Oregon Medical Association Guidelines
(Adopted April 25, 1999)

When Patients Want To Use Marijuana For Medical Purposes:
How Physicians Should Respond

Oregon's medical marijuana law was passed by the voters in November, 1998. It exempts certain persons from state criminal penalties for the production, possession, delivery, or administration of marijuana or paraphernalia used to administer marijuana provided they comply with very detailed requirements. Oregon's law is unique in that the state health division is charged with creating a means by which candidates for exemption from prosecution are given registry identification cards so that state law enforcement officials can readily determine their exempt status. Oregon physicians figure into the law because unless the patient has the required "written documentation" from their "attending physician," they are not eligible for this exemption.

This law poses several important legal dilemmas for members. Physicians who comply cannot be prosecuted criminally by state authorities. However, nothing prevents the federal government through the Drug Enforcement Administration from taking action against physicians for "aiding and abetting" the commission of a federal crime. To underscore the seriousness of this situation, consider this February 27, 1997 response of federal officials to a request from the California Medical Association regarding that state's medical marijuana law:

"...Physicians may not intentionally provide their patients with oral or written statements in order to obtain controlled substances in violation of federal law. Physicians who do so risk revocation of their DEA prescription authority, criminal prosecution, and exclusion from participation in Medicare, and Medicaid programs."

In a March 8, 1999 letter, OMA asked these officials for clarification of the above statement. OMA's letter poses the following question:

"Do statements in patient charts that the person has been diagnosed with a debilitating medical condition and that the use of medical marijuana may mitigate the symptoms or effects of the debilitating medical condition constitute written statements in order to enable [their patients] to obtain controlled substances in violation of federal law?"

OMA has not yet received a response. Pending that response, physicians are advised that they are at risk unless they limit their activities to those identified below.

A second and equally serious dilemma arises when physicians provide their patients with a discussion of the possible risks and benefits associated with the use of marijuana for medical purposes. To the extent that such discussions occur, physicians need to know that nothing in the law prevents patients, or their legal representatives if they die, from bringing claims against physicians alleging failure to disclose all the viable alternatives and material risks of using medical marijuana. This is particularly important because patients must be suffering from a "debilitating medical condition" at the time the discussions occur. Patients with already compromised physical conditions make riskier candidates. If they suffer a bad outcome coincidental to their use of medical marijuana, they may try to blame their "attending physician."

1. Physicians are not obligated to participate.
2. If the patient requests it, physicians should do ONLY the following things in order for their patients to benefit from Oregon's law permitting medical use of marijuana.
1. Determine whether the patient suffers from a "debilitating medical condition." If the patient does not qualify this should be documented in the patient's chart.
2. If they do suffer from a debilitating medical condition, document that fact in the patient's chart.
3. Determine whether the use of medical marijuana "may mitigate symptoms or effects of the person's debilitating medical condition." If you tell the patient that its use may not mitigate symptoms or effects, then this should be documented in the patient's chart.
4. If you tell the patient that "use of medical marijuana may mitigate symptoms or effects", document that this conversation occurred in the patient's chart.
5. Perform a PARQ conference and document it in the patient's chart.
3. Physicians SHOULD AVOID any of the following:
1. AVOID providing your patients with information about where they can obtain medical marijuana.
2. AVOID talking with anyone by telephone or in person who offers to help your patient obtain marijuana.
3. AVOID writing anything in support of the patient's desire for medical marijuana other than that the patient suffers a "debilitating medical condition" and that "medical use of marijuana may mitigate symptoms and effects..."
4. AVOID writing anywhere but in the patient's chart. This means not supplying the patient with a letter or form signed by the physician.
5. ABOVE ALL AVOID writing this information on a prescription.

As long as the discussions and documentation concerning the use of medical marijuana occur just between a physician and a patient in a medical office setting and the information conveyed is no more than that which is required to fulfill the physician's part in the patient's process of gaining exemption from criminal prosecution, OMA believes that the risk of federal intervention is minimized. This is because the foregoing actions are consistent with traditional physician functions of diagnosing, and documenting advice and counsel. They also meet the definition of the law's requirement of "written documentation " of the patient's debilitating medical condition. At the same time they are inconsistent with the actions described in the federal government's letter to the California Medical Association. However, unless and until the federal government provides OMA with a response to its March 8, 1999 letter seeking clarification of the government's position on Oregon's law, no physician is fully protected.

(Adopted by the Oregon Medical Association House of Delegates, April 25, 1999)