AMAD Committee Report

Dissenting Opinion

The Special Joint Committee on Medical Assistance in Dying

January 24, 2024

We are submitting this dissenting opinion because we believe that all levels of healthcare, including the choice of end-of-life care, should be safe and equitable for all Canadians.

This dissenting opinion addresses the mandate given to the Special Joint Committee on Medical Assistance in Dying (AMAD, October 2023), evaluating the Government of Canada criteria for MAID MD-SUMC preparedness. We are aware that different Provinces and Territories may choose to make other stipulations related to their responsibilities in the delivery of end-of-life health care in their jurisdiction. This committee was not mandated to address such possibilities. We believe that the committee did not appropriately fulfill its mandate.

Our Recommendation

That the majority report of Special Joint Committee on Medical Assistance in Dying (AMAD) not be accepted by the Government of Canada.

Introduction

The following dissenting opinion is authored by three independent senators of the total five senator members of the AMAD committee from October 2023 until December 2023. This dissenting opinion is supported by two additional independent senators who participated in some meetings. Four of these Senators are medical doctors with personal and professional expertise in medical training and the delivery of medical care.

This dissenting opinion focuses on the medical and procedural aspects of the deliberations. We are supportive of an additional dissenting report that focuses on legal and constitutional aspects.

Background

On February 15, 2023, the Special Joint Committee on Medical Assistance in Dying (AMAD) tabled its final report, which addressed numerous topics related to medical assistance in dying (MAiD) in Canada, including, but not limited to, advance requests, mature minors, and mental disorders. This report recognized that some mental disorders were irremediable and intolerable, and that persons whose sole underlying condition was a mental disorder (MD-SUMC) should not be excluded from applying for MAiD should they meet the criteria that applies to all other Canadians. It did not challenge the court decisions related to MAID MD-SUMC (including Carter, Alberta, and Truchon), and it acknowledged the Expert Panel Report on MAiD and Mental Illness and the four preparedness criteria that comprised the Federal Government’s commitment to MAiD MD-SUMC.

The federal government undertook four activities to address preparedness for MAiD MD-SUMC. These preparedness criteria are outlined in the October 20, 2022 Government Response to AMAD’s interim report, presented to the house on June 22, 2022:

• 1.      The Expert Panel Report on MAiD and Mental Illness was commissioned and issued its report on May 13, 2022.
• 2.      Monitoring and reporting on MAiD in Canada: that revised reporting regulations be developed for data collection.
• 3.      Training: that an accredited training program addressing MAiD for physicians and nurse practitioners be developed and available across Canada.
• 4.      Developmental Practice Standards: that model MAiD practice standards be developed for physician and nurse regulators across the country.

As only one of these criteria had been realized as of February 2023 (criteria one) the committee recommended that MAiD MD-SUMC be delayed for one year to allow the completion of the other three criteria.

Subsequently, Bill C-39 (passed on March 9, 2023) provided an extension period for MAiD MD-SUMC until March 17, 2024, so that the three remaining criteria could be completed.

Additionally, the February 2023 report recommended that the committee be re-established five months before the March 2024 deadline to determine if the three remaining preparedness criteria had been completed. On October 31, 2023, the committee was reconvened. It was mandated to determine the degree of preparedness attained for a safe and adequate application of MAiD MD-SUMC. The committee’s scope was circumscribed and specific: to determine if the federal government had met its obligation in completing the three remaining preparedness criteria. The committee was not mandated to revisit arguments against MAiD MD-SUMC or relitigate MAiD MD-SUMC.

The Criminal Code of Canada falls under the jurisdiction of the Federal Government, and changes to the Code have decriminalized the application of MAiD in regulated health care settings in Canada. Health care provision is primarily a provincial and territorial jurisdiction, and as such, provinces and territories are responsible for implementation and delivery of health services, including end of life care. This includes the application of MAiD-related health system regulation and care delivery standards. This has been demonstrated in the province of Quebec where the government has brought forward legislation in relation to MAiD provision.

The committee failed to address its mandate.

• 1.      The committee did not properly evaluate whether the three remaining Government of Canada defined preparedness criteria had been completed:  
• • a.      It only held three meetings to hear from witnesses regarding the achievement of the preparedness criteria and in those hearings heard from witnesses that had no knowledge about completion of these preparedness criteria.
  • b.      It did not invite medical regulators and MAiD providers from all provinces and territories to speak about health system preparedness in terms of the preparedness criteria.
  • c.       It invited 23 individuals[1] who represented themselves or organizations.
• • i.      Of the 21 witnesses that spoke during committee meetings, 15 had extensive knowledge of the preparedness criteria and preparedness activities.
  • ii.      Of the 21 witnesses that spoke during committee meetings, five did not have extensive knowledge of preparedness activities, and were not involved in any preparedness activities.
  • d.      The committee heard from five witnesses that used previous arguments against MAiD track two, and MAiD MD-SUMC in general—not on the mandated topic of realization of the preparedness criteria.
• 2.      The majority report recommended “that the medical system in Canada is not prepared for MAiD where mental disorder is the sole underlying medical condition… based on recommendations from their respective departments and in consultation with their respective provincial and territorial counterparts and with Indigenous peoples” but this recommendation could not be made based on the evidence it heard. Such a recommendation should be invalid, because:
• • a.      The committee did not study “Canada’s medical system.”
  • b.      The committee did not hear from all provincial and/or territorial regulators or MAiD providers.
  • c.       The committee did not hear from Indigenous peoples.

The majority report made errors in weighing evidence.

The committee heard testimony from 21 individuals and organizations who spoke as witnesses over the course of three meetings. The committee heard from 15 witnesses who had fulsome knowledge of the completion of the preparedness criteria and each witness testified that all the preparedness criteria had been met. However, the majority report disregarded this testimony and instead chose to prioritize the testimony of five witnesses who either opposed MAiD MD-SUMC or had little or no knowledge of the preparedness criteria. Therefore, the majority report chose to ignore the most pertinent and compelling evidence regarding the federal government’s own criteria for preparedness. 

Witnesses	Asserted Preparedness Criteria Completed	Said Canada wasn’t ready
Canadian Psychiatric Association (Dr. Alison Freeland)
Canadian Bar Association (Shelley Birenbaum)
Dr. Mona Gupta
Association des médecins psychiatres du Québec (Dr. Claire Gamache)
Federation of Medical Regulatory Authorities of Canada (Dr. Douglas Grant)
Dr. Jocelyn Downie
Trudo Lemmens
Dr. Stefanie Green
Dr. Pierre Gagnon
Department of Justice (Myriam Wills)
Department of Health (Jocelyne Voisin) (+ 2 other witnesses who did not speak)
University of Manitoba (Dr. Jitender Sareen)
Nova Scotia Health (Dr. Gordon Gubitz)
The Canadian Association of MAiD Assessors and Providers (Julie Campbell, NP)
H. Archibald Kaiser
Dr. K. Sonu Gaind
Canadian Psychological Association (Dr. Eleanor Gittens and Dr. Sam Mikail)
Centre for Addiction and Mental Health (Dr. Tarek Rajji)[2]	*	*
Collège des médecins du Québec (Dr. André Luyet and Dr. Mauril Gaudreault)

For example, Dr. Mona Gupta chaired the Expert Panel on MAiD and Mental Illness, was involved in provincial MAiD MD-SUMC protocol development, the development of the Model MAiD practice standards, and the development of the accredited national training program by CAMAP. She asserted that “the activities to allow the safe and adequate assessment and provision of MAiD MD-SUMC, within federal jurisdiction, have been underway for almost three years and are now complete.”

Dr. Jocelyn Downie, who was involved in the development of Model MAiD practice standards and the CAMAP training program, told the committee that “robust statutory, monitoring, regulatory, and clinical preparedness has been demonstrated” and reminded members that political preparedness is not a justification for limiting the charter rights of those intolerably suffering from a mental disorder.

Nurse Practitioner Julie Campbell, who represented CAMAP, indicated that “all of the federal government’s activities indicative of readiness for MAiD MD-SUMC have been completed.”

Dr. Douglas Grant, the registrar of the college of physicians in Nova Scotia who represented the Federation of Medical Regulatory Authorities of Canada, said “all readiness must be built on regulatory readiness” and affirmed that “regulators are ready for this. We don’t need any more time…we have a solemn and legal duty to be ready.”

Dr. Stefanie Green, an experienced MAiD provider and founding president of CAMAP, assured the committee that “very clearly, there is a high degree of preparedness…there is readiness at the federal level, there are provincial, territorial and regional initiatives that have occurred and continue, and there is preparedness of the medical and nursing regulatory bodies as well as professional associations.”

These are only some examples of testimony that affirmed the completion of the four readiness criteria required to demonstrate preparedness.

Of the remaining five witnesses who spoke against preparedness, none represented regulatory bodies, provincial/territorial health care systems or the accrediting authorities responsible for health care standards, nor were they involved in the development of any of the preparedness components.

The committee denied Canadians’ right to contribute to its deliberations

In parliamentary committees, briefs submitted by members of the public are important pieces of evidence that must be considered by the committee. In AMAD’s past session in 2022, the committee received hundreds of briefs which were considered as testimony and referenced in the committee’s report.

The committee asked Canadians to submit briefs pertinent and relevant to the mandate of the committee, and assured them that they would be welcomed, accepted, and considered. The committee received hundreds of submissions, not all of which were briefs addressing its mandate. We are aware of some briefs that were submitted to the committee before the noted due date, by leading provincial and territorial experts that spoke directly to provincial health system readiness. However, the committee chose to not use these briefs, and the majority report wrongly dismisses them.

The committee did not call witnesses from each province and territory to discuss MAiD MD-SUMC readiness in their jurisdiction, and therefore, can make no comments about health system readiness across Canada. Briefs from provincial and territorial regulators and MAiD providers would have been essential to getting the information needed to consider readiness in provincial and territorial jurisdictions. A number of briefs that were not considered by the committee clearly noted that readiness for MAID MDSUMC had already been reached in a number of provinces, some four months prior to the legislated date.

Essential evidence of preparedness was not considered, as members of the committee chose to use only witness testimony during committee meetings as evidence in the final report. Yet, the majority report did not consider pertinent testimony available in briefs related to preparedness that some members of the committee read into the evidence during public hearings and witness testimony. The evidence found in the briefs clearly contradicts the majority report’s recommendation.

Discrediting Canada’s medical education accreditation process

All medical training is accredited under the authority of the Royal College of Physicians and Surgeons (RCPS) and the College of Family Physicians and Surgeons of Canada (CFPSC). A MAiD training program was developed by the Canadian Association of MAiD Assessors and Providers (CAMAP) and accredited by the CFPSC and the RCPS. Individual clinicians may hold opinions about any medical training program, but it is the authority and responsibility of the accrediting bodies to determine if training has met national standards, not the opinion of any clinician.

One witness testified against the accredited MAID training program and may have misled the committee about the quality, nature, and content of the accredited training program and stated negative personal opinions about it. The committee report then chose to discredit the professionally accredited program based on one witness’s personal opinion. This will have a profound and negative consequence for how medical education is developed, accredited, and delivered in Canada.

Additional considerations

It is also worth noting three other major themes which were present in many of the committee’s public deliberations. First, the issue of consensus was repeatedly used as an argument against MAiD MD-SUMC. However, in medicine, there is no requirement for consensus, and there no consensus within the medical profession on medical assistance in dying in general. Therefore, the committee report, in its demand of consensus in MAiD MD-SUMC, is setting a standard that is discriminatory for people with a mental disorder.

Second, the majority report contains a section titled ‘ongoing concerns.’ This section was not relevant to the very specific mandate of the committee—to determine if preparedness criteria had been met—and instead attempted to relitigate and rehash track two MAiD and MAiD MD-SUMC discussions that had been addressed in previous committee reports. This illustrated the committees repeated failure to address its own mandate and is contrary to the final report tabled on February 15, 2023.

Finally, prejudice and stigma against people with mental disorders has been reinforced by this committee’s majority report and as a result of this flawed process, Canadians will continue to be deprived of their Charter rights regarding end-of-life care. The paternalistic view that all competent people with mental disorders are unable to make informed decisions about their medical care is archaic, not aligned with reality, and condescending. Any person who is deemed capable and meets the eligibility criteria for MAiD MD-SUMC should not be excluded from the care that is offered to all other Canadians. However, this determination was not the mandate of this committee—assessing preparedness was—and experts have indeed confirmed that the preparedness criteria established by the federal government have been achieved. Thus, from the perspective of criminal law of Canada, Canadians should no longer be excluded from decisions regarding MAID as an end-of-life choice. Our concern lies in the fact that individuals enduring profound suffering without seeing an end to their distress, as well as those who have been victims of discrimination due to the type of illness they have, are now facing additional discrimination in how they wish to die.

Conclusion

The committee failed to do its work objectively and in an unbiased manner, it did not address its mandate, and its majority report recommendation is thus invalid. It failed to:

• Properly evaluate if the federal government’s preparedness criteria had been achieved.
• Allow enough time to hear from knowledgeable witnesses regarding the achievement of the preparedness criteria.
• Invite medical regulators and MAiD providers from all provinces and territories to speak about health system preparedness in provincial and territorial jurisdictions.
• Weigh evidence properly. It chose to prioritize testimony from witnesses who were not themselves involved in preparedness activities.
• The committee heard from many witnesses that simply argued against MAiD track two, and MAiD MD-SUMC in general and did not speak on the mandated topic of preparedness.
• The majority report endorsed testimony from one witness who created their own criteria of preparedness not supported by any other witness testimony and not identified by the federal government as part of its preparedness criteria.
• Unfortunately, the majority report accepted the negative, biased, and subjective testimony of a single individual regarding the accredited MAiD training program over the many witnesses who objectively and positively testified to the preparedness, quality and availability of the accredited MAiD training program.
• The majority report did not consider essential evidence made available in briefs related to provincial preparedness.
• Contrary to accepted process, the majority report did not utilize briefs addressing its mandate in its deliberations that had been submitted in good faith within the deadline for their acceptance.

When MAiD was first made available in Canada, there was no discussion of ‘preparedness.’ Physicians, health systems administrators and regulators worked quickly and effectively to learn the necessary procedures, create standards of care, and establish clinical pathways.  Nor was there any medical practitioner consensus that MAiD should be provided. The demand for preparedness for MAiD MD-SUMC stands in sharp contrast to that historical reality and can perhaps be best understood as discrimination and stigma against those who live with and suffer from a mental disorder.

Therefore, we recommend, to ensure equitable and safe access to healthcare for all Canadians, that this report of Special Joint Committee on Medical Assistance in Dying (AMAD) not be accepted by the federal government.

Furthermore, should the Government of Canada seek extension of the exclusion of persons whose sole underlying condition is a mental disorder from accessing MAiD, it should do so concurrently with a referral to the Supreme Court of Canada.

GLOSSARY:

AMAD: The acronym for the Special Joint Committee on Medical Assistance in Dying

MAiD MD-SUMC: Medical assistance in dying for persons whose sole underlying condition is a mental disorder.

TRACK ONE: a track one MAiD request is a request from a person whose death is reasonably foreseeable and meets all the other eligibility criteria.

TRACK TWO: a track two MAiD request is a request from a person whose death is not reasonably foreseeable but meets all the other eligibility criteria.

A grevious and irremediable medical condition: According to the health law institute at Dalhousie University, this is a serious and incurable illness, disease or disability that leaves a person in an advanced state of irreversible decline in capability. The illness, disease, or disability or that state of decline causes enduring physical or psychological suffering that is intolerable and that cannot be relieved under conditions that the person consider acceptable

PREPAREDNESS ACTIVITIES: The four activities that the federal government undertook to ensure preparedness under federal jurisdictions.

• 1.      The Expert Panel Report on MAiD and Mental Illness was commissioned.
• 2.      Monitoring and reporting on MAiD in Canada: that revised reporting regulations be developed for data collection.
• 3.      Training: that an accredited training program addressing MAiD for physicians and nurse practitioners be developed and available across Canada.
• 4.      Developmental Practice Standards: that model MAiD practice standards be developed for physician and nurse regulators across the country.

CAMAP: The Canadian Association of MAiD Assessors and Providers

RCPS: The Royal College of Physicians and Surgeons

CFPSC: The College of Family Physicians and Surgeons of Canada

Respectfully submitted,

The Honourable Stan Kutcher, Senator

Nova Scotia

The Honourable Marie-Françoise Mégie, Senator

Quebec

The Honourable Pamela Wallin, Senator

Saskatchewan

With support from

The Honourable Flordeliz (Gigi) Osler

Manitoba

The Honourable Mohamed-Iqbal Ravalia

Newfoundland and Labrador