California Supreme Court Rules Unanimously Against Compassionate Care

By Tamar Todd, AlterNet. Posted November 27, 2008.

California's State Supreme Court has voted unanimously to limit the ability of patients to obtain medical marijuana by narrowly defining who is a legitimate caregiver under California's Compassionate Use Act. As a result of the Court's November 24 opinion in People v. Mentch, many ill and dying patients who are unable to grow their own medicine will no longer be able to rely on individuals who assist patients with cultivation and administration of medical marijuana. Under the new ruling, these individuals are now more vulnerable to arrest and prosecution under California law. This places the burden on California's cooperatives and collectives to supply most of the medical marijuana needed in California by patients who are unable to cultivate their own.

The Court held that, in order to be protected under the Act, a primary caregiver must consistently provide care, independent of any assistance in taking medical marijuana at or before the time he or she assumed responsibility for assisting with medical marijuana. To illustrate some examples of appropriate caregivers under the Act, the Court states: "The spouse or domestic partner caring for his or her ailing companion, the child caring for his or her ailing parent, the hospice nurse caring for his or her ailing patient -- each can point to the many ways in which they, medical marijuana aside, attend to and assume responsibility for the core survival needs of their dependants."

On the other hand, the Court said, a "defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under [California's Compassionate Use] Act."

Unfortunately, the Court's decision is at odds with reality. The Court failed to recognize that the vast majority of ill Californians in need of medical marijuana are too sick and do not have the skill, expertise or space to cultivate their own medicine. Neither do their spouses, partners, children, hospice nurses or others caring for their "core survival needs." Sick patients may live with their spouses and children in apartments where they will be evicted if they grow marijuana. A hospice nurse with no training in botany who is caring for multiple sick patients cannot be expected to grow or cultivate medicine for them. Other patients may need medical marijuana, but feel well enough to care for their own "core survival needs" and to live independently. Under the Court's reasoning, these patients do not need and are no longer entitled to a primary caregiver under the Act.

This is why DPA filed an amicus curiae brief in this case on behalf of leading doctors, professors and researchers informing the Court that restricting who can qualify as a caregiver "would likely harm the health and well-being of medical marijuana patients by deterring knowledgeable and skilled caregivers from providing patients with appropriate types and amounts of medical grade marijuana, and considered advice on how best to use the medicine." The cultivation and administration of medical marijuana is complicated. Its efficacy for the treatment of particular symptoms is closely related to the genetic strains of marijuana and routes of administration used by patients. Many seriously ill patients depend upon knowledgeable caregivers to advise them about the appropriate strains of marijuana and the optimal routes of administration for their particular medical conditions. In many cases, what patients need are caregivers who have the expertise and ability to provide medical-grade marijuana. This is something their spouse, child, or hospice nurse cannot do.

Other states -- such as New Mexico -- recognize the important role that caregivers play in providing and advising patients regarding medical marijuana and have wisely drafted their laws with broader, more protective caregiver language than California. In states which do not have an alternative production and distribution system-such as the cooperative and collective model established in California-a law that allows patients to seek out caregivers primarily for their ability to assist in obtaining and administering medical marijuana is essential for patients to receive proper and effective treatment.

Now that the Court has limited the definition of caregiver in California, patients will be forced to use medical marijuana cooperative and collectives to supply them with quality medical marijuana and to provide information on its administration and use. It is now more important than ever that the State support and protect cooperative and collectives to the fullest extent possible.

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Tamar Todd is a Staff Attorney at the Drug Policy Alliance.