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Protecting Yourself When Offering Cannabis Education 

Andrew Subin of Vermont Cannabis Solutions

For this newsletter, I was asked to address the question “What can cannabis nurses do to best protect themselves when offering online and virtual education about cannabis therapeutics.” This article will attempt to answer this question.

Criminal Law.
At the outset, the question about how cannabis nurses can best protect themselves begs another question: protect themselves from what? First, let’s discuss criminal law. As we all know, cannabis containing more than 0.3% delta-9 THC is still a federally controlled substance. This is also true in many states. So as a preliminary question, one might ask: can giving education or advice about cannabis violate any criminal law? The answer to this question is no. Talking about cannabis, educating about cannabis, even suggesting to someone that they try cannabis as a medicinal remedy, these things all constitute constitutionally protected free speech. Criminal drug laws prohibit delivery of a controlled substance, and in many cases they prohibit a conspiracy to deliver controlled substances. If you are not handing out cannabis, or helping to arrange the purchase and sale of cannabis, then your cannabis counseling does not violate any criminal laws.

Your Nursing License.
As a nurse, you really don’t need to worry about criminal law if all you’re doing is giving advice or educating patients about the possible benefits of cannabis. But what about your nursing license? Could offering online education about cannabis jeopardize your nursing license? As you know, there are rules specifying how and when nurses can prescribe medication. Prescribing medication in violation of the nurse practice rules could jeopardize your nursing license. However, educating people and discussing the possible benefits of cannabis is not the same as prescribing medication. This type of consultation without prescription of medication is within your prerogative as a nurse, and is not a risk to your license.

If you have prescribing authority in your jurisdiction, even better. The National Institutes of Health has developed a checklist to determine whether you should recommend psychoactive cannabis to a patient. This checklist includes things like :

  • Documenting that conventional medications failed to treat the patient’s ailment.
  • Getting the patient's signed informed consent regarding the medical risks of the use of marijuana.
  • Assessing the risk of drug abuse for the patient, including evaluating the patient’s use of illegal drugs.
  • Following up with patients who use smoked marijuana as a medical treatment, including pulmonary function testing, evaluation of immune status, and the presence of any superadded infection.
  • Assuring the standardization of the THC potency content of the marijuana to be considered for medicinal use and whether it is free of microbial contaminants.
  • Having demonstrable knowledge of the physiologic effects of marijuana, its side effects, and its interaction with other drugs before prescribing it.

The full text of the NIH standards can be found here.

To me, these NIH recommendations are far too limited, and would prevent the use of cannabis in situations where it should not be precluded. (For example, why should you have to be convinced that no “conventional” treatments are effective? If cannabis is the most effective treatment, why not prescribe that first?). However, it is a good idea for you to be familiar with these standards to be able to articulately justify your process for recommending medical cannabis, if necessary.

For our purposes today, it suffices to say that educating, counselling, and giving advice is not the same as prescribing cannabis, and that even prescribing cannabis can be done within the bounds of your nursing license, so long as you follow the rules of your state as well as any state and federal guidelines. So long as you are knowledgeable about the cannabis plant, and accurately inform the patient about the risks and benefits of cannabis, cannabis education and advising will not jeopardize your nursing license.

3. Law Suits.
Let’s also look briefly at protection from law suits. In our culture, everyone loves a law suit. Is there any chance you could get sued by someone for whom you recommended psychoactive cannabis? While there is always some risk of a law suit in this county, the risk here is extremely low because by all accounts, cannabis products are safe. There has never been a cannabis overdose death, and while over-consumption can cause some temporary unpleasant side effects for some people, these effects are not long-lasting. So it is unlikely that cannabis use, whether prescribed or not, will cause damages giving rise to a law suit.

That being said, there are some concrete things you can do to protect from the risk of civil law suit. First, your clients should be signing or virtually acknowledging a waiver. This waiver should state (at a minimum) that 1. You are not prescribing cannabis, 2. That they will comply with the laws of their state when they obtain and consume cannabis, and 3. That they hold you harmless for anything that might result from their use of cannabis. This should be presented in a written waiver to be signed by in-person patients, or on a click-through website page.

Finally, you can protect yourself from civil lawsuits with insurance. This may be covered by your current malpractice insurance. If not, there are cannabis insurance companies writing policies in a variety of areas in the cannabis space. Getting insurance to cover your cannabis consulting might make sense depending on how affordable it is.

4. Best Practices.
The best way to protect yourself as a cannabis nurse is to be really clear about what it is you are and are not offering. If you are advising, teaching, and consulting, you should be clear that you are not prescribing cannabis. If you are allowed to prescribe cannabis as a nurse practitioner in your state, you should be clear about what the cannabis is being prescribed for, and you should follow state or federal guidelines for a cannabis prescription. It is a good idea (and relatively inexpensive) for you to have a waiver for in-person clients to sign, and a click-through terms and conditions page for visitors to your website to “sign.” Finally, you should review your malpractice insurance policy to see if you’re covered for cannabis counseling. If not, you should think about contacting a cannabis insurance company, to find out about adding cannabis counseling liability insurance to your existing policy.

Andrew Subin is a founding partner of Vermont Cannabis Solutions. Vermont Cannabis Solutions was founded in 2018 to represent Vermonters in the booming cannabis sector. VCS will be the center of Vermont’s cannabis industry, the hub of a network of innovators working to make Vermont’s cannabis industry one of the strongest in the nation.

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