Academic journal article Current Psychiatry

Peaceful Feeling, or Up in Smoke? Medical Marijuana in Medicolegal Context

Academic journal article Current Psychiatry

Peaceful Feeling, or Up in Smoke? Medical Marijuana in Medicolegal Context

Article excerpt

Dear Dr. Mossman,

I practice in a state that allows medical marijuana use. A few of my patients have asked me to help them obtain marijuana for their conditions. How risky would it be to oblige?

Submitted by "Dr. J"

In recent years, public debate about marijuana has acquired 2 new dimensions: (1) the wishes and medical needs of people who seek marijuana for its purported health benefits, and (2) the role of physicians who practice where "medical marijuana" is legal. This article, the authors' joint effort to address Dr. J's concerns, hits 3 topics:

* the intersection of marijuana policy and health care in the United States * the risks and possible benefits of marijuana use

* the medicolegal problems faced by physicians who might advise patients to use marijuana.

Legal haze

Two cannabinoids--dronabinol and nabilone--have received FDA approval as appetite enhancers and anti-nausea agents. Third-party payors usually cover these types of medications, but no insurer pays for medical marijuana. (1) The Controlled Substances Act of 1970 (2) classified marijuana as a Schedule I drug because of its abuse potential, lack of accepted medical applications, and uncertain safety. The FDA has not approved marijuana use for any medical condition.

Although people commonly speak of "prescribing" marijuana, physicians cannot legally do this in the United States. What physicians may do, in the 23 states that allow medical marijuana, is recommend or certify a patient's marijuana use--an action that has constitutional protection under the First Amendment's freedom of speech clause. (3,4)

A physician may complete documentation that a patient has one of the qualifying medical conditions for which the jurisdiction has legalized medical marijuana. Either the patient or the physician then submits that documentation to the appropriate government agency (eg, the state's department of health).

If the documentation receives approval, the agency will issue the patient a registration card that allows possession of medical marijuana, with which the patient can obtain or grow a small amount of marijuana. The cannabinoid content of marijuana products varies considerably, (5) and physicians who certify marijuana typically defer dosage recommendations to the patient or the dispensary. (1)

In states that allow medical marijuana, users may assert an affirmative defense of medical necessity if they face criminal prosecution. (3,6) Possession of marijuana remains illegal under federal law, however, regardless of one's reason for having it. (7,8) Since October 2009, the Attorney General's office has discouraged federal prosecutions of persons "whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." (9) But given the remaining conflicts between state and federal laws, "the legal implications of certifying patients for medical marijuana remain unclear." (10)

Physicians have few resources to instruct them on the legal risks of certifying medical marijuana. When Canada legalized medical marijuana, the organization that provides malpractice insurance to Canadian physicians told its members that "prescribing medical marijuana cannot be compared to prescribing prescription drugs" and recommended that physicians obtain signed release forms documenting that they have discussed the risks of medical marijuana with patients. (11) For some risky approved drugs, the FDA has established a risk evaluation and mitigation strategy, but no such guidance is available for marijuana.

Highlighting the benefits and risks

Proponents of medical marijuana claim that Cannabis can help patients, and dispassionate experts acknowledge that at least modest evidence supports the benefits of using "marijuana for nausea and vomiting related to chemotherapy, specific pain syndromes, and spasticity from multiple sclerosis. …

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