Legalising medicinal cannabis: Victoria shows the way
Victoria’s legalisation of medicinal cannabis may provide a model for Australia and the world, says Dr Ian Freckelton QC
With the Medicinal Cannabis Bill 2015 passed in Parliament last night, Victoria has become the first state to legalise the use of medicinal cannabis.
Children with severe epilepsy will be the first to gain access to medicinal cannabis from 2017 under Victoria’s scheme, and an Office of Medicinal Cannabis will oversee extension of the scheme to other conditions, as emerging research evidence justifies such a step.
The Access to Medicinal Cannabis Act 2015 (Vic) (the Act) introduces for the first time in Australia a legislative scheme which allows medical practitioners to authorise patient access to medicinal cannabis and for pharmacists to dispense it.
The legislation was passed by the Victorian Legislative Assembly on 11 February 2016. On 24 March 2016 it was amended in the Legislative Council, amongst other things, to remove the cultivation and manufacturing licensing regime, which has now been made the subject of Commonwealth legislation that makes changes to the Narcotic Drugs Act 1967 (Cth) allowing the licensed cultivation and manufacture of cannabis throughout Australia for medicinal purposes.
The Commonwealth and Victorian legislation have been introduced subsequent to a reference undertaken by the Victorian Law Reform Commission (VLRC), reviewing and reporting on options for changes to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and associated regulations to allow people to be treated with medicinal cannabis in exceptional circumstances.
The VLRC was also tasked with making recommendations for any consequential amendments that should be made to relevant legislation. I was the VLRC’s Specialist Commissioner who ran the reference.
An Issues Paper published in March 2015 elicited 99 written submissions, and the VLRC provided the Attorney-General with its Final Report which was tabled in Parliament in October 2015.
The VLRC recommended that medicinal cannabis be made available in exceptional circumstances in non-smokable forms (such as oils, tinctures and capsules) for patients suffering severe symptomatology arising from five conditions:
Epileptic conditions (especially paediatric conditions such as Dravet syndrome and Lennox-Gastaut syndrome);
Multiple sclerosis (in respect of relief of contractures and the pain from them);
Nausea, vomiting and wasting caused by cancer or HIV, or their treatment (such as chemotherapy);
Acute pain from terminal conditions such as cancer and AIDS; and
Chronic pain (for which otherwise high levels of opiate medication are administered).
Upon tabling the report in Parliament in October last year, the Andrews Government announced that it proposed to implement 40 of the VLRC’s recommendations immediately and the remaining two in due course.
The Health Minister, Jill Hennessy, told Parliament in her Second Reading speech that: “… parents should not be forced to choose between breaking the law and breaking their child’s heart. They deserve better. The Access to Medicinal Cannabis Bill will relieve people’s suffering and change lives across this state.”
The Bill implements both the spirit and the specific recommendations in the report by the VLRC.
Children with severe epilepsy will be the first to gain access to medicinal cannabis from 2017 under Victoria’s scheme.
The VLRC report and thereafter the Victorian Government reject the relatively unregulated approach of states like California and Colorado in the United States, and learn from the experiences of Canada where there have been multiple legal challenges in to the appellate courts based on the Canadian Charter of Rights and Freedoms, and where the different version of Canada’s medicinal cannabis scheme have not effectively secured the support and participation of mainstream medical practitioners.
Medicinal cannabis is not a panacea but it does have the potential to provide a constructive additional pharmacological option for persons with very serious health conditions.
By contrast, the hallmark of the Victorian scheme is that its gradualist and evidence-based approach forges a path of compromise with the medical profession that has not actively opposed the initiative. It also gives a fillip to further well-constructed research into the beneficial effects, as well as side-effects, of cannabis when it is used for medicinal purposes.
The scheme treads the line between extending compassion where the evidence base provides reasonable clinical ground for such an approach, and avoiding the exuberance that has led some cannabis advocates to generate unfounded expectations of clinical efficacy.
Medicinal cannabis is not a panacea but it does have the potential to provide a constructive additional pharmacological option for alleviating the pain and distress caused by some medical conditions. For instance, it provides an alternative to opiate-based medications that carry a range of side effects, including risks of respiratory depression and overdose.
The Victorian Bill avoids an approach which would have patients attempting to grow their own cannabis and self-medicate without the supervision of their doctors. It is a constructive development in medico-legal reform that may well provide a template for both national and international emulation.
Momentum is now growing for the medical use of cannabis. This is not confined to the state of Victoria. On 29 February 2016 the Queensland Government released the Public Health (Medicinal Cannabis) Bill 2016 (Qld) for public discussion, before proposed introduction of the Bill into Queensland Parliament in April 2016. It bears many features in common with the Victorian Bill.
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