CBD oil and physician liability
Cannabidiol oil (CBD), a cannabinoid derived from cannabis that doesn’t create the “high” associated with marijuana since it lacks the cannabinoid THC, is gaining interest among health practitioners for its long list of potential benefits.
CBD oil for pain is one of the most widely discussed medical uses for the oil, although the list is much longer and includes seizure reduction, cancer treatment, anxiety relief and more cosmetic purposes such as acne reduction, among others.
There are three main issues with CBD oil for physicians who might prescribe it, however. First, cannabis and CBD oil remain illegal under federal law since it is classified as a schedule 1 drug under the Controlled Substances Act. More than 23 states have decriminalized its use for medical purposes, but this still comes in conflict with federal law and the Drug Enforcement Agency. Going near CBD oil in a healthcare setting is tricky.
Second, its status as an illegal substance makes it hard to test and run clinical trials that definitively prove its medical efficacy. This creates a vicious circle where marijuana and CBD are not fully legal because there is no data on its safety and efficacy, and its medical use in not proven because there is not enough testing due to being illegal.
Then there’s the liability of prescribing CBD oil and any product related to cannabis. Does the regulatory environment and the risk of malpractice outweigh the benefits for patients? This article will focus on this third challenge related to CBD oil for medical use.
Currently, prescribing CBD oil still is relatively unexplored territory for physicians in terms of legal liability. But medical boards want clarity.
In 2016, the Federation of State Medical Boards (FSMB) surveyed member boards regarding the issues related to cannabis and medical regulation. The survey found that the issues most important to board about CBD and marijuana included guidance on handling recreational use by physicians (31.4%), guidance on handling marijuana products for medical use by physicians (47.1%), and model guidelines for recommending marijuana products for medical purposes to patients (49.0%).
The trouble is that CBD oil, despite its potential medical benefits, lacks the certainty of an FDA-approved drug. The legal framework for that just isn’t there yet, which puts physicians in a bind.
To reduce the risk of liability, however, the FSMB has developed some guidelines for the recommendation of cannabis and cannabinoids such as CBD oil in medical settings as part of its Workgroup on Marijuana and Medical Regulation.
Guidelines for Minimizing Liability Around CBD Oil Recommendation
The FSMB workgroup recommends several conditions for safeguarding the ethical recommendation of cannabis-based products such as CBD oil for medical use.
1. Establish a Preexisting Medical Relationship with the Patient
To avoid questions of inappropriate prescription of CBD oil for medical conditions, the FSMB recommends that physicians first make sure they have a documented, existing medical relationship with the patient before recommending products such as CBD oil.
Consistent with prevailing ethical standards, physicians also should not recommend, attest or authorize CBD oil for themselves or family members.
2. Documented Patient Evaluation
A second key to reducing liability around recommending CBD oil for medical use suggested by the workgroup is taking extra pains to document that an in-person medical evaluation and collection of relevant medical history is performed before considering if CBD oil is appropriate for the patient.
While less applicable to CBD oil because it lacks the high of THC that is present in medical marijuana prescriptions, physicians should nonetheless also ensure the patient does not have a history of substance abuse. This ensures that physicians are covering their bases even if THC is not present in CBD oil.
3. Advise and Decide Together with the Patient
Physicians should discuss the risks and benefits of CBD oil with the patient before making a recommendation because CBD oil is clinically unproven and lacks the standardization present with many other potential treatments, according the FSMB workgroup.
This is key for minimizing the potential for liability because then the choice is not made by the doctor alone, shifting responsibility. It also is important because due to the current legalities of cannabis-related treatments, physicians cannot actually prescribe CBD oil—they can only recommend it as a possible treatment.
4. Include a Treatment Agreement
Physicians that recommend CBD oil should also document alternative options available to the patient in the form of a treatment agreement.
- Review of other measures attempted to ease the suffering caused by the terminal or debilitating medical condition that do not involve the recommendation of CBD oil.
- Advice about other options for managing the terminal or debilitating medical condition.
- Determination that the patient with a terminal or debilitating medical condition may benefit from the recommendation of CBD oil.
- Advice about the potential risks of the medical use of CBD oil, including the variability of quality and concentration of CBD oil.
- Additional diagnostic evaluations or other planned treatments.
- A specific duration for the CBD oil authorization for a period.
- A specific ongoing treatment plan as medically appropriate.
5. Avoid Any Other Relationship with Cannabis-based Products
Finally, one of the most important ways that physicians can reduce the potential liability from recommending CBD oil is by having a clear and impartial relationship to CBD oil and marijuana in general.
That means that doctors should not have a professional office at or near a marijuana dispensary or cultivation center, or receive compensation from or hold a financial interest in a CBD-related business.
By clearly demonstrating that the recommendation of CBD oil is for medical purposes and not based on personal considerations, physicians will help cut the liability associated with CBD recommendation.
That noted, there is no clear-cut way to completely reduce liability when recommending CBD oil to a patient any more than there is a way to completely eliminate the chances of malpractice when advising patients. Some potential for liability is inherent.
As the use of CBD oil and marijuana for medical purposes increased, and further standards and regulations develop, recommending it should become less legally fraught. Until then, reducing the potential risk of liability is the best that physicians can do in the case of CBD oil.
This article is for information only, and does not constitute legal advice.
Five Things Doctors are Saying About CBD
Whether you’ve heard about it from your sister-in-law or a Spotify ad, there’s no denying that CBD is everywhere these days. The natural compound primarily found in the hemp plant is gaining major traction in popular culture and the wellness world, as people continue to praise its healthy properties.
But even with all the excitement, it’s clear there’s still a long way to go to understanding the potential therapeutic benefits and possible unknowns. So, just what are medical professionals and doctors saying about CBD? Are some skeptical? Let’s uncover some of the most talked-about CBD arguments, so you’ll be in the know.
- According to the World Health Organization (WHO), CBD oil is safe – Most doctors give at least some credence to guidance by the WHO. In 2018 the WHO affirmed that CBD is safe, and it is well-tolerated by humans and animals. They also found it is not associated with any negative public health effects. There is also preliminary evidence that CBD may be a useful treatment for several other medical conditions.
- Unlike its cousin THC, CBD does not cause intoxicating effects – CBD produces no ‘high effect’ and is legal at the Federal level in the US by the 2018 Farm Bill. Only three states have not made CBD legal at the state level (Idaho, Iowa, and South Dakota). Federal law defines CBD as products containing less than 0.3% THC. Research shows that THC levels – upward of 20% – produce psychoactive effects. It’s important to note that not all CBD products are completely THC free. Broad-spectrum and isolate CBD products have, what labs call, no traceable amounts of CBD, while full-spectrum CBD Oil can contain trace amounts of THC (less than 0.3%).
- FDA approval is just beginning – According to the US Food and Drug Administration, the FDA is ‘working to answer questions about the ‘science, safety, and quality of products containing cannabis and cannabis-derived compounds, particularly CBD.’ Currently, the only FDA-approved CBD medication is Epidiolex, which is used to treat certain seizures. Although it’s the single FDA-approved product right now, the FDA is looking at CBD in more depth.
- Quality is king – Industry experts and doctors agree that if patients decide to take CBD, they should look for products with only the highest-quality ingredients. What should you look for? Make sure CBD products are 3rd-party lab tested. This type of testing validates customers are getting what the packaging and label indicate. CBD manufacturers that produce products in ISO certified, FDA-registered facilities also give consumers the confidence they’re getting premium CBD products.
- More research is needed – We all know doctors like data. And, the truth remains, CBD research is still in the early stages. Many scientists want to see more research into the long-term implications and benefits of CBD. Another area of consideration is that most studies today are looking at CBD oil itself and not at manufactured CBD products, which often include terpene compounds and other natural blends. Thus, the consensus is to proceed cautiously with CBD oil and with an open mind – look at evidence-based research as it’s published.
Do your research and have a conversation with your doctor
While research continues, most scientists agree that CBD could play a part in our wellness and can help maintain biological balance. However, not every patient has the same experience with CBD products. The best advice is to consult with your physician before trying any therapies, including CBD. The conversation between a patient and doctor should focus on the treatments available and the relative potential for each option’s risk vs. benefits. If you want to learn more about CBD, or want tips on talking to your doctor, email us!
Will a CBD Oil Prescription Impact my Professional License?
The issue of medical marijuana and the workplace is a precarious one. With over 20 states now having legalized medical marijuana, many questions have arisen pertaining to the legality around usage in the workplace, or while on the job.
Even more questions arise around the necessity of some marijuana-based products for health ailments. Most recently, an Auburn football walk-on lost his opportunity due to his usage of CBD oil to cure his debilitating epilepsy.
Current Federal CBD Oil Laws
The ambiguities in current federal drug laws leave much to be determined when it comes to the use of these Marijuana extracts.
The main “ingredient” in CBD oil is called cannabidiol. A brief explanation of this extract and the Nebraska legal issues surrounding it can be found in this blog. CBD and cannabidiol is illegal in the state of Nebraska. The only time it will not be construed as an illegal controlled substance is when the University of Nebraska uses it for their own research purposes. So most likely if you’re using CBD oil, no matter if you have a prescription to use it in another state, you will be charged with some form of drug crime if caught with it in Nebraska.
From this, you can obviously see that it would be illegal for any professional to possess, leading to a revocation of their license if found out. However, other states are not so strict.
CBD and THC
In many states with legalized medical marijuana, just the mere presence of CBD or THC in one’s bloodstream isn’t enough for revocation. In most cases, the accused has the right to due process before a license revocation occurs. If their level of CBD remains constant, relatively low, and is only used for strictly medical purposes, then in most cases (but not all), CBD usage is okay. However, if the level of usage rises to a level where one might question if it’s a substance abuse problem, then a revocation is much more likely. And obviously it depends on the state’s drug laws. Alabama is going to be harsher on usage (like Nebraska). Oregon will be more lenient.
The grounds surrounding revocation often pertain to if the professional is acting in “unprofessional conduct”. Additionally, if the party using CBD commits a cannabis-related crime, or they become incapacitated or impaired then again, revocation is much more likely.
Although CBD oils and products generally have very low psychoactive properties, it depends on the type of oil/product and the ratio of cannabidiol to THC. Higher THC levels = higher psychoactive properties. So generally, CBD oils with minute amounts of THC in them will cause the least amount of problems. If a professional is using CBD oil with low levels of THC then revocation may be less likely (although one should never be too sure without direct indication of what’s legal from their employer).
Is hemp oil safe?
To further complicate things, hemp oil is completely legal in America and has been for many years, long before any states had legal marijuana. The differences between CBD and hemp oil are small but significant enough for the federal government to feel the need to enforce laws on one and not the other.
In summation, many states like Nebraska see all types of CBD oil as illegal substances, thus, usage of such substances will lead to license revocations. And if you’re in a state where medical or recreational marijuana usage is legal; it’s a good idea to check with your employer before trying anything.
If you or a loved one has been charged with any type of controlled substance charge contact the experienced and relentless attorneys at Berry Law.