The Physicians of Ohio Finally Have Some Direction & So Does Affirmative Defense
The State Medical Board of Ohio dealt a blow Friday to the hopes of some patients that they might be able to legally use medical marijuana before the state has put its own system of growing and dispensing cannabis in place.
a written recommendation is necessary in order for a patient to be able to assert the “affirmative defense” provided under the new state law if the patient is caught in possession of cannabis before he or she can buy it from Ohio’s state-run system.
Affirmative Defense according to the Ohio State Medical Board:
What is required of a physician to recommend medical marijuana now that House Bill 523 is effective?
A physician is not permitted to issue a state of Ohio approved written recommendation to use medical marijuana until the physician has obtained a certificate to recommend from the State Medical Board of Ohio. Per House Bill 523, the rules outlining the standards and process needed to obtain such a certificate to recommend will be developed no later than September 8, 2017.
As a way to protect patients and parents or guardians of minor patients who seek to use marijuana prior to the creation and implementation of all the administrative rules necessary to run the Ohio Medical Marijuana Control Program, HB 523 created an affirmative defense for certain marijuana-related crimes. According to the law, a patient, parent, or guardian can only raise an affirmative defense if they have, among other requirements, received a written recommendation from his or her doctor that certifies a certain number of criteria are met. The Board recommends that physicians consult with their private legal counsel and/or employer for interpretation of the legislation.
The Board recognizes that as a result of the requirements of the affirmative defense, physicians will face potentially challenging inquiries from patients during the time period between the effective date of the statute and the date when the certificate to recommend process is fully operational with the Medical Board. The Medical Board will conduct a thorough process in the promulgation of rules related to the certificate to recommend.
“The board recommends that physicians consult with their private legal counsel and/or employer for interpretation of the legislation,” reads the medical board’s advisory.
The Ohio State Medical Association’s position has not changed.
“We would advise our members not to do anything until the rules and regulations have been drafted and promulgated,” spokesman Reginald Fields said. “We understand that may not be for a year or so.”
State board spokesman Tessie Pollock said research has been under way for some time and that the rules will be finalized before the statutory deadline.