GUIDELINES FOR PHYSICIANS WHO RECOMMEND OR APPROVE USE OF MEDICAL MARIJUANA BY THEIR PATIENTS
by William Panzer, Esq., August 1997
Attorney, Friends of Prop. 215 and California NORML Legal Committee
Prepared for FRIENDS OF PROP 215 and CALIFORNIA NORML
A Federal Court decision establishes that California physicians who follow certain guidelines in recommending or approving the medical use of marijuana are immune from sanction or criminal prosecution.
There has been much conjecture and confusion regarding the implementation of Proposition 215, “The Compassionate Use Act of 1996″. The federal government has previously taken the controversial public stance of targeting physicians with warnings of potential criminal prosecution and/or civil sanction. It is understandable that numerous doctors are concerned about possible liability when questioned by a patient regarding the medicinal use of cannabis. The following is an attempt to illuminate the relevant issues and answer most questions a physician will likely consider when faced with this issue.
Proposition 215 was approved by the voters on November 5, 1996. Pursuant to the Proposition, Health & Safety Code Þ11362.5 was added to California law to effectively legalize the medicinal use of cannabis by seriously ill Californians.
WHO IS PROTECTED?
The new law protects three classes of individuals:
1) SERIOUSLY ILL PATIENTS may possess and cultivate marijuana for personal medicinal use with a physician’s recommendation or approval;2) PRIMARY CAREGIVERS may possess and cultivate marijuana for the personal medicinal use of a patient. A “Primary Caregiver” is defined in the law as “the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person”;
3) PHYSICIANS are protected from any state criminal or civil liability for recommending or approving the medicinal use of cannabis by a patient.
WHAT ABOUT THE FEDERAL GOVERNMENT?
Soon after the passage of Proposition 215, the federal government made several announcements in reaction to the new law. The gist of the government’s policy was that any physician recommending or approving the medicinal use of cannabis would be subject to three possible sanctions:
1) Criminal prosecution for aiding and abetting or conspiring with a patient to assist in the acquisition of marijuana;
2) Revocation of a physician’s DEA registration to prescribe scheduled drugs;
3) Exclusion from the Medicare and Medicaid programs.
In response to the numerous federal pronouncements, a group of ten physicians, five patients, and two nonprofit organizations filed a class-action suit in the United States District Court in San Francisco, contending that the federal policy was vague, ambiguous, and infringed on the First Amendment Free Speech rights of physicians and patients.
On April 30, 1997, United States District Judge Fern M. Smith issued a preliminary injunction which bars the federal government from taking any action against physicians who recommend or approve the medical use of cannabis for treatment of “HIV/AIDS, cancer, glaucoma, and/or seizures or muscle spasms associated with a chronic, debilitating condition”.
WHAT DID JUDGE SMITH RULE?
Judge Smith’s ruling protects California physicians from civil sanction or criminal prosecution for recommending or approving the medicinal use of cannabis in the treatment of the conditions listed above.
IT DOES NOT protect physicians who provide marijuana to patients, or direct patients where to procure marijuana. Specifically, Judge Smith ruled:
“The Court PRELIMINARILY ENJOINS defendants [the United States] … from threatening or prosecuting physicians, revoking their licenses, or excluding them from Medicare/Medicaid participation based upon conduct relating to medical marijuana that does not rise to the level of a criminal offense…. this preliminary injunction is also intended to cover non-criminal activity related to those recommendations, such as providing a copy of a patient’s medical chart to that patient or testifying in court regarding a recommendation that a patient use marijuana to treat an illness. These activities implicate the same legal issues and harms as physician recommendations.”
WHAT IS A PHYSICIAN LAWFULLY ALLOWED TO DO?
Under Proposition 215 and Judge Smith’s ruling, a physician can freely and openly discuss the medical use of cannabis with a patient. Should the physician believe that such use is appropriate treatment or beneficial to the patient’s health, the physician may recommend or approve the use of medicinal cannabis and should note such in the patient’s medical records. When a patient requests a copy of their medical records, the physician may safely provide the copy. Should a patient ask his or her physician to testify in court regarding the recommendation or approval, the physician can safely do so without fear of government reprisal.
WHAT ABOUT LETTERS OF RECOMMENDATION AND APPROVAL ?
After the passage of Proposition 215, many California physicians provided letters to patients confirming the recommendation or approval of medical cannabis use. At this time it is unclear as to what extent such a practice would be protected under Judge Smith’s ruling. While the federal government has yet to institute criminal or civil proceedings against a single California physician for providing such a letter, it appears that the safer practice is to note the recommendation or approval in the patient’s medical records, which the patient can obtain upon request pursuant to California law. So long as a physician is making a good-faith medical recommendation for treatment of HIV/AIDS, cancer, glaucoma, and/or seizures or muscle spasms associated with a chronic, debilitating condition, (including epilepsy), he or she is protected from any criminal or civil liability, on either the state or federal levels. Whether a physician enjoys the same protection from federal sanction for recommending or approving medical use of cannabis for a serious condition other than those listed is yet to be determined (a suit to extend the decision explicitly to patients with chronic pain is currently pending in the courts).
Prepared for FRIENDS OF PROP 215 and CALIFORNIA NORML
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