In a recent thread, the topic of why it seemed so much more difficult to get Medical Marijuana in Canada in contrast to the USA was brought up. I thought the subject important enough to contrast the difference in approaches between the two countries and explain the underlying differences between the American and Canadian experience.
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There are a number of distinguishing features that have resulted in rendering a Authorization to Possess under Canada's MMAR to be much more difficult to obtain than it is to get a corresponding card in the 14 states that permit MMJ in the USA. Combined, those differences have resulted in vastly divergent approaches between the two countries.
1 - Legislative Illness Requirements: Under the initial Category requirements in Canada, MMJ was available in Canada only for a select group of conditions which are, generally speaking, vastly smaller in number than California. All other MMJ states in the USA, however, are more restrictive than Cali - and most of them are, in fact, more restrictive than Canada's.
So while this difference in illness requirements has something to do with the difference in approach, it's not the main reason for why it's so much harder to access in Canada. This is especially the case where under the new Category 2 system in Canada, illnesses not falling under Category 1 can still be treated with MMJ as long as a specialist agrees that conventional treatment is not appropriate.
2 - Difference in Consumer Driven Medical Culture: In the United States, doctors are genuine service providers who must build their patient base. Those patients are far more prone to switch doctors when they feel they aren't getting the care they deserve - delivered in the way they want. Doctors can compete in price (not overtly by professional regulation in most states, but they still do) but they very much compete in ranges of services they provide and in the quality of their "bedside manner". The overall business culture has affected the way that both doctors and patients see their relationship in the USA as compared to Canada.
The end result is that doctors in the USA are far more obliging to their patients than Canadian doctors are. In general, the difference is one of "patient as consumer" in the USA, vs “patient as parishioner” in Canada.
In Canada, because of National Medicare, it's a very different culture. People switch doctors very rarely. There is a shortage of doctors, so finding a new doctor is more difficult (not nearly as hard as many believe, but not terribly easy in a few areas) Doctors there have a relatively endless supply of patients. If you want to go somewhere else, there's another patient to fill your place in a very short while. So while they need patients as customers too - they don't need them so much that they feel they need to accommodate patient requests to the extent that doctors do in the USA.
In the end, Canadian doctors are GOD. In the USA, American doctors are merely SAINTS. Gods do what they want and say "no", often and capriciously; saints are relatively more accommodating.
This explains a small part of the reason why American physicians are more willing to sign a medical marijuana recommendation; however, it's mostly a cosmetic difference. The other reasons below have a far greater overall impact.
3 - Malpractice Insurance - In the USA, there are a number of malpractice insurance providers to physicians. Not everyone has the same policies and doctors often have some choice regarding who they will choose to be insured with. This means that American doctors have more power in the system. American doctors pay vastly more for malpractice insurance in the USA than they do in Canada (the premiums in Canada are so much smaller it’s not even remotely close) - but at least American doctors don't have to simply "take" whatever their insurer tells them without protest. Most American doctors have options, albeit, not as free-wheeling as say, drivers do for automobile insurance (it varies state to state).
So American medical insurers at least pretend to listen to their insured. To date, American insurers have not raised any significant issues over medical marijuana recommendations, since Conant v. Walters was decided in physicians’ favour.
In Canada, there is the Canadian Medical Protective Association as an malpractice insurer. That's it and that's all. The CMPA is the national insurer of all physicians and surgeons in Canada and there is no alternative. What they say, goes.
Despite the usual concerns over gouging that a monopoly would tend to indicate, doctors in Canada are, generally, extremely well served by the CMPA. Canadian doctor’s insurance premiums are vastly lower, notwithstanding an effective monopoly by the CMPA. The CMPA does not settle malpractice cases, almost never. They force almost everything but a handful of the most incredibly egregious cases of medical negligence you have ever heard of to trial as a matter of company policy. As a consequence, malpractice litigation in Canada is vastly lower than in the USA or even the UK. That's how beneficial the consequences have been from having one single hardest-ass-of-them-all malpractice insurer.
With the plusses come the minuses – and some trash talking attitude, too. After all, what the CMPA says, goes. The CMPA has taken the position that they do not have a duty to defend a Canadian doctor who signs a MMJ Form B1 or B2. They have provided a waiver for patients to sign, yes. However, in the event the patient sues anyways even after signing a waiver, the CMPA's official position right now is: "Doc - you are on your own. Hire your own lawyer. We aren't paying for one as you went outside the boundaries of your policy by signing that MMJ form."
Now, there has not been a single case of a doctor in Canada ever being sued for a MMJ approval - and if there was, I don't think that the CMPA would be excused by the courts from having a duty to defend, waiver or no. Still, the current position of the CMPA is definitely contributing to doctors in Canada refusing to sign a form B1 or B2, as opposed to the relatively accomodating attitude from insurers of American doctors.
4 - Quebec Medical Association: the position of the medical association in Quebec is extremely anti- MMJ. They are at the point now where the QMA is so antagonized by the MMAD, that they encourage all Quebec doctors to refuse to sign any form for any reason and will not hear complaints about it from the public. This is the primary reason that MMAR card holders in Quebec are so low a percentage of all Canadian MMAR card holders relative to Quebec's status as the second largest province in the country. The scheme for MMJ conceived of by the Canadian courts and implemented by the Federal Gov't is one that the QMA has decided it wants nothing to do with.
If the QMA was bound by the Charter, there is no doubt that litigation against it would probably be successful at this stage to force it to play by the rules. But as a non-governmental organization – the QMA is not bound by the Canadian Constitution's Charter of Rights and Freedoms. That is why MMJ is on the verge of essentially becoming a complete failure in the province of Quebec.
5 - MMAD's Investigation Procedures: Above all, this is the primary reason that MMJ is so hard to access in Canada relative to the American experience. It is a distinct difference between Canada's system and the American one. It is so great a difference that, as matters stand, it may eventually have to be changed with more Charter litigation in Canada.
Here's the problem. The Ontario Court of Appeal in R. v. Parker essentially ordered the Canadian Federal Government to implement a medical marijuana program, like it or not. Elements of the Federal Government knee-twitched in response and there was bureaucratic resistance. Nowhere was that urge to resist the court's audacity at forcing the creation of a national medical marijuana program greater than within the RCMP.
Nevertheless, the court's order was clear. The problem was, there was no bureaucracy in Ottawa set up to handle it. So the Department of Justice, which essentially handled the litigation - and the Federal response to it - took over initially by default. Despite the references to "Health” Canada, please remember that health in Canada is administered by the individual provinces, not by the Federal Government or “Health Canada”. The Ottawa bureaucracy of Health Canada is a mere mouse in size, compared to, say, the elephant that is the Ontario Ministry of Health.
So who formed the core of the initial Medical Marijuana Access Division of Health Canada? It was investigators in the RCMP. Yes. Really. The entire MMAD of Health Canada inherited its initial bureaucratic culture not from the people who inspect foods and drugs or test to see if the toys have too much lead paint. No, their bureaucratic culture was established by the RCMP. And they STILL think and act that way to this very day.
A Tale of Two Investigatory Processes
The American Federal Government initially tried the same tactic as would be, in part, adopted by the Canadian Federal Government’s Medical Marijuana Access Division at Health Canada. In fact, the initial American Federal response was far more extreme than Canada’s ever would be. The initial response was "Investigate, intimidate and, if needs be, Decertify any doctor who recommends marijuana to any patient".
In the USA, after Prop 215 was passed in 1996, the initial knee-twitch by Clinton's drug Czar, General Barry McCaffrey, was to announce that the DEA would go after and investigate doctors in California who dared to write a recommendation under the Compassionate Use Act (Prop 215). The DEA would ensure that any doctor who wrote a recommendation would lose his medical license - and hinted they might even go to jail. That was the tough talk from General McCaffrey - an old soldier and now Drug Warrior.
As you can imagine, that tactic scared the crap out of physicians in California. But from the word go, they weren't just going to sit back and take that crap from Washington either, so off to court they went. Conant v. McCaffrey (later renamed to Conant v. Walters, after McCaffrey's successor as drug Czar) was the class action litigation that McCaffrey’s policy spawned.
The Federal Government in the USA fought long, fought well and lost BIG. At virtually every stage.
The Feds lost on motions, at first instance and on appeal. The Federal case was doomed from the very start. Conant was ultimately ended in the Ninth Circuit Court of Appeals, which upheld the injunction preventing the DEA from doing any of the things they threatened to do. A communication between a doctor and his or her patient was ruled private and inviolate and the right of the patient to receive information - and the doctor to provide it - was held paramount. The DEA was permanently prohibited from making any inquiry or investigation of any kind that would interfere or intimidate a physician on Constitutional grounds.
The Conant case ended in 2002 at the Ninth Circuit and leave to appeal to the USSC was later denied. Even the Supreme Court that put Bush in power wouldn't hear the case, it was so clear and egregious an affront to the Constitution. Conant v. Walters lasted seven years, but the end of that case was essentially the real beginning of medical marijuana in the USA. That's why it took so long after 1996 for MMJ to even really get going in California. Most doctors in the USA were effectively scared out of giving recommendations until Conant v. Walters was finalized. There were exceptions brought about by parallel litigation (Conant was not the only case which addressed the issue), but overall, that's a fair characterzation of the evolution of the investigatory process concering MMJ from an American physician's perspective.
And that's the difference. In the USA, there is Conant v. Walters that prevents the government from making any inquiries at all. (We should all thank the Drug Policy Alliance for their intervention in that case, too.)
In Canada, the precise opposite has transpired, with predictable consequences.
In Canada, investigators from the MMAD routinely call physicians about the most innocuous Form B1 or B2 that they sign "just to verify". In Canada, because of the litigation that created the whole system to respond to the court Order, the MMAR is set up so that if the doctor signs, there is no discretion under the MMAR for Health Canada to refuse to issue a card. MMAD does not have any choice BUT to give an applicant an Authorization to Possess and a Personal Production License if the form checks out – that’s the way the law is set up. Not if the applicant has a criminal record, not if the applicant routinely smokes dope on his front lawn (or inside or outside of a bar, either)... not for any reason, really. If you meet the medical criteria, you get the ATP card. Period. But that doesn’t mean they are going to make it easy – and they surely don’t.
So why does it take so long to get your card in Canada? Because MMAD hassles the doctor, virtually each and every time the doctor signs one. MMAD investigators call the doctor's office and speaks to staff “just to verify”. They will even try to persuade the physician to lower the recommended limits, too. It's insane. A Canadian doctor never, ever, faces this sort of routine questioning regarding their medical advice in any aspect of their practice. Canadian doctors can - and do - routinely prescribe far more damaging amounts of highly controlled narcotics that nobody ever reviews. They do it every week. Many of them do it every day of every week.
But with MMJ, the "firm culture" in the MMAD, bequeathed by the RCMP staffers who started it, is to investigate a huge percentage of applications and to always personally call the doctor if the recommended limit is 5 grams or more per day.
It is intimidation of physicians and it works, brilliantly. Doctors talk to other doctors and the profession in Canada has reached the consensus that they don't WANT to be gatekeepers for this sort of thing anymore.
So increasingly, they are just not playing along. Canadian doctors routinely ignore patient requests. The doctors in Canada simply don't care. Complaints, confrontations with patients, letters and more complaints. Whatever the case, the doctors in Canada don't want the hassle of MMAD investigators calling their offices and questioning their medical advice – that’s the bottom line.
In the end, the number of physicians in Canada who will sign a Form B1 is exceedingly low - and Form B2 even lower. They have been threatened by their insurers, their medical association (in the case of doctors in Quebec) and by the MMAD (nee RCMP) into not signing a god-damned thing. And so the vast majority of Canadian doctors want nothing to do with it at all.
Nowhere is this more evident than in this one simple and telling fact: if you ask a Canadian doctor to sign a letter confirming a diagnosis for filing with a compassion club, the overwhelming majority of them will do it without question if you come even close to qualifying for some potential illness that might benefit from MMJ. You ask that same doctor to sign a Form B1 or B2? They refuse. That's because they don't want the damned call from "Health Canada" inquiring into the standards of their medical practice.
Please appreciate it is not simply a call that bothers Canadian doctors, because most of the legitimate compassion clubs will call their office as well. No, it's the nature of the call. The compasion clubs actually call only "just to verify", whereas the MMAD calls, in reality, to investigate. It is a distinction with a very large difference.
Put all of the above factors together and that's why the access to MMJ in Canada is so much harder than it is in the America states that have MMJ laws. This is so even though most of the American state laws concerning medical marijuana are, in fact, much more restrictive on paper than are Canada's MMJ laws.
Bottom line: when it comes to marijuana, doctors don't like LEO very much either.
___________________
There are a number of distinguishing features that have resulted in rendering a Authorization to Possess under Canada's MMAR to be much more difficult to obtain than it is to get a corresponding card in the 14 states that permit MMJ in the USA. Combined, those differences have resulted in vastly divergent approaches between the two countries.
1 - Legislative Illness Requirements: Under the initial Category requirements in Canada, MMJ was available in Canada only for a select group of conditions which are, generally speaking, vastly smaller in number than California. All other MMJ states in the USA, however, are more restrictive than Cali - and most of them are, in fact, more restrictive than Canada's.
So while this difference in illness requirements has something to do with the difference in approach, it's not the main reason for why it's so much harder to access in Canada. This is especially the case where under the new Category 2 system in Canada, illnesses not falling under Category 1 can still be treated with MMJ as long as a specialist agrees that conventional treatment is not appropriate.
2 - Difference in Consumer Driven Medical Culture: In the United States, doctors are genuine service providers who must build their patient base. Those patients are far more prone to switch doctors when they feel they aren't getting the care they deserve - delivered in the way they want. Doctors can compete in price (not overtly by professional regulation in most states, but they still do) but they very much compete in ranges of services they provide and in the quality of their "bedside manner". The overall business culture has affected the way that both doctors and patients see their relationship in the USA as compared to Canada.
The end result is that doctors in the USA are far more obliging to their patients than Canadian doctors are. In general, the difference is one of "patient as consumer" in the USA, vs “patient as parishioner” in Canada.
In Canada, because of National Medicare, it's a very different culture. People switch doctors very rarely. There is a shortage of doctors, so finding a new doctor is more difficult (not nearly as hard as many believe, but not terribly easy in a few areas) Doctors there have a relatively endless supply of patients. If you want to go somewhere else, there's another patient to fill your place in a very short while. So while they need patients as customers too - they don't need them so much that they feel they need to accommodate patient requests to the extent that doctors do in the USA.
In the end, Canadian doctors are GOD. In the USA, American doctors are merely SAINTS. Gods do what they want and say "no", often and capriciously; saints are relatively more accommodating.
This explains a small part of the reason why American physicians are more willing to sign a medical marijuana recommendation; however, it's mostly a cosmetic difference. The other reasons below have a far greater overall impact.
3 - Malpractice Insurance - In the USA, there are a number of malpractice insurance providers to physicians. Not everyone has the same policies and doctors often have some choice regarding who they will choose to be insured with. This means that American doctors have more power in the system. American doctors pay vastly more for malpractice insurance in the USA than they do in Canada (the premiums in Canada are so much smaller it’s not even remotely close) - but at least American doctors don't have to simply "take" whatever their insurer tells them without protest. Most American doctors have options, albeit, not as free-wheeling as say, drivers do for automobile insurance (it varies state to state).
So American medical insurers at least pretend to listen to their insured. To date, American insurers have not raised any significant issues over medical marijuana recommendations, since Conant v. Walters was decided in physicians’ favour.
In Canada, there is the Canadian Medical Protective Association as an malpractice insurer. That's it and that's all. The CMPA is the national insurer of all physicians and surgeons in Canada and there is no alternative. What they say, goes.
Despite the usual concerns over gouging that a monopoly would tend to indicate, doctors in Canada are, generally, extremely well served by the CMPA. Canadian doctor’s insurance premiums are vastly lower, notwithstanding an effective monopoly by the CMPA. The CMPA does not settle malpractice cases, almost never. They force almost everything but a handful of the most incredibly egregious cases of medical negligence you have ever heard of to trial as a matter of company policy. As a consequence, malpractice litigation in Canada is vastly lower than in the USA or even the UK. That's how beneficial the consequences have been from having one single hardest-ass-of-them-all malpractice insurer.
With the plusses come the minuses – and some trash talking attitude, too. After all, what the CMPA says, goes. The CMPA has taken the position that they do not have a duty to defend a Canadian doctor who signs a MMJ Form B1 or B2. They have provided a waiver for patients to sign, yes. However, in the event the patient sues anyways even after signing a waiver, the CMPA's official position right now is: "Doc - you are on your own. Hire your own lawyer. We aren't paying for one as you went outside the boundaries of your policy by signing that MMJ form."
Now, there has not been a single case of a doctor in Canada ever being sued for a MMJ approval - and if there was, I don't think that the CMPA would be excused by the courts from having a duty to defend, waiver or no. Still, the current position of the CMPA is definitely contributing to doctors in Canada refusing to sign a form B1 or B2, as opposed to the relatively accomodating attitude from insurers of American doctors.
4 - Quebec Medical Association: the position of the medical association in Quebec is extremely anti- MMJ. They are at the point now where the QMA is so antagonized by the MMAD, that they encourage all Quebec doctors to refuse to sign any form for any reason and will not hear complaints about it from the public. This is the primary reason that MMAR card holders in Quebec are so low a percentage of all Canadian MMAR card holders relative to Quebec's status as the second largest province in the country. The scheme for MMJ conceived of by the Canadian courts and implemented by the Federal Gov't is one that the QMA has decided it wants nothing to do with.
If the QMA was bound by the Charter, there is no doubt that litigation against it would probably be successful at this stage to force it to play by the rules. But as a non-governmental organization – the QMA is not bound by the Canadian Constitution's Charter of Rights and Freedoms. That is why MMJ is on the verge of essentially becoming a complete failure in the province of Quebec.
5 - MMAD's Investigation Procedures: Above all, this is the primary reason that MMJ is so hard to access in Canada relative to the American experience. It is a distinct difference between Canada's system and the American one. It is so great a difference that, as matters stand, it may eventually have to be changed with more Charter litigation in Canada.
Here's the problem. The Ontario Court of Appeal in R. v. Parker essentially ordered the Canadian Federal Government to implement a medical marijuana program, like it or not. Elements of the Federal Government knee-twitched in response and there was bureaucratic resistance. Nowhere was that urge to resist the court's audacity at forcing the creation of a national medical marijuana program greater than within the RCMP.
Nevertheless, the court's order was clear. The problem was, there was no bureaucracy in Ottawa set up to handle it. So the Department of Justice, which essentially handled the litigation - and the Federal response to it - took over initially by default. Despite the references to "Health” Canada, please remember that health in Canada is administered by the individual provinces, not by the Federal Government or “Health Canada”. The Ottawa bureaucracy of Health Canada is a mere mouse in size, compared to, say, the elephant that is the Ontario Ministry of Health.
So who formed the core of the initial Medical Marijuana Access Division of Health Canada? It was investigators in the RCMP. Yes. Really. The entire MMAD of Health Canada inherited its initial bureaucratic culture not from the people who inspect foods and drugs or test to see if the toys have too much lead paint. No, their bureaucratic culture was established by the RCMP. And they STILL think and act that way to this very day.
A Tale of Two Investigatory Processes
The American Federal Government initially tried the same tactic as would be, in part, adopted by the Canadian Federal Government’s Medical Marijuana Access Division at Health Canada. In fact, the initial American Federal response was far more extreme than Canada’s ever would be. The initial response was "Investigate, intimidate and, if needs be, Decertify any doctor who recommends marijuana to any patient".
In the USA, after Prop 215 was passed in 1996, the initial knee-twitch by Clinton's drug Czar, General Barry McCaffrey, was to announce that the DEA would go after and investigate doctors in California who dared to write a recommendation under the Compassionate Use Act (Prop 215). The DEA would ensure that any doctor who wrote a recommendation would lose his medical license - and hinted they might even go to jail. That was the tough talk from General McCaffrey - an old soldier and now Drug Warrior.
As you can imagine, that tactic scared the crap out of physicians in California. But from the word go, they weren't just going to sit back and take that crap from Washington either, so off to court they went. Conant v. McCaffrey (later renamed to Conant v. Walters, after McCaffrey's successor as drug Czar) was the class action litigation that McCaffrey’s policy spawned.
The Federal Government in the USA fought long, fought well and lost BIG. At virtually every stage.
The Feds lost on motions, at first instance and on appeal. The Federal case was doomed from the very start. Conant was ultimately ended in the Ninth Circuit Court of Appeals, which upheld the injunction preventing the DEA from doing any of the things they threatened to do. A communication between a doctor and his or her patient was ruled private and inviolate and the right of the patient to receive information - and the doctor to provide it - was held paramount. The DEA was permanently prohibited from making any inquiry or investigation of any kind that would interfere or intimidate a physician on Constitutional grounds.
The Conant case ended in 2002 at the Ninth Circuit and leave to appeal to the USSC was later denied. Even the Supreme Court that put Bush in power wouldn't hear the case, it was so clear and egregious an affront to the Constitution. Conant v. Walters lasted seven years, but the end of that case was essentially the real beginning of medical marijuana in the USA. That's why it took so long after 1996 for MMJ to even really get going in California. Most doctors in the USA were effectively scared out of giving recommendations until Conant v. Walters was finalized. There were exceptions brought about by parallel litigation (Conant was not the only case which addressed the issue), but overall, that's a fair characterzation of the evolution of the investigatory process concering MMJ from an American physician's perspective.
And that's the difference. In the USA, there is Conant v. Walters that prevents the government from making any inquiries at all. (We should all thank the Drug Policy Alliance for their intervention in that case, too.)
In Canada, the precise opposite has transpired, with predictable consequences.
In Canada, investigators from the MMAD routinely call physicians about the most innocuous Form B1 or B2 that they sign "just to verify". In Canada, because of the litigation that created the whole system to respond to the court Order, the MMAR is set up so that if the doctor signs, there is no discretion under the MMAR for Health Canada to refuse to issue a card. MMAD does not have any choice BUT to give an applicant an Authorization to Possess and a Personal Production License if the form checks out – that’s the way the law is set up. Not if the applicant has a criminal record, not if the applicant routinely smokes dope on his front lawn (or inside or outside of a bar, either)... not for any reason, really. If you meet the medical criteria, you get the ATP card. Period. But that doesn’t mean they are going to make it easy – and they surely don’t.
So why does it take so long to get your card in Canada? Because MMAD hassles the doctor, virtually each and every time the doctor signs one. MMAD investigators call the doctor's office and speaks to staff “just to verify”. They will even try to persuade the physician to lower the recommended limits, too. It's insane. A Canadian doctor never, ever, faces this sort of routine questioning regarding their medical advice in any aspect of their practice. Canadian doctors can - and do - routinely prescribe far more damaging amounts of highly controlled narcotics that nobody ever reviews. They do it every week. Many of them do it every day of every week.
But with MMJ, the "firm culture" in the MMAD, bequeathed by the RCMP staffers who started it, is to investigate a huge percentage of applications and to always personally call the doctor if the recommended limit is 5 grams or more per day.
It is intimidation of physicians and it works, brilliantly. Doctors talk to other doctors and the profession in Canada has reached the consensus that they don't WANT to be gatekeepers for this sort of thing anymore.
So increasingly, they are just not playing along. Canadian doctors routinely ignore patient requests. The doctors in Canada simply don't care. Complaints, confrontations with patients, letters and more complaints. Whatever the case, the doctors in Canada don't want the hassle of MMAD investigators calling their offices and questioning their medical advice – that’s the bottom line.
In the end, the number of physicians in Canada who will sign a Form B1 is exceedingly low - and Form B2 even lower. They have been threatened by their insurers, their medical association (in the case of doctors in Quebec) and by the MMAD (nee RCMP) into not signing a god-damned thing. And so the vast majority of Canadian doctors want nothing to do with it at all.
Nowhere is this more evident than in this one simple and telling fact: if you ask a Canadian doctor to sign a letter confirming a diagnosis for filing with a compassion club, the overwhelming majority of them will do it without question if you come even close to qualifying for some potential illness that might benefit from MMJ. You ask that same doctor to sign a Form B1 or B2? They refuse. That's because they don't want the damned call from "Health Canada" inquiring into the standards of their medical practice.
Please appreciate it is not simply a call that bothers Canadian doctors, because most of the legitimate compassion clubs will call their office as well. No, it's the nature of the call. The compasion clubs actually call only "just to verify", whereas the MMAD calls, in reality, to investigate. It is a distinction with a very large difference.
Put all of the above factors together and that's why the access to MMJ in Canada is so much harder than it is in the America states that have MMJ laws. This is so even though most of the American state laws concerning medical marijuana are, in fact, much more restrictive on paper than are Canada's MMJ laws.
Bottom line: when it comes to marijuana, doctors don't like LEO very much either.
