Denver District Judge Larry Naves made the right call when he recently ordered the Colorado Department of Public Health and Environment to stop enforcing a regulation that limited patients' ability to obtain medical marijuana.
Naves overturned a 2004 health department policy that said any caregiver listed with the state's medical marijuana registry can provide pot to no more than five patients. We don't know if five is the right number - nor did the judge offer any guidance - but the department set that limit in secret with no public comment, and violated the state's laws that govern how regulations are developed.
If the department seeks to restrict how many patients a caregiver can serve, Naves said it must undertake a public process of rulemaking that follows the state's open meeting law and Administrative Procedures Act.
That's what the department should have done in the first place. Naves came to the proper conclusion.
Medical marijuana proponents are mistaken, however, if they think the ruling vindicates their goal to allow providers to service any number of patients. The department could well go through the administrative process and decide that, say, a three-patient limit would satisfy the law.
Here's why. Amendment 20, which passed in 2000, allows physicians to recommend marijuana to patients with certain chronic illnesses. And it protects patients and their primary caregivers from prosecution if they obtain the drug.
But the amendment states that any primary caregiver must be older than 18 and have "significant responsibility for managing the well-being of a patient who has a debilitating medical condition."
In other words, the state should enact regulations to monitor caregivers. And given the "significant responsibility" language in the amendment, five patients sounds reasonable if not generous.
Indeed, department spokesman Mark Salley told us that when state officials were discussing the limit, they could find no caregiver who listed more than three patients under his watch.
The amendment does not permit the marijuana dispensaries that have been established in California; in fact, every other state including Colorado that has authorized medicinal use lets patients and primary caregivers possess a few marijuana plants. They can't get cannabis from any other source.
The purpose of the law was to provide a limited new avenue of relief for patients with chronic, severe pain. Even so, the group Sensible Colorado has claimed a major victory.
Sensible Colorado's Executive Director Brian Vicente told us his group believes caregivers should be able to serve an infinite number of patients. And that the group would be back in court if the department sets any limits on caregivers - even if it does follow the administrative procedures mandated by the judge's order.
Without capping the number of patients caregivers can legally serve, it would be much more difficult to enforce the limited allowances afforded medical marijuana.
Perhaps that's what medical marijuana advocates want, but it's not the amendment voters approved. And if a challenge to properly authorized regulations on caregivers winds up in court, we trust that judges will reject it.
Note: State should closely monitor those who assist medical pot patients.
Rocky Mountain News (Denver, CO)
Monday, November 26, 2007
Copyright: 2007 Denver Publishing Co.