BLUE CARD BLUES

Will a Government Mix-Up Create a Chilling Effect?

It's been a bad couple of months for Hawai'i's medical marijuana
program. First the Department of Public Safety's Narcotics
Enforcement Division (NED) mistakenly released the database of all
4,200 patients to the Hawai'i Tribune Herald. Then on July 8, Gov.
Linda Lingle vetoed a bill that would have set up a task force to
look at problems with the program and report back to the Legislature.

The release of the patients' names, addresses, the location of their
plants (an invitation to thieves!), their certificate numbers and
their doctors' names caused widespread consternation among the
patients, their families and physicians, even though the information
never appeared in print. All individuals have a constitutional right
to health information privacy under Article I, Section 6, Right to
Privacy of the Hawai'i constitution, and the Brende v. Hara Supreme
Court decision.

As advocates for the seriously ill patients registered with Hawai'i's
medical marijuana program, the Drug Policy Forum of Hawai'i (DPF)
received three waves of phone calls and e-mails: When the original
article appeared on the front page of the Hilo paper on June 27;
again when the Honolulu Advertiser reported the breach on July 12;
and when patients received a letter of apology from Public Safety.

To their credit, NED did appear to take the breach of confidentiality
seriously. They say they've taken steps to ensure that this won't
happen again and instructed the Herald to destroy all paper and
electronic data they may have received. They then sent a letter to
registered patients (although some never received it) informing them
of what happened, detailing the steps the NED had taken to prevent a
recurrence and apologizing for the breach.

This episode has had a chilling effect throughout the state. It
illustrates the problem of entrusting such sensitive medical
information to an enforcement agency inexperienced in dealing with
medical privacy issues.

The confidentiality requirements in the department's own
administrative rules permit release of information only to law
enforcement personnel and then only to verify that a person is in
fact a registered patient.

Why hasn't the Office of Information Practices initiated an
investigation? Attorneys are still determining if legal action
against NED is warranted. But the damage has been done to the
credibility of the program and is a confirmation of patients' and
physicians' worst fears. Even before this incident, many patients
told us that despite their desire to be "legal," they are reluctant
to sign up with a division called "Narcotics Enforcement." This
recent breach may make patients so leery that they put themselves at
risk by not having the protections that registration affords them.

An ongoing problem with the program is the hesitancy of physicians to
participate by issuing recommendations, and this episode will further
erode their confidence in both the program and the department.

Following this misstep came the governor's veto of HB 2675, SD 1. The
Senate voted to override it, but the House did not so the veto
stands. This bill simply called for a task force to examine ways of
improving the program. Since the initial law was passed in 2000, many
proposals to improve it have failed. This was a compromise bill
passed with strong support: unanimous in the Senate; five nays in the House.

The governor's rationale in her veto message is full of distortions.
She says it's inappropriate for the state to recommend ways to
maintain or increase the supply of medical marijuana. But this is one
of the chief concerns of patients, and New Mexico's recent law calls
for the state to license growers or distribute marijuana itself. She
says it's inappropriate for the task force to be housed at the
University of Hawai'i and that it could jeopardize federal funding.
Yet the University of California-San Diego has a state-funded Center
for Medicinal Cannabis Research.

Gov. Lingle expresses concern about the "unintended consequences
related to the proliferation of medical marijuana," but ignores
evidence such as a recent State University of New York-Albany report
showing that the 12 medical marijuana states have a lower rate of
teen use than other states. Finally she attacks the composition of
the task force for having too many DPF supporters.

Patients are demanding changes to the program. The security breach
reinforces our long-standing belief that the Department of Public
Safety is the wrong place for it. And the governor's veto of a bill
to even study problems with the program shows that this
administration is anti-research, like their allies in Washington,
D.C., and would love nothing more than to see all the state medical
marijuana programs wither away. The good news is that these recent
affronts have inspired "blue card" holders across Hawai'i to come
together. Hopefully next year their voices will be too loud for our
elected officials to ignore.