The Medical Marijuana Act Posted: 01-28-08 11:28am
What does the Medical Marijuana Act do?
The Act changed how certain
people—doctors, medical patients and
their “primary caregivers”—will be
treated by the state’s court systems. It
did not legalize marijuana for
recreational use. Patients with a
qualifying diagnosis, and a physician’s
recommendation for the medical use of
marijuana, now have a legal defense
against criminal prosecution
in Washington state.
Physicians are exempt from state-level
penalties for discussing the medical
benefits of marijuana use with their
patients.
If arrested by state or local authorities
on marijuana charges, a qualified patient
can claim immunity from prosecution under
state law if he or she is using the
marijuana for certain medical purposes.
Because compliance is so important, it is
imperative that patients take time to
understand the new law.
Who is affected by the Medical Marijuana
Act?
The Act was designed to protect seriously
ill and terminally ill patients from state
and local criminal penalties for using
marijuana medically. Only people with a
diagnosis of cancer, HIV disease,
glaucoma, multiple sclerosis, spasticity
disorders, and intractable pain (see
specific definitions RCW 69.51A.010,
Section 4, of the state law) are
considered “qualified patients” and
can take advantage of the law as a legal
defense against marijuana charges.
A physician must judge whether marijuana
is appropriate for treatment of a specific
illness or symptom. Simply having a
qualifying disease does not automatically
qualify anyone for protection under the
Medical Marijuana Act. Only a doctor’s
recommendation, and documented discussion
about the risks and benefits of medicinal
marijuana use, will qualify a patient.
What is medical marijuana used for?
Marijuana has been used for centuries by
doctors and patients all over the world.
Some conditions for which science has
shown medical benefits from marijuana
include:
Nausea reduction
The most common medical application of
marijuana is for the reduction of
nausea—the extreme nausea caused by
cancer chemotherapy and AIDS treatment,
and even common nausea induced by standard
medications for various ailments. Patients
facing such treatments often find that
just a small amount of inhaled marijuana
can immediately quell nausea.
Increasing appetite
Marijuana also increases appetite for
patients with nausea or other conditions,
permitting more normal food intake and
improved nutritional status and preventing
dangerous weight loss. This is
particularly important to both cancer and
HIV patients.
Controlling muscle spasms, seizures and
chronic pain
Marijuana is also used medically by
patients with epilepsy, inflammatory bowel
disease or Crohn’s disease, paralysis,
arthritis, multiple sclerosis, spinal cord
injuries and migraine headaches.
Reducing eye pressure in glaucoma
patients
Glaucoma is a progressive disease of the
eye which can lead to blindness. It
results from a buildup of pressure within
the eye. Marijuana reduces the pressure
within the eye, holding off some of the
damage.
(see the website “The Science of Medical
Marijuana” at http://www.medmjscience.org for
more information and the scientific
background for these conditions)
Can patients get a prescription for
marijuana?
No. Even though the Medical Marijuana Act
is now law, it is still not possible to
get a standard prescription for marijuana
from a doctor. Pharmacies cannot carry
marijuana
because it is still illegal under federal
law for use as a medicine.
Instead, the Act permits doctors to have a
discussion with their patients on the
risks and benefits of marijuana use in
their medical treatment. If a doctor
determines that the benefits outweigh the
risks for their patient, then the doctor
is allowed to state such in the medical
record and provide a copy of such
documentation to the patient. This medical
documentation then serves as the basis for
the legal defense against prosecution.
A marijuana recommendation should never be
made lightly. If a patient is arrested or
charged with a marijuana offense, the
doctor may be required to testify. For
this reason, the physician needs to be
clear about the rationale for the
recommendation, and should monitor the
patient’s progress carefully.
How long does a doctor’s recommendation
last?
For as long as the marijuana-recommending
physician is in charge of the patient’s
care, and for as long as the physician
continues to believe that marijuana is
helpful, the
patient is protected under Washington
state law. However, if a patient changes
doctors, or if the recommending doctor
changes his or her opinion of
marijuana’s importance to
treatment, the patient may not be
protected any longer. Common sense
suggests that the recommendation must be
current to be valid when used as a legal
defense, and therefore it should be
periodically renewed.
Federal laws against marijuana—what a
patient should know about their doctor’s
legal risk.
After a similar measure passed in
California, federal officials reminded
physicians that it is illegal to prescribe
marijuana. They have threatened California
physicians with revocation of their
federally issued license to prescribe
drugs, cutoff from eligibility for the
Medicare and Medicaid programs, and even
criminal prosecution. Out of fear, many
doctors have become reluctant to discuss
medical marijuana at all. However, a
lawsuit filed against the federal
government by several California
physicians and some patients and
organizations has succeeded in eliminating
most of the risk for physicians who
recommend medical marijuana for the time
being.
On April 30, 1997, Federal Judge Fern
Smith issued a preliminary injunction in
the case, Conant vs. McCaffrey, preventing
the threatened punishments while the case
proceeds to trial. Judge Smith’s
injunction has a couple of important
qualifiers: 1) The protection from federal
penalties applies only to physicians
treating patients with cancer, glaucoma,
HIV disease, and/or “seizures or muscle
spasms associated with a chronic,
debilitating condition”’ and 2) The
protection has a limit—doctors may not
get involved directly in helping a patient
to acquire marijuana. Judge Smith defined
this limit as “criminal conduct” under
federal law, meaning “aiding and
abetting or conspiracy” to violate
federal drug laws.
Because of the risks a doctor faces if he
or she helps a patient obtain marijuana,
patients should not ask their doctors to
suggest a place or person from whom to
obtain marijuana—obtaining it is the
sole responsibility of the patient.
How to document a medical marijuana
recommendation or approval from a doctor.
Federal officials have stated clearly that
physicians and patients have the right to
freely discuss the risks and benefits of
medical marijuana (see Pearson vs
McCaffrey). Judge Smith’s ruling went a
step further, permitting doctors treating
the conditions listed above to
affirmatively recommend marijuana to their
patients.
It is best if patients obey some limits in
their discussion with doctors. In simplest
terms, a patient should talk about their
condition, talk about medical marijuana,
but don’t talk about how or where they
might obtain it.
What a patient needs most from their
doctor is a professional medical opinion
as to the possible usefulness of medical
marijuana in their treatment. Patients
should ask their physician to discuss the
risks and benefits of medical marijuana
for their particular case. Whether or not
the doctor believes it might help, good
medical practice requires the physician to
record the fact that the conversation has
occurred in the patient’s medical
records. If the doctor recommends
marijuana, patients should ask that it be
recorded in their medical records, and
should request a copy of their records. In
addition, the Doctor could provide a
letter to their patient indicating that in
their opinion, the benefits of medical
marijuana would outweigh the risks (see
sample letter at the end of this
document).
State law permits patients access to
copies of their medical records.
Patients request copies of their medical
records all the time, for a variety of
reasons, and don’t need to explain why.
Whether a patient requests copies of their
records to be protected under the Medical
Marijuana Act, or merely to keep in a
private file at home, should be of no real
concern to their doctor. If a patient
requests copies of their medical records
from their doctor’s office, they
shouldn’t unnecessarily mention anything
about their possible intention to obtain
or grow marijuana. Patients should ask for
the entire chart or record, not just
sections pertaining to marijuana.
This copy of a patient’s medical
records, indicating that they have a
medical marijuana recommendation, will be
the basis for protection under the Act.
Patients should make copies and keep at
least one in a secure place; they should
also try to have one with them or with any
marijuana they might come to possess later
on.
How do patients obtain marijuana?
Due to Federal restrictions on medical
marijuana, patients are unable to obtain
it through a pharmacy. Selling marijuana
remains illegal, but a patient who
possesses marijuana upon a doctor’s
recommendation is protected from state and
local criminal penalties for possession
under state law.
Under the Medical Marijuana Act, the
cultivation of marijuana plants for the
personal, medical use of a patient is
permitted.
A person arrested and charged with
cultivation under state law has the right
to use a medical marijuana defense, if the
cultivation was for personal use only, and
if the person is a qualifying patient with
a copy of their medical record documenting
the physician’s discussion on medical
marijuana. Cultivation of marijuana
remains a felony under federal law.
Federal agents are believed to be unlikely
to arrest and prosecute small-time growers
of marijuana for medial use because
small-scale cases are not a high priority
to federal law enforcement. Still,
prosecutions by federal agencies are
possible.
Cultivation guidelines
The Medical Marijuana Act addresses
cultivation only for one’s own personal
consumption. There is no concrete standard
for numbers of plants, but there is a
sixty-day supply limit written into the
new law. If arrested, a patient may need
to show that they do not possess more than
is necessary for their personal sixty-day
supply.
Patients are not allowed to give away,
distribute or sell marijuana under any
circumstances to anyone. Any evidence of
such distribution puts a person at very
high risk. The Medical Marijuana Act
defense will not work for someone who
distributes or sells any amount of
marijuana, because the new law applies
only to a patient’s personal medical
supply. If prosecutors discover evidence
of sale or distribution, they can charge a
person with felony counts that could
result in years of prison time, regardless
of that person’s medical condition or
medical authorization to use marijuana.
If a patient is caught, how does the
Medical Marijuana Act protect them?
If a qualified patient is caught with
marijuana, they have a few opportunities
to prove that they are a legal, medical
user of the drug. Though the Act does not
specifically prevent arrests, police
officers are now being trained in ways to
determine legitimate medical versus
illegal, social use, when they discover a
person with marijuana. You can make a
police officer’s job easier, and protect
yourself, by carrying written
documentation of your medical need for
marijuana, including a copy of your
doctor’s authorizing medical records.
If a police officer has any reason to
doubt that a person is using
marijuana—or cultivating it—for only
personal, medical use, the officer is free
to make an arrest. Most legitimate cases
of patients and specified caregivers
facing charges for strictly medical use of
marijuana are likely to be dismissed
before proceeding to trial. Local police
investigators or prosecutors ought to be
able to determine, from evidence presented
by arrested persons, who is and who is not
entitled to an exemption from the
marijuana laws. Patients should be allowed
to assert a defense, and the evidence for
it, at a pre-trial hearing rather than
awaiting a full trial. If arrested, a
patients defense attorney should try to
work out the earliest possible opportunity
to present elements of their medical
defense, so as to avoid unnecessary
expense and time for everyone involved.
Some cases may go to trial, in which case
the patient and physician involved should
expect to testify under oath about the
reasons for the patient’s medical
marijuana use.
Who qualifies as a “primary
caregiver”?
The Medical Marijuana Act was designed to
protect patients from prosecution for
medical use of marijuana. However, the new
law recognizes that some patients may be
in such ill health that a family member or
close friend may need to obtain and
possess marijuana for that patient. Or a
patient may live with someone who could be
subject to criminal or civil charges for
the patient’s marijuana kept on the same
property. In this spirit, so-called
“primary caregivers” to medical
marijuana are also exempted from marijuana
charges.
The Act defines a primary caregiver as
someone who is responsible for the
housing, health, or care of the patient.
This person must be so designated in
writing by the patient. The fact that a
caregiver must be responsible for the
health, housing or care of the patient
could narrow the definition of “primary
caregiver” considerably. Family members,
very close friends and roommates of
patients will fit this definition most
readily.
In short, give careful thought to
designating a caregiver or in considering
yourself to fit under the new law’s
definition. A judge may have to decide
each case on its merits.
Banned activities for medical marijuana
patients and caregivers.
The Medical Marijuana Act does not give a
broad freedom to medical marijuana
patients to use marijuana anywhere, any
time. Patients are not free to display
their marijuana in view of the general
public. No health insurer can be held
liable for any claim for reimbursement for
the costs of the medical use of marijuana.
No physician shall be forced to authorize
or discuss the medical use of marijuana.
No school, business, or youth center may
be forced to accommodate the medical use
of marijuana. No patient will be able to
claim a defense if their use of marijuana
endangered the health or well-being of any
person while driving.
Drug testing programs—including
urinalysis and hair testing—required by
federal agencies and some businesses for
workers in certain safety-sensitive
positions are unaffected by the Act. Even
where drug testing is not a factor,
employers may prevent employees from using
marijuana on the job, if any degree of
impairment would interfere with their
work.
A warning to all marijuana users.
The Medical Marijuana Act was designed to
protect a specific class of people—the
seriously and terminally ill. It does not
apply to recreational users of marijuana
who simply feel they get some
“medical” benefit. It does not even
apply to terminally ill patients who fail
to get their physician’s approval. The
Act enables the courts to sort out who is
entitled to these new protections and who
is not.
Every detail, from proof of illness to the
form and reasons for a marijuana
recommendation, is a potential weak link
in a person’s case. Don’t put yourself
at risk on a flimsy claim of a medical
need for marijuana. Remember, it is a
class C felony to fraudulently produce any
record claiming to be valid medical
documentation.
How can one find a
“marijuana-friendly” doctor?
Their is no list of
“marijuana-friendly” doctors
maintained. The protections of the Medical
Marijuana Act are meant to be applied to
the relationship a patient already has
with their current physician. The best
place for a patient to start is to have an
honest discussion with their own doctor.
