THE PROPOSED CHANGES
Health Canada proposes changes in two areas: physician patient interaction and dried cannabis production and distribution. The specific proposals, along with the Foundation's comment and suggestions, appear below.
A. Physician-Patient Interaction - Health Canada proposes the following changes:
1. Health Canada maintains that the determination as to whether the use of marihuana for medical purposes is appropriate for a particular individual is best made through a discussion with their physician. In this regard, Health Canada is proposing to eliminate the categories of conditions or symptoms for which an individual may possess marihuana for medical purposes under the MMAR.
2. Individuals would continue to be required to consult a physician to obtain access to marihuana for medical purposes. Since categories would be eliminated, there would no longer be a requirement for some individuals to obtain the support of a specialist in addition to their primary care physician in order to access marihuana for medical purposes.
The Foundation agrees that eliminating the categories of conditions or symptoms is a necessary improvement, as is removal of any requirement that a specialist be consulted. Both changes are improvements and would be consistent with working toward remedying the issues raised by the Court's findings in Mernagh. It is clear, however, that these changes do not go far enough. Physicians have essentially boycotted the current MMAR scheme and continuing to require that they be the sole gatekeepers to legal protection and lawful access to cannabis will result in continued serious violations of the Charter rights of patients. The categories of health care professionals able to permit lawful access to cannabis must be expanded to, at minimum, to any practitioner currently regulated by a provincial Act including, for example, Naturopathic Physicians, Doctors of Traditional Chinese Medicine and Nurse Practitioners. These practitioners, in many provinces, have the ability to provide lawful access to medicines with significantly greater risk profiles than cannabis. In addition, Naturopathic Physician and Doctors of Traditional Chinese Medicine have the benefit of familiarity with whole plant medicines generally and cannabis specifically. Expanding the gatekeeper role is consistent with evidence-based policy making and the requirements of the Charter.
3. The existing medical declaration would be replaced by a new document provided by the physician to the individual. Health Canada will consult the medical community on the form this document will take.
4. Individuals would no longer be required to submit information to Health Canada to be authorized to possess dried marihuana. Instead, they would submit their physician's document directly to a licensed commercial producer.
The Foundation agrees that the current declarations create a barrier to access and are in need of improvement. In addition, the Foundation welcomes the move toward a system of access to cannabis that closely mirrors that used by existing, and currently unlawful, dispensaries and compassion clubs. These community-based organizations have distributed cannabis to medical consumers for more than a decade by, essentially, requiring only that consumers provide applications forms from their health care practitioner. The Foundation is, however, dismayed that the proposed improvements do not contemplate licensing the very organizations that already comport with the procedure being proposed as the future of the government's program. This concern is more fully discussed in the production and distribution section below.
5. Health Canada will establish an Expert Advisory Committee to improve physician access to comprehensive, accurate and up-to-date information on the use of marihuana for medical purposes, thereby facilitating informed decision-making with respect to the use of marihuana for medical purposes.
6. Health Canada would work with the medical community, their provincial/territorial licensing authorities and their associations on the proposed improvements to the program.
The Foundation agrees that Health Canada must work toward proving physicians with accurate information about the use of medicinal cannabis. There must be a commitment to accuracy and rigor in evaluating the information being provided, a challenge that will be particularly onerous given the highly politically charged climate surrounding cannabis policy generally. The Foundation is deeply concerned that the language chosen to provide the social context for Health Canada's proposals (keeping "children and families" safe) does not foreshadow a commitment to sound evidence-based policy making.
B. Dried Marihuana Production and Distribution
1. Under the proposed redesigned program, Health Canada would no longer enter into a contract with a commercial entity to supply and distribute dried marihuana and marihuana seeds.
2. The only legal source of dried marihuana would be commercial producers, who would be licensed by Health Canada to produce and distribute dried marihuana. Individuals would purchase their supply of dried marihuana from one of these licensed commercial producers.
3. Personal and designated production would be phased out.
4. In order to be licensed by Health Canada, licensed commercial producers would have to demonstrate compliance with requirements related to, for example, product quality, personnel, record-keeping, safety and security, disposal and reporting, as set out in new proposed regulations. These controls would aim to ensure the quality of the product being purchased by program participants, as well as the security of production sites.
5. Health Canada would establish a comprehensive compliance and enforcement regime for licensed commercial producers, centered on regular audits and inspections.
6. Licensed commercial producers would be required to comply with specific product labelling and packaging requirements. The label and/or the package itself could be one way by which a program participant could demonstrate that their supply of marihuana is legal.
7. Licensed commercial producers would only be permitted to produce marihuana indoors.
8. Licensed commercial producers would be able to produce any strain(s) of marihuana, thus giving individuals greater choice as to which strain(s) they wish to use.
9. Licensed commercial producers would set the price for marihuana for medical purpose.
10. Licensed commercial producers would only be able to send the dried marihuana they cultivate to individuals by registered mail or bonded courier.
The Foundation believes that the proposed future production and distribution system would work well as an adjunct to the existing regime of personal and designated production. It is critical, however, that personal and caregiver designated production be preserved. Patients and producers have spent years, and significant funds, developing genetic lines to treat their specific ailments. In addition, personal and caregiver production is often the most cost effective, and for some the only economically viable, means of accessing cannabis. Removal of this right is likely to be found to violate the Charter and, more importantly, will certainly limit rather than improve access to a safe and effective supply of medicinal cannabis. It is of paramount importance that personal and caregiver production be retained in any future iteration of the medicinal cannabis access program.
The Foundation is also concerned that the proposals fail to address the use of cannabis in a variety of modes of ingestion including by way of resin, edibles, tinctures, salves, balms and other means of obtaining therapeutic benefit. As noted above, the recognition that patients require a variety of strains is welcome but it remains unclear how licensed producers will obtain those genetics. Moreover, the proposal fails to recognize the need to capitalize upon the knowledge and experience of the existing network of unlicensed suppliers represented by dispensaries and their current producers.
The proposal also contemplates only the delivery of cannabis by courier or mail. Many persons, particularly those living on disability or social assistance, have no fixed address and are unable to receive mail or delivery by courier. Many prefer to have the ability to view and smell the dried cannabis before purchasing it. And, most importantly, many patients appreciate the social capital gained by obtaining cannabis at a community-based dispensary. At minimum, Health Canada must include an option for regulating community-based dispensaries that can, and do, provide patients with more than just a supply of medicine. The existing network of unlicensed suppliers represented by dispensaries and compassion clubs provide members with significant social capital including supportive environments, knowledge about the medicine and particular strain/symptom pairings and the proper use of cannabis and cannabis byproducts.
The proposal is also vague about the standards to which producers will be held. The Foundation urges Health Canada to implement evidence-based requirements rather than overly onerous rules that will prevent most producers from obtaining licenses. There is, for example, no evidentiary basis for requiring only indoor production. Outdoor production can be cost-effective and produce an end product with compositions of therapeutic compounds that are not present in strictly indoor production.
As the Courts have held in relation to the Supply Issue, a system of arbitrary rules that creates barriers to access will be found to violate the Charter. The Foundation urges Health Canada to rethink its proposals. It is concerned that the proposed access scheme will continue to fail to meet the needs of critically and chronically ill Canadians.
