Alberta judge turns down request for injunction to maintain last-resort opioid treatment program
'There is no doubt that people will die from this decision'
A judge has rejected an application for an emergency injunction that would have maintained a last-resort treatment for Albertans suffering from the most severe forms of opioid addiction.
The application was filed by 11 Albertans struggling with severe substance abuse.
They wanted an injunction to prevent all injectable opioid agonist treatment (iOAT) patients from being denied the treatment until a lawsuit — triggered by the provincial government's decision to discontinue funding — is concluded.
The two clinics in Edmonton and Calgary offering the treatment are set to close March 31 when their provincial funding runs out.
"The impact on the plaintiffs of the province's planned changes to iOAT will be minor," Edmonton Court of Queen's Bench Justice Grant Dunlop said in a decision issued Thursday.
The lawsuit, filed last year, argues that discontinuing the program would be dangerous for clients who relied on the program.
The statement of claim, filed Sept. 30 in Edmonton Court of Queen's Bench, argues cancelling the treatment infringes on patients' charter rights by putting their lives and personal security in peril, and amounts to discrimination. None of the allegations has been proven in court.
Edmonton lawyer Avnish Nanda, who is representing the plaintiffs without charge, argued that ending the program would force clients to once again resort to using street drugs, which have become increasingly toxic since the start of the pandemic.
He said it may have been difficult for the judge to understand the life and death challenges of addiction.
My concern is that more patients will die while this takes four to five years to litigate.-Avnish Nanda, lawyer
"It's disappointing," Nanda said in an interview Friday. "There is no doubt that people will die from this decision.
"My concern is that more patients will die while this takes four to five years to litigate."
He said his clients are worried about what the decision will mean for their treatment.
"These are real people ... and just the indifference of this government to their lives, and the lack of real remedies from the court, it just indicates to them, my clients, that their lives don't matter."
Nanda said the province has promised that treatment for his clients will remain largely unchanged but the details of that new medical service remain unclear. With iOAT clinics set to close next month, he's deeply concerned.
"The court said the alternative model is good enough, but that model is hypothetical. There is no funding in place," he said. "That's what raises real alarm bells for me ... there are no specific details on what is going to happen."
Following a hearing on the injunction on Feb. 10, Dunlop had reserved his decision. In his decision issued Thursday, Dunlop said Nanda fell short of effectively proving his case.
"I find that the planned changes and their effect on the plaintiffs are minor," Dunlop said in his written decision.
"While there is an argument to be made that those changes will breach one or more of the plaintiffs' charter rights, the plaintiffs have not established that they will suffer irreparable harm as a result of those changes."
Injectable opioid agonist treatment — which allows patients to inject hydromorphone, a medical-grade opioid three times daily under the supervision of a nurse — is offered only when all other treatments prove ineffective.
Clients enrolled in the program are also provided access to a variety of services including psychological, financial and housing supports.
The two clinics were set up under a two-year pilot program announced by the previous NDP government in late 2017. The Calgary clinic opened in October 2018. The Edmonton clinic opened in May 2019. Together, they once served more than 200 patients.
A $14-million grant for the program was set to expire in March 2020 but the United Conservative Party government, elected in April 2019, renewed it for another year to transition patients to other forms of treatment.
The province has said it expects that all patients will be transitioned out by the end of March and will still be provided access to injections at provincial clinics. Court heard that a funding application had not yet been made for the new, alternative treatment program.
The details of that treatment were revealed for the first time during the injunction hearing on Feb. 10.
Court was told that clients will still be supplied with injectable hydromorphone through Alberta Health Services at existing opioid dependency program (ODP) clinics in Edmonton and Calgary. There are 10 such clinics across the province.
Lawyers representing the province asked that the application for an injunction be dismissed, arguing that access to treatment for users of the program would remain largely unchanged. Some services, such as primary care, may no longer be available to them but referrals would be provided as needed.
"On the evidence before me, none of the plaintiffs will suffer any serious harm from the changes planned by the province," Dunlop wrote.
"The evidence does not establish a high probability that the changes will cause death or serious health consequences for any of the plaintiffs. At worst, some ... may postpone or miss some primary care because of the combination of the time required to receive opioid injections and other challenges they face connected to their opioid use disorder.
"In addition, there is a possibility of minor inconvenience, such as having to go further afield to access some medical services than they presently do at the iOAT clinics. In combination, the likelihood of the harms and the magnitude of the harms do not amount to irreparable harm."
The originating lawsuit details the lives of 11 iOAT clients, each consumed by their own trauma.
Some experienced childhood abuse and homelessness, and have cycled in and out of foster homes, prison cells and treatment facilities. Some have overdosed numerous times.
'It's life or death'
A survivor of childhood abuse, Shane Monette began using drugs and alcohol as a teenager to mask his pain.
As years went by, he developed a $400-a-day heroin habit and was in and out of jail, committing petty crimes to feed his addiction.
As his health deteriorated, Monette desperately wanted to quit. He tried abstinence, suboxone and methadone, and spent time in a detox centre.
None of the treatments helped appease his addiction, until he became a patient at Edmonton's iOAT clinic.
"The judge said this a minor thing, a minor change," Monette said Friday. "I don't agree with that. It's life or death."
Monette said the plan to keep clients like him on daily injections was only revealed by the province, in court, after the lawsuit was filed. The province's rushed creation of the program has created confusion, he said, and many of his fellow patients are unsure where they will go for care.
With a few weeks left before the clinic closes, Monette said he has yet to be referred out of the iOAT program.
The decision makes him feel like his life doesn't matter, he said. The number of overdose deaths in the province demands decisive action from the province and clear treatment options for people who have been "left by the wayside," he said.
"It's a little ridiculous," he said. "To do a 180 halfway through, at the last minute, and offer the shots in a place that's already set up as an ODP ... It's just not acceptable.
"It just feels like, once again, high-risk marginalized patients are swept under the rug by the current government.
"They're trying to put a last minute Band-Aid solution on a problem that's as deadly as the opiate epidemic."