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By Tracy Bach
Vermont Law School
The term medical marijuana applies to the legal use of marijuana to treat specified medical symptoms. Although there are no definitive studies about its efficacy, a growing body of anecdotal evidence has convinced a number of medical providers and researchers that cannabis has some therapeutic value, especially when managing the symptoms associated with cancer treatment and AIDS.
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.
What does the Vermont program do?
The program will allow a registered patient or caregiver to be exempt from arrest or prosecution under state law for possession of a specified amount of useable marijuana or marijuana plants. It is still illegal under federal law for individuals, including patients, to obtain, possess, or cultivate cannabis for any purpose, including medical treatment.
Who is eligible to participate in the program?
The law allows patients with “debilitating medical conditions” to apply to the program. The only patients who fit this definition are those:
- Receiving end-of-life care for cancer or AIDS, or;
Having been diagnosed with cancer, AIDS, positive status for HIV, or multiple sclerosis, or being treated for these diseases/conditions
- the condition results in severe, persistent, and intractable symptoms
- 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?
State residents who desire to use marijuana therapeutically must apply to the state for registration in the program. To become a registered patient, applicants must have been diagnosed with a “debilitating medical condition” by a physician who has a “bona fide physician-patient relationship” with the applicant.
- filling out an application and providing supporting medical records;
- having a criminal background check;
- paying a $100 fee; and
- waiting up to 30 days for approval.
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?
The statute limits where, and under what circumstances, a patient may use marijuana. Collectively, registered patients and their caregivers may legally possess no more than 1 mature marijuana plant, 2 immature plants, and 2 ounces of usable marijuana (defined as the dried leaves and flowers, not the seeds, stalks, and roots). In addition, registered patients and caregivers who grow marijuana must do so in a single, secure indoor facility and transport it only a locked container.
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?
Patients need to demonstrate that they are in a “bona fide physician-patient relationship” with the physician who has diagnosed or is treating his or her debilitating medical condition.
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 prohibitions remain in effect. Marijuana remains classified in the Controlled Substances Act as a Schedule I drug, which means that it has no generally recognized medical use.
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:
- Providing cannabis to a patient;
- Describing to a patient how the patient may obtain cannabis;
- Intentionally taking any action for the purpose of enabling a patient to violate federal drug laws;
- Prescribing cannabis for a patient; and
- Offering individualized patient advice concerning appropriate dosage timing, amount and route of administration for cannabis.
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.
Vermont Statutes Online, Title 18, Chapter 86
Vermont Department of Public Safety, Guide for Patients and Physicians
Vermont Department of Public Safety, Registered Patient Application Form http://www.dps.state.vt.us/cjs/marijuana_form_patient.pdf
Professor Tracy Bach specializes in three areas: 1) legal research, analysis, and writing; 2) health care law and policy; and 3) international human rights, especially genocide. The courses she has taught at Vermont Law School include Appellate Advocacy, Legal Writing in Environmental Health Law, Health Law, Health Law and Public Policy, Genocide, Professional Responsibility, and Dispute Resolution.
Professor Bach received her B.A. degree in history, cum laude, from Yale University in 1984 and her M.A. degree in public affairs from the University of Minnesota Hubert Humphrey Institute in 1994. In that same year, she earned her J.D. degree, cum laude, from the University of Minnesota Law School, where she was article editor for the Minnesota Law Review and director of the 1992 Jessup International Moot Court Competition Team, and where she received the Steven M. Block Prize for Best Paper in Civil Rights and Civil Liberties.
From 1984 to 1990, Professor Bach worked in health care finance and management for a mid-sized New York City consulting firm, a large midwestern hospital chain, and as a self-employed consultant. Before joining Vermont Law School’s faculty in 1996, Professor Bach interned for the trial and appellate courts of the Non-Removable Mille Lacs Band of Chippewa Indians and clerked for the Honorable Harriet Lansing of the Minnesota Court of Appeals. Professor Bach is a member of both the New Hampshire and the Vermont Bar Associations and serves as the Co-Chair of the VBA’s Health Law Committee.