Surprisingly little has been written on Florida’s medical necessity defense, although the Amendment 2 campaign to legalize medical cannabis prompted some renewed discussion of the doctrine. Still, medical necessity remains a barely examined and rarely applied legal concept in Florida. It could gain importance as barriers to cannabis use, both recreational and medical, continue to tumble throughout the country.
In the 1991 case of Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991), a Florida appellate court recognized that the common law defense of necessity may permit medical uses of marijuana. The court held that for the defense to be valid, a defendant must prove three elements:
1. That the defendant did not intentionally bring about the circumstance which precipitated the unlawful act;
2. That the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and
3. That the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.
Jenks involved the criminal prosecution of a couple with AIDS who grew marijuana to relieve their symptoms, including nausea. The appellate court found the defendants had proven medical necessity at trial, and therefore reversed their convictions. The court had no trouble finding each of the three required elements were satisfied. As the opinion notes:
1. The Jenks did not intend to contract their medical condition;
2. There was no treatment other than cannabis which could effectively relieve their symptoms; and
3. If their symptoms could not be controlled, the Jenks’ lives were in danger.
At a time when cannabis is gaining ever widening acceptance as a medicine throughout the country (even while Florida continues to treat it as an illegal substance), Jenks raises some important issues.
As to the first element, most patients, like the Jenks, do not intend to contract their illnesses.
And as to the third element, as more states recognize cannabis as a legal medicine (there are now 23 plus the District of Columbia), it becomes increasingly harder to make the case that patients with debilitating conditions should be denied access to an effective herbal remedy because of some countervailing “evil.”
That leaves the second element: whether the defendant could accomplish the same objective using a “less offensive” alternative to cannabis. What does this mean exactly? In Jenks, the couple’s doctor testified to the existence of a legal medication (Reglan) which is “a little more effective than marijuana” at alleviating nausea, but he also testified that it had to be administered intravenously in large doses, posing a risk of infection to AIDS patients. Thus, it seems fair to say that under Jenks, cannabis need not be the only treatment possible. The medical necessity defense may still be proven in cases where the alternative to cannabis has a substantial downside to the patient.
What kind and how much of a downside must be shown is not entirely clear from Jenks. But it is safe to say that proving this element of the necessity defense is much easier in 2015 than it was in 1991. For starters, there is now a large and expanding body of patients, caregivers, and medical professionals outside of Florida who may provide testimony as to the advantages of cannabis over other possible remedies. There is also a growing body of published research demonstrating the relative virtues of cannabis. For example, consider a recent Johns Hopkins study concluding that in medical marijuana states, the annual number of deaths from prescription drug overdose is 25 percent lower than in states where marijuana remains illegal. Given cannabis’s well-documented safety record (no deaths directly due to acute cannabis use have ever been reported), such research makes it supremely difficult to argue that the commonly prescribed alternatives for pain management are “less offensive.”
The longer the prohibition on cannabis persists in Florida, the more likely it is that cannabis patients will assert the medical necessity defense in the event of prosecution. And as time goes on, the likelihood of prevailing on such a defense will increase in any given case, given the accumulation and expanding availability of evidence showing the advantages of cannabis in contrast to alternatives. The availability of the medical necessity doctrine therefore presents the potential for de facto legalization of medical cannabis in Florida on a judicial, ad hoc basis. While such a possibility would bring relief to some patients in the short-term, it is plainly deficient as a long-term policy outcome. Litigation is an expensive and uncertain process ill-suited to determining a subject as critical and complex as the regulation of medicine for patients with debilitating conditions. Such regulation should only proceed legislatively, as has occurred in the 23 states which have already approved medical marijuana.
The uncertain potential of the medical necessity doctrine should spur the Florida legislature to follow suit.
— By Jared H. Beck