Board of Health Hearing Update
Nov. 3, 2009

The conference room was packed and the phone lines were jammed. The Board of Health voted to delete their definition of "significant responsibility" from their rules, leaving the definition of "primary care-giver" decided last week by the Court of Appeals the only definition, which says a caregiver must provide a patient with other services in addition to medicine.

There will be a full public hearing on this issue on Dec. 16.

Medical Cannabis Ruling May Affect Colorado Caregivers

Read the Colo. Court of Appeals opinion here:

Medical Cannabis Ruling May Affect Colorado Caregivers

For immediate release: Oct. 29, 2009

Contact: Cannabis Therapy Institute
Phone: (641) 715-3900 ext. 70966

The Colorado Court of Appeals issued a ruling today (10/29) creating the first case law on Colorado's Medical Marijuana Law (Article XVIII, Section 14 of the Colorado Constitution). The court ruled that a medical marijuana caregiver must know their patients personally and must provide them with other services in addition to the acquisition of medical marijuana. However, the decision came in the appeal of a defendant who was arrested *before* the Colorado Department of Public Health and Environment issued rules this summer clarifying the patient/caregiver relationship. So the Court of Appeals opinion may not have any immediate bearing on medical marijuana caregivers currently operating in compliance with those rules and regulations, but it may show the future direction the Court is likely to take on this issue.

Read the Colo. Court of Appeals opinion here:

The opinion was issued on Oct. 29 in the case of Colorado v. Clendenin. Stacy Clendenin was a caregiver in Boulder County who was convicted in October 2006 of marijuana cultivation and was denied the right to have patients testify at her trial if those patients did not know Stacy personally while she was serving as their caregiver. Her attorney, Rob Corry, argued in the appeal that there is no law that requires the primary caregiver to have face-to-face contact with the patient and that the trial court erred by making an arbitrary decision to prevent patient witnesses from testifying. Corry argued that the Colorado State Board of Health recently supported Corry's interpretation of the law, in new rules that went into effect on August 30, 2009, which state that "significant responsibility" could mean simply providing a patient with medical marijuana.

Rob Corry issued a statement to the Cannabis Therapy Institute that said: "The Court of Appeals' opinion is narrow and by its own terms only applies to defendants who went to trial before August 30, 2009, the effective date of the Colorado Board of Health Regulations providing that a person need only provide medicine to satisfy the constitutional definition of caregiver. (See page 13-14 of Clendenin opinion.) There are encouraging sentiments in Judge Loeb's concurrence, where he states there could be legislative clarification to correct a possible lack of protection for everyone in the supply chain. We will almost certainly appeal this opinion to the Colorado Supreme Court and will be working with the legislature if it chooses to follow Judge Loeb's guidance and protect all suppliers of medicine."

Jeff Gard, a Boulder attorney who specializes in medical marijuana laws, had a more conservative view of the ruling. His statement says:
"It is more critical than ever to view the medical marijuana laws as conservatively as possible. Under the Clendenin case, the Court of Appeals ruled that the primary care-giver affirmative defense does not apply where the provision of marijuana is itself the substance of the relationship. As I have told prospective caregivers who seek my advice, caregiving means more than cultivating and/or providing medical marijuana to your patient and any such activities must be limited only to patients who have assigned you to be their caregiver. Caregiving requires a personal relationship and providing medical marijuana to your patient is only one small part of managing the patient's well-being."

Officials with state's Medical Marijuana Registry program will be meeting with their attorneys next week to discuss the legal impact of the ruling. When asked how the ruling would affect the Registry's rules, Mark Salley, spokesperson for the Colorado Department of Public Health and Environment told the CTI that, "The Department will be evaluating the Court's ruling and the possible impact of medical marijuana rules currently in place."

Laura Kriho, spokesperson for the Cannabis Therapy Institute, was not surprised by the ruling. "We hope this has no immediate negative effect on patients' safe access to their medicine, and we are not in favor of any government regulation that will restrict medical cannabis therapies or caregiving relationships," she said. "However, we do feel that anything that encourages our caregivers to take better care of their patients will only be good for the patients. If caregivers strive to attain the spirit of this decision, we can expect medical care for patients overall to improve," she said.

"If caregivers decide to use this decision as a model on how to run their businesses or to set up patient service collectives, patients and communities will thrive," says Timothy Tipton of the Rocky Mountain Caregivers Cooperative. "This should encourage other professionals that provide caregiving services and alternative therapies to begin to include medical cannabis in their practices. This will only serve to boost the industry to another level of service for our patients."

Cannabis Therapy Institute
P.O. Box 19084, Boulder, CO 80308
Phone: (641) 715-3900 ext. 70966