My name is Derryck Smith. I'm a practising psychiatrist in Vancouver. I was head of psychiatry at BC Children's Hospital for 30 years, but currently I work mostly with adults. I'm a board member of Dying With Dignity Canada and the chair of the physician advisory committee. I'm also a board member of the World Federation of Right to Die Societies, which is meeting in Amsterdam this year in May. Your committee may wish to attend.
I became committed to this issue not because of anything to do with my patients but from watching my father and mother-in-law die horrible deaths, mostly from dementia.
In terms of the issues you wanted me to address, on the issue of eligibility I have no argument with the words and language used by the Supreme Court. Incidentally, I was an expert witness on the Carter case as well. The one concern I have with the Supreme Court language is limiting this measure to “competent adults”. I would much prefer that it be limited to “competent individuals”, because many teenagers are quite competent to make medical decisions. That of course leaves us with the conundrum of what to do about children suffering from terminal illnesses, in pain. Typically we let children's parents make decisions on all other medical matters. I know it's hard to lobby for extending physician-assisted dying to children, but I think we need to wrap our minds around how to deal with suffering children at some point as well.
The last question, which is of particular interest to me given my history with my two relatives, is what to do with individuals who at one time were competent and now are not because they are either in a coma or demented. I know there is legislation in British Columbia to link advance directives to medical intervention at the end of life. I think we need to give some thought to how we will allow people to make decisions when they're competent about what's going to happen to them when they are not competent. I don't have advice for the committee on that, but I think you need to wrap your heads around what to do with that, if anything.
In terms of the next issue, the processes and procedures, I don't have much argument with the general ideas that are out there currently involving requests to two different physicians, with a reasonable time period. For someone who is close to death, “reasonable” may be a matter of days. For someone who is not that close to death, it may be a month. I think making sure that people have had time to understand the decision they're making, reflect on it, discuss it with their friends and relatives, and then reaffirm their decision is an important safeguard.
In terms of the oversight, I would suggest that for the best oversight there is a good model in Oregon. They have an annual report about all things concerning physician-assisted dying. This would give us a tracking mechanism over time. I'm hoping that this would be done federally rather than provincially.
The last one has to do with privacy considerations. I think what has happened in Quebec is maybe an ideal model. I've been given to understand that at least one patient, and maybe more, has had physician-assisted dying, and yet I've seen nothing in the press about it. That's good, because we do not want the privacy of individuals compromised. The privacy of patients and doctors needs to be protected, with one exception: I think I'm compelled by the argument that the certificate of death for people who die from physician-assisted dying should state both the diagnosis of the illness that they were suffering from and the fact that it was physician-assisted dying in order to make statistical reference to these easier.
In terms of the roles and regulations of health care practitioners, I think most of the discussions to date have focused on the doctors, on the two licensed physicians, making decisions on this. I wonder what we're going to do for people in remote communities. I know in B.C. there is some thought being given to using telemedicine for at least one of the opinions. Thought needs to be given to the role, if any, of the nurse practitioners and the pharmacists who have to be involved with providing the medications that will be prescribed by physicians.
To my way of thinking, the way we conduct physician-assisted dying should be built around the needs of the patient. Some patients are incapable of swallowing medication. In that situation, administering medication intravenously, such as in Quebec, seems to me to be the way to go, but I suspect that the vast majority of patients—and probably doctors—would prefer to have oral medications prescribed, which is the model that is used in Oregon.
In terms of the rights of conscience, I don't think any physician should be forced into performing a medical act that they do not believe in. In fact, doctors already have a wide range of flexibility in their practice. In theory, I could be out doing surgery, according to my license, but I'm obviously choosing not to do that. You don't even have to evoke conscience to have doctors refusing to participate in certain medical acts, including this. If doctors, because of religious or other beliefs, don't want to participate, I think we should allow them not to have to be involved, but they should have to make an effective referral, because it's the rights of the patient, the autonomy of the patient, that's of primary concern with these issues.
I have a grave concern, however, about discussions allowing institutions, health authorities, or hospitals to opt out based on a so-called objection of conscience. If we allow health authorities to opt out, for example, it may be that the entire north of British Columbia would be without these services, or the entire province of Alberta, or Prince Edward Island. There is a history with this, in that abortion services are still not available on Prince Edward Island; women have to go off-island.
I think this is a national program. It should be available nationally. I do not believe that institutions that receive public funding, such as hospitals or palliative care facilities, should be able to opt out. If they are private, that is one thing, but public funding should allow the institution to provide this service.
I know that battles are already forming up in B.C. between Catholic-based institutions and the medical staff. I'm told by a medical colleague that at St. Joseph's hospital in Comox, the medical staff have voted in favour of providing physician-assisted dying, but I suspect that the institution, the hospital, may not be in favour of it.
That's an issue I would like to see addressed to make sure that this is widely available to all members of the Canadian public.
In terms of the roles and regulations for health care practitioners, I think it's fairly straightforward. The role for doctors is evident in the discussions that have been forwarded to your committee from the various medical associations and licensing bodies. I don't have anything much more to say about that.
In terms of discipline and penalties, the easiest way would be to leave that to the licensing bodies and each of the provincial jurisdictions, because that's what they do now. I can't see a federal body looking after the disciplining of physicians when there's already a mechanism in place in the provinces to do that. I would leave discipline and penalties to the licensing authorities.
I believe I'm going to finish my comments there. I again thank you for inviting me to testify in front of your committee. I look forward to hearing my fellow witnesses and dealing with any questions as they arise.
I was there until recently. I'm full time at McGill now.
Thank you. The committee asked us to provide very concrete recommendations, specifically on the areas, as Derryck Smith mentioned, of eligibility criteria, processes, and rules and regulations for health care professionals, so that's how I've structured what I have to say.
As a bit of a preamble and so you understand where I'm coming from, the analysis and recommendations that I'm going to present in this statement take into account the current legal context, including that in Canada, of course, and in particular the Supreme Court Carter decision; the context of health care delivery in Canada; the experience of Quebec in addressing physician-assisted dying, which I have followed closely and, to various degrees, have been involved with; the important and competing values and voices of Canadians, which I've heard and read through academic, public, and other media reports, such as that of the External Panel on Options for a Legislative Response to Carter v. Canada and similar types of reports that have come before this group and in Quebec; and the philosophy, bioethics, and medical literatures and debates on these topics.
Regarding my experience as a health care professional, I was a respiratory therapist for about 10 years. After I studied philosophy and focused my career as an academic on bioethics, I was a hospital ethics consultant for about 10 years. Both of these areas required me to be involved in many different ways regarding end-of-life care, and they informed my views.
For the purposes of this statement, I'm going to understand physician-assisted dying as encompassing both physician-assisted suicide and voluntary euthanasia. I'm referring to assistance in dying whereby the physician or a designated, regulated health professional administers the means of death under certain circumstances and with the voluntary consent of the patient. That would be voluntary euthanasia. In physician-assisted suicide, a physician or delegated, regulated health professional prescribes the means of death under certain circumstances and with the voluntary consent of the patient, and the patient self-administers the means of death.
From a bioethics perspective and often in the literature, we don't see a great distinction as far as the values are concerned, but as you know, some jurisdictions allow one or the other, and some allow both. Certainly, they feel different for the people involved.
To the extent that the recommendations and rationales of the provincial-territorial expert advisory group on physician-assisted dying in its final report of November, 2015, bear on the federal-level collaboration and legislation, I recommend that those recommendations be followed in the response of the committee. Many of the recommendations that I'll mention now actually come from that report and are informed by it.
Regarding eligibility, according to the court in the Carter decision, a person who meets the following eligibility criteria is eligible for physician-assisted dying: a competent adult who clearly consents to termination of life and who has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. That's how the Carter decision characterized eligibility.
I understand that the Carter case was a specific case responding to the specific situation of those who initiated it. It seems to me, from my experience, that we should allow a broader range of criteria, and consider Carter to be the minimum criteria, so in my opinion additional scope consistent with, but not considered in, Carter should be included in the response of the committee.
That said, the federal government, I believe, should amend the Criminal Code such that physician-assisted dying is limited only to those people who are eligible for publicly funded health care services in the province or territory where the request is made.
The federal government should amend the Criminal Code such that the eligibility for physician-assisted suicide is based on the person's capacity to make a decision, rather than on the person's age.
Current legal and professional standards and processes with respect to determining capacity to consent to care, and what consent to care is to consist of, should be followed.
The federal government should amend the Criminal Code such that the eligibility for physician-assisted dying is limited to only those persons who clearly consent to termination of life.
The federal government should amend the Criminal Code such that the eligibility for physician-assisted dying is limited to only those persons who have a “grievous and irremediable” illness, disease, or disability that cannot be alleviated by a means that is acceptable to that individual. In this case, “grievous and irremediable” should be defined as “very severe or serious”. I note that this criterion provides a more objective criterion for eligibility than the Carter decision.
Mental illness should not preclude eligibility for physician-assisted suicide. Legislative or regulatory safeguards will be warranted, though, where grievous and irremediable illness, disease, or disability is primarily of a mental nature, as opposed to a physical nature. Respectfully, I don't feel that I have expertise to go further in my recommendation there, but of course I realize that safeguards will be a concern in expanding the scope to mental illness or persons with mental illness.
Regarding processes and procedures, I believe the federal government should amend the Criminal Code to allow that at any time following the diagnosis of a grievous or irremediable condition, an eligible request for physician-assisted dying, made through a valid patient declaration form, may be fulfilled when suffering becomes intolerable. This speaks a little bit to the issue of someone who is no longer competent but does make a competent decision before losing competence.
The federal government should encourage the development and implementation of a pan-Canadian strategy for physician-assisted dying. No doubt this is a challenge, but I feel strongly that we need continuity of care and continuity of procedures and access across the country. The federal government should encourage that and also should collaborate with the other governments, health professions, and others towards that end.
Regarding roles and regulations of health professionals, I'm uncertain, to be honest, where the federal government jurisdiction over rules and regulations of health care practitioners lies. My assumption is that a lot of these matters should be addressed at either the provincial level or the health professions' own regulations bodies. However, to the extent that the federal government does have a role in setting high-level parameters regarding roles and regulations of health professionals, I offer the recommendations that follow.
The federal government should amend the Criminal Code to explicitly protect properly regulated health professionals who provide supporting services during the provision of physician-assisted dying. That's not just for the physicians, but for all those health professionals who are providing supporting services.
The federal government should amend the Criminal Code to allow the provision of physician-assisted dying by a regulated health professional, such as a registered nurse, who is acting under the direction of a physician. In selecting the regulated health professions to qualify for this role, consideration should be given to enabling access to physician-assisted dying in communities where Canadians live or receive health care services.
I will move to the issue of conscientious objection, which was a huge concern in Quebec and no doubt still is. For the last few years when Bill 52 was in the pipe, and then after it was passed by the National Assembly, both the health professionals and the institutions were very concerned about conscientious objection and what they were allowed and not allowed to do. I coordinate activities with ethics consultants at McGill-affiliated institutions, and this was for sure an abiding concern.
My view on this issue is similar to that of our colleague: an individual health professional should be allowed to make a conscientious objection to providing physician-assisted suicide; however, the duty to care for the patient and the duty to inform the patient of all end-of-life options continue.
Some institutions, notably some faith-based institutions, may also make a conscientious objection to providing end-of-life care. This is natural when the core values of the institution are in conflict with providing such services. However, like health professionals, institutions in the public sector also have social contracts. To some extent, we should require non-faith-based institutions to allow physician-assisted dying or to at least not prevent it from taking place in their institution. Those who are objecting should transfer, or offer transfer, or provide people to come in and provide those services there.
To the extent possible, I think the provision of physician-assisted dying should be required of certain health care institutions, probably the regional hospitals and the big referral hospitals, as a matter of providing access to Canadians.
Good afternoon, everyone. I have a terrible cold, and I'm hoping I can get through this without coughing fits.
I'll be speaking mostly to hospice palliative care, the care that Canadians get at the end of life, and how it intersects with physician-hastened death, but not as much about the criteria for physician-hastened death. I'm the executive director of the Canadian Hospice Palliative Care Association. We work in and represent the hospice palliative care settings across the country, with over 600 registered programs and services and over 3,000 members.
We've just completed a three-year initiative, “The Way Forward”, around expanding what we think about as the specialist palliative care that about 35% of Canadians would need to use. About 65% of Canadians actually die in primary care and don't actually need the specialist palliative care teams and programs that we offer in hospitals. We talked about the palliative approach in primary care, so I can talk a little bit about that. That's to reach those Canadians who have dementia diagnoses and die over seven or eight years, as opposed to those who maybe have cancer and die in a profound dying stage. We can talk a little bit more about that.
While the recent Supreme Court decision on the issue of physician-hastened death has captured media attention, a relatively small number of Canadians are likely to meet the criteria for those services. Based on what we see in other jurisdictions around the world, we expect it to be about 2,500 to 3,000 Canadians in any given year, so it's not a huge number. However, of the 260,000 Canadians who will die this year, only 10% will die suddenly. The other 90% could use better hospice palliative care or a palliative approach to care.
We know that everyone has the potential to benefit from the growing willingness to acknowledge that dying is a part of living and that people deserve and should receive the integrated palliative approach to care at all stages of their illness trajectory and in all settings of care. It would be a shame if a Canadian chose physician-hastened death because their pain and symptoms were out of control and not managed well or because they had never been referred to hospice palliative care. I think we can all agree that we want to provide the best end-of-life care possible for all Canadians. We need to make sure that our government is focused on the delivery of quality hospice palliative care services along a full spectrum. All patients deserve access to information about options at the end of their lives, including physician-hastened death. It's something we all need to provide.
I am aware that this committee has asked us to keep our comments around eligibility, criteria, processes, and procedures. I'll say less about the physician-hastened death and more about the interface between the two. For further details, I refer the committee to the larger submission we made in the fall, which I believe you've all seen.
There is a dire need to educate Canadians around hospice palliative care options available to them at the end of their lives. I think Canadians don't want to talk about death and dying and don't necessarily understand what's available for them at the end of their lives until such time as they interface with the health care system in a moment of crisis. Comprehensive hospice palliative care can help alleviate many of the factors that may cause people to consider physician-hastened death, particularly the burden on their loved ones, depression, and inadequate pain and symptom management.
There's still a lack of understanding and conversation taking place between physicians and patients around options at the end of life. Doctors are often not well trained to engage in end-of-life conversations, resulting in unclear goals of care, the burden of stress and anxiety being placed upon caregivers, and an overall lack in fulfilling the wishes of how patients would like to live in their final days.
The Canadian Hospice Palliative Care Association believes we need national leadership and coordination of a fully funded national strategy to ensure universal access to hospice palliative care. That includes an awareness campaign around hospice palliative care generally, including advance care planning. We now have resources and tools for advance care planning, but we're not using them to the maximum. They're just coming out now.
Over the last few years, our initiative, “The Way Forward”, developed practical and implementable tools and resources to help policy-makers, health planners, and service providers across the country. Some of the provinces are taking on this new national framework now, but we're in early days. This initiative is now over, but the information needs to be pushed out further across all of the provinces and territories.
The federal government is responsible for health care provisions for certain groups of people, including veterans, military personnel, prisoners, and our indigenous peoples. All of these groups should be afforded the same coverage in hospice palliative care, but that is currently not the case. Access to hospice palliative care is not an essential service for our first nations people on reserve. Home care is an essential service, but palliative care isn't. This must be rectified. This is a clear opportunity for the federal government to improve the treatment of first nations people.
We must engage Canadians and patient groups to be champions, to talk about death and dying. We must also disseminate information to the hospice palliative care community to educate both patients and physicians. It's time to normalize this conversation.
Palliative care and physician-hastened and physician-assisted death are philosophically and clinically separate. Conflating them could result in confusion, making people who are already frightened of palliative care even more reticent to avail themselves of this vital and effective means of addressing suffering. We'll need to be careful with that.
We must educate and support health care providers to help them overcome their own fear of loss, dying, and death. An integrated palliative approach to care should be part of all health care providers' education. We must ensure that our future physicians and allied health providers are well versed in these conversations and are ready to have them with their patients. Only when conversations about death and dying are fully transparent and when options at the end of one's life are fully understood and discussed will we be able to properly manage requests for physician-hastened death.
The Canadian Hospice Palliative Care Association believes hospice palliative care does not include physician-hastened death. Hospice palliative care does not hasten or prolong death. Hospice palliative care strives to end suffering, not life. Canadians need universal access to hospice palliative care, including good pain symptom management. All patients deserve access to information around end-of-life options, including physician-hastened death. We need to be part of that.
The separation between palliative care and physician-hastened death must not impede a smooth, compassionate, and effective transition between both, and we need to work on that. How do patients go from one area to the other, and who will be doing that?
Physician-hastened death will greatly impact the illness trajectory of elderly and sick Canadians and their caregivers. We must ensure that this new development is introduced in an appropriate way that does not impinge on the programs and services already available. Moreover, a structured and unified action plan must be presented to the Canadian public, including those working within the hospice palliative care field, explicitly establishing norms of practice and standards of care that should be followed when carrying out physician-hastened death.
The following factors should be considered. Allied health care professionals, including physicians and nurses and other allied professionals, must be protected in such a way that their decisions are respected and alternative options presented should they choose not to administer a physician-assisted death. All institutions and physicians should be given the option to opt out of providing physician-hastened death, granted they are willing to provide a referral to this service. I echo some of the comments that Carolyn made about the transfer or transition to another setting.
In the palliative care units in hospitals, there will be physician-hastened death. They may not have those people do it; maybe somebody else will come in to do it. In home-based programs, I can see it happening quite easily. The process in our residential hospices, of which there are 80 in this country, is not around hastening death. They're asking for a site exemption.
Keep in mind that most of them don't receive much government funding. They are charitably funded, for the most part, and they want to make sure that they are actually following the wishes of the community that raises the money for residential hospices. We'll see where that all goes.
Of course, in some ways they seem equivalent in principle; however, no, they're different.
Palliative sedation or continuous sedation till death—there are various terms that talk about it—is an accepted practice within the standard of care in certain circumstances.
Basically, it's the idea of sedating someone deeply—almost like you would during surgery—until death. Death doesn't happen quickly in those cases; Sharon might speak well about that too. It takes a long time to accompany someone through that, and one needs to titrate that very carefully, but yet it is an option out there. In Quebec law, they allow that for people who cannot consent on their own behalf. In a sense, they're allowing for something that's already allowed within medical practice. To be honest, I saw it more as political, you know, that we'd still allow for something.
The greater issue, I think, is the importance of consent. In regard to giving a substance that ends one's life very quickly, health professionals, health institutions, and, I believe, many patients, families, and individuals prefer someone to consent to that for themselves. I think that palliative sedation, or continuous palliative sedation, is a very good treatment modality among the varieties of treatment modalities that would not be used as a first or second line of treatment, but only when the suffering was really quite terrible. Some pain is really awful to see and very, very difficult to manage. I can imagine that it would be much easier for some people simply to be asleep, in a sense, rather than conscious.
I don't see a huge ethical difference. I see it more of an emotional difference. However, it requires resources.
Thank you, Mr. Joint Chair.
Thank you, Dr. Smith, Professor Ells and Ms. Baxter. I know your time is valuable, but this evening, you're really helping to shed light on issues that the members of this committee need to consider in order to come up with a bill.
My first questions are for Ms. Baxter.
I read the briefing note your association submitted. Your association acknowledges the need to respond to the Carter decision through a bill that amends the Criminal Code, while ensuring the promotion of palliative care. I understand the dynamic behind your association's position.
I also appreciate the fact that your association suggested responses to the criteria or parameters set out by the Supreme Court of Canada, in keeping with the Carter decision. I am assuming, then, Ms. Baxter, that you read the Carter decision.
Paragraph 127 of the decision summarizes the court's thinking, if you will, or decision. Without quoting the entire paragraph, I'll cite some of it as a reminder for you. The Carter decision states that “a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition...that causes enduring suffering that is intolerable to the individual” may seek physician-assisted dying.
In Carter, that suffering is perceived by the patient. I'm trying to figure out how to reconcile the court's position in Carter with your or, rather, your association's position. Specifically, I'm referring to your stance whereby a request for physician-assisted dying should be granted only when the health care professionals are in agreement that no other options are available to ease the patient's suffering. Then, and only then, should access to physician-assisted dying be provided.
How do you reconcile that with the Carter decision?
The number of Canadians who are aging out and dying and having diseases and needing good end-of-life care is increasing. Just look around the table; there are a lot of people with gray hair in the room. I just happen to dye mine.
Therefore, we need to provide those services. CIHI, the Canadian Institute for Health Information, puts out a terrific little chart that shows how Canadians die. There are four trajectories. They are sudden death, disease, frailty, and organ failure. Organ failure means heart attack and Parkinson's and the long dementias and stuff.
We need to think about how Canadians die and what kinds of services they need. They don't all need the care of a specialist, palliative care by a full team, or intervention of the type needed by somebody who has cancer and drastic pain and symptoms at the end of their life. We need to look at what services and what kind of palliative approach Canadians need.
We've struggled with this issue in the last three or four years. If 65% of Canadians never see a palliative care specialist, how do we ensure them a better end-of-life experience in which their needs are met and they won't be showing up in hospitals? Right now $35,000 per year per patient in the last year of life is spent on unplanned hospitalizations because we don't do a very good job of supporting those people who are living in their communities and in their homes. We can do a much better job of that. We need to consider all that.
I think it's our responsibility to do a much better job with all that, particularly in light of physician-hastened death. We've said to our community that this is an opportunity. We see it in other jurisdictions, and other jurisdictions have said they have to do the best they can if they're going to offer hastened death. I think that we have to call ourselves on that. We're not talking about millions and millions of dollars for specialist care or palliative care programs, but about pushing out this primary-care approach. That means every physician and every nurse talks to patients and their families about their needs. It means that we have checklists and that we look at frailty indicators. We have 85-year-old patients coming into a doctor's office and nobody asks them any questions about how they are doing, whether they are isolated, whether they have enough food, or whether they have fallen. There are lots of things we can do and there are lots of ideas, including this national framework that we put out.
We're all in favour of doing a better job across the board. If a patient chooses physician-hastened death, so be it. We need to do a better job of not deferring and not delaying, on working together in these systems, and on not prolonging people in the wrong place at the wrong time. There are way too many senior citizens lying on hospital gurneys in corridors. We really need to do a better job.
My name is Alika Lafontaine, and I am an Oji-Cree anaesthesiologist practising in northern Alberta. I would like to acknowledge the Western Cree of Treaty 8, from where I'm video conferencing, as well as the Algonquin people, on whose territory these hearings are being held.
My thanks to the committee for the invitation to speak. I'd also like to extend thanks to the board members of the Indigenous Physicians Association of Canada, our past presidents, and IPAC membership for their input into this testimony, as well as the indigenous health advisory committee of the Royal College of Physicians and Surgeons and the staff of the college. In particular, I'd like to thank Dr. Tom Dignan, who has guided many indigenous physicians like me over the past few decades.
Senator Ted Quewezance, chair of the senate of the Federation of Saskatchewan Indian Nations, and Mr. Mike Cachagee, executive director of the National Residential School Survivors' Society, have both been extremely helpful. Senator Quewezance and Mr. Cachagee, also residential school survivors, are people who have helped me remember the responsibility of being Oji-Cree and that we should move forward with this work in a good way.
I am president of the Indigenous Physicians Association of Canada, the only national voice of first nations, Métis, and Inuit physicians. For almost two decades, national indigenous physician advocacy organizations have lobbied for improvements in indigenous health. Our organization has current and past members who represent every province and territory in our great Canadian federation. As one of the three founding nations of Canada, indigenous peoples have a critical perspective to add to all Canadian issues.
The Indigenous Physicians Association of Canada does not have an official position on medically assisted dying. It has not been identified, by our members or by the indigenous patients we serve, as a high priority. They are focused on other pressing issues within indigenous health. The comments I share are a reflection of the ongoing discussion we have on this issue and how it fits more broadly into indigenous heath. Some of these perspectives are my own.
In reviewing these hearings, I feel obliged to identify the absence of the major national indigenous organizations. I believe there has not been meaningful consultations with indigenous peoples, although meaningful mainstream Canadian consultations have been carried out by many other organizations that have presented here. You are all aware of the widening health disparities among indigenous peoples and the rest of Canada. When considering the overrepresentation of indigenous peoples in nearly every category who may qualify and pursue medically assisted dying, it should be strongly considered that you may be ignoring the largest proportional demographic that is eligible to pursue this service. I hope the apparent absence of indigenous consultation is remedied prior to any final decisions regarding indigenous patients and medically assisted dying.
As a physician, I recognize that medically assisted dying must be provided in a thoughtful and patient-centred manner. I applaud the members of this committee for their commitment to explore an issue that could be divisive and emotionally exhausting. I am thankful that so many organizations have taken the time to provide meaningful advice to the committee, and preface my comments as specifically pertaining to indigenous patients. Whether the issues I raise are dealt with, they will remain issues nonetheless.
My personal experience with indigenous patients and their concerns regarding medically assisted dying are very different from my experience with mainstream Canadian patients. One reason is that medically assisted dying has existed in our communities for more than a century.
When residential schools exposed children to nutritional deprivation and medical experimentation, that was medically assisted dying. When traditional medicines and cultural practices were made illegal, driving traditional healing underground, that was medically assisted dying. When traditional medicine is appropriated, depleted, and patented by private industry, so-called discoveries that have been known by indigenous peoples for generations, thereby removing access to our own ways of healing, that is medically assisted dying. When traditional medicine is treated with hostility by mainstream health professionals, despite being requested specifically by patients, that is medically assisted dying.
When child and family services apprehend indigenous children at an alarmingly high rate—if not the highest rate of all demographics—with medical decisions made by the crown, and an inconsistent quality of standards that contribute to children dying in care or going missing, that is medically assisted dying. When the trauma of residential schools is perpetuated intergenerationally and we do nothing to stem the tide of abuse, addiction, and suicide that overwhelms our indigenous communities through insufficient mental health intervention, except in crisis, that is medically assisted dying.
When indigenous peoples have programs designed without their input, then are chastised for poor engagement in mainstream health care, that is medically assisted dying. When Health Canada provides 40 programs that do not provide comprehensive primary health care on reserve and neglects to provide a seamless transition between federal and provincial health jurisdictions, that is medically assisted dying.
When the health system prescribes benzodiazepines, opioids, stimulants, and other prescription substances without considering the high risk of addiction and overdose, that is medically assisted dying. When health professionals request services for indigenous patients and their requests are denied by bureaucrats at Health Canada who ignore clinical recommendations, that is medically assisted dying.
When nursing stations employ health professionals that lack a skill set to provide emergency and urgent care or when nursing stations lack basic life-saving equipment and medication that does not meet the minimum standard of every other health facility, that is medically assisted dying.
When there is no monitoring, tracking, or enforcement of standard practice that every other Canadian can expect when receiving medical care, that is medically assisted dying. If an indigenous person dies and no one tracks it, does anyone care?
What we are pleading for in indigenous communities is not medically assisted dying. That already exists in more ways that can be counted. What we are pleading for is medically assisted life.
It is in this background that I make the following nine recommendations.
One, consult indigenous peoples regarding their opinions on medically assisted dying and whether it is a priority. You can do this during the submission of each first nation's health strategy, a requirement of funding for health programs on reserve, and through national consultations with those off-reserve, first nations, Métis, and Inuit. Continue to engage the national indigenous organizations and weigh their opinion with the same weight as those who testify through this current process.
Two, implement the truth and reconciliation recommendations for health. Change the culture of medically assisted dying towards indigenous peoples by the health care system. Confront bias, discrimination, and racism in indigenous health.
Three, reprofile existing funding with Health Canada towards primary care services, with a lower focus on public health programming. You do not build a health system around public health. You build it around primary care services. Public health cannot exist in isolation and should not exist to the detriment of primary care services.
Four, implement the recommendations of the Naylor report on health care transformation, including the creation of an indigenous health quality council so we can independently track indigenous health outcomes and provide support to indigenous communities. Health quality councils are a central support of provincial health systems. The Naylor report goes into more detail about this.
Five, create a national indigenous health strategy that seamlessly integrates medically assisted dying. This deserves to be a stand-alone national priority in health, not a subcategory below other health priorities. Dealing with the crisis should be at the same level as pharmacare, the opioid crisis, and medically assisted dying.
Six, pass an indigenous patient bill of rights that ensures seamless transitions in care between federal and provincial systems and puts patient need before policy and procedure within Health Canada. Design it to minimize jurisdictional ambiguity and emphasize jurisdictional responsibility.
Seven, do not create a program for medically assisted dying unless you speak directly to the community who may access it. In a system where everyone is already dying, the effects of creating a literal program where patients intentionally die within the medical system will further disengage and disenfranchise indigenous patients and families.
Eight, provide access to a culturally safe educational organization that will provide education on a patient's right to live, a patient's right to die, and the legal mechanisms that protect each. Empower patients with information.
Finally, nine, ensure that complaints from patients and patients' families about bias, discrimination, and racism of health care providers and/or administrators that push patients or patients' families to choose medically assisted death in a way that is not patient- and family-centred are transparently addressed. The complaint process should outline the various ways that complaints can be pursued, including through health regions, regulatory bodies, and civil actions.
I want to emphasize that I believe no individual in our health care system deliberately causes harm to indigenous patients. Through historical trauma, mainstream attitudes, and system design, however, we do cause ongoing harm, whether intentional or not.
Thank you for the opportunity to participate in these hearings. Medically assisted dying is an important issue for Canadian and indigenous patients. Meegwetch.
Thank you, honourable Chairs and committee members.
My name is Dr. Gus Grant. I am the president of the Federation of Medical Regulatory Authorities of Canada, but speak today in my role as registrar of the College of Physicians and Surgeons of Nova Scotia. I'm accompanied by our legal counsel, Marjorie Hickey.
Our college has jurisdiction over the regulation of the medical profession in Nova Scotia. The college's objects, which are defined by a provincial statute, are to serve and protect the public interest in the practice of medicine, preserve the integrity of the medical profession, and maintain the confidence of the public and the profession in the regulation of medicine. I would respectfully submit that any legislation regarding physician-assisted death, PAD, be directed to complement the work of the colleges toward these objects.
The legislative component of the framework must provide clarity and certainty for patients and physicians without confining the medical judgment of physicians or limiting access for the patients. Those aspects of PAD that are fundamentally medical and touch on the exercise of professional judgment, the delivery of clinical skill, or the essence of the patient-doctor relationship should remain regulated by the colleges. As with any aspects of medicine, the clinical means by which PAD is delivered will change over time. Legislation cannot confine progress of this sort, and the college is mindful of the adage that to define is to limit.
The ultimate combination of legislation and regulation must result in a framework that is seen with confidence to appropriately protect vulnerable patients; promote a patient's right to life, liberty, and security of the person; and give consideration to the physician's freedom of conscience. To that end, the college makes the following submissions regarding certain discreet aspects of PAD that are already before the committee.
With respect to eligibility criteria and the question of mature minors, the college asks that legislative amendments specifically address whether PAD is available only to competent adults or also to competent mature minors. The college takes no position on this issue, apart from encouraging explicit legislative direction. The college supports the definition tabled to this committee by Professor Downie earlier this week.
Another item is the place for the now famous language in Carter of “grievous and irremediable medical condition”. These famous words and the interpretation of these words will evolve. The college does not feel that this evolution should be limited by legislation, but if legislation does address these words, the college urges that the spirit of Carter be maintained. The primary lens through which to assess eligibility must remain that of the patient's illness experience. Eligibility is to be determined primarily based on the subject of experience of the patient.
However, protection of vulnerable patients, together with the public's confidence in the framework, will be served if the assessment of eligibility includes an objective component. The college supports an interpretation of the word “grievous” to mean a very serious condition and, thus, requires an objective assessment of severity by physicians.
On this, I'd say one more thing. Please avoid lists. With advances in medicine, that which is grievous today may be imminently curable tomorrow.
I'd like to talk about the timing of the eligibility criteria for Carter. To effectively regulate our college and colleges, we need specific legislative direction on the question of when each of the eligibility criteria must be met. The Carter decision, unfortunately, does not give clear guidance on these questions, and the colleges, our college, would prefer to have direction from legislation, rather than to be left to extrapolate from Carter.
We must consider the arc of the deteriorating patient. If all criteria are to apply at the point of either prescription of medication or administration of medication, patients who lose their competence or who become unable to express their experience of intolerable suffering will be unable to avail themselves of the physician-assisted death they may have requested earlier while competent.
To avoid this dilemma, legislation may also be needed to address the role of advance directives. On this, the college makes no submission beyond recognizing that a myriad of new issues are associated with the expansion of PAD to include patients who are no longer competent.
With respect to the clinical process, I make the following submissions. Most provinces have developed professional standards that have been informed by the work of FMRAC and by the Canadian Medical Association, and have been built through extensive consultation. Contrary to the submission of Professor Downie earlier this week, these standards are largely harmonious.
I submit that the clinical process is best left to the regulator. There are issues specifically addressed in these standards that are before your committee. Specifically, should there be legislated and defined waiting periods? The college does not support legislated waiting periods. The goal should be for physicians to make a determination of eligibility free from ambivalence, and to take whatever time is needed and reasonably required to do so without unduly limiting patient access. Prescribed time limits would encroach on this critical exercise of professional judgment.
How many physicians should be involved in the process and who should they be? This is a question that our college does not feel requires legislative address. The college currently takes the position that eligibility should be provided by two physicians, or determined by two. In these early days, I think public confidence will be served by the involvement of more than one physician.
We also take the position that when the grievous and irremediable condition is primarily a mental illness, the determination of eligibility should be informed by a psychiatric opinion. In the course of our consultations, there has been concern that mental health patients who seek PAD are among the most vulnerable. The public, in my submission, will be comforted by the involvement of a psychiatrist.
Medicine is increasingly delivered through a team-based approach. The allied health professionals, working with or under the direction of physicians—think nurses, counsellors, dispensing pharmacists—require clear legislative comfort that their involvement with PAD will not be considered illegal or criminal.
The next question is perhaps the most contentious: what are the responsibilities of physicians conflicted by conscience, and by whom should these responsibilities be mandated? We have a history to confront. I refer to our country's experience with abortion and access to contraception, where conscientiously objecting physicians faced, and continue to face, the same question. On many occasions, whether through silence or obfuscation, physicians chose, and continue to choose, not to assist women to access a legal and medical service that runs counter to their personal beliefs.
I respectfully disagree with the submission of Dr. Jeffrey Blackmer of the CMA to this committee. As a regulator, I submit that it is naive to think that access to physician-assisted death will not be an issue, whether for reasons of conscience or geography. The provincial colleges are not in unanimous agreement on the question of conscience. Whereas it's unfortunate there is not a unified pan-Canadian approach, this alone should not invite federal legislation. The professional and ethical obligations of a physician in this difficult situation are clearly within the objects of provincial legislation. The colleges, through FMRAC, should work toward consistency, both to establish the physician's obligations and to establish the disciplinary consequences that might flow from a breach of those obligations.
With respect to oversight and program structure, I make the following and final two submissions. Should there be a formalized oversight process? Medicine is driven by data. A formal oversight process will allow medicine to develop evidence as to which conditions give rise to the request for assistance in death. Track the timelines of the request and the death, and in so doing identify opportunities for research and for intervention.
Most importantly, I submit that the process must be retrospective. The medical profession is well capable of assessing eligibility and delivering care. This inherently medical process should not be interrupted. We cannot place an administrative panel between a physician and a suffering patient.
My final submission pertains to the oversight of the medication itself. The experience in permissive jurisdictions is clear. The majority of patients prescribed medication to end life do not take the medication.
According to The New England Journal of Medicine, we are in an epidemic of deaths from opioid overdoses, and I appreciate the reference to this by Dr. Lafontaine. We now face the situation where our family medicine cabinets will contain medications for the purpose of ending life. These medicine cabinets are the targets of addicts and of experimenting teenagers. There needs to be a robust system for the return of unused medication. The college would welcome that this system be mandated through legislation.
I thank you for the great privilege of making these submissions and welcome your questions.
Good evening. On behalf of the Criminal Lawyers' Association, I thank you for inviting our organization to give you our thoughts on this very important topic. Having seen the transcript of the remarks of previous witnesses, I truly feel honoured to be a member of this group of individuals and part of this debate.
The Criminal Lawyers' Association represents more than 1,500 members, primarily criminal defence lawyers in the province of Ontario. A large portion of our efforts relates to ensuring access to justice in criminal law and protecting the civil liberties of Canadians.
The majority of our members' clients are part of vulnerable groups in one way or another. Our organization's members routinely assist individuals with mental health issues, marginalized groups, the impoverished, and the uneducated. Our position here really reflects what is the constitutionally minimal standard that's set out in Carter, and what the role is of Parliament and the federal sphere in how to deal with the issue of section 7 compliance.
The Criminal Lawyers' Association is against the duplication or the addition of unnecessary complications into an already unwieldy Criminal Code. We're skeptical of any attempt to import what is essentially a medical regulation into the Criminal Code. We're also skeptical about the federal government's jurisdictional competence to regulate assisted suicide comprehensively within the Criminal Code. The Criminal Code, as we know, is a very blunt tool, and it ought to be used sparingly. You have to ask yourself if the federal role will be a criminal one, because that's the anchor for the jurisdictional authority. What does that look like?
What is the continued relevance of criminal law and the regulation of physician-assisted death post-Carter? That is the question I'm here to address on behalf of the Criminal Lawyers' Association.
Having gone through some of the testimony in earlier hearings and having gone through Carter several times now, I must say that Carter sets out fairly clearly what is the constitutionally minimum standard. It starts at paragraph 1 of the decision. Paragraph 1 of the decision couldn't be more clear as to what the issue is with section 7 compliance.
The prohibition in the Criminal Code with respect to counselling suicide created a net that was cast too wide and went beyond the legislative objective. That's what section 7 principles of fundamental justice are about—looking at the legislative objective and then looking at the effects of trying to meet that legislative objective. Overbreadth is really about casting a net that's too wide.
What Carter was about and what the Supreme Court was saying is that there are individuals who unfortunately are faced with a “cruel” choice as a result of this blanket prohibition. Those were the words of the Supreme Court in paragraph 1 of Carter. A person who is able to consent and has a grievous and irremediable illness or medical condition and intolerable suffering faces this cruel choice of ending their life early, before the onset of this intolerable suffering or pain, or waiting for a natural death. The Supreme Court found this to be an unconstitutional choice that individuals were faced with.
If we're going to accept that this counselling suicide provision is going to remain in the Criminal Code—and for the purposes of these hearings, I take it as a given that we are leaving it in place—the role of the federal government in terms of a constitutionally minimal standard is to really create an exception that meets those constitutionally minimum standards. Outside of that, subject to the comments I made earlier, getting into comprehensive regulation would just be encroaching upon the powers of the provincial governments to regulate health care.
Subject to questions, of course, those are my comments at this time.
That's an excellent point and thank you for the question. I'll go back to a comment that was raised earlier about the Supreme Court saying that this is a cruel choice. I think when Carter came down the way that it did, it was an effort by the Supreme Court to ensure that patients were empowered to make a choice that affected them in an unconstitutional way.
Dr. Grant has gone back over and over again to getting to the essence of the patient-physician relationship, and I think that sort of relationship is developed with any type of health care professional, physician or otherwise.
One of the realities in medicine is that when you come into my OR and I am your anaesthesiologist, you have no power. You have only the power that I give you. If you start being combative, and I decide that you've already provided your informed consent, I can start giving you medication that will change the way you think and take away your ability to resist. I think that's something we need to consider strongly when it comes to remote communities, including those indigenous communities that you mentioned.
The goal of any of this legislation should be to democratize the power differential that exists between physicians and their patients, or between any other health care provider and their patients. We have the incredible responsibility as health care providers to allocate resources, and we do this deliberately through policies that we follow, but we also do it based on our decisions. When you were talked to earlier by Mr. Russomanno about the crown having the latitude to decide what types of charters are laid, that actually takes the power out of the hands of the patient. As we develop more and more policy that strengthens the physician position or the nurse position, or other legislation that might be passed, we have to keep in mind that the goal of Carter was to empower the patient. It was not to create additional jurisdictional barriers or to enhance the power differential that already exists between the patient and other bodies.
Whether it's a nurse or it's any other individual who provides it, we need to consider that we're really focused on making sure that the patient has the choice.
Another quick point is that it's not straightforward to do physician-assisted death. As someone who has skill in providing different pharmaceutical medications in order to achieve certain outcomes, I can say that it is not straightforward, so you have to consider, as well, whether or not the subsequent training will be provided to do this in a way that is actually comfortable.
I'll try to be brief and be respectful of your time.
There's just a little confusion on the issue of conscience protection. You did reference Carter. It's quite clear in paragraph 132, “In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” I think there would be disagreement among professionals, legal and otherwise, as to what that actually means. Does it include active referral? Does it even include passive referral? I don't want to get into that argument right now, but I think there is room for debate around the definition.
One of my concerns is that as we approach the issues of conscience, it's paramount and I think this committee is charged with the very simple obligation to ensure that physicians have conscience protection, including, I would go so far as to say, not to refer. No other jurisdiction that has legalized physician-assisted suicide or euthanasia imposes any compelling of medical doctors to refer.
I want to ensure that our world view, as doctors or whatever other practice we're in, is not compromised by a set of external forces that forces us to go against our conscience. In fact, I would be concerned that in the issue and the situation with medical doctors who are compelled to go against their conscience, could there not be a serious implication of possible post-traumatic stress syndrome or other psychiatric issues with which those physicians might have to deal?
That's a very existential question. A more practical one is that if the regulations are allowed to be developed on a province-by-province case, is it not possible that a physician practising in Nova Scotia, where the regime is more mandatory, could move to New Brunswick, for example, or some other province where there's a more lenient and what I would call a more “open” regime in terms of allowing physicians to actually practise according to their conscience in all spheres of medicine?