Gray areas in medical marijuana law dividing caregivers

By chillinwill · Nov 22, 2009 ·
  1. chillinwill
    Five years after voters overwhelmingly approved its use, medical marijuana is becoming a booming business in Montana. But some medical marijuana groups are at odds over the direction they think the budding industry should go, and how growers and patients should operate within the gray areas of the current state law.

    As more medical marijuana growers — or patient caregivers — crop up in the state, so too do disagreements among them. Everyone within the medical marijuana community seems to agree on one thing: The health and wellbeing of medical marijuana patients should be the paramount concern of all caregivers.

    But when it comes to advising patients on what is and isn't legal under Montana's medical marijuana law, what constitutes "bona fide physician-patient relationship," or whether patients should use the drug outside of the privacy of their own homes, the medical marijuana community is split.

    The rift among some prominent medical marijuana groups went public after a high-profile medical marijuana clinic appeared on the front page of the Great Falls Tribune late last month.

    A handful of patients who attended the event, which was sponsored by the Missoula-based Montana Caregivers Network, raised eyebrows when they smoked marijuana in plain view of the public. Jason Christ, founder of the group, was chastised by city officials after he smoked a bowl of cannabis on the steps of the Great Falls Civic Center.

    Tom Daubert, director of Patients and Families United and a caregiver himself, is one of the authors of the Montana Medical Marijuana Act. Daubert penned an op-ed in the Tribune criticizing some aspects of the Great Falls event.

    "Medical marijuana is a serious subject," wrote Daubert, who is also a caregiver and co-owner of Helena-based Montana Cannabis, a medical marijuana company in Helena. "It's frustrating to see it cast in a frivolous light or to hear the law misrepresented."

    Mike Smith, a caregiver and founder of the Healing Center of Montana, also is critical of patients smoking marijuana in public.

    "If you feel that somebody is going to walk around the corner and see you smoking a bowl or a joint, don't do it," Smith said. "Have courtesy for the people that don't know what's going on. It's rude to do what they did."

    Christ, who said he suffers from severe and chronic abdominal pain that makes it almost impossible for him to sit, defended his public display of marijuana smoking.

    "I wish my pain wouldn't flaunt itself," Christ said. "Smoking marijuana is the only thing that helps me with the amount of pain that I'm in. It hurts all the time. Tom Daubert doesn't deal with pain like this. Mike Smith doesn't deal with pain like this. I deal with pain like this."

    Christ's Great Falls clinic attracted the attention of the Montana Board of Medical Examiners. On Friday, Christ appeared before the board to explain how his organization facilitates the medical marijuana recommendation process for patients.

    Christ told the board that his organization connects patients suffering from qualifying medical conditions with licensed physicians. Patients fax their medical records to his company, and then they schedule a face-to-face meeting with a doctor at clinics like the one in Great Falls. Patients typically meet with the doctor for five to 15 minutes before walking out the door with a recommendation, Christ said, adding that only about 1 percent of patients are turned away at the clinics.

    Board members questioned whether a brief meeting with a doctor at a clinic like the one in Great Falls constitutes a "bona fide physician-patient relationship" as stated in the Montana Medical Marijuana Act.

    Daubert, who attended Friday's meeting via conference call, told the board that he is "alarmed and concerned" about activities that he thinks "betray an incomplete understanding of both the letter and intent," of Montana's medical marijuana law.

    But Daubert, who hasn't been shy about publically chastising patients and caregivers who flirt with the edges of the state law, isn't without his own critics.

    Mike Smith, whose organization operates nonprofit medical marijuana "collectives" — or private clubs where patients can go to obtain marijuana from a variety of caregivers — said Daubert is misleading patients about certain aspects of the law. Specifically, Smith takes issue with Daubert's assertion that patients cannot legally use marijuana until they receive their medical marijuana card from the state health department. Daubert also believes that under the law, patients can only obtain medical marijuana by growing it themselves or getting it from the caregiver named on their state registration.

    According to Smith, a patient who has obtained a physician's recommendation to use medical marijuana to treat a debilitating condition can legally obtain marijuana from one of his collective locations, even if the patient hasn't yet received a state-issued medical marijuana card from the state.

    Smith said Daubert's interpretation of the law — as stated in his Nov. 5 Tribune opinion piece — is misleading to patients.

    Smith likens it to purchasing a car from a dealer.

    "Once you buy that car, and you have all the paperwork, you can legally drive that car while the state processes the paperwork," Smith said. "It's the same with medical marijuana. Once you get that recommendation from your physician, you're legal."

    Smith also maintains that under the Montana Medical Marijuana Act, patients can obtain the drug from other registered patients, or from a caregiver other than their own registered caregiver.

    "The spirit of the law is that a patient can grow their own marijuana, and they can get it from any other person who has a legal card," Smith said.

    Lewis and Clark County Attorney Leo Gallagher said he does not agree with Smith's interpretation of the law in that regard.

    "The trigger to avoid prosecution is they need to have the card with them," Gallagher said.

    But Gallagher, like many law enforcement officials, said there are gray areas in the law that need to be ironed out.

    "Can patients get it from a caregiver or provider other than the one they have registered? I'm not sure about that," Gallagher said. "However they get it, they are entitled to have it. I suppose they could go down and get it at the corner bar and as long as it's under the 1 ounce or six plants in possession. Though there may be liability to a caregiver or provider who gives the marijuana to someone who isn't their patient."

    Daubert has been working with law enforcement agencies and state lawmakers for months in an effort to find consensus on ways to improve the law before the next legislative session. He said when patients or caregivers push the limits of the law, it threatens those efforts.

    "It doesn't matter what Mike Smith thinks the law says. It doesn't matter what I think the law says. What matters is what law enforcement thinks and how they apply the law and how they respond to different situations," Daubert said. "My steadfast position is that this law is too precious in the lives of patients who need marijuana as medicine for anyone to behave irresponsibly and to flirt at the edges of what the law says."

    Cascade County Attorney John Parker said he believes that, by and large, most patients and caregivers are trying to stay within the letter of the law. He added that law enforcement officers are also trying to wade through the gray areas of the law and avoid unnecessary arrests or prosecutions of legal patients.

    "My position is that there probably ought to be some administrative rules developed to flesh out what the statutes means, and that will provide guidance for county attorneys," Parker said. "The need for clarity is manifest."

    There will be efforts to modify the existing law, which has remained unchanged since 63 percent of Montana voters approved it in 2004, during the next legislative session. In the meantime, Daubert's advice to patients and caregivers is to avoid flaunting the law or pushing its limits.

    "If you want to make the law better than you should work to improve the law," Daubert said. "But if you have patients' long-term best interest at heart, I think it's important to adhere to the letter of the law as closely as one can."

    November 22, 2009
    Great Falls Tribune

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