Do physicians have a state and federal constitutional defense to any interference from federal authorities for advising patients about medical marijuana?
Yes. A federal appellate court, in a ruling left standing by the Supreme Court in 2002, enjoined the federal government from either revoking a physician's license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government's action is solely the physician's professional recommendations of the use of medical marijuana. - Conant v. Walters, 309 F. 3d 629, 633-634 (9th Cir. 2002), cert. denied, 540 U.S. 946 (2003). As per federal constitutional law, doctor-patient consultations are absolutely protected from federal or state interference or punishment as a matter of the fundamental right to free speech.
What are my responsibilities to my patients who want medical cannabis?
A physician’s professional obligations to prospective medical cannabis patients are no different from those for any other patient. The physician is expected to assess a patient’s medical history and medical condition, and recommend treatment that they think is appropriate.
What must I do to register with the Commission?
Physicians must register in the Physician’s Registry on the Commission’s website and renew every two years. Physicians who register are called “certifying physicians” because they can issue written certifications to their patients to obtain and use medical cannabis. You will need to specify the conditions or diseases that you plan to treat, and any criteria for including or excluding patients.
What are the general legal standards for determining if a patient qualifies for medical cannabis?
You and the patient must have a “bona fide physician-patient relationship.” You must make a determination that the patient's condition is severe, that other medical treatments have been ineffective, and that the patient's symptoms reasonably can be expected to be relieved by the use of medical cannabis, among other requirements.
What is a “bona fide physician-patient relationship?”
Maryland law defines this term. Essentially it is a treatment or counseling relationship between a physician and patient in which the physician reviews the patient’s relevant medical records, completes an in person assessment of the patient’s medical history and current medical condition, creates and maintains medically standardized records, expects to monitor patient progress and takes any medically indicated action to follow up.
Are there conditions that qualify for treatment with medical cannabis?
Yes, if the patient has a chronic or debilitating disease or medical condition that results in being admitted into hospice or receiving palliative care.
If the patient has a chronic or debilitating disease or medical condition that causes (or is receiving treatment for a chronic or debilitating disease or medication condition that causes): cachexia, anorexia, wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms.
If the patient has glaucoma or post-traumatic stress disorder (PTSD).
If I have a patient I think would benefit from medical cannabis, what do I do?
You must be first become a registered healthcare provider. After, if you determine that your patient’s treatment, disease, or medical condition qualifies him or her for medical cannabis, you or your staff will go to the Commission website to issue your patient a “written certification.”
What information will be contained on the written certification?
Patient name, address, date of birth, physician’s name, the date of patient qualification, and medical condition(s). How often should a physician follow-up with a patient? A Physician should direct a patient to follow-up as you think is medically appropriate. At minimum, the physician must perform an in-person, evaluation once every 365 days, with additional evaluation to be performed at the discretion of the physician, to continue to issue a written certification to the patient.
Can a physician revoke a patient’s certification?
Yes, a physician may amend or revoke a certification on any medical grounds, if the patient no longer meets the physician’s inclusion criteria, or the patient now meets the physician’s exclusion criteria. Two examples of exclusion criteria are that the physician suspects that the patient is abusing cannabis or the patient is diverting cannabis to others.
Will the Commission make a list of certifying physicians available to the public?
At this time, the Commission does not have plans to post a list of certifying physicians to the website.
Are the Physician registry and Patient registry linked?
Yes, the MMCC database system links the physician and patient registries through the written certifications. Each patient may only have one written certification and one certifying physician at a time. After 30 days, a patient may seek renewal of the written certification; the renewal certification supersedes the previous written certification. A certifying physician may terminate a written certification.
Does the physician have to be registered as a certifying physician before the patient visit in order to provide a written certification for the patient?
A physician must be registered as a certifying physician before providing a qualifying patient with a written certification. The process for a physician registering with MMCC as a certifying physician can be accomplished on-line in a matter of minutes. The physician will be asked to complete an on-line application with basic information, including name, social security number, business address, e-mail address, telephone number, Maryland Board of Physician (MBP) license number, and controlled dangerous substance (CDS) permit number. The MMCC database system will immediately verify the information submitted and, if the application is complete and the data matches the MBP and CDS records, an e-mail will be sent to the physician. Once the physician responds to the e-mail the registration process is complete.
Does the patient need to be registered before the patient visit in order to obtain a written certification for the patient?
Yes, the patient must register in the Commission’s Patient Registry in order to register before a physician can provide a written certification for the patient. The application process to register with MMCC can be completed on-line. The patient must provide basic information, including name, address, date of birth, an image of a government ID, and a recent picture for ID purposes. MMCC staff will review the application and notify the patient of their unique 25-digit ID registration number
My physician says he won’t register with the Maryland Medical Cannabis Commission to provide me with a written certification because he is afraid he may lose his DEA registration or even be criminally prosecuted.
In December 2014, Congress specifically barred the Department of Justice from spending any funds that interfere in the implementation of various states' medical cannabis programs, and specifically included Maryland. In the only ruling by a high-level federal court regarding physicians recommending medical use of cannabis, the United States Court of Appeals for the Ninth Circuit affirmed an injunction blocking the government from interfering with the First Amendment rights of doctors and patients to speak to each other about medical cannabis, and for a doctor to recommend medical cannabis to their patient.
Are there limits to “the reasons the physician may deny issuing a written certification of medical cannabis” (10.62.03.01A (5))?
One reason that the physician may deny issuing a written certification is that the condition with which the patient presents is outside the field of practice and specialty of the physician. A reason that a physician may specify as an exclusion criterion, and terminate a written certification is that the physician has, in the course of his education and research, determined that the patient is not an appropriate patient for medical cannabis. A physician is free to define his or her exclusion criteria as narrowly or broadly as they think may be appropriate for their practice.
Can the Maryland Board of Physicians take action against my Maryland medical license if I become a certifying physician and recommend medical cannabis for patients?
No, the MBOP cannot take any such action and is prohibited by law from doing so as long as the certifying physician is practicing with the parameters outlined under the State's Medical Cannabis Program.