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Judge Orders Illinois to Add PTSD to List of Approved Medical Conditions For Medical Marijuana

A medical marijuana pilot program launched early 2014 in Illinois allows registered patients to obtain marijuana for medicinal purposes if their ailment is on the State’s list of approved medical conditions. The program also allows Illinois residents to petition the Department of Public Health to add debilitating medical conditions that aren’t already on the list.  An advisory board consisting of doctors, nurses, patients and advocates recommends which medical conditions are added to the list. Once the recommendation is made, the Director of the Department of Public Health will have the final say whether to approve or deny the Board’s recommendations.

Iraq war veteran Daniel Jabs is suffering from post-traumatic stress disorder (PTSD). Jabs petitioned the Department to add PTSD to the list of recognized medical conditions. The advisory board unanimously approved the addition of PTSD to the list of approved medical conditions and, according to the Department’s rules, the medical condition should have been either approved or denied based on the advisory board’s recommendation alone. However, it was denied based on other reasons.

Judge Has Authority to Add PTSD to Life of Approved Conditions

How is it that the judge had the authority to order the health department to add PTSD to the list of medically approved conditions that warrant the use of medical marijuana? Judges wouldn’t typically have the authority to “add” items like this to an already existing law, but that isn’t really what happened.  It’s the traditional system of checks and balances.

The Department of Public Health will consider petitions, which includes giving public notice and holding a public hearing. Check—this was done.  Petitions need to be either approved or denied within 180 days.  Check—this was done, but wait not so fast.  While the decision ultimately rests with the Department, their decision is subject to judicial review.  Military

Judge Cohen didn’t randomly order PTSD to be added to the approved list. Instead, he heard the lawsuit filed by Jabs, interpreted the law and, ultimately, found the process for which medical conditions are added to the approved list had been violated. In other words, Jabs’ fundamental right to due process of law was violated. The Judge simply ordered the Department to correct it.

The Medical Cannabis Advisory Board took the appropriate steps and approved PTSD, but it was Director Nirav Shah, despite the Board’s evidence and findings, who denied approval after the Board’s recommendation. Judge Cohen ruled that Shah inappropriately conducted his own investigation and used standards not within the program’s (nor the Department’s) rules.  This, Judge Cohen contends, violated Jabs’ due process rights, but was also in direct contradiction to the plain language of Department rules.

According to Judge Cohen, the “Director’s legal duty was to review the evidence, review the advisory board’s recommendations based thereon and render a final decision accepting or denying the proposal…Instead, Director Shah engaged in a private investigation, hidden from public view and more importantly, hidden from the parties, and arrived at his conclusion based thereon. This process was constitutionally inappropriate.”  The Judge gave Illinois 30 days to add PTSD to the list of qualifying conditions and scheduled a follow-up hearing in order to ensure compliance.

Since the statute gives the judiciary the power to review, Judge Cohen was within his authority to review and issue an order based on his findings. It would, however, not be within judicial authority to remove any medical conditions unless the process for which it was approved was in direct contradiction to the Department’s own rules.

Could judges in other states have the same authority? Definitely.  Just with any other law, the judiciary has the power to hear cases and interpret law, but each state will have their laws crafted in a different way that may lay out different procedures. Courts in other states could follow suit so long as they are interpreting laws and not creating laws.

Ashley Roncevic

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