As lawyers, it’s our responsibility to uphold the law, but at the same time provide legal representation and advice to a client. In some cases, though, this can be tricky, particularly if the advice being sought goes against the law. We’re often faced with moral and ethical dilemmas, and sometimes it’s a tricky balance to get right.
As a criminal lawyer, I find I am in this position often. At Greenhalgh Pickard, we have a great team of lawyers, but we’re human too. We understand sometimes people become so passionate about something they forget about the legalities or don’t understand the consequences of the law and not knowing something is illegal is no excuse in our legal system.
Here’s a couple of recent cases which have raised ethical dilemmas.
A legal avenue for Medicinal Cannabis
I was recently asked to advice a client on how they could go about lawfully manufacturing or importing cannabis to assist people with chronic illness.
As most people would be aware, the use of medicinal cannabis has been approved in Australia and, more recently, the ACT approved the use of recreational marijuana. Medical trials of medicinal cannabis are currently underway to establish an evidence base for medicinal cannabis and see what results are for patients with a range of medical conditions, including chronic pain, cancer and epilepsy.
Currently under Australian law, the only avenue for a person who is not a medical practitioner to lawfully, manufacture, export and/or import Cannabis is through applying for and obtaining a Therapeutic Goods Administration (TGA) licence. The way to do this for a non-medical practitioner is by applying to be a Sponsor of ‘therapeutic goods’, in this case ‘Medicinal Cannabis’.
A person or company in Australia who provides the unapproved medicinal cannabis product for the treating medical practitioner to prescribe and the pharmacist to dispense is considered the sponsor of that product in Australia. In cases where the medicinal cannabis product is sourced from overseas, the sponsor may also be the importer of the medicine.
So, what happens when a client approaches us about how to access medicinal cannabis to assist a family member with a terminal diagnosis? The short answer is you must obtain a prescription from a medical practitioner and obtain the medicinal cannabis from a registered pharmacist, to do so otherwise is a criminal offence in Queensland and most other states in Australia.
I have represented many clients in the courts who have used cannabis unlawfully in order to treat various medical conditions for chronic and terminal illness.
A desperate parent
For example, a desperate parent gave cannabis oil to his five-year-old child to treat autism. The father only resorted to such extreme measures after seeking help from the medical profession but faced many hurdles in accessing treatment, the family in this situation had a small baby in the house and the father was very concerned with his son’s extreme volatile emotional behaviour and the consequences to his other small child. The father was charged and appeared in the Supreme Court and was sentenced.
The laws in Queensland since that case have been recently amended to remove some of the hurdle’s patients faced in accessing medicinal cannabis.
Treating terminally ill patients
A client in the District Court was charged with producing cannabis oil (tinctures) and distributing it (without a TGA licence) to terminally ill patients across Australia. His motivation was not for profit but to assist people with chronic pain relief and particularly persons with cancer.
Self-medicating
I have also represented many clients who have been charged with possessing cannabis they use to relieve pain or reduce symptoms of chronic illness.
In all the cases above where the client has pleaded guilty to the charge, they have been convicted and sentenced with differing outcomes depending on the circumstances of each case. The point is, until legislation in Queensland is amended to make possessing, producing and/or supplying cannabis lawful without the need for a prescription, the judges’ and magistrates’ hands are tied and have to implement the law as it has been enacted by parliament.
The Court will take into account a person’s individual circumstances on such charges but they must still convict and this will remain the case until the law has been changed by parliament to amend the current legislation and the law in relation to cannabis use.
Shane Ulyatt | Senior Solicitor/Associate Director