A (Mushroom) Trip Too Far: Policy Shift on Psilocybin Takes Minister Off the Map
A recent Federal Court of Appeal decision about medical psilocybin use exemptions is a great illustration of the administrative law principle that a significant policy shift must be adequately explained.[1]
The appellants in this case were a number of health care practitioners (HCPs) who challenged the Minister of Mental Health and Addictions’ refusal to grant exemptions under subsection 56(1) of the Controlled Drugs and Substances Act (CDSA) to the HCPs for possession and personal use of psilocybin. The HCPs were undergoing training to provide Psilocybin-assisted psychotherapy (PSAP). The HCPs sought the exemption to undergo “experiential psilocybin training,” which means that that HCPs would personally consume psilocybin to experience the altered state of consciousness patients experience during PSAP.
A central argument by the HCPs on appeal was that the Minister’s 2022 decisions were inconsistent with prior exemptions granted in 2020 for the same purpose.
The Policy Shift
In 2020, Health Canada granted 19 exemptions for HCPs to consume psilocybin for experiential training. These exemptions were granted on the basis that there were problems with clinical trials, such that personal exemptions was the preferred pathway to provide this type of training. The Minister also noted that experts were of the opinion that that experiential training was preferable for successful PSAP.
When the Minister denied similar requests in 2022, the Minister expressed that it was preferable for experiential training to be done by way of clinical trials. The Minister also stated that there was no expert consensus about whether experiential training improved the quality of PSAP.
Requirement to Explain the Change
The Court emphasized that significant policy shifts that affect individual interests require explanation. The Minister’s 2022 decisions acknowledged a change in position but described it merely as an “evolution” without providing a clear justification.
The Court noted that under the Supreme Court’s framework in Vavilov, administrative decisions must be transparent, intelligible, and justified. The Court found that the Minister’s decisions failed to meet this justificatory burden, particularly in light of the stark contrast between the 2020 and 2022 decisions.
The Court held that while policy evolution is expected, the Minister must connect the dots and explain why nearly identical exemption requests were now considered not in the public interest. The absence of such an explanation rendered the decisions unreasonable.
Conclusion
To satisfy the Vavilov standard that decisions must be transparent, intelligible, and justified, administrative decision-makers should ensure that the reasons behind significant changes in policy are thoroughly explained.
If you are an adjudicator and have questions about decision making principles, or an HCP with questions about how to maintain compliance while working with innovative treatment modalities, contact us.
[1] Toth v. Canada (Mental Health and Addictions), 2025 FCA 119 (CanLII)
