De­cide med­i­cal pot rules

EDI­TO­RIAL: WHAT OTH­ERS THINK

Lethbridge Herald - - READER'S FORUM -

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 in­dus­try-spon­sored 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 non­ap­proved 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 pre­scrip­tion, 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 no-fault 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.

An edi­to­rial from the Hal­i­fax Chron­i­cle Her­ald (dis­trib­uted by The Cana­dian Press)

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