Patients and Healthcare professionals sue the Minister of Health, Jean-Yves Duclos, over medical access to magic mushrooms

On July 27th, 8 plaintiffs filed a submission of claim against the Minister of Health, Jean-Yves Duclos claiming the prohibition of psilocybin (magic mushrooms) for medical purposes is against the Canadian Charter of Rights and Freedoms. The plaintiffs include 7 patients with terminal cancer and treatment resistant illnesses and the 8th plaintiff, a healthcare professional, asserts that the law concerning access to psilocybin for the purpose of training is unconstitutional.

This statement of claim is poised to be the first step in a Charter Challenge, aimed at striking down the prohibition of psilocybin and legalizing psilocybin for patients. This Charter Challenge follows the same path to the medical legalization of cannabis in Canada, and if successful, will allow Canadians in medical need access to psilocybin in consultation with their doctors following regulatory changes.

Lead lawyer Paul Lewin says:

“The beating heart of this case are Canadians with terrible health issues seeking access to safe and effective treatment.”

This submission of claim was made by lawyers Paul Lewin, Nicholas Pope, Emily Amirkhani, David Wood and Jack Lloyd on behalf of the plaintiffs seeking to use psilocybin. The patients are seeking to use psilocybin legally for a variety of health issues including end-of-life distress due to a terminal cancer diagnosis, opioid addiction, cluster headaches and treatment resistant depression.

Some of these patients have already found profound healing benefits from psilocybin and wish to access the substance legally and with their doctors approval. Other patients have now waited over 15 months to access this medicine, and watched several of their peers pass away while waiting for approval.

Patient, advocate and plaintiff Thomas Hartle was the first Canadian to access legal psilocybin-assisted psychotherapy in August 2020. He has waited nearly 300 days for a response from Health Canada regarding a renewal for his exemption. He had this to say:

“When I was diagnosed with cancer, my doctor didn’t have to ask a bureaucrat if they could treat me with chemotherapy because my doctor is experienced and qualified to advise me about my treatment options. When it comes to my mental health, why would I accept that a bureaucrat could make better decisions about my medical condition and treatment, than my doctor and myself? Psilocybin assisted therapy works for me, and it is really something that should be determined between a patient and their doctor, the same way any other medical treatment is done. We need medical regulations. For Minister Jean-Yves Duclos to fight against access is for him to fight against our quality of life, which is the opposite of what a Minister of Health should be doing. This is our right.”

In addition to the patient-focused statement of claim, 73 healthcare professionals, represented by Ottawa-based lawyer Nicholas Pope, have issued a Judicial review in June 2022. This judicial review will seek a judge to review Health Canada’s decision to deny dozens of healthcare professionals' application to use and possess psilocybin for professional training purposes through section 56(1) exemptions.

Mr. Pope had this to say:

“The Supreme Court has been clear: the government cannot deny exemptions that would improve health outcomes unless the government presents real evidence that the exemptions would harm public safety. No such evidence exists.”

The overarching argument of both cases is that healthcare professionals should be in control of making healthcare decisions for their patients, not bureaucrats and administrators at the governmental level. Currently, psilocybin can be requested by Healthcare professionals on behalf of their ‘seriously ill’ patients through Canada’s Special Access Program (SAP). Decisions on which patients are approved for access are decided by unnamed bureaucrats at the SAP office, following extensive paper-work by physicians, ultimately putting access at the discretion of government workers. Access to psilocybin through the SAP does not meet the needs of most patients or their healthcare providers.

TheraPsil, a Canadian non-profit patient advocacy group, is supporting the plaintiffs and these cases through fundraising and advocacy. TheraPsil has drafted regulations for the medical use and access of psilocybin which they hope will be adopted as a result of these legal challenges.

TheraPsil’s CEO Spencer Hawkswell:

"Our organization has spent almost a million dollars over the past 2 years to help patients cut through bureaucracy to access medical Psilocybin. The current regulatory pathways limit patient access by making Psilocybin nearly impossible to access. For some, this means they never get access before they die, and for others, they are forced to choose from treatment options that do not work or are only left with the option of Medical Assistance in Dying (MAiD). Patients need more options and medical psilocybin regulations like the ones used for Cannabis will help give them another option . I hope that Health Ministers Jean-Yves Duclos and Carolyn Bennett respond to the case with compassion and grant these Canadians their right to Psilocybin. Court is a waste of taxpayer dollars and takes time away from these patients, who don't have a moment to waste."

The plaintiffs and lawyers are hoping that the Ministers of Health will settle this case instead of starting years of litigation in court. The goal is to work with the plaintiffs to establish a solution to the existing barriers, such as enacting medical psilocybin regulations. They are seeking the help of all Canadians to ensure that this case is funded and made public.

If you are interested in contributing to cover the legal fees associated with this precedent-setting case, please donate to our fundraiser here.
100% of funds raised go directly to the case.

Media contact

John Gilchrist

All other inquiries

Spencer Hawkswell, CEO, TheraPsil

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