Friday, January 22, 2016
A changing legislative landscape
In 2001, the Canadian government passed the Marihuana Medical Access Regulations (MMAR)1, which stipulate that Canadians must have “reasonable access to a legal source of marijuana when authorized by a healthcare practitioner.”2 Health Canada therefore authorized Canadians to request therapeutic marijuana if they had written permission from their physicians. But this regulation was repealed on June 7, 2013 and replaced by Marihuana for Medical Purposes Regulations,3 which require patients to obtain their medical marijuana from licensed producers. This regulation will provide better control over the quality of the marijuana consumed by patients and ensure that it is grown under secure and sanitary conditions.4
The changes to cannabis legislation didn’t stop there. In June 2015, in response to a decision by the Supreme Court of Canada, Health Canada published an exemption under Section 56 of the Controlled Drugs and Substances Act. The court’s decision struck down the portion of the law that restricted medical access to marijuana in its dried form. Going forward, medical marijuana can therefore also be sold by licensed producers in the form of cannabis oil and fresh marijuana buds and leaves.5
Rules for accessing medical marijuana
In Canada, patients must consult a medical practitioner to obtain medical marijuana. If the practitioner agrees to prescribe cannabis, they must fill out, sign and date a medical document attesting to this. The patient must then register as a client with a licensed producer and provide certain information, including the original medical document.
However, each province and territory has its own rules regarding medical prescriptions. For example, Quebec’s college of physicians restricts cannabis prescriptions to pharmacovigilance research programs related to cannabis use.
An eligible medical expense?
On September 5, the Canada Revenue Agency confirmed that, under certain circumstances, cannabis can be considered an eligible medical expense under the Income Tax Act, if it is purchased from Health Canada or a licensed producer.6
Employers may be obliged to permit employees to use medical marijuana if employees are authorized to do so. However, certain criteria must be accepted to justify such an accommodation. “Experts say that the duty to accommodate comes with an important caveat—it must not result in undue hardship for the employer.”7 According to Natalie MacDonald, an employment lawyer and founding partner of Rudner MacDonald, when it comes to how employers should balance the duty to accommodate an employee’s use of medical marijuana there are “no hard and fast rules”. “It's got to be determined on a case-by-case basis.” She adds that one way to accommodate a worker’s needs would be to provide a leave of absence until the medical issue is resolved, or give them different tasks that won’t pose a security risk for them or their colleagues.8
Medical marijuana—a challenge for doctors
Some doctors are reluctant to prescribe cannabis to patients, in part because it has not yet undergone the studies and clinical trials required for prescription medication. Health Canada has published information for healthcare professionals on its website to make sure they have access to the best information available. And there are other causes for concern. Dr. Nathalie Cauchon, a family doctor in the Bathurst region of New Brunswick, is concerned about the increased demand for marijuana since the legislation was changed. If there are not enough producers to meet the demand, patients may turn to the black market where there are no quality controls.9
Progress on the horizon
It looks as though the Supreme Court’s decision to legalize various forms of cannabis will encourage research and the production of new products that would be subject to rigorous clinical trials to determine their efficacy. These products could also be administered by methods safer than inhalation. For example, pharmaceutical companies could decide to produce capsules with a precise dosage, unlike inhaled cannabis in which the exact dosage is unknown.
Canadian Centre of Substance Abuse (2014): Clearing the Smoke on Cannabis – Medical Use of Cannabis and Cannabinoids.
1. Government of Canada website: Marihuana Medical Access Regulations (SOR/2001-227) External link. Opens in a new window. [repealed].
2. Health Canada website: Medical Use of Marijuana External link. Opens in a new window..
3. Government of Canada website: Marihuana for Medical Purposes Regulations External link. Opens in a new window. (SOR/2013-119).
4. Health Canada website: Medical Use of Marijuana External link. Opens in a new window..
5. Health Canada (2015): Statement on Supreme Court of Canada Decision in R. v. Smith External link. Opens in a new window.
6. Canada Revenue Agency website (2015): Income Tax Folio, S1-F1-C1: Medical Expense Tax Credit External link. Opens in a new window..
7. Online News from the Canadian Press: Use of medical marijuana at work poses challenges for employers: experts External link. Opens in a new window..
9. ICI Radio-Canada (2014). Cannabis médical : médecins et patients sonnent l’alarme External link. Opens in a new window.. [Medical marijuana: Doctors and patients sound the alarm]