The Massachusetts Department of Health issued regulations to create an affirmative medical defense for patients who use marijuana for a legitimate medical need. The regulations were mandated by the passage of a law last summer (H. 2170) that reinvigorates the state marijuana therapeutic research program and provides a prima facie defense for individuals who are certified by the state to use marijuana to treat glaucoma, asthma, or the nausea associated with chemotherapy.
According to State Public Health Commissioner David Mulligan, a three doctor panel appointed by the state will screen individual patients' applications for certification. Certified patients will be shielded from criminal penalties, even if they obtain marijuana through illicit channels, Mulligan said. State physicians will not be allowed to prescribe marijuana to their patients under the newlaw.
"We're trying to get certificates into the hands of people who meet the medical criteria," said Mulligan. "Who is going to prosecute someone who has a certificate saying they have a medical condition that requires [marijuana?]"
The new law also mandates the Department of Health to develop a blueprint for a state-run medical marijuana research project, which would be submitted to the U.S. Food and Drug Administration for approval. During the late 1970s and early 1980s, at least six states implemented research programs allowing seriously ill patients to obtain marijuana as a medicine from the state board of health.
"The feds keep telling us verbally -- they have never put it in writing -- that they would supply [marijuana] for a well-designed clinical trial," said Nancy Ridley, assistant health commissioner. "We're going to be sending another batch of letters to the federal government to try to get them to be more specific about what it would take to access their supply. It would be absolutely wrong not to try."
NORML Legal Committee member Michael Cutler, Esq., sees the proposals as a step in the right direction, but criticized the state's failure to include a "catch-all" provision for terminal illness as well as language granting "sufficient confidentiality" for patients and doctors. He also expressed concern that patients would need to be certified by a state-panel of physicians rather than by their own personal doctor. Cutler, who helped to draft the original legislation, expects the legislature to hold public hearings on the issue as early as next month.
For more information, please contact attorney Michael Cutler at (617) 439-4990. For a state by state breakdown of medical marijuana laws, please contact Allen St. Pierre or Paul Armentano of NORML at (202) 483-5500.