What does legal marijuana use mean for your practice and your patients? We talked to an attorney about concerns and considerations you may want to ponder.
Posted in Risk Management on Monday, August 15, 2022
Marijuana’s role in society has changed significantly in the last 20 years. It is now fully legal in many states and territories as of July 2022, and it’s legal for medical use in even more. (Check your local laws for the most up-to-date information on legality in your state to be sure.) With marijuana use becoming more normalized, we asked an attorney what a doctor should be mindful of when it comes to marijuana and their practice.
Question: Your patient tells you they used (either medically or recreationally) immediately prior to their appointment. They do not appear impaired. Is there a concern treating?
Answer: This is ultimately a clinical decision that must be determined by you. Certainly, if a patient has a qualifying condition for which they use marijuana medicinally (AIDS, cachexia, cancer, glaucoma, HIV, persistent muscle spasm, PTSD, seizures, severe nausea, severe pain), you need to consider that information in your evaluation just as you would a patient who uses any other medication for a medical condition.
For example, if the patient is using marijuana because they have pain or muscle spasms, you must consider both the source of the pain and/or spasms and how the marijuana impacts the pain experience. This should be evaluated in the same way information regarding a patient taking muscle relaxers or pain medications is considered. You must decide if the medication interferes with your ability to assess or treat the patient from a clinical standpoint.
In contrast, if the patient is a recreational user, you would need to consider the information similarly to how you would respond if a patient told you they had just come from happy hour and had “had a few.” You might elect to defer treatment in such a case.
In both cases, you need to consider not only the appearance of impairment, but an actual assessment of impairment.
As always, documentation is important. If you determine the patient’s decisional capacity is not impaired and treatment is appropriate, you may still want to address such issues in your informed consent. For example, you could add a statement such as:
Use of alcohol, marijuana, or certain medications may impact a patient’s ability to accurately report their history and may impact somatic perception (e.g., the ability to perceive pain). This can increase the risks of treatment, which inherently depends on dialogue between the patient and doctor. A patient who has used alcohol, marijuana, or medications that affects their perception agree to report such use and agree to accept any increased risk attendant with such use.
Check your state’s rules. There may also be additional duties depending on state law. For example, if the patient has their children with them, it could raise an issue regarding mandatory reporting.
Question: Your patient appears impaired and confesses to having used marijuana prior to coming in. Is there a concern treating?
Answer: If a patient appears impaired, regardless of the source of the impairment, there is a question of their ability to assess information and provide informed consent. There is also a greater chance of accidental injury (e.g., rolling off the table, falling, stumbling). Additionally, if you observe a patient is visibly impaired, you should not allow the person to drive. Depending on the level of impairment, you may need to call emergency services.
Question: You use cannabis medicinally, which comes up during a conversation with a patient. Can there be any repercussions?
Answer: Definitely. First, it’s a boundary issue to talk with your patients about personal use of marijuana. Additionally, admitted use of marijuana can serve as the basis for regulatory review of your ability to provide care. This is true regardless of whether marijuana is or is not legal in the state where you practice.
Question: Should you ever suggest/recommend medical marijuana to patients?
Answer: Check with your state, but the likely answer is No. For instance, in Colorado, only medical doctors and doctors of osteopathy can certify that a patient has a qualifying condition that may benefit from the use of marijuana.
Question: Are there any federal ramifications since it’s still illegal at the federal level?
Answer: Potentially. Marijuana is regulated at the federal level under the Controlled Substances Act (“CSA”) and DEA regulations as a Schedule I substance. Under the legal scheme, controlled substances are divided into five schedules based on whether they have an accepted medical use, relative abuse potential, and likelihood of causing dependence when abused. Examples of drugs in each schedule follow (source USDOJ):
Schedule I (No currently accepted medical use in US, high potential for abuse)
- Substances in this schedule have no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.
- Some examples of substances listed in Schedule I are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), peyote, methaqualone, and 3,4-methylenedioxymethamphetamine ("Ecstasy").
Schedule II (High abuse potential, which may lead to severe psychological or physical dependence)
- Substances in this schedule have a high potential for abuse which may lead to severe psychological or physical dependence.
- Examples of Schedule II narcotics include hydromorphone (Dilaudid®), methadone (Dolophine®), meperidine (Demerol®), oxycodone (OxyContin®, Percocet®), and fentanyl (Sublimaze®, Duragesic®). Other Schedule II narcotics include morphine, opium, codeine, and hydrocodone.
- Examples of Schedule IIN stimulants include amphetamine (Dexedrine®, Adderall®), methamphetamine (Desoxyn®), and methylphenidate (Ritalin®).
- Other Schedule II substances include: amobarbital, glutethimide, and pentobarbital.
Schedule III (Potential for abuse less than Schedules I or II and abuse may lead to moderate or low physical dependence or high psychological dependence)
- Substances in this schedule have a potential for abuse less than substances in Schedules I or II and abuse may lead to moderate or low physical dependence or high psychological dependence.
- Examples of Schedule III narcotics include products containing not more than 90 milligrams of codeine per dosage unit (Tylenol with Codeine®), and buprenorphine (Suboxone®).
- Examples of Schedule IIIN non-narcotics include: benzphetamine (Didrex®), phendimetrazine, ketamine, and anabolic steroids such as Depo®-Testosterone.
Schedule IV (low potential for abuse relative to Schedule III)
- Substances in this schedule have a low potential for abuse relative to substances in Schedule III.
- Examples of Schedule IV substances include alprazolam (Xanax®), carisoprodol (Soma®), clonazepam (Klonopin®), clorazepate (Tranxene®), diazepam (Valium®), lorazepam (Ativan®), midazolam (Versed®), temazepam (Restoril®), and triazolam (Halcion®).
Schedule V (low potential for abuse relative to substances listed in Schedule IV and consist primarily of preparations containing limited quantities of certain narcotics).
- Substances in this schedule have a low potential for abuse relative to substances listed in Schedule IV and consist primarily of preparations containing limited quantities of certain narcotics.
- Examples of Schedule V substances include cough preparations containing not more than 200 milligrams of codeine per 100 milliliters or per 100 grams (Robitussin AC®, Phenergan with Codeine®), and ezogabine.
This is clearly an ever-evolving issues as states and the federal government determine how they want to proceed with marijuana. The best way to stay out of trouble is to know your state’s position, use best practices regarding documentation, informed consent, and boundary maintenance, and apply reason and common sense to each situation.