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

[Prof. Jocelyn Downie]

That's why I talked about the timing of when you have to be competent. It's to suggest you could make the decision, the request, before the intolerable suffering actually arises, and in that declaration you would state what you consider to constitute intolerable suffering. Otherwise, once you're past that point, who is any of us to assess whether that person is facing intolerable suffering? It is for the person, so they dictate that in advance.

[Murray Rankin, NDP, Victoria, BC]

I would like Mr. Baker and you as well to please answer this question. On the matter of substitute decision-makers in this process, first of all, Mr. Baker, would you accept substitute decision-makers or not?

[David Baker]

No, and that is contrary to the Supreme Court decision that there be decisions made by substitute decision-makers. It is also contrary to Carter that advance directives, as described by Professor Downie—

[Murray Rankin, NDP, Victoria, BC]

Both advance directives and substitute decision-makers.

Professor Downie—

[David Baker]

The court says it is the person at the time that the lethal dose is being administered—that is, treatment being administered. There is a requirement of capacity at that point.

[Murray Rankin, NDP, Victoria, BC]

Of course, you would say that this is a ceiling, not a floor—

[Prof. Jocelyn Downie]

I would say that they didn't say that you have to be competent at the time of the provision of assistance. That is unclear in Carter, so it needs to be set by you.

I would say no to substitute decision-makers. I don't know that anybody is advocating for that. I would also say that advance directives of the sort proposed are not inconsistent with Carter. If you look at the trial definition of voluntary euthanasia, it includes “in advance”.

[Murray Rankin, NDP, Victoria, BC]

Now, you spoke, I think—

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Senator Seidman.

[Judith G. Seidman, Senator, Quebec (De la Durantaye), C]

Thank you, Chair.

Dr. Downie, in your proposed legislation you define advance directives. We heard yesterday from the Canadian Medical Association. They made it clear to us that they don't believe advance directives can be easily administered.

How would you respond to that?

[Prof. Jocelyn Downie]

Advance directives are defined in this legislation because it is in relation to withholding or withdrawing life-sustaining treatment in palliative sedation, not in relation to assisted death. It only relates to that. It fits into that standard model across the country. We have advance directives everywhere.

I would say not to use the language of advance directives in relation to assisted death, because you don't want to move into that whole provincial-territorial regime of advance directives. You want to keep this at the federal level, so you're saying someone can make a request in advance, but you're not importing the advance directives regime that we have in Canada at the time for assisted death. You make an advance declaration. You make a declaration, a request, in advance.

It's just defined in there because I actually have provisions in relation to something other than assisted death in the statute.

[Judith G. Seidman]

Okay.

In your proposed federal legislative draft, you would permit health care providers, in addition to physicians, to assist deaths under the direction of physicians or nurse practitioners. Could you help us understand that? We had quite a negative response to that as well. Given that we heard that the Supreme Court ruling refers specifically to physician-assisted death, how would this cohere with that?

[Prof. Jocelyn Downie]

The first thing is that you look to the definition in the Carter trial decision, which is that it's a physician or other health care provider acting under the direction of a physician. I think Carter actually contemplates going beyond physicians. It uses the words “physician-assisted death”, but you'll see that's why I use the language “medically assisted death”. I think that is more appropriate and it's consistent with Carter.

I am suggesting going further in relation to nurse practitioners—that is, heading towards ceiling rather than not going below the floor. That is because of what we heard in the context of the provincial-territorial consultations around the north and in the rural and remote communities. It's also in relation to the scope of practice that they already do, in the context that they do capacity assessments, competency assessments, and so on. That's why I have shifted my view and put that in as well.

[Judith G. Seidman]

Okay.

As well, Dr. Downie, yesterday we heard testimony from Dr. Monica Branigan of the Canadian Society of Palliative Care Physicians. She discussed the importance of having a national oversight organization that would be a partnership between the provinces, the territories, and the federal government. Similarly, you have a commission on end-of-life care in Canada proposed in your legislative reference. We also heard just now from the Hon. Steven Fletcher, whose bill also includes an oversight commission.

Perhaps you could help us understand how you see the oversight role of that body.

[Prof. Jocelyn Downie]

I think it can play a data-collection role. It is very important to have national information so you can see what's going on, track your system, and make modifications as you need to if there are any concerns that arise. We need national data on that.

I think it also can commission research. As we've seen in the Netherlands, every five years they do a broader review of end-of-life decision-making. It's not just assisted dying. It's critically important to do that. The commission could commission that.

Also, if we have access problems, you could have that commission be responsible for developing a network of providers to do education. Support of health care providers is going to be essential here, as is a network, so that we can actually enhance access. That way, it can also play the role of quality assurance with regard to the regulatory system itself. I would also say that if you don't have participation from the provinces, the regional review committee would be run by the oversight commission so that you would have oversight of specific cases, a retrospective case review, happening as well.

I'll make a quick comment, if I may, on the issue of the provincial and federal jurisdiction around this issue, because it's tricky. One way of avoiding court challenges to this is if the federal government puts out the commission, establishes it as an arm's-length commission, and all levels of government can use the mechanism of administrative interdelegation and give those oversight powers to that body. Then everybody agrees that the body does that, so nobody can go in and say the feds did it on their own and so it's ultra vires over here, or the other way around.

You don't have time now, and we haven't seen the inclination to do this collaboration in advance. We'd hoped for it, but it's not there. However, you could get there by putting the commission in your federal legislation and talking with the provinces and territories, suggesting to do it this way, through administrative interdelegation. It's a technique that's used for cooperative federalism.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Thank you.

Senator Joyal.

[Serge Joyal, Senator, Quebec (Kennebec), Lib.]

First of all, I would like to thank you personally for having provided us with two templates of legislation, which is very helpful. I'm unfortunately a lawyer, and our job here is to draft legislation. When you provide us with advance homework already done, I feel happy.

Mr. Baker, I have gone through your proposal quickly. I recognize it. I had problems with it at first sight, because it doesn't seem to meet what I will call the Carter framework.

The first is your interpretation or definition, if you want, of terms. If you say, for instance, that “ 'adult' means a person of the age of majority in the province or territory in which he or she resides”, we are dealing here with a charter right, section 7. As a lawyer, I know that a right is a right is a right wherever you are in Canada. When an age is determined, you have that right for that age wherever you are in Canada, so—

[David Baker]

I'm not disputing that, but let me just say that definition comes from Carter itself.

[Serge Joyal]

Let me finish, sir.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Mr. Baker, would you not interfere, please?

[David Baker]

Sure. Of course.

[Serge Joyal]

Let me finish, sir. I have my five minutes.

Then you define “assisted suicide”, but there's no reference to euthanasia, which is covered by Carter, so there is an omission in your definition.

Then you define the term “grievous”, which is a term that we're wrestling with in this committee. You limit that term to “at the end of life”. Carter has never said that grievous has to be at the end of life. You limit the concept of grievous to the end of life, while Carter does not include that very specific criterion in its decision.

Later on, on informed consent, you include the test of the reasonable patient and what a reasonable patient would decide in the same circumstances. Carter never imposed that test in its decision.

Then you go on with the test of quality of life, in which the element of personal suffering is not mentioned. It is a key element in Carter. I quote:

...causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition...

It is the person who decides, not the average man placed in the same condition, because the element of subjectivity is important in that decision.

Finally, you judicialize the decision by establishing a review board. Judicializing that decision means that you open any decision to litigation in court.

In my opinion before this committee, venturing in that direction is a very important decision, because it totally changes the relationship with the doctors. How many doctors is immaterial, you know, but you are now in a review board, in a litigation process, and that review board is subject to the surveillance and control of the Supreme Court in Ontario and the Superior Court in Quebec.

Therefore, I have some problems with your template. There are good elements in it, but at first sight, in my reading of it, my first objective is to at least satisfy Carter. Then the Parliament of Canada can decide if it wants to increase the rights, because the Charter of Rights represents a limit. Parliament can increase those rights, and we have increased the rights in Parliament on many occasions.

Second, Parliament has the right to decide if a criminal offence is no longer a criminal offence. When Parliament decriminalized homosexuality in 1968, it decided that it was no longer an offence. There are elements in the issue of physician-assisted death that could be decriminalized by Parliament if the will of Parliament is to do so.

That's why I don't think we should approach this issue with the elements of judicialization that would put it below Carter and, in fact, make the decision much more complex for the average Canadian caught up in suffering that is intolerable to an individual who wants to put an end to it because it is grievous or irremediable.

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

Senator, you have exceeded the time. I am going to ask if Mr. Baker would be kind enough to respond in writing. The clerks would be prepared to forward the actual questions.

[David Baker]

I would do that. May I have just a moment—

[The Joint Chair, Hon. Kelvin Kenneth Ogilvie]

No, I'm sorry.

He's exceeded his time, so we will move to Mr. Aldag.