The medical marijuana muddle: A clear decision, a hazy outcome

March 26, 2005

Linda Halstead-Acharya, Billings Gazette

Last November, 62 percent of Montana's voters approved the use of marijuana for medical purposes.

That means that all a patient has to do is ask his or her doctor for a prescription, and if stopped by a police officer the patient is let off the hook.

Not quite.

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While the margin of support for Initiative 148 was clear, the aftermath is anything but.

Law enforcement officers, physicians and even the 82 Montanans already registered as qualified patients are all wondering what Montana's new law means to them.

Currently, a doctor can't prescribe marijuana because it's still categorized as an illegal, Schedule 1 drug. The new statute does, however, allow a patient to seek the signature of a physician affirming that the patient suffers from one of the conditions listed under the statute, such as cancer, glaucoma, AIDS and chronic diseases such as severe pain, nausea, seizures and muscle spasms.

But even with the signature, there's no legal way to buy marijuana. Patients in Montana now smoking it still have to get it the old-fashioned way, illegally.

Doctors like Jim Guyer, the medical director at the Deering Clinic in Billings, don't plan to approve requests for medical marijuana until the gray areas are clarified. Since the initiative passed, he's had a handful of requests.

'Because we are a federally qualified community health center, we fall under federal guidelines,' he said. 'There's some concern that if we prescribe it, it could jeopardize our grant funding.'

Guyer refers to an incongruity between state law, which apparently allows medical marijuana, and the federal law, which prohibits it.

He's not the only one wondering which law will prevail. That issue is currently before the United State Supreme Court, where a decision is expected soon.

Others physicians, like Billings oncologist Patrick Cobb, question the benefits of marijuana.

'We have so many alternatives to marijuana that work significantly better for nausea,' he said. 'And we have some of the same concerns about marijuana (as we do about) smoking cigarettes. And cancer patients are more susceptible to lung problems.'

Cobb said he's had some patients ask about it, but they have been satisfied with his answer.

'We don't think we're shortchanging our patients at all,' he said.

Dr. Doug Moore, medical director of the City County Health Department, said the law was written so broadly that he doesn't know how to respond from either a medical or legal standpoint.

'The guidelines are so broad, anybody could qualify,' he said. 'And there's the issue, will the DEA (Drug Enforcement Agency) come back at us?'

Even if the court rules in favor of the states, Moore is not sold on medical marijuana.

'People who are on marijuana for a long time, their brains work different,' he said. 'From my clinical experience, marijuana is not a safe drug. And, from a public health perspective, it's a bad drug - it's a gateway drug.'

No rush to puff

When the initiative passed, Dr. John Oakley, a physician with the Northern Rockies Pain Center, expected to be bombarded by requests.

'We're in a position where we would be the ones who would see most of the petitions,' he said. 'I've only signed one.'

And that request came from a patient in Missoula. The man, who suffers from chronic pain associated with failed back surgery, wanted to use marijuana to boost the effectiveness of medications he received through a pain pump.

'Rather than take more narcotic medicines for it, the marijuana sounded like a good thing to him,' Oakley said. He continues to follow the patient, who is doing well on the combination.

Oakley said he did not feel particularly exposed when he chose to follow state law over federal law. But he expects most of his colleagues will take the safer route.

That might explain why only 82 Montana residents, of the 196 people who have requested forms from the Department of Public Health and Human Services and the countless others who have downloaded their own forms from the department Web site, are on the state's registry list.

One of those on the list is Robin Prosser, a 48-year-old Missoula resident who has suffered from systemic lupus for 20 years. Prosser, who uses marijuana to ease her symptoms, actively campaigned for the passage of I-148. She is concerned about the discrepancy between the numbers.

'It indicates to me there are people not getting them (petitions) signed,' she said.

'Pot Doctor'

Prosser understands the reluctance on the part of physicians. She knows they don't want to be flagged as a 'pot-favorable doctor,' and she knows many physicians don't know how the statute applies to them.

'It's such a new territory for everybody,' she said. 'They don't know where they stand legally, but it's all spelled out in the initiative very clearly.'

Roy Kemp, bureau chief of the Licensure Bureau of the DPHHS, agrees that the statute protects physicians.

'As long as they're in compliance with this, they cannot have an action taken against their license,' he said.

To register, the patient submits that certification, along with an identification form and a $200 annual fee to the DPHHS. Kemp determines whether the forms and the signing physician meet the requirements of the law. The signing physician can only be a medical doctor or doctor of osteopathy - no naturopaths, chiropractors or physician assistants qualify. If everything checks out, the bureau can add the patient to its confidential list and issue a registry card.

Tell it to the judge

But a registry card isn't necessarily a free pass to smoke marijuana. Yellowstone County Undersheriff Jay Bell said a registry card would put a different spin on a situation, but he would rather let the courts figure it out.

With no guidelines other than the wording of the new statute, Bell said he can only guess how police will react.

If a routine traffic stop revealed someone in possession of marijuana, he said, most likely the drug would be confiscated and the individual would have his day in court. If the county attorney determined the individual had the legal right to possess the drug, it would probably be given back and no charges would be filed, he said.

'If they have a trunkload (of marijuana), they'd probably go to jail with or without a card,' he said. 'If they have a small amount and a registry card, it'd probably be confiscated and that would go into the report.'

Even having a registry card leaves some questions unanswered. For one, he said, law enforcement would have to consider whether the marijuana was legally obtained.

'Right now, there's no legal outlet in the state of Montana, as far as I know,' he said. 'And even transporting seeds is against federal law.'

There also are questions about whether a renter can be evicted for using medical marijuana. Can a qualified patient live within 1,000 feet of a school, the standard school drug-free zone? And, can a patient still grow or possess medical marijuana? What should an employee tell his employer if he is subjected to a drug test?

'It's just too gray for law enforcement and for people who think they're in the clear,' Bell said.

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