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Ever since voters approved Montana's Medical Marijuana Act in 2004, the measure has been criticized as too vague. But with the medical marijuana industry's recent growth, and interpretations of the law increasingly stretched, those criticisms have become more widespread.
Perhaps the best evidence of this prevailing concern is that those who helped craft the law count themselves among those most worried.
"I was imagining that this program would evolve primarily under the influence of Montanans who understand Montana culture and Montana ethics," says Tom Daubert, founder of Patients and Families United, the main group lobbying for medical marijuana rights in Helena. "I think some of the, shall we say, 'ganja-preneurial' behavior that's inciting backlash is coming from people who have only recently moved to Montana. In some cases, it's people who moved here solely to make money from medical marijuana."
Daubert never thought the tenor of the debate would reach this pitch. He puts himself alongside the law enforcement officials, legislators, doctors and lawyers who wonder if the intent of the original law has been lost amid the industry's sudden growth.
"I really do fear for the future of patient rights, and the possibility that certain kinds of medical conditions could be eliminated from our law as a result of some types of clinics," he says.
Daubert is just one person who's raised concerns. Deputy Missoula County Attorney Andrew Paul describes what he sees as "rampant abuse" of the medical marijuana law.
"It seems to me like there's a lot of gray area in the medical marijuana law, and I think that public officials are really having a difficult time trying to figure out how to address it, and how to address all of these dispensaries popping up everywhere," Paul says. "And it's not just in Missoula. Local government officials are struggling with this all through Montana."
Specifically, Paul suspects the medical marijuana movement is trickling into the black market.
"We're seeing a lot of people cloaking themselves with medical marijuana who are basically just drug dealers," he says. "We know that that's going on frequently. It seems like every person that we've busted who has been a caregiver has been selling to people who are not their patients, and have been either growing or buying large quantities of marijuana that are not going to legitimate patients, but is being sold, basically, on the black market."
The problem, Paul adds, is that it makes it difficult for law enforcement to differentiate between illegal users and patients who are trying to access their medicine legitimately.
The medical profession expresses its own concerns. Dudley Dana, a Missoula-based clinical psychologist and licensed addiction counselor, says he and colleagues have noticed a dangerous rise in the number of patients receiving marijuana recommendations.
"I know of no other medication that has bypassed rigorous research before it is allowed to be prescribed," he says. "The focus is generally on efficacy, safety and side effects. It is hard to imagine given the side effects of THC that it would be approved."
More than that, Dana worries about the minimization of marijuana's addictive potential. He explains that the vast majority of addiction therapists and researchers think that medical marijuana can precipitate "a spiral into addiction," similar to alcohol, especially for those genetically predisposed. He tells of one young patient for whom "everything went to hell" after receiving a medical marijuana card for a dubious health issue. Once the patient used marijuana daily, Dana says it led to "the deterioration of his life."
"If we're going to legalize marijuana, let's have that debate," Dana says. "Let's not make an end run around the whole issue by medicalizing it."
The issue has already been brought to the attention of the Montana Board of Medical Examiners. In particular, roving clinics run by Montana Caregivers Network (MCN), which can include doctor visits via video conferencing, have been the source of informational meetings with the board. Jean Branscum, the board's executive director, says the board doesn't have jurisdiction over the clinics themselves, but it does over all licensed doctors in the state. Confidentiality rules forbid her from saying whether or not doctors associated with MCN or other clinics are under investigation.
"We've heard from physicians that there's a question of clarification that's needed for physicians participating in these clinics," she says. "And the board is working on a position paper [to address that]."
All investigations, Branscum says, look at whether or not a physician upholds a standard level of care. Asked if it's possible for physicians who visit with patients via video conference to uphold that standard, she says, if they're under investigation, they'd have to prove it.
Branscum stresses that complaints trigger any board investigation, and that a review can end with a physician's license suspended or revoked.
While there's no consensus about how to immediately address the concerns, Daubert at least offers some common ground. He says law enforcement and patients ultimately desire the same end result.
"Patients merely want access to the medicine without fearing arrest or prosecution, and they want it to work, to be good, and to be safe," he says. "Law enforcement, primarily, just wants to know that all the medicine going to patients is legal Montana medicine, and that none of the medicine produced is going to anyone but legal patients. There's no area of that with which patients would disagree. The question then becomes: How do we rework a solution that makes it all possible?"