Legal and regulatory proceedings

Navigating legal or regulatory processes

Cannabis legalization in Canada, one year later: Questions from members

Originally published December 2019
19-19-E 

When cannabis for recreational purposes became legal in Canada in 2018, the CMPA advised physicians about the expected impact of the new regulatory regime on their practices. We invited you, our members, to contact us with your questions about medical-legal issues arising from patients’ use of cannabis—whether for medical or recreational purposes.

The relatively small number of enquiries1 suggests that legalization of recreational cannabis has generally not created significant medical-legal difficulties for physicians.

Requests in the past year for the CMPA’s advice on this matter have centered around four themes: reporting requirements, prescribing medical cannabis, privacy concerns, and the CMPA’s scope of medical-legal assistance.

Cannabis edibles and extracts

Reported cannabis consumption is on the rise, with nearly 18% of Canadians over 15 years old reporting having used it in the months following legalization2, up from 14% before legalization. The debut of cannabis edibles and extracts to the legalized market is anticipated to add a further layer of issues for physicians to be aware of. Consider talking to your patients about their medications and any cannabis products they may be consuming. Federal regulations set limits on the psychoactive content (THC) allowed in edibles and extracts, and stipulate how they may be marketed. For example, these products cannot contain nicotine, caffeine, or alcohol; must not be visually appealing to young people; and are to be sold in plain, child-resistant packaging.

Duty to report

Do I have a duty to report…

  • patients who consume cannabis and work in transport or childcare or other jobs where safety is paramount?
  • patients who consume cannabis and drive?

The Canadian Public Health Association’s information package entitled Cannabasics 3 provides helpful information on the health and safety risks associated with cannabis. The CMA Driver’s Guide4 also provides guidance on cannabis consumption and driving.  For more information about the duty to report unfit drivers, see the CMPA article “Hit the brakes: Do you need to report your patient’s fitness to drive?”.5

Refer to your medical regulatory authority (College) for policies or guidelines on fitness to drive reporting requirements in your province or territory.

You should document in the medical record the advice you have provided the patient and the reasons for or against reporting (for example, to the transportation ministry or the individual’s employer).

Completing documents for medical cannabis

How should I respond to a request for…

  • a medical document needed to access cannabis for medical purposes from my patient?
  • a referral from a cannabis clinic or to join a cannabis clinic?
  • a telemedicine consultation concerning cannabis?

As a physician, you are under no obligation to pursue a treatment or provide a referral that you do not believe is medically indicated. It is appropriate to discuss with your patient the available options to treat their condition, including answering questions they may have regarding medical cannabis, if it is within your knowledge to do so. Colleges also generally prohibit ending the doctor-patient relationship solely because a patient requests medical cannabis or opts to consume cannabis for either medical or recreational purposes. Don’t forget to document these discussions in the medical record.

If you are planning to provide telemedicine consultations to complete medical documents for medical cannabis, you should consult your College requirements before doing so. Some Colleges expressly prohibit the use of telemedicine for this purpose.6 The requirements imposed by other Colleges concerning telemedicine generally may create additional hurdles for authorizing medical cannabis in this way.

In addition to any restrictions imposed by your College, you should also consider whether the telemedicine technology employed allows you to appropriately determine the quantity and period of use, as required to complete the medical document. You will need to assess whether you can determine from a remote location the appropriateness of cannabis as treatment for a particular patient. You will also need to ensure you comply with the licensure and regulatory requirements governing telemedicine.

You may also wish to be familiar with  the CMPA’s assistance with telemedicine. For information, see the articles “Providing your professional opinion concerning patients outside Canada,”7 and “Treating non-residents.”8

If you wish to enter into a business contract with a cannabis clinic, you should obtain the services of private legal counsel as this falls outside the scope of the CMPA’s assistance.

Documentation and release of personal health information

What should I do when…

  • my patient asks that I do not document his cannabis use in the medical record?
  • I receive a request for patient information from an insurance company?
  • I receive a request from the police for the result of a blood test?

Physicians have a professional obligation to document relevant medical information in the patient’s medical record. Further, complete and accurate documentation is a key element of good patient care and essential in defending that care if it is later questioned. Being aware of and documenting an individual’s cannabis consumption may help to identify potential problems such as Cannabis Use Disorder that can arise from frequent consumption.3

As a physician, you have an ethical and legal obligation to protect confidential patient information from disclosure—any exceptions are governed by law. You may disclose information in a medical record to a third party (such as police, lawyers, and insurance companies) only with the patient’s or substitute-decision maker’s consent, or when authorized by law.

For more information see the CMPA articles “Writing with care9 and “When to disclose confidential information.”10

The bottom line

  • The legal framework governing medical cannabis and the role of healthcare practitioners has not substantively changed following the legalization of recreational cannabis.
  • If you choose to complete medical documents for medical cannabis, you are expected to comply with federal and provincial legislation and your College’s policies and guidelines, and possess the necessary knowledge to authorize cannabis as a treatment option.
  • Disclose information about a patient’s use of cannabis to third parties only with the consent of the patient or where authorized by law.     

 


 

References

  1. The CMPA received 134 advice requests from members concerning cannabis between June 1, 2018 and March 31, 2019. This time period takes into account enquiries received in anticipation of the new legal framework.
  2. Statistics Canada. Cannabis Stats Hub [Internet]. Ottawa (CA); 2019 [cited 24 June 2019]. Available from: https://www150.statcan.gc.ca/n1/pub/13-610-x/cannabis-eng.htm
  3. Canadian Public Health Association [Internet]. Ottawa (CA): CPHA;2018 Dec. Cannabasics [cited 2019 Jun 21]. Available from: https://www.cpha.ca/cannabasics
  4. Canadian Medical Association. CMA Driver’s Guide. 9th ed. Ottawa (CA): CMA; 2017.
  5. Canadian Medical Protective Association [Internet]. Hit the brakes: Do you need to report your patient’s fitness to drive? Ottawa (CA):CMPA;2019 June [cited 2019 June 24]. Available from: https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2019/hit-the-brakes-do-you-need-to-report-your-patients-fitness-to-drive
  6. For example, the College of Physicians and Surgeons of New Brunswick, College of Physicians and Surgeons of Nova Scotia, and College of Physicians and Surgeons of Prince Edward Island
  7. Canadian Medical Protective Association [Internet]. Providing your professional opinion concerning patients outside Canada. Ottawa (CA):CMPA;2019 June [cited 2019 June 24]. Available from: https://www.cmpa-acpm.ca/en/membership/protection-for-members/principles-of-assistance/providing-your-professional-opinion-concerning-patients-outside-canada
  8. Canadian Medical Protective Association [Internet]. Treating non-residents. Ottawa (CA):CMPA; Revised 2013 June [cited 2019 June 24]. Available from: https://www.cmpa-acpm.ca/en/membership/protection-for-members/principles-of-assistance/treating-non-residents-of-canada
  9. Canadian Medical Protective Association [Internet]. Writing with care. Ottawa (CA):CMPA; 2020 March. Available from: https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2020/writing-with-care
  10. Canadian Medical Protective Association [Internet].When to disclose confidential information. Ottawa (CA):CMPA; 2015 January [cited 2019 June 24]. Available from: https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2015/when-to-disclose-confidential-information

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.