Today’s Cannabis Case Summary looks at an Arizona case that held against making post-traumatic stress disorders a qualifying medical condition for medical cannabis and the lessons that can be learned from it.
Arizona voters approved Proposition 203 in 2010 to create a medical marijuana program to facilitate access to cannabis for patients afflicted with a “debilitating medical condition” defined by the law. The law as passed included a number of qualifying conditions, but also included a mechanism for adding conditions. A petition receiving the required amount of support triggers consideration for inclusion by the Arizona Department of Health Services (DHS).
It was against this legal backdrop that the Arizona Cannabis Nurses Association (AZCNA) petitioned DHS to add post-traumatic stress disorder (PTSD) to the list of qualifying debilitating medical conditions eligible for medical cannabis. The petition met all procedural and substantive requirements and it appropriately explained “the availability of conventional medical treatments” and summarized “the evidence that marijuana will provide a therapeutic … or palliative … benefit.” DHS denied the petition following a public hearing and an opportunity for public comment.
AZCNA appealed to an Administrative Law Judge (ALJ) appointed by the DHS Office of Administrative Hearings to evaluate appeals and recommend a decision to DHS. After an extensive evidentiary hearing, the ALJ found that, based on the preponderance of the evidence, “marijuana use provides a palliative benefit to those suffering from PTSD” and recommended that DHS adopt PTSD as a debilitating medical condition.
DHS largely accepted the ALJ’s recommendation, but with two conditions. First, marijuana could be prescribed for palliative care but not for therapeutic purposes. In other words, marijuana could be recommended for symptom relief, but not to cure or treat any disease. Second, the physician recommending marijuana was required to attest that the patient was also pursuing a “conventional” course of treatment for PTSD.
AZCNA was unsatisfied and challenged the DHS rule in the Superior Court of Maricopa County on the basis that DHS exceeded its statutory authority and that the rule violated PTSD patients’ Constitutional right to equal protection under the law. That court rejected AZCNA’s argument, and they subsequently appealed to the Arizona Court of Appeals. The appeals court’s decision is where today’s Cannabis Case Study begins.
AZCNA was not legally “aggrieved.” The Court of Appeals found AZCNA’s DHS authority arguments to be a non-starter. The gist of AZCNA’s position was that DHS erred by distinguishing between a therapeutic or palliative benefit of cannabis because it lacked authority to do so. However, their brief conceded that there is “no significant evidence” that marijuana is “therapeutic” for PTSD. They also stated in a later brief that there is “no cure” for PTSD, which the court read as conceding that cannabis could not be “therapeutic” because it did not actually “treat” the disease itself. Accordingly, they were not aggrieved by the “palliative” condition because there was no basis for any other medical application for cannabis in their own petition.
Neither the physician certification nor “conventional treatment” conditions violated Arizona law. The court quickly dispensed with AZCNA’s argument that the physician requirement violated or exceeded the law. AZCNA argued that the conditions violated Arizona law that limits the ability of the governor or legislature to amend or veto voter initiatives. The court reasoned that this did not preclude reasonable conditions or restrictions on the use of medical marijuana. A parallel challenge that alleged the DHS rule unlawfully forced a “conventional treatment” on a patient similarly failed.
The DHS rule did not violate the Equal Protection clause of the Constitution. AZCNA alleged that the conditions violated PTSD patients’ rights to equal protection under the law by “transparently discriminat[ing] against a PTSD patient versus any other patient suffering from another listed debilitating condition.” The court found that AZCNA did not overcome the common law presumption in favor of agency decisions and concluded that because all PTSD patients were treated similarly under the rule it did not violate equal protection rights because “all persons within a class are treated alike.”
The Court of Appeals ruled against AZCNA and upheld the lower court’s decision.
There are a couple of takeaways from this case:
- Learn your local administrative and legislative procedures. AZCNA may have lost in this case, but they succeeded in availing themselves of the administrative mechanism provided for citizens to influence change in marijuana policy. All cannabis stakeholders should familiarize themselves with the procedures for doing so such that they can effectively work within the system through petitions, initiatives, and lobbying.
- Equal protection to expand qualifying conditions lists? Here AZCNA failed because the court found that all PTSD patients were treated similarly under the law. However, their argument raises the interesting possibility of using equal protection grounds to challenge laws that permit medical marijuana for patients with some conditions but not for analogous unlisted ones. Such litigation would be a long-shot, unfortunately, underscoring the importance of activism and lobbying.