Health Canada must reconsider man’s bid to use magic mushrooms for cluster headaches, Federal Court rules

A 51-year-old Calgary man who suffers debilitating cluster headaches has won a Federal Court battle forcing Health Canada to reconsider his bid for legal access to psilocybin to treat his extreme pain. 

Ottawa Federal Court Judge Simon Fothergill, on May 24, granted an application for judicial review of Health Canada’s denial of Jody Lance’s bid for legal access to medical grade psilocybin — the active ingredient in hallucinogenic mushrooms — to manage pain associated with the headaches, which is so bad they have earned the nickname “suicide headaches.”

That decision — which also highlighted the need to consider a patient’s Charter rights — is being hailed by others fighting to access psilocybin for medical reasons.

Requests to access controlled substances in special medical circumstances are filed through Health Canada’s Special Access Program (SAP). In their July 12, 2023, SAP application Lance and his Calgary neurologist, William Jeptha Davenport, requested legal access psilocybin to help treat pain. Health Canada denied the request due to lack of research into the efficacy of the drug to treat cluster headaches.

Ruling a major step forward, advocate says

Last week’s ruling gave the health ministry 14 days to reconsider Lance’s request and to take his Charter rights into more careful consideration. Fothergill called the decision to deny Lance access to the drug “unreasonable” and “unintelligible.”

Health Canada told CBC News via email that it has noted the court’s decision and will comply with the judgment.

In an email to CBC News, Lance said he hopes this ruling helps others like him who are seeking safe, legal options to avoid what he called an “unnecessarily difficult journey.” 

“It’s a first step in the right direction,” wrote Lance, a former land surveyor.

Spencer Hawkswell, president of the psychedelic advocacy group TheraPsil, described the ruling as a major step forward that makes clear that “what these patients are asking for is not ridiculous.”

“This is the first time that we’ve actually had the courts and a judge say a [Health Canada] decision lacks that justice and intelligibility,” he said. 

Pain from cluster headaches

The Mayo Clinic describes cluster headaches as a rare, painful form of headache often involving “extreme sharp or stabbing pain” often around the eyes, in the head or neck that can last for weeks. According to experts, the exact causes remain unclear.

Ottawa human rights lawyer Nicholas Cope, who helped prepare Lance’s exemption application, described cluster headaches as “one of the most painful conditions known to humanity.” He noted that some studies comparing pain levels of different conditions suggest they are more painful than gunshot wounds, kidney stones or childbirth.

Fothergill cited experts in his ruling who described cluster headaches as “capable of inflicting the most severe pain known to science.”

In recent years there’s been emerging evidence suggesting psilocybin can help relieve pain for some who suffer from the headaches, with at least one clinical trial observing a small reduction in cluster headache attacks in participants who were given the drug.

In 2022, Peter McAllister, the medical director of the New England Institute for Neurology and Headache, wrote then Health Minister Jean-Yves Duclos in support of Canada allowing legal exemptions for the use of psilocybin for cluster headaches, which he described as an “agonizingly painful condition that can push patients to suicide to escape the suffering.”

McAllister wrote that in his experience, “many cluster headache patients obtain outstanding results using psilocybin-containing mushrooms,” which he said helped prevent episodes with little danger or side effects.

Pope, the human rights lawyer, says it was the same for Lance.

“He tried a whole laundry list of medications and dozens of different combinations,” Pope said. “Some worked for a brief period of time and then stopped working, or even made the headaches worse.”

He argued that by denying Lance access to psilocybin, federal authorities infringed on his Charter right to make reasonable medical choices regarding his physical and mental wellbeing. 

The ruling noted that this infringement was exacerbated by delays and risked Lance’s life due to his suicidal ideation and the fact that he could potentially be eligible for medical assistance in dying (MAID).

Pope says the process for becoming approved to use psilocybin legally in Canada seems more difficult than applying for MAID.

“He’s found a treatment that works for him and makes life bearable. But it’s absurd: If he couldn’t get access to this treatment, then MAID really would be a legitimate possibility.”

“Mr. Lance should be allowed to use this for medical purposes with dignity and not be called a criminal for it,” Pope said.

Psilocybin controls

Psilocybin has been legal for Canadians to access in a limited way under the Special Access Program since 2022. As of November 2023, Health Canada had authorized 153 requests for 161 patients. 

Ian MacKay, the SAP manager for Health Canada’s office of clinical trials, told federal court he has a 13-member team that handles about 1,000 requests and 800 phone calls per month, many of which are medical emergencies.

Lance has suffered from cluster headaches for seven years and has tried to treat his condition with prescribed medications. When they failed, the neurologist suggested other patients had found relief using hallucinogenic mushrooms, which was when Lance first tried them himself, his lawyer explained.

Lance will know within a few weeks if he will finally be able to get legal doses of the controlled substance. If he is denied, his legal team plans to return to court to fight. 

“I would much prefer if I could put all my focus toward trying to get better rather than on court proceedings, but I am doing this in the hope that others in my situation will not need to go through this,” Lance wrote to CBC on Wednesday.

The Canadian Medical Association and the Canadian Neurological Sciences Federation declined comment on the case.