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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    Very odd requirement... (none / 0) (#1)
    by kdog on Thu Oct 29, 2009 at 02:48:25 PM EST
    that doesn't extend to other producers of medicines...Pfizer doesn't have to personally know any patients and see to their general well being in Colorado, right?  


    Well actually (5.00 / 1) (#5)
    by Steve M on Thu Oct 29, 2009 at 03:16:42 PM EST
    I'm pretty sure my dentist isn't allowed to just give me a hit of the laughing gas unless it's part of an actual dental procedure.  Unfortunately!

    You need... (none / 0) (#6)
    by kdog on Thu Oct 29, 2009 at 03:24:17 PM EST
    a new "friendlier" dentist Steve:)

    The students must be hittin' the tanks at the dental school I go to because no matter how I've begged and pleaded I got none of it...I gotta go to a Black Crowes show for some of that action.


    Caregiver? (none / 0) (#2)
    by Carolyn in Baltimore on Thu Oct 29, 2009 at 02:49:57 PM EST
    If medical marijuana is prescribed, then the dispenseries are acting as pharmacists, filling a prescription and giving direction how to use it. My pharmacist for any drugs my children or I take doesn't know me, doesn't interact unless I have a question, and doesn't provide other services. And they'd be fired from the Giant or CVS if they spent too much time on me.
    The care giver should be the prescriber, who IS suppposed to know the patient and help with other problems besides prescribing drugs, or an actual caregiver, who may help administer a drug but whose primary role is care giving.
    CO seems to not understand the structure of these relationships.

    I'm not clear on (none / 0) (#3)
    by kdog on Thu Oct 29, 2009 at 02:54:52 PM EST
    what "caregiver" means exactly...just call them growers, cuz thats what they do...grow.  And just let them grow.

    Is it a drug or not? (none / 0) (#4)
    by Fabian on Thu Oct 29, 2009 at 02:59:56 PM EST
    If it is a drug, then the obvious model to use would be the prescription model where one has an actual prescription filled at an authorized dispensary.  

    That's what this ruling should be about - if there is an approved process, then it should be used.  No malarkey about the definition of a caregiver.  Get the scrip, get the scrip filled.


    I can see where that might be a (none / 0) (#7)
    by Inspector Gadget on Thu Oct 29, 2009 at 04:27:04 PM EST
    problem. But, no reason why medical growers can't be the supplier to pharmacies, and medical offices exactly the way big pharma is now?

    Because illegal under federal law????? (none / 0) (#10)
    by oculus on Thu Oct 29, 2009 at 05:26:21 PM EST
    Then, we have yet another great reason (none / 0) (#11)
    by Inspector Gadget on Thu Oct 29, 2009 at 07:54:33 PM EST
    to get the Fed Laws changed :)

    Exactly. So why mess around with (none / 0) (#12)
    by oculus on Thu Oct 29, 2009 at 11:08:05 PM EST
    state law legalizing medical marijuana, worrying about who may grow it for medical marijuana purposes, etc.  Go for the gold.

    Colorado voters were tired of waiting for the Feds (none / 0) (#16)
    by Ben Masel on Fri Oct 30, 2009 at 05:34:40 AM EST
    so they took measures into their own hands with the ballot initiative which enacted the State Constitution provision at issue in this case.

    At the time, only 2 Senators, Spector and Feingold openly supported patients' access to cannabis.


    Problem is, pharmacies are regulated by the Feds (none / 0) (#13)
    by Ben Masel on Fri Oct 30, 2009 at 05:23:14 AM EST
    The State Medical Medical laws were written to get around the Federal prohibition on pharmaciers supplying to patients.

    mmj law cloudy (none / 0) (#8)
    by Lfrieling on Thu Oct 29, 2009 at 05:21:10 PM EST
    We're in a "through the looking glass" situation in Colorado.  Many people are trying their best to follow "rules" that do not yet exist.  Our success at the Colorado Dept. of Public Health and Safety should benefit those who supply cannabis since August 30, 2009.   As to before that.... it's hit and miss, with the latest Court of Appeals decision being a wrench in the works.

    In a prior post of Jeralyn's, re dispensing (none / 0) (#9)
    by oculus on Thu Oct 29, 2009 at 05:25:10 PM EST
    certain meds, such as morphine, health care professionals were contacting the federal government directly seeking a loosening of the restrictions.  Why do not those seeking change re medical marijuana also do the same?  

    Cannabis rescheduling petition's been pending (5.00 / 1) (#14)
    by Ben Masel on Fri Oct 30, 2009 at 05:25:33 AM EST
    since 2002, but has not been acted upon by HHS in all that time.

    The Cannabis Rescheduling Petition: An Introduction


    Wisconsin; Jacki Rickert Medical Marijuana Act (none / 0) (#15)
    by Ben Masel on Fri Oct 30, 2009 at 05:31:34 AM EST
    was introduced in the legislature last week, with 13 Assembly and 3 Senate sponsors.

    Governor doyle has indicated he;'ll sign.

    I'm quite confident we'll have the votes in the Senate, guardedly optimistic on the Assembly.

    Here's a column from our lead Senate sponsor. Senator Jon Erpenbach Time to consider medical marijuana