Jody Lance’s ‘historic win’ comes after a federal court judge ruled Health Canada wholly disregarded legal arguments that he has a Charter right to medical grade psilocybin
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After a federal judge’s scolding for its “unreasonable” and “unintelligible” handling of a Calgary man’s bid for legal access to psilocybin for excruciating headaches, Health Canada is backing down.
The federal health agency has granted cluster headache patient Jody Lance emergency access to psilocybin, a psychedelic compound found in “magic mushrooms.”
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Lance’s win comes two weeks after Federal Court Judge Simon Fothergill ruled Health Canada wholly disregarded legal arguments that Lance has a Charter right to medical grade psilocybin.
Health Canada’s initial refusal to grant Lance access to the drug under its Special Access Program also lacked the “requisite degree of justification, intelligibility and transparency,” Fothergill wrote.
Health Canada’s assessors tried to argue that other modalities hadn’t been ruled out, drawing criticism from Lance’s legal team that it’s easier to qualify for euthanasia in Canada than it is to access novel therapies for headache relief.
In order to be eligible for MAID — medical aid in dying — people don’t have to first exhaust all available treatments options.
Health Canada’s reversal comes after Fothergill ordered a “redetermination” by a different decision-maker. Health Canada had 14 days to render a new decision, a deadline that expired last Friday.
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Cluster headaches — also known as “suicide headaches” because of the intense pain they cause — are rare headaches that attack suddenly, recur multiple times a day and come on in clusters lasting weeks, even months.
A former Alberta land surveyor in his 50s, Lance has been unable to work, is on long-term disability, has lost his house and has contemplated MAID. He’s tried numerous legal and conventional therapies, but psilocybin, in small, non-hallucinogenic doses, is the only drug that has provided relief.
However, it’s illegal to grow, sell or possess magic mushrooms in Canada. Last week, police shut down an Ottawa store illegally selling psilocybin mushrooms and capsules.
Because psilocybin is a controlled substance, Lance has only been able to use psilocybin illegally, risking impurities and inconsistent and unreliable doses. The product he’s seeking under the emergency access request is a psilocybin extract. He first tried magic mushrooms on the advice of his Calgary neurologist, after another patient found they helped.
“I’m very relieved to finally get approval,” Lance said in an email to the National Post.
“I hope that going forward others won’t have to go to court to get the medicine their doctors have recommended.”
His lawyer, Nicholas Pope, called the approval “a big step forward for cluster headache patients.”
“The initial refusal ignored Mr. Lance’s Charter rights, but the Federal Court intervened and corrected the mistake,” Pope said in a statement.
Section 7 of the Charter protects an individual’s right to life, liberty and security of the person.
Pope argued that Lance’s liberty was threatened by not being allowed to make reasonable medical choices, his security of person was threatened by any delay in gaining access to an effective treatment and his life was at risk due to his suicidal thoughts and potential eligibility for a doctor-assisted death.
“This is the first time Health Canada has approved psilocybin for cluster headaches,” Pope said in an email to the National Post.
“It sets a strong precedent. It opens the door for others who suffer excruciating pain to seek humanitarian authorization to use psilocybin legally.”
Pope is a legal adviser for TheraPsil, a B.C.-based non-profit that has fundraised to cover legal fees for Canadians that have filed Charter challenges against the federal government for access to medical grade psilocybin therapy.
TheraPsill is lobbying for medical psilocybin regulations, similar to the country’s first medical cannabis laws.
“This is a historic win for Mr. Lance that sets a precedent for others in need of psilocybin,” TheraPsil chief executive officer Spencer Hawkswell said.
“While we celebrate this milestone, thousands of Canadians still need regulations to access these treatments.”
Used as a recreational drug for years, psilocybin is demonstrating some promise in treating a range of conditions, including depression, anxiety post-traumatic stress disorder and cluster headaches.
“Clinical trials remain the most appropriate way to advance research about products with a possible medical benefit and bring them toward market authorization,” Health Canada said in an email.
“The Special Access Program continues to provide access to non-marketed drugs for serious or life-threatening conditions when conventional therapies have failed, are unsuitable or are unavailable.”
National Post
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