Medical Marijuana Act | Custody and Parenting Time

Perhaps this is the decision many family lawyers are waiting for . . . and perhaps not. Judge O’Connell surely intended no pun: “I will attempt to cut through the haze” of the Medical Marijuana Act [“MMA”] [Concurring opinion at page 3]. O’Connell and the majority found the MMA to be inartfully drafted and much in need of revision, and declined to engage in judicial legislation.

According to the COA, in People v Redden [For Publication, decided September 14, 2010], under the MMA, a person may not be denied custody or visitation of a minor for acting in accordance with the act unless his or her behavior is such that it creates an unreasonable danger to the minor which can be clearly articulated and substantiated.

The Medical Marijuana Act protects a qualifying patient who has been issued and possesses a registry identification card from arrest, prosecution, or penalty in any manner. Such a person may not be denied any right or privilege and may not be subjected to disciplinary action by a business or occupational or professional licensing board or bureau on account of the medical use of marijuana in accordance with the act. However, under the MMA, the qualifying patient may not possess an amount of marijuana exceeding 2.5 ounces of usable marijuana. In addition, the MMA allows a qualifying patient does not have a specified primary caregiver who is licensed to cultivate marijuana for the qualifying patient, the qualifying patient may possess twelve marijuana plants if they are kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots is also allowed and may not be included in this amount. MCL 333.26424(a); MCL 333.26424(c)
Under the MMA, there is a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marijuana in accordance with the act if the qualifying patient or primary caregiver

1. possesses a registry identification card, and
2. possesses an amount of marijuana which does not exceed the amount allowed under the act. The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with the act.  MCL 333.26424(d)

Redden did not possess a registry ID card when the search of his premises took place. Michigan did not begin issuing cards until April 4, 2009.

Something that I suspect is being experienced around the state is the use of facilities like that used by Redden and his co-defendant: “The Hemp and Cannabis Foundation (THCF) Medical Clinic. Screening took place over the phone. A doctor (an ophthalmologist) examined the defendant for about 30 minutes. Medical records were produced, but they were not current. The screening doctor is licensed to practice and does practice in six states—working for medical marijuana “clinics.”

A primary issue in this case is what constitutes a “bona fide physician-patient relationship.” According to the COA, in the absence of a registry identification card, an affirmative defense under the MMA requires a showing that a physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana. To be “bona fide” is to be done in good faith or to be authentic or real. In this case, the defendants’ physician had only examined each defendant once, briefly, and his sole employment was the examination of persons seeking qualification for medical marijuana use in at least six states. The physician did not identify the conditions necessitating the defendants’ use of marijuana, and was not scheduled to see either defendant again until they were due to renew their documentation for marijuana use. The circumstances presented a factual issue whether the defendants had a bona fide physician-patient relationship with the physician, and thus the district court improperly concluded that the defendants had satisfied that requirement of the defense as a matter of law.

The court also defined a “debilitating medical condition” since the MMA does not permit any person to use marijuana unless a person has a serious or debilitating medical condition. According to the court:

A “debilitating medical condition” is: (1) cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions; (2) a chronic or debilitating disease or medical condition or its treatment which produces cachexia or wasting syndrome, severe and chronic pain, severe nausea, seizures, or severe and persistent muscle spasms; and (3) any other medical condition or its treatment approved by the Department of Community Health. A “serious medical condition” involves a significant or threatening condition. In this case, the physician testified that the defendants had serious or debilitating medical conditions, but specified only that one defendant suffered from pain and the other from nausea.

What’s the take-away for family law attorneys? Discovery is required to obtain medical records that justify the existence of “debilitating medical condition” and the existence of a bona fide physician-patient relationship.

People v Redden [Majority opinion]

People v Redden [Concurring opinion]