Do you have the right to psilocybin-assisted psychotherapy?
Based on the Charter of Rights and Freedoms, Canadian courts have clearly ruled that patients have the right to make their own choices regarding medical treatment when faced with a life-threatening illness.
On August 4th 2020, personal exemptions to access psilocybin therapy to treat end-of-life distress, were granted to four Canadians. The precedent to allow psilocybin therapy to those experiencing end of life distress has now been set.
“Canadians have now acknowledged patients’ “Right To Die” when faced with serious suffering at end-of-life. Surely, Canadians have a “Right To Try” a medicine that may help them want to live.”
Bruce Tobin Ph.D.
Canadians in serious psychological distress involving end-of-life despair, existential anxiety and depression should rightfully have access to try psilocybin-assisted psychotherapy.
Our reasoning rests on scientific, legal and moral arguments.
- The strength and consistency of the clinical research to date indicates a strong likelihood that psilocybin-assisted psychotherapy is a low-risk and effective treatment for end-of-life anxiety.
- Thus a patient’s decision to seek psilocybin-assisted psychotherapy can be the outcome of an evidence-based process of sound judgment, of sensible and fair deliberation.
- Therefore the decision to try psilocybin represents a “reasonable medical choice” for a patient in serious psychological distress for whom other treatments have proved unsuccessful.
- Furthermore, psilocybin may rightfully be said to be necessary for a medical purpose for patients described in this application because:
- A medicine may be rightfully considered “necessary for a medical purpose” if
a) The patient is suffering ongoing significant pain that is debilitating to quality of life, and will likely continue to suffer without an effective medical intervention;
b) That medicine shows an evidence-based likelihood that it will be helpful to the patient;
c) All other medicines have been tried and have proved to be ineffective; this is the only remaining medicine that offers reasonable hope of relief.
- Conditions a-c above hold true for psilocybin and the patients described in this application.
- Therefore, Psilocybin can rightfully be considered “necessary for a medical purpose” for the patients we describe.
- A medicine may be rightfully considered “necessary for a medical purpose” if
- The Canadian Charter of Rights and Freedoms (section 7) states that everyone has the right to “life, liberty, and security of person”.
- Canadian courts have ruled in three landmark cannabis cases [R v. Parker (Ontario Court of Appeal 2000), R v. Smith (Supreme Court Canada 2015) and Allard v. Canada (Canada Federal Court 2016)] that the absolute prohibition of cannabis by the Controlled Drugs and Substances Act (CDSA) contravenes section 7 because it “limits the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution. Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes on security of person”. (SCC: v. Smith, 2015) These rulings have led to amendment of the CDSA to allow for the medical use of cannabis.
- Psilocybin, like cannabis, represents a “reasonable medical choice”, and a “more effective” treatment for some cancer patients suffering from end-of-life distress, and for whom other treatments have failed. (See scientific argument above)
- Therefore, the absolute prohibition of psilocybin limits the liberty of medical users by foreclosing a reasonable medical choice through the threat of criminal prosecution. Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes on security of person for the medical psilocybin user.
- Therefore, an exemption should be issued to allow for medical use of psilocybin for patients as described above.
Argument From the Right to Medical Supervision
- Canadian public health policy has long accepted that it is in the public interest that Canadians have access to professional medical care for significant mental distress. In particular, our emergency mental health facilities frequently provide clinical care for patients admitted for psychological emergencies involving a psychedelic substance. This access to care, rooted in humanitarian compassion, extends even to those foolish and irresponsible citizens who make impulsive and reckless choices to use psychedelics inappropriately for recreational purposes, and end up having “bad trips”. The Supreme Court has recently extended this entitlement to medical care even further: it ruled in 2011 (Canada v. PHS Community Services) that clients of Insite, Vancouver’s safe-injection clinic, have a Charter-based right to medical supervision even when it involves addicts injecting street drugs with obviously self-destructive results.
- But would-be medical psilocybin patients are, in comparison to substance abusers, eminently responsible Their desire is to use psilocybin only in accordance with research-confirmed applications, to follow clinical protocols developed by experts, and to seek the type of session supervision and integration process recommended by experienced clinical experts. They seek to use psilocybin only within a medically supervised setting with properly trained therapists to alleviate their suffering.
- “So”, asks the desperate patient desiring medical psilocybin: “Is it not just as much in the public interest that responsible medical users have the same access to proper clinical supervision during their therapeutic session as do capricious recreational users or drug addicts? Should the compassion afforded them not also extend to me? Do I not have the same right to clinical supervision for my therapeutic session as they do for their abusive drug-taking?” According to the Charter, the right to medical supervision is a human right, hence universal. So if it extends to those who abuse drugs, it must also extend to those who seek to use them wisely.
- But clinical care for those seeking a therapeutic psilocybin experience is not currently available within our present medical system in clinics analogous to safe-injection sites. Such care cannot be safely and reliably accessed in a legal climate in which possession of psilocybin is illegal, as responsible psychotherapists will decline to provide that care because they understand that doing so risks their exposure to the charge of aiding and abetting the client’s possession of a controlled substance, even though that therapist plays no role in providing the substance.
- Therefore, a medical exemption for psilocybin is appropriate in order to allow medical users access to the medical supervision they are rightfully entitled to, and to protect responsible practitioners from legal exposure to a criminal charge. If it is in the public interest that those who use drugs in obviously destructive ways have access to medical supervision of their use, it similarly in the public interest to allow an exemption that recognizes the right of the serious medical user to medical supervision.
Argument For The “Right To Try”
- Canadian society now acknowledges that citizens have the “right to die”. This right was confirmed by Bill C14, the Medical Assistance in Dying Act, passed in June 2016. This right is subject, of course, to some important conditions: it is limited to mentally competent adults who are seriously suffering in an advanced and irreversible decline and whose natural deaths are reasonably foreseeable.
- But, if we are prepared to acknowledge that Canadians have the right to die, surely we must also recognize their right to try: to try to achieve a better quality of life by trying psilocybin, an experimental medicine that, though not fully through clinical trials, can be regarded as a reasonable medical choice in certain cases. Just like the right to die, the right to try is most clearly evident within the context of certain conditions: patients’ end-of-life psychological distress is severe; other treatment options have been unsuccessful; they are facing an irreversible decline and their deaths are reasonably foreseeable.
- Conversely, for those uncomfortable for moral/religious/practical reasons, with acknowledging Canadians’ right to die, confirmation of the right to try opens up a humanitarian alternative that could potentially decrease the number of patients choosing physician-assisted death.
Argument From Harm Reduction
- “Underground” psilocybin-assisted psychotherapy occurs largely because there are no legal channels through which patients can access treatment.
- But underground psilocybin therapy presents significant medical risks for patients – regarding dosage and purity of substance, regarding safety when purchasing an illegal substance, and regarding the training, competency and professional and ethical integrity of “underground” practitioners.
- These risks to the public would be reduced if psilocybin-assisted psychotherapy was legally available, and conducted by practitioners having clinical credentials and specialized training.
- It is thus in the public interest that psilocybin psychotherapy be legally available from qualified professionals for desperate end-of-life patients who have exhausted other treatment alternatives.
Responsible patients in serious psychological need deserve respect for their decision to seek psilocybin-assisted psychotherapy when conventional treatments have failed them.