PDF Version: The Future of Medical Cannabis
Legislation commented on: Access to Cannabis for Medical Purposes Regulations, SOR/2016-230
The recent decriminalization of recreational cannabis, which I explored in an earlier blog post, has led some to question whether Canada still requires a separate legislative scheme for medical cannabis users. On the one hand, some argue that health professionals should not spend their time writing prescriptions for something that can now be purchased in stores, particularly given the mixed evidence in support of medical cannabis. In stark contrast, others argue that a single regulatory regime would affect the rights of medical users and hinder their ability to access cannabis products.
Medical Cannabis in Canada
Canadians who currently wish to consume cannabis for medical purposes must first obtain what is referred to as a “medical document” from a health care professional (a physician or nurse practitioner). They may then purchase cannabis from a federally-licensed producer, register with Health Canada to produce a limited amount of cannabis for their own medical purposes, or designate someone to produce this supply for them.
According to data from Health Canada, in June 2018 alone (the most recent month for which data is available), Canadians purchased 2,103 kilograms of dried cannabis and 4,124 kilograms of cannabis oil for medical purposes, licensed producers made 135,062 cannabis shipments to Canadians, and 3,836 health care practitioners provided medical documents for patients registered with licensed producers. As of the end of June 2018, there were 21,521 active Canadian users registered with a licensed producer, 20,346 users who produced their own cannabis for medical purposes, and 1,195 who had designated someone else to produce it for them.
At this time, Health Canada has decided to retain this separate medical cannabis regime. In other words, while medical users can continue to purchase cannabis in the same manner as they had prior to decriminalization of recreational cannabis, they can also forego the need to obtain medical documentation and purchase these products from provincial or territorial retail outlets.
The Role of Health Professionals in Medical Cannabis
Perhaps the loudest and most prominent opponent to retaining the dual recreational and medical cannabis regimes is the Canadian Medical Association (CMA). It has recommended phasing out the medical cannabis regulations, noting that there is “no need for two systems” as cannabis “will be available for those who wish to use it for medicinal purposes, either with or without medical authorization, and for those who wish to use it for other purposes.”
The CMA’s position is that they are concerned “about the lack of clinical research, guidance and regulatory oversight for cannabis as a potential medical intervention.” Furthermore, they note that many physicians are uncomfortable “prescribing a substance that hasn’t undergone the same regulatory review processes required for all other prescription medicines”, which result in comprehensive information for prescribers relating to clinical indications, dosages, and potential interactions with other medications. One St. Albert doctor controversially went so far as to say “I can’t prescribe alcohol, I can’t prescribe trips to Hawaii, and so I don’t prescribe marijuana… [I’m] not saying it doesn’t make people feel better, but it’s not a medication.”
There is support for the CMA’s position that there is a lack of high-quality evidence respecting the medical efficacy of cannabis. For example, a recent guideline published in Canadian Family Physician, a peer-reviewed medical journal, involved a detailed systematic review of the evidence on medical cannabis use. The authors recommended limiting medical cannabis due to a concern with a lack of evidence, apart from a small subset of medical conditions: neuropathic pain, palliative and end-of-life pain, chemotherapy-induced nausea and vomiting, and spasticity due to multiple sclerosis or spinal cord injury. A recent review of the medical cannabis literature by University of Calgary researchers concluded that “there is only low to moderate quality evidence to suggest that cannabis is an effective treatment for most medical conditions.”
In response to the CMA’s position, it could be argued that a lack of high-quality evidence on medical cannabis supports more involvement by health professionals rather than less, in order to ensure that patients are properly informed of these evidentiary limits and that they are using cannabis appropriately. Divorcing themselves from informing patients about a product with potentially significant health implications is arguably an abdication of their responsibilities. In this regard, the College of Physicians and Surgeons of Alberta has stated that physician responsibilities include, “providing objective, evidence-based information to patients seeking medical cannabis to support informed decision-making.” If patients self-prescribe cannabis for their medical conditions and purchase it from recreational retail outlets, they will not receive potentially important information about its efficacy for their particular conditions, alternative medical treatments, or potential medication interactions.
In contrast to their physician counterparts, the Canadian Nurses Association has said that it is in favour of retaining a separate system for medical cannabis, worrying that a single recreational legislative scheme may result in patients not talking with health care providers about cannabis use.
The Concerns of Medical Users
Medical cannabis users and advocacy groups argue in favour of retaining a separate legal regime for a variety of reasons. Some fear that producers may be encouraged to focus their efforts on more economically viable recreational products over the existing medical products that users have come to depend upon. Other users argue that patients may not feel confident talking with health professionals if cannabis is perceived as a recreational rather than medical product. In an article in the Canadian Medical Association Journal, Cairns and Kelly argue that “having only one stream continues to fuel the stigma surrounding cannabinoid-based therapeutics and delegitimizes patients who state that they use these drugs out of necessity rather than choice.” Many medical users struggle with the cost of cannabis, due to a lack of insurance coverage. Although an increasing number of insurers are covering medical cannabis for certain conditions, progress could be halted with the abolition of the medical cannabis regulatory scheme.
Creating a single recreational cannabis regime may also raise human rights concerns. Provincial laws protect those who use cannabis for medical purposes related to a disability from discrimination in the context of employment, housing, and other areas. For example, a landlord has a duty to accommodate the consumption of medical cannabis by a tenant up to the point of undue hardship. If existing regulations are abolished and doctors no longer provide medical documentation to patients who use cannabis for their health conditions, these patients may have difficulty establishing their disability-based claims for accommodation.
Health Canada’s Approach
Health Canada has stated that it plans to review whether there is an ongoing need for separate sets of medical and recreational cannabis regulations within five years. In the meantime, policy-makers have taken several steps to improve the evidentiary basis for medical cannabis, which will enable them to make a more informed decision about whether to keep the medical regulations. For example, the Canadian Institutes of Health Research have earmarked specific funds for cannabis research in urgent priority areas. The Cannabis Regulations, SOR/20180-144, which recently came into force, were designed to encourage research by including a specific category of license for those seeking to conduct research on cannabis (in addition to those licenses relating to cultivation, production, etc.). However, research on cannabis can be challenging. Compared to pharmaceuticals, which are synthetically manufactured in near-identical conditions in factories, the composition of even genetically-identical cannabis plants can vary due to environmental differences in soil and lighting, resulting in study design challenges.
This post may be cited as: Lorian Hardcastle, “The Future of Medical Cannabis” (October 18, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/10/Blog_LH_Future_of_Medical_Cannabis_Oct2018.pdf
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Dennis Buchanan
I find the human rights considerations to be compelling.
It is now more important than ever for employers to have a drug and alcohol policy, and in general those policies will take a dim view of cannabis use in or around the workplace and cannabis intoxication while working. They will take a *very* dim view of intoxication in safety sensitive situations.
And for recreational users, there are no particular legal concerns raised by a policy that strictly prohibits marijuana possession, use, and/or intoxication while at work.
For medicinal users, on the other hand, there is an accommodation framework that applies. This is far more complicated, giving employees significant – though not unlimited – rights to have their job minimally impacted by their cannabis use.
Under a legal regime that does not distinguish between medicinal and recreational cannabis usage, it will be difficult for employers to tell the two apart. If you catch an employee who is high at work, and the employee claims to be self-medicating using cannabis for a health condition…how can an employer verify that? In practice, you’re likely to see a lot of skepticism about that claim.
Where the law does distinguish between the two, however, it’s much easier to deal with: The employer can easily say that recreational marijuana usage/intoxication is not appropriate in the workplace at all, but that medicinal marijuana usage – with a ‘medical document’ obtained in accordance with the medical marijuana regime – will be reasonably accommodated up to the point of undue hardship.
Besides, collapsing them into one category would seem to delegitimize medical marijuana altogether, relegating it into an ‘alternative medicine’ category, and while I can appreciate that the scientific evidence is limited on its medicinal value in various contexts, my understanding is that there is evidence supporting its usefulness for some conditions.
Particularly in the case of people who do not use it recreationally, but who experience conditions for which cannabis is a viable treatment option, having their doctor supervise its use and dosage as part of a comprehensive treatment plan makes immensely more sense than independently self-medicating.
Lorian Hardcastle
Thanks for your comments, Dennis! I absolutely agree that mixing the two regulatory schemes will muddy the water for accommodation claims, delegitimize medical use claims, and lead to concerning self-medication. You are correct that there is some evidence for the use of medical cannabis in particular circumstances (some of which are outlined in that guideline linked to in the blog post). I think that keeping the two regulatory schemes separate will lend legitimacy to cannabis as a medical product and, as a by-product, will encourage research on its medical uses, whereas taking cannabis out of the medical realm could hinder the progress of research on its medical uses. All in all, I think that Health Canada’s approach of funding more research and waiting to see whether two regulatory schemes are necessary is the correct one.