DOCTORS WITHOUT ORDERS

So many doctors who recommend cannabis have found themselves under
investigation by the Medical Board of California --which can revoke or
suspend their licenses-- that Frank Lucido, MD, has called a conference to
compare notes and discuss a coordinated response.

The docs will meet in Berkeley on March 8. One of their chief concerns is
that the Medical Board has never issued guidelines according to which they
can discuss cannabis with their patients. (Tod Mikuriya, MD, has been
requesting and suggesting guidelines since 1996.) Another concern is that
almost all the complaints that have triggered Medical Board investigations
have come not from patients or their loved ones, but from law enforcement
or other third parties.

The complaint against Lucido, for example, came from a high school
administrator.

Meanwhile the Medical Board may be moving on its own to address the
doctors' concerns. At its Jan. 31 meeting in Los Angeles, the Board's
Division of Medical Quality heard attorney Alice Mead, representing the
California Medical Association, suggest criteria according to which doctors
can recommend cannabis in accordance with state and federal law.

Mead reminded the Board that the recent decision by the US Court of Appeal
for the Ninth Circuit in Conant v. Walters 'does not apply only to the
federal government. Since it is based on the federal constitution, the
ruling applies to any state or local governmental entity, including the
Medical Board, that may try to punish or restrict a physician for
recommending cannabis.

'A physician's intent shouldn't be the primary focus of the Medical Board,'
said Mead. 'Even if a physician actually intendsS to provide a
recommendation for procurement purposes, Prop 215 still suggests that a
physician gets the protections... Therefore, the medical board shouldn't
investigate a physician unless the Board has a good faith belief that it
has substantial evidence that the physician's practice has fallen beneath
the standard of care.

'It should not initiate an investigation simply because some individual,
such as a park ranger or a law enforcement officer or even a judicial
officer, simply disapproves of the very idea that a patient has a
physician's recommendation to use cannabis.'

This comment elicited nods of assent from many of the Board members.
Investigator Dave Thornton, the Board's Chief of Enforcement, was present
and could not have missed the policy implications. The question now is
whether he will revisit some of the investigations in progress that were
initiated at the request of law enforcement.

'And how is the Medical Board supposed to determine whether or not a
physician might have breached the standard of care?' asked Mead
rhetorically. 'Proposition 215 specifically includes a number of serious
medical conditions [cancer, anorexia, AIDS, chronic pain, spasticity,
glaucoma, arthritis, and migraine.] In addition, it applies to 'any other
illness for which marijuana provides relief.' That's very broad, and the
Medical Board can ensure that the physician has some support for his or her
opinion. But that support need not come from double blind,
placebo-controlled clinical trials.

Most off-label prescription is not supported by such evidence.

There is an extensive (and very consistent) body of anecdotal evidence for
a variety of medicinal uses of cannabisS There are controlled clinical
trials conducted a couple of decades ago that can shed light on a
particular case. There is considerable data from pre-clinical work done in
recent years that supports the clinical evidence, and more continues to
come in. And there's actually data from controlled clinical trials coming
in from the Center for Medicinal Cannabis Research at UC San Diego, and GW
Pharmaceuticals in England. GW has just publicized the result of its
phase-three trials involving 350 patients with multiple sclerosis and
neuropathic pain using a standardized oral mucosal cannabis extract and
finding statistically significant benefits.

The Medical Board needs to secure experts who are familiar with the full
spectrum of such informationS

Mead compared the subset of doctors who have written numerous cannabis
recommendations to those who treated AIDS patients in the early days of the
epidemic. 'Many physicians are too fearful of, or unfamiliar with, the
subject to be willing to discuss medicinal cannabis with their patients.

So the physician from whom a patient seeks information and advice may not
be the patient's primary care physician and may not be responsible for the
ongoing care of the patient's underlying condition. That can be
appropriate. When I was first at CMA and the HIV epidemic had just broken
out, many physicians were ignorant of HIV and fearful of HIV and they
didn't want to take HIV-infected patients.

A lot of the legal issues landed on my deskS There were a few brave and
informed physicians who did take a lot of those patients --a
disproportionate number.

We never said they treated too many HIV patients.

They did it because no one else would.

'So, the primary-care physician may not be the one who provides the
information and advice, but his or her practices still have to meet the
standard of care. There has to be a good-faith prior exam. The physician
has to take a good history before advising the patient about cannabis.

There has to be a determination that the patient has a serious medical
condition; it doesn't have to be life-threatening, it just has to be
something that substantially interferes with the patient's everyday life
activities. The physician has to conduct an informed-consent
discussion. Document the results of that exam and history and discussion
in the patient's medical record, including the conclusion that cannabis
might be therapeutic. Consult with the patient's primary care physician
and/or get a copy of the relevant portion of the medical record that shows
the patient's diagnosis and previous care and treatment.

And provide follow-up assessment to determine what effect the medicinal
cannabis is having on the patient's overall healthS

'And, of course, these requirements should not be applied more stringently
to physicians who recommend cannabis than would be to other physicians.

'In a nutshell, physicians and patients should be able to embark on the
difficult path of discovering what treatment may be best, including
treatment with cannabis.

No governmental entity, including the Medical Board, should inappropriately
hinder that process.

We urge the Medical Board to try to understand the medical issues, and to
avail itself of expert information and be fully equipped with the available
scientific evidence, because more and more is coming in every day.'

Indictments Challenged

A few days before the federal case against Ed Rosenthal went to the jury,
his lawyers obtained a partial transcript of the grand jury hearing that
led to the original indictment. The grand jurors had asked so many
questions, and seemed so supportive of California's medical marijuana law
that prosecutor George Bevan had a hard time convincing them to indict.

According to the defense motion to dismiss, which U.S. District Judge
Charles Breyer has yet to rule on, Bevan tried too hard: 'The prosecutor
led the grand jurors to believe that federal law offered a 'shelter' for 99
plants or less to enable patients to get their medicine and that state law
defenses and a medical defense was available [to Rosenthal].'

In a less publicized federal case of equal significance, U.S. Magistrate
Judge Dale Drozd has ordered the U.S. Attorney's office to show defendants
Robert and Shawna Whiteaker documents in which the Sacramento County
District Attorney's office allegedly asked them to take the case because
the Whiteakers had nixed a plea-bargain! Drozd also ordered the prosecutors
in both offices to hand over documents describing when and how they decide
to press charges.

The Whiteakers, who are in their early 40s, were growing 242 indoor plants
when they were busted in May, 1999. The search warrant had been obtained by
a super-zealous Placer County Sheriff's Deputy named Tracy Grant, who had
staked out a hydroponics supply store and was going after their customers
systematically. The Whiteakers' lawyer, Bill Panzer, contends that Grant
routinely obtained search warrants under false pretenses.

At a hearing to suppress the Whiteaker search warrant in February 2001,
Grant refused to answer questions about his authority to issue federal
grand-jury subpoenas. With the judge threatening to dismiss the case,
Deputy Placer County D.A. Joy Smiley told the Whiteakers they had 48 hours
to accept the deal --28 months in state prison for Robert, a year in county
jail for Shawna-- or face prosecution by the feds.

'The ultimatum was clear,' wrote Judge Drozd in his order; and if the feds
were indeed functioning as the hammer for local law enforcers, it would be
vindictive prosecution --and grounds for dismissal. Now the burden is on
the U.S. Attorney's Office and their Placer County cronies to prove their
innocence.