MS patient has the right, just not he ability to use marijuana

August 24, 2005

Terri Hallenbeck, Burlington Free Press

Shane Higgins, lying in a nursing home bed, thin and gaunt from the multiple sclerosis that has robbed him of the ability to walk, has quietly revealed a hitch in the state's 2004 medical marijuana law. Higgins is one of about 15 people on the state's medical marijuana registry, which theoretically allows him to legally possess and consume marijuana. However, his place of residence poses a problem.

In March, when the staff at Starr Farm Nursing Center in Burlington's New North End found a marijuana cigarette in Higgins' room, they called police, who seized the cigarette.

Burlington Police Deputy Chief Stephen Wark said the officer confiscated the cigarette because Starr Farm rules don't allow smoking on the premises. Higgins also denied that the cigarette was his, Wark said. Higgins wasn't charged after he showed the officer his medical marijuana registry card, he said.

"If this were his house, we wouldn't have taken it," Wark said.

Starr Farm Nursing Center administrators said in a statement Wednesday afternoon that they cannot allow marijuana on the premises because the federal government doesn't recognize Vermont's medical marijuana law and the nursing home receives federal funding. That advice came from state registry officials at the Department of Public Safety, the statement said.

"A registry representative informed us that because our facility receives federal funds, and federal law prohibits the possession and use of marijuana, its possession and use in our facility is against the law, and therefore is strictly prohibited," the statement said.

The U.S. Supreme Court ruled in June that state laws don't protect users from federal prosecution. At the time, medical marijuana advocates thought that decision would have little impact in Vermont.

Higgins, 44, who was diagnosed with MS in 1998, said when he filled out the paperwork for the marijuana registry, he had the help of a social worker at the nursing home. Marijuana helps ease the pain MS wreaks on his body and stimulates his ever-waning appetite.

"I'd like to be able to use it," he said. "It helps with the pain and it gives me the munchies." When his meal tray arrived with a pasta dish and milk Wednesday afternoon, he looked at it distastefully.

He signed up for the registry knowing he wouldn't be able to smoke inside the nursing home. His hope, he said, was that his health would allow him to leave the nursing home and go back to living on his own, but that didn't happen. In the meantime, he thought he'd be able to smoke marijuana discreetly outside, realizing that the state marijuana law doesn't allow registrants to smoke in public. That, too, became impossible for Higgins, who is virtually confined to his nursing home bed.

His situation points to a potential flaw in the state law, which is designed to help MS, AIDS and cancer patients with pain and appetite problems. The law allows the person to appoint a caregiver to administer marijuana, but it doesn't address rules at hospitals or nursing homes. "I think people should know about this," Higgins said.

His case has the attention of the Vermont Marijuana Policy Project, a Montpelier organization that helped fight for the medical marijuana law and helps patients with the registry process.

Project coordinator Nancy Lynch said Higgins is a classic example of the sort of patient the law was designed to help -- someone fighting pain and a potentially dangerous loss of appetite because of his illness. There should be an allowance for someone in his situation to use marijuana, she said.

"Nursing homes need to be educated. Hospitals need to be educated. Doctors need to be educated," she said.

Allen Gilbert, executive director of the Vermont American Civil Liberties Union, said he doesn't have all the facts of this case, but he's interested in looking at whether any rights were violated.

Wark said it's the first case he knows of in which Burlington police have come into contact with the medical marijuana registry. "It's another example of a new law that I think isn't cooked," he said.

Mary Shriver, executive director of the Vermont Health Care Association, which represents nursing homes and residential care facilities, said she had not heard any discussion of how the medical marijuana law might be handled in nursing homes.

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