Psychedelic Therapy Could Revolutionize Healthcare - if Canada Doesn’t Stop it in Court

It’s a miracle Thomas Hartle is alive.

What’s even more miraculous is that the 54-year-old Saskatchewan father of two - who’s battled colon cancer since 2016 and undergone over 70 rounds of chemotherapy - has become an in-demand speaker touting the?psychological benefits?he experienced from psychedelic-assisted therapy with psilocybin “magic” mushrooms.

“Magic mushrooms allowed me to calm the worries in my head…and process those fears in a supportive environment,” he?told the?Vancouver Sun?earlier this year.?

But despite Hartle and others’ testimony that attributes astonishing quality of life improvement to psychedelic-assisted treatment – along with numerous?recent studies?evidencing psychedelic substances’ medical potential – Canada’s federal government is expected to argue, in a just-filed court case, that Canadians lack any right to psychedelic therapy access except via Health Canada’s narrow bureaucratic channel.?

(Thomas Hartle via CBC)

In doing so, the government will be fighting to deny Canadians reasonable access to the most?promising?range of new mental health treatments in decades, and stymieing the growth of an exciting new economic sector in Canada.?

The aforementioned lawsuit was filed on behalf of an assortment of patients - Hartle among them - suffering from cluster headaches, opioid use disorder, and terminal cancer. They’re arguing for a right under Canada’s?Charter of Rights and Freedoms?to individualized psychedelic therapy access free of regulatory hoop-jumping.?

The case is the result of the patients’ frustration waiting for bolder government action that would allow them to access psychedelic therapy without the exhausting obstacles inherent in the current process.?

Their legal effort is being supported by?TheraPsil, the Victoria-based non-profit that helped Hartle obtain Health Canada’s first?medical exemption?to engage in psychedelic-assisted therapy in 2020. In addition to Hartle, with TheraPsil’s assistance, several dozen other applicants also received medical exemptions from Health Canada to engage in psychedelic-assisted therapy with psilocybin over the last two years.

Until recently, those exemptions were provided by the Minister of Health pursuant to s. 56 of the?Controlled Drugs and Substances Act. The provision gives the minister practically unfettered discretion to grant exemptions to the law’s application. But in January, Health Canada amended regulations governing its Special Access Program (SAP) to allow healthcare professionals to submit psilocybin and MDMA (aka “ecstasy”) psychedelic-assisted therapy requests for patients in cases where all other treatment options have failed.

That regulatory amendment appeared to crack the door open for broader access. However, getting applications approved via either s. 56 or the SAP remained difficult and frustrating. Applications are often outright rejected or, in cases where patients are struggling with near-death anxiety due to terminal illness diagnoses, delayed too long to provide the help sought.?

Health Canada’s reasoning behind denials and delays is largely opaque. It's made the application process maddeningly unpredictable.

The lawsuit alleges that the government’s failure to create a more accessible legal regime, where one might obtain psychedelic-assisted therapy through something like a doctor’s reference, violates the constitutional rights of those seeking treatment.?

The patients’ legal team will argue that medical psilocybin use should be a decision involving only a patient and their doctor, who is ethically bound to consider patient interests first and foremost. Government bureaucrats, who currently determine whether patients can access psychedelic-assisted therapy on a per-case basis, have no such ethical obligation and should not be serving as remote gatekeepers of individuals’ healthcare decisions.?

The patients’ legal argument will echo that of the case that brought about Canada’s medical cannabis regime in 2001.?

In?R. v. Parker, the Ontario Court of Appeal found the federal government in violation of s. 7 of the Canadian?Charter of Rights and Freedoms?for barring epileptic Terry Parker from accessing medical cannabis. Section 7 protects individuals’ right to life, liberty, and security of the person.

(Terry Parker via CannCentral)

Parker had been smoking cannabis for years; nothing else he tried reliably managed to control his otherwise-frequent seizures. In 1996, he was criminally charged for illegal cannabis possession and cultivation. He fought the charge and underlying law’s constitutionality on the grounds that he had no other reasonable means of treating his epilepsy.

In deciding the case, the court regarded the government’s interest in shielding the public from the “danger” of cannabis insufficient justification for broadly denying access to those like Parker for whom cannabis provides crucial medical benefits. As a result, the court mandated the creation of a regulated, individualized medical cannabis regime in Canada.?

The plaintiffs now will assert that merely providing a narrow window of access by means of s. 56 or the SAP is likewise a violation of patients’?Charter?rights. And accordingly, an individualized psychedelic therapy regime, per the medical cannabis model, is what?Charter?law demands.?

The federal government will likely argue no such regime is necessitated by law. But it’s not clear why the government should see this as a legal battle worth fighting with taxpayer dollars.?

Leading into the 2021 federal election, the?Psychedelic Association of Canada?(formerly the Canadian Psychedelic Association) asked all major parties whether they supported legalizing psychedelic-assisted therapy. The?Liberals,?NDP, and?Greens?all gave official responses stating they would be either open to it or supportive. (Conservatives gave no official response.)?

In their answers, the parties alluded to the mounting clinical evidence suggesting psychedelic therapy holds considerable medical potential. But in addition to the clear medical and legal argument for making psychedelic therapy access a decision between a patient and their healthcare provider, there’s also the economic argument for legalization. Namely, that it would catapult Canada to world leader status in the rapidly expanding international psychedelics industry.

In the US alone, the industry is projected to grow to?USD $10.75 billion?by 2027. The State of Oregon, the District of Columbia, and numerous American municipalities have already decriminalized various psychedelic substances, and Oregon is slated to have a regulated psilocybin therapy regime in place by next year.?

At the American federal level though, nearly all psychedelics are criminalized narcotics. And changes to the law could be a long way off given the fractured state of American politics.

That legislative lethargy will dampen the growth of America’s psychedelics industry, just as the country’s failure to change cannabis’s criminal scheduling creates ongoing?problems?for its national cannabis industry. But America’s legal challenges could benefit a Canadian medical psychedelics regime if our country seizes the opportunity.?

A simplified legal landscape for psychedelics in Canada could create thousands of jobs in an inspiring new industry, lure immense international capital inflows, and attract a class of bold, young, educated healthcare professionals just when it’s become all too apparent how essential they are.?

Psychedelics and psychedelic-assisted therapy, of course, are not a panacea – and there’s?good reason?for governments not to rush legalization. But worse than rushing legalization is sleeping on it when the potential benefits are so apparent. By suing for individualized patient access on?Charter?grounds, those behind the lawsuit are telling our government that’s unacceptable.?

Marc Z. Goldgrub is a lawyer at the boutique Toronto-based corporate, commercial, and environmental law firm?Green Economy Law Professional Corporation.

He is?a TheraPsil member and?operates?the online?Canadian psychedelic law resource?PsychedelicLaw.ca. Green Economy Law is a member of the Psychedelic Association of Canada's business alliance.