Thank you.
Ms. Pastine has stated our concern about Parliament seeking to comprehensively regulate assisted dying as a matter of the criminal law, but we nevertheless wish to set out what we see as critical elements of any system to govern physician-assisted dying, whoever is doing the legislating.
The evidence accepted and tested by the courts in our case supports the conclusion that physician-assisted dying can be governed by the established norms of informed consent law, which has shown itself to be perfectly adequate as a framework for life-and-death medical decisions.
We trust physicians to do this all the time. Whether a patient is being coerced or pressed by others into a decision, whether they're ambivalent, whether they're vulnerable, or whether they're thinking clearly can all be reliably assessed on an individual basis using the procedures doctors apply in assessing informed consent and decisional capacity in medical decision-making more generally, according to the evidence before the court. No special vulnerability assessments or system of elaborate checks are needed, because the existing system for informed consent does the work that is needed.
However, this doesn't mean that there is no useful role for Parliament or the legislatures. Carter set out a floor, as you've heard many times, but Parliament is free to go beyond that in legalizing physician-assisted dying. For example, the judgment doesn't require that an individual be competent when the assistance is provided, so long as they clearly consent. We see no reason that a person who is competent cannot make a decision now for themselves later, when they may no longer be competent or no longer able to communicate. The Criminal Code should clarify that advance consent is permissible.
Turning to process, there should be no arbitrary barriers created that distinguish this from other kinds of end-of-life treatment. We advise in the strongest possible terms against instituting a review panel or other similar kind of before-the-fact mechanism, as has been urged upon the committee. This is a complete departure from current end-of-life practices. Such a regime would create an undue and totally unnecessary burden on those seeking to access physician-assisted dying, because the courts determined that physicians are entirely capable of dealing with these patient requests under normal medical standards.
Physician-assisted dying is fundamentally a private matter between the patient and the physician. This is a matter of the patient's own autonomy and self-determination. No person, no committee, and no judge should be in a position of having to approve and essentially make the decision for the patient. We've had this issue of committees before in respect of abortion, and the Supreme Court struck down those committees because they posed a barrier to access and because they took away from women their autonomy and choice over their own bodies.
Further, it's a total departure from the normal standards of consent around end-of-life decision-making to require a second opinion from another physician or a specialist. It should simply be an option, as per normal medical standards. The requirement for a second doctor could be particularly onerous in rural and northern communities.
There does not need to be an arbitrary waiting period and a reiterated request. Physicians should be able to use their own judgment, as they do in all cases in which a patient exercises informed consent in respect of an end-of-life decision. Any arbitrary waiting period runs the risk of a patient becoming incompetent in the meantime and being unable to give a second consent, or dying painfully in just the manner that they have the constitutional right under Carter to avoid. This is unjust.
Where a doctor is uncertain that a patient has capacity, there could of course be specialized capacity assessments consistent with the practice for other treatments, but neither a specialized assessment, nor a psychiatric evaluation, nor a vulnerability assessment should be a requirement for all physician-assisted dying requests, as this would be an unduly onerous barrier to access without any justification in the evidence.
As for who can provide assisted dying, as we've heard, the trial decision in Carter referred to a physician or other health care provider acting under the direction of a physician. We support the recommendation of the provincial-territorial panel that Parliament amend the Criminal Code to allow the provision of medical aid in dying by a regulated health care professional operating under the direction of a physician or a nurse practitioner.
Finally, I'd like to say a word about conscientious objection. The BCCLA stands for freedom of conscience and has fought for it regularly in the courts. As we know, physicians are not required to provide physician-assisted death. The solution we would propose is that physicians should have to notify some third party body, whether it's the hospital or the health authority, of their refusal—not provide an effective referral, but simply notify, with the permission of a patient, that they do not want to carry out this service. In that way, there can be a transfer of care for the patient.
In closing I would echo Professor Pelletier in his remarks that Parliament, the legislature, and the colleges may act, but they must not impose a solution that will strip this constitutional right of its meaning for people who desperately seek to die in dignity and peace.
Merci beaucoup.