cannabisnews.com: Court Protects Doctors Who Recommend Marijuana





Court Protects Doctors Who Recommend Marijuana
Posted by CN Staff on October 30, 2002 at 07:03:57 PT
Sentinel Staff and Wire Report
Source: Santa Cruz Sentinel 
A federal appeals court ruled for the first time Tuesday that the government cannot revoke the prescription-drug licenses of doctors who recommend marijuana to sick patients.The court also ruled that the Justice Department may not investigate doctors merely for recommending marijuana, since this would interfere with the free-speech rights of doctors and patients.
"An integral component of the practice of medicine is the communication between doctor and a patient. Physicians must be able to speak frankly and openly to patients," Chief Circuit Judge Mary Schroeder said.The unanimous opinion by a three-judge panel of the 9th U.S. Circuit Court of Appeals upholds a 2-year-old court order that prohibited such federal action before any doctors’ licenses were revoked.Federal prosecutors argued that doctors who recommend marijuana use are interfering with the drug war and circumventing the government’s judgment that the illegal drug has no medical benefit.But the San Francisco-based court, noting that doctors are not allowed to dispense marijuana themselves, said physicians had a constitutional right to speak candidly with their patients about marijuana without fear of government sanctions.Doctors who recommend marijuana in the eight states that have medical-marijuana laws "will make it easier to obtain marijuana in violation of federal law," government attorney Michael Stern had said.States allowing medical marijuana are Alaska, Arizona, California, Hawaii, Maine, Nevada, Oregon and Washington. All but Maine fall under the 9th Circuit jurisdiction.The Justice Department had no immediate comment.An area physician who has recommended medical marijuana said the ruling could make doctors more comfortable to talk about that option. "That’s what I hope this will accomplish," said Dr. Arnold Leff of Santa Cruz. "A lot of physicians will not take the risk of losing their DEA license."That forces patients to seek doctors who are known to make such recommendations but who don’t have a long history with that patient, Leff said. "We’re pretty careful about how we approach it," said Leff, who has made dozens of recommendations. "We strive to approach it from a medical standpoint."Valerie Corral, executive director of the Wo/men’s Alliance for Medical Marijuana, was one of the plaintiffs in the case, which was filed in 1997. Corral said she was elated by the ruling, saying it changes the setting of the medical- marijuana debate."It frames the issue in a medical perspective and takes it away from criminality," Corral said. Lawyer Ben Rice of Santa Cruz said the ruling, though still subject to appeal, should help doctors be more willing to make a recommendation. Rice said there were about 100 doctors in the area who have recommended marijuana to patients. In a concurring opinion, Judge Alex Kozinski wrote that there was a wealth of evidence that may support marijuana use for sick patients, and said the government has attacked doctors as a means to paralyze California’s medical marijuana laws."The federal government’s policy deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law," Kozinski wrote.The case was brought by patients’ rights groups and doctors who said they have been fearful of recommending marijuana, even if it’s in a patient’s best interest.U.S. District Judge William Alsup blocked the Justice Department from revoking doctors’ Drug Enforcement Administration licenses to dispense medication "merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment." Alsup’s order also prevented federal agents "from initiating any investigation solely on that ground."The case was an outgrowth of Proposition 215, which California voters approved in 1996. It allows patients to lawfully use marijuana with a doctor’s recommendation. The Clinton administration said doctors who recommended marijuana would lose their federal licenses to prescribe medicine, could be excluded from Medicare and Medicaid programs, and could face criminal charges. The Bush administration continued Clinton’s fight.The government argued that doctors were aiding and abetting criminal activity for recommending marijuana because it’s an illegal drug under federal narcotics laws.But the appellate court said doctors could be liable only if they actually assisted patients in acquiring marijuana. Last year, the U.S. Supreme Court said clubs that sell marijuana to the sick with a doctor’s recommendation are breaking federal drug laws.Federal officials have raided many marijuana clubs in California, and one case challenging such raids is pending before the 9th Circuit. That case, brought by an Oakland pot club, argues that the states have the right to experiment with their own drug laws and that Americans have a fundamental right to marijuana as an avenue to be free of pain.In another federal case in San Jose, a WAMM is seeking to have its marijuana returned after federal agents seized it in September. A hearing is set for Monday.The case decided Tuesday is Conant v. Walters, 00-17222.Staff writer Brian Seals contributed to this report.On the Net:http://www.ce9.uscourts.gov/ Source: Santa Cruz Sentinel (CA)Published: October 30, 2002 Copyright: 2002 Santa Cruz SentinelContact: editorial santa-cruz.comWebsite: http://www.santacruzsentinel.com/Related Articles & Web Sites:WAMMhttp://www.wamm.org/Conant vs. Walters in PDF http://freedomtoexhale.com/conant.pdfMedical Marijuana Wins a Court Victoryhttp://cannabisnews.com/news/thread14594.shtmlCourt Protects Doctors' Pot Discussions http://cannabisnews.com/news/thread14592.shtmlCourt Protects Doctors Who Recommend Marijuanahttp://cannabisnews.com/news/thread14591.shtmlMedicinal Marijuana Users Sue U.S. Officialshttp://cannabisnews.com/news/thread14417.shtmlSanta Cruz Marijuana Farmer Sue Fedshttp://cannabisnews.com/news/thread14235.shtml
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