Please understand that the following is not intended to serve as legal advice, a substitute for your own due diligence or in any way commentary on the positions established by your affiliated hospitals or employers.
Beginning in 1996 with California’s Compassionate Use Act, 23 states and the District of Columbia today have laws that allow sick patients to legally obtain and use medical cannabis. Although this wave of legalization is strong today, and safe access to the plant in every state seems inevitable, federal officials originally challenged California’s progressive law.
Shortly after California’s adoption of legal medical cannabis (via a popular vote that captured 56 percent of voter approval), federal officials threatened to revoke doctors’ ability to prescribe the substance to patients for medical use.
The federal government’s attempt to thwart California’s new law was met by a strong response from a group of doctors and patients. A lawsuit was filed against the federal government by Dr. Marcus Conant, an AIDS specialist. The suit argued that the government’s effort to quiet doctors who believed in the medical efficacy of cannabis was a violation of the First Amendment. The underlying court held that “Given the doctrine of constitutional doubt, the government’s construction of the Controlled Substances Act cannot stand. The government should be permanently enjoined from (i) revoking any physician class member’s DEA registration merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The injunction should apply whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law.”
The federal government appealed and, in 2002, the Ninth Circuit Court of Appeals affirmed the lower courts ruling. Furthermore, Judge Alex Kozinski’s concurrence also brought in the First Amendment right of patients to hear accurate information from their doctors.
The federal government again appealed, but the U.S. Supreme Court declined to take the appeal. In and of itself, a message from the U.S. Supreme Court on this issue.
But what exactly are doctors permitted to/prohibited from doing following this potentially confusing trail of lawsuits?
Based on Condant, a doctor is allowed to discuss the merits of medical marijuana with patients. A doctor is also permitted to deliver written or oral recommendations to the patient suggesting that they try cannabis. Thus, a doctor telling a patient, even in writing, “Cannabis may help you” or “You really should consume cannabis, it will help” is acceptable. A doctor is NOT permitted to provide a patient with cannabis. Nor can a doctor prescribe cannabis — doctors cannot prescribe Schedule I controlled substances.
Rather than advise the patient on how to or where to obtain the medicine, doctors should refer the patient back to the details of the Nevada program and the resources provided by the Department of Health.
The American Medical Association, in Article III of the Principles of Medical Ethics, wrote: “A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.”
Again, based on the federal precedent established by the Federal Court of Appeals in Conant, physicians in states without medical cannabis laws are also permitted to recommend cannabis to their patients based on First Amendment rights of physicians and patients. However, if located in states with medical cannabis laws, physicians must comply with individual state requirements when writing recommendations for cannabis.