Medical marijuana litigation in the spotlight

With the legalization of recreational marijuana pending, a recent decision shows that health care disciplinary bodies, professionals and lawyers are still dealing with issues of medical marijuana regulation.

With the spotlight on recreational cannabis, there may be more professional disciplinary cases that emerge from the way cannabis clinics handle patients, says Lonny Rosen, a partner at Rosen Sunshine LLP in Toronto and a Law Society of Ontario-certified specialist in health law.

“With the proliferation of both recreational cannabis dispensaries and medical cannabis clinics, a patchwork of federal, provincial and municipal legislation regulating cannabis, and the unprecedented media and popular culture interest in all things cannabis, confusion about the role of health care providers in the prescription and dispensing of cannabis is likely inevitable,” Rosen says.

Such confusion is likely to generate more complaints against health professionals, Rosen says, and as a result, more disciplinary proceedings are likely to emerge from the dispensing of cannabis in or related to the health care setting.

In the decision, B. S. v V. A., 2018 CanLII 83106, the Health Professions Appeal and Review Board said that it will not intervene in a complaint that a doctor denied a patient a medical cannabis prescription and charged the patient for education about medical marijuana.

The decision, published Sept. 10, upholds a prior decision not to act, made by the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario.

The issue stems back to December 2016, when a man visited the family doctor at the Apollo Applied Research Medical Cannabis Clinic for treatment of post-traumatic stress disorder and chronic lower back pain.

The clinic, which does not usually provide medical cannabis prescriptions directly to patients, required the complainant to do a urine test, which came back positive for cocaine, according to the review board’s decision.

The complaint also alleged that the clinic charged $60 for “education” without making it clear why the education would be provided and that the education was voluntary. 

The education was provided for “guidance on issues such as procurement from Licensed Providers, dosage, conversion calculations and the legal implications of purchasing, owning and travelling with medicinal marijuana,” according to the decision.

The patient had signed a “refusal of education form.”

According to the Canadian Medical Association, the federal government has committed to reviewing the medical marijuana system in the next five years with the legalization of recreational use in October.

“Many physicians feel uncomfortable prescribing a substance that hasn’t undergone the same regulatory review processes required for all other prescription medicines,” the CMA said in a statement on its website. “This information is currently limited for cannabis.”

Rosen says the case is a reminder that the likelihood of a complaint increases dramatically whenever an area of healthcare is controversial or attracts media.

The media attention and overall confusion about cannabis legalization has also brought medical marijuana into the limelight, says Rosen.

Josh Koziebrocki, lawyer and principal at Koziebrocki Law, who represents professionals dealing with complaints to regulatory bodies, says he’s not aware of any direct correlation from physicians dispensing cannabis to an increased number of complaints.

But Koziebrocki says that medical marijuana may fall into a general trend of more complaints against all types of professionals, regardless of the type of medication that is prescribed, because of a recent push from regulated colleges on transparency and the ease of making complaints online.

“Like any medication that is prescribed frequently, it’s possible that as there are more prescriptions by health professionals, patients may choose to complain. However, that doesn’t mean the prescriptions are inappropriate,” says Koziebrocki, of medical marijuana.

“Regardless of the subject matter of the complaint, whether the professional acted in an appropriate manner is going to be the focus of the regulated college.”

In the complaint to the board, the complainant alleged “the medical system, OHIP has been dichotomized, is discriminatory and corrupted [by those] who make fortunes off patients, often already seriously marginalized, in need of less harmful medication.”

“These doctors’ have created a separate industry in a province where OHIP is already paying them for their services. This is not fair and discriminatory,” the complaint said.

Jill McCartney, a partner at Siskinds LLP in London, Ont., says she does not foresee an increase in the number of professional disciplinary complaints relating to prescriptions for medical marijuana.

It’s hard to know how many complaints health care regulatory bodies get about medical marijuana, since the process is long and not all complaints may result in the same level of publicly available investigation or decision, McCartney says.  

She said more public health research may be needed on the types of medical marijuana uses that lead to complaints.

“My inclination is to say that medical marijuana is not increasing the absolute number of patient-doctor interactions relating to prescriptions, but instead resulting in discussion of an alternative management option during those encounters,” she says.

McCartney practises health-care litigation and often represents people who have had adverse experiences in the course of medical care. She says that, like the matter described in B. S. v V. A., 2018 CanLII 83106, the College of Physicians and Surgeons of Ontario can be a platform for patients who may not be seeking damages for injuries but seek to make their voices heard.

While many people don’t retain lawyers for complaints to the College of Physicians and Surgeons of Ontario, she says her practice does hear about issues with chronic pain management, whether it be opioids or other treatments.

“Helping that person understand their legal rights — lawsuits versus complaints to the College, or maybe other options, like looking in the community for other options — those are the types of calls that we can get,” McCartney says.

The board found in the matter that there was no indication the patient was charged for that service, although the decision noted “it was important that patients receive a clear explanation regarding charges that are not covered by OHIP.”

The board’s decision, which was written by presiding vice chairman Rob Steele, and board members Carla Whillier and Dale Wright, said “it was reasonable and appropriate for the Respondent to refuse to provide the Applicant with a prescription, due to contraindications for prescribing cannabis in this case.”

Rosen noted that if health care providers adhere to the guidelines and policies set by the regulator or college, as did the doctor in B. S. v V. A., 2018 CanLII 83106, they can prescribe marijuana, and they may still get a complaint, but they will be in a position to respond to that complaint.

He says it’s important for health care lawyers to be up to speed on the legislation and college policies that apply to the prescription of marijuana or use of cannabis in a healthcare setting. He noted that issues like prescribing cannabis to minors, or insurance coverage of cannabis, may persist as issues that are not addressed by legislation aimed at recreational marijuana.