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Medical Marijuana
By
Tracy Bach
After four years of intense lobbying by advocates of medical marijuana and legalization of marijuana, the Vermont Legislature passed in 2004 Act 135, “An Act Relating to Marijuana Use by Persons With Severe Illness.” Interestingly, Vermont’s medical marijuana law is one of only a handful that was passed by the full legislature, rather than by voter initiative. The Department of Public Safety began implementing the law in October 2004. Although the federal government has always contended that using medical marijuana is illegal under the Controlled Substances Act (CSA), a number of states other than Vermont have decriminalized such use under state law. They include California, Arizona, Hawaii, Washington, and Maine. The recent U.S. Supreme Court decision in Ashcroft v. Raich (2005) held that medical use of marijuana violates the CSA, thereby placing those Vermonters who use marijuana legally under the Vermont law in jeopardy of being arrested under federal law. At the time of this publication, it is unclear how vigorously federal prosecutors and police will pursue Vermont medical marijuana users.
Vermont’s Medical Marijuana ProgramWhat does the Vermont
program do? Who is eligible to
participate in the program? 1. Receiving end-of-life care for cancer or AIDS, or; 2. Having been diagnosed with cancer, AIDS, positive status for HIV, or multiple sclerosis, or being treated for these diseases/conditions, a. the condition results in severe, persistent, and intractable symptoms and b. in the context of the specific condition, reasonable medical efforts have been made over a reasonable amount of time without success in relieving the symptoms. How does Vermont’s medical
marijuana program work? Application requires:
Once approved, participants in the medical marijuana program receive a registration card which includes the patient’s name and photograph, and a unique identifier for law enforcement verification. This card expires one year after its issue date, but can be renewed via reapplication under the above process. Caregivers are also eligible to register with the Vermont program. A registered caregiver must be at least 21 years old, never convicted of a drug-related crime, and responsible for managing the use of marijuana for symptom relief of a registered patient. To apply, caregivers submit an application, stating that they have never been convicted of a drug-related crime and that they agree to care for only one registered patient. As with registered patients, registered caregivers receive a card including the same information, and are subject to the same registration fees. Where may patients use
medical marijuana? Patients are not exempt from arrest and prosecution if they are under the influence of marijuana while operating any motorized vehicles, boats, vessels, heavy equipment or other dangerous instruments. The exemption does not apply to marijuana intoxication in a workplace or place of employment, such as a physician’s office, clinic or hospital. Furthermore, patients may not smoke marijuana in any public place, which would include hospitals, clinics and nursing homes. Individuals, such as home health aides or visiting nurses, however, will not be subject to arrest or prosecution simply for being in the presence of a registered patient who is using marijuana.
How do physicians
participate in the application process? The definition of a “bona fide physician-patient relationship” is “a treating or consulting relationship of not less that six months duration, in the course of which a physician has completed a full assessment of the registered patient’s medical history and current medical condition, including a personal physical examination.” This requires completing a two-step form that requests physicians to initial the box that appropriately defines the patient’s debilitating medical condition and the box which accurately describes the physician-patient relationship. The statute provides some legal protection on a state level, although not on a federal level. It specifies that a physician who participates in a patient’s application process for a registration card will not be subject to arrest or prosecution. Physicians are also protected from licensing or disciplinary action by the Vermont Board of Medical Practice, taken on the basis of their participation in a patient’s application process. In addition, physicians may not be penalized or denied any rights or privileges under state law, unless they provide false information on an application.
What are the legal risks to
physicians? Federal law imposes serious penalties for physicians who violate the Controlled Substances Act through manufacturing, distributing, or dispensing a Schedule I chemical. The penalty for a first-time violation involving less than 50 kilograms of marijuana is imprisonment for a term of up to five years, a fine of up to $250,000, or both. Other federal sanctions are also possible, such as revocation of the physician’s DEA registration or exclusion from participation in the Medicare and Medicaid programs. Physicians should avoid:
Making recommendations to patients about using cannabis for symptom relief falls into a legal gray area. In a case originating in California, (Conant v. Walters [9th Cir. 2002] 329 F.3d 629), the Ninth Circuit held that the First Amendment protects physicians’ rights to recommend or advise that their patients use cannabis for medicinal purposes, so long as the physicians do not aid and abet, or conspire with their patients to violate the federal drug laws. Because Vermont is in the Second Circuit, which has not addressed the question of First Amendment protection for recommendation of cannabis, Vermont physicians cannot rely on this ruling. In addition, this ruling may only apply to intrastate, noncommercial cultivation, possession and use of cannabis for personal medical purposes. If the patient obtains cannabis from a commercial source, or another state, it may not apply. Therefore, if a physician chooses to work with patients who want participate in the Vermont program, he or she should limit the information provided to the Department of Public Safety to only the patient’s diagnosis and the existence of a bona fide physician-patient relationship.
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