With today’s medical and legal normative systems, holistic health practitioners are vulnerable to legal and public harassment. 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, licensed or not, can use to maximize their legal protection. (Section B)
Synopsis & Argument
By definition, practicing holistic medicine deviates from the State’s recognized standards of care. As a consequence, holistic practitioners can be characterized as heretics, quacks, negligent, fraudulent, reckless and criminal by many mainstream individuals, including conservative Judges and Medical Board Commissioners. Even if there is no patient personal injury, holistic healing practitioners can become the object of persecution and prosecution. They therefore need holistic law protection.
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 than unlicensed practitioners. Professionals like nurses, psychologists, social workers, physicians (MD & DO), massage therapists and chiropractors are held to strict allopathic standards of care and profession conduct rules.
If they deviate from these State recognized standards and rules in favor on alternative or holistic health techniques, they can get into trouble with public authorities, that which invites expensive litigation from public agents and even disgruntled clients. In civil malpractice litigation, the legal theory known as “loss of chance” is often invoked. This means that by putting in place a holistic or alternative treatment plan, the patient is necessarily deprived of the institutionalized mainstream standards.
On the other hand, the non licensed holistic practitioner (1) is relatively free to practice alternative and holistic healing techniques as long as these techniques are not accompanied with medical claims or use allopathic interventions and modalities.
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.
When prosecuted for the crime of practicing medicine without a license, the unlicensed practice of medicine cause of action is difficult to defend because most criminal statutes have been designed to be robustly implemented. 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.
Top Image: Creative Commons International 4:0: JonThunder
General Legal Protection Principles
As long as a licensed health practitioners conforms to the standards of his or her profession, herbal medicine, aromatherapy or other alternative, complementary and holistic medicine therapy can be used in a complementary and integrative way, provided there is some science that supports these alternative modalities that shows they are safe and have the potential to be efficient.
But the general condition is that these licensed practitioners must usually use these alternative techniques as adjuvants to more conventional and mainstream standards.
This is why in this country integrative medical doctors need to use mainstream allopathic standards of care with the chosen alternative technique or techniques in combination strategies. For example, alternative techniques combined to less chemo via insulin potentiation therapy is tolerated in many States. Likewise, nutritional approaches in combination with lower doses of radiation is also accepted in many States. In this perspective, integrative radiation oncologists would combine hyperthermia, caloric restriction, supplementation and the like with ionic radiation.
For licensed practitioners, using holistic techniques as stand-alones however can lead to Medical Board condemnations, FDA shut-downs (manu militari) and expensive civil lawsuits.
On the other hand, unlicensed health practitioners are not bound by any standard or rule, as long as they don’t “practice medicine”.
One of the best approaches to get the patient to use science-based alternative therapies without endangering anyone is for the non licensed practitioner to be a coach-educator who teaches different medical options a patient can decide to use or not use. As such, the unlicensed practitioner is protected by the First Amendment. Furthermore, by declining any and all therapist-patient relationship and getting the client-patient to be in charge of his or her health, the unlicensed practitioners increases his protection.
Holistic health practitioners can also 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, the first of which ia a deviation from the recognized standard of care, with resulting patient injury and secondarily, a failure to secure informed consent. A robust informed consent process, documented by an informed consent form, only addresses the second theory of malpractice.
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 pharmaceutical-based medicine.
In a similar 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, 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 are no established standards of care for alternative healing arts like aromatherapy, herbal medicine, homeopathy, naturopathy, hypnotherapy, shamanic medicine or energy healing. (2) On the other hand, there are strict established standards of care for allopathic medicine, medical hypnosis and a few other health fields.
The licensed and non licensed holistic health practitioners’ legal needs depend on State, Federal and even International Law. (3) In this perspective, it is more than useful to look to state and federal rules governing conflict of interest. This is one of the chapters the Holistic Justice Institute teaches for the benefit of both licensed and non licensed health practitioners.
An alternative health 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) needs to be addressed, as this can create a legal risk or liability as has happened to one of ACR Institute’s interviewee, Dr Nicholas Gonzalez. (5)
Primum non Nocere & the Weight of History
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 and maximizing the legal 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 alternative health practitioner’s practice, licensed or unlicensed.
One of Holistic Medicine’s strong characteristics 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. In this perspective, significant aspects of the United State’s History of Medicine and concomitant Legislative Statutes and Local rules have been so fraught with bribery-based corruption, incompetence, legal abuse and scientific reductionism (See blog on Allopathic Medicine’s limitations) that anyone who dares to administer any natural or holistic remedial intervention, including a Mother to her child, can be harassed and prosecuted.
This is why alternative and holistic health practitioners as well as care-takers should get educated in this realm, if only to prevent legal complications, un-necessary loss of revenue and patient injury. (6) Furthermore, by gettng trained in this field, they will be promoting within their local community healthy, sustainable, safe, cost-friendly, holistically inspired and scientifically grounded standards of care.
Director of Holistic Justice Institute & 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, risk management and many other legal protection aspects that will maximize their peace of mind and optimize their practice’s scope and security.