- Posted by Laura Croft, Esq
- On April 11, 2017
- California, cannabis law, doctor, MCRSA, Medical Cannabis Recommendation, Medical Marijuana, physician, Prop 215, Prop 64, regulation
A medical Cannabis recommendation is legally required for all patients who are medicating with Cannabis in California. You cannot get a medial Cannabis “prescription” as pharmacies do not carry Cannabis because it is deemed a Schedule 1 substance along the lines of ecstasy and LSD, with no purported medical use, and illegal on a federal level. Rather than prescribing marijuana, healthcare providers “recommend” medical Cannabis through a state regulated legal process. To get a medical Cannabis recommendation, you must first be evaluated by a physician, who will discuss your condition and help determine if medical Cannabis is a good option to help with your ailment.
Proposition 215, the California Compassionate Use Act, was enacted by the voters and took effect on November 6, 1996 as California Health & Safety Code 11362.5. The law makes it legal for patients and their designated primary caregivers to possess and cultivate Cannabis for their personal medical use given the recommendation or approval by a California-licensed physician.
Prop. 215 lists cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which Cannabis provides relief, as acceptable reasons for medical recommendation. Physicians recognize the profound benefits of Cannabis for a myriad of conditions and have recommended Cannabis for hundreds of indications, ranging from post-traumatic stress and depression to opioid abuse and seizures.
Prop. 215 applies to “attending physicians,” including Medical Doctor (MD); Osteopathic Physician (DO); Naturopathic Physician (ND) and Psychiatrists who are licensed and in good standing to practice in California. Health and Safety Code section 11362.7.
HS 11362.7. For purposes of this article, the following definitions shall apply:
(a) “Attending physician” means an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient’s medical record the physician’s assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate.
MCRSA SB 643 further states:
Section 2241.5 of the Business and Professions Code is amended to read:
(a) A physician and surgeon may prescribe for, or dispense or administer to, a person under his or her treatment for a medical condition dangerous drugs or prescription controlled substances for the treatment of pain or a condition causing pain, including, but not limited to, intractable pain.
(b) No physician and surgeon shall be subject to disciplinary action for prescribing, dispensing, or administering dangerous drugs or prescription controlled substances in accordance with this section.
California law and the US Supreme Court (Conant v. McCaffrey, 2000) state that a doctor cannot be punished for recommending medical Cannabis and your medical information is confidential and may be protected under Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Per Prop 215 and MCRSA, physicians permitted to recommend medical Cannabis does not apply to chiropractors, herbal therapists, and nurses. However, there is wide spread acceptance that nurse practitioners and other healthcare providers are capable of writing medical marijuana recommendations. As of February 1, 2017, the medical Cannabis division of the California Department of Public Health, stated that only physicians can recommend medical Cannabis.
Do I still need a doctor’s note now that Prop. 64 has passed?
It is a good idea. Under the Adult Use Marijuana Act, which passed on November 8, 2016, it will be legal to possess under an ounce of Cannabis without a doctor’s recommendation, but you will not be able to purchase Cannabis in stores without a doctor’s recommendation until 2018.
Under Prop. 64, Californians can grow up to 6 plants for their personal use. Local jurisdictions may ban outdoor cultivation, but may not ban growing 6 plants indoors or in a “secure” location (they can, however, “reasonably regulate” it). Patients with a doctor’s recommendation can still grow more plants if needed, provided their local jurisdictions will allow it.
Can a nurse or other healthcare provider recommend Cannabis in light of Prop 64?
A recommendation from a nurse or other healthcare provider would not fall under Prop 215, SB420 or MCRSA because the recommendation is not from an “attending physician” and would be deemed recreational under Prop 64 and not medical in nature. As long as the use falls under the parameters of Prop 64, the consumer would be in compliance, but they would have to wait until until 2018 when retail licenses are issued for recreational shops and they cannot grow more than the 6-plant limit in Prop. 64.
Please contact CannaBusinessLaw for expert assistance in compliance with Cannabis licensing, permitting and the application process relating to commercial Cannabis in California.