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— updated 1998-01-19

Herbalists' guidelines for avoiding the practice of medicine

American herbalists' realpolitik, essay #5. Practical suggestions for protecting herbalists' rights, from office procedures to political strategies. Learn how to avoid the "practice of medicine" without a license and how to rely, instead, upon your First Amendment rights to provide information about improving health.

by Roger W. Wicke, Ph.D.

Subtopics on this page…

Copyright ©1995 by RMH-Publications Trust; all rights reserved.





Disclaimer

The following information is of an educational and general nature and should not be construed as legal advice. You should consult appropriate written and professional sources to answer questions related to your individual situation. Exercising one's rights often entails some element of risk, and you should verify all information relevant to your situation before acting; the author and publisher disclaim any responsibility or liability for any loss incurred as a consequence of the use of any information herein.

Introduction

Many practitioners of natural health care are not aware of the legal machinery lurking in the background that can potentially sabotage their business and livelihood. Health care practitioners who know their rights and responsibilities are less likely to be targeted with harassment.

The First Amendment to the U.S. Constitution protects freedom of speech, including that of an educational nature. You do not need a license to exercise such rights, as long as you are not practicing medicine, which includes diagnosing medical illnesses or prescribing treatment for such conditions. Most courts consider use of the words "diagnose", "treatment", or "prescribe" in your office brochures or in talking to clients to be prima facie evidence (evidence sufficient to establish a fact unless rebutted) of practicing medicine. Even if you use other words, but your intent can be shown to be the practice of medicine (diagnosing and prescribing treatment or remedies), you are still in jeopardy.

You should adhere to each of the following guidelines scrupulously.

Words to avoid using

Do not use the professional title "Dr." in conjunction with claims to treat illness. Even if you have a valid Ph.D. in a health-related field, it is recommended that you not use the term "Dr." to prevent your clients from thinking, mistakenly, that you might be a medical doctor. In addition, if a potential client calls you on the phone and refers to you as "Dr." So-and-So, you must correct them immediately by informing them that you are not a medical doctor, or you could become guilty of passive fraud.

Do not "diagnose, prescribe, or treat" anyone, nor recommend any course of "therapy". Avoid claims to "treat disease". Instead, educate to promote health. Avoid diagnosing, assessing, or evaluating the client's diseases or organs or any anatomical part, physiological process or biochemical process. (Anyone is free to impart information of a general nature to others as long they make no specific references to the individual's body. For example, one may explain the various factors that may lead to diabetes, without referring to the client specifically or making any inferences about the client's condition.) Avoid claiming to treat the client's diseases, organs or anatomical body parts. You may explain what you are recommending by saying "If this were my body, I would be concerned about... and I would do ...," but you must avoid claiming that a recommendation will cure, treat or relieve specific symptoms or illnesses of the client.

In describing the services that you perform, avoid the following specific words and phrases: diagnose or evaluate (illness); examine (when referring to physical inspection of the body exterior, tongue and pulse); therapeutic system, therapy; treatment, cure, treat or cure disease; relief of symptoms, relieve symptoms; prescribe treatment, prescription, dispense or administer remedies; manipulations (referring to any massage you may perform), physician (referring to yourself), patient (your client), medical, medicine (herbal supplements you may use).

In some states, the dieticians have even usurped the words "diet" and "nutrition". Aha! But they have not become so bold as to claim dominion over "food". Therefore you should refer to: foods, food or meal plans, food sensitivities, etc.

Words that are probably safe to use in describing what a professional non-medical herbalist does: teach, consult, consultant, promote health, stimulate healing, restore health, client, herbal formulas, herbal science, inspect or look at (client's body exterior, tongue and pulse), health disharmony.

Comparison of medical practice vs. health consulting

Don't: Do:
recommend a therapy remove factors which prevent the body from healing
treat disease give advice for promoting the body's natural healing potential
give remedies teach correct lifestyle and habits
give manipulations refer to local laws governing actions involving touching clients

(The AMA does not define as remedies: sunbathing, diet regimens, steam and mineral baths, and exercise.)

Defending your rights

No public servants have the right to investigate you or invade your privacy without notice of investigation and the reasonable basis for the investigation (due process of law). If the investigation is an administrative inquiry, rather than a judicial procedure, the investigators must meet with you on your own terms, not necessarily in your home or office.

You should bring with you two witnesses and an unconcealed tape recorder, and above all, be polite and considerate of the investigators, who are obligated by law to investigate complaints submitted to their agency, even if the complaints are without merit. Be polite but firm about your rights. An excessively defensive attitude is unnecessary; simply state your case. Relevant sections of the U.S. Constitution to review: Amendments 1 (freedom of speech), 4 (freedom from search and seizure without a warrant), 6 (right of due process and equal protection under the law), 9 (rights not enumerated in the Constitution are retained by the people), and especially the current case law related to the 4th Amendment regarding searches and seizures.

Making appointments

Before making an appointment, be sure to send the new client a brochure describing your services and a health questionnaire to fill and bring to the first appointment.

When making appointments over the phone, record the client's full name, address, and phone number. After receiving this information, if you suspect undercover agents of trying to entrap you, verify this information by checking in the phone book or with the directory assistance operator. Undercover agents often do not use their own names and addresses.

Office forms to use

  • Business cards identifying you as a health consultant.
  • Brochure: The brochure should explicitly state that your services are not for the purpose of diagnosing, treating or relieving disease, and that if a potential client desires these services they should see a physician. You may wish to include a photograph of yourself on the brochure and a brief biography including your education and experience, since these are details new clients often desire to know.
  • Health questionnaires for clients: symptom checklist of current and prior complaints.
  • Authorization forms, power of attorney: For more protection, you may decide to obtain written authorization from the client giving you power-of-attorney to act in the client's behalf concerning exercise, dietary and nutritional guidelines and to utilize specific non-invasive methods of obtaining information about the client (i.e., pulse and tongue inspection, interviewing the client about their health).

    If you are suspicious about the potential client's motives, have him or her place an inked thumbprint beneath the signature. (Undercover agents will resist doing this.) Typically, investigative agents may wish to receive appointments in pairs, so that they can act as corroborating witnesses for each other in court. Be especially cautious under these circumstances.

  • Client consultation records: Be complete in writing down your recommendations and results of any observations or relevant client history details. If you are a licensed health care provider, you are legally required to keep these for each appointment; records may be subpoenaed in cases of a legal dispute. They are a good idea in any case, because if you acted in good faith and gave competent advice, the record of such facts will be to your advantage. Keep these records for at least 7 years or longer than the statute of limitations in your state.

Professional organizations

Become a member of a professional association or a support group of herbalists and holistic health counselors in your area. If your state legislature ever proposes bills that may impose upon your constitutional right to counsel and educate people about health, you will have an organizational framework to begin immediately lobbying for your group's rights.

If you are interested in learning more about protecting herbalists' rights against legislative and political encroachment, you should read "A review of issues relevant to regulating Chinese herbal practice".

Knowledge of the law will help protect you

By being aware of the above information and following these guidelines, you will likely experience a hassle-free, ethical, and rewarding practice. Practitioners who are boldly, or in ignorance, violating these guidelines are much more likely to be targeted for legal accusations and harassment. If you make it clear to government officials that you know your rights and intend to defend them (politely but firmly), they are likely to leave you alone. The legal system thrives on victims who are ignorant of the law.

If you are interested in learning more about the legal history behind the above recommendations, you should read "Strategies for defending your rights as an herbalist".