Appeals court protects doctors who recommend use of marijuana

Wednesday, Oct. 30, 2002 | 9:25 a.m.

CARSON CITY -- An appeals court has ruled that the federal government cannot begin an investigation or take disciplinary action against a doctor who recommends to a patient that he or she should use marijuana for medical purposes.

The 9th U.S. Circuit Court of Appeals in San Francisco held there is a First Amendment right that protects conversations between doctors and their patients.

The case involved physicians in California who make such recommendations to their patients.

Nevada has a similar law. Cecile Crowfoot, administer of the medical marijuana program for the state Department of Agriculture, said a doctor must certify that the patient has one of the diseases listed that the law says marijuana might help. The doctor also certifies that he or she has explained the pros and cons of using marijuana to the patient.

Crowfoot says there are 236 patients across the state who have been issued cards for medical marijuana possession. She said an estimated 200 Nevada doctors have verified that the patients have qualifying diseases and that they have explained the good and bad effects of using marijuana.

Nevada law says a doctor cannot be disciplined by the Nevada State Board of Medical Examiners for signing a patient's request. Nevada law still prohibits the sale and distribution of marijuana.

A person would have to grow his own pot to get his supply in Nevada.

In California doctors were immunized from prosecution under state law for recommending or approving use of marijuana for medical purposes. But federal policy said a doctor who recommends the use of marijuana could lose the right to prescribe controlled substances.

The appeals court said California physicians could not be charged with a crime for merely recommending the use of marijuana. The doctor is not responsible for any illegal conduct a patient might engage in after leaving the office, the court said.

Chief Judge Mary Schroeder, who wrote the decision, said the policy of the government aimed at doctors strikes at the core of First Amendment interests of physicians and patients.

The federal government, according to the court, "seeks to justify its policy by claiming that a doctor's recommendation of marijuana may encourage illegal conduct by the patient." This argument, Schroeder wrote, has already been rejected by the U.S. Supreme Court in another case.

The court said its decision does not interfere with the government's effort to stop the sale or distribution of marijuana in California. The government has shut down shops in California that tried to sell drug.

Nevadans will vote next week on a proposed constitutional amendment to allow up to 3 ounces of marijuana without being charged with a crime.