Medical Marijuana and Fettering Discretion

One of the cardinal principles of administrative law is that a decision-maker should never fetter his or her discretion. A recent case involving a claim for reimbursement for medical marijuana illustrates the principle nicely: Heilman v The Workers’ Compensation Board, 2012 SKQB 361.

A battery of pharmaceutical treatments were prescribed over the years for the applicant's variety of ailments. On the recommendation of his physician, he began to use -- and continues to use -- medical marijuana. His 4 grams a day were being reimbursed by his healthcare provider. Concerned that if they ceased to fund his medication he would have to foot a $1,200 monthly bill, the applicant requested compensation from the Board.

His application was refused. Under the legislation, the Board has broad authority to reimburse medical expenses and to formulate policies. One of those policies provided in part as follows:

1. The cost of a prescription medication will be reimbursed if: 

a.  it is prescribed by the treating physician;

b.  it is appropriate and needed to treat the accepted work injury; and

c.  the use of the medication corresponds to the indications listed in The Saskatchewan Formulary or The Compendium of Pharmaceuticals and Specialties...

3. The cost of non-prescription medications will be reimbursed under the following two categories:

b.  Alternative Health Products

The cost of alternative health products and substances such as vitamins, nutritional supplements, or herbal remedies will be reimbursed if their use is recommended by the treating physician and is approved by the WCB Medical Consultant. For example, supplementary vitamins may be recommended to improve energy and well-being of clients with some types of cancer. The objective is to improve the client’s quality of life, which may have been compromised by the accepted work injury.

One would expect, in the circumstances, a serious examination by the Board of whether medical marijuana use fell within the terms of the policy.

But,  the Board explained:

While Mr. Heilman and his physician believe the use of medical marijuana is appropriate, under this policy, medication use corresponds to the indications in the Saskatchewan Drug Plan Formulary or Compendium of Pharmaceuticals and Specialties or the medication is approved by the Saskatchewan WCB Medical Consultant. The WCB Medical Department does not support, under any circumstances, the smoked variety of medical marijuana, and, does not support off label use of oral or spray marijuana.

Formulating a policy for the better administration of a statutory scheme is entirely permissible. It aids predictability and consistency. A decision-maker cannot, however, tie his or her hands by deciding to reject all claims of a particular category, without considering the merits of individual cases.

McMurtry J. held, I think correctly, that the Board had fettered its discretion by adopting the policy highlighted in the last quote:

[38] In my view, it appears from the Tribunal’s decision that it did not make an independent determination about whether Board Policy 10/2011 applied to the applicant. Instead the Tribunal held that because the medical department and/or medical consultant did not support medical marijuana, neither did it. The record received from the Tribunal does not contain the submissions made by the medical consultant and/or the medical department if submissions were made. We are left to wonder, therefore, how the Tribunal received the views of the medical department/medical consultant, and what they were.

[39] I find the Tribunal’s reliance on the “submissions” of the medical consultant and/or medical department for determination for the applicant’s appeal to be an error of jurisdiction. In effect, the Tribunal fettered its discretion on the appeal by delegating the decision making to the medical consultant and/or medical department. Having “disable[d] itself from exercising the power to decide entrusted to it by statute” (Sebastian, supra, at para. 57), the Tribunal made an error of jurisdiction.

Puzzlingly, McMurtry J. suggested that the standard of review was reasonableness. This is surprising: fettering of discretion is reviewed on a correctness standard (in Canada, and in England). McMurtry J. made up for this, however, by correctly concluding that to fetter discretion is to make a jurisdictional error. It is as if the decision-maker never exercised its discretion in the first place.

In any event, the end result was that the decision was remitted back to the Board for a proper consideration of whether the applicant is entitled to reimbursement for his medical marijuana. A good illustration, then, of how the rule against fettering discretion allows decision-makers to, ahem, weed out appropriate exceptional cases.