Court rules to allow patients to continue supervised heroin use

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Entrenched addicts who were prescribed heroin as part of a B.C.-based clinical trial will be able to continue receiving the drug while a larger constitutional challenge is before the courts.

B.C. Supreme Court Chief Justice Christopher Hinkson released his decision on Thursday, finding risks associated with severe heroin addiction "will be reduced if [the addicts] receive injectable diacetylmorphine (heroin) treatment from Providence physicians.These potential harms are clearly irreparable in nature."

This is the second time since March that the courts have sided with doctors and patients over the Conservative government with respect to controversial medical treatments. Adrienne Smith, a health and drug policy lawyer with the Pivot Legal Society, called Thursday's decision "a victory for evidence-based health care."

David Byres, vice-president of Acute Clinical Programs at Providence Health Care, said staff and doctors are relieved by the decision, as the addicts in question have not been well since the government banned the treatment. Some have relapsed into illicit heroin use on Vancouver streets.

"On behalf of our organization, which has had more than a 100-year history of compassion, and social justice, and working with some of the most vulnerable and marginalized patient populations, we are extremely pleased and relieved [by] today's decision," he said.

"It's going to allow our staff and physicians to be able to offer the most effective evidence-based treatment for the patients that we are working with."

Researchers from Providence and the University of British Columbia have led two heroin studies in Vancouver, finding that for the small subsection of severe heroin addicts who do not respond to repeated attempts at conventional treatments such as methadone, prescription heroin is an effective second-line treatment.

Those who received prescription heroin in a supervised medical setting improved in health, reduced criminal activity, maintained ongoing involvement with the health-care system and fared better overall than those who remained on methadone, the researchers said.

As participants cycled out of the latest study, doctors applied to Health Canada to continue prescribing heroin to select addicts outside the trial setting. In September, Health Canada approved 21 of those applications – but federal Health Minister Rona Ambrose viewed her department's decision as a mistake and swiftly introduced new regulations to make prescribing the drug illegal. Critics viewed the move as being rooted solely in political ideology.

Providence and five of the addicts, represented by the Pivot Legal Society, launched a constitutional challenge and sought the injunction while the case was before the courts. The injunction will exempt from the new regulations all outstanding plaintiff requests and future requests from study participants "insofar as they are for patients who are refractory to other treatments and whose physicians have made or make" an application to Health Canada. There are 202 participants in the latest trial; each must receive Health Canada approval to continue receiving the drug.

The injunction also means Providence and Pivot will have more time to prepare for the constitutional challenge now that the urgency of immediate treatment is removed.

During the three-day injunction hearing in March, Joseph Arvay, the lawyer for Providence, argued that the new regulations violated the Charter rights of the plaintiffs. Specifically, he invoked Section 7 (the right to life, liberty and security of the person) and Section 15 (the right to equal protection and equal benefit of the law without discrimination).

"Heroin addicts are one of the most vilified and stigmatized groups in our society," he said. "We say these provisions perpetuate prejudice against them by demonizing the one treatment that might save their lives."

Lorne Lechance, the lawyer for the federal government, said the plaintiffs did not prove to the court that they had tried, and failed, at conventional treatments, suggesting they received suboptimal methadone treatment while in the heroin study.

Mr. Lechance also questioned the claim that the plaintiffs would suffer "irreparable harm" if denied prescription heroin.

Thursday's decision mirrors one recently issued by the Federal Court in the battle over medical marijuana. On April 1, new regulations took effect transferring the governing of access to physicians from Health Canada, and restricting production to select commercial growers. Patients licensed to grow their own marijuana – or serve as a designated grower for someone else – argued that going through commercial growers would inflate costs and impede access to the drug. Some physicians are also reluctant to prescribe it.

On March 21, Federal Court Judge Michael Manson granted an injunction, allowing patients currently licensed to grow their own marijuana to continue doing so while the legal challenge is before the courts. The federal government has said it will appeal the ruling.

At an unrelated event in Vancouver in March, Ms. Ambrose reiterated her belief that "in terms of those who are addicted to heroin, there are safe alternatives to treat them instead of feeding the addiction with heroin itself."

To prescribe heroin as a second-line treatment would be to "give up" on traditional treatments, the health minister told The Globe and Mail.

"I hope that they don't think that the health minister of Canada would think that there are people we should just discount because treatment hasn't worked for them on a number of occasions," Ms. Ambrose said. "Regardless of how small of a percentage of those people there are out there, I want them to seek … a treatment for their heroin addiction that is safe."

The Globe and Mail has repeatedly requested access to the expert and medical opinions Ms. Ambrose sought prior to making her decision, however no information has been provided.