Access to Cannabis for Medical Purposes: What Every Nurse Should Know

Table of Contents

What is the difference between the Cannabis Act and the Cannabis Regulations?

Will the provincial or territorial legislation impose further limits on my nursing practice?

Now that the Cannabis Act has come into force and cannabis is legal, am I free to do as I wish?

Information for Nurse Practitioners

Information for Nurses (RNs, RPNs and LPNs)

General Questions and Answers for NPs and Nurses

On June 21, 2018, the Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (Bill C-45) received Royal Assent and came into force on October 17, 2018. The new stand-alone Cannabis Act, S.C. 2018, c. 16 (the “Cannabis Act”) amends existing legislation, including the Controlled Drugs and Substances Act (the “CDSA“).

The key amendment to the CDSA is the repeal of item 1 (cannabis, its preparations and derivatives¹) on Schedule II of the CDSA, which removes it from being referenced in sections of the CDSA that prohibit the possession, trafficking, importing and exporting, production, and possession for use in production of or trafficking of schedule drugs.

The Cannabis Act and the Cannabis Regulations, which came into effect on October 17, 2018, is now the primary law governing cannabis in Canada, and repeals the former governing law for medical cannabis in Canada, the Access to Cannabis for Medical Purposes Regulations (the “ACMPR“)².

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What is the difference between the Cannabis Act and the Cannabis Regulations?

The Cannabis Act provides the statement of law on cannabis (i.e. what is allowed and what is prohibited), while the Cannabis Regulations provide details of how the cannabis framework will be implemented. Part 14 of the Regulations specifically addresses access to cannabis for medical purposes.

You will see that the Cannabis Act is quite brief, does not refer to medical cannabis, and appears to treat recreational and medical cannabis in the same manner. Specific guidance for medical cannabis can be found in the lengthy and detailed Cannabis Regulations. The Cannabis Regulations are enacted under the Cannabis Act, the Controlled Drugs and Substances Act, and the Food and Drugs Act.

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Will the provincial or territorial legislation impose further limits on my nursing practice?

Generally, the provincial and territorial legislations governing cannabis do not impose any additional limits or restrictions on nursing professionals carrying out their professional employment duties.

In some jurisdictions, however, there are restrictions regarding the location in which cannabis, including cannabis for medical purposes, can be consumed. These restrictions are a practical consideration for nurses who may possess and administer medical cannabis to patients in a health-care facility or in a public place. For example, in some jurisdictions, individuals cannot consume cannabis, even for medical purposes, in or on a vehicle or a boat, despite the definition of a “public place” under the Cannabis Act which includes a motor vehicle in a public place. There may be exceptions where the vehicle or boat is being used as a dwelling house (subject to conditions and restrictions) or where the vehicle is not on a highway or trail (as defined in the legislation). Additionally, existing smoking prohibitions extend to cannabis smoking, even for medical purposes, with limited exceptions.

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Now that the Cannabis Act has come into force and cannabis is legal, am I free to do as I wish?

No. The Cannabis Act still makes illegal certain forms of possession, distribution, selling, and importing and exporting of cannabis.

For example, for individuals 18 years of age and older, it is an offence to possess or distribute an equivalent to more than 30 grams of dried cannabis in a public place or to possess or distribute any cannabis that they know is illicit cannabis.³

Adults cannot distribute cannabis to an individual who is under 18 years of age.⁴ Those under 18 years of age cannot possess or distribute the equivalent to more than five grams of dried cannabis.⁵

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FOR NURSE PRACTITIONERS:

1) What do the new Cannabis Act and the Cannabis Regulations mean for me as an NP?

Possession and Distribution for Medical Purposes

An NP involved at any level of patient care may find themselves possessing or distributing cannabis for the purposes of providing treatment to a patient.

For the purposes of the Cannabis Act, the definition of “possession” within the Criminal Code is adopted. A person is deemed to be “in possession” when the person has the substance in their personal possession, knowingly has it in the actual possession or custody of another person or has it in any place, whether or not that place belongs to or is occupied by them, for the use or benefit of themselves or of another person.⁶ Distribute is defined as “administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.”⁷ (Emphasis added.)

Consequently, the Cannabis Regulations provide the NP with the legal authority to possess and distribute cannabis for medical purposes despite the limitations or restrictions in the Cannabis Act.

Medical Cannabis, Authorized Acts and Scope of Practice

Within Part 14, subsection 272(1) of the Cannabis Regulations authorizes “health care practitioners” (defined below) to perform the following acts “in respect of an individual who is under their professional treatment and if cannabis is required for the condition for which the individual is receiving treatment” (Emphasis added.):

(a) to provide a medical document;

(b) while practising in a hospital, to issue a written order;

(c) to administer to the individual a cannabis product, other than cannabis plants or cannabis plant seeds; or

(d) to transfer to the individual, or to an adult who is responsible for them, a cannabis product, other than cannabis plants or cannabis plant seeds,

(i) that has been received from a holder of a licence for sale or a licence for processing, and

(ii) in respect of which the quantity of cannabis does not exceed the quantity that the individual or adult is authorized to possess under section 266 or 267, as the case may be.”⁸

Under the Cannabis Regulations, a “health care practitioner” is defined as a medical practitioner or a nurse practitioner who “is not restricted, under the laws of the province in which they practise, from authorizing the use of cannabis.”⁹ It is thus prudent that the NP carefully review any provincial or territorial laws regarding authorization of cannabis for medical purposes.

Despite the legal authority granted within the federal legislation, each province or territory, as well as professional regulatory body, has the ability to restrict the NP’s involvement in these activities.

Important Considerations, Limitations and Restrictions

If an NP is contemplating undertaking any of these activities, they would be prudent to proceed as follows:

• Familiarize themselves with the wording of the Cannabis Act and the Cannabis Regulations, in particular Part 14;
• Familiarize themselves with any applicable provincial or territorial laws regarding access to medical cannabis and ensure that these activities fall within the scope of practice of an NP;
• Review any guiding documents from their professional regulatory body and act in accordance with any applicable standards of practice. NPs will also want to ensure that information within practice standards or guidelines that they consult are current (In other words, do the standards or guidelines make reference to the Cannabis Act and Cannabis Regulations, and not the former governing ACMPR?);
• Ascertain that these activities can be undertaken in the employment setting and review any applicable policies, guidelines, procedures and/or processes in place to guide the NP’s practice in relation to medical cannabis;
• Ensure that they have the knowledge, skill, judgement and individual competence to participate in these activities safely. This may include additional educational courses and training;
• Thoroughly document the patient assessment and determination that cannabis is required; and
• Seek legal advice to better understand the relevant provisions of the Cannabis Act and the Cannabis Regulations.

2) Are there specific considerations the NP should take into account when determining whether, under the Cannabis Regulations, they can authorize medical cannabis for a patient?

Yes. As discussed above, section 272 of the Cannabis Regulations provides the authorization to provide a medical document, written order, administer the cannabis product, or transfer it to an individual specified in that section as long as two criteria are met:

(a) The individual is under their professional treatment; AND

(b) If cannabis is required for the condition for which the individual is receiving treatment.

Under the predecessor ACMPR, there was no condition that medical cannabis be “required.” It would be prudent for an NP who provides treatment under this section to ensure that their nursing assessment supports the NP’s decision that in their professional opinion cannabis is required for the condition and that the NP’s clinical documentation adequately reflects this.

While a patient may request that an NP authorize cannabis as treatment, the ultimate decision rests with the NP who should be satisfied that the treatment is required for the patient’s condition.

Some questions for consideration:

• Does the patient have a primary care provider? If so, consider the rationale for being involved in the authorization of medical cannabis when a primary care provider is involved in the patient’s care.
• Do I have enough information about the patient to provide a treatment recommendation?
• Do I know enough about the patient’s treatment history to determine whether cannabis is required for their condition?
• Does the patient understand the risks and benefits of proceeding with cannabis for medical purposes to treat the condition?
• If nursing care is being provided remotely, have I properly considered whether the patient’s complaints can be addressed remotely? Have I managed the risks associated with providing an assessment via telehealth?
• Is there an actual or perceived conflict of interest between my professional obligations to the patient’s health and well-being and my duties to my employer?

Please also see Question 1 for additional considerations, limitations and restrictions before authorizing cannabis for medical purposes.

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3) What is the difference between a medical document and a written order?

For the purposes of authorizing cannabis, under section 272 of the Cannabis Regulations, an NP can

• provide a medical document; and
• issue a written order while practising in a hospital.

A medical document is defined as “a document provided by a health care practitioner to support the use of cannabis for medical purposes.”¹⁰ Meanwhile, a written order is defined as “a written authorization given by a health care practitioner that a stated amount of cannabis be dispensed for the individual named in the authorization.”¹¹

All patients require a medical document in order to receive cannabis for medical purposes (akin to a traditional prescription). However, if the patient is being treated in a hospital setting, then there is normally a requirement for a written order by a health-care practitioner to support the dispensing and/or administration of the medical cannabis to the patient.

Please also see Question 1 for additional considerations, limitations and restrictions before providing a medical document or a written order for medical cannabis.

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4) What are the requirements of a medical document?

Under subsection 273(1) of the Cannabis Regulations, a medical document must indicate the following:

(a) the health-care practitioner’s given name, surname, profession, business address and telephone number and, if applicable, their fax number and email address;

(b) the province in which the health-care practitioner is authorized to practise their profession and the number assigned by the province to that authorization;

(c) the given name, surname and date of birth of the individual who is under the professional treatment of the health-care practitioner;

(d) the address of the location at which the individual consulted with the health-care practitioner;

(e) the daily quantity of dried cannabis, expressed in grams, that the health-care practitioner authorizes for the individual; and

(f) a period of use, specified as a number of days, weeks or months.

The period of use of a medical document cannot exceed one year. In addition, a medical document must be signed and dated by the health-care practitioner who is providing it and must include a statement confirming that the information in the document is correct and complete.

Please also see Question 1 for additional considerations, limitations and restrictions before providing a medical document.

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5) What are the requirements of a written order within a hospital?

Subsection 348 of the Cannabis Regulations permits an individual in charge of a hospital to allow cannabis products (other than cannabis plants and cannabis plant seeds) received by a holder of a licence for sale or processing, to be administered to an inpatient or outpatient of the hospital or distributed or sold on receipt of a medical document or written order.

It is important to consider what constitutes a “hospital.” A “hospital” is defined as “a facility that is licensed, approved or designated by a province under the laws of the province to provide care or treatment to individuals suffering from any form of disease or illness; or that is owned or operated by the Government of Canada or the government of a province and that provides health services.”¹² As such, the definition of “hospital” may encompass facilities other than those identified as hospitals in provincial legislation. The legislation of each province or territory should be reviewed and interpreted to determine which facilities in the province would satisfy the definition of “hospital” within the Cannabis Regulations.

When operating in a hospital (or another facility that meets the definition of a hospital), a written order for medical cannabis must be signed and dated by the health-care practitioner issuing it and must indicate

(a) the health-care practitioner’s given name, surname and profession;

(b) the given name and surname of the individual who is under the professional treatment of the health-care practitioner; and

(c) the daily quantity of dried cannabis, expressed in grams, that the health-care practitioner authorizes for the individual.

Please also see Question 1 for additional considerations, limitations or restrictions before issuing a written order while practising in a hospital.

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6) As an NP, can I administer medical cannabis?

Generally, yes. An NP may find themselves “distributing” cannabis within the meaning of the Cannabis Act by having it in their possession and administering it to a patient. Thus, the possession and administration of a cannabis product to a patient must be done in accordance with the Act and the Regulations otherwise the activities may attract legal consequences.

Subsection 272(1)(c) of the Cannabis Regulations authorizes a health-care practitioner to administer a cannabis product (other than cannabis plants or cannabis plant seeds) to an individual under their professional treatment and if cannabis is required for the condition for which the individual is receiving treatment.

Hospital and Non-Hospital Settings

The above-noted section does not distinguish between administration in a hospital or a non-hospital setting.

With respect to a hospital setting, subsection 348(2) of the Cannabis Regulations gives permission to an individual in charge of a hospital to allow cannabis products (other than cannabis plants and cannabis plant seeds) properly received from a holder of a licence for sale or a holder of a licence for processing to be

a) administered to an inpatient or outpatient of the hospital; or

b) distributed, but not sent or sold to an inpatient, outpatient or an adult who is responsible for them (emphasis added).

It is important to consider what constitutes a “hospital.” A “hospital” is defined as “a facility that is licensed, approved or designated by a province under the laws of the province to provide care or treatment to individuals suffering from any form of disease or illness; or that is owned or operated by the Government of Canada or the government of a province and that provides health services”.¹³ As such, the definition of “hospital” may encompass facilities other than those identified as hospitals in provincial legislation. The legislation of each province or territory should be reviewed and interpreted to determine which facilities in the province would satisfy the definition of “hospital” within the Cannabis Regulations.

It is also important to remember that each individual hospital setting will make its own determinations about access to medical cannabis. Administration and distribution can only be undertaken if the hospital permits it, and only on receipt of a medical document or written order.

In a hospital setting, there is generally a requirement for a client-specific order authorizing the nurse to administer or distribute medical cannabis. NPs should carefully review written orders authorizing medical cannabis for a patient to ensure that it meets all of the required elements, including the daily quantity of dried cannabis that the health-care practitioner authorizes for the individual.¹⁴

NPs should also be mindful of the applicable provincial and territorial legislation. In some jurisdictions, there are restrictions regarding the location in which cannabis, including cannabis for medical purposes, can be consumed. These restrictions are a practical consideration for nurses who may possess and administer medical cannabis to patients in a health-care facility or in a public place. For example, in some jurisdictions, individuals cannot consume cannabis, even for medical purposes, in or on a vehicle or a boat, despite the definition of a “public place” under the Cannabis Act which includes a motor vehicle in a public place. There may be exceptions where the vehicle or boat is being used as a dwelling house (subject to conditions and restrictions) or where the vehicle is not on a highway or trail (as defined in the legislation). Additionally, existing smoking prohibitions extend to cannabis smoking, even for medical purposes, with limited exceptions.

The different forms of cannabis can lead to many different considerations for the NP as well as for the health-care facility where the administration may occur. For example, will the facility allow patients to smoke dried medical cannabis on the premises? If so, how will this practice be facilitated in light of any non-smoking by-laws and while ensuring that other patients, staff or visitors are not inadvertently exposed to the substance during the course of administration? NPs are encouraged to proactively raise these considerations with their employer to ensure that proper procedures are in place for managing cannabis for medical purposes.

NPs should also be satisfied that

1. they have sufficient knowledge, skill, judgment and individual competence to administer the medical cannabis safely. This would generally include a proper understanding of the substance in its various forms as well as how the form of the substance (e.g. dried leaf or oil) may impact its dosage, the ability to evaluate its effectiveness, as well as the ability to identify and manage any adverse effects following administration; and
2. there is a reliable means of authenticating the substance and determining the dosage. Patients who receive cannabis from a licensed producer will be able to present the substance in a container that will generally include a description of the content.¹⁵

Please also see Question 1 for additional considerations, limitations and restrictions before authorizing and/or administering medical cannabis.

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7) In order to administer medical cannabis, I will have to have possession of it. Am I in contravention of the Cannabis Act and/or Cannabis Regulations?

No. Subsection 272(2) of the Cannabis Regulations permits a health-care practitioner to possess a cannabis product (other than cannabis plants or cannabis plant seeds) in a public place if they have obtained it under the Cannabis Act and require it for the practice of their profession in the province where they possess it.

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8) As an NP, can I authorize or administer medical cannabis to mature minors or children?

Generally, yes. Subsection 272 of the Cannabis Regulations authorize a health-care practitioner to administer cannabis to an individual under their professional treatment and if cannabis is required for the condition for which the individual is receiving treatment. The authorization to administer (granted under subsection 272) is not limited to adults or individuals who have reached the age of majority.

In addition to the general considerations noted throughout this document, NPs should pay particular attention to applicable laws, rules, standards of practice, policies or guidelines governing the consent and capacity of young persons. It is generally the professional responsibility of the health-care practitioner proposing the treatment to determine whether a patient has the legal capacity to consent to the treatment.¹⁶

Please also see Question 1 for additional considerations, limitations and restrictions before authorizing and/or administering medical cannabis to young persons.

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9) What are the possible legal implications if an NP fails to comply with the Cannabis Act or the Cannabis Regulations?

If an NP fails to comply with the Cannabis Act and/or the Cannabis Regulations, there are a number of legal consequences that may impact the NP. These consequences may include the following:

• Disciplinary action by the employer
• Disciplinary action by their professional regulatory body
• Charges and/or a fine under the Criminal Code
• A statutory investigation
• A civil lawsuit initiated by the patient

It is important to note that any of these consequences may arise simultaneously from the same single incident.

Under section 333 of the Cannabis Regulations, the Minister must disclose information to the provincial professional licensing authority (nursing regulatory body) in relation to cannabis in certain circumstances. For example, if the Minister has reasonable grounds to believe the health-care practitioner has contravened a rule of conduct established by the licensing authority or if the Minister becomes aware that the health-care practitioner has been convicted of a designated offence or a controlled substance offence in relation to cannabis.

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10) We do not use the title “Nurse Practitioner” in my province. Does the above information still apply to me?

Yes. Despite the use of the title “Nurse Practitioner” throughout the Regulations, subsection 264(2) sets out that the definition of an NP includes equivalent designations. The definition encompasses an individual who

a) is a registered nurse;

b) possesses additional educational preparation and experience related to health care;

c) can autonomously make diagnoses, order and interpret diagnostic tests, prescribe drugs and perform other specific procedures under the laws of a province; and

d) is practising their profession in accordance with one of the following provincial laws, as amended from time to time, or a similar law in another province:

i. the Extended Practice Regulation, Man. Reg. 43/2005, made under the Registered Nurses Act, C.C.S.M., c. R40;*

ii. Ontario Regulation 275/94, made under the Nursing Act, 1991, S.O. 1991, c.32; or

iii. the Regulation respecting the classes of specialization of the Ordre des infirmières et infirmiers du Québec for the activities referred to in section 36.1 of the Nurses Act to be engaged in, CQLR, c. I-8, r. 8, made under the Nurses Act of Quebec, CQLR, c. I-8.

*Please note that the Registered Nurses Act in Manitoba has been repealed. Registered nursing in Manitoba is now governed under the Regulated Health Professions Act and the Practice of Registered Nursing Regulation, C.C.S.M., c. R117.

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FOR NURSES (RNs, RPNs and LPNs):

For the purposes of this document, the term “nurse” inclusively refers to registered nurses, registered psychiatric nurses and registered or licensed practical nurses, but not nurse practitioners.

1) What do the new Cannabis Act and the Cannabis Regulations mean for me as a nurse?

Possession and Distribution for Medical Purposes

Nurses involved at any level of patient care may find themselves being in possession or distributing cannabis for the purposes of providing treatment to a patient. For example, a nurse who possesses cannabis for the purposes of administering it can be found to be in possession of the cannabis.

For the purposes of the Cannabis Act, the definition of possession in the Criminal Code is adopted. A person is deemed to be “in possession” when the person has the substance in their personal possession, knowingly has it in the actual possession or custody of another person or has it in any place, whether or not that place belongs to or is occupied by them, for the use or benefit of themselves or of another person.¹⁷ “Distribute” is defined as “administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.”¹⁸ (Emphasis added.)

Consequently, the Cannabis Regulations provide the nurse with the legal authority to possess and distribute cannabis for medical purposes despite the limitations or restrictions in the Cannabis Act.

Medical Cannabis, Authorized Acts and Scope of Practice

Nurses are authorized to undertake a number of activities under the Cannabis Regulations both within a “hospital” (as defined in the Regulations) and in a “public place” (as defined in the Act).

The scope of practice of a nurse is narrower than that of an NP. Nurses are not considered “health care practitioners” under the Cannabis Regulations and are thus not permitted to issue medical documents or written orders to authorize the use of medical cannabis. For greater certainty, the authority granted to NPs under subsection 272(1) of the Cannabis Regulations does not apply to nurses.

Important Considerations, Limitations and Restrictions

If a nurse is contemplating undertaking any activity related to medical cannabis, they would be prudent to proceed as follows:

• Familiarize themselves with the wording of the Cannabis Act and the Cannabis Regulations, in particular Part 14;
• Familiarize themselves with any applicable provincial or territorial laws regarding access to medical cannabis and ensure that these activities fall within the scope of practice of a nurse;
• Review any guiding documents from their professional regulatory body and act in accordance with any applicable standards of practice. Nurses will also want to ensure that information within practice standards or guidelines that they consult are current (In other words, do the standards or guidelines make reference to the Cannabis Act and the Cannabis Regulations, and not the former governing ACMPR?);
• Ascertain that these activities can be undertaken in the employment setting and review any applicable policies, guidelines, procedures and processes in place to guide the nurse’s practice in relation to medical cannabis;
• Where possible, ensure that the patient’s wish to receive cannabis for medical purposes has been approved by the most responsible health-care practitioner and is consistent with the patient’s treatment plan;
• Ensure that they have the knowledge, skill, judgement and individual competence to participate in these activities safely. This may include additional educational courses and training;
• Ensure that informed consent is obtained and that discussions with the patient are documented within the patient’s medical record; and
• Seek legal advice to better understand the relevant provisions of the Cannabis Act and the Cannabis Regulations.

2) As a nurse, can I administer medical cannabis within a hospital setting?

Generally, yes. Subsection 348(2) of the Cannabis Regulations gives permission to an individual in charge of a hospital to allow cannabis products (other than cannabis plants and cannabis plant seeds) properly received from a holder of a licence for sale or a holder of a licence for processing to be

c) administered to an inpatient or outpatient of the hospital; or

d) distributed, but not sent or sold to an inpatient, outpatient or an adult who is responsible for them. (Emphasis added.)

It is important to consider what is characterized as a “hospital.” A “hospital” is defined as “a facility that is licensed, approved or designated by a province under the laws of the province to provide care or treatment to individuals suffering from any form of disease or illness; or that is owned or operated by the Government of Canada or the government of a province and that provides health services.”¹⁹ As such, the definition of “hospital” may encompass facilities other than those identified as hospitals in provincial legislation. The legislation of each province or territory should be reviewed and interpreted to determine which facilities within the province would satisfy the definition of “hospital” within the Cannabis Regulations.

It is also important to remember that each individual hospital setting will make its own determinations about access to medical cannabis. Administration and distribution can only be undertaken if the hospital permits it, and only on receipt of a medical document or written order.

Within a hospital setting, there is generally a requirement for a client-specific order authorizing the nurse to administer or distribute medical cannabis. Nurses should carefully review written orders authorizing medical cannabis for a patient to ensure it meets all of the required elements, including the daily quantity of dried cannabis that the health-care practitioner authorizes for the individual.²⁰

Nurses should also be satisfied that

1. they have sufficient knowledge, skill, judgement and individual competence to administer the medical cannabis safely, evaluate its effectiveness as well as be able to identify and manage any adverse effects following administration. This includes a proper understanding of the substance in its various forms as well as how the form of the substance (e.g. dried leaf or oil) may impact its dosage;
2. there is a reliable means of authenticating the substance and determining the dosage. Patients who receive cannabis from a licensed producer will be able to present the substance in a container that will generally include a description of the content.²¹

Please also see Question 1 for additional considerations, limitations and restrictions before proceeding with administration or distribution.

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3) In order to administer medical cannabis within a hospital setting, I will have to have possession of it. Am I in contravention of the Cannabis Act or the Cannabis Regulations?

No. Section 349 of the Cannabis Regulations permits a hospital employee to possess cannabis products (other than cannabis plants or cannabis plant seeds) where

(a) the cannabis products have been lawfully obtained and are being administered or distributed to an inpatient or outpatient of the hospital; and

(b) the employee requires the cannabis products for the purposes of, and in connection with, their employment.

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4) As a nurse employed in a hospital setting, what risk-management considerations should I be mindful of?

The different forms of cannabis can lead to many different considerations for the nurse as well as the health-care facility where the administration may occur. For example, will the facility allow patients to smoke dried medical cannabis on the premises? If so, how will this practice be facilitated in light of any non-smoking laws and while ensuring that other patients, staff or visitors are not inadvertently exposed to the substance during the course of administration?

Nurses are encouraged to proactively raise these considerations with their employer to ensure that proper procedures are in place for managing cannabis for medical purposes.

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5) As a nurse, can I administer medical cannabis to mature minors or children?

Yes, in certain circumstances.

Possession

Under subsection 266(1)(f) of the Cannabis Regulations, an adult can possess cannabis in a public place and in the presence of an individual referred to in subsection 267(1) – reproduced directly below – “for the purpose of providing assistance in administering it to the individual.”

Subsection 267(1) of the Cannabis Regulations authorizes the following young persons to possess cannabis (other than cannabis plants or cannabis plant seeds) that is lawfully obtained under the Cannabis Act:

(a) a young person who is registered with a holder of a licence for sale on the basis of a medical document;

(b) a young person who is a registered person; and

(c) a young person who, directly or indirectly, obtained the cannabis as an inpatient or outpatient of a hospital.

Administration

With respect to administration, subsection 269(2) of the Cannabis Regulations further clarifies that an adult referred to above (in subsection 266(1)(f)) is authorized to “administer, give, transfer, provide or otherwise directly make available to the individual to whom the assistance is being provided” a lawful quantity of cannabis under section 266(6).

In addition to the general considerations noted throughout this document, nurses should pay particular attention to applicable laws, rules, standards of practice, policies or guidelines governing the consent and capacity of young persons. It is generally the professional responsibility of the health-care practitioner proposing the treatment to determine whether a patient has the legal capacity to consent to the treatment.²²

Please also see Question 1 for additional considerations, limitations and restrictions before administering medical cannabis to young persons.

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6) As a nurse, can I administer medical cannabis outside of a hospital setting?

Generally, yes. The Cannabis Act and the Cannabis Regulations contemplate administration and possession in a “hospital”²³ and in a “public place.” The Cannabis Act defines “public place” as “any place to which the public has access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.”²⁴

Possession

As noted above, an adult is authorized to possess cannabis (other than cannabis plants or cannabis plant seeds) in a public place in the presence of an individual for the purpose of “providing assistance in administering it to the individual.”

Administration

Subsection 269(2) of the Cannabis Regulations provides further clarity and states that the above-noted adult in subsection 266(1)(f) is authorized to

• administer,
• give,
• transfer,
• provide, or
• directly make available to the individual to whom the assistance is being provided a quantity of cannabis that does not exceed the maximum amount that the adult is authorized to possess.

Nurses are captured in the category of adults in subsection 266(1)(f) of the Cannabis Regulations who may possess cannabis in the presence of an individual who is lawfully entitled to receive medical cannabis for the purpose of administering it to that individual.

Nurses should also be mindful of the applicable provincial and territorial legislation. In some jurisdictions, there are restrictions regarding the location in which cannabis, including cannabis for medical purposes, can be consumed. These restrictions are a practical consideration for nurses who may possess and administer medical cannabis to patients in a health-care facility or in a public place. For example, in some jurisdictions, individuals cannot consume cannabis, even for medical purposes, in or on a vehicle or a boat, despite the definition of a “public place” under the Cannabis Act which includes a motor vehicle in a public place. There may be exceptions where the vehicle or boat is being used as a dwelling house (subject to conditions and restrictions) or where the vehicle is not on a highway or trail (as defined in the legislation). Additionally, existing smoking prohibitions extend to cannabis smoking, even for medical purposes, with limited exceptions.

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7) In order to administer medical cannabis outside of a hospital setting, I will have to have possession of it. Am I in contravention of the Cannabis Act?

No. Within a public place, certain individuals are authorized to possess more than the minimum amounts set out by the Act, namely an equivalent to more than 30 grams of dried cannabis for adults or the equivalent of 5 grams for individuals under 18 years of age, if it has been obtained in accordance with the Act. Subsection 266(1) lists these individuals as

(a) an adult who is registered with a holder of a licence for sale on the basis of a medical document;

(b) an adult who is a registered person;

(c) an adult who, directly or indirectly, obtained the cannabis as an inpatient or outpatient of a hospital;

(d) an adult who is named in a registration document or a registration certificate as being responsible for an individual referred to in paragraph (a) or (b) or 267(1)(a) or (b) and who possesses the cannabis for the medical purposes of that individual;

(e) an adult who is responsible for an individual referred to in paragraph (c) or 267(1)(c) and who possesses the cannabis for the medical purposes of that individual; and

(f) an adult who possesses the cannabis in the presence of an individual referred to in paragraph (a), (b) or (c) or 267(1)(a), (b) or (c) for the purpose of providing assistance in administering it to the individual.

Again, nurses are captured in the category of adults in subsection 266(1)(f) of the Cannabis Regulations who may possess cannabis in the presence of an individual who is lawfully entitled to receive medical cannabis for the purpose of administering it to that individual.

Subsection 266(6) of the Cannabis Regulations further explains that the maximum amount of cannabis that an adult referred to in subsection 266(1)(f) can possess is an amount equivalent to the lesser of

(a) the daily quantity of dried cannabis indicated in the individual’s registration document or registration certificate, and

(b) 150 g of dried cannabis.

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8) I am a nurse and I provide nursing care to patients within their own homes. Am I permitted to administer medical cannabis to a patient within their own home?

The Cannabis Act and the Cannabis Regulations do not expressly address the provision of care within a patient’s private home. The Act and Regulations contemplate two frameworks: within a “hospital” and within a “public place.” In order to determine whether a nurse may possess and administer medical cannabis to a patient within the home, we need to determine how a private residence is characterized under the Cannabis Act and the Cannabis Regulations.

Under the Cannabis Act, a “public place” includes “any place to which the public has access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.”

The definition of a “public place” can also be found in the Criminal Code and is identical to that found in the Cannabis Act (other than the Act’s reference to a motor vehicle). A “public place” “includes any place to which the public have access as of right or by invitation, express or implied.”²⁵

In 2005, the Supreme Court of Canada considered the definition of “public place” under the Criminal Code and the reference to access “as of right or by invitation.” The Court considered that “access” includes the right, opportunity or invitation to reach, use or visit.²⁶

In the home-care setting, the nurse has access to the client’s private residence by way of invitation. The invitation may be “express” through direct communication orally or in writing (inviting the nurse into the home) or “implied” through actions or conduct (nodding or gesturing for the nurse to enter the home). In these circumstances, the nurse has the opportunity to enter, visit or use the private residence to provide nursing services.

Based on the judicial interpretation of a “public place” under the Criminal Code, it is our view that a private residence would fall within the definition of “public place” under the Cannabis Act.

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9) As a nurse, what are the possible legal implications if I fail to comply with the Cannabis Act or Cannabis Regulations?

If a nurse fails to comply with the Cannabis Act or Cannabis Regulations, there are a number of legal consequences that may impact the nurse. These consequences may include the following:

• Disciplinary action by the employer
• Disciplinary action by their professional regulatory body
• Charges and/or a fine under the Criminal Code
• A statutory investigation
• A civil lawsuit initiated by the patient

It is important to note that all of these consequences may arise simultaneously from the same single incident.

Under section 353 of the Cannabis Regulations, the Minister must disclose information to the provincial professional licensing authority (nursing regulatory body) in relation to cannabis in certain circumstances. For example, if the Minister has reasonable grounds to believe the health-care practitioner has contravened a rule of conduct established by the licensing authority, or if the Minister becomes aware that the health-care practitioner has been convicted of a designated offence or a controlled substance offence in relation to cannabis.

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General Questions and Answers for NPs and Nurses

With this new law, is cannabis still considered a controlled drug under the CDSA?

No. Cannabis is no longer listed as a controlled substance under Schedule II of the CDSA.²⁷ Additionally, cannabis is no longer referenced in sections of the CDSA that prohibit the possession, trafficking, importing and exporting, production, and possession for use in production of or trafficking of schedule drugs. However, there are restrictions contained in the Cannabis Act and the Cannabis Regulations as to how much, where, and in what form an individual can possess cannabis and how it can be distributed.

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What if I am not prepared to assist patients with administering medical cannabis?

There may be situations where a nurse may not be prepared to be involved in the patient’s cannabis treatment. A nurse may have moral objections, religious objections, or may not want to participate because they believe that administering cannabis would pose too great a legal or professional risk. Neither the Cannabis Act, the Cannabis Regulations nor the amendments to other pieces of federal legislation under this new legal framework create a positive obligation on a nurse to administer medical cannabis.

However, nurses have an ongoing legal duty of care to patients, which prevents nurses from abandoning patients and generally necessitates referral to other health-care providers. As a result, in the event that a nurse is contemplating refusing to assist with administering medical cannabis, it would be prudent for the nurse to consult with their professional regulatory body and employer for guidance in advance of these circumstances arising. The Canadian Nurses Association’s Code of Ethics for Registered Nurses also contains information on ethical considerations in addressing expectations that are in conflict with one’s conscience.

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Can I recommend medical cannabis to my patients under this new legislation?

Similar to the ACMPR, there are no provisions within the new federal legislative framework that restrict a nurse’s ability to provide information to their patients regarding cannabis for medical purposes. Nurses should be mindful of and comply with the professional standards set out by their professional regulatory body and ensure that they have the required knowledge, skill, judgment and overall competences to engage in a meaningful discussion with their patient on this subject.

Nurses should also review any other applicable laws, rules, standards of practice, policies or guidelines that would prohibit them from doing so.

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What if a patient presents with a valid medical document, but my employer policy does not allow me to administer medical cannabis?

Despite the legal authority to administer granted within the federal legislation, every employer has the ability to further restrict their employees’ involvement in these activities. Nurses must be mindful of any limiting laws, rules, standards of practice, policies or guidelines that would restrict their ability to participate in activities relating to medical cannabis.

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If a patient brings cannabis into the hospital, am I authorized to take it away from them?

Maybe. In a hospital setting, the institution can govern the possession of cannabis.

Nurses should review their organizational policy on possession of both medical and recreational cannabis in the hospital setting. If the cannabis is for medical purposes, your employer may require production of the medical document that authorizes the possession and its use may be subject to limits. If the possession is for recreational purposes, the authorized amount may be subject to limits or may not be permitted at all.

It is important to remember that the general authorization for possession of recreational cannabis does not necessarily apply within hospitals.

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Other questions?

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

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THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.