Posted on 11/13/2002 1:02:44 PM PST by RJCogburn
Physicians can discuss the pros and cons of medicinal marijuana with their patients without worry of the Drug Enforcement Administration cracking down on them, a federal appeals court ruled in October.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco unanimously ruled that a 1996 federal policy that said physicians could lose their DEA numbers if they discussed the issue tramples on First Amendment rights that allow a doctor and patient to discuss medical issues.
The policy had some physicians fearful of discussing the issue with patients who have cancer, AIDS or other debilitating diseases and had sought their physician's medical advice on the topic. But this court ruling -- which upheld the lower court rulings on the issue -- should alleviate those fears.
"Physicians can have a full, complete discussion about marijuana and offer an opinion on it," said Graham Boyd, director of the American Civil Liberty Union's Drug Policy Litigation Project, who argued the case before the 9th Circuit panel. "They can do what doctors do. They can give advice orally, in writing or other forms."
"Those involved feel vindicated," added San Francisco HIV/AIDS specialist Marcus Conant, MD, one of the physicians who filed the lawsuit against the government. "The case was simply about what can happen when a patient closes the door and talks to a doctor."
The ruling directly impacts physicians in most of the states that have legalized medical marijuana since the mid-1990s.
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The case originated in California, the first state in the nation where medical marijuana was legalized. But Alaska, Arizona, Hawaii, Nevada, Oregon and Washington, which have similar laws, are also under the jurisdiction of the 9th Circuit.
Colorado and Maine are the only other states in the nation with such laws. And even though the 9th Circuit court doesn't have jurisdiction over cases there, Boyd said "it would be surprising" if the government targeted physicians there who give advice to patients.
The government could appeal the panel's decision to the full 9th Circuit or appeal to the U.S. Supreme Court. Even if the case were appealed, the government could not sanction physicians while the case was under appeal. Since the lawsuit was filed in 1997, a court injunction has stopped the government from enforcing its policy.
"The court ruling makes clear that physicians should be comfortable in discussing any therapeutic options with their patients, including medical marijuana," said Jack Lewin, MD, CEO of the California Medical Assn., which filed a friend-of-the-court brief in the case arguing the federal rule censored physician's speech and jeopardized patient care.
"This ruling gives doctors a reason to breathe easier," Dr. Lewin said.
What physicians can say While doctors can talk about the issues with patients, they need to be careful that they don't cross a line and discuss anything that could be considered distribution of the drug, Boyd and others said.
Discussions about how marijuana could potentially help stimulate appetite or reduce pain, based on what physicians have seen in other patients or heard from colleagues, is well within the bounds of free speech.
So is entering a discussion into the patient's medical record or putting it into another form of writing in the way that a doctor would document other patient discussions or physician recommendations.
"Doctors write letters and notes and fill out forms for a million reasons," Boyd said. "They may give a patient a note to inform their employer that they are sick or have a disability. It is not a prescription. A prescription is an order written to a pharmacy to give a medication."
Notes regarding medical marijuana could be written in the same manner as notes written for disability or illness.
But if a seriously ill patient says he or she needs a note to get marijuana from a specific place, that could potentially cross the line into distribution.
"It would be prudent for a doctor to avoid that," Boyd said.
Dr. Conant said one of the reasons he took on the government in this case is because he believed that the government was letting politics interfere with what is said between a physician and patient.
"This is not the first time this has happened," he said. "And I don't think we've put the issue behind us."
In the past, the government censored what doctors could tell patients about abortion and stopped them from prescribing birth control pills. Court rulings helped change that.
"Physicians at times need to stand up and say that the government is wrong," Dr. Conant said.
Dr. Lewin agreed, saying the recent ruling should be a reminder to the government that it shouldn't try to practice medicine.
"The federal government is acting emotionally rather than logically, intruding on the physician-patient relationship," he said.
Enough said.
The 9th is the most liberal court in the nation and the most overturned.
This court is a preview of what a libertarian government would bring to America.
More like "Loony Tunes."
This decision, at least, is a step in the right direction, so bring it on.
Well well well. A doctor dispensing medical advice based on ... what? Some observations, some discussions, rumors, gossip, Art Bell? My respect for the profession just dropped a few more notches.
Free speech is one thing -- and I agree with the 9th Circuit on that basis. But do these doctors know what they're doing?
"Notes regarding medical marijuana could be written in the same manner as notes written for disability or illness."
Bingo! This is the whole purpose. Get that all-important piece of paper from your physician (it's an opinion, not a prescription -- right!) and take it to the nearest place that dispenses marijuana for "medical" purposes.
Nowhere in the Constitution is it prohibited to commit murder. Therefore, if the real-world version of Tony Soprano wants to rub someone out, it's his "God-given right."
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