Hundreds of Michiganians who suffer from chronic debilitating illness may find therapeutic or palliative benefit from the lawful use of medical marijuana pursuant to the Michigan Medical Marijuana Program (MMMP) administered by the Michigan Department of Community Health (MDCH) under the auspices of the 2008 Initiative 1, the ballot initiative that Michigan voters passed last November. As of April 6, 2009, the MMMP is fully operational, and many patients have already taken advantage of it. Yet the MMMP leaves unanswered many practical and legal questions
- about this use of marijuana:Will federal enforcement agencies, such as the FBI or DEA, criminally prosecute patients and caregivers who possess and/or use medical marijuana? The MMMP only legalizes medical marijuana under State law; it has no authority to alter the fact that any possession and/or use of marijuana is still a federal crime. News reports from some other States that have legalized medical marijuana indicate that federally based arrests are still occurring.
- Where will medical marijuana patients and their caregivers obtain marijuana for medical use? A common public misconception is that these patients can get a prescription from their physicians and fill the prescription at the local pharmacy. This is untrue. As a Schedule I controlled substance, marijuana is both illegal to prescribe and to dispense. Patients and their caregivers can grow their own marijuana plants in limited amounts. But the MMMP is silent as to where patients and their caregivers can obtain seeds or starter plants, or where they can obtain the finished product if they choose not to grow their own. Will medical marijuana users be purchasing their marijuana on the black market? Will the sellers or procurers of marijuana for medical purposes themselves be subject to criminal prosecution? What can physicians lawfully tell patients about where to obtain marijuana and the paraphernalia necessary to utilize it? Will organizations like the Michigan Medical Marijuana Association or Traintogrow.com (which hosts live programs on how to cultivate marijuana plants) be open to federal or state prosecution?
- How may employers deal with medical marijuana users who are employees in a drug-free workplace? While many patients eligible to use medical marijuana are so chronically debilitated that they are unable to work, this is not true of everyone eligible under the new law. Patients suffering from diseases like glaucoma, HIV, epilepsy, multiple sclerosis and Crohn’s disease are eligible to use medical marijuana — and many such individuals are employed. The MMMP states that employers have no duty to accommodate the use of medical marijuana or to permit its use on the employer’s premises — but will this override the patient’s rights under the federal Americans With Disabilities Act? Are employed patients who use medical marijuana risking their jobs by taking advantage of the therapeutic and palliative benefits of the drug?
- Must nursing homes, adult foster care facilities, homes for the aged, or senior congregate living facilities permit residents to use medical marijuana on their premises? What is the responsibility of these facilities to safeguard the marijuana from diversion? Can staff of these facilities serve as the patient’s caregiver for purposes of assisting the patient to procure and use medical marijuana?
- Can federally subsidized housing, which often has a “comply with all laws” and a “no drugs” clause in their leases, prohibit the use of medical marijuana in their apartments even though its use is lawful in Michigan?
- Can patients who live within 100 yards of a school (i.e., a “drug free” zone) lawfully use medical marijuana in their homes?
- Can the use of medical marijuana in the presence of children be grounds for Child Protective Services intervention on neglect/abuse grounds, particularly if the marijuana is not properly secured from the children’s access?
The MMMP offers beneficial opportunities for chronically ill patients. But until the above questions and others like them are answered, the patient still faces legal risk in using medical marijuana.