Keeping It LegalBy Jasen T. Davis
In a recent decision, the Michigan Supreme Court ruled that a person with a “bona-fide physician-patient relationship” could use what’s known as an affirmative defense in a court of law. Before that, medical cannabis patients couldn’t even mention the fact that they had a previous medical condition to a jury to defend themselves against criminal drug charges.
Now, even if a patient hasn’t had the opportunity to acquire a license through the state’s Department of Licensing and Regulatory Affairs, if he or she had previously met with a doctor regarding a medical condition (that cannabis could treat), the patient could possibly avoid prosecution.
This is a giant step for the issue of medical cannabis because it legitimizes
a law that’s been in place ever since the Michigan Medical Marihuana Act was approved by voters in 2008.
While this offers solid encouragement to MMJ proponents and patients, J. Van Dyke, executive director of the Warren-based American Medicinal Marijuana Association (AMMA), points out that the court’s legal decision is not supposed to be taken as a loophole for people who merely want to use cannabis recreationally.
“The decision doesn’t protect people who are not medical cannabis patients,” Van Dyke tells CULTURE. “That’s one issue the Michigan Supreme Court clarified.”
To Van Dyke, this is a good thing.
“We want to bring medical marijuana back into the doctor’s office,” he says. “All the arrests in Michigan have been for public nuisance.”
Van Dyke cites cases where teenagers have been arrested by police for hanging out in the parking lots of collectives and compassion clubs, attempting to illegally purchase medical cannabis—or instances of patients leaving clubs and being robbed of their medicine.
“People go searching for cannabis and they aren’t aware of the danger they are facing,” Van Dyke says. “They end up getting mugged or robbed. This gives law enforcement an issue, and it’s centered on medical marijuana.”
The best solution? Van Dyke says medical cannabis providers should look like proper medical facilities—not candy stores.
“It gives the wrong impression,” he says.
Additionally, Van Dyke says he believes local police have the right to respond to complaints of criminal behavior centered on clubs and collective if enough complaints are filed.
“To put police in harm’s way is wrong,” he says. “We want people to understand that.”
To preserve the legitimacy of medical marijuana, everyone that’s part of the MMJ landscape—growers, clinics, caregivers—needs to strictly adhere to the Health Insurance Portability and Accountability Act (HIPAA), which sets up legal privacy, disclosure and protection rules for patients’ medical records, among other things, Van Dyke says.
“Until we treat marijuana like a medication and stop letting clinics look like candy stores, we are never going to get it legalized,” he says.
The Michigan Supreme Court’s recent decision sends a clear message to MMJ doctors: operate illegally and you open the door to criminal liability.
“Doctors are the only ones who can prescribe medicine for an illness,” Van Dyke says.
What concerns the AMMA are when clinics attract the interest of federal agencies, Van Dyke says.
“Only five clinics authorized 5,000 licenses to medical cannabis patients,” he says. “That isn’t a good thing.”
The recent court ruling underscores an important point—medical marijuana patients have the same legal protections and rights as any other medical patients.
“It’s not just about our constitutional rights,” Van Dyke says. “We also have a right to privacy as patients, which is why adhering to HIPAA guidelines are so important.”
Saving Private Info
Parts of the Health Insurance Portability and Accountability Act (HIPPA) of 1996 were intended to address the privacy and security of medical patients’ data. Federal law sets rules and limits on who can look at and receive a patient’s health information. For example, doctors, clinics, dentists, psychologists, chiropractors and pharmacies are among the health care providers that must abide by HIPPA’s rules and regulations.