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Some Stuff On Sec. 8 But Also Some Other Stuff And Some Bickering, Off Topic Stuff And Some Name Calling-sprinkled With A Pinch Of Tangential Opinions


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I guess this would reflect on certifications through the mail with no doctor contact. Am I correct in assuming that would not meet muster to protect patients? Can patients get a recertification through the mail and will that provide protection under the section 8 defense?

 

Does a self reported history of pain or other conditions without medical records to confirm it provide safety?

 

Dr. Bob

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Think you're in the clear to rely on just a cetification or recommendation and employ the affirmative defense after the recent Sup Ct opinions in King and Kolanek? Thing again!

 

If that is your plan, to rely on your certification or recommendation, then you may be in for some trouble and a rude awakening. So let's clear this up so you make an informed decision.

 

First off, if you don't have a card and are relying on your certification only then plan on being arrested. Plan on spending up to 48 hours in jail before be arraigned and bond being set. Then plan on either getting a court appointed attorney or spending a lot on a retained attorney.

 

Then what? Well, if it's a felony you're charged with, then expect to go to your preliminary examination. If the judge there will hear your aff def then maybe s/he will dismiss the case. But maybe not. If not, then plan on going to circuit court. It is there that your attorney will file and argue the aff def. Expect to either subpoena your doctor to testify (and tinkle him off) or expect to pay him as an expert witness. Also expect to be able to prove that you needed x ounces (or plants) to ensure a continuing supply.

 

Lastly, and most importantly, be prepared for proving the heightened requirements of the sec 8 defense. Keep in mind that the administrative rules require less of a dr for the certification than sec 8 requires for an aff def. What does that mean? It means that you could end up in circuit court with a signed cert or card and still be convicted.

 

The administrative rules state:

 

(22) “Written certification” means a document signed by a physician stating the patient’s debilitating medical condition and stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

 

That written certification is what is needed for a card under section 4.

 

On the other hand, Section 8 requires:

 

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

 

So section 8 requires a full assessment of the patient's history whereas the rules don't require that for a card. Section 8 also requires the bona fide dr/pt relationship but that seems a foregone conclusion if a dr signs the certification.

 

At any rate a bare bones section 4 certification probably isn't adequate to cover for a section 8 defense. So if you have your card and are relying on that, or a recommendation or certification, make darn sure that your Dr made a full assessment of your history. In other words, a few months of medical records may be adequate for a card but not so much for a sec 8 defense.

 

So what does all this mean? It means you should make sure you get that full assessment of your history and make sure you have a bona fide relationship (don't buy a cert. from the back of an appliance store!)

 

Lastly, to qualify all of this, I will concede that sec 4f requires the same thing as sec 8 in order for a doctor to be immune from prosecution but those elements in sec 8 are not all required to get the card anywhere else. So, a doc may lose his immunity from prosecution for not conducting a full assessment of your history BUT that doesn't mean you wouldn't be entitled to a card. In other words there is a hypothetical situation where a doc could certify you and you get your card and your card is valid but the doc isn't immune from prosecution.

 

The point here is don't be tricked into thinking you are safe and able to utilize sec 8 just because you have a card or a cert. I can easily see this being the next bone that the prosecutors pick if we start seeing sec 8 defenses!

 

Lastly, don't be naive and think that you can scream sec 8 and the prosecutors will drop everything. I personally have seen prosecutors continue to pursue cases that were bound to be dismissed due to constitutional violations. They won't come out and say it but I think it is clear that they feel if they make the defendant pay through the nose to the atty by drawing out the case then that is punishment in itself even if the case is later dismissed.

 

There is more than sec 8 than the issues presented here but you need to be mindful of the presented issues in particular. Will prosecutors accept the card or a cert or recommendation as fulfilling the medical and dr requirements of sec 8? Maybe. In fact I'm sure a lot would but don't be the one fighting this exact issue and left holding the bag for 3 years as it is appealed up to the Sup Ct.

 

If you have your card and think it wouldn't hurt to grow 2 more plants and expect your card will cover for you in regard to the medical requirements of sec 8 then at least be sure you have covered yourself in regard to ALL of the elements required in sec 8.

 

 

Be safe. Do smart things.

 

i also agree

and we do no it is not fun to be in court for over 3 years and we were the lucky one's to have the MMMA stand up and support us

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Ceavet, I think your advice while being safe and sound is good but we will have to see how this all plays out. It could go like California and the cards are few and far between, because LEO respects the dr recs. Even so, for us in the here and now, it will probably be ligitgated more in some counties and again patients suffer through endless court procedings. Either way we are more protected today than a few days ago.....shredder

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This is very interesting, I think that a responsible certification clinic would have to review their practices to make very sure they met the higher requirement of the section 8 defense. I've always designed mine to stand up to the board and the courts, but I am going to see if there is anything I can do to improve them in light of this ruling.

 

Dr. Bob

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"Because the MMMA (Michigan Medical Marijuana Act) was the result of a voter initiative, our goal is to ascertain and give effect to the intent of the electorate, rather than the Legislature, as reflected in the language of the law itself. We must give the words of the MMMA their ordinary and plain meaning as would have been understood by the electorate," the opinion said.

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Interesting. As you said, I see a gap to be exploited by prosecutors. For example, a self reported diagnosis on crohn's without doctor records to confirm the diagnosis. Or by extention the certification doctor that told a patient 'she had crohn's' based on the patient history of cramps and diarrhea. The patient had never been diagnosed with crohn's before.

 

I can also see a prosecutor responding to a self report of chronic pain with 'if it is so bad you need marijuana, why wasn't it bad enough to see a doctor?'.

 

Finally, I don't think you addressed the issue of obtaining a certification without seeing the doctor, or getting a certification through the mail.

 

Dr. Bob

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"Because the MMMA (Michigan Medical Marijuana Act) was the result of a voter initiative, our goal is to ascertain and give effect to the intent of the electorate, rather than the Legislature, as reflected in the language of the law itself. We must give the words of the MMMA their ordinary and plain meaning as would have been understood by the electorate," the opinion said.

 

That may be Annie, and it might be the way it should be. But I am interested in getting CL thoughts on potential problems and how to avoid them. It is the old argument that you can do the minimum to slide by, or you can take a more proactive stance on safety. We are also playing to an audience, the medical community. Do we want to be viewed as people ONLY doing the minimum to meet the legal requirements and make a buck, or do we want to be viewed as folks that do it right in such as way as it stands up to review? Which says we are concerned with professionalism and patient safety, and which says we are more interested is sliding by or 'scamming' the system as Schuette likes to say.

 

If you want respectibility for the community and the certification, it needs to be earned, not expected. We need strong standards and certifications and I am glad to have CL's input on this.

 

Dr. Bob

Edited by Dr. Bob
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Dr Bob, I think the issues you bring up are open to interpretation as you suggest, with the difference being even if the judge does not interpret the law the way a defendant might interpret it, they still can present a medical case to a jury. Not too many prosecutors like playing on a level playing field.......shredder

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I wasnt arguing or trying to slide by doc.. I was informing ppl of the rule of peoples initiatives and that is now the LAW of the LAND on that point.. It is not that it Should be that.. The supreme court said that is how it is to be interpreted.. STUDY UP FOLKS..

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That seems like a bad thing to rely on. Having said that, what is custom regarding physician assistants or nurse practitioners? If they evaluate a pt does standard of care require a Dr to just hear their opinions before writing a script for something or does a Dr have to review history and findings as relayed by the non-Dr?

 

Physician Assistants and NP's are trained, provider level healthcare professionals. They are specifically trained to evaluate a patient history and conduct a physicial examination, they are licensed by the state. They also undergo a period of 'comfort building' with their supervising physician which determines the amount of supervision required. Furthermore, they cannot prescribe certain medications (schedule 2).

 

That is a little different from a remote physician signing a certification based on a self reported form on a patient never seen by him or a health care professional.

 

Dr. Bob

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Dr Bob, I think if a case goes to court with a questionable DR cert, the defendant might have to further prove his disability. If he is like me, and can bring in a stack of medical records three inches high, proving the case would be simple, regardless of the Dr's involvement. If the defendant was 20 and physically fit section 8 defenses requirements would be harder to prove in court, and that could reflect on the Dr.....shredder

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I wasnt arguing or trying to slide by doc.. I was informing ppl of the rule of peoples initiatives and that is now the LAW of the LAND on that point.. It is not that it Should be that.. The supreme court said that is how it is to be interpreted.. STUDY UP FOLKS..

 

Thanks, but as we have seen MANY times what we think is obvious or makes sense to us is not always what we see in court cases. I think it is important to think ahead to potential problems and prepare for them. To recommend folks simply do the minimum and hope for the best could come back a bite ya. I think that is why CL is putting this out. I for one am glad to see the information and appreciate him sharing an expert's view on it.

 

Dr. Bob

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Dr Bob, I think if a case goes to court with a questionable DR cert, the defendant might have to further prove his disability. If he is like me, and can bring in a stack of medical records three inches high, proving the case would be simple, regardless of the Dr's involvement. If the defendant was 20 and physically fit section 8 defenses requirements would be harder to prove in court, and that could reflect on the Dr.....shredder

 

I certainly agree. The weakness is the patient with marginal history. My concern is how can we improve the safety of that patient and what kind of practices should be avoided?

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Thanks, but as we have seen MANY times what we think is obvious or makes sense to us is not always what we see in court cases. I think it is important to think ahead to potential problems and prepare for them. To recommend folks simply do the minimum and hope for the best could come back a bite ya. I think that is why CL is putting this out. I for one am glad to see the information and appreciate him sharing an expert's view on it.

 

Dr. Bob

 

I never ever recommended that folks simply do the minimun and hope for the best.. You said i said that.. the thread is here to read..

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