September 26, 2010
In the war on drugs, all patients are suspects.
But not all suspects have the same rights!
As a libertarian who opposes the drug war, I voted in favor of the Michigan Marijuana initiative out of simple reflex, not because I thought it would result in legalization (relegalization, really) of that particular substance, but because it was a step in that direction. Interestingly, what I saw as an argument for the Initiative was used as an argument against it (the "foot in the door for legalization" claim). Whether voters saw it as a foot in the door or not, the Initiative passed overwhelmingly.
Predictably, the new law is already causing confusion and consternation, especially among law enforcement authorities, who see the law as legalizing what should be illegal.
Michigan voters overwhelmingly approved a 2008 law to allow doctors to prescribe marijuana to patients suffering from chronic pain and nausea, as well as serious illnesses like cancer and HIV.Using marijuana as a recreational drug.
The more I looked at that statement, the more confused I became; hence this post. Are we talking about morality here, or are we talking about the practice of medicine?
It is beyond dispute that the voters did approve of legalizing marijuana if a patient gets certification from a doctor. That has to be presumed from what the text of the law says:
When a patient complains, say, of severe and chronic pain or severe and persistent muscle spasms, that is clearly is a matter between the doctor and the patient, and it is up to the doctor to decide whether the patient should be certified.
The complaint by law enforcement that people are being certified by their doctors for "very minor ailments" is beginning to remind me of the ongoing, well-documented conflict between the war on drugs and the war on pain relief. In this war, the medical standard is being subordinated to the dictates of law enforcement. Instead of a doctor being allowed to decide whether a pain patient has pain, and how much pain he is having, the cops want to step in and decide. As I pointed out in a long (but as you'll see, not long enough) post, huge prescription drug databases are now being created, and police (who have no training in medicine) are demanding access to them. In the name of the war on drugs, all patients are suspects, and they are to lose any expectation of privacy in their medical records. The idea is that because some patients lie to their doctors to get the drugs they want, all medical records should be subject to police review. Sorry, but that's not supposed to be the way the system works. If the cops think someone is breaking the law, they can damned well get a warrant from a judge to search based on probable cause. They don't have a right to sift and search through the medical records of everyone in a hunt for suspicious patients.
At least, they shouldn't.
So in this context, I am very suspicious of the claim by law enforcement that "some people are getting approved for marijuana use for very minor ailments." I think they're looking for a general license to go fishing through what are supposed to be patients' private medical records -- again the idea being to treat all patients as suspects. And fortunately for marijuana patients, the law does not allow that:
(f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.So what that means is whether a physician has had adequate medical justification to certify a patient is not up to the police. Thus, the claim that some patients are "getting approved for marijuana use for very minor ailments," even if true, is not a matter for police to decide.
Of course, an interesting question is, what precisely are "minor ailments"? While there is no language in the marijuana law excluding "minor ailments," obviously whoever said they were has rendered a medical judgment (or would it be a moral judgment masquerading as a medical judgment?) that some patients' ailments were minor, and that therefore their doctors had no right to certify them. I guess if a patient complained of pain or muscle spasms, how severe and chronic these symptoms were would be a medical judgment. So unless they had an independent medical expert review the records, how would these cops possibly know? There is no way they could know; I think it's pretty obvious that they merely suspect.
Do police suspicions about some give them a right to treat all patients and all doctors as suspects? No, because according to the law, being certified is not probable cause for a search, and the underlying records are confidential:
(g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.This is reflected at the Department of Community Health's website:
Question: Who has access to the patient registry list?So no one -- least of all a law enforcement officer -- gets to rifle through the records of patients who are receiving marijuana for medical purposes.
But contrast this approach with that of Michigan's prescription drug database:
That's a heck of a lot of people who are allowed free access to the formerly confidential prescription drug records of all Michigan citizens.
"A state, federal, or municipal employee or agent whose duty is to enforce the laws of this state or the United States relating to drugs" means any sworn law enforcement officer, i.e. any cop.
Hell, no wonder they're pissed about the medical marijuana law. It clearly gives special privileges to marijuana patients which are not shared by regular patients.
Shouldn't regular patients be entitled to the same protection that marijuana patients get? According to the law, they are not.
Perhaps we need a "Michigan Medical Prescription Drug Patient Protection Initiative."
MORE: Speaking of prescription drugs, the latest wrinkle is that they cause crime:
...from rural New England to the densely populated South, law enforcement officials are combating a sharp rise in crime tied to prescription drugs.I just hope none of those criminal invaders obtained the names of their victims from the prescription drug database. Considering the number of people allowed to access this once-confidential information, how can we be sure that it won't fall into the wrong hands? What I also find fascinating is the attempt to place the blame for such crimes on the drugs themselves. The only reason these drugs (which cost pennies per pill in drugstores) are valuable to criminals is their enormous -- and escalating -- illegal resale value.
Naturally, the tougher the government makes it for patients to legally obtain pain meds, the higher the illegal price becomes, and the greater the likelihood that the patients will become crime victims.
They are of course crime victims, but they are also victims of the war on drugs.
However, if past experience is any guide, I wouldn't expect the drug war policy advocates to admit that. Instead, they'll most likely use these crimes committed against pain patients as an argument for further restricting pain meds.
Is this all worth it?
posted by Eric on 09.26.10 at 12:24 PM
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