Good morning, all, and thank you for the opportunity to be here today to discuss this important issue.
Last week, my colleagues at the Department of Justice provided a summary of the Carter ruling and an overview of the core issues, particularly as they relate to the Criminal Code.
Today I'd like to address some key considerations from a health sector perspective, touching on issues that the committee may wish to keep in mind as you move forward with the development of your recommendations. My remarks cover issues that will need to be addressed by three levels of responsibility: by the federal government, by provincial and territorial governments, and by medical regulatory bodies that operate under mandates from their respective provincial and territorial governments. I will comment on each of these.
Let me start with the federal government. In general terms, in health the federal government has the following responsibilities: establishing and monitoring compliance with national principles for Canada's health care system, as set out in the Canada Health Act; providing block funding support for health care to provinces and territories through the Canada health transfer; regulating market access for drugs and medical devices, and regulating patented drug prices; funding or delivering certain health care services for specific groups; and providing leadership and developing programs and funding in a range of other health-related areas, including public health, health research, statistics, and health care innovation.
In the federal health portfolio, we are already considering the implications of physician-assisted dying in several of the areas I've mentioned. For example, if there turned out to be significant differences in access to physician-assisted dying among provinces and territories, there could be challenges related to the Canada Health Act principles of comprehensiveness and accessibility. There may also be questions for federal drug regulatory regimes under the Food and Drugs Act—specifically, for example, whether the drugs used in physician-assisted dying must be approved by regulatory authorities for that specific purpose, and how to ensure that those drugs are used appropriately. In the case of controlled drugs, regulatory changes under the Controlled Drugs and Substances Act may be required if controlled drugs are used to help end a life as opposed to treating a health condition.
The federal government also has some responsibilities for the direct delivery or coverage of health services for particular federal populations, such as First Nations and Inuit, members of the Canadian Forces, veterans, the RCMP, prisoners in federal institutions and certain classes of immigrants and refugees. There will be a need to align federal and provincial-territorial frameworks for physician-assisted dying to support access to this service for these groups.
The federal government is also responsible for rolling up data from the central vital statistics registry in each province and territory into a national database and for publishing annual summaries of deaths as part of Canada's vital statistics. This function has the potential to support the collection and publication of national data on physician-assisted dying.
In the course of your work, the committee can expect to hear views on palliative care. The Carter decision has led to widespread calls for improvement in palliative care in Canada, both from those who view it as an alternative to physician-assisted dying and from those who see it as an integral part of the spectrum of care options at the end of life. The need for improved palliative care has been emphasized in the reports of the federal external panel, as well as the provincial-territorial expert advisory group.
In its role of contributing to the overall quality and sustainability of the health care system, the federal government has funded a number of initiatives, in partnership with provinces, territories, and health NGOs, to advance palliative care education, awareness, national standards, and research. These activities, together with those of provinces and territories, are helping to improve the availability of palliative care. Still, however, it is estimated that about 70% of Canadians do not have access to palliative care, particularly those residing in rural and remote areas. Beyond that, many providers are not trained to provide palliative care services.
Through the new health accord process, the federal government plans to invest $3 billion over the next four years to help deliver more and better-quality home care services for Canadians. We expect that support to include palliative care in a variety of settings and we expect that this will be one of the initiatives and priorities in the new accord.
When federal-provincial-territorial health ministers met in Vancouver last week, the ministers acknowledged the desirability of a consistent approach to physician-assisted dying. Provinces and territories are looking to the federal government for clarity on issues such as the types of physician-assisted dying that will be permitted, and eligibility. These are subjects that could presumably be addressed through amendments to the Criminal Code.
Provinces and territories are also looking for common ground on issues such as appropriate wait times between a request for and the provision of physician-assisted dying; how to protect the conscience rights of providers in ways that avoid limiting access for patients who may seek a physician's aid in dying; data collection, monitoring, and reporting; and research. These are issues that may best be addressed through pan-Canadian approaches led or coordinated by the federal government in conjunction with other partners.
Depending on the scope of the federal response, provinces and territories will need to consider a broad range of issues with respect to the implementation of physician-assisted dying. A relatively narrow federal approach, such as minimal amendments to the Criminal Code, would offer more flexibility to provinces and territories to make their own decisions on significant legislative, regulatory, and policy matters. On the other hand, a more extensive federal approach would help achieve greater consistency across the country. In either scenario, provinces and territories, medical regulatory bodies, and health care institutions will have considerable work to do.
Provinces and territories, in connection with their areas of responsibility for the delivery of health care, will need to consider, among other topics, the following: the processes to request, approve, and deliver assistance in dying; where the service will be offered, whether in institutions, at home, in hospices, or in long-term care facilities; and any safeguards to protect vulnerable populations that are not already outlined in a federal framework. Putting in place transparent processes for data collection, monitoring and reporting, and compliance will be important, as will be defining offences and penalties for non-compliance.
Provinces and territories may also pursue initiatives to improve the availability and public awareness of advance care planning, palliative care, and other end-of-life options. In the case of advance care planning, whether such directives could be used by individuals to express their preferences with respect to a physician-assisted death long before they are diagnosed with a condition that meets the criteria for physician-assisted dying is a complex issue provinces and territories may tackle, ideally, in a manner consistent across all jurisdictions.
Other issues that fall squarely under provincial-territorial jurisdiction include the following: whether physician-assisted dying should be treated as a publicly insured health service eligible for coverage under provincial and territorial health insurance programs; how health professionals should be reimbursed for their involvement in physician-assisted dying; liability protection for health care professionals; whether existing legislation for consent, capacity, and age of majority are appropriate for physician-assisted dying or need modification; regulation of the investigation, reporting, and tracking of deaths, which is normally dealt with under provincial coroners legislation; and any necessary amendments to life insurance legislation.
The work that Quebec has done can help inform implementation plans for physician-assisted dying in the rest of the country. Quebec's act respecting end-of-life care established a right to end-of-life care, including medical aid in dying in the form of voluntary euthanasia, a regime for advance medical directives, and a provincial commission on end-of-life care for oversight and reporting. Quebec also released a strategy to increase access to quality end-of-life care and develop guidelines, training, and tools on medical aid in dying for health care providers.
While provinces and territories are ultimately responsible for the delivery of health care, they have delegated authority for medical practice and discipline of health care providers to self-governing professional bodies, such as those for physicians, pharmacists, and nurses. These regulatory bodies will need to consider how to guide, train, regulate, and discipline their members in relation to any regime of end-of-life care that includes physician-assisted dying.
While some practices, such as assessing competency and ensuring informed consent, are already routine in medical practice, the particular requirements for physician-assisted dying will likely require new protocols and training.
I'll just say a further word on the roles of medical regulatory bodies.
Most provincial colleges of physicians and surgeons have either published guidance documents for members on physician-assisted dying or are in the process of preparing them. These guidelines indicate that provinces and territories are working towards a consistent approach, but also that there are important areas where they may diverge. Points of possible divergence include age of consent, different approaches for defining and determining whether a condition is “grievous and irremediable” and “causes enduring suffering”, responsibilities arising from provider exercise of conscience rights, residency as an eligibility requirement, and so on.
Both the federal external panel report and the expert advisory group report support the idea of avoiding a patchwork approach to physician-assisted dying across the country. From the federal perspective, a reasonable degree of consistency across provinces and territories would support the underlying values of the Canada Health Act—that is, that all Canadians should have comparable access to needed health care services without barriers associated with financial means or geography.
A uniform regime would also provide greater certainty for providers and help to avoid people seeking physician-assisted dying in another jurisdiction because it is not available or only available under more restrictive conditions in their own home province or territory. More importantly, it would provide reassurance to eligible Canadians that no matter what their means or where they live, the option of physician-assisted dying would be available to them.
I hope these remarks have been helpful in understanding the various levels of responsibility within the health sector for physician-assisted dying. While Criminal Code amendments could lay the ground for a consistent approach to the provision of physician-assisted dying in Canada, collaboration among federal-provincial-territorial governments and medical regulatory authorities will be critical to achieving reasonable uniformity.
I welcome your questions. I will do my best, along with my colleague, to respond or to refer you to experts who can address them when we cannot.
I'll underscore one point initially here, which is that there is in general, I think, a desire for consistency. That's one starting point.
With regard to the machinery that exists, you mentioned the federal-provincial-territorial ministers of health. They meet annually, and in certain circumstances more often. They in turn have a group of federal-provincial-territorial deputy ministers who meet very regularly, in person and by teleconference. At certain times they may have interactions weekly or every few weeks. They are the ones who authorized the creation of this federal-provincial-territorial working group, which brings together individuals who wish to participate from all jurisdictions and from both the health and justice sectors.
That group has had some interaction up to this point, but I'll be candid in saying that its work has been somewhat impaired by the fact that there has been no clarity to this point about what the scope of the federal legislative backdrop will be, assuming there is one, for physician-assisted dying. It's very difficult for that group of individuals, well qualified as they are, to discuss the implications for the actual implementation and delivery of physician-assisted dying without knowing what the legally sanctioned regime will be.
Nonetheless, and particularly taking into account the very tight timelines that exist, our work is about to resume. On the health side, I represent the federal government on this group. Our work is about to resume with some degree of speculation about what we think the regime will ultimately look like, and then we will be dealing with the implications of that for provinces and territories.
On the medical regulatory side, there are all the individual self-regulating professional bodies for nurses, pharmacists, physicians, and so on at the provincial level. There is also a national body, the Federation of Medical Regulatory Authorities of Canada. I expect they are likely to be witnesses who will appear before this committee. They can tell you about the work they have been doing with their members across the country, trying to work towards harmonized approaches even while not knowing, as I say, what the legislative regime will look like in the final analysis. The Canadian Medical Association and others are doing something similar. A lot of players out there are involved in consultations and discussions and are preparing guidelines and so on with this hope of achieving consistency.
I'm not sure I'm answering your question specifically about what it is that is uniquely the federal government's responsibility. It's obviously elements related to the Criminal Code. Beyond that, it's a matter of judgment and willingness to collaborate.
The committee has a written presentation from me. I think there is also a French translation, although I didn't deliver the text until Friday, as I had short notice. My presentation will follow that written piece, and of course I look forward to questions later.
With regard to my credentials, I am a constitutional lawyer and I have no expertise in physician-assisted dying, so I'm only going to be able to help the committee on constitutional issues. I've set out in the presentation the exact order of the court. I won't read it to you again because I expect you're sick of hearing it—or perhaps it would be a good idea to read exactly what the court said.
The court said that it was issuing “a declaration that s. 241(b)”, which is the aiding and abetting suicide one, “and s. 14”, which is the consent provision in the Criminal Code, “are void insofar as they prohibit physician-assisted death”—that is what the court said, and they didn't distinguish between euthanasia and physician-assisted suicide—“for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
Under a previous Canadian government, Canada argued against this order on the ground that it was impossible to design effective safeguards to prevent error or abuse. There was a general agreement that if there was no way of preventing error or abuse, then clearly you couldn't have physician-assisted suicide. However, what the Supreme Court did was accept the finding of the trial judge, which was based on the experience of other jurisdictions that effective safeguards could be designed. Now, the trial judge didn't design the safeguards, but she said there was good evidence that they could be designed.
That's why the declaration of invalidity was postponed for one year. Of course, as you all know, it's been extended for a further four months. The idea is to allow Parliament or the provinces to design and enact appropriate safeguards. The role of this committee, of course, is to recommend the necessary legislation to Parliament.
You're all very much aware of the division of powers over health. Canada has the power over criminal law, and of course any regime of safeguards that you were to recommend would be a valid criminal law, because it would be added to the Criminal Code. It would be necessary in order to make provisions for physician-assisted dying effective.
However, physician-assisted death is one of the matters that is also within provincial jurisdiction, and already today I could hear a lot of questions about what the limits are. I would just say this about the provincial jurisdiction: although Quebec has already enacted an act respecting end-of-life care—and I'm sure it will be a very useful act when you design the federal act—it's very important to recognize that there's no guarantee that all provinces will enact statutes; therefore, you have to design a law that can be effective throughout the country, even on the assumption that there is no provincial law or no territorial law in part of the country.
In other words, you have to produce a self-sufficient act that could be operated even if the province in question did nothing. In a way, then, agonizing over the exact boundaries between provincial and federal power is not really necessary. What you have to do is design a set of safeguards that could work even in a province that did nothing. I think that's very important, because if Parliament does not enact a law that could be operated in a province where there is no law, the people of that province would be denied the right to physician-assisted dying, which the Supreme Court has said they have. That's one rather obvious point of view.
The next point I make in my paper is that although it would be very nice if the provinces all came out with uniform legislation, you have to recognize that it may not happen. One thing you can do is recommend a provision in the federal law that in effect provides what I call an “equivalence provision”, which in effect would say that if the federal Minister of Health or the Governor in Council—you could use any framework—is satisfied that a province or a territory has enacted safeguards that are substantially equivalent to the federal safeguards, then the federal law would not apply in that province.
The advantage of doing that is that it would avoid overlapping legislation. Also, if you don't do something like that, issues of conflict between the federal and provincial law will be quite complicated, and they will be resolved by the rule of federal paramountcy. That would be a bad situation. I think it can be resolved by a so-called equivalence provision.
In my paper, I give you two precedents for an equivalence provision. One is in the federal privacy legislation, which provides that the Governor General, if satisfied that the legislation of a province is substantially similar to part of the federal privacy legislation, can exempt the province from that part of the federal act. Orders in council have been published with respect to Alberta, B.C., and Quebec, so it's perfectly plain and obvious and publicly open that the federal privacy legislation is supplanted by the provincial privacy legislation in those three provinces.
I thought there was a similar one in the Canadian Environmental Protection Act. There is, and there are references to it. The reference to it is in my paper. It's a more limited one. It says that the minister and a provincial government can agree in writing that a province has a law that is “equivalent” to the federal environmental law. Then the Governor in Council can make an order declaring that the province is exempt from the federal regulation.
Mr. Chair, ladies and gentlemen members of the committee, we have in fact been working since 2009 on the issue of physician-assisted dying in the Canadian constitutional context. The Quebec Bar thanks the committee for its invitation.
This morning we simply want to convey to you a certain number of ideas on how the committee could approach these issues. First of all, there is a time constraint that is important. In addition, this matter is extremely complex and very broad.
We have to have a clear understanding of what the Supreme Court decided in the Carter ruling. It simply decided that two sections of the Criminal Code contravene the charter, and gave the federal government one year—plus four months, now—to amend the Criminal Code to make it comply with the charter. The priority in the short term is thus to amend the Criminal Code.
It is clear that the issue of physician-assisted dying goes beyond the strict limits of the Criminal Code. In that context, I agree with Professor Hogg's analysis, which is that this touches on many other matters that are for the most part issues of provincial jurisdiction.
When we examined how the recommendations of the Select Committee on Dying with Dignity of the National Assembly could best be implemented, we attempted to see whether, within Quebec's constitutional areas of jurisdiction, the province had sufficient powers to draft a law that could meet its citizens' wishes. We concluded that the province did have those powers.
Despite the fact of that there is no perfect demarcation between federal and provincial jurisdictions, in light of established jurisprudence we believed that there was room for the provinces to act, and even considerable room. In that context, it is clear that the federal government wanted to legislate and go further than the Criminal Code. This could be interesting, because it is important that Canadian citizens have comparable, though perhaps not equal, access from one end of the country to the other. Clearly, we have to find a process to achieve that.
The problem a federal law on this question may pose is that this legislation may be very close to matters the committee formed by the previous government had established. For instance, if the federal government drafts legislation that concerns palliative care, monitoring, the training of physicians and that type of thing, it would clearly be acting in provincial areas of jurisdiction. It is clear that any federal law on these matters could easily be subject to constitutional challenge by people who are opposed to forward movement in this area.
We believe that the important thing in the short term is that the federal government amend the Criminal Code. This could be done very quickly and simply by amending sections 14 and 241, stating that those sections do not apply when someone asks for physician-assisted dying and meets the criteria set out by the Supreme Court. In the short term, that could be sufficient.
If we want to go further, I think that the first step should be a federal-provincial discussion, since the provinces have primary jurisdiction over all of the issues I just referred to. I believe that this might be the safest process to consider.
You could also consider a statutory exception. That could certainly be justified constitutionally, but I think it may open the door to debate, and perhaps make things easier for those who wish to challenge this.
Quebec's experience has shown that a law on physician-assisted dying can contain sufficient safeguards. These are not the provinces' sole prerogative. Safeguards also come from the Canadian Parliament, for instance through the Criminal Code. That would be a first series of safeguards, but another set would fall under provincial jurisdiction. There are the rules on consent, monitoring, and so on.
Essentially, since the physician is the one who acts, the simplest process to monitor quality is to monitor physicians' activities. In every province there is a college of physicians that is very sensitive to these matters and fully qualified to take on that responsibility. In addition, provinces may also create other organizations on their territory to monitor and control the process.
I do not think it is relevant for the federal government to create a Canadian monitoring mechanism, because proximity is important. And of course, this raises the issue of monitoring all medical practice. Obviously, it could be difficult for the Parliament of Canada to legislate on that.
The right to physician-assisted dying has now become a constitutional right for all Canadian citizens. The debate is no longer about whether this is a good thing or not. Nor is this right subject to other conditions aside from the ones set out by the Supreme Court. The provinces, colleges of physicians and the Canadian Parliament may add other conditions, but the effect of that should not be to empty these things of their content.
In the short term what is important is amending the Criminal Code. If we want to go further it would be useful to divide the process up. First, we have to respond to the Supreme Court ruling through the Criminal Code. Then we have to take the time to establish a more general framework to consult Canadians. A second legislative process could then be established that would not be subject to the deadline set by the Supreme Court. The objective of this process would be to complete what the Criminal Code already contains. This would give us more time to hold a broader debate.
As to the conditions, when the federal government asked the Supreme Court for an extension, the reasoning was that it was important to establish rules to regulate behaviour and determine which acts are authorized or not. The Supreme Court has already answered these questions in large measure. As to knowing who has access to physician-assisted dying and under what conditions, the Supreme Court has already answered that too. Then there is the regulation governing those who act. Reference was made to physicians and the institutions where people would die.
The Supreme Court has established a primary, basic regime. For the moment, we can be satisfied with that framework. Should it be improved, and extended to minors? What about adults who are not mentally competent? Should we allow people to have access to physician-assisted dying only in hospitals, or also outside of their walls? Could other people aside from physicians provide that assistance? These are broader debates, and in my opinion it is not necessary to settle these matters or make those decisions now.
In the short term, let us deal with the Criminal Code. It could be changed very simply and quickly without modifying fundamental things, and we must ensure that we negotiate with the provinces. If we fail, the general legislation could be relevant. It is clear that if we adopt a general law without involving the provinces, we will be opening the door to some serious constitutional challenges. That is why I believe that in the short term it would be preferable to narrow our scope.
As to safeguards, we could take inspiration from the Quebec law, since it offers an excellent process in that regard. It is not perfect and it is not the only possibility, but it represents the results of six years of analysis, study, and public and legal debates. It could thus be a source of inspiration. Several provinces are now looking at what Quebec did, and it would be appropriate to take advantage of that.
This concludes my remarks. I will be pleased to answer the questions of the members of the committee.
In Quebec we asked ourselves that question, because this practice was exclusive to doctors. We wondered whether other health care professionals could do it. The conditions for obtaining physician-assisted death absolutely imply the participation of a doctor, for instance for the diagnosis of a grave and incurable disease. We have to ensure that the suffering is intolerable and cannot be relieved by means that are tolerable to the person. This necessarily implies a medical assessment. Physicians are the ones who know the criteria.
This would already considerably limit asking other health professionals to make the decision. As for the act, we wanted to avoid a situation where the physician would simply write a prescription and then leave things to others. And so we decided that the physician would be personally engaged and would himself or herself administer the medical assistance, and would be with the patient in order to manage complications should any arise. Indeed certain complications can quite clearly go beyond the competence of a nurse or a pharmacist to intervene. Physicians are the ones who have the required knowledge to cope with those situations.
As for the purely medical management of the action, conditions relating to whether that solution is indicated or not, obtaining informed consent and assessing the patient's ability to consent, these are in Quebec necessary conditions to obtain physician-assisted dying. In addition, Quebec's criterion is based on the concept of end-of-life care, which is not the case for the Supreme Court.
All of these concepts require a medical assessment. The physician is the one who has been trained the best to shoulder these responsibilities. Nurse practitioners or pharmacists do not necessarily have the necessary level of knowledge to do so. Given the gravity of the decision, we preferred to limit those responsibilities to physicians. That is the legislator's choice, but I think it can easily be substantiated.
From that perspective, the provincial act provides a good framework for these issues. In Quebec it was decided that a second doctor would validate the first one's decision. We also included a monitoring by medical authorities such as the Quebec College of Physicians and the Council of Physicians, Dentists and Pharmacists, as well as external oversight exercised by a specialized organization.
Clearly this is first and foremost a medical act, to be monitored by medical organizations and to be executed in keeping with a medical protocol. These safeguards aim to ensure that the treatment will be executed properly.
I'd like to make a clarification. Earlier, when I spoke of minimal content...
Thank you, Mr. Chair, and thanks to our witnesses for your presentations today.
Since 1991 there have been at least 15 initiatives in Parliament regarding implementing physician-assisted suicide, and in all of those cases members of Parliament have chosen to reject them. Some of the recent initiatives involved work on motion M-388 and Bill , which calls on the federal government to implement a federal framework for suicide prevention, so I find it somewhat ironic that we're here talking about physician-assisted suicide at the same time that our federal government, the health department, and the Public Health Agency of Canada are actively working on implementing a federal framework for suicide prevention.
It's quite clear that physician-assisted suicide and euthanasia are irreversible actions, yet studies have shown that many patients who were interested in assisted suicide or euthanasia often change their minds. Certainly one of my primary concerns in the work that I've done on suicide prevention over the last number of years has been exactly that: protecting the most vulnerable Canadians at the most vulnerable points in their lives. We all know that depression is, by and large, a treatable condition, and it's questionable whether anyone in that condition is capable of making a rational request to have his or her life ended.
I want to refer to some of the jurisdictions that currently permit some form of assisted dying. Individuals who have mental health issues that affect their decision-making capacity are treated differently. For example, in the Netherlands individuals can use an advance directive to outline their wishes while they are still competent, but all of the U.S. states that allow physician-assisted suicide do not allow that, and I understand from Mr. Ménard today that Quebec is also in that group.
Mr. Hogg, in terms of access and in terms of protecting vulnerable people, from a legal perspective, what are some of the dangers of allowing individuals who do not have decision-making capacity to access physician-assisted suicide, and what protections could be put in place? You mentioned the waiting period. That is one possible protection, but I'd like you to outline others.
Then, are advance directives an appropriate way to ensure that individuals who lack this capacity are able to access physician-assisted suicide?