Medical marijuana law under review
By David McKie
Posted: Sep 28, 2011
Current law pits doctors against patients and creates backlogs, critics say
Health Canada began two days of closed-door talks Wednesday about changes to the controversial medical marijuana law that has faced legal challenges and criticism for being ineffective.
But even as meetings get underway in Ottawa, there are concerns Health Canada is on the wrong track with a law that asks doctors to ignore a sworn obligation to protect patients’ health, while forcing patients to go to great lengths to obtain a drug that many say eases their pain.
Health Canada will hear from representatives of provincial and territorial ministries, medical associations, police forces, municipalities and users of medical marijuana.
Under the “Marihuana Medical Access Program,” the obtaining of medical marijuana depends on doctors issuing an approval or “declaration” confirming that the cannabis will be smoked to ease pain, nausea or other symptoms associated with an illness.
But physicians have long resisted this so-called gatekeeper role, arguing that there is insufficient proof that medical marijuana actually works.
“Smoking something seems really counterintuitive when we have a vast array of evidence going back 50 or 60 years on the deleterious effects of tobacco smoke,” John Haggie, president of the Canadian Medical Association, told CBC News.
“A lot of these patients have chronic conditions. It’s not an acute problem. So you may be storing up untold problems for the future just simply by the way you’re giving the medication. And this absence of information is hindering the whole process.”
Paul Lewin, a lawyer who represented 22 patients in a case over access to medical marijuana, says he heard many stories from users frustrated with a system that puts all the power in the hands of doctors.
“It has been about six years that I’ve been fielding calls from sick people all over Canada, saying ‘I hear you’re bringing a case for people whose doctors won’t sign [declarations],'” he told CBC News.
“And I’m always starting out skeptical, like ‘What are you, some 18-year-old with a sore back?’ But no, [it’s stories like] ‘I’m 65 and I’ve never tried it before, but my daughter said it might help. And then I tried it for the first time and I couldn’t believe the relief I got.’
“The stories are tragic.”
Lewin won the case last spring that threw out a possession charge against an Ontario man, Matthew Mernagh, who testified he grew marijuana himself after his doctor wouldn’t sign an approval. The government is appealing, and the case will be heard in March 2012.
Yet Health Canada is proposing to continue making physicians the gatekeepers in an attempt to streamline the process for thousands of individuals who either have a licence to legally consume or buy marijuana to treat symptoms of their illness.
Although the department is recommending the creation of an expert advisory committee to “improve access to comprehensive and up-to-date information on the potential risks and benefits,” Haggie still has concerns that were expressed in a letter the CMA sent to the health minister in July.
More research needed: CMA
One of the four key issues raised by the CMA was the “the lack of appropriate efficacy and safety evidence” that the 2001 law says must be in place before a treatment is deemed to be safe.
Haggie says it was his association’s understanding that Health Canada would continue to conduct critical research into the efficacy of medical marijuana. But the Harper government eliminated funding for those studies when it assumed power in 2006.
In announcing the cuts to medical marijuana research, the government said it doesn’t believe it should tell researchers what to study.
Health Canada, in an emailed response to questions from CBC News, wouldn’t elaborate on why cuts were made to research considered vital to the viability of the law. But the department pointed to research it funded before 2006, and said it intends to rely on the expert committee to advise doctors on the latest research when the new law comes into effect within the next two years.
The promise of an advisory committee is doing little to ease the concerns of doctors.
In the Mernagh case, the judge concluded that “the vast majority of doctors in Canada are refusing to participate in [the medical marijuana] program.”
Citing the withdrawal of research funding, the judge added, doctors “are obliged by the ethics of their profession not to do anything to harm their patient, and therefore cannot knowingly approve the use of a product whose benefits and risks have not been verified by clinical studies.”
In its defence, the federal government argued the law wasn’t to blame because Health Canada’s only obligation is to permit access to the drug, not to market it or educate doctors.
Overwhelmed by applications
In addition to court challenges, Health Canada has also faced problems managing the program. In a 2010 internal briefing note CBC News obtained through Access to Information, there is a discussion of backlogs, in part due to the greater number of people who manage to find a consenting physician.
“While the program was originally intended to authorize access for a small number of persons, it was never anticipated that applications to produce [marijuana] in individual personal residences would number in the thousands. The number of authorized persons under the program has increased since 2005 from 805 to 5,183.”
In its emailed response to CBC News, the department says that as of Sept. 25, 2011, there are “12,264 individuals who hold a valid authorization to possess marihuana for medical purposes.”
But according to critics, that figure underestimates the real number of Canadians who may be using medical marijuana.
The judge in the Mernagh case concluded that the number of doctors signing demands is a “trickle” compared with the actual number of people who actually need treatment.
The judge also cited a study that concluded there are about 400,000 medical marijuana users in Canada, which he concluded was “most likely an underestimate.”
That number is hard to verify, as neither Health Canada nor the CMA tracks individuals who are unable to find a doctor willing to sign declaration forms.
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