Appeals panel: Judge correct to find IL wrong to deny CPOP as OK condition for medical marijuana

By Glenn Minnis | Jun 6, 2017

A state appeals panel has agreed a Cook County judge was right to find state regulators were wrong in denying a request to add a condition known as chronic post-operative pain to the growing list of conditions for which medical marijuana can legally be prescribed in Illinois.

But the three-justice panel of the Illinois First District Appellate Court said Cook County Judge Neil Cohen had erred in ordering the state to essentially immediately add the condition to its list of approved medical marijuana uses. 

Justice Maureen E. Connors authored the May 22 opinion, with justices Sheldon A. Harris and Mary L. Mikva concurring. 

An unnamed plaintiff, identified only as John Doe, first petitioned the Department of Public Health in 2014 seeking to have the ailment, known by the acronym "CPOP," added to the list of "debilitating” conditions under the Compassionate Use of Medical Cannabis Pilot Program Act.

The act, which distinguishes between the use of medical and non-medical marijuana use and strips away all forms of criminality in instances of the former, first became law in early 2014.

In March 2015, the plaintiff sought to have the drug so designated, claiming that he was suffering CPOP symptoms stemming from excessive nerve damage following foot surgery. The plaintiff’s claims were backed by his doctor, who added that he had attempted to treat his chronic pain with opiates, anti-convulsant drugs and anti-depressants.

Roughly six months after that, and despite the recommendation of an advisory board that had been set up to review petitions, Department of Public Health Director Nirav D. Shah found "there was not substantial evidence from adequate, well-controlled clinical trials to support the use of cannabis in the setting of chronic post-operative pain.”

Doe appealed to the courts, and Judge Cohen sided with the plaintiff, saying the director had "clearly violated" the standards set forth in the law in basing his determination on the alleged lack of "substantial evidence from adequate, well-controlled clinical trials." The judge noted this standard doesn't appear in the law, and initially directed the state to take up the matter again using the "correct standard."

The state asked the judge to reconsider, however, noting the state had since changed the rules by which such conditions should be approved, removing the advisory board from the process. The state argues those changes should be applied retroactively, to Doe's CPOP petition. 

The judge disagreed, however, and amended his ruling to order the state to add CPOP to its list of approved conditions within 30 days.

The state then appealed that decision.

In rendering their decision, the appellate court justices upheld the circuit court’s findings related to the state law.

"While there is nothing in the rules to indicate that the Director must follow the recommendations of the Advisory Board, there is also nothing in the rules indicating that the Director should be using a heightened standard of which plaintiff was unaware or the Director’s own research that was not presented at the hearing," the justices wrote.

However, the justices struck down Cohen's 30-day order, instead directing state officials to consider the petition under the standards earlier set forth in the law.

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