College of Law > About > Centers & Institutes > Mary and Michael Jaharis Health Law Institute > E-Pulse Newsletter > Smoke and Mirrors: Ethical Complications for Physicians Recommending Medical Marijuana
By Vaughn Bentley / 4/28/2015 / Twitter / Facebook
In Illinois, individuals with particular diseases are allowed to use medical marijuana in treatment.[i] To do so, however, they must have a recommendation from a physician.[ii] Even with the recent legalization of marijuana for medical use, physicians are still facing ethical conundrums with recommending marijuana. Some physicians are uncomfortable due to the federal laws, while others worry about the actual health benefits of medical marijuana use.[iii] Physicians may feel left in the dark with regard to these concerns, as there is no clear answer to whether medical marijuana use is an acceptable treatment plan.[iv] Some physicians have even publicly said they will not prescribe medical marijuana to patients for a number of reasons.[v]
Under federal law, marijuana is still illegal for any use, medical or recreational.[vi] Recently, the House of Representatives blocked the Drug Enforcement Agency (“DEA”) from spending funds on arresting those participating in a medical marijuana program.[vii] Many physicians, however, are still wary of the long-term consequences of prescribing.[viii] Others worry about the implications of supplying a patient with high amounts of medical marijuana, the excess of which may be sold for recreational use.[ix] While some may argue that physicians can avoid this by not over-prescribing, virtually no data exists on which cases are legitimate and what amounts constitute over-prescribing.[x]
The guidance provided by the American Medical Association’s Code of Medical Ethics gives a conflicting message on the matter. According to one section, a physician must work to change a law that is unjust.[xi] Further, physicians are told the primary concern when treating those who are severely ill is quality of life.[xii] Yet, there is not a great deal consistent of evidence surrounding the potential treatment uses of medical marijuana.[xiii] This leaves physicians in an ethical gray area, as medical marijuana may improve quality of life in the short-term, while the long-term effects remain uncertain.[xiv] It is also unclear what the Code of Ethics means by “work to change a law.”[xv] It may mean to prescribe medical marijuana regardless of the legal implications, or to simply advocate legislatively for a change.
Some health institutions are complicating these ethical choices even more. In California, those using medical marijuana have begun to be denied organ transplants.[xvi] For example, one man suffering from cirrhosis was told he would not be placed on the liver transplant list until he ceased using marijuana.[xvii] Some states have passed laws to prevent this, however not all states that have legalized medical marijuana have such protections in place.[xviii] This only adds to the ethical dillema a physician may face in recommending medical marijuana for a patient, as it may effectively remove a patient from a life-saving transplant list.
Physicians are uncertain of the medical advantages of marijuana. Some argue it is actually safer than painkillers.[xix] This is mostly due to the addictive properties and possibility of overdosing associated with opiate use.[xx] However, marijuana still has some addictive properties.[xxi] Others are concerned with the far-reaching effect of marijuana on the brain, which goes beyond targeting the pain receptors.[xxii] Physicians are also concerned with how medical marijuana came to be available.[xxiii] One physician in Massachusetts, Dr. Alan Berkenwald, expressed concern in an editorial that medical marijuana was made available after it was voted into law in Massachusetts, rather than the traditional clinical route for certifying other therapies.[xxiv] Finally, a number of medical malpractice insurance policies will only cover therapies approved by the Food and Drug Administration (“FDA”).[xxv] Since marijuana remains a Schedule I drug under the Controlled Substances Act, it remains unavailable for testing and approval.[xxvi]
Some physicians suggest waiting for medical marijuana to be subject to FDA approval to avoid these ethical concerns.[xxvii] However, recent litigation has shown this is very unlikely.[xxviii] Other physicians would like to have more control over the prescription and dispensing process, another unlikely scenario given how state laws are structured.[xxix]
A final ethical concern for physicians is the effect this may have upon their relationships with patients.[xxx] While some state laws require a bona-fide relationship, not all states require the same.[xxxi] Entire websites have been devoted to physicians prescribing medical marijuana in states like California, which do not have these stringent requirements.[xxxii] Physicians are right to worry, as some studies have suggested the most common patients seeking physicians were found to be those with conditions with a high risk of deception for opiate medication: chronic pain, mental health conditions, and sleep disorders.[xxxiii] The authors of this study were quick to point out these patients were not necessarily successful in finding a recommendation for medical marijuana use.[xxxiv]
Even though medical marijuana has been legalized by Illinois, physicians still have to sort through the smoke and mirrors to determine what is ethically right.
Vaughn Bentley is the current Editor-In-Chief of the E-Pulse. He is pursuing a joint J.D. and LL.M. in Health Law at DePaul University College of Law in Chicago. Vaughn obtained a B.A. in Psychology from the State University of New York, College at Oswego in 2013. He is an active student board member of the Health Law Institute and has a passion for healthcare law. He would like to focus on administrative healthcare law after graduating in May of 2016.
[i] 410 Ill. Comp. Stat. § 130
[iii] Joseph Gregorio, Physicians, Medical Marijuana, and the Law, 16 AMA Journal of Ethics 732 (Sept. 2014), available at http://journalofethics.ama-assn.org/2014/09/hlaw1-1409.html.
[v] Alan Berkwild, Dr. Alan Berkwild: Why I Won’t Prescripe Medical Marijuana, Daily Hampshire Gazette (May 7, 2014), available at http://www.gazettenet.com/home/11862624-95/dr-alan-berkenwald-why-i-wont-prescribe-medical-marijuana.
[vi] Ryan J. Reilly & Matt Ferner, House Blocks DEA From Targeting Medical Marijuana, Huffington Post (May 30, 2014, 12:24 AM EDT), available at http://www.huffingtonpost.com/2014/05/30/dea-medical-marijuana-house-vote_n_5414679.html.
[viii] Gregorio, supra note3.
[ix] Berkwild, supra note 5.
[xi] Physician’s Code of Ethics and Medical Marijuana, Americans for Safe Access, http://www.safeaccessnow.org/physician_s_code_of_ethics (last visited Apr. 1, 2015) (hereinafter Physician’s Code).
[xiii] Michelle Ye Hee Lee, Arizona Doctors May Face Marijuana Dilemma, AZ Central, (Sept. 19, 2010 10:14 PM), http://www.azcentral.com/news/election/azelections/articles/2010/09/19/20100919marijuana-arizona-impact.html.
[xv] Physician’s Code, supra note 9.
[xvi] Carly Schwartz, Medical Marijuana Patients in California are Being Denied Organ Transplants, But That Could Soon Change, Huffington Post (Feb. 26, 2015, 11:59 AM EST), http://www.huffingtonpost.com/2015/02/24/marijuana-organ-transplant_n_6736672.html.
[xix] Ye Hee Lee, supra note 13.
[xxiii] Berkwild, supra note 5.
[xxvii] Andrea G. Bartham et al., The Role of the Physician in “Medical” Marijuana, American Osteopathic Academy of Addiction Medicine, available at http://www.aoaam.org/usr/ASAM_Med_Marijuana_White_Paper_Final.pdf
[xxviii] Michael E. Schatman, PhD, Medical Cannabis: The Ethical Conundrum Associated With Recreational “Legalization” of Marijuana, MedScape, (Nov. 15, 2012) http://www.medscape.com/viewarticle/774482_2.
[xxix] Gregorio, supra note3.
[xxxii] See Medical Marijuana Doctors in California, California NORML http://listing.canorml.org/medical-marijuana-doctors-in-California/ (last visited Apr. 1, 2015);MMJ Doctor http://mmjdoctor.com/ (last visited Apr. 1, 2015).
[xxxiii] Helen Nunberg, MD, MPH, et al., An Analysis of Applicants Presenting to a Medical Marijuana Specialty Practice in California, Journal of Drug Policy Analysis available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3673028/.