Pot helps treat ADHD
Cannabis To Treat ADHD?
According to Section 31 (6) sentence 1 SGB V, insured persons with a serious illness are entitled to a supply of cannabis in the form of dried flowers or extracts in standardized quality and to a supply of drugs with the active ingredients dronabinol or nabilone, if
- a generally recognized service corresponding to the medical standard
- a) is not available or b) in individual cases, based on the justified assessment of the treating contract doctor, considering the expected side effects and taking into account the state of illness, the insured person cannot be used,
- there is a not entirely remote prospect of a noticeable positive effect on the course of the disease or on serious symptoms.
According to Section 31, Paragraph 6, Clause 2 of the Book V of the Social Code, the first prescription for an insured person requires the approval of the health insurance company, which can only be refused in exceptional cases and which must be issued before the beginning of the service.
The State Social Court of Lower Saxony-Bremen determined this in an urgent procedure on November 27th, 2018 (L 16 KR 504/18 B ER) and did not make the applicant's complaint against the decision of the Social Court with the relevant reasoning that the existence of a serious illness even remotely credible, rejected as unfounded. In addition, the pharmaceutical statements of the advisory service would indicate that considerable doubts existed that there is any benefit from cannabis in ADHD. After a comprehensive metha-analysis, no explanations could be found on the benefits of cannabis in ADHD. Prospective studies would show that cannabis can increase the risk of ADHD in adulthood or that hyperactive symptoms in adult ADHD are associated with problematic use of cannabis.
For the reasons of the decision:
The applicant seeks the assumption of costs for the supply of medicinal cannabis flowers by way of a temporary injunction.
The applicant, born on January 31, 1987, has statutory health and nursing insurance with the respondent. He suffers from depression, concentration disorders, sleep disorders, an increased urge to move and an impulse control disorder. In 2013, an ADD diagnosis (F 98.8) was made and therapy with Ritalin (methylphenidate) was initiated (certificate from the qualified psychologist G. dated December 23, 2013). Two weeks after the start of therapy, side effects such as depression, loss of appetite, a feeling of weakness and weakness appeared. In addition, the applicant was treated with Strattera (atomoxetine) in July 2015. Since August 14, 2014, the applicant was being treated by Dr H., I. On December 16, 2015, the applicant was granted a medical prescription by the Federal Institute for Drugs and Medical Devices (Federal Opium Agency) to purchase medicinal cannabis flowers in accordance with Section 3 (2) Narcotics Act (BtMG). This permission has now been revoked (notice of objection dated March 8, 2018). The Federal Opium Agency rejected an application for an exemption for the cultivation of cannabis for medical purposes by decision of August 23, 2017 in the form of an objection decision of March 8, 2018. The district J. rejected the application for additional needs in accordance with Section 21, Paragraph 6 of the Second Book of the Social Code (SGB II) by decision of November 30, 2017 in the form of the notice of objection dated April 9, 2018. The applicant brought an action against it (Az S 4 AS 560/18).
The practice for general medicine Dr K. / Dr L. prescribed three different cannabis drugs (Bedroca, Bediol, Bedica) as tea preparation or for inhalation (single dose 0.4 g; daily dose 2.5 g; 4 Weekly requirement 75.0 g). The ordinances were received by the respondent on May 23, 2017 to examine the assumption of costs. The respondent obtained a statement from the pharmaceutical advice and examination department at the Knappschaft and rejected the application by decision of May 30, 2017 in the form of the decision of June 2, 2017. It rejected the applicant's objection with a notice of objection dated September 6, 2017. The requirements of Section 31 (6) of the fifth book of the Social Code (SGB V) are not met.
The applicant filed a lawsuit against this on September 28, 2017 at the Social Court (SG) Hildesheim (Az S 40 KR 486/17). On July 9, 2018, he filed an application under Section 86b of the Social Court Act (SGG). There is a reason for an order. The applicant is not in a position to procure the cannabis needed to alleviate the symptoms of ADHD at his own expense. He is a beneficiary according to SGB II and cannot cover the prescribed amount of cannabis with his standard needs. He needs the dried cannabis flowers regularly to alleviate his serious symptoms. A right to order is given. This arises from Section 31, Paragraph 6, Clause 1, No. 1b and 2 of SGB V. ADHD is a serious illness within the meaning of this provision. "Serious illness" must be interpreted in the context of Section 31 (6) SGB V in such a way that it is primarily about a reduction in the quality of life. Medical cannabis improves the quality of life of patients by reducing symptoms, in particular depression, concentration disorders and sleep disorders. In the event that the SG could not determine a claim for a disposition during the summary examination required in the urgent procedure, the claim was to be granted on the basis of a weighing of interests and consequences, because without the provisional legal protection the applicant would suffer serious and unreasonable disadvantages that could not otherwise be averted subsequent elimination the decision in the main in the event of victory would no longer be in the position. Art 19 para 4 sentence 1 of the Basic Law (GG) guarantees the effectiveness of legal protection.
The SG obtained a report from General Practitioners Dr M. Dr L. dated September 10, 2018. After that it was essentially a matter of continuing the medication with cannabis that Dr H. had started. 1x cannabis was prescribed. However, the practice has now decided against prescribing cannabis. To what extent the indication is justified or not cannot be said from there. The patient is completely fixated on the medication. The SG also obtained a report from the private medical practice Dr H. dated September 9, 2018. After that, the first treatment there took place on August 14, 2014 and the last treatment, a telephone consultation, on October 11, 2016, after which there were isolated contacts via email. In his findings report of September 9, 2018, Dr H. stated that he generally does not collect any findings with the exception of discussions and consultations and that he generally does not make any diagnoses. In the case of the applicant, the psychologist G. had diagnosed ADD in December 2013. Since the report also indicated a disorder of the impulse control as well as other symptoms such as hyperactivity, he - Dr. H. - would have rather suspected ADHD. When asked by the SG, whether treatment of the applicant with cannabinoids would have a not entirely remote prospect of a noticeable positive effect on the course of the disease or on serious symptoms, Dr H. answered in the affirmative. Generally recognized, medical standard treatments are not available.
By resolution of September 20, 2018, the SG rejected the application for a temporary injunction. The prerequisites for issuing an interim order are not met. The applicant could not credibly demonstrate the existence of a claim to an order. According to the current state of affairs, in the main no prospects of success can be determined. According to the explanatory memorandum for Section 31 (6) of the Book of the Social Code (SGB V), the right to be supplied with cannabis medicinal products should be given “in very limited exceptional cases”. In the opinion of the court, there was already no serious illness in the above sense. Such is the case if the disease is life-threatening or if it permanently affects the quality of life due to the severity of the health disorders caused by it. In this context, it should be noted that, according to the Federal Constitutional Court (BVerfG), even focusing on the even stricter requirements of Section 2 Paragraph 1 a SGB V when examining claims according to Section 31 Paragraph 6 SGB V is not objectionable. In the present case, the applicant's illness does not meet the stated requirements. In this regard, the respondent's medical service correctly pointed out that after evaluating the findings available at the time, ADHD could not be recognized as serious. The SG agrees with these convincing statements. The medical reports obtained do not give rise to a different assessment. According to Dr H., no treatment has taken place since 2016 and the applicant subsequently only contacted him by phone or email. Ultimately, nothing useful could be inferred from Dr L.'s report on the severity of the ADHD disease. Obviously there were no other findings there. Dr L. also expressed doubts about a positive effect of the coveted medication on the course of the disease. In addition, there would also be doubts about the existence of a claim to an order. The respondent pointed out that the main proceedings that had been pending since September 2017 were only given in July 2018.
On October 25, 2018, the respondent filed a complaint with the State Social Court of Lower Saxony-Bremen against the decision served on October 1, 2018, which he did not justify within the deadline set.
According to his written submissions, the applicant applies accordingly,
to revoke the decision of the SG Hildesheim of September 20, 2018 and to temporarily oblige the respondent to provide the applicant with medicinal cannabis flowers in the maximum monthly dose of 75 g until a final decision has been reached.
For further details of the facts, reference is made to the content of court files S 40 KR 486/17 and L 16 KR 504/18 B ER. These have been submitted and have become the subject of decision-making.
The complaint is admissible according to §§ 172 ff SGG, but unfounded.
According to 86b (2) SGG, the court of the main issue can issue an interim order in relation to the subject of the dispute on application if there is a risk that a change in the existing situation could frustrate or make it significantly more difficult for the applicant to exercise his or her right. Provisional orders are also permissible to regulate a provisional situation with regard to a disputed legal relationship if such a regulation appears necessary to avert significant disadvantages. The claim and reason for the order must be made credible in accordance with Section 920 (2) of the Code of Civil Procedure (ZPO). These prerequisites are not met here.
In accordance with the nature of the interim order, the final decision must not be anticipated. Claim and reason for ordering form a flexible system, so that even in the case of an obviously well-founded complaint, there must be a reason for ordering. Because the regulation in § 86b SGG does not serve to enforce claims "in the fast lane" (cf. resolution of the Senate of March 1, 2018, - L 16 KR 41/17 B ER -). According to the case law of the BVerfG, in the interests of the effectiveness of legal protection with regard to Article 19 (4) of the Basic Law, it may be necessary to anticipate the decision on the main issue only in very limited exceptional cases if, without granting provisional legal protection, serious and unreasonable disadvantages that cannot otherwise be avoided threaten that can no longer be eliminated by a decision in the main.
Contrary to the applicant's opinion, there is no room for weighing up the consequences. The guarantee of effective legal protection according to Article 19, Paragraph 4 of the Basic Law basically requires the possibility of an urgent legal protection by a specialized court if, without this, the person concerned is threatened with a significant violation of their rights that go beyond marginal areas and that can no longer be remedied by the decision in the main matter (BVerfG non-acceptance decision of August 6, 2014, - 1 BvR 1453/12 - with reference to BVerfGE 79, 69 (74); 93.1 (13 f); also the decision to refuse urgent legal protection regarding the supply of medicinal cannabis dated June 26, 2018 - 1 BvR 733/18). In proceedings for urgent legal protection by a specialist court, decisions may be based on both a weighing up of the consequences and a summary examination of the chances of success in the main matter. In doing so, the weight of the fundamental rights in question and possibly to be weighed against one another must be taken into account in order to prevent any violation of fundamental rights as far as possible. Article 19 (4) of the Basic Law places special requirements on the design of the urgent procedure if, without the granting of provisional legal protection, severe and unreasonable, otherwise unavoidable impairments can arise. In such cases, the courts must, if they want to orientate themselves on the chances of success of the main matter, regularly review the factual and legal situation not in summary but rather conclusively. In doing so, they must protect and promote the basic rights of the individual. However, the BVerfG has stated that the requirements for emergency legal protection by special courts resulting from Article 19 (4) of the Basic Law only result in the necessity of a full audit as an exception (BVerfG, non-acceptance decision of June 26, 2018 - 1 BvR 733/18 - mwN). Rather, the specialized courts only have to examine the factual and legal situation all the more thoroughly, the more serious the threatened violation of fundamental rights and the higher its probability of occurrence. If, measured against the weight of the asserted violations of fundamental rights, the factual and legal situation is penetrated sufficiently intensively, it can be harmless if the specialist court nevertheless assesses the outcome of the main proceedings as open and describes the examination carried out by it as summary, without just referring to it a weighing of the consequences, provided it only becomes clear that the specialized court considers the outcome of the main proceedings to be largely reliably predictable (BVerfGaaO para. 4). That's how things are here. The SG has checked the chances of success of the claim and correctly denied it, so that there is no room for a subsequent assessment.
The applicant has not made a claim to an order credible. According to Section 31, Paragraph 6, Clause 1 of SGB V, insured persons with a serious illness are entitled to a supply of cannabis in the form of dried flowers or extracts in standardized quality and to a supply of medicinal products with the active ingredients dronabinol or nabilone, if medical standard service a) is not available or b) in individual cases, based on the justified assessment of the treating contract doctor, considering the expected side effects and taking into account the state of illness of the insured person, 2. a there is a not entirely remote prospect of a noticeable positive effect on the course of the disease or on serious symptoms. According to Section 31, Paragraph 6, Clause 2 of the Book V of the Social Code, the first prescription for an insured person requires the approval of the health insurance company, which must only be refused in exceptional cases and which must be given before the beginning of the service. The requirements of this regulation are not met. According to the available documents, the SG decided, with valid reasons, that no serious illness within the meaning of Section 31, Paragraph 6, Clause 1 of SGB V has been made credible. The SG referred correctly to pharmaceutical advice. According to this, the available medical documents do not reveal how the diagnosis of ADHD was confirmed and how the disease has progressed so far. According to the present regulations, only two prescriptions for a drug for the treatment of ADHD have been issued in the last three years, namely on February 7, 2014 and March 25, 2014 (methylphenidate Hexal). After that, the ADHD could not be considered serious. According to the product information, the drug should be used as part of an overall therapeutic strategy that includes psychological, social and pharmacotherapeutic measures. This cannot be inferred from the available findings. The presence of a serious illness within the meaning of Section 31 (6) sentence 1 SGB V cannot be inferred from the findings reports consulted. Dr L. has expressly pointed out that cannabis was only prescribed once on a private prescription there. To what extent the indication is justified cannot be said. The patient is fixated on this medication. The existence of a serious illness cannot be justified from these statements. These statements also lack a justified assessment of the treating contract doctor within the meaning of §§ 31 Paragraph 6 S 1 No. 1b SGB V. Treatment by Dr H.has not taken place for years, the last time a telephone consultation took place on October 11, 2016. In addition, it should be pointed out that Dr H. does not have a contract medical license and, as the chairman of the Working Group for Cannabis, is a public advocate of an extension of the prescription of medicinal cannabis. As a doctor and because of his therapeutic theses, he is controversial (see decision of the judging Senate of October 11, 2018 - L 16 KR 402/18 B ER). According to the findings report of September 9, 2018, Dr H. himself did not collect any findings and made no diagnoses, but referred exclusively to the diagnosis of the qualified psychologist N. of December 23, 2013, but pointed out that instead of The diagnosis ADD established by Mr N. would have rather suspected ADHD, so that not even the diagnosis can be regarded as certain. After all, the existence of a serious illness has not been made credible. In addition, it has not been made sufficiently credible that a generally recognized service corresponding to the medical standard is not available or cannot be used and that there is a not entirely remote prospect of a noticeable positive effect on the course of the disease or serious symptoms. In this respect, it emerges from the pharmaceutical statements of the defendant's advisory service that there are considerable doubts that there is any benefit from cannabis in ADHD. After a comprehensive metha-analysis, there was no explanation of the benefits of cannabis in ADHD. Prospective studies would show that cannabis can increase the risk of ADHD in adulthood or that hyperactive symptoms in adult ADHD are associated with problematic use of cannabis. A reason for the order is also not made credible. The applicant did not respond promptly in the complaint procedure either, and there is no evidence of any particular urgency. The decision on costs is based on § 193 SGG. This decision cannot be challenged with a complaint (Section 177 SGG). [...]Regional Social Court of Lower Saxony-Bremen Order of November 27, 2018, L 16 KR 504/18 B ER
(25 / 1.238)
Dated: • Changed: • Without guarantee Tagged With: 2018, ADHD, cannabis, decision, health insurance, LSG, LSG Niedersachsen-Bremen, THC, prescription
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