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

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

Thank you. I want to continue a bit of the discussion with Professor Downie, and then we'll move on to something else.

We were talking about mental illness as an example. Again, I'm looking at this continuum of floor to ceiling and where we're going along this continuum. I didn't ask specifically, and I don't think you answered, but if we excluded mental illness, would that set us up for a charter challenge or something else?

To expand on that, are there other things? How prescriptive versus limited do we want to be? If we start defining such things as adult or minor and there are other conditions that we include or don't include, does that start us down the path to charter challenges that we may or may not want to go down?

Do you have any comments on that kind of thinking as we move along this continuum?

[Prof. Jocelyn Downie]

First off, if you're asking whether you could get away with having mental health as an exclusion criterion, I think the answer is no. I think you are absolutely setting yourself up for a charter challenge, and I think you're setting yourself up for a successful charter challenge, because I think you're going to fail on sections 15 and 7.

With respect to how prescriptive to be, there are certain things you should be prescriptive about. I mentioned terms that I think you really need to define so that the provinces don't cut below where you want this to be, or cut below Carter, which they may well do, or leave gaps so that people don't know. One of the things we heard at the provincial-territorial board from a lot of doctors was that they wanted certainty. They said, “Don't have the Carter test of grievous and not tell us anything.” We asked them, “What about very serious and severe?” They said, “Yes, thank you, that's fine”, because then, for instance, you don't get into a list of conditions.

You want to prevent an erosion of what has been achieved through Carter and the respect of the charter rights that are embedded in Carter. You want to avoid that by being very clear about certain things, but don't get into clinical practice guidelines. You're not into that level of the weeds. That is for the regulators, actually, and I understand that you'll hear from some of them later.

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

Thank you.

There's something else I wanted to move into. I'll invite comment both from you, Professor Downie, and from Mr. Baker. It's about the idea in the proposal from Mr. Baker about the review panel. It's one of many elements in the proposed piece we saw.

As I looked at it, I read that there is a composition recommendation suggested, from medical and non-medical up to health care administrators and others. If we start having a judicial review panel, does that start us down the path to inaccessibility, where timeliness may become a factor?

I also wondered about general qualifications. We've heard that physicians already make these complex decisions. I'm wondering whether value is added by bringing in non-medical personnel, a body of 10 people, to try to deal with things that could be the last six months of life or other situations. What's the added value of having that kind of body, as opposed to having other models we've heard of with two physicians, a brief or to-be-determined waiting period, and then a decision made and rendered?

Could I have your comments on the review panel?

[David Baker]

Review boards are the mechanism that, on a one- or two-day basis, deal with many issues in the health care field today. That is absolutely established, and it does not result in judicial review morning, noon, and night, sir.

It is a way of flexibly responding to the need for consistency and guidance that comes from the issuance of reasons, and the reasons are what are necessary for true monitoring. The reasons are what do not exist in Belgium and would not exist under the model being proposed, because there are no reasons after the death that are provided beyond the bare bones of ticking the boxes for “grievous”, “irremediable”, and “intolerable”. That is the problem, I would put to you, that requires that a review board be there.

Plus, it puts physicians in the position where they are not being asked to be the judge when most physicians are saying they will not do it, that it's inappropriate and it's unethical. They say they want to provide and will provide information about their patients, the patients they know, whose vulnerabilities they know, whose family situations they know, and for whom potentially they are aware of abuse situations that could contribute to a decision of death. They say, “We do not want a small group of physicians travelling the country and getting paid to administer a lethal dose.” They want the person's doctor involved in providing the information that is relevant to the decision.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

I want to thank our witnesses for being here today. I will do my best to leave a little time for you to answer my questions.

I enjoyed reading your brief, Mr. Baker, and Mr. Lemmens, but I found it very troubling. You shared the story of the Belgium experience, and you touched a bit on the Netherlands as well.

I think this paper addresses many of the concerns that many Canadians have in terms of what you refer to, I think very aptly, as “mission creep”. It's one concern I have, especially as it relates to what I consider to be some of our most vulnerable Canadians, who are facing mental health challenges and severe depression.

I want to mention some of the quick statistics that you point out in your paper. You said that from 2004 to 2014, demand for physician-assisted dying went from 495 to 2,021. Specifically, even more troubling is the expanded demand for physician-assisted dying from those facing mental health challenges. As I said earlier, I have a special concern for those facing those challenges.

In your paper, on page 10, you say the following: Whether there is no hope for improvement, and thus whether a condition is untreatable or ‘irremediable’ is particularly hard to assess in the mental health context. The concept of ‘refractory’ or ‘treatment-resistant depression,’ for example, is in and of itself highly contested. People suffer indeed tremendously and often chronically from depression. Yet, studies focusing on ‘treatment-resistant depression’ indicate that many patients, in one study even 60.2%, fully recover.

You go on to say that mental health treatment often takes time, particularly because finding the right diagnosis is often hard and finding the right treatment often harder.

I want this committee to be seized with what I think is an immense responsibility—namely, to be 100% sure, especially in cases of mental health challenges, that we do not offer a permanent solution to what is a temporary problem.

You specifically mentioned in your opening remarks that you disagree with the provincial-territorial recommendations. I'm wondering if you would outline for us some of the specifics on which you disagree so that this committee will avoid the potential pitfalls that could be inherent in adopting that model.

[David Baker]

The provincial-territorial report essentially recommends to you that you adopt what is going on in Belgium and the Netherlands, and I think it is incumbent on you to know what is going on in Belgium and the Netherlands. A great deal has happened since Justice Smith received her evidence in that case. Professor Lemmens has given you very detailed information.

With respect to the permanent solution to a temporary problem, I agree with what Professor Downie has said about mental health. It is not open to you, I don't believe, to say that a mental disorder is ruled out under this legislation. However, if you remember, the whole decision in Carter was about whether it was even possible to come up with adequate safeguards to protect the vulnerable.

Have you discussed who we're talking about when we're talking about the vulnerable? I would submit to you that we have offered a definition of vulnerability that, amongst other factors, addresses the issue of temporary depression in response to coming to terms with disability. That is the appropriate way, consistent with Carter, to address issues of mental health. It is not a permanent exclusion from a right to the Carter remedy; it is a statement that while you are vulnerable, the court said you should not receive physician-assisted dying.

That is what the safeguards that you are responsible to enact are to address. The issue of vulnerability has to be discussed. It is not discussed in the provincial-territorial report. It is not addressed whatsoever in Belgium and the Netherlands. That is why there should be a very deep concern.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Senator Cowan.

[James S. Cowan, Senator, Nova Scotia, Lib.]

Thank you.

Professor Downie, you've had an opportunity to review the provisions of the draft bill as prepared and circulated by Mr. Baker and Mr. Sharpe. Can you advise us of your views on whether it's meeting the test set forth in Carter and on its compliance with the provisions of the Charter of Rights and Freedoms?

[Prof. Jocelyn Downie]

I think it is not Carter compliant. As a couple of examples, it doesn't include euthanasia, which is clearly in Carter, and it doesn't include terminal illness, which is not precluded by Carter.

It's not charter compliant. Think about the disclosure of personal information about a patient to their family without their consent. That's a privacy violation.

It's not consistent on autonomy. You have 45 days. You have to schedule 10 people together. You have an oral hearing, which can be triggered by a third party who has nothing to do with the case. You have to bring a very sick, suffering person in front of the oral hearing. I think that's absolutely contrary to Morgentaler. A 10-person panel and 45 days is nothing like what got struck down in Morgentaler.

It's not division-of-powers compliant either, because it tells the public trustee to do certain things, and the federal government does not have the power to tell provincial-territorial public trustees what to do.

Finally, I think it's profoundly stigmatizing to put physician-assisted death in the section of the Criminal Code headed mental disorders and to conflate people who are seeking medically assisted death with people who have been accused or convicted of a crime and who have been found to be so severely mentally incapacitated that they are not criminally responsible. That's what's at the heart of this piece of legislation, and I find that deeply troubling.

[James S. Cowan]

Could you share with us your views of the Belgian experience that Professor Lemmens spoke about, and your own impressions and knowledge of that?

[Prof. Jocelyn Downie]

I think we have to be very careful about evidence. It is important to note that much of what troubled you in that report was put in front of the court in Carter. It was tested. The experts from those countries were brought in and cross-examined, and Justice Smith did not find them to be compelling. She said that those regimes work, that we can say the risks can be managed in those regimes, and those regimes don't have pre-authorization.

The second thing is that while Carter at trial was quite a while ago now, the crown introduced new evidence at the Supreme Court of Canada, which is actually quite unusual. They had fresh evidence in the form of an affidavit from Professor Montero, including much of the evidence that's in that memo. The court said it wasn't persuaded that anything was changed by that and that you must be very careful about anecdotal evidence. That is because anecdotal evidence is presented as what the people in the street are saying, which is really important. However, I probably don't have to tell this group in particular that what the people in the street are saying is not necessarily reliable.

What you have to rely on, I think, in relation to the Belgian data, is the evidence that was tested in court and the empirical evidence from the actual researchers. In Carter and at the Supreme Court level, it was presented and it was updated.

[Unknown]

If I could—

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Do not interrupt. The senator has the question, the professor is answering, and the senator will determine who responds.

[James S. Cowan]

Thank you, Chair.

There have been some suggestions that we should be very careful how far we go, that we should just stick very carefully to the federal thing and leave everything else to the provinces. What's your view of that, having participated in the provincial-territorial panel? Is there a sense of that being the way to go, or is there a sense that the provinces and territories are looking for overall framework leadership from the federal Parliament?

[Prof. Jocelyn Downie]

The provinces and territories have said they want a harmonized approach. They, I think, went ahead with that panel because of what's going on federally. They knew there was going to be a gap in February, so they responsibly said, “We need to deal with this.” That panel said, “We have to take a broad view, because we don't know if there will be anything federal, and we can't have a gap.”

That's why it's broad. It directs certain things at the federal government in cases where it is clear that those couldn't even be under provincial and territorial jurisdiction, but make no mistake that there isn't a sense that some of the things that are directed at the provincial-territorial governments in that report could not be done by the federal government. They're targeted at the provincial-territorial governments because it was a provincial-territorial panel, but there are a number of issues over which there's overlapping jurisdiction. The report directs those to the provincial-territorial government, but those issues could just as well come over to the federal government.

For now, I would say, take all of them. Take what is clearly and only federal, and take that which is joint, because you need to do that in order to prevent inconsistencies and gaps and because you have a mechanism to avoid appearing to ride roughshod over, in particular, Quebec and the others because you can have a substantial equivalency clause.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you. That completes our testimony this evening. We thank the witnesses for being here and we thank the panel for the questions.

We will temporarily suspend for a very brief time, and then we are going into an in camera session. Those who need to leave need to do so quickly.

Thank you very much. We are temporarily suspended.

[Proceedings continue in camera]