B.C. Supreme Court grants injunction allowing doctors to prescribe heroin to select addicts

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The B.C. Supreme Court has granted an injunction that lets doctors give prescription heroin to select patients in Vancouver.

According to a 34-page decision, Chief Justice Christopher Hinkson found that risks faced by the opiate addicts acting as plaintiffs in the case would be reduced if doctors were allowed to administer diacetylmorphine (prescription heroin).

“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,” Hinkson wrote. “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.”

Vancouver doctors previously secured the necessary permissions under the federal Special Access Programme (SAP) to prescribe heroin to a specific group of patients who had repeatedly failed with other available treatments for opiate addiction. But in October 2013, Health Minister  Rona Ambrose  amended regulations to close what she described as a “loophole”, barring clinicians from administering drugs such as heroin, cocaine, and ecstasy (MDMA).

The case entered the courts on March 25, 2014, when Providence Health Care and five long-time opiate users appeared in B.C. Supreme Court in an effort to secure diacetylmorphine as a legal means of managing addiction. I t concerns past and present participants in the Study to Assess Longer-term Opioid Medication Effectiveness ( SALOME ), which remains underway at Providence Crosstown Clinic in the Downtown Eastside.

The plaintiffs mounted a constitutional challenge, arguing that participants’ right to access evidence-based treatment under the Canadian Charter of Rights and Freedoms had been impeded. They are represented by Joe Arvay , who was instrumental in Insite's 2011 victory in the Supreme Court of Canada, and lawyers with Pivot Legal Society.

According to Hinkson’s May 29 decision, the court has granted an interlocutory injunction that provides for the approval of “all outstanding plaintiff requests and future SALOME requests for access to diacetylmorphine”.  It’s noted that to be eligible, patients must have a record of failing to respond to other available treatments for opiate addiction (such as methadone), and that they must be represented by a physician who has made a SAP application on their behalf.

In a telephone interview, Pivot's Adrienne Smith described the court's decision as "a victory for evidence-based medicine".

"It gives hope to other heroin users who may benefit from this important medication," she said.

However, Smith noted that while an interlocutory injunction has been granted, the judge denied Providence’s request for a mandatory injunction that would have directed regulators to take steps necessary to ensure there is a supply of diacetylmorphine adequate to meet patients' needs. She said this leaves the matter susceptible  to Health Canada "proceeding in good faith".

With an injunction secured, Smith continued, the next step is to see Providence's constitutional challenge enter the courts.

"We’re anticipating that could take a year, which is disappointing," she said. "The good news is that this decision will keep our clients safe during that year. I’m hopeful and our clients are hopeful."

In a March 2014 telephone interview, David Byres , vice-president of acute clinical programs at Providence, explained that a study similar to SALOME called NAOMI (North American Opiate Medication Initiative), conducted from 2005 to 2008, found that in certain cases, heroin-assisted therapy proved more effective than methadone in improving the wellbeing of long-time opiate addicts. Those results were published in the New England Journal of Medicine in 2009 and are supported by similar academic findings in Denmark, Germany, Switzerland, and the United Kingdom.

“The NAOMI trial provided definitive evidence that diacetylmorphine is an effective treatment,” he said.

Affidavits drafted by the five opiate users participating in the case emphasize the struggles involved in maintaining the steady supply of drugs required by heavy addictions. The documents explain how heroin administered on a prescribed basis alleviates the harm users inflict on themselves and society.

“I spent my money on food and vitamins rather than drugs, and I became healthier,” Charles English wrote. “While on the study, I exercised regularly and took care of myself. I did not commit any crime to support my drug habit. I took showers, wore clean clothes, and was a functional member of society.”

The Straight has repeatedly attempted to learn how the federal government arrived at its position against the administration of diacetylmorphine, which contradicts a growing body of scientific evidence. Despite Health Minister Rona Ambrose personally assuring the Straight that that information would be supplied, Health Canada has not provided anything specific in the way of academic studies or the opinions of experts.

In response to the court's May 29 decision, Health Canada sent an email to media in which it's stated the federal government is considering its option.

"We will continue to support drug treatment and recovery programs that work to get Canadians off drugs in a safe way," the email reads.

Acting on behalf of Health Canada, the Attorney General now has the option of appealing the judge’s decision.

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