May 1, 2015

Judge: State can’t force medical marijuana patients to try ‘standard treatments’ first

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A Santa Fe district court judge struck down a state rule that required medical patients to exhaust “standard treatments” before entering the Medical Cannabis Program.

Marijuana budThe case that Judge David Thomson ruled on earlier this week involved the state Department of Health’s rejection of a post-traumatic stress disorder patient’s application to the Medical Cannabis Program based on the fact that the patient’s doctor, Carola Kieve, didn’t submit enough medical records with the application and didn’t exhaust other medical treatments first.

Kieve filed the lawsuit more than a year ago. She also charged that Dr. Stan Rosenberg, director of the health department’s Medical Cannabis Program, had a conflict of interest because of his role heading Albuquerque Integrative Medicine. There, Rosenberg refers his own patients to the medical marijuana program.

Thomson, who issued the ruling earlier this week, upheld the state’s argument that patients with PTSD must submit medical records proving their condition to qualify for a medical marijuana card.

But he struck down the argument that patients must go through other treatments before going to marijuana, which are part of the DOH’s rules for the program.

From the ruling:

The Department of Health is requiring a physician first of all to try and understand what “standard treatments” are, and if they can do that, they must exhaust those standard treatments. In the case of PTSD it might be other prescription drugs. This is exactly what Dr. Kieve rightly objected to, and is what is beyond the authority of the Department to require.

Thomson writes that the Lynn and Erin Compassionate Use Act, which the state Legislature passed in 2007 to establish a medical marijuana program, “clearly” allows physicians to “determine whether or not medical cannabis is proper for the patient with or without other alternative or with or without exhausting other ‘standard treatments.'”

In other words, the ruling affirmed that the state cannot interfere with a decision made between a doctor and a patient prescribing medical marijuana.

Following the ruling, the state can proceed with two routes: follow Thomson’s ruling or appeal it to a higher court.

Health department spokesman Kenny Vigil wrote in an email to New Mexico Political Report that the decision came “late Wednesday afternoon” and that the state “is now in the process of reviewing the ruling, and will then evaluate its options about the next steps.”

A previous version of this story misspelled District Judge David Thomson’s name. We regret the error.

Read the full ruling below:

MedicalMarijuanaRuling.pdf by New Mexico Political Report

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