Pubdate: Mon, 18 Nov 2002
Source: American Medical News (US)
Copyright: 2002, American Medical Association
Contact: http://www.ama-assn.org/public/journals/amnews/edlet.htm
Website: http://www.amednews.com/
Details: http://www.mapinc.org/media/1235
Author: Tanya Albert, AMNews staff

FEDERAL COURT SAYS YES, YOU CAN TALK ABOUT POT

Although The California Case Deals With Medical Marijuana, It Has Broader 
Implications For Frank Discussions Between Physicians And Patients.

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.

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.

ADDITIONAL INFORMATION:

Case At A Glance

Marcus Conant, MD, et al. v. John P. Walters (formerly Barry R. McCaffrey) 
as director of the Office of National Drug Control Policy, et al. Venue: 
9th U.S. Circuit Court of Appeals At issue: Whether physicians can discuss 
the pros and cons of medical marijuana with their patients without fear of 
the government taking away their DEA numbers. Potential impact: Physicians 
say the decision protects a physician-patient relationship that allows them 
to discuss the pros and cons of medical marijuana with a patient. The 
government says the decision jeopardizes the war on drugs.
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