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Patients, from left, Larry Love, Deborah Bartosch, Charles English and Doug Lidstrom are plaintiffs making a constitutional court challenge over the federal government’s decision to prevent doctors from prescribing heroin to addicts.

John Lehmann/The Globe and Mail

A legal challenge to a federal ban that prevents doctors from dispensing heroin to addicts as part of their medical treatment will rely on many of the same arguments successfully used to keep Vancouver's supervised injection site over Ottawa's objections, a lawyer involved in both cases said on Wednesday.

"The legal arguments that we will be making will be similar to those we made in the Insite case," lawyer Joe Arvay said at a press conference Wednesday. "Faced with the Insite decision, I don't know what arguments the federal government will advance….the federal government will not be able to rely on the evidence of their own scientists and physicians since those persons in Health Canada have already accepted our arguments about the need for heroin treatment when they granted a special access request."

Vancouver physicians had used a special access request to obtain and prescribe Diacetylmorphine – the active ingredient in heroin – for 21 people who had been part of a drug trial known as SALOME.

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SALOME, the Study to Assess Longer-term Opioid Medication Effectiveness, is a study headed by B.C.'s Providence Health Care in which people with chronic heroin addiction received either diacetylemorphine or hydromorphone, a legal, licensed pain medication.

The three-year trial is being conducted in phases and so far, 75 people have "exited" the program. Some of those have been transferred to methadone or other programs, but some are deemed to still require prescribed heroin to maintain the stability and improved health they gained while taking part in the trial.

In a statement, federal Health Minister Rona Ambrose said, "Our Government has closed loopholes that allow for the feeding of addiction under the guise of treatment."

The special access program was designed to provide emergency access to certain medicines for Canadians with rare diseases or terminal illness, not to give illicit drugs to addicts, the statement added.

The constitutional challenge mirrors elements of the court battle over Insite, Vancouver's supervised injection facility, in which Mr. Arvay was also involved.

In 2011, the Supreme Court of Canada found the federal government's decision to close Insite, a supervised drug injection site, would have violated drug users' rights to life, liberty and security of the person under Section 7 of the Charter. The ruling was seen as a victory for supporters of the harm-reduction approach to drug addiction and as potentially opening doors for similar clinics in other parts of the country.

In October, however, federal health minister Rona Ambrose introduced changes to federal regulations that make diacetylemorphone a restricted substance under the Food and Drug Act, putting it off limits under the special access program.

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That resulted in the court challenge, which is being pursued by Providence Health Care and five SALOME patients.

Providence, a faith-based health care group, runs 16 facilities, including the downtown St. Paul's hospital.

Providence president and CEO Dianne Doyle said the patients who need diacetylmorphine are extremely vulnerable, and that the trial has shown that providing the drug provides measurable health benefits to the people in the trial and to society at large.

Funds for the legal battle will come from Pivot and Providence Health Care, which said it would not use taxpayer funds for the case but would rely on donors to foot the legal bill.

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