The purpose of this
article is to provide vital information to non-licensed energy medicine practitioners
about how to avoid legal problems because of their websites. Being knowledgeable about the
legal pitfalls and using risk management tools to decrease potential liability empowers
energy medicine practitioners to do their healing work without the threat of being charged
with practicing medicine without a license. If you use energy techniques or therapies with
clients solely for mental or emotional health purposes and are more oriented to the field
of energy psychology please read my companion article at www.MidgeMurphy.com
There are a number of ways that non-licensed energy medicine
practitioners can find themselves in costly and debilitating legal dilemmas because of
what is published on their websites. Most practitioners using innovative energy based
techniques are not aware of the various legal issues that impact and govern their ability
to represent themselves to the public via their websites. In this article I will discuss
some of the legal principles that generate these potential legal problems and provide some
steps for managing the risks practitioners face because of the innovative nature of energy
therapies. This is a multi-layered approach because there are several areas in which
practitioners can encounter a legal problem. In this article, Im going to cover 3
major legal areas
.licensing statutes, the Federal Trade Commission, and
There are actual cases where complaints have been filed by various
licensing boards against energy oriented practitioners not because a formal complaint was
received by the board from a client but solely because of the content of their websites.
The result was these practitioners had to close their practices after spending thousands
of dollars in legal fees to answer the complaints and defend themselves because they were
unknowingly in violation of their states laws applicable to licensed health care
providers. These unfortunate situations could have been avoided had the practitioners been
aware of the laws in their state and had taken some simple steps to reduce and manage
their legal risks. Many energy medicine practitioners could be unknowingly in violation of
their state laws, including their medical and/or psychological practice acts. Please be
aware that state licensing boards are routinely looking at websites and targeting those
that are in violation of the law. This applies to both licensed and non-licensed
practitioners and covers all professional health care practitioners.
First of all, its important to understand that you must operate
within the current legal and regulatory framework that governs how health care is provided
in this country. How did this framework evolve into our current health care system? It all
starts with the 10th Amendment to the Constitution which grants states the right to
protect the safety and well-being of their citizens. As a result, states have passed
numerous laws, regulations, and administrative rules to regulate a number of occupations
and professions, including, physicians, psychologists, nurses, chiropractors, counselors,
lawyers, dentists, dietitians, real estate agents, etc. The underlying regulatory value
upon which all licensing statutes, regulations, and administrative rules are based is
public health, safety, and welfare.
Innovative energy medicine methods, therapies, techniques, whatever you
choose to call them, are considered experimental and unsubstantiated and are therefore,
not part of any established "standards of care" or "scope of practice"
in any licensed health care profession, including the practice of medicine. In order for
new innovative therapies such as those used in energy medicine to be accepted, they must
pass the "evidence-based" test. This hasnt happened yet although the
Office of Complementary and Alternative Medicine within the National Institutes of Health
is conducting research to support the safety and efficacy of energy medicine methods.
Consequently at this time, even if you believe energy techniques are helpful therapeutic
tools, the powers that be, by and large do not. So its important for you as a
practitioner using energy techniques to be aware of how energy therapies are perceived by
the authorities, especially state medical boards, because it directly impacts your ability
to do your healing work in the world.
BEING IN VIOLATION OF LICENSING STATUTES
For purposes of illustration, Im going to focus primarily on the
practice of medicine but the principles and issues discussed below generally apply to all
licensed health care professionals. All 50 states license the practice of medicine. One
area of significant risk you face as a practitioner of energy therapies is to be in
violation of your states medical practice act unless your state provides exemptions
and/or exceptions for non-licensed healers. So obviously it is imperative to do some
careful legal research.
As a general rule there are 2 components to the laws that govern the
practice of medicine. One is the title portion of the law and the other is the definition
of the practice of medicine.
Title What you call yourself
Generally state medical practice acts restrict the use of the word
"physician" to only those individuals who have obtained a license to practice
medicine. Most non-physician energy medicine practitioners dont represent themselves
as "physicians" so arent violating this part of the statute. However,
words of caution for those energy medicine practitioners that have PhDs and use the
word "Doctor" or any abbreviation thereof in representing themselves because
they possibly could be in violation of their medical practice act. For example in Oregon,
a person is considered to be practicing medicine if he/she "uses the word
or any abbreviation or combination, thereof,
connection with the name of the person, or any trade name in which the person is
interested, in the conduct of any occupation or profession pertaining to the diagnosis or
treatment of human diseases or conditions mentioned in this section" (ORS 677.085).
If you have a PhD its important to disclose on your website and other marketing
materials what discipline you earned your PhD in and to state you are not a licensed
Even though the discussion above addresses the practice of medicine,
other laws may also apply to what you can legally call yourself. For example, you may be
legally prohibited from using the words "counselor" or "therapist"
unless you are a licensed mental health professional.
Key Risk Management Step all practitioners need to determine
what they can call themselves according to the laws and regulations in their state.
Definition of the practice of medicine how you describe your
In addition to title issues, all practitioners using energy techniques
are subject to legal problems if on their websites the description of their services
violates the "practice definition" of any laws that apply to licensed health
care professionals. The most obvious health care professional would be a
"physician", but it also includes laws governing psychologists, social workers,
professional counselors, marriage and family therapists, body workers, nurses, and
potentially even dietitians if you provide any kind of nutritional advice.
Over the last hundred years there have been numerous cases adjudicated
about what constitutes the practice of medicine. These cases are helpful in our inquiry as
to whether or not using energy healing techniques is considered the practice of medicine.
There have been a few cases dealing with alternative healers where criminal convictions of
healers were upheld for unlawfully practicing medicine. For example, in Smith v People, a
defendant who purported to cure diseases by laying on hands was convicted for
"practicing medicine" without a license, even though he did not share with
clients what was the matter with them, did not have an official office but practiced out
of a home, and used only his hands. The court noted that defendant used the title
"Healer" to indicate that he was engaged in the business of treating the sick.
The court further emphasized that a public health statute must be construed liberally. The
Smith court decided the "practice of medicine" to mean "the practice of the
healing art commercially, regardless of the curative agency employed". The foregoing
is typical of decisions made by courts in other jurisdictions. Because state medical
practice acts have been so broadly construed by the courts, they has basically created for
MDs a monopoly over health care in this country, asserting that any healing
modality, present or future, must come within the sphere of "medicine."
Consequently, judicial opinions treating alternative practitioners reflect the dominance
of the medical profession over the delivery of health care.
As an example, in Oregon the "practice of medicine" is
defined as to "offer or undertake to diagnose, cure or treat in any manner, or by any
means, methods, devices or instrumentalities, any disease, illness, pain, wound, fracture,
infirmity, deformity, defect or abnormal physical or mental condition of any
person".(ORS 677.085(4). Unfortunately, the laws that govern the practice of medicine
and how those laws have been interpreted by the courts are antiquated based on a 19th
century regulatory paradigm that doesnt fit into the expanded use of energy
techniques in the delivery of health care in this country.
So the bad news is healers potentially face being charged with the
crime of practicing medicine without a license. However, the good news is that a few
states have passed legislation that creates exemptions and exceptions for non-licensed
practitioners of the healing arts. The National Health Freedom Action organization has
been instrumental in getting laws passed in New Mexico, Arizona, Louisiana, Rhode Island,
Minnesota, Idaho, and California that protects energy healers from being charged with
practicing medicine without a license provided healers comply with the requirements set
forth in the law. www.nationalhealthfreedom.org.
Its not only non-licensed practitioners that face legal risks but
also licensed physicians as well. All physicians must comply with the "standards of
care" and "scope of practice" as defined by their respective licensing
laws, regulations, and administrative rules. As I mentioned above, energy oriented
therapies are considered experimental and they have not be substantiated by mainstream
medicine. Consequently, they are deemed to be outside the traditional "standards of
care" and "scope of practice" definitions that all licensed physicians must
follow in treating patients. Licensed physicians could be subject to professional
discipline for using energy healing methods with patients because it could be determined
that these methods are per se outside the scope of practice or fall below the standards of
care. Physicians face the risk of suspension; having to eliminate energy oriented
therapies from their practices and/or loosing their licenses. Some states have passed
legislation that protects physicians from facing professional discipline for practicing
complementary or alternative medicine provided the physicians meet certain conditions such
as training and competency.
Key Risk Management Step all practitioners need to determine how
they can describe their services on their websites so they are not in violation of any
laws or regulations in their state.
RISK OF RECEIVING A COMPLAINT FROM THE FEDERAL TRADE COMMISSION (FTC)
The Federal Trade Commission is the
nation's consumer protection agency. The FTC's Bureau of Consumer Protection works for the
consumer to prevent fraud, deception, and unfair business practices in the marketplace.
Last year the FTC put together a task force to review websites offering health care
products or services that make questionable claims of curative ability; are exaggerated,
or unproven. The FTC is specifically targeting "newly discovered" therapies that
claim to help cure a wide range of ailments. This would include all of the energy based
techniques that are part of the field of energy medicine. The FTC is checking websites
looking at several items:
1. The type of modality, technique, or therapy offered by the
2. The qualifications of the practitioner
3. The claims of effectiveness
4. Violations in the use of restricted language such as non-licensed practitioners using
the word "treatment" on their websites
5. Lack of scientific proof for the modality, technique, or therapy
To view an article regarding this issue published by the FTC go to:
What are the consequences of having a complaint filed against you by
the FTC based on the contents of your website? At the very least you will incur
significant legal fees in answering a complaint filed by the FTC and at worst you could be
subject to a substantial fine. As an example, in an actual case, in 1998 the FTC brought a
complaint against Dr. Roger Callahan and a Decision and Order was published by the FTC
(Docket No. C-3797). The FTC determined that Dr. Callahans Addiction Breaking System
lacked competent and reliable scientific evidence among other things. Dr. Callahan and his
attorneys entered into a consent order and he was fined Fifty Thousand Dollars ($50,000)
and was subject to a number of restrictions. Obviously all practitioners want to avoid
running afoul of the FTC.
Key Risk Management Step all practitioners need to make sure
their websites are in compliance with FTC rules regarding advertising their services to
the public and the use of testimonials
RISK OF A LEGAL COMPLAINT BY A VISITOR TO YOUR WEBSITE
From a legal standpoint what you say
about you and your services on your website is like a binding contract with each visitor
to your website. Many practitioners do not understand the legal vulnerabilities they face
because of the language they use of their websites to describe their credentials, their
services or the effectiveness of the therapies they offer to clients. Here is sample
language that demonstrates a legal problem:
"Chances are that you've been searching for a way to get relief
from your pain and distress--whether emotional or physical. You're about to read about a
rapid and effective way to do just that! You can truly resolve these issues so they no
longer cause distress. Today, a revolutionary new method called XXXXXXXXX can provide
relief for allergies, back pain, traumatic memories: childhood abuse, war, auto accident,
etc. (you can insert any physical or mental problem)"
Here is another statement from another website:
"XYZ is a gentle, fast and reliable technique to achieve quick and
lasting relief from negative emotions, trauma, fears and many physical symptoms."
Both of these statements make claims of curative ability without
scientific evidence. Also by using the word "pain" the FTC would say the
practitioner is providing medical services because if a person has "pain" then
theres a medical problem. In addition, if a visitor read these statements and then
engaged the practitioner to help them and as a result did not get the resolution promised
on the website, the visitor (now client) could file a legal complaint for
misrepresentation. Now the practitioner has to hire a lawyer even if the complaint is
without merit. Practitioners can avoid this kind of pitfall by carefully auditing the
language on their websites and by having a legally sound website disclaimer specifically
drafted for them.
Many of the potential legal issues that can arise from the misuse of
language on a practitioners website can be ameliorated by a legal disclaimer. To be
effective a legal disclaimer must be drafted specifically for that practitioner and must
be placed appropriately on the website. A disclaimer is useless if it is borrowed from
another website, is a generic form, or is not placed properly on the website.
Key Risk Management Step all practitioners need to review the
language on their websites to make sure they are not at risk for a legal claim
Key Risk Management Step all practitioners need to have a legal
disclaimer drafted specifically for them on their websites.
The good news is that energy oriented practitioners are helping clients
heal and are making a significant contribution to the health care field. Energy medicine
methods are becoming better known which also means the authorities are beginning to take
notice. Along with this success comes the concurrent responsibility to make sure you are
conducting yourself in an ethical manner and are in compliance with applicable laws and
regulations. Failure can bring painful consequences both financial and from a career
perspective. It is advisable to take each of the key risk management steps to reduce the
potential for legal problems associated with your website. It is my hope that the
information shared with you in this article has been helpful.
Disclaimer: The information provided in this article is for
educational purposes only as well as to give you general information and a general
understanding of the law, not to provide specific legal advice. By reading this article
you understand that there is no professional relationship between you and the author. The
information provided in this article should not be used as a substitute for competent
professional advice from a professional liability risk management consultant or from a
licensed attorney in your state.
Midge Murphy, JD, PhD
Professional Liability Risk Management Consultant
Ethics & Legal Principles in Energy Therapies
82985 Territorial Hwy, Eugene, OR 97405 (541) 344-4743
Midge (at) MidgeMurphy.com
Website Risk Management Packages Available
© 2010 Midge Murphy. All rights reserved. Any unauthorized use of this article is
prohibited by federal law. No part of this document may be reproduced or transmitted in
any form or by any means, including photocopying, for public and/or private use without
permission in writing from Midge Murphy.