DOCTORS CAN RECOMMEND MARIJUANA, COURT RULES

Licenses Protected: Decision Prevents Government From Disciplining
Physicians For Advising Pot To Patients.

Doctors have a constitutional right to recommend pot to patients, and
cannot be disciplined by the government for doing so, a federal judge ruled
Thursday in a decision that could have immediate implications for
physicians and patients across the state.

The order by U.S. District Court Judge William Alsup bans the government
from revoking doctors' licenses to prescribe medication if they recommend
the drug. It also prohibits the government from initiating investigations
of physicians who have made such recommendations.

"Physicians have a legitimate need to discuss with and to recommend to
their patients all medically acceptable forms of treatment," Alsup wrote in
the 23-page ruling. "If such recommendations could not be communicated,
then the physician-patient relationship would be seriously impaired.
Patients need to know their doctors' recommendations."

Alsup wrote that his order applies even if "the physician anticipates that
the recommendation will, in turn, be used by the patient to obtain
marijuana in violation of federal law."

While no California doctors have been disciplined for recommending cannabis
to seriously ill patients, government officials -- from drug czar Barry
McCaffrey to Department of Justice attorneys -- have repeatedly vowed to
resist Proposition 215, California's voter-approved medicinal marijuana law.

The American Civil Liberties Union, which brought the class-action suit,
contended the government's position violated doctors' free speech rights,
and that many doctors were resisting recommending pot for fear of losing
their federal right to prescribe medication.

Those doctors hailed the court's decision Thursday, saying it would have a
palpable and immediate effect on how they talk to patients.

"I felt I couldn't talk about it in any way, shape or form," said Dr.
Milton Estes, a plaintiff in the case who works exclusively with
HIV-infected patients. "It's incredibly reassuring to feel now I can start
talking to patients again about what my thoughts are. I'm thrilled."

Estes, who has a private practice in Marin County and oversees the care of
all HIV-positive inmates in San Francisco County jails, predicted the
ruling will affect "innumerable'' patients.

Despite a temporary injunction issued against the government in 1997,
doctors like Estes said they remained nervous about talking to patients
about marijuana because of public threats made by such high-ranking
officials as McCaffrey.

In December 1996, less than two months after the so-called Compassionate
Use Act took effect, McCaffrey said doctors who recommended marijuana would
lose their federal licenses to prescribe controlled substances. He said the
doctors would be excluded from Medicare and Medicaid and could face
criminal charges.

The government has argued that physicians who recommend marijuana to
patients are keeping drug traffickers in business, and that doctors cannot
recommend a substance that is not regulated by the federal Food and Drug
Administration. Department of Justice attorneys did not return calls late
Thursday seeking comment on the ruling.

The ACLU countered that the government was trying to stifle the free speech
of doctors in an overzealous attempt to stay true to its "war on drugs."

"This decision draws a very clear, bright line in protecting doctors who
recommend marijuana," ACLU attorney Graham Boyd said Thursday. "The bottom
line is that with this order, doctors and patients can once again freely
discuss marijuana without fear of federal punishment."

Also called the Compassionate Use Act, Proposition 215 allows patients with
such chronic, debilitating illnesses as AIDS and cancer -- and with a
doctor's recommendation -- to use marijuana for pain relief without being
prosecuted under state law. Similar measures have passed in Alaska,
Arizona, Hawaii, Maine, Nevada, Oregon and Washington state.

The first challenges to Proposition 215 were directed at cannabis clubs for
medicinal marijuana users. Clubs in Oakland, San Francisco and San Jose
were closed by local authorities, uncomfortable with their lack of
regulation, intent on upholding state and federal drug laws.

The law remains under fire. Last week, the U.S. Supreme Court barred an
Oakland marijuana club from distributing cannabis to sick patients until it
decides whether that practice is lawful.

Contact Alexis Chiu at achiu@sjmercury.com or (415) 477-3795.