Thank you for the opportunity to be here today as the committee begins its study of the very difficult, complex, and profound question of physician-assisted dying.
Before I get going, I would just apologize for not having available my opening remarks in both English and French, which I know the committee likes to see. That is on account of the short notice we had. My apologies for that.
I'm Joanne Klineberg. I am senior counsel with the criminal law policy section of the Department of Justice. My colleague here is Jeanette Ettel. She is senior counsel with the human rights law section of the Department of Justice. Just by way of background, ever so briefly, both Jeanette and I were part of the litigation team that worked on the Carter case, helping our litigators behind the scenes.
Today I will make some brief opening remarks to provide this committee with some background on the criminal law-related aspects of this issue. It may be helpful to begin with a very brief summary of what the court found in Carter.
In its ruling, the Supreme Court found that the blanket prohibitions against physician-assisted dying violated the right to life, liberty, and security of the person in a manner that was not in accordance with the principles of fundamental justice, and that the violation could not be justified as a reasonable limit in a free and democratic society. The court concluded, at paragraph 105, that, “While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them”.
As a result, and as noted at paragraph 127 of the ruling, the provisions were found to be unconstitutional to the extent that they prevent competent adults from obtaining assistance to die when they clearly consent to the termination of life and have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the person.
As a preliminary matter, there sometimes appears to be some uncertainty, at least among some Canadians, about what physician-assisted dying is and what it is not. Physician-assisted dying is not the act of withdrawing medical treatment that a patient does not want, nor does it refer to a patient's right to refuse treatment or medicine in the first place. In these circumstances, if death does result from the withdrawal or the refusal of the medication, this is not a crime because the cause of death is the underlying medical condition. No mentally competent person can be compelled to receive treatment they do not want, as this would amount to an assault in criminal law and also a civil wrong. Physician-assisted dying refers to conduct that involves someone, a physician, actively participating in bringing about the death of another person.
Before Carter, this kind of conduct in any form was criminally prohibited in a variety of ways. The court considered that only two Criminal Code provisions were at the core of the prohibition against physician-assisted dying. The first is section 14 of the Criminal Code, which states:
||No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.
Section 14, therefore, operates in conjunction with the crime of murder, which is in essence the intentional causing of another person's death. Section 14 means that a person's consent to die has no effect on the criminal responsibility of the one who caused their death. It has always been murder, even if the victim wanted to die.
The second provision is paragraph 241(b) of the Criminal Code, which reads, everyone who “aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence” punishable by up to 14 years in prison.
These two provisions prevented a person from receiving a physician's help to die in all circumstances. It is critical to note that, like most other criminal provisions, they are of a general nature. They also serve to prevent non-physicians from helping others to die in situations that are totally outside the context of physician-assisted dying.
These two provisions were at issue because there are two ways in which a physician can help a person. One is by providing the person with the means to end their own life, such as by providing or prescribing a lethal dose of drugs. The individual who receives the assistance takes the necessary final actions that cause their own death. They are the agent of their own death, with someone else's assistance. This is known as physician-assisted suicide.
The other way is generally referred to as euthanasia. It is where the physician directly causes the person's death, typically by injecting a lethal medication. This does meet the definition of murder, which is the most serious offence in Canadian criminal law. It is punishable by a mandatory sentence of life in prison and at least 10 years of parole ineligibility.
Murder is considered the most serious offence under Canadian criminal law and in most other countries, because one person is actually causing the death of another rather than just helping that person end their own life. The differences between the two practices, including the different types of risk that each could entail, formed no part of the litigation before the Supreme Court. The court did not differentiate between the practices but dealt with both under the general term “physician-assisted dying”, or “physician-assisted death”.
On another general note about terminology, it may not surprise the committee to know that there are differing views on which terminology should be used in this particular context. Some stakeholders take the view that the expressions “physician-assisted suicide” and “euthanasia” are well defined and clear and must be used in order to avoid confusion and misunderstanding that arise from more general terms like “physician-assisted dying”. Others disagree with the use of the terms “physician-assisted suicide“ and “euthanasia”, believing that they are loaded and stigmatizing terms and that only something more general, like “physician-assisted dying“ should be used. This is just one of the many difficult issues that this committee will face.
One overarching consideration the committee will encounter very quickly is the divided jurisdictional nature of physician-assisted dying in Canada. Under our constitution, Parliament has exclusive jurisdiction for criminal law. The Supreme Court confirmed in Carter, at paragraph 51, that Parliament has the power to make laws that touch on health on the grounds of dangerousness or social undesirability. The criminal law is about morality and fundamental values such as those related to the devaluation of human life. It can also reflect public health concerns such as risk of abuse and the safety of individuals, particularly vulnerable individuals. Parliament's concerns, from a criminal law perspective in the context of physician-assisted dying, therefore relate to the minimization of risks and the protection of social values that are considered to be of fundamental importance in Canadian society.
The provinces and territories also have constitutional responsibilities in the context of physician-assisted dying. They are responsible for hospitals, the delivery of health care, and the regulation of the medical professions, among other things. At the policy level, the constitutional jurisdiction of the provinces and territories in this area relates to how to make physician-assisted dying available as a beneficial health practice.
There are aspects of physician-assisted dying regulation that could be seen to fall squarely within Parliament's criminal jurisdiction, such as the essential elements of an exemption from what would otherwise be considered criminal conduct. There are also elements that could be seen to fall squarely into provincial jurisdiction, such as conscience protections for physicians who seek to balance the competing rights of physicians against those of patients. There are also issues that could potentially be regulated by both levels of government but again from different perspectives: by Parliament, from the perspective of minimizing risk and protecting public health and morality, and by the provinces and territories, from the perspective of making available a beneficial health practice.
In this regard, Canada is unique compared to the other jurisdictions that have legislated in relation to physician-assisted dying. In all other places around the world, the same level of government is responsible for both criminal and health laws, so your challenge is especially daunting.
In the United States, four states have legislated access to physician-assisted dying. In the country of Colombia, the supreme court ruled on two occasions that terminally ill individuals had the right to a physician's help to die, and in early 2015 the government published a detailed resolution on the practices that should be followed, though technically this resolution does not have the force of law. In Europe, three countries have legislated access to physician-assisted dying: Belgium, the Netherlands and Luxembourg, which collectively can sometimes be called the Benelux countries.
You may also hear references to Switzerland, where a form of physician-assisted dying is available. Although the practice is not considered criminal, it is also not regulated in any specific way, so there is no law to look to that outlines the situation in Switzerland. Finally, there is also the law in Quebec that came into force recently.
These are the only existing models for physician-assisted dying. These laws have many common features that are important from the criminal law point of view.
One, they permit either one or both practices, that is, either physician-assisted suicide or euthanasia or both. Two, they describe the medical and other circumstances that render a person eligible to receive physician-assisted dying. Three, they contain some form of mandatory procedures to be followed in assessing a request for physician-assisted dying. Four, they contain some form of mechanism to review the patient's request, to determine whether all of the applicable rules have been complied with. Five, they also contain some form of mechanism for the collection of data on all individual cases of physician-assisted dying, which is then analyzed and made public.
Sorry, I've just received a note, and I will confirm that we will be sharing copies of the report, which are on their way to the committee. The report is also now live on the Department of Justice website, I believe. Sorry for that interruption, but I thought you would want to know.
Those are the five critical elements that you see in all these physician-assisted dying laws. I'll talk more about these elements shortly, as these really reflect the major policy issues for this committee to look at in considering a Canadian physician-assisted dying law, in addition to determining the extent to which these elements should be addressed at the federal level or left for the provinces and territories to regulate.
In terms of procedures for assessing requests, compliance review with requests for physician-assisted dying, and the monitoring of physician-assisted dying, most laws contain relatively consistent features. However, the choices made in these other places in respect of which practices would be permitted and who is eligible are quite different.
In terms of whether physician-assisted suicide and/or euthanasia are permitted, about half of the laws permit only physician-assisted suicide, and of the other half, some permit only euthanasia and some permit both.
In terms of medical eligibility, the laws can be characterized as falling into two categories that are quite distinct at the conceptual level and, as a result, in terms of their scope in concrete human terms.
The U.S. laws, Quebec, and the Colombian resolution permit physician-assisted dying only for people who are nearing a natural death that otherwise cannot be avoided—natural in the sense that it is as a result of an illness. In essence, these laws give people who are dying, who are at the end of life, a choice of how to die. They can die from their underlying condition, or if they would find such a death prolonged, painful, frightening, or otherwise undignified, they can choose a peaceful death with a physician's help.
It should be noted that these laws define the end-of-life circumstances somewhat differently. For example, the U.S. states make a person eligible if they are terminally ill and have a prognosis of six months or less, with no requirement that they be unbearably suffering. The Quebec law, on the other hand, contains a more general requirement that the person be at the end of life, without any reference to a particular prognosis, and does include a requirement that they be suffering unbearably, as well as some other requirements.
The Benelux laws are different. While these laws do allow individuals at the end of life to choose how to die, they also provide people who are not dying, but instead who are suffering from serious chronic but otherwise not life-threatening conditions, with a choice to end their lives if they find continued living intolerable. Conceptually, these laws provide physician-assisted dying as a means of relieving intolerable suffering from one's medical circumstances, because people can experience suffering not only as part of the dying process but also from living with difficult medical conditions. As a result, the Benelux approach to eligibility includes a wide range of circumstances, such as people suffering on account of mental illnesses, individuals who are tired of life but not necessarily ill, and individuals who fear future pain or suffering. Data from Belgium and the Netherlands seem to indicate that the circumstances for which physician-assisted dying is sought continue to expand, all within the confines of the law.
Over the past several years there have been a number of high-profile and controversial cases in Belgium and the Netherlands that have received international media attention. It is also interesting to note that the differences in scope of eligibility are also reflected in the Belgian law under which, for example, amendments in 2014 made physician-assisted dying available to children of any age, but within a narrower scope of eligibility than is available to adults. Specifically, physician-assisted dying is permitted for children only when the child would die in the short term, is experiencing unbearable physical pain—but not mental pain—and only where additional safeguards are satisfied.
A review of these laws provides a fairly effective road map for the policy issues before this committee. In terms of policy issues to consider from a criminal law point of view, Parliament would be considering an exemption for conduct that is otherwise criminal, namely, the crimes of aiding suicide and murder, which correspond to the two different types of physician-assisted dying. An exemption is needed to shield physicians and possibly other medical practitioners, such as pharmacists and nurses, who may provide assistance in physician-assisted dying from criminal liability.
First, the committee may consider whether an exemption should be created to only one offence or to both. It may also want to consider whether any specific additional limitations should be made from a safety, risk minimization, public health, or morality point of view, such as whether physician-assisted suicide should be required to be supervised by a physician in order to minimize the risk of a person taking the drugs when they are intoxicated or the risk of medical complications from taking the drugs alone; or instead, whether it would be appropriate for the patient to receive the lethal medication to take home for use at a time and place of their choosing. The committee will likely hear a range of different views on which practice or practices to make available and what the relative merits and risks of each are.
The second question is eligibility, which would define the circumstances necessary for the exemption to apply. The court clearly limited its ruling to mentally competent adults, but some stakeholders may express the view that physician-assisted dying should also be available to children where they are capable of discernment. Only two countries, Belgium and the Netherlands, currently provide this access to children.
In terms of the person's medical situation, the Supreme Court did not highlight any particular medical condition. It defined the scope of the right from a general medical perspective as applying where a person experienced enduring intolerable suffering as a result of a “grievous or irremediable” illness. If one looks at the dictionary, one sees that “grievous” is typically defined as very serious, severe or grave. “Grievous” does not appear to be a medical term. It is employed in the Criminal Code, in the phrase “grievous bodily harm”, which courts have held to mean a harm or injury that is very severe or serious, but not limited to a harm or injury that is permanent or life threatening. The court also held that “irremediable” does not require the patient to undertake treatments that are not acceptable to the individual.
On their face, these terms could be interpreted as being quite broad or even narrow.
The court, at paragraph 127, expressly limited its ruling to the factual circumstances of the case. Gloria Taylor suffered from the terminal disease of ALS and actually died of natural causes while the court case was still proceeding. Kay Carter was 88 years old and suffered from severe spinal stenosis, which rendered her largely immobilized. Both women were, arguably, at the end of their lives. The court said that it makes no pronouncements on other circumstances in which physician-assisted dying may be sought. Other aspects of the ruling may arguably appear to equate physician-assisted dying with other forms of end-of-life care. Thus, the scope of the constitutional right pronounced by the court is not entirely clear.
The court was determining whether the absolute prohibition was consistent with charter rights. The court also made clear that it was Parliament's task to undertake the policy work and to make the difficult policy decisions. The court recognized, at paragraphs 97, 98, and 125, that complex regulatory regimes are better created by Parliament than by the courts, that a number of possible solutions may exist, that these issues involve complex issues of social policy and a number of competing social values, that Parliament must weigh and balance the perspectives of those who might be at risk in a permissive regime against those who might seek a physician's assistance to die, and that a complex regulatory regime would be entitled to more deference from the court than the absolute prohibition.
In light of the uncertainty surrounding the meaning of the key terms and the constitutional dialogue that is permissible between the courts and Parliament, it is open to Parliament to provide a greater or narrower scope to the words of the Supreme Court, provided that it respects the constitutional parameters set by the court's judgment and that the evidence presented to and considered by Parliament justifies such legislative measures.
The committee will no doubt hear different views from stakeholders on the question of eligibility and which physician-assisted dying practice should be permitted. Those who are more concerned about individual autonomy will favour more choice and more access. Those who are more concerned about risks to the vulnerable and about social values, such as public messaging about the quality and value of lives of individuals with disabilities, will likely favour more limits and restrictions.
Other policy issues for the committee to consider could include whether to include procedural safeguards that should be applied in assessing requests; whether to include a mechanism for reviewing whether those procedures had been complied with; and whether to include a mechanism for collecting data for the purpose of analysis and publication, and in order to detect trends and potential abuse.
Those are my hopefully brief opening remarks. We would be happy to take your questions.