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

[The Joint Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I call to order this meeting of the Special Joint Committee on Physician-Assisted Dying.

Thank you, especially right now to our witnesses, and my apologies on behalf of all of us in the House of Commons for twice changing the time of this meeting. Times often change once and rarely twice, but when votes and ministerial statements happen, we seem, at least on the House side, to demand a lot of flexibility. Thank you, both for being so willing to come in any case and for coming despite our change in meeting time.

I will just note that our co-chair, Senator Ogilvie, is at another meeting and will get here as soon as he can.

I'll remind the committee that we will be meeting for an hour in this first session. We may ask for a few minutes of flexibility because we have three panels tonight, so I may ask for another five minutes at the end if we want to keep questioning for a bit. I'll check with you about that. We have some time before the vote in the House, so that should be okay.

Go ahead, Mr. Warawa.

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

On that issue, Chair, if we do have now an extension of time because of the vote, I have something I'd like to share in camera with the committee. If you could allow five or ten minutes for that at the end of meeting, I'd appreciate it.

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

Sure. The bells aren't until 6:45, I believe, so we have a little time there. We'll go in camera after we have a good discussion.

Our first witnesses today are from the Canadian Medical Association, Canada's physicians.

We thank you very much for coming. We have 10 minutes for your presentation. The time is yours. You may introduce yourselves and your titles as you go.

[Dr. Cindy Forbes, President, Canadian Medical Association]

Thank you, Mr. Chair.

I'm Dr. Cindy Forbes, president of the Canadian Medical Association. I'm also a family physician from Nova Scotia. I'm joined today by Dr. Jeff Blackmer, vice-president of medical professionalism at the CMA. Dr. Blackmer has led the CMA's work on assisted dying.

Today I'd like to begin by first reviewing a brief history of CMA's public and physician consultations on end-of-life care, followed by an overview of our report, “Principles-based Recommendations for a Canadian Approach to Assisted Dying”.

Before doing so, I would like to flag two critical issues for the committee's consideration. Both issues will be central to ensuring effective patient access.

First, how can we ensure that the legislative and regulatory framework achieves an appropriate balance between physicians' ability to follow their conscience and patients' ability to access physician-assisted dying? Second, how can we ensure that we emerge with a consistent, pan-Canadian framework?

We will speak to these issues as part of our remarks and will welcome your questions during this appearance. We want to highlight the potential role of federal legislation as an efficient and effective means of addressing these issues.

I'll start with a bit of history. As the national professional association representing Canada's physicians, the CMA has long recognized the importance of end-of-life care. We've played an important role over the past couple of years, in particular by leading the national discussion on end-of-life care, including assisted dying. Over the course of 2014, the CMA initiated the broadest consultation in Canada in recent years. We hosted town hall meetings across the country, as well as an online dialogue, to consult with the public as well as physicians on issues related to end-of-life care. This consultation has been instrumental in informing both our position and our focus on this issue.

During the Carter case, the CMA appeared before the Supreme Court as an intervenor, as a friend of the court, with the purpose of representing the physician perspective. In its ruling, the court made reference to the CMA's position. Following the Supreme Court's landmark decision last February, the CMA initiated the development of recommendations to guide the implementation of assisted dying. The development of these recommendations included extensive consultation and deliberation with CMA's committee on ethics, with Canadian physicians, and with key medical and health stakeholders.

In addition, over the course of the fall the CMA met with numerous provincial and territorial health ministers to discuss these recommendations. Our recommendations have now been finalized and were publicly released last week. The committee has been provided with our “Principles-based Recommendations for a Canadian Approach to Assisted Dying”. Guided by a set of ten foundational principles, the recommendations address the following four areas: patient eligibility for access to an assessment for assisted dying; procedural safeguards to ensure eligibility criteria are met; the roles and responsibilities of the attending and consulting physicians; and how to appropriately balance conscientious objection with a patient's request to access assisted dying.

This last issue, that of conscientious objection, is one we would like to discuss in more detail, as it is of particular concern.

I will now turn the microphone over to my colleague, Dr. Jeff Blackmer, to discuss this issue.

[Dr. Jeff Blackmer, Vice-President, Medical Professionalism, Canadian Medical Association]

Thank you, Dr. Forbes, and thank you, committee members.

Ensuring effective patient access across Canada will depend in part on how this issue is addressed. I would like to point out that a key focus of the CMA's work has been to ensure that both physicians and the patients for whom we care are represented in the overarching regulatory and legislative response to the Carter decision. As it remains in society, assisted dying is a difficult and controversial issue for the medical profession. It must be recognized that this represents no less than a sea change for physicians in Canada. As the national organization representing physicians, I cannot underscore enough the significance and the importance of this change.

As we have mentioned, the CMA has extensively consulted physicians before and since the Carter decision. Our surveys and consultations indicate that approximately 30% of physicians indicate that they would provide assistance in dying. It's important to note that for the majority of physicians who will choose not to provide assistance in dying directly, providing a patient with a referral will not be an issue for them. They will not consider it to be a violation of their conscience or of their moral code.

For other physicians, however, making a referral for assisted dying would be categorically, morally unacceptable. For these physicians, it implies forced participation procedurally that may be connected to, or make them complicit in, what they deem to be a morally abhorrent act. In other words, being asked to make a referral for assisted dying respects the conscience of some physicians, but not of others.

Part of the obligation of government and stakeholders is to ensure effective patient access by putting in place sufficient resources and systems. The CMA's framework accounts for differences of conscience by recommending the creation of resources in order to facilitate that access. It is critical that we provide clarity for physicians and their patients and that we develop a consistent approach across all jurisdictions.

The CMA is keenly aware of the risk if we don't—that a patchwork of differing and potentially conflicting approaches may easily emerge. That would not serve anyone well, doctors or patients. Today I can inform you confidently, and with gravity, that we are facing this risk. A number of provincial regulatory bodies have recently released draft or final guidelines on this issue. They differ either slightly or substantively on a number of important points. This is no longer a theoretical issue. We are indeed faced with a patchwork of approaches.

We look to Parliament for leadership to support the development of a pan-Canadian, national approach. The CMA's framework provides critical guidance for decision-makers in this respect. I must reiterate that in developing these recommendations, the CMA has given the issue our most careful and thoughtful deliberations, perhaps in the history of our organization, through the past two years. We've consulted at every step along the way with our membership, with the public, and with other health care stakeholders. Our recommendations are the result of this significant consultation in addition to our expert review of existing international frameworks.

I'm pleased to tell you that Canada's doctors stand ready to work with you to make sure that we are ready to respond in four months from now. As a country, we do not currently have a system in place to support us, but I'm pleased to tell you that the CMA's framework stands ready for your adoption.

Dr. Forbes and I would welcome any questions or comments you might have.

Thank you.

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

Thank you very much.

We'll now turn to the Canadian Nurses Association and hear from Ms. Sutherland Boal.

[Anne Sutherland Boal, Chief Executive Officer, Canadian Nurses Association]

Good afternoon. My name is Anne Sutherland Boal, and I'm chief executive officer of the Canadian Nurses Association.

The CMA is a national professional association representing 135,000 registered nurses and nurse practitioners across the country in every province and territory. Today I'm joined by Josette Roussel, a senior nursing adviser in our organization.

At our core, our national association is an advocate for nurses, for Canadians, and for better health for all. Thank you for including CNA in the sixth meeting of the Special Joint Committee on Physician-Assisted Dying. It is our hope that the joint committee will consider the insight and specialized knowledge and expertise that nurses have to offer on the topic of physician-assisted death. We will also make remarks on the more general topic of end-of-life care.

Registered nurses and nurse practitioners are Canada's largest group of health providers. By the sheer size of the profession, which includes over 350,000 nurses, and the countless settings in which we work, we have the most consistent and direct interaction with Canadian patients and families seeking health care. Nurses are caring for people 24 hours a day, seven days a week, building trustworthy relationships with their patients, families, and caregivers. RNs and NPs are where Canadians are: at home, in the community, and in the hospital. In my following comments, when I use the term “nurses”, I am referring to RNs and nurse practitioners.

Canadian nurses have been closely monitoring the issue of physician-assisted death. In October 2015 we provided our views before the External Panel on Options for a Legislative Response to Carter v. Canada. We were also discussing and exploring implications for nursing practice long before the February 2015 Supreme Court of Canada decision and the Quebec Court of Appeal decision in December 2015. It is a topic of everyday discussion for Canadian nurses. Just yesterday, during a CNA webinar on end-of-life care, over 350 nurses focused on the ethical issues and nursing care related to physician-assisted death.

Canadians know that there is nothing easy, and Canadian nurses know that there is nothing easy, about watching someone you love experience pain and distress. We face these situations by advocating for patients and supporting one another as health care providers in honouring their wishes. Nurses have long supported patients and families during end-of-life care and planning and discussions. We are vocal advocates for improved access in palliative care across Canada. We believe that in addition to the work of your committee, efforts by policy-makers and providers must also continue the area of palliative care services and resources for all Canadians.

Nurses' practice in Canada is grounded in our code of ethics for registered nurses. My colleague Josette Roussel will now speak on the code and how relevant this issue is for nurses in Canada.

With that, I would like to introduce Josette.

[Josette Roussel, Senior Nurse Advisor, Canadian Nurses Association]

Thank you, Anne.

I am a nurse, and I spent many years of my career taking care of end-of-life patients.

I will continue my presentation in English.

The Code of Ethics for Registered Nurses is a foundational document for nurses in Canada. To help me explain why it's important and how it helps nurses, I ask you to consider a scenario. An 85-year-old man is in the hospital after suffering a massive brain hemorrhage. He tells his daughter he's scared. He lies awake in his hospital bed throughout the night contemplating what will happen next. Is he going to die? When will he die? Will there be a lot of pain? These are big questions for anyone to face. As he lies there at 3 a.m. in the hospital bed, surrounded by strangers, one of the only people to turn to may well be the nurse.

Our code of ethics for registered nurses and the resources that CNA provides are to prepare nurses for those 3 a.m. discussions. The code is there to help nurses practise in a competent, compassionate, responsible, and ethical manner. It provides guidance on the person's right to refuse or withdraw consent. It also emphasizes the importance of recognizing power differentials between the care providers and the person in care, and what to do when care conflicts with conscience. The code provides practical steps on how a conscientious objection comes about: before employment, anticipating and planning for a conflict, and when one is involved in nursing care that is creating a conflict.

While nurses have their code to guide their nursing practice, they also need legislation, regulation, policies, and procedures. These structures will in turn help us as providers to ensure that Canadians have access to the care they deserve.

[Anne Sutherland Boal]

Thank you, Josette.

As nurses, we know that physician-assisted death is intricate and complex and we acknowledge the potential conflict between professional values, personal values, and health practice. However, with the Supreme Court's decision made, the CNA's priority is to help nurses deliver the best ethical and competent care to all patients.

I wish to speak to the requirements that are the most important to the Canadian Nurses Association.

First are safeguards to support individual decision-making by patients. Safeguards are needed to ensure that physician-assisted death is dealt with carefully, competently, and ethically. We recommend mechanisms for an individual patient to have conversations with families, caregivers, and the interprofessional team; policies and procedures to ensure competency assessment throughout the journey; processes for patients to reconsider their decision; processes to ensure that vulnerable patients are protected; mechanisms for nurses to contribute to the decision-making and assessment of the supports required by patients; and guidelines for the documentation by the interprofessional team of the discussions held and the plans made.

Second is equitable and timely access to information about end-of-life options, including palliative care and physician-assisted death. Canadians need to have equal access to physician-assisted death regardless of their postal code and their physical setting, whether home or hospital. Culture and gender as well as the acknowledgement of inequalities and disparities are also considerations.

Canadians and health care providers need to have access to resources and information to inform them on all end-of-life options. As plans for processes for physician-assisted death are being developed, we support a parallel pan-Canadian approach to palliative care. We recommend information, resources, and navigation for nurses to use in every setting to respond to questions posed by individuals, families, and caregivers, as well as education for health care professionals to support individual patient palliative and end-of-life care options.

Third, we request support for patient choice through a person-centred approach. The desire for a dignified death with relief from suffering should be considered at the core of a patient's request. Dignity is a key element of any plan. Patient-centred care honours people's values and health care wishes by promoting autonomy, choice, and control as well as shared decision-making. We recommend policies and procedures that outline how the team will communicate with individuals, families, and caregivers. We also recommend that there be guidance to ensure open discussion and sensitive listening that recognize cultural sensitivity and appreciate personal autonomy and spirituality.

Fourth are quality and safety mechanisms. It is essential to establish a rigorous process for assessing patients and forming a decision. The process must be well defined, documented, and understood in a consistent manner across Canada. We recommend systematic mechanisms, including standardized data collection systems and standardized policies and procedures to ensure accurate national data collection. We also recommend public reporting and a harmonized framework led by regulatory bodies that standardizes education and evaluation related to the competencies required of health care professionals.

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

You have one minute left.

[Anne Sutherland Boal]

Fifth is equitable access to psychological supports for health care providers. The current health care context brings pressures and stresses for health care providers. We recommend educational support on physician-assisted death as part of provider curricula. We also recommend competency development within continuing professional education, as well as access to psychological support.

Finally, there's the protection of nurses and other health care providers under the Criminal Code. Nurses are intimately involved in end-of-life processes. The nurse may well be the first person with whom a patient chooses to discuss end-of-life care and options. We recommend amendments to the Criminal Code. This position has been well described by the Canadian Nurses Protective Society in the brief they submitted to the external panel. We also recommend guidance on conscientious objection.

Thank you very much for the opportunity to present to you today.

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

Thank you.

Our third presentation is from Dr. Monica Branigan.

[Dr. Monica Branigan, Canadian Society of Palliative Care Physicians]

Good evening, everybody. It gives me great pleasure to come here. My intention is to be helpful and to really let you know the experience of a palliative care physician.

I am a palliative care physician. I see patients in their homes in Toronto, and I am here trying to represent the views of the Canadian Society of Palliative Care Physicians. I'm going to respect the fact that you've had a lot of information thrown at you and just focus on four priorities.

The number one priority is that, at the same time as we legislate hastened death, we need to increase palliative care. There are three reasons for that. Number one is that less than 3% of Canadians are likely to avail themselves of services to hasten their death, yet 100% of Canadians can benefit from palliative care. Number two is that we know that palliative care is underserviced, and we know that 65% of patients currently die in hospital, which is not what Canadians want. Number three is that this is more than a political issue; it's a personal issue. All of us sitting around this table have had loved ones die. Some of them have died not so badly, and some of them have died badly. If we really want to respect choice, there has to be an option and there has to be good palliative care.

One of the ways in which we think this need for palliative care could be met is through a national secretariat for palliative care. There are lots of organizations that have laid the groundwork for a national strategy in palliative care, such as the Canadian Cancer Society and the Canadian Medical Association. People have thought of lots of ways to navigate this area.

The whole reason for having this done nationally is that Canadians support fairness, and right now, there's a patchwork. What you get really depends on where you live.

This initiative needs to be carried out at a national or federal level in order to set standards, monitor standards, and collect data—which we don't have—and to advise on such things as how to shift care from acute-care hospitals, which currently have 95% of the budget, to the community, which currently has 5%. We need some guidance, and we need to think about it nationally. How do we provide public education to try to dispel some of the fear around death and dying?

The second priority is reducing the risk of premature death. As palliative care physicians, we've all seen patients ask for assistance in hastening death, and then change their mind and say something like, “I'm so glad I couldn't do this.” This is not to imply that everybody will do that, but we need to have safeguards in place, and one of them is a waiting time that is proportionate to the amount of time that this person may lose in their living.

For example, when a woman who's dying of breast cancer, with potentially four weeks of life left, makes this request, we should be able to respond much more quickly than in the case of a 21-year-old gentleman who's just had a spinal cord injury and cannot imagine his life in a wheelchair. We know that people can accommodate a new normal, and a rigid waiting time will not do that.

We also need to make sure that the people who are exploring this request are skilled. If this young man spoke to a physician who didn't know about options, this physician might conclude that the situation was hopeless and that of course he would need hastened death. We know, as palliative care physicians, that most requests are expressions of despair, some of which we can help with. With great humility, I know that we cannot help everybody.

We also need to make sure we have access to addiction counsellors, psychiatrists, and spiritual care professionals to make sure that this patient has truly been supported. In the brief, I have made some comments on graduated implementation, and I'd be happy to answer questions about that.

The third priority is having a national oversight organization so that we have a pan-Canadian way of ensuring that everybody has access to this service. This could be bigger than that, because right now we do not have a problem, as Dr. Blackmer pointed out, with finding willing providers, but we have a big problem with connecting patients to these providers, and it should not be on the shoulders of Canadian doctors to self-organize.

This national oversight could not only be collecting data, looking at trends, and setting Canadian standards; it could also be a repository of willing providers, information, and referral services. Not every health care provider who is asked for assistance is going to have the resources to give this good information.

In addition to supporting institutions and regions that don't have a lot of resources, this separate oversight would really make the distinction that physician-hastened death is not synonymous with palliative care. We're concerned about this point because we've had to work very hard to make palliative care a safe option for people. If, in their minds, assisting in dying—which is what I do every day as a palliative care physician—is the same as hastened death, then we are going to prevent access to palliative care for some patients.

Finally, as a priority, we need to create a sustainable system. We need to offer protections in the Criminal Code for all of our health care practitioners—everybody, not just physicians. We also need to consider legislating for protection of conscience, because you cannot build a sustainable system on moral distress. I think Dr. Blackmer talked to you about this point. We need to make sure that institutions that opt out do so in a way that doesn't overly burden other institutions. As Anne pointed out, those providers who actually provide this service need to be supported with psychological support and spiritual support to make sure they're not overburdened.

Part of the sustainable system, I would put to you again, is making sure that this is seen as distinct from palliative care. I hope I've offered some ways that might happen.

Thank you.

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

Thank you very much, all of you.

We will begin our questioning with Mr. Aldag.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Thank you.

To start, Dr. Forbes and Dr. Blackmer, I'm interested in a figure that I saw with regard to the willingness of the physicians you surveyed to participate in assisted dying. I was trying to find it in the reports and I didn't.

One of the documents I read indicates that the Carter case provides the floor, not the ceiling, for physician-assisted dying. In terms of the doctors you surveyed, I'm curious to know where you're starting from. Was it taking the Carter case and looking at it as a grievous and...?

[A voice]

Irremediable.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Yes. It was a grievous and irremediable condition. I couldn't read my writing there.

If we start looking into extending the ceiling on things—if we start exploring age, incompetency, and other factors—at what point does the support from the body represented by the CMA start to shift? There really is that continuum from restrictive to permissive, and I am trying to get a sense of where your members are at and where policy may be able to go while still maintaining support.

Do you have any comments on that?

[Dr. Jeff Blackmer]

You know, they say if you can't read your own writing, you may actually be a physician.

[Voices]

Oh, oh!

[Dr. Jeff Blackmer]

Thank you very much for that question. We did actually explore that a little bit with our membership. We did not do it in a very granular way, but when we asked them what their level of support would be overall, we came up with a number of around 30%.

Once we start to add in some additional factors—for example, if the pain and suffering is purely psychological versus physical as well—the support drops. Once we add in a non-terminal versus a terminal illness, the support drops again. You can see that physicians' level of discomfort will increase as we add in more of these variables. We didn't use things like age or the possibility of using advance directives as variables specifically, but in the conversations we've had with our colleagues, there's a lot of discomfort around those areas as well.

Our starting point for a lot of the discussions was the Carter decision as we interpreted it, which is not what some people are calling “Carter plus” but more the floor than the ceiling, I think. The more variables you add in, the more difficult health care providers find those scenarios, the lower the support becomes, and the lower the percentage of providers willing to step forward and provide assisted dying becomes.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Thank you.

I'll talk a little bit about safeguards, if we have time, but I'd like to get into the “grievous and irremediable” piece and look at the defining of these terms.

Were there discussions about it? You talked in your statement about having a pan-Canadian approach. I'm struggling with who is best to define that. Is it done by legislators in legislation? Is it done by practitioners? How do we go about dealing with the terminology, which will be very important?

[Dr. Cindy Forbes]

Thank you for that question. It's certainly a question that we've had lots of debate about as well.

In our document, we have actually come up with a definition. I could read it to you, but the essence of it is that “grievous” is serious or severe, and “irremediable” is not able to be put right or cured. We recognize that these are not medical terms. There is not a medical definition of these terms, and there's definitely a subjective component associated with them.

As we worked through this question, we realized that it is clearly a dialogue between the patient and the physician. There's also the issue of suffering. Patients are really the only ones who can account for how much suffering they have.

We recognize that this is a discussion between the physician and the patient, and hopefully, as in most cases in medicine, we'll come to a decision together through a dialogue and through understanding where the patient is coming from, with the physician giving his or her advice as well. A decision will be made jointly in that respect.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Similarly, would you see safeguards being dealt with through legislation?

We heard from one of the others—I think it was Dr. Branigan—about wait times and how they might need to vary, depending on outcomes such as life expectancy. How do we deal with those? Are they hard legislated pieces? How do we deal with safeguards?

[Dr. Jeff Blackmer]

Thank you. It's a very important question, and we do see that as a legislative response, for sure.

Very similar to what Dr. Branigan was saying, we've been advocating for safeguards and waiting periods based on the facts of an individual case. There will clearly be differences between someone who's at the end of their natural life and is suffering terribly, without hope of alleviating that suffering, and someone with a newly diagnosed injury or with a depression that may or may not resolve itself.

We didn't feel comfortable putting in a strict definition; rather, there needs to be a recognition that it may change depending on the circumstances. However, the concept itself and having that consistent federal level were very important.

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

Thank you, Dr. Blackmer.

I need to go to Mr. Cooper.