While medical marijuana is recognized as a viable treatment for patients suffering from certain conditions, the legal ramifications are more delicate. Studies show — and clinical trials continue to demonstrate — that there are several medicinal uses for cannabis products. Medical marijuana, however, cannot be handled like other pharmaceutical interventions.
The Federal Drug Administration (FDA) evaluates substances that can potentially be used as medicine. When a new drug is discovered, the FDA evaluates it before it can be marketed to patients. They also decide if a medicine should be available over-the-counter or only with the prescription of a physician.
According to the FDA, marijuana is a banned substance that has no medicinal value. The FDA banned marijuana decades ago in response to concerns that it caused violent behavior. In recent years, 23 states have passed legislation making access to cannabis products for medical purposes legal for patients with certain conditions. The doctors are caught in the middle.
Doctors who want to use marijuana to treat their patients walk a fine line between state and federal law, as their medical licenses might hang in the balance. It isn’t possible for a doctor to prescribe marijuana, since the FDA runs the prescription system in this country. A doctor attempting to write a prescription for a banned substance might risk his medical license.
Those who follow recent medical research, however, know that cannabis can be effective in relieving debilitating symptoms of some serious chronic disorders. Doctors who treat patients with seizure disorders, chronic pain or who are undergoing chemotherapy are anxious to relieve the suffering they see every day.
Patient consent is a legal term familiar to anyone who practices medicine with patients. Patient consent is designed to ensure doctors educate their patients about the treatments, test and procedures they undergo. A doctor must explain the treatment to the patient in a way that the patient understands what to expect. They must also discuss the risks and potential outcomes.
Patient consent confirms the patient is giving the doctor permission to perform the procedure, understanding the risks. It follows the legal principle that a patient has the right to decide what treatments he undergoes. A physician has an ethical duty to include the patient in healthcare decisions.
Fully informed consent includes discussing:
Patient consent may only be presumed or implied in emergency situations. For all other medical treatments and procedures, a written consent needs to be signed by the patient.
Medical marijuana creates a dilemma for doctors because of its strange legal position. While the state where you practice might consider cannabis a legal and viable treatment for your patients, the FDA doesn’t. Getting consent from your patient to treat with medical cannabis is especially important.
The patients who might gain the most benefit from marijuana treatment are also some of the riskiest. They have severe medical conditions that may predispose them to adverse outcomes from any type of treatment. In the case of cannabis treatment, you’re also working in a confusing legal environment.
Most states with medical marijuana programs also have a clearly defined standard of care. It’s important to stick to the state guidelines, so the state is assuming some of the risk. If there is a negative outcome from cannabis treatment, you can rely on the fact that you followed the state-sanctioned protocol for marijuana treatment.
A thorough patient consent for medical marijuana treatment includes informing your patient that:
You want to be sure your patient is giving you the most recent and honest information about their condition before recommending marijuana treatment. Patients should attest to the truth of all their statements and be required to follow up with you periodically.
There are a few legal considerations when treating a patient with medical marijuana. Your concern for your patient’s wellbeing comes first, but if you put your medical license in jeopardy, you won’t be able to help patients in the future. It’s a smart idea to understand the legal situation you face and navigate it carefully.
Under the First Amendment, you have a right to speak what you see as the truth. Although your actions may be restricted by the FDA, medical ethics bind you to share credible information with your patients. If you truly believe their suffering can be lessened by medical cannabis products, you have a duty to share this information.
No one can prosecute you for speaking freely to your patients — that’s why doctors recommend marijuana treatment rather than prescribe it. Writing a prescription for a banned substance is prohibited, but discussing its use is perfectly fine.
If you’re concerned about the legal risks of treating patients with medical marijuana, be cautious about your written communications on the subject. Your duty for record-keeping as a doctor requires a medical record for each patient visit. That’s where you can mention your recommendation for cannabis along with other information about the patient visit. Your patient is entitled to a copy of this medical record, and should be able to obtain the medicine they need with this document.
Patient consent is an important part of treating patients, especially with medical marijuana. Be sure to secure adequate consent in writing with a detailed consent form specifically tailored to cannabis treatment. Treating your patients requires protecting your medical license.
Below is an example medical marijauna consent for for illustrative purposes. A PDF version is available for download below.
A qualified physician may not delegate the responsibility of obtaining written informed consent to another person. The qualified patient or the patient’s parent or legal guardian if the patient is a minor must initial each section of this consent form to indicate that the physician explained the information and, along with the qualified physician, must sign and date the informed consent form.
a. The Federal Government’s classification of marijuana as a Schedule I controlled substance.
_____ The Federal Government has classified marijuana as a Schedule I controlled substance. Schedule I substances are defined, in part, as having (1) a high potential for abuse; (2) no currently accepted medical use in treatment in the United States; and (3) a lack of accepted safety for use under medical supervision. Federal law prohibits the manufacture, distribution and possession of marijuana even in states, such as Florida, which have modified their state laws to treat marijuana as a medicine.
_____When in the possession or under the influence of medical marijuana, the patient or the patient’s caregiver must have his or her medical marijuana use registry identification card in his or her possession at all times.
b. The approval and oversight status of marijuana by the Food and Drug Administration.
_____Marijuana has not been approved by the Food and Drug Administration for marketing as a drug. Therefore, the “manufacture” of marijuana for medical use is not subject to any federal standards, quality control, or other oversight. Marijuana may contain unknown quantities of active ingredients, which may vary in potency, impurities, contaminants, and substances in addition to THC, which is the primary psychoactive chemical component of marijuana.
c. The potential for addiction.
_____Some studies suggest that the use of marijuana by individuals may lead to a tolerance to, dependence on, or addiction to marijuana. I understand that if I require increasingly higher doses to achieve the same benefit or if I think that I may be developing a dependency on marijuana, I should contact Dr. _________________ (name of qualified physician).
d. The potential effect that marijuana may have on a patient’s coordination, motor skills, and cognition, including a warning against operating heavy machinery, operating a motor vehicle, or engaging in activities that require a person to be alert or respond quickly.
_____The use of marijuana can affect coordination, motor skills and cognition, i.e., the ability to think, judge and reason. Driving under the influence of cannabis can double the risk of crashing, which escalates if alcohol is also influencing the driver. While using medical marijuana, I should not drive, operate heavy machinery or engage in any activities that require me to be alert and/or respond quickly and I should not participate in activities that may be dangerous to myself or others. I understand that if I drive while under the influence of marijuana, I can be arrested for “driving under the influence.”
e. The potential side effects of medical marijuana use.
_____Potential side effects from the use of marijuana include, but are not limited to, the following: dizziness, anxiety, confusion, sedation, low blood pressure, impairment of short term memory, euphoria, difficulty in completing complex tasks, suppression of the body’s immune system, may affect the production of sex hormones that lead to adverse effects, inability to concentrate, impaired motor skills, paranoia, psychotic symptoms, general apathy, depression and/or restlessness. Marijuana may exacerbate schizophrenia in persons predisposed to that disorder. In addition, the use of medical marijuana may cause me to talk or eat in excess, alter my perception of time and space and impair my judgment. Many medical authorities claim that use of medical marijuana, especially by persons younger than 25, can result in long-term problems with attention, memory, learning, drug abuse, and schizophrenia.
_____I understand that using medical marijuana while consuming alcohol is not recommended. Additional side effects may become present when using both alcohol and marijuana.
_____I agree to contact Dr. _________________ if I experience any of the side effects listed above, or if I become depressed or psychotic, have suicidal thoughts, or experience crying spells. I will also contact Dr. _________________ if I experience respiratory problems, changes in my normal sleeping patterns, extreme fatigue, increased irritability, or begin to withdraw from my family and/or friends.
f. The risks, benefits, and drug interactions of marijuana.
_____Signs of withdrawal can include: feelings of depression, sadness, irritability, insomnia, restlessness, agitation, loss of appetite, trouble concentrating, sleep disturbances and unusual tiredness.
_____Symptoms of marijuana overdose include, but are not limited to, nausea, vomiting, hacking cough, disturbances in heart rhythms, numbness in the hands, feet, arms or legs, anxiety attacks and incapacitation. If I experience these symptoms, I agree to contact Dr. _________________ immediately or go to the nearest emergency room.
_____Numerous drugs are known to interact with marijuana and not all drug interactions are known. Some mixtures of medications can lead to serious and even fatal consequences. I agree to follow the directions of Dr. _________________ regarding the use of prescription and non-prescription medication. I will advise any other of my treating physician(s) of my use of medical marijuana.
_____Marijuana may increase the risk of bleeding, low blood pressure, elevated blood sugar, liver enzymes, and other bodily systems when taken with herbs and supplements. I agree to contact Dr._________________ immediately or go to the nearest emergency room if these symptoms occur.
_____I understand that medical marijuana may have serious risks and may cause low birthweight or other abnormalities in babies. I will advise Dr. _________________ if I become pregnant, try to get pregnant, or will be breastfeeding.
g. The current state of research on the efficacy of marijuana to treat the qualifying conditions set forth in this section.
There is evidence to suggest that cannabinoids (and the endocannabinoid system more generally) may play a role in the cancer regulation processes. Due to a lack of recent, high quality reviews, a research gap exists concerning the effectiveness of cannabis or cannabinoids in treating cancer in general.
There is insufficient evidence to support or refute the conclusion that cannabinoids are an effective treatment for cancer-associated anorexia-cachexia syndrome and anorexia nervosa.
Recent systematic reviews were unable to identify any randomized controlled trials for evaluating the efficacy of cannabinoids for the treatment of epilepsy. Currently available clinical data therefore consist solely of uncontrolled case series, which do not provide high-quality evidence of efficacy. Randomized trials of the efficacy of cannabidiol for different forms of epilepsy have been completed and await publication.
Lower intraocular pressure is a key target for glaucoma treatments. Non-randomized studies in healthy volunteers and glaucoma patients have shown short-term reductions in intraocular pressure with oral, topical eye drops, and intravenous cannabinoids, suggesting the potential for therapeutic benefit. A good-quality systemic review identified a single small trial that found no effect of two cannabinoids, given as an oromucosal spray, on intraocular pressure. The quality of evidence for the finding of no effect is limited. However, to be effective, treatments targeting lower intraocular pressure must provide continual rather than transient reductions in intraocular pressure. To date, those studies showing positive effects have shown only short-term benefit on intraocular pressure (hours), suggesting a limited potential for cannabinoids in the treatment of glaucoma.
_____Positive status for human immunodeficiency virus.
There does not appear to be good-quality primary literature that reported on cannabis or cannabinoids as effective treatments for AIDS wasting syndrome.
_____Acquired immune deficiency syndrome
There does not appear to be good-quality primary literature that reported on cannabis or cannabinoids as effective treatments for AIDS wasting syndrome.
_____Post-traumatic stress disorder
A single, small crossover trial suggests potential benefit from the pharmaceutical cannabinoid nabilone. This limited evidence is most applicable to male veterans and contrasts with non-randomized studies showing limited evidence of a statistical association between cannabis use (plant derived forms) and increased severity of posttraumatic stress disorder symptoms among individuals with posttraumatic stress disorder. There are other trails that are in the process of being conducted and if successfully completed, they will add substantially to the knowledge base.
_____Amyotrophic lateral sclerosis
Two small studies investigated the effect of dronabinol on symptoms associated with ALS. Although there were no differences from placebo in either trial, the sample sizes were small, the duration of the studies was short, and the dose of dronabinol may have been too small to ascertain any activity. The effect of cannabis was not investigated.
Some studies suggest that marijuana in the form of cannabidiol may be beneficial in the treatment of inflammatory bowel diseases, including Crohn’s disease.
Evidence suggests that the endocannabinoid system plays a meaningful role in certain neurodegenerative processes; thus, it may be useful to determine the efficacy of cannabinoids in treating the symptoms of neurodegenerative diseases. Small trials of oral cannabinoid preparations have demonstrated no benefit compared to a placebo in ameliorating the side effects of Parkinson’s disease. A seven-patient trial of nabilone suggested that it improved the dyskinesia associated with levodopa therapy, but the sample size limits the interpretation of the data. An observational study demonstrated improved outcomes, but the lack of a control group and the small sample size are limitations.
Based on evidence from randomized controlled trials included in systematic reviews, an oral cannabis extract, nabiximols, and orally administered THC are probably effective for reducing patient-reported spasticity scores in patients with MS. The effect appears to be modest. These agents have not consistently demonstrated a benefit on clinical-measured spasticity indices.
_____Medical conditions of same kind or class as or comparable to the above qualifying medical conditions
_____Terminal conditions diagnosed by a physician other than the qualified physician issuing the physician certification
_____Chronic nonmalignant pain
The majority of studies on pain evaluated nabiximols outside the United States. Only a handful of studies have evaluated the use of cannabis in the United States, and all of them evaluated cannabis in flower form provided by the National Institute on Drug Abuse. In contrast, many of the cannabis products that are sold in state-regulated markets bear little resemblance to the products that are available for research at the federal level in the United States. Pain patients also use topical forms.
While the use of cannabis for the treatment of pain is supported by well-controlled clinical trials, very little is known about the efficacy, dose, routes of administration, or side effects of commonly used and commercially available cannabis products in the United States.
h. That the patient’s de-identified health information contained in the physician certification and medical marijuana use registry may be used for research purposes.
_____The Department of Health submits a data set to The Medical Marijuana Research and Education Coalition for each patient registered in the medical marijuana use registry that includes the patient’s qualifying medical condition and the daily dose amount and forms of marijuana certified for the patient.
_____I have had the opportunity to discuss these matters with the physician and to ask questions regarding anything I may not understand or that I believe needed to be clarified. I acknowledge that Dr._________________ has informed me of the nature of a recommended treatment, including but not limited to, any recommendation regarding medical marijuana.
Dr. _________________ also informed me of the risks, complications, and expected benefits of any recommended treatment, including its likelihood of success and failure. I acknowledge that Dr._________________ informed me of any alternatives to the recommended treatment, including the alternative of no treatment, and the risks and benefits.
Dr. ___________________________ has explained the information in this consent form about the medical use of marijuana.
Patient (print name) _____________________________
Patient signature or signature of the parent or legal guardian if the patient is a minor:
I have explained the information in this consent form about the medical use of marijuana to _________________________________ (Print patient name).
Qualified physician signature:
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This example is meant for illustrative purposes only and may not be applicable to or meet every state’s laws. Marijuana Doctors recommends that each practice consults with their legal advisors to draft a unique consent form that meets the needs and requirements of their practice and state laws.
This information is not provided by legal or medical professionals and is intended only to complement, and not to replace or contradict, any legal, health or medical advice or information provided by legal or healthcare professionals. If you have any questions, please contact your attorney, lawyer, doctor or other healthcare professional.