Hon. Stan Kutcher: Minister, thank you for being with us today. My question is on the Canadian Coast Guard and its decarbonization efforts. I understand that there are currently a number of different initiatives on this issue under way, such as a biodiesel testing project and construction of a hybrid electric vessel.

Would you please update us on these efforts and share with us if there are any additional plans for decarbonization efforts within the Canadian Coast Guard?

Hon. Stan Kutcher moved second reading of Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying).

He said: Honourable senators, I rise today to speak on Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), which was introduced in the other place by the Minister of Justice on February 2, 2023.

This bill proposes to extend the temporary exclusion of eligibility for medical assistance in dying, or MAID, on the basis of a mental illness alone — MAID MD-SUMC — for one year, until March 17, 2024.

In the absence of legislative change, this exclusion will automatically be repealed on March 17, 2023, at which point eligibility for MAID in these circumstances will become lawful under the existing eligibility criteria.

Colleagues, before proceeding, I would like to acknowledge that the material and the subject of our debate that is starting today and will continue into Thursday can be very difficult for some people. It can be very challenging. It has to deal with life‑and-death issues. It has to deal with mental illness.

I would encourage any of our colleagues and anybody who is listening or watching our debates to know that if you are having difficulties because of what we are talking about, but also just in general, please seek help for those difficulties. Asking for help is a sign of strength. It is not a sign of weakness.

The purposes of this extension to support federal government readiness in relation to MAID MD-SUMC are fourfold: first, to ensure that a national reporting system meeting the requirements set out in Bill C-7 has been established and has begun to gather data for MAID monitoring and system assessment; second, that the model MAID practice standard has been completed and disseminated to regulators in all provinces and territories; third, that an accredited national MAID training program has been developed and is available to existing and new MAID providers; and fourth, to allow time for the final report of the Special Joint Committee on Medical Assistance in Dying of the House and Senate to be considered.

I will speak to each of these readiness criteria in due course.

As we all know, Bill C-7 received Royal Assent on March 17, 2021, about a year after the WHO declared the COVID pandemic.

The work undertaken for MAID MD-SUMC readiness — the components of which I just named — was impacted by COVID, the detrimental effects of which on our health care system are well known to us all.

The timely discharge of this readiness work depended on numerous health care providers, regulators, civil servants and other health system actors, all of whom were deluged by the demands of this unexpected scourge.

Indeed, it is to the credit of hard-working people across multiple sectors that so much has already been done on the work to date.

Despite delays due to COVID, significant progress has been made. I am of the opinion that taking some additional time is wise. This will ensure that the federal government has addressed its commitments before the law with respect to MAID MD‑SUMC comes into effect. Specifically, it will ensure that the four readiness criteria that I identified earlier will have been appropriately addressed.

While my remarks today will focus primarily on the progress that has been made in the key domains within which the federal government acted following the coming into force of Bill C-7, I would like, first, to take this opportunity to remind us of the complex division of powers and responsibilities between the federal and provincial/territorial governments when it comes to MAID assessment and provision. There has been some confusion in the minds of many Canadians whom I have spoken with about this differential responsibility.

The federal government is responsible for the Criminal Code. This is where the legal parameters for MAID are established.

The federal government is not responsible for the general delivery of medical services, including MAID, as these are the primary responsibility of provinces and territories.

Nor is the federal government responsible for the regulation of those who provide these services. That is the responsibility of provinces and territories, which, in turn, delegate it to independent regulatory bodies, such as Colleges of Physicians and Surgeons and Colleges of Nurses.

I would also like to take this opportunity to remind us of some of the components of how MAID for track-2 conditions, of which MAID-MD-SUMC is one example, are delivered in Canada and, in so doing, correct some misinformation that is swirling around us.

MAID is a medical act provided by trained physicians and nurse practitioners, delivered by provincial and territorial health care systems — with a few exceptions for federal delivery, for example military and prisons — and is regulated through the well-established independent regulatory bodies in each province and territory. As such, it is like any other medical act in that it must adhere to legislation, regulation, practice standards, policies and procedures.

Thus, in addition to any specific rules about MAID, MAID assessors and providers must adhere to the existing rules that apply to all clinical acts, whether they concern confidentiality, documentation, operating within their scope of practice or any other regulatory dictate.

Also, in many jurisdictions, MAID providers work within a centralized intake system within existing health authorities and use a community-of-practice approach to support and consult with each other. In other jurisdictions, MAID practitioners draw upon the networks offered through professional associations in order to obtain advice and guidance from peers. In other words, colleagues, the delivery of MAID clinical services is not an insular practice.

The requesters of MAID MD-SUMC will be protected by the track-2 safeguards in the delivery of MAID.

Individuals may make a request in writing to a physician or nurse practitioner asking to be assessed for MAID MD-SUMC eligibility. Following this, they are assessed by two physicians or nurse practitioners, independently, trained in MAID assessment. If neither of these trained MAID assessors has expertise in the condition causing the person’s suffering, a third physician or nurse practitioner with such expertise must be consulted.

For MAID MD-SUMC, an independent psychiatrist, expert in the person’s specific condition, would often be an appropriate assessor or consultant.

If the person is found eligible for MAID MD-SUMC as per legislated requirements, at least 90 days must pass between the request for and the provision of MAID. During that time, the MAID practitioners must ensure that the person has been informed of alternative means available to relieve their suffering and that they have been offered consultations with the relevant professionals.

It is worth noting that this 90-day period is a minimum and that practitioners can take all the time they need to do what is necessary to complete the assessment. If there is uncertainty from any assessor about clinical or legal eligibility for MAID MD‑SUMC, the MAID procedure does not take place.

If during this 90-day period the person becomes suicidal, suicide-prevention efforts will be mobilized, and MAID does not proceed. If a person changes their mind, the MAID procedure does not occur.

It is simply incorrect, despite all the trumpeted misinformation, that an individual who is actively suicidal or experiencing an emotional crisis, and thus is feeling depressed, anxious or unhappy, can request MAID and have it completed without careful assessment by highly trained clinicians without the passage of at least 90 days and without due diligence being applied.

The statements that we have heard telling us that a person who is in an acute mental health crisis can arrive at a hospital or clinic, request MAID and promptly receive MAID are simply false.

Additional related misinformation about MAID MD-SUMC includes several other false claims: that a person can be eligible for MAID solely on the ground that they are having difficulty accessing mental health care, that MAID will become an alternative to providing mental health care, and that MAID has been created by the government to save health care costs. These claims are all false.

Unlike what the misinformers would have us believe, MAID MD-SUMC cannot be provided just because someone is having difficulty accessing mental health care or because they are feeling emotionally unwell.

On the contrary, the typical MAID MD-SUMC requester — someone who will also be considered potentially eligible for MAID MD-SUMC assessment — is someone who has a long‑standing mental disorder, and who had received a substantial amount of various types of therapeutic interventions for a prolonged period of time — often a decade or longer — and, in spite of all the treatments provided, still continues to suffer intolerably. The issue is not lack of access to mental health care.

People who may be considered eligible to be assessed for MAID have been receiving substantial amounts of mental health care for a long period of time. Again, the issue is not access to care; it is that all the treatments that have been tried — during a long period of mental health care — have not been successful.

The unfortunate reality is — as in all areas of medical practice — that there is a minority of people whose mental disorder does not respond to any available treatment. They continue to experience profound and persistent suffering, in spite of everything that has been tried. This reality is similar to that found with other brain diseases and, indeed, with other non-brain diseases.

Sadly, regardless of whether the illness is a mental illness or another type of illness, occasionally, people do not get well with any of the treatments that we have. Some, but not all, of these people suffer intolerably.

Additionally, some commentators would like us to believe that they — and not the patient — best understand the suffering that the patient experiences. They would have us accept a person being forced to continue to suffer intolerably — for years or decades — while waiting for some miracle cure to surface, just in case it might occur, and because they say so.

They promote the narrative that a competent person with a mental illness — who is suffering terribly, persistently and unremittingly — should not be able to decide how they choose to proceed with their life, even though someone with another type of illness can do so. This is another form of stigma against people who have a mental illness, and misinformation worsens stigma.

Colleagues, since we all have a role to play in correcting health misinformation when we become aware of it, it would behoove us — as members of the upper chamber — to also do so for MAID MD-SUMC. I will now remind us all of the responsibilities established through Bill C-7 by Parliament to promote MAID MD-SUMC readiness. I will then provide an update on what activities have been undertaken to date by the federal government to assist in that readiness.

I’ll start off with Bill C-7’s requirement that:

A comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities must be undertaken by a Joint Committee of both Houses of Parliament.

Bill C-7 also mandated the Minister of Justice and the Minister of Health to:

. . . cause an independent review to be carried out by experts respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.

Bill C-7 also mandated the government to revise the regulations on reporting MAID cases in order to require the collection and analysis of a wider range of information about MAID requesters — most notably, race, indigeneity and disability.

One can reasonably ask this: What progress has been made on all of this?

First, let us consider the Regulations for the Monitoring of Medical Assistance in Dying, which outline the reporting requirements relating to MAID requests. These regulations came into force in November 2018, but were recently revised to ensure significantly enhanced data collection and reporting on MAID activity. Most notably, the regulations now require the collection of data based on race, Indigenous identity and the presence of a disability. The revised regulations came into force on January 1, 2023, and the collection of this enhanced data has already begun. I note that these changes are partially a result of amendments made to former Bill C-7 by this place, as proposed by our honourable colleague Senator Jaffer, and supported by many others.

Second, let us consider the Special Joint Committee on Medical Assistance in Dying. As you all know, the final report of the special joint committee was initially due last year, but this due date was pushed back. The final report was recently tabled — about one month before the mental illness exclusion is set to expire. Without the extension, this delay would make it very challenging for the federal government to meaningfully consider the final report and recommendations before the expiry of the mental illness exclusion. With the extension, the federal government will have time to consider the report and recommendations.

The Expert Panel on MAID and Mental Illness — created by the federal government — conducted its independent review. Its final report was tabled in Parliament on May 13, 2022. This report includes valuable information about — and analysis of — the issues associated with MAID for mental disorders. For those who have not yet had an opportunity to do so, reading the report is a useful part of preparation for consideration of the bill before us now. This report includes the recommendation that the federal government facilitate the development of a model practice standard that could be adopted or adapted by regulatory bodies.

Health Canada established an independent task group to produce this model practice standard. This model practice standard for assessing complex MAID requests, including requests where the sole condition is a mental illness, has been developed by a task group including clinical, regulatory and legal experts. The task group also prepared a model “Advice to the Profession: Medical Assistance in Dying” document to supplement the practice standard that regulatory bodies can use to provide clinical guidance to MAID providers seeking information about specific aspects of MAID MD-SUMC.

Regulators, provincial ministries, territorial ministries, health care authorities and clinicians from coast to coast to coast have now provided feedback to the task group on the draft model practice standard and draft “Advice to the Profession.” These have been reviewed and revised based on the inputs. The model practice standard and the “Advice to the Profession” document are now in translation and will be released very soon. At that point, they can be adapted or adopted by the various regulatory bodies that are responsible for how MAID will be delivered in each province and territory.

To remind us, it is these regulatory bodies that set the clinical and ethical standards of practice for all care, including MAID, and give guidance and direction to physicians and nurse practitioners. They do so in the interest of public protection — this is their primary mandate. They are independent of government control, answer to the public and are entitled to apply disciplinary sanction on their physician and nurse practitioner members up to, and including, definitive revocation of licensure. While each regulatory body is independent of each other, and of government, the creation of a model standard of practice and “Advice to the Profession” — which can be adapted or adopted by each province and territory — will go a long way to protecting the vulnerable, and to improving harmonization of MAID delivery across Canada.

It is important to note that this is, to my knowledge, the first time that such a federal government-led, collaborative and comprehensive approach to practice standard development and “Advice to the Profession” considerations has ever occurred in Canada.

Additionally, with funding provided by Health Canada, the Canadian Association of MAID Assessors and Providers, or CAMAP, has been developing a Canadian MAID education curriculum since October 2021.

CAMAP is an organization that is made up of nurse practitioners and physicians, including family physicians, hospitalists, psychiatrists, internists, anaesthetists and neurologists, who provide MAID services, including assessment for eligibility and the provision of MAID itself.

CAMAP’s main purpose is to support those who work in this field by providing clinical guidance and education to both those who are new to MAID, as well as to those who are seeking to enhance or deepen their knowledge.

This national educational curriculum is being developed by a diverse group of experienced MAID clinicians from across Canada who have come together to share their expertise in a series of training modules that will cover the entire spectrum of MAID care. This process is overseen by a consortium that includes representatives from CAMAP and a national advisory committee with multiple stakeholders including the Royal College of Physicians and Surgeons, the College of Family Physicians of Canada, the Canadian Nurses Association, the Indigenous Physicians Association of Canada, the Canadian Indigenous Nurses Association, the Society of Rural Physicians of Canada, the Canadian Psychiatric Association, the Association des médecins psychiatres du Québec and other stakeholders including persons with lived experience — families and other supporters of people who have had MAID.

The training modules will be accredited by the Royal College of Physicians and Surgeons, the College of Family Physicians of Canada and the Canadian Nurses Association. This is, to my knowledge, the first time in Canadian history that a health care curriculum has been developed from federal government funding and simultaneously accredited by these three bodies.

Once completed, CAMAP’s educational curriculum will consist of seven training modules, including a background to MAID in Canada; difficult clinical conversations; basic and complex MAID assessments, including a detailed understanding of capacity and vulnerability; and basic and complex MAID provisions. There is a module dedicated entirely to MD-SUMC. All of the modules also include resources to help those involved in MAID care to remain well as they undertake this important work.

The purpose of this accredited MAID curriculum will be to train new and experienced MAID practitioners across the country and, thereby, contribute to the development of knowledge and skills among practitioners, standardization of practices across the country and contribute to the high-quality provision of care in the context of MAID. Rollout of this curriculum is expected to begin this fall.

All of this progress is truly remarkable and is the result of the federal government’s leadership and collaborative efforts with health system partners, such as provincial and territorial governments, health professional organizations, regulatory bodies, clinicians and other organizations. As I previously mentioned, to my knowledge, this is the first time in Canadian history that the federal government has demonstrated such initiative in supporting the development of an accredited health training program.

So that is the progress report on the federal contributions to readiness.

At this time, I want to caution against allowing the continuing and enlarging storm of misinformation to impact our considerations of the bill before us. First, I want to address one important issue arising from the expert panel report that has become part of the misinformation industry surrounding MAID MD-SUMC. That is, unlike all other illnesses, including chronic pain, it is never possible to determine if a person with a mental illness has a “grievous and irremediable” medical condition. As you know, this is a legal and not a clinical term. The expert panel has provided a thoughtful and substantive approach as to how this legal term can be translated into clinical practice related to MAID MD-SUMC. This will be further articulated in Canadian clinical practice through the regulatory bodies of physicians and nurse practitioners in each province and territory that establish the standards of practice for MAID.

As I previously said, a Canada-wide input into the consideration of how this will be embedded into practice standards has already been completed and is ready for translation and dissemination. Through practice standards, the regulators will set the criteria that must be adhered to in the clinical interpretation of that legal phrase. This, as with all medical practice, will be further refined as clinical practice evolves.

Of additional interest, The Canadian Journal of Psychiatry recently, in 2022, published the results of a two-round Delphi procedure in which psychiatrists established 13 consensus criteria for determining “irremediable psychiatric suffering.” These criteria are very similar to those provided independently of this process by the expert panel.

Colleagues, it is simply incorrect to say that “grievous” and “irremediable” are terms that can never be appropriately clinically defined in psychiatric practice. Indeed, they have been. While some commentators may not agree, that does not mean that this issue cannot be properly defined, nor does it mean that the clinical definition offered by the regulatory bodies is inappropriate. Just because someone doesn’t like a clinical definition doesn’t mean that definition fails to meet the threshold for its utility, reliability or validity.

Just so everyone understands where we actually are with respect to the understanding of “grievous and irremediable medical condition” and “incurability” and “irreversibility,” the expert panel was of the view that, in the context of MAID, mental illness may be grievous and irremediable where a person has a long-standing condition leading to functional decline and for which they have not found relief from suffering, despite an extensive history of attempts with many different types of interventions and supports tailored to their specific diagnosis and related issues.

The panel further recommended that each MAID assessor should come to an independent understanding with the requester that an illness, disease, disability or functional decline causes the requester enduring and intolerable physical or psychological suffering, and — this is important — that each be done on a case‑by-case basis as the nuances of each situation require a personalized approach.

A key feature of this recommendation is that a person meeting the criteria identified by their expert panel makes the decision that their condition is “grievous and irremediable” in collaboration with each MAID assessor. It is not a single health care provider who alone makes the decision for the person.

In my opinion, this perspective is consistent with the modern medical practice of both evidence-based care and patient-centred care as these are discharged in the context of complex conditions and reflect the evolution of medical care from an autocratic, paternalistic approach to the engagement of the medical provider as a partner in the patient’s care. After all, it is the person who is suffering who needs to be heard.

That, by the way, colleagues, is what the word “patient” actually means — one who suffers.

This also reflects the reality of modern medical practice in which all pertinent information is gathered, and medical intervention decisions in complex cases are made on a case-by-case basis. There is no cookbook recipe or checklist for complex medical decisions. All complex medical decisions are made case by case because they must be tailored to the individual, the person’s medical condition, the totality of all interventions provided and the impact of those on the person’s unique situation and the person’s own aspirations and needs. Complex medical decisions also involve more than one highly trained health care provider. These decisions are made collaboratively with a well‑informed patient; they are not dictated to the patient.

Every patient must be treated for who they are, not just for the disease that they have. No two people are exactly alike, and what should be done in the best interests of the patient must not be provided by a predetermined recipe or checklist, but by three equal factors: One, the competency and training of the clinician; two, the best available evidence about the health problem and available interventions; and three, the needs and wishes of the informed patient.

This trifecta is what defines evidence-based care, and it can only be provided using case-by-case decision making. This is the foundation for modern medicine’s commitment to patient-centred care.

When I was in medical school, I had the incredible privilege to be introduced to the framework for evidence-based and patient‑centred care by Dr. David Sackett, the pioneer of evidence- and patient-centred medicine.

Dr. Fraser Mustard, the dean of our school, and two of my most revered teachers, Dr. Jack Laidlaw and Dr. Bill Spaulding, repeatedly reinforced that we don’t intervene in diseases; we intervene with people who are suffering from a disease. We don’t use recipes or checklists; we use our best clinical judgment, the best evidence we have and we are led by the needs and wishes of our patients. We also don’t fly alone. The more complex the case, the more important it is for us to involve other clinicians. Decisions regarding interventions in complex cases arise from this reality.

Colleagues, if we expect that for MAID where a mental disorder is the sole underlying medical condition, or MAID MD‑SUMC, a situation that calls for complex decision making, clinicians should be making decisions based on a cookbook recipe or a checklist, and if we accept that we should ignore the foundational principles of evidence-based medicine and patient‑centred care for those who suffer from a mental illness, while at the same time using these same tools in helping make intervention decisions for those whose suffering is not solely determined by a mental illness, we are denying those with a mental illness the same high-quality care that we provide to those who have a different type of illness. Colleagues, this is not only stigma, it is discrimination.

Friends, when the time comes — and for some of us, it already has — that we or a loved one is dealing with a complex and pernicious illness, such as cancer or end-stage heart failure, I am sure we would all want to be treated on a case-by-case basis. We would want our clinicians to understand who we are as a person and to do their best to help us while respecting our needs and wishes. Why would we accept that we — or any one of us who may have a mental illness — should not be treated that way?

I would also like to remind us that, given the law regarding MAID in Canada, at least two — and sometimes three — different, highly trained clinicians must independently and together with the patient come to the decision that the patient’s condition is “grievous and irremediable.” If the clinicians do not agree, then the MAID process does not proceed. The decision of what constitutes “grievous and irremediable” is not made by a solo practitioner with doubtful competencies; quite the contrary.

Finally, on this point, many of us have heard that a person who, for example, may be psychotic and refusing an effective treatment would be able to receive MAID. This is also not true. A person who is psychotic would not be found competent to make that decision. The minimum 90-day period between request and provision would give ample time for the appropriate in-depth evaluations to be carried out by multiple clinicians addressing this issue, especially since this is a minimum period and clinicians will take as much time as they think is necessary to form opinions about eligibility. Furthermore, a capable person cannot refuse all or most interventions and automatically render themselves incurable for the purposes of accessing MAID.

A MAID assessor cannot form a judgment about eligibility in the absence of evidence needed to form that judgment. As such, when reasonable treatments are left to be tried, MAID eligibility cannot be found.

Honourable colleagues, ongoing misinformation about MAID MD-SUMC continues to spread, misleadingly suggesting that persons with mental disorders requesting MAID will be treated in a haphazard, irresponsible and unregulated manner. However, as evidenced by a careful look at the law itself and the regulatory and practice context within which the law sits, this is not the case. In fact, the opposite is true. MAID MD-SUMC will be provided under perhaps the most comprehensive and robust federally facilitated health regulatory and training interventions ever created in this country.

Returning to the task immediately at hand — namely, consideration of a bill extending the period of ineligibility — I think we can all agree that significant progress has been made. However, I believe it would be best to extend the period for one more year. I am confident that one more year will be enough time for the dissemination and uptake by the nursing and medical communities of the key resources I just discussed, as well as increased familiarity with the new reporting regulations.

The Minister of Justice has also said that one more year will provide sufficient time for the federal government to carefully consider the final report of the Special Joint Committee on Medical Assistance in Dying. One more year strikes the balance between ensuring that people can access MAID on the sole basis of a mental illness as soon as possible and ensuring that this change is done at a time when the more robust data gathering is well-established and health care stakeholders have had more time to familiarize themselves with the practice standards and training materials.

Additionally, I am of the opinion that the federal government must do a much better job of communicating with Canadians about the complex and nuanced aspects of MAID.

One critical component of this communication is that the federal government must be clear about what “being ready” means in the context of its role regarding MAID. In my opinion, “being ready” means that four conditions have been met: One, that the model practice standard is finalized, published and distributed to regulators in each province and territory; two, that the certified MAID training program has been completed and is available for access by MAID practitioners; three, that the updated reporting requirements have been implemented and the government has begun to gather the data that will be critical for our ongoing assessments of the MAID system in Canada; and four, that the government has had time to consider the joint committee report.

In closing, I want to take a moment to speak directly to those people who have been waiting to become eligible to receive MAID in March 2023 and who will surely be disappointed by this extension of the period of ineligibility.

I have heard from some who express anguish over this delay. It is important that we all acknowledge the additional prolonged suffering that those who have been waiting will continue to experience. I know that the suffering caused by a mental illness can be just as severe as, or even worse than, that caused by a physical illness. I want to assure those who are waiting that, although unfortunate, I think this extension is necessary to help ensure that MAID MD-SUMC requests can be properly assessed and appropriate decisions can be made.

This extension should not be taken to be an endorsement or validation of the misinformation being circulated about MAID MD-SUMC. This extension does not question the capacity or autonomy of competent people with mental illness to make their own health care decisions. This extension does not question the reality of mental disorders or the profound suffering that occurs when treatments have been tried and all have failed.

I invite all honourable senators to join me in support of this bill so that we can help ensure that Canada has a MAID regime that is carefully considered, appropriately equipped and responsive to the complex dynamics inherent in this important issue.

Wela’lioq, thank you.

[Translation]