On November 4, 2008, Michigan voters approved Initiated Law 1 of 2008 (now codified at MCL 333.26421 et seq.), which allows “under state law the medical use of marihuana; to provide protections for the medical use of marihuana [the Act spells marijuana with an “h” rather than a “j” throughout]; to provide for a system of registry identification cards for qualifying patients and primary caregivers; to impose a fee for registry application and renewal; to provide for the promulgation of rules; to provide for the administration of this act; to provide for enforcement of this act; to provide for affirmative defenses; and to provide for penalties for violations of this act.” The Act went into effect on December 4, 2008. However, it had very little practical impact in its first few months, as health care professionals and patients alike lacked guidance as to how the Act would be implemented. Some of this confusion has been resolved through regulations, issued by the Michigan Department of Community Health, which went into effect April 4, 2009.
Pursuant to the Department’s new regulations, a patient or a primary caregiver (“a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs,” MCL 333.26423(g)) may apply to the Department for a “Medical Marihuana Registry Identification Card.” The application must be accompanied by a certification from an M.D. or a D.O. that the patient has been diagnosed with a “debilitating medical condition,” defined in the Act as “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,” or 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.” 333.26423(a). (The Department’s newly enacted regulations provide a mechanism for adding conditions to this list.). Only an M.D. or a D.O. can certify a qualifying condition. MCL 333.26423(f). The application must also provide information regarding the primary caregiver, and must identify who is responsible for the plants.
If the application is approved, the patient or primary caregiver will be issued a card. It is important to note that there are no “prescriptions” for marijuana under the Act. This is addressed on the Department of Community Health’s website under “Frequently Asked Questions”: "Question: Do I get a prescription from my doctor? Answer: The federal government classifies marihuana as a Schedule 1 drug, which means that licensed medical practitioners cannot prescribe it. Your physician must provide written certification of a "debilitating medical condition" and can only recommend the use of medical marihuana."
Instead, the card merely authorizes the patient or caregiver to possess “up to 2.5 ounces of usable marihuana,” MCL 333.26424(a)-(b); it is up to the patient/caregiver to (presumably) grow or otherwise obtain the plant. This is also clarified on the Department’s website: “The MMMP [Michigan Medical Marihuana Program] is not a resource for the growing process and does not have information to give to patients.” If an individual is too ill to grow their own medical marihuana, the Act establishes a system of designated caregivers. The caregiver can acquire 2.5 ounces of usable marihuana and grow up to 12 marihuana plants for a qualifying patient. The caregiver may assist up to 5 patients. The caregiver must sign a statement agreeing to provide marihuana only to the qualifying patients who have named the individual as their caregiver. The caregiver's name, address, birth date and social security number must be provided to the state at the time of a patient's registration. The Department will issue a registry identification card to the caregiver who is named by a qualifying patient on his/her application. The Department may not issue a registry identification card to a proposed caregiver who has previously been convicted of a felony drug offense. The Department will verify through a background check with the Michigan State Police that the designated caregiver has no disqualifying felony drug conviction. A caregiver may receive reasonable compensation for services provided to assist with a qualifying patient's medical use of marihuana. It appears that patients/caregivers are required to grow the marijuana themselves, as it is still illegal to buy marijuana under MCL 333.7401. It remains unclear, however, how one is to legally obtain the seeds, as even the seeds are defined as a controlled substance per MCL 333.7106(3).
As explained above, the physician’s role in this process is limited to diagnosing a qualifying condition. Physicians do not write prescriptions for marijuana or play any role in delivering the drug to the patient under the Act. Moreover, the Act provides: "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." MCL 333.26424(f).
The Department of Community Health’s website does indicate, however, that it will “collect and disseminate statistics about participation in” the MMMP, including the “number of physicians providing written certifications....” However, the information provided with the application - “including information regarding ... physicians, are confidential” under the Act. MCL 333.26426(h)(1). Thus, the fact that the Department plans to disseminate statistics should not be interpreted to imply that the identities of physicians who sign certifications will be made public; this information is specifically deemed confidential under the Act.
-Drew Broaddus