Law: Key Legal Responsibilities for Cannabis Clinicians

The guidelines for physician and patient use of medical cannabis still vary from state to state. So do the requirements for how clinicians—including medical, osteopathic, and naturopathic doctors; physician assistants; and advanced registered nurse practitioners—prepare for the responsibility of recommending cannabis. As a 2010 position paper from the American Society of Addiction Medicine states, “Without exception, all of the state laws make physicians the ‘gatekeepers,’… even though marijuana remains a Schedule I substance, which a physician cannot prescribe, and a pharmacy cannot dispense under federal law.”1

Despite the clash of legality, a recent study published in the Journal of Palliative Care polled 310 health care providers and found that an overwhelming 91% support using medical cannabis for hospice patients.2 Even so, there’s much to be overcome for medical cannabis to enter mainstream medicine, and legal risks taken by health care providers must be carefully considered.

A National Issue, Handled on a State Level
“I don’t believe that most states are on equal footing concerning the legal risks that potentially face clinicians,” says Heather Despres, director of the Patient Focused Certification program, part of Americans for Safe Access, based in Washington, D.C. “At this time, there are no consistent rules and regulations between the states that permit medical cannabis; equally, there are no consistent rules and regulations between CBD, medical cannabis, and adult-use cannabis products. Because medical marijuana is still listed in the Controlled Substances Act as a Schedule I drug, physicians may not ‘prescribe’ cannabis; they may only ‘recommend’ cannabis.”

Victor Cotton, MD, JD, is a physician, lawyer, and professor who practiced as an internist for eight years and has been a health care attorney for 20 years. As long as medical cannabis remains a Schedule I drug, Cotton says, there’s greater legal risk that clinicians could be found guilty of a crime according to federal laws and be in danger of losing their Drug Enforcement Administration license.3

“It seems that practical risk is low,” regarding physicians being accused of wrongdoing for recommending medical cannabis within their state’s guidelines. Despite medical cannabis issues that may have arisen, “no one has been prosecuted,” he adds. “Perhaps, in part, this is due to the current political climate in which there are many other challenging issues for the attorney general and others.” Cotton acknowledges that physicians and other health care providers face the same risk for prescribing other medications that have been in use for a long time. However, he feels there’s legal risk for clinicians due to the lack of standardization in the way cannabis is produced, as well as inadequate clinical studies that would satisfactorily support evidence-based use.

Proposals for the removal of cannabis as a Schedule I controlled substance have been in motion since 1972. Last November, the House Judiciary Committee approved a bill to legalize cannabis federally, and if approved, the legislation will empower states to have their own policies.4 Experts predict the bill will probably face strong opposition in the Senate.

Despres explains that in 2000, the Supreme Court ruled in Conant v. McCaffrey that physicians have a First Amendment right to discuss medical cannabis treatment options with their patients, which was upheld in 2002, Conant v. Walters. “It wasn’t until 2017 that doctors with Veterans Affairs were able to openly discuss cannabis as a treatment option with their patients. However, they are still prohibited from recommending medical cannabis or filling out forms for patients,” Despres says.

Discussions about medical cannabis should only take place under certain conditions. “Access statutes define explicitly what a ‘bona-fide relationship’ is between the doctor and patient,” says Paul Armentano, an author, speaker, and the deputy director of NORML, the National Organization for the Reform of Marijuana Laws, in Washington, D.C., the nation’s oldest and largest cannabis reform advocacy organization. “Typically, states are trying to avoid patients with no preexisting relationship seeing the doctor for a medical cannabis recommendation, and then having a situation where there’s never any follow-up.”

Conant v. Walters also established that doctors need to have unrestricted communication with patients, and that health care providers aren’t liable for patient conduct after the patients leave a health care facility. Because cannabis is still a controlled substance, patients may want assurance from their doctors when leaving home, which could be problematic. “At this time, there are 30 states with medical marijuana access laws,” Armentano says. “Many of these states allow for reciprocity, which means under certain conditions an individual who is qualified for medical cannabis in one state may have similar protections when they are in or visiting another state. But that’s not the case for all states; only states that explicitly permit crossing state lines with contraband—which could be a violation of federal law, and there’s nothing that an individual state can do to make that activity legal, because states are under the jurisdiction of the federal government.”

Lack of Education May Be a Greater Hindrance to Cannabis Access
Additionally, Despres says, doctors don’t receive any, or receive very little, training on medical cannabis, and with research options severely limited in the United States, it’s often patients who are providing information to their health care practitioners.

“I think there’s a growing recognition that physicians and other health care workers need this information, and often times they are lacking in receiving it,” Armentano says. “We see time and time again as well that physicians, nurses, and pharmacists explain that they are quite uncertain with regard to putting together any dosing regimen or a treatment plan for patients. So that makes them reluctant to participate. Also, there are certainly physicians that work for large [health maintenance organizations] that, as a corporate policy, they do not want their physicians to make these recommendations.”

“Within many insurance networks,” Despres says, “doctors may not be permitted to recommend medical cannabis, which forces patients to seek recommendations elsewhere. So, presently, I do not believe all doctors are on equal footing with regard to their ability to recommend cannabis, nor are they equally educated about cannabis’ potential.”

In addition to medical continuing education seminars, Armentano recommends the accredited educational workshops for clinicians from the Patients Out of Time organization based in Virginia. “There are also nonaccredited groups,” he says. Armentano recommends Radical Health out of Walnut Creek, California, as an excellent source, and Green Flower Media and Oaksterdam University online. In addition, Americans for Safe Access provides education and training material toward both patients and practitioners.

“Ultimately, I think that the best source is simply the scientific literature itself,” Armentano says. “A keyword search of ‘marijuana’ on PubMed provides over 33,000 peer-reviewed studies, and there’s about 20 to 25 new period papers that are published every day. If a physician claims that they are unaware of this growing body of literature in 2020, when we’re in an age where the abstracts and often the articles themselves are freely archived and available online, to not be keeping up with that information means you’re either woefully ignorant, or you’re willfully ignorant, but it’s one or the other.”

Cotton raises concerns about health and safety, which could become legal issues. “At this point, cannabis is generally unregulated, uncontrolled, and not standardized in the way it’s processed, unlike traditional prescription medication,” Cotton says. In 2013, cannabis tested at the University of New Haven in Connecticut revealed mildew, mold, Escherichia coli, and other contaminants.5 A 2019 article published in Environmental Health Perspectives indicated that states don’t agree on which microbial contaminants to test for, posing a health risk which could become legal risk.6

Processing cannabis to extract beneficial compounds may also leave behind chemical solvents, such as propane and butane. “Health clinicians should be diligent in recommending products that have met strict health and safety standards. Patients should only be consuming or cultivating cannabis within the legal pathway in their state,” Despres says. “Products on the illicit market are not tested for product potency or safety and could potentially be adulterated or harmful in many ways, such as containing high levels of pesticides or microbial contaminants.”

Education is key to protect patients. “While cannabis has a high safety profile,” there may be some contraindications between other medications and cannabinoids,” Despres says, “Patients should know what their purchase limits are, and they should openly discuss their medical cannabis usage with their clinician.” She suggests that health care providers help educate patients about other quality of life issues, and says, “Patients should understand their rights concerning employment, housing protections, and other protections offered under medical cannabis laws.”

Is Cannabis Worth the Potential Risks?
“I think the history of the last two decades is telling: No states that have enacted a medical cannabis access law have later repealed it,” Armentano says. “In fact, in most jurisdictions, the laws have continued to expand and facilitate greater patient access to medical cannabis. I think this growth speaks to the fact that these programs are working and that by and large physicians are becoming more comfortable with some of their patients using cannabis safely and effectively.”

Although Armentano and his colleagues are working diligently to increase patient and clinician access to medical cannabis, he also feels that if health care workers abide by their state rules that legal risk is low. “I’ve been doing this work for 25 years. California legalized medical marijuana recommendations in 1994. I can probably count on two hands the number of incidents I’m aware of where there has been some sort of legal or professional action taken against a physician for their role in making cannabis recommendations. So, I’m of the opinion that the legal risks, or professional licensing risks, are extremely rare in this day and age.”

— Michele Deppe is a freelance writer based in upstate South Carolina.

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