Doctors can recommend marijuana

SAN FRANCISCO — For the first time ever, a federal appeals court has ruled that the government cannot revoke the prescription drug licenses of doctors who recommend marijuana to sick patients.

A three-judge panel also ruled unanimously Tuesday that the Justice Department cannot investigate doctors for merely recommending marijuana to patients, upholding a 2-year-old court order that prohibited such federal action.

The 9th U.S. Circuit Court of Appeals said that such investigation would interfere with the free-speech rights of doctors and patients.

"An integral component of the practice of medicine is the communication between doctor and a patient. Physicians must be able to speak frankly and openly to patients," Chief Circuit Judge Mary Schroeder said.

Federal prosecutors argued that doctors who recommend marijuana use are interfering with the drug war and circumventing the government's judgment that the illegal drug has no medical benefit.

But the San Francisco-based court, noting that doctors are not allowed to dispense marijuana themselves, said physicians had a constitutional right to speak candidly with their patients about marijuana without fear of government sanctions.

Doctors who recommend marijuana in the eight states that have medical marijuana laws "will make it easier to obtain marijuana in violation of federal law," government attorney Michael Stern had said.

The Justice Department had no immediate comment.

In a concurring opinion, Judge Alex Kozinski wrote that there was a wealth of evidence that may support marijuana use for sick patients, and said the government attacked doctors as a means to paralyze California's medical marijuana laws.

The case was brought by patients' rights groups and doctors who said they have been fearful of recommending marijuana, even if it's in a patient's best interest.

U.S. District Judge William Alsup blocked the Justice Department from revoking doctors' Drug Enforcement Administration licenses to dispense medication "merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment." Alsup's order also prevented federal agents "from initiating any investigation solely on that ground."

The case was an outgrowth of Proposition 215, which California voters approved in 1996. It allows patients to lawfully use marijuana with a doctor's recommendation.