Source: The San Francisco Chronicle Pubdate: Saturday, April 12, 1997 Page A1 Contact: PAGE ONE No Prosecution For Doctors Who Recommend Pot Justice Dept. hit with temporary ban Bill Wallace, Chronicle Staff Writer A federal judge slapped a temporary restraining order on the U.S. Justice Department yesterday, prohibiting the prosecution of California doctors who recommend marijuana to their patients. The ruling at least temporarily clears the way for doctors to treat seriously ill patients in accordance with Proposition 215, the medical marijuana initiative passed by state voters last year. The temporary order was hailed as a major victory by a group of California doctors who sued the government to prevent federal retaliation against physicians for recommending marijuana under the new law. ``I'm very happy,'' said Graham Boyd, the lead attorney in the doctors' lawsuit. ``The judge clearly did the right thing in stopping the government from threatening doctors for simply practicing medicine.'' Proposition 215, passed by voters last year with a 56 percent majority, decriminalizes possession of marijuana by patients and their caregivers if the drug is recommended by a physician. In announcing the order, U.S. District Court Judge Fern Smith said the government's conflicting public statements about whether it would take action against doctors for recommending the drug appeared to interfere with free speech and the practice of medicine. Noting that the Justice Department was unable to clearly articulate the circumstances under which criminal or administrative sanctions might take place, Smith ordered the government not to take any action against physicians until the doctors' suit is resolved. ``Doctors have a right and an ethical obligation to give patients full discussion and accurate information about the risks and benefits of marijuana,'' Smith said in announcing her ruling. She also indicated that the doctors had marshaled enough evidence in support of their lawsuit that they would probably win if the case goes to trial. Smith's ruling came after an hourlong hearing on the lawsuit, which was filed in January by doctors alarmed at statements made by the Clinton administration in the wake of Proposition 215's passage last year. Initially, White House officials warned that any doctor who discussed marijuana with patients as a treatment option under the new state law could be prosecuted on drug conspiracy charges. Last month, the administration backed away from that position, saying doctors would be sanctioned only if they ``recommended'' the drug in a way that helps patients obtain it. In court yesterday, Boyd argued that the government had failed to clarify the difference between a ``discussion'' of pot as a medication and a ``recommendation'' of the drug, leaving doctors uncertain about whether they might be subjected to government action for engaging in a frank discussion of marijuana. Barring physicians from discussing marijuana with a patient ``means the patient is forced to depend on information from unreliable sources,'' Boyd said, ``not from their physician, which is why the patient goes to the physician in the first place.'' Government lawyers argued that even a doctor's oral recommendation that a patient use marijuana, if included in the patient's medical charts, could enable the patient to request the charts and take them to a marijuana buyers' club to document their medical need for the drug despite the fact that using marijuana is still a federal crime. ``We acknowledge that physicians may discuss the medical risks and benefits of marijuana,'' said Justice Department attorney Kathleen Mueller. ``When we come to the issue of recommendations, that is where the problem lies.'' Smith ordered a mandatory settlement conference before U.S. District Court Judge Eugene Lynch to try to work out guidelines that would satisfy lawyers for both sides in the suit. That conference will be held Thursday morning. In the meantime, Smith's restraining order will remain in force. After yesterday's hearing, Patricia Seitz, director of the Office of Legal Counsel for the White House Office of National Drug Control Policy, said federal lawyers would consider appealing Smith's decision, but added that she believes the doctors' suit can be settled without a full trial. ``I'm hoping that this will actually help us resolve the issue,'' she said. ``I'm always hopeful that things can be worked out.'' A9 The Chronicle Publishing Company