Medical Use of Marijuana: Considerations for Massachusetts Physicians

Updated 11/16/12 7:30 p.m.

The passage last week of Question 3, “Medical Use of Marijuana,” has raised many questions about the rights and responsibilities of Massachusetts physicians under the new law.

The Mass. Department of Public Health (DPH) has 120 days to develop and issue regulations on the law, so we are unable to answer many questions at this time. However, some issues are relatively clear.

When does the law take effect?

The law takes effect on January 1, 2013. Physicians should not authorize the use of marijuana before that date.

Note that even after January 1, the practice of authorizing the use of marijuana remains illegal under federal law. Marijuana is still classified as a Schedule I drug. However, U.S. Attorney General Holder has said he does not currently plan to prosecute those who operate within state law.

Is a physician required to participate in the program? 

Nothing in the law requires any health care professional to authorize the use of medical marijuana for a patient.

What may a physician do under the new law?

Physicians may provide and sign a “written certification” stating that in the physician’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. The physician must conduct a full assessment of the qualifying patient’s medical history and condition, and that the medical use of marijuana may benefit a particular qualifying patient.  It’s important to note that under this law, physicians are not “prescribing” marijuana, per se.

Must the physician have a “physician-patient” relationship with the patient?

Yes. There must be a “bona fide” physician patient relationship.

Does the certification need to specify the qualifying patient’s debilitating medical condition(s)?

Yes. The law defines “debilitating medical condition” as: cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, ALS, Crohn’s disease, MS and other conditions as determined in writing by the qualifying  patient’s physician.

What does a patient do with the written certification?

The patient would use the written certification from a physician to obtain a DPH-issued “registration card” to allow him or her to possess marijuana for personal medical use.

Have any dispensaries been authorized in Massachusetts?  

Not yet. In the first year after the effective date, DPH will issue registrations for up to 35 nonprofit centers, with between one and five centers per county. The law does not provide guidance about the number of authorized dispensaries in later years.

What should physicians know about the time period between the effective date of the law and the promulgation of regulations?

After January 1 but before to the issuance of regulations, certain provisions apply. These include the following exemption from the requirement that the state must approve the designation of patient having hardship cultivation status. “Until the department issues such final regulations, the written recommendation of a qualifying patient’s physician shall constitute a limited cultivation registration,“ the law states.

This language, as much of the initiative, is a little vague. It isn’t clear that a “written recommendation” is the same as a “written certification.” Physicians should be aware that they write a letter certifying a patient as qualifying under the terms of the law to possess marijuana for medical use, the letter will also qualify them to grow marijuana until such time as regulations are promulgated. There may be additional federal issues raised for facilitating cultivation rather than the issues raised in writing a certification letter to the DPH.

The MMS is also working to develop answers the question of what constitutes a bona fide relationship, appropriate medical examination and record. Physicians are advised to look at prescribing guidelines of the Board of Registration in Medicine in this regard. These state:

“Statutory language sets forth the minimum requirements that must be met in order for a prescription to be valid in the Commonwealth. To satisfy the requirement that a prescription be issued by a practitioner in the usual course of his professional practice, there must be a physician-patient relationship that is for the purpose of maintaining the patient’s well-being and the physician must conform to certain minimum norms and standards for the care of patients, such as taking an adequate medical history and conducting an appropriate physical and/or mental status examination and recording the results. Issuance of a prescription, by any means, including the Internet or other electronic process, that does not meet these requirements is therefore unlawful.”

While a physician is not writing a prescription this is the closest guideline to the elements of a physician patient relationship.

Language in the law includes protections from state prosecution and penalties for physicians for advising patients on medical marijuana or providing a patient with a written certificate after full assessments of a patient’s history and condition. However, such protections are probably irrelevant in civil cases based on medical negligence.

Liability coverage for civil cases based on negligence and the standards of care which will inform such claims remain to be determined. Case law will establish the answers to these questions.

Further issues remain as to how a physician is to advise a qualifying patient to obtain marijuana. Which dispensaries are appropriate and provide unadulterated products? What is an effective dose? What are the side effects and contraindications? Does a physician have an obligation to review patients in the prescription monitoring database to assess their history?

The full text of the law is available here.

MMS will continue to monitor the regulatory process, and will provide updates as soon as they are available.

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