PAGE ONE No Prosecution For Doctors Who Recommend Pot
Justice Dept. hit with temporary ban

Bill Wallace, Chronicle Staff Writer

A federal judge slapped a temporary restraining order on the
U.S. Justice Department yesterday, prohibiting the
prosecution of California doctors who recommend marijuana to
their patients.

The ruling at least temporarily clears the way for doctors
to treat seriously ill patients in accordance with
Proposition 215, the medical marijuana initiative passed by
state voters last year.

The temporary order was hailed as a major victory by a group
of California doctors who sued the government to prevent
federal retaliation against physicians for recommending
marijuana under the new law.

``I'm very happy,'' said Graham Boyd, the lead attorney in
the doctors' lawsuit. ``The judge clearly did the right
thing in stopping the government from threatening doctors
for simply practicing medicine.''

Proposition 215, passed by voters last year with a 56
percent majority, decriminalizes possession of marijuana by
patients and their caregivers if the drug is recommended by
a physician.

In announcing the order, U.S. District Court Judge Fern
Smith said the government's conflicting public statements
about whether it would take action against doctors for
recommending the drug appeared to interfere with free speech
and the practice of medicine.

Noting that the Justice Department was unable to clearly
articulate the circumstances under which criminal or
administrative sanctions might take place, Smith ordered the
government not to take any action against physicians until
the doctors' suit is resolved.

``Doctors have a right and an ethical obligation to give
patients full discussion and accurate information about the
risks and benefits of marijuana,'' Smith said in announcing
her ruling.

She also indicated that the doctors had marshaled enough
evidence in support of their lawsuit that they would
probably win if the case goes to trial.

Smith's ruling came after an hourlong hearing on the
lawsuit, which was filed in January by doctors alarmed at
statements made by the Clinton administration in the wake of
Proposition 215's passage last year.

Initially, White House officials warned that any doctor who
discussed marijuana with patients as a treatment option
under the new state law could be prosecuted on drug
conspiracy charges. Last month, the administration backed
away from that position, saying doctors would be sanctioned
only if they ``recommended'' the drug in a way that helps
patients obtain it.

In court yesterday, Boyd argued that the government had
failed to clarify the difference between a ``discussion'' of
pot as a medication and a ``recommendation'' of the drug,
leaving doctors uncertain about whether they might be
subjected to government action for engaging in a frank
discussion of marijuana.

Barring physicians from discussing marijuana with a patient
``means the patient is forced to depend on information from
unreliable sources,'' Boyd said, ``not from their physician,
which is why the patient goes to the physician in the first
place.''

Government lawyers argued that even a doctor's oral
recommendation that a patient use marijuana, if included in
the patient's medical charts, could enable the patient to
request the charts and take them to a marijuana buyers' club
to document their medical need for the drug despite the
fact that using marijuana is still a federal crime.

``We acknowledge that physicians may discuss the medical
risks and benefits of marijuana,'' said Justice Department
attorney Kathleen Mueller. ``When we come to the issue of
recommendations, that is where the problem lies.''

Smith ordered a mandatory settlement conference before U.S.
District Court Judge Eugene Lynch to try to work out
guidelines that would satisfy lawyers for both sides in the
suit. That conference will be held Thursday morning. In the
meantime, Smith's restraining order will remain in force.

After yesterday's hearing, Patricia Seitz, director of the
Office of Legal Counsel for the White House Office of
National Drug Control Policy, said federal lawyers would
consider appealing Smith's decision, but added that she
believes the doctors' suit can be settled without a full
trial.

``I'm hoping that this will actually help us resolve the
issue,'' she said. ``I'm always hopeful that things can be
worked out.''

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