March 13th, 2015

Medical Marijuana: A Dilemma for Doctors And Their Patients

On March 10th, a bill was introduced in the United States Senate that would address a problem that doctors and patients currently face when dealing with the medical marijuana issue in states that have passed legislation allowing its use.

Because marijuana is still illegal on a federal basis, the U.S. Department of Justice has, in the past, threatened punitive action against physicians for recommending it. Although physicians are not allowed to prescribe marijuana because of its Schedule I status, U.S. courts have regarded a physician’s recommendation as being legally equivalent. After California became the first state to deal with medical marijuana issues and allow it in 1996, DEA agents raided hospices and confiscated marijuana terminal cancer patients were using to alleviate their pain.

This issue was actually addressed in a 2005 U.S. Supreme Court decision, Gonzales v. Raich, which ruled that the federal government had the power to prohibit a person from using personally homegrown marijuana for his or her own medical needs despite its legalization for this use in the person’s state.

Despite this legal ruling, in 2009 Attorney General Eric Holder used these words to describe the approach of the U.S. Justice Department: “It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana…” As a result, in “medical marijuana” states, no DEA raids on patients or threatening of physicians have occurred in recent years.

For the moment this appears to leave physicians safe to legally recommend and patients to use medical marijuana in a number of states. As long as the federal restrictions remain on the books, however, the advent of a new administration in less than two years could mean the end of this protection.

The U.S. Congress has historically been less willing than individual states have been to deal with medical marijuana issues, but this has recently begun to change. In December of 2014, Congress passed a law prohibiting the DEA (within the DOJ) from using any taxpayer funds “to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Although the newly introduced bill would resolve this legal dilemma, its prospects for being enacted into law at this time are not clear. The politics of this issue are unpredictable, given the alliance between liberal and libertarian groups and the vicissitudes of public opinion.  What does seem clear is that the question is no longer whether state and/or federal laws regarding marijuana will be liberalized, but rather how far the new laws will go and what the pace of change will be.

To serve the best interests of our patients as well as protect ourselves, physicians need, at least, to be aware of these legal and legislative developments around medical marijuana issues. Some may choose, as I have done, to become more actively involved in making recommendations for changes in the law.

Others will explore its clinical usefulness for their patients. Hopefully, research restrictions will be in fact be relaxed, as has been proposed in the newly introduced bill, so that this process may move ahead based more on evidence and less on biases.

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