Health Canada needs to decide

The Nova Scotia Court of Appeal ruled last week that an injured elevator mechanic, Gordon Wayne Skinner of Head of Chezzetcook, wasn’t discriminated against by his industrysponsored health benefits plan when it denied coverage for physician-prescribed medical marijuana that is his only effective treatment for chronic pain.

The court found the trustees of the plan denied coverage of medical marijuana solely on the ground that Health Canada hasn’t approved it as a drug in Canada.

The elevator industry plan, in fact, doesn’t cover any drug not approved by Health Canada. That’s a pretty common standard for drug coverage. No provincial drug formulary, for example, can list a drug that isn’t tested and approved by Health Canada.

The court pointed out that any benefit plan has to have some coverage limits, if only as a matter of financial necessity.

And choosing Health Canada approval as a limit, even if this doesn’t meet every plan member’s needs, isn’t an act of discrimination under the province’s Human Rights Act.

To be unlawful discrimination, the trustees’ decision would have to have been “based on” Mr. Skinner’s disability, his chronic pain. But court found the decision to exclude non-approved drugs wasn’t based on his disability or his being in some identifiable group. It applied to everybody.

So the court rightly tossed out a 2017 Human Rights Board of Inquiry decision that the plan did discriminate against Mr. Skinner because it only covered drugs that were not effective for him.

The court said the tribunal’s conclusions were unreasonable and “factually and legally wrong.” And the consequences would be quite a mess: to make human rights boards the final deciders of what private plans must cover, based on the impossible criteria of assessing every member’s individual need. The ruling is good law and a rebuke to poorly considered overreach by rights tribunals. It also tells us that medical marijuana coverage isn’t, at heart, a human rights issue. It’s an urgent regulatory one for Health Canada.

For the court ruling doesn’t help patients like Mr. Skinner who need medical marijuana for debilitating chronic pain, who have a doctor’s pre- scription, and who can’t afford it out of pocket. The court itself recognized the “very unfortunate result” for him and there are many other people in the same boat.

Marijuana is widely accepted as an effective treatment for them, yet insurance coverage is nearly nonexistent because the (reasonable) coverage standard – Health Canada approval – is lacking. Mr. Skinner did get short-term coverage through nofault medical benefits included in his auto insurance plan. (His injury was sustained in a car accident). But denial of coverage by Workers Compensation was also upheld in the appeal court.

So the real need here is for Health Canada to do a proper assessment of medical marijuana and approve its use, if possible, with appropriate safeguards and in the most effective form, so it does meet insurance criteria.

And it needs to do this immediately. The current situation of many people benefiting from it, doctors able to prescribe it, but no insurance available is absurd.

But fixing that is a job for the health regulator, not the courts.