FEDERAL COURT SAYS YES, YOU CAN TALK ABOUT POT

Although The California Case Deals With Medical Marijuana, It Has Broader
Implications For Frank Discussions Between Physicians And Patients.

Physicians can discuss the pros and cons of medicinal marijuana with their
patients without worry of the Drug Enforcement Administration cracking down
on them, a federal appeals court ruled in October.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San
Francisco unanimously ruled that a 1996 federal policy that said physicians
could lose their DEA numbers if they discussed the issue tramples on First
Amendment rights that allow a doctor and patient to discuss medical issues.

The policy had some physicians fearful of discussing the issue with
patients who have cancer, AIDS or other debilitating diseases and had
sought their physician's medical advice on the topic. But this court ruling
- -- which upheld the lower court rulings on the issue -- should alleviate
those fears.

"Physicians can have a full, complete discussion about marijuana and offer
an opinion on it," said Graham Boyd, director of the American Civil Liberty
Union's Drug Policy Litigation Project, who argued the case before the 9th
Circuit panel. "They can do what doctors do. They can give advice orally,
in writing or other forms."

"Those involved feel vindicated," added San Francisco HIV/AIDS specialist
Marcus Conant, MD, one of the physicians who filed the lawsuit against the
government. "The case was simply about what can happen when a patient
closes the door and talks to a doctor."

The ruling directly impacts physicians in most of the states that have
legalized medical marijuana since the mid-1990s.

The case originated in California, the first state in the nation where
medical marijuana was legalized. But Alaska, Arizona, Hawaii, Nevada,
Oregon and Washington, which have similar laws, are also under the
jurisdiction of the 9th Circuit.

Colorado and Maine are the only other states in the nation with such laws.
And even though the 9th Circuit court doesn't have jurisdiction over cases
there, Boyd said "it would be surprising" if the government targeted
physicians there who give advice to patients.

The government could appeal the panel's decision to the full 9th Circuit or
appeal to the U.S. Supreme Court. Even if the case were appealed, the
government could not sanction physicians while the case was under appeal.
Since the lawsuit was filed in 1997, a court injunction has stopped the
government from enforcing its policy.

"The court ruling makes clear that physicians should be comfortable in
discussing any therapeutic options with their patients, including medical
marijuana," said Jack Lewin, MD, CEO of the California Medical Assn., which
filed a friend-of-the-court brief in the case arguing the federal rule
censored physician's speech and jeopardized patient care.

"This ruling gives doctors a reason to breathe easier," Dr. Lewin said.

What Physicians Can Say

While doctors can talk about the issues with patients, they need to be
careful that they don't cross a line and discuss anything that could be
considered distribution of the drug, Boyd and others said.

Discussions about how marijuana could potentially help stimulate appetite
or reduce pain, based on what physicians have seen in other patients or
heard from colleagues, is well within the bounds of free speech.

So is entering a discussion into the patient's medical record or putting it
into another form of writing in the way that a doctor would document other
patient discussions or physician recommendations.

"Doctors write letters and notes and fill out forms for a million reasons,"
Boyd said. "They may give a patient a note to inform their employer that
they are sick or have a disability. It is not a prescription. A
prescription is an order written to a pharmacy to give a medication."

Notes regarding medical marijuana could be written in the same manner as
notes written for disability or illness.

But if a seriously ill patient says he or she needs a note to get marijuana
from a specific place, that could potentially cross the line into distribution.

"It would be prudent for a doctor to avoid that," Boyd said.

Dr. Conant said one of the reasons he took on the government in this case
is because he believed that the government was letting politics interfere
with what is said between a physician and patient.

"This is not the first time this has happened," he said. "And I don't think
we've put the issue behind us."

In the past, the government censored what doctors could tell patients about
abortion and stopped them from prescribing birth control pills. Court
rulings helped change that.

"Physicians at times need to stand up and say that the government is
wrong," Dr. Conant said.

Dr. Lewin agreed, saying the recent ruling should be a reminder to the
government that it shouldn't try to practice medicine.

"The federal government is acting emotionally rather than logically,
intruding on the physician-patient relationship," he said.

ADDITIONAL INFORMATION:

Case At A Glance

Marcus Conant, MD, et al. v. John P. Walters (formerly Barry R. McCaffrey)
as director of the Office of National Drug Control Policy, et al. Venue:
9th U.S. Circuit Court of Appeals At issue: Whether physicians can discuss
the pros and cons of medical marijuana with their patients without fear of
the government taking away their DEA numbers. Potential impact: Physicians
say the decision protects a physician-patient relationship that allows them
to discuss the pros and cons of medical marijuana with a patient. The
government says the decision jeopardizes the war on drugs.