Gathering Places

Pamela Lichty

Friday, March 30, 2001

Fear undermines
Hawaii’s medical
marijuana law

Hawaii's medical marijuana law has been in effect only since the end of December and there is still much confusion about what it says, what it does and does not permit and about its relationship to federal law. Both physicians and potential patients are afraid to participate in the program. A lack of education has contributed to this fear.

The fact is both physicians and patients in the program are specifically protected under the state law. The law permits "acquisition" of marijuana, but is silent on the details. It also permits patients to possess, cultivate and use marijuana for medical purposes.

Patients are fearful, however, in part because they are required to register with the Narcotics Enforcement Division of the Department of Public Safety, a law enforcement entity. This is due to a political compromise when the bill was passed last legislative session. Of the nine states now permitting medical use of marijuana, only Hawaii requires registration with the public safety department rather than the Department of Health, with the proviso that the patient information be held in confidence.

Patients also are afraid of legal action against them by the federal government since marijuana remains illegal under federal law. However, research done by an attorney for the Maryland legislature (where a medical marijuana bill is under consideration) showed that there has not been a single reported case of a federal prosecutor arresting a patient. Simply put, they have bigger fish to fry.

But the larger problem with the fledgling medical marijuana program is the reluctance of physicians to participate. (The law requires a patient to get a "written certification" from his or her physician that they qualify under the law.)

The reluctance of doctors to get involved is due in large part to the continuing misinformation or half-truths purveyed by the Hawaii Medical Association, which strongly opposed the legislation last year. On the front page of its newsletter last August, HMA warned that, "Under federal law, physicians who recommend marijuana to a patient are in danger of losing their federal license to prescribe controlled substances (DEA license) and could be subject to criminal prosecution."

HMA has failed to notify its members, however, of an important legal decision issued just one month later. In September, a federal district court in the 9th Circuit, which includes Hawaii, issued a permanent injunction forbidding the federal government from threatening physicians with loss of their prescriptive privileges.

This strongly worded opinion in Conant vs. McCaffrey held that the right of a physician to discuss or recommend the medical use of marijuana to a patient was protected by the First Amendment. In this case, brought by the American Civil Liberties Union and others on behalf of physicians and patients, Judge William Alsup wrote "this injunction applies whether or not the physician anticipates that the recommendation will in turn be used by the patient to obtain marijuana in violation of federal law."

It is important to remember that the doctor is issuing a certification that the patient has a "debilitating condition," as defined in Hawaii's law, and renders an opinion that "the benefits of marijuana use would likely outweigh the health risks." Such a recommendation is entitled to First Amendment protection as set forth in Conant.

While the federal government is challenging the ruling, legal observers expect the order to be upheld. Despite the fact that this permanent injunction was issued more than six months ago, HMA still has not notified its members of this change in the legal situation.

In addition, HMA President Philip Hellreich's assertion in a February Star-Bulletin story that the National Institute of Health is studying alternative delivery systems is wrong: no studies of this sort are under way in the United States.

(Another court challenge concerning medical marijuana was argued before the U.S. Supreme Court this week. The decision expected in June in the Oakland Cannibis Buyers Club case will not have a direct effect on Hawaii and the other eight states that have similar laws.)

Updated figures from Oregon, whose law is similar to Hawaii's, show that 1,700 patients and more than 500 doctors are participating in its program. We believe that as the premier physicians' organization in the state, it is HMA's responsibility to keep its members apprised of changes in the legal situation as it effects them.

Meanwhile, the ACLU receives calls every week from patients desperately seeking a doctor willing to help them. Will Hawaii's physicians let compassion, not fear, guide their actions?

Pamela G. Lichty is president of the
American Civil Liberties Union of Hawaii.

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