by Anastasia Johnson, JD
former Staff Attorney
The Therapist
January/February 2019

Given California’s recent legalization of recreational marijuana, more and more California LMFTs are being asked by their clients to provide advice about marijuana products as a supplement to help aid the client. Recently CAMFT Staff Attorneys have received a considerable amount of phone calls about whether LMFTs are able to provide such advice. This article will review the laws and ethics surrounding this topic as well as psychedelic therapy, to ensure that LMFTs practice legally, ethically and within their scope of practice.

Scope of Practice
The Business and Professions code is the section of California law that defines the LMFT scope of practice. The scope of practice describes the procedures, actions, and processes that an LMFT is permitted to undertake in keeping with the terms of their professional license. The scope of practice is limited to that which the law allows for specific education and experience, and specific demonstrated competency.

Scope of Competency
Scope of Competence is what you can lawfully do in your profession in light of your education, training, and experience. If you act outside of your scope of competence, then you would be violating the law.¹

Additionally, according to the CAMFT Code of Ethics, “marriage and family therapists take care to provide proper diagnoses of mental and emotional disorders or conditions and do not assess, test, diagnose, treat, or advise on problems beyond the level of their competence as determined by their education, training, and experience...”²

Marijuana Laws
The landscape of state and federal laws regarding marijuana is at odds; consumption of marijuana is legal under California law but still illegal under federal law.

California Marijuana Law
In 2016, California voters approved Proposition 64, also known as the Adult Use of Marijuana Act (AUMA)3, by a margin of 57 percent to 43 percent making California one of the nine states to legalize recreational marijuana, after Colorado, Washington, Oregon, Alaska, Nevada, Maine, Massachusetts and Vermont and the District of Columbia ^{4 5} Prop 64, which took effect in 2018, allows the sale of marijuana for adult use (21 years and over) in licensed stores under regulations to be established by the state Department of Marijuana Control (DMC) in conjunction with local governments, as well as allow adults to grow marijuana for personal use.⁶

Federal Marijuana Law

However, under federal law known as the Controlled Substances Act,⁷ the possession and distribution of marijuana is illegal. It is also unlawful for physicians to prescribe marijuana (for any reason). According to the Federal Drug Enforcement Agency, “Marijuana is a Schedule I substance under the Controlled Substances Act. Schedule I drugs are classified as having a high potential for abuse, currently not accepted for medical use in treatment in the United States, and a lack of accepted safety for use of the drug or other substance under medical supervision.”⁸

The new California laws and existing federal laws have not changed the LMFT scope of practice. To read more on this issue, see Marijuana Laws and Your License in The Therapist Magazine.⁹

Cannabidiol (or “CBD Oil”)

CBD Oil has become a hot topic, so much so that CAMFT Staff Attorneys have received an average of a few calls a day related to whether therapists are able to recommend or prescribe CBD Oil to patients. CBD Oil consists of marijuana extract that is derived from the flowers and buds of marijuana or hemp plants.¹⁰ It is gaining momentum in the health and wellness world, with some scientific studies confirming it may help treat a variety of ailments like chronic pain and anxiety.¹¹ In California, the confusing regulatory landscape around the substance is shaped by both state and federal law as well as local polices, as discussed above.

The first issue that arises involves clinicians prescribing or recommending for clients to take the substance. The question that usually arises is as follows, “My client has a diagnosis of anxiety, can I recommend that they take CBD oil to treat their anxiety?” Prescribing or specifically recommending that a client take any supplement or product to treat a mental illness is not within the LMFT scope of practice. However, giving general recommendations about nutrition is generally appropriate if within the therapist’s scope of competence. For more reading on giving nutritional advice, see Nutritional Advice Healthy Reminders about Scope of Practice and Competence in The Therapist Magazine.¹²

Therapists, who are considering giving generally recommendations on CBD Oil, should also consider the legal implications. Although California law allows for consumption of CBD oil, it is still unlawful under federal law. If anything goes awry for the client under federal law, not only could there be potential liability on the therapist for making the recommendation (client sues for negligent recommendation), there could be a negative impact to the therapeutic relationship.

Generally speaking, if you have clients that are curious about the substance it is best to advise them to consult with their physician.

The second question that arises involves selling CBD oil in the therapy office directly to clients. Before engaging in such a venture, a therapist should consider key ethical issues which include but are not limited to does selling products to a client create an unethical dual relationship? Would it create a conflict of interest? How would the Board of Behavioral Sciences view the activity? Could this be in any way exploitive of the client? The CAMFT Code of Ethics has several relevant portions;

1.2 DUAL RELATIONSHIPSDEFINITION: Marriage and family therapists are aware of their influential position with respect to patients, and they avoid exploiting the trust and dependency of such persons. Marriage and family therapists therefore avoid dual relationships with patients that are reasonably likely to impair professional judgment or lead to exploitation... marriage and family therapists take appropriate professional precautions to ensure that judgment is not impaired and that no exploitation occurs.¹³

1.6 EXPLOITATION: Marriage and family therapists do not use their professional relationships with patients to further their own interests and do not exert undue influence on patients.¹⁴

9.2 FINANCIAL EXPLOITATION: Marriage and family therapists do not financially exploit their patients.¹⁵

Generally, due to possible allegations of client exploitation or impairment of therapist’s judgment, it is best to avoid selling products, including CBD oil, to clients.

Therapists should also consider whether providing recommendations on CBD oil and/ or selling the product would be covered by their malpractice insurance. Most policies will not cover a therapist who is working outside of their scope of practice. It is recommended that therapists who are interested in engaging in such ventures, to contact their malpractice carrier for more information.

Psychedelic Therapy
CAMFT Staff Attorneys have also received numerous calls on psychedelic therapy and whether it is within an LMFT’s scope of practice to provide this type of service. Psychedelic therapy refers to therapeutic practices involving the use of psychedelic drugs, particularly serotonergic psychedelics such as LSD, psilocybin, DMT, MDMA and mescaline, primarily to assist in psychotherapy.¹⁶ Between the 1960’s and 1980’s, the use of LSD and many other psychedelics were restricted and then eventually placed into the most restrictive “Schedule I” category by the United States Drug Enforcement Administration (DEA), the government body that controls aspects of drug scheduling and research.¹⁷ Schedule I is the most restrictive category, with drugs in it defined as having no medical use and as being unsafe to use, even under medical supervision, with a high potential for abuse.¹⁸ Substances in Schedules I and II require a special license and approval from the Food and Drug Administration (FDA) to possess or use in experiments.¹⁹

DEA licenses and approval are required for psychedelic research studies as well as approval and licensing by the FDA. As a result, outside the context of a very few government-reviewed (approved) studies, provision of psychedelic therapy is illegal.²⁰

Therapists may obtain more information about psychedelic therapy from the Multidisciplinary Association for Psychedelic Studies (MAPS).

Conclusion
It is imperative that LMFT work within their scope of practice and their scope of competence. Therefore, prescribing marijuana and marijuana-derived products to treat a specific diagnosis is outside of an LMFT scope of practice. Before selling CBD oil or any product in the therapy office, consider the key ethical issues as well as whether selling products would be covered by malpractice insurance. Furthermore, outside of a select number of DEA and FDA approved government research studies the provision of psychedelic therapy is illegal.

When discussions with clients take an unexpected turn, remind the client about your scope of practice and have resources to provide to them, such as suggesting that the client speak to their physician. This ensures that you practice legally and ethically, as well as helps the client speak to the right professional about their health care.

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Anastasia Johnson, JD, is a staff attorney for CAMFT. Anastasia is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes

¹ Under California Business and Professions Code Section 4982(d), unprofessional conduct includes “[g]gross negligence or incompetence in the performance of marriage and family therapy.”

² CAMFT Code of Ethics, “Scope of Competence” at Part I, Article 3, Section 3.9, page 6.

³ Proposition 64 Adult Use of Marijuana Act. https://ballotpedia. org/California_Proposition_64,_Marijuana_Legalization_(2016), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_ id=201720180AB64

⁴ What to Know About Marijuana Legalization in California, Time Magazine http://time.com/4565438/california-marijuana-faq-rulesprop-64/

⁵ German Lopez. The spread of marijuana legalization, explained. https://www.vox.com/cards/marijuana-legalization/where-ismarijuana-legal

⁶ AB-64 Cannabis: licensure and regulation. https:// leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_ id=201720180AB64

⁷ 21 U.S.C. §811

⁸ Drug Enforcement Administration, Drug and Chemical Evaluation Section, Diversion Control Division Scheduling Actions Controlled Substances Regulated Chemicals. https://www.deadiversion.usdoj. gov/schedules/orangebook/orangebook.pdf

⁹ Anastasia Johnson, JD. Marijuana Laws and your License. The Therapist. January/February 2018

¹⁰ Id.

¹¹ Jillian Kubala, MS, RD. Health Line. February 26, 2018. 7 Benefits and Uses of CBD Oil (Plus Side Effects). https://www.healthline.com/nutrition/cbd-oil-benefits

¹² Andrew Wellisch, JD. Nutritional Advice Healthy Reminders about Scope of Practice and Competence The Therapist. November/December 2014

¹³ CAMFT Code of Ethics, Part I, Section 1.2

¹⁴ CAMFT Code of Ethics, Part I, Section 1.6

¹⁵ CAMFT Code of Ethics, Part 9, Section 9.2

¹⁶ Psychedelic therapy. https://en.wikipedia.org/wiki/Psychedelic_Therapy

¹⁷ Id.

¹⁸ Id.

¹⁹ Luke Williams Supervised by Martin Kusch. Human Psychedelic Research: A Historical And Sociological Analysis. https://maps.org/ index.php?option=com_content&view=article&id=5468#banningp sychedelics

²⁰ Multidisciplinary Association for Psychedelic Studies (MAPS) Frequently Asked Questions. https://maps.org/about/faq

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.