Pubdate: Fri, 08 Sep 2000
Source: San Jose Mercury News (CA)
Copyright: 2000 San Jose Mercury News
Contact:  750 Ridder Park Drive, San Jose, CA 95190
Fax: (408) 271-3792
Website: http://www.sjmercury.com/
Author: Alexis Chiu
Note: Alexis Chiu may be contacted at  or (415) 477-3795
Bookmark: additional articles on medical cannabis are available at 
http://www.mapinc.org/mmj.htm

DOCTORS CAN RECOMMEND MARIJUANA, COURT RULES

Licenses Protected: Decision Prevents Government From Disciplining 
Physicians For Advising Pot To Patients.

Doctors have a constitutional right to recommend pot to patients, and 
cannot be disciplined by the government for doing so, a federal judge ruled 
Thursday in a decision that could have immediate implications for 
physicians and patients across the state.

The order by U.S. District Court Judge William Alsup bans the government 
from revoking doctors' licenses to prescribe medication if they recommend 
the drug. It also prohibits the government from initiating investigations 
of physicians who have made such recommendations.

"Physicians have a legitimate need to discuss with and to recommend to 
their patients all medically acceptable forms of treatment," Alsup wrote in 
the 23-page ruling. "If such recommendations could not be communicated, 
then the physician-patient relationship would be seriously impaired. 
Patients need to know their doctors' recommendations."

Alsup wrote that his order applies even if "the physician anticipates that 
the recommendation will, in turn, be used by the patient to obtain 
marijuana in violation of federal law."

While no California doctors have been disciplined for recommending cannabis 
to seriously ill patients, government officials -- from drug czar Barry 
McCaffrey to Department of Justice attorneys -- have repeatedly vowed to 
resist Proposition 215, California's voter-approved medicinal marijuana law.

The American Civil Liberties Union, which brought the class-action suit, 
contended the government's position violated doctors' free speech rights, 
and that many doctors were resisting recommending pot for fear of losing 
their federal right to prescribe medication.

Those doctors hailed the court's decision Thursday, saying it would have a 
palpable and immediate effect on how they talk to patients.

"I felt I couldn't talk about it in any way, shape or form," said Dr. 
Milton Estes, a plaintiff in the case who works exclusively with 
HIV-infected patients. "It's incredibly reassuring to feel now I can start 
talking to patients again about what my thoughts are. I'm thrilled."

Estes, who has a private practice in Marin County and oversees the care of 
all HIV-positive inmates in San Francisco County jails, predicted the 
ruling will affect "innumerable'' patients.

Despite a temporary injunction issued against the government in 1997, 
doctors like Estes said they remained nervous about talking to patients 
about marijuana because of public threats made by such high-ranking 
officials as McCaffrey.

In December 1996, less than two months after the so-called Compassionate 
Use Act took effect, McCaffrey said doctors who recommended marijuana would 
lose their federal licenses to prescribe controlled substances. He said the 
doctors would be excluded from Medicare and Medicaid and could face 
criminal charges.

The government has argued that physicians who recommend marijuana to 
patients are keeping drug traffickers in business, and that doctors cannot 
recommend a substance that is not regulated by the federal Food and Drug 
Administration. Department of Justice attorneys did not return calls late 
Thursday seeking comment on the ruling.

The ACLU countered that the government was trying to stifle the free speech 
of doctors in an overzealous attempt to stay true to its "war on drugs."

"This decision draws a very clear, bright line in protecting doctors who 
recommend marijuana," ACLU attorney Graham Boyd said Thursday. "The bottom 
line is that with this order, doctors and patients can once again freely 
discuss marijuana without fear of federal punishment."

Also called the Compassionate Use Act, Proposition 215 allows patients with 
such chronic, debilitating illnesses as AIDS and cancer -- and with a 
doctor's recommendation -- to use marijuana for pain relief without being 
prosecuted under state law. Similar measures have passed in Alaska, 
Arizona, Hawaii, Maine, Nevada, Oregon and Washington state.

The first challenges to Proposition 215 were directed at cannabis clubs for 
medicinal marijuana users. Clubs in Oakland, San Francisco and San Jose 
were closed by local authorities, uncomfortable with their lack of 
regulation, intent on upholding state and federal drug laws.

The law remains under fire. Last week, the U.S. Supreme Court barred an 
Oakland marijuana club from distributing cannabis to sick patients until it 
decides whether that practice is lawful.

Contact Alexis Chiu at  or (415) 477-3795.
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