Ethical and Legal Considerations for Caring for Patients Under the Influence of Medical Marijuana

By: Jessie Bekker, Burr & Forman, LLP

In 2021, Alabama became one of thirty-eight states to legalize the medicinal use of cannabis. Though Alabama has yet to license any providers to prescribe it, an interesting question is how the consumption of medical cannabis by a patient before an appointment could impact the ability to obtain informed consent for scheduled procedures and treatments. For example, is a person who takes some form of marijuana before a procedure considered impaired for the purposes of determining their ability to consent? Does the determination change if that person is under the influence of prescribed versus recreational marijuana (or any other substance, for that matter)?

Here are a few considerations to keep in mind when determining whether a patient who has consumed cannabis prior to showing up for his/her doctor’s appointment can be treated as scheduled—or should perhaps come back another day:

1. Determine whether the patient can coherently and meaningfully participate in their care. Fundamentally, determining whether a patient can provide informed consent to treatment comes down to whether that person understands their condition, the benefits of the proposed care plan, and the risks of obtaining and foregoing treatment. If a patient presents for care under the influence of medical cannabis or some other prescribed drug, consider whether that patient can play an active role in their care. Consuming drugs may impact informed consent if consumption results in impaired cognitive function. Therefore, if a patient’s condition leads to a negative answer to the above questions, consider postponing care or obtaining consent from a surrogate.
2. Consider whether a delay in care put’s the patient’s health at risk. Sometimes, patients present under the influence of drugs or alcohol, but their health requires urgent attention. If a delay in treatment has the potential to cause the patient’s condition to worsen, act on your best medical judgment. Per the American Medical Association, ask the patient’s surrogate, when available, to provide consent. Where neither the patient nor a surrogate can provide consent, initiate treatment and obtain consent from the patient or surrogate as soon as the opportunity arises. 
3. Reschedule non-emergent appointments. If a patient is impaired after consuming medical cannabis and presents to a scheduled appointment for non-urgent treatment, consider rescheduling the appointment. Additionally, consider speaking with the patient’s prescriber to determine at which amount the patient can safely consume medical cannabis without reaching impairment, and reschedule the appointment for a date when the patient, his/her prescriber, and the treating physician all agree that the patient can receive appropriate care.

Treating a person who is impaired presents issues regarding informed consent. Still, not all consumption of drugs, like medical cannabis, will implicate the patient’s ability to meaningfully participate in their care. As Alabama’s medical cannabis industry takes shape, these questions may arise more frequently. When making delicate determinations about a person’s ability to consent to care, work with that patient and their surrogate and/or other providers, where appropriate, to best meet the patient’s needs.

Jessie Bekker is an Associate at Burr & Forman LLP and practices exclusively in the firm’s Healthcare Practice Group. Jessie may be reached at (205) 458-5275 or jbekker@burr.com.