If you’re reading this, it’s likely that you have a condition that you would like to treat or are treating with marijuana. As you probably know, Washington has a law, RCW 69.51A, that enables qualifying patients to use marijuana legally. The law protects not only patients, but their primary caregivers who provide them with the medicine, and their doctors who recommend it.
Nevertheless, despite the law’s protections, patients and caregivers still occasionally find themselves in trouble—sometimes as a result of their own misunderstanding of the law, sometimes as a result of law enforcement’s, and sometimes as a result of the law’s own shortcomings.
This guide will attempt to summarize the law and the protections it provides you as a patient. Where possible, it provides links to the relevant statutes and administrative and court decisions. On that note, it’s not a bad idea to go to familiarize yourself with the law itself; you can read a copy of the full statute here.
For a more detailed discussion of the case law, you might want to read the article on how to defend a medical marijuana case in Washington
II. Becoming a Patient
A. The Basics of Qualifying as a Legal Patient
The law sets up a four-part test to determine whether you qualify for legal protection as a medical marijuana patient. To pass the test, you must:
1. Be a patient of a medical or osteopathic physician licensed in the State of Washington. Make sure your doctor has been granted a license from Washington, and is not just licensed in another state and practicing in Washington;
2. Have a formal statement signed by the Washington-licensed provider or a copy of medical records, in which you are diagnosed by that physician as having a terminal or debilitating illness that is among the conditions approved for the medical use of marijuana;
3. Be a resident of the state of Washington at the time of diagnosis with proof of identity such as a Washington state driver’s license or identicard; and
4. Have been advised by your physician of the risks and benefits of the medical use of marijuana, with that physician determining that the benefits would likely outweigh the risks.
In addition to these requirements, there are a few other limitations, such as on where you may use your medicine, and on how much medicine you may possess. You will find more on these below.
B. Eligible Medical Conditions
RCW 69.51A was designed to protect patients with “terminal or debilitating” medical conditions. The conditions for which the statute approves use are:
a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or
b) Intractable pain, limited for the purpose of this chapter [69.51A RCW] to mean pain unrelieved by standard medical treatments and medications; or
c) Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or
d) Any other medical condition duly approved by the Washington State Medical Quality Assurance Commission.
Since the passage of the initiative the Commission has added the following:
* Crohn’s Disease with debilitating symptoms unrelieved by standard treatments or medications (November 5, 1999 Final Order);
* Hepatitis C with debilitating nausea and/or intractable pain unrelieved by standard treatments or medications (January 28, 2000 Final Order); and
* Any disease, including anorexia, which results in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, and/or spasticity, when these symptoms are unrelieved by standard treatments (June 19, 2000 Final Order).
Be sure to note RCW 69.51A.010(4)(b) (“intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications”). This provision functions as a catch-all and can make your condition eligible for medical marijuana treatment, provided, of course, that the condition creates “intractable pain” and that you can show that standard treatments and medications have failed to relieve them.
C. Finding a Doctor
The first step to becoming a medical marijuana patient is to obtain a recommendation from a doctor. The best approach is to obtain the recommendation from your current doctor, if you have one. This is the best approach for several reasons:
* Your doctor is already familiar with you and your medical conditions, enabling him/her to give you thorough and well-informed advice;
* Finding and being seen by a doctor who will recommend marijuana can be time-consuming and expensive.
Unfortunately, many doctors are unfamiliar with the medicine or the law, and thus may not be willing to discuss or recommend medical marijuana.
That’s why it’s always a good idea to come prepared with information to help make your doctor’s decision easier—especially if you suspect that she might be reluctant to provide a recommendation. Be prepared to tell her specifically what conditions or symptoms you treat or are interested in treating with medical marijuana. Honestly describe the amount of marijuana you use, how often, and by what delivery method.
If your doctor would like more information, our website provides condition-based booklets and other research documenting the benefits of medical marijuana.
If your doctor’s concern is her legal liability for recommending medical marijuana, it may be helpful to provide her with a copy of the statute, which holds that no doctor shall be penalized under state law for providing a valid medical marijuana recommendation. In addition, you will want to provide a summary and/or the full text of the case Conant v. Walters. In this case, which still stands as good law, the 9th Circuit Court of Appeals (of which Washington is a part) held that the federal government may not penalize doctors for recommending the medical use of marijuana; to do so, the court said, would infringe on doctors’ First Amendment rights.
If this information fails to convince her, ask if she would find it helpful to speak with another doctor who has experience/expertise on the subject of medical marijuana. If she would, let us know and we can put her in touch with doctors who can better explain the benefits and uses of marijuana as medicine.
If your doctor still will not issue the recommendation, you may want to consider going to a medical marijuana specialist. Going to one of these specialists is not a guarantee that you will receive a recommendation, but they are aware of the uses of marijuana for medical purposes, so you won’t have to educate them. Be advised that seeing these specialists can be expensive—a visit may cost you over $200.
D. The Recommendation
The federal government classifies marijuana as a Schedule I drug, which means that doctors cannot prescribe it. So RCW 69.51A instead allows doctors to recommend marijuana as medicine without being subject to penalties under state law. (This protections is somewhat redundant, however; as discussed above, the Supreme Court ruled in Conant v. Walters that doctors’ recommendations are protected by the First Amendment.) Doctors may recommend only to patients with qualifying conditions and only after informing them of the risks and benefits of using marijuana as medicine.
To be valid, the recommendation must be a formal statement signed by the qualifying patient’s physician, or a copy of the patient’s pertinent medical records, which states that, in the physician’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for a qualifying patient. RCW 69.51A.010(5)(a). This language—would likely—is essential; there have been examples of courts refusing to acknowledge as valid recommendations that instead said that the potential benefits “may” outweigh the health risks. State v. Shepherd, 110 Wn. App. 544, 546. So be sure that your doctor’s recommendation contains the precise wording.
We recommend using the Washington State Medical Association’s form. This form was written by the Washington State Attorney General’s office with an eye to keeping doctors safe from trouble on both the state and federal levels.
One more thing: it is unwise for your physician to list recommended amounts of medicine or methods of administration on your authorization form. There are two reasons for this: doctors may not prescribe marijuana, and they may not “conspire” to help you get marijuana. Now, it’s not clear that putting an amount or method on the recommendation will lead to your doctor being found guilty of or even facing either of these charges, but we believe that it’s not a risk worth taking. The prosecution or investigation of even one doctor—regardless of whether that doctor is found guilty—could discourage many more from ever signing a medical marijuana authorization.
A little on the law behind these concerns: the Code of Federal Regulations states that a prescription must, among other things, specify a quantity of the drug and a dosage form (see here for more). The more of the elements of a prescription that a recommendation contains, the greater the risk that that doctor will be accused of writing an illegal prescription.
Those who advocate for amounts on prescriptions often argue that having such amounts is the only way to protect yourself from arrest and prosecution and to prove that you are in compliance with the sixty-day supply limit in the law. While there may be cases in which a law enforcement officer decides to let a patient go because the amount she possesses is no more than that authorized on the recommendation, many counties rely instead on their own informal policies on supply amounts. And, ultimately, having an amount on your recommendation might end up limiting you and getting you in more trouble—if your condition worsens or you end up with a less potent strain of medicine, you may need more than is listed on the recommendation.
Please note that in listing the conditions for which medical marijuana may be helpful, the form omits a number of the conditions approved by the statute and the Medical Quality Assurance Commission. The full list of approved conditions can be found above.
E. Keeping Records
Keeping thorough and accurate records is one of the most important things you can do to protect yourself as a medical marijuana patient. We recommend that you keep detailed records of both your medical condition(s) and your treatment. Keep a copy of these, as well as your doctor’s recommendation, both at home and on your person. This way you will be prepared for encounters with law enforcement, should they happen, and be less likely to get arrested and have to go through the expense, inconvenience, and risk of having to defend yourself in court.
Recording your usage is particularly important if you ever have to defend yourself on a charge of exceeding a sixty-day supply (more on this rule below). A record in which you note the details of your daily usage and the success of various dosage amounts will go a long way to establishing exactly what constitutes a sixty-day supply for you.
Finally, if you can’t find your recommendation or medical records, don’t try to forge replacements. It’s a class C felony to fraudulently produce any record purporting to be, or tamper with the content of any record for the purpose of having it accepted as, valid documentation under RCW 69.51A.010(5)(a).
F. Age Limits
Patients who are under eighteen years of age must meet the same requirements of qualifying medical condition, valid recommendation from a Washington-licensed physician, presentation of documentation to law enforcement, and supply amount not exceeding sixty days. However, in the case of these patients, their parent or legal guardian is legally responsible for possession, production, and acquisition of medicine, as well as any decisions regarding dosage and frequency of use. RCW 69.51A.040(3).
III. Federal Law
It is important to know that, while Washington State law protects medical marijuana patients, federal law does not. As a medical marijuana patient, you are always susceptible to prosecution and/or conviction under federal law Marijuana cultivation, possession, and distribution is covered by the Federal Controlled Substances Act (CSA).
This act classifies substances by “schedule,” with marijuana classified as a “Schedule 1” substance—meaning the federal government holds that it has a high risk of abuse and no therapeutic value. The CSA provides mandatory minimums for various marijuana offenses. For example, possession of 100 or more plants or 100 or more kilograms carries a mandatory minimum sentence of five years in prison. Possession or cultivation of 1000 or more plants or 1000 or more kilograms carries a mandatory minimum sentence of ten years in prison—twenty if you have one prior felony drug conviction, and a life sentence if you have two prior felony drug convictions. 21 USC 841(b)(1)(A)(vii), 841(b)(1)(B)(vii).
A favorite tool of federal law enforcement is conspiracy charges; for instance, charging everyone involved in a community garden with conspiracy to manufacture, distribute, etc. In doing this, they can pin a larger number of plants on each individual.
Finally, defendants in federal court are often prevented from providing a medical marijuana defense.
We point out these facts not to discourage you, but rather to be very clear about your legal standing and the risks. Generally, federal law enforcement displays little interest in going after medical marijuana patients who supply only themselves; they seem more inclined to go after those found to be in possession of large numbers of plants (numbers that would exceed the sixty-day supply of most, if not all, patients). Of course, they also have a tendency to exaggerate or otherwise mislead about the plant counts and activities of those they go after.
IV. Acquiring and Using Your Medicine
While the law provides qualified patients the right to possess and use medical marijuana, it doesn’t make that marijuana easily accessible. Patients may not purchase their marijuana, and caregivers may act as caregivers for only one patient at a time. Thus, many patients find it difficult to get the medicine they need. For instance, a patient diagnosed with cancer may have only a short time from diagnosis to the beginning of chemotherapy and will likely find it difficult to learn to grow enough usable medicine in that time.
The difficulties of acquiring medicine under the current law have led some to joke that it was written under the assumption that there is a “marijuana fairy” who will deliver medicine to patients. Nevertheless, it’s the law we have, and while it’s important that we advocate for the changes we see necessary, it is equally important that we know what protections it does and does not offer. What follows is a summary of some of the access and use issues under the current law.
A. The “Sixty-Day Supply” Limit
RCW 69.51A states that a qualifying patient may possess no more marijuana than is necessary for the patient’s personal medical use for sixty days. However, the law does not provide a definition of what constitutes a sixty-day supply—something that, while sometimes a good thing because it allows patients to define sixty-day supplies for themselves, can create confusion and difficulties for both patients and law enforcement. We advise you against contacting law enforcement to ask about their interpretation of the sixty-day-supply. We do this for a couple of reasons:
1. Law enforcement’s definition of a sixty-day-supply may be unacceptably low.
2. Contacting law enforcement increases your chances of being arrested and/or being searched and having medicine or other property seized.
The best thing you can do is to worry only about what is a sixty-day supply for you. Keep a journal of your daily use—dosage, method of administration, and effectiveness—and bring that journal with you to medical appointments to share the information with your doctor. This way, when you go to trial, you will be able to present your journal as evidence for how much medicine is a sixty-day supply for you, and your doctor will be able to confirm what you had shared during your visits.
B. Community Medical Gardens
Community gardens are an excellent way to ensure that patients are able to get their medicine, as being able to join a community reduces patients’ costs and eliminates the delays that result from experimenting with cultivation themselves. Unfortunately, RCW 69.51A doesn’t address the issue of whether patients can form community gardens. We believe the law should be interpreted to allow community gardens, with the total amount of medicine being grown divided by the number of those in the cooperative, leading to an average of a sixty-day supply or less per patient. The law’s remedial nature and statement of intent make it clear that the voters wanted patients to have access to the medicine they need.
Community gardens, like all other forms of medical marijuana cultivation, are considered illegal by the federal government. Further, such gardens are more likely to draw federal attention because they involve a larger number of plants than the gardens of individual patients. And on a state level, in the absence of official administrative or statutory approval, community gardens will continue to face legal risks. For these reasons, we recommend against consulting with law enforcement before forming a community garden.
If you want further information, you may want to contact the following organizations:
* Green Cross Patient Advocates: (206) 766-8155
* The State of Medical Marijuana in Washington: http://www.cannabismd.org
Many patients find themselves too ill or ill-equipped to grow their medicine themselves and instead place the growing responsibilities with a primary caregiver. The law defines primary caregiver as a person who is:
a. 18 or older;
b. Responsible for the housing, health, or care of the patient;
c. Designated in writing by a patient to perform the duties of primary caregiver; and
d. A caregiver to only one patient at a time.
Additionally, the caregiver must, if confronted by law enforcement, present a copy of her patient’s recommendation, as well as evidence that she has been designated the patient’s primary caregiver. The caregiver may not possess more marijuana than is necessary for her patient’s sixty-day supply, nor may the caregiver consume any of the marijuana intended for the patient’s sixty-day supply.
It is particularly important that you be sure the caregiver is responsible for more than just acquiring medicine—if acquiring and administering medicine is the caregiver’s sole responsibility, he won’t be protected by the law. Also, be careful that the language in the written statement is not conditional; an appeals court recently upheld the conviction of a caregiver because his designation statement said that he would be the patient’s caregiver if the patient became unable to care for himself .
B. The “Do Nots” of Using Your Medicine
Despite the protections that RCW 69.51A provides, qualified patients may still get themselves into trouble by using their medicine in ways that the statute prohibits. Here are some things you should not do:
* Do not use or display medical marijuana in a manner or place open to the view of the general public. This is just common sense—you don’t want to draw attention to yourself and risk having to deal with law enforcement, prosecution, and all of the accompanying headaches. But you should also know that public use or display of medical marijuana is a misdemeanor under RCW 69.51A.
* Do not use your medical marijuana “in any place of employment, in any school bus or on any school grounds, or in any youth center.” The statute specifically exempts use in these places from legal protection.
* Do not use your medicine while driving or immediately before. The medical marijuana defense is unavailable to anyone whose medical use of marijuana “in any way endangers the health or well-being of any person through the use of a motorized vehicle on a street, road, or highway.”
* Do not use your medicine outside of Washington State and expect to be protected as a legal patient. The one exception is in Montana, whose medical marijuana law offers protections to those who are legal medical marijuana patients in other states. To claim this protection, you’ll need to be able to present your valid documentation and to make sure you are following all of Montana’s rules (for example, the personal possession limit in Montana is one ounce). If you plan on traveling to Montana and using your medicine there, we recommend that you familiarize yourself with Montana’s rules. You can do so by reading our guide entitled “Becoming a Patient in Montana.”
The law doesn’t specifically address the paraphernalia associated with marijuana use, but it does define “Medical use of marijuana” as “the production, possession, or administration of marijuana, as defined in RCW 69.50.101(q), for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating illness.” We see this as clearly meaning that the paraphernalia used for administration of the drug is protected by the statute.
IV: Encounters with Law Enforcement
One of the best ways to stay safe as a medical marijuana patient is to be prepared for encounters with law enforcement and to know your rights in such encounters. For a detailed summary of your rights during an encounter with law enforcement, click here. For a shorter version that you can print and carry in your wallet, click here.
V: Other Considerations
Many patients fear eviction if they are found to be using medical marijuana. Unfortunately, a lot of them aren’t reassured by reading the law, which says nothing explicit about housing rights for patients or primary caregivers. However, the law does provide the protection that “(a)ny person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.”
We believe this means that, under state law, a qualifying patient or caregiver may not lose their right to housing as a result of legally using or providing medical marijuana. Please remember, though, that while our belief that you are protected is based on our reading of the statute and case law, there is no existing Washington State case law that specifically addresses the (non-federally-funded) housing rights of medical marijuana patients.
On the other hand, we can say with certainty that if you live in housing funded by the Federal Department of Housing and Urban Development (HUD), the state law will not protect you and you may be subject to eviction, as medical marijuana is not recognized under federal law.
Unfortunately, RCW 69.51A does not offer explicit employment protections for qualifying patients. It is, however, explicit about the one of the protections it does not offer, stating that the law does not require “any accommodation of any medical use of marijuana in any place of employment.”
Any protection the statute does offer would arise from its statement that “(a)ny person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.”
Unfortunately, patients may find that, in the area of employment, this clause has duller teeth than they would hope. Washington is an “at-will” state, meaning that the working relationship continues at the will of the parties, and each has the right to terminate it at any point. If one party terminates the relationship (the employee quits, or the employer fires the employee), the rights of the other have not been violated unless the termination violated the terms of the contract or resulted from legally prohibited discrimination.
There are, however, cases in which the “shall not be penalized” clause does protect patients. For example, when the terms of the contract have created the expectation of employment—for example, in a situation of tenure—the employee has what is considered a property right in her employment. To be fired would be a denial of that right and, thus, a violation of RCW 69.51A. Washington courts have ruled that state employees have this right; a state employee may not be fired “at will,” and must instead be fired “for cause.”
We would argue that the statute was written with the intent of protecting patients from things like loss of employment, and that because the statute is remedial in nature, it should be interpreted broadly to create the changes for which it was written. Nevertheless, as of now, there is little case law to support such an argument.
The state of Washington doesn’t track medical marijuana use in any way. The Department of Health doesn’t gather or retain any information about patients, caregivers, or physicians associated with medical marijuana. Further, patient/doctor confidentiality is regulated by rules of medical ethics and by the Health Insurance Portability and Accountability Act (HIPAA).
The Washington State Medical Marijuana laws specifically do not require any health insurance provider to be liable for any claim for reimbursement for the medical use of marijuana.
Washington Residents: Washington currently has no reciprocity agreements with other states to honor Washington’s medical marijuana law. This includes even those states that currently have medical marijuana laws of their own.
However, in Montana, medical marijuana patients from other states who are valid medical marijuana patients under that state’s law are protected under Section 4(8) of the Montana Medical Marijuana Act [Sec. 50-46-201(8), MCA]. A registry identification card or its equivalent issued by another state government to permit the medical use of marijuana by a qualifying patient or to permit a person to assist with a qualifying patient’s medical use of marijuana has the same force and effect as a registry identification card issued by the Department of Public Health and Human Services in Montana. Therefore, medical marijuana patients from Washington should be protected in Montana under Montana state law. See the Montana Patients Guide for details on the protections and limitations that Montana state law affords medical marijuana patients.
Additionally, in Rhode Island, The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act (MMA) protects patients and primary caregivers from outside Rhode Island who have a state issued medical marijuana ID card, or its equivalent. The MMA states, “A registry identification card, or its equivalent, issued under the laws of another state, U.S. territory, or the District of Columbia to permit the medical use of marijuana by a qualifying patient, or to permit a person to assist with a qualifying patient’s medical use of marijuana, shall have the same force and effect as a registry identification card issued by the department.” Therefore, medical marijuana patients from the other medical marijuana states that have state issued cards should be protected in the state of Rhode Island. See the Rhode Island Patients Guide for more information.
In states with no medical marijuana program, marijuana use, regardless of a doctor’s recommendation, is illegal. You may be arrested and charged with civil or criminal offenses in those states.