Are there Special Medical Board Rules for Doctors Using Marijuana?

Marijuana is legal in California so how does the California Medical Board Views Cannabis Use by Doctors ?

California doctors have to be careful because authorities view marijuana as a drug.

Politically and even socially we have an evolving landscape surrounding cannabis, leading many physicians to ask the critical question: If marijuana is legal for everyone, can my personal use—whether medicinal or recreational—impact my medical license? Now there is entire discussion about federal law, medicaid billing and DEA involvement that is the subject of a video that Daniel is working on. In fact it may already be published. But this video is about the state medical board.

While the Board doesn't have a "cannabis-only" policy, their stance is clear and consistent. Here is a breakdown of how the Board views cannabis use and what it means for your practice.

The Bottom Line is reasonable - Impairment is the Standard

The Board treats cannabis exactly like alcohol or any other controlled substance.  But it doesn't.  Marijuana still has a stigma as a drug used irresponsibly and by persons who don't follow the rules.  Objectively, the primary concern isn't necessarily what is being used, but how it affects your ability to practice safely.  But the inquiry into whether marijuana has affected medical performance is very subjective.

According to the Medical Practice Act, the Board is authorized to take disciplinary action if a physician is impaired. This applies regardless of whether the cannabis is being used for a diagnosed medical condition or for personal recreation.  So if you mess something up, if you are accused of messing something up, your marijuana use may be thrown into the ring as a further cudgel aimed your head. In other words if you have an accusation of anger outburst at a nurse, a missed diagnosis or some other failing - if you are known to use marijuana you may be accused of being a doctor who comes to work impaired. A added issue is duration of effect. Marijuana lingers varying times based upon the mode of administration and personal factors. A "hang over" 'from strong marijuana may affect judgment even after the main intoxicating effects have worn off.

It helps to understand the Legal Framework.

Several sections of the Business and Professions Code (BPC) outline the Board's authority to intervene whenever anything legal or illegal affects patient safety.
Business and professions code Sections 822 & 2239 Grant the Board power to act if a physician’s substance use becomes dangerous to themselves or the public.
Business and professions code section 2234 allows for action based on "unprofessional conduct."

The Safety Mandate is the key to scrutiny of doctors using marijuana. Physicians are prohibited from practicing medicine while impaired, period. Using cannabis for medical purposes does not provide a legal "shield" against impairment charges.

So What Happens if There is a Legal Incident?

The Board’s primary mission is consumer protection. If a physician is arrested or convicted of a cannabis-related crime (misdemeanor or felony), the Board will follow a standard investigative protocol which are

first:

Automatic Alerts where the Board is notified of any physician arrest, including DUIs (which can be based upon marijuana use)

Next

Case Review where investigators will look into the specific circumstances surrounding the arrest or conviction.
Then there is a formal Investigation by Medical Board involving police officer type investigators and physician reviewers. If there is a belief that marijuana affected job performance there will be a serious focus on how marijuana was used, why it was used and whether its effects lingered in any manner.  The board will contact you sometime between case review and actual discipline.  You need a lawyer at this stage.

Self help is usually a problem.  For example a doctor might volunteer that marijuana use was medical and not recreational.  This may be a bad answer.  Medical use is frequent and controlled by an uncontrolled medical condition.  Recreational use may be easier to moderate.  Doctors are used being smarter than the average bear - but in legal matters that may not be the case.

Disciplinary Action

If the conduct is found to violate the Medical Practice Act or pose a risk to the public, the Board will take what it believes to be appropriate action to ensure patient safety. Now you as the doctor are involved with the board at the investigation stage so you can begin negotiating a fair resolution early in the process. You need a lawyer to do this effectively.
 

The Bottom Line is this.

If you are in conflict with a patient, hospital, medical practice or other medical professional - anything and everything will be used against you. If you smoke marijuana - keep that private. If you are under scrutiny for marijuana use that is generally more serious than scrutiny for use of more standard prescription drugs.
The bottom line to the bottom is this. You may consider marijuana a safe and reasonable substance. Do not count on the same view from the medical board. If you are under scrutiny hire a lawyer.

Daniel Horowitz is a criminal defense specialist and a highly experienced physician defense lawyer.  Call Daniel for an initial consultation at (925) 283-1863