by: Anastasia Johnson, JD
former Staff Attorney
The Therapist
January/February 2018

In recent years, there have been several changes to the laws regarding marijuana use and possession in California. There are also possible changes ahead at the federal level, led by an outspoken legalization opponent, U.S. Attorney General Jeff Sessions. The United States Department of Justice (DOJ) is reviewing federal marijuana policy, with significant changes possible at any time. Due to these changes, CAMFT has been receiving inquiries from members regarding medical marijuana cards, engaging in marijuana use for medical purposes, the recreational use of marijuana in California, and the implications of such use and possession on their marriage and family therapist license.

Although the implications of medical and recreational marijuana usage are not entirely clear at this time because of the conflict between state and federal law, hopefully the following information will assist those struggling to understand the recent changes, as well as what the laws mean for your marriage and family therapy license.

California Law
In 1996, California Proposition 215, also known as the Compassionate Use Act of 1996¹ passed with a 55.6 percent vote. Proposition 215 essentially allows patients with a valid physician’s recommendation to possess marijuana for personal medical use.

The law specifically affected was Health and Safety Code §11362.5, which states in pertinent part: “…To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief…To ensure that patients…who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.”

In 2003, Senate Bill 420²  was passed by the California Legislature to help address some of the more vague and ambiguous language within Proposition 215. Specifically, SB 420 reflects a compromise between patients’ advocates and law enforcement. Included in SB 420 are new state guidelines regarding how much marijuana patients may grow and possess without being subject to arrest. It also includes a voluntary patient identification card system and other provisions to protect patients and their caregivers from arrest.³

In 2016, California voters approved Proposition 64, also known as the Adult Use of Marijuana Act (AUMA)⁴, by a margin of 57 percent to 43 percent making California one of the eight states to legalize recreational marijuana, after Colorado, Washington, Oregon, Alaska, Nevada, Maine and Massachusetts.⁵ Prop 64, which takes effect in 2018, will allow 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.

Federal Law
Under federal law known as the Controlled Substances Act,⁶ 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 (CSA). Schedule I drugs are classified as having a high potential for abuse, no currently accepted 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.”

We have seen several policy changes within the Department of Justice (DOJ) regarding the enforcement of marijuana possession and distribution, beginning in 2009 with Attorney General Eric Holder⁷ issuing new guidelines for federal prosecutors. Those guidelines made it clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws. However, the guidelines went on to say that the Department will continue to prosecute people whose claims of compliance with state and local law conceal operations inconsistent with the terms, conditions, or purposes of those laws.⁸Then, in 2013, Deputy Attorney General James Cole⁹ reframed the DOJ’s priorities and laid out a policy of federal noninterference with state laws so long as public health and public safety are not threatened, in what became known as the “Cole Memo.”

Currently, with the Trump administration’s appointment of current Attorney General Jeff Sessions, many have wondered whether Mr. Sessions would resume enforcing federal law.

Mr. Sessions has long been vocal about his desire to reverse the DOJ’s approach to state legalization of marijuana use and distribution, and many believe he may resume strictly enforcing federal laws, which still regard all marijuana use and distribution as illegal.

In a letter from early 2017, Mr. Sessions reiterates that “Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a crime,” and that “the Department remains committed to enforcing the Controlled Substances Act in a manner that efficiently applies our resources to address the most significant threats to public health and safety.”¹⁰ Although that language may seem to change existing policy, Mr. Sessions quotes nearly word-for-word from the 2013 Memo from Deputy Attorney General James Cole, which set a policy of federal non-interference.

However, the speculation about Mr. Sessions’ ended on January 5, 2018 when he announced that he will rescind the Cole Memo. Mr. Sessions’ decision empowers federal attorneys to decide whether to enforce laws prohibiting marijuana use, sales, and cultivation. California has four federal attorneys who would determine how to enforce the law in their districts, which could lead to different enforcement rules within the state.

Mr. Session decision to resume enforcing federal law ends the practice of federal noninterference that had been in place since 2013.

State/Federal Conflict and Your License
So what does all this mean to your marriage and family therapist license?

California law specifically states that “No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee’s role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to Section 11362.72.” (H&S §11362.8) What that law is saying is that professional licensing boards cannot impose penalties or disciplinary actions against therapists for simply holding validly and legally issued California medical marijuana cards.

So, is there any chance that the Board of Behavioral Sciences (BBS) could take action against a therapist for possessing or using marijuana? The short answer is—it depends. There are potentially three scenarios that could lead the BBS to take disciplinary action against a therapist:

1.  As stated above, possessing or using medical or recreational marijuana is lawful under California law, but not under federal law. Therefore, if a therapist was convicted under federal law for possessing or using marijuana (even if lawful in California), the BBS could arguably take action based on a federal law conviction. However, even if an individual was convicted of possessing or using medical or recreational marijuana under federal law, it is unlikely that the BBS would pursue a disciplinary action due to H&S §11362.8, Prop. 215 and Prop. 64, and as long as the usage complied with existing California law.
2. Medical and recreational marijuana possession and usage are lawful in California, however, only under a strict set of criteria (as discussed further in Health and Safety Code §11362.5 and Senate Bill 420, Prop. 215 and Prop. 64). If a therapist possesses or uses marijuana outside of the current limits of the law, he or she is then violating California law and could be subject to both California and federal arrest and conviction. If convicted in this situation, the BBS could and would likely take disciplinary action against the therapist.¹¹ The CAMFT Code of Ethics also states that MFTs are in violation of the Code of Ethics if they are convicted of a crime substantially related to their professional qualifications or functions.
3.  Although the possession and usage of medical and recreational marijuana are legal under California law, if the usage of marijuana interferes with a therapist’s practice, clinical skills, or patient care resulting in negligence or patient harm, the BBS could and would likely take disciplinary action against the impaired therapist.¹² As a reminder, therapeutic impairment occurs when there is a significant negative impact on the therapist’s professional functioning, due to substance use or chemical dependency, mental illness, or personal crisis. Therapists who are impaired are distinguished from stressed or distressed therapists who are experiencing significant stressors, but whose work is not significantly affected.¹³ It is assumed that an impaired therapist has at some point had a sufficient level of clinical competence, which has become diminished for the reasons described above. The CAMFT Code of Ethics provides that MFTs can be in violation of the code if they continue to practice when they are no longer competent to practice because they are impaired due to physical or mental causes or the abuse of alcohol or other substances.¹⁴ If this is something that is occurring with a colleague the CAMFT Code of Ethics encourages therapists to assist the impaired colleague.¹⁵ However, if you find that your work performance or clinical judgment is impaired, the CAMFT Code of Ethics encourages you to seek appropriate professional assistance.¹⁶

Some Helpful Reminders

Where can marijuana be consumed in California?
Adults cannot consume marijuana in public, which includes, but is not limited to, hallways and lobbies of apartment buildings and hotels, on the street, in schools, within 1,000 feet of a school, amusement parks, public parks, and places of business usually open to the general public. Generally, Proposition 64 allows the use of marijuana within one’s private residence.¹⁷

What about consuming marijuana and driving in California?
It is unlawful to drive while under the influence of marijuana (or alcohol or any other drug) by Vehicle Code 23152. “Under the influence” is not specifically defined in the statute, but is interpreted to imply some degree of impairment.

The exact protocols for determining if a driver is impaired by marijuana will be put forth by the California Highway Patrol and has not yet been determined.¹⁸

Can an employer in California fire you for having marijuana in your system?
Yes. Employers can enforce policies prohibiting marijuana use by employees. Nothing in Prop. 64 changes an employer’s rights to set their own policies. Employers maintain the right to have a drug-free workplace. ¹⁹

Conclusion

In conclusion, if one wanders from the path of legality and his/her practice is negatively affected by such usage, the therapist will likely find himself/herself facing the BBS in a disciplinary action.

 

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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 Compassionate Use Act of 1996. http://a2c2.us/the-laws/ compassionate-use-act-of-1996-prop-215/

² Senate Bill 420. ftp://www.leginfo.ca.gov/pub/03-04/bill/sen/sb_0401-0450/sb_420_bill_20031012_chaptered.html

³ SB 420 Establishes Prop. 215 Guidelines, Voluntary Patient Identification Card System, California NORML, http://www.canorml. org/laws/sb420.html

⁴ 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

⁵ What to Know About Marijuana Legalization in California, Time Magazine http://time.com/4565438/california-marijuana-faq-rulesprop-64/

⁶ 21 U.S.C. §811

⁷ The Department of Justice. https://www.justice.gov/archives/opa/blog/memorandum-selected-united-state-attorneys-investigationsand- prosecutions-states

⁸ Department of Justice, https://www.justice.gov/opa/pr/attorneygeneral-announces-formal-medical-marijuana-guidelines

⁹ The Department of Justice. https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf

¹⁰ Sessions says he has ‘serious concerns’ about legal marijuana. Now states wonder what’s next, LA Times, http://www.latimes. com/nation/la-na-sessions-marijuana-20170809-story.html

¹¹ Business and Professions Code Section 4982-4982.3

¹² Business and Professions Code Section 4982-4982.3

¹³ Lawson Gerald and Beth Venart Preventing Counselor Impairment: Vulnerability, Wellness, and Resilienchttp://pegasus.cc.ucf.edu/~drbryce/Preventing%20Counselor%20Impairment.pdf

¹⁴ CAMFT Code of Ethics, Part 1, Section 3.1

¹⁵ CAMFT Code of Ethics, Part 5, Section 5.2

¹⁶ CAMFT Code of Ethics, Part 3, Section 3.4

¹⁷ Adult Use of Marijuana Act (11362.3(a)3)

¹⁸ Adult Use of Marijuana Act (11362.3(a) 4,7-8)

¹⁹ Adult Use of Marijuana Act (11362.45(f))

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.