Judge O’Connell Has Done A Great Disservice For Our State.

[peanutbutter]

Judge O’Connell has done a great disservice for our state.

 

There was a single question before the Court of Appeals, in the Redden Clark case. Anyone reading the judge’s ramble would have a difficult time determining exactly what that question was.

 

Instead of addressing that single question, he went on to explore as much of the Michigan Medical Marijuana Act as he could imagine. The judge claims this was in response to a request from all of the attorneys presenting in the case. Defense attorneys have denied this. News reporters have been denied access to the pleadings presented by the attorneys in the case. These pleadings are important to the case as the judge claims to be making a response to them. Many of our community would like to closely examine those pleadings to determine exactly what questions were being asked of that court. Exactly what the judge was responding to? Access has been denied.

 

One of the primary comments that he made implied that no one should try to understand the law. Not until the Michigan Supreme Court has had rulings on it. This comment seems to imply that law enforcement and patients are expected to act as if our new law doesn’t exist at all. Many in law enforcement want to do just that.

 

Many in law enforcement have come to look at his ramblings as a “ruling” from the courts. The Detroit News calls these ramblings a “ruling.”

 

The ramblings of this judge are not a “ruling.” They are perceptions of one person. Not the ruling of the court. The ramblings are not supposed to carry the weight of law.

 

Entirely overlooked, by Judge O’Connell, is the transition that takes place when a patient applies to the state for an ID card. The judge noted that there is an escalation of protections provided to the patient when the patient makes application. What he failed to recognize is the escalation of protections afforded to the caregiver AND DOCTOR when that application is submitted.

 

Here is a quote of that section of law:

Section 6 (h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

 

Here that confidential information is highlighted again and expanded:

Section 6 (h) (2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list is confidential

 

Judge O’Connell ignores the confidential nature of the information and attempts to establish a method that will require every doctor in the state to being drug into the court system. This method threatens to bury our court systems. This would flood our courts with needless hearings.

 

The judge questions the quantities that a patient may be using. The medical use of marijuana needs to be self-regulating at this time. Doctors are not allowed to prescribe this medicine. Federal regulations would strip a doctor of their ability to prescribe any other drug if they were to prescribe marijuana. Federal law forbids them to regulate the quantities a patient uses. Most of us have had a prescription written for us that reads “take as needed.”

 

Therefore the question of quantities that a patient may be using is moot. The judge believes that the doctor should regulate these quantities. I might agree with the judge, IF federal law enforcement were to step out of the way. For the time being, federal law forbids what the judge suggests.

 

Next the judge suggests that the quality of the relationship between the doctor and patient is subject to review by the courts. Again the judge is trying to flood the courts with useless hearings. This is a direct threat issued toward the medical community of our state. This is clearly not the intent of our new law. This issue is difficult for a court to explore when the identity of the doctor is confidential information. Medical practice is not the normal arena of the courts. Judges and lawyers are not normally issued medical licenses. There is little medical education involved in becoming a judge. No questions about medicine on a state bar exam. The persons involved in the court systems are not qualified to make medical judgments.

 

There is a regulatory agency that does specialize in medical issues. The Michigan Department of Community Health. That department, in Lansing, has been given the job of regulating the doctors involved in the licensing process of issuing medical marijuana ID cards. They are the very people that are the most qualified to make these determinations.

 

Judge O’Connell seems to suggest that the authority of the department in Lansing should be undermined. He seems to suggest that proper medical determination should be in the hands of unqualified judges and law enforcement instead of the pre existing, physician licensing, department in Lansing, the MDCH.

 

The only way for such a world to exist is if you ignore confidentiality issues within the law.

 

The question of the nature of the relationship between the doctor and patient is resolved by the agency, designated by law, to examine that relationship for every single ID card issued by the state. Every single patient, with no exception, has had that relationship examined before a card is issued. This is the same agency that issues licenses to doctors to practice medicine within Michigan. They are obviously more qualified to determine questions of medicine than judges or lawyers with no medical training at all. This department issues a license based on it’s own determination. In order to do so they have to examine and approve the very relationship that the judge questions.

 

This is where Judge O’Connell has “missed the mark.”

 

The relationship between the doctor and patient has already been determined at the time the regulatory agency issues the ID card. At that point our law hides, from courts and law enforcement, the identity of the doctor. This protects the doctors of our state from being abused by the legal system.

 

It is the transition from being an unregistered patient to being fully registered that provides this protection for our doctors. It is no longer necessary to examine that relationship. It has already been verified. The MDCH does so for every single medical marijuana patient without exception.

 

When our law was first passed, there was a threat issued to the doctors of our state. “If you sign a letter for a patient to use marijuana, your license will be revoked.”

 

This was intended to send a chill through the medical community. To slow down the numbers of people legally consuming marijuana. The legal community could not stop medical marijuana in Michigan. Since the system could not stop medical marijuana, they attempted to slow it down. If the doctors of the state could be threatened, it would stop the proliferation of medical marijuana ID cards being issued.

 

This judge is attempting to undermine that very law. He doesn’t like the law so he seeks to make it null and void.

 

The two primary issues in the judges ramblings are already answered by law. The ID card is evidence that a bone fide relationship exists between the patient and doctor. This relationship has been reviewed and confirmed by the MDCH. Once the proper department has verified that relationship, it is no longer an issue for the courts. It is simply a fact. The ID card is the evidence that the relationship does indeed exist. This is no longer a question for unqualified lawyers and judges.

 

If the courts accept the ID card, as intended by law, there is no need to have the doctor in court at all. In fact, the identity of the doctor is no longer needed. This gives room for the confidentiality section of the law to be in force.

 

“What force?” you might ask.

 

There is force in the confidentiality section of our new law. Which is something else that the judge ignored. When the confidentiality section of our new law is violated, someone is supposed to go be arrested.

 

Section 6 (h) (4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1, 000.00, or both.

 

Names and identifying information of patients, caregivers and doctors are defined as confidential once application has been made to the licensing department in Lansing.

 

The judge may have broken this law in the very rant that he published.

 

He named the doctor. Violating the confidentiality of state licensing information.

 

I say “may have” only because the judge has not been arrested and tried for this crime.

 

Unlike the judge, I assume innocence until proven guilty.

[DenturesLost]

One of the primary comments that he made implied that no one should try to understand the law. Not until the Michigan Supreme Court has had rulings on it. This comment seems to imply that law enforcement and patients are expected to act as if our new law doesn’t exist at all. Many in law enforcement want to do just that.

 

The judge questions the quantities that a patient may be using. The medical use of marijuana needs to be self-regulating at this time. Doctors are not allowed to prescribe this medicine. Federal regulations would strip a doctor of their ability to prescribe any other drug if they were to prescribe marijuana. Federal law forbids them to regulate the quantities a patient uses. Most of us have had a prescription written for us that reads “take as needed.”

 

Therefore the question of quantities that a patient may be using is moot. The judge believes that the doctor should regulate these quantities. I might agree with the judge, IF federal law enforcement were to step out of the way. For the time being, federal law forbids what the judge suggests.

 

The question of the nature of the relationship between the doctor and patient is resolved by the agency, designated by law, to examine that relationship for every single ID card issued by the state. Every single patient, with no exception, has had that relationship examined before a card is issued.

 

The two primary issues in the judges ramblings are already answered by law. The ID card is evidence that a bone fide relationship exists between the patient and doctor. This relationship has been reviewed and confirmed by the MDCH. Once the proper department has verified that relationship, it is no longer an issue for the courts. It is simply a fact. The ID card is the evidence that the relationship does indeed exist. This is no longer a question for unqualified lawyers and judges.

 

The judge may have broken this law in the very rant that he published.

 

He named the doctor. Violating the confidentiality of state licensing information.

 

 

In the interest of calling a spade a spade the MDCH doesn't have the ability to create nor confirm a bonafide dr/pt relationship. They don't do ANY checking. The extent of their checking involves visually inspecting the application and making sure it looks correct. If they actually have called a drs office or cross-referenced a dr's license number a few times that is the exception rather than the rule. That is from the MDCH's own mouth. They can verify that a dr is legit and MAYBE they can call a dr's office to see if a pt was seen but that's it. The law requires a bonafide dr/pt relationship so whether one exists is fair game for the prosecutor. A bonafide ralationship doesn't mean that the dr signed a paper. It goes beyond that and it is not within the MDCH's scope of work to confirm that relationship. Checking that out would require reviewing med records or checking if the dr actually met with and examined the pt.

 

The judge didnt break the law. The name of the dr was already public record from the very beginnings of this case. Simply restating something that is public record can never be a violation of confidentiality because that ship already sailed when the dr's name was first mentioned.

 

If you read the judge's opinion closely and you know how to read a judge's opinion then you realize and understand that his opinion was what is known as dictum which means it is not legally binding. The only thing legally binding out of that case was the actual ruling by the majority. That ruling was basically that the first judge shouldn't have shut down the prosecution when they wanted to question the dr. That's it. Nothing more. And frankly that makes sense. If the defendant puts on a witness then the prosecution has the right to cross-examine. All that ruling did was affirm that right to cross-examine. Why do people keep making more out of this than it is??? Basically what the COA said was there was procedural error in the district court. Stop turning this whole thing into the catastrophe that it is not. We still have the exact same rights we had before this case came down.

 

So, as you were, soldier.

[bobandtorey]

In the interest of calling a spade a spade the MDCH doesn't have the ability to create nor confirm a bonafide dr/pt relationship. They don't do ANY checking. The extent of their checking involves visually inspecting the application and making sure it looks correct. If they actually have called a drs office or cross-referenced a dr's license number a few times that is the exception rather than the rule. That is from the MDCH's own mouth. They can verify that a dr is legit and MAYBE they can call a dr's office to see if a pt was seen but that's it. The law requires a bonafide dr/pt relationship so whether one exists is fair game for the prosecutor. A bonafide ralationship doesn't mean that the dr signed a paper. It goes beyond that and it is not within the MDCH's scope of work to confirm that relationship. Checking that out would require reviewing med records or checking if the dr actually met with and examined the pt.

 

The judge didn't break the law. The name of the Dr was already public record from the very beginnings of this case. Simply restating something that is public record can never be a violation of confidentiality because that ship already sailed when the Dr's name was first mentioned.

 

If you read the judge's opinion closely and you know how to read a judge's opinion then you realize and understand that his opinion was what is known as dictum which means it is not legally binding. The only thing legally binding out of that case was the actual ruling by the majority. That ruling was basically that the first judge shouldn't have shut down the prosecution when they wanted to question the Dr. That's it. Nothing more. And frankly that makes sense. If the defendant puts on a witness then the prosecution has the right to cross-examine. All that ruling did was affirm that right to cross-examine. Why do people keep making more out of this than it is??? Basically what the COA said was there was procedural error in the district court. Stop turning this whole thing into the catastrophe that it is not. We still have the exact same rights we had before this case came down.

 

So, as you were, soldier.

the Doc was in court and did testify for over 3 hours and we each have 2 cards for the same Doc

i was their and the PA wanted to bring inn her Doc to go against are Doc the Judge didn't want that to happen for some reasons

[peanutbutter]

In the interest of calling a spade a spade the MDCH doesn't have the ability to create nor confirm a bonafide dr/pt relationship. They don't do ANY checking. The extent of their checking involves visually inspecting the application and making sure it looks correct. If they actually have called a drs office or cross-referenced a dr's license number a few times that is the exception rather than the rule. That is from the MDCH's own mouth. They can verify that a dr is legit and MAYBE they can call a dr's office to see if a pt was seen but that's it. The law requires a bonafide dr/pt relationship so whether one exists is fair game for the prosecutor. A bonafide ralationship doesn't mean that the dr signed a paper. It goes beyond that and it is not within the MDCH's scope of work to confirm that relationship. Checking that out would require reviewing med records or checking if the dr actually met with and examined the pt.

 

The judge didnt break the law. The name of the dr was already public record from the very beginnings of this case. Simply restating something that is public record can never be a violation of confidentiality because that ship already sailed when the dr's name was first mentioned.

 

If you read the judge's opinion closely and you know how to read a judge's opinion then you realize and understand that his opinion was what is known as dictum which means it is not legally binding. The only thing legally binding out of that case was the actual ruling by the majority. That ruling was basically that the first judge shouldn't have shut down the prosecution when they wanted to question the dr. That's it. Nothing more. And frankly that makes sense. If the defendant puts on a witness then the prosecution has the right to cross-examine. All that ruling did was affirm that right to cross-examine. Why do people keep making more out of this than it is??? Basically what the COA said was there was procedural error in the district court. Stop turning this whole thing into the catastrophe that it is not. We still have the exact same rights we had before this case came down.

 

So, as you were, soldier.

 

This IS the confidentiality issue.

 

The judge is attempting to render that section of the law null and void.

 

In that attempt, he attempts to undermine the authority given to the MDCH by the voters. He also attempts to undermine the enforcement of the law by encouraging courts to ignore confidentiality. He sets an example of undermining the confidentiality section of the law by naming the doctor in a public record.

 

You point out that the name of the doctor was already disclosed so confidentiality no longer applies. Someone else breaks the law so that gives me permission to do the same? I think not.

 

If the system choses to ignore the confidentiality section of the law, the court system of our state is exposed to a deluge of endless hearings. If the confidentiality section is enforced and respected those hearings all go away.

 

Since the confidentiality section actually exists, it would be in the best interests of everyone to obey it. Even after someone else breaks it.

[DenturesLost]

This IS the confidentiality issue.

 

The judge is attempting to render that section of the law null and void.

 

In that attempt, he attempts to undermine the authority given to the MDCH by the voters. He also attempts to undermine the enforcement of the law by encouraging courts to ignore confidentiality. He sets an example of undermining the confidentiality section of the law by naming the doctor in a public record.

 

You point out that the name of the doctor was already disclosed so confidentiality no longer applies. Someone else breaks the law so that gives me permission to do the same? I think not.

 

If the system choses to ignore the confidentiality section of the law, the court system of our state is exposed to a deluge of endless hearings. If the confidentiality section is enforced and respected those hearings all go away.

 

Since the confidentiality section actually exists, it would be in the best interests of everyone to obey it. Even after someone else breaks it.

 

Confidentiality in this case is a red herring. For 2 reasons:

1. Once something is made a matter of public record you no longer have a "right" to confidentiality in the matter. Why? Because it is public record. If the aggrieved parties were concerned about confidentiality then they, and only they, have standing to address it and have it stricken from the record. Since the matter is contained in public record there is no more confidentiality. That's the point. To say that the COA judge broke the law by revealing confidential info is just plain incorrect. The judge didn't REVEAL anything. He simply used info in the RECORD which it is entirely within his purview to do... The cat was let out of the bag and probably by the defense anyway which would be a waiver of confidentiality. The cat ain't gettin back in. After confidential info becomes part of public record it is IMPOSSIBLE to break the law by repeating the info. What you are arguing is that confidential information retains its status as confidential even when it becomes part of public record. Confidential, by its very definition, means SECRET. Public record is NOT a secret. Repeating info contained within public record is not a violation of confidentiality. The judge isn't guilty of revealing confidential info anymore than he would be guilty of killing a man who is already dead if the judge shot him.

2. You cutting off your nose to spite your face. You elude to the bonafide relationship bits and then to confidentiality. If a bonafide relationship is called into question the ONLY way to rebut it would be for a defendant to revealinfo that would otherwise be confidential. The act itself requires a bonafide relationship. How are you going to prove a bonafide relationship without revealing something confidential, be it medical records, a doc to testify, etc.? You simply cannot. The act recognizes that the info should be confidential but clearly also recognizes that there may be times where it must be revealed.

[greenbuddha]

After the elections on November 2nd you can be SURE the MMM Act will be looked at VERY hard by the politicians that we send to Lansing as well as the 'judges' and the courts.

 

HAVE NO DOUBT OF THAT!

 

EVERY candidate for 'district judge' that I've spoken with (talked to three of them) ALL said the MMM Act needs a GREAT DEAL of 'CLARIFICATION' and these judges, no matter WHAT party they might lean to, ALL have LEO backing and the 'pols' in Lansing listen to them.

 

What this actually means is that they want to CHANGE the MMM Act.!

 

At the very LEAST we will see an attempt to change the 'patient / doctor relationship requirements.

 

Be wise in your selection of 'District Judges' AND the 'politicians' you vote into office in Lansing.

[peanutbutter]

Confidentiality in this case is a red herring. For 2 reasons:

 

2. You cutting off your nose to spite your face. You elude to the bonafide relationship bits and then to confidentiality. If a bonafide relationship is called into question the ONLY way to rebut it would be for a defendant to revealinfo that would otherwise be confidential. The act itself requires a bonafide relationship. How are you going to prove a bonafide relationship without revealing something confidential, be it medical records, a doc to testify, etc.? You simply cannot. The act recognizes that the info should be confidential but clearly also recognizes that there may be times where it must be revealed.

 

That is exactly my point. The relationship between the doctor and patient CAN NOT be explored in a court setting.

 

The MDCH is the place for that relationship to be explored. Not by unqualified judges and lawyers.

 

That is precisely what would be in place if the courts would obey the law.

 

The judge here encourages the judicial system to ignore this aspect of our law. For what purpose? To put otherwise innocent people in jail.

 

The only time that this information to be disclosed is when there is reason to believe that fraud has been committed. Then it is the MDCH that contacts police. Not the other way around.

 

BTW .. those are not "my" records at the MDCH. These are state records. There is no provision in this law for me to open these state records.

[greenbuddha]

That is exactly my point. The relationship between the doctor and patient CAN NOT be explored in a court setting.

 

The MDCH is the place for that relationship to be explored. Not by unqualified judges and lawyers.

 

That is precisely what would be in place if the courts would obey the law.

 

The judge here encourages the judicial system to ignore this aspect of our law. For what purpose? To put otherwise innocent people in jail.

 

The only time that this information to be disclosed is when there is reason to believe that fraud has been committed. Then it is the MDCH that contacts police. Not the other way around.

 

BTW .. those are not "my" records at the MDCH. These are state records. There is no provision in this law for me to open these state records.

 

 

This point is also EXACTLY WHY after the elections among other possible changes, you will see an attempt to change the rules that define the 'doctor and patient' relationship to one that requires more visits AND a long term p / d relationship.

 

The 'pols' and LEO are right now looking at other States that have much stricter 'recommendation requirements' for guidance in changing the 'law'.

 

The 'election' on November 2nd is going to be the 'defining factor' in whether or not the MMM Act is changed.

 

IF these 'changes' are made the courts WILL be able to use the p / d relationship to nullify the 'patient's' card if it does not meet the 'new' standards.

 

SOON after the elections IF they swing a 'certain' way I think you won't be able to say that , "the doctor and patient relationship CAN'T be explored in court."

 

IT WILL BE EXPLORABLE!

[+Dizledot]

The following is from the news paper. They want to control this any way they can!

Clear the haze

State Gaming Control Board provides a good model for creating regulations on medical marijuana

 

For some weeks, law enforcement officials, political leaders and even a judge of the state Court of Appeals have been calling on state lawmakers to clarify Michigan's medical marijuana law. Oakland Sheriff Michael Bouchard, one of those seeking clarification, has suggested a good model for medical marijuana law reform — the Michigan Gaming Control Board.

 

The medical marijuana issue has been in the headlines because of recent raids by law enforcement officials on so-called medical marijuana "dispensaries" in Ferndale and Waterford Township.

 

Advertisement

 

Ruling in a separate case involving different defendants, Judge Peter O'Connell last month issued a detailed ruling noting that the medical marijuana law, which became a state statute via an initiative petition, was "inartfully drafted," confusing and contained passages that conflicted with other portions of state law.

 

Bouchard, a Republican, fellow Republican County Executive Brooks Patterson and Oakland Prosecuting Attorney Jessica Cooper, a Democrat, have mounted a bipartisan campaign to get the law clarified.

 

As O'Connell pointed out in his ruling, the law does not grant people a right to use marijuana — it merely prohibits people from being prosecuted for violating the law if they can show they have received a certification from a physician saying that marijuana has a palliative effect on the symptoms of their disease. They may receive marijuana from a "caregiver" who is not allowed to provide the substance for more than five people.

 

According to Cooper, there is no provision in the law for dispensaries and O'Connell pointed out in his ruling that there is no economic justification for a dispensary given the five-patient rule.

 

O'Connell also noted that the medical marijuana law allows a doctor to write a "certification" for medical marijuana use for a patient with whom he or she has a "bona-fide physician-patient relationship" and if the doctor has completed a "full assessment" of a patient's medical history. But, the judge continues, the law establishes no criteria to judge whether such a relationship exists.

 

Nor does the current law, Cooper and Bouchard note, specify how caregivers are to obtain the marijuana that they then provide their patients.

 

All of these problems recommend the creation, as Bouchard suggests, of a process similar to the Gaming Control Board.

 

Bouchard, as a state legislator, had a large hand in setting up the gaming board. Legalized casino gambling, like medical marijuana, was authorized by the initiative process.

 

State lawmakers then designated some of their colleagues to study the issue, look at the best practices of other states with a history of legalized casino gambling and come up with a regulatory regime to handle it in Michigan that could be enacted into law.

 

The same should be done with medical marijuana. More than a dozen other states allow the use of marijuana for medical purposes. Their regulations should be studied and a framework of rules established that fills in the gaps left by the initiated law.

 

As Bouchard observed, state lawmakers had to obtain votes from three-fourths of their colleagues, since the medical pot law is the result of the initiative process. But they realized that effective, reliable regulations were needed for gaming establishments.

 

The same situation applies with regard to medical marijuana use. Judge O'Connell said he wanted to "cut through the haze" surrounding this legislation. The Legislature should do so as well.

 

 

From The Detroit News: http://www.detnews.com/article/20101019 ... z12s0tLgUF<BR clear=all>

[DenturesLost]

That is exactly my point. The relationship between the doctor and patient CAN NOT be explored in a court setting.

 

The MDCH is the place for that relationship to be explored. Not by unqualified judges and lawyers.

 

That is precisely what would be in place if the courts would obey the law.

 

The judge here encourages the judicial system to ignore this aspect of our law. For what purpose? To put otherwise innocent people in jail.

 

The only time that this information to be disclosed is when there is reason to believe that fraud has been committed. Then it is the MDCH that contacts police. Not the other way around.

 

BTW .. those are not "my" records at the MDCH. These are state records. There is no provision in this law for me to open these state records.

That's like saying if a doc writes me 5 different scripts for vicodin so I can take them to 5 different pharmacies then it is up to the MDCH to fix that. They aren't a policing agency in that regard. They, like a pharmacist, can only go on what a dr orders. They cannot explore the underlying relationship. They have no business doing that. That's like saying they should preside over medical malpractice trials. Malpractice trials are about medicine, yes, but it doesn't take a professional to decide whether a dr followed the standard of care or breached it.

 

You want the MDCH to make those determinations? They can't even get a darn card out on time!

 

What you are suggesting is that if there is a question regarding a bonafide dr/pt relationship then the prosecutor should go to the MDCH, an EXECUTIVE branch agency, to ask them to investigate whether the relationship rose to the proper level. So let's leave it up to a branch of government that is totally under the political control of one person---the governor. WOW, THAT would improve outcomes! Better hope we don't have a string of governors like Engler then....

 

All that aside, the MDCH doesn't have the power to make that determination for a court anyway. That would require a change in law. Harken back to your schoolhouse rock days during saturday morning cartoons. Review the one about separation of powers. The legislature, or in this case the public initiative, would have to DELGATE authority for the MDCH to make that determination. It hasn't. Therefore, such a legal determination remains with the courts.

[peanutbutter]

All that aside, the MDCH doesn't have the power to make that determination for a court anyway. That would require a change in law. Harken back to your schoolhouse rock days during saturday morning cartoons. Review the one about separation of powers. The legislature, or in this case the public initiative, would have to DELGATE authority for the MDCH to make that determination. It hasn't. Therefore, such a legal determination remains with the courts.

 

but the law DID get changed. With a supremacy clause that requires a 3/4 majority to void.

 

This judge is trying to turn every court in our state into a zoo.

 

I would go as far as saying that the courts have not yet came to a conclusion on this matter.

 

One side of this argument reduces court docket. The other side slams the courts with hearings.

[DenturesLost]

but the law DID get changed. With a supremacy clause that requires a 3/4 majority to void.

 

This judge is trying to turn every court in our state into a zoo.

 

I would go as far as saying that the courts have not yet came to a conclusion on this matter.

 

One side of this argument reduces court docket. The other side slams the courts with hearings.

The point is that the MMA would need changed. The MMA does not delegate authority to the MDCH to make the determination regarding what constitutes a bonafide relationship. To delegate such authority the MMA would have to make that grant.

[peanutbutter]

The point is that the MMA would need changed. The MMA does not delegate authority to the MDCH to make the determination regarding what constitutes a bonafide relationship. To delegate such authority the MMA would have to make that grant.

 

That would require ignoring the confidentiality issue.

 

That issue is addressed in the law.

 

To review any of the information that is kept in the MDCH would require the ignoring of the confidentiality protections provided under the law.

 

This issue is so important to our law that the writers included criminal penalties for violation.

edit ** This would be violations committed by employees and officials of state and local government. **

 

The only way that judge O'Connell could consider reviewing this state licensing information is by ignoring that section of law.

[peanutbutter]

To date .. this law has not been enforced at all.

 

Every medical case has been under health code or the CSA.

 

There are criminal penalties within our law that can be enforced.

 

Someone with a ID card can't sell to someone without. New crime, never enforced yet.

You can't claim you are a legit patient if you aren't. New crime .. never enforced yet.

Disclosing confidential information. New crime .. never enforced yet.

 

Every medical case, so far, involves the government trying to limit the protections of our law. Not the enforcement of it.

[DenturesLost]

To date .. this law has not been enforced at all.

 

Every medical case has been under health code or the CSA.

 

There are criminal penalties within our law that can be enforced.

 

Someone with a ID card can't sell to someone without. New crime, never enforced yet.

You can't claim you are a legit patient if you aren't. New crime .. never enforced yet.

Disclosing confidential information. New crime .. never enforced yet.

 

Every medical case, so far, involves the government trying to limit the protections of our law. Not the enforcement of it.

Wrong on all points.

The affirmative defense would allow someone with a card to sell to someone without.

I can claim I am a pt to anyone I want unless I am doing it to a. obstruct justice or b. commit fraud.

Okay, I'm wrong on point 3. You cannot disclose confidential info. However, your interpretation of what is disclosure of confidential info is wrong. You keep harping on this. However, when something is made part of public record it is already disclosed. The only person you could go after at that point would be the person who initially made it a part of public record which is generally the defendant.

 

Really pb I am wondering if you are starting to crack up. A COA judge doesn't have a duty to sift through a public record and decide if the info contained therein is, was, or should be confidential, top secret, or "vaulted." The very fact that it is public means it is not confidential. That flight flew way back in the district court. Whether it should have been confidential is a different argument altogether but the fact remains that at the time the parties used the info in their briefs to the COA and then filed those briefs that info became public. A judge doesn't have a duty to be a fact-checker or anything else. The very job of a COA judge is to look at the RECORD and the law and make a decision. Not to decide if the record is correct or should've been kept a top secret military file. Such a determination would need to be made long before it got to the COA.

[greenbuddha]

The following is from the news paper. They want to control this any way they can!

Clear the haze

State Gaming Control Board provides a good model for creating regulations on medical marijuana

 

For some weeks, law enforcement officials, political leaders and even a judge of the state Court of Appeals have been calling on state lawmakers to clarify Michigan's medical marijuana law. Oakland Sheriff Michael Bouchard, one of those seeking clarification, has suggested a good model for medical marijuana law reform — the Michigan Gaming Control Board.

 

The medical marijuana issue has been in the headlines because of recent raids by law enforcement officials on so-called medical marijuana "dispensaries" in Ferndale and Waterford Township.

 

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Ruling in a separate case involving different defendants, Judge Peter O'Connell last month issued a detailed ruling noting that the medical marijuana law, which became a state statute via an initiative petition, was "inartfully drafted," confusing and contained passages that conflicted with other portions of state law.

 

Bouchard, a Republican, fellow Republican County Executive Brooks Patterson and Oakland Prosecuting Attorney Jessica Cooper, a Democrat, have mounted a bipartisan campaign to get the law clarified.

 

As O'Connell pointed out in his ruling, the law does not grant people a right to use marijuana — it merely prohibits people from being prosecuted for violating the law if they can show they have received a certification from a physician saying that marijuana has a palliative effect on the symptoms of their disease. They may receive marijuana from a "caregiver" who is not allowed to provide the substance for more than five people.

 

According to Cooper, there is no provision in the law for dispensaries and O'Connell pointed out in his ruling that there is no economic justification for a dispensary given the five-patient rule.

 

O'Connell also noted that the medical marijuana law allows a doctor to write a "certification" for medical marijuana use for a patient with whom he or she has a "bona-fide physician-patient relationship" and if the doctor has completed a "full assessment" of a patient's medical history. But, the judge continues, the law establishes no criteria to judge whether such a relationship exists.

 

Nor does the current law, Cooper and Bouchard note, specify how caregivers are to obtain the marijuana that they then provide their patients.

 

All of these problems recommend the creation, as Bouchard suggests, of a process similar to the Gaming Control Board.

 

Bouchard, as a state legislator, had a large hand in setting up the gaming board. Legalized casino gambling, like medical marijuana, was authorized by the initiative process.

 

State lawmakers then designated some of their colleagues to study the issue, look at the best practices of other states with a history of legalized casino gambling and come up with a regulatory regime to handle it in Michigan that could be enacted into law.

 

The same should be done with medical marijuana. More than a dozen other states allow the use of marijuana for medical purposes. Their regulations should be studied and a framework of rules established that fills in the gaps left by the initiated law.

 

As Bouchard observed, state lawmakers had to obtain votes from three-fourths of their colleagues, since the medical pot law is the result of the initiative process. But they realized that effective, reliable regulations were needed for gaming establishments.

 

The same situation applies with regard to medical marijuana use. Judge O'Connell said he wanted to "cut through the haze" surrounding this legislation. The Legislature should do so as well.

 

 

From The Detroit News: http://www.detnews.c...rticle/20101019 ... z12s0tLgUF<BR clear=all>

 

 

Dizz,

 

I also posted this article in another thread.

 

We are arguing 'points of the law' when IMHO all of our energy should be going into helping those get elected that will hopefully 'LEAVE' the MMM Act ALONE once they are in office.

 

We can sit ALL DAY and argue certain points of the 'law'.

 

If the 'elections' go to 'anti-MMJ' politicians all of our current back and forth debating will have been for NOTHING.

 

We can ALL claim to be experts on the 'current law' but the 3/4 of our 'representative's' votes needed to change the 'law' may NOT be that hard to come by once the election is over.

 

Our energies IMHO should be focused on the upcoming election.

 

My penny's worth.

[peanutbutter]

Wrong on all points.

The affirmative defense would allow someone with a card to sell to someone without.

I can claim I am a pt to anyone I want unless I am doing it to a. obstruct justice or b. commit fraud.

Okay, I'm wrong on point 3. You cannot disclose confidential info. However, your interpretation of what is disclosure of confidential info is wrong. You keep harping on this. However, when something is made part of public record it is already disclosed. The only person you could go after at that point would be the person who initially made it a part of public record which is generally the defendant.

 

OK .. the three are:

Section 4 (k) Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed to use marihuana for medical purposes under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both, in addition to any other penalties for the distribution of marihuana.

 

 

Section 7 (d) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.

 

Section 6 (h) (4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1, 000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department.

 

Those are the three locations within the law that criminal penalties are noted. None of which have been applied at any time within the last two years.

 

Really pb I am wondering if you are starting to crack up. A COA judge doesn't have a duty to sift through a public record and decide if the info contained therein is, was, or should be confidential, top secret, or "vaulted." The very fact that it is public means it is not confidential. That flight flew way back in the district court. Whether it should have been confidential is a different argument altogether but the fact remains that at the time the parties used the info in their briefs to the COA and then filed those briefs that info became public. A judge doesn't have a duty to be a fact-checker or anything else. The very job of a COA judge is to look at the RECORD and the law and make a decision. Not to decide if the record is correct or should've been kept a top secret military file. Such a determination would need to be made long before it got to the COA.

 

For the moment, I'd like to understand what you think about this question:

 

Can a judge compel someone to disclose this confidential information? Say the defendant .. Or the policeman that grabbed the records in a dispensary.

 

And you missed a point. These are not my records that I have the ability to remove confidentiality from. These are state records. I have no ability to wave confidentiality of state licensing records that are confidential by law.

[+RevThad]

My personal opinion on whether the doctors should even be brought into court is a solid NO. The only thing that a prosecutor is able to rebut is stated in the law....

 

"The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act."

 

A recommendation by a licensed medical doctor, is already covered by numerous other regulations and checks. The thought of prosecutors dragging doctors into court solely for intimidation purposes is reprehensible. A prosecutor is allowed to attack the conduct of a patient or caregiver, not the medical conditions or relationship between a doctor and patient.

 

Just my opinion...

[DenturesLost]

My personal opinion on whether the doctors should even be brought into court is a solid NO. The only thing that a prosecutor is able to rebut is stated in the law....

 

"The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act."

 

A recommendation by a licensed medical doctor, is already covered by numerous other regulations and checks. The thought of prosecutors dragging doctors into court solely for intimidation purposes is reprehensible. A prosecutor is allowed to attack the conduct of a patient or caregiver, not the medical conditions or relationship between a doctor and patient.

 

Just my opinion...

The law specifically states that the dr./pt. relationship must be bonafide. If it isn't a bonafide relationship then the law doesn't protect. That being the case, it is illogical to say that the prosecutor cannot inquire as to whether the relationship is bonafide if there is prelimiary evidence that would suggest it is not bonafide. Should they willy nilly be able to inquire? No. But if there is a good reason to question it then it's fair game.

[+RevThad]

The law specifically states that the dr./pt. relationship must be bonafide. If it isn't a bonafide relationship then the law doesn't protect. That being the case, it is illogical to say that the prosecutor cannot inquire as to whether the relationship is bonafide if there is prelimiary evidence that would suggest it is not bonafide. Should they willy nilly be able to inquire? No. But if there is a good reason to question it then it's fair game.

The certification already states that it was a bona-fide relationship. Unless the prosecutor has some evidence that the doctor in question is somehow incompetent or breaking the law (both of which should be handled through other avenues), there should be no need to go farther than that.

 

I mean what is there to rebut about a doctor patient relationship? How does one accomplish such a rebuttal, prosecutors bringing in their own doctors to suggest that the condition is not qualified, and the patient would not, in their opinion, receive benefit (which of course would be based on a relationship that wasn't bona-fide)?

 

In other words, prosecutors are using this as an attack mechanism to intimidate doctors and patients. They will use any tool necessary to cause chaos amongst legal patients and caregivers. The uncertainty works in their favor as it tightens up supply lines and keeps new folks from being accepted the way they should be.

 

Justice O'Connell stated their goal pretty clearly, when he suggested that nobody in the entire state use marijuana for any purpose until the Supreme Court rules on things. In his opinion, he and the Supremes are the only folks smart enough to read and understand the law.

 

Talk about contempt of court...

[bobandtorey]

I mean what is there to rebut about a doctor patient relationship? How does one accomplish such a rebuttal, prosecutors bringing in their own doctors to suggest that the condition is not qualified, and the patient would not, in their opinion, receive benefit (which of course would be based on a relationship that wasn't bona-fide)?

 

that is what the PA is trying to do she has tried be for the last time we were in court she wanted to bring in another Doc to go against are Doc Yep

[+Silverblue]

B&T, your doc knows you, their doc doesn't. A good lawyer could point that out. It's their doc that does NOT have a boni fide relationship with you, so that doc has no right to even consider making any claim about your condition. I thhink that was basically stated in another post by someone else, and I think I interpreted it correctly.

 

Sb

[peanutbutter]

 

Really pb I am wondering if you are starting to crack up. A COA judge doesn't have a duty to sift through a public record and decide if the info contained therein is, was, or should be confidential, top secret, or "vaulted." The very fact that it is public means it is not confidential.

 

Just work up and suddenly realized what you were talking about. (I think)

 

It doesn't matter what you or I think is confidential or not.

 

The law defined exactly what is confidential information for the purposes of this law.

 

There is no action that anyone can take to change what the law says is confidential information. Not without a 3/4 majority in Lansing.

 

It's like "acquire" being "medical use." Outside of the context of this law "acquire would have nothing to do with the use of something. But within this law "acquire" had been defined as "medical use." That changes the normal meaning of the word "acquire" as long as we remain within the context of this law.

 

Whatever "confidential" means anywhere else does not apply as the law defines exactly what confidential information means within this law. It is one of several specifically listed items that are not subject to disclosure by specifically listed government officials.

 

I can put a copy of my application on a billboard. That would not change what this law defines as confidential information.

[peanutbutter]

So then .. is a application confidential information?

 

Yes it is.

 

Why is it confidential information?

 

Because the law says it is.

 

If I put it on a billboard is it still confidential information?

 

Yes it is. Because the law says so.

[Wild Bill]

The law specifically states that the dr./pt. relationship must be bonafide. If it isn't a bonafide relationship then the law doesn't protect. That being the case, it is illogical to say that the prosecutor cannot inquire as to whether the relationship is bonafide if there is prelimiary evidence that would suggest it is not bonafide.

bo·na fide adj.

1. Made or carried out in good faith; sincere: a bona fide offer.

2. Authentic; genuine: a bona fide Rembrandt.

[Latin bon fid : bon, feminine ablative of bonus, good + fid, ablative of fids, faith.]

The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved.

 

How would one prove good faith? A prosecutor could ask the doctor "Was your recommendation made in good faith?",but only the doctor could possibly know what went on in his mind. Apparently what the prosecutors are looking for is a long term relationship with a doctor, this however does not speak to intent on the part of the doctor. It is not unreasonable to assume that upon seeing an end stage cancer patient once would be ample to judge that the patient needed something to relieve pain and suffering.