I would like to acknowledge the traditional lands of the Algonquin peoples, where you are gathered, and the traditional lands of Treaty 7 first nations, from where I'm speaking with you today. Because we're televised, I also wish to acknowledge all other first nations, Inuit, and Métis peoples across Canada.
I also wish to thank the staff of the Peter Lougheed Centre, who made my appearance here today possible, but most importantly, I wish to thank them for saving my life.
DAWN-RAFH Canada has advocated on behalf of the interests of women with disabilities and deaf women as a party intervener before the Supreme Court of Canada in over a dozen cases. DAWN-RAFH Canada has presented legal arguments on both section 7 and section 15 of the Charter of Human Rights and Freedoms in cases on behalf of women with disabilities, which have brought the perspective and advanced the rights of women and people with disabilities.
The DisAbled Women's Network of Canada's mission is to end the poverty, isolation, discrimination, and violence experienced by women with disabilities and deaf women. DAWN-RAFH Canada is an organization that works toward the advancement and inclusion of women and girls with disabilities and deaf women and girls in Canada.
During the first year at DAWN-RAFH Canada of our national executive director, Bonnie Brayton and I were alarmed because we were approached by three women concerned that “do not resuscitate” orders were inappropriately applied to their family members. While I have been in hospital since December 18, 2015, I have been approached three more times by women with similar concerns while in a private room, twice in the span of five minutes.
On December 23, 2015, a friend who was visiting me in the ICU got a phone call that her uncle, for whom she is guardian, was being admitted from his nursing home to hospital. When she met him there, doctors told her that she should not consider treating him. They compared him to an old car that was not worth investing in. She insisted he be examined, and it was merely a urinary tract infection requiring rehydration and antibiotics.
Yesterday, a friend recounted that her husband had been repeatedly sent home from the emergency room while he was having a stroke. Upon being admitted to yet another hospital, he was being treated and developed heart failure because his fluid balance was upset. The doctors pressured her and her husband to not treat him. Upon summoning the cardiologist, the fluid balance was corrected and he was well within four days.
Five minutes later, I received a referral from a woman in the community who learned of a man whose wife has terminal breast cancer. This is his email that he asked me to read to you. He wrote, “What happened was that my wife, Sylvia, was rejected for getting help, as they said she was too heavy for care workers to lift. She cannot use her left leg or arm. She was visited by the nurse in charge and let know the news. I came to find her upset and crying, as well and scared.”
As part of palliative care, there must be support for family members and caregivers, as you can only imagine the toll on their mental health.
As well as a national and provincial leader in the women's disability movement, with experience in the mental health movement and the disability sector, I've been treated much like the prophetess Cassandra, whose prophecies were true but never believed. As a woman with multiple disabilities that make me ineligible for most treatment programs, and as a survivor of profound childhood abuse, my fear of physician-assisted death is visceral. The entire board of DAWN-RAFH Canada shares that fear, as do many of our colleagues across the disability sector.
When Canada ratified the Convention on the Rights of Persons with Disabilities, everyone was excited and for the first time, we hoped that things would become better for our folks, particularly with article 6 emphasizing the disadvantages faced by women and girls with disabilities. You can imagine our shock when Canada did not ratify the optional protocol. That was just the beginning.
Canada then made profound cuts to every aspect of both government and non-government women-serving organizations and agencies. Then, without building up resources to alleviate violence, economic disparity, crushing poverty, unequal opportunities for education, a lack of disability transportation, home care, palliative care, hospice care, housing, disability, and mental health care, our Supreme Court of Canada, in the name of human rights, offers us the opportunity to die at the hands of the very physicians we're supposed to be able to trust to help us.
We do not have capital punishment in this country, nor do we extradite offenders to countries who do, because we are concerned that we may inadvertently execute an innocent person and cannot devise adequate safeguards to prevent this. Yet I find it alarming that in the name of individual rights our Supreme Court believes that we can.
The Carter v. Canada decision has rushed to judgment, compelling governments and Canadian society as a whole to make a rapid decision on matters Canadians have not had proper time to fully understand or consider. The Government of Canada must use the notwithstanding clause to stop physician-assisted death from moving forward as it is moving too quickly. Procedures and safeguards are insufficient as are alternative resources to physician-assisted death. No aspect of Canadian society has had an opportunity to really think about what it's doing. Canada needs to rethink its direction.
In the interest of time I will begin with my recommendations. A written brief has been submitted to the clerks and will be made available to you once it's translated.
Home care and palliative care must be made part of our health care and be equivalent across our country rather than chopping people into a geographic area. It needs national standards. Mental health care must be accessible to every citizen in our country before one dollar is spent on making review panels for physician-assisted death. We do not have enough dollars to save the thousands of people who die each year from suicide to spend one cent on the industry that will seek to kill our own people. Mental health care must have professionals who are cross-trained in trauma, addiction, and disability. We need to be sensitive to the needs of other cultures beyond a western view. Within the indigenous community, life is seen as sacred and the teachings point to this sacredness. To end life before one's time is finished on Turtle Island would be viewed by many as not honouring the life journey in a good way. It is vital that those perspectives from other voices be carefully considered.
For eligibility criteria a national comprehensive regulatory system is required to protect persons who are vulnerable to being abused from committing suicide in times of weakness. This is especially true for women who are particularly vulnerable. Women with disabilities need to have had a consultation with peer support groups before being eligible for physician-assisted death. Women are particularly vulnerable as a result of social or economic circumstances that diminish their resiliency.
Women with disabilities are at a greater risk of vulnerability because there is emphasis on compliance with caregivers or similar authority figures. This is especially true of women with intellectual disabilities, women with a lived experience of mental illness, and survivors of trauma. Also, women with disabilities are at greater risk because of violence and coercion. They also worry more about being a burden to others. Women with disabilities in representative organizations have much at stake in the designed delivery of any system developed to protect persons who are vulnerable from being induced to request physician-assisted death. It must be available only to competent adults with a grievous and irremediable condition that is the cause of enduring suffering intolerable to the individual, and only in a province that has high-quality palliative care, consistently and freely available to those who reside in that province. In itself disability is not a grievous and irremediable condition.
Request for physician-assisted death must be reviewed and authorized by an independent review panel with sufficient information to determine if the necessary criteria are met. Women with disabilities are horrified that physician-assisted death would be considered an option. For anyone under 18 years of age this is especially disconcerting in the light of Tracy Latimer's murder.
The Government of Canada must use the notwithstanding clause to stop physician-assisted death from moving forward. It is moving too quickly and procedures and safeguards to physician-assisted death are insufficient as are alternative resources. No aspect of Canadian society has had an opportunity to really think about what it's doing. Canada needs to rethink its direction.
Canada must ratify the optional protocol on the Convention on the Rights of Persons with Disabilities. The Convention on the Rights of Persons with Disabilities must be upheld, particularly articles 4, 6, 10, 19, 25, 26, 28, 32, and 33. Any measures of physician-assisted death must be mindful of complying with these articles. Also, they must uphold the Convention on the Elimination of All Forms of Discrimination against Women. They must also consider the complications as well as the benefits that can occur.
People need to consider what happens if a person awakens after having been administered a lethal dose of medication. What happens if the dose of medication is administered and it's too late and the person changes their mind? If a person survives the lethal assisted death attempt to come out of it more disabled, what happens? Has anyone considered what policies and procedures might be brought to bear in the event the first procedure fails? How many attempts should be made to start an intravenous line and what will the process be if one cannot be established?
Honourable senators and members of Parliament, thank you for the opportunity to appear before you this afternoon.
With me is Margaret Birrell, who is president of the Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society. My name is Angus Gunn, and I have served, since 2011, as litigation counsel for the alliance. I have been asked to provide the prepared remarks this afternoon, and Ms. Birrell will be pleased to respond to any questions the committee may have.
The members of the alliance that I represent are leading advocates for disability rights in Canada and elsewhere. The alliance sought and obtained intervener status at all three levels of court in the Carter litigation to advocate for the right that was ultimately recognized in the Supreme Court of Canada. The alliance wishes to address five themes in its prepared remarks today, and we will be providing a written copy of these remarks to the committee clerks in due course.
The first theme is on the question of the committee mandate. The alliance urges that, in recommending a framework for a federal response on physician-assisted dying, primacy be given to the values of patient autonomy and dignity that Carter described as underlying the section 7 charter rights to liberty and security of the person.
The alliance also urges a commitment to co-operative federalism, in which the federal, provincial, and territorial governments deploy both legislative and non-legislative measures in the pursuit of a patient-centric, and to the extent possible, uniform Canadian response to Carter.
The alliance considers that these aims are best pursued by implementing physician-assisted death in Canada in stages. Carter has frequently been described to your committee as a floor and not a ceiling. As a practical matter, the declaration in Carter will come into force on June 6 of this year. The floor must be implemented by that date, and legislation is needed within weeks.
The alliance urges that whatever needs to be done to implement Carter be done, and that a robust longer-term commitment be made to determine where the ceiling lies—an even more complex debate that carries no judicial deadline and deserves fuller consideration over time through a proper white paper process.
The second theme is that of divided jurisdiction. Within a coordinated response to Carter, the alliance considers the ideal structure to be a minimalist federal legislative scheme paired with uniform and comprehensive provincial and territorial regimes. Under this model, Criminal Code amendments should be limited to providing that an act of physician-assisted dying that would otherwise meet the definition of a crime shall be free from criminal liability, so long as it accords with the law of the province or territory where the act occurred. The alliance favours that model because of the unsuitability of dealing with these matters through the criminal law power, whether through the Criminal Code itself or in a stand-alone statute that relies on the federal criminal law power.
Carter expressly conceptualizes the right to physician-assisted death as an aspect of patient autonomy in decisions concerning medical care. Both palliative care and physician-assisted dying should be treated as part of best practice end-of-life medical care. They are therefore matters whose pith and substance favour the provincial and territorial legislatures' taking the lead.
The alliance recognizes the challenges in realizing this ideal, and shares the concern that a patchwork quilt of regimes across the country could result. These concerns, however, do not overcome the constitutional constraints within which we are operating.
A comprehensive scheme created under the federal criminal law power would inappropriately treat what is fundamentally a health care matter as a criminal law matter and would be vulnerable, we submit, to constitutional challenge.
If no statute applies in the province or territory where the act occurred, then the void does need to be filled, but a comprehensive federal regime might not be the only option. It may be that existing standards and guidelines within the medical profession for dealing with other end-of-life decision-making provide the necessary guidance. Most colleges have either promulgated such guidelines or are in the process of doing so. Alternatively, regulations under the Criminal Code could perhaps designate a provincial or territorial scheme that would apply in the absence of one in the province or territory where the act occurred.
Whether the comprehensive regime is implemented federally or provincially, the alliance favours reliance on secondary legislation for much of the detail, so that the regime can evolve dynamically and not be codified by statute.
The remaining three topics deal with questions of eligibility and process, and they apply regardless of the level at which the comprehensive regime is implemented.
The third theme is no advance panels. A central thrust of Carter was the relationship between dignity and autonomy on the one hand, and timely access to physician-assisted death on the other. Adopting an advance panel procedure for accessing physician-assisted death would create barriers and burdens, and it would erode or even extinguish the very rights recognized in Carter. To go still further and require a court order would wrongly judicialize what Carter viewed as an intensely private decision within the patient-physician relationship.
These risks are crystalized in, for example, the practice advisory issued by the Ontario Superior Court of Justice six days ago. Among other things, it requires that both the federal and provincial attorneys general be notified of an application for exemption from the Carter decision, and it also contemplates notice being given to family members.
Would all of those actors have standing to oppose the request? If so, why? Extensive affidavit evidence is required not only from the applicant and his or her attending physician but also from a consulting psychiatrist and the proposed physician who would assist death, if that person is not the attending physician.
How many weeks would this application take to be heard? How long would the court reserve judgment? Could the court's order be further appealed? Who would pay for these psychiatrists and lawyers? These hurdles are onerous, inappropriate, and antithetical to Carter. The law should not force those whose only wish is to escape grievous and irremediable suffering to spend what they hope will be their final days embroiled in litigation.
The fourth theme is that advance directives should be honoured. Carter accepted that the impugned Criminal Code provisions robbed individuals of their section 7 rights, in part by forcing them to choose between premature death or suffering until death by natural causes.
The alliance considers it essential in implementing the Carter floor to honour advance directives if the spectre of premature death is to be avoided. Advance requests for assisted death should be valid when made by a patient who, at the time of the request, was competent and had a diagnosis for a condition that was or could become grievous and irremediable, including dementia.
Fifth and final is conscientious objection. Carter recognized that nothing in its declaration would compel physicians to provide assistance in dying. The alliance submits that a comprehensive scheme should enable doctors to opt out, but only in a manner that imposes no burden on patient care and ensures continuity of care.
The protection of a physician's right to conscientious objection must not impair the ability of a patient eligible for physician-assisted death to access it. Conversely where a physician's conscience favours the provision of physician-assisted death, no health care institution should be able to impede that physician's ability to provide that form of health care within or outside the institution.
Thank you again for the opportunity to provide these prepared remarks and to participate in the important work of this committee.
Thank you for your invitation to appear before this committee. I'd like to put on the record, as you might already know, that I believe that euthanasia and physician-assisted suicide—what the Supreme Court calls physician-assisted death or dying—are inherently wrong and should remain criminally prohibited. That said, I'm willing to provide some recommendations for limiting the harms and risks of legalized euthanasia. Please note that in using the word “euthanasia”, I intend to refer to both euthanasia and physician-assisted suicide.
The Supreme Court recognized that the values of respect for individual autonomy and sanctity of life, especially protection of vulnerable people, were competing claims and that both had to be taken into consideration. “On the one hand”, the court wrote, “stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable”.
In the past, in many societies, including that in Canada, religion was the main institution used to uphold the value of respect for life at a societal level. Respect for life is a preferable term to sanctity of life, because respect for life is not just a religious value; it's a foundational value in every society in which reasonable people would want to live. It must be upheld at two levels, that of the individual person and that of the society in general.
In a 21st century secular western democracy such as Canada, medicine and law are the main institutions carrying the value of respect for life for society as a whole. Both are implicated in physician-assisted death, which would damage their capacity to carry this value. It is in every Canadian's interest to make that damage as small as possible. So, to the question you asked me to address of what “framework of a federal response on physician-assisted dying...[would] respect the constitution, the charter of rights and freedoms, and the priorities of Canadians?”, I would add, “and do the least harm to the value of respect for life and to health care professions and institutions, and present the fewest risks for vulnerable people both in the present and in the future.”
I have that extended question in mind in making the proposals that are now outlined. As the court made clear in Carter, access to physician-assisted death—euthanasia—on certain conditions is an exception to the criminal prohibitions of culpable homicide and assisted suicide. Other than that very limited exception, those crimes remain in force. To avoid the future normalization of euthanasia, as has occurred in the Netherlands and Belgium, and which would have very serious consequences for future generations of Canadians, the legislation you pass must make it clear that euthanasia is such an exception, that it should be used only as a last resort, and then rarely.
If Canada had the same percentage of deaths by euthanasia as is presently the case in the Netherlands and Belgium—about 4% in the Netherlands and 4.6% in Belgium—we would have between 11,000 and 12,000 euthanasia deaths each year. I could almost not believe it when I worked out those figures, and I actually went back and tried to make sure they were correct, but I think they are correct.
To help achieve the necessary clarity of the rarity with which this should be used, I suggest that the legislation be entitled “an act to amend the Criminal Code to allow for an exception to conviction for culpable homicide and assisted suicide”. This means those not complying with the law allowing euthanasia could be criminally liable and also that the person seeking euthanasia must show they fulfill the conditions for having access; that is, that they have the burden of proof. That would be consistent with what both the trial court judge and the Supreme Court proposed that the law should establish, “a stringently limited, carefully monitored system of exceptions” and a “carefully-designed system that imposes stringent limits that are scrupulously monitored and enforced.” The first is the trial court, and the second is the Supreme Court respectively.
The committee should not be fearful of recommending exactly what the trial judge in the Supreme Court thought necessary. In short, euthanasia must be treated as an exceptional intervention, very carefully safeguarded, and rarely used. In support of this approach, I would remind you that between 1991 and 2010 Parliament rejected motions or bills promoting assisted suicide or euthanasia on no less than 12 occasions. Legalizing euthanasia is an unprecedented change of mind on Parliament's part.
You asked me to address three specific categories of considerations: eligibility criteria, processes and procedures, and roles and regulation of health care professionals.
Regarding eligibility, the first requirement is that the person requesting euthanasia has been offered high-quality palliative care, including fully adequate pain management. Apart from other reasons, this is legally required in order to obtain informed consent for euthanasia. The person must be mentally competent and must provide informed consent up to and including the point at which euthanasia is administered. This requirement acts as a protection for vulnerable, incompetent people, such as those with Alzheimer's, and means that consent from surrogate decision-makers is not allowed. Euthanasia should be restricted to people who are terminally ill—I would suggest, with a life expectancy of not more than four weeks—from physical illness, disease, or disability, and who are experiencing extreme physical suffering. Euthanasia should not be allowed for children unable to consent for themselves. Whether it should be available to mature minors is a separate question.
Regarding processes and procedures, two physicians, one of whom is a specialist in the type of disease from which the person suffers must each confirm in writing that the person fulfills the conditions for access to euthanasia and that they have been offered all reasonable alternative interventions, including palliative care and pain management. A psychiatric consultation to rule out conditions such as depression, coercion, undue influence of others, or duress is required, at least where there is any possibility of these factors affecting the request for euthanasia or consent, or where there are any doubts about the person's competency. A superior court judge shall certify that all legal requirements for access to euthanasia are fulfilled. Indeed, Chief Justice McLachlin suggested exactly that in her dissent in the Rodriguez case, and of course, the five judges of the Supreme Court required it, just about 10 days ago, when they gave the extension.
Euthanasia must not be administered earlier than 15 days after it is requested. A national research and review body should be established to collect records of all cases, investigate cases where there might have been non-compliance with the law, and issue reports at least once a year. I have a whole lot of other conditions but I'll leave those out for the moment.
Regarding roles and regulations of health care practitioners, for nearly 2,500 years physicians in the profession of medicine have recognized that assisted suicide and euthanasia are not medical treatment. This position should be maintained and these interventions kept out of medicine. My colleague Dr. Donald Boudreau and I have written a peer-reviewed published paper on that subject, for which I can provide the reference.
Consequently, a new profession should be established to carry out euthanasia. The practitioners should not be health care professionals, or if so, only ones who have permanently retired from practice. Practitioners should be specially trained and licenced, and have travel money provided to give people across Canada equal access to euthanasia. If this approach is not adopted, two publicly available lists of physicians and institutions should be established: those who will provide euthanasia and those who will not.
This is a reasonable compromise between Canadians who agree with euthanasia and those who oppose or fear it. The Supreme Court emphasized that the charter right to security of the person includes freedom from fear about what could happen to us when we're dying. This often seems to be forgotten with respect to those fearful of euthanasia.
This approach will also solve most freedom of conscience issues. Health care professionals must not be forced to provide or refer for euthanasia when they have ethical or conscience objections to doing so.
In conclusion, you are not just legislating for the present. You're legislating for future generations of Canadians with respect to how they will die. Whether or not we agree with physician-assisted death, legalizing physician-assisted suicide and euthanasia is a seismic shift in our most fundamental values as individuals and foundational values as the Canadian society.
I believe future generations will look back on the legalization of assisted suicide and euthanasia as the most important social-ethical-legal values decision of the 21st century; and the decisions that Parliament will make about the legislation and regulations to govern those interventions are an integral part of that decision.
That brings up the very difficult and contested issue of what human dignity is.
What has happened, both in the literature and in the courts, is that the exercise of autonomy has been equated with human dignity, so that if you lose your ability to be autonomous—which by definition you do, if you're incompetent, if you have Alzheimer's disease—then you're regarded as being undignified.
The approach to it of the Dying With Dignity” people is, “We will help you by putting you out of your undignified state”, and of course, that's done through a lethal injection. That's the support for euthanasia.
The other concept of dignity, the one that has underlain most of our ethics and law, is that human dignity is intrinsic to being human and that as long as you're human, you have dignity and must be respected in the way that all humans need to be respected. The danger of not taking up that concept is that then anybody who doesn't fulfill the conditions for being seen as having dignity can be disposed of.
It is then, for example, that you get euthanasia of handicapped newborn babies; you can have euthanasia of children.... Peter Singer, for example, the philosopher at Princeton, believes that parents have a right to decide whether to keep a child with disabilities, up to the age of three years. He also thinks that if they can't relate to other people, they don't deserve the protections of human dignity.
This is a bit of self-advertising, perhaps. but I just got a new book out about six weeks ago called Bird on an Ethics Wire, and the third chapter is about 40 pages on the concept of human dignity.
Thank you to the witnesses for being here. It is very helpful.
I want to pursue with Mr. Gunn the same points that Senator Seidman and Mr. Rankin were talking about, and that is the difference between your approach, a minimalist federal framework supported by what you described as a comprehensive and uniform provincial scheme, with the opinion we received from Professor Hogg that the better way to go would be to establish a robust federal scheme and leave it to the provinces to meet it. If they were able to come up with equivalent regimes at a provincial level, then the federal authority could say that it is equivalent and the provincial regulations and regimes would apply in that province.
It was his view that this is the only way in which you can ensure pan-Canadian eligibility, equality of access, and equivalent safeguards across the country. He explained that we should not assume that all provinces will step up with legislative responses to Carter, or that those legislative responses will be as you describe, comprehensive and uniform.
Why do you take a different approach than Professor Hogg, and why would your approach better meet those three roles of ensuring eligibility, quality of access, and equality or equivalency of safeguards across the country, from coast to coast to coast?
We do not have such safeguards. I tried to research any kinds of measures that might measure for vulnerability, or indices, or.... For 10 years, I worked as a nurse in mental health. How could we avoid having coercion? How could we ensure...?
I'm very concerned, especially with respect to young people, because even in my own process, I had a time when I was new in my disability. I crawled around on my soft underbelly for many years thinking that I just didn't want intervention. I once walked in and said that to my doctor. I've had the same doctor since 1989. I said to him, “I don't want anything.” He said to me, “Carmela, I'm not going to accept that. You're only 38.”
That was my first “helmet shake” that maybe my life was worth something. I kind of let that cogitate, and I went and made a personal directive. It was sort of like, well, God made the world in seven days, okay, so maybe I'll let people gather to say goodbye and then we'll pull the plug. I have that directive. I was in the process of revising it when, ironically, I got pneumonia, ended up in urgent care, and then ended up in ICU. That's this hospitalization right now. I've been here since December 11.
As that was happening, I was terrified. I was terrified to come to ICU because of Carter, but also, as I went along in my process, I started to become involved in the peer support movement. I became involved with other people with disabilities. I also have had many medical conditions, and people have said that because I have a head injury, I can't get brain injury rehab. I can't get occupational therapy.
Okay, so then I feel safer to question you. I thank you for writing, because it's very challenging to read what you write.
When I try to wrestle with the concept of “respect for life”, is it not as much a code term, as with different religions filled with different beliefs or different sets of understanding? There are some religions which believe, for instance, that the death penalty for killing a policeman who is exercising their function is acceptable, and the same for a soldier. There are others who have the position, in terms of abortion, that it's okay for a short period but not after another period. Then there are other religions that would accept the concept of what is in PAD and so forth.
A respect for life is, in other words, a concept that could be filled by different content. In fact, it could have a religious substance. It could also have no religious substance. There are people who advocate respect for life even though they don't believe in any god. I would say it's difficult to follow you on that word because it is a word that opens a lot of avenues in front of us. I prefer, in a way, to follow the Supreme Court proposal, in a decision that it made almost at the same time as you published your article in mid-October, in le Mouvement laïque québécois in Quebec. I'm sure you know the decision. I want to quote just three lines of that Supreme Court decision, which illustrates my quandary about the concept of respect for life: “A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person's freedom and dignity...”.
It seems to me that's where we are wrestling with this concept of physician-assisted death. The state doesn't compel anyone to impose that. A doctor is free not to practise it; a person who feels it is not in sync with his or her belief is not compelled to have it, and so forth. Protecting the vulnerable; we all accept that. How can we reconcile your respect for life—
If you look historically at the situations in which life could be taken, and I'm talking here about civilized societies and societies we would equate ourselves with in Canada, they were all situations where it was thought necessary to take life to save human life. Indeed, it's actually the trial judge in Carter who gives the example of self-defence: the reason you may kill without legal punishment in self-defence is that it's necessary to save innocent human life. It's the same with just war. It was the same originally with abortion; it was to save the mother's life. It's the same with capital punishment, because it was believed that if somebody had killed once, they would kill again.
Respect for life is not just a religious concept. We've used religion in the past—and this is what I said in my remarks—to uphold it, but it's not fundamentally just a religious concept.
The book that's best on this is by Jürgen Habermas, the German philosopher, who points out that it is a foundational value in every society in which you would want to live. The question becomes, does our legalization of physicians, putting it bluntly, killing their patients—because that's what they're doing—derogate from upholding the value of respect for life in society in general to such a serious degree that we shouldn't do it, even though we can understand why the person might want that and even though they're exercising their autonomy?
First of all, because I believe there are other completely set ways to deal with the suffering of the person, I've promoted that a health care professional leaving someone in serious pain is a breach of human rights. That's now recognized, for example by the WHO, by the World Medical Association, by the Canadian Pain Society, etc.
It's not that I want to leave people to suffer, but I just think that when you have the institution of medicine, which for 2,500 years has said that they will never kill, and which upholds the value of respect for life in society in general, and you've had a law, and the law of all societies like Canada says that you must not kill—that's what our Criminal Code says—and which upholds the value of respect for life, should we be derogating from that with this?
Thank you for asking the SRPC to make a presentation to the committee.
The SRPC is a national voice for Canadian rural physicians. Our mission is to provide leadership for rural physicians and to promote sustainable conditions and equitable health care for rural communities.
I did send you a copy of the major points that I made in the fall to the external panel, and I won't repeat them in detail. Your request is for recommendations on a framework for the federal response on physician-assisted dying that respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians. I'm sure you're going to hear from many physician groups, and I suspect that most of them will have similar thoughts about this, as I have.
What I would like to do is give you a little background about rural Canada and a little framework of the major points that you wanted opinions on, and if we have time for further discussion about specific rural issues, then that would be what I would like to discuss more of.
As you know, Canada is 90% rural by geography, with slightly less than 20% of the population being rural. Roughly 10% of Canadian doctors work in rural areas. Canada's rural population is poorer; it's less healthy, and it has a significantly higher proportion of indigenous peoples, particularly in the north. Rural Canadians have less access to health care and may have to travel very significant distances, particularly in the north, to get such care. Canada's rural physicians are older, and they are much more likely to be international medical graduates—I'm an exception in that instance. The health care in very small rural communities may be provided by nurses and other health care workers rather than physicians. Access to specialists is limited, and most rural physicians work as generalists and include palliative care within their skill set.
That's where I'd like to start.
In designing legislation, it should be noted that good palliative care is truly physician-assisted dying. What we're really considering here is physician-assisted dying at an earlier moment in the trajectory of a life. As in all processes that are irreversible, it is vital that mistakes in assessment not be made. Patients who choose this option must be competent to make the decision, must have reasonable time to reconsider their decision, and must not have treatment options that will have a high likelihood of reversing their suffering.
Physicians are not uncommonly asked to assess competence; however, they may not have particular training or skill in this area. Legislation related to physician-assisted dying must be accompanied by clear definitions of competency, and must require patients to be assessed by two unrelated, unassociated physicians.
Although children are considered competent to make many medical decisions based on their understanding, I believe that initially they should be excluded from this process. If we do not allow adults to make decisions regarding physician-assisted dying for other adults who are incapable of consent—and I don't think we should—then we cannot allow adults to make those decisions for children.
In most other jurisdictions “adult” is defined as 18 and over, and I think Canada should use this definition as a starting point.
What is a grievous and irremediable medical condition? This is defined mostly by patients. There must be no treatment acceptable to the patient that will effectively relieve suffering and no major psychiatric condition that is treatable. If the condition that is causing enduring suffering that is intolerable to the individual is a psychiatric one, then assessment by two psychiatrists should be required prior to considering physician-assisted dying. If there is concern that there is a psychiatric condition affecting the request for physician-assisted dying, I think it would be reasonable to request a psychiatric opinion.
It's important in the evaluation of a patient who has requested physician-assisted dying that interviews be done in such a fashion that no one else can influence the patient. It's important to protect vulnerable patients from pressure from others, and it's important to ask patients about who else may have influenced their request.
The process is a challenging one, and I'm glad I'm not designing the legislation. There must be a formal process to make these requests. Patients will often talk to physicians about wanting to die, but if it came to actually requesting it, they probably would not do that. There must be some form of formal document that they sign.
There has to be an evaluation regarding competence and the presence or absence of psychiatric disease. There must be an assessment regarding other treatment options, and a discussion of what those might be and whether they are acceptable to the patient. There must be a second assessment, as I mentioned, by another physician within a reasonable period of time, and there must be an appropriate waiting time for reconsideration by the patient. All interactions and discussions must be well documented.
Finally, I will turn to the question of who does what. I believe that whatever the personal beliefs of a physician may be, they must be willing to discuss all legal options with their patients and make appropriate referrals if they themselves are unable to take part in that service. I think the way abortion works in Canada has some similarities. Physicians should not be obligated to be involved with a service that they have moral difficulties with, but they should be able to have such a discussion with their patients and to refer when necessary.
One of the questions that has arisen in discussions about this is death certificates and how they're filled out. I think death certificates should have physician-assisted dying as the immediate cause of death with the diagnosis that led to this as an underlying cause.
There are concerns in rural areas. The challenge in rural areas is often, as in the community where I live, that there is a group of physicians who work together, and how is it possible to arrange a second opinion about someone's suitability for this, or competence? I think it's inappropriate to do that within a group of physicians who work together. How is it possible to arrange and expedite a psychiatric consultation, if that's required, if all physicians in a group are conscientious objectors to this process? How do patients obtain a service, which is considered legal in a small community, where the physicians are not able morally to provide that service? This is a little different from the abortion discussion in that these patients are much less likely to be able to travel safely.
Where and how in a rural community where everyone knows everyone is it possible to carry out this process? What would the effect be on other members of the community? What would the effect be on the staff of a rural hospital? What would the effect be if there were radically different viewpoints within a small group of physicians?
Those are the important points of what I would like to say.
Good evening. My name is Dr. Hartley Stern. I am the executive director and CEO of the Canadian Medical Protective Association, CMPA.
Honourable senators and members of Parliament, thank you for this opportunity to appear before you. In the time available to me I will touch upon each of the questions you have asked of us. There is greater detail in our written submission.
I have spent much of my life as a surgical oncologist and more recently as the director of the Ottawa Hospital Regional Cancer Centre, and even more recently as the director general of l'Hôpital général juif de Montréal.
In each of these positions, I bore witness to the incredible suffering that some patients nearing the end of their life suffered. I also saw the devastating impact on their families, on the physicians and on the other health care providers who were concerned with these patients.
I would teach my students about the incredible importance and impact that the relationship between the physician and the patient, built on trust and on empathy, has on that patient as he or she enters into the end-of-life decisions.
I've now joined the Canadian Medical Protective Association because as the principal provider of medical legal assistance to Canadian physicians, we can support our member physicians in their efforts to give consistent, quality care to their patients. We, the CMPA, sit at the intersection of the Canadian health care and legal systems. As such, we are already, and will continue to, receiving questions from our members and advising them on all aspects of end-of-life care, which includes palliative care and physician-assisted dying.
Today for this committee's purpose, I will focus on physician-assisted dying in my remarks.
Our principal objective in making recommendations on the legislative response to Carter is to impress upon you the overarching requirement to have federal legislation that articulates principles of clarity and consistency so that obstacles that currently exist for patients to maintain their constitutional right to access physician-assisted dying are eliminated and that protection under the law is promoted.
The obstacles that we see are created by the current gap in legislation which creates confusion in the minds of patients, in the minds of their families, physicians and other health care providers as to principally who is eligible for physician-assisted dying, what the safeguards are to protect patients, particularly the most vulnerable, and what form of physician-assisted dying should be administered.
We believe federal legislation is required. Outside Quebec, no such legislation exists and there is uncertainty. Our members have already called because of this uncertainty. In this vacuum, the courts are faced with making decisions regarding physician-assisted dying until June 6. The courts will be challenged significantly in their ability to issue orders that are consistent based only on the high principles outlined in Carter.
We are aware that in Ontario the Superior Court has already published a practice advisory to guide the court applications. The medical regulatory authorities, the colleges of physicians and surgeons, have also published guidelines for physicians. We applaud these efforts, but they are not a substitute for comprehensive legislation required to fill the social policy vacuum.
Federal legislation most importantly must address the issues of eligibility criteria and safeguards consistently applied across the country. Now we fully recognize there is jurisdictional overlap with the provincial and territorial legislatures in this regard. The committee may wish to explore the possibility of developing a framework such that federal legislation will not supplant substantially similar provincial legislation. Such an approach is not unprecedented in Canada.
I would like to focus now on the recommendations to you on the issues of eligibility criteria and safeguards—challenging issues clearly. The starting point will be amendments to the Criminal Code to confirm that physicians providing a patient with aid in dying are not in violation of the general prohibition against assisted suicide. This is a fundamental requirement to permit physicians to enter into that very trusting and empathetic relationship with the patient that is so essential to the successful implementation of this policy.
We are particularly concerned with the disparate interpretations of the term “adult” used in Carter. We submit that a clear definition of the age requirement is essential to remove this uncertainty. Legislation must either use an age of majority approach or define competency for a mature minor. If the approach is adopted to extend eligibility to the mature minor, we believe it will also be necessary to address how patient competence will be assessed in that context. The test to determine competency is a subjective one and is difficult to implement in the best-case scenario. In this complex situation, it will be even more complex to implement such a policy. On balance, therefore, we believe a clear age requirement is the preferable approach.
Federal legislation will also have to address the form of assisted dying and whether it includes self-administration. The legislation must include safeguards for the protection of patients. The Supreme Court did not specifically discuss the issue in their decision. In Quebec, medical aid in dying must be administered by a physician. A physician could not prescribe a lethal dose of a drug to a patient to self-administer. The College of Physicians and Surgeons of Ontario has published guidance that contemplates the possibility of self-administration.
In Carter the Supreme Court used the term “grievous and irremediable medical condition”. As you know, this is not a medical term. Legislation should provide guiding principles on this issue so that patients and their physicians have a clear understanding of when patients will be eligible, while also taking into account an individual's unique circumstances. Legislation should also clearly state whether assisted dying may be requested by way of an advance medical directive. To ensure a consistent approach and equal access, any legislation should carefully consider whether and when such directives must be respected.
I'd like to turn to the rights of conscience. The Supreme Court recognized the patient's right to physician-assisted death, but also clearly stated that its ruling was not intended to compel physicians to provide assistance in dying. Legislation is required to address the appropriate balance between these two rights. The committee might consider the model adopted under Quebec's legislation. Under that model, a physician who refuses a request for medical aid in dying for reasons of conscience must notify the designated authority, which in turn will find a physician who is willing to consider the request.
Let me reiterate the reasons for the necessity of legislative protection for physicians. Physicians engaged in physician-assisted dying play a unique role for their patients. As I mentioned, this relationship is one based on trust and empathy, and in this most complex of situations, relies on an intimate relationship between the patient and his or her physician as they work collaboratively and collectively on the best approach for that individual patient. The CMPA submits that federal legislation must provide some assurances for these physicians so that they know they will not be prosecuted if they comply with the requirements under the law for physician-assisted dying and believe in good faith that their patients meet the criteria.
In conclusion, honourable senators and members of Parliament, the task ahead of this committee is significant. We ask you to bear in mind the importance of the relationship between the patient and the physician, and the importance of ensuring that both are protected along their journey.
On behalf of the CMPA, I'd like to thank the joint committee for the opportunity to present our view.
We would be pleased to provide you with any further information or data that you may find useful.
Thank you very much.
Thank you, Mr. Chair, honourable senators and members of Parliament.
In order to arrive at our recommendations to this committee, the Canadian Association for Community Living asked for advice from People First of Canada, the national association of people with intellectual disabilities that advocates for themselves. They told us in no uncertain terms that they want two things. First, they want access to physician-assisted suicide without discrimination on the basis of disability. People with intellectual disabilities are three to four times more likely to die from preventable deaths than the general population, and heart disease and cancer are the leading causes. People with intellectual disabilities are dying painful and difficult deaths with intolerable and enduring suffering. They want access on the same terms as anyone else.
However, they told us just as passionately that they want absolute assurance that there will be safeguards to protect their inherent right to life and that they'll have access to those safeguards without discrimination on the basis of disability. They don't want assisted death. What they need is support and good care, because disproportionately they face poverty, lack of support, or abuse.
While much has been said in the wake of Carter about the right to choose, we believe it's equally important to give as much focus to the other half of the equation that the Supreme Court insisted must be balanced: protecting the right to life.
You know, it's odd. I feel a bit awkward as I talk about the inherent right to life, because the moment the words are out of our mouths, it's often taken, it seems, that we're trying to roll back hard-won rights to choice, like reproductive rights for women. Our motivations couldn't be further from the truth. It was in fact a small committee of people with intellectual disabilities who led their legal counsel into the Supreme Court of Canada 30 years ago this year to secure the right not to be sterilized without their consent. They won in the Eve case, which set an international standard.
We know what the right to choose is all about. We've been on the front lines of that struggle for decades. But we must also stand firmly on the vantage point of the inherent right to life, its protection forged in the dark shadow of the atrocities of World War II, in order to give it indisputable recognition and obligation by states parties: the Nuremberg Code, which set the new standard for what voluntary consent now means in medical ethics and physician behaviour, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights.
It's true that the sanctity of human life finds a source in world religious traditions, but let us not forget that it is in the cornerstone international human rights instruments of the 20th century and in our Charter of Rights and Freedoms that the inherent right to life finds its clearest obligations on secular grounds, for Parliament and for all Canadians. So why must we design a system for physician-assisted suicide from both vantage points, not just the right to choose, but also the inherent right to life?
On Monday of this week, Flemish Radio and Television Broadcasting Organization in Belgium broadcasted a story brought to light by two sisters of a young woman who was euthanized in 2010 under the law in that country. Following the end of a romantic relationship, she was in a mental health crisis and was in treatment with a psychiatrist. Two months before her life was ended, the psychiatrist diagnosed her with autism and could then conclude that she had an irremediable medical condition and that her psychological suffering was unbearable. She was put to death. When her traumatized family later asked her physician why he had confirmed the psychiatrist's assessment, he admitted that he was not in agreement but that he had no choice, stating that he thought Tine Nys “shopped” with too many doctors.
There were two other cases reported in the medical journals. In Oregon, an 85-year-old cancer patient with worsening dementia requested physician-assisted suicide, but her psychiatrist believed she was being pressured by her family. Nevertheless, she was approved by a psychologist. In the Netherlands, a wife who no longer wished or was not able to care for her sick elderly husband gave him a choice between euthanasia or admission to a nursing home. Afraid of being left to the mercy of strangers in an unfamiliar place, he chose euthanasia, and his doctor ended his life.
When the Carter case was first heard at the B.C. Supreme Court, Justice Smith knew enough of such cases to very carefully examine the extensive evidence before her about the types of safeguards that could be put in place, given the obligation to protect the right to life of vulnerable persons. She concluded her analysis with the following list: mandatory psychiatric evaluation to ensure capacity for informed consent; disqualification of major depressive disorder; minimum waiting period; a second independent physician with expertise about the condition; required palliative care consultation; an advance expert review panel that must issue a decision in 48 hours; and a patient right to appeal the review panel's decision.
It was the legal counsel for the plaintiffs in Carter who presented this list to the court—the plaintiffs including Gloria Taylor and the British Columbia Civil Liberties Association—as their recommendations for effective safeguards that could justify exceptions to the Criminal Code prohibition.
Immediately following the presentation of that list, in her decision, the trial judge stated her conclusion, which was also quoted by the Supreme Court to justify its own decision:
...the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.
We stand 100% behind the recommendations of the plaintiffs, which we think can be best summarized into six core pillars of a statutory safeguard system to be embedded in the Criminal Code.
One, only adults can access. We strongly urge that mature minors not be eligible. We don't deny the suffering of children and adolescents, but we believe that palliative care is the answer in those situations. This is a decision that children and adolescents and their families should not have to make. If you have to be majority age to vote in this country, surely this is a limit that we can impose.
The second is to define “grievous and irremediable medical condition” as terminal end-of-life conditions. We urge the committee to be guided in large part by the Quebec legislation, with emphasis on incurable serious illness, and advanced state of irreversible decline in capability, and also look to the specific definitions that have been proposed in the David Baker and Gilbert Sharpe draft bill, which has been submitted to this committee, and also to the clarifications that David Baker sent by letter to this committee yesterday. If instead Parliament were to follow the recommendations of the provincial-territorial advisory group on this matter, what happened to Tine in Belgium in 2010 would happen in Canada. Moreover, the cause of her death, by the advisory group's recommendations, would be registered on her death certificate as autism. Autism would show up as a killer in Canada's vital statistics, as would Down's syndrome, bipolar disorder, cerebral palsy, and many other conditions, which it's true are serious or very serious, which is the definition proposed for defining what “grievous and irremediable” should mean, by the provincial-territorial advisory group. They turned to the Oxford dictionary for that definition. We think Parliament can and must do much better than that.
The third speaks to enduring and intolerable suffering in the circumstances—and I underline “in the circumstances”—of the patient's condition. This is a key criterion that Carter specifies: one's suffering and circumstances cannot be anticipated in advance. This criterion makes clear that advance directives should not be—we believe cannot be—on the table, and we urge Parliament to make that explicit in the Criminal Code. Capacity to consent must be a criterion right up to the moment of taking a lethal dose.
The fourth concerns review by two physicians to determine if the criteria are met—independent physicians—at least one with expertise about the condition, and the requirement that they engage other professionals as might be needed for diagnosis, prognosis, and exploration of all the causes of the person's suffering, which is the job we rely upon and vest our trust in physicians to do.
The fifth is about mandatory vulnerability assessment. This must be undertaken in response to each request, to determine if the factors that could induce the patient to commit suicide in a time of weakness are in fact motivating the request. We've outlined this in more detail in our brief to you and also in a background paper on vulnerability assessment.
The six and final point concerns an independent advance review panel to consider the request and reports on capacity and other criteria, including vulnerability, from any physicians involved. Proposals for such a panel have been presented to this committee by David Baker and Gilbert Sharpe, and also yesterday by the Canadian Council of Imams. There's also strong support among Canadians for this safeguard. In an online survey of almost 13,000 Canadians, 53% supported this mechanism, and 54% in a poll released last week by the Canadian Association of Retired Persons.
It's also important to note that the treaty body monitoring the International Covenant on Civil and Political Rights, which Canada ratified in 1976, has repeatedly called for implementation of an advance independent review mechanism for physician-assisted suicide, because of evidence like Tine's, to ensure that states parties fulfill their obligations to protect the inherent right to life under article 6 of covenant.
Having such a panel in place would prevent doctor shopping, guard against vulnerable persons being induced to commit suicide, and—critically important, we believe—ensure physicians do not have to play two irreconcilable and, we believe, conflicting roles: on the one hand doing everything possible to assess and remediate medical conditions and patient suffering, and then on the other approving interventions intended to bring about the death of their patients.
Thank you for the opportunity to present before the committee this evening.
Thank you, honourable senators and members of Parliament.
Twenty-one years ago, in 1995, I was before a similar Senate committee on the same issue. It is a pleasure to be back with you again to talk about this important issue. I was counsel at trial and at appeal and in the Supreme Court in the Carter case, and I've spoken on this subject in Canada at our universities and Canadian bar associations.
I will go right to my most important point, Mr. Chair, and that is that if you carefully implement the exact words of Carter, you will not likely go wrong. I believe that Chief Justice Heather Smith did this, and the court's list of requirements that were published today means that my most important recommendation is there should be no assisted death unless a judge has confirmed that all the requirements of Carter have been met.
In my presentation I will go into the reason I strongly recommend judicial review in advance. I recommend that for all provinces, including Quebec. That would not be inconsistent with the Quebec legislation. With the Quebec legislation, you would have to comply with both the federal and the Quebec legislation.
I will address each of the questions that this committee sent us.
First, on age, I agree with the previous presenter that the age of 18 is the appropriate limit on access to assistance in suicide. The decision of the Supreme Court of Canada in A.C. v. Manitoba in 2009 requires Parliament to act in the best interests of children and to create a presumption that children are not competent to make life-and-death decisions, and that means anyone under the age of 18.
Second, on the question of capacity, the capacity limitations identified in Carter v. Canada are critical to protect the vulnerable. No one suffering from a mental disability that impacts capacity should have access to suicide assistance. The decision of the Supreme Court in Eve reaffirms and reinforces that principle. It prohibits consent to death on behalf of a person who is incompetent to give consent. This includes the immature, the mentally disabled, and those who have lost the ability to make competent decisions for any reason. This also means there could be no advance directives on the subject of physician-assisted suicide without conflicting with the decision of the Supreme Court of Canada in Eve.
Third, going on to conditions, all the conditions expressly identified in Carter v. Canada must be reiterated in the legislation adopted by Canada. The failure to include conditions will create unnecessary risk of abuse and will create an impression that government supports suicide. This is not a message that should be given at this time, particularly in Alberta, where the suicide rate in some first nation communities is 100 times the national average.
The fourth question was on vulnerable Canadians. The Supreme Court of Canada, in Carter, carefully balanced the right to life of those in unremitting pain with the right to life of the vulnerable who need protection from abuse under the Criminal Code. The court observed that the models in other jurisdictions were not impressive and that Canada must and could do better. The right to life in section 7 of the charter requires Parliament to take into account both perspectives on life. This issue is addressed by the European Court of Human Rights in the case of Haas v. Switzerland from 2011. In that case, the European Court of Human Rights recognized the dual responsibility of Parliament or of government, and that is you must both protect life as well as allowing individuals to make choices at the end of life.
Going on to the mechanics of the request, the legislation from Parliament should prohibit a physician or any person from raising the subject of suicide with an individual. The individual must raise the question before the subject may be addressed by a physician. There are numerous stories, and I won't take your time this evening to go through them, of psychological stress and abuse caused by government or medical staff raising the idea of suicide with the ill or the elderly. This abuse must be prohibited and prevented. Until the idea of suicide is voluntarily addressed first by the patient, the medical team must be restricted to offering only palliative care.
There is another reason to require that the individual raise the issue. We in Alberta know the unfortunate history of sterilization from 1929 to 1972, when health care providers used their power to abuse their patients and sterilize almost 5,000 patients against their will. Those patients were regularly noted on their chart as having consented to the process. This supports the idea of having judicial review, but it also supports the idea that hospital administrators wanting to save money or physicians wanting to raise the subject with their patients will be prevented from doing so.
Even the Canadian hero Nellie McClung got caught up in the evils of eugenics from 1929 on. In “Sterilizing the 'Feeble-minded': Eugenics in Alberta”, Grekul, Krahn, and Odynak highlight and give us a sobering reminder that all progress is not necessarily desirable. Sometimes progress takes us down a road we would not take if we knew what was at the end. Once a request is made, then all of the health status requirements of Carter v. Canada must be met and respected by the attending physician.
With regard to oversight and the question of judicial oversight, after consent has been validated, the physician should have a duty to apply to a judge for approval of death before death occurs. The physician should be required to seek the opinion of a second physician, and both should be required to swear affidavits that they are satisfied that the conditions of the law have been met. The physician should be required to serve copies of the application and affidavits upon the next of kin.
This is the minimum required when an application is made under provincial adult guardianship and trusteeship legislation in Alberta and in other jurisdictions in Canada. Surely death is more significant and more permanent than decisions regarding finances and housing. If the loss of financial control requires judicial oversight, surely loss of life deserves no less.
Courts are experienced in making decisions regarding these questions, based upon the evidence of physicians. The issue of religious objection to blood transfusions is just one area where the courts have been called upon to make such life-and-death decisions. The courts have been able to make those decisions on an emergency basis with a minimum of risk to the individual and a minimum of delay. Making these decisions is today a regular occurrence across Canada, and the initiative of Chief Justice Smith of the Ontario Superior Court today is further evidence that the courts are prepared and able to handle this responsibility.
Some have advocated leaving the entire responsibility to the physician and excluding judicial oversight. The Supreme Court of Canada has already addressed this issue and determined that there is no right to have life-and-death decisions made in secret.
In Cuthbertson v. Rasouli, a 2013 decision of the Supreme Court of Canada, the Supreme Court of Canada reviewed and affirmed the judicial oversight provided under the Ontario Health Care Consent Act. Under that act, physicians must be involved, but they should not be the ultimate arbiters of life and death. Independent judicial review prior to death is best. It will avoid much suffering and prevent the expenditure of significant funds on lawyers and court costs. Estates should go to children and beneficiaries, not to lawyers fighting over whether a physician has properly secured and documented consent.
With regard to privacy considerations, courts and physicians have effectively preserved the privacy of individuals over the last few decades when issues of life and death have come before the courts. The legislation enacted by Parliament should maintain that standard of medical ethics. All applications to a court for judicial oversight should be restricted to the parties named and served under the legislation.
Next, who should do what? The physician should be given the responsibility to manage the process; however, the legislation must recognize the roles of others and authorize their participation. Health care facility owners, administrators, and employees must all be given immunity once a court order is issued. Carter v. Canada only addressed the issue of physicians. If you restrict your law to physicians, you will leave 99% of the health care providers in this country at risk.
It was just a point of clarification, perhaps.
Colleagues will recall that yesterday we had pediatric specialists here, and the suggestion was made that the provincial-territorial panel did not have access to pediatric expertise, that no witnesses were called, or that the aspect of the pediatric lens, if I can put it that way, was not available to the provincial-territorial panel.
It struck me as a little odd, and I should have twigged to it at the time, but I didn't, and I went back and looked at the makeup of the provincial-territorial panel. A person whom I know very well, and I should have twigged to that last night, is Dr. Nuala Kenny, who is a pediatrician. She is a fellow of the Royal College of Physicians and Surgeons of Canada in pediatrics. She was in pediatrics at Sick Kids Hospital in Toronto, at Queen's, and then came to Dalhousie, where I knew her and where she was the head of the department of pediatrics and chief of pediatrics at the children's hospital in Halifax. She's also a past president of the Canadian Pediatric Society.
She was not a witness before the panel, but a member of the panel. I would take it that the members of the panel felt that they had that pediatric lens in their membership, so I just wanted to make that clarification.