B.C. appeal court overturns $35K award for psylocibin treatment

Psilocybin mushrooms are seen in a grow room at the Procare farm in Hazerswoude, central Netherlands, Aug. 3, 2007. THE CANADIAN PRESS/AP-Peter Dejong

B.C.’s highest court has overturned an award of $35,000 for a car crash victim’s psylocibin treatment, sending the matter back to the trial judge for redetermination.

The woman was seriously injured in a 2018 crash and awarded roughly $1.4 million in damages. Of that, a portion was earmarked for the cost of psilocybin capsules and psilocybin-assisted therapy, which ICBC, the province’s public insurer, challenged on appeal.

“The appellant appeals one small aspect of this award,” a three-judge panel of the Appeal Court noted in its recently published decision.

“It objects to a portion of the award for the cost of future care.”

The court heard the woman’s life has been “upended” since she was injured when the parked vehicle she was getting out of was rear ended—losing her job and ultimately her home when she was unable to pay rent.

“She will likely live with her difficult conditions for many decades. Her conditions are omnipresent, severe, and disabling, imposing emotional suffering, and destroying her previous vital and enjoyable lifestyle,” said the trial judge, who is quoted in the appeal decision.

“She is continually anxious about her pain, and the prospect of the pain and symptoms worsening in the future. Her conditions have severely impaired her personal and social relationships.”

The trial judge awarded the woman $35,158.55 for psylocibin therapy after hearing evidence the woman had been taking psylocibin daily to help with depression, suicidality, and chronic pain and that the treatment was “critical for her ability to function.”

In addition, the trial judge heard “compelling” expert evidence about the use of psilocybin for the “therapeutic treatment of various pain and psychological condition.”

The psylocibin, the decision noted, was procured through “a private, presumably unauthorized, supplier,” meaning the woman had obtained and used it illegally.

“The judge wrestled with the difficulty that psilocybin is a controlled substance,” the Appeal Court decision said, adding that “only lawfully incurred costs” can be included in damages awards.

In the case of psylocibin, federal legislation allows for individual exemptions granted by Health Canada that enable a person to legally possess and use the drugs with a prescription from a physician.

The trial judge found the psylocibin expense would be “reasonably necessary” if those criteria were met and documented, given its effect thus far had been “literally life saving.”

ICBC’s appeal argued that the order for damages did not attach any conditions to the psylocibin award, even though the judge’s reasons explicitly said authorization and a prescription—which the woman did not have at the time of trial—would be required.

“An appeal lies from the order, not the reasons, and the order does not reflect the contingency contemplated in the reasons, that psilocybin will only be obtained as medically prescribed with Health Canada authorization,” the decision said.

“The appeal must therefore be allowed.”

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