Important note: Information in this article was accurate in 1997. The state of the art may have changed since the publication date.
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The San Francisco Examiner - Friday, Feb. 28, 1997
Eric Brazil of the Examiner Staff
In a Feb. 27 letter to California medical leaders, the Department of Health and Human Services said the policy perceived by physicians as an abridgment of their First Amendment rights has been been misunderstood.
"Nothing in federal law prevents a physician, in the context of a legitimate physician-patient relationship, from merely discussing with a patient the risks and alleged benefits of the use of marijuana to relieve pain or alleviate symptoms," wrote Dr. Jo Ivey Boufford, acting assistant secretary for health in the Department of Health and Human Services.
Although Boufford said her letter was meant to clarify the government's position, Graham Boyd, a San Francisco attorney representing several physicians who have mounted a legal challenge to the policy, said that it actually constitutes a major reversal.
Only two weeks ago, the Justice Department attorney for U.S. drug czar Barry McCaffrey maintained the hard line. "Doctors cannot evade the prohibitions of the Controlled Substances Act by claiming that they are merely providing their patients with "recommendations' in accordance with their best medical judgment," Deputy U.S. Attorney Kathleen Muller wrote.
The physicians' alarm was triggered by McCaffrey's Dec. 30 announcement that doctors discussing or recommending medical marijuana to patients faced possible criminal charges as well as losing their Medicare and MediCal privileges and licenses to prescribe controlled substances.
Several prominent doctors, Bay Area Physicians for Human Rights and Being Alive, an AIDS / HIV coalition filed a complaint in January in U.S. District Court seeking an injunction to block enforcement of the policy.
Last week, the plaintiffs received the support of the San Francisco Medical Society, the California Academy of Family Physicians, the Marin Medical Society and the Gay and Lesbian Medical Association.
The doctors' contention is that the policy enunciated by McCaffrey, if imposed, would violate the First Amendment guarantee of freedom of speech which, they contend, includes the right of physicians to discuss the full range of medical treatments with patients.
Boufford's letter states that "physicians are encouraged to talk with patients about their concerns and answer inquiries about any procedure, treatment, substance or device that may affect a patient's health."
Dr. Marcus Conant of San Francisco, one of the nation's prominent AIDS physicians and a lead plaintiff in the lawsuit, said on Friday that "the White House has declared a truce in its war on California doctors. We are once again free to practice medicine without fear of DEA agents harassing us for simply trying to do our job."
Boyd said that "the letter came as a surprise to us, albeit a pleasant one."
A March 21 hearing is scheduled before U.S. District Judge Fern Smith in San Francisco on the physicians' complaint.
"We're not dismissing the complaint," Boyd said. But he is renewing a proposed settlement offer to the Justice Department.
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