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