PHOENIX — Doctors who recommend marijuana to patients can't be charged with crimes even if they did not follow the procedures required by law, the Arizona Court of Appeals ruled Thursday.
The judges acknowledged that Robert Gear, a Phoenix naturopath with offices in several communities, had been charged with recommending the drug to a patient without having access to 12 months of her medical records. That is a requirement under the law.
Gear was indicted on charges of forgery and fraudulent schemes after saying on a form required by the Department of Health Services that he had, in fact, seen those records.
But Judge Patricia Norris, writing for the unanimous appellate court, said what Gear or did not do is legally irrelevant. She said the 2010 voter-approved Arizona Medical Marijuana Act specifically bars criminal charges against any physician who certifies that a patient is likely to benefit from the drug.
Norris said a contrary ruling would be bad public policy.
"Criminal scrutiny and prosecution of physicians for certifying patients for medical marijuana use would have a chilling effect on the voluntary participation of physicians, and, thereby, hinder qualifying patients' efforts to obtain competent medical advice regarding medical marijuana, its medical risks, and its alleged therapeutic and palliative benefits,'' the judge wrote.
Thursday's decision upset Navajo County Attorney Brad Carlyon
"I'm just disappointed there are no consequences for doctors that don't follow the rules on how to prescribe a medical marijuana card,'' he said.
But Kimberly Kent, the attorney who represents Gear, said the law is clear. She said a doctor who determines marijuana is appropriate for a patient is immune from criminal prosecution.
Kent said it's a separate question of whether Gear might face some discipline, either by the health department or the board that regulates naturopaths.
Arizona law allows those with certain medical conditions to obtain up to 2 1/2 ounces of marijuana every two weeks. But they must first get a written recommendation from a doctor.
Court records say that a confidential informant working for the county's drug task force went to Gear to get such a recommendation. She completed a medical questionnaire and medical records statement provided by Gear's staff and disclosed information about her medical history and physical condition.
She also said she had seen other doctors in the past 12 months but did not "have a complete set of medical records'' with her. But she agreed she would either request that her records be sent to Gear or would bring them to her on her next visit.
Based on his examination of the woman, Gear certified the woman for medical marijuana use. He also completed a form which said he had "reviewed the qualifying patient's medical records, including medical records from other treating physicians from the previous 12 months.''
Norris said there is no legal basis for the charge.
She said the 2010 law provides immunity for any case in which a doctor certifies that "a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana.'' And Norris said that is exactly what Gear did.
The question of whether he was not truthful on the form does not strip Gear of that immunity, she said, particularly as that requirement to review 12 months' worth of medical records is not required under the law but instead a regulation by the health department.
"Dr. Gear did not lose his statutory immunity merely because he completed the mandated DHS form,'' Norris wrote.
Beyond that, she said the immunity extends beyond delivering the certification sought by the patient.
"It also encompasses a physician's actions in preparing and completing the written certification,'' Norris said.
State Health Director Will Humble, whose agency enacted the rules about the medical records and designed the form, declined to comment on Thursday's ruling.
Follow Howard Fischer on Twitter at @azcapmedia.