Honourable members, thank you for the invitation to appear before you to discuss this extremely important topic.
Thank you, Mr. Chair and honourable members of this committee, for the invitation to appear before you on this most important issue. I will be speaking mainly in English, but there will be paragraphs that I will repeat in French. These are paragraphs I have chosen for their significance.
So I will be speaking in both official languages, but mostly in English.
My name is Benoît Pelletier. I am a full professor at the Faculty of Law at the University of Ottawa and a member of the bar of Quebec.
I appear before you this evening as the representative of the three-member External Panel on Options for a Legislative Response to Carter v. Canada. The chair of the external panel is Dr. Harvey Max Chochinov, Canada research chair in palliative care, and the third member is Catherine Frazee, a professor emerita at Ryerson University. They are out of the country but are following these proceedings closely and will be available to assist this committee going forward. I am pleased to appear on their behalf and with their full support, and I will do my best to represent our work.
I am also assisted this evening by Mr. Stephen Mihorean, the executive director of the panel's secretariat. For the record, my co-panellists and I would like to recognize the substantial contribution we received from the extraordinary group of professionals in the small secretariat who supported our work.
I would also like to take this opportunity to thank the government, past and present, for the confidence placed in us to do this work. The external panel report is detailed and complex because the issues related to physician-assisted dying are detailed and complex. These issues require consideration and thought to determine sound social policy. This committee has been provided with copies of our report, which I will not have time to review in detail. I will instead highlight some of what we heard in a series of long meetings with intervenors, medical practitioners and regulators, academics, government representatives, and civil society organizations, as well as with two of the individual claimants, Ms. Lee Carter and Mr. Hollis Johnson, and another claimant, the British Columbia Civil Liberties Association. The complete list of those we met with in Canada, the United States, the Netherlands, Belgium, and Switzerland is found in annexes C and D of our report. As well, abstracts of transcripts from these in-person consultations are found in annex E. The panel also reviewed a total of 321 formal document submissions, which are summarized in annex F and chronicled with brief individual abstracts in annex G.
I would like to say a little about what we learned in Europe. There appears to be general satisfaction with the law in the countries we visited. We were told that assisted dying works well in the context of a robust social safety net, well-founded health care services, and high levels of trust in physicians. At the same time, there is intense controversy about cases that push the boundaries or test the limits of the law, cases that challenge the age requirement, cases involving advance directives, and cases that arise from psychological, existential, or psychiatric suffering or from suffering related to chronic conditions that are not life-threatening.
For many people one of the most important safeguards is transparency. Mistakes and abuses must be detected and acted upon. The same applies to non-compliance with reporting requirements.
The panel's online questionnaire was completed by almost 15,000 Canadians. I would like to draw your attention to our analysis and the results of this public consultation, which provides a rich source of information and insight, and which can be found in annex A of our report. For example, participants demonstrated strong levels of approval for palliative care education for all health care providers; for better supports for disabled people; for better home care, palliative care, and end-of-life care in the whole country; and for an efficient oversight of physician-assisted dying.
The questionnaire also revealed that respondents were more likely to agree that physician-assisted death should be allowed when a person faces significant life-threatening and/or progressive conditions. The questionnaire demonstrated that participants were generally very concerned about the risks that existed for people who are mentally ill, especially those with episodic conditions, and for people who are isolated or lonely.
Here are the results of the questionnaire we posted online that was completed by more than 15,000 Canadians.
For example, participants demonstrated strong levels of approval for palliative care education for all health care providers, for better support for disabled people, for better home care, palliative care and end-of-life care in the whole country, and for an efficient oversight of physician-assisted dying.
The questionnaire also revealed that respondents were more likely to agree that physician-assisted death should be allowed when a person faces significant, life-threatening and/or progressive conditions.
The questionnaire also demonstrated that participants were generally very concerned about the risks that existed for people who are mentally ill, especially those with episodic conditions, and for persons who are isolated or lonely.
On some issues we found high levels of agreement among Canadians from diverse perspectives. For example, there was agreement with the idea that all Canadians who suffer should have access to the supports and services that are within our capacity as a nation to provide, wherever they are in their lives and whatever their personal circumstances. There was agreement with the idea that Canadians should invest trust and respect in an assisted dying regime that features transparent, accurate, reliable, and objective oversight through data monitoring, research, and public reporting.
Honourable members of this committee, we reported on the points of view that were expressed to us, but our report is not just an account of those exchanges. Our report contains much information and analysis on the issues.
We heard clearly that there is a need to balance individual autonomy and the protection of vulnerable people. This being said, I would like to say a little more about autonomy and vulnerability.
With respect to autonomy there are a number of what I would characterize as core values that informed the Carter decision. Among them are the integrity of a person, dignity, self-esteem, and the right of an individual to make important decisions regarding the end of his or her life.
The Chair: You have one minute.
Prof. Benoît Pelletier: I will do my best to summarize the rest of my presentation, Mr. Chair.
I want to point out that autonomy is one of the core values outlined in the Carter decision.
As for vulnerability, it is, of course, a complex and subtle concept. Although the term “vulnerable populations” has been used to describe certain identifiable groups in society, the panel heard from many sources that vulnerability is not simply a characteristic of an individual or group, but rather is a state that any one of us could be in under certain circumstances. We heard that sometimes people are made vulnerable in particular contexts and situations when personal autonomy, status, wealth, and well-being are compromised in any significant way.
What this means in the context of physician-assisted dying is that all persons are potentially vulnerable. Being vulnerable does not disqualify a person who is suffering intolerably from seeking an assisted death, but it does put that person at risk of being induced to request a death that he or she does not desire. This is the risk that the Supreme Court called upon Parliament and provincial legislatures to address in a complex regulatory scheme.
Concerns were raised about access to physician-assisted dying, particularly for people living in Canada's remote communities. Concerns were also raised about how indigenous people will respond to physician-assisted dying.
There were, of course, many questions about which there were competing visions. For example, do the terms “grievous” and “irremediable” need further definition in legislation, or should physicians and their regulatory bodies have the discretion to interpret these terms? Should the decision to provide an assisted death be subject to review, and if so, should that review take place before or after a request has been granted? Are protections for vulnerable persons required beyond those routinely in place for patients wishing to refuse or withdraw life-sustaining treatment? How should the overlapping jurisdictions of provinces and the federal order of government be addressed?
The establishment of eligibility criteria, possible definitions of key terms, and the implementation of appropriate safeguards to protect vulnerable individuals are theoretically the responsibility of the various governments and legislative assemblies. In this regard, the Canadian population expects collaboration between the federal government and the provinces and territories so that the division of responsibilities and the implementation of physician-assisted dying and its oversight are managed in a consistent and effective manner.
While most attention has been given to physicians as our country is in the process of making particularly important decisions on this incitive and challenging topic, our extensive consultations and work, including the report before you, were completed and delivered to the government within five months. Our panel wanted to advance the debate and to make sure that everyone—from citizens to members of Parliament to federal ministers to provincial and territorial elected officials or representatives—had access to all relevant perspectives and information.
Above all, Mr. Chair, we wanted to assist this Parliament in making informed decisions. I hope the report of our panel and my testimony today will facilitate this committee's work.
In conclusion, I would like to signal for you, members of this committee, that as I am appearing on behalf of my co-panellists, there will be occasions today when I will respond on behalf of the panel and there will be times when I will be giving my personal opinion. When those latter situations arise, I will say so.
Those are my opening remarks. Thank you. I would be happy to take any questions you may have in the official language of your choice.
Yes. Thank you very much.
What I will say comes from the 15,000 people who answered the questionnaire and also from the consultations we had all over Canada. As you know, we met many experts, groups, associations, and so on.
There is a concern, expressed by many people, about the application of physician-assisted dying to people who suffer from psychological illnesses. It is clear that support is stronger among the population for the application of physician-aided dying in cases of physical illness or physical disability, for example, than in cases of psychological illness.
At the same time, I should say that, a priori, the Carter decision does apply to psychological situations, maybe as well as to physical situations. I say “as well as to physical situations”, but this still has to be determined through an interpretation of the decision. I would say that, prima facie, the Carter decision applies to both psychological and physical illnesses. Respondents were more likely to agree that physician-assisted death should be allowed when a person faces a significant, life-threatening, or progressive condition. If someone suffers a significant, life-threatening, or progressive condition, then the support generally of the population is stronger than in the case where a person is not in such a situation and has many years to live.
I'd say that this is the challenge that this Parliament should face. This is the challenge that flows from the Carter decision. The Carter decision does apply to assisted suicide and voluntary euthanasia, it does apply to psychological and physical illnesses, it does apply to situations where someone is not confronted by the end of his life, so that decision is quite large. That decision is quite wide in its scope. The challenge for this Parliament and the provincial legislatures is not to see if there should be limits to that decision. Again, if there are limits to that decision, those limits should not go against the spirit of the decision—
The Joint Chair (Hon. Kelvin Kenneth Ogilvie): Thank you—
Prof. Benoît Pelletier: —because of course due respect for the decision of the Supreme Court of Canada is necessary in this case.
That idea of oversight is quite reassuring for the population. The population likes to know that there might be a body or different bodies collecting data and analyzing how physician-assisted dying is provided all across Canada, and maybe doing some study on the impact it has on human rights in general.
Many points of view were expressed concerning the mission of an oversight body that would be created. Some thought that it should only collect data, that the data should stay confidential, and that there should be a public reporting, or perhaps a reporting to Parliament. Other people went beyond that and said that the oversight body should really do a social analysis of the impact of physician-assisted death, and maybe have money in order to give subsidies to scholars to do research on different questions related to that issue.
It's not clear, either, that there should only be one federal body. There could be a federal body and different provincial bodies, or there could be only provincial bodies working co-operatively, working together, as in fact an interprovincial organization, which is possible. When we hear the word “oversight”, we should not necessarily think federal only. It may be federal, provincial, and territorial. In any case, it certainly reassures people.
Let me say this. In my view, there are four cardinal points, four fundamental points, that are reassuring people or that are important in that issue. The first one, of course, is access to physician-assisted death, as least as the Supreme Court of Canada has defined it in the Carter decision. The second is efficient oversight. The third is better palliative care. The fourth is robust safeguards for vulnerable people.
If you talk to anyone and you tell them that these are the four components of what the federal or provincial intervention with regard to physician-assisted death will be, people will be reassured, because there will not only be access to physician-assisted dying but also a commitment for oversight, a commitment for better palliative care, and a commitment for the protection of the vulnerable.
Welcome to your Parliament, Mr. Pelletier.
Mr. Joint Chair, I don't want to tell you our life story, but I am happy to see Mr. Pelletier again, as I knew him when he was an MP and minister in Quebec City, where I worked as a journalist. Later on, when I became an MP in Quebec City, he was a professor and commentator. I will not repeat what he had to say about my work right now, but we will talk about it later.
Mr. Pelletier, thank you so much. I want to thank your committee and thank you for doing such thorough and careful work. In less than five months, you produced a document filled with relevant information. Congratulations. I commend and thank you for that.
I would like to discuss two issues with you, one of which concerns the most vulnerable individuals. I would first like to talk about something that's right up your alley, cooperative federalism. Earlier, you talked about Canadian leadership. That is actually why we are here today.
Health care comes under provincial jurisdiction, but we have to know how much it will be affected by the Criminal Code. You are talking about Canadian leadership and cooperative federalism. So I would like to hear what you have to say about the following two hypotheses.
The Canadian government can set a specific limit to how far health care can go or it can instead leave it up to the provinces to define health care by limiting, in a way, the Criminal Code to allow the provinces to adjust. However, since we are basically talking about health care, which is entirely under provincial jurisdiction, that initiative should be the responsibility of each province. So every province will have the time to hold this debate, as Quebec has been doing for six years.
Do you think the legislation the federal government will introduce should be more specific, or should it instead give leeway to provincial legislative assemblies?
I think that the federal government should give the provinces considerable leeway to act on this issue, while perhaps legislating on matters such as age, which we discussed earlier. For instance, it could perhaps also legislate on the issue of residence requirements. In fact, if residence requirements varied from one province to another, there would be a risk of interprovincial tourism and perhaps even international tourism should a province lack residence requirements.
I feel that age and residence requirements are probably the two most obvious areas in which the federal government could potentially intervene. When we consider federal leadership or federal involvement, we can see a number of possibilities and scenarios.
In the first scenario, the federal government's involvement would be limited to the Criminal Code of Canada. So it would be fairly limited.
In the second scenario, an amendment would be made to the Criminal Code of Canada and to decisions of the Canadian Parliament, which would adopt measures on the eligibility and protection of vulnerable individuals. That would take matters much further.
In the third scenario, the federal government would adopt framework legislation in the hope that the provinces would support it. Another option would be to strongly encourage them to support it, or leave a lot of room for provinces and territories, since this is really about providing health care in physician-assisted dying, which basically comes under provincial jurisdiction.
I would like the federal government to leave a lot of room for the provinces. In matters like this one, I would hate to see the federal government becoming too involved because physician-assisted dying basically takes place in hospices, hospitals and palliative care hospices, which fundamentally come under provincial jurisdiction.
The vision Mr. Hogg has put forward is clearly that we can have a Canadian federalism. However, the vision I have been promoting for years is based on the existence of two levels of government in Canada, each with its own constitutional responsibilities, and not a single government.
Thank you so much for the invitation to join you.
This has been what I would say was quite a journey—I'm sure you're on the same journey right now—to get our heads into some of these issues and to be able to come forward with a set of recommendations, which I believe you've had an opportunity to review in the report we have drafted, as well as the set of slides that were prepared.
What we'd like to do, though, is draw out a few highlights from that report and then turn it over to you to engage with us with your questions in the hope that we might be able to put some flesh on the bones of some of the questions you may have. We may not take the full 10 minutes, but we're really looking forward to the conversation that we might have.
In regard to when we started off on this work as the expert advisory group, I should note by way of a bit of background that 11 of the 13 provinces came together to create this expert advisory group. One of the key messages we received from them was that they were seeking to avoid a patchwork approach. Hence, one of the reasons why we created the expert advisory group was so that we could provide recommendations that would reflect the continuity of the Canadian context across the board.
In addition to that emphasis on avoiding a patchwork, we certainly heard from the stakeholders we met with, through written submissions and in-person consultations, about the importance of collaboration across jurisdictions, which includes federal, provincial and territorial, and also regulatory bodies, and we heard that there could be more alignment and clarity across those roles, but also a real effort to work together to clarify these issues. That was an important message that we heard along the way.
One of the things we also heard about consistently was the importance of having a strong legislative response, both at the provincial-territorial level and at the federal level. Particularly, in our case, in thinking about where we'd like to spend some of our time with you, there are some reflections on where there might be some clarity within the Criminal Code, which we heard about consistently from the provinces and territories as being particularly helpful for the work they need to do within their own jurisdictional settings.
Just to reinforce, the third piece that we also consistently heard about, and as you've also heard from the federal panel, is that physician-assisted death shouldn't be treated as some sort of parallel set of activities isolated from a comprehensive set of end-of-life services for Canadians. Hence, there was a strong message that we heard, and also reinforced in our own report, in regard to seeing physician-assisted death as part of an integrated end-of-life care strategy that would engage all levels of government, including the regulatory bodies, in a very effective way.
Thus, one of the encouraging things in looking at some of the federal findings, as well as our report, is that there is some nice consistency. I'm going to pass this over to Maureen, who will pick up on some of the pieces that we thought we'd highlight to you in relation to some possible clarifications within the Criminal Code.
Again, thank you very much for asking us to be here.
I think all of you have the slide deck that was just handed out. The nub of it is on page 6, really, with regard to priorities to raise with the federal government. Jennifer and I will address a couple of these for you.
The first one is about something you just raised with Mr. Pelletier in regard to other health professionals who may need to be involved in physician-assisted death. We take a different view. We very strongly think that the Supreme Court decision, although it mentioned physician-assisted death, did not mean to exclude other health care professionals.
Anyone who understands how health care is delivered in this country knows that it is delivered not solely by physicians. We heard very strongly from the territories, which said that they have fly-in communities where there is no physician. There is a nurse in a nursing station. If we're going to guarantee access across the country, we have to give a mechanism for them to be able to assess patients using telemedicine in conjunction with physicians in other areas, as well as to deliver it.
I also want to say that nurse practitioners, if you're not familiar with them, have a stand-alone scope of practice that absolutely should encompass end-of-life care, so we're asking that when you redraft the Criminal Code to carve out the Carter decision, you make it clear that other health care professionals, such as nurses and pharmacists—I'm a physician assistant, by the way—will be protected, but also especially that nurse practitioners and health care professionals acting under the directive of a physician will be able to assess patients for their eligibility and carry this out. That's an access issue.
I also wanted to talk about one of the later points on the definition of “grievous and irremediable”. Although Mr. Pelletier said they heard from people who think it should be defined but no one was sure how, we have a very strong opinion that it should be defined in what is the common usage. It should be “very severe or serious”. As someone who works in front-line health care, I think we understand, as health care professionals, what “very severe or serious” looks like. Obviously, acne is not very severe or serious.
I wanted to address those, and now Jennifer is going to address a couple.
There are a couple of factors here. The most obvious example is a case of somebody who is competent, has a grievous and irremediable condition, and is suffering intolerably. In that case, it's very clear they would be eligible. They meet the criteria, no question.
We have a very engaged Canadian citizenry. Canadians are starting to talk about death. We have a number of initiatives focusing on advance care planning across the country. We're encouraging Canadians to talk to their families. We're encouraging Canadians to articulate their values. We're encouraging Canadians to think about how they would like to die, in other respects.
It is an evolving area of practice. It's an evolving area where, on the one hand, we're starting to see a much more engaged country. Canadians are willing to do this, but it's still moving.
One thing we're thinking about is, within that particular context of how this applies to physician-assisted death, I might be very clear that I might wish to end my life, under certain circumstances, if I already knew that I had a grievous and irremediable diagnosis. I may not be suffering intolerably, but I might want to have the opportunity to speak with my family and articulate my wishes. Then if I subsequently lost competency but all of the other criteria were met, I would want my family to be able to exercise my wishes in that particular case. There has been consistency in some of the conversations we've had about advance care planning and the situation in which someone might lose competency after having met the criteria.
The more complex situation, though, is a situation where I might have gone through a number of those steps but I'm not suffering intolerably yet. In that particular case, I might have articulated what intolerable suffering would mean to me. I might be able to spell that out in an advance directive of some kind. In that particular case, we have said that it would be the expression of wishes that might be able to inform a decision to proceed with my wishes, which would be to end my life.
I think we're seeing a convergence of conversations. They're converging around physician-assisted death right now. There's still more work to do, but I think we're moving.
It's an interesting question, because what we've laid out in the protocol is a series of steps here, including an assessment of whether or not the patient meets the eligibility.
First of all, the patient makes a request. Their competency and all of the eligibility criteria are assessed. The first physician confirms that. A second physician must also confirm that the eligibility criteria are met. At either of those stages, if necessary, if there's concern about competence, there might be a consultation with a psychiatrist or a social worker or someone.
All of those steps are there, but what you've introduced is really interesting, and that's the multidisciplinary team. This is where some of these recommendations actually speak to each other.
It's not nearly as explicit, but it was in the back of our minds, and for some of the ways in which a physician—or a nurse practitioner, if this were to be extended to nurse practitioners—might get to know his or her patient, very often they operate within a multidisciplinary team, where knowing the patient is actually about speaking with the members of your team and getting to know them through the multidisciplinary team. The physician is not the only person who speaks to the patient. It's the social worker, the nutritionist, the physio person, and all of those folks in the circle of care. They collectively get to know the patient in order to be able to provide insight and to say, “Yes, this individual is competent.” Somebody has to make the determination of competence, but those other members do have a relationship with that patient and might be able to inform it.
What we've tried to do here is acknowledge that this is in fact the way in which health care is currently delivered. It's also being established as a standard of care that we ought to aspire to: to see interdisciplinary teams circling around a patient in a way that actually meets the comprehensiveness of their needs. What we're trying to do is align some of what we're recommending here with what is emerging as best clinical practice from a patient-centred perspective.
I'm not sure if that answers your question.