Physician-Assisted Dying Committee on Feb. 1st, 2016

[Grace Pastine]

As you say, we see physician-assisted dying as part and parcel of compassionate end-of-life care. Our position is that it should be treated no differently from withdrawing or withholding treatment or providing palliative sedation.

If a patient—for example, an individual who is suffering from ALS—wanted assistance to die with dignity, we would expect that they would make their desire known to their doctor and that their doctor would make sure they were fully informed of all their available end-of-life options. We would expect that they would be fully informed about their prognosis and their diagnosis, etc., and were made aware of the existence of palliative care and other options available to them. This is in keeping with standard medical practice.

A doctor may have a pre-existing relationship of over a decade or more with a patient and may know the patient's views well, but if the doctor had any concerns about the patient's capacity, any concerns about the patient's ability to make an informed voluntary decision free from duress, keeping in mind that in many situations those concerns won't exist, the doctor would then, in keeping with normal medical practice, refer that individual for an individualized capacity assessment. That could mean referring the patient to another doctor or to a psychiatrist or a specialist in geriatrics. There are a variety of ways in which doctors are able to seek capacity assessments.

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

Thank you, Ms. Pastine.

Senator Cowan.

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

Thank you for being here this morning. It's very interesting.

I'd like to return to the issue of advance consent or advance directives and the concern that I think we all share about exposing vulnerable people to results that they would not want if they were to change their minds. I think particularly about people with advanced Alzheimer's. As I understand it, the suffering that we talked about doesn't have to be pain; it can be a condition.

I'd like you to take me through how you would see this working in practice, using the example of somebody with advanced Alzheimer's. We may have a situation whereby at the time they formulate this directive, they're clearly competent in every way, but they're looking ahead to the date when they might not be competent. How do we assure ourselves, as best we can, that their interests are really being protected?

[Wanda Morris]

I think that what we do will actually be life-affirming if we are able to provide a clear advance consent mechanism.

First of all, we're talking about a situation in which someone has already been diagnosed. They are living in the reality of their diagnosis of dementia and are giving free and informed consent in that way. Second, I believe we would have something like a single-purpose form that clearly states, in relation to their condition, the criteria upon which the suffering, to them, would be such that it would be more harmful to be kept alive than to be assisted to die.

[James S. Cowan]

It would be through the eyes of the patient.

[Wanda Morris]

Yes. For example, although the patient might realize that many people in early stages of dementia have much in terms of quality of life, the patient might not want to live in certain situations. They may say, “When I am bedridden; when I can no longer feed, wash, and shave myself; when I have been unable to speak for a period of 30 days or more, at that point, please give me assistance to die.” They lay out objective, verifiable criteria. Then a doctor who chooses to do so—because doctors would always have the right of conscientious objection—would provide an assisted death.

The form, the paperwork, is a single-purpose document that is done ahead of time. It is subject to the same safeguards as a contemporaneous request, but the individual is able to be assisted to die at the end.

[James S. Cowan]

Ms. Pastine, Mr. Paterson, can you comment on that issue? From a practical point of view, how would this regime work to assure the kind of protection that we all want to have?

[Josh Paterson]

I'm afraid, Senator Cowan, I don't really have a lot to add to what Ms. Morris has said. I would echo the things she's said.

The provincial–territorial report has also set out, as I'm sure you all know, some different scenarios that I think we can draw from in informing ourselves about this issue.

For us, the key is that we just don't see any really relevant distinction between someone consenting now and someone giving advance consent. We don't want people to be trapped, in a sense, in the suffering they would have to liked to avoid, and could have avoided, by an advance directive.

[James S. Cowan]

This is even if there's a loss of competence between the time the document is executed and the time the assistance is provided.

[Josh Paterson]

That's exactly the kind of scenario in which we would say you would need an advance directive: to ensure that someone who does lose competence is still able to have their wishes in this respect carried out. We think that's important.

[James S. Cowan]

Ms. Pastine.

[Grace Pastine]

I agree with what Ms. Morris and Mr. Paterson have said.

I mean, it's in those situations of a person no longer having capacity that you would need to have a provision that a patient can provide advance consent. A patient can always override a previous decision. If they have enduring capacity, obviously they can change their mind, but we believe that advance care directives are very important in terms of preventing unnecessary and unwanted suffering.

[James S. Cowan]

Do I have time?

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

You have 15 seconds.

[James S. Cowan]

I'll pass. I'll give 15 seconds to someone else.

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

Mr. Arseneault, the floor is yours.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair.

I also want to thank the witnesses for their presentations.

It is important to hear what you have to say because you will help this committee make a decision with regard to the Carter ruling, which has already indicated what the finishing line is. So we have to permit physician-assisted dying within the parameters set by the Supreme Court of Canada. The committee is tasked with deciding how to do that.

My first question is for Ms. Pastine. It is actually in the same vein as the question asked by our colleague Ms. Sansoucy. So I would like to hear your answer.

Considering the Carter decision, how do you view physician-assisted dying when it comes to the two options we often hear about—assisted suicide and voluntary euthanasia?

[Grace Pastine]

Assisted suicide and voluntary euthanasia are both covered by the Carter decision. An example of assisted suicide would be the case of a patient who is prescribed life-ending medication by a doctor and then that patient self-administers the medication. In some situations an individual will be incapable of doing that or may simply prefer to have the assistance of a doctor, and that's why in certain contexts, voluntary euthanasia would be the preference of patients, and, frankly, of doctors as well.

The term used to describe both of these types of end-of-life care is physician-assisted dying. That was the term that was explicitly defined by the B.C. Supreme Court. As well, the Supreme Court of Canada, in striking down both section 14 and section 241(b), made it clear that it's referring to both of those practices. I should add that at no point did the government in the Carter case take the position that a constitutional violation applies to one form of end-of-life care and not to another. That's why I say it is simply inconceivable that the court's decision could be taken to mean anything other than that the criminal prohibition against physician-assisted dying, as I have defined it, is unconstitutional.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you very much, Ms. Pastine.

My next question is for Mr. Cameron.

Mr. Cameron, we are familiar with the background of the Carter decision and know that the lead plaintiff travelled abroad to seek assistance to die, knowing that the legal system would not respond to her request before she died.

You said that, in your opinion, in order to maximize safeguards for the most vulnerable individuals, the justice system—in other words, a superior court—or judges would have to have the power to determine whether someone has the ability to ask for assisted suicide.

The provinces have different superior courts whose judges do not often or always hand down the same decisions on the same issue. That is why courts of appeal exist. By the same token, provincial courts of appeal do not always render similar rulings in identical contexts, and that is why we have a Supreme Court.

How can you reconcile your restrictive stance with the spirit of the Carter decision given the context of that ruling?

[Jay Cameron]

Thank you for the question, sir.

I can lean on my own experience here to say that there are doctors and there are doctors. Just as there are judges and there are judges, there are doctors and there are doctors, and when you aren't able to find medication or obtain medication from one doctor, you are often able to find it from another doctor. That's why you “doctor-shop”.

The protection of having a superior court justice is that it is someone who is removed from the situation of the physician, someone who can weigh the law and the affidavits of physicians and the competing evidence from family members and make an informed and legal determination. There is no doubt that sometimes judges get the answer wrong, but it seems to me that as far as ethical considerations go, it is far better to have the matter in the hands of a judge than in the hands of a physician.

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

You have 10 seconds left.

We are a little bit over our time, but I'm going to have Mr. Warawa ask some questions now. Knowing that the next session has only two panels, we'll make up the time then.

Mr. Warawa.

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

Thank you, Chair.

MP Aldag and I had a town hall meeting on Saturday, which was very informative. The term “physician-hastened death” was shared as a more appropriate term. “Physician-assisted dying” was seen as being very general. That was what was suggested by a number of people, so I'm going to use that term, because I would agree that it is a more accurate term.

Interestingly, as I was reading on the plane on the way here, I was sitting beside a physician with the Royal College of Physicians and Surgeons, who is here testing specialists to determine whether they have the qualifications to practise as specialist surgeons and physicians in Canada.

I went onto the website and found that they, as physicians, are having a dilemma on this issue and on how to deal with it, so I would think Mr. Cameron is quite right in saying there are physicians and physicians. There are diverse opinions on this issue.

The Supreme Court said that we are mandated to create a carefully designed system that imposes strict limits that are scrupulously monitored and enforced.

One of the suggestions we have heard around this table, Mr. Cameron, is that an advance directive later in a person's life, when he or she is no longer competent to make that decision, would be binding on them. I'm not sure how long an advance directive would be. You are suggesting that a superior court should have the final say, in a timely fashion, so that a person would have the right to end his or her life. However, the Supreme Court decision was that it should be a competent adult. If somebody has the opportunity to end their life through physician-assisted suicide or voluntary euthanasia, meaning that a physician would introduce the drug, and the person is competent enough, at the point of death, to end their life, would you see an advance directive as diverging from this requirement to have a strict regime enforced and monitored if you do not have consent at the point of death?

Thank you.

[Jay Cameron]

Thank you for the question.

I do, absolutely, and there are two components to my answer. I'll be brief.

The first problem with advance consent is that if there is an issue of duress in advance, then after the person has become incompetent, you essentially can't figure that out, so if there is a problem with duress or there is some other family issue, by the time the person becomes incompetent, you can't go back, because you can't ask them anymore. You can't take them into a room separately and ask, “Did you really want to do this back then? How do you feel about it now?”

The other part of my answer is this. My wife and I care for her father, and he has advanced dementia. I don't know what he would have said if he had known this was going to happen, but there is a difference between making a decision that eventually you want to die and what you may feel when you're actually in the moment. He seems to be enjoying life, so would he want to make that same decision if he could go forward in time and vocalize it? When you have said that you would want to die, there is no point of reference to know whether in the future, when you are in those circumstances and have dementia, you're actually going to be so sick of life that you actually will want to die. That is the problem inherent with an advance directive.

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

We're going to suspend for a brief moment while we change the panellists. We'll recommence in two minutes.

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

I call the meeting back to order.

We have two sets of witnesses: Dr. Francine Lemire, of the Collège des médecins de famille du Canada, and the Alzheimer Society of Canada, which is joining us by teleconference.

I'm going to begin with Dr. Lemire for 10 minutes, and then give 10 minutes to the Alzheimer Society.

Dr. Lemire.