LEGAL GUIDELINES FOR UNLICENSED PRACTITIONERS
TABLE OF CONTENTS
Introduction
1. Laws and Their Purposes
2. The Old and the New Paradigms of Healing
3. Practice Options
4. Thoughts, Words and Deeds
5. Consent, Disclaimer and Disclosure Forms
6. Records, Incorporation and Insurance
7. Licensing Versus Certification
8. The Case Against Medical Licensing
9. The Psychology of Licensing
10. What Are Your Rights?
11. The US Constitution
12. The Bill of Rights
13. The Forgotten Ninth Amendment
14. If Legal Disputes Arise
15. The Fully Informed Jury
16. Forms
index
INTRODUCTION
Today, many people today wish to offer much-needed
services and innovations in the healing arts, education and other
fields. Healing is an art, an occupation, and a way of extending
love to others. Healing, teaching and similar activities
are ancient and natural human needs and functions. However,
the occupational laws often do not allow or support those who
wish to help and serve others in innovative ways. In fact,
there is a trend toward more and more licensing laws.
Forgotten are the beautiful principles of inalienable, natural
rights to work, to contract freely and to express oneself freely
for which the American Revolution was fought. Straying from
these principles has lead directly to the confusion and frustration
that often characterizes health care and education debates.
This volume is designed to help you understand the current occupational
laws, and work within them safely. It was born out of my
experience working as an unlicensed nutrition consultant for the
past 18 years. I have a medical degree, but never became
licensed.
Over the years, a number of legal questions and skirmishes arose.
Finding competent legal guidance was frustrating and often impossible.
Hopefully this book will answer some of your legal concerns, and
help improve your confidence to work in a way that is most satisfying
and rewarding.
KEYS TO SUCCESS
The basic principles for practicing successfully
without a license are fairly simple:
1) Maintain high ethical and professional standards
2) Understand the legal environment or climate in which you live and work
3) Watch your thoughts, words and actions, and
4) Take simple and reasonable precautionary measures such as the use of simple disclosure, disclaimer, and consent forms.
*************
Chapter 1. LAWS AND THEIR PURPOSES
Just as one lives in a physical environment,
so too one lives in a 'legal environment'. Just as it is helpful
knowing about the physical environment, it is most helpful to
know the basic structure and history of the American legal system.
Laws are rules of action. Good laws make for a peaceful,
prosperous society. Poorly thought-out laws lead to moral, economic
and social decline. As human consciousness has changed, so too
have our laws evolved. However, basic legal principles such as
the golden rule do not change.
The purpose of laws is to promote the unfoldment of the potential
in each human being. To do this, laws should:
- protect the rights of individuals.
- protect the innocent from the guilty.
- provide equal treatment for all.
These qualities combined constitute justice
and fairness. Often, however, laws are used to stifle innovation
and competition in the marketplace, redistribute wealth, punish
instead of making restitution and manipulate or control others.
The feeling of being out of control that everyone feels at times
leads to the passage of multitudes of laws in a futile effort
to impose control from outside. Whenever one considers passing
a law, it is important to consider its actual effects, even if
its purpose seems noble and the effects are unintended.
Today there is an attempt to create an entirely safe society.
This has spawned an explosion of regulations and licenses in every
field. In health care, education and other fields, many laws stifle
innovation, protect outdated and often harmful practices and protect
the status quo. The actual effects of the laws are opposite of
their stated goal.
There will never be an entirely safe society. Accidents will happen
and innovation requires trial and error. This book will suggest
that the best regulatory structure to protect people while allowing
innovation is the free market. This requires strong property rights,
full rights to litigate for damages and a minimum of government-imposed
regulation.
HISTORY OF THE LAW
For all of recorded history, in most nation-states
power and authority flowed from the gods to the leader, who then
made the laws for his subjects. 'Might makes right' was the rule.
The ten commandments of the Hebrew bible represented a great step
forward, as these were not arbitrary rules, but were for everyone
and would be enforced by a power greater than any earthy leader.
Many of our present legal principles can be traced back to admonitions
found in the Old Testament. An important lesson is given in 1
Samuel, verse 8. The Hebrews were told not to worship an earthly
king or other idols. This was the Second Commandment. However,
they insisted on having a king. Speaking through Samuel, Jehovah
warned that a king would tax them dearly, take young men to fight
in foreign wars and enslave women in his harem. The people insisted
anyway and the warnings proved correct.
Around the world, the 'divine right of kings' was the doctrine
under which monarchs justified controlling the population. In
England, landowners and nobles gradually gained power. This culminated
in documents such as the Magna Charta, a precursor of our Bill
of Rights. Still, the king retained ultimate power. Christianity
had a civilizing effect upon European law, but the church became
a new power center that controlled through fear and dogma.
THE FLOW OF POWER IN AMERICA
Fed up with the tyranny of the king and the Church of England, the founders of America returned to the biblical principle. There would be no king and no state religion. Instead, the flow of power in America would be as follows:
* Ultimate authority or sovereignty flows from the Creator directly to each citizen (not to groups, not to majorities and not to bureaucrats).
* Citizens delegate (meaning assign or entrust) specific powers to the states and federal government. This occurs by means of contracts called constitutions. These specify which powers are entrusted to the government and which are retained by the people. Governments may pass laws but they must conform to the contract or constitution.
* All powers not specifically delegated remain with the people. (Remember this one!)
This was and is a radical doctrine. It remains
a shining light in the world. For millions around the world, it
is only a dream. It has also been long forgotten by many judges,
lawyers, teachers, presidents and other public servants in America.
For the past 150 years or so, powerful forces have sought to reverse
the flow of power, making the states and the people mere subdivisions
of the federal government. This has caused much loss of individual
liberty and social decay in America. Liberty, privacy and the
supremacy of the individual over the state are absolute values.
They cannot be bargained away or compromised without impairing
the entire fabric of society. This truth is rarely taught in school
and we are living with the results.
THE HIERARCHY OF LAWS
Based on the above, there is a hierarchy of laws in America. This hierarchy becomes very important as one explores practice options. The hierarchy is as follows:
I. Biblical principles are the moral and spiritual basis for our laws.
II. The English Common Law embodied the biblical principles and was the unwritten legal tradition in Europe. America adopted the Common Law of England at the time of the American revolution.
III. Constitutional law consists of the contracts between the sovereign people of America and their federal, state and local governments.
IV. Statutes or public laws are laws passed by local, state and federal governments.
V. Implementing regulations are rules that accompany each public law in order to carry out the law.
VI. Case law consists of the interpretations of the law made by judges and juries over the years. Important cases are called precedents.
Let us consider each kind of law in more detail.
BIBLICAL PRINCIPLES
Biblical principles include thou shalt not kill, steal,
lie or bear false witness. These remain the basis for American
law. The bible traces the maturing of mankind from the slave state
in Egypt to a state in which one is totally responsible for one's
acts and thoughts.
The Ten Commandments are the basic requirements for taking responsibility.
The Hebrew word for commandment means a signpost, not a
rule. The intent was that if one follows the signposts, one will
be led to a better life. Other biblical laws include the 613 rules
given in the books of Leviticus and Deuteronomy and the golden
rule in the New Testament.
COMMON LAW
Though rarely discussed, the Common Law is quite important. English Common Law was the major body of law in use at the time of the American Revolution. The IRS Code contains a good definition the Common Law. Page 5041.1, Section 222.1 states:
"Common Law comprises the body of principles and rules of action relating to government and the security of persons and property which derive their authority solely from usages and customs or from judgments and decrees of courts recognizing, affirming, and enforcing such usages and customs."
The Uniform Commercial Code or UCC is a single federal statute containing some of the original common law pertaining to contracts. UCC 1-103.6 states that:
"The code (UCC) is complementary to the Common Law, which remains in force, except where displaced by the code."
The American Declaration of Independence and Constitution are Common Law documents. They were written within the framework of the Common Law, the system of law then in force in the American colonies. To understand the intent of these documents (and your rights to practice) requires understanding them within the context of the Common Law.
CONSTITUTIONAL LAW
A constitution is the contract established
between the sovereign People and their creations, the state and
federal governments. The word People is capitalized because it
denotes a group of empowered citizens rather than an amorphous
mass of humanity. A constitution enumerates which powers and responsibilities
are delegated to the government and which are retained by the
People. The constitutions also set forth the three branches of
government and important details about the operation of the government.
The federal Constitution is a relatively short and simple document
that should be read and understood by everyone. Chapters 11 and
12 discuss the federal Constitution and Bill of Rights.
Constitutional law consists of our state and federal constitutions
including their amendments. Commentaries such as the Federalist
Papers offer more insight about the intent of the federal Constitution.
The first ten Amendments to the federal Constitution are called
the Bill of Rights. All state constitutions also have a
bill of rights. Many times the protections offered by the state
constitutions are greater than those of the federal Constitution.
STATUTES
The state and federal constitutions permit
local, state and federal legislatures to pass public laws
or statutes. Statutes must conform to the state and
federal constitutions. If not, they can be struck down as
unconstitutional. Statutes have slowly replaced the common law
in America. However, all state constitutions acknowledge the common
law as binding unless superceded by statute. The U.S. Code or
USC is a series of volumes of federal public laws or federal statutes.
Each state also has its code book or book of laws.
Among the statutes are the state medical practice acts.
These govern the practice of the healing arts and the issuance
of licenses. An excerpt from the California Business and Professions
Code, "Unlawful practice of medicine defined", reads
as follows:
"Any person who practices, or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, injury, or other physical or mental condition of any person, without having at the time of doing so a valid, unrevoked, or unsuspended certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a misdemeanor."
One may argue that medical practice acts violate the constitutional prohibition against passing laws that abridge the right to contract freely (Article I, section 10). However, courts upheld these laws under another doctrine called the police powers of the state. This is defined as the power to:
"prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity." - from Barbier v. Connolly, 113 U.S. 27, 31 (1885).
The extent to which the police powers may infringe
upon constitutional rights to contract freely and protect one's
property is an open question. The trend has favored giving up
more and more rights and powers to the government.
There is another perspective regarding the constitutionality of
the medical practice acts. Note that the acts begin with: "Any
person who practices ..." A 'person', legally defined, includes
corporations and partnerships. These entities are creations of
the state. Such creations have no constitutional rights. If a
medical practice act stated that "Any citizen who
practices ...", it might be declared unconstitutional. We
will return to this topic in chapter 3.
IMPLEMENTING REGULATIONS
An implementing regulation must accompany
each statute in order for the law to have effect. For example,
a statute might establish a board of medical examiners. However,
legislators do not write all the rules and procedures to carry
out the law. They delegate this task to an agency or even to the
board itself. Federal implementing regulations are found in a
series of volumes called the Code of Federal Regulations, or CFR.
Each state also has a book of state implementing regulations.
At times, a statute is fair but its implementation is not. Such
corruption occurred, for example, with the National Labeling and
Education Act of 1990. The intent of Congress was not to use the
law to take nutritional supplements off the market. However, the
FDA interpreted and perverted the law, writing the regulations
in such a manner that they could remove products from the store
shelves at whim.
CASE LAW AND PRECEDENTS
Statutes and implementing regulations are general
in nature and cannot cover every case. When judges and juries
consider specific cases, they further refine the meaning of the
law. This is called case law.
Precedents are important cases decided by judges or juries.
For example, the law says an unlicensed practitioner may not diagnose
disease. When does an assessment, a guess or an evaluation become
a diagnosis? This issue must be decided by a judge or jury. All
such specific cases form case law. Lawyers look to case law to
see how an issue was handled in the past. Sometimes the intent
of a law is just, but its interpretation by the courts changes
its meaning entirely.
JURISDICTION
The next four sections introduce important
legal doctrines that affect oneís practice. The first is
jurisdiction, a key to understanding our legal system and
perhaps for defending oneís actions. Jurisdiction of a
court is its right or authority to hear and try a case. Jurisdiction
also means the sphere of authority or power of a governing body.
The issue of jurisdiction is the issue of whether or not a particular
law applies to you, to your location and to your kind of business.
Jurisdiction may depend upon a geographical area, the subject
matter or the person who is on trial. A simple example of geographical
jurisdiction is that a court in a particular state has the authority
to hear only cases that pertain to that state. Some states view
natural health care differently than others. One state may be
more lenient and therefore an easier place to work.
A very important principle of jurisdiction is that in order to
hear a case, a court must have jurisdiction over both the
person and the subject matter.
"If any tribunal (court) finds absence of proof of jurisdiction over person and subject matter, the case must be dismissed." - Louisville RR v. Motley, 211 US 149, 29 S Ct. 42.
Another important aspect of jurisdiction is
that once it has been challenged, it must be proven. If it is
not challenged, jurisdiction is assumed to exist. Many people
have lost their case in court because they challenged the subject
matter of the case, when they should have challenged the jurisdiction
of the court to hear the case at all.
For example, let us imagine one is charged with practicing medicine
without a license. Let us also say that one does not consider
oneself a 'person' under the law. The statutory laws are written
for persons and the courts today are for persons. One would need
to defend oneself by challenging the jurisdiction of the court.
If one does not challenge jurisdiction, it is presumed that one
accepts the courtís jurisdiction and one can only argue
the subject matter.
ENUMERATED POWERS
Enumerated powers means that governments may only exercise powers that are delegated to them by the People in the constitutions. All other powers are reserved to the People or the states. James Madison wrote in Federalist Paper #45:
"The powers delegated by the proposed Constitution to the federal government are few and well-defined. Those which are to remain in the States are numerous and indefinite."
The Tenth Amendment to the federal Constitution states:
"The powers not delegated to the United States (government) by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people."
An example of violation of the principle of
enumerated powers was the attempt in 1993 to institute socialized
medicine in the United States. The merits of it are one matter.
The federal government, however, is nowhere empowered to take
over the health care industry. A constitutional amendment is required
to nationalize an entire industry.
Often laws are passed without the constitutional authority to
do so. This abuse is widespread. The FDA often writes rules for
herbs, vitamins, foods and other products, although they are not
a legislative body. They have no constitutional authority to write
laws. They also enforce their own laws, often with gun-toting
SWAT teams, although they are not a court of law and they have
no power to judge the law. Over 100 federal agencies do the same
thing. This brings us to another important American legal principle.
SEPARATION OF POWERS
Another radical American legal doctrine is the separation of powers. In 18th century England, the king or queen passed the laws, executed or carried out the laws and judged who broke the laws. This gave the monarch absolute power. Every dictatorship combines these three powers. To establish and preserve the liberty of the people, the founders of America decided to separate these powers. They asserted that no one person or group of persons would have the power to pass, execute and judge the laws. They divided these functions as follows:
1. To pass laws there would be a legislative branch (local councils, state legislatures and houses of Congress).
2. To carry out the laws, there would be an executive branch (mayor, state governor, the president, vice president and cabinet).
3. To judge guilt or innocence, there would be a judicial branch (the courts, judges and juries). Juries of one's peers were to be the ultimate judges of guilt or innocence and to judge the validity of laws.
SEPARATION OF FUNCTIONS
The fourth legal concept is the idea that certain
government functions are best handled by the federal government,
while others are best handled at the state level, and others at
a local level. The distribution of government functions is a very
important subject if we are to retain out liberties.
Declaring war, foreign trade, making treaties and printing money
are federal government functions. Education and roads are traditionally
state functions. Police and fire protection are generally considered
local functions. In the 20th century, the federal government has
assumed more and more of the functions of state and local governments.
Some say this is the only way to assure a minimum standard for
all Americans.
This is true in some cases. The problems, however, are micromanagement,
unfunded mandates and big brother tactics that deprive individuals
and localities of their rights and powers. Any time another takes
responsibility for our welfare, control and power are also taken
away. Also, no constitutional authority exists for many of these
functions. One might answer that times have changed and the old
principles no longer apply. Perhaps and perhaps not. The problems
in health care today, for example, have resulted in large part
from violation of this important legal principle.
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This page last updated 04/30/2009