further the development of a smoke-free cannabinoid delivery system. The team also wrote: “We acknowledge that [at the present time] there is no clear alternative for people suffering from conditions that might be relieved by smoking marijuana.” Such patients could be treated as the subjects of individual clinical trials that would be overseen by a medical review board. Patients would receive marijuana to smoke under close medical supervision and only after being informed of their status as experimental subjects using a harmful drug delivery system. The results of these studies would increase scientific understanding of the risks and benefits of marijuana use, the IOM researchers contended.
The IOM researchers recommended pursuing two types of short-term (less than six months) clinical trials of smoked marijuana: for conditions that appear likely to be improved with such treatment and for patients with debilitating, otherwise incurable symptoms such as chronic pain or AIDS wasting. They did not recommend such trials to promote the smoking of marijuana but rather because such trials could help accelerate the development of a smoke-free cannabinoid delivery system.
While the Compassionate Use program for marijuana smokers now exists solely as a historical artifact, the medical necessity defense remains viable for some patients who treat their symptoms with marijuana. This defense originates from the common law principle that illegal actions are excusable or justified if they are taken to avoid even greater harms. Courts considering such cases must balance the interest of the individual patient against the government's interest in upholding the law.
The specific requirements to mount a defense of medical necessity for marijuana use vary from state to state. In most cases, patients must show that they used marijuana in order to avoid serious medical harm. To do so, the defense typically calls the treating physician or another medical expert to testify that marijuana relieves the patient's symptoms. The defense must also convince the judge or jury that the harm of breaking the law in question is less severe than the harm the patient would suffer if deprived of marijuana. Many courts also require patients to prove that no legal alternative treatment exists; this is often a major point of contention between the prosecution and defense in medical marijuana cases.7