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Three v. The Department of Public Health

Court of Appeals of Illinois, First District, First Division

May 22, 2017

JOHN DOE THREE, Plaintiff-Appellee,
THE DEPARTMENT OF PUBLIC HEALTH and NIRAV D. SHAH, M.D., J.D., Director of Public Health, Defendants-Appellants.

         Appeal from the Circuit Court of Cook County. No. 15 CH 16766 Honorable Neil H. Cohen, Judge Presiding.

          PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Harris and Mikva concurred in the judgment and opinion.



         ¶ 1 Plaintiff John Doe Three petitioned the Department of Public Health (Department) to add "chronic post-operative pain" (CPOP) as a "debilitating medical condition" under the Compassionate Use of Medical Cannabis Pilot Program Act (Act) (410 ILCS 130/1 et seq. (West 2014)). The Director of the Department, Nirav D. Shah, M.D., J.D., denied the petition, and plaintiff sought judicial review under the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 2014)). The circuit court reversed and remanded the case to the Department for further proceedings. The Department then asked the circuit court to reconsider its decision based on the fact that the Illinois General Assembly had recently amended the Act to reflect new procedures when attempting to add conditions to the list of debilitating medical conditions. The Department filed a motion to reconsider, asking the circuit court to reconsider its order in light of the new provisions. The circuit court amended its previous order to outright reverse the Department's findings, without remand, and directed the Director to add CPOP to the list of "debilitating medical conditions" under the Act within 30 days of its order. The Department and its Director now appeal.[1]

         ¶ 2 BACKGROUND

         ¶ 3 The Act, which became law in Illinois effective January 1, 2014, recognizes that using medical cannabis may help treat or alleviate symptoms associated with "debilitating medical conditions." See 410 ILCS 130/5(b) (West 2014). The Act distinguishes between "medical and non- medical uses of cannabis" and removes state criminal penalties for the medical use of cannabis if certain conditions are satisfied. 410 ILCS 130/5(g) (West 2014). At the time plaintiff petitioned the Department, the Act provided that any citizen could petition the Department to add debilitating conditions or treatments to the list of debilitating medical conditions listed in subsection (h) of section 10 of the Act. 410 ILCS 130/45 (West 2014).

         ¶ 4 The Department promulgated a rule governing such petitions which provided that an advisory board would then "review petitions and recommend to the Department additional debilitating conditions or diseases that would benefit from the medical use of cannabis." 77 Ill. Adm. Code 946.30(b) (2014).[2]

         ¶ 5 On March 2, 2015, plaintiff submitted a petition to the Department seeking to add CPOP as a debilitating medical condition under the Act. The petition described his suffering from CPOP as a result of excessive nerve damage from foot surgery. Plaintiff claimed he was unable to perform routine daily tasks without suffering debilitating pain in his foot. Plaintiff also claimed his condition interfered with his ability to perform in his career which involved hours of standing and moving. According to plaintiff's petition, his physicians had attempted to treat his chronic pain with opiates, anticonvulsant drugs, and antidepressants. Plaintiff's petition was supported by a statement from his treating physician, William B. Evans, M.D., that supported plaintiff's use of medical cannabis to alleviate the symptoms of CPOP. Plaintiff also submitted several medical and scientific journal articles supporting the prescription of cannabis for CPOP.

         ¶ 6 A public hearing was held on the petition, as well as other petitions seeking to add other medical conditions to the Act. At the hearing, the Advisory Board members considered plaintiff's petition and supporting materials, and then voted. Of the 10 members, 7 voted to approve the petition, while 3 voted not to.

         ¶ 7 On October 20, 2015, despite the recommendation of the Advisory Board, the Director denied plaintiff's petition, finding that "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. Therefore, the safety and efficacy for this medical condition cannot be assured." Prior to issuing his decision, the Director added articles to the record which were not presented by any of the parties prior to the hearing.

         ¶ 8 Plaintiff then filed a complaint for administrative review, seeking reversal of the Director's denial of his petition. The circuit court found that the Director "clearly violated" the Department's rules governing the consideration of petitions to add debilitating conditions to the Act by considering materials outside the petition. The circuit court noted that under the applicable administrative rules, the Director was to review the Advisory Board's recommendations and render a final decision. 77 Ill. Adm. Code 946.30(m) (2014). But instead of reviewing the Advisory Board's recommendations, the Director conducted his own investigation and added his own evidence to the record. The circuit court stated that plaintiff was not given any opportunity to challenge the additional evidence considered by the Director, which was a denial of procedural due process.

         ¶ 9 The circuit court also noted that the standard set forth in the Department's rules for adding a medical condition was whether the debilitating condition or disease at issue would benefit from the medical use of cannabis. However, in rendering his decision, the Director considered whether there was substantial evidence from adequate, well-controlled clinical trials to support the use of cannabis for the treatment of CPOP, which "appears nowhere in the Act or the Department's rules."

         ¶ 10 The circuit court reversed the Director's decision but remanded "for the issuance of a new decision by the Director. The Advisory Board was not unanimous in its recommendation regarding CPOP. The Director should have the opportunity to consider the addition of CPOP under the correct standard."

         ¶ 11 The Department and the Director then filed a motion to reconsider in light of the Department's emergency rules that were filed with the Illinois Secretary of State on August 1, 2016 (40 Ill. Reg. 10992 (emergency rule eff. Aug. 1, 2016)).[3] On June 30, 2016, section 45 of the Act was amended by Public Act 99-519. See Pub. Act 99-519 (eff. June 30, 2016). The amendment disbanded the Advisory Board, but allowed the Governor ...

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