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Federal Court ruling sets back health workers seeking psilocybin mushroom access

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Dozens of health care professionals across the country are fighting the federal government in court for legal access to psychedelics, namely psilocybin mushrooms, to start offering therapeutic treatments in their practices. Psilocybin mushrooms sit on a drying rack in the Uptown Fungus lab in Springfield, Ore., Monday, Aug. 14, 2023. THE CANADIAN PRESS/AP-Craig Mitchell

VANCOUVER — Megan McLaren thought her future career was in law enforcement, but her path radically shifted thanks in part to psychedelic drug therapy, she says.

McLaren left a civilian position with the Vancouver Police Department in 2019 for a job in counselling with the Surrey School District and is now a registered clinical counsellor with a practice in Squamish, B.C.

When the pandemic hit and her position was cut from the school district, she began researching psychedelics, eventually signing up for a three-month group therapy program involving the use of ketamine in mid-2021. 

McLaren said she was suffering from depression and grief after the death of her mother, and while she came out of the experience still grieving, she was no longer depressed. 

Now, she and dozens of other health care professionals across the country are fighting the federal government in court for legal access to psychedelics, namely psilocybin mushrooms, in order to offer such therapeutic treatments in their practices.

Before they can offer patients these drug-assisted therapies though, doctors, psychologists, counsellors, and nurses want a special exemption from Canada's Controlled Drugs and Substances Act. 

The exemption would allow them to take magic mushrooms themselves in "experiential training" before they're qualified to offer the treatments to patients. 

"We've got people in Canada right now who are being approved for medical assistance in dying, and those same people are being unapproved for taking mushrooms," McLaren said in an interview.

"We're in a little bit of a backwards moment when Canada is more willing to end people's lives than to give them a chance of surviving or dying with dignity, dying with less anxiety." 

McLaren is part of a group of more than 60 other health care professionals that applied this month to the Federal Court of Canada to overturn a decision denying them the needed exemptions. 

A ruling in a nearly identical case filed in 2022 involving almost 100 other health care professionals was dismissed on Sept. 25 by a Federal Court judge who upheld the decision denying them the exemptions. 

The judge found "there is insufficient evidence to demonstrate a need for, or benefit of, experiential training with psilocybin."

"The evidence does not establish that psilocybin-assisted psychotherapy by an experientially trained practitioner is safer and more effective, and the decisions do not prevent patients from accessing psilocybin under their own exemption or accessing psilocybin-assisted psychotherapy," the ruling says. 

Ottawa-based human rights lawyer Nicholas Pope said Friday that he'll be appealing the ruling all the way to the Supreme Court of Canada if necessary.

He said he's confident that case law and precedents are on the side of both patients and health care workers seeking legal access to psilocybin mushrooms.

Pope said it's a "unique situation" where case law related to pre-legalization cannabis litigation set the stage for legal battles involving mushrooms now. 

"Here we have a safer substance, a substance that there's more evidence for its efficacy and we have two decades of law (established) that says people have a right to access this, so it's just a matter of time before we get these cases before the right courts," he said. 

Pope said it is an "absurd situation" where anyone can easily access psilocybin mushrooms from illegal dispensaries that have popped up across the country, while people with "serious and pressing medical issues and health concerns" are fighting for legal access. 

"That's why I've been taking on a lot of these cases and doing them pro bono because this is just something that needs to change," he said. 

Pope said a lawsuit filed on behalf of several patients in July 2022 is the most pivotal, challenging Canada's prohibition on psilocybin as unconstitutional. 

"That's sort of the big glacial pace action that seeks to strike down the whole system," he said. 

Thomas Hartle, one of eight plaintiffs in that case, said in an interview in August that access to mushrooms isn't necessarily the problem, but rather access to qualified therapists who can administer the treatment. 

Diagnosed with colon cancer eight years ago, Hartle was one of the first people in the country allowed to consume mushrooms legally under what's known as the special access program, but he had to fly to B.C. from his home in Saskatchewan to undergo the treatment. 

Travelling anywhere is both physically and financially draining, he said, but with no qualified psilocybin therapists closer to home, he's had to spend thousands on travel, food and accommodations to receive the therapy out of province. 

Hartle said Friday that his stage four cancer is still progressing, but mushroom therapy sessions have been effective in lightening the end-of-life anxiety associated with it.

He said the lawsuit moves "like a glacier," as he grapples with an uncertain future. 

"I do kind of these days feel like the legal case will probably outlive me," he said. "I am not at this time anticipating seeing a resolution to that. I would really like to, but the pace that things are going I don't think that is a realistic expectation for me."

This report by The Canadian Press was first published Sept. 30, 2023.

Darryl Greer, The Canadian Press