Germany: Federal Administrative Court paves the way for medical use of cannabis
The Federal Administrative Court of Germany paves the way for certificates of exemption for the medical use of cannabis.
In a ruling dated 19 May 2005 that was made public this week, the Federal Administrative Court indicates that the Federal Institute for Pharmaceuticals and Medical Products cannot globally deny applications for the medical use of cannabis. It confirmed the decision of the Federal Constitutional Court (German High Court, Bundesverfassungsgericht) of 20 January 2000 that medical treatment of ill people is of public interest and that therefore a certificate of exemption according to the paragraph 3 of the German Narcotics Act is possible in relation to therapeutic use of cannabis. The ruling pertains to the case of a 56 year old advocate suffering from multiple sclerosis who benefits from cannabis medicinally.
In December 1999, eight patients had registered complaints before the Federal Constitutional Court and demanded permission for the medical use of otherwise illegal cannabis. The court did not accept the complaints for decision and pointed out that the applicants had not exhausted all available legal avenues. They could previously made application to the Federal Institute for Pharmaceuticals and Medical Products. The German Narcotics Act allows the use of illegal drugs only for "scientific and other purposes of public interest". In their statement the judges of the Federal Constitutional Court wrote: "The medical supply of the population serves a public purpose that may justify an approval in individual cases."
Subsequently, more than 100 persons submitted applications that were defeated by the Federal Institute for Pharmaceuticals and Medical Products on the grounds that the treatment of a single patient did not represent a scientific or other purpose of public interest. Supported by the German Association for Cannabis as Medicine, a number of patients then sued the Institute before the Administrative Courts.
In its ruling, the Federal Administrative Court wrote: "The medical supply of the population is not a global act referred to a mass of undifferentiated subjects. Rather, it always results from the supply of single individuals that have a need thereof." The Federal Administrative Court emphasised the high value of the right to life and physical integrity based on the constitution (Grundgesetz). "The right to physical integrity cannot only be impaired when governmental organs themselves create an assault, or when their action cause pain. The protective boundary of the constitution rather is also reached if the government takes actions that inhibit what illnesses are cured or alleviated, and if physical suffering is continued and adhered without affliction as a result."
Physicians are not currently allowed to prescribe cannabis. However, that would "not prevent them from looking after and following a patient medicinally, who on the basis of a permission according to § 3 of the Narcotics Act uses such means him- or herself in the course of a pain therapy." With regard to the argument, patients could be prescribed dronabinol (THC) by a physician even if this drug is expensive and is not always paid by health insurance, the Federal Administrative Court wrote: "The reference to a medical drug that is neither readily available nor affordable by normal citizens is no alternative to achieve the public interest in the use of cannabis to combat illness."
Sources:
Ruling of the Federal Administrative Court of 19 May 2005
