Federal Court Dismisses Dying Patients’ Plea for Psilocybin Treatment under Right to Try Laws

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A three-judge panel in the U.S. Federal Court of Appeals has dismissed a case brought earlier this week by a hospice doctor and two cancer patients, requesting access to psilocybin treatment under right to try laws, Reuters reports. The petitioners are seeking legal access to psilocybin, a federally classified Schedule I drug, to treat end-of-life depression in terminally ill patients.

The federal court stated it lacked jurisdiction to decide on the case, brought against the Drug Enforcement Administration (DEA) in March 2021 by Seattle-based palliative care physician Dr Sunil Aggarwal and two of his patients, Erinn Baldeschwiler and Michal Bloom.

In practical terms, this procedural deadlock is a victory for DEA in a test case on the interaction between the federal Controlled Substances Act, which prohibits possession and therapeutic use of psilocybin, and federal and state right-to-try (RTT) laws.

What are right-to-try laws?

The Right to Try Act, enacted in 2018 by the Trump administration, is designed to facilitate access to investigational new drugs for dying patients.

The law allows individuals with terminal illnesses to try drugs and medicines that have shown therapeutic potential in clinical trials but have not yet been approved by the U.S. Food and Drugs Administration.

AIMS’ attorney, Kathryn Tucker of Emerge Law Group, wrote to the DEA in January 2021 for guidance on accessing a psilocybin prescription under RTT laws. The DEA blocked their request, responding that right-to-try laws create no exemption from the Controlled Substances Act.

Patients continue to fight for right to access psilocybin

In December 2021, lawmakers sent a bipartisan letter to the DEA, requesting that terminally ill patients be allowed to use psilocybin as an investigational treatment without the fear of federal prosecution.

Introduced by Democratic Representative Earl Blumenauer and signed by a number of reps across the political spectrum, the letter highlighted research which demonstrates that psilocybin is an effective treatment providing immediate, substantial and sustained relief from debilitating end-of-life anxiety and depression in individuals with terminal illnesses.

The three-judge panel at the Ninth Circuit on Monday agreed with the DEA, which argued that the agency had only given AIMS informal guidance and had not taken any final agency action which a court could review.

In light of this disappointing outcome, AIMS’ attorney stated that, given the nature of this case, time is of the essence. The patients will continue to fight for access to psilocybin using RTT laws and are immediately initiating two procedures designed to require a formal decision from the DEA, which the appeals court.

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