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.

The law contains restrictions about how much marijuana a patient can have, and where he or she can get it.

But here are some of the problems that have arisen:

• Police and prosecutors contend that some doctors are prescribing medical marijuana to patients they meet for the first time, after a brief exam, for a fee ranging up to $200. The law does not require extensive documentation about the patient's ailment -- only state-issued identification cards -- and law enforcement contends some people are getting approved for marijuana use for very minor ailments and are, in effect, using marijuana as a recreational drug.

But marijuana advocates say it is not the role of the government or law enforcement to judge a patient-doctor relationship, even one that is brief. They argue one patient's back pain may be another patient's anguish.

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:

a) "Debilitating medical condition" means 1 or more of the following:

(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, nail patella, or the treatment of these conditions.

(2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.

(3) Any other medical condition or its treatment approved by the department, as provided for in section 5(a).

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.

(h) The following confidentiality rules shall apply:

(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(3) The department shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.

(4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department.

This is reflected at the Department of Community Health's website:
Question: Who has access to the patient registry list?
Answer: The state will maintain a confidential list of "qualified patients" and "approved caregivers" to whom the department has issued registry identification cards. Individual names and other identifying information on the list must be confidential and is not subject to disclosure, except to:
(a) authorized employees of the department as necessary to perform official duties of the department; or
(b) authorized employees of state or local law enforcement agencies, only as necessary to verify that a person is a lawful possessor of a registry identification card.

Question: Is my confidentiality protected?
Answer: Yes. The MMMP does not give out lists of patients or caregivers. Law enforcement personnel may contact the MMMP only to verify if a patient or caregiver registration card is valid. The MMMP will tell law enforcement staff if the patient or caregiver is registered. The MMMP will disclose patient information to others only at the specific written request of the patient. MMMP computer files are secure and paper files are kept locked when not in use.

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:

333.7333a Electronic monitoring system.

Sec. 7333a.

(1) The department shall establish, by rule, an electronic system for monitoring schedule 2, 3, 4, and 5 controlled substances dispensed in this state by veterinarians, and by pharmacists and dispensing prescribers licensed under part 177 or dispensed to an address in this state by a pharmacy licensed in this state. The rules shall provide an appropriate electronic format for the reporting of data including, but not limited to, patient identifiers, the name of the controlled substance dispensed, date of dispensing, quantity dispensed, prescriber, and dispenser.


(2) Notwithstanding any practitioner-patient privilege, the director of the department may provide data obtained under this section to all of the following:

(a) A designated representative of a board responsible for the licensure, regulation, or discipline of a practitioner, pharmacist, or other person who is authorized to prescribe, administer, or dispense controlled substances.

(b) An employee or agent of the department.

(c) 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.

(d) A state-operated medicaid program.

(e) A state, federal, or municipal employee who is the holder of a search warrant or subpoena properly issued for the records.

(f) A practitioner or pharmacist who requests information and certifies that the requested information is for the purpose of providing medical or pharmaceutical treatment to a bona fide current patient.

(g) An individual with whom the department has contracted under subsection (9).

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.

"We're seeing people desperately and aggressively trying to get their hands on these pills," said Janet T. Mills, the attorney general in Maine. "Home invasions, robberies, assaults, homicides, thefts -- all kinds of crimes are being linked to prescription drugs."

In Harpswell, Me., a masked man broke into the home of a 77-year-old woman in June, knocked her to the ground and snatched her Oxycontin pills at knifepoint. And in Hyannis, Mass., three men armed with a knife, a bat and a revolver broke into a home in 2008, bound the owner's hands and feet with duct tape and tore through drawers and cabinets until they found her husband's Oxycontin.

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


Okay, so the first one (oxycontin stealing) happened 3 months ago and the second example of this "wave" is from 2 years ago.

Somehow I would think that trend was invented by our intrepid "reporter" or handed to him by a totally disinterested prescription drug crusader.

I can't believe nobody's contested that law. After all, everybody who has prescription drugs or has a potential to get same (i.e. everybody) has standing to sue.

Veeshir   ·  September 28, 2010 2:35 PM

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