Setback for CO Medical Marijuana Caregivers?
The Colorado Court of Appeals today issued an opinion holding that medical marijuana caregivers must do more than merely provide pot and must have significant responsibility for providing for the well-being of their patients.
The case involved a woman named Stacy Clendenin, who in 2006 was charged with cultivating marijuana in a Longmont home. Clendenin argued that the marijuana she grew in the home was then distributed to authorized patients through marijuana dispensaries.
But the appeals court ruled that simply knowing that the end user of marijuana is a patient is not enough. Instead, the court said, a care-giver authorized to grow marijuana must actually know the patients who use it....In a special concurring opinion, Judge Alan Loeb wrote that Colorado's constitutional amendment legalizing medical marijuana "cries out for legislative action."
Actually, the opinion (available here, pdf) said the trial court ruled the caregiver must personally know the patient, and it was deciding the issue on other grounds. [More...]
The appeals court states the caregiver must do more than merely supply marijuana, they must have significant responsibility for providing for the well-being of the patient. It seems to me that one can significantly provide for the well-being of a patient without personally knowing the patient. One could provide housing, transportation, meal preparation, housekeeping services and access to medical care without a personal relationship. If a provider supplied these service, as well as marijuana, that should render them one who has significant responsibility for providing for the patient's well-being. For example, this dispensary in Basalt, Colorado (outside of Aspen) announced it will be offering "... chiropractic care, physical therapy, acupuncture, Digital X-Ray and MRI diagnostics, heart screening, holistic dentistry, a spa, gym and yoga center."
As to the concurring opinion that "cries out for legislative reform ", I think the judge is making the argument that while the constitutional amendment authorizes use and possession of marijuana for medical purposes, it fails to prevent criminal liability for those who supply it to patients and caregivers, requiring the patient and caregiver to engage in an illegal transaction to obtain it. In other words, we need legislation that allows state-licensed dispensaries or others to provide marijuana to those lawfully allowed to use it. The judge writes, we need legislation to effecuate the "salutory medical purposes of the Amendment". He doesn't seem to be arguing for further restrictions, just pointing out the contradiction.
In 2000, voters approved a constitutional amendment legalizing medical marijuana. (The text is here.) The Attorney General, local prosecutors and some state legislators want to impose legislative limits not authorized by voters. The media is playing along with them. (Note how the article stresses the number of males in their 20's obtaining medical marijuana permits, without mentioning that the state's statistics show the average age is 40 for male patients and 41 overall.)
Cities and towns are putting moratoriums and in some cases bans on the opening of dispensaries.
While today's opinion does not say a designated caregiver cannot grow and provide marijuana to patients, only that the caregiver must provide more than marijuana, and that the "more" must be something that shows they are significantly contributing to the patient's well-being, it may already be outdated. It states that it applies to a case that was pending before a new state regulation went into effect. On August 30, 2009, the Colorado Department of Public Health and Environment enacted 5 CCR 1006-2 that provides supplying marijuana is sufficient to constitute "Significant responsibility for managing the well-being of a patient":
Significant responsibility for managing the well-being of a patient” means assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana.
More information is available on Colorado's medical marijuana law and policy is available at Sensible Colorado.
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