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— updated 2009-03-04

Herbalist Review, Issue 2009 #1: Health Freedom update — Montana

Montana citizens: This page will be frequently updated with breaking news in the next few days. Bookmark this page.

2009-Mar-04: Opposition to the Montana Health Freedom Bill (SB 287) is heating up from the licensed health professions and the medical-industrial complex. Please contact Representatives nearest to you IMMEDIATELY. For more information...

by Roger W. Wicke, Ph.D.

Subtopics on this page…


Support Montana SB 287: Consumer health freedom and access act

Please forward this message to friends and colleagues in Montana.

Subject: Support SB 287: Consumer health freedom and access
act
Date: 2009 February 13


This week the Montana legislature is considering a health
freedom bill (SB 287, "Consumer Health Freedom and Access
Act"), which would protect a free market in health services
and information in Montana. In many states, including
Montana, practitioners have been legally harassed and
prosecuted for "practicing medicine without a license", even
in the absence of any complaints or evidence of harm.

Many years ago, I first became aware of Congressman Ron
Paul's efforts to roll back the trend toward tyranny in this
country through his many articles on health freedom issues
and his exposure of the failure of the "nanny state" in
micromanaging our health and our economic decisions. Our
health care system is the most expensive in the world per
capita, and we have less to show for it each year, our
quality of life rapidly descending into third world status.

SB 287 was approved Tuesday, February 9 in Senate committee.
Within a few days it will go to the full Senate for a vote.
Our legislators recognize that our healthcare system is
top-heavy with excessive regulation and that it needs reform,
but they are under strong pressure from vested interests --
the licensed medical professions and the medical-industrial
complex -- to defeat this bill.


*******************************************
It is extremely important for Montana's legislators to hear
from you now (today!), before they vote on this bill toward
the end of this week.

We have a golden opportunity to add Montana a growing list of
states that have already passed similar health freedom bills.
Please act now. Just a short phone call or email message
stating "Please support SB 287, the Consumer Health Freedom
and Access Act" will be helpful.


For a list of the 50 Senators by District and Address:

    http://nris.mt.gov/gis/legislat/2009/list.asp?Type=Senate

1. Find the senators closest to you on the list.

2. Call 406-444-4800 and leave a message for those senators
(up to five). Or if you'd like to leave a more detailed
message, see email contact information at (near bottom of
page):

    http://leg.mt.gov/css/senate/


You are welcome to cut and paste from my own email message to
legislators, below. If you are a health care consumer, say so 
and add anything else you like.


---------------------------------------------------

Please support SB 287. 
The opponents are trying to scare you into killing the bill.
SB 287 provides consumer protection.
SB 287 clarifies how practitioners are sanctioned. 
Boards want to retain their power to sanction anyone whenever 
they want to, even if no harm has been done.
Practitioners who harm the public will still be subject to
sanction.

I believe it is a good bill because it

-Does not really create new law, but creates a concise
standard for Montana that restates what is already judicial
case law common to many states of the U.S. (Regarding
opposition by the medical professions: Do they wish to
overturn over 150 years of U.S. judicial case law that has
cautiously and incrementally established guidelines of
fairness regarding this issue?)

-Protects the right of the public to access many natural
and alternative forms of health care and to decide for
themselves whether a practitioner's qualifications meet their
personal standards.

--------------------------



Roger W. Wicke, Ph.D., Director
Rocky Mountain Herbal Institute
c/o PO Box 579
Hot Springs, Montana
website: http://www.rmhiherbal.org/


Background — Prosecution for practicing medicine without a license

In many states, unlicensed health practitioners (herbalists, massage therapists, health educators, etc.) have been targeted with legal harassment by medical boards and other licensed professional associations, even though there is a long history of judicial case law (common law) that has established the right of these practitioners to offer their services and the right of the public to seek them out, as long as these practitioners do not attempt to deceive the public by behavior or language that implies they are licensed medical/health practitioners when they are not.

Advocates for health freedom believe that if an individual wishes to obtain the services of an unlicensed health practitioner, that that individual should have the right to do so, and that an unlicensed health practitioner should have the right to offer his or her services without harassment by or permission from government, as long as there is honest disclosure and no fraud or deception involved.

The following article reveals how prosecutions are frequently based on issues of word-play and debates over professional "ownership" of such words as "medicine" and "diagnose" and the terminology of medical physiology and anatomy.

Many health practitioners remain unaware of how use of these words can be used in certain contexts as prima facie evidence that the practitioner is practicing medicine, even in cases where most ordinary people would understand that the practitioner is not a doctor and has made no attempt to deceive people into thinking he or she is a doctor, but is merely attempting to educate.

(I wrote the preceding article over 10 years ago after witnessing herbalist colleagues of mine being prosecuted for practicing medicine without a license. After hearing conflicting opinions about what "practicing medicine" legally entailed, I decided to spend several hundred hours of my own time to research the U.S. case law on this issue. The resulting article has been on our website for 10 years and has been confirmed by legal professionals and others with knowledge of how the system works.)

Montana SB 287 would protect unlicensed health care practitioners from legal harassment as long as they accurately inform their clients of their education and qualifications (and do not engage in specifically prohibited acts like surgery or penetration of the skin), so that individuals seeking such services can decide for themselves if the practitioner's qualifications will likely meet their needs.

Health profession licensing — the promise vs. the reality

I highly recommend reading the following article by a fellow herbalist, which explains why licensing often does not live up to its promise of protecting the public health, safety, and welfare:

In summary, Buhner outlines the following negative effects of professional licensing:

  • Often increases costs to the public;
  • Creates de facto professional monopolies;
  • Inhibits competition;
  • Distorts goals of professional education by shifting focus away from improving clinical competence to elevating the profession's academic and economic status;
  • Often results in no discernible improvement in clinical outcomes, and in some cases, actually diminishes quality of clinical outcomes by inhibiting creative solutions and innovations.

Having provided education to herbalists and other health professionals for many decades, I can attest to Buhner's conclusions in the realm of herbal practice. The competence of practitioners who have taken my courses has had little correlation to whether they are licensed or not. I have had dedicated and competent unlicensed herbalists and medical doctors complete my courses; on the other hand, many licensed practitioners are looking for options to complete CEU (continuing education) requirements with the least amount of effort, and I discourage these people from starting my courses, because I believe in doing something well or not at all. Other authors and independent reports have questioned whether conventional CEU requirements promote increased competence. Too many licensed practitioners approach continuing education with a sense of entitlement — the notion that their license entitles them to get by with a minimal effort, in contrast to unlicensed practitioners who know that the primary determinant of their success is client satifaction and clinical results.

Safety concerns — herbs vs. pharmaceutical drugs

Regarding the safety of herbs, one need only examine the statistics. Properly prescribed pharmaceutical drugs cause are the fourth leading cause of death in the U.S. — 106,000 deaths/year (ref: Journal of the American Medical Association, July 2000). Properly administered herbs cause an average of one death per year in the U.S. According to Buhner, "Other herbal deaths, estimated to be approximately 50 per year, are mostly attributed to the improper use of ephedra (Ephedra sinica Stapf., Ephedraceae) as a weight-loss aid or energy booster. (The popular use of ephedra for weight loss and energy is a separate issue and one that should be dealt with through other, existing product-regulatory channels. It is unrelated to the regulation of herbal practitioners.)" I would add that the vast majority of cases of ephedra abuse are self-inflicted, without or in spite of advice from herbalists, who, in my experience, are uniformly aware of the problems irresponsible ephedra marketing has caused. Additionally, to place this all in perspective, USDA pharmacologist-herbalist Jim Duke points out that alcohol (ethanol) kills about 500,000 people each year, yet we allow people to "self-medicate" with alcohol at their own discretion.

What SB 287 does and does not do

I have examined the current wording of the bill in detail, and I believe it is a good bill for several reasons:

  • In reality, it does not really create new law, but does create a clearly worded standard for Montana that restates what is actually already judicial case law common to many states of the U.S. (Because of this, I am puzzled why many of the licensed professions have opposed this bill; do they wish to overturn over 150 years of U.S. judicial case law that has cautiously and incrementally established guidelines of fairness regarding this issue? Or do they merely wish to keep this information secret, so that innocent practitioners will remain ignorant of the proper procedures for protecting their rights?)
  • It creates no new administrative bureaucracy, but merely places unlicensed health practitioners, state health profession boards, and the courts on notice of their rights, duties, powers, and limitations. (So that unlicensed health care practitioners will no longer need to do hundreds of hours of legal research simply to learn how to defend their rights, which various U.S. state courts have already delineated.)
  • It is quite possible that this bill will actually reduce administrative costs by eliminating the legal gray zones that have been used to create fear and confusion, tie up the courts with nuisance cases, and in many cases have been used to destroy the livelihood of honest health practitioners.
  • It protects the right of the public to access many natural/alternative forms of health care and to decide for themselves whether a practitioner's qualifications meet their personal standards.

For more information

Current wording and status of the bill can be tracked here:

Enter SB 287 in the form at top of page.