Q&A: The Legal Implications Of Medical Marijuana

Fifteen states and the District of Columbia have laws permitting the use of medical marijuana. Conversation With Joshua B. Murphy, JD, Associate Chief Legal Officer, Chair of Litigation and Risk Management, Mayo Clinic, Rochester, MN
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What are some key considerations for physicians who prescribe, or are thinking about prescribing, medical marijuana for certain patients?

Mr. Murphy: First, I want to emphasize the importance of terminology when talking about medical marijuana. The important terminology distinction is between prescribing and recommending. Under federal law, which applies to all states, including those that have legalized medical marijuana, a physician cannot prescribe medical marijuana nor aid and abet a patient in procuring medical marijuana. This is because federal law classifies marijuana as a class 1 controlled substance, which means that, in the eyes of the government, it has no acceptable medical use. What physicians can do is recommend marijuana for patients or advise patients that they might benefit from medical marijuana and that the benefits may outweigh the risks. A physician’s right to recommend medical marijuana was recognized in a 2002 decision by the Ninth Circuit Court of Appeals (Conant v Walters), which held that the First Amendment to the US Constitution, which protects free speech, allows a physician to talk to patients about medical marijuana and even to recommend use of the drug without being punished.

How far does that leeway go in advising patients about medical marijuana?

Mr. Murphy: A physician is free to provide information and recommendations regarding medical marijuana. However, a physician faces some risk if he or she takes steps that are specifically intended to enable a patient to procure medical marijuana. Such steps might be viewed as aiding and abetting the procurement of marijuana, which violates federal law and is not protected by the First Amendment.

Other than actually writing a precription for medical marijuana, what actions might be viewed as aiding and abetting the acquisition of the drug?

Mr. Murphy: It could be, for example, telling a patient the location of a medical marijuana dispensary, or even taking a phone call from a dispensary and confirming that the physician has recommended medical marijuana for a particular patient. It may also include filling out the standard certification form that states typically require patients to have in order to get marijuana legally from an authorized dispensary. Some concern has been raised in legal literature that filling out that form could be seen as aiding and abetting the acquisition of marijuana, because that’s the only reason for filling it out.

If writing a prescription or even filling out the official certification form is potentially risky for a physician, what options are left that would allow a patient to actually obtain marijuana from a dispensary?

Mr. Murphy: A patient does need written proof that a physician has recommended medical marijuana. For physicians who want to minimize legal risks as much as possible, I recommend that they simply document their recommendation in the medical record and give a copy of that record to the patient. Patients may be able to use that documentation to meet whatever legal requirements the state has.

I don’t want to sound overly risk averse, and I understand that physicians want to help their patients and give them more information rather than less. You can imagine a conversation in which a doctor says to a patient, “I’ve had other patients with similar conditions who have had success with medical marijuana. It’s not without its risks, but the benefits for some of my patients have been significant. You may want to try it.” But what if that patient is a 65-year-old woman with bad arthritis or other issues that cause real pain and she has never even smelled marijuana before? She says she’d like to try it but has no idea how to get the drug, how much to use each day, or when to use it.

The physician’s challenge is to find the right balance of information so that he or she is helping the patient without actually prescribing the drug or aiding and abetting its acquisition. In this context, I think risk management is more about practicing good medicine than about getting too hung up on that fine line between recommending versus aiding and abetting. A realistic and balanced approach, in my opinion, is for a physician to follow all reasonable steps, such as a conducting a thorough patient history and physical exam, conducting appropriate tests, and exploring whether more traditional medications may be a first option. If the physician determines in good faith that medical marijuana will be beneficial and fills out the standardized form, and if he or she is in compliance with state laws, then it’s very unlikely that he or she will be criminally prosecuted. In recent years, only a handful of physicians have been prosecuted under federal law. In most of those cases, the physicians were charged with illegitimate activities and were not acting in good faith or in a bona fide physician–patient relationship.

Didn’t the Department of Justice indicate recently that it would not allocate many resources to prosecute physicians who recommend medical marijuana to patients in accordance with state laws?

Mr. Murphy: Yes. In October 2009, the Department of Justice issued a memo to all US attorneys stating that federal resources should not be used to prosecute individuals in “clear and unambiguous” compliance with state medical marijuana laws. That can fairly be interpreted to mean that the federal government won’t consider it a criminal act for a physician to fill out a state certification form. The situation could of course change when another administration comes into power.

What other questions do physicians frequently ask about medical marijuana?

Mr. Murphy: They’re interested in issues related to informed consent: What risks regarding medical marijuana should they discuss with patients? It’s an important question because physicians can get into trouble if they recommend a drug without making sure the patient understands its potential risks. I recommend that they discuss marijuana in the same way they would discuss opioids. That means covering the risk for dependence and addiction and the impairment of cognitive abilities. They should emphasize that a patient should not operate heavy equipment, including automobiles, when using medical marijuana. I suggest also discussing the impact on preexisting conditions, such as the potential that marijuana can exacerbate symptoms of mental or respiratory illnesses. I would also tell patients that there is much less research on medical marijuana than there is for most prescription drugs and that there is less standardization and fewer controls regarding quality, purity, and potency.

It’s critical to have the informed consent discussion and document it in the medical record. Physicians may want to consider developing an informed consent process specific to medical marijuana. That’s a reasonable approach because of the uniqueness of the drug.

What are some of the common misperceptions physicians have about medical marijuana?

First published on: July 1, 2011