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BWEWG ruling allows cannabis cultivation for self-treatment
If seriously ill patients depend on self-medication with cannabis, they can be allowed to grow their own drug on a case-by-case basis. This applies at least when the intake of cannabis leads to a significant relief of the symptoms and the patient is not as effective and affordable drug available, the Federal Administrative Court in Leipzig ruled on Wednesday, April 6, 2016 (Ref .: 3 C 10.14 ).
As a result, the Federal Institute for Drugs and Medical Devices (BfArM) was obliged to allow cannabis to be grown on its own accord to a 52-year-old multiple sclerosis patient. Already 16 years ago, the man from North Rhine-Westphalia had made an exceptional request to the authorities to grow his own hemp plants with the cannabinoids (THC) contained therein.
For self-therapy allowed: cannabis. Image: Eric Limon - fotolia The patient filed suit against the refusal decision issued in 2007. He could only alleviate the symptoms of his illness considerably with cannabis, which he has been taking since 1987. There are no alternative medicines for him.
In January 2005, a criminal court acquitted him of the allegation of unauthorized possession and cultivation of narcotics. His actions are justified because he has no alternative therapy available.
In the administrative court proceedings, in which the plaintiff wanted to force the permission of the cannabis-own cultivation, he stated that a special permission for the purchase of so-called medical hemp over the pharmacy for him for reasons of cost out of the question.
According to Oliver Tolmein, attorney for the plaintiff, more than 500 people in Germany could currently buy cannabis at the pharmacy due to a special permit from the Bundesopium office. The health insurance companies would not cover the costs - depending on need in the amount of 700 to 2,000 euros per month - but not. At present, there is a bill of the Federal Ministry of Health, according to which patients cannabis flowers should also get prescribed on prescription.
The Federal Administrative Court now approved the cannabis home-grown in exceptional cases as well as before the previous instances. The treatment of the seriously ill plaintiff with home-grown cannabis is here in the "public interest". Because taking the hemp plant "leads to a significant relief of his symptoms". An alternative, equally effective and affordable drug does not exist.
The purchase of medicinal hemp in the pharmacy excreted here for cost reasons also. The applicant can not finance it with his invalidity pension. To force the health insurance with a complaint before the social courts to the assumption of costs of the medical hemp, was not reasonable.
The plaintiff has also secured his apartment in such a way that no unauthorized persons can access the self-grown cannabis plants, the Leipzig judges made clear. The safety and control of the narcotics traffic is guaranteed. Abuse by the claimant himself also does not exist. Because he has years of experience in cannabis self-therapy in terms of effectiveness and dosage. Cultivation and therapy would also be under medical supervision.
According to the Federal Administrative Court, the exemption to self-cultivation was "legally prescribed in view of the right to respect for physical integrity enshrined in the Basic Law, so that the discretion opened up to the authority was reduced to zero".
In a ruling dated 11 February 2015, the Federal Constitutional Court had at least indirectly endorsed the cultivation of cannabis for critically ill pain patients (Ref .: 2 BvR 1694/14, JurAgentur report dated 4 March 2015). Thereafter, a seizure of hemp plants may be disproportionate if the patient can not pay the medical hemp from the pharmacy.
In that case, a pain patient with cancer had received permission to buy medicinal hemp from the pharmacy. Since he could not afford this, he grew his own cannabis without permission. He informed the prosecutor and police by self-report. His home was searched and 21 marijuana plants confiscated.
The Federal Constitutional Court ruled that the search and seizure were disproportionate. The inviolability of the apartment of the pain patient had been unnecessarily violated. The district court did not deal with the situation of the man. He also could not have been expected to bridge the time until a final decision on the cannabis self-cultivation "as an unaided pain patient". (FLE)