B.C. college of physicians warned new rules for medicinal marijuana could spark legal challenge

by Travis Lupick 
Two Vancouver lawyers who specialize in marijuana have warned that the College of Physicians and Surgeons of B.C. may have put itself at risk of litigation when on May 5 it revised how doctors should counsel patients on medicinal cannabis.
In separate interviews, Kirk Tousaw and John Conroy told the Straight a memo sent to B.C. doctors could result in a court challenge that argues the new rules violate the Canadian Charter of Rights and Freedoms.

Tousaw said the implications could be national. “It’s quite likely something that puts the entire Health Canada program of using physicians as gatekeepers to the lawful possession of cannabis into peril,” he explained.
The memo states that medicinal marijuana is “not appropriate” for patients under the age of 25, for those who have a history of psychosis or a substance-use disorder, or for anybody with a cardiovascular or respiratory disease. It is an official college “standard”, according to the regulator’s website, which means it reflects “relevant legal requirements” that are enforced under the province’s Health Professions Act.

The document pertains to Health Canada’s Marihuana for Medical Purposes Regulations, which requires all 55,180 Canadians authorized to possess medicinal marijuana (as of October 2014) to obtain a “medical document” from a doctor. Patients then have to order cannabis via mail from one of 25 authorized federal producers. (The memo also bars doctors from charging a document fee.)
Dr. Heidi Oetter, registrar and CEO for the college, told the Straight the standard includes “nuance” that permits physicians to take individual circumstances into account. “We don’t think they [the rules] are going to block access,” she said.

Asked about a potential court challenge, Oetter replied: “As long as the only legal access to marijuana in this country is medical, then our role is to remind physicians about the expected standard of care.”
She stressed that in revising guidelines around marijuana, the B.C. college took cues from the College of Family Physicians of Canada.
Conroy described a lawsuit as a “possibility”. He noted that successful court challenges on cannabis have hinged on a patient’s right to reasonable access. Therefore, he said, the first question that needs to be answered is: who might the college’s memo constrain?

“Is it the doctors that should be doing something about this in terms of the college overstepping its bounds?” he asked. “Or should it be the patients?”
On April 22, the Straight reported some B.C. doctors were unhappy with the college’s new rules (which, though still subject to revisions at the time, were already very similar to the document that was formalized and mailed out on  May 5).

Dr. Ian Mitchell, a Kamloops-based physician and clinical associate professor at UBC, described the college guidelines as “very restrictive and a big change from the past”.
“These new regulations make it almost impossible for anybody to comply with them,” he said.
Dr. Arnold Shoichet, a board member for the Vancouver-based Medicinal Cannabis Resource Centre, similarly said many doctors responded to the college’s new rules with “distress”.
“Their restrictions are, in a sense, tying the hands of the medical practitioners who are supportive and willing to get involved,” he said.

Interviewed today (May 13), representatives for the Canadian Medical Cannabis Industry Association (CMCIA) told the Straight they do not share those concerns.
The industry association’s executive director, Neil Belot, said Health Canada’s authorized producers support the B.C. college and its counterparts in provinces across the country.
“We believe that the standards and guidelines that the CPSBC released are consistent with the best available clinical data on medical cannabis,” he said.

Belot was joined on the call by Cam Battley, a member of the CMCIA’s policy and advocacy committee. He told the Straight that guidelines and best practices are expected to evolve as new information about marijuana’s medical applications continues to become available.
“Different organizations and different individuals have their own positions,” Battley said. “What we’re seeing is that physicians are treating medical cannabis seriously.”

The latest version of Health Canada’s official distribution system for medicinal marijuana came into effect on April 1, 2014. Since then, it has been slow to attract a significant patient-base.
As the Straight reported one year later, on April 28, 2015, statistics provided by the federal government show Ottawa’s 25 authorized cannabis producers are together selling an average of 44 pounds per day.

For comparison’s sake, a recent analysis by the Straight suggests Vancouver’s storefront dispensaries (which operate illegally outside of the Health Canada system) are together moving roughly 80 to 240 pounds of product every 24 hours, dwarfing what’s sold across the entire country through Health Canada’s mail-orders.