House of Commons Standing Committee on Justice and Human Rights – Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

Opening Remarks

Senate

Bill C-7,
An Act to amend the Criminal Code
(medical assistance in dying)

Standing Committee on Legal and Constitutional Affairs Committee (Pre-Study)

Opening Remarks for the Minister of Justice – 15 minutes

November 2020

Thank you, Madam Chair, for the invitation to appear before this Committee to discuss Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

I would like to briefly set out the main aspects of Bill C-7, which would implement an important change in the medical assistance in dying, or MAID, regime.

First, in direct response to the Truchon decision, Bill C-7 would repeal the eligibility criterion requiring that natural death be reasonably foreseeable. As a result, our MAID regime would no longer limit access to MAID to those who are suffering at end-of-life. This change would enable Canadians who are suffering but who are not nearing the end of their lives to choose a peaceful death if they determine that their situation is no longer tolerable to them. This change respects the autonomy of Canadians.

I would like to take a moment to address the strong reaction of national disability rights organizations to this change. The House of Commons Justice and Human Rights Committee heard testimony from individuals with disabilities, and from national disability organizations, who expressed their concerns with this proposed change in the legislation. We had heard similar concerns during our roundtables with stakeholders and experts in January 2020. The views of these groups has been consistent since the first MAID law was enacted in 2016; they always viewed the requirement that death be reasonably foreseeable as the most fundamental safeguard. We understand these views. There are other reasonable perspectives that people with disabilities can have on this question. Our Government has also heard from individuals with disabilities like Mr. Truchon, Ms. Gladu, and Ms. Lamb in British Columbia, that the current MAID regime fails to respect their autonomy and their right to self-determination over their bodies and their lives.

Medical assistance in dying has always been a very difficult issue that generates opposing points of view on the very same questions. It requires different interests to be considered. I firmly believe that Bill C-7 does so. The law would continue to require informed consent and a voluntary request made by a person with decision-making capacity, and the Bill would introduce a more robust set of safeguards where the person’s natural death is not reasonably foreseeable that require significant attention to be paid to all of the alternatives that might help alleviate suffering on the part of a person whose death is not reasonably foreseeable.

We believe such a regime can work safely by guarding against overt and subtle pressures to seek MAID that the disability community fears, while providing autonomy to a greater number of Canadians to make this most important choice for themselves.

More generally, greater liberty for some can also entail greater risk for others. Bill C-7 therefore balances this greater access to MAID with two other measures to ensure that others are not placed at undue risk: an exclusion for those suffering only from a mental illness, and a distinct and more robust set of procedural safeguards for those whose death is not reasonably foreseeable, as I have already alluded to.

The exclusion of persons whose sole medical condition is a mental illness is grounded in concerns from experts, who disagree on whether a mental illness can ever be found to be irremediable, and more fundamentally on whether and how MAID could be safely made available for such individuals. I know these issues are of great concern to some Senators.

We know that those with mental illness can suffer unbearably, that mental illness can be debilitating, and that it can profoundly impact quality of life. But many mental health experts who care greatly for the well-being of their patients insist that some mental illnesses have characteristics that present unique practical and ethical challenges. Unlike most physical illnesses, many mental illnesses follow unpredictable illness trajectories for which there is always the possibility of sudden improvement or recovery.

This means that in some experts’ view, it is impossible to predict, for any given individual, whether their symptoms will one day show improvement, or endure for the rest of their life. The fact that there would be a risk of ending the life of a person whose symptoms would have improved is a very important aspect of this eligibility question, and is in part why we are of the view that it is safest not to permit MAID on the sole basis of a mental illness under the time pressures we currently face on Bill C-7. Another relevant consideration motivating the exclusion is the fact that it can be especially difficult to distinguish between those whose desire to die is a symptom of their illness from those for whom it is a rational response to it. There is also ongoing uncertainty and disagreement as to the potential impact on suicide prevention if MAID is broadened to this group.

The House of Commons Standing Committee on Justice and Human Rights heard from different witnesses on the mental illness exclusion. We saw there, as we had seen among the expert working group put together by the Council of Canadian Academies to study this question, that there is no consensus among the experts on whether and how to proceed with MAID on the basis of a mental illness alone. On a question of such importance, with so much uncertainty and expert disagreement, it is incumbent upon us to proceed with caution and prudence. I have also been very clear that this issue should be studied more comprehensively, as quickly as possible after the enactment of Bill C-7, during the parliamentary review of the MAID regime that is still to follow.

In addition to the question of the exclusion itself, some have asked what kinds of conditions are meant to be excluded by the term “mental illness” and whether practitioners will take a consistent approach in their interpretation of the exclusion. Guided by the specific concerns that have been raised by experts in the mental health field in relation to medical assistance in dying in particular, the exclusion is intended to capture conditions that are primarily treated by a psychiatrist, that present this unpredictable disease trajectory, or that have as a possible symptom a desire to die. Let me be clear, the exclusion is not intended to capture neurocognitive disorders that are due to Alzheimer’s or Parkinson’s disease, or neurodevelopmental disorders like speech and motor disorders, which also happen to affect how the brain works, but don’t present the same type of inherent risks that have been flagged by mental health experts. They might in some cases raise questions about decision-making capacity, but those are of a different order than the inherent risks raised by mental illnesses.

I have heard concerns that the precise meaning of “mental illness” is unclear. I am sensitive to that concern, particularly when it comes to the criminal law. I welcome any input this Committee, and especially the expert witnesses it will hear from, can provide. We certainly want the measures in Bill C-7 to be implemented in a consistent manner across the country.

Our Government, which stands always for the equality, autonomy and dignity of persons with mental illnesses, supports a comprehensive exploration of this challenging issue that the parliamentary review will allow.

The Bill also proposes a distinct set of procedural safeguards that are tailored to the risks associated with assistance in dying for persons who are not nearing death. Ending the lives of those whose suffering is based in their experience of their quality of life is different than offering a peaceful death when the dying process would otherwise be painful or prolonged, or would erode a person’s sense of their own dignity. Bill C-7 therefore proposes a more robust set of safeguards where natural death is not reasonably foreseeable. As was the case when first enacted in 2016, that term refers to a temporal but flexible connection to death.

Safeguards for those whose death is not reasonably foreseeable are built around the existing safeguards, but contain enhancements. Importantly, the medical assessments of a person’s eligibility must span at least 90 days. This is not a requirement that the person wait 90 days after they are approved. Rather, the practitioners must, over at least three months, fully explore the person’s medical condition and the nature and causes of their suffering, and work with them to identify reasonable treatment or other support options, which they must discuss with the person. The person seeking MAID is not required to undergo any treatments. But as we embark on this new expansion of our MAID regime, we believe that we can collectively move forward safely if we can be satisfied that available options have been brought to the person’s attention and given serious consideration.

The final aspect of Bill C-7 that I wish to address is its proposal to allow for the waiver of final consent in specific circumstances. This is an issue that came up repeatedly in our consultations, and we see it is a matter of fundamental fairness. If a person whose death is foreseeable seeks and is found eligible for MAID, they would no longer have to choose to die earlier than they want, or refuse pain medication, because they fear not being able to consent on the day of the procedure. This targeted and prudent change would address the unfairness of these situations.

Bill C-7 would enable consent to be given in advance, through an arrangement with the practitioner, so that MAID can be provided on the chosen day even if capacity has been lost in the interim.

We know this measure does not go as far as some would like. The question of advance requests is a much more ethically and practically challenging question than the waiver of final consent. Frankly, this question is entirely distinct from the MAID framework as we currently know it, because it involves asking for and consenting to MAID in advance of any unbearable suffering or even a desire to die, potentially by very significant amounts of time. This passage of time, and the absence of lived experience when the request is made, are factors that elevate risk when it comes to permitting practitioners to end the life of a person who cannot consent at that time. It is an entirely distinct question, and one that we should approach with caution.

There are important differences of opinion among experts as to whether it is appropriate, from an ethical point of view, to allow advance directives for medical assistance in dying. In the event that advance requests for MAID were permitted, complex safeguards and processes would be required. These would be needed at the time of proceeding with MAID, but also at the earlier stage, when the person is preparing the advance request so that we could all have confidence the request reflects the genuine wishes of the person. The complexity of this dynamic, with two relevant activities separated in time, cannot be easily mapped on to the existing MAID regime in the Criminal Code.

Much more consultation and consideration is needed. We must, as legislators, also be cognizant to balance the desires of Canadians to have access to such measures, with the willingness of practitioners to carry them out. In the Netherlands, the only jurisdiction that allows MAID to be provided on the basis of an advance request where the person is conscious but lacks capacity, advance requests are often made but rarely carried out. This may give the false impression to Canadians of having gained access to something that in fact few practitioners would be willing or able to act upon.

As with the situation of persons suffering only from mental illness, advance requests for MAID is a matter that requires more study and deliberation, and we fully support it being an important part of the upcoming parliamentary review.

Thank you, Madam Chair.