Health Law Blog

You Say POT-ato, I Say POT-ahto: The Unfair Burden Placed on Canadian Doctors Who Prescribe Medical Marijuana

November 12, 2014

Earlier this year, the legislative framework surrounding the provision of medical marijuana in Canada underwent significant change. On April 1, 2014, for-profit corporations who have been granted license by the government assumed responsibility for growing and dispensing prescribed medical marijuana. Physicians, who are charged with assessing the appropriateness of dried marijuana for their patients and writing the “medical document” which must be presented to these licensed producers in order to procure the product, have been thrust into the role of gatekeeper. As they are learning, it’s a particularly onerous gate.

Aside from having to grapple with the ethical and legal concerns involved in prescribing an illegal substance, physicians who prescribe medical marijuana are also expected to perform demanding and time-consuming services for the corporations who profit from its sale. The physicians receive nothing in return.

The additional workload associated with prescribing medical marijuana is partially buried under a cloak of semantics. Take, for example, the “medical document” that physicians must complete in order to authorize patient access to dried marijuana. According to a draft policy statement published by The College of Physicians and Surgeons, “Physicians enable patients to access a legal supply of dried marijuana by completing a medical document that functions like a conventional prescription.” However, ask a physician who has begun prescribing medical marijuana and you will learn that this medical document is anything but a conventional prescription.

Writing a prescription for medical marijuana is far more involved than writing one for a legal and registered medication. Given that a physician is facilitating access to an illegal substance, great care must be taken to ensure the prescription is written with precision and accuracy. Even more burdensome is the requirement to “verify” these prescriptions for every patient. The verification process requires a licensed producer who has received a prescription to contact the issuing doctor and asks him or her to confirm a lengthy list of items ranging from the patient’s date of birth to confirming whether or not the physician will receive the marijuana on behalf of the “applicant”. (The actual set of questions asked varies from producer to producer.) This process does not exist for any other drug.

While the verification process has been likened to a pharmacist occasionally calling a doctor to confirm a prescription, it is anything but. The licensed producers who are requesting the time and credentials of physicians are not pharmacists or other health care providers but for-profit businesses, each one with their own demands and requirements. Some, for example, require a written response while others call and demand that the physician respond the same day, not hesitating to remind them of the College’s policy that physicians must respond to an enquiry in a “timely and professional manner”. Give that these corporations keep typical business hours, this means that physicians must take time out from attending to other patients in order to respond.

At present, this time-consuming service is an uninsured one and its accompanying opportunity cost – taking physicians away from attending to other patients on a fee-for-service basis – is borne solely by the physician. Because the College considers the medical document to access medical marijuana equivalent to a prescription and, since prescriptions and activities related to prescriptions are insured services, physicians cannot charge patients; fair enough. But what about the for-profit corporations who are benefitting at the physicians’ expense? They’re not paying either. In fact, in June of this year, the Canadian Medical Cannabis Industry Association (CMCIA) passed a policy urging their members not to pay physicians for the time, expertise, and credentials required for verification.

Given the state of Canada’s health care system it is perhaps not surprising that there is not enough – be it money or resources – to go around. Yet, when considering how the spoils of the medical marijuana industry are being divvyed up among the stakeholders, it would seem that doctors are getting the short end of the stick. Patients gain because they have access to a substance that will bring them some relief from pain.  Health Canada, who will no longer have to deal with the administrative headache involved in issuing permits to individuals who are licensed to possess cannabis for medicinal purposes – currently 37,000 Canadians –  to grow their own or purchase it form small-scale producers, also comes out ahead. But the big winners by far appear to be the for-profit, private-sector commercial producers who will clearly benefit from an industry that is expected to be worth more than $1 billion a year by 2024. And make no mistake, this is not an industry made up of a host of mom-and-pop pot entrepreneurs. Similar to what happened with alcohol at the end of Prohibition, we are already beginning to see signs that this has the potential to morph into an industry dominated by a few giant corporations. It would be unfortunate indeed if their profits come at the expense of compassionate Canadian doctors.


Several years ago I was fortunate enough to have been selected as a Tremayne-Lloyd Fellow here at Western Law. I used the funds to finish a book and to begin work on a new one. It dawned on me far too late that I had never thanked you for that splendid gift. The new book is to be published by Harvard Press in 2010. The TTL Fellowships provided ritual seed capital for this project, which required me to spend a good deal of time and money at The National Archive in Washington. Again, with many thanks.

R. W. Kostal Professor of Law and History

Tracey Tremayne-Lloyd Health Law