Alberta Psychedelic Sunrise – Again – Part 1

Part 1 – The Big Picture

Disclaimer:?This is not legal advice.

What happened??Yesterday, October 5, 2022, an Order in Council published called The Mental Health Services Protection Amendment Regulation, AR 351/2022.?The Order in Council is scheduled to become law on January 16, 2023 by amendment of the Mental Health Services Protection Regulation (the “MHSPR”) (AR 114/2021), under the Mental Health Services Protection Act (SA 2018 c M-13.2).?

The Order in Council is enclosed with this article.?The Order in Council touches on a few points, including addiction, all of which are important but not the focus of this article.?Therapeutic use of psychedelics are addressed is in “Part 3”, which starts on page 20.?The Act and the and the current MHSPR are easy to find online:?https://kings-printer.alberta.ca/_index.cfm.

What does the updated MHSPR mean??The practice of medicine and other healthcare professions as those practices relate to use of psychedelics – including ketamine – to treat psychiatric disorders will be specifically regulated in Alberta by the MHSPR.?The amended MHSPR will require that a licence be held by any clinic providing psychedelic assisted psychotherapy or other psychedelic drug treatment services in Alberta.?A licence holding clinic must, among other requirements, appoint a psychiatrist as medical director of the clinic.?Standards will be published by the Alberta Minister of Health, which will also be binding on licence holders.

Who should act??Any clinics or practitioners who offer or are interested in offering ketamine in support of psychotherapy, and any clinics or practitioners who intend to work with any psychedelics in support of psychotherapy.?These clinics and practitioners should stay informed and assess whether and when to apply for a licence.?The application process is not yet defined.?Any clinical use of ketamine that is not for psychedelic supported psychotherapy is not subject to the amended MHSPR.

What does the updated MHSPR not mean??The change in the law has zero to do with products that are or will be available in Alberta.?If and when drug products that include psychedelics as an active pharmaceutical ingredient are available, whether through the pharmaceutical system or otherwise, this change in the law will affect the circumstances under which those products may be accessed.?Put otherwise, the amendment to the MHSPR does not allow new products to provided to patients in Alberta – that would be determined under federal law and would be regulated both under the Controlled Drugs and Substances Act (the “CDSA”) and the Food and Drugs Act.

In Canada, regulation of drug products (i.e. whether or not a medication is approved or available) and regulation of controlled substances (i.e. prohibition on possession subject to authorizations), is within the power of the Government of Canada, and outside of provincial governments’ power.?Federalism.?If you are following Canadian controlled substance law, then you may be wondering how that statement is consistent with the proposed suspension of the prohibition on possession for up to 2.5 g total of cocaine, heroin, fentanyl, methamphetamine, MDMA in British Columbia, which may or may not take effect in the new year.?For context, while that change applies to British Columbia only, it is effected by an exemption under subsection 56(1) of the CDSA, which is federal law.?See:?https://www.canada.ca/en/health-canada/news/2022/05/bc-receives-exemption-to-decriminalize-possession-of-some-illegal-drugs-for-personal-use.html

Is the updated MHSPR a good thing??In my view, the fact that a provincial government has given this much effort to regulating therapeutic use of psychedelics is a good thing.?It shows that the Government of Alberta is aware of the potential for more expansive therapeutic use of psychedelics.?Whether the Government of Alberta’s approach is an effective one depends on priorities and perspective – and remains to be seen both in terms of Standards that will publish and how those Standards are implemented.

Any regulation that applies standards to provision of a service will necessarily result in two things – a barrier to access and an increased chance that the prescribed standards are in fact being applied.?Where the barrier to access appropriately allows a sufficient number of capable service providers to practice, the prescribed standards are well-designed, and the chance is high that the standards are applied, then the regulation would generally be considered successful.

In this case, the risk of unduly limiting access is balanced against the risk that excessive therapeutic access to psychedelics will result in harm.?An assessment of whether the new law in Alberta effectively balances these risks depends on your point of view.?The Standards have not yet been published by the Minister of Health, and the regulations do not yet apply, so we are likely to see more valuable information about this development in the near future.

For more detail, please see Part 2 of this Article, which also published today.?I am happy to connect on Canadian and international law related to cannabis, and to psychedelics and other controlled substances.

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