Date: Thu, 7 Nov 1996 20:13:46 -0500 (EST) Sender: [d r ctalk] at [drcnet.org] To: Multiple recipients of list <[d r ctalk] at [drcnet.org]> Subject: The Feds action against 215 (legal opinion - long) Hey all, The feds have said they might try to prosecute doctors for prescribing marijuana under CA's new 215 Compassionate Use Initiative. This is the opinion of an excellent San Francisco lawyer, Allen Hopper. He invites legal comment and criticism - his email address ([l--z--o] at [igc.apc.org]). peace, fire ========================================= From: [l--z--o] at [surf.com] November 4, 1996 Dave Fratello Communications Director, Californians for Medical Rights 1250 6th St. #202 Santa Monica, CA 90401 Dear Mr. Fratello, I was contacted by Rick Doblin at the Multidisciplinary Association for Psychedelic Studies (MAPS) regarding recent public statements by members of the Clinton administration threatening federal action against California doctors who, in compliance with Proposition 215, recommend that patients use marijuana to relieve or alleviate symptoms arising from a specific medical condition. Mr. Doblin asked me to research and analyze the legal basis for potential retaliatory action by the federal authorities and write the first draft of a standard recommendation form that would comply with Proposition 215 without exposing physicians to federal retaliation. This letter relates the results of this initial research. The opinions expressed in this letter are based upon a limited amount of research into the federal government's ability to press criminal charges against, or revoke the controlled substance registration of, California doctors who recommend that patients use marijuana, and upon my general knowledge of the relevant law as an attorney whose practice focuses upon criminal defense & appeals and civil rights. Further research regarding the specific statutes at issue here, as well as any other possible sources of federal government authority over the actions of California physicians, would be necessary to render a complete analysis and opinion. Perhaps not coincidentally, the same day that various Clinton administration officials made public statements condemning Proposition 215 and threatening retaliation against doctors, a front page article on this very issue appeared in the Daily Journal, the legal daily newspaper here in San Francisco (copy enclosed). In addition to researching the relevant law, I contacted the reporter who wrote this story, as well as one of his primary sources, Professor Marsha Cohen of Hastings School of the Law. The only possible statutory basis for federal criminal action against doctors would be the Controlled Substances Act (discussed below). The only statutory basis I have been able to locate for any other retaliation by the federal government against doctors in this context relates to the ability to prescribe scheduled drugs. Federal law requires government authorization to do so, as described in several sections of title 21 of the United States Code, 21 U.S.C.  823, 824, 828 and 829. These sections provide that only doctors who are registered with the U.S. Attorney General's office may prescribe Schedule II drugs. These sections further provide that this "registration" may be suspended or revoked by the Attorney General (who has delegated this authority to the D.E.A.) in certain specific situations. Of these specified situations, only two appear relevant here: 1) 21 U.S.C.  824(a)(2) provides as grounds for suspension or revocation, "[the doctor] has been convicted of a felony under [the Controlled Substances Act] or any other [state or federal law] relating to any substance defined in this subchapter as a controlled substance." 2) 21 U.S.C.  824(a)(4) provides as grounds for suspension or revocation, "[the doctor] has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined under such section." Professor Cohen, one of the sources relied upon by the Daily Journal article, stated to me that her opinion that the government could revoke a doctor's registration under these circumstances was based upon number 1), above. When I asked what violation of the Controlled Substances Act would be committed by a doctor recommending marijuana use, Professor Cohen replied "conspiracy to use or purchase" a controlled substance. (While marijuana is decriminalized in California, such that simple possession of an ounce or less may be charged as a simple infraction, and in no event can be more than a misdemeanor, under federal law, possession of even the smallest amount of marijuana is a felony). While I cannot rule out the possibility that the D.E.A. might try to use such a theory, it is my opinion that they would have virtually no chance of success. They would first need to obtain a conviction in federal court; I know of no case in which a conspiracy charge has been sustained on such completely inadequate facts. In my opinion, a doctor stating that in his or her professional and medical opinion, marijuana would be beneficial for a specific patient's condition, without suggesting a source, has not agreed, implicitly or explicitly, with any other person to engage in any illegal activity; that is the crux of any conspiracy charge.1 Though not cited by Professor Cohen, nor anyone else as far as I am aware, situation number 2), above, might be more problematic. I can imagine the D.E.A. arguing that registration is "inconsistent with the public interest" when the registered physician has recommended that patients use marijuana. The "public interest" in this context is defined in 21 U.S.C.  823(b), which lists 5 specific factors to be determined: 1) maintenance of effective control against diversion of particular controlled substances into other than legitimate medical, scientific, and industrial channels; 2) compliance with applicable State and local law; 3) prior conviction record of applicant under Federal or State laws relating to the manufacture, distribution, or dispensing of such substances; 4) past experience in the distribution of controlled substances; and 5) such other factors as may be relevant to and consistent with the public health and safety. Of these, only numbers 1) and 5) seem to be relevant. I would argue that number 1) is intended to protect the public against doctors who prescribe controlled substances without sufficient or legitimate cause. This is distinguishable on several bases from a doctor recommending the use of marijuana. First, a prescription is an instruction to a registered distributor to release to a patient the controlled substance; the distributor is forbidden by federal law from releasing such a substance to anyone who does not have a prescription from a registered doctor or pharmacist. An improper prescription therefore truly constitutes "diversion" of the substance from a legitimate and legally recognized source, the registered distributor, to an "illegitimate channel." This furthermore constitutes an obvious and direct use of the doctor's ability to prescribe controlled substances to further illegitimate use of the substance. By contrast, a doctor's professional opinion regarding the efficacy of marijuana, or even a recommendation to a patient to try marijuana if they can obtain it, does not instruct a registered distributor of controlled substances to release the drug to the patient. Such a recommendation does not involve or rely upon the doctor's license or ability to prescribe controlled substances; there is no nexus between the doctor's registration and the recommendation sufficient to warrant suspension or revocation. As to number 5), above, this appears to be a sort of "catch-all" provision. That provision must be interpreted in a manner consistent with the intent of the statutory scheme as well as the First and Fourteenth Amendments. The Due Process clause of the Fourteenth Amendment requires that doctors be able to discern from the statutory language exactly what conduct is prohibited, and the First Amendment requires that statutes limiting the expression of opinions be narrowly construed so as to prohibit only speech that is not constitutionally protected. The First Amendment issues here really go to the heart of the matter. I strongly believe that the federal government cannot legally prohibit a doctor from stating his opinion as to whether or not a particular drug or treatment would be helpful; the implementation of Proposition 215 and the possible reliance upon that doctor's opinion in a subsequent criminal proceeding against the patient cannot eliminate the protection afforded by the constitution. I am virtually certain that there is no current federal law to the contrary, and I further believe that any attempt to construe federal law otherwise would be rejected by the courts. In this context, and particularly in light of the fact that, if Proposition 215 is adopted by the voters, the People of the State of California have determined that it is in the public interest to permit medicinal use of marijuana, I believe that any attempt to use the "public interest" provisions of the above statutes to punish doctors by revoking their controlled substance registration privileges would be arbitrary and capricious, and would also be rejected by the courts.2 I would further note that the statutory scheme discussed above does not allow the D.E.A. to arbitrarily revoke a doctor's controlled substance registration. 21 U.S.C.  823(c) requires the government to issue and serve an order to show cause containing a statement of the basis for revocation, and the doctor is permitted a full administrative hearing in compliance with the Administrative Procedures Act. The results of any such proceedings would be appealable in federal court. Finally, I believe that a standardized form for doctors to use might be beneficial in responding to any eventual federal government action taken against the doctor. I believe that language similar to that in the attached "Proposed Standard Recommendation Form," might be beneficial. I submit the proposed language, however, with the following caveats: 1) I have conducted only limited research into this issue, and this language should be considered only a preliminary opinion based upon that limited research. I would strongly recommend additional research by myself or other attorneys before suggesting this language to physicians. At this point, I cannot say that it is my professional opinion that this or similar language would protect a physician from federal government action. 2) Any written recommendation might help to protect a doctor recommending the use of marijuana in the event of federal action against thedoctor, because there can be no misinterpretation or mistake about exactly what the doctor said. By the same token, however,memorializing the recommendation might make a doctor more susceptible to federal action in that the government would have irrefutable evidence that a recommendation to use marijuana was indeed made by the doctor. This is an element that the government would have the burden of establishing in any action against the doctor, and a writtenre commendation would lessen the government's overall burden. (I assume that this concern played some role in the decision by drafters of Proposition 215 to permit oral recommendations). As a practical matter, however, if a physician has recommended that a patient try marijuana, denying that any such recommendation even took place would probably be unrealistic, and would result in the loss of the patient's defense to criminal charges under Prop. 215. I believe that in most cases, written proof as to exactly what the doctor recommended would be beneficial. 3) This language was drafted with the narrow intention of providing a recommendation that will qualify under Proposition 215 while at the same time limiting possible exposure of the physician to retaliatory action by the federal government. A final version of a standardized recommendation form should obviously consider other factors as well, such as malpractice liability. Possible additional language might provide a time limit after which the recommendation is no longer valid, as opposed to allowing a single recommendation to last forever. Physicians may also wish to condition their recommendation upon the patient reporting back for follow-up consultation, to assess efficacy, side effects, etc. Finally, the proposed language is intended to comply only with Proposition 215, not to provide a broader "medical necessity" defense. Physicians may wish to add, in appropriate cases, language indicating that marijuana is a drug of last resort, and listing other drugs that have beentried unsuccessfully. You will notice that Proposition 215 is not referred to at all in the proposed recommendation language. I believe that a doctor's exposure to retaliatory action by the federal government may be less if the recommendation is more an expression of a professional medical opinion than an instruction or encouragement to the patient to violate existing drug laws. Explicit reference to Proposition 215 might be construed as telling the patient that the doctor's intent is to provide a defense for the patient from criminal prosecution; this in turn might result in the recommendation being viewed less as opinion and more as instruction or encouragement. Since compliance with Proposition 215 does not require an explicit reference to the Proposition, there is no reason to increase the potential exposure by including such an explicit reference. Please call me if you have any questions regarding this letter, or if you wish to discuss these opinions further. I would welcome the opportunity to conduct further research into this issue. I am personally and professionally offended that the federal government would resort to the scare tactics evidenced by the latest flurry of pronouncements and threats of dire consequences to doctors for providing their professional opinions as to the efficacy of a particular treatment. Very Truly Yours, M. Allen Hopper Attorney at Law Proposed Standard Recommendation Form To: [patient's name] It is my medical opinion that your health may benefit from the use of marijuana in the treatment of [condition], and, from a purely medical perspective, I therefore deem such use appropriate and recommend such use for treatment of your condition. This is not a formal prescription, but is merely a statement of my professional opinion that use of marijuana could be medically beneficial in your case. You should understand that marijuana is considered a Schedule I drug by the federal government, and that under federal law possession, use, cultivation and sale of marijuana is illegal. While medical necessity might sometimes provide a defense to violation of federal criminal laws, I do not know if this would apply to your situation. Because of the uncertainty of the application of federal law to the facts of your situation, I cannot suggest to you where you might obtain marijuana, and I do not by this recommendation intend to encourage you to engage in illegal activity. I am only providing you with my opinion, based upon my understanding of the currently available medical and scientific evidence, of the potential efficacy of marijuana use for your condition. Date: Signed: [Doctor's name, address, phone number] 1 Note, however, that if a doctor, through prior arrangement with a Buyer's Club, recommended that patients obtain marijuana from that Buyer's Club, a stronger case for conspiracy might be made. Further research in this regard would be necessary for me to render an opinion as to whether these circumstances could result in a viable conspiracy charge. 2 Of course, Congress could amend the language of the statutes to explicitly add a Proposition 215-type recommendation as one of the bases for revoking a doctor's controlled substance registration. Further research is required to determine whether or not such a legislative change would violate the constitution. ====================================== ------------------------------------------------ http://www.erowid.com Society often forgives the criminal; it never forgives the dreamer. - - - Oscar Wilde (1891) - - -