Medical marijuana: Legal considerations for physicians

December 10, 2015

The medical profession is on the front lines of the medical marijuana battle. Yet the federal government still treats marijuana as a Schedule 1 controlled substance.

The medical profession is on the front lines of the medical marijuana battle. As of this writing, 23 states and the District of Columbia have enacted some form of a medical marijuana law, permitting doctors to prescribe or recommend marijuana as a form of treatment. Yet the federal government still treats marijuana as a Schedule 1 controlled substance.

That means the government believes marijuana has no legitimate medical use. Thus, under federal law, dispensing marijuana for any reason is considered a felony.

Doctors and other healthcare professionals increasingly are caught in the crossfire of this conflict. Patients and state regulatory agencies say they may use marijuana as a medicine, while the U.S. Department of Justice tells them if they do so they are criminals. This article will provide some general guidance for practitioners.

Will I be arrested if I prescribe or recommend marijuana for my patients?

While it is not possible to answer this question authoritatively, the general answer is that if you are practicing in a state with a medical marijuana law, and you scrupulously follow the letter and spirit of the law, you stand very little chance of facing criminal charges.

The federal government has shown no interest in prosecuting healthcare practitioners who follow state law. In fact, the Justice Department has issued several memoranda explaining that federal prosecution of medical marijuana-related activity is not an efficient use of federal prosecutorial resources.

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With that said there are a number of caveats, however. First and foremost, obviously, you must be practicing in a state with a medical marijuana law. Courts have uniformly rejected arguments by users or providers in states where medical marijuana is not authorized that there is a constitutional, statutory, or common law right entitling a doctor to prescribe marijuana.

Courts have also refused to recognize the “necessity” defense in marijuana prosecutions in such states. The “necessity” defense sometimes will excuse criminal conduct if the conduct was necessary to prevent a greater harm-for example, trespassing on someone’s property to put out a fire. Courts have held that there is never a situation in which marijuana use is necessary to prevent a greater harm.

Next: How do I prescribe marijuana legally?

 

Second, you must be aware that the federal policy is subject to change. The Obama administration has taken a hands-off approach to medical marijuana, but come January 2017, there will be a new sheriff in town. Some presidential candidates have used language suggesting that they would crack down on medical marijuana.

Patient records: The fight for ownership

Finally, remember the requirement to scrupulously follow the letter and spirit of the law of the state where you practice. Failure to do so not only will subject you to a greater likelihood of federal prosecution, but most state laws declare that marijuana distribution that does not comply with that state’s laws and regulations is criminal.

How do I prescribe marijuana legally?

Again, the answer will depend on the particular laws and regulations of the state where you practice. Most states do not permit an actual “prescription” for medical marijuana, but only authorize a practitioner to recommend it, or advise the patient to consider it. One federal court has recognized that in states where medical marijuana is legal doctors have a constitutional free speech right to make such recommendations to patients.

However, many states do require practitioners to certify in some way that a patient suffers from a condition that that state has recognized will benefit from treatment with medical marijuana.

New York, for example, requires doctors to certify that a patient suffers from “a specific severe, debilitating, or life threatening condition that is accompanied by an associated or complicating condition.”

Next: Are there any other risks I must consider?

 

Most states also require a doctor recommending or certifying a patient for medical marijuana use to register with the state to do so, and maintain specific types of records.

Are there any other risks I must consider?

Of course prescribing marijuana, like prescribing any controlled substance, carries with it certain risks for doctors.

Increasing numbers of doctors specializing in pain management have been prosecuted, both in federal and state courts, for operating “pill mills,” where every patient gets a narcotic prescription in exchange for the exorbitant visit fee. Expect to see similar enforcement activities (and, unfortunately, similar unethical practices) in the medical marijuana realm.

In addition, marijuana use can harm the patient, and the patient or his or her family may seek to hold the recommending or certifying doctor responsible for any harm that does occur. Documenting that you have provided patients with clear and unequivocal warnings about the dangers associated with marijuana use, as is the case in the use of any medication with potentially dangerous side effects, is the best defense against this risk.

In this brief space it is not possible to explore comprehensively the myriad legal complications associated with medical marijuana. The above comments are intended only as a starting point for a practitioner considering whether his or her patients can benefit from using medical marijuana, and if so, whether it is practical to be the one who recommends or certifies it.

You would be well-advised to conduct individualized and localized research on the laws in your jurisdiction, and to consult with counsel, before embarking on that course.

 

John Martin, JD, is a partner at Garfunkel Wild, P.C. in Great Neck, New York. Please send your legal and compliance questions to medec@advanstar.com.