As more states pass laws that legalize marijuana, some medical, some recreational and a few with both, Attorney General Jeff Sessions has muddied the waters even more. Here are a few facts to keep you up to date.
Florida has approved medical marijuana and is in the process of implementing robust laws to avoid misuse. While state law permits it under stringent guidelines, federal law still forbids its production, possession, distribution and sale. That is a broad prohibition, based in part on the classification of marijuana as a Schedule I drug, which means it is perceived as having no medicinal value. Heroin is another Schedule I drug.
In 2013, the Obama administration issued the Cole memo which urged federal prosecutors to use their resources to prosecute illegal marijuana use and overlook instances in which a state has robust marijuana laws and the potential defendant is using or distributing the drug in accordance with that law.
Congress also passed legislation that banned using federal dollars to prosecute those using marijuana in accordance with state laws. This legislation is expired January 18, 2018.
On January 4, Attorney General Sessions withdrew the Cole memo and left it up to individual prosecutors to determine whether they will enforce the federal law in their districts.
While even under the Cole memo marijuana was illegal, prosecution for use within the state law was virtually non-existent. Without Cole, it is anybody’s guess. The legal picture is murky, but one thing is clear. No matter what your political leanings, Attorney General Sessions does not like marijuana. His prosecutors who have a similar distaste could begin prosecuting producers, distributors, possessors and users.
This change of events makes it more important that providers very carefully weigh their facility’s involvement in the use of medical marijuana. Our firm has prepared some draft policies and procedures which can be used by centers to put residents on notice of the restrictions of that particular licensee. A copy of these is available by request.
Advance directives
If you have never heard Dr. Leonard Hock speak about discussing advance directive decisions with residents or family members who are terminally ill, find an opportunity to do so. He is extremely knowledgeable about end-of-life decisions and the best way to ensure the resident is getting the care that they want. He lives and breathes palliative care.
Speaking to residents and families about advance directives at intervals is not much of a problem. Centers have come to understand that it is important to talk with residents when conditions change, when cognitive abilities change, or the like. More difficult is talking to the family about the resident’s wishes for the remainder of his or her life. Dr. Hock gives you good ideas about how to have the talk with the resident or the family.
One important aspect of this is documenting. Take credit for what you’re doing right by keeping thorough documentation to ensure the resident’s end-of-life choices are being carried out. The depth of that documentation is dependent on several factors:
- Is the resident expressing his/her wishes in a meaningful way if he/she has the ability to do so?
- Is the resident expressing his/her wishes and not the wishes of his/her family?
- Is the family in agreement with the resident’s decision, and, if not, what efforts have you taken to help them reach a consensus? Remember, it is the resident’s choice. The communication of that choice is usually the problem.
- If a legal representative (or more than one) is making the decisions, are you comfortable that other significant people in that resident’s life agree this is what the resident would want or is in the best interest of the resident?
- If not, what steps have you taken to assist reconciling the competing interests, remembering that the legal representative has the final say and the resident’s wishes are paramount?
- If the legal representative is not carrying out the resident’s wishes, you do have the opportunity under the law to seek a court declaration.
These are not necessarily legal requirements, depending on the circumstances. They are at least suggestions as to how to protect your residents at the end of life and to promote harmony among competing interests.
