Healthcare Professionals Face Challenges With Medical Marijuana

On November 8, 2016, Florida voters approved the legalization of medical marijuana. Although not legal under Federal law, the effect of voters amending the Florida Constitution to allow for such use creates an immediate conflict of laws.

Many health care professionals ask what will be the impact on them of medical marijuana. On January 17, 2017, the Florida Department of Health issued its first draft of proposed rules for regulation.

A. What are the Restrictions on Medical Marijuana?

A clear and concise reading of current law indicates that there are certain limitations on how one can use medical marijuana. Presently, the Florida Statutes as currently written and subject to revision this year, state as follows:

(g) “Medical use” means administration of the ordered amount of low-THC cannabis or  medical cannabis. The term does not include the:

1. Possession, use, or administration of low-THC cannabis or medical cannabis by smoking.

2. Transfer of low-THC cannabis or medical cannabis to a person other than the qualified patient for whom it was ordered or the qualified patient’s legal representative on behalf of the qualified patient.

3. Use or administration of low-THC cannabis or medical cannabis:

a. On any form of public transportation.

b. In any public place.

c. In a qualified patient’s place of employment, if restricted by his or her employer.

d. In a state correctional institution as defined in s. 944.02 or a correctional institution as defined in s. 944.241.

e. On the grounds of a preschool, primary school, or secondary school.

f. On a school bus or in a vehicle, aircraft, or motorboat.

In fact, the Constitutional Amendment itself restricts the use of medical marijuana and contains limitations.[i]  The bottom line here is that citizens in the State of Florida who qualify to use medical marijuana have some limitations place on them by administrative rules, Florida Statutes, and the Constitution itself.

B.   Can DOH discipline the license of a physician, nurse, or other health care professional for use of medical marijuana?

Yes. This is where the issue gets complicated.

While hypothetically, a nurse could get a certification from a physician that he/she has a “debilitating medical condition”[ii] that requires medical marijuana, Florida law still prohibits licensed health care providers from being impaired at work.

The law regulating licensed health care professionals prohibits practicing with an impairment or while impaired. A recent bill proposed in the Florida Legislature would attempt to define the term as follows:

“Impairment” means a potentially impairing health condition that is the result of the misuse or abuse of alcohol, drugs, or both, or a mental or physical condition that could affect a practitioner’s ability to practice with skill and safety.[iii]

Under current Florida law, Section 456.072(1)(hh), F.S., sets forth, as grounds for disciplinary action against a health care practitioner, being terminated from a treatment program for impaired practitioners, which is overseen by an impaired practitioner consultant, for failure to comply, without good cause, with the terms of the monitoring or treatment contract entered into by the licensee; or for not successfully completing any drug treatment or alcohol treatment program. Similarly there are requirements for health care practitioners to report other practitioners who may be impaired.

C.   Conclusion

In my review of the law and conversations with DOH officials, it is my impression that a licensed health care worker that uses medical marijuana would run the risk of termination from employment, discipline of their license by DOH, or both.

The very language of Amendment 2 states: “Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” [emphasis added].  This language now in the Florida Constitution appears to preclude use of medical marijuana in the work place.

Similarly, the Amendment also states: “Nothing in this section allows for a violation of any law other than for conduct in compliance with the provisions of this section.”   Any other law would include Chapters 456, Florida Statutes and all other regulations governing health care licensees.  Therefore, it is safe to assume that the medical marijuana amendment was not meant to override existing health care regulations.

However, our democracy provides for citizens the ability to ask the courts to interpret laws. To the extent someone may want to argue there is a conflict between the law governing medical marijuana and health care license regulations we may see a different interpretation.   Stay tuned.

“The safe course of action would be to assume that your regulatory Board would not approve if you tested positive for marijuana, even if you had a valid certification to use medical marijuana.”

 

 

End Notes:

[1] LIMITATIONS.

(1) Nothing in this section allows for a violation of any law other than for conduct in compliance with the provisions of this section.

(2) Nothing in this section shall affect or repeal laws relating to non-medical use, possession, production, or sale of marijuana.

(3) Nothing in this section authorizes the use of medical marijuana by anyone other than a qualifying patient.

(4) Nothing in this section shall permit the operation of any vehicle, aircraft, train or boat while under the influence of marijuana.

(5) Nothing in this section requires the violation of federal law or purports to give immunity under federal law.

(6)Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.

 

[2] “Debilitating Medical Condition” means cancer, epilepsy, glaucoma, positive status for human

immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder

(PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease,Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for

which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

 

[3] Senate Bill 876, Florida Legislature 2017.https://https://www.gannett-cdn.com/-mm-/b3416daa88a94c08362caac6f90a5037521da4ad/c=29-0-479-338&r=x404&c=534×401/local/-/media/2016/02/22/FortMyers/FortMyers/635917482551012216-Marijuana.jpg