Dear Pot Lawyer,
I thought doctors were able to prescribe weed, but turns out they can’t. So how are patients getting medical cards?
Doctors cannot prescribe weed because “marijuana” is listed on Schedule I of the federal Controlled Substances Act (CSA). The CSA has five schedules (or classifications), and Schedule I is reserved for drugs with “no accepted medical use” and a “high potential for abuse.” If your doctor wrote you a scrip for weed, or for MDMA, LSD, or heroin or any other drug on Schedule I, she would risk the loss of her DEA license. And if that happened, she would be unable to prescribe anything at all. Not even Robitussin.
Fortunately, doctors cannot be barred from “recommending” that a patient consider cannabis as a health care option, or discussing cannabis generally, under state or federal law. The medical cannabis statutes of most states, going back to California’s Proposition 215 in 1996, have chosen this “recommendation” language carefully: It arises from legal precedent in the context of abortion, which tends to show that doctors cannot be punished for discussing particular health care options with patients. You can thank the First Amendment.
When states create medical cannabis laws, they tend to make all sorts of rules for what constitutes a “physician” and how the process works. In Oregon, the “attending physician” must be a Doctor of Medicine (MD) or a Doctor of Osteopathic Medicine (DO). This means that neither naturopaths, chiropractors, acupuncturists, nor anyone else can issue the “Attending Physician Statement” needed for a medical cannabis card. In addition, the attending physician must have “primary responsibility” for the care of the soon-to-be cardholder. The idea is to discourage shady MDs and DOs from setting up medical-card mills without really treating their patients. Still, doctors are allowed 450 card-holding patients, and more if they jump through some hoops.
From a patient perspective, qualifying for a medical cannabis card is not terribly hard. The list of qualifying conditions is generous, covering everything from cancer to severe pain. But the cost of a card isn’t trivial—in most cases, the application fee is $200. This amount, plus the cost of visiting a doctor to get the recommendation, has some patients skipping the medical program to grow their own weed, or buying cheap weed in the retail market. When patients buy outside of the medical system they pay tax, but light medical users may find that tolerable.
It is also worth noting that, while MDs and DOs can recommend weed to their patients, many will not. Some doctors are nervous about recommending a treatment that has undergone far less formal research than most prescription drugs. Others are nervous about federal law prosecution, even though courts have protected physicians. And still others simply dislike cannabis.
The bottom line is that until federal law changes, doctors will not be able to prescribe weed. We will always have odd workarounds, and most states will have bifurcated retail and medical markets. But doctors can recommend cannabis to patients. And that’s something.
Got a question? Email us at potlawyer@portlandmercury.com. And remember that if you have a legal problem, contact a lawyer! Our educational musings cannot be relied upon as specific legal advice.
