The Therapist
January/February 2010

In recent months we have received inquiries from members possessing medical marijuana cards, engaging in marijuana usage for medical purposes, and requesting information on the implications of such usage and possession on their practice and license. Although the implications of medical marijuana usage is not entirely clear, hopefully the following information will assist those struggling with this issue in making the right determinations for their practices.

California Law
In 2006, California Proposition 215 (the Compassionate Use Act) 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 420 (Vasconcellos) was passed by the California Legislature to help address some of the more vague and ambiguous language within Proposition 215, including but not limited to:

1. Clarifying that a qualified patient may possess no more than eight ounces of dried marijuana per patient or maintain no more than six mature or twelve immature plants per qualified patient;
2. Clarifying how to obtain a lawful medical marijuana card;
3. Defining “serious medical condition” to mean: Acquired Immune Deficiency Syndrome (AIDS); Anorexia; Arthritis; Cachexia; Cancer; chronic pain; Glaucoma; Migraines; persistent muscle spasms, including but not limited to, spasms associated with multiple sclerosis; seizures, including, but not limited to, seizures associated with epilepsy; severe nausea; chronic or persistent medical symptoms that either limit major life activity as defined by the Americans with Disabilities Act of 1990; or if not alleviated, may cause serious harm to the patient’s safety or physical or mental health; and,
4. Allowing counties to establish higher (but not lower) guidelines as to lawful possession amounts.

So where is the dilemma? Federal law is in conflict with California law.

Federal Law
Under federal law, 21 U.S.C. §811 (the Controlled Substances Act), the possession and distribution of marijuana is against the law, as it is 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.”

Over the last few years, the Drug Enforcement Administration (“DEA”) has targeted raids and arrests on medical marijuana dispensaries in California, including arrests on medical marijuana users. However, in March 2009, Attorney General Eric Holder announced a shift in the enforcement of federal drug laws, saying the Administration would effectively end the Administration’s frequent raids on distributors of medical marijuana. Moreover, in October 2009, the Department of Justice (“DOJ”) issued the following statement:

“It is not the practice or policy of DEA to target individuals with serious medical conditions who comply with state laws authorizing the use of marijuana for medical purposes. Consistent with the DOJ guidelines, we will continue to identify and investigate any criminal organization or individual who unlawfully grows, markets, or distributes marijuana or other dangerous drugs. Those who unlawfully possess firearms, commit acts of violence, provide drugs to minors, or have ties to other criminal organizations may also be subject to arrest.”
Accordingly, although marijuana usage–even for medical purposes–is still illegal under Federal law, it is unlikely that the DEA or DOJ would pursue those that legally maintain and use a medical marijuana card issued in compliance with California law.

State/Federal Controversy 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 medical marijuana? The short answer is—it depends. I can see three scenarios that could potentially lead the BBS to take disciplinary action against a therapist:

1. As stated above, possessing or using medical marijuana is lawful under California law, but not 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 that Federal law conviction. However, based on the recent switch in the Administration’s policy about pursuing those who legally possess and use medical marijuana, the chances of an individual being arrested, much less convicted, for possessing medical marijuana are extremely remote. Moreover, even if an individual was convicted of possessing or using medical marijuana under Federal law, it is unlikely that the BBS would pursue a disciplinary action due to H&S §11362.8.
2. Medical marijuana possession and usage is lawful in California—however, only under a strict set of criteria (discussed further in Health and Safety Code §11362.5 and Senate Bill 420). If a therapist possesses or uses medical marijuana outside the current limit of the law, he/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.
3. Medical marijuana is used by individuals who suffer from various medical aliments, discussed above. Although the possession and usage in itself is legal, if the usage of medical marijuana interferes with a therapist’s practice, clinical skills, or patient care, and negligence or patient harm results, the BBS could and would likely take disciplinary action against the therapist.

In conclusion, if a therapist lawfully possesses a medical marijuana card or medical marijuana and/or uses medical marijuana within the boundaries of California law, and their practice is in no way affected by such usage, there is little likelihood of disciplinary action by the BBS. If one wanders from the path of legality and/or his/her practice is negatively affected by such usage, the therapist will likely find himself/herself facing the BBS in a disciplinary action.

Catherine L. Atkins, JD, is a Staff Attorney and the Deputy Executive Director at CAMFT. Cathy is available to answer members’ questions regarding business, legal, and ethical issues.