Supreme Court lets doctors discuss medical marijuana

Physicians view the court's denial to hear the case as a win in the battle to keep the federal government out of the doctor-patient relationship.

By Tanya Albert, amednews staff. Nov. 3, 2003.

When infectious disease specialist Stephen Follansbee, MD, walked into his San Francisco exam room Oct. 15, his fears about discussing medical marijuana with patients had vanished.

A day earlier, the U.S. Supreme Court said it would not hear the appeal of a 9th U.S. Circuit Court of Appeals ruling that doctors may talk with patients about the pros and cons of the substance without fear of government reprisal. The high court left in place a lower court's permanent injunction against sanctions.

Case at a glance
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Doctors had been on edge since the federal government in 1996 adopted a policy allowing the Drug Enforcement Administration to yank the DEA numbers of physicians who recommended or prescribed marijuana. Discussing or prescribing the drug, a schedule I controlled substance, was not in the "public interest," government officials argued.

"I have felt constrained in my ability to talk freely and document the conversation because we were operating under the threat of prosecution or loss of our ability to prescribe any controlled substance," said Dr. Follansbee, one of the physicians who teamed up with patients to file the lawsuit. "Now I can explore the issue with patients and document it."

The high court's move reinforces the idea that the doctor's office is a safe place to have conversations about the most sensitive issues, said Stephen O'Brien, MD, medical director at East Bay AIDS Center in Berkeley, Calif., and a plaintiff in the suit.

"It feels like there is not a third person in the room with you anymore," Dr. O'Brien said. "There is a greater sense of ease in talking to patients. My concern before was that draconian things could be done."

Patients feel relieved as well. "It's good to know that the federal government can't gag my doctors anymore and that I can get straight answers from them about every aspect of my medical care," lawsuit plaintiff and breast cancer survivor Judith Cushner said in a statement.

Although the case originated with physicians and patients in California, their decision to challenge the government's policy will now affect doctors and patients nationwide.

Beyond California

The injunction covers only California physicians, but the 9th Circuit ruling directly applies to physicians in Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

If a similar medical marijuana issue were to arise in those states, it would be unlikely for the 9th Circuit to take up the case. Instead, the court would let its current opinion stand.

9 states have legalized medical marijuana.

Many of the states that are in the 9th Circuit are among the nine that have passed laws or ballot initiatives that make it legal for patients to grow and possess marijuana for medical use when doctors recommend it. Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington have measures similar to California's.

"For doctors outside the 9th Circuit, it sets a very strong precedent," said Ann Brick, a staff attorney for the American Civil Liberties Union of Northern California. The ACLU represented the physicians and patients who brought the lawsuit. "Doctors can now do what they were trained to do -- give patients the best advice."

Doctors involved in the case say it was about protecting physicians' and patients' First Amendment rights to discuss issues together openly, not about the legalization of marijuana.

Dr. Follansbee said he recognizes marijuana's status as a schedule I drug, and he doesn't plan to prescribe it. But he wants to be able to talk about benefits and risks of any treatment that a patient might ask about behind a closed exam room door.

From the physician-patient relationship standpoint, discussing medical marijuana with a patient is no different from discussing physician-assisted suicide, Dr. Follansbee said. But the possible ramifications were different.

"They are both illegal," he said. "But with physician-assisted suicide, doctors have not been vulnerable to losing prescribing abilities for talking to patients about it. ... I can document the conversation and document the mental status of the patient without feeling vulnerable."

The strongly worded lower court ruling now takes away that feeling of vulnerability by underscoring the importance of physicians and patients being able to talk openly.

"The government policy does ... strike at core First Amendment interests of doctors and patients," the 9th Circuit Court said in its decision, which now stands as case law.

"An integral component of the practice of medicine is the communication between a doctor and a patient," the opinion stated. "Physicians must be able to speak frankly and openly to patients. That need has been recognized by the courts through the application of the common law doctor-patient privilege."

ADDITIONAL INFORMATION:

Case at a glance

Venue: U.S. Supreme Court.
At issue: By not taking on the case, the high court allowed to stand a lower court ruling that the federal government can't investigate or punish physicians for talking to patients about using medical marijuana.
Potential impact: Doctors say the outcome allows them to continue to talk freely with patients in the exam room without fear of retribution. The federal government believes that it jeopardizes the war on drugs.