Guidelines for Physicians Who Recommend Medical Marijuana

CalNORML Alert 6/1/2011 - It has come to our attention that some doctors are charging clients extra for so-called "cultivation licenses" supposedly entitling them to grow more than the normal number of plants. There is no such thing as a "cultivation license" under California law. Any patient with a California physician's recommendation may legally cultivate or possess as much marijuana as they need for their own personal medical use, and no more. No physician can authorize them to cultivate more (they can only testify in court that a certain amount of marijuana is consistent with the individual patient's needs, and they do not have professional competence to prescribe plant numbers). Other unethical clinics are under the ownership of non-physicians, which is against California law. Our policy is not to list illegal or unethical clinics at our website.

Physicians are free to recommend marijuana for their patients, so long as they don't actually assist them in obtaining it. Over 1500 California physicians have recommended medical marijuana under Prop. 215.

References for physicians include O'Shaughnessy's, the Journal of the California Cannabis Research Medical Group and the International Cannabinoid Research Society, as well as Cal NORML's Patient's Guide to Medical Marijuana downloadable in English (11x14) and Spanish (8 1/2 x 11).

NORML's Emerging Clinical Applications for Cannabis and Cannabinoids: A Review of the Scientific Literature (left) is available at the Cal NORML store, and the Medical Marijuana Handbook (right) is available on Kindle.

Also see: Society of Cannabis Clinicians Physician Resources

Many physicians wrongly fear that they can be prosecuted under federal law for recommending marijuana medically. The Ninth Circuit Court of Appeals upheld a permanent injunction by the U.S. District Court in Northern California forbidding the government from punishing California doctors for recommending marijuana, provided they do not get involved in its distribution or sales. No California doctor has been prosecuted for recommending medical marijuana. See more information below.

GUIDELINES FOR PHYSICIANS
WHO RECOMMEND OR APPROVE
USE OF MEDICAL MARIJUANA
BY THEIR PATIENTS

by William Panzer, Esq.
Attorney, Friends of Prop. 215 and California NORML Legal Committee

updated by Dale Gieringer
California NORML

also see: Physician Responsibilities at California DPH site

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 initally took the controversial public stance of threatening to target physicians with warnings of potential criminal prosecution and/or civil sanction. Numerous doctors have been understandably 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 Sec. 11362.5 was added to California law to effectively legalize the medicinal use of cannabis by seriously ill Californians.


WHO IS PROTECTED?

The 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 barring 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." The ruling was subsequently upheld by an injunction from the Ninth Circuit Court of Appeals in its ruling Conant v McCaffrey (2002). The Supreme Court refused to reconsider the decision, leaving it as binding federal law in the Ninth Circuit (including all West Coast states plus Nevada and Montana).

WHAT DID THE COURT RULE?

The court's injunction 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 the Conant injunction, 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.

Pursuant to the passage of Proposition 215, thousands of California physicians have provided letters to patients confirming the recommendation or approval of medical cannabis use. To date (2007), not a single physician has been federally charged or sanctioned for doing so.

WHAT ABOUT STATE LAW?

The California Medical Board oversees the practice of medicine in the state. In 2004, the Board issued a policy statement outlining standards of good practice for cannabis medicine. A few specialists with large numbers of medical cannabis patients have been investigated by the Board pursuant to complaints from law enforcement. Most of the complaints have been dismissed, though a handful have resulted in disciplinary action for failure to maintain good standards of practice.



Prepared for FRIENDS OF PROP 215

and

CALIFORNIA NORML


California NORML

2261 Market St #278A

San Francisco, CA 94114

(415) 563-5858

info@canorml.org



How to list on California NORML's Cannabis Physicians directory.