Marijuana is at issue in the case now before a federal court,
      but doctors say the bigger issue is an uninhibited
      physician-patient relationship

  San Francisco HIV/AIDS specialist Marcus Conant, MD, says he wants to
  close his office door and talk to patients about the pros and cons of
  medical marijuana without fear of the government cracking down on him. 

  "It's an issue of freedom of speech," Dr. Conant said. "I am not advocating
  doctors should hand out marijuana. But if a patient comes in and says 'My
  mother is throwing up from chemotherapy and I've heard that it does help,'
  I can't say, 'Yes, I've seen it help' or 'Here are the side effects.' " 

  Whether physicians can recommend medical marijuana to patients without
  federal government repercussions is now in the hands of the 9th U.S.
  Circuit Court of Appeals. A three-judge panel heard arguments last month
  and is expected to rule later this year. 

  Doctors in Alaska, Arizona, California, Hawaii, Nevada, Oregon and
  Washington will be watching the decision closely as well. Each of those
  states have medical marijuana laws and are in the 9th Circuit's jurisdiction.
  The decision could also affect physicians in Maine and Colorado, where
  medical marijuana laws have also been passed. 

  "How can we in this country tell a physician they can't recommend
  something?" questions Santa Cruz, Calif., family physician Arnold Leff, MD,
  who treats AIDS and chemotherapy patients. 

  What California law protects

  In 1996, California voters gave Drs. Conant and Leff and other California
  physicians the power to recommend medical marijuana to patients. 

  But marijuana is still an illegal schedule I drug at the federal level and
  government officials said they would criminally prosecute doctors who
  recommend marijuana as a therapy. They also said they would take away
  physicians' DEA numbers and their Medicare and Medicaid status. 

  With the help of the American Civil Liberties Union, Drs. Conant and Leff, 
  several other physicians, several patients and advocacy  groups in 1997 
  sued the director of National Drug Control Policy, the Drug Enforcement
  Administration administrator, the U.S. Attorney General and the Health 
  and Human Services secretary. 

  Dr. Conant and the others said federal government officials didn't have the
  power to issue a gag order on physicians who recommend medical
  marijuana because it violates their freedom of speech. 

  "A physician's evaluation about the risk and benefits of medical marijuana
  constitutes protected speech under the First Amendment," said Graham
  Boyd, the American Civil Liberty Union's Drug Policy Litigation Project
  director who argued the case before the 9th Circuit panel. "The Supreme
  Court has said that the government may not bar physicians from
  discussing contraception or abortion, both controversial topics in their
  day." 

  The government -- first the Clinton administration and now the Bush
  administration -- argues that recommending medical marijuana threatens
  the public's health and safety. 

  While most, if not all, physicians say more studies need to be done, some
  say there is at least enough research to support discussing pros and cons
  of using medical marijuana as a treatment for AIDS wasting syndrome or to
  stimulate appetites in patients who are nauseous from chemotherapy.
  They also say there is enough research to support making
  recommendations to patients. 

  And it's the definition of "discussion" and "recommendation" that is one of
  the key questions before the court. Physicians and patients question how
  a statutory line can be drawn between discussion of pros and cons -- a
  situation where the government has said it wouldn't prosecute physicians
  -- versus recommendations, which the government has said it would
  prosecute. 

The U.S. District Court for the Northern District of California -- the last 
court to rule on this case -- said that's a difficult distinction to make. 

"The government itself would allow physicians to 'discuss' the pros and 
cons of marijuana therapy with their patients," the court said. "In some 
cases, however, it will be the professional opinion of doctors that marijuana 
is the best therapy or at least should be tried. If such recommendations 
could not be communicated, then the physician-patient   relationship 
would be seriously impaired. Patients need to know their doctors' 
recommendations." 

  While the outcome of this case will have a direct effect on at least seven
  states with medical marijuana laws, several organized medicine groups say
  the case isn't about physicians prescribing, growing or distributing
  marijuana. Instead, it is about physicians' ability to fully interact with their
  patients. 

  "This censorship of physician speech jeopardizes patient care," said the
  California Medical Assn., Global Lawyers and Physicians, the American
  Academy of Pain Medicine, the Society of General Internal Medicine and
  others in a friend-of-the-court brief. 

  "The government's disagreement about what is generally safe and
  effective treatment cannot control a physicians' assessment based on
  knowledge and experience of an individual patient's needs," the groups
  said in their brief. "It is contrary to established principles of medical ethics,
  under which a physician must counsel, advise and recommend optimal
  treatment options that the physician, in the reasonable exercise of his
  medical judgment, believes may alleviate a patient's condition. The
  government's policy thus puts the physician in the untenable and
  constitutionally unacceptable position of having to choose between the
  discussion and recommendation required by the physician-patient
  relationship and the self-censorship required by federal law." 

  Drs. Leff and Conant agree

  "If in fact I were prohibited from discussing medical marijuana, a number of
  patients will suffer," Dr. Leff said. "It's ridiculous." 

  "Let's draw the line here," Dr. Conant said. 

  "Science should decide medicine, not the government." 

  Dr. Marcus Conant et al. v. John P. Walters (formerly Barry R. McCaffrey),
  as Director, U.S. Office of National Drug Control Policy et al. 

  Copyright 2002 American Medical Association. All rights reserved.