1 EVIDENCE Standing Committee on Justice and Human Rights NUMBER 013 1st SESSION 42nd PARLIAMENT Wednesday, May 4, 2016 Le mercredi 4 mai 2016 Standing Committee on Justice and Human Rights CANADA [Recorded by Electronic Apparatus] EVIDENCE May 4, 2016 Committee Edited Evidence * Table of Contents * Number 013 (Official Version) Official Report * Table of Contents * Number 013 (Official Version) Témoignages * Table des matières * Numéro 013 (Version officielle) 13 04 05 2016 2016/05/04 16:00:00 House of Commons Comité permanent de la justice et des droits de la personne Standing Committee on Justice and Human Rights JUST Chair Mr.

Anthony Housefather 42 1 (1600) [ English ] The Chair (Mr. Anthony Housefather (Mount Royal, Lib.)) : Ladies and gentlemen, it gives me great pleasure to welcome all of our witnesses to the Standing Committee on Justice and Human Rights. I want to let you know in advance, that as a result of votes in the House of Commons, we may need to suspend the meeting and have all the members go vote in the middle of testimony. You will not lose any time. We will suspend and come back. Our panels today will probably drag later and run late as a result. We're very sorry. It's just the way things ended up.

Again, we very much appreciate you all being here. We have Dr. Catherine Ferrier, president of the Physicians’ Alliance against Euthanasia; Mr. Michel Racicot, from Living With Dignity; Wanda Morris, from the Canadian Association of Retired Persons; and from the Canadian Medical Association, Dr. Cindy Forbes, president, and Jeff Blackmer, vice-president, medical professionalism. Each of you has eight minutes. We'd ask you to stick to the bill itself and propose amendments to the bill. We don't want to replicate the work of the special committee. We will start with the Canadian Medical Association, Dr.

Forbes, the floor is yours. Before we start, I need the unanimous consent of the committee to continue to proceed while the bells are ringing. Do I have unanimous consent to proceed while the bells are ringing? Some hon. members: Agreed. The Chair: Thank you. We will suspend to vote. The clerk will let us know when we have to go vote. Dr. Cindy Forbes (President, Canadian Medical Association) : Thank you, Mr. Chair. As you mentioned, I'm Dr. Cindy Forbes, president of the Canadian Medical Association. I'm also a family physician from Nova Scotia. I'm joined today by Dr.

Jeff Blackmer, vice-president of medical professionalism. Dr. Blackmer has led the CMA's work on medical assistance in dying. As the national organization representing over 83,000 Canadian physicians, the CMA has played an instrumental role in the public dialogue on what should be the framework to govern assisted dying. Let me recap our role. It was the CMA's position that making medical assistance in dying legal was for society to decide. We did not take a position on that question.

Following the Supreme Court's landmark decision last year, the CMA has focused its considerable efforts, consulting with physicians and the public on what the framework should be. In the course of our work, CMA has consulted directly with tens of thousands of members. Our position and remarks today are informed by these extensive consultations. Today, we are here on behalf of Canada's doctors to convey one overarching message: the CMA recommends that parliamentarians support the enactment of Bill C-14 as proposed and without amendment.

As the national professional association representing Canada's physicians, the CMA has played an important role in leading the public dialogue on end-of-life care. This in-depth consultation was instrumental to the development of the CMA's “Principles-based Recommendations for a Canadian Approach to Assisted Dying”. The CMA's core recommendations address four areas: patient eligibility, procedural safeguards, the roles and responsibilities of physicians, and ensuring effective patient access.

The CMA's recommendations on these issues form our position on the overall framework to govern medical assistance in dying in Canada. Before turning the floor over to my colleague, Dr. Blackmer, who will review CMA's response on the core elements of the legislation, I will provide our response on the overall approach. Put simply, the CMA strongly supports the government's overall response to the Carter decision. This includes legislative and non-legislative measures.

Of particular importance are the commitments to develop a pan-Canadian end-of-life care coordinating system and to support the full range of end-of-life care options, including expanding palliative care. Finally, the CMA recognizes that there's been significant public discussion regarding the approach for the “Carter plus” issues. These include eligibility for mature minors, advance care directives, and mental health as a sole condition.

The CMA supports the approach proposed by the federal government not to include these issues in Bill C-14 and to study them in greater detail prior to advancing legislative proposals. This approach aligns with the approach taken by other jurisdictions, for example, Belgium. I'll now turn the microphone over to my colleague, Dr. Blackmer.

(1605) Dr. Jeff Blackmer (Vice-President, Medical Professionalism, Canadian Medical Association) : Thank you, Dr. Forbes, and committee members. As mentioned, I will speak to the CMA's response on the core elements of this legislation. We certainly welcome questions from the committee today and at any time over the course of your important study. First, the CMA's position is that the safeguards proposed in Bill C-14 are robust and are aligned with our recommendations.

These safeguards include considerations such as patient eligibility criteria, process requirements to request medical assistance in dying, as well as monitoring and reporting requirements. Second, the CMA supports the legislative objective to recognize that a consistent framework for medical assistance in dying across Canada is extremely desirable. In addition to these robust safeguards, the enactment of

definitions for medical assistance in dying, as well as what constitutes a grievous and irremediable medical condition in federal legislation, is essential to the achievement of a consistent, pan-Canadian framework. Our principles-based recommendations reflect on the subjective nature of what constitutes enduring and intolerable suffering, as well as a grievous and irremediable condition, as well as the physician's role in helping make an eligibility determination.

We also support the objective to support the provision of a full range of options for end-of-life care and to respect always the personal convictions of health care providers. To this end, we encourage the federal government to very rapidly advance its commitment to develop a pan-Canadian end-of-life coordinating system. Ideally, this should be in place by June 6. The CMA is aware that one jurisdiction has made such a system available to support connecting patients who qualify for assisted dying with willing providers.

Until this system is available across the country, there may be a disparity of support for patients and practitioners from province to province. Finally, it is our position that Bill C-14 , to the extent constitutionally possible, must respect the personal convictions of health care providers by protecting the rights of those who do not wish to participate in assisted dying or to directly refer a patient to someone who does wish to participate. We would be very pleased to speak further on this critical issue, one that is also essential for a consistent pan-Canadian framework. Thank you for your attention.

The Chair : Thank you very much to the CMA. We appreciate the intervention very much. [ Translation ] We now move on to Mr. Racicot. [ English ] Mr. Michel Racicot (Vice-President, Living With Dignity) : Thank you, Mr. Chairman. As you know, I'm a lawyer with over 40 years' experience in computer and telecom law, so you might be wondering what I'm doing here. I'm here because I've assisted many terminally ill persons, beginning with my wife, who died of cancer at age 37 in 1985 after we had adopted three children.

I am here also because I've seen, on a daily basis and sometimes for several weeks and years, the day-to-day reality of palliative care workers attending to the needs of patients in their last weeks, days, and sometimes hours of life. I'm also vice-president of Living with Dignity/Vivre dans la Dignité, an organization representing over 5,000 citizens who are concerned about the future of our health care system and indeed about our nation.

Governments in this country take great strides with public media campaigns to try to prevent suicide—suicide of young people, of aboriginals, of Inuit—and unfortunately politicians make the headlines when a wave of suicides hits a reserve. But now we're about to authorize doctors to take their patients' lives or to help those patients commit suicide. Are we are no longer going to send emergency squads to try to persuade a person not to jump from a bridge, or are we going to send doctors to push them to their death? This is a dire reality that we are now facing.

Many have claimed that medical aid in dying is now a new charter right. Carter did not create a new constitutional right to death; the court only concluded that the prohibitions of the Criminal Code infringe on the existing rights to life, liberty, and security as guaranteed by the charter. Since the charter is part of our Constitution, the creation of a new charter right to death would have required the Constitution to be amended, which requires the involvement of Parliament and of all the provincial legislatures.

This could not have been done by the Supreme Court, and the court did not create a new charter right to death, only an exemption from criminal law. Before turning to the amendments, let me try to set our perception of what the power of Parliament is. Many have claimed that Parliament is bound to adopt a law within the confines set forth in Carter. Parliament is not held captive by the Supreme Court decision. It need not adopt a law that fits within the parameters set forth in Carter.

Carter is based on the premise that the prohibition on assisted suicide and euthanasia is intended to protect only vulnerable people, not to protect all Canadians. Parliament now has the power to set the record straight and to confirm in no uncertain terms in a new bill that the prohibition against assisted suicide and euthanasia is indeed to protect all Canadians. It also has the power to re-enact those prohibitions, despite the Supreme Court decision.

As the Supreme Court itself recognized, between 1991 and 2010 this House and its committees debated no less than six private members' bills that were seeking to decriminalize assisted suicide, and none was passed. I'm calling on you. Should you ignore completely the wisdom of the hundreds of members of the House of Commons who decided not to decriminalize assisted suicide in the past? Or, should you not remind your colleagues that indeed your predecessors acted responsibly and with wisdom in rejecting this approach?

You have the power and you have the responsibility to make history for our population, our children, our grandchildren, and their descendants. Re-enacting the provisions struck in part by Carter requires political courage. It also requires all members of Parliament to be able to exercise their right to freedom of conscience protected by the charter and without being forced to vote according to a party line. This is our call to action. Of course, if this Parliament does not re-enact these prohibitions, it can still set safeguards.

Contrary to what CMA has said, our experience teaches us that these safeguards may not be sufficient to help protect all Canadians. This House has the power to prescribe, as it is said in the charter, “such reasonable limits...as can be demonstrably justified in a free and democratic society”. These limits can be more stringent that those specified in Carter.

(1610) The court recognized itself in Carter: Parliament must be given the opportunity to craft an appropriate remedy. [....] ...issuing [a constitutional] exemption would create uncertainty, undermine the rule of law, and usurp Parliament’s role. Complex regulatory regimes are better created by Parliament than by the courts. Let me now turn to certain amendments we're proposing.

In the order that the Supreme Court made last January 15, to prolong the extension of the suspension of their decision, the court said the persons who wanted to avail themselves of medical assistance in dying, as permitted in Carter, could apply to the superior court of their jurisdiction. And the court even said: Requiring judicial authorization during [the] interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people.

We think that this reasoning is not only valid until June 6, but this process should continue beyond June 6, when Bill C-14 comes into effect. Abuses and errors are possible. We know medical errors exist, and as it concerns medical assistance in dying, an abuse or an error will be fatal. We therefore submit that Bill C-14 be amended to provide that medical assistance in dying can only be obtained with the prior authorization of a superior court. Turning to transparency in data collection and reporting, Quebec has been now experiencing euthanasia for over four months.

Several aspects have now become clearer, some of which are frankly very troubling. One of them concerns the transparency and data collection and the reporting. Under practice guidelines issued by our Collège des médecins du Québec, a physician filling out the certificate of death, prescribed under the Public Health Act of Quebec, must enter the disease or morbid condition that warranted medical aid in dying and led to death as the immediate cause of death. This is not the manner of death—cardiac arrest—but the disease, injury, or complication that caused death.

The college goes on by stating that the term “medical aid in dying” should not appear on the certificate of death. Indeed, if this information were disclosed to family members who had not been informed, it could on one hand go against a patient's wishes to keep the information confidential, and on the other hand cause them harm. Well, this guideline is forcing doctors to falsify the cause of death in a public document, and this is contrary to the applicable regulation that specified that the physician must indicate the cause of death in the most precise manner possible.

Thus, if a doctor follows the guideline of the Quebec Collège des médecins, he might be prosecuted and be subject to a penal offence. To address this risk, Bill C-14 , proposes to add to the Criminal Code the offence of committing forgery in relation to a request for medical assistance in dying. However, the term “forgery” is not defined, and we have to look at

section 366 of the Criminal Code for its definition. In light of the Quebec experience, and of the need to monitor compliance with all required conditions to provide medical assistance in dying in the future, we strongly recommend that proposed subsection 241.4(1) be modified to include the offence of making any false declaration, by any means, to the effect that the cause of death was not medical assistance in dying, but was the underlying medical condition that justified a recourse to it. Lastly, I'd like to talk briefly about the danger of good faith defences.

Bill C-14 proposes that any person who has reasonable but mistaken belief about any fact that is an element of the exemption for medical assistance in dying should nevertheless be able to invoke the exemption from the crime of culpable homicide or the crime of assisted suicide. Although these provisions are well intended, they do not unfortunately pass any serious examination in light of the experience that abuse of the elderly and sick persons is rampant in our society, as Dr. Ferrier, and other physicians dealing on a daily basis with these types of patients can attest. This is inviting a floodgate of abuse.

(1615) For such reasons, we recommend that these provisions of good faith defences be struck from Bill C-14 . I thank you for your attention. [ Translation ] The Chair : Thank you, Mr. Racicot. It's truly a pleasure to see you again. [ English ] Unfortunately, right now, given the proximity to the vote—we're about 10 minutes away—we're going to have to suspend. We will come back to hear the other two witnesses and move to questions. We very much apologize for the delay. The meeting is suspended. We will come back as soon as we can. Thank you for your patience. (1615)

(1645) The Chair : Ladies and gentlemen, we're going to resume. Again, I apologize. I understand you have made an incredible effort to come here, and I feel bad that we suspended like that. I appreciate your patience on this. Next up we have the Canadian Association of Retired Persons, represented by Ms. Morris. Ms. Wanda Morris (Chief Operating Officer, Vice-President of Advocacy, Canadian Association of Retired Persons) : Thank you. My name is Wanda Morris, and I am the vice-president of advocacy of the Canadian Association of Retired Persons.

We are a not-for-profit, non-partisan organization representing 300,000 seniors in 60 chapters across the country. The average age of our members, according to our polling data, is 71 years. Our members are deeply disappointed in the restrictions in this bill, and as an organization we have been advised that the bill is not only failing to be constitutionally compliant but is also legally and medically unworkable. CARP has a long history of involvement in the issue of assisted dying. These words were taken from a

summary of our 2014 poll: “The vast majority of CARP members approve of legalizing assisted dying, and they have for years, no matter how the question is asked. Agreement is increasing in recent years, as well.” The earliest poll that I have a record of goes back to 2010, where 71% of our members supported assisted dying for patients at the end of their lives. There were no polling questions about patients in other conditions.

The 2014 poll that I alluded to asked our members about their support under other conditions: 81% supported the Quebec bill, and that was before the bill was amended to specifically refer to patients at the end of life; and 82% supported the provisions of Steven Fletcher's private member's bill, which clearly noted that individuals with a degenerative condition would also qualify. In our most recent poll, taken this year, 80% approved of the recommendations of the special joint committee, that individuals with a grievous and irremediable illness should be given assistance to die.

There was no qualification about death being reasonably foreseeable. Something I hear about very often from our members is the fear of living for decades with dementia. This is also a personal issue for me. My father-in-law died of dementia. In fact, both of my in-laws did, but my father-in-law's death was particularly difficult. He was in England, and as many people do with that disease, he became aggressive at the end of his life. To deal with that aggression, he was strapped into a wheelchair, immobilized, and that is how he spent the last weeks of his life.

In Canada, we don't tend to physically restrain people with dementia, but any study of long-term care facilities and drug use will tell you that we use chemical restraints profusely. My first exposure to dealing with dementia was as an auditor. Decades ago, I audited a series of long-term care facilities, where many of the patients were deeply, deeply ill, often with dementia. It was that experience that taught me that there are indeed fates worse than death. You can imagine my delight, and the delight of our members, with the Supreme Court decision.

I remember hugging my husband and thinking that, at last, we didn't have to worry about having an out when the worst came to the worst . Even if it meant we had to go early, at least we still had a choice. Then, when the special joint committee made its recommendations, and they recommended that there be a provision for advance consent, I remember crying and thinking that, not only did I have a choice about being able to go, but I didn't have to lose those days where, perhaps, I'd no longer be competent to make a medical decision to end my life. I would still have quality of life.

You can imagine how bereft I was when this bill came in, which restricted all remedies for people with dementia. I feel we've gone back to that cruel choice that the Supreme Court noted when it said that individuals who are grievously and irremediably ill must either take their lives early, often by violent means, or wait far too long and suffer unbearably. As a resident of British Columbia, I've seen this situation happen first-hand. Margot Bentley was a dementia nurse in her younger years and she knew what dementia had in store.

That's why she told her family and wrote down that, if she ever had dementia, she didn't want to live through it. In fact, she specifically wrote that she wanted to be euthanized.

(1650) Now she's in a care facility in stage 7—the final stage of dementia—unable to communicate and unaware of her surroundings, but still being spoon-fed against the wishes of her family. It was perhaps to avoid that situation that another B.C. woman, Dr. Gillian Bennett, ended her life. As she wrote in her blog, Deadatnoon, by the time you read this, I will be dead. She did not want to live with dementia. That is why I encourage the committee to include a provision for advance consent.

If the timing simply doesn't permit, then please include a binding commitment to bring in legislation governing advance consent within 18 months. An advance consent isn't just an issue for dementia, although it is certainly a significant issue there. Right now, there's a very problematic sentence in the bill, in proposed

section 241.2, which requires that “express consent” be given to receive assistance in dying “immediately before” the assisted death takes place. This is contrary to what is the case in Belgium, Luxemburg, and the Netherlands. In Belgium and Luxembourg, advance consent can be provided for up to five years, and in the Netherlands indefinitely. I also encourage the committee to review the issues around judicial review. I heard one of my colleagues urge the committee to look at judicial review. Every day in our country doctors end patients' lives. They do it right now, through the removal of life support.

What do they need to do that? They need the support and consent of the patient or their substitute decision-maker, usually the next of kin. There are no detailed forms to fill out. There are no requirements for secondary doctors. Now, I'm not protesting those provisions in this bill, but I'm saying that they are more than sufficient. We do not need additional administrative legal or bureaucratic barriers to keep people from accessing a compassionate death. Those would provide little security for individuals who may be vulnerable but would impose significant barriers on those who are already suffering.

Finally, I'd just like to correct an error of fact that I heard in debate. It was about waiting periods. There are indeed many jurisdictions that have legalized assistance to die and do not have waiting periods. There is no waiting period in the Netherlands and none in Luxemburg. In Belgium, the one-month waiting period applies only where death is not imminent. Of course, closer to home, Quebec, in their legislation, has no legislated waiting period. Thank you.

(1655) The Chair : Thank you very much, Ms. Morris. We very much appreciate it. [ Translation ] Now we will move on to Dr. Ferrier. Welcome to the committee. [ English ] Dr. Catherine Ferrier (President, Physicians’ Alliance against Euthanasia) : Thank you very much. I'm a physician and I have over 30 years' experience diagnosing, treating, and caring for frail older people, often suffering from Alzheimer's disease and other dementia. In addition to seeing patients in the clinic, I often visit their home as a geriatric consultant to a home care service.

My professional niche, as it were, includes capacity assessment, assessment in intervention for patients and families in crisis because of cognizant, psychiatric, and social problems. I regularly see abused and neglected patients, and I often testify in court for abused patients or for those whose families are fighting over powers of attorney or inheritance issues.

I'm also the President of the Physicians' Alliance Against Euthanasia, a group of doctors who see any law allowing doctors to intentionally end the life of their patients as contrary to the goals of medicine and the good of our patients, especially the most vulnerable and those who cannot speak for themselves. Founded in Quebec in 2012, the alliance now includes over 750 doctors, each of whom has signed our declaration and is supported by more than 14,000 citizens. We are, of course, aware that Bill C-14 will legalize medically assisted dying in some form, as is already the case in Quebec.

While remaining completely opposed to these acts, we offer our suggestions for amendments to the bill in an attempt to protect patients' health care environment and the integrity of our profession. We are somewhat relieved that there is a certain caution in the bill compared with the extreme recommendations of the special joint committee. We also note that the bill does not propose euthanasia and assisted suicide as medical acts or health care, as they are in Quebec. We agree that they are neither, so it cannot be required of our profession to perform them.

The international medical community maintains to this day its opposition to these practices. Since the vast majority of desires for death are caused by mental illness, which can and often does co-exist with the medical conditions that are considered to justify euthanasia or assisted suicide in the Carter decision and in this bill, we are called to exercise extreme caution. Such desires can also be caused by feelings of hopelessness, loneliness, fear, grief, shame, lack of access to support, insufficient palliative care, poverty, unemployment, violence, and abuse.

These can also be addressed by health and social service professionals. In this context my colleague, Mr. Racicot, talked about the fact that they are not charter rights. I argue that neither are they health care. We fail to understand the concerns about access to death that are being expressed in the public debate around this law. Elderly and chronically and terminally ill Canadians do not need access to death, they need access to care—medical treatment, home care, care by family members, residential care—all of which are seriously lacking.

You just heard some descriptions of sorely lacking care of elderly patients. I would argue that the alternative to that is not to kill them but to take better care of them, which we should be doing in Canada in 2016. To facilitate access to death while remaining unable to provide the care our citizens need is irresponsible, to say the least, and is unworthy of a progressive and prosperous country such as ours. We appreciate the government's commitment to developing non-legislative measures that would support the improvement of a full range of options for end-of-life care, as is said in the

preamble to this bill, but that would have to be implemented at truly high speed if we want the choice of life to be as available as death will be before long. If you wish to show a true commitment to life for Canadians, this bill must contain protection for patients who are at risk of constraint to choose death. As it stands, it's certainly not as bad as it could have been if you had followed all of the committee recommendations, but the criteria are still ambiguous and open to subjective

interpretation. This is inevitable to some extent, because it's impossible to define an eligibility criteria that would protect everybody, but we think you can do better. The only way to ensure patient safety in a regime of legal euthanasia and assisted suicide is to require prior authorization of the death by a judge. In practice in medicine, we use courts all the time for committing patients who are dangerous to themselves or others to hospitals, to ordering that somebody be removed from their home if it's no longer safe.

(1700) It's something that's common. It can be done rapidly. It does not need to be a barrier, and the cases we've seen in recent months in other provinces have shown it happened relatively quickly. I think this should also be done after an evaluation of the patient and the patient's situation by health and social service professionals to explore the causes of suffering, as well as any inducements to choose death that could arise from non-medical conditions and circumstances, and that measures should be taken to address these sources of suffering before accepting a request for death.

This should not be seen as gatekeeping of access to death, but rather as promoting life wherever possible, which should be the goal of the law. I have some brief comments on the criteria as currently written. The requirement that the request be made by a capable adult is essential, but most doctors lack the skills to assess decision-making capacity, and even experts disagree in complex cases. The terms “grievous and irremediable medical condition”, “advanced state of decline in capacity”, and “irreversible decline” are wide open to subjective

interpretation and could be understood to include hundreds of thousands of Canadians with serious chronic illness who would be eligible for death under this criteria. Enduring physical or psychological suffering that's intolerable, and that cannot be relieved under conditions the person considers acceptable, is entirely subjective and opens the door to anyone refusing effective treatment and demanding euthanasia instead. The requirement that natural death be reasonably foreseeable means nothing to us as physicians.

Doctors are not able to accurately estimate life expectancy until the last days to maybe two weeks before death. Before that it's a guessing game. Call it “imminently dying”, and then we know what you're talking about. To ensure a request for death is voluntary and without external pressure requires in-depth psychosocial and family assessment by a team of professionals well beyond medicine. Even then there may be no way of knowing that the patient is acting out of guilt or protecting an abuser.

The written consent waiting time and requirement for a second doctor are not protections against abuse or coercion to request death. The first two can be waived, and patients or others can doctor-shop until they find two willing doctors. There should be no opening even later to children or people with psychiatric illness. I wrote a separate brief in my own name, besides the brief of the physicians' alliance, that speaks to the dangers of euthanasia by advance directive that we can discuss in the question period if you choose.

My second point is about what is often called freedom of conscience, but is also about protecting health care services from becoming death-promoting environments and thereby protecting patients from those environments. I suggest you include in the law a prohibition against requiring any health professional to cause the death of a patient, or to refer a patient to another person to obtain their death—even through a third party, as is the case in Quebec—and against requiring any health care institution to euthanize patients under its care or to assist in a patient's suicide.

There's no justification for imposing any duty to implement this political decision, which is foreign to the medical profession, on medicine as a whole, or on any individual practitioner or institution. Attempts to do so are already being seen, both in Quebec and in Ontario, through requirements to refer. The federal law cannot just leave this question to the provinces. In Quebec, since December, doctors who are unwilling to euthanize patients must refer them to an administrative body that will ensure the death occurs. This does not protect the patient or the professional integrity of the physician.

If I were a surgeon and a patient asked me for a procedure I thought was either not going to help them or would be too risky, I would refuse to do it, and I would also refuse to send the patient to someone else who would do it. They would, of course, be free to go and find a doctor of their choosing if they wanted to. In palliative care in Quebec, one excellent palliative care physician has compared her daily life under this law to living in a war zone. You never know when a death request is going to land on you. You can't be giving hope to dying patients in one room and euthanizing them in the next.

Another doctor retired early the day the law came into effect for this reason. Highly skilled doctors and nurses who have given years and decades to the care of dying patients are suffering burnout, taking sick leave, and being driven from the field by confrontations over a supposed right to be killed, and by threats of losing funding if they insist on caring for people rather than killing them. Patients are refusing treatment for their symptoms because of their fear of receiving the injection without having asked for it.

Some patients who attempt suicide by overdose are not being resuscitated because the notion is being promoted that people who want to die should be helped to do so instead of being saved from their suicidal impulses. We need safe spaces for patients where inflicting death is not an option, and we need to respect the freedom of those health professionals for whom it is a violation of their fundamental principles and institutions whose basic philosophy rejects it.

(1705) Patients can be transferred to another professional or another institution, if necessary. This would not cause problems of so-called access, only inconvenience at times. If the professional or institution makes their position clear, the patient need not consult them. The protection of patients should always trump access to death. In

summary, at the very least we need prior authorization by a court after a careful evaluation of the situation, as I discussed. We need to create safe spaces for patients by respecting all individuals and institutions that refuse to collaborate with inflicting death. Thank you. The Chair : Thank you very much, Dr. Ferrier. We'll begin our questions with Mr. Falk. Mr. Ted Falk (Provencher, CPC) : Thank you to all of our witnesses. I too apologize for the inconvenience you suffered because of our votes and procedure in this House. I'd like to begin my questions with the CMA.

This is just for clarification, because I wasn't sure how many doctors you said you represented. You indicated that you like the bill and you would like to see it adopted without amendment. Is that correct? Dr. Jeff Blackmer : That is correct. We represent over 83,000 physicians in Canada. Mr. Ted Falk : Okay. I find that really interesting, because I haven't talked to one doctor yet who would hold to that position, outside of listening to it here. I'm not sure where these doctors are that you represent. Dr.

Jeff Blackmer : If I may, we've consulted with tens of thousands of physicians over the past two to three years in the course of various national town halls we've conducted across the country. We've done extensive polling, and we've had numerous debates at our national annual meeting. So we do represent those physicians. Mr. Ted Falk : Okay. Thank you. Mr. Racicot, you had a very interesting presentation. You indicated that death is not a charter right, assisted death is not a charter right, and the Supreme Court didn't affirm that it was a charter right. I would like you to expand on that a little bit.

You also said there were alternatives to this legislation if we as parliamentarians only had the courage to exercise the ability we have. You also indicated that there had been previous attempts at passing legislation in Parliament here that would have allowed for physician-assisted suicide, but the members of the House did not agree with it: 300 members wouldn't have agreed in principle, as a majority group, to pass that kind of legislation. I'd like you to comment a little further on those statements.

(1710) Mr. Michel Racicot : The first point is with regard to the absence of creation of a charter right. The court recognized that the rights to life and security of those persons who sought medical aid in dying were at issue. The court stated that these rights are attacked, if you wish, or infringed by the fact that assisted suicide and euthanasia are forbidden in certain circumstances. So in fact the court is making an exception to a criminal act, an exception to the act of culpable homicide, or murder, and an exception to the offence of assisted suicide.

As to the other aspect, I think this House has the power to reaffirm that the intent of the prohibition of assisted suicide, of euthanasia, of murder, of culpable homicide in our Criminal Code is to protect all Canadians. If you do use that premise rather than the premise used by the court, then the judgment falls back, goes away, because the judgment is all based on the fact that the only reason to have these provisions is to protect only vulnerable Canadians. The Attorney General of Canada made the case that it was to protect all Canadians and to protect the life of all Canadians, but the court rejected that.

This House has the power to say these prohibitions remain, there is no exception, and the intent is to protect all Canadians. You have the power to do that. Several private members' bills—mind you, they were not bills of a majority government—were all defeated, and I think there was a lot of wisdom in that. I'm afraid we're rushing into this thing, trying to implement it before June 6, when really there are alternatives. History will have to judge you. I'm not trying to blame anyone. We're all faced with the situation. There are alternatives, except nobody is addressing them at the moment. Mr.

Ted Falk : Thank you, Mr. Racicot. Dr. Ferrier, you indicated that you spend a great deal of time working with individuals who are in end-of-life situations. I think you would probably agree that withholding treatment is very different from administering death. Dr. Catherine Ferrier : Thank you for making that point. That was an error, I think, in what one of the other witnesses said. Withholding treatment is just admitting that medicine has limits and that we cannot do anything for that person anymore without making them suffer too much.

Causing their death directly is a totally different act, from an ethical point of view. Mr. Ted Falk : I would agree with that. You also talked about the dangers of advance directives. I'd like to give you an opportunity to expand on that. Dr. Catherine Ferrier : I regularly inform people of a diagnosis of Alzheimer's disease. That's part of what I do in my work all the time. When they originally receive that information, obviously, it's a source of great distress to them, to their families. They're in a very difficult moment.

One of the things that were recommended by the joint committee was that somebody early on in a disease, such as Alzheimer's disease, would be allowed to write a document saying, “When I reach a certain stage, I would like to be euthanized.” Somebody in that situation is not in an emotional state to make a life-changing decision, but at the same time if they delay it, then they might lose the capacity to sign the document, and so they're forced to sign it while they're still in crisis. That's one side of it. The other is that people's priorities and preferences change over time.

Almost all of my patients come to terms with their disease and they live with it for many happy years. I was distressed by some of the descriptions of people with Alzheimer's disease. I think to say that some people's lives are so bad that they're better off dead is a very unfortunate thing to say, because I think that all of my patients' lives have value, no matter how sick they are. I just can't imagine the scenario, for example, in which maybe the patient has signed this document and then they become demented enough that they can't make a capable decision. Who's going to decide that now is the time?

Is it going to be their children? Is it going to be the doctor? How are their children going to live with that decision once it's made? Nothing is so black and white that it can just be a matter of the document. In the brief I sent you, I quoted an

article by a Dutch academic whose father was euthanized through an advance directive. They had all been pro euthanasia when they signed it and the children all agreed to it, but then they felt that they were prisoners of this document and that it was not what they would have chosen, nor what their father would have chosen when the time came, but they felt obliged to carry through with it. This is a very complex issue. Which should trump which: the wishes of the patient at the time they have more advanced dementia or this paper they signed when they were well or not so well and they were in crisis? A lot of issues are raised, and I think it's a very dangerous way to go.

(1715) The Chair : Thank you very much, Dr. Ferrier. Mr. Bittle. Mr. Chris Bittle (St. Catharines, Lib.) : My initial questions I'd like to direct to the CMA. There is concern about conscience rights and we've heard that from a number of groups. Are there any other procedures that you know about, apart from medical assistance in dying, in which there is a concern that doctors are forced to or coerced to perform a medical procedure against their will? Dr. Jeff Blackmer : I would say probably the best analogy is therapeutic abortion.

This is a matter over which the medical profession has certainly struggled collectively and individually. There's often a question around conscience rights and a right to objection and whether or not physicians may have an obligation to refer to another practitioner there. That's probably the closest analogous situation. Mr. Chris Bittle : Are physicians required to conduct a therapeutic abortion? Dr. Jeff Blackmer : No. There's no requirement for them to do that, and there's only one province that currently requires them to refer someone to a colleague, which is Ontario.

Ontario is actually the only jurisdiction in the entire world with that requirement. Mr. Chris Bittle : Do the colleges across the country, the colleges of physicians of the various provinces, fiercely safeguard the conscience rights of physicians through their own professional regulations? Dr. Jeff Blackmer : That's correct. I would say that particularly on the point of assistance in dying, we've seen the nine provinces, those outside of Quebec, come forward with regulations.

All of them, save Ontario, have wording that very clearly protects the conscience rights of physicians, but we have certainly seen some discrepancies in terms of the exact wording. As I say, Ontario is an outlier in terms of its regulations in that regard. Mr. Chris Bittle : Perhaps you could speak for a moment about the importance of self-regulation in terms of your membership. Dr. Jeff Blackmer : Self-regulation is very much a privilege and not a right of the medical profession. It is something we constantly must strive to uphold through our actions, collectively and individually.

As you know, there are members of the public now on these regulatory bodies, and we look to them for guidance as well. This is critical to what it means to be a medical professional—the ability to self-regulate and to hold our members to a high standard. On issues such as conscientious objection, we often look to the colleges for guidance. This has been a difficult issue, again, because of some of the inconsistencies in the guidance that has come forward. Mr. Chris Bittle : Perhaps I could direct my next question to Dr. Forbes. You mentioned that you are a family physician.

I expect that, in the course of your practice, you have had a number of patients who have gone through suffering at the end of life. My concern relates to the 15-day waiting period. I know the legislation provides that this period can be abridged, but for the sake of argument, we would say that the average person accessing medical assistance in dying will have to wait 15 clear days. Is there a cruelty in that? We have declared that someone suffering at the end of life must wait over two weeks, in an average case. Dr. Cindy Forbes : That is certainly a question that has been asked.

It does say at least 15 clear days, which allows for a longer period of time, if that is appropriate. However, there is some wording around the fact that if the prognosis is felt to be shorter than that, there would be some special arrangements there. Do you have the wording?

(1720) Mr. Chris Bittle : I was wondering if you could speak more to the patient-centred approach to things rather than the legal—what the patients go through in their last days, the suffering they must endure, and waiting an additional two weeks. Dr. Cindy Forbes : The whole issue around assisting a patient to die is an issue of compassion, for society to be compassionate to people in this situation, and certainly for any physician willing to participate. It is of highest concern that patients not be unduly suffering.

However, this is being weighed against safeguards to make sure there is sufficient time for sober second thought. I think you have to look at it as a balance. The wording in the bill is that if the two medical practitioners are both of the opinion that the person’s death, or the loss of their capacity to provide informed consent, is imminent—any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances There is a provision there. I think it would be an exceptional circumstance, but at least it does give that leeway. As I said, these are complex issues.

We would want to make sure that the safeguards are protecting people at this very vulnerable time in their lives. Mr. Chris Bittle : This is understandable. Would the CMA support a shorter time frame, given the balances of which you are speaking? Dr. Cindy Forbes : I think that as long as there is a provision.... Our original document did suggest two weeks, but we also suggested that in the case where the prognosis was much graver, much shorter, there be some flexibility. I think Bill C-14 actually does provide that. Mr. Chris Bittle : Thank you. Ms.

Morris, you talked about this bill not being workable medically. I was wondering if you could elaborate on that and explain that comment, again, from a patient-centred approach. Ms. Wanda Morris : Absolutely. I think of our members, individuals who are dealing with multiple chronic illnesses, often in great pain. To tell them that they can have assistance to die only if death is reasonably foreseeable is to leave many of them without the compassionate support they are looking for.

When we look at the history of the issue of the right to die in Canada, we see people with ALS, Parkinson's, MS, Huntington's disease—diseases that can cause great suffering but where death is certainly not imminent and, perhaps a doctor may say, not reasonably foreseeable. I think of individuals with multiple chronic degenerative diseases who are suffering greatly and want access to assistance to die. For us to deny them is to thwart the spirit of the Supreme Court's decision. The Chair : Thank you. Mr. Rankin, go ahead. Mr.

Murray Rankin (Victoria, NDP) : Thank you, Chair, and thank you to all the witnesses for coming and for your patience today. Dr. Forbes, I first of all wanted to thank you for referencing the pan-Canadian end-of-life and palliative care commitment. When we had Minister Philpott here a couple of days ago, she asked me to keep hammering away at this, and so thank you for giving me that opportunity to once again plug that important thing. Dr. Cindy Forbes : Thank you. Mr. Murray Rankin : Dr. Blackmer, we had the benefit of testimony from Dr. Stern of the Canadian Medical Protective Association yesterday.

I want to read you a couple of things and ask your comment. Presumably, if I'm right, the CMPA insures doctors from coast to coast to coast so I would have thought these were important to your members as well. They say this when talking about seeking clarity and the eligibility criteria: “The eligibility criteria for "grievous and irremediable medical condition" in subsection 241.2(2), and the requirement for practitioners to be "independent" in subsection 241.2(6), must be more clearly defined to ensure appropriate access to MAID and to protect vulnerable patients.

Bill C-14 should state unequivocally whether or not a patient must be at the end of life to be eligible to receive MAID.” I suppose I'm asking you to comment on that given that your insurer is so concerned about the bill as drafted. You seemed to say you were content with the bill as drafted. Dr. Jeff Blackmer : I think it's important to recognize that although we are both medical organizations, we come at this bill with slightly different perspectives and slightly different filters in terms of the way we interpret some of this. I have had a chance to read Dr. Stern's comments.

What I would say is that there has been a lot of discussion around clause (

d) and the issue of natural death becoming reasonably foreseeable. We see this as an immeasurable improvement over the alternative, which is to leave it at grievous and irremediable, which has no meaning to physicians whatsoever, and it would essentially leave anyone with any medical condition the ability to request assisted dying. What the wording in Bill C-14 does is it allows us to understand how grievous this condition has to be.

So we would say while it may not be perfect from a physician standpoint—and I've heard colleagues who have said it provides clear guidance, and I've heard colleagues who say I'm not quite sure how to interpret that—it's certainly much improved. If the committee felt there was additional language that could be added to further improve that, to further clarify that for physicians, we would welcome that. We also recognize, though, that in a piece of federal legislation you cannot capture all eventualities.

(1725) Mr. Murray Rankin : Right. People who insure you are seeking greater clarity, and I think that needs to be acknowledged. The other question they, your insurer, have in the bill is that protection in one of the sections should be extended to include civil and disciplinary proceedings for practitioners acting in good faith. The provision provides protection from criminal sanctions, but does not with the rest, and they call for that change. You're obviously content with leaving it as it is. Dr.

Jeff Blackmer : I think it's important to recognize that these are comments that have been made in front of the committee that we haven't had a chance to vet internally or with our membership. We feel the bill as it stands is sufficient. We certainly respect the opinion of our colleagues within that sphere. We haven't had a chance to consult with our membership on those changes. Mr. Murray Rankin : They are your lawyers, though. I point that out to you, sir. Dr. Jeff Blackmer : They have an important voice. Mr. Murray Rankin : Ms. Morris, thank you very much for your testimony.

Yesterday, we had the benefit of Dr. Derryck Smith testifying. You may know him. He's a leading child psychiatrist in our jurisdiction of British Columbia and former head of the B.C. Medical Association. He spoke passionately about advance directives and said the last change he would recommend is inclusion of an advance directive such that individuals with dementia can, when they are still competent, agree to medical assistance in dying at some point down the line. I'd like you to elaborate. You heard one of your colleagues say this was not something that should be sought in this bill.

I've heard you say the opposite. I'd like you to comment on Dr. Smith. Ms. Wanda Morris : We polled our members on this question. Eighty per cent of them were in support of advance consent, for example, in cases of dementia. I think this is fundamental to how we apply assisted dying legislation. Are we truly going to be patient-centred and give people what they want? There was a time when doctors didn't even let their patients know they had a diagnosis of imminent death. I think we've really moved from that to a time of being patient centred.

My colleague suggested that she felt every patient's life had value, and I commend her for that, but really isn't it up to the patients themselves to decide whether they want to continue living in a state where they clearly don't? I think we can be very specific with the wording and the direction of advance consent, laying out particular criteria so we can tightly control it, but I think it is fundamental. Mr. Murray Rankin : I want to give you an opportunity as well to comment. One of your colleagues on the panel talked about the need for “prior authorization by a superior court”, a judicial authorization.

Could you comment on that issue? Ms. Wanda Morris : That's just a fundamentally flawed comment. What we know from other colleagues working right now with individuals who are choosing assisted death is that it is an onerous and expensive and deeply daunting prospect to go before a court. To me, to add on that layer of administrative and bureaucratic and legal procedure is not necessary. We have already gone above and beyond the procedures required in any other case of informed consent.

To go farther than that provides no real benefit but imposes a substantial burden on people who are already grievously ill and dealing with great suffering. Mr. Murray Rankin : Can I have one more question , or am I out of time? The Chair : You will be over the time, but if you get a one-word answer.... Mr. Murray Rankin : It's for Dr. Blackmer. We're struggling with conscience protection in the committee and how to do it, and I noticed you carefully said, “to the extent constitutionally possible”. Do you have a legal opinion on whether we can do it in this federal law?

(1730) Dr. Jeff Blackmer : I'm not a lawyer, but having spoken to a lot of lawyers about this, I've received the

interpretation that this would not be possible. If the committee feels otherwise and there is a possibility otherwise, we would support that possibility, certainly. The Chair : Thank you very much. Mr. Hussen. Mr. Ahmed Hussen (York South—Weston, Lib.) : I'd like to begin by asking a question of Dr. Ferrier. I'd like to begin by highlighting a

section of your submission for the Physicians’ Alliance against Euthanasia. It says that since “the vast majority of desires for death are caused by mental illness”, suicide prevention through treatment of such illness and treatment of the self-harm inflicted by suicidal persons are part of the daily practice of many doctors. I'm curious to know whether you have any research that indicates that the vast majority of desires for death are caused by mental illness. Dr.

Catherine Ferrier : I don't have any particular study at my fingertips, but I can tell you that this is the experience of essentially all doctors ever. Mr. Ahmed Hussen : Secondly, you also spoke, on the next page of your submission, about there being no justification for imposing any duty to implement this political decision on Canadian doctors and institutions. Do you feel that Canadian doctors would be forced to conduct medical assistance in dying? Dr.

Catherine Ferrier : In Quebec right now, doctors who are not willing to conduct it themselves are obliged to send the patient along a path that will ensure that it will be done. That, to me, is similar to what Dr. Blackmer said about Ontario, which requires referral directly to someone who will do it. Most people who object to euthanizing patients would also object to sending patients to their deaths, not because of our own needs but because we think it is contrary to the needs of our patients. Mr. Ahmed Hussen : Mr. Racicot, have you any opinion on that? Mr.

Michel Racicot : The doctors also have a right to freedom of conscience, and a doctor who feels that he or she should not do that for his or her own conviction and for the good of the patient should not be obliged to do it and should not be obliged, either, to refer to someone who will do it, as is the case in Quebec. It is very important, if we have to have this law apply equally and similarly across the country, that this committee recommend that the objection of conscience, both for individuals and institutions, be implemented.

I personally think that you have the jurisdiction, because it's, in theory, within your jurisdiction over criminal law. In Quebec at the moment, certain hospitals do not perform abortions, and they are not forced to perform abortions, but they are forced to perform medical aid in dying. This is why we need the institutions to be protected as well. Mr. Ahmed Hussen : Dr. Ferrier, you gave as your opinion that at least for the organization we should limit medical assistance in dying to those who are in the last stages of terminal illness.

What about those who are suffering through an incurable illness or disease, who are in irreversible decline and great suffering, and who wish to make that decision? Dr. Catherine Ferrier : I think we have to look after those people. Mr. Ahmed Hussen : What if it's their expressed desire to— Dr. Catherine Ferrier : Well, if it is their expressed desire... I mean, this law is going to pass and there will always be somebody who will be willing to help them. Mr.

Ahmed Hussen : According to your submission, if we limit it to only those who are in the last stages of terminal illness, those folks would not have access to their choice. Dr. Catherine Ferrier : I think we have to remember that we're talking about killing people, and this is not a medical treatment; it's not some kind of panacea that is going to solve everybody's problems. This is something that we've always been able to do and society always made the choice to not do this, and there are many other things that we can do for people.

People who really, really wanted to die in the past have found ways of reaching their goals without involving the medical profession. Mr. Ahmed Hussen : This is for the Canadian Medical Association, either one of the representatives. I'd like to know if you have any concerns with respect to Bill C-14 and whether patients will have difficulty accessing medical assistance in dying as it moves forward.

(1735) Dr. Jeff Blackmer : That's a very important question. I would point out that when we've done surveys of the membership in the CMA, somewhere around 30% of physicians have said that if this becomes legal they would be willing to participate. That may sound, on the face of it, low; it's actually not. That equates to tens of thousands of physicians. In Oregon, it's less than 0.6% of physicians who participate in assisted dying. In terms of the numbers alone, access won't be a problem. The problem is connecting patients who qualify with willing practitioners.

You can imagine that most physicians aren't willing to put their names out there to advertise that they're going to be participating in this; there are security and safety concerns. What we need, and what the CMA has been calling for, is a system to help connect patients who qualify for assisted dying with practitioners who are willing to provide the service. At the same time this means the physicians who don't want to participate, or don't want to refer, can have their conscience rights protected. It's a way to satisfy both situations. Mr. Ahmed Hussen : How would that system operate? Dr.

Jeff Blackmer : There's actually a system in Alberta, at the current point in time, that the Alberta government has been working on where physicians can register with a central registry and say they are willing to participate. Patients, or a health care provider, can call that number and find out more information about the legislation and about the service, but also be connected, where appropriate, with a willing provider.

They put that in place because of the situation they had where a patient in Calgary was not able to find a willing provider and had to travel outside of the province, even though there were many physicians in Calgary who could have assisted. We desperately need this type of a system to make sure that we connect patients and providers. Dr. Cindy Forbes : I want to also echo those comments. I can honestly say the most common question I get from my colleagues who know that I've been involved at this level is, do you know who's going to provide the service?

They may be willing to refer, but at this point in time they have no idea how, and as Dr. Blackmer pointed out, it's unlikely we're going to have a directory or a list published somewhere. This concept of a central referral, coordinating system would be essential when June 6 arrives, that physicians would know there's a system; that patients would know there is a system. There would be no confusion and it would pave the way to access for the people who really should be accessing the service. The Chair : Thank you very much. I have one brief question to CMA.

It's a question I've asked all the medical panels that have come before us. Essentially, it follows on Mr. Rankin's question. When you look at reasonably foreseeable death, if we were to add clarity, if we were to say that the person's death was reasonably foreseeable within the next six months, or a year, based on the model in Oregon, based on the model in all of the states that have passed this type of a law, would that be preferable to you than the vagueness of reasonable foreseeability? Dr. Jeff Blackmer : I would say, as a general principle, additional clarity would be welcome.

I would also say that given the type of association we are, it's very difficult for Dr. Forbes and me to pretend to represent 80,000 members when we haven't had that discussion internally. Certainly the additional clarity, as I say, as an overarching principle, would be welcome. The Chair : I want to thank all of the members of the panel. I know this was not easy since you had to sit through a break. Thank you so much for sitting there for an hour and forty minutes; it's really appreciated. We're going to ask the next panel to move forward while we take a brief recess. Thank you so much, all of you.

It was very helpful. (1735)

(1745) The Chair : Ladies and gentlemen in the back of the room, I am now asking you to please take your seats or to step out of the room. We have limited time and we can't have people talking in the back. I want to thank the witnesses on this panel, despite the constant disruptions of today, for having stayed and for having understood that we're going to disrupt again for a vote in the middle of the panel. We have three different associations representing nurses. They are all different associations with potentially slightly different views, but they've been kind enough to find a way to present in a common way.

They'll go one after the other. We have Maureen Klenk, past president of the Canadian Association of Advanced Practice Nurses; Carolyn Pullen, from the Canadian Nurses Association, who is the director of policy, advocacy, and strategy; and Elaine Borg, from the Canadian Nurses Protective Society, who is the legal counsel. We have two witnesses presenting as individuals. We have Dianne Pothier, who is a professor emeritus with the Schulich school of law at Dalhousie; and Trudo Lemmens, who is a professor and Scholl chair, health, law, and policy with the faculty of law at the University of Toronto.

Welcome to all of you. I'm going to ask the different nurses associations to present first. Before we begin, I need unanimous consent from the committee to proceed while the bells are going until 10 minutes before the vote. Do I have unanimous consent? Some hon. members: Agreed. The Chair: Thank you. Ms. Klenk, please go ahead. Ms. Maureen Klenk (Past President, Canadian Association of Advanced Practice Nurses) : My name is Maureen Klenk and I represent the Canadian Association of Advanced Practice Nurses. I am proud to be a nurse practitioner.

I believe I may be the only nurse practitioner who will be presenting to you. I would like to forward three concerns. First, although Bill C-14 uses legal language, its primary purpose is to provide Canadians and health care providers with protection and accessibility for medical-assisted dying. Counselling is an everyday activity within every patient exchange. There will be much counselling between the time when a patient requests medical-assisted dying and the provider actually writing the prescription. Therefore, we believe the exemption for medical assistance in dying must include both clauses (

a) and (b). Second, an age restriction and requirement is discriminatory. A 16-year-old with a brain tumour will suffer as much as a 36-year-old, and their prognosis is the same. Yet, we do accept as lawful a 16-year-old signing a surgical consent for his two-year-old daughter. Third, the terms serious and incurable are not medical terminology and provide the practitioner with no descriptive value. Also, what is a natural death for a 60-year-old who has ALS? He's not going to die from natural causes. His death is going to occur from the horrible complications of ALS.

When would a health care professional know that this 60-year-old's death was reasonable and foreseeable? We believe this is not a measurable term in any context. CAAPN recommends the removal of clauses (

a) and (

d) from 241.2(2). Thank you for the opportunity to contribute to this important process.

(1750) Dr. Carolyn Pullen (Director, Policy, Advocacy and Strategy, Canadian Nurses Association) : Thank you for this opportunity to suggest amendments to the draft wording of Bill C-14 on behalf of the Canadian Nurses Association. We are the national association for 139,000 registered nurses across Canada, including nurse practitioners. My name is Dr. Carolyn Pullen. CNA welcomes the federal government's moderate approach to this challenging legislation, and we support the expeditious passing of this bill.

CNA strongly endorses the stated intention to work with the provinces and territories on a pan-Canadian care pathway for end-of-life care, which has the potential to reconcile issues related to access and conscience. We are lending our support to harmonized implementation of MAID across jurisdictions by convening nursing stakeholders, including regulators and educators, to develop a national nursing framework to guide nurses in the implementation of MAID.

The CNA recommendations for amendments to Bill C-14 are based on our view that it will best serve patients and health care providers if the legislation can be clearly understood, is possible for professionals to demonstrate in practice, and is practical to implement in the best interests of the patient. In accordance with these principles, our written brief suggests three amendments to the language used in the draft bill. Our suggested amendments would remove the criteria that refer to “incurable and reasonably foreseeable death”.

We respectfully offer an expanded definition of “grievous and irremediable medical condition”, which we believe is in accordance with the Carter decision, which focused on intolerable suffering rather than on timelines for death. By making the amendments we suggest,

section 241.2(2) could be deleted from the bill. The current wording used in

section 6(

a) and (

c) that address independence of practitioners is also problematic. As written, these clauses leave room for questions about business relationships between practitioners as well as factors that could affect the objectivity of practitioners. For instance, if practitioners have only referred patients to each other in the past, does that imply a business relationship? In small communities, does simply knowing each other imply a relationship that affects independent practice?

Confusion about the meaning of these clauses, if left as is, could lead to delays in access to MAID, particularly in rural and remote settings, where the numbers of health care providers to draw on may be limited. While fully supporting the need for these important safeguards, here the CNA suggests revising these clauses so that they can be more clearly understood, demonstrated in practice, and practical to implement in the best interests of the patient. Thank you for the opportunity to deliver these prepared remarks and to contribute to this important process.

(1755) The Chair : Thank you very much. Ms. Borg. Ms. Elaine Borg (Legal Counsel, Canadian Nurses Protective Society) : My name is Elaine Borg. I'm a nurse and lawyer. I work for the Canadian Nurses Protective Society. CNPS is a national not-for-profit organization. It's a legal defence fund for registered nurses and nurse practitioners. Our focus, as you'll see in our written submission to you, is along the lines of clarity. How do nurses know that they're on the right side of the law as this becomes law in Canada? The first issue I'll address is that if it is lawful to participate in assisted death, it must be lawful to talk about it. Subsection 241(1)(

a) of the Criminal Code makes it an offence to counsel a person to commit suicide. Counsel is defined in the Criminal Code at subsection 22(3) as including procuring, soliciting, or inciting. Health care professionals use this same word, counsel, to describe professional communications within the therapeutic relationship. It is a combination of active listening, patient education, and support. Health care professionals must engage in these activities. The circumstances of assisted death are no exception.

We recommend that the exemption for assisted death in the bill, found at subclause 241(1)(a), overtly and expressly includes the word counsel, so that health care professionals can engage in this normal therapeutic activity without fear that doing so or using the word counsel in this context, for example, in charting and documentation of care, would be misconstrued as criminally prohibited activity. In the CNPS written submission, we have provided a draft definition of counsel as well as a draft clause explicitly including counselling as part of medical assistance in dying.

The second issue I'd like to address is the criminalization of the civil standard of care. This can be found in the bill's subclause 241.2(7). Failure to comply with this clause could result in the commission of a criminal offence, despite the absence of mens rea , the necessary guilty mind. A health care professional may act so as to violate any one of these stipulations in the clause with no intention to do so, no wilful blindness, no recklessness. This is a lower threshold for criminal penalty than is required for criminal negligence, which can be found at

section 219 of the Criminal Code. In addition, it's not known what the rest of the clause means when it talks about provincial laws and standards. We don't know what these are yet. It is reasonable to anticipate that they would include administrative provisions that are not worthy of criminal penalty if violated. The word rule is used in this clause. It's undefined, broad, and vague. Health care professionals are and will be bound by the civil standard of care, and must practise in accordance with professional standards and ethics. Violations of these result in proportional civil and administrative remedies.

For these reasons, the CNPS recommends the removal of subclause 241.2(7) in its entirety. The third issue is the certainty of the role of the nurse in respect to medication administration. A prominent feature of professional nursing practice is medication and substance administration. The whole care team expects and knows that nurses do this. Subclause 241.1(

a) of the bill defines medical assistance in dying as the administration by a medical practitioner or nurse practitioner of a substance to a person. If the intention of this clause is to ensure the substance is administered personally by a doctor or nurse practitioner, we recommend the inclusion of the word personally before the word administering for the sake of clarity and certainty, given the role that nurses play in medication administration. My final point is in regard to what constitutes a business relationship.

A purported safeguard in the bill is the prohibition that practitioners be in a business relationship. The term is vague. Health care professionals must work together, so what are the parameters of a business relationship such that a practitioner can demonstrate compliance and avoid criminal penalty? Thank you.

(1800) The Chair : Thank you very much. That was a very interesting presentation. I appreciate you all working together to make it into one. Colleagues, we have 16 minutes until the vote. Do we feel that we have time to hear another one? Will either of you be able to do this within eight minutes or less, for sure? Prof. Dianne Pothier (Professor Emeritus, Schulich School of Law, Dalhousie University, As an Individual) : That's my plan. The Chair : All right. We'll go with Ms. Pothier. Thank you. We'll have to really stick to the eight minutes here. Thank you so much. Please go ahead. Prof.

Dianne Pothier : Thank you. I appreciate the opportunity to be here. My expertise is in constitutional law, including charter law. So that's where I'm coming from. Given the limited time, I'm focusing on the constitutional validity of the definition of grievous and irremediable medical condition in proposed subsection 241.2(2). I think it's important to get the point that in some ways it's as significant what the Supreme Court of Canada in Carter 2015 didn't say as much as what it did say.

The Carter decision, in paragraph 95, refers to the protection of the rights of vulnerable peoples as the constitutional rights of vulnerable peoples, but they don't elaborate on that. That wasn't the nature of the claim before them. They acknowledged that there were constitutional rights of the vulnerable, which they didn't elaborate on in the decision, but that's part of the context of what you have to do in responding to the Carter decision. In analyzing both

section 7 and

section 1 and acknowledging the protection of the vulnerable, the real challenge in this context is that the vulnerable are not going to self-identify when they appear in this process. The point of saying we're talking about the constitutional right of the vulnerable is that it's for people who are not well placed to identify and defend their own rights.

They're going to present as people who want to die, and the issue is, is this a matter of being at a time of weakness and saying you want something, which, if you had the opportunity to reflect on, you would change your mind about, while if your current wish is acted upon you'll never have that opportunity because you're going to be dead. The issue is complicated by rights that are in a sense competing, but they're competing in an unusual way, because we're talking about difficulties in identifying the people who need protection.

I want to focus particularly on the provisions of proposed paragraph 241.2(2)(b), which is the advanced decline section, and proposed paragraph 241.2(2)(d), the reasonable foreseeable death sections. The question is whether those two limitations are constitutionally valid. Lots of folks, including those next to me at this table, have said that since those provisions weren't referred to by the Supreme Court of Canada and Carter, that means you can't do that. I'm afraid that's not a very strong analysis, because, again, it's what they didn't say in terms of comparing it to what they did say.

With regard to proposed subsection (241.2(2)(

b) about advanced decline, before Justice Smith at trial, the Quebec legislation wasn't in force yet but the Quebec committee recommendation was before her and she picked up their language in terms of advanced decline and capability, and put it into her declaration of invalidity. The Supreme Court of Canada did not incorporate it. They didn't disagree with it; they didn't agree with it. They didn't even acknowledge that she said it. So to say that by completely not commenting, not even acknowledging, this issue they somehow pronounced upon it is a very extreme

interpretation of what the court is doing. It didn't comment at all and it's the language that's picked up in the Quebec legislation and it's picked up in Bill C-14 . A reasonable

interpretation of the Supreme Court of Canada not commenting is that they're handing it over to Parliament for Parliament to exercise its best judgment. Similarly the issue of reasonable foreseeability of death is not referred to in Carter, but before Justice Smith, before the Supreme Court of Canada, they canvassed the North American history versus the European history. In some of the North American versions, they do have some sort of end-of-life limitation. European ones don't.

(1805) You might have thought they should say what is good and what is bad, and what are the pros and cons. They don't enter into that analysis. Therefore, it seems clear to me that they're saying they haven't preordained what should happen here, and they are sending it back to Parliament for you to decide whether an end-of-life stipulation of some sort is appropriate here. I think the first point is that the Supreme Court of Canada leaves this open.

If you need confirmation that this is what they're doing, they told us that in Carter 2016 at the time when they were granting the extension of the suspended declaration of invalidity. They made a point of saying that they expressed no opinion on the Quebec legislation. The Quebec legislation has both of the things in proposed subsections 241.2(2)(

b) and (d). Proposed subsection 241.2(2)(

d) is a slightly different version of it, but it's in the same ballpark in terms of being an end-of-life stipulation. The court has handed it back to Parliament to decide, but the question still is, if you choose to put in proposed subsections 241.2(2)(

b) and (d), is that consistent with

section 7 of the charter? My analysis is that it is consistent for both of them. At trial, Canada argued before Justice Smith that if there's even one person who wrongfully ends up dead because of this, that's enough to warrant an absolute ban on physician-assisted death. Justice Smith said that's going way too far, both as a matter of the principles of fundamental justice and as a matter of the

section 1 defence for the government. That's going way too far. Neither Justice Smith nor the Supreme Court of Canada said that there's some magic number here, but they're clearly saying, on the assumption that with safeguards, the risk of error or abuse, of having people prematurely die who ultimately would have changed their minds if they'd had the opportunity.... But if the risk of that is low— The Chair : I'm sorry. We're going to have to come back. It will let you think about how you want to wrap up. Ms. Dianne Pothier : Okay.

The Chair : By the way, I have to say that this is one of the most interesting submissions we've had so far, so I don't want to in any way say that we're not interested. We're very interested. We'll let you finish when you come back. Ms. Dianne Pothier : I understand. The Chair : I just don't want to miss the vote. Voices: Oh, oh! The Chair: We're suspended. (1805)

(1845) The Chair : I call the meeting back to order. Ladies and gentlemen, I want to thank you for your patience again while we went to vote. I know this process is long for you, and I very much appreciate your forbearance. I have two pieces of good news. The first piece of good news is we won't be interrupted again tonight with votes. The second piece is that you are now the first witnesses appearing before the committee after the bill has actually been referred to us— Voices: Oh, oh! The Chair: —so it makes your testimony all the more compelling. Ms. Pothier, please continue. Ms. Dianne Pothier : Thank you.

I'm told I have two minutes, so I'll have to be brutal about what I talked about. Before the vote, I was saying that the point of the decision in Carter v. Canada was to say that if the risk of error or abuse is low, then the autonomy claims can prevail, but the obverse of that is that if the risk of error or abuse is high, then the protection of the vulnerable prevails. My point in all of this is that I think proposed paragraphs 241.1(2)(

b) and 241.1(2)(

d) are consistent with

section 7 of the Charter of Rights, consistent with the principles of fundamental justice, or, in the alternative, saved by

section 1 of the charter. If you take away proposed paragraphs 241.1(2)(

b) and 241.1(2)(d), then the chances go way up of having somebody face premature death on the basis of a transitory wish,

whereas if they'd had the opportunity over decades, they could have changed their mind, found other ways of coping with issues, found a way to make life worth living. In

section 1, the difficulty of protecting the vulnerable is an important factor. It goes beyond the individual claimant. There are other things I could say, but I just have one final wrap-up comment. You've heard lots of comments over the last few days to the effect that if you have the restrictions of proposed paragraphs 241.1(2)(

b) and 241.1(2)(d), it's only going to produce new litigation to challenge. Yes, it's open for somebody to say, “You haven't gone far enough.” But it's important to remember my starting point; the court recognized the constitutional rights of the vulnerable. The other side of this is, if you go too far, make it too wide open, you're open to a challenge on behalf of the vulnerable. That's an interference with their constitutional rights. If you want to charter-proof whatever you do here, the only way to do that is by using the notwithstanding clause in

section 33 of the charter. I haven't heard any senator or any MP who thinks that's a good idea. There are potential challenges from both ends of the spectrum here. Your job is just to exercise your best judgment. My submission to you is that proposed paragraphs 241.1(2)(

b) and 241.1(2)(

d) are important to protect the vulnerable. To include them is consistent with

section 7, and would be saved by

section 1 in the alternative. To exclude them increases the risk of error and abuse substantially to mean, not only would it no longer breach

section 7, you'd invite a challenge from the other side of the spectrum.

(1850) The Chair : Thank you very much, Professor Pothier, much appreciated. Professor Lemmens, over to you. [ Translation ] Prof. Trudo Lemmens (Professor, Scholl Chair, Health Law and Policy, Faculty of Law, University of Toronto, As an Individual) : I would like to thank the committee for inviting me to share a few thoughts on this important topic, one that affects each and every Canadian. [ English ] My submission is informed by research and teaching in health and bioethics, including end-of-life law, informed consent, and professional regulation in health-based discrimination law.

I felt particularly compelled to participate actively in the discussion about the legislative changes because the lived experience of euthanasia practice in countries like Belgium, which is my country of birth, is too often ignored in this debate. I have conducted detailed research on euthanasia law and practice in Belgium and published on what this experience means for the debate in Canada.

I'll say something here about one, why I support the bill's definition of what constitutes grievous and irremediable; two, the limitations of the safeguards in the bill and the option to add prior review; and three, the exclusion of advance directives. With respect to the narrow criteria, it can be very short around the argument about consensuality. I agree with Professor Pothier that the bill's criteria response to the applicants in the Carter case also provides some protection to many vulnerable people whose lives could otherwise be ended prematurely.

It's not just constitutionally required, I think it's also good social policy. This is where the evidence comes in from other countries. Evidence from euthanasia regimes that combine open-ended access criteria with reliance on competency and informed consent assessment by individual physicians and limited—and I would emphasize limited—after-the-fact reviews of self-reported cases shows these regimes lead to a significant expansion of the practice. In Belgium, we have expansion from 347 cases in 2004 to more than 2,000 in 2015.

That becomes a significant proportion of the total deaths in the country, particularly in the Flemish region. Problematically it has led in the last couple of years to an expansion in areas around people with disabilities and now includes couples who want to die together, people struggling with gender identity, and people who are tired of life. I would add to that the problematic expansion in the mental health area for people, not just those are chronically depressed and may be treatment resistant, which in and of itself is a contested concept.

I developed that more in some publications and in submissions I gave to the joint parliamentary committee. It's not just people who are chronically depressed, but now in Belgium it also includes people with personality disorders, post-traumatic stress, anxiety, eating disorders, schizophrenia, addiction, autism, and even complicated grief. These cases do raise questions about competency assessment and about the appropriateness of including people, who had potentially many years to live, in euthanasia practices.

Members of the committee should be critical of the claim there are no problems with the Belgian death regimes because this has been carefully evaluated by the trial judge and by several Canadian committees, as has been said before. This is incorrect.

The trial judge accepted there could be problems with the Belgian system, as did the Supreme Court, which ruled for the problems that were brought in front of it, they did not have to look at the fresh evidence presented by Belgian developments because these cases dealt with cases outside of the parameters of its reasons, and because Parliament could develop, the Supreme Court suggested, a more narrow regime with more stringent safeguards. More importantly many problematic developments have become apparent in the last five years.

I provide detailed evidence of these controversial aspects of the real-life practice of euthanasia in my written submissions and in other writings I can share with the committee. Let me say something about competency and consent procedures. A lot of weight is put in the bill on existing competency and informed consent procedures by physicians. It's true they are already used in health care and in end-of-life situations. Competency and informed consent assessment are not fail-proof. They're ideals. They try to create an ideal of autonomy, but challenges are widely recognized.

The science of competency assessment is in its infancy. Health care providers admit that, yet others seem to put so much faith in physicians' ability to do this properly and in a much more difficult context of end of life.

(1855) In this context, these procedures play a much more important role. They determine the difference between life and death, and in the future in many more cases than in the context of the existing end-of-life practices. The limitations of current competency assessment and current informed consent procedures become more important. When we expand MAID to situations where people are not at the end of life, the possible consequences of errors become much more serious because of the many years of life that can be lost.

I therefore recommend—and I developed it in more detail but I won't expand on it here—that the competency in informed consent assessments should include a much more sophisticated evaluation of contextual and personal factors that may impact on the desire to die and on the voluntariness of the request. Pain, emotional distress, mental illness, financial or familial pressures, availability of palliative care, and so on are important to look at. In my submission, I propose some changes to that effect to the bill.

With respect to the standards of informed consent, I would say that more rigorous informed consent practices are common, also, in areas of health care where there are concerns about increased vulnerability and the need for caution. I can give you the example of medical research. This is clearly the case here that we're dealing with a context of increased vulnerability in situations where people are suffering and the precise reasons for the desire to die may be unclear.

Informed consent is also here integrated in the criminal context as a basis for an exception on a criminal law transgression, so it should be stringent. For these reasons, because of the limitations of informed consent procedures and competency, I personally believe that prior review would offer additional protection. Prior independent review would not be needed in a perfect world, in which all professionals always respect their professional ethics standards and act cautiously, without error, without excessive zeal, and without pressures of the health care system, but this is not the world we live in.

Havoc can be created by a few negligent physicians in the context of other professional practices, so it's clear that it also can do the same in the context of end of life. Evidence from Belgium and the Netherlands shows how just a few doctors—you only need a few doctors—can create problems and lead to a high number of problematic expansions. The claim that the medical profession can adequately deal with it may be generally fine, but prior review would safeguard, actually, against those exceptional cases of physicians who become sloppy or are not acting appropriately.

I'll say something very briefly, in conclusion, about advance directives. I can't expand on it in more detail, but I would suggest you read the submission. Advance directives are an exception to the rule that people have to provide informed consent for, in this case, a life-ending practice. Second, when people are asked to write an advance directive after the diagnosis of dementia, as has been recommended by the joint parliamentary committee, competency is often already affected, so there are concerns about competency assessment.

Third, people have difficulty imagining that they may enjoy quality of life and may find new purpose and satisfaction in life once dementia develops, yet this is often the case. People become different, and there are even changes in the brain that are associated with that. Would we hold people to their previously expressed wish, even if they are now seemingly satisfied and enjoying a good quality of life?

I would urge the committee to look at a recent documentary in the Netherlands that highlights, I would say, the horror of forcing someone into respecting an advance directive when she—in this case it's a woman in her sixties—is still functional and still enjoys many activities of life, simply because she had signed an advance directive five years earlier. I would also mention that there are often family members who may have the most trouble dealing with dementia.

It becomes problematic when they then become, with well-intentioned reasons, the ones who have to judge when the life of a family member is no longer worth living. I would say, and I would suggest you look at the submission, that even in the most liberal systems of Belgium and the Netherlands, advance directives are only allowed under very strict conditions. In Belgium, for example, they are only allowed when there is irreversible unconsciousness of the person. In the Netherlands, they're not binding and are generally not applied because they are so problematic.

Let me close by simply saying that in the context of this debate, many powerful narratives of people who may not have immediate access to MAID under the bill or others who clearly do not qualify because they cannot give consent have been put forward. I urge the committee to look at other powerful narratives of people whose lives were prematurely ended in open-ended systems.

(1900) A few of these cases have recently created a heated debate in Belgium and the Netherlands. Many other cases remain hidden, because this involves vulnerable, marginalized people who are no longer there to complain after the indeed terminal relief of their suffering. Family members often remain silent because of the trauma they experienced. We should learn from the experience of these other jurisdictions and introduce a cautious, prudent, regime that ensures the charter-based duty to protect the vulnerable.

Opening up the bill's access criteria, in my view, would put the most vulnerable members of our society at risk. Thank you. The Chair : Thank you very much to all the members of the panel for your very interesting submissions. We'll now move to questions. We'll start with Mr. Cooper. Mr. Michael Cooper (St. Albert—Edmonton, CPC) : Thank you, Mr. Chair. I'm going to ask my first question to Professor Pothier.

There are some in this debate who have come before the committee or who otherwise, when looking at the parameters set out by the Supreme Court in Carter, have said concerning the parameters of Carter that Carter is merely the floor, not the ceiling. How would you react to that suggestion? Ms. Dianne Pothier : I don't think it's a very apt analogy. What I said was that the courts left out a large part of the analysis not because they're incompetent—obviously, they're not—but because they were not dealing with everything, on the theory that it was up to Parliament to deal with stuff.

To talk about a floor, when you're saying there are things we've discussed and things we haven't discussed, doesn't make much sense to me. Mr. Michael Cooper : Right. Really, what the court talked about was balancing on the one hand individual autonomy with the need to protect vulnerable persons. You cited paragraph 95 of the Carter decision, but I would also note paragraph 105 of the Carter decision. The Supreme Court cited Madam Justice Smith in talking about the need for a properly designed and administered system of safeguards.

Then at paragraph 111 of the decision, the court goes on—and Professor Lemmens referred to it—to an affidavit that had been submitted by Professor Montero with respect to the Belgian experience, wherein the court in response said, we need not consider this affidavit for the purpose of admitting it as evidence before the court, because the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions, would not fall within the parameters of what we are contemplating.

Would you agree that those additional paragraphs also lend support to the idea that when we talk about rights, including those under

section 7 of the charter, it's not a one-way street, but a balancing? Ms. Dianne Pothier : Yes. The whole point of the principles of fundamental justice, the overbreadth, is to say that an absolute ban was going too far. The question is then, what wouldn't be going too far? It is a balancing exercise. It's up to Parliament to try to figure out what the appropriate balance is. My point is that if you don't have the limitations of proposed paragraphs 241.1(2)(

b) and (d), then what you're saying that you need to weigh.... We've had testimony about what seemed to be compelling circumstances of people who fall outside of those two paragraphs, but you need to weigh that against, as Trudo was saying, the people who would just silently die because they're overwhelmed by feelings of hopelessness and helplessness, but who, if they had the opportunity to figure out a way to make life worth living, would have done so. It's not just saying that this case has no effect on anything else. It's saying that if we make it too wide open, the balance is lost. Yes.

(1905) Mr. Michael Cooper : To finish off that thought, if, therefore, the balance is lost, then Parliament is opening itself up in the legislation to

section 7 challenges from vulnerable persons who were saying that this legislation threatens or does not protect the life and security of vulnerable persons. Ms. Dianne Pothier : I would say it's both

section 7 and

section 15. The Carter claim itself was about

section 15 and

section 7, and Justice Smith started with

section 15, and 7 was a bit of an afterthought. The Supreme Court of Canada said yes to

section 7 therefore we don't need to deal with 15. So the challenge on behalf of the vulnerable could be, again, both, but I think in that context the

section 15 equality claims would be the more powerful ones. Mr. Michael Cooper : That's fine. Is there any more time? The Chair : Another minute. Mr. Michael Cooper : Professor Lemmens, you talked about the experience in the Benelux countries, and in Professor Montero's affidavit that he had submitted before the Supreme Court he talked about many examples of abuses in the Benelux countries. Can you maybe speak about those in the context of the need for, in your view, a prior review mechanism? Prof.

Trudo Lemmens : Yes, the cases that were brought to the Supreme Court by Professor Montero were considered by the Supreme Court, but were put aside because the Supreme Court basically argued that they were not dealing in their decision with people suffering from psychiatric disorders. They basically sent the message that they were not dealing with that particular category of people who might ask for physician-assisted dying. The cases have become much more important, of course, and they are important to discuss here, and by the legislator, if people are asking for an expansion of the criteria.

The reason that the Supreme Court didn't consider them makes it important to discuss them here. Are there abuses in the Belgian and the Dutch systems? I would say the cases highlight the importance of prior review. We have seen circumstances most recently, for example, in Belgium involving a 37-year-old woman. She had suffered from a mental illness in her younger years, but had been out of treatment for 15 years. She encountered a physician who, in the Belgian context, is known to be very supportive of euthanasia for psychiatric patients.

She asked four months after meeting her for access to physician- assisted dying, or euthanasia as it's called in Belgium. She was then diagnosed with autism. People who look at this from a professional perspective, from the outside, say this is a strange phenomenon, and wonder why she was diagnosed with autism at this particular stage. Family members had trouble obtaining information about what exactly happened, and why she was diagnosed in that way, and then two months later she was euthanized in the presence of her traumatized family. It then took the family three years to complain about it. Why?

Because they went to the Belgium euthanasia commission, which said the legal criteria were fulfilled. In an interesting way autism fulfills the criteria of the Belgian act.

So when individual physicians decide, whether they're well intended or not—and I'm not even saying that this is not a well-intended physician—when they may be overly zealous in believing that their role is to provide access to physician-assisted dying in cases, many other psychiatrists would find it highly problematic because of the fact that these people are worthy of our care and of our attention, and they should not be submitted to euthanasia. A prior review system would basically provide a safeguard in that it can lead these individual decision-makings.

It could question the individual decision-making by physicians who may be overly zealous and sloppy and may act in an incompetent way in cases like that.

(1910) The Chair : Thank you. Mr. Fraser. [ Translation ] Mr. Colin Fraser (West Nova, Lib.) : Thank you, Mr. Chair. I'd like to thank the witnesses for joining us today and for giving such informative presentations. [ English ] I'd like to in particular thank the three groups of nurses for presenting today Thank you for the work that you and your members do every day to care for Canadians. It's really important work. I know that in this work you do, going forward, palliative care will be an important component of whatever the outcome is with this legislation.

I know that our government is committed to making sure the resources are there for palliative care. Ms. Klenk, I have a question for you with regard to nurse practitioners. The bill allows two physicians, or one physician and one nurse practitioner, or two nurse practitioners to help the patient with medical assistance in dying. I'm wondering about the provincial aspect. I believe you mentioned that the federal government and the provinces and territories will have to work together to come up with a framework, especially with nurse practitioners, and I know that's regulated by the provinces and territories.

Can you help us understand what kind of framework you might see? Would it be a concern that there would be differences between different jurisdictions in Canada in terms of what nurse practitioners could actually be able to do, despite what's stated in the bill? Ms. Maureen Klenk : The scope of practice of nurse practitioners across the country is very similar. We do have a strong education program that would certainly enable nurse practitioners across the country to be able to assist with medical assisted dying—to enact it, I guess, if that's the word. There could be jurisdictional differences.

I do believe, though, our nursing regulatory bodies in general work very hard to have similarities in our regulation processes across the country. There may be minor differences, but I think in general the processes will be the same across the country for nurse practitioners. Mr. Colin Fraser : Do you believe it's important, in order for Canadians across the country to have access to medical assistance in dying, to allow nurse practitioners this ability? Ms. Maureen Klenk : Yes. I believe it is important to have that same process across the country. Mr. Colin Fraser : Thank you.

Professor Pothier, I very much appreciated your presentation and the brief that you submitted. We talked about proposed paragraphs 241.2(2)(

b) and (d). You mentioned that of course the court in Carter did not pronounce on those terms, it's therefore up to Parliament to make decisions on that, and there's nothing disallowing it in Carter. I'm wondering about the 15-day waiting period. You'd agree with me that there was nothing in Carter talking about any waiting period, so this would be the sort of safeguard framework that would be up to Parliament to decide? Ms. Dianne Pothier : Yes. Mr. Colin Fraser : With regard to conscience rights, we've heard in some testimony that conscience rights should actually be explicitly stated in this law.

Of course, this is an amendment to the Criminal Code, and I'd like your views on whether you feel that would be appropriate to insert in the Criminal Code itself. It's in the

preamble now. What are your thoughts on that? Ms. Dianne Pothier : I think suggestions have been made about saying, well, nobody shall be coerced to perform medically assisted dying or participate in it. I think you could put that in the criminal law, but my sense is that this is not the real concern. The real concern isn't coercion in the sense of a gun to your head. The real concern is professional repercussions if you don't participate. If that's the real concern, I think there are limits as to how far the feds can go.

It's not a Criminal Code provision, I don't think, but in federal jurisdiction you have military hospitals in terms of professional consequences. That's not a very big part of the picture. If you're talking about essentially discrimination against people for exercising their conscience rights, the Canadian Human Rights Act has a very limited application, generally and specifically, in a way that could implicate people conscientiously objecting to medical assistance in dying. I think there are some things that could be done. Mostly it would be difficult for the feds to go very far with this.

I mean, the ministers have been saying that nothing in this act requires anybody to do anything. That's true. The question is whether you have more robust statements of that. I think you may be able to go some distance, but if you're looking for the strongest protections, it's provincial jurisdiction.

(1915) Mr. Colin Fraser : Thank you. With regard prior judicial review, this has come up from some witnesses and has been mentioned in the context of Carter. It was stated that in the interim there should be judicial oversight. Would you agree that this was in the context of the court's expecting it to come before Parliament, to put in place a regulatory framework that would put safeguards in place? Ms. Dianne Pothier : The judicial role at the moment is an interim solution from the court. They are expecting Parliament to come up with a system of safeguards.

They said that they thought the judges were part of the rule of law, part of the safeguard system. I think they're leaving it open to Parliament to include judicial authorization as a continued one, but they're also leaving it open to Parliament to find other means of creating a system of safeguards. Mr. Colin Fraser : Thank you. I'd like to go to Ms. Borg. The Chair : Please be brief. Mr. Colin Fraser : Ms. Borg, you made a statement on 241.2(7), which is the reasonable knowledge, care, and skill clause. Had you submitted in your brief a recommendation of what could replace that, or are you saying to remove it?

Ms. Elaine Borg : Our recommendation is to remove it. The processes that govern this area, whether in the civil courts or regulatory bodies through their own discipline, are already seized of that. The Chair : Thank you. Mr. Rankin. Mr. Murray Rankin : I would like to echo what Mr. Fraser said in thanking all the witnesses, particularly acknowledging the nurses and all the great work you do. It's wonderful to have you here. I'm going to start with the nurse practitioners.

It came as a surprise to a lot of us when the testimony of the deputy minister of justice a couple of days ago confirmed that two nurse practitioners and no physician would be able to provide medical assistance in dying. That's contrary to the recommendations of the special joint committee. Are nurse practitioners content to have this jurisdiction, this power to decide on your own, without any physician's involvement? Ms. Maureen Klenk : The short answer is yes. Mr. Murray Rankin : Good. Thank you. I wanted to clarify that. I also wanted to give you a chance, Ms.

Klenk, because it seems like forever ago when we heard your testimony. You gave us two compelling examples. I'd like to take you back to them, because I confess I wrote them down very quickly. A 16-year-old with a brain tumour was compared with a 36-year-old, and then you referred to a 60-year-old ALS patient in the context of natural death. Could you elaborate on those, please? Ms. Maureen Klenk : My colleagues and I believe that the 16-year-old with the brain tumour would suffer just as much as a 36-year-old, a 56-year-old, or a 70-year-old.

Their prognosis is exactly the same once it gets to that irremediable point. Even though we're saying in this bill that nobody under the age of 18 can sign to go forward, we accept as a matter of law, as a society, that a 16-year-old could sign a surgical consent for their own child. On the one hand, we're letting people go to war, so to speak, but then on the other hand, we're saying, no, you can't. I have accepted 16-year-olds signing consents for immunizations. That's legal. That's the one case. The other case is the natural death.

If you are diagnosed with a condition such as a brain tumour, ALS, lung cancer, or any of these horrible diseases, your death is no longer natural. In society, we refer to a natural death as one where the body is played out—you're 110 years of age and your kidneys are slowly packing it in and not functioning anymore. Those are the kinds of things that are thought of as a natural death. A natural death for somebody with a grievous diagnosis wouldn't happen. As a practitioner, if such a person died, I would not be able to say on their medical release certificate that they died a natural death.

I would have to say that they died of complications derived from ALS, or that they died of respiratory failure, or whatever. That's not a diagnosis.

(1920) Mr. Murray Rankin : Thank you. I want to thank all three of the nurse groups for giving us very specific language. It's immensely helpful. That's what we're here to do and I really appreciate that. I want to go to Ms. Pullen for the CNA. In your brief you recommend that we should simply delete from the current bill the entire clause that defines “grievous and irremediable medical condition”, as I understand it. I think the language you've suggested—and I'm not putting words in your mouth—looks identical or virtually identical to what the Supreme Court of Canada said. Is that your intention?

I'd like to clarify what you meant by that. Dr. Carolyn Pullen : Our recommendation is that clause 2 can be completely deleted if revisions are made in the previous clause to allow for an expanded definition of “grievous and irremediable”, and we have provided that language specifically. And yes, it is in accordance with the initial description. Mr. Murray Rankin : It seems that the joint committee essentially tracked the language of the Supreme Court judgment. Dr. Carolyn Pullen : Yes, and we were satisfied with the original

interpretation. Mr. Murray Rankin : Ms. Borg, again, thank you for the specific language. You make many points that we don't have time, sadly, to explore, but I wondered if you could talk a little more about the mens rea requirement and your concern when it tracks the provincial standards—the word “rule” that you've used being very vague. Tell us a little more about your concern in that regard. Mrs. Elaine Borg : Just as an example, I've tried to bring the following to light as I've discussed with nurses and others.

Would it be a rule, for example in Alberta Health Services, which is probably the largest regional health authority in the country, that people receiving medical assistance in dying have a particular drug regime? As a practitioner working in High Level Alberta, a small town, it doesn't happen very often. The supply chain fails, and this is what I have in the formulary. I don't have what that AHS policy says.

Is it a rule, such that if I went ahead, I would find myself in jail or explaining myself to a criminal court when my priority had simply been my patient and they had met the eligibility criteria, but there's been a rule? It is in situations like that where I think there are unintended consequences. The larger issue really is about civil liability. We don't have examples in the Criminal Code when they talk about criminal negligence and so on.

It appears rarely in the code and they really want some kind of marked departure, some kind of taking yourself out of what the civil standard is, which comes to mind as I read subsection (7), which is also almost in the nature of “You should have known better and you shouldn't have done that”, rather than that you intended or there was wilful blindness, recklessness. This is what we are concerned about when we think about what the evil is that is being addressed here. We already know that practitioners are balanced personally. They each have their own personal professional licence to practise.

I've worked with CNPS for 16 years. I can tell you that practitioners are more afraid of going through professional disciplines than civil lawsuits. They understand it as a permission to practise and something that can be withdrawn from them if they do not practise according to practice standards and the code of ethics, which change. Therefore they have to stay on top of the changes in their own field, in their own discipline. When we look at this and say we don't really like what's written there because of the lack of mens rea , is it needed at all?

Well, we do know—I know this and I do this day in and day out—that nurses are sued for negligence and then the defence comes, so the courts are seized with it. When it comes to regulatory matters, there are statutes across the country that govern colleges of doctors, nurses, pharmacists, psychotherapists, and so on. They all regulate their own members by giving them practice direction, but then they also hear complaints from the public. As we know, there is no statute of limitations on when those complaints can come.

These consequences that normally flow from civil or administrative or regulatory breaches already exist, and there is no barrier to somebody making a complaint in that way or bringing an action in that way if they believe that a practitioner has violated their professional standards.

(1925) The Chair : Ms. Khalid. Ms. Iqra Khalid (Mississauga—Erin Mills, Lib.) : Thank you very much for your patience, first of all while we dealt with our issues here in the House, and for presenting such eloquent testimony. Your briefs are very helpful. My first question is for Ms. Klenk, Ms. Borg, and to Ms. Pullen as well. With respect to the administration of physician-assisted dying, we know the bill kind of goes toward two streams. One is where the health practitioner is the person who is administering the drug to end life.

Then the second stream is where a person is able to get a prescription for the drug and take it home to self-administer. I'd like to know your viewpoint on that. Are you comfortable with persons taking it home to self-administer? Secondly, in what cases would somebody want to take it home to self-administer it? Ms. Maureen Klenk : The answer to the first question is, yes, I would be comfortable. We all know that there are a lot of dangerous drugs in our communities. There are always risks, no matter what situation you're in.

I do believe that, if someone had come to me to ask for assistance and the appropriate safeguards were in place, they would be safeguarding their medication or their family would be safeguarding it. So I can answer that question. Do any of my colleagues want to weigh in on that? Dr. Carolyn Pullen : I would only endorse that in the case of oral medication self-administered. The nursing association is supportive of that. I've heard it stated by others that, if any of us looked in our medicine cabinet today, we would find equally toxic cocktails that could be select as an alternative to what might be prescribed.

So, while it's a calculated risk, it's one we are comfortable with. Ms. Iqra Khalid : Do you think that there would be a problem with safely administering the drug at home? Ms. Maureen Klenk : I think you would certainly do your best to educate and have family agreement or whatever comes into play. But having said that, we allow people to provide palliative care for family members at home and apply very potent Fentanyl patches, and we teach how to discard those Fentanyl patches appropriately. You hope that this gets done. There is a trust relationship here for sure, and I think in general it works.

The trusting relationship works. Will there be some outliers? Maybe, likely, but we'll do our best to make sure there aren't. Ms. Iqra Khalid : The next question is to all the panellists. We've heard testimony on a number of occasions that the age restriction is 18 years of age and older for eligibility. If such an age requirement was removed, what safeguards would you propose to protect the vulnerable, the ones who may then be persuaded or coerced into doing something that they might not want to do themselves?

(1930) Dr. Carolyn Pullen : I will comment first on that. From the nursing association's standpoint, we are comfortable with Bill C-14 as it is currently drafted, with the recommendation that the trifecta of age, mental illness, and capacity assessment, or advance directive, be studied in an expedient manner and in a thorough manner in the coming days. As the legislation stands right now, we are satisfied with that content and the safeguards it includes. Mrs. Elaine Borg : I will just speak to my past professional life as a nurse.

I started working at the Hospital for Sick Children, and I can assure you that children die. At that time we had very little access to palliative care, and years after I left, I saw both to my delight and sinking heart that they finally discovered that children experience pain. We have a long way to go in understanding what we're going to do next with, for example, mature minors. I think that the government intends to study this issue.

One suggestion that we've kicked around in my office is that prior judicial authorization doesn't seem to be necessary if we look at the whole scope of what doctors, nurses, and nurse practitioners do with their patients. It would cause delay. It would be expensive. Who bears the expense? If I'm settling a civil case for money damages and I'm dealing with a minor or a person with a disability, I need judicial authorization to enter into that settlement.

Cannot some of these populations access medical assistance in dying if their eligibility criteria are met, perhaps with the caveat of judicial authorization beforehand because of the special and sensitive nature of these populations? The Chair : I'll give Ms. Pothier a chance to answer and then we'll come back to you. Ms. Dianne Pothier : I think at first blush it seems pretty obvious that it's age discrimination to say that those over 18 are in, and those under 18 are out.

But the real point and question—which is why it should give us all pause and why additional study is a good idea—is are the young especially vulnerable? It makes trying to figure out what the right balance is more complicated because the young are more vulnerable. That's the issue you have to wrestle with, so I think caution is in order. Prof. Trudo Lemmens : I would agree with that. The best protection is indeed strict criteria, so I think the biggest concern that people would have with open criteria and situations where you could have a 16 or 17-year-old suffering from depression, which is not uncommon....

Having an 18-year-old myself, I know what the challenges are of dealing with an adolescent.