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two surveys were conducted by professional polling companies.  The  
Detroit Free Press conducted a telephone poll in which 85.4% of those  
responding favored access to marijuana by prescription.  In the State of  
Washington the State Medical Association conducted a poll in which 80% of  
the doctors belonging to the Association favored controlled availability  
of marijuana for medical purposes. 
Discussion 
     From the foregoing uncontroverted facts it is clear beyond any  
question that many people find marijuana to have, in the words of the  
Act, an "accepted medical use in treatment in the United States" in  
effecting relief for cancer patients.  Oncologists, physicians treating  
cancer patients, accept this.  Other medical practitioners and  
researchers accept this.  Medical faculty professors accept it.  Nurses  
performing hands-on patient care accept it. 
     Patients accept it.  As counsel for CCA perceptively pointed out at  
oral argument, acceptance by the patient is of vital importance.  Doctors  
accept a therapeutic agent or process only if it "works" for the patient.   
If the patient does not accept, the doctor cannot administer the  
treatment.  The patient's informed consent is vital.  The doctor  
ascertains the patient's acceptance by observing and listening to the  
patient.  Acceptance by the doctor depends on what he sees in the patient  
and hears from the patient.  Unquestionably, patients in large numbers  
have accepted marijuana as useful in treating their emesis.  They have  
found that it "works".  Doctors, evaluating their patients, can have 
no basis more sound than that for their own acceptance. 
     Of relevance, also, is the acceptance of marijuana by state  
attorneys- 
                                  - 26 - 
general, officials whose primary concern is law enforcement.  A large  
number of them have no fear that placing marijuana in Schedule II, thus  
making it available for legitimate therapy, will in any way impede  
existing efforts of law enforcement authorities to crack down on illegal  
drug trafficking. 
     The Act does not specify by whom a drug or substance must be  
"accepted [for] medical use in treatment" in order to meet the Act's  
"accepted" requirement for placement in Schedule II.  Department of  
Justice witnesses told the Congress during hearings in 1970 preceding  
passage of the Act that "the medical Profession" would make this  
determination, that the matter would be "determined by the medical  
community."  The Deputy Chief Counsel of BNDD, whose office had written  
the bill with this language in it, told the House subcommittee that "this  
basic determination . . . is not made by any part of the federal  
government.  It is made by the medical community as to whether or not the  
drug has medical use or doesn't". [footnote 7] 
     No one would seriously contend that these Justice Department  
witnesses meant that the entire medical community would have to be in  
agreement on the usefulness of a drug or substance.  Seldom, if ever, do  
all lawyers agree on a point of law.  Seldom, if ever, do all doctors  
agree on a medical question.  How many are required here?  A majority of  
51%?  It would be unrealistic to attempt a plebiscite of all doctors in  
the country on such a question every time it arises, to obtain a majority  
vote. 
     In determining whether a medical procedure utilized by a doctor is 
actionable as malpractice the courts have adopted the rule what it is  
acceptable 
____________________ 
7    Drug Abuse Control Amendments - 1970: Hearings on H.R. 11701 and 
     H.R. 13743 Before the Subcommittee on Public Health and Welfare of 
     the House Committee on Interstate and Foreign Commerce, 91st 
     Congress, 2d Sess. 678, 696, 718 (1970) (Statement of John E. 
     Ingersoll, Director, BNDD). 
                                  - 27 - 
for a doctor to employ a method of treatment supported by a respectable  
minority of physicians. 
     In Hood v. Phillips, 537 S.W. 2d 291 (1976) the Texas Court of Civil  
Appeals was dealing with a claim of medical malpractice resulting from a  
surgical procedure claimed to have been unnecessary.  The court quoted  
from an Arizona court decision holding that 
          a method of treatment, as espoused and used by . . . a 
          respectable minority of physicians in the United States, 
          cannot be said to be an inappropriate method of treat- 
          ment or to be malpractice as a matter of law even though 
          it has not been accepted as a proper method of treatment 
          by the medical profession generally. 
Ibid. at 294.  Noting that the Federal District court in the Arizona case 
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