Terms of Reference: Expert Panel on MAID and Mental Illness

Preface

On September 11, 2019, the Superior Court of Quebec ruled in favour of two plaintiffs (Jean Truchon and Nicole Gladu) who had challenged the Criminal Code medical assistance in dying (MAID) eligibility requirement that an individual’s natural death be reasonably foreseeable as well as Quebec’s provincial requirement for a person to be at the end of life (Truchon v. Attorney General of Canada). The governments of Canada and Quebec did not appeal the decision.

Bill C-7 An Act to Amend the Criminal Code (Medical Assistance in Dying) was introduced to respond to the Superior Court of Quebec decision in Truchon. The Bill received Royal Assent on March 17, 2021. This legislation expands access to MAID to include individuals whose death is not reasonably foreseeable, while also amending other aspects of the safeguards included in the law.

Bill C-7 excludes individuals with a mental illness as their sole underlying medical condition from access to MAID, but the exclusion is subject to a 24 month sunset clause. The Government of Canada recognizes that mental illnesses are serious conditions that can cause suffering on par with that of physical illnesses. At the same time, it acknowledges that there are multiple complexities associated with allowing MAID for individuals suffering solely from mental illness. These include concerns as to whether a person’s condition can be assessed as “incurable” or “irremediable,” challenges in assessing capacity, and disentangling the common symptom of a desire to die from a genuine MAID request arising from enduring and unbearable suffering. In addition, there are concerns that permitting MAID for persons with severe mental illness might be regarded as running counter to, and/or undermining, public policy and initiatives aimed at reducing suicide and suicidal ideation, particularly among groups or communities with relatively higher rates of suicide. 

In recognition of these challenges, the Bill includes an obligation for the Minister of Health and the Minister of Justice and Attorney General of Canada (Ministers of Health and Justice) to initiate an independent expert review “respecting recommended protocols, guidance and safeguards to apply to requests for medical assistance in dying by persons who have a mental illness.” The report of the experts’ conclusions and recommendations must be submitted to the Ministers by March 17, 2022 (i.e., within one year from the date of Royal Assent of Bill C-7). This work will help ensure that practitioners are equipped to assess these requests in a safe and compassionate way based on rigorous clinical standards and safeguards that are applied consistently across the country.

The role of the Expert Panel is to provide independent advice on safe and appropriate approaches to the assessment and provision of MAID to individuals living with mental illness who are seeking this avenue to end their intolerable suffering and to recommend potential legislative safeguards. Its role is not to debate whether or not persons with a mental illness as their sole underlying medical condition should be eligible for MAID.

Mandate

The mandate of the Expert Panel is to make recommendations with respect to:

• Protocols and guidance for the assessment and provision of MAID for persons with a mental illness for use by national, provincial and territorial health professional bodies and medical practitioners.
• Additional safeguards for inclusion in federal legislation to support the safe implementation of MAID for persons with a mental illness.

This mandate includes considerations for persons with mental illness as their sole underlying medical condition and those with concurrent mental and physical illness.

The Expert Panel will submit a report containing its conclusions and recommendations no later than 12 months after the coming into force of Bill C-7 (i.e., March 17, 2022). The Ministers of Health and Justice are obligated in Bill C-7 to table the report in each House of Parliament within 15 days of receiving it. This will provide time for the Government to consider introducing legislative amendments to the federal MAID regime and for Parliamentarians to consider those proposals, and for professional regulatory bodies and associations to develop appropriate guidance and resources prior to the sunsetting of the exclusion for mental illness on March 17, 2023.

The Expert Panel will take into consideration, and build upon, previous reports on the topic of MAID for persons with mental illness and their sources, such as the report by Council of Canadian Academies on this subject, reports of health professional associations and other relevant documents.

The Expert Panel will also take into consideration expert testimony and briefs on the topic of MAID for persons with mental illness delivered during the review of Bill C-7 undertaken by the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs.

Recognizing that the Special Joint Committee on Medical Assistance in Dying is undertaking its Parliamentary Review of MAID legislation during the same time period as the Expert Panel and will also examine the issue of mental illness (as required by Bill C-7), the Expert Panel will be kept apprised of relevant developments as this process unfolds.

Governance

The Expert Panel operates under the general parameters of the Health Canada Policy on External Advisory Bodies.

The Expert Panel is responsible for the content of its final report, including a summary of its process, key evidence and findings, and its conclusions and recommendations on the two mandated topics. The Panel’s report is to be submitted to the Ministers of Health and Justice.

The Expert Panel will be supported by a federal Secretariat located in Health Canada.

Membership Nomination Process

Prospective members of the Expert Panel will be identified through a targeted solicitation process. The goal of this process is to ensure that together, members have a range of knowledge and expertise, and embody the array of professional experience and perspectives required to fulfill the Panel’s mandate. The Government of Canada promotes diversity and inclusiveness in Expert Panel membership.

Members of the Expert Panel are appointed by the Ministers of Health and Justice. They are appointed at pleasure, and appointments may be ended without cause or consultation.

Membership Considerations

The Expert Panel will be comprised of approximately 8-12 members.

Together, members of the Expert Panel will reflect a range of disciplines and perspectives, including clinical psychiatry, MAID assessment and provision, law, ethics, health professional training and regulation, mental health care services, as well as lived experience with mental illness.

To preserve the independence of the federal government as a decision maker, a federal employee can neither chair nor be a member of the Expert Panel, and cannot participate in the formulation of the Expert Panel's advice to the Ministers of Health and Justice.

Affiliations and Interests

All members are required to complete and return the Affiliations and Interests Declaration Form. The personal information in a completed Affiliations and Interests Declaration Form is considered confidential and protected in accordance with the federal Privacy Act and Access to Information Act. A summary of the information in this form may be made public with the permission of the member who signed it.

As a condition of appointment, an Expert Panel member must prepare and give Health Canada permission to publish a brief biography and summary of expertise, experience and affiliations and interests on its website and through additional means, as needed.

Members must update their declaration in writing whenever their situation changes during the course of their term on the Expert Panel.

Confidentiality

Specific advice to the Ministers of Health and Justice will be treated confidentially by the Expert Panel members. Expert Panel members will be required to treat the final report as confidential until it is tabled in Parliament by the Ministers of Health and Justice.

All Panel members or others attending any Panel meeting must sign a Confidentiality Agreement before participating in the Expert Panel as a member, presenter, or observer. The Confidentiality Agreement prohibits the disclosure of any confidential information received through the Expert Panel, including information received orally or in writing, through email correspondence, telephone calls, print materials, meeting discussions, etc.

Indemnification of Members: When Serving as Volunteers

All members serve on a volunteer basis. Health Canada undertakes to provide its volunteer Expert Panel members with protection against civil liability provided the volunteer member acts in good faith, within the scope of their duties as a panel member; and does not act against the interests of the Crown.

Recommendations provided to the Ministers of Health and Justice are based on Expert Panel discussions and must have the general endorsement of the majority of committee members. Members act collectively as advisors to the Ministers with respect to the mandate of the Expert Panel but they are not final decision-makers. The Ministers of Health and Justice have the ultimate responsibility and accountability for any decisions or actions resulting from the recommendations received from the Expert Panel.

Travel and Expenses

It is expected that most meetings will take place via tele- or video-conference, particularly in the near term, given public health measures in place during the COVID-19 pandemic. Should these circumstances change during the Expert Panel’s tenure, members would be reimbursed for expenses incurred on approved travel, such as trip costs and accommodation, according to the Treasury Board's Directive on Travel, Hospitality, Conference and Event Expenditures.

Resignation Process

It is preferable for a member to provide 14 days’ notice of the intent to resign. The resignation letter must be in writing and be addressed to the executive secretary and to the Chair and Vice-chair. The letter should state the effective date of the resignation.

Roles and Responsibilities

Expert Panel Members

Members of the Expert Panel are expected to interact in an unbiased, professional, respectful, and fair way with the Chair and Vice-chair, other Expert Panel members, the Secretariat, government officials, stakeholders, and the public. They may not use their position on the Expert Panel for private gain or for the gain of any other person, company, or organization. Members of the Expert Panel have a responsibility to the Government of Canada and, by extension, to Canadians, to give their best advice based on their professional judgement and the available evidence.

Other responsibilities include:

• Actively participating in Expert Panel meetings and discussions, which may include email exchanges, conference calls, videoconferencing and webinars.
• Becoming familiar with key documents and issues relevant to their mandate, through the review of written documents provided in advance of meetings.
• Applying their expertise and experience, and considering all input received in the course of developing advice for the Government of Canada.
• Actively contributing to the development of reports drafted as part of the Expert Panel's mandate.
• Notifying the Secretariat and the Chair and Vice-chair of any changes in their affiliations and interests related to the Expert Panel's mandate during their tenure.
• Directing any media inquiries to the Secretariat and the Chair and Vice-chair.

Chair and Vice-chair

The Expert Panel will be led by Chair and Vice-chair – representing the fields of psychiatry and law. The Chair and Vice-chair of the Expert Panel have additional responsibilities, including:

• Working with the Secretariat to develop a plan for the work of the Expert Panel and then leading the Expert Panel to meet those objectives.
• Chairing meetings of the Expert Panel.
• Facilitating a full and frank discussion among Expert Panel members in fulfillment of the Expert Panel’s mandate, including in formulating its recommendations, advice, or report to Health Canada
• Ensuring that discussions of the Expert Panel remain in line with its mandate.
• Indicating when information and discussions are considered confidential and clarifying expectations regarding both protected information and Panel deliberations.
• Seeking consensus amongst members of the Expert Panel, and if there is not agreement, ensuring that the diversity of opinion is noted in the meeting records and reports.
• Participating as witnesses in the Parliamentary Review of MAID legislation, if required.
• Providing at least one interim progress report to the Ministers (by approximately November 2021- exact date to be determined)
• Providing a briefing to senior officials on the conclusions and recommendations contained in the final report, prior to its submission to Ministers.
• Presenting the Expert Panel's final report to the Ministers.
• Supporting, in any other way, the fulfillment of the Expert Panel's mandate.

Secretariat

The Secretariat of the Expert Panel is housed in Health Canada’s Strategic Policy Branch. The Secretariat is the administrative liaison between members of the Expert Panel and the departments of Health and Justice.

The Secretariat provides leadership and strategic advice in the management of the Expert Panel and works closely with the Executive Secretary, the Chair and Vice-chair, the departments and Ministers’ Offices (Health and Justice). The Secretariat is also a resource for members of the Expert Panel.

Additional responsibilities of the Secretariat include:

• Coordinating the process of soliciting members.
• Coordinating the preparation and distribution of materials for Expert Panel members, observers, and others.
• Attending and providing support during Expert Panel meetings.
• Providing administrative support to Expert Panel members.
• Supporting public access to information about the Expert Panel, as appropriate.
• Preparing and circulating records of decision to members for review and confirmation.
• Supporting the preparation of the Expert Panel’s interim progress report.
• Supporting preparation of the Expert Panel’s final report.
• Undertaking any tasks delegated to it by the Executive Secretary
• Report to the Executive Secretary on the activities of the Expert Panel
• Carrying out any additional duties as appropriate to support the activities of the Expert Panel.

Executive Secretary

The Expert Panel’s Executive Secretary is a senior Health Canada executive who provides guidance to and makes decisions about the administration and operation of the Expert Panel. The Executive Secretary works closely with the Chair and Vice-chair, Secretariat and Department of Justice officials.

The Executive Secretary advises the Expert Panel at the beginning of each meeting on next steps.

The Executive Secretary may delegate these responsibilities to another senior staff member of Health Canada.

Media and Communications

Members are expected to notify the Secretariat of any media enquiries related to the Expert Panel’s work and direct such enquiries to the Secretariat.

All media requests related to the Expert Panel's statements or activities will be directed to Media Relations, Health Canada, who will coordinate responses with its counterpart at the Department of Justice and the designated media spokesperson.

Management and Operations

Transparency

The Government of Canada is committed to transparency as an operating principle. Transparency of the Expert Panel is served by:

• Ensuring that meeting schedules are predictable, where possible.
• Posting information about the Expert Panel on Health Canada's website, including, but not limited to, the terms of reference, the membership list and biographies, the declaration of affiliations and interests, and the final report after it is tabled in Parliament.

Meeting Agendas

The Chair and Vice-chair, in consultation with the Executive Secretary, or his/her delegate, and with input from the members, prepare meeting agendas, including identifying questions and issues for discussion.

Meeting Notices and Invitations

All meetings are scheduled at the call of the Chair and Vice-chair, and in consultation with the Executive Secretary or Secretariat. Meetings may be limited to Expert Panel members only or may be opened to presenters and observers by invitation.

The Secretariat sends out the meeting invitations.

Frequency and Type of Meetings

Expert Panel meetings will generally be scheduled on a monthly basis, with the likelihood of additional meetings to consider specific work streams associated with its mandate. Meetings will be held primarily by video- or tele-conference.

Observers

The secretariat, in consultation with the Chair and Vice-chair, may allow or invite individuals or organizations to observe a meeting or part of a meeting. Observers may not provide input on agenda items or participate in the discussions, unless specifically invited to do so by the Chair and/or Vice-chair, or the Secretariat in consultation with the Chair/Vice-chair.

Invited Presenters

The Secretariat or the Chair and/or Vice-chair, in consultation with the Executive Secretary, may invite individuals with particular expertise or experience to provide input on a specific topic or agenda item. Invited guests may participate in the discussions if the Chair and/or Vice-chair specifically invite them to do so, but they do not participate in the development, review or revision of reports.

Requirements of presenters and observers

Health Canada may require an invited presenter or observer to complete:

• Declaration of Affiliations and Interest Form
• Confidentiality Agreement
• Personnel Screening, Consent and Authorization Form

Deliberations and reports

Advice from the Expert Panel will be provided to the Ministers of Health and Justice in the form of a final report.

The Expert Panel is encouraged to reach a consensus on its formal advice whenever possible. When a consensus is not possible, the meeting record will reflect the diversity of opinions.

The Expert Panel must have quorum when making recommendations to the Ministers of Health and Justice. Quorum is one half of the members plus one.

Records of proceedings will be prepared by the Secretariat and circulated to members for review and confirmation.

The Expert Panel’s final report will be posted on Health Canada’s website, once tabled in Parliament.