I, Daniel J. Kane, declare as follows:

1. I am, by profession, an attorney, admitted to the State Bar of California in 1988. I received my law degree in 1988 from Hastings College of the Law, where I worked on the Hastings International & Comparative Law Review. Several years after graduating, I returned to Hastings as a Legal Writing and Research Instructor. At that time, I was a Senior Litigation Associate with the Oakland firm of Crosby, Heafey, Roach & May. My work involved all aspects of complex civil litigation, including regular appearances in state and federal court. I was also responsible for supervision and training of the firm's junior associates. Between my responsibilities at the firm and my teaching duties, I felt that I had achieved a great deal, both personally and professionally.
2. Around the time I entered law school, I learned that I was HIV-positive. Nonetheless, I felt healthy and was eager to continue on with my life. I enrolled at Hastings, graduated with some distinction, passed the California Bar, and accepted a job at Crosby, Heafey, where I worked for five years. In 1993, I suffered my first serious opportunistic infection. My health deteriorated to the point where I was disabled and unable to continue my career. I left work and have not returned since. In July of 1996, my condition was significantly worsened by HIV-related "wasting syndrome." The symptoms of wasting syndrome were painful, unrelenting, and visible to others. I lost more than 45 pounds and suffered the progressive breakdown of muscle mass throughout my body.
3. Wasting syndrome, in combination with other HIV-related symptoms and conditions, left me thoroughly disabled and desperate to obtain relief. I suffered severe nausea, chronic exhaustion and physical weakness, neurological complications, persistent anxiety, and a total loss of appetite. It was my impression, confirmed by my doctor, that these symptoms were likely caused, or exacerbated, by one or more of the 11 different prescription drugs I had taken for some time. I was dangerously malnourished and the symptoms persisted. I became too ill to ingest the pills that lay at the core of my treatment. Despite my attempts, I simply could not swallow them with any regularity. When I did swallow them, I rarely kept them down. I also tried suppositories for the nausea and the pain, but I was physically unable to tolerate them either. I was warned that my treatment would not work if I could not comply with the protocol.
4. When I first became sick, my greatest fear was losing my sight, losing my mind, or (frankly) losing control of my bowels. I was plagued by those fears. Ten years later, I don't worry so much about particular illnesses. Now, my greatest fear is that I will lose my doctor. My doctor is the one person who holds the necessary information -- complete and accurate -- to keep me as healthy and free of pain as I can be. I have been his patient for many years. He knows my complete medical history, my family patterns and vulnerabilities, the course of my illness(es), and my responses to treatment, as well as aspects of my personal life that affect both my health and my desire to live.
5. As a lawyer, I am aware of my physician's legal duty to provide competent care; but I have also witnessed his moral and personal commitment to my well-being. There have been many times during my illness when I have felt lost, frightened and alone. It is in those periods especially that I must rely on my doctor. I believe that if my condition was hopeless, he would say so, but he never has. If I believed that he had lied or withheld information from me, his credibility, our mutual trust, and all assurances of safety would be destroyed. Any future advice or treatment proposals would be suspect and be given little weight in my decisions regarding medical care. It is possible that accepting his advice could be fatal. But I am now uncertain whether his advice is complete and accurate based on clinical information, or instead motivated by government threats. I fear having to fight for my life with neither accurate information nor adequate medical treatment.
6. This dependence on my physician initially made me somewhat uncomfortable. I have since learned (through experience and research) that this is frequently part of a physician's role, especially when treating patients (like myself) who come perilously close to death. He has special skills, knowledge and authority that can save my life. There is nothing surprising about my need for competent and honest treatment. It is one of the nobler aspects of human nature, as well as a legally-sanctioned privilege. In fact, my own education and training taught me that the doctor-patient relationship is entitled to heightened legal protections. Since becoming disabled, I've come to understand the reasons behind that.
7. My appreciation of the sanctity of the doctor-patient relationship is informed in part by a legal ruling in Louisiana that was decided just before I became truly ill and left my legal practice. The issue in that case was whether the government could require a doctor to prescribe Haldol to a man on death row, a drug which the doctor knew would ultimately cause his patient's death. The judge who wrote that opinion described the "deep- seated social interest in preserving medical care, in actuality and in perception, as an unambiguously beneficent healing art." (State v. Perry, 610 So.2d 746 (La. 1992).) He articulated what seriously ill people have always known: government interference with a doctor's judgment undermines "a trustful, communicative doctor- patient relationship that is essential to . . . therapy." (Id.) I truly believe that the current federal policy curtailing my doctor's clinical judgment (allowing him to prescribe some medications but not other, less toxic medications) is equally as threatening to me as it was to Mr. Perry.
8. When federal officials place limits on communications between me and my doctor, my well-being is jeopardized. My trust in my doctor would be misplaced and useless if his clinical judgment and treatment of me is limited by the state. My relationship to my doctor will be severely undermined if I live in fear that he will be criminally prosecuted for treating me. I could not possibly be candid and forthright with him if I thought it might compromise his livelihood and his ability to care for the patients who rely on him.
9. I have been HIV-infected for at least 12 years and severely ill for the past four. Over the past year, my health has improved as my doctor and I have adjusted, re-adjusted and, in some cases, changed altogether my treatment plan. The information he has provided, and his willingness to constantly re-assess my condition and seek more effective treatments, have guided me through many painful and demoralizing periods. He has been candid with me about the risks of the medications I have taken, and he has been extremely cautious about prescribing medications for pain or for anxiety. He has done everything possible to reduce adverse side effects that were often intolerable. When I developed wasting syndrome, he tried everything possible to help me regain my weight and restore my energy.
10. The process was often very painful. My doctor tried to relieve my nausea by prescribing a series of anti- nausea medications, including Compazine and Phenergan, but those drugs were in pill form and I couldn't bear to swallow them. Generally, they made me vomit almost immediately. When I kept them down, they only increased my stomach distress. The only reason I agreed to these miserable, and ultimately useless, treatments was because I trusted my doctor. I knew that he was doing everything possible to give me relief and keep me alive.
11. In August of 1996, after several prescription medications had given me no relief, my doctor informed me that marijuana, in small quantities, might act as both an anti-nauseant and an appetite stimulant. I tried smoking marijuana to combat the nausea. I found that it reduced my nausea and restored my appetite, allowing me to eat and regain my strength with no noticeable side effects. Having tried the other medications, I know from personal experience that, at least for me, nothing compares to marijuana in terms of results. I use marijuana only a few times a week -- sometimes less -- but since I started, I have been able to eat and I've regained weight, muscle mass and hope. That small amount of marijuana has enabled me to function in the world again.

I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct to the best of my knowledge, and that this declaration was executed at San Francisco, California, this 13th day of February, 1997.

Daniel J. Kane