Medical Marijuana in California:
What Constitutes a Legal Physician’s Statement Recommending Cannabis?
Here’s a primer on what constitutes acceptable medical practice standards by the Medical Board of California. If you would like to keep your medical license, it’s a good idea to make sure that your practice meets or exceeds these minimum legal standards. Otherwise, you could find yourself in the midst of a Med Board investigation (an expensive and unpleasant process) and possibly lose your license. Just ask former doctor Alfonzo Jimenez—and read the rather sobering Jimenez Ruling/JimenezRuling.pdf to learn just how seriously they take compliance with an "appropriate standard of care." As long as you ARE practicing with these standards, you have nothing to fear!
Only a licensed Physician or DO can issue a Physician’s Statement Recommending Medical Marijuana to make eligible Patients Legal for Medical Marijuana under Prop 215
Furthermore, a recommendation for medical marijuana is only legally valid if the physician’s standard of care in treating patients meets that set by the Medical Board:
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The California Medical Board has issued Guidelines for Physicians who wish to make these recommendations:
“These accepted standards are the same as any reasonable and prudent physician would follow when recommending or approving any other medication.”
The Medical Board also provides a link to a California Medical Association (CMA) Reference Document:
CMA-OnCall #1315: The Compassionate Use Act, which is updated annually with easy-to-understand “plain English” analysis of the legal issues surrounding Medical Cannabis Recommendations. This “Question and Answer” style guide has information useful for Patients, Employers, Caregivers, Governmental Entities, and of course, Physicians who Recommend Medical Marijuana for their patients, and it references the legal case law as necessary and explains how those rulings affect the issue at hand.
Here’s an example from the document (answering a VERY important question with serious legal ramifications for Doctors!)
27. What if a patient asks me how he or she can obtain cannabis?
Physicians should not provide a patient with the name and address of a cannabis club or other type of cannabis distributor. While physicians may be sympathetic to a patient who cannot otherwise obtain medicinal cannabis, physicians may risk serious sanctions if they direct a patient to a specific cannabis source. Physicians should inform a patient that the physician cannot affirmatively assist the patient in obtaining cannabis.
[if you're wondering, physicians and their staff may not tell a patient how to obtain cannabis *; this is considered ‘aiding and abetting’ as per the Conant decision (which upheld the right of Physicians to discuss and recommend Medical Marijuana to their patients)]
- And, to further clarify what constitutes acceptable practice standards for Physicians who recommend medical marijuana, the Medical Board adopted, as precedent, their entire Mikuriya Decision which very thoroughly outlines what the Medical Board considers to be both acceptable and non-acceptable standards of care.
Finally, physicians may not work for non-physicians, and the vast majority of the “management” or “consulting” groups are questionable—especially when it comes to medical marijuana, where many (if not all of them) are attempts to ‘coverup’ their relationship to dispensaries/pot clubs (which is even worse, as the doctor is then very directly involved in aiding and abetting). The Medical Board’s Action Report Newsletter (Oct 2004) had a great article on the non-physician topic. Here’s an excerpt:
Joan Jerzak (Director of Enforcement) wrote:
The board receives a significant number of complaints alleging corporate practice of medicine, aiding/abetting unlicensed practice of medicine, improper ownership of a clinic, fee splitting and various related issues where physicians are engaging in business practices which are in violation of the Medical Practice Act.
Some unscrupulous non-physicians have preyed upon physicians who are unfamiliar with the complexities of a business, its corporate structure or the corresponding law, then find themselves responding to board inquiries regarding a practice they know little or nothing about.
In most situations it is not appropriate for a physician to be hired by a non-physician. This is illegal. Some physicians believe they can be hired by a layperson as a medical director. This is also illegal.
Many complaints to the board involve small storefront clinics, where a non-physician has purchased an office and the associated medical equipment.
The missing item is a physician with an active license. In this situation, physicians are recruited and paid an hourly wage or salary and may believe that their recruitment was conducted on behalf of a legitimate medical corporation, which does not exist.
When hired into any medical practice, physicians should confirm the owner is a physician or the business is a legitimate medical corporation.
* and just to be clear, THIS IS STILL illegal even if you just give your patients the address of a website for the “non-profit” organization that your marketing director setup that conveniently offers a huge statewide directory of pot clubs that your chain of clinics has arrangements with to accept your in-house patient ID card. Extra shady points for making your bogus “non-profit” and the acronym you chose for it sound suspiciously like the “Physician’s Committee for Responsibility in Medicine, or PCFRM”