With the passage of Amendment Two to Florida’s Constitution of in November 2016, qualified physicians may now issue physicians’ certifications for the medical use of marijuana by individuals with debilitating medical conditions. The amendment’s passage has prompted numerous legal questions including those from businesses that employ and/or contract for the services of licensed healthcare providers.
This article addresses the question of whether the Florida Department of Health (“Department”) could discipline the licenses of physicians, nurses, or other healthcare professionals who use medical marijuana. The short, but qualified, answer to this question is yes. More specifically, current Florida Statutes, including those in Chapter 456, likely do not permit Florida licensed healthcare practitioners to use medical marijuana if they are actively employed in the field of healthcare.
The amendment restricts the use of medical marijuana through certain limitations including that “[n]othing in this section allows for a violation of any law other than for conduct in compliance with the provisions of this section”. Thus, while a Florida health provider may obtain certification from a physician that he/she has a “debilitating medical condition” that requires medical marijuana, Florida law still prohibits licensed healthcare providers from practicing with an impairment or while impaired. By definition, "impaired" and “impairment” includes the misuse or abuse of alcohol or drugs, or both, that could impact a practitioner’s ability to practice with skill and safety.
It can be argued that use of marijuana under a physician's certification is not a misuse of abuse of marijuana, but there is no definitive answer to the question posed in this article until the various boards (e.g. medicine, nursing, etc.) and/or the Department of Health establish written rules interpreting “impairment” pursuant to Chapter 456 with respect to medical use of marijuana by healthcare licensees.