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Medical Marijuana: What Happens Next?

Now that Massachusetts has voted to legalize marijuana for medicinal use, what are the next steps to doctors prescribing and patients getting treated?

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Tuesday, December 11, 2012

The Law in a Nutshell

The new medical marijuana law in Massachusetts does two things. First, it protects patients, providers and health care professionals who observe its terms from the state marijuana prohibition laws that criminalize possession, distribution, and cultivation of marijuana. Second, it provides patients with a safe and legal source of supply.

Protection of Physicians and Health Care Professionals

Effective January 1, 2013, physicians and health care professionals under a physician’s supervision cannot be punished, nor may they be denied any right or privilege, merely for advising a patient about the risks and benefits of medical use of marijuana. Further, a Massachusetts physician having a bona fide doctor-patient relationship with a patient is protected in providing her patient a written certification, after a full assessment of the patient’s history and condition, that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient. With this new law, members of the health care community are invited, but not required, to make the best of therapeutic cannabis within the strictures of their professions, without fear of sanction from the state or their colleagues.

Protection of Patients

The benefits of legal protection and safe access are available to patients who have been diagnosed as having a “debilitating condition,” meaning, in the words of the new law, “cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis and other conditions as determined in writing by a qualifying patient’s physician.” The patient must then obtain from a licensed physician a document certifying that in the physician’s opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient.

When the law is fully implemented, patients will send the physician’s certification to the Department of Public Health (DPH), with an application, pay a fee, and obtain a registration card enabling the patient to purchase medical marijuana from a regulated dispensary. Until then, the physician’s written certification constitutes the legal equivalent of a registration card, legalizing the patient’s possession of no more than a sixty-day supply.

Dispensaries

The new law authorizes the licensed operation of up to 35 dispensaries statewide, with at least one in each county and no more than five in any one county. They are formally called “Medical Marijuana Treatment Centers,” and are required to be not-for-profit entities. The process for selecting entities to receive licenses—among, no doubt, scores of competing applicants—awaits the issuance of regulations from the DPH, expected by May 1, 2013. As the law mandates the DPH to issue the MMTC licenses “in the first year after the effective date,” we can expect that MMTC applications will be accepted next summer and entities “registered” or licensed by DPH in the fall for the opening of dispensary doors in January of 2014.

Our law follows the lead of Maine and Rhode Island, tightly capping the allowable number of dispensaries and cultivation operations. While the specific criteria for obtaining a registration await DPH regulations, applicants will no doubt be expected to demonstrate a well-capitalized business plan, solid business experience, and broad support in the communities where they propose to operate.

Before Dispensaries Open

Before dispensaries open, patients may obtain their supply by growing it themselves, or from a person formally designated as a personal caregiver, who may also cultivate, but subject to the rules that all cultivation must occur in an enclosed, locked facility, and that no more plants shall be cultivated than sufficient to maintain a sixty-day supply for the patient. Whether cultivating or not, caregivers are required to have the legal equivalent of a registration card as spelled out in the law.

Looking ahead, the inscrutable obstacle to successful implementation of the new law is the U.S. government. With a few notable exceptions, like outgoing Congressman Barney Frank of Massachusetts and incumbent Jared Polis of Colorado, Congress remains silent, leaving it to the U.S. Justice Department not only to enforce the marijuana prohibition laws, but to justify them as well, by reminding taxpayers that marijuana is dangerous, has no medical utility and that all use is abuse. The embrace of that untenable premise has produced brutal criminal prosecutions of state-compliant cultivators in Montana. In Maine, on the other hand, its quiet rejection has enabled eight dispensaries to operate smoothly, without complaint or controversy. Where the federal prosecutor in Massachusetts comes down on medical marijuana is unknown.

Last month’s voter revolutions in Colorado and Washington, repealing marijuana prohibition under state law, further isolate the feds on the wrong side of history. The end of prohibition is near. Protecting doctors and patients is a good beginning.•

Richard M. Evans is a lawyer with EvansCutler Attorneys, Northampton and Boston

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