The agenda for the Feb. 8 meeting of the Medical Board of California’s Marijuana Task Force notes that there will be an explanation of regulations enacted by the legislature and signed by Gov. Jerry Brown that apply to cannabis clinicians. Specifically, agenda item four concerns SB463, one of three bills that were combined to create the Medical Marijuana Regulation and Safety Act (MMRSA). The political insiders call it “mersa,” which happens to be the name of a deadly pathogen, MRSA, Methicillin-Resistant Staphylococcus aureus (for which some compounds in Cannabis might provide a treatment, BTW). After being alerted by O’Shaughnessy’s, the politicos changed “Marijuana” to “Cannabis” in the name of the Act and began pronouncing the nickname “Mac cursor.” The package of new regulations become law January 1, 2018.
The language directly affecting doctors who approve cannabis use by patients is found in Senate Bill 643, which was introduced by Mike McGuire, a Democrat who represents North Coast counties. Here’s the money shot (indented text) and some editorial comments we made in vain when Gov. Brown signed the time bomb back in October, 2015. At bottom is a PS added today (February 1 , 2017)
SEC. 2. Section 2220.05 of the Business and Professions Code is amended to read:
2220.05. (a) In order to ensure that its resources are maximized for the protection of the public, the Medical Board of California shall prioritize its investigative and prosecutorial resources to ensure that physicians and surgeons representing the greatest threat of harm are identified and disciplined expeditiously. Cases involving any of the following allegations shall be handled on a priority basis, as follows, with the highest priority being given to cases in the first paragraph:
(1) Gross negligence, incompetence, or repeated negligent acts that involve death or serious bodily injury to one or more patients, such that the physician and surgeon represents a danger to the public.
(2) Drug or alcohol abuse by a physician and surgeon involving death or serious bodily injury to a patient.
(3) Repeated acts of clearly excessive prescribing, furnishing, or administering of controlled substances, or repeated acts of prescribing, dispensing, or furnishing of controlled substances without a good faith prior examination of the patient and medical reason therefor. However, in no event shall a physician and surgeon prescribing, furnishing, or administering controlled substances for intractable pain consistent with lawful prescribing, including, but not limited to, Sections 725, 2241.5, and 2241.6 of this code and Sections 11159.2 and 124961 of the Health and Safety Code, be prosecuted for excessive prescribing and prompt review of the applicability of these provisions shall be made in any complaint that may implicate these provisions.
(4) Repeated acts of clearly excessive recommending of cannabis to patients for medical purposes, or repeated acts of recommending cannabis to patients for medical purposes without a good faith prior examination of the patient and a medical reason for the recommendation.
“Excessive recommending” probably refers to how many plants doctors are authorizing patients to grow, not how many patients are seen in a day. Doctors who issue approvals at events like the Hemp Expo will probably draw the heat. Doctors who frequently recommend juicing —which requires a constant supply of plant material— may find themselves explaining the benefits of cannabinoid acids and terpenes to an administrative law judge.
(5) Sexual misconduct with one or more patients during a course of treatment or an examination.
They’ve made “excessive recommending of cannabis” a higher-priority offense than sexual misconduct with a patient —which says something about the ethical standards of the California Legislature. It can’t be an oversight —establishing “investigative priorities” is the very purpose of their directive to the med board.
(6) Practicing medicine while under the influence of drugs or alcohol.
There should have been an explicit exception protecting doctors who use legally prescribed or recommended drugs. The language is extremely ambiguous.
(b) The board may by regulation prioritize cases involving an allegation of conduct that is not described in subdivision (a). Those cases prioritized by regulation shall not be assigned a priority equal to or higher than the priorities established in subdivision (a).
(c) The Medical Board of California shall indicate in its annual report mandated by Section 2312 the number of temporary restraining orders, interim suspension orders, and disciplinary actions that are taken in each priority category specified in subdivisions (a) and (b).
The Enforcement Division will hear this last instruction as: “Sic ’em!” If you think their investigators can distinguish between the quick-buck artist and the serious specialist —both of whom approve cannabis use by large numbers of patients— you are an optimist.
PS 2/1/17: The Feb. 8 presentation to the med board about SB643 is one of many presentations that the backers of MCRSA are making in the run-up to implementation. The politicians, police, and bureaucrats understand that passing an Act is only prelude to its implementation, which requires a whole ‘nother push… We first published our critique of the regulations at the time Brown signed them in October, 2015. Those cannabis clinicians who responded to our warning were most concerned about the definition of “attending physician,” and were reassured that —as one put it— “Just as an ophthalmologist would take on the ‘aspect”’ of eye care” they were taking on the aspect of a patient’s cannabis use… Most activists at the time were preoccupied with “legalization,” and saw the MMRSA regs as a legislative complement to the initiative ultimately dubbed the Adult Use of Marijuana Act. When I tried to bring the time bomb in the SB643 to their attention, they would ask, McCarthylike, “Are you for legalization or not? Yes or no?” And now the chickens are coming home to roost…When they were still calling it mersa we couldn’t help recall the truth sung by Mose Allison. —Fred Gardner
