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

[Dr. Jennifer Gibson]

One thing that was pretty clear to us throughout our deliberation was that almost every patient we'd be talking about in this particular conversation would be vulnerable in one way or another. Vulnerability was something that would apply to all patients, as a whole, who might be candidates for this.

There might be some unique types of vulnerability we need to be attentive to. We heard earlier about persons with mental health issues. Some concerns were raised as to whether they deserve more protection. You know what? Indeed, we want to ensure that everyone who's making these decisions is competent to do so. We've also heard there may be certain social conditions that may impede someone's ability to make autonomous decisions.

In thinking this through, we suggested a number of things. First of all—and I believe this was reinforced also by the federal panel—this is not a single decision. This is a process. That process, as we've mapped out in the report, allows any patient who might wish to even start a conversation about physician-assisted death to have the opportunity to do so. That process might, if required given the circumstances of a particular patient, invite the opportunity for a competency assessment, which is common practice in medical care as it is. It might also involve an assessment or a conversation with a psychiatrist if there are concerns about whether or not an underlying mental health issue might actually or potentially be having an impact on someone's competency.

We heard consistently that there could be an opportunity for better training for health professionals in the area of assessing social vulnerability. One could say that until we have all of those social vulnerabilities resolved, we ought not to be implementing this. We weren't willing to go down that road.

We thought, actually, that with having two physicians sign off, the eligibility criteria, and the time through which somebody might be able to have these conversations, we would provide a sufficient level of protection for all Canadians, regardless of one's level of vulnerability. We also thought more work could be done to strengthen the skills and capacities of physicians and other health professionals to be attuned to other types of vulnerability that might not be immediately obvious.

[Maureen Taylor]

I think we should be satisfied, too, that in Oregon, where they track this, the vast majority of patients who ask for physician-assisted dying and get it are the three Ws: white, wealthy, and well-educated. It is not the socially vulnerable who get there.

In fact, I think we should wonder whether the poor and undereducated will even know this exists in Canada and that it's an option, and we should be worried about them accessing it.

[Nancy Ruth]

On the side, you referred to the social determinants of health, in that there may be other issues that could perhaps help move someone away. That certainly is the position of the last panel, although they didn't talk about it.

Do you want to say more about that, whatever you think about it?

[Maureen Taylor]

Do you mean poverty, homelessness, and things like that?

[Nancy Ruth]

Yes, poverty, lack of access, bad food, no housing, and homelessness.

[Maureen Taylor]

We did hear from some stakeholders who said that until every homeless person has a home, they can't make a competent decision to choose between physician-assisted dying and palliative care. Again, we're not going to be able to solve the homelessness problem—and I wish we could—before June. We have to move forward.

Every day, physicians see patients who fight with their families about what they want at the end of life. Are you wanting mom to stay on that machine just because you can't let her go? I've seen families who don't want to let them go because there is a disability cheque coming into the house. How sad is that? Every day, physicians see these situations and have to make decisions, and we think they can do it in this case too.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you.

Senator Joyal.

[Serge Joyal]

I'd like to come back to your recommendation 17, where you propose that competence should be substituted for age as a criteria to have access to physician-assisted dying. Could you explain why you removed the age factor? It could apply below 21 years of age, but it would apply over 21 years of age also. If there's no age factor and no more adult status, then, of course, everything becomes a matter of evaluating the competence.

Could you explain why you proposed that approach to the issue of age as a criteria of eligibility?

[Dr. Jennifer Gibson]

Yes, and you're absolutely right, in that a 21-year-old who is not competent would not meet the eligibility criteria for the purposes of physician-assisted death. Age by itself would not be sufficient. That would apply on the north side of 18 or on the south side of 18.

Also, when we looked at current practice within health care—this is not just in Canada, this is broadly—what we saw is an increasing recognition, particularly in pediatric settings, that some children, but especially adolescents, have the competence and the capacity to make end-of-life decisions, and in fact are empowered and encouraged to be able to be active participants in that.

We wanted to be able to acknowledge this, to acknowledge that what this turns on is not their age—it's not what their birth certificate says—but really their ability to appreciate and understand the diagnosis and their options. Many of these children, these adolescents, would have had a period of time when they may have been sick for a great deal of time. They may reach a point where they say, “I know this better than anyone else does, and my life experience is far richer because of this experience.” One of the concerns is that a 16-year-old hasn't had the life experience to make such decisions. Well, many of us haven't had the life experience to make an end-of-life decision until we're faced with it, but many of these young people actually have the competency to do so.

We're not saying to let us liberalize to the point that any child who says, “I want physician-assisted death” should have access. The stringency of this criterion related to competence is essential.

[Serge Joyal]

If I may, I would like to come back to the issue of initial consent given by persons who become incompetent later in life. I would like to understand clearly the distinction between this and a will, whereby a person provides that in a case where the person is suffering from an accident or another disease and loses his autonomy, the person can decide to opt for somebody to consent that they not be maintained artificially in life. It is suicide, in a way, to decide that in such a condition you prefer to die.

What you've proposed, if I understand well, would mean that when a person is diagnosed with a disease or a physical or mental condition that is irremediable, that person could opt at some point in time to have somebody express consent to terminate their life. Do I understand well these conditions through which you would add to the capacity of a person to decide when that person would be dying at a point in life because her physical or mental condition would be totally irremediable?

[Maureen Taylor]

Regarding the first one you talked about with the will, where you say, “I wouldn't want my life maintained artificially”, sometimes you're not on a ventilator and you don't need resuscitation but unfortunately you linger in that near vegetative state, for want of a better phrase. That's what some people are saying. My father says that's fine with him, that he doesn't mind because he's not going to know any better then.

My dad would say that's fine. For me, I would say no, so the only way I'm going to get that death hastened is with a physician-assisted death. We're saying that's going to be allowed for me if I make it clear in an advance directive what, for me, would qualify as “intolerable suffering”. But again, our committee has said that we've made a decision, and it's only if you already have the diagnosis. Here's a good example. If I have an advance will and I have a stroke tomorrow, I'll survive the stroke, and I might not have any capacity to speak or recognize my family, but I'm not dying either. That's too bad, but I can't get a physician-assisted death because I didn't have the diagnosis before I lost competency.

Do you see?

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you.

Madam Shanahan.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

I didn't want to go too far down this road because I really believe that the procedural and health administration aspect of it is in the provincial competency, but we're here and that's really where your work was.

I have two things. What are the minimum safeguards that you would envisage? That's sort of on the federal side. Also, did you consider options such as multidisciplinary teams working in this area? If so, how does that fit in with safeguards and the physician-assisted part?

[Dr. Jennifer Gibson]

It's an interesting question, because what we've laid out in the protocol is a series of steps here, including an assessment of whether or not the patient meets the eligibility.

First of all, the patient makes a request. Their competency and all of the eligibility criteria are assessed. The first physician confirms that. A second physician must also confirm that the eligibility criteria are met. At either of those stages, if necessary, if there's concern about competence, there might be a consultation with a psychiatrist or a social worker or someone.

All of those steps are there, but what you've introduced is really interesting, and that's the multidisciplinary team. This is where some of these recommendations actually speak to each other.

It's not nearly as explicit, but it was in the back of our minds, and for some of the ways in which a physician—or a nurse practitioner, if this were to be extended to nurse practitioners—might get to know his or her patient, very often they operate within a multidisciplinary team, where knowing the patient is actually about speaking with the members of your team and getting to know them through the multidisciplinary team. The physician is not the only person who speaks to the patient. It's the social worker, the nutritionist, the physio person, and all of those folks in the circle of care. They collectively get to know the patient in order to be able to provide insight and to say, “Yes, this individual is competent.” Somebody has to make the determination of competence, but those other members do have a relationship with that patient and might be able to inform it.

What we've tried to do here is acknowledge that this is in fact the way in which health care is currently delivered. It's also being established as a standard of care that we ought to aspire to: to see interdisciplinary teams circling around a patient in a way that actually meets the comprehensiveness of their needs. What we're trying to do is align some of what we're recommending here with what is emerging as best clinical practice from a patient-centred perspective.

I'm not sure if that answers your question.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you. Yes, I think that gives us some reassurance on the safeguard part.

You said right at the top that the patient makes the request, and I think that's a key concern, too, in that it's not something that's suggested to them, that it's the patient who activates that request. In my work with living wills and mandats en cas d'inaptitude in Quebec—mandates in case of incapacity—as a former social worker and financial planner, I asked a lot of the questions about “What happens if you die today?” or “What happens if you're in a state where you can't make a decision?”

One thing we were always careful to say was that the key element is talking to your family, because you can't predict every situation. That's a concern I have about advance directives. Do you want to speak to that and about talking to the family? What about family reactions?

[Maureen Taylor]

We do not believe the family should be able to overturn a patient's request if they don't agree, when the patient wants this and is competent. At the same time, we don't believe the family should be able to initiate this for a patient, whether the patient is competent or not. A substitute decision-maker cannot request physician-assisted dying in our opinion.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Okay.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you very much.

Thank you very much for being here. I think we're going to get you out exactly on time. I need to inform the committee that for tomorrow there's been a slight change in time. The first panel will be from 5:15 to 6:15 and then we will take a suspension and begin the second panel, which will go from 7 until 8 p.m. Does everybody have that? It's due to a vote in the House, so I have to get your agreement on this.

[Some hon. members]

Agreed.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

We're at Wellington.

[James S. Cowan]

It's from 5:15 to 8 p.m.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

It is 5:15 to 8 p.m. in total, but there will be a break between 6:15 and 7.

[James S. Cowan]

Thank you.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Notices will be sent to confirm it.

The meeting is adjourned.