Ophelia Black in Calgary on March 17, 2022.Jeff McIntosh/The Canadian Press
An Alberta judge has granted a temporary injunction that exempts a 22-year-old woman from the province’s opioid prescribing rules, saying the regulation may infringe on her Charter-protected rights.
Ophelia Black, who has severe opioid use disorder, is suing the Government of Alberta over its new standards that forbid pharmacists and other dispensers from prescribing high-potency narcotics and requires supervised dosing. The decision, released Thursday, means Ms. Black is allowed to continue using prescribed hydromorphone at home until the trial concludes.
Court of King’s Bench Justice Colin Feasby heard arguments from the plaintiff’s lawyer, Avnish Nanda, and government litigator, Nate Gartke, on Wednesday. Less than 24 hours later – and two days before the rules comes into full effect – he delivered a more than 15,000-word decision in favour of the emergency injunction.
“The evidence, at this stage of the litigation, shows that Ms. Black has a strong position that her constitutional rights have been infringed, that she will suffer irreparable harm and it is clear that the balance of convenience weighs in her favour,” said Justice Feasby in his decision, delivered in part to a virtual courtroom.
The statement of claim alleges Alberta’s opioid prescribing model breaches Ms. Black’s rights secured under the Canadian Charter or Rights and Freedoms, including her right to life, liberty and security of the person and right not to be subjected to any cruel and unusual treatment or punishment.
Justice Feasby concluded that, if an injunction was not issued, then harm to Ms. Black would have been “potentially grave” whereas there would be little impact to the government’s implementation of the new standards.
Ms. Black has said she will return to using street-sourced opioids should her medication be made inaccessible, increasing the risk of overdose and death. She picks up her hydromorphone prescription at a local pharmacy, crushes and dissolves the tablets, then injects the solution three times daily.
She said the prescription has saved her life and provided stability. Her statement of claim said she began using opioids as a teenager to cope with childhood trauma and mental-health struggles. It also states she was regularly abused – sexually, physically and mentally – by older men who preyed on her vulnerabilities.
The government has yet to file a statement of defence. None of the allegations have been proven in court.
Under the new regulations, Ms. Black would be required to travel to Calgary’s only opioid dependency clinic that is located downtown and use the medication under the supervision of medical staff. The clinic is far from her home and has limited operating hours that fall outside of some of her self-scheduled doses.
“Being unable to access my medication would have been a death sentence. I am so relieved that I can continue to access my treatment without sacrificing the time and freedom to live a full life,” said Ms. Black in a statement released Thursday afternoon.
“I do not want to die and I will forever appreciate what was done today. Now that access to my prescription feels more secure, I’m looking forward to the future, to researching university options and continuing to build a life for myself.”
In the same statement, Mr. Nanda thanked the court for addressing the matter urgently and said his hope is that the injunction decision gives the government pause to consider the potential impact of these regulations.
Government lawyer Mr. Gartke argued on Wednesday that Ms. Black is making an active decision not to engage in the new program and that it is a safer alternative to her current regimen. He said Alberta Health Services would provide transportation for an undetermined amount of time to take her to and from the clinic.
He also asserted that the government has the ability to make decisions on medical treatments for reasons such as cost, effectiveness and patient and public safety. The United Conservative Party government, when it announced the changes last October, said it would prevent prescription drugs from being traded or sold in the community.
In Justice Feasby’s decision, he concluded the government has not yet provided substantial evidence to back that claim. Because of that, he said, “There is a serious issue to be tried as to whether the regulation and standards are arbitrary.”
Colin Aitchison, press secretary to Minister of Mental Health and Addiction Nicholas Milliken, said in a statement that the government is reviewing Thursday’s decision.