First off, it is useful to distinguish between a licensed health care professional and an unlicensed (or non-licensed) one. (Section A) In law, much of our time is spent in the art of distinguishing different status’ or categories. In contemporary mercantile decadent societies, medicine does not escape from this legalization process of social and economic activities, contrarily to what happens in spiritual societies. Thereafter, we will examine couple general protection tools that all practitioners can use, both the unlicensed and the licensed ones. (Section B)
LICENSED OR NOT LICENSED ?
In most of the States of the American Union, practicing aromatherapy or herbal medicine as an herbalist, energy healer, hypnotist or hypnotherapist, homeopath or naturopath tends to be riskier for licensed practitioners such as nurses, psychologists, social workers, physicians (MD or DO), massage therapists, or chiropractors than unlicensed practitioners, if only because licensed health practitioners are held to strict often based dogmatic standards of care. If they deviate from these standards in favor on alternative health techniques, they can get into trouble with public authorities and invite litigation from disgruntled clients. On the other hand, the non licensed practitioner has to face at least two different possible sources of liability: the risk of criminal prosecution for unlicensed practice of medicine, and the risk of civil liability for negligence (ie, medical malpractice). The unlicensed practice of medicine, when prosecuted, is difficult to defend because the criminal statutes are easy to implement. Either the practitioner has a State approved license or he-she does not.
GENERAL LEGAL PRINCIPLES
Licensed practitioners usually can complement their recognized practices with herbal medicine or aromatherapy or whatever alternative and complementary medicine therapy they choose, but they must usually use these techniques as adjuvants to more conventional and mainstream standards. Using holistic techniques as stand alones can lead to Medical Board condemnations and lawsuits. At best, these recognized practitioners can enhance their legal protection by securing informed consent and asking the client to sign assumption of risks documents, albeit not always recognized by Courts of Law, depending on the State.
In this perspective, it is relevant to note that there are at least two different theories of health care malpractice: one, a deviation from the recognized standard of care, with resulting patient injury; and two, a failure of informed consent. A robust informed consent process, documented by an informed consent form, only addresses the second theory of malpractice. As for the unlicensed practitioner, depending on the constellation of circumstances and State law, Informed consent and assumption of risks forms will usually not be constitutive of a recognized legal defense if the charge is the unlicensed practice of medicine charge. This is why it is important for this type of practitioner to never diagnose, let alone make medical claims. In this vein, having a school credential for a complementary and alternative medicine center or even from a national professional organization, does not necessarily provide legal protection against the risk of malpractice liability.
Depending on the State and the constellation of circumstances, such a non recognized diploma could even be constitutive of health fraud. Regarding a potential malpractice suit from a private party, in theory and in most States of the American Union, there is no established standard of care for something like aromatherapy, herbal medicine, homeopathy, naturopathy, hypnotherapy, or energy healing by a non-licensed practitioner, whereas there are established standards of care for allopathic medicine, medical hypnosis and a few other health fields.
LEGAL PROTECTION TOOLS
Thus how does a non-licensed practitioner create some legal protection against the charge relative to practicing medicine without a license and a malpractice claim? First off, the unlicensed holistic health practitioner needs to say that he or she is a teacher, a coach or consultant merely providing information to clients. This activity is protected under the First Amendment, inter alia. It is also important not to use words like “treatment” “diagnosis” or “medical intervention” as these words are normally reserved for the State recognized license practitioner. Regarding possible malpractice claims, for both the unlicensed and the licensed practitioner, it is important to consider having a well-drafted informed consent form and have that form incorporate an assumption of risk clause.
Not all States accept this doctrine, especially for non licensed practitioners, so it is important to first examine this issue and the facts under consideration.
Also, it is useful to try to figure out what might be a credible standard of care even in an emerging area like holistic medicine. In some States like Minnesota, public authorities grant some legal leeway to designated practitioners even though they may lack some form of health care licensure. Arizona also appears to have more liberal norms in this context.
For all holistic health practitioners, licensed and not licensed, it is more than useful to look to state and federal rules governing conflict of interest, (1) and determine whether selling herbal, aromatherapy (2) and other dietary supplements may create a legal risk or liability as has happened to one of the Institute’s interviewee, Dr Gonzalez (3)
CONCLUSION: PRIMUM NON NOCERE
In conclusion, no form of legal protection is absolute, and there are no guarantees, but at the very least, distinguishing and understanding the different sources of risk and liability can be a first step toward implementing the limited protection that may be available.
Law is also about accumulating effective and safe layers of protection, thus, the more relevant protective techniques are used, the more secure will become the practitioner, licensed or unlicensed.
One of Holistic Medicine’s strong characteristic is that most of its practitioners, licensed or unlicensed, will spontaneously avoid any and all health interventions that can cause harm or nefarious side effects, in application of Dr Hippocrates’ general principle, “Primum Non Nocere” (First do no harm). Thus, the implementation of this general holistic approach will limit liability.
However, even a gentle approach to health (4) does not make the practitioner immune from false claims, frivolous lawsuits, State persecution based on “loss of chance” (5) or even unexpected physiological consequences that can lead to litigation. Thus, the practitioner needs to be vigilant, aware and knowledgeable about Holistic Medicine Law.
Christian Joubert: Naturopath, organic farmer, former Law professor
Director of Advanced Cancer Research Institute and Holistic Justice Institute
HOLISTIC JUSTICE INSTITUTE
Holistic Justice Institute offers corporate and private legal education in the form of information sharing, workshops, consultation and expertise in health law with a unique focus on holistic, alternative, complementary, and integrative medical therapies. For now, we do not litigate nor represent clients in any adversarial context. But we do provide key information for all medical doctors, allied health professionals (from psychologists to nurses and dentists), licensed and unlicensed, including, but not limited to chiropractors, naturopathic physicians, naturopaths, aromatherapist, massage therapists, nutritionists, acupuncturists, entrepreneurs, hospitals, educational organizations, governmental institutions, sick-care agencies and health-care clinics.
In our workshops and legal reports, the client will be better able to distinguish legal concepts such as harm, loss of chance, licensure, scope of practice, credentialing, products liability, medical malpractice, health fraud and risk management.
REFERENCE AND COMMENTS NOTES
1. Some jurists are of the opinion that non-licensed practitioners should consider achieving licensure in one of the recognized, licensed health care professions. But in so doing, they may then be exposed to the mainstream standards of the day, which would forfeit certain holistic rebalancing techniques. These holistic practitioners should ensure that the projected licensure allows them to do what they have a passion or gift for, whether it be magnetism, reiki, prayer or meditation. Furthermore, they will need to examine malpractice laws applicable to that profession, current and emerging standards of care and the state of regulatory board discipline norms for that profession within that state.
2. Cf www.ncbi.nlm.nih.gov/books/n/pdqcis/glossary/def-item/glossary_CDR0000454785/
3. See the New York case of Charell v. Gonzales, which involved a physician who had a financial interest in the supplements to which he referred his patient.
4. In France, the Nation of health-aware writers like Molière, Voltaire, Béchamp, Quinton and Montaigne, the concept “Médecine Douce” (Gentle medicine) is used in lieu of alternative, natural or holistic medicine.
5. In the entire spectrum of conventional standards, the “loss of chance” claim is significant, in particular in oncology practice. For example, if a health practitioner convinces a cancer patient to do enzyme or heat therapy instead of chemo, radiation or surgery, he or she can be prosecuted on the legal basis of “loss of chance”, the chance of allowing chemo, radiation and surgery to do its “healing magic”….which more often than not is a delusionary and-or self-serving “opinio juris” from the part of misguided officials, judges included.
Disclaimer: Nothing in this education blog should be construed as either legal or medical advise.
2016 (c).Holistic Justice Institute and Advanced Cancer Research Institute and agents. All Rights reserved.