In a case that is receiving wide attention in the news, the Arizona Supreme Court has limited the immunity of a doctor who prescribes medical marijuana.
One of the provisions of the Arizona Medical Marijuana Act (A.R.S. 36:2811C) states that a physician cannot be prosecuted, penalized, or disciplined solely because the physician certified that a patient was likely to receive a therapeutic benefit from the use of medical marijuana. That section goes on to state that a licensing board may still sanction a physician if the physician fails properly to evaluate a patient’s medical condition.
Rules adopted by the Arizona Department of Health Services require that before issuing a recommendation on behalf of a patient for medical marijuana, a doctor review the patient’s records for the previous 12 months. A woman working for the Navajo County drug task force went to the doctor, completed a questionnaire regarding her medical history, including a disclosure of her medical history and condition. The woman allegedly stated, however, that she did not have her complete medical records with her, but said she would send them to the doctor or bring them to her next visit. The doctor issued the recommendation, and was subsequently indicted for forgery and obtaining a benefit by means of a false representation.
The trial judge threw the case out, citing the immunity provision in A.R.S 36:2811C. He reasoned that a doctor can’t be prosecuted for exercising discretion as a physician and recommending that a patient would benefit from medical marijuana. The court of appeals upheld the dismissal.
On further appeal, the Arizona Supreme Court reinstated the charges, saying that doctor was indicted because he certified that he had reviewed the records, when in fact he had not. The justices also noted that there was nothing in their opinion that limits a doctor’s discretion in giving advice to patients, including advice relating to medical marijuana.
The court ruling aside, we can’t help but be struck by the lengths to which our busy law enforcement folks will go to try to nab someone when it comes to issues involving medical marijuana. In this case, it includes a class 2 felony charge.
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