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This was a private conversation, and he did not give permission to publish his name, so I'm not posting it for him to become a target for email and possible harassment. He's affiliated with a major California medical center. His exact word was "prescribe". I accepted your information that it is actually a "recommendation in the file," but perhaps I shouldn't? According to this (caveat - comes from a cannabis site) the Supreme Court decision referenced was far from clear. "If, in making the recommendation," the court wrote, "the physician intends for the patient to use it as the means for obtaining marijuana, as a prescription is used as a means for a patient to obtain a controlled substance, then a physician would be guilty of aiding and abetting the violation of federal law."

In Conant v. Walters, (9th Cir 2002) 309 F.3d 629, a three-judge panel of the 9th Circuit ruled that a doctor's written "recommendation" was not aiding and abetting the violation of federal law. The U.S. Supreme Court let the ruling stand. In those states served by the 9th Circuit, therefore, this is the law.

I believe the 9th Circuit was wrong (that's a first, huh?). Certainly the doctor may discuss the pros and cons of smoked marijuana as medicine with his patient. He does have that first amendment right. He may even document that conversation into the patient file.

But if he allows the patient to make a copy of that recommendation knowing it will be used to acquire marijuana, or if it was found later that it was used to acquire marijuana, the doctor is indeed guilty of aiding and abetting the violation of federal law. Without a copy of that written recommendation the patient would not have been able to acquire the marijuana.

For a doctor to plead ignorance, saying he had no idea why the patient wanted a copy of the recommendation or saying that he had no idea that it would actually be used to acquire marijuana is ludicrous.

Yet the court ruled, "Holding doctors responsible for whatever conduct the doctor could anticipate a patient might engage in after leaving the doctor's office is simply beyond the scope of either conspiracy or aiding and abetting."

Yeah, right. But we'll hold bartenders responsible for their customers, won't we? Sell a gun to a felon that he later uses to kill someone and see if your actions are "beyond the scope of either conspiracy or aiding and abetting."

But doctors get a pass because they can't anticipate that the patient will use that recommendation to acquire marijuana? That's bull$hit. That's nothing more than a wink-wink, nudge-nudge mockery of the law.