Medical Marijuana II - Doctors' at Risk?

Imagine: You have a disease that causes unrelenting pain, perhaps is terminal. Your doctor, based on medical research and studies in the leading medical journals, and in accordance with the laws of the state in which both doctor and patient reside, prescribes a drug that has been shown to be safe and effective in clinical trials throughout the world. However, Congress passes, and the President signs, a bill that states the drug to be neither effective nor safe and of no medical benefit. A Court subsequently convicts the physician for prescribing that medicine; as a result your doctor can no longer practice medicine and may end up in jail. Crazy? Could never happen? As of now, under those precise circumstances, that result may well happen.

On the other hand, if the doctor states to the patient that the forbidden drug will likely, if not certainly, help but does not give any instructions on how to or from whom the drug can be obtained, as of now, this time the physician is not in jeopardy. In other words, a physician may discuss and recommend the patient's use of marijuana for medical purposes, but cannot suggest which junior high school dealer serves up the best stuff.

On such distinctions does the law feed.

In an prior article, I discussed the federal-state conflict regarding the use of medical marijuana or cannabis, permitted by the local law of some twelve states and forbidden by Congress. The basic Federal statute regulating cannabis is the Comprehensive Drug Abuse Prevention and Control Act of 1970, which describes drugs as being under one of five classes or schedules. Cannabis is considered a "Schedule I" substance, one that has a high potential for abuse, no accredited medical use, and a lack of accepted safety. This characterization may be valid or invalid, scientifically true or false, the jury remains out, although there is a substantial collection of medical groups supporting the judicious use of cannabis.

In United States v. Oakland Cannabis Buyers' Cooperative, decided in 2001, the Supreme Court held that "medical necessity" was not a defense to a prosecution for the producing and distribution of cannabis to ill persons. The Court said that Congress had made cannabis a Schedule I drug and that was that! It is interesting, and perhaps a carryover from the fears of Reefer Madness that the statute allows the Attorney General to put specific drugs (other than cannabis) on one of the "schedules". If that official takes such action, it might be challenged in court as irrational or an abuse of discretion; in the case of marijuana, however, the decision was that of a political body alone, the Congress.

Ironically, as evidence was mounting as to the efficacy of medical marijuana, Federal policy has grown more inflexible. Marijuana, like other controlled substances, is available only in tightly regulated situations. The government still funds some clinical trials for cannabis, but that's about it; the guy on the corner selling weed in dime bags is probably not covered by a federal grant. And neither is the grower of marijuana for medical purposes such as Bernie Ellis!

Be that as it may, the Federal response to the state medical marijuana laws also included a gag order, first sought by the Clinton Administration, that is the subject of Conant v Walters, a 2002 decision of the Ninth Circuit Court of Appeals. The gag rule was in the form of regulations barring doctors from even discussing or recommending marijuana to their patients, even if the doctors made no effort to prescribe or distribute the substance. A federal district court, in 1997, immediately issued a temporary injunction to stop enforcement of that part of the law, and the Clinton Administration was content to let matters lie.

In 2000, the trial court made the injunction permanent, apparently on its own motion, and the Justice Department, now energized and eager to demonstrate a no-survivor position as to marijuana, appealed to the Court of Appeals. That court upheld the District Court and a subsequent appeal to the Supreme Court by the Government was dismissed summarily. (One should note that the Ninth Circuit has the dubious honor of being one of the most reversed in the Federal system, usually without any explanatory opinion!)

The issue before the courts was not whether medicinal marijuana was good or bad or even if it might be used to alleviate pain. The issue was one of facilitating the free speech and ability of a physician to speak to his or her patient. But the decision also sets forth limits on what a doctor can say and do - and this is not quite settled yet.

The federal government promulgated its anti-drug policy as to physicians in the mid 1990's in response to initiatives passed in both Arizona and California decriminalizing the use of marijuana for limited medical purposes and immunizing physicians from prosecution under state law for the "recommendation or approval" of using marijuana for medical purposes. The federal policy declared that a doctor's "action of recommending or prescribing Schedule I controlled substances [was] not consistent with the 'public interest' and that such action would lead to revocation of the physician's registration to prescribe controlled substances." In effect, recommending or prescribing cannabis would put the doctor out of business.

The Court in Conant drew a line. The doctor may discuss the pros and cons of medical marijuana, may recommend that the patient obtain and try it to check if it helps, may, indeed, suggest that it will help the patient's condition. The doctor may not, however, facilitate or abet the patient in obtaining the substance. In other words, it's permitted for the doctor to recommend cannabis, but he or she cannot suggest where the patient can obtain marijuana.

As of today, the law seems settled. Physicians may, throughout the country, discuss, fully and candidly, the risks and benefits of medical marijuana with patients, recommend in accordance with their medical judgment, marijuana for patient use, and record in their patients' charts discussions about and recommendations of medical marijuana. (In the 38 states that do not provide for possession of cannabis for medical reasons, however, a person in possession of the drug may run afoul of state law. A number of states are seriously considering the decriminalization of marijuana for medicals use.)

Doctors may not, in any state, however, prescribe medical marijuana, including any written recommendation on a prescription form or letterhead, assist patients in obtaining marijuana, cultivate or possess marijuana for patient use, or physically assist patients in using marijuana. In short, the physician cannot "aid, abet or facilitate".

It should be noted that all of this assumes that local state law permits the use of medical marijuana. That will protect both doctor and patient from prosecution.

While other states are preparing to allow the use of marijuana for medical purposes, the Justice Department has been suggesting that increased and broader enforcement is to be expected. The Justice Department has never been happy about the Conant decision, and a new challenge to physicians' ability to recommend cannabis to patients who have a medical need can be anticipated.

Keep tuned and watch your government in action.

Note that nothing in this article or in the previous one considers the use of cannabis for recreational use. It may or may not be harmful, it may or may not be less harmful that alcohol; I am personally not impressed by the argument that that since drunk drivers kill people, those who smoke pot are somehow superior. That is not the point when use is for medical purposes.