The “Victory” of Raich: what patients have won

7/27/08
Dr Frank Lucido's Blog: PotShots from the Bully Pulpit
or: Everyone’s Entitled to My Opinion

The “Victory” of Raich
Medical Cannabis Demystified:

What individual patients have won; and why some are still getting hurt
What patients need in a Recommendation

Declare Victory,
Consolidate Our Gains,
Act Cautiously and Responsibly: Best Practice Standards Likely to Be the Safest


The Victory of Raich
In spite of the unfortunate Supreme Court decision in Gonzales v. Raich, most individual medical cannabis patients have already won the larger war, at least in California. And Angel Raich and Diane Monson, two courageous patients, and patients everywhere, had everything to win, and nothing to lose in the Supreme Court. An adverse decision brings us back to the original co-existing conflict: Medical cannabis is legal under state law, and illegal under federal law.

To his credit, former California Attorney General, Bill Lockyer, stated immediately after the 6/6/05 Supreme Court ruling:
"Today's ruling does not overturn California law permitting the use of medical marijuana…Although I am disappointed in the outcome of today's decision, legitimate medical marijuana patients in California must know that state and federal laws are no different today than they were yesterday.” http://caag.state.ca.us/newsalerts/2005/05-040.htm

And after Angel lost again on appeal in March 2007, current California Attorney General Jerry Brown concluded that state law hasn’t changed.

And in another victory, in November, 2004, even a red state, Montana, voted overwhelmingly for medical cannabis (winning by a greater margin than George Bush!). And in January, 2006, the Rhode Island legislature passed a medical cannabis law overwhelmingly despite the cruel veto of its governor. The House override vote was 59-13!




Patient Advocacy and Voter Power: Eventually, We Are All Patients
The people will also win the rest of the war, piece by piece. Politicians will catch up with the vast majority of the voters in this country who want sick patients to have access to this safe and effective medicine. Remember, we are all getting older. Even the dying Supreme Court Justice Renquist voted with the minority in our favor in Raich (along with Justices Sandra Day O’Connor and Clarence Thomas).

Even in the majority opinion against Raich and Monson, the Supreme Court said:
"The case is made difficult by respondents' strong arguments that
they will suffer irreparable harm because, despite a congressional
finding to the contrary, marijuana does have valid therapeutic
purposes.”
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-1454


And the federal government’s own Solicitor General (when one of the Supreme Court Justices asked about what would happen to sick patients if the Court were to rule against them) downplayed “the unlikely step of bringing the prosecution in the first place.”

With the public, and even the Supreme Court, watching, the feds know their actions are being scrutinized. Already, they are forced to explain their continued raids on medical cannabis dispensaries as “not going after patients”. It is clear that the DEA cannot afford another embarrassing fiasco, such as occurred when they restrained a paraplegic woman to her bed in their outrageous raid on Wo/Men's Alliance for Medical Marijuana in Santa Cruz. (The San Jose Chief of Police was so disgusted that he stopped city cooperation with the DEA.)


DEA’s Indirect Attack on Patients: Confiscate Their Medicine, Attack Their Sources of Medicine

But while individual legitimate patients will have relative safety, the source of medicine for the majority of these sick patients is still being attacked. Almost 12 years after the passage of Prop 215, dispensaries are still being shut down, medicinal plants are uprooted, medicine is confiscated, people are put in jail, and some are serving prison sentences for growing and distributing the needed medicine.

This renewed attack comes with a shadowy collaboration between the DEA and rogue elements of local law enforcement working against the clear mandate of the people. It’s bad enough that they are working for the feds against state law while accepting state or county money, but in addition they show embarrassingly little knowledge of the law. They also have NO knowledge of medicine, and make sweepingly inaccurate or misleading statements to the press.


Battle-lines Being Drawn
DEA and Local Police Collusion: San Francisco, San Diego, Los Angeles, etc.

The “cannabis dispensary” is one place where the battle-lines are being drawn by the DEA.

The DEA has been using the Raich decision to resume their intellectually and morally bankrupt war against medical cannabis patients by proxy, by attacking dispensaries and growers of the needed medicine, especially those they can stigmatize as “profiteers” (as if that was illegal in the age of Halliburton, Big Oil and Big Pharma!)

On June 22, 2005, 16 days after the Raich decision, the DEA, with apparent collusion by SFPD, raided 3 dispensaries in San Francisco, arresting 19 people, and shutting off access for many sick patients. They justified these raids by claiming dispensaries were involved in "money laundering and international bulk cash smuggling."

And in July 2006, the District Attorney of San Diego County, also in collusion with the DEA, effectively shut down all dispensaries in San Diego. And, as could be predicted, has succeeded in hurting the sickest patients the most, forcing them to go to the black market, where safety and quality may be questionable, or do without and suffer unnecessarily.

More recently, Los Angeles Police have colluded with the DEA in attacks on dispensaries, even confiscating assets of the Berkeley Patients Group, one of the most ethical of all patient groups.

Dispensaries are being accused of “money laundering” for paying their bills from their business checking accounts (what in other businesses would be called good business practice!).

In addition, federal and/or local officials appear to have initiated investigations of doctors, in apparent violation of Federal Judges orders in Conant v. Walters.
See: DEA loses round in Denney lawsuit
http://www.medicalmarijuanaofamerica.com/content/view/129/2/


The Sickest Are Hurt the Most
When safe access to medical cannabis is denied, it's the sickest who suffer the most.
The non-medical user has always known where to obtain marijuana.

Dispensaries will always serve an important function.
(See my newsletter “Blessed Are the Caregivers” at:
http://www.medboardwatch.com/wb/pages/newsletter-july-2007.php )

It is clear that growers and dispensaries are necessary links to safe access for most patients, who are too sick to grow their own medicine. Most patients cannot grow their own medicine. It is not easy, and most don’t have a green thumb. Of course, it would be best if patients could grow their own:
They would know the source of the medicine and know their medicine is additive-free.
But patients who are sick should not have to grow their own cannabis.


I will be monitoring the situation closely for MedicalBoardWatch.com.
I cannot, and do not, aid and abet patients in obtaining medical cannabis. It is already common knowledge where dispensaries are found- thanks to the publicity generated by the actions of the DEA, local law enforcement, the press, and patient advocacy groups, such as California NORML (CANORML.org) or the Patient ID Center (formerly known as the Oakland Cannabis Buyer’s Cooperative).

With this in mind, I believe there will different spheres of “relative safety” for those adhering to state laws.

For instance, individual legitimate patients who grow their own medicine may likely have the most “relative protection.” If they act responsibly, have good documentation, and grow reasonable quantities for themselves they will likely have the most safety from the federal government. Caregivers who grow for a few patients may also be somewhat protected, although less so the more medicine that is grown.



SAFETY IS RELATIVE

Disclaimer:
I am not an attorney.
Most of the following is my opinion based on my 38 years in medicine, and over 12 years of medical-legal consulting as an expert witness- both in malpractice cases, and as a medical cannabis consultant.
When I make my comments regarding “safety” or “protection," this will necessarily mean “relative safety” or “relative protection.”

What follows is my vision of the hierarchy of “relative protection” possible for the various participants in the California Compassionate Use Act of 1996 (Prop 215) or California Health and Safety Code 11362.5, based on risks from a combination of federal law and state law.


MOST PROTECTED
Doctors are uniquely protected from federal threat when making appropriate recommendations, all the way to the Supreme Court, by Conant V. Walters,
as long as they do not aid and abet a patient in obtaining cannabis.
Legitimate patients should avoid doctors who cross this line. (More on this in future postings).
(http://www.medboardwatch.com/conant-vs-walters-text-version.htm for text of Conant v. Walters, and: http://drugpolicy.org/marijuana/medical/challenges/cases/conant/index.cfm
for commentary on what physicians CAN and CANNOT do.)


My 2005 survey on physicians practice standards can be found at: http://www.medboardwatch.com/survey.htm



NEXT MOST PROTECTED
Individual patients who grow a few plants are unlikely to be bothered by the Federal government, if one can believe the Solicitor General’s statement to the Supreme Court on November 29, 2004.


MEDIUM PROTECTED
Smaller scale grower/caregiver collectives who have a limited number of patients and who make little or no money are less likely to be federal targets.
These will be, by definition, the most altruistic, and will, like WAMM (Wo/Men’s Alliance for Medical Marijuana, www.wamm.org ), be another embarrassing target for the DEA to bust.



LEAST PROTECTED: Dispensaries and Growers
As I mentioned above, collectives, growers, and dispensaries are necessary links to safe access for most patients, who are either too sick to grow their own medicine, or who don’t have the “green thumb” skills necessary.

The source of patients medicine, growers and dispensaries, is one area where the battle-lines are being drawn. Least protected will be the larger dispensaries/growers, those most visible, and those with the loosest standards or business ethics. Those who can be easily accused of “profiteering,” whether true or not, are perhaps the most vulnerable.


Expect more DEA collusion with local law enforcement
I am closely following the situation of local law enforcement’s shameful collusion with the DEA when dispensaries are raided. It is clear that these are “rogue” actors who are abrogating their responsibility to follow state and local law. http://www.safeaccessnow.org/article.php?id=2035
As former California Attorney General Bill Lockyer stated: "both generally and in the specific context of interpreting the Compassionate Use Act -- it is not the province of state courts to enforce federal laws."


Solidify Our Gains
While this battle plays out between the DEA and the dispensaries, my advice is to solidify our gains. We must support the most protective standards for patients and their caregivers, and doctors, to feel safe under state law.

Since the free market in a capitalistic system, whether legal or illegal, will attract a wide spectrum of ethics and business standards, we will occasionally see some pretty low standards. And almost ALL of reported “problems” are not a problem of cannabis as a medicine, but are invariably related to the drug laws and the unwillingness of the federal government to allow the state to regulate cannabis as an agricultural and medical product.

One thing worse than capitalism: unregulated capitalism, or “unbridaled capitalism."


Act Cautiously and Responsibly:
Best Practice Standards Likely to Be the Safest
I suggest that patients be cautious of who they associate with, whether that be a dispensary or a doctor.


Many Questions, A Few Answers

What is the ethical behavior?
How important is this?
What should one look for in a doctor?
Aren’t all doctors alike?
How important is credibility?
Who reviews standards? Who can we trust?
What standards are most appropriate and defensible?

I am working with the most ethical doctors and patient advocates to try to answer some of these questions. Through MedicalBoardWatch, I have let the Medical Board know that is it being observed and reported on. I have published my standards in the Spring 2004 issue of O’Shaughnessy’s, the Journal of the Society of Cannabis Clinicians:

“Implementation of the Compassionate Use Act In a Family Medical Practice:
Seven Years' Clinical Experience”
By Frank H. Lucido, MD, with Mariavittoria Mangini, PhD, FNP
found at:
http://www.ccrmg.org/journal/04spr/medicalpractice.html
and re-posted on my website:
http://www.medboardwatch.com/implementation-of-7-year-plan.htm

The Medical Board subsequently published their standards, which are comparable, at:
http://www.medbd.ca.gov/Medical_Marijuana.htm

There can be reasonable differences of opinion about what is the best way to practice medicine. But I believe that in this age of the “drug war”, where elements of law enforcement have had an institutional bias against cannabis since the 1930’s, it is better to be more protective of patients, and not less, as some of the “low standards” or “fig-leaf” clinics have been doing.

I encourage patients to think about how a reasonable doctor might assess their serious illness, and what those records might look like, and to make sure to discuss their serious illness or symptoms with their doctor before obtaining a recommendation from the “fig leaf” clinics.


Things to avoid:
-Quick-in, quick-out, minimalist, no medical records required clinics
(the 3-15 minute “fig-leaf” doctor encounter)
-Clinics associated with dispensaries (A major “bozo no-no,” which loses for the doctor, their employees, and perhaps their patients the full protection of the Conant decision)
-Flashy advertising (I suggest to patients: Question all advertising, even mine.)


Two factors make it more difficult for an attorney or medical-legal expert to defend doctors investigated for recommending cannabis:
1. Inadequate documentation of diagnosis.
2. Providing cannabis recommendations in connection with dispensaries or clinics associated with dispensaries, as discussed above.
Although it may be possible to defend patients in the first situation (at considerable legal expense), there is little or no defense for doctors who cross refer with dispensaries, unethically increasing business at the expense of doctors with more protective standards.

Choosing a Consultant
How does one choose a doctor for a medical cannabis consultation?
Here are some qualities that I would suggest patients look for:
1. Experience: Look for physicians with substantial experience. They should have a high level of comfort with medical cannabis- and the medical-legal issues surrounding it.
2. Ability and willingness to testify in court for you should the patient’s medical use of cannabis be questioned.
3. Willingness to confirm the legitimacy of the cannabis recommendation if contacted by law enforcement. This may save the patient considerable legal fees by preventing the need for court testimony.
4. Adequate and accessible medical record keeping, including supporting documentation from other providers. The physician who requires documentation of ongoing care of the patient’s illness by his or her own treating physician can most easily defend that patient to law enforcement.
5. Reputation and Credibility: ask many people in the ethical medical cannabis community who they think are the most credible. Avoid those who make you uncomfortable. Listen to your intuition.


What patients can do to help their doctors (as well as themselves):
1. Have a primary care provider with whom you consult at least once a year regarding the serious illness or symptoms for which you use medical cannabis.
2. Bring records covering the last 12 months to your medical cannabis re-evaluation each year.




Frank H. Lucido MD
Family Practice since 1979
Medical Cannabis Consultation
Expert Witness
2300 Durant Avenue
Berkeley Ca 94704
510.848.0958 (by appointment only)
www.DrFrankLucido.com
(formerly MedicalBoardWatch.com)
www.AIMLegal.org
email: DrFrank@DrLucido.com


Dr. Frank Lucido’s blog:
“Pot Shots from the Bully Pulpit”
http://drfranklucido.blogspot.com/
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