The group of terminally ill patients and supporters is seeking for legal recognition of the ‘right to try’. They are advocating for access to treatments or drugs which do not have Health Canada approval but which could potentially slow the progression of disease, improve quality of life, and save lives. In pursuit of this goal, the group has conducted a letter campaign to federal members of parliament. In November 2016, the federal Health Minister Jane Philpott met with the co-founder of the campaign, Jeff Perreault.1
The proposed Right to Try Act seeks to accomplish three things: First, it sets out a procedure for making ‘potential life-saving treatments’ available to eligible patients, no matter how remote the possibility of success. Second, it stipulates that the provider of the treatment may seek compensation for the treatment directly through the patient. Lastly, it includes an immunity clause that protects providers of a potential life-saving treatment from civil liability and criminal prosecution, except in the case of gross negligence or willful misconduct.2
Critics, however, are skeptical about whether the proposed measures are needed. Currently, all prescription pharmaceuticals and medical devices must obtain approval from Health Canada. However, doctors may, and routinely do, make off-label use of approved medications.3 Furthermore, doctors can request special access to pharmaceutical and medical devices that have not obtained Health Canada approval for the purpose of treating patients with serious or life-threatening conditions when conventional therapies have failed, are unsuitable, or unavailable. Health Canada strives to promptly address each request for special access, and often does so within the matter of a few days.4
Critics also urge caution about removing checkpoints in the procedures for providing exceptional access to unapproved medical treatments. They point to the once hyped but now-discredited ‘liberation therapy’ for multiple sclerosis.5
Maria Eugenia Brunello
1 Joanne Laucius, “Fighting for the ‘right to try’: Terminally ill Canadians want legal right to access unproven treatments” Edmonton Journal (December 5, 2016), online: <http://www.edmontonjournal.com/fighting+right+terminally+canadians+want+legal+right+access+unproven/12481076/story.html> [“Laucius”].
2 “Right to Try Act”, online: <https://nebula.wsimg.com/ff69119bd46ac0e5bab160ca06f05ae2?AccessKeyId=EF1329166FC607848A08&disposition=0&alloworigin=1>.
3 Standing Senate Committee on Social Affairs, Science and Technology, Prescription Pharmaceutical in Canada: Off-Label Use, (January 2014) at 3.
4 Health Canada, “Special Access Programme – Drugs”, online: <http://www.hc-sc.gc.ca/dhp-mps/acces/drugs-drogues/sapfs_pasfd-eng.php>; Health Canada, “Guidance for Health Care Professionals on Special Access and Custom-Made Medical Devices”, online: <http://www.hc-sc.gc.ca/dhp-mps/acces/md-im/sap-md-dg-as-im-ld-eng.php>; Laucius, supra note 1.
5 Laucius, supra note 1.