Physician-Assisted Dying Committee on Jan. 27th, 2016

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

Thank you.

Let's go a bit further. We are still talking about a typical case of someone who has no pre-existing mental illness. In that context, does learning that they are suffering from a disease that will inevitably lead to death affect their ability to clearly request physician-assisted dying?

[Dr. K. Sonu Gaind]

I can't make a blanket statement answering that, because it would need to be assessed on a case-by-case basis to understand how that news has affected the patient. I've seen people react with all sorts of ranges of reaction when they learn that they have a terminal illness. It needs to be assessed on an individual level. To some extent, life is a terminal illness. When people learn something, the reaction to it is very individual and needs to be teased apart. It can't be answered by a general statement.

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

Thank you.

Using the same example, would you also say that Canada's health care professionals can always determine an adult's capacity to clearly express their will to receive assistance to die?

[Dr. K. Sonu Gaind]

I think that on some of these questions, I would probably defer to my colleagues at the CMA, because they're the ones who would be providing more guidance on the issues when mental illness is not present.

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

Mr. Deltell, go ahead.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you, Mr. Chair.

Ladies and gentlemen, welcome to your Canadian Parliament.

We appreciate the richness and depth of your statements. The debate is at a very high level and all of us are benefiting from that. This shows how delicate today's topic of discussion and the reason for our meeting is. We must always keep in mind that our duty as legislators is first and foremost to protect the most vulnerable individuals. We are not here to protect those who can protect themselves. We must remember that we have to protect the most vulnerable people.

Why are we here? It's not to determine whether physician-assisted dying is good or not. That is not the debate. The debate is to figure out how to adapt that reality to the Criminal Code of Canada, since the Supreme Court has ordered us to do so. We will obey the order of the very honourable judges of the Supreme Court.

In this spirit, it's important to know that health care in Canada is a provincial responsibility, while the Criminal Code is a federal piece of legislation. By voting for or against the legislation that will be introduced, the government and the House will have to reconcile provincial power and the Criminal Code.

My question is for both groups. Do you think the government's proposal should contain very prescriptive elements for the provinces, or should the government instead focus solely on the Criminal Code?

[Dr. Carlo Berardi]

Thank you.

Certainly, I can appreciate that each province or jurisdiction in health care is under their directive. Regarding the guidelines that emanate from the law, I can't speak on the Criminal Code, as I don't have the knowledge base there, but certainly the guidelines that come out from the federal government should be clear such that each provincial regulator can adapt it to their province for their own profession.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

If I have understood correctly, medical care is still a provincial responsibility, but the legislation the government will propose will have to establish guidelines for the provinces and tell them what the extent of their authority is.

Is that what you said, Mr. Berardi?

[Dr. Carlo Berardi]

Yes. We're saying the guidelines may have to be adapted by the regulators for uniqueness in their own province. I think the guidelines are the foundation to build upon to assist the regulators in that province to provide the guidance and the regulations in their particular jurisdiction.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

As we can see, it's not an easy task, especially for you who have the experience with those who have suffered from mental illness. What is a guideline that we can propose to the provincial legislator for that specific issue? We're not talking about harm from a scratch. We're talking about illness, which is quite difficult. You're the one who said it's impossible to define 100% that it's the end or that it's inevitable, because nothing is irreversible. That's what you said. What are the guidelines the government should propose in the law?

[Dr. K. Sonu Gaind]

You asked a question about the federal versus provincial roles. Certainly, as far as the Criminal Code goes, that would seem to be a federal role, but the operationalization of how these things actually play out may be jurisdictional, depending on the resources available. The guidelines or recommendations that we will be forwarding will address some of that. We have not finalized all of those right now. We're trying to articulate some of the principles that would need to be there, along the lines of multiple assessors and assessments over time. The time is also crucial, because with mental illness, it can take time for a response to various treatment options or interventions.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you.

[Judith G. Seidman]

The Canadian Nurses Association stressed the importance of an interprofessional team to undertake a comprehensive assessment in making the evaluation for physician-assisted dying. I'd like to know, if I may, from either of the two witnesses from the pharmacists, what specific role they could recommend for pharmacists to play in this interprofessional team.

[Dr. Carlo Berardi]

As we mentioned tonight, we're not saying that pharmacists should have a role in the determination of either eligibility or competency or compliance with regard to the determination for assisted dying. The role of pharmacists would be to ensure the right drug for the right patient under the right circumstances and at the right time.

[Judith G. Seidman]

Would the pharmacist have anything to say about what would happen to this drug if it wasn't used, for example?

[Dr. Carlo Berardi]

Yes. Pharmacists already have expertise in the handling, storage, and distribution of toxic and dangerous drugs. The patient-education component, what to do if someone refuses the medication or the patient dies before the medication is given, and what to do when dangerous and toxic drugs are returned are things that pharmacists already deal with on a daily basis.

[Judith G. Seidman]

Exactly.

For example, in the U.K. there was in fact a bill that had a specific instruction on how to deal with the return of a drug to the pharmacy from which it was dispensed. In your opinion, should a similar kind of provision be included in the legislation?

[Dr. Carlo Berardi]

Absolutely. Of course.

Pharmacists have the infrastructure, the capacity, and the supply chain management experience to deal with product returns like that.

[Judith G. Seidman]

Thank you.

Dr. Gaind, you spoke very clearly about the issue of mental health. I was trying to understand the role that you thought psychiatrists should play for patients with a terminal illness or physical health issues who might request physician-assisted dying. Do you see a role for psychiatrists in determining competency, for example, which is a very big issue?

[Dr. K. Sonu Gaind]

To some extent that question is already answered in practice on the ground because psychiatrists are not involved in all competency assessments, and that includes ones that have life-and-death consequences.

For example, in oncology, if a patient wishes to decline chemotherapy or their treatments, it does not require a psychiatrist to always be involved. If the oncologist feels that it goes beyond their ability—and when I say this, it is not in a pejorative way—or if the oncologist is uncertain whether they're getting the whole picture and whether, perhaps, there are other influences or mental illnesses present, then they can pull in the psychiatrist. It's not something that is routinely done by default.

[Judith G. Seidman]

Thank you.

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

Senator Joyal is next.

[Serge Joyal]

Thank you, Mr. Chair.

I would like to come back to one of the criteria that the Supreme Court has stated in Carter. I'll read it to you. You certainly know it. It says a person has to have “a grievous and irremediable medical condition”—and this is my point—“that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

In other words, there is an element of subjectivity on the part of the person who endures the suffering. When you endure the suffering, you can endure physically and you can endure mentally. It's you who endures. A doctor might come to the conclusion that what you endure may be curable. However, if the person has the specific conviction that it is intolerable to that person, where do you intervene, or should you intervene, to prevent that person from exercising his or her right to physician-assisted dying?

[Dr. K. Sonu Gaind]

You're actually hitting on issues we struggle with in medicine and psychiatry all the time between the principles of autonomy and beneficence. As physicians, we want to take care of patients. The patient also has his or her own autonomy to make decisions.

The tricky part with mental illness is that sometimes the illness can actually undermine the patient's autonomy. That applies to decisional points and processes that I've alluded to before, that idea of having a sense of a foreshortened future, perhaps literally not being able to see that there is a future. If a patient makes a decision because they're unable to see something because of the illness, then how do we reconcile that with full capacity?

I'll give you another example from my own practice. It was just a few weeks ago, actually. I have a patient I've been following for many years. He's chronically suicidal, on and off, and in between actually has good quality of life at times. The latest thing that brought him close to the suicidal state was ameliorated by getting some public transport for him so that he could be a bit more independent and go around the city and actually interact with people. Sometimes when things seem irremediable to a patient in the state of depression, it's because cognitively they cannot see a future. They cannot anticipate that something positive could change. That's part of our role, then, to make that assessment if the cognitive distortions are impairing their decision.

[Serge Joyal]

Then you would impose a treatment.