PRACTICE IN INTEGRITY Scope of Practice Issues for Energy Healing Practitioners By Midge Murphy, JD, PhD (energy medicine) Professional Liability Risk Management Consultant Ethics &Legal Principles in Energy Healing Methods Prepared for THE ASSOCIATION FOR COMPREHENSIVE ENERGY PSYCHOLOGY 20TH ANNUAL INTERNATIONAL ENERGY PSYCHOLOGY CONFERENCE May 2018, Orlando, FL Midge Murphy, JD, PhD, LLC 82985 Territorial Hwy, Eugene, OR 97405, (541) 344-4743 www.midgemurphy.com, email: midge@midgemurphy.com DISCLAIMER & COPYRIGHT NOTICE The information presented in this Conference Handout is for instructional and educational purposes and is provided only as general information, which may or may not reflect the most currently legal developments. Further, the information presented in this Conference Handout is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice or opinion, or to substitute for obtaining legal or risk management advice from a professional 2018 Midge Murphy. All rights reserved. Any unauthorized use of this document is prohibited by federal law. No part of this document may be reproduced or transmitted in any form or by any means without permission in writing from the author
Introduction Energy healing methods are multi-disciplinary and are being used by many different types of practitioners, both licensed and non-licensed. Whether licensed or non-licensed, all energy healing practitioners must operate within the current legal and regulatory framework that governs helping professionals. Therefore, it s essential for energy healing practitioners to understand and be in compliance with the laws and regulations that dictate how they can legally practice energy healing methods with clients. Ultimately, scope of practice for all practitioners who use energy healing methods with clients is defined by law. Educating practitioners about scope of practice issues and providing them with risk management strategies not only reduces their potential legal liability but also supports them in practicing energy healing methods in integrity. The purpose of this presentation is for participants to gain an understanding regarding scope of practice issues that directly impact their ability to legally practice and to learn risk management strategies that can help reduce their risks. Section I Legal & Regulatory System That Governs Helping Professions 1. Energy healing methods fall under the umbrella of complementary and alternative medicine (CAM) 2. Historical development of licensing statutes and regulations A. Under the 10 th amendment to the U.S. Constitution each state has the right to pass laws and regulations to protect the safety and welfare of its citizens B. A primary method of safe guarding the health and well-being of citizens is to license professions to ensure that basic levels of education, competency, and skills are established and maintained. The underlying regulatory value for licensing laws is to protect the safety and welfare of citizens. D. Over the past 100 years these practice acts have been construed broadly by the legal system resulting in courts finding that just about any type of healing work is considered the practice of medicine or psychotherapy. Thus, the legal paradigm mirrors Biomedicine s historical view that alternative practices as deviant, suspect, or on the fringe. E. A unique feature of energy healing methods is that they can be used in a variety of contexts, depending on the legally defined scope of practice of the practitioner. They can be used for mental health issues, physical symptoms, life coaching, stress management, peak performance, spiritual counseling, as a self-help tool, and to support the body s natural ability to heal itself. F. Therefore, in what context a practitioner s uses energy healing methods with clients will indicate how that particular practitioner s practice fits within the current legal and regulatory system that governs helping professionals.
G. States are considering regulating non-licensed energy healing practitioners. The first potential step states may take regarding the credentialing of non-licensed practitioners is to require certification from approved organizations. Section II Scope of Practice Issues for Licensed & Non-Licensed Practitioners 1. Licensed energy healing practitioners A. Licensed providers have a scope of practice and standards of care they must follow which are defined by each state s statutes, regulations, administrative rules, and case law. By practicing innovative energy healing methods, a licensed practitioner may be subject to professional discipline for practicing below the standards of care or outside the scope of practice. Also, practicing innovative and unsubstantiated energy healing methods can be legally determined to be per se malpractice. In addition, they can make the licensed practitioner more vulnerable to a malpractice claim from the board or a client. B. Examples of licensed professionals who have been subject to professional discipline (1) Maryland Board of Physicians vs. Alice Lee-Bloem, MD After a 2 year battle Dr. Lee-Bloem a holistic psychiatrist successfully defeated the Maryland Board of Physicians and protected her legal right to practice energy medicine (2) Connecticut Department of Public Health vs. Robban Sica MD DOPH filed charges against Dr. Sica alleging she violated the applicable standard of care because she used an innovative therapy with clients. Dr Sica prevailed but only after filing a Federal lawsuit to get her medical license back (3). A licensed clinical social worker in Texas faced disciplinary charges for using an energy psychology method in her practice because it was not substantiated under Texas LCSW regulations. She successfully defended her right to use EP methods (4). A dentist lost his license for using an energy healing method he learned in a weekend workshop (not enough training to be competent) and for failure to obtain adequate informed consent when using the energy healing method with clients. He also faced a malpractice claim from a client for failure to obtain informed consent. C. Some states have passed laws that protect licensed professionals. For example, in Oregon a licensed MD will not be subject to professional discipline for using an innovative, alternative method provided the MD can demonstrate thorough training and competency in the alternative method, at least one other physician in the state uses it, the method is not harmful, and the alternative method does not replace standard care. 2. Non-licensed energy healing practitioners A. A non-licensed practitioner is not subject to professional discipline by a licensing board. However, a non-licensed practitioner is exposed to the claim of practicing a profession without a license. This could be medicine, psychotherapy, massage (where licensed) and even providing nutritional advice if only licensed dietitians can provide such services (some states).
B. As a general rule, non-licensed energy healing practitioners who treat DSM V disorders or medical conditions are practicing psychotherapy or medicine without a license. C. Non-licensed energy healing practitioners could mistakenly believe they are safe from prosecution because they are practicing within their scope of practice as it was taught to them either through a certification program or other type of training. D. Steve Cooksey case Was charged in 2012 by the North Carolina Board of Dietetics & Nutrition for practicing nutrition without a license because of his blog. E. Healthcare Freedom Laws can reduce the risk of being charged with practicing medicine without a license, provided, the practitioner is in full compliance with the law. 3. How can practitioners get into legal trouble with scope of practice issues A. Websites, marketing materials, social media, licensed professionals, clients, and extended family members and friends of clients. 4. Licensing statutes - use of titles - what you call yourself A. Laws restrict the use of certain titles which only can be used by licensed practitioners. In addition, licensed practitioners may also be restricted in using certain titles. B. Example of a typical psychology practice act regarding the use of titles: It shall be unlawful for any person to hold himself out to the public by any title or description of services incorporating the words psychological, psychologists, psychology or psychotherapist unless he shall first have obtained a license pursuant to this act C. Titles that are generally not protected by laws practitioner, coach, facilitator, mentor, educator, consultant, intuitive. D. Violation of these laws subject the non-licensed practitioner to being charged with the crime of practicing a licensed profession without a license. The outcome is usually the licensing board sends a cease and desist letter and shuts down the practice. E. Misusing a title can result in a licensed health care professional being subject to professional discipline 5. Licensing statutes - how you describe your services A. Practitioners also face legal risks in how they describe their services on their websites, marketing materials, and practice forms. Laws not only regulate titles but also the services that can only be provided by licensed practitioners to the public B. Words to avoid if you are a non-licensed practitioner; healer, pain, patient, treat, treatment, therapy, diagnose, DSM V disorders such as depression, PTSD, anxiety, etc.
6. Scenarios to consider A. Sally, a non-licensed EFT practitioner offers her services as stress management consultant. Tom engages her services to help him be less stressed and more confident about speaking in public. In working with Sally, Tom begins to remember as a child suffering emotional and sexual abuse from his father. What are the scope of practice issues in this scenario? B. Cheryl is a registered nurse who s also trained in Therapeutic Touch and uses it at the hospital to help patients deal with the stress of having diabetes. In working with Betty to help her manage her diabetes, Betty spontaneously recovers memories of being sexually abused as a child. What are the scope of practice issues with this scenario? C. Richard is a licensed professional counselor who attends a Matrix Energetic seminar. He is so excited about what he learned, he wants to incorporate it into his psychotherapy sessions. What are the scope of practice issues with this scenario? D. Janet is a non-licensed wellness coach and Healing Touch practitioner. Stacy engages Janet to help her because she suffers from severe joint pain and exhaustion. What are the scope of practice issues with this scenario? 7. The myth of internet ordination 8. The myth of needing a license to touch 9. Working with clients across state lines; Using Skype, Zoom Section III Risk Management Strategies 1. To protect your practice, know, understand, and be in compliance with the laws and regulations that apply to you and your practice. Each state is different. 2. Hire a knowledgeable professional to draft a legally sound informed consent agreement if you are licensed, and a client agreement for services if you are nonlicensed. These are significant legal documents and should only be drafted by an attorney or risk management consultant. 3. Hire a knowledgeable professional to conduct a risk management audit of your website and other marketing materials and to draft a legally sound website disclaimer. 4. If you are a licensed professional make sure you can demonstrate to your licensing board that you have significant training and are competent in the energy healing methods you use. This is best demonstrated by being certified by an organization that has a professional certification program. 5. If you are a non-licensed practitioner make sure you have had significant training and are competent in the energy healing methods you use. This is best demonstrated by being certified by an organization that has a professional certification program.
6. Belong to a national organization like ACEP which has standards of practice, an ethics code, research data, and can provide a platform for the respectable minority defense legal doctrine. 7. Obtain professional and general liability insurance that covers the energy healing method(s) you use with clients. 8. Obtain a Certificate of Completion in ethics, legal principles & risk management strategies for energy healing practitioners. 9. Follow FTC rules and regulations regarding advertising and also comply with the consumer protection laws in your state. REFERENCES AND RESOURCES References Cohen MH. Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution. Ann Arbor, MI; University of Michigan Press, 2000 Cohen MH. Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health and Human Healing in Human Transformation. Ann Arbor, MI; University of Michigan Press, 2003 Murphy, M. Empower & Protect Your Practice: Ethics, Legal Issues and Risk Management Strategies for EFT Practitioners. Eugene, OR; Territorial Publishing 2014 Murphy, M. Practice Energy Healing in Integrity; the Joy of Offering your gifts Legally and Ethically, Eugene, OR; Territorial Publishing 2015 Resources Email Midge at midge@midgemurphy.com to schedule a free 15-minute consultation Free articles on Midge s blog Discounted Risk Management Packages Print & ebook - Practice Energy Healing in Integrity; the Joy of Offering Your Gifts Legally & Ethically Online Exam based on Practice Energy Healing in Integrity; Receive a Certificate of Completion and earn an important professional credential ebook Empower Your Practice; Ethics, Legal Issues & Risk Management Strategies for EFT Practitioners EFT Certificate Online Course Ethics, Legal Issues & Risk Management Strategies for EFT Practitioners