Physician-Assisted Dying Committee on Jan. 28th, 2016

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

You have one minute.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I think my friend Mr. Aldag wants to ask one more question on that point.

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

I don't know if we can do it in one minute, but we'll try. If not, we'll perhaps come back to it.

I want to explore “irremediable”, particularly as it relates to mental illness. We heard last night that mental illness is irremediable. I think it is something we're going to have to struggle with.

In your paper, you talk about the floor-to-ceiling terminology. I'd like to hear, from your perspective, whether mental illness falls below the floor. Is it at the floor level? Is it somewhere in that ceiling level? Are there considerations concerning mental illness that—

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

I think she has enough there.

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

Okay.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

You're on the list for later.

[Prof. Jocelyn Downie]

First, as to whether mental health has exclusion criteria below the floor, I think it would go below the floor that is required by Carter. It was in front of Carter, and these questions and concerns about mental illness were absolutely in front of the trial judge. All the evidence from Belgium was also there. The court did not make mental illness an exclusion criterion. I would say it is absolutely below the floor of Carter, so I think it's outside your....

Actually, you can't go there. If you go there, to use the expression that constitutional lawyers like, you'll “Bedford” Carter, which means you will go below what Carter told you that you could do, and it will be unconstitutional.

In terms of “irremediable”, I watched last night when that was being talked about. I have to say that there's a clause missing in the conversation about this point. The court didn't end with “irremediable”; it said irremediable means it cannot be remediated or alleviated by any means acceptable to the patient. Therefore, while you may say that a certain condition is treatable, it can be irremediable if the treatment is unacceptable to the patient. That's precisely what you see in the context of mental health, as well as many other conditions, but absolutely in the context of mental health.

I think that would resolve the confusion that came up yesterday in the psychiatric association conversation.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you very much.

Monsieur Deltell, please go ahead. You're sharing your time with Mr. Cooper.

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

Thank you so much, Chairman.

Gentlemen, madame, be welcome in your Parliament.

We are here to help the government define its legislation.

We need to know exactly where to go in terms of comparing the Criminal Code with the provincial powers. The health care system belongs to the provinces and the Criminal Code belongs to the federal government.

My question is very precise, and I would like a quick answer in order to let my colleague Mr. Cooper ask you a better question than mine. I'd like to know what the limit is. Should the federal government indicate clearly where the provinces could go or let the provinces decide by themselves?

Madame Downie.

[Prof. Jocelyn Downie]

I don't think the federal government should let the provinces go at it now, because they have not given you sufficient indication that they will actually do it in a harmonized fashion, or at all. This means, I think, that the basics have to be put in place by the federal government. I think you can do it under your constitutional powers because you have the prohibition under the Criminal Code. Then you can have regulations under that.

Absolutely you need to regulate this area. You can't regulate everything, but you need to regulate what's in the draft bill that I submitted to you.

[David Baker]

We agree with that. It is a rejection of what is in the provincial-territorial report, which is a welcome change, and it is consistent with Professor Hogg's advice to you in terms of the constitutional division of powers. Also, the draft bill you have from us incorporates all of the language of Bill 52, and it is intended so as to not require amendment of Bill 52.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Mr. Cooper.

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

Thanks, Mr. Chair.

Mr. Baker, it is your recommendation, as well as Mr. Sharpe's recommendation, that the oversight authorization body be the review boards that have already been established under section 672.38 of the Criminal Code and that are operational in all 10 provinces.

Could you perhaps elaborate on what the features are of these review boards that in your opinion make them most suitable to make decisions with respect to this question?

[David Baker]

First of all, unlike any other review board structure, this is the only one that exists in every province and every territory. It is required under the Criminal Code provisions.

Second, we are talking about respecting the fact that these decisions are significantly different from the review board under the Criminal Code. The province names the board, and would appropriately rename the board to include the additional mandate. The composition is chaired by a superior court judge. As indicated by CCD, we feel that is essential. Why? It is so that there are written reasons that provide precedent, which means that cases do not need to go to hearings and review boards. The guidance is available to enable physicians to appropriately bring forward those situations that are mandated under the Carter case for a decision.

Consistency exists now. The provinces appoint all of the members. The province names the board. The board is available and goes to the person who requires the hearing where an oral hearing is required. Plus, of course, it has passed the constitutional muster of having been in the Criminal Code for many years now without any challenge, and it addresses significant issues such as treatment.

Professor Lemmens.

[Prof. Trudo Lemmens]

If I may add to that, it's actually something that appealed to me in this proposal as well, because I've looked at the Belgian situation, and one of the problems that we have in certain areas of practice of physician-assisted dying in Belgium is that there is a small concentration involving a couple of practitioners who are very committed to providing access to physician-assisted dying. For example, in the report that I cited on euthanasia cases in Belgium, there's a published study in the British medical journal BMJ Open, the first author of which was herself involved as a consultant in probably the majority of physician-assisted dying cases involving psychiatric patients over the period of the study. In other words, in a system that really relies on physicians, you can have three or four physicians who really take the liberty of providing access in a way that most Canadians would agree would not be appropriate.

In this particular system you have consistency, you have judicial oversight, and you actually have restrictions about how individual physicians may respond. There are very many good physicians out there, but if you talk to any physician, you'll hear that there are sloppy people out there who may not take appropriate care and who may actually be careless in the way they provide access and even be so ideologically committed that they think this is the best thing to do for everybody who is suffering from very severe mental illness.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, sir.

Thank you, witnesses, for the excellent presentations.

I have only a couple of minutes, so I'm going to go quickly and ask Professor Downie something first.

The material that was provided by Mr. Baker and Mr. Lemmens talks about two doctors, one a responsible physician and one a consulting physician who must be a specialist, if I'm understanding correctly. I'd like your reaction to that proposal. Is it a good idea, bad idea, or necessary idea?

[Prof. Jocelyn Downie]

I think it is going too far, because not in all circumstances would you require a specialist, particularly if the specialist is required to be a psychiatrist. There may be times when you need a specialist. That is when a physician, whether the first or the second physician, is not confident they can assess whether the criteria have been met or not, and so they would then get a second opinion, which is what they do all the time, so I would revert to standard medical practice on that.

[Murray Rankin, NDP, Victoria, BC]

I'd like to ask both Mr. Baker and Ms. Downie this question.

A person who was recently diagnosed—we heard about this from Mr. Fletcher—is very vulnerable and very often suicidal in the first two, three, or even four or five years, and the claim is that such a person should not be allowed in those circumstances, for that period of time, to acquire this service.

I'd like each of you to comment on that.

[David Baker]

I would point out first of all at tab 4 of our material the chapter from Tom Shakespeare, which was put into evidence by the applicants in the Carter case. This was the evidence they advanced with regard to safeguards, where Mr. Shakespeare says that for people in this transitional period, which I believe was being referred to earlier, it is not an appropriate time. It is a period of vulnerability. This is referred to by the court. It is the intention of the court that the issue of vulnerability be addressed.

It is not addressed in Belgium. It is not addressed under the model proposed by Professor Downie, and, with the greatest of respect, it is addressed in the draft bill that we have presented.

[Murray Rankin, NDP, Victoria, BC]

Ms. Downie.

[Prof. Jocelyn Downie]

I would say that it is actually addressed in our standard approach to getting consent and that somebody who has had that traumatic injury and is suicidal would actually not qualify under the Carter test because they would be found not to meet the criteria.

[Murray Rankin, NDP, Victoria, BC]

As a matter of drafting, should we indicate a time frame, or just leave it to the physicians?

[Prof. Jocelyn Downie]

Absolutely leave it to the physicians, because if you indicate a time frame, you do two things. One, you are treating it differently from a refusal of treatment and you have no justification for that. As well, the Carter decision at trial rejected treating things differently in that way.

[Murray Rankin, NDP, Victoria, BC]

You mentioned, Professor Downie, progressive dementia. I'm wondering how that would apply in these circumstances, because Carter requires that there be an injury that causes suffering that is intolerable to the individual. What if the person has dementia and isn't suffering as one would usually use that term?