PART 3: PHYSICIANS AND PATIENTS
This is the third and final article of the three-part series that addresses the new laws under the Medical Marijuana Regulation & Safety Act (MMRSA). If you haven’t already read the article on dispensaries and deliveries then go check it out here. This article will highlight some of the new laws for physicians and patients under MMRSA.
Recommendations and Identification Cards
The Compassionate Use Act of 1996 (also known as Prop 215), which is still in effect, states that seriously ill Californians have the right to obtain and use marijuana for medical purposes where medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of medical marijuana. The physician must keep confidential the identifying names of patients and caregivers and the medical conditions for the recommendation of medical marijuana.
Recommendations must come from an attending physician. Patients can also obtain a state identification card. Both the recommendation and ID card must be renewed on an annual basis. Primary caregivers are also eligible to have an ID card. A primary caregiver is defined as a person designated by a qualified patient who has consistently assumed responsibility for the housing, health, or safety of the patient.
Obligatory Warning: Marijuana is still a Schedule I drug according to the federal Controlled Substances Act. Activity related to cannabis use is subject to federal prosecution, regardless of the protections provided by state law.
Patient and Caregiver Cultivation
The new commercial cultivation regulations I outlined here do not apply to qualifying patients engaged in personal cultivation if the cultivation area does not exceed 100 square feet and if the qualifying patient does not sell, distribute, donate, or provide marijuana to any other person or entity. The regulations also do not apply to designated primary caregivers growing for qualifying patients if the cultivation area does not exceed 500 square feet; he or she cultivates marijuana exclusively for the personal medical use of no more than 5 specified qualified patients for whom he or she is the primary caregiver; and he or she does not receive remuneration (payment) for these activities.
Patients are allowed to possess whatever amount of marijuana they need for their own medical use. Patients can be exempted from the limits if their physician specifically states that they need more for their own personal use. However, patients have been arrested for exceeding guidelines for cultivation and/or possession of a half-pound (8 oz.) of processed marijuana per patient.
In the California Supreme Court ruling of People v. Kelly (2010), the court held that patients cannot be prosecuted simply for exceeding the possession limits. However, patients can be arrested and forced to defend themselves as having had an amount consistent with their personal medical needs.
The Medical Board of California is directed to make a priority the investigation and prosecution of physicians and surgeons who repeatedly recommended excessive medical marijuana to patients or who recommend medical marijuana to patients without a good faith examination. The recommending physician is to be the patient’s “attending physician” as defined in Health & Safety Code Section 11362.7(a). Although this provision is nothing new, we may be seeing it enforced more than ever. Doctors who provide recommendations via the internet or video conference to one-time patients may be in danger of losing their license!
The Medical Board will also consult with the California Center for Medicinal Cannabis Research on whether and/or how to change guidelines for medical marijuana recommendations. Patients claiming “insomnia” or “general pain” may no longer receive a recommendation as guidelines become stricter.
Physicians Cannot Profit from MMJ Businesses
Physicians who recommend medical marijuana to patients cannot accept, solicit, or offer remuneration to or from a licensed facility in which they or a family member have a financial interest. We may see this law being enforced against doctors who are available through virtual delivery and dispensary services.
Physician advertisements must include a warning notice that marijuana is still a federal Schedule One substance and that activity related to marijuana use is subject to federal prosecution, regardless of the protections provided by state law.
Interested in the business? California Cannabis Law Group provides consultations to individuals and companies looking to transition into the medical marijuana industry or who wish to prepare their business for recreational use if approved by the voters in the upcoming election. Contact us today to learn more.