PHOENIX — Doctors who lie about whether they've examined patients before recommending medical marijuana are subject to criminal prosecution, the Arizona Supreme Court ruled Friday.
The justices acknowledged the 2010 voter-approved Arizona Medical Marijuana Act does grant immunity to physicians against being charged with any crimes in connection with writing the written recommendations for patients.
But Justice Clint Bolick, writing for the unanimous court, said that does not mean doctors are free to break other laws, even if the act involves a marijuana recommendation. And Bolick said that's the case here.
Arizona law allows those with certain medical conditions to obtain up to 2½ ounces of marijuana every two weeks. But they must first get a written recommendation from a doctor.
Court records show a confidential informant working for the Navajo County drug task force went to the office of Robert Gear, a naturopath, to get a recommendations. She completed a medical questionnaire and medical records statement provided by Gear's staff and disclosed information about her medical history and physical condition.
Rules adopted by the state Department of Health Services require doctors to review a patient's medical records for the past 12 months before writing a recommendation.
In this case, the woman said she had seen other doctors during that period but did not "have a complete set of medical records'' with her. But she agreed she would either request that her records be sent to Gear or that she would bring them to the doctor on her next visit.
Gear issued the written certification anyway. He was indicted on charges of forgery and committing fraudulent schemes and artifices.
A trial judge threw out the charges based on the immunity provisions of the 2010 law, a decision upheld by the Court of Appeals. Bolick said both decisions were wrong.
He said the law spells out doctors cannot be prosecuted for providing written certification. Nor can they be charged with a crime for exercising their medical judgment that a patient would benefit from marijuana.
What Gear was charged with, Bolick said, was certifying that he had reviewed the patient's medical records for the prior 12 months when he had not done so. And Gear attested that "the information provided in the written certification is true and correct.''
Bolick rejected Gear's contention that the immunity extends to anything related to the certification, saying such an interpretation "could lead to troublesome outcomes.''
"For instance, would immunity extend to theft or sexual assault committed in the course of a physical examination conducted during the certification process?'' the justice asked.
The justices rejected arguments that subjecting doctors to criminal prosecution would chill the willingness of doctors to give advice to patients on medical marijuana.
"Nothing in our opinion should be read to limit or threaten such protected activities,'' Bolick wrote.
