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Medicolegal: New York State Medical Marijuana Legal Course Series-Topic I
This is the first of three courses of the New York State Medical Marijuana Legal Course Series. All three courses in the series review the Compassionate Care Act and discuss many of the medical legal issues that New York clinicians will face. These courses are not intended to serve as legal advice or guidance1.
PLEASE ONLY PROCEED WITH READING THIS CONTENT IF IT IS AGREED THAT THIS MATERIAL IS FOR EDUCATIONAL PURPOSES ONLY, AND THAT THE FOREGOING CONTENT IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE AND BY USING THIS CONTENT YOU UNDERSTAND THAT THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN YOU AND THE PUBLISHER, SPONSOR AND/OR AUTHORS. THE FOREGOING CONTENT SHOULD NOT BE USED AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE FROM A LICENSED PROFESSIONAL ATTORNEY IN YOUR STATE.
In July 2014, Governor Cuomo and the New York State Legislature enacted the Compassionate Care Act; legislation that will allow healthcare providers to recommend the medical use of marijuana under carefully controlled circumstances.
One of the key issues raised by many physicians is whether participation in the New York medical marijuana program (NYMMP) violates federal law. The Federal Controlled Substances Act of 1970 ("CSA") regulates the manufacturing, distribution, dispensing and/or possession of controlled substances2. The CSA categorizes controlled substances into various schedules based on the substances' medical purpose, potential for abuse and danger to the general public. Drugs that have a high potential for abuse, are not currently accepted for medical use in treatment in the United States and lack an accepted safety for use under medical supervision are labeled as Schedule I controlled substances3. Such drugs are heavily regulated and cannot be prescribed by a physician without a special Schedule I license, which is rarely offered by the Drug Enforcement Agency ("DEA").
Notwithstanding the plethora of medical literature touting the potential benefits of medical marijuana, marijuana is currently considered a Schedule I controlled substance by the Federal Government. This characterization raises a myriad of legal issues for businesses, physicians, health care institutions, caregivers, and patients, who seek to participate in a state sanctioned medical marijuana program. Of note, physicians may not legally prescribe medical marijuana for the treatment of any medical condition.4
There is an important distinction to be made between writing a prescription and making a recommendation for medical marijuana. While prescribing a Schedule I controlled substance is a violation of federal law, the same cannot be said for recommending marijuana to a patient. In a case decided by the Ninth Circuit for the United States Court of Appeals, the Court held that a physician may not be prosecuted for recommending marijuana to qualified patients, with the good faith belief that such a patient will benefit from the consumption of marijuana.5 The Court made a distinction between a prescription, which is a federally regulated action, and a recommendation or certification, which is a protected expression of a physician's First Amendment right to freedom of speech and belief. Following the legal decision stemming from Conant v Walters6, many states have modelled their medical marijuana programs to allow for physicians to express their professional medical opinion regarding a patient's qualification for medical marijuana, without violating the CSA.