Cannabis in Court 2019

When I once tried to participate in the organization of a Health Consumers Union in The Bronx, I more or less had my head handed to me. That was 1980. Nearly four decades later, I fear I am about to witness a similar scenario. The consumers of Medical Cannabis in Israel have appealed to the High Court to stay a proposed and half-implemented “Reform” that the vast majority of this group fear will have catastrophic impact on their health and well-being. I wish them well and composed one of the professional briefs for the appeal, but after the initial hearing I am deeply pessimistic.

The facts are actually rather easy to understand. Israel introduced a rather haphazard medical cannabis program in 2009. One of the initiators was none other than the Defense Ministry. In 2006 Israel was dragged into the Second Lebanese War. Personnel and equipment were deficient, but what made things worse for our soldiers was the lack of ability to mount an effective offense. Soldiers were trapped, ambushed, surprised, and many developed Complex PTSD. In the ensuing years many were unable to return to productive civilian life and found themselves self-treating with cannabis just to be able to sleep, and then being criminalized by the State that sent them into battle. Some of the first consumers of medical cannabis in 2009 were from this population.

When the controversial founder of this program resigned, the Ministry of Health, then under the auspices of Minster Yael Gurman, created IMCA – the Israel Medical Cannabis Authority. One Yuval Landschaft (he holds a masters degree and refers to himself as Magister) became C.E.O. and Dr Michael Dor, a Family Practitioner became chief medical officer. IMCA started to create what on the surface looked like order. Specific indications were delineated, and specialists in the fields that treat such indications were enabled to request a license for a patient. Over the years indications were increased and the amount of Suppliers of the medical herb increased from one to eight.

In practice the function of IMCA was troubled by the following (outrageous) failings:

  • The decision to grant a license or not was determined by a physician (IMCA) who never examined the patient.
  • The determination of the dose required by a patient was determined by a physician who never examined the patient, and felt fully entitled to overrule the treating physician. This was justified by a supposed concern lest the “Dangerous Drug” leak to the street. The Assistant Minister Listman declared on July 27, 2015 that “leaking” was a police problem rather than a medical one. When I suggested that dosage should then be determined by the treating physician, like all other medical practice, my head was immediately and unceremoniously handed to me.
  • IMCA made up with absolutely no basis in evidence a Schedule 106 which restricted cannabis to a secondary position, only after IMCA was satisfied that every “conventional” treatment had been tried and failed. Pain patients, for example, had to go through dangerous and addictive opiate treatments before they could receive non-addictive and effective, side-effect free treatment. PTSD patients could not apply until thay had been ill for three years, something no PTSD specialist find acceptable. Soldiers coming out of the last round in Gaza in 2014 had to suffer mental strain and loss of function for three precious years before the State that sentthem to Gaza would allow effective treatment. And so on.
  • Aside Schedule 106, Landschaft et Dor composed the infamous “Green Book”, a product of absolutely no scientific value that claimed based upon zero evidence to “rationalize” the kinds of cannabis that different indications required. The “types” were not natural products but rather a measured amount of CBD and THC, regardless of natural strain. IMCA has consistently held the outrageous view that the effect of cannabis is based solely upon the concentrations of the two chemicals that have been well characterized and studied. IMCA created the illusion that this is “scientific” just because it is orderly. Nothing could be further from the truth. Many patients, perhaps nearly all, find that different strains with equivalent CBD and THC strengths affect them differently. Alas, this FACT is not understood, and by IMCA logic is not a FACT just because it is not understood. Of course, IMCA has made no effort whatsoever to try to understand the FACT better. Apparently, it is quite the inconvenient FACT.
  • I said “perhaps” because actually “medical” cannabis was never allowed to become medical. When I treated PTSD patients and inquired into my role in learning which straines were effective for which clients, I was abruptly informed that there were some 80 strains, a number well beyond the ken of a physician who had to learn several thousand agents in pharmacology. So most physicians were encouraged to leave the actual choice of strains between consumer and supplier. Some suppliers employed exceptional nurses who became experienced, but to my knowledge absolutely no research into differential treatment was ever allowed. It was only when I strated treating children with autism that I took it upon myself to pain attention to the details of the treatment, and that is what made it possible for me to write one of the briefs against the “Reform.”
  • Magister Landschaft unilaterally and with no process disallowed absolutely all licenses for consumers to grow their own cannabis. This cruel act interfered with the rehabilitation of those clients who were licensed to grow for themselves and made this agronomy part of their rehabilitation. Landschaft brooked no appeal for this absurd decision and in one instance actually argued with a physician about the details of rehabilitation, something that his “Magistership” is not licensed for.
  • Finally, the logistics of applying for a license were enough to make most physicians and many customers abandon the project. An arcane computer from had to be figured out and filled out, and sent to IMCA who ignored it. Then the form had to be printed and hard-copy signed and faxed to IMCA where it would get lost. You had to call IMCA to insure the fax was not lost, on a phone line whose wait time was often in excess of three hours.

The reader who has been imagiing what kind of reforms this absurd system could use is in for a shock. True, not a complete shock. The computer (it is 2019) has been fixed and receives the form directly. That must have taken a split-second of high-tech attention.

But the rest is nothing less than shocking. IMCA has now made their psudo-scientific nonsense into a man-made fact. There are no  longer any strains of cannabis. Man has miraculously bested Nature by wresting the secrets of CBD and THC and now doctors will prescribe these units only. Untidy Nature has been cleaned up, and all the strains of cannabis with equivalent CBD and THC strengths are now ground up together (I kid you not) into a mixture where you get just the right CBD and THC (for which IMCA has created the doses based on no evidence). IMCA has trained a bunch of physicians to be loyal to Schedule 106, in other words to withhold cannabis until lots of drugs have been administered). These physicians and only these physicians can write 12 months of “prescriptions” – specifying CBD and THC as if there is any base for this, oh, and by the way never allowing more than 40 grams per month, the latest Landschaftian invention. This is based on information that a great many consumers indeed depend upon more than 40 grams per month.

Add to this that the monthly cost for (tidied up) plant mixes will be more or less doubled for most clients, that the quality of what the pharmacies have had to offer is outrageously low according to most reports, and consumers who have finally found what helps them have to start all over again. “Reform” has achieved a new meaning!

Let me flesh this out. A 10 year old child with autism has found relief from horrible and dangerous daily attacks of frustration with a combination of an oil containing 30% CBD and 1.5 % THC. The first such oil was ineffective but the second “strain” worked well. The child has stabilized with 8 drops of this oil three times a day. That 24 X 30 = 720 drops a day. At 20 drops per 10 gram bottle, he needs four bottled a day. Currently that costs 370 NIS plus shipping. As I renew his license today, he is now a reformed consumer. The oil he has been taking in now absolutely unavailable. Just as of today, he can start to be “reformed” with a new oil with which he (and I) have no experience, which happens to be 11%. So he will need 12 bottles a month. Schedule 106 will not brook this, but if it did, the new price will be more than 200 NIS per bottle, so he now has to shell out of pocket 2400 NIS every month. The Sick Funds of course do not participate in subsidizing plants (guffaw invited).

Pretty obvious why consumers are out of sorts. The protocol of yesterday’s first hearing makes me pessimistic. Here are the highlights of the State’s response to the appeal:

  • The State has not produced ANY medical opinions supporting the scientific validity of the reform.
  • The State issue a more than 100 page defense the day before the hearing, so the appealing party had to ask for an additional week to prepare a response.
  • The State claims that IMCA is a world-famous leading authority on medical cannabis, and “many” (no details) countries have come to learn the Israeli way in the Green Book.
  • The fact that absolutely no country runs medical cannabis the way Israel’s “reform” does is just evidence that Israel is a world leader.
  • Consumers have had ample time over the years to address the Reform so there is no justification in a High Court appeal at this late date. The Reform is well under way [it was made effective by Landschaft with no notice to anyone a few weeks ago] and the appeal would move things backwards rather than forward.
  • The majority of consumers are not represented in the appeal, so just assumed they love the Reform.
  • There is a mechanism in IMCA for insuring that any consumer impacted negatively by the reform has appeal. Justice Melzer seemed a bit incredulous that IMCA could handle 30,000 appeals when they barely know to pick up the phone.
  • By the way, we fixed the computer.
  • Since cannabis is a Schedule 1 Dangerous Drug in Israel, the State’s regulation is administrative so medical cannabis is not really medical, and medical opinions about welfare of consumers is not pertinent.
  • High Court Vice-President Melzer, presiding, ruled that there is no issue of human experimentation involved, an area of self-proclaimed expertise.
  • The one physician present at the hearing was not allowed to speak, because her written opinion had been submitted and read.

Can a Court rule that the Ministry of Health has been practicing medicine in treating nearly 50,000 Israeli citizens with medical cannabis? If the Ministry is practicing medicine, then it has to adhere to basic standards of medical practice, such as  continuity of care, refrain from arbitrary changes stemming from considerations other than patient welfare, strive to attain evidence-based valid evidence for the effects of interventions, some kind of access to patient participation and advocacy, and surely Primum Non Nocere.

However, it is abundantly clear that IMCA does not in any way see itself as practicing medicine. The “Reform” has no medical justification and is undoubtedly harmful. No medical opinion was presented in its defense.

Just a moment. The State creates a medical authority (the M in IMCA) which regulates dispensing a medically effective agent (albeit dangerous drug in some other sphere) for years to disabled people from whom other medical treatment is ineffective, but it is not practicing medicine because the effective agent is a PLANT?  Therefore consumers are not entitled to have the State adhere to basic principles of medical practice? Their treatment can be abruptly and arbitrarily changed and their well-being can be damaged, even dangerously so, because cannabis is a PLANT?

See why I am pessimistic? The court has to rule accordingly to law, and what law (logic and common sense and simple human decency aside) defines IMCA as practicing medicine if IMCA says it is not? Actually IMCA is claiming that only via the Reform will they be practicing “medicine” by treating cannabis as a medicine, not a PLANT. That seems to be much more important than hurting a whole bunch of folks.

What could the court rule? I think the court could reasonably argue that the moment IMCA issued a license for medical cannabis to a consumer who needed it, the State entered into a tacit doctor-patient contract. Since the consumers are all by definition at least 30% disabled (a condition for applying), they are clearly the dependent party in this contract. Therefore IMCA cannot deviate from strict adherence to medical responsibility, and the fact that it has been outrageously negligent of such responsibility all along is hardly a justification for making matters worse. Everybody knows that patients are afraid of IMCA and keep their complaints to themselves lest their medical treatment be arbitrarily disrupted. The “Reform” is just another example of the State running roughshod over patients’ needs and rights. The Reform has to be stopped and a deep Inquiry into IMCA conduct requires immediate attention. (The State Comptroller had a lot to say about this recently).

Will the court go the whole nine yards? That is where I am pessimistic.

About the Author
Alan Flashman was born in Foxborough, MA, and gained his BA from Columbia, MD from NYU, Pediatrics, Adult and Child Psychiatry at Albert Einstein. He has practiced in Beer Sheba since 1983, and taught mental health at Hebrew University, Tel Aviv University and Ben Gurion University. Alan has also edited readers on Therapeutic Communication with Children (2002) and Adolescents (2005).
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