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Health.
This was later changed to Public Safety due primarily to Health Director
Bruce Anderson's strong opposition to having it housed with his department
(despite DOH's support for the intent of the legislation as a whole). He
maintained that because DPS has purview over drug regulations, it was the
appropriate venue. This change was a political compromise since many
of us believe that a health issue such as medical cannabis belongs in the
health department and that putting it with public safety sends the message
that this is still about law enforcement.
"Medical use," as defined in the bill
is "the acquisition, possession, cultivation, use, distribution, or transportation
of marijuana or paraphernalia relating to the administration of marijuana
to alleviate the symptoms or effects of a qualifying patient's debilitating
medical condition." It specifies that "distribution" is limited to transfer
of cannabis and paraphernalia from the primary caregiver to the patient.
My layperson's interpretation of "acquisition" is that a qualifying patient
or caregiver may purchase it from the black market (though the seller would
not be legally protected) and/or cultivate a limited number of plants as
long as the total is less than the amount defined in the bill.
A "primary caregiver," must be over
18 and, like the patient, must register with Public Safety. A patient,
of course, is not required to have a caregiver if he or she can take care
of their own needs. A compromise provision states that each primary caregiver
can only care for one patient at any given time (an earlier draft permitted
one caregiver to care for up to three patients.) It's unclear what the
implications of this provision are for potential patient cooperatives,
buyers' clubs or the like. Oregon does have the former and an official
Oregon DOH handout, "10 Most Frequently Asked Questions," provides its
contact information.
The mechanism by which a physician
certifies a patient as qualified is called "written certification" as distinct
from a prescription. (Federal law, which remains in effect, prohibits prescription
of marijuana because it is remains in Schedule I, |
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the
most restrictive category.) This statement must say that in the doctor's
professional opinion "the qualifying patient has a debilitating medical
condition and the potential benefits of the medical use of marijuana would
likely outweigh the health risks for the qualifying patient." DPS
will likely create a standardized form for this which is good since it
is less burdensome for the doctor; it will be in effect for one year. What
is not so good is that the doctor must register the names, addresses, and
patient i.d. numbers with DPS. Clearly there is room for abuse here.
During the expected hearings on rules (see below) there will be opportunities
to address and hopefully remedy this requirement which raises concerns
about confidentiality.
Other facts about the bill: minors
are permitted access to mmj with their parents or guardians as caregivers;
use is prohibited in virtually all public areas; physicians will not be
penalized in any manner if they follow the procedures outlined in the bill;
marijuana and paraphernalia seized from a patient or caregiver must be
returned immediately after a court ruling, BUT (yes, another compromise)
law enforcement is not "responsible for the care and maintenance of such
plants"; there are small fines for misrepresentation of one's medical situation
to law enforcement. There is an "affirmative defense" available to prosecuted
persons who meet the requirements outlined in the bill. It is important
to keep in mind that this bill carves out an exception to our state's laws
on marijuana; all other laws regarding cannabis remain in effect.
Clearly many questions remain. One
of the major ones is will the federal government take actions against patients
under existing federal law? The answer is probably not, but there are no
guarantees. In The Honolulu Advertiser (4/27/00) it was reported
that Hawai'i US attorney Steve Alm says he has no intention of obtaining
the names of people who must register with the DPS: " 'That will not happen,'
Alm said." Nonetheless, the language in the actual bill is ambiguous. It
reads "Upon an inquiry by a law enforcement agency, the Department of Public
Safety shall verify whether the
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specify?
Below are a few of the major provisions with some commentary.
First SB 862, HD1 sets forth various
definitions. An "adequate supply" is defined as "not to exceed three mature
plants, four immature plants and one ounce of usable marijuana [dried leaves
and flowers, excluding seeds, stalks and roots] per each mature plant."
While these amounts would suffice for many patients who only need a few
puffs before meals or first thing in the morning to quell their nausea,
for those with other conditions, such as glaucoma, they are inadequate.
These amounts were taken directly from the Oregon law and are the highest
amounts permitted by any state. (Some jurisdictions, such as Oakland, permit
more.)
Next "debilitating medical condition"
is defined. This is defined in two different ways. It lists specific conditions
which would qualify (e.g., cancer, glaucoma, HIV/AIDS) and it also lists
symptoms which would qualify a patient (e.g. wasting syndrome, severe pain,
etc.). It also has a provision for a physician or "potentially qualifying
patient" to request that other medical conditions be added. The bill says
the Department of Health will make that determination, but since the Department
of Public Safety will be maintaining the patient registry, the departments
will likely collaborate on this.
A "qualifying patient" then is one
who has one of the conditions or the symptoms as defined above. They are
required to register with the Department of Public Safety and the department
may charge them a fee "not to exceed $25". This is a good provision since
the Oregon statute calls for a fee of $150 renewable annually which is
a substantial burden for many patients. The early drafts of the bill
had no registry provision at all, a controversial issue among proponents.
Some believe that only an official registry thoroughly protects patients;
while others believe that arming oneself with a physician's written certification
(as in Washington state) is adequate and poses less risk to the patient's
confidentiality. |
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