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An update on the #iOAT challenge launched in Alberta against @jasonluan88 decision to cut iOAT treatment in the province past March 2021.
The Plaintiffs are proceeding with the injunction application on January 8, 2021, and have filed their argument: https://static1.squarespace.com/static/55de865ee4b019416bec193c/t/5fca70c30cfcdc6e7f0d07ca/1607102663522/2003+15090+-+Written+Argument+of+Plaintiffs+%28Injunction%29.pdf
The Plaintiffs are proceeding with the injunction application on January 8, 2021, and have filed their argument: https://static1.squarespace.com/static/55de865ee4b019416bec193c/t/5fca70c30cfcdc6e7f0d07ca/1607102663522/2003+15090+-+Written+Argument+of+Plaintiffs+%28Injunction%29.pdf
In injunction applications, those seeking one have to particularize their claim, and in our argument, we set out the specifics of the legal arguments advanced at sections 7, 12, and 15 of the Charter. I will set them out briefly, starting with the s. 15 claim.
Opioid use disorder is a chronic medical condition that is characterized by a dependency on opioids and a range of debilitating mental and physical impairments. It is a condition measured on a scale of severity: (1) mild, (2) medium, and (3) severe.
Opioid use disorder is a manageable medical condition, with an array of treatment options dependent on the severity of an individual's condition. Treatment options that are effective for folks with mild forms of the condition are unlikely effective for those with severe forms
Individuals living with severe opioid use disorder are "at a higher risk of experiencing overdose death, other health harms, and structural vulnerability (e.g. poverty, homelessness, and/or unstable housing) relative to those with less severe opioid use disorder."
Further those with severe opioid use disorder have been harder to treat they do not respond to standard treatment options given the severity of their condition. They require more treatments that have a “long history of political and social opposition," such as iOAT.
Right now in Alberta, no matter the severity of your opioid use disorder, the Province offers medical treatment options that matches your medical needs and allows you to (in most cases) effectively treat your condition. Here's a chart of current treatment offerings. Full range
However, with the cancellation of iOAT, in March 2021, the Province will continue to offer effective treatment to all Albertans living with opioid use disorder, except for those with the most severe forms of the condition who don't benefit from treatments for mild, medium forms
As such, we argue that the denial of effective medical treatment for those living with the most severe form of opioid use disorder in Alberta constitutes discrimination on the basis of physical or mental ability (or an analogous ground). Only mild, medium forms offered treatment
This differentiation, and the corresponding different access to benefits on the basis of one's severity of opioid use disorder, perpetuates disadvantage and reinforces the harms this patient sub-population has historically faced, including increased risk of death.
Further, as Eldridge notes, "once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner." In this case, by withholding effective treatment for severe opioid use disorder, the Province is breaching the s. 15 Charter entitlements of iOAT patients
In relation to section 12 of the Charter, which protects against cruel and unusual treatment by the state, the provision has only been considered three times in the non-penal civil context. It was made out for the first time in Refugee Care, which also involved a @jkenney law.
Refugee Care was the challenge brought against @jkenney decision to deny health care funding to refugee claimants. Folks sued, and relied and won on section 12 of the Charter. The Court found:
The facts of Refugee Care are analogous to this case, as we have "a discrete minority of poor, vulnerable and disadvantaged individuals" who have been receiving life saving and life sustaining medical treatment from the Province for their medical condition.
Now, the Province wants to deny them the only form of effective medical treatment available for them by shutting down iOAT. The consequence of which, and all experts agree on this point, is greater likelihood of death by overdose, other serious health and social harms
Finally, section 7 of the Charter, and here we rely on the extensive evidentiary record tendered for this application, including 31 affidavits from iOAT patients, iOAT clinicians, public health experts, and medical researchers http://www.nandalaw.ca/ioat
Our argument is simple: closure of iOAT deprives iOAT patients of their section 7 Charter interests, which consist of life, liberty, and security of the prison. This deprivation does not occur in accordance with the principles of fundamental justice.
Here, it's important to recognize that iOAT came out of the public health emergency the Province declared regarding “the unprecedented rise in opioid morbidity and mortality.” It passed Opioid Emergency Response Regulation to address the crisis https://www.canlii.org/en/ab/laws/regu/alta-reg-99-2017/latest/alta-reg-99-2017.html?autocompleteStr=Opioid%20Emergency%20Response%20Regulation&autocompletePos=1
As part of that regulation, the Minister’s Opioid Emergency Response Commission (MOERC) was established. MOERC was tasked with developing recommendations for urgent coordinated actions to effectively combat the opioid crisis.
One of the key recommendations MOERC made was "to support the proposal and funding request from AHS for a phased implementation of a supervised injectable opioid agonist therapy program in Edmonton and Calgary."
Albertans with severe opioid use disorder were more likely to die of an opioid overdose, didn't have effective treatment options. Based on the expert evidence and best practices, iOAT was recommended because it could treat and bring down mortality rates for these Albertans.
The Province agreed, and established iOAT facilities in Alberta. These facilities were supposed to be operated in accordance to recognized medical guidelines and standards when it comes to iOAT thearpy. This includes no fixed end date for the therapy.
However, the Province now imposing a fixed end-date, which is contrary to both national medical guidelines for iOAT AND medical ethics, because it imposes significant harm on patients. Harm that includes premature death.
As such, in addition to our position that the section 7 Charter deprivations fail to accord with the principles of fundamental justice of arbitrariness, overbroad, gross disproportionality, and shocking the conscience of Canadians, we propose two additional ones in this context
They are:
(1) medical ethics and practice standards: the state cannot alter or deny medical treatment that it provides to individuals in a manner that is inconsistent with the medical ethics and practice standards that apply in a particular situation.
(1) medical ethics and practice standards: the state cannot alter or deny medical treatment that it provides to individuals in a manner that is inconsistent with the medical ethics and practice standards that apply in a particular situation.
(2) reasonable expectations: when an individual has a reasonable expectation of access to a state benefit for particular period of time, based on the conduct and representations of the state, the state cannot truncate or deny access to that benefit for that period of time
With respect to this latter point, we have ample evidence from both patients and medical staff at iOAT that patients were never told that there would be a fixed end date to the treatment but that patients would receive it until it was no longer medically necessary.
Further, fixed end dates for iOAT are prohibited by the national guidelines for iOAT therapy, the ethical/practice guidelines of the College of Physicians and Surgeons of Alberta, and others.
I know, long thread, but this a brief review of the salient facts and legal arguments set out in the 100 page written argument that the Plaintiffs tendered for the injunction application. Our record can be viewed in its entirety here: http://www.nandalaw.ca/ioat
