By definition, practicing holistic medicine deviates from the State’s recognized standards of care. As a consequence, holistic practitioners tend to be characterized as “heretics” or quacks and many become the object of persecution and prosecution, even in the absence of damage (i.e, no patient personal injury).
In this post, I will distinguish a few differences that exist between a licensed health care professional and an unlicensed (or non-licensed) one and question the issue of status. (Section A) Thereafter, I will examine a few general protection principles and tools that all practitioners can use, both the unlicensed and the licensed ones. (Section B)
Should a Holistic Health Practitioner be licensed or not licensed ?
In most of the States of the American Union, practicing holistic medicine 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 allopathic standards of care. If they deviate from these State recognized standards in favor on alternative or holistic health techniques, they can get into trouble with public authorities and invite litigation from disgruntled clients based on the legal theory known as “loss of chance”. (I.e. by doing holistic procedure A, the recognized allopathic procedure B was forfeited).
On the other hand, the non licensed holistic practitioner (1) is relatively free to practice alternative and holistic techniques as long as these techniques are not accompanied with medical claims or use allopathic interventions.
However, there are legal pitfalls for the unlicensed holistic health practitioner, including, but not limited to at least two different possible sources of liability. First off, there is the omnipresent risk of criminal prosecution for unlicensed practice of medicine. And subsidiarily, there is the risk of civil liability for negligence.
The unlicensed practice of medicine, when prosecuted, is difficult to defend because most criminal statutes are easy to implement. Either the practitioner has a State approved license or he-she does not, goes the mantra. However, as Holistic Justice Institute’s teaches, there are many defense strategies that can be put in place to better protect unlicensed holistic health practitioners from prosecution and health-related liabilities.
GENERAL LEGAL PRINCIPLES
Licensed practitioners usually can complement their recognized practices with herbal medicine or aromatherapy or whatever alternative, complementary and holistic medicine therapy they choose provided there is some science that supports these holistic modalities.
But the general condition is that these licensed practitioners must usually use these techniques as adjuvants to more conventional and mainstream standards. This is why in this country integrative oncologists need to use some chemo (like with insulin potentiation therapy) or radiation (which can be combined to hyperthermia, caloric restriction and supplementation) if they are to keep their State approved medical license.
Using holistic techniques as stand-alones can lead to Medical Board condemnations, FDA shut-downs (manu militari) and expensive civil lawsuits.
However, as the Holistic Justice Institute teaches, these types of “recognized” (sanctioned) holistic health practitioners can usually enhance their legal protection with multiple legal techniques, including, but not limited to the securing of 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 in most States there are generally two central legal theories of health care malpractice: one, a deviation from the recognized standard of care, with resulting patient injury; and two, a failure to secure 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. This is why it is important for this type of practitioner to never diagnose, let alone make medical claims or use medical procedures which are monopolized by the State’s official medicine.
In this vein, having a school credential from a complementary and alternative medicine center or even from a national professional organization does not necessarily provide legal protection against the risk of 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 against a non licensed holistic health practitioner, 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, shamanic medicine or energy healing. (2) Whereas there are established standards of care for allopathic medicine, medical hypnosis and a few other health fields.
Both licensed and non licensed holistic health practitioners’ legal needs depend on both State, Federal and even International Law. (3) Thus, in this perspective, it is more than useful to look to state and federal rules governing conflict of interest.
A practitioner also needs to determine if a license versus the absence of a license will bestow upon his or her practice the most protection. (4) Among other issues, the question of selling herbal products, vitamin and dietary supplementation, aromatherapy products or health procedures (like saunas, far-infra red hand devices or hydrotherapy) as this can create a legal risk or liability as has happened to one of ACR Institute’s interviewee, Dr Gonzalez. (5)
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 risks and liability can be a first step toward implementing the limited protection that may be available.
Medical Law is often used to accumulate 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, in application of Dr Hippocrates’ general principle, “Primum Non Nocere” (First do no harm). Thus, just this general holistic approach will limit health-related liabilities.
However, even a gentle, safe and efficient approach to health does not make the practitioner immune from false claims, frivolous lawsuits, “loss of chance” litigation or State persecution/prosecution.
This is why all holistic health practitioners should get educated in this realm, if only to prevent legal complications, un-necessary loss of revenue and patient injury. (6)
Director of Holistic Justice Institute and Advanced Cancer Research Institute
Professor of Holistic Medicine and former Professor of Law
To inquire about legal education for holistic practitioners and also for the benefit of patients, see the Holistic Justice Institute website.
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. There are over one hundred holistic health practices, many of which have been classified by the World Health Organization, from aromatherapy, herbal medicine to homeopathy, hyperthermia, Kneipp therapies, shamanic medicine, naturopathy and many more.
2 Also, depending on the State and the factual circumstances under consideration, it can be 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.
3. For example aromatherapy products are not subject to approval by the U.S. Food and Drug Administration (unless there is a claim for treatment of specific diseases), but in certain states, such as France, certain aromatherapeutic interventions need to be officially prescribed. International law in the United States is equivalent to a federal statute, which by design, over-rides State statutes.
4. 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. For example, an antioxidant based juicing therapy would go against the State’s coumadin-based blood thinning standards. These holistic practitioners should ensure that the projected licensure allows them to do what is in the patient’s best interests and what they have a passion or healing gift for, whether it be magnetism, reiki, prayer, meditation, energy medicine or shamanic interventions. 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.
5. See the New York case of Charell v. Gonzales, which involved a holistic oncologist and physician who had a financial interest in the supplements to which he referred his patients.
6. As Holistic Justice Institute seminars teach via evidence-based power point presentations, there tends to be an abundance of patient injuries when patients are led to allopathic medicine. The figures classify these avoidable injuries in the millions per year. Thus, by not avoiding legal complications, patients can not be correctly served with holistic medicine’s options and techniques, let alone with the best findings coming from the Health Sciences and Tradition.
Disclaimer: Nothing in this pedagogical website should be construed to constitute either legal or medical advise.
2016 (c). Holistic Justice Institute, Advanced Cancer Research Institute and agents. All rights reserved.