Doctors can't be charged for marijuana referrals

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By Christina O'Haver By Christina O'Haver

PHOENIX (AP) -- The Arizona Court of Appeals ruled Thursday that doctors who certify a patient could benefit from using medical marijuana can't be criminally charged if they fail to review a year's worth of the patient's records.

Thursday's decision affirms the dismissal of forgery and fraud charges against Phoenix naturopath Dr. Robert Gear. Gear was charged in Navajo County after signing a medical marijuana certification for a police informant in 2012 based on his examination but before he received a year's worth of records. The state health department form certified that he reviewed the records.

But the appeals court said the state's voter-approved medical marijuana law gives doctors immunity for their referral decisions despite what the form may say.

"In enacting the (law), the voters explicitly barred prosecution of a physician for providing `written certifications' or `for otherwise stating' that certain patients may benefit from `the medical use of marijuana,' " presiding Judge Patricia K. Norris wrote in the opinion, which was joined by two other justices. Norris said this was a critical part of the law because it protects patients and physicians from prosecution.

Gear's attorney agreed, saying the law specifically barred such prosecutions for doctors who provide medical marijuana certifications. "And the whole reason that's important is we really didn't think doctors would participate in the program if they didn't have some assurance," attorney Kimberly Kent said.

Kent said she's been urging the state Department of Health Services to revise the certification form to remove the reference to reviewing patient records. That's important because a patient may not have medical records available but still clearly have a condition that could benefit from using medical marijuana.

The court said the 2010 medical marijuana law still allows licensing boards to discipline doctors who improperly write recommendations.

Kent agreed, "because this is a health care law, this is a health care issue. And issue of compliance should be decided by people like the department of health or the regulatory agencies that oversee physicians and nurse practitioners who choose to participate in the program."

Navajo County Attorney Brad Carlyon wasn't immediately available for comment. The Department of Health Services had no immediate comment.

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