Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  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”.

Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  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?

Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  Sure. I think the concern people are expressing is understandable, but I think it absolutely can be dealt with by reflecting on the Carter test, and also in the context of the practice of medicine. Think about what “informed choice” requires. The individual has to have capacity, under the Carter test, which means they have to understand the nature and the consequences of the decision to be made.

Physician-Assisted Dying committee  Yes, and it's important in relation to what Professor Lemmens said. The evidence about the challenges in competency assessments was before Justice Smith and was tested in court. She concluded that we trust physicians now to make these complex decisions all the time in relation to refusals of treatment.

Physician-Assisted Dying committee  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.

Physician-Assisted Dying committee  Good evening. Thank you for inviting me to speak with you today. I'm grateful for the opportunity to be a part of this critical conversation. I should note here that I've played a variety of roles in various initiatives to advance end-of-life law reform in Canada. Today, however, I speak only on my own behalf as a legal academic who has been researching and writing about assisted death in Canada and abroad for more than 20 years.