Alberta's switch to biosimilar drugs may activate a legal issue for doctors, say law researchers

Prescribing cheaper medication could create legal tensions for MDs

Helen Metella - 12 February 2020

The Alberta government's plan for many arthritis, diabetes and Crohn's disease patients to switch to less expensive medications by July 1 could create legal challenges for doctors, say two researchers at the University of Alberta Faculty of Law.

"If a physician has concerns about switching, there may be a legal obligation as a fiduciary to advocate for whatever is viewed to be in the patient's best interest," write Blake Murdoch and Timothy Caulfield in a new paper, "The Law and Ethics of Switching from Biologic to Biosimilar in Canada."

"We understand the significant health policy benefits of switching. These are expensive drugs," said Caulfield, Canada Research Chair in Health Law and Policy and research director of the Health Law Institute at the University of Alberta.

"But, for better or worse, the law and cost-containment goals often do not align."

The issue concerns biologic and biosimilar drugs, and whether patients currently taking biologics may suffer adverse effects if they suddenly change medications.

Biologics are reference drugs, approved as a standard. Biosimilars are copies, but not exact copies, of the biologic. Existing evidence - including research from countries that have switched - suggests switching is safe, but controversies remain.

Patient groups such as Crohn's and Colitis Canada, as well as Dr. Remo Panaccione, an expert in inflammatory bowel disease at the University of Calgary, believe there is a possibility of adverse effects for some patients when they switch medications, especially if their disease is currently in remission.

Legal researchers Murdoch and Caulfield say those possibilities raise legal and ethical challenges because doctors and health-care providers are required to give precedence to their patients' needs over any other concerns, such as the budget of the health-care system.

In addition, since 1980 doctors have been required by law to consider and disclose to their patients all the information and risks a reasonable person would want to know when the doctors obtain informed consent.

That could mean that doctors must not only disclose recent research about the safety of biologics and biosimilars, but must also tell patients about the current controversy, the perspectives of those who oppose the switch, and the patient's ability to access unfunded biologics.

The Alberta government intends to defund biologics for 26,000 patients who receive them through government-sponsored drug plans, by July 1. Doing so will save as much as $380 million over the next four years, the government says.

What are biologics & biosimilars?

Biologics are complex "reference drugs"- the initially approved drug to which new versions are compared. They are expensive to produce. Biosimilars are copies, but not exact copies. They are based on expired patents and are therefore less expensive to make.

What's the issue?

While Canadians do not have an inherent right to funding for reference biologics, in some circumstances doctors may have a legal obligation to advocate for patients remaining on a reference biologic. At minimum, contend legal researchers Blake Murdoch and Timothy Caulfield, they must robustly and thoroughly disclose the risks, benefits and reasonable alternatives.