DOCTORS TREAD A THIN LINE ON MARIJUANA ADVICE

For doctors who want to discuss using medical marijuana with their
patients, the line between advice and advocacy remains almost as blurred as
it was before a recent court decision guaranteed a physician's right to
address the issue openly.

Some doctors are relieved that the United States Supreme Court let stand a
lower-court decision two weeks ago that barred the federal government from
punishing doctors who advised patients that marijuana might ease some symptoms.

But some doctors are also perplexed, and even inhibited, by part of the
underlying court decision at the center of the case. That decision
essentially affirms the federal government's right to hold physicians
accountable if they actually take steps to help patients obtain marijuana.

"This decision says that it's fine and appropriate to talk with patients
about medical marijuana, and I can even say, `I think you can benefit from
it,' " said Dr. Steve O'Brien, who estimates that a fifth of his H.I.V.
patients at the East Bay AIDS Center in Oakland, Calif., use marijuana for
medical purposes. "But does that mean I can now sign a form from a medical
pot club or write, `I recommend marijuana,' on a prescription pad? I don't
know. It's still kind of murky."

The governing language is found in a decision in 2002 by the United States
Court of Appeals for the Ninth Circuit. Of the nine states in that circuit,
seven have laws on medical marijuana. The court stated unambiguously that
doctors had a First Amendment right to discuss with patients the possible
benefits of marijuana for relief of pain, nausea and other symptoms
suffered by people with ailments like cancer, H.I.V. and glaucoma.

The court also clearly left open the possibility that doctors could be
charged under federal drug statutes.

"If, in making the recommendation," the court wrote, "the physician intends
for the patient to use it as the means for obtaining marijuana, as a
prescription is used as a means for a patient to obtain a controlled
substance, then a physician would be guilty of aiding and abetting the
violation of federal law."

The ruling stemmed from a suit by California physicians and patients after
the federal government had threatened legal action against doctors who
recommended medical marijuana. The government issued the warnings in 1996,
after voters had approved Proposition 215, the initiative that protected
the right of patients to use marijuana for medical indications.

Although doctors are regulated by the states, they receive their authority
to prescribe controlled substances through the federal Drug Enforcement
Administration.

Dr. Jack Lewin, chief executive of the California Medical Association,
acknowledged that the Ninth Circuit's decision and the Supreme Court's
refusal to review it left some questions unresolved. Dr. Lewin said he
hoped that at least some concerns about discussing marijuana with patients
would be reduced.

"The verbal position of the Department of Justice," he said, "was very
threatening and put an absolute chilling effect on doctors' communications
with their patients. And most did not want to talk about marijuana, much
less recommend it."

Doctors in states with medical marijuana laws have long tried to balance
state and federal laws that conflict. This month, Gov. Gray Davis of
California signed a bill that establishes a state-sponsored identification
card for users of medical marijuana, to protect them from arrests, even as
the federal government insists that doctors cannot help their patients
obtain it.

Because of the legal uncertainties, doctors, as well as medical
organizations, have struggled to devise ways to avoid running afoul of the law.

The Oregon Medical Association has advised doctors to record only on
patients' charts any suggestion that marijuana could help with some
symptoms. If patients photocopy that part of the medical record and use the
documents to obtain marijuana, the president of the association, Dr. Colin
Cave, said, the doctor cannot be held responsible.

"We have told physicians to avoid at all costs writing it anywhere else,"
Dr. Cave said. "They should not write it on a prescription pad. They should
not write it on a separate letter, because that leaves them absolutely
vulnerable to prosecution by the Drug Enforcement Administration."

The language in the Ninth Circuit ruling, Dr. Cave said, does nothing to
change those recommendations.

"The D.E.A.," he said, "is still out there, and we know the federal
government is not going to give up on this."

With some doctors fearful or reluctant to address the issue, 12 or so
physicians from California have in the last few years emerged as
consultants on medical marijuana. Those doctors routinely issue
recommendations to hundreds of patients who see them expressly for that
purpose.

Their activities have drawn intense scrutiny from the Medical Board of
California, which regulates medical licenses for the state. The board has
investigated at least nine physicians, according to Ana Facio, its deputy
chief of enforcement.

The Supreme Court action has no direct bearing on these cases, Ms. Facio
said, because the board respects California law and is not seeking to
prevent doctors from recommending marijuana. But the board's mandate is to
ensure that doctors behave ethically and follow correct standards of care,
she added.

"I don't know that I would consider it appropriate medicine to simply sit
there and issue recommendations for a fee without a medical history and a
physical," Ms. Facio said.

Some doctors view the board's inquiries as overzealous. Dr. Tod Mikuriya of
Berkeley, who said he had issued about 20 marijuana recommendations a week,
called the investigation of his practice a vendetta. Dr. Mikuriya said he
had conducted an extensive review of medical history for each patient and
had required documentary proof of illness.

"The prosecutorial mind is boundless in its ways of applying different
parts of the law," said Dr. Mikuriya, whose case is still pending before an
administrative law judge.

In the region covered by the Ninth Circuit, seven states -- Alaska,
Arizona, Hawaii, Nevada, Oregon and Washington, as well as California --
have medical marijuana laws. Despite the lingering questions, some doctors
in the region consider the Supreme Court decision not to review the
appellate ruling as an unmitigated victory.

"I'm home free now," said Dr. William Wenner, 77, a retired surgeon who
lives on Hawaii's Big Island and estimates that he has issued more than 400
"certifications" to use medical marijuana in the last few years.

"Who's going to come and get me, and for what?" Dr. Wenner asked. "I'm
listening to these people and evaluating their complaints, and I've got
three file drawers with their charts."

Three states outside the Ninth Circuit -- Colorado, Maine and Maryland --
have some form of medical marijuana law. Although the ruling is not
strictly binding outside the Ninth Circuit, advocates for medical marijuana
predict that it will strongly influence authorities elsewhere, especially
given the Supreme Court decision to let it stand.

"Frankly, lawyers are ready to pounce on the government as soon as they
start harassing doctors anywhere outside the Ninth Circuit," said Daniel
Abrahamson, a lawyer for the plaintiffs who is legal affairs director of
the Drug Policy Alliance.

Federal officials have promised to continue enforcing the drug laws,
reiterating their view that Marinol, an oral prescription drug that
includes a form of THC, the psychoactive component of marijuana, precludes
the need for using marijuana itself as a medication.

Marijuana contains dozens of ingredients besides THC, and doctors say many
patients report that smoked marijuana works better and has fewer side
effects than the drug.

"Smoking marijuana is shorter acting, and it's easier to control the dose,"
Dr. Stephen Becker, an H.I.V. physician in San Francisco, said. "But I'm
not indiscriminate. I have to be convinced that the patient has failed the
conventional pharmacopeia. I think physicians have a responsibility not to
abuse this and get themselves and their colleagues and patients in trouble."

Some doctors are pressing forward with research into medical marijuana,
hoping to strengthen the scientific basis for proclaiming its medicinal
benefits.

Dr. Donald Abrams, a professor of clinical medicine at the University of
California at San Francisco, is one of several investigators with the
Center for Medicinal Cannabis Research, which is affiliated with the
University of California. Dr. Abrams is studying whether marijuana can
relieve the sharp pains that some people with H.I.V. experience in the feet
and hands. He is also recruiting cancer patients for a clinical trial on
whether marijuana can increase the analgesic effects of other painkillers.

Dr. Abrams said he had discussed medical marijuana with patients since
beginning his practice more than 20 years ago.

"People have been using marijuana as medicine for thousands of years," he
said. "It's only been in the last 60 years that it hasn't been available in
the United States."