Medical Use of Marijuana: Considerations for Doctors

The passage last month of Question 3, “Medical Use of Marijuana,” has raised many questions about the rights and responsibilities of Massachusetts physicians under the new law. The Mass. Department of Public Health (DPH) has 120 days to develop and issue regulations on the law, so we at the Mass. Medical Society are unable to answer many questions at this time. However, some issues are relatively clear.

The law takes effect on Jan. 1, 2013. Physicians should not authorize the use of marijuana before that date. Note that, even after Jan. 1, the practice of authorizing the use of marijuana remains illegal under federal law. Marijuana is still classified as a Schedule I drug. However, U.S. Attorney General Eric Holder has said he does not currently plan to prosecute those who operate within state law.

Nothing in the law requires any health care professional to authorize the use of medical marijuana for a patient. Physicians may provide and sign a written certification stating that, in the physician’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. The physician must conduct a full assessment of the qualifying patient’s medical history and condition, and determine that the medical use of marijuana may benefit a particular qualifying patient. It’s important to note that, under this law, physicians are not ’prescribing’ marijuana, per se.

Meanwhile, there must be a ’bona fide’ physician-patient relationship, and the certification needs to specify the qualifying patient’s debilitating medical condition(s). The law defines these as: cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, ALS, Crohn’s disease, and MS, among possible others.

The patient would use the written certification from a physician to obtain a DPH-issued ’registration card’ to allow him or her to possess marijuana for personal medical use. However, no dispensaries have yet been authorized in Massachusetts. In the first year after the effective date, the DPH will issue registrations for up to 35 nonprofit centers, with between one and five centers per county.

After Jan. 1 but before the issuance of regulations, certain provisions apply. The law states, “until the department issues such final regulations, the written recommendation of a qualifying patient’s physician shall constitute a limited cultivation registration.” This language, as much of the initiative, is a little vague. It isn’t clear that a ’written recommendation’ is the same as a written certification. Physicians should be aware that, if they write a letter certifying a patient as qualifying under the terms of the law to possess marijuana for medical use, the letter will also qualify them to grow marijuana until such time as regulations are promulgated. There may be additional federal issues raised for facilitating cultivation.

The MMS is also working to answer the question of what constitutes a ’bona fide’ relationship, appropriate medical examination, and record. Physicians are advised to look at the prescribing guidelines of the Board of Registration in Medicine in this regard. These state:

“Statutory language sets forth the minimum requirements that must be met in order for a prescription to be valid in the Commonwealth. To satisfy the requirement that a prescription be issued by a practitioner in the usual course of his professional practice, there must be a physician-patient relationship that is for the purpose of maintaining the patient’s well-being, and the physician must conform to certain minimum norms and standards for the care of patients, such as taking an adequate medical history and conducting an appropriate physical and/or mental status examination and recording the results. Issuance of a prescription, by any means, including the Internet or other electronic process, that does not meet these requirements is therefore unlawful.”

While a physician is not writing a prescription, this is the closest guideline to the elements of a physician-patient relationship.

Language in the law includes protections from state prosecution and penalties for physicians who advise patients on medical marijuana or provide a patient with a written certificate after full assessments of his or her history and condition. However, such protections are probably irrelevant in civil cases based on medical negligence. Liability coverage for civil cases based on negligence, and the standards of care which will inform such claims, remain to be determined. Case law will establish the answers to these questions. –

Frank Fortin is chief digital strategist and communications director for the Mass. Medical Society.