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Senator Plett speaks on the danger of rushing Bill C-7, a matter of life and death, through the Senate

February 10, 2021 (Ottawa, ON) - The Honourable Don Plett, Leader of the Opposition in the Senate, issued the following statement:

I do have an amendment at the end of my speech.

Honourable senators, I rise today to bring forward an amendment that I hope will alleviate some of the concerns raised by the disability community, specifically about the coercion of vulnerable patients to accept physician induced death.

Given the well-established power imbalance in the doctor-patient relationship and the intensification of that imbalance when the patient is vulnerable, patients have often felt pressured to accept assisted suicide when it has been suggested to them.

Dr. Ramona Coelho testified at committee, as a family doctor with many vulnerable and impoverished patients. She asserted that Bill C-7 must include a provision that MAID conversations be patient-led. She told the committee:

When you’re faced with loss of function, denied essential supports, living in poverty, things can be overwhelming for all of us. There is a subtle kind of coercion that can take advantage of such a patient’s state, signaling to them that they are better off dead.

Dr. Ramona Coelho gave poignant examples of the sacred and unquestioning trust vulnerable patients can have in their physicians, and cautioned against exposing this vulnerability to an end-of-life situation.

She asked us, out of respect for these patients, for clarity in the bill in terms of bringing up MAID.

Dr. Catherine Ferrier raised a similar concern when she testified at committee, stating:

I would also make it illegal to suggest it to anybody ever, and that includes just listing it as one of the options. Because, as health professionals, we have a power differential. What we raise as an option is often understood as a recommendation, even if we don’t intend it that way.

Dr. Leonie Herx, in response to the notion that MAID should be introduced alongside other medical options, stated:

But MAID is not just another option. It is irreversible. It has significant ethical and professional implications. If a doctor introduces MAID, this may be all the push that is needed to nudge a person to pursue it.

This amendment was also a direct request from the Council of Canadians with Disabilities, the Canadian Society of Palliative Care Physicians, Siksika Nation and many other physicians and organizations.

What is the problem, one might ask, with a patient being presented with all the options? In many cases, probably nothing. However, this fear is not a hypothetical one. We know this has happened with extremely vulnerable patients. We know that many have been offered death repeatedly when they have demonstrated absolutely no interest.

When the result of this pressure could be death, we must act. By now I am sure we have all heard the story of Roger Foley, a man from London, Ontario, who has been diagnosed with a neurological disorder that limits his ability to move his arms and legs. While in the hospital for years, he repeatedly asked for help in finding adequate assisted home care. Instead, he was offered assisted suicide on at least four occasions by medical practitioners, although he demonstrated no interest in dying. He recorded one such incident, which received widespread media attention. This incident even caught the attention of the UN Special Rapporteur on the rights of persons with disabilities, who ultimately wrote a strongly worded letter expressing great concern and strong recommendations for Canada. We now know that the concern of the UN on this issue has only grown.

When I raised this with the Honourable Carla Qualtrough, the minister for disability inclusion, she acknowledged the power imbalance and agreed that it is problematic for a physician to raise the option of an assisted suicide with a patient who has demonstrated no interest. When I asked her specifically about Roger Foley, she said:

I have grave concerns with the particular circumstances of the individual that you spoke of. Quite frankly, I can tell you, he is not alone. I regularly hear from families who are appalled by the fact that they take their child, potentially their older child and are offered unprovoked MAID. I think that has to stop.

She also expressed a willingness to consider the amendment I am proposing today, which I consider a win for the disability community.

The minister is correct: Roger Foley is not alone. At committee, Krista Carr from Inclusion Canada referenced many examples of documented MAID coercion. Last week, when Jonathan Marchand testified at the committee, he explained that after he ended up in intensive care and was given an emergency procedure to help him breathe with the assistance of a ventilator, he was told that he would require 24-hour-a-day care. He said:

Unable to speak, several doctors pressured me to accept euthanasia, ”comfort care“ as they called it, to end my life. I never asked for this.

Colleagues, this is heartbreaking and disturbing, and I hope we are all taking note.

Senator Dalphond pointed out earlier this week that Jonathan Marchand was finally given home care after his Senate committee appearance, and that he was no longer committed to a hospital room for the rest of his life. I truly could not be happier for Mr. Marchand. However, I frankly think it is a tragedy that it took an appearance before a federal parliamentary committee for Mr. Marchand to be heard and seen. He was occupying a space, honourable senators, in front of the National Assembly in Quebec for five days and nights a week to protest what he deemed to be his incarceration. It provides me no comfort that his life became a public relations issue and that action was finally taken. What happens to every other Canadian living with disability or chronic illness who does not have the opportunity to appear before a televised parliamentary committee? I think Mr. Marchand’s letter to Senator Dalphond after he raised this question should put to rest any idea that his concerns have been alleviated or that his life has become any easier.

Honourable senators, the fact that several doctors offered Mr. Marchand death when he was in the depths of despair is something that should cause us all great discomfort. Other jurisdictions have acknowledged this power imbalance and the risk of coercion that exists when physicians are offering assisted suicide to a vulnerable patient who has made no such request. Victoria, Australia, for example, enshrined the requirement I am proposing today into their legislation. That discussion around assisted suicide must be patient-led.

I want to thank the many Indigenous groups and leaders for their important advocacy on this issue. I want to quote one part of their letter we received today stating:

Our population is vulnerable to discrimination and coercion in the health care system and should be protected against unsolicited council regarding MAID. These civil measures should extend to all Canadians.

Colleagues, the rationale is clear. However, let me explain the particular wording drafted by the law clerk’s office and agreed to by stakeholders, physicians and medical doctors we have been working with, as I will not have a final reply to any technical concerns raised given the format of our debate.

The first clause can seem far too broad if read on its own, and I had questions about this myself when I first received the draft. However, the law clerk’s office assured me that in federal legislation, the rule and the exception are traditionally separated as they have been here. The clauses will be read together by anyone responsible for interpreting them. The first clause prohibits a medical practitioner from providing information to a patient who has a grievous, irremediable medical condition. The second clause nullifies this first clause if the patient requests any information about MAID. Colleagues, this will achieve the desired effect, which is that a physician cannot offer MAID to a patient who has not requested it while remaining consistent with federal law.

A similar amendment was proposed in the House of Commons. However, that amendment was punishable by indictment, which was concerning to some, and, perhaps, justifiably so. We have ensured with this proposal that any physician who violates this prohibition would only face a summary conviction.

Why impose a penalty at all? Without a penalty there is no enforceability. There are no teeth, no real protection. One only needs to look at the “for greater certainty” clause with respect to conscience rights in Bill C-14. It may have indicated Parliament’s wishes, however, provinces can and have legislated around this clause. Unfortunately, it was not enforceable. We want to avoid the same pitfall here. The effect of this clause is that vulnerable patients will be protected from coercion, whether subtle or overt, real or perceived, from a physician or practitioner.

We already know the message that Bill C-7 is sending to the disability community, as David Shannon, an Ontario lawyer living with a disability, said in an article:

I want equality in my world and in my place in Canada. How will I ever be equal if people think I should be dead? Over 6.2 million Canadians (22 per cent of the population) have a disability. Should the shining beacon of their lives and the love they give be snuffed out? Life stories lost like tears in the rain.

I know none of us, not even the strongest proponents of this legislation, want to send this message to those living with a disability. However, this is the message that is being heard loud and clear. Let’s make sure this is not the message they hear in their doctors’ offices. If we protect vulnerable patients from undue pressure or coercion, we can prevent unnecessary death. Let’s not let the gravity of that be lost on us. It’s my hope that we can all support this balanced approach to ensure access is not impeded for those who request it, and that we can avoid the horrific pressure experienced by vulnerable Canadians, especially as this regime is radically expanded. With this amendment we will ensure that never again when a patient asks for help, a lifeline or a chance at a hopeful future, will a physician respond by offering them death instead.

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