremediable” that they as clinicians are operating without incurring liability in what they do. They say they want to make sure they're following the rules, but to please not have it so narrowly stipulated that if the following conditions cross that bar, that's the level of—
Murray Rankin NDP Victoria, BC
Okay. That's helpful. Of course, we all expect there to be protections provided. I think everyone is on common ground with that.
Is the word “competent” something on which we can leave the decision of whether a person is “competent” to the doctors and also to the nurse practitioners? I think you made a powerful point about the role of nurse practitioners in this piece. Do we need that definition in our work or not?
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
We say in our report that there are provinces that already have ways of evaluating. When a physician is worried about a patient's competency, they seek other expert opinion. They send the patient on. Where there is a disagreement between the patient and the physician, Ontario has the Consent and Capacity Board.
We're saying to let those things that are already in place take this over, so no, we don't think you need to address competence.
Senator, Quebec (De la Durantaye), C
If I might, I'd like to ask about recommendations 12 and 13, on the timing of the completion of the declaration of competence, and specifically about advance directives.
You say on page 32 that you “recognize that rules about advance directives vary across the country and, therefore, where a patient wishes to consent to physician-assisted dying in advance”, you recommend “a standardized patient declaration form”.
Could you help us understand your process of thought on this issue?
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
Depending on the province you're from.... I'm from Ontario, so I use advance directive. You're going to hear in a couple of days from Jocelyn Downie, who is a health law expert, and we'll defer some of the legalese to her.
She felt very strongly that this is not a consistently applied term across the country. She believed that we needed to come up with a new way of letting everyone know legally what our wishes would be if we lost competence. She came up with the phrase “patient declaration form”, so we're adopting that.
But if you're more comfortable thinking about this in terms of advance directive, we think, unlike some of your previous guests, that if you've been diagnosed with a grievous and irremediable condition and you're competent at the time of the diagnosis, you should be able to use some kind of advance directive to lay out your wishes in case you lose competence before physician-assisted dying can be administered. I think we go through three scenarios. You can read the report.
There's a fourth scenario where we couldn't reach a consensus. It's trickier. Let's say you're me, healthy, with no diagnosis. I know that under certain conditions I would want a physician-assisted death, but some people on the panel felt that you can't know what your wishes will be before you have the diagnosis. You can't speculate. So we say that the federal government and the provinces should get together and discuss this very serious issue over the next year and come up with some sort of resolution on that.
Senator, Quebec (De la Durantaye), C
Could you give us some idea of the argumentation you went through? You said that the panel itself had difficulty with this issue, and certainly Quebec had difficulty with this issue, because they ultimately took it out of Bill 52. Could you give us some of the input you had when you discussed it in provinces and territories in your committee?
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
I'll let the bioethicist take that.
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
There are a couple of factors here. The most obvious example is a case of somebody who is competent, has a grievous and irremediable condition, and is suffering intolerably. In that case, it's very clear they would be eligible. They meet the criteria, no question.
We have a very engaged Canadian citizenry. Canadians are starting to talk about death. We have a number of initiatives focusing on advance care planning across the country. We're encouraging Canadians to talk to their families. We're encouraging Canadians to articulate their values. We're encouraging Canadians to think about how they would like to die, in other respects.
It is an evolving area of practice. It's an evolving area where, on the one hand, we're starting to see a much more engaged country. Canadians are willing to do this, but it's still moving.
One thing we're thinking about is, within that particular context of how this applies to physician-assisted death, I might be very clear that I might wish to end my life, under certain circumstances, if I already knew that I had a grievous and irremediable diagnosis. I may not be suffering intolerably, but I might want to have the opportunity to speak with my family and articulate my wishes. Then if I subsequently lost competency but all of the other criteria were met, I would want my family to be able to exercise my wishes in that particular case. There has been consistency in some of the conversations we've had about advance care planning and the situation in which someone might lose competency after having met the criteria.
The more complex situation, though, is a situation where I might have gone through a number of those steps but I'm not suffering intolerably yet. In that particular case, I might have articulated what intolerable suffering would mean to me. I might be able to spell that out in an advance directive of some kind. In that particular case, we have said that it would be the expression of wishes that might be able to inform a decision to proceed with my wishes, which would be to end my life.
I think we're seeing a convergence of conversations. They're converging around physician-assisted death right now. There's still more work to do, but I think we're moving.
Senator, Nova Scotia, Lib.
Thank you for being here, and thank you for your work.
In Carter, the terminology used was “grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual”. Do you see any reason to distinguish between mental illness and physical illness?
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
We do not, for the purposes being considered for this. Where I think we felt there could be leeway—you've talked about waiting periods, cooling-off periods, and whether patients should require a psychiatric evaluation. We definitely don't feel every patient who asks for this needs to have a psychiatric evaluation, but I would think that where the baseline condition is mental illness—and here we're talking about refractory depression most of the time—most physicians would want that patient to have a psychiatric evaluation. I think that's just going to be good practice.
No, a mental illness shouldn't exclude you under Carter, but will it require other thought processes? Probably, and I can see where those people would probably need to convince the physician over an extended period of time.
Then there's the whole competency issue. Interestingly, we reached out to psychiatry associations. We should not assume, just because someone has a mental illness, that they are not competent.
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
Yes.
Senator, Nova Scotia, Lib.
I have one more question.
There's the business of conscientious objection. Nobody is trying to force anybody to participate in this process. That protects the practitioner, whether they're a physician or another medical professional. The corollary of that, in looking at it from the point of view of the patient, is how we ensure that there is what I would call an effective referral. That means something more than simply saying, “I can't be involved in this. You're on your own. Go and look it up on the Internet. Go call the medical society, and they may be able to help you”. Don't you agree that we need to design a regime that ensures there is a more effective referral than that?
Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
Yes.