OLR Bill Analysis

sHB 5100

AN ACT CONCERNING THE MEDICAL USE OF MARIJUANA

SUMMARY:

This bill:

1. allows patients and their primary caregivers to acquire and grow, and the patient to use, marijuana for treatment if the patient's doctor certifies that he has a debilitating condition that would be helped more than harmed by its use;

2. requires patients who use marijuana for medical purposes and their primary caregiver to register with the Department of Public Safety (DPS);

3. allows patients or caregivers who strictly comply with the bill to use medical use of marijuana as an affirmative defense to the state's drug-related criminal laws;

4. prohibits anyone from being arrested or prosecuted solely for being present or in the vicinity as marijuana or marijuana paraphernalia is acquired, possessed, cultivated, used, distributed, or transported for medical use;

5. requires law enforcement officers to return seized marijuana or marijuana paraphernalia intended for medical use, but does not make them responsible for the care or maintenance of seized marijuana plants;

6. makes it a misdemeanor for anyone to lie to a law enforcement officer about using marijuana for medical purposes or about being issued a doctor's certification to use marijuana for such purposes;

7. prohibits physicians from being punished for writing certifications; and

8. allows the Department of Consumer Protection (DCP) to license physicians to prescribe, possess, and supply marijuana for the treatment of the debilitating conditions the bill covers and correspondingly allows patients and their primary caregivers to possess the prescribed quantity.

EFFECTIVE DATE: October 1, 2003

USE OF MARIJUANA FOR MEDICAL PURPOSES

The bill establishes different prerequisites for using marijuana to treat medical conditions based on the patient's age. If age 18 or older, the patient may use marijuana if (1) he gets a signed statement (certification) from his physician that, in the physician's professional opinion, the patient has a debilitating medical condition that would likely be helped more than harmed by the use of marijuana; (2) he and his primary caregiver together possess no more than three mature and four immature marijuana plants and one ounce of usable marijuana per mature plant; and (3) he grows the marijuana in a secure indoor facility.

In addition to the above-stated conditions, for patients under age 18, the physician must explain the risks and benefits of marijuana's use to the patient and a parent, guardian, or legal custodian. The parent, guardian, or custodian must agree to allow the patient to use marijuana, serve as his primary caregiver, and control the drug's acquisition and the patient's dosage and frequency of use.

The bill does not require health insurers to cover the medical use of marijuana.

"Debilitating medical condition" means (1) cancer, glaucoma, HIV, AIDS, or treatment of such conditions; (2) a chronic or debilitating disease or medical condition, or the treatment of such conditions, that causes wasting syndrome, severe pain, severe nausea, seizures, or severe and persistent muscles spasms; or (3) any other medical condition the Department of Public Health approves by regulations requested by a physician or patient with a debilitating medical condition.

Primary Caregiver

Under the bill, a patient can have only one primary caregiver at a time and the caregiver can be responsible for only one patient. A "primary caregiver" is someone age 18 or older, other than the patient's physician, who assists the patient in his use of marijuana for medical purposes. If the patient is a minor or lacks legal capacity, the bill requires his parent, guardian, or legal custodian to act as the primary caregiver.

Prohibition on the Use of Medical Marijuana

The bill prohibits marijuana from being used medically (1) if it endangers another person's health or well being; (2) on a motor or school bus, in any moving vehicle, at work, on school grounds; or (3) at a public park, beach, recreation or youth center, or any other public place.

Additionally, although the bill allows patients under age 18 to use marijuana for medical purposes under the above-described conditions, it prohibits them, and their adult counterparts, from using it in the presence of other people under age 18.

CERTIFICATION OF MARIJUANA USE

The bill allows physicians to certify a patient's use of marijuana only after they have prescribed, or determined it against the patient's best interest to prescribe, prescription drugs to address the symptoms the marijuana is supposed to treat. It makes any certification by a physician of a patient's use of marijuana valid for one year from the date it is signed. It prohibits any physician from being punished for the certification. Specifically, the physician cannot be arrested, prosecuted, or otherwise penalized, and his license to practice medicine cannot be restricted, suspended or revoked if he:

1. diagnosed the patient with a debilitating condition;

2. explained the risks and benefits of using marijuana for medicinal purposes to any such patient over age 18 or the parent, guardian, or legal custodian of any such patient under age 18;

3. based his written certification on his professional opinion after fully assessing the patient's medical history and current medical condition in the course of a physician-patient relationship; and

4. registered the patient with DPS.

REGISTRATION

The bill establishes dual registration requirements with DPS. It requires physicians who issue written certifications to register the name and address of the patient who received the certification and any identification number or other information DPS requires. It requires patient-recipients of the certification and their primary caregiver to register with DPS, providing it with information that sufficiently and personally identifies them. The patient or caregiver must report any change to the information they provide not later than five business days after it occurs.

The bill requires DPS to issue the patient a registration certificate that is valid for the same period as the written certification from the physician, up to one year. DPS may charge any reasonable registration fee, up to $ 25.

The bill makes registration information confidential and not subject to disclosure under the Freedom of Information Act. But DPS can verify for any law enforcement agency that asks whether a patient or primary caregiver is registered and provide the agency with reasonable access to registry information for law enforcement purposes. The bill permits DPS to establish in regulations (1) a form physicians must use to certify their patient's debilitating condition and the medicinal benefits of marijuana and (2) registration requirements.

MEDICAL USE OF MARIJUANA AND CRIMINAL LAW

The bill permits patients and primary caregivers who comply with its requirements to assert that fact as an affirmative defense to any state prosecution involving marijuana or marijuana paraphernalia (see BACKGROUND). It prohibits anyone from being arrested or prosecuted solely for being present or in the vicinity as marijuana or marijuana paraphernalia is acquired, possessed, cultivated, used, distributed, or transported for medical use.

The bill requires law enforcement agencies to return marijuana, marijuana paraphernalia, or other property seized from a patient or primary caregiver who complies with its provisions immediately after a court determines that they were entitled to have it. Under the bill, entitlement is evidenced by a prosecutor's decision to dismiss the charges or not to prosecute, or the patient or caregiver's acquittal.

The law absolves law enforcement officials of any responsibility for the care and maintenance of live marijuana plants seized as evidence.

The bill makes anyone who lies to a law enforcement officer about acquiring, possessing, cultivating, using, distributing, or transporting marijuana for medical use in order to avoid arrest or prosecution for a drug-related offense guilty of a class C misdemeanor, punishable by up to three months' imprisonment, a $ 500 fine, or both. It makes anyone who lies to the officer about the issuance of a written certification for the medical use of marijuana guilty of a class A misdemeanor, punishable by up to one year in prison, a $ 2,000 fine, or both.

PHYSICIANS LICENSED TO PRESCRIBE AND SUPPLY MARIJUANA

By law, the consumer protection commissioner can license physicians to possess and supply marijuana for the treatment of glaucoma or the side effects of chemotherapy. The law explicitly allows people suffering from these conditions to possess the marijuana these physicians prescribe. Although the law has been in effect for over 20 years, no physician has apparently ever applied for a license to use marijuana to treat patients.

The bill extends the conditions of licensure to include the treatment of the debilitating conditions the bill covers. And just as people with glaucoma or receiving chemotherapy, the bill allows people with the conditions it specifies to possess marijuana, up to the amount prescribed. The bill allows a prescription recipient's primary caregiver to possess the same amount.

BACKGROUND

Marijuana is a Controlled Substance

Federal law classifies marijuana as a Schedule I controlled substance. With two exceptions, the law prohibits anyone from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense Schedule I drugs. The U. S. Attorney General can register manufacturers and distributors, using statutorily specified criteria. And licensed practitioners, including pharmacies, can use Schedule I substances in government-approved research projects. The penalty for violations varies depending on the amount of drug involved (21 USCA 812, 823, and 841 (a)(1)).

Legislative History

On April 14, the House referred the bill (File 271) to the Public Health Committee, which reported a substitute on April 24 that (1) allows physicians to certify a patient's use of marijuana only after they have prescribed, or determined it against the patient's best interest to prescribe, prescription drugs to address the symptoms the marijuana is supposed to treat and (2) prohibits anyone from using medical marijuana in the presence of a minor.

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

21

Nay

18

Public Health Committee