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Is There A Doctor In The House? by Greg Schmid Doctors are now the unquestioned gatekeepers to medical marijuana access, yet many lack the education or institutional peer support to provide patients with a professional opinion. What does your doctor say? The Political Dilemma is Passed Over 3 million Michigan citizens voted yes on Proposal 1 last November to legally permit marijuana use for a broad, indefinite, and expanding range of medical purposes. The yes vote was nearly two to one. The Registry ID Card program began April 4, and it is estimated that over 50,000 permits will be issued. These government issued Registry ID Card cards authorize a person with a “chronic disease or debilitating medical condition”, for whom marijuana use is likely to provide any “palliative or therapeutic benefit”, to grow a set amount of their own marijuana, or to have a caregiver assist them in doing so, with total legal immunity from arrest or seizure under state law. The law also offers absolute legal protection in the form of a remedial “affirmative defense” in court to any charges involving marijuana for an even broader range of patients (anyone with a “serious medical condition”) acting outside the parameters of the Registry ID Card program. While it is true that federal law still makes it technically illegal to use or possess marijuana, the US Justice Department has just last month reversed its policy and stated the federal government will no longer raid or prosecute medical marijuana dispensaries or users following state rules. This has removed much of the uncertainty that surrounded the other dozen medical Marijuana states in recent years. By the looks of the landslide election, and administration policy shifts, one could reasonably conclude that our government has found a sustainable peace with honor in the protracted “War on Marijuana Users.” Over 800,000 people were arrested for marijuana in America last year; 90% for simple possession. The consequences of arrest are devastating to the defendants and their families involved, but bitter taste of injustice leaves unmistakable scars on our legal system and our society. Laws that don’t respect people breed people who don’t respect laws. Marijuana use offends many, and they are free to distance themselves from it; but marijuana laws offend anyone who has ever used marijuana, and such laws are actually counterproductive in overall harm reduction policies that aim to deter drug use. How many well-meaning prosecutors, judges, doctors, teachers, cops, and parents who previously used marijuana are now conflicted and made liars and hypocrites by the “War on Marijuana?” Some will deny use, while others grudgingly admit privately to “experimenting”, and don’t we all wish our kids would not be involved in drugs and alcohol, or that we had never tried them? “A liar will not be believed, even when he tells the truth.”- Aesop. But wishing doesn’t make it so, and lying is a strategic blunder that undermines scarce credibility you need when it really matters. Marijuana laws never protected youth from drugs. Just the opposite is true. Lumping marijuana together with hard narcotics and legislating classes unacceptable and acceptable drugs (alcohol) is illogical and, in an era of statute driven morality, has spawned a virtual cultural psychosis in this regard. While many self-described liberals have stepped forward now to support “legalization”, the actual legal and political efforts that have been working toward balanced drug law solutions have been a liberty-focused conservative phenomenon within the Republican Party. Even Fox News commentator Glenn Beck has said, "It is about time we legalized marijuana." This is no surprise. William Buckley wrote. “General rules based on individual victims are unwise. And although there is a perfectly respectable case against using marijuana, the penalties imposed on those who reject that case, or who give way to weakness of resolution, are very difficult to defend. If all our laws were paradigmatic, imagine what we would do to anyone caught lighting a cigarette, or drinking a beer, or exulting in life in the paradigm — committing adultery. Send them all to Guantanamo?” Milton Friedman said “there is no logical basis for the prohibition of marijuana,” He, and more than 500 US economists, publicly endorsed a Harvard University report (The Budgetary Implications of Marijuana Prohibition) on the costs of marijuana prohibition and the potential revenue gains from the U.S. government instead legalizing it and taxing its sale. The report concluded "Ending prohibition enforcement would save $7.7 billion in combined state and federal spending, while taxation would yield up to $6.2 billion a year.” The Health Professional’s Dilemma is Just Begun Now a 2/3 majority of the people, voting from the safety and privacy of the secret ballot booth, supported medical marijuana, but one wonders; how many of those people who voted yes in secret would have raise their hands in a meeting of their employers and professional peers and say “Yes, I think people should have the legal right to use marijuana if it helps them!” How many would risk adverse judgment and, like Martin Luther did, say, ”Here I stand. I can do no other. God help me!” This riddle lends understanding to why Congress has not rescheduled marijuana, and why so few state and local legislatures have addressed marijuana legalization (including the Michigan legislature, which refused to do so when given a chance last summer). Physicians have been placed in this awkward position by the new Michigan Medical Marijuana law. The law is set, and the rules made. The Department of Community Health is ready to issue permits. Everything is in motion as of April 4th, 2009. Everything, that is, except the medical profession. The Michigan Medical Marijuana Act foisted upon Michigan physicians to act responsibility for certifying qualifying patients for the government registry ID Program. Doctors did not ask to bear this cross, but doctors routinely prescribe morphine, Oxicontin, amphetamines, barbiturates, and a broad range of pharmaceutical grade narcotics under current medical standards of care. Who else, then, could provide an objective trustworthy professional opinion as to the question of whether a particular patient has a qualifying medical condition? Under the new Michigan law, there is a list of defined “debilitating medical conditions” that applies to the Department of Community Health state-issued Registry I.D. card program, and there is also a process for expanding the list though a public hearing process. There are 9 qualifying debilitating medical conditions specified by name in the statute, which automatically qualify if the doctor opines that the patient would likely receive palliative or therapeutic effect. They are: Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, nail patella, or the treatment of these conditions. There is also a set of criteria that permit a doctor to qualify a patient as having a “debilitating medical conditions”, even if the specific patient’s ”chronic or debilitating disease or medical condition” is not on the list. These involve medical conditions that produce severe and chronic pain, severe nausea, seizures, severe and persistent spasms, cachexia or wasting syndrome. This is potentially includes a broad range of maladies, if in the doctors sole discretion there is a likely receive “palliative or therapeutic benefit” from marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with it. A patient with a diagnosis which fits the definition may obtain a certificate, which the patient may use to apply for a Registry ID Card, but only if, in the doctor’s professional opinion, the patient would also likely receive “palliative or therapeutic benefit” from marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with it. To certify the patient, the doctor must specifically opine that the patient will “likely” receive a benefit. But once the doctor certifies, no court can question the reasonableness of the certification. None of these criteria above seem to suggest the doctor need specifically balance potential negative side effects of marijuana use. [Caveat: For a patient under 18 years old, 2 physicians must formally certify the patient, and each physician must explain the potential risks and benefits of the medical use of marihuana to the qualifying patient and to his or her parent or legal guardian. There are doctors in Michigan who purport to believe in the medicinal value of marijuana, but who are afraid of legal and professional consequences to themselves. This is a product of legal misunderstanding and the lack of professional institutional support for holistic medicines in general. One told a patient that “ the higher-ups [at Primary Care Center] told us that since it is not federally legalized, they don’t want to touch it with a ten foot pole”, according to Susan F of St. Helen, Michigan.. Her doctor wrote the opinion anyway, but said he was making an exception for her, and that he would not “participate” in the new law. Susan suffers from Fibromyalgia (a painful form of muscular arthritis) and expects to jettison her Vicodin in favor of marijuana The fact is, the Michigan Medical Marijuana law does not ask doctors to do anything legally or professionally risky at all – only to give a bona fide patient assessment and an honest opinion as the likelihood that the patient would receive “palliative or therapeutic” benefit from the medical use of marijuana. The certification is a limited professional opinion only, and the state form merely states “I hereby certify that I am a physician licensed to practice medicine in Michigan. I have responsibility for the care and treatment for the above-named patient. It is my professional opinion that the applicant has been diagnosed with a debilitating medical condition as indicated above. The medical use of marihuana is likely to be palliative or provide therapeutic benefits for the symptoms or effects of applicant’s condition. This is not a prescription for the use of medical marihuana.” According to Michigan Dr. Randy Ayres, author of “MEDICINAL CANNABIS PHYSICIAN PROTOCOLS (2008), the term “debilitating means: to weaken, or to impair the strength of. In a medical sense this means something that affects (weakens or impairs) one of the major bio-psycho-social-sexual domains of life, e.g. physical activity, social activity, occupational activity, intellectual activity, recreational activity, and instrumental activity (shopping, book-keeping, house-keeping, food preparation, and transportation) as well as dressing, eating, ambulating, toileting and hygiene.” Whether a condition is a medical condition, and a serious one, is for the physician to determine. The court cannot question this determination as to the patient so long as the determination was only made “after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship.” To be clear, the certifying doctor is not prescribing marijuana; doctors cannot do so. The doctor is not recommending marijuana; the law does not require them to do so. The doctor is only stating an “opinion” as to the likelihood of a medical benefit, and can do so under the law without fear of retribution or any legal or professional liability, except that the doctor is always subject to personal and professional responsibility for "failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions." State and Federal Legal Protections Currently in Place for Doctors Helping Patients On October 14, 2003, the US Supreme Court announced that it would not review a Ninth Circuit Appeals Court ruling that enjoined the federal government from punishing doctors who recommend medical use of marijuana to their patients. The case, appended to this publication, and the US Supreme Court’s tacit approval of it, provide protections far beyond anything a Michigan doctor will need to do to provide a patient with access under Michigan law. The case Conant v. Walters, 309 F.3d 629 (2002) established that doctors may: Discuss the risks and benefits of medical marijuana fully and candidly with patients. Recommend (or Approve, Endorse, Suggest, or Advise, etc.), in accordance with their own medical judgment the medical use of marijuana. Make a Record in their patients’ charts, to verify discussions about and recommendations of medical use of marijuana. Make and sign a state law certification or statement that they have recommended medical marijuana for particular patients, or made any other statement required under state law. The Michigan Medical Marijuana Law provides very robust legal protections for physicians helping patients. It states, “A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.” Recent and Historical Bad Experiences Keeping in mind that marijuana criminalization was the result of fascistic leadership in America during the progressive and new deal big-government eras, it should not be a surprise there never was any bona fide peer-reviewed research to back up governmental claims of cannabis being 'dangerous'. During the process that resulted in the The Marihuana Tax Act of 1937, Commissioner Harry Anslinger, the newly named Commissioner of the Federal Bureau of Narcotic told the Congressmen at the hearings, and I quote, "Marihuana is an addictive drug which produces in its users insanity, criminality, and death." There were two pieces of medical evidence introduced with regard to the marijuana prohibition. The first came from a pharmacologist at Temple University who claimed that he had injected the active ingredient in marihuana into the brains of 300 dogs, and two of those dogs had died. When asked by the Congressmen, "Doctor, did you choose dogs for the similarity of their reactions to that of humans?" The answer of the pharmacologist was, "I wouldn't know, I am not a dog psychologist." It should be noted that the active ingredient in marijuana was first synthesized in a laboratory in Holland after World War II. Dr. William C. Woodward also testified. Dr. Woodward was both a lawyer and a doctor and he was Chief Counsel to the American Medical Association. Dr. Woodward came to testify at the behest of the American Medical Association saying, and I quote, "The American Medical Association knows of no evidence that marihuana is a dangerous drug." One of the Congressmen said, "Doctor, if you can't say something good about what we are trying to do, why don't you go home?" The next Congressman said, "Doctor, if you haven't got something better to say than that, we are sick of hearing you." Is it any wonder that 70 years later the AMA remains reluctant to provide institutional resources regarding Medical Marijuana? Is it any wonder that doctors hesitate to speak out publicly, and choose to duck the question rather than do their homework and provide honest answers? Reports are that some doctors are being flat out ordered by their hospital affiliates not to certify medical marijuana patients. Others are told not to certify or consider marijuana as treatment unless and until all pharmaceutical drugs are exhausted. Some doctors have even been thwarted by their clerical staff; one doctor who wrote a certification only to have the clerical nurse take it to a supervisor, who reportedly forced the doctor to write “VOID” on the certificate. The patient was eventually given the certificate, which was accepted by the probation agent. Veterans and others report that some clinics are actually denying treatment patients who test positive for marijuana. Some doctors merely state they will not give certifications because they think marijuana is evil, or don’t want the hassle. Recent Studies and Statements A great many doctors have chose to speak out on marijuana. span style="font-size: 10pt; font-family: Arial"> Scientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC, for pain relief, control of nausea and vomiting, and appetite stimulation;” – Institute of Medicine, Marijuana and Medicine: Assessing the Science Base, 1999. Dr. Joycelyn Elders, former U.S. Surgeon General, said as recently as 2008 that, “We have millions of Americans who live every day with pain that's not relieved by current medications, but is relieved by marijuana. It helps reduce nausea and vomiting and improve appetite for a lot of very ill cancer patients and patients with HIV. And it helps with neuropathic pain in people who have diabetes and multiple sclerosis. People are very concerned that it would be a gateway for teenagers to start using marijuana. Well, there is no scientific evidence for that. In the states that have approved it and made it available, teenage marijuana use has decreased.” and further stated, “Marinol is an oral product that contains THC, thought to be the active ingredient in marijuana for relieving pain. Well, if you're nauseated and take another pill, you're going to throw up. It's going to be two hours before it gets to the bloodstream, and you can't control the dose. I understand people are concerned about the smoking. You can use a vaporizer and it gets to the lungs very quickly and immediately goes to the receptors in the brain. With the vaporizer, they don't get too stoned before they get what they need.” Dr. Thomas Cao, a board-certified medical oncologist at Sherman Health in Elgin. Illinois and a self-described "classic conservative," said he is in favor of legalizing medical marijuana in order to improve quality of life for patients. Cao said it is especially helpful for patients who have cachexia, a wasting syndrome that causes weakness and loss of muscle and fat tissue, which causes patients to lose their appetites, and those with eating disorders such as anorexia. "Pain is a difficult thing to assess, and for some patients, marijuana works best ... When they feel good, they eat more," he said. |
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