This morning, May 29th, the British Columbia Supreme Court released its decision on the application by Pivot Legal Society and Providence Health for an injunction in the case for access to heroin assisted therapy (HAT). You can read the full decision here:
Chief_Justice_Hinkson__re_Providence_Health_Care_Society_v._Canada_(Attorney_General)__05-29.pdf
But what does it mean for the individuals involved in the case? Pivot Lawyer Douglas King explains the court’s decision:
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Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.
1. First of all, what is this case about?
Last year, five individuals (who had been patients in the SALOME study) and Providence Health Care initiated a constitutional challenge to federal regulations that prevent doctors from prescribing heroin assisted therapy to their patients. Pivot represents the five individuals who participated in the SALOME study, which looked at the efficacy of hydomorphone as a form of addiction treatment, and compared it to heroin which had been proven effective in the previous NAOMI study. At the end of the trial a number of the participants, who are now the plaintiffs, wanted to continue their therapy because they were experiencing significant health benefits. Their treating physicians agreed that prescription heroin was appropriate medical treatment for these individuals. Initially Health Canada granted a number of approvals, allowing the plaintiffs to continue with their therapy after the study, but the federal government quickly stepped in and amended the regulations in order to prevent approval for prescription heroin under Canada's Special Access Programme. The plaintiffs went to court to apply for an injunction on the new regulations so they could continue with the therapy while they are waiting for their case to go to trial.
You can read more about the SALOME trial and what heroin assisted therapy is in the publication we created last year, The Case for Heroin-Assisted Treatment in Canada.
2. The B.C. Supreme Court ruled in favour of the plaintiffs, does that mean the government must provide them with heroin treatment?
Not exactly. The injunction said that the plaintiffs are exempt from the barriers the federal government put in place, but stops short of ordering Health Canada to approve all future requests for heroin assisted therapy. It effectively restores the status quo.
It is now up to Health Canada to re-evaluate the plaintiffs’ requests and all other future requests and decide whether to grant special access to prescription heroin to individuals who are living with chronic, relapsing opioid addiction. Since Health Canada previously granted the exemptions to the plaintiffs before the federal government stepped in, we are optimistic they will do so again for all participants.
3. But it’s a victory right?
Absolutely. The court’s recognition that the plaintiffs may suffer irreparable harm if they were not granted the injunction means that the court recognizes how important heroin assisted treatment is to the health of our clients.
Justice Hinkson wrote:
"I accept that the potential harms facing the personal plaintiffs, and those on whose behalf they apply, are grave and that an award of damages will be of little, if any, assistance to them. As such, those harms must weigh heavily in the balance, particularly given that the exemption requested by the applicants does not cause any material harm to the government pending the ultimate resolution of this matter at trial. While I must keep in mind Sopinka and Cory JJ.’s statements as to the caution required when considering whether to deprive duly enacted legislation of its effect on an interlocutory basis, I find that on the evidence before me an order to that effect is justified."
4. What about the other participants of SALOME, does this apply to them too?
Yes, the decision applies to not only the five plaintiffs, but to all of the other participants of SALOME who have either exited or will be exiting the study in the future. That means that potentially 202 of the people who need it most could be given special access to prescription heroin which would allow them to continue with this effective therapy after the study has concluded.
5. So what happens now?
All of the parties will now move forward with setting dates for the trial, which will address the ultimate issue, which is whether or not the plaintiffs (and all Canadians) have a constitutionally protected right to access heroin assisted therapy if their doctors recommend the treatment. Doctors for the plaintiffs will work with Health Canada and the Canadian distributor of the heroin to secure the drug for continuation of the therapy, and the plaintiffs will hopefully begin experiencing the positive benefits of the therapy they previously had access to.
6. And how long will they have to wait?
This is the big unknown. Trial dates are dependent on the court’s calendar, and the availability of diacetylmorphine (heroin) for the clients will depend on multiple factors, including the approvals from Health Canada, the cooperation of the supplier, and the ability for their doctors to administer the treatment. What we do know is that this is a top priority for all of those involved and we hope it will be handled as quickly as possible.
