Confidentiality .. It's In The Law. So What Does It Do For Us?

[peanutbutter]

Says who? Where in the act does it say you cannot disclose Bob?

 

Disclosure in violation of this act.

 

Disclosure is only allowed in very limited conditions. Any disclosure outside of those conditions is in violation of this act.

 

I haven't been ignoring that aspect.

 

It is this act that determines what is in violation of this act.

[peanutbutter]

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,

 

"who discloses confidential information in violation of this act"

 

No commas.

 

So is it "confidential information" in violation of this act?

Or is it "discloses" in violation of this act?

Or is it "discloses confidential information" in violation of this act?

 

I believe it to be the last one.

 

To determine what can trigger this section of law, it has to be determined what "confidential information" is AND what "discloses" is.

 

Both of those must be viewed within the context of this law, if possible.

 

I hold that "confidential information" is defined within this law. Therefore "confidential information" must be understood according to the standards of this law. It must be understood this way. No other law defines the identity of a medical marijuana caregiver as confidential. Only this law.

 

Some hold that such disclosure only involves responses to FOIA requests. That is based on paragraph 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 and is exempt from disclosure under the freedom of information act,

 

The end of the sentence is the source of the stand that this entire confidentiality section only applies to information given to the press. Then only if a FOIA request has been presented first.

 

However the "and" is additive, not limiting. This extends the protections to cover a situation where confidential information might be legally compelled to be released to the person making the FOIA request. Even without the FOIA the information is still confidential.

 

This is the understanding that is being handed out by persons speaking to the Michigan Municipal League. They are trying to convince everyone that local governments can force patients and caregiver to disclose confidential information to that local government. ie have them "register" with the local governments. These speakers believe that illegal disclosure can only take place in response to a FOIA request.

 

It MIGHT be legal for a patient or caregiver to disclose that information to a local unit of government. MIGHT be. The office would then be expected to hand the information to an inspector who is employed by the local unit of government. Then, in the long run, the inspector would hand the information to law enforcement if the person refuses to comply with the local unit of government.

 

ALL of which ignores the protections of confidentiality that this law grants to us.

 

They are actively teaching local units of government that they can ignore confidentiality. This attempts to urge local units of government to commit a crime that is supposed to result in time in jail for the offenders.

[DenturesLost]

"who discloses confidential information in violation of this act"

 

No commas.

 

So is it "confidential information" in violation of this act?

Or is it "discloses" in violation of this act?

Or is it "discloses confidential information" in violation of this act?

 

I believe it to be the last one.

 

Your argument above serves no purpose and does not address the issue.

 

The law states:

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 ..."

 

You are misreading this sentence. You are reading it to say, "A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information IS in violation of this act ..."

 

The sentence, as it stands, is conditional. A condition must be met for the action to become illegal. The condition is disclosing information in violation of the act. So simply disclosing the information does not lead to a crime. The diclosure must meet the requirement of being a violation of the act. So again, the question becomes, what TYPE of disclosure violates the act.

 

To read it your way would make it illegal for a patient to disclose their own information. So anyone who is sitting around talking to their buddies who tells them ANYTHING about the info submitted on their own application is violating the act? Obviously that doesn't make sense.

 

Anyone who discloses their Dr. is breaking the law? Someone asks you which Dr. you used to get your certification and you tell them then you are subject to criminal penalties?

 

Your great aunt Matilda asks you what your new address is after you moved and you tell her (that address being the same one submitted on your application) then you just committed a crime?

 

Under your interpretation where do we draw the line?

 

Maybe if you are a patient you better not even ever disclose your own NAME to anyone lest you violate the MMA!

 

By your interpretation ALL of that info is top secret. The patient can't divulge it. The MDCH can under limited conditions. But, no one else can. In other words, you hand your info over to the gov't and then the gov't owns it and is the only entity that can ever divulge it.

[lawyercaregiver]

They are trying to convince everyone that local governments can force patients and caregiver to disclose confidential information to that local government. ie have them "register" with the local governments. These speakers believe that illegal disclosure can only take place in response to a FOIA request.

 

It MIGHT be legal for a patient or caregiver to disclose that information to a local unit of government. MIGHT be. The office would then be expected to hand the information to an inspector who is employed by the local unit of government. Then, in the long run, the inspector would hand the information to law enforcement if the person refuses to comply with the local unit of government.

 

ALL of which ignores the protections of confidentiality that this law grants to us.

 

They are actively teaching local units of government that they can ignore confidentiality. This attempts to urge local units of government to commit a crime that is supposed to result in time in jail for the offenders.

 

An interesting argument but ultimately (wait for it, I rarely predict what a judge is going to do) I don't think it likely that any judge would agree.

 

Now if the local patients are being asked to register with the local government AND they are not asking anything of the local government then this makes sense and is clearly not allowed under MMMA. The registry is at the State level with specific protections.

 

However, if you want to set up a business in that town like a dispensary or a club then you darn well better be prepared to "disclose" whatever information the hell the local government wants. If they ask for certain information as a precondition of you getting a permit or as part of the approval process then YOU can hold on to your confidentiality stuff OR you can WAIVE IT and go for the permit.

 

Confidentiality- like all God given and government granted rights- is a a WAIVABLE right. And yes, you can be coerced into waiving certain rights as a condition of getting local permits. A simple example: If you want a gun permit you have to reveal confidential mental health information.

[lawyercaregiver]

This Question is for Peanut Butter who would have been the person that would have been responsable for giving tv6 tv news in Lansing my status on the tv 6 news and pin pointing where i live . Who will go to jail over that one ??

 

Maybe we need to take a second look at this case. It does not look like you waived your confidentiality rights here.

 

I am guessing that LEO leaked the information to TV6 news or possibly in response to a FOIA of the police report.

 

Either case it looks to me like this is exactly the kind of violation PB is pushing. What are your damages? This could be a civil case.

 

Also, where do you file your criminal complaint?

[jtgeme]

I think its important to remember that the patient (and perhaps CG) hold the confidentiality and they can waive it, and disclose as much or as little as they like. So taking KingPin's question (using a hypothetical):

 

If Frank was arrested for possession of MJ, and he claims (either himself, or through his attorney) that he is a patient under the MMMA, Frank has effectively waived that portion of any confidential information. Now, whether Frank claiming to be a patient under the MMMA also waives additional information (i.e CG, doctor, condition) is a tougher question - and based on the VERY limited facts I gave, I would say that perhaps claiming to be a patient, and showing the card waives the confidentiality with regard to the CG. Although I am not sure I like that outcome.

 

Also, somebody (I think PB) raised the point that the confidentiality requirement is mostly on the MDOCH.

 

Finally, the portion of the statute dealing with "the judge shall dismiss the case" (I don't have the statute in front of me) - In order for the judge to dismiss there must be an evidenitary hearing - at that hearing, in order to get a dismissal, the patient would have to show evidence that he was in compliance with the act - once again, waiving a portion (perhaps all) of the confidentiality

 

It will be interesting to see how this shakes out.

[DenturesLost]

 

Confidentiality- like all God given and government granted rights- is a a WAIVABLE right. And yes, you can be coerced into waiving certain rights as a condition of getting local permits. A simple example: If you want a gun permit you have to reveal confidential mental health information.

 

Thank you. A good analysis.

 

The problem PB is running into is his interpretation of confidential. I believe he thinks the act makes the info confidential in such a way that no one can reveal it except for the limited points in the act. Confidential, by very definition, implies a duty to keep secret on one party's end and that duty running to the other party. The party to whom the duty is owed always has the option to waive confidentiality. Not that the rules define the act but if you look at the rules waiver is anticipated.

 

The second problem PB is running into is his use of the word disclose. He thinks that once the info is disclosed in public records it is still confidential in such a way that it can still be "disclosed" again. As if, because the act calls the info confidential, then it goes back into a confidential state again somehow even if it remains on the public record. The fact is, as long as it is on the public record it is a continued disclosure by the defendant. It doesn't just jump back into the box.

[DenturesLost]

 

 

Finally, the portion of the statute dealing with "the judge shall dismiss the case" (I don't have the statute in front of me) - In order for the judge to dismiss there must be an evidenitary hearing - at that hearing, in order to get a dismissal, the patient would have to show evidence that he was in compliance with the act - once again, waiving a portion (perhaps all) of the confidentiality

 

Precisely. PB is suggesting that the judge, on his own, has an affirmative duty to look at a case, absent a motion by an atty, and just outright dismiss it. That's not how court procedure works. A motion has to be made by the atty and sufficient evidence presented that would warrant the dismissal. The judge cannot dismiss something based on evidence when the evidence is not presented. Ergo, no affirmative duty on the judge to dimiss.

[peanutbutter]

If they ask for certain information as a precondition of you getting a permit or as part of the approval process then YOU can hold on to your confidentiality stuff OR you can WAIVE IT and go for the permit.

 

Confidentiality- like all God given and government granted rights- is a a WAIVABLE right. And yes, you can be coerced into waiving certain rights as a condition of getting local permits. A simple example: If you want a gun permit you have to reveal confidential mental health information.

 

Then I think you would agree that to require caregivers to register would likely violate this law?

 

Many of these local laws have simply define a caregiver as a dispensary. Then require dispensaries to register.

 

Another method is to define being a caregiver as a home occupation and then require the home occupation to be registered.

 

Many times they also require registered locations to be inspected on a regular basis.

 

The suspension of rights require a compelling reason to do so. I can see the compelling reason in your example. What would be the reason compelling enough to suspend our new rights?

[peanutbutter]

Maybe we need to take a second look at this case. It does not look like you waived your confidentiality rights here.

 

I am guessing that LEO leaked the information to TV6 news or possibly in response to a FOIA of the police report.

 

Either case it looks to me like this is exactly the kind of violation PB is pushing. What are your damages? This could be a civil case.

 

Also, where do you file your criminal complaint?

 

Filing a complaint with the Michigan State Police might work. Main HQ. Not a local unit.

[peanutbutter]

Precisely. PB is suggesting that the judge, on his own, has an affirmative duty to look at a case, absent a motion by an atty, and just outright dismiss it. That's not how court procedure works. A motion has to be made by the atty and sufficient evidence presented that would warrant the dismissal. The judge cannot dismiss something based on evidence when the evidence is not presented. Ergo, no affirmative duty on the judge to dimiss.

 

"is not subject to arrest OR PROSECUTION" A preemptive requirement on the courts. Simply not subject to prosecution.

[DenturesLost]

"is not subject to arrest OR PROSECUTION" A preemptive requirement on the courts. Simply not subject to prosecution.

The courts don't prosecute, the prosecutor, or plaintiff, does. Prosecution is initiated with the charging instrument. At the initiation of the prosecution the defendant hasn't even had an opportunity to present a defense yet and there is no way for a court to know the defendant's status regarding mmj.

 

There is also a statutory limit on pain and suffering in this state. If the plaintiff sues for more than the statutory limit it is still on the defense to ask the court to reduce the amount. The judge doesnt have an affirmative duty to bring up the issue on the court's own motion.

 

You are trying to unilaterally expand the role of a judge in a court case.

[peanutbutter]

The courts don't prosecute, the prosecutor, or plaintiff, does. Prosecution is initiated with the charging instrument. At the initiation of the prosecution the defendant hasn't even had an opportunity to present a defense yet and there is no way for a court to know the defendant's status regarding mmj.

 

There is also a statutory limit on pain and suffering in this state. If the plaintiff sues for more than the statutory limit it is still on the defense to ask the court to reduce the amount. The judge doesnt have an affirmative duty to bring up the issue on the court's own motion.

 

You are trying to unilaterally expand the role of a judge in a court case.

 

The first time the card gets flashed in court should cause an instant reaction.

 

As the law forbids the prosecution, the PA SHOULD take a moment to determine if they are about to something that the law forbids. It would seem logical that the judge would like a clear understanding at that time also.

 

But that's one of those procedure things ..

[DenturesLost]

The first time the card gets flashed in court should cause an instant reaction.

 

As the law forbids the prosecution, the PA SHOULD take a moment to determine if they are about to something that the law forbids. It would seem logical that the judge would like a clear understanding at that time also.

 

But that's one of those procedure things ..

The whole idea of the criminal system in court is so that the truth can come out.

 

And, yes, there is legal procedure involved.

 

Procedure gives everyone their turn. If the charges are charges that should be dismissed because the defendant is a cardholder then once all of that is established then, yes, the case should be dismissed. To argue that the judge should know what evidence the prosecutor is going to present before he presents it is ridiculous. The judge doesn't have a crystal ball. When a defendant goes in for a preliminary exam and the prosecutor cannot meet his burden then a case is dismissed. You don't run in at the begininng of the exam and say, "look judge, I have a video showing me at the world series on that day so there is no way I could've committed the crime so dismiss it NOW!"

[jtgeme]

The first time the card gets flashed in court should cause an instant reaction.

 

As the law forbids the prosecution, the PA SHOULD take a moment to determine if they are about to something that the law forbids. It would seem logical that the judge would like a clear understanding at that time also.

 

But that's one of those procedure things ..

 

I agree with your concept, but not necessarily the wording - not sure about your use of "forbids".

 

The prosecutor does take the time to determine whether there is evidence to support a conviction, etc. before signing the complaint/information. What I think we are running into here is the law is subject to interpretation, and until there is a clear channel of what is and what is not prohibited, the prosecutor will continue to authorize charges.

 

Once we have a clear understanding of where the law is at, the prosecutor will not be able to support the charges.

 

Admittedly, I think some prosecutors are a little over zealous with this issue; but I also think the law could have been drafted in a such a way that avoid the types of questions we are dealing with.

[peanutbutter]

I agree with your concept, but not necessarily the wording - not sure about your use of "forbids".

 

The prosecutor does take the time to determine whether there is evidence to support a conviction, etc. before signing the complaint/information. What I think we are running into here is the law is subject to interpretation, and until there is a clear channel of what is and what is not prohibited, the prosecutor will continue to authorize charges.

 

Once we have a clear understanding of where the law is at, the prosecutor will not be able to support the charges.

 

Admittedly, I think some prosecutors are a little over zealous with this issue; but I also think the law could have been drafted in a such a way that avoid the types of questions we are dealing with.

 

Section eight of the law requires cases to be dismissed after a motion hearing.

 

Section four is supposed to make it so it doesn't even get to that point. The defendant isn't subject to arrest or prosecution.

 

If it gets passed the point of arrest, then it shouldn't be prosecuted. If it gets prosecuted then section eight kicks in.

 

I guess I should ask instead of telling ..

 

The difference, I believe, is that the ID card is supposed to stop it before it gets to a section eight defense. Thus it forbids (not subject to) prosecution.

 

I don't believe there are many other locations in the law that plainly states a person is not subject to prosecution.

 

So the law says that and the PA runs a case anyway. What would, or could, the fallout to the PA be?

[peanutbutter]

To argue that the judge should know what evidence the prosecutor is going to present before he presents it is ridiculous. The judge doesn't have a crystal ball. When a defendant goes in for a preliminary exam and the prosecutor cannot meet his burden then a case is dismissed. You don't run in at the begininng of the exam and say, "look judge, I have a video showing me at the world series on that day so there is no way I could've committed the crime so dismiss it NOW!"

 

The purpose of section four of the law is to prevent the case from even getting into court. It must be remembered that the defendant is someone that has demonstrated to the state, by virtue of the doctors letter, that they have a serious medical condition.

 

To continue the case is to attack a sick person with the power of the state.

 

I said it would seem logical that the judge would be interested. I didn't say obligated.

[jtgeme]

Section eight of the law requires cases to be dismissed after a motion hearing.

 

Section four is supposed to make it so it doesn't even get to that point. The defendant isn't subject to arrest or prosecution.

 

If it gets passed the point of arrest, then it shouldn't be prosecuted. If it gets prosecuted then section eight kicks in.

 

I guess I should ask instead of telling ..

 

The difference, I believe, is that the ID card is supposed to stop it before it gets to a section eight defense. Thus it forbids (not subject to) prosecution.

 

I don't believe there are many other locations in the law that plainly states a person is not subject to prosecution.

 

So the law says that and the PA runs a case anyway. What would, or could, the fallout to the PA be?

 

I agree. But here is my take on why this will not work to our advantage:

 

You say you are in compliance and have a card. Police/prosecutor says you are not.

 

Who decides? The Judge.

 

In its simplest form, that's it. There needs to be an independent third party to decide who is and is not in compliance, and therefore protected under the law. Until more provisions are defined more clearly we can plan on being in court to litigate what it is to be in compliance.

 

I have read stories on these boards of people being stopped by LEO. These people were in possession (a crime without the MMMA). But once they showed their card, they were free to leave. I believe that those instances are what you are referring to - not being subject to arrest/prosecution. But each department will enforce a bit differently until the law is clearly defined. Until then, people will be dragged into court unnecessarily.

[peanutbutter]

I agree. But here is my take on why this will not work to our advantage:

 

You say you are in compliance and have a card. Police/prosecutor says you are not.

 

Who decides? The Judge.

 

In its simplest form, that's it. There needs to be an independent third party to decide who is and is not in compliance, and therefore protected under the law. Until more provisions are defined more clearly we can plan on being in court to litigate what it is to be in compliance.

 

I have read stories on these boards of people being stopped by LEO. These people were in possession (a crime without the MMMA). But once they showed their card, they were free to leave. I believe that those instances are what you are referring to - not being subject to arrest/prosecution. But each department will enforce a bit differently until the law is clearly defined. Until then, people will be dragged into court unnecessarily.

 

Yes .. police have already begun to respect the not subject to arrest part. There have also been cases when the PA drops the case when they see the ID card. That would be the not subject to prosecution part.

 

A suggested procedure, by the MSP, is for the officer to contact the PA when they come upon a medical claim before continuing. A good thing, IMHO.

[peanutbutter]

The whole idea of the criminal system in court is so that the truth can come out.

 

And, yes, there is legal procedure involved.

 

Procedure gives everyone their turn. If the charges are charges that should be dismissed because the defendant is a cardholder then once all of that is established then, yes, the case should be dismissed.

 

There is at least one case where the judge commanded the defense to provide the doctor. That might provide the PA with evidence required to overcome that "not subject" stuff.

 

Section four: There shall be a presumption .. which can be refuted by evidence ..

 

No evidence of violation of the act, not subject to prosecution.

 

It doesn't seem to me that the courts are the place for the PA to discover evidence by a fishing trip. That going on the fishing trip requires evidence first.

 

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.

 

The burden is on the PA to provide evidence before starting or continuing prosecution. Not as a result of the prosecution.

[peanutbutter]

It does not seem to me to be proper that the presumption of the card's possession is ignored once in court. It should not turn into an affirmative defense case unless the prosecutor has evidence RIGHT THEN to rebut medical use.

 

The card should prevent the court from sifting through your medical details unless you were in possession of too much or breaking the act in some other way.

 

"Your honor, if we can have access to the doctor, we can provide evidence the defendant was not using marijuana for their medical condition."

 

At that stage, there is no evidence to continue. Just the belief owned by the PA.

 

To get the required evidence would require someone to violate confidentiality.

 

"Your honor, we believe there wasn't a bonefide relationship. We need to get the doctor in court so we can show that."

 

No evidence .. not subject to continued prosecution. No next hearing without evidence already in hand.

[DenturesLost]

"Your honor, if we can have access to the doctor, we can provide evidence the defendant was not using marijuana for their medical condition."

 

At that stage, there is no evidence to continue. Just the belief owned by the PA.

 

To get the required evidence would require someone to violate confidentiality.

 

"Your honor, we believe there wasn't a bonefide relationship. We need to get the doctor in court so we can show that."

 

No evidence .. not subject to continued prosecution. No next hearing without evidence already in hand.

Yeah, all good, if that's the way things would go down. But it isn't.

Pros presents evidence (whatever it is) that the relationship wasn't bonafide. Maybe the pt said he had a telephone consultation with the dr rather than in-person. Whatever.

Def rebuts the evidence by bringing in his doctor.

The pros can't call a witness that cannot produce relevant evidence. That means the issue of whether the relationship was bonafide has to first be established (the presumption anyway) by some outside evidence independent of the Dr.

 

You are coming up with scenarios that just wouldn't occur. Too many lawyer and cop TV shows.

[Kingpinn]

1. I had a Michigan MMJ Card

2. Was within all my plant count and med weights

3. Was arrested and charged with MNF/DELIVERY of Marijuana 14 years million dollar fine

4. Stole my property guns lights and such killed my 10 plants

5 Matter is still in appeals court

 

 

All over a deal where the card was to protect me from. Thats a lie.My Civil Rights have been Violated

Go ahead everyone think well this isnt me so who cares . It could verywell be you and could be worse. I will be thinking of you all when im in front of the appeals judge Thursday. I HOPE ITS GOOD THOUGHTS

[bobandtorey]

1. I had a Michigan MMJ Card

2. Was within all my plant count and med weights

3. Was arrested and charged with MNF/DELIVERY of Marijuana 14 years million dollar fine

4. Stole my property guns lights and such killed my 10 plants

5 Matter is still in appeals court

 

 

All over a deal where the card was to protect me from. Thats a lie.My Civil Rights have been Violated

Go ahead everyone think well this isn't me so who cares . It could very well be you and could be worse. I will be thinking of you all when I'm in front of the appeals judge Thursday. I HOPE ITS GOOD THOUGHTS

good luck KP i hope it does not take as long as ares did 3 months it took after are appeals was heard

[Bisharoo]

1. I had a Michigan MMJ Card

2. Was within all my plant count and med weights

3. Was arrested and charged with MNF/DELIVERY of Marijuana 14 years million dollar fine

4. Stole my property guns lights and such killed my 10 plants

5 Matter is still in appeals court

 

 

All over a deal where the card was to protect me from. Thats a lie.My Civil Rights have been Violated

Go ahead everyone think well this isnt me so who cares . It could verywell be you and could be worse. I will be thinking of you all when im in front of the appeals judge Thursday. I HOPE ITS GOOD THOUGHTS

 

Dude, you are so right, could be me. You have been so wronged, I can't say enough about that. Whatever your thoughts are of me, that does not matter. What matters is what people think of you and about you and for you here. And I think many, many individual humans are with you here, at least in spirit. It can't hurt, and it may help. So, I will send my good thoughts your way right now and also this Thursday is my pledge to you. I am just sorry I can't send money or be there in person to see that they are made to be corrected for your sake. I hope you get all you deserve back, and more.