Are California physicians protected from criminal prosecution or investigation by the Medical Board for recommending medical marijuana to their patients?
The California medical marijuana law, the Compassionate Use Act of 1996, contained strong protection for physicians who choose to participate in the implementation of the Act. Enacted as Health & Safety Code section 11362.5(c), the law provides: "Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes."
Furthermore, the Medical Board of California found that medical marijuana was a legitimate treatment option for patients. Accordingly, the Medical Board issued an official statement to assure physicians who choose to recommend medical marijuana to their patients, as part of their regular practice of medicine, that they WILL NOT be subject to investigation or disciplinary action by the MBC if they arrive at the decision to make this recommendation in accordance with accepted standards of medical responsibility. The Medical Board went even a step further to reassure physicians, by taking the position that "the mere receipt of a complaint that the physician is recommending medical marijuana will not generate an investigation absent additional information indicating that the physician is not adhering to accepted medical standards." Those accepted medical standards include what "any reasonable and prudent physician would follow when recommending or approving any medication [including medical marijuana], such as:
1.History and good faith examination of the patient.
2.Development of a treatment plan with objectives.
3.Provision of informed consent including discussion of side effects.
4.Periodic review of the treatment's efficacy.
5.Consultation, as necessary.
6.Proper record keeping that supports the decision to recommend the use of medical marijuana.
Based on the above, physicians who recommend medical marijuana to their patients should not be punished criminally. In addition, physicians should not fear and investigation, or the loss of their license by the Medical Board, as long as the physicians use the same care in recommending medical marijuana to patients as they would recommending or approving any other medication.
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