Recommending

Prescribing vs Recommending

Precedent

Please understand that the following is not intended to serve as legal advice, a substitute for your own due diligence or in any way commentary on the positions established by your affiliated hospitals or employers. The information contained herein is intended to provide you with some insight to they types of precedent that exists in other states, federal courts and the rights specifically detailed in the Illinois Compassionate Use of Medicinal Cannabis Pilot Program Act.

Beginning in 1996 with California’s Compassionate Use Act, 23 states and the District of Columbia today have laws that allow sick patients to legally obtain and use medical cannabis. Although this wave of legalization is strong today, and safe access to the plant in every state seems inevitable, federal officials originally challenged California’s progressive law.

Shortly after California’s adoption of legal medical cannabis (via a popular vote that captured 56 percent of voter approval), federal officials threatened to revoke doctors’ ability to prescribe the substance to patients for medical use.

The federal government’s attempt to thwart California’s new law was met by a strong response from a group of doctors and patients. A lawsuit was filed against the federal government by Dr. Marcus Conant, an AIDS specialist. The suit argued that the government’s effort to quiet doctors who believed in the medical efficacy of cannabis was a violation of the First Amendment. The underlying court held that "Given the doctrine of constitutional doubt, the government’s construction of the Controlled Substances Act cannot stand. The government should be permanently enjoined from (i) revoking any physician class member’s DEA registration merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The injunction should apply whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law."

The federal government appealed and, in 2002, the Ninth Circuit Court of Appeals affirmed the lower courts ruling. Furthermore, Judge Alex Kozinski’s concurrence also brought in the First Amendment right of patients to hear accurate information from their doctors.

The federal government again appealed, but the U.S. Supreme Court declined to take the appeal. In and of itself, a message from the U.S. Supreme Court on this issue.

But what exactly are doctors permitted to/prohibited from doing following this potentially confusing trail of lawsuits?

Based on Condant, a doctor is allowed to discuss the merits of medical marijuana with patients. A doctor is also permitted to deliver written or oral recommendations to the patient suggesting that they try cannabis. Thus, a doctor telling a patient, even in writing, "Cannabis may help you" or "You really should consume cannabis, it will help" is acceptable. A doctor is NOT permitted to provide a patient with cannabis. Nor can a doctor prescribe cannabis — doctors cannot prescribe Schedule I controlled substances.

Rather than advise the patient on how to or where to obtain the medicine, doctors should refer the patient back to the details of the Illinois program and the resources provided by the Department of Health.

The American Medical Association, in Article III of the Principles of Medical Ethics, wrote: "A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient."

Again, based on the federal precedent established by the Federal Court of Appeals in Conant, physicians in states without medical cannabis laws are also permitted to recommend cannabis to their patients based on First Amendment rights of physicians and patients. However, if located in states with medical cannabis laws, physicians must comply with individual state requirements when writing recommendations for cannabis.

The Illinois Approach

410 ILCS 130 Sec. 25 is entitled "Immunities and presumptions related to the medical use of cannabis." Sub-section (e) provides: "A physician is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary occupational or professional licensing board, solely for providing written certifications 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 cannabis to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, provided that nothing shall prevent a professional licensing or disciplinary board from sanctioning a physician for: (1) issuing a written certification to a patient who is not under the physician’s care for a debilitating medical condition; or (2) failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions."

In the state of Illinois, doctors must have an official physician-patient relationship that involves an "ongoing expectation of care" to be legally able to recommend medical cannabis under the state’s pilot program that was passed in August, 2013. Please go here for a full explanation of what a doctor is responsible for doing to recommend cannabis and certify a patient for participation in the Illinois program. For all additional information on the program, the underlying rules are available in Section 946.300 of the Dept. of Public Health regulations. This document includes the certification form that physicians must use to recommend medical cannabis (which must be submitted by the physician, not the patient) – the applicable forms are also available under "Forms" in this section.

Other portions of the Physician’s Code of Ethics pertaining to medical cannabis include:

  • The Relation of Law and Ethics (Section 1.02): "Ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties. In some cases, the law mandates unethical conduct. In general, when physicians believe a law is unjust, they should work to change the law. In exceptional circumstances of unjust laws, ethical responsibilities should supersede legal obligations."

  • Quality of Life (Section 2.17): "In the making of decisions for the treatment of… persons who are severely disabled by injury or illness, the primary consideration should be what is best for the individual patient and not the avoidance of a burden to the family or to society. Quality of life, as defined by the patient’s interests and values, is a factor to be considered in determining what is best for the individual. It is permissible to consider quality of life when deciding about life-sustaining treatment."

  • Impaired Drivers and Their Physicians (Section 2.24): "A tactful but candid discussion with the patient and family about the risks of driving is of primary importance."

  • Confidentiality (Section 5.05): "The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree."

  • Confidentiality: Attorney-Physician Relation (Section 5.06): "The patient’s history, diagnosis, treatment, and prognosis may be discussed with the patient’s lawyer with the consent of the patient or the patient’s lawful representative."

  • Prescribing and Dispensing Drugs and Devices (Section 8.06): "Physicians should prescribe drugs, devices, and other treatments based solely upon medical considerations and patient need and reasonable expectations of the effectiveness of the drug, device, or other treatment for the particular patient… Patients have an ethically and legally recognized right to prompt access to the information contained in their individual medical records. Since a prescription is part of the patient’s medical record, the patient is entitled to a copy of the physician’s prescription for drugs or devices, including eyeglasses and contact lenses. Therefore, physicians should not discourage patients from requesting a written copy of a prescription."

  • Invalid Medical Treatment (Section 8.20): "Among the treatments that are scientifically valid, medically indicated, and offer a reasonable chance of benefit for patients, some are regulated or prohibited by law; physicians should comply with these laws. If physicians disagree with such laws, they should seek to change them."

  • Physicians’ Political Communications with Patients and Their Families (Section 9.012): "In addition, physicians have a responsibility to work for the reform of, and to press for the proper administration of, laws that are related to health care. Physicians should keep themselves well-informed as to current political questions regarding needed and proposed changes to laws concerning such issues as access to health care, quality of health care services, scope of medical research, and promotion of public health."

Interesting Fact:

In order to legally be able to recommend medical cannabis in the state of Illinois, doctors must have bona fide physician-patient relationship that involves an "ongoing expectation of care."